Exterior Inspections May Not be Enough—Demolition as a Last Resort
Written by: Alan Nochumson
In a recent decision, the Pennsylvania Commonwealth Court in City of Philadelphia v. A Kensington Joint, cautioned that local governments in Pennsylvania desiring to demolish an allegedly unsafe building structure may need to rely on more than just an inspection of the exterior of the building structure before having it demolished by way of court order.
In a recent decision, the Pennsylvania Commonwealth Court in City of Philadelphia v. A Kensington Joint, 2023 Pa. Commw. LEXIS 128 (Pa. Commw. Ct. 2023), cautioned that local governments in Pennsylvania desiring to demolish an allegedly unsafe building structure may need to rely on more than just an inspection of the exterior of the building structure before having it demolished by way of court order.
The property at issue in A Kensington Joint is located in the Kensington section of Philadelphia.
A Kensington Joint, LLC, which is owned by Adam Ehrlich, owns a property with a three-story building structure situated on it, the opinion said.
In the summer of 2023, the city of Philadelphia filed a complaint in the Philadelphia County Common Pleas Court against the property owner, together with an emergency petition seeking the demolition of that building structure, the opinion said.
In the complaint, the city alleged that there were uncured, unappealed violations of the Philadelphia Code pertaining to the property and its building structure and, due to the alleged unsafe condition of the property, the city sought court authorization to demolish it, the opinion said.
The trial court then held a hearing on the petition.
At the hearing, the city offered the testimony of representatives of Department of Licenses and Inspections (L&I) who discussed the property’s then current condition.
One of the representatives of L&I, Thomas Rybakowski, a construction compliance supervisor for L&I, testified that he inspected the property and that L&I declared its building structure unsafe, the opinion said.
During his testimony, Rybakowski noted that the building structure had a vertical fracture along the side wall, that the front wall at the corner bulged out toward the walkway, that there was bulging and deterioration of the exterior walls and foundational elements, and that there was fire damage to the interior joists of part of the building and, since he did not know how extensive the fire damage was on the remainder of the building structure, he feared that the building structure might collapse.
Notably, Rybakowski, at the hearing, conceded that a structural engineer was necessary to confirm that the defects with the building structure would lead to a collapse and that he was not one, the opinion said.
Moreover, according to the opinion, he clarified that there was no inspection of the interior of the building structure as of the date of the hearing had taken place.
Afterwards, the city presented the testimony of Tameka Blair, a code enforcement inspector at L&I, at the hearing in support of its petition, the opinion said.
During the hearing, Blair stated representatives at L&I did not inspect the interior of the building structure because they deemed it unsafe at the time.
The trial court found the city’s witnesses credible and emphasized the building structure’s structural deterioration, as recounted by representatives of L&I.
Furthermore, the trial court agreed that the city could not perform an inspection of the interior of the building structure due to these unsafe conditions.
Consequently, the trial court not only ordered that the property owner allow representatives of L&I to enter the building structure to conduct an inspection of the interior of the building structure, but also authorized the city to abate the governmental violations plaguing the property, including through the demolition of its building structure without further inspection.
Thereafter, the property owner, among others, appealed the trial court’s ruling to the Commonwealth Court.
At the same time, the property owner also filed a motion with the trial court requesting a stay of the trial court order pending the appeal. The trial court denied that motion.
The property owner then immediately filed an emergency application with the Commonwealth Court, seeking a stay of the trial court order that allowed for the demolition of the building structure without further inspection.
The Commonwealth Court granted a temporary stay of the trial court order pending oral argument before the Commonwealth Court.
After oral argument occurred, the Commonwealth Court granted the emergency application and directed an expedited consideration of the remedies levied by way of the trial court order.
The property owner argued that, under King v. Township of Leacock, 552 A.2d 741 (Pa. Commw. Ct. 1989), the trial court should have applied strict scrutiny to the remedy of demolition and, in doing so, the Commonwealth Court should only uphold the trial court order if, by substantial evidence, demolition is necessary to protect public health, welfare, and safety.
In making this argument, the property owner reasoned that the trial court erred by not considering other less drastic remedies and by ordering demolition without an inspection of the interior of the building structure and without reliance of a structural engineer or other professional’s expert report.
In response to that argument, the city emphasized that, by failing to appeal the governmental violations of public record against the property, the property owner conceded that the building structure was unsafe and unfit considering the nature of these governmental violations.
The city also posited via citations to numerous decisions rendered by the Commonwealth Court that a code enforcement official’s testimony can provide substantial evidence to support a demolition order and a structural engineer’s testimony is not required under the circumstances.
In the opinion penned by Judge Christine Fizzano Cannon, the Commonwealth Court first highlighted the steps required to uphold a demolition order—the proponent of demolition must first amass the evidence necessary to support that remedy and the trial court orders preliminary relief where necessary, and then only after the trial court reviews the evidence and finds it sufficient, it issues a separate demolition order.
Citing to King, the Commonwealth Court noted that the local government must support its findings with substantial evidence to justify a demolition order.
After performing a thorough review of the record to determine whether the trial court order was legally justified, the Commonwealth Court in A Kensington Joint concluded that trial court order of demolition was issued in error due to the lack of substantial evidence presented by the city in the petition and at the resulting hearing.
The Commonwealth Court in A Kensington Joint pointed out that the city relied upon Rybakowski’s testimony alone for its findings of structural instability of the building structure and that he even admitted at the hearing that a structural engineering analysis was necessary to understand the building’s structural condition.
Furthermore, the Commonwealth Court in A Kensington Joint acknowledged that the city did not offer Rybakowski as an expert witness despite references to his so-called expertise during the hearing.
In other words, the Commonwealth Court in A Kensington Joint determined that his conclusions about the condition of the building structure were conclusory and speculative.
The Commonwealth Court in A Kensington Joint also addressed the city’s argument that it did not perform an inspection of the interior of the building structure because of its dangerous conditions.
The Commonwealth Court explained that it could not lessen or excuse the city’s burden of proof for demolition and to find otherwise would empower the city to secure a demolition order for any property it viewed from the outside as structurally unsafe without substantial evidence.
The Commonwealth Court ultimately attacked the incongruency between the remedies prescribed by the trial court order.
Although the trial court in A Kensington Joint authorized the city to enter the property to inspect it, it also permitted the city to abate the governmental violations through demolition.
The Commonwealth Court in A Kensington Joint emphasized that the results of an inspection of the interior of the building structure was necessary to determine whether the governmental violations were abatable or whether demolition of the building structure was necessary, concluded that authorizing demolition of the building structure without first evaluating the results of an inspection of the interior of the building structure was erroneous.
—Dylan Beltrami, a third-year law student at the Drexel University Thomas R. Kline School of Law, who is interning at the firm, assisted in the preparation of this article.
Alan Nochumson is the principal of Nochumson P.C., a legal services firm with a focus on real estate, land use & zoning, litigation, and business counseling for the people of Pennsylvania and New Jersey. Alan is a frequent author and lecturer on issues commonly confronting businesses, individuals, and professionals. You can reach him at 215-600-2851 or firstname.lastname@example.org.