Whether Anti-Blighting Ordinance is Unenforceable Because Grounded Solely on Aesthetics; Burden of Proof in Zoning Ordinance Challenge
Rufo v. City of Phila., 152 A.3d 400 (Pa. Cmwlth. 2016), appeal docket 22 EAP 2017
The City of Philadelphia’s “Windows/Doors Ordinance” requires that the owner of a vacant building that is a “blighting influence” must secure the building’s window openings with windows that are glazed and framed, and must secure all door openings with doors. Rufo, owner of a vacant building who had boarded up the windows and doors, was cited for failing to use actual windows and doors to seal off the openings. He challenged the ordinance before the City’s Board of License and Inspection Review, arguing that the ordinance is based solely on aesthetic considerations and therefore unconstitutional. The Board denied the appeal. On appeal the trial court reversed. Commonwealth Court affirmed the trial court’s refusal to enforce the ordinance, agreeing that the ordinance was based solely on aesthetic considerations: ‘“[I]t is axiomatic that any exercise of the police power . . . may not be grounded solely on considerations of aesthetics.” Redevelopment Authority of the City of Oil City v. Woodring, 430 A.2d 1243, 1246 (Pa. Cmwlth. 1981) (en banc) (emphasis added), aff’d, 445 A.2d 724 (Pa. 1982).” Slip op. at 7.
Before the Board, Rufo testified that he had installed three actual windows in the building but they had been removed or destroyed within two weeks. Testimony also showed that the City permitted the placement of wood or masonry barriers in the openings, as long as they were installed behind compliant windows and doors. The City’s Policy and Communications director testified and defended the ordinance, stating that it was designed to reduce blight, and that “[i]t has been determined, through numerous studies, that properties with boarded windows and doors without the actual operable window and door contribute to blight within the neighborhood, all sorts of problems.” Slip op. at 7.
Commonwealth Court joined the trial court in refusing to credit the City’s testimony that “numerous studies” had shown that securing properties deemed blighting influences with boards or masonry rather than operable windows and doors contributes to blight within the neighborhood and other problems, calling it “conclusory.” The Court pointed out that the only study in the record concerning blight did not include a finding that securing the window and door areas of blighted homes with boards or masonry contributes to blight. The Court also was persuaded by the fact that the City permitted the use of wood or masonry behind compliant windows and doors:
[This] demonstrates that the Windows/Doors Ordinance is concerned only with the aesthetic appearance of vacant buildings rather than the safety risks posed by blight. The City may consider aesthetics in using its police power, but it may not exercise its police power based on aesthetics alone. Therefore, the trial court did not err in concluding that the Windows/Doors Ordinance is based purely on aesthetic considerations and, thus, is an impermissible use of the police power.
Slip op. at 8.
The Supreme Court granted allocatur on the following questions as framed by the City:
(1) Did the Commonwealth Court rewrite decades of caselaw in expressly placing the burden on the municipality to produce evidence of the rational basis for a land use Ordinance, rather than placing the burden of proof where it belongs, on the party challenging the Ordinance?
(2) Did the Commonwealth Court, in invalidating an anti-blight, property maintenance Ordinance on the ground that aesthetics cannot form the basis for land use legislation, improperly undermine the ability of municipal government to combat urban blight and improperly substitute its own views for those of the legislature as to the efficacy of municipal legislation?
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