          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony M. Rufo and                    :
TR Getz, LP                            : No. 2735 C.D. 2015
                                       : Argued: October 18, 2016
                  v.                   :
                                       :
Board of License and Inspection        :
Review and City of Philadelphia        :
                                       :
Appeal of: The City of Philadelphia    :


BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge (P.)


OPINION
BY SENIOR JUDGE FRIEDMAN                           FILED: December 22, 2016

            The City of Philadelphia (City) appeals the September 29, 2015, order of
the Court of Common Pleas of Philadelphia County (trial court). The trial court
reversed the September 30, 2014, decision of the City’s Board of License and
Inspection Review (Board) that affirmed the Department of License and Inspection’s
(Department) issuance of a violation notice to Anthony M. Rufo. We affirm.


            Rufo is the owner of TR Gretz, LP, which owns the Gretz Brewing
Building (Property) located at 1524 Germantown Avenue in the City. (Board’s
Decision at 1.) On May 14, 2012, the Department conducted an investigation and
inspection of the Property. (Board’s Findings of Fact, No. 1.) As a result of the
Department’s investigation and inspection of the Property, the Department issued
Rufo a violation notice on May 15, 2012. (Id.) The violation notice stated that the
Property was vacant, lacked doors and windows with frames and glazing, and
constituted a “blighting influence” as defined by section PM-202 of the Philadelphia
Property Maintenance Code (Property Maintenance Code).1 (Id., No. 2(e); Violation
Not. at 3.) The violation notice further stated that 40 of the Property’s windows did
not comply with section PM-306.2 of the Property Maintenance Code, which both
parties refer to as the “Windows and Doors Ordinance.” (Board’s Findings of Fact,
No. 2(e); Violation Not. at 3.) The Windows/Doors Ordinance states:


               The owner of any vacant building shall keep the interior and
               exterior of the premises free of garbage and rubbish. The

      1
          Section PM-202 of the Property Maintenance Code defines “Blighting Influence” as:

             A vacant building that lacks windows with frames and glazing and/or lacks
      one or more doors in entryways of the building if:

                      1. the building is located on a block face where 80% or more
               buildings on the block face are occupied; or

                      2. the Department has provided 20 days notice to the owner of the
               property that the Commissioner of Licenses and Inspections has determined,
               in consultation with other City officials as appropriate, that the lack of
               windows and/or entry doors has a significant adverse influence on the
               community based on the following factors:

                              a. deterioration and/or safety of the property;

                              b. safety of the surrounding community;

                              c. the value of intact, occupied properties in
                              the surrounding vicinity of the property;

                              d. marketability of the property; and

                              e. community morale.



                                                  2
              owner of any vacant building shall keep all doors, windows
              and openings from the roof or other areas in good repair.
              Where such doors or windows or entrance to openings are
              readily accessible to trespassers, they shall be kept securely
              locked, fastened or otherwise secured. The owner shall take
              any other measures prescribed by the Department to prevent
              unauthorized entry to the premises by closing all openings
              with materials approved by the Department. A vacant
              building, which is not secured against entry, shall be
              deemed unsafe within the meaning of Section PM-307.0.
              The owner of a vacant building that is a blighting influence,
              as defined in this subcode, shall secure all spaces designed
              as windows with windows that have frames and glazing and
              all entryways with doors. Sealing such a property with
              boards or masonry or other materials that are not windows
              with frames and glazing or entry doors shall not constitute
              good repair or being locked, fastened or otherwise secured
              pursuant to this subsection.


(Emphases added).


              On June 8, 2012, Rufo appealed the violation notice to the Board. Rufo
argued that the Windows/Doors Ordinance is unconstitutional “because its purpose is
to compel a property to be aesthetically pleasing, rather than safe, which is not a
proper use of the municipalities’ [sic] police power.”2 (Rufo’s Appeal to Board at 2.)


              The Board held hearings on Rufo’s appeal of the violation notice on
May 13, 2014, and July 22, 2014. Rufo testified that he had installed windows in


       2
         Rufo also argued that: the Windows/Doors Ordinance is “not reasonably related to a
compelling government interest”; the Property was not a blighting influence under section PM-202;
and the Windows/Doors Ordinance is unconstitutional because it permits the Board to impose
excessive and punitive fines. (Rufo’s Appeal to Board at 2.)


                                               3
three of the Property’s window spaces. (N.T., 5/13/14, at 36-37.) However, Rufo
testified that the three windows were either broken or missing within two weeks of
their installation. (Id. at 37-38.) Rufo also testified that someone had sprayed graffiti
all over the exterior of the Property within that two-week period. (Id.)


             Rebecca Swanson, Policy and Communications Director for the
Department, testified on behalf of the City. Swanson testified that she is familiar
with the Windows/Doors Ordinance and that the City Council passed this provision in
2003 and began enforcing it in 2011 “with an eye towards reducing blight.” (Board’s
Findings of Fact, No. 12.) Swanson also testified 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.” (Id., No. 13.)


             On September 30, 2014, the Board affirmed the Department’s violation
notice. The Board found that, at all relevant times, the Property was vacant (id., No.
7), and lacked operable windows and doors. (Id., No. 19.) The Board found that the
Department has a process for determining whether a vacant property is a blighting
influence under section PM-202(2)(a)-(e) of the Property Maintenance Code and
followed that process in determining that the Property was a blighting influence.
(Board’s Findings of Fact, No. 18.) The Board also found that Rufo could install
windows and doors on the Property as required by the Windows/Doors Ordinance
and put masonry or wood behind the windows and doors if he was concerned about
people breaking into the Property. (Id., No. 17.) The Board credited Swanson’s
testimony and discredited all other testimony and evidence to the extent that it was


                                           4
inconsistent with the Board’s other findings of fact or conclusions of law. (Id., No.
20.)


              The Board concluded that the Property was a blighting influence and
was in violation of the Windows/Doors Ordinance’s requirement that blighting
influences have operable doors and windows. (Board’s Conclusions of Law, No. 3.)
The Board also concluded, without specifically referring to Rufo’s argument that the
Windows/Doors Ordinance has a purely aesthetic purpose, that Rufo’s constitutional
arguments were meritless. (Id., No. 5.)


              Rufo appealed3 to the trial court, which reversed the Board’s decision on
September 29, 2015, determining that the Windows/Doors Ordinance has “a purely
aesthetic goal.” (Trial Ct. Order, 9/29/15, at 4.) The trial court stated:


              The essential implementation of this ordinance in this case
              appears to be concerned more with aesthetics and the
              appearance of occupancy rather than blight, safety and
              security. Such a purely aesthetic goal has a minimal
              relationship to reducing blight (which is a complicated
              integration of economics, poverty, crime, aesthetics and
              social issues) requiring a cost to the property owner that is
              completely disproportionate to the benefit of a reduction in
              “blight” that may (although it may not) result.

(Id.) The trial court found that the “purely aesthetic nature” of the Windows/Doors
Ordinance was further demonstrated by the fact that Rufo could comply with the

       3
         Rufo did not preserve his argument that the Property is not a blighting influence under
section PM-202(2)(a)-(e) of the Property Maintenance Code.



                                               5
Windows/Doors Ordinance by securing window and door openings with masonry or
wood as long as he placed operating windows and doors in front of the openings.
(Id.)


               On October 23, 2015, the City filed a notice of appeal to this court.4 The
trial court filed a Pa. R.A.P. 1925(a) opinion recommending that this court quash the
City’s appeal because the City never sent a copy of the notice of appeal to the trial
court.5 In the alternative, the trial court submitted to this court the findings made in
its September 29, 2015, order.


               The City argues that the trial court erred in not enforcing the
Windows/Doors Ordinance because that provision is rationally related to promoting
the public health, safety, and welfare, and does not have a purely aesthetic purpose.
We disagree.


               A municipality’s exercise of the police power “involves the regulation of
property to promote the health, safety and general welfare of the people.” Balent v.
City of Wilkes-Barre, 669 A.2d 309, 314 (Pa. 1995). In determining the validity of a

        4
         “Where the court below took no additional evidence, our scope of review is limited to
determining whether constitutional rights were violated, errors of law have been committed or
findings of fact necessary to support the adjudication are not supported by substantial evidence.”
Clark v. Board of License and Inspections Review, 439 A.2d 1291, 1292 (Pa. Cmwlth. 1981).

        5
         Rufo does not argue that the City’s appeal should be quashed, and there is no evidence that
any party was prejudiced by the City’s alleged failure to file a notice of appeal with the trial court.
Under these circumstances, we decline to quash the City’s appeal. See Pa. R.A.P. 902 (“Failure of
an appellant to take any step other than the timely filing of a notice of appeal does not affect the
validity of the appeal, but it is subject to such action as the appellate court deems appropriate . . .
.”).


                                                  6
municipal regulation enacted pursuant to a municipality’s police power, courts must
apply the rational basis standard. Berwick Area Landlord Association v. Borough of
Berwick, 48 A.3d 524, 537 (Pa. Cmwlth. 2012). The regulation must “‘bear a real
and substantial relation to the object sought to be obtained.’” Id. (citation omitted).
“[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).


            Here, the Board credited Swanson’s testimony that “numerous studies”
have shown that securing properties deemed blighting influences with boards or
masonry rather than operable windows and doors “contribute[s] to blight within the
neighborhood, all sorts of problems.” (Board’s Findings of Fact, No. 13.) However,
Swanson’s testimony is conclusory because she failed to offer even a cursory
explanation for her assertion or specify which study supported her assertion. The
only study which appears in the record, Blight-Free Philadelphia, does not include a
finding that securing the window and door areas of blighted homes with boards or
masonry contributes to blight.


            The City also argues that the testimony from a 2002 City Council
hearing on the adoption of the Windows/Doors Ordinance establishes that the
purpose of the provision was to remedy the safety risk posed by blighted buildings.
However, this court may not consider this testimony because it is not included in the
original record. See Mack v. Zoning Hearing Board of Plainfield Township, 558
A.2d 616, 619 (Pa. Cmwlth. 1989) (“[A]n appellate court may only consider facts


                                          7
which have been duly certified in the record on appeal.”). Therefore, the credited
evidence of record does not establish a substantial relation between the
Windows/Doors Ordinance and the reduction of blight.


             Additionally, the Board found that Rufo could secure the Property’s
window and door spaces with masonry or wood “if [he] was concerned about people
getting into the [b]uilding” and still comply with the Windows/Doors Ordinance as
long as the masonry or wood was placed behind actual doors and windows with
frames and glazing. (Board’s Findings of Fact, No. 17.) This finding 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.


             Accordingly, we affirm.



                                       ___________________________________
                                       ROCHELLE S. FRIEDMAN, Senior Judge




                                            8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony M. Rufo and                    :
TR Getz, LP                            : No. 2735 C.D. 2015
                                       :
                  v.                   :
                                       :
Board of License and Inspection        :
Review and City of Philadelphia        :
                                       :
Appeal of: The City of Philadelphia    :


                                      ORDER


            AND NOW, this 22nd day of December, 2016, we hereby affirm the
September 29, 2015, order of the Court of Common Pleas of Philadelphia County.



                                       ___________________________________
                                       ROCHELLE S. FRIEDMAN, Senior Judge
