NIX, Chief Justice.
On July 10, 1991, this Court found that the Philadelphia Historic Preservation Ordinance "which authorize[d] the historic designation of private property . . . without the consent
The City of Philadelphia filed a petition pursuant to Rule 2543 of the Pennsylvania Rules of Appellate Procedure requesting this Court to hear reargument and reconsider our July 10, 1991 ruling that the designation of a building as historic is a "taking" under our Constitution and requires "just compensation." We granted reargument on August 23, 1991, and on October 23, 1991, the parties reargued the sole issue of whether the designation of a building as historic is a "taking" under our Constitution, requiring just compensation. United Artists requests that we reaffirm our July 10, 1991 decision, and hold that a designation as historic is a taking which requires just compensation. The City of Philadelphia and the Philadelphia Historical Commission ("Commission") argue that the rights afforded by the takings provision in our Constitution mirror those of the United States Constitution; moreover, our Environmental Rights Amendment empowers the state and local governments to protect the historic resources of our Commonwealth. For the reasons that follow, we hold that under the Constitution of Pennsylvania, the designation of a building as historic without the consent of the owner is not a "taking" that requires just compensation; however, because the Commission acted outside of its statutory authority, we vacate the Commission's designation of the Boyd Theater as historic.
A. UNITED STATES CONSTITUTION
Before we turn to the Commission's actions in this case, we must first examine the constitutionality of historic designation. The United States Supreme Court has ruled that the Fifth and Fourteenth Amendments to the United States Constitution do not prohibit a state or municipality from designating a building as "historic" and placing restrictions on the owner's use of the building. In Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), the Supreme Court examined a claim that the New York City Landmarks Preservation Law constituted a "taking" under the Fifth and Fourteenth Amendments of the United States Constitution. The Appellants presented "a series of arguments, which, while tailored to the facts of [that] case, essentially urge[d] that any substantial restriction imposed pursuant to a landmark law must be accompanied by just compensation if it is to be constitutional." Id. at 128-29, 98 S.Ct. at 2661-62, 57 L.Ed.2d at 651. The Supreme Court rejected these arguments, and upheld the New York City Landmark Preservation Law. The Court found that there was no taking, that the restrictions imposed were substantially related to the general welfare, and that the regulation permitted a reasonable beneficial use of the landmark site. Id. at 138, 98 S.Ct. at 2666, 57 L.Ed.2d at 657.
The issue which confronted the United States Supreme Court mirrors the question before us today: "whether the designation of a property as historic without consent of the property owner constitutes a taking" pursuant to Article I, Section 10 of the Pennsylvania Constitution. Likewise, we are examining many of the same arguments which were raised by the Penn Central Transportation Company. It is without question that this issue, if framed as an examination under the federal Constitution, is answered by the decision of the United States Supreme Court in Penn Central. Here the parties urge that we examine the rights afforded to property owners under the Constitution of this Commonwealth, to determine if
B. PENNSYLVANIA CONSTITUTION
This Court has recognized that our Constitution can provide greater rights and protection to the citizens of this Commonwealth than are provided under similar provisions of the federal Constitution. We have stated:
Commonwealth v. Edmunds, 526 Pa. 374, 388, 586 A.2d 887, 894 (1991) (quoting Commonwealth v. Sell, 504 Pa. 46, 63, 470 A.2d 457, 466 (1983)). In Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), this Court examined the state and federal Constitutions in an appeal which challenged the acceptance of a "good faith" exception to the exclusionary rule. In Edmunds, we held that the Pennsylvania Constitution did not incorporate a good faith exception to the exclusionary rule for the violation of the constitutional requirement that search warrants accompany any search or seizure. Mr. Justice Cappy, writing for the majority of the Court, established the following four-part framework for analyzing our state Constitution:
Edmunds, 526 Pa. at 390-91, 586 A.2d at 895. Therefore, in accordance with Edmunds, we will undertake this four-part analysis.
The first element to be examined is the text of the Pennsylvania Constitution. It protects the citizens of Pennsylvania from deprivations of property or takings for public use in the following provision:
Pa. Const. art. I, § 10.
Similarly, the federal Constitution protects all citizens of the United States from deprivation of their property:
U.S. Const. amend. V.
Both provisions contain two elements. The first element is that no property may be taken without due process of law or authority of law; the second element requires that just compensation accompany any taking for public use. Therefore, the texts of both constitutional provisions are almost identical for our purposes.
B. THE HISTORY OF THE PROVISION
The second element of the Edmunds analysis is an examination of the history of the provision, including Pennsylvania case law.
Section 10 of Article I has its origins in Clause VIII of the Declaration of Rights in the 1776 Pennsylvania Constitution. This original clause allowed the owner's legal representative,
An examination of our case law reveals that this Court has continually turned to federal precedent for guidance in its "taking" jurisprudence, and indeed has adopted the analysis used by the federal courts. In Best v. Zoning Board of Adjustment, 393 Pa. 106, 141 A.2d 606 (1958), this Court was faced with a challenge to the determination of the Zoning Board of the City of Pittsburgh that the proposed use of a property as a multiple unit dwelling was adverse to the public health, safety and morals of the community. In Best, we explicitly relied upon federal precedent for two propositions. First, in examining the police powers of a state under Section 1 of Article I, we explicitly adopted the following test enunciated by Mr. Justice Harlan in Chicago, Burlington and Quincy Railway Co. v. Illinois, 200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596 (1906): "We hold that the police power of a state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety." Id. 393 Pa. at 114, 141 A.2d at 611 (emphasis added). Second, in response to the arguments that the denial of the most profitable use of the owner's property was an unconstitutional taking, this Court flatly rejected that proposition, citing the opinion of Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915). Best, 393 Pa. at 119, 141 A.2d at 613 ("Appellant's evidence on this issue amounts to no more than that she is prevented by the ordinance from putting her property to its most profitable use. This is not a constitutional objection.").
Five years later, in Andress v. Zoning Board of Adjustment of the City of Philadelphia, we articulated four observations regarding limitations of governmental power:
Andress, 410 Pa. 77, 83-84, 188 A.2d 709, 712-13 (1963) (citations omitted). This Court fashioned these limitations from United States Supreme Court precedents in addition to our own jurisprudence. Analyzing the Zoning Board ruling at issue with regard to the limitations on governmental power discussed above, we explicitly relied on United States v. Central Eureka Mining Company, 357 U.S. 155, 168, 78 S.Ct. 1097, 1104, 2 L.Ed.2d 1228, 1236 (1958) for the following analysis:
Andress, 410 Pa. at 89, 188 A.2d at 715 (quoting United States v. Central Eureka Mining Co., supra). This rationale formed the basis of our holding that the lower court must reevaluate the granting of a variance for the construction of an apartment building in an "A" Residential Zone.
Our reliance upon federal precedent continued in Commonwealth v. Barnes and Tucker Co., 455 Pa. 392, 319 A.2d 871 (1974), where we adopted the following "classic rule" of the United States Supreme Court to determine whether state action constitutes a valid exercise of the police power or a "taking" requiring "just compensation":
Id. at 418, 319 A.2d at 895 (1974) (quoting Lawton v. Steele, 152 U.S. 133, 137, 14 S.Ct. 499, 501, 38 L.Ed. 385 (1894)). We affirmed the test when these parties returned to the Court in Commonwealth v. Barnes and Tucker Co. (Barnes II), 472 Pa. 115, 123, 371 A.2d 461, 465 (1977) to challenge a Commonwealth Court Order that the owners of a mine operate a facility to treat 7.2 million gallons of untreated acid mine water, 6 million gallons of which was from sources not owned by the Appellant company. We restated the classic rule of Lawton v. Steele to examine the parties "taking" claim. Armed with this test, and having recognized the state's interest in protecting the Commonwealth from additional discharge of polluted water into the waters of the Commonwealth, we held that the Appellant failed to meet its burden of proving
Following the evolution of the Lawton v. Steele test in federal law, this Court refined its taking analysis to include a two-part analysis of the "unduly oppressive" element of the test. In National Wood Preservers, Inc. v. Commonwealth of Pennsylvania Dep't. of Envtl. Resources, 489 Pa. 221, 414 A.2d 37, appeal dismissed, National Wood Preservers, Inc. v. Pennsylvania Dep't. of Envtl. Resources, 449 U.S. 803, 101 S.Ct. 47, 66 L.Ed.2d 7 (1980), this Court upheld Section 316 of the Clear Streams Law, 35 P.S. § 691.316, as a constitutional exercise of the Legislature's police power and we held that Section 316 regulated water pollution resulting from conditions other than mine drainage. Id. at 225, 414 A.2d at 39. The Appellant in Wood Preservers focused his challenge on the requirement that the regulation not be "unduly oppressive upon individuals," the third element of the test enunciated by the United States Supreme Court in Lawton v. Steele and adopted by our Court in both Barnes and Tucker cases. In response to that challenge, a majority of this Court adopted the following two-part test for determining "unduly oppressive" regulations as enunciated in Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978):
Wood Preservers, 489 Pa. at 236-37, 414 A.2d at 45 (citations omitted). We dismissed the Appellant's claim that Appellant bore no responsibility for the condition of their land and
Our most recent examination of a taking claim occurred in 1991 where a majority of this Court struck down as unconstitutional an amortization provision in a zoning ordinance which placed a ninety-day expiration period on all nonconforming uses. PA Northwestern Distributors, Inc. v. Zoning Board of the Township of Moon, 526 Pa. 186, 584 A.2d 1372 (1991). In PA Northwestern, the majority of this Court did not turn to federal precedent for guidance,
Thus, from the above case law, we glean the following three conditions for determining that state or governmental action does not constitute a taking requiring just compensation:
The first consideration is specifically analyzed in subsection D, "Policy Considerations," infra at pp. 619-620. As discussed infra, the citizens of Pennsylvania empowered the Commonwealth to act in areas of purely historic concern reflecting a general public interest in preserving historic landmarks which requires this type of legislation.
Penn Central, 438 U.S. at 109 n. 6, 98 S.Ct. at 2652 n. 6, 57 L.Ed.2d at 639 n. 6. There is no other practical means to accomplish the public interest in preserving historic landmarks. Therefore, historic designation is essential to preserve historic landmarks.
Finally, under our last consideration, the unduly oppressive test, we review the economic impact of the regulation and the degree of physical intrusion by the government. Neither side presents specific evidence on the issue of the economic impact of the historic designation; we do note that we have upheld as constitutional regulations that prevent the most profitable use of property. Here, the regulations at issue could arguably deprive the owner of the most profitable use of his property, but this Court does not see the possibility that the owner is wholly deprived of any profitable use.
C. RELATED CASE LAW
The third factor requires an analysis of related case law from other jurisdictions. Appellees and several Amici stress that no other state has held that historic designation is a taking under its constitution, and our research confirms that point. Appellant concedes the point as well, but argues that this should not be dispositive of the issue.
The fact that no other state has broken with the Penn Central decision is not dispositive of the matter, but it is persuasive. In Edmunds, when we rejected the United States Supreme Court's recognition of a good faith exception to the exclusionary rule, we noted that the highest courts of four states had rejected the good faith exception. New York had rejected it in 1985, one year after the Supreme Court recognized it. By 1990, at least seven other state appellate courts had eschewed the good faith exception in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
Conversely, in fifteen years since Penn Central, no other state has rejected the notion that no taking occurs when a state designates a building as historic. The decade and a half in which the Penn Central decision has enjoyed widespread acceptance weighs against our rejecting the Penn Central analysis.
D. POLICY CONSIDERATIONS
The last prong of the Edmunds test is an examination of policy considerations, including unique issues of state and local concern, and their applicability within modern Pennsylvania jurisprudence. The first issue for us to examine is the issue of unique state concern.
I. STATE POLICY
Appellant and Appellees argue that two separate sections of Article I of our Constitution ("Declaration of Rights") have
Appellant, United Artists, argues that Section 1 of Article I
This is contrary to our case law which views the scope of Section 1 of Article I in relation to its federal counterparts, the Fifth and Fourteenth Amendments. In Best v. Zoning Board of Adjustment, 393 Pa. 106, 110-11, 141 A.2d 606, 609 (1958) we stated:
(emphasis added) (footnotes omitted). Therefore, Section 1 of Article I is not a source of additional rights for property owners in Pennsylvania.
In 1971, the citizens of Pennsylvania adopted the Environmental Rights Amendment which recognized the "right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment." Pa. Const. art. 1, § 27. Using this provision of the Constitution, a group of citizens sought to block the construction of a battle tower at the site of the Battle of Gettysburg. See Commonwealth v. Nat'l Gettysburg Battle Tower, Inc., 454 Pa. 193, 311 A.2d 588 (1973). In Gettysburg, a majority of this Court agreed that the Environmental Rights Amendment authorized the Commonwealth to act in matters of purely historic concerns. See id. at 201-02, 311 A.2d at 592, (O'Brien, J.) ("up until now, aesthetic or historical considerations, by themselves, have not been considered sufficient to constitute a basis for the Commonwealth's exercise of its police power"); id. at 207, 311 A.2d at 595, (Roberts, J., concurring) ("[p]arklands and historical sites, as `natural resources' are subject to the same considerations"). Ultimately a plurality of the Court held that the Environmental Rights Amendment was not self-executing, and legislative action was necessary to accomplish the goals of that Amendment. Id. at 202, 311 A.2d at 592. Thus, this legislative action, the Philadelphia Historic Preservation Ordinance, is consistent with our state policy to preserve historic or aesthetic resources.
II. LOCAL POLICY
The City of Philadelphia has declared the following local policy regarding the preservation of historic resources:
Philadelphia Code § 14-2007(1)(a). This policy is consistent with the Environmental Rights Amendment and is consistent with our findings in Gettysburg Battle Tower, 454 Pa. 193, 311 A.2d 588 (1973). Therefore, similar to the state policy, the local policy issue also weighs against our finding that historic designation is a taking.
Analysis of our case law and related case law from other jurisdictions, the texts of the constitutional provisions and policy concerns of this Commonwealth compels us to conclude that the designation of a privately owned building as historic without the consent of the owner is not a taking under the Constitution of this Commonwealth.
Even though the Historic Ordinance is not a taking under our Constitution, we must address the Appellant's other original claims: that the Commission exceeded its statutory
The Historical Commission notified the owners of the Boyd Theater that it had determined that both the interior and exterior of the theater was historically and architecturally significant in the following notice:
Our review of the Philadelphia Historic Commission's determination is limited to whether
The original owner, Sameric Corporation, challenged the Commission's designation of the interior of the Boyd Theater. The Commonwealth Court rejected the owner's argument, and held that the intent of the ordinance was to encompass the interior as well as the exterior of historic landmarks:
The Commonwealth Court is incorrect. The Historical Commission is not explicitly authorized by statute to designate the interior of the building as historically or aesthetically significant. "[T]he power and authority to be exercised by administrative commissions must be conferred by legislative language clear and unmistakable. A doubtful power does not exist." Pennsylvania Human Relations Comm'n. v. St. Joe Minerals Corp., 476 Pa. 302, 310, 382 A.2d 731, 735-36 (1978) (quoting Green v. Milk Control Comm'n., 340 Pa. 1, 3, 16 A.2d 9 (1940)). The only reference to the interior of the building is in Section 14-2007(8)(c) which places the following duty of care on the owner of a historically designated structure:
(emphasis added). The plain meaning of this ordinance is that the interior must be maintained physically (and not aesthetically) for the express purpose of supporting the exterior of the building. However, the Commission exceeded that authority by designating the interior of the Boyd Theater. There is no
Having determined that the Commission made an error of law, we must apply the appropriate remedy. It would not be possible for us to vacate only the portion of the Order which designates the interior. We do not have before us any evidence regarding what interior portions support the exterior, nor can we separate the rationale and evidence which referred only to the exterior of the Boyd Theater from that of the interior in order to review its sufficiency. Thus, we are constrained to vacate the entire order of the Commission.
Accordingly, the Order of the Commonwealth Court is reversed, and the Order of the Commission is vacated.
LARSEN and McDERMOTT, JJ., did not participate in the decision of this case.
PAPADAKOS, J., files a concurring opinion.
PAPADAKOS, Justice, concurring.
Although I remain firmly committed to the proposition that the effects of an historic designation of private property without the consent of the owner constitute a "taking" and requires just compensation under our Constitutions, both federal and state, yet, nevertheless, I can join with the majority in reversing the Order of the Commonwealth Court and in vacating the Order of the Commission. I read the Majority Opinion as limiting the issue to "the sole issue of whether the designation of a building as historic is a "taking" under our Constitution, requiring just compensation." (Opinion, p. 614).
Moreover, we note that the Philadelphia Ordinance in question provides a vehicle for relief when the designation would cause a substantial hardship. The Ordinance provides relief for a party who asserts that he is deprived of "any purpose for which it is or may be reasonably adapted, or where a permit application for alteration or demolition is based, in whole or in part, on financial hardship...." Philadelphia Code § 14-2007(7)(f).
Pa. Const. art. I, § 1.
Pa. Const. art. 1, § 27 (adopted May 18, 1971).
An appellate court may affirm, modify, vacate, set aside or reverse any order brought before it for review, and may remand the matter and direct the entry of such appropriate order, or require such further proceedings to be had as may be just under the circumstances.