Nicholas Malfitano Aug. 25, 2015, 10:18am


HARRISBURG – A state appeals court has decided that a Gettysburg property owner did not have a big enough emergency and rescue opening for two of its apartments.

A decision from the Commonwealth Court of Pennsylvania on July 16 affirmed the Dec. 12, 2013, decision from the Adams County Court of Common Pleas, in connection with a dispute of the property maintenance code (PMC) in Gettysburg.

In line with the trial court, the Commonwealth Court determined appellant Four Score Property had violated Section 705.1 of Gettysburg’s property maintenance code ordinance, for not “having at least one operable emergency and rescue opening with a minimum net clear opening of 5.7 square feet directly onto a public street, public alley, yard, or court from a basement sleeping area.”

Judges Bonnie Brigance Leadbetter, Renée Cohn Jubelirer and Rochelle S. Friedman ruled on the case, with Friedman authoring the Court’s opinion to affirm the trial court’s judgment.

Four Score is the owner of property located at 48 Chambersburg Street in the Borough of Gettysburg, which it purchased in November 2005.

The building contains 15 apartments, all of which were licensed for occupancy by the Borough when Four Score purchased the property and have been continuously licensed since. Two of the apartments, numbers 21 and 22, are located in the basement of the building and are the subject of the litigation. 

“The two apartments are similar in layout, each having only one door that leads from the living area into an interior hallway that abuts the west side of the building. Normal ingress and egress from the apartments is south through the interior hallway, through a laundry area, and up a set of stairs to the rear entrance of the building,” Friedman said, adding that an alternate egress route on the property does not provide a secondary means of ingress to the basement apartments.

On Nov. 19, 2012, William Mellors, the appointed code enforcement officer for the Borough, inspected the property. Mellors cited Four Score for violating the aforementioned section 705.1 of the Borough’s property maintenance code ordinance.

On Nov. 28, 2012, Four Score appealed the citation to the Borough’s Code Enforcement Appeals Board. On Jan. 16, 2013, the Board conducted a hearing during which Four Score representative James D. Walsh proposed the installation of new doors from each bedroom that would open directly into the interior hallway, eliminating the tenant’s need to go through the living area to exit the apartment, panic hardware, and other upgrades to improve egress and safety. Walsh added because of existing water, sewer and gas lines on the property, that proposal was the best option.

On Feb. 12, 2013, the Board upheld Four Score’s violation of section 705.1 of the PMC. Though Four Score appealed to the trial court on March 14, 2013, the trial court denied Four Score’s appeal on Dec. 12, 2013, without a hearing or further evidence. On Jan. 13, 2014, Four Score appealed to the Commonwealth Court.

“Four Score argues that the Borough is attempting to circumvent the Pennsylvania Construction Code Act by labeling a retroactive local construction code as a property maintenance code. Four Score maintains that the Borough is using section 705.1 of the PMC to require Four Score to make structural changes to its building or lose the use of its two basement apartments,” Friedman said.

“We agree with Four Score that the regulations under the Act provide that legal occupancy existing on April 9, 2004, is permitted to continue ‘except where the Uniform Construction Code provides otherwise.’ However, specific exceptions to this rule include “inadequate means of egress…fire hazard or other dangers to human life or the public welfare,” Friedman added. 

“Here, the regulation objected to by Four Score addresses fire and safety issues by requiring adequate egress. As such, the PMC is properly enforced by the Borough and does not contravene the Act.”

Four Score argued the Board erred by denying it a de minimis waiver, but the Commonwealth Court disagreed and ruled Four Score had failed to meet the burdens of proof necessary to obtain one, namely showing only a minor deviation from the ordinance and rigid compliance with the ordinance not being necessary to protect the public; as direct methods of egress and emergency exits were not included in their proposed plan.

Lastly, Four Score contended the Borough violated the Fifth Amendment to the U.S. Constitution and Article I, Section 10 of the Pennsylvania Constitution, by taking their private property without just compensation. Friedman explained Four Score failed to produce evidence the borough deprived it of the use of its property, and affirmed the trial court ruling.

“Here, the borough’s actions did not amount to an unconstitutional taking of Four Score’s property. Four Score failed to present any evidence to the Board that the PMC prevents it from using the remaining 13 apartments, or that it is unable to use apartments 21 and 22 for any other lawful purpose,” Friedman said. “Therefore, because Four Score failed to show that the regulation substantially deprives it of the use of its property, the Board did not err. Accordingly, we affirm.”

The appellant is represented by Michael D. Rentschler, in Harrisburg. 

The appellee is represented by John S. Phillips of Phillips & Phillips, plus Richard E. Thrasher of Puhl, Eastman & Thrasher, both in Gettysburg.

The Commonwealth Court of Pennsylvania case 69 C.D. 2014

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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