Gettysburg Borough’s retroactive application of a construction code amendment as it applied to the emergency escape access of a property owner’s rental apartments was recently challenged in Commonwealth Court. In its July 16, 2015 opinion the Court affirmed an order of the Adams County Court of Common Pleas, denying Four Square Property, LLC’s (Four Square) appeal from a decision of the Code Enforcement Appeals Board (Board) of Gettysburg Borough, which found Four Square violated the borough’s Property Maintenance Code by failing to have adequate egress for two basement apartments it rented to tenants. The Board upheld Four Square’s violation of the Borough’s Property Maintenance Code Ordinance (PMC), for violating section 705.1 of the PMC, which sets forth emergency escape and rescue requirements for basement sleeping areas
On appeal, the Commonwealth Court considered: (1) whether the Borough violated Section 104 of the Pennsylvania Construction Code Act by retroactively applying the PMC; (2) if the Board erred in denying Four Square a de minimis waiver to provide alternate exit routes from the basement sleeping rooms; and (3) whether the Board’s decision in denying Four Square’s use of the two basement apartments constituted a taking, as per the Fifth Amendment of the U.S. Constitution and Article I, Section 10 of the Pennsylvania Constitution.
The Court found that the PMC was properly enforced because it addressed fire and safety issues by requiring adequate egress. The Court specifically acknowledged that retroactive application of municipal ordinances is permissible where fire and safety issues are involved. The Court also found that the Board did not err in denying Four Square a de minimis waiver. A de minimis waiver requires an applicant to prove (1) it is seeking only a minor deviation from an ordinance; and (2) rigid compliance with the ordinance is not necessary to protect the public. The Court found that Four Square’s proposed alternate exit design significantly deviated from the PMC requirements and an emergency exit was required to protect public safety. Finally, the Court held that the Board’s decision did not amount to an unconstitutional taking as Four Square failed to show that the Board’s decision prevented it from using the basement space for any other lawful purpose.