IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

v. :

: Charles E. Eckenrode, : No. 673 C.D. 2015

Appellant : Argued: November 16, 2015

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY FILED: January 29, 2016

Charles E. Eckenrode (Eckenrode) appeals from an April 7, 2015

,

order ( Order ) of the Court of Common Pl eas of Allegheny County ( Trial Court )

which adjudicated Eckenrode guilty an d assessed fines against Eckenrode totaling

$15,000 plus costs. 1

FACTS

Eckenrode owns a home at 343 Lawn Street in the Oakland section of

the City of Pittsburgh, which he leases to tenants. This dwelling is the subject of

the curr ent controversy. The dwelling wa s zoned as a single family residence.

Hearing Transcript, (N.T.) November 18, 2014

, at 92, 106

- 107; see also Opinion at

2, Reproduced Record (R.R.) at 220a. A certificate of occupancy wa s not required

if a dwelling is used as a single family residence. Under Title 9, Section 926.7 2 of

1 After a timely appeal by Eckenrode to this Court, the Trial Court issued its June 24, 2015 opinion (Opinion) in support of its Order. That Opinion affirmed the decision of the Magisterial District Judge (MDJ) which found Eckenrode guilty of viol a tions of the Zoning Code of the City of Pittsburgh ( Zoning Code ) and the Building Code of the City of Pittsburgh (Building Code)

.2

the Zoning Code (Section 926) , a family wa s defined as “[a] group of not more

than three (3) persons who need not be related by blood or marriage or adoption.”

(Emphasis added.) Zoning Code, Title 9, Section 926.7 2 , R.R. at 302a

. When the

use of the dwellin g c hanges, the Zoning Code required the owner of the dwelling

to fil e an application for a certificate of occupancy. See Zoning Code, Title 9,

Sections 922.02.A(2), 922.02.D(2) , R.R. 304a

. 2 It was undisputed that s ix (6)

unrelated persons resided in Eckenrode’s dwelling. N.T. at 18

- 19, 27.

Subsequently, the City of Pittsburgh notified Eckenrode that there was

a changed

- use to the dwelling in issue and directed Eckenrode to apply for a

certificate of occupancy because of that change in use. Private Criminal

Complaint, Commonwealth of Pennsylvania, Allegheny County, C ommonwealth

v. Charles E. Eckenrode (Private Criminal Complaint); see also R.R. at 299a

- 300a.

Eckenrode failed to comply and was charged . A h earing was held on November

18, 2014, and thereafter Eckenrode was found guilty by the Trial Court on April 7,

20 15. April 7, 2015 Order. See also , R.R. at 2a. This appeal followed. 3

2 Title 9, Section 922.02.A(2) of the Zoning Code states in pertinent part that “[a] Certificate of Occupancy shall be required for the lawful use or occupancy of all land, structures or premises, or parts thereof, in all of the following circumstances ...[such as] ... [a] new or changed use of land or new or changed use of structure." Zoning Code, Title 9, Section 922.02.A(2). Title 9, Section 922.02

. D(2) of the Zoning Code states in pertinent part that “[a]n applica tion for a Certificate of Occupancy shall be submitted ... [at] the time of a change in use

of land or structure." Zoning Code, Title 9, Section 922.02.D(2).

3 This Court’s scope of review of the trial court's determination on appeal from a

summary conviction is limited to whether there has been an error of law or whether competent evidence supports the trial court's findings. Commonwealth v. Hall , 692 A.2d 283 (Pa. Cmwlth. 1997); s ee also Commonwealth v. Nicely , 988 A.2d 799 (Pa. Cmwlth 2010 ) . Whe n the constitutionality of a zoning ordinance is challenged, there is a presumption that the ordinance is valid and the party challenging its validity has a heavy burden to prove that it is unconstitutional. Farley v. Zoni ng Hearing Board of Lower Merion Township , 636 A.2d 1232 , 1236 (Pa. Cmwlth. 1994).3 ISSUES

On appeal to this Court, Eckenrode argues that : the Trial Court erred

in convicting Eckenrode of violating Tit le 9 , Section 922.02 , of the Zoning Code

because there wa s no requirem e nt under the Zoning Code to apply for an

occupancy permit for a single family dwelling in the City of Pittsburgh ; Eckenrode

was convicted under a non

- existent section of the Zoning Code ; 4 and that

Eckenrode’ s conviction ( of a violation of Section 926 ) violated the equal

protection and due process provisions of the Fourteenth Amen dment of the United

States Cons titution (14 th Amendment) as being clearly arbitrary and unreasonable

and having no substantial relation to the public health, safety, morals or general

welfare

.

It is well

- established that zoning legislation is economic and social

legislation. See Village of Belle Terre v. Boraas , 416 U.S. 1 (1974). An ordinance

is valid if it promotes public health, safety, or welfare and its provisions are

rationally

- related to the purpose it is to serve. 5 Layne v. Zoning Board of

4 The non

- existent Zoning Code section cited in the current controversy is ostensibly Title 10, Section 111.1 of the Zoning Code.

5 Equal protection challenges are reviewed by the United States Supreme Court under strict scrutiny, intermediate scrutiny and a rational basis scrutiny. See e.g.
, Rogin v. Bensalem Township , 616 F. 2d 680 (3rd Cir., 1980). Under a strict scrutiny challenge, the test is whether the challenged classification is necessary to accomplish a compelling state interest and is reserved for discriminations based on race, national origin, alienage, and for classifications made on account of the exercise of a constitutional right by one of the two classes. Rogin v. Bensalem Township , 616 F.2d at 687 n. 29. Under an intermediate scrutiny, the test is whether the discrimination substantially

furthers the achievement of an important governmental objective. The application of an intermediate scrutiny has thus far only been applied to classifications based on gender or illegitimacy. Rogin v. Bensalem Township , 616 F.2d at 687 n. 29. However, under a rationa l basis scrutiny, the United States Supreme Court has accorded great deference to the legislative decision to establish the challenged classification when it affects business or other economic activity. See Vance v. Bradley , 440 U.S. 93 (1979). In (Footnote continued on next page...)4

Adjustment of Pittsburgh , 460 A.2d 1088 (Pa. 1983); see Muscarella v.

Commonwealth , 87 A .3 d 966, 973 (Pa. Cmwlth. 2014) . T he lack of any rational

relationship to a legitimate governmental purpose must be obvious, Layne , 460

A.2d at 1088

, and if validity of the zoning ordinance provision is debatable, the

zoning provision must be upheld. Lynch Community Homes, Inc. Appeal , 55 4

A.2d 155 (Pa.Cmwlth. 1989).

The issues of whether Eckenrode failed to apply for an occupancy

permit for a single f

amily dwelling in Pittsburgh; whether Eckenrode was

convicted under a non

- existent section of the Zoning Code ; and whether

Eckenrode’s con viction under Section 926 violated the equal protection and due

process provisions of the 14 th Amendment as being clearly arbitrary and

unreasonable and having no substantial relation to the public health, safety, morals

or general welfare were raised and argued before the Trial Court and ably disposed

of in the comprehensive and well

- reasoned opinion of the Honorable Robert C.

Gallo, S.J. of the Court of Common Pleas of Allegheny County.

(continued...)

Vance

, the Court held that “we will not overturn such a statute [affecting an economic activity] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude th at the legislature’s actions

were irrational.” Vance v. Bradley , 44 U.S. at 97. In recent years, the United States Supreme Court has rejected a supervisory role in due process as applicable to zoning laws and now applies “virtually the same standard” of review under the due process clause as it does in equal protection cases involving economic

classifications. Rogin v. Bensalem Township , 616 F.2d at 689 (citations omitted). “[T]he law need not be in every respect logically consistent with its aims to b e constitutional. It is enough that there is an evil at hand for correction and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical Co. , 348 U.S. 483, 487

- 88 (1955).5 Therefore, this Court shall affirm the Trial Court ’s Order of April 2 7,

2015 based upon Senior Judge Gallo’s June 24, 2015

, Opinion in support of his

April 2 7, 2015 Order

. Commonwealth of Pennsylvania v. Charles E. Eckenrode

,

Criminal Division No. CL/SA 2060

- 14, filed June 24, 2015.

______________________ ______ BERNARD L. McGINLEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

v. :

: Charles E. Eckenrode, : No. 673 C.D. 2015

Appellant :

O R D E R

AND NOW, this 29 th day of January , 20 1 6

, the Order of the Court of

Common Pleas of Allegheny County in the above

- captioned matter is affirmed.

____________________________ BERNARD L. McGINLEY, Judge