LAND USE AND PLANNING

Uniform Construction Code • Exceptions

Howell v. City of Erie, PICS Case No. 14-0426 (Pa. Commw. March 12, 2014) Leadbetter, J. (8 pages).

Uniform Construction Code did not apply to homeowner’s property built in 1926 and unchanged since that date, and city failed to prove that height of staircase presented danger to the general safety and welfare of the occupants and the public. Reversed.

After appellant, who owned a 1926 two-family residential home in Erie, Pennsylvania, applied for residential rental registration with the city under its landlord and rental ordinance, his home was inspected pursuant to city’s residential rental licensing program. Inspector issued appellant a notice of violation for fire and safety, means of egress, in relation to the height of a staircase. Appellant appealed to the License Appeals Board arguing that the UCC did not apply to his property. He also applied for a variance. Board denied the appeal.

The Court of Common Pleas affirmed, noting that, although city’s ordinance did not contain any building specifications that must be met for compliance, it incorporated provisions of other codes that did set forth specific requirements. Since the ordinance defined “residential property” as “a property used or intended to be used for residential purposes,” the court concluded that city intended the ordinance to apply to rental property that existed at the time of its 2006 enactment and into the future. Accordingly, the court concluded that the provisions of the other codes, such as the UCC which limited its application to actions occurring on or after July 8, 2004, were not dispositive. The Commonwealth Court reversed.

The UCC’s scope provision provides that it “applies to the construction, alteration, repair, movement, equipment, removal, demolition, location, maintenance, occupancy or change of occupancy of every building or structure which occurs on or after July 8, 2004, and all existing structures that are not legally occupied.” City did not dispute appellant’s testimony that he did not undertake any construction or alteration since July 8, 2004, or that, since appellant’s purchase of the property in 1987, he never applied for a building permit or did any work on his property. In addition, there was no evidence that appellant’s property underwent a “change of occupancy” or was not “legally occupied,” as those terms are defined in the UCC.

Under the Residential Code, the legal occupancy of any structure existing on the date of its adoption is permitted to continue without change, except as specifically covered in the International Fire Code, or as deemed necessary by the building official for the general safety and welfare of the occupants and the public. The IFC exempts from its application means of egress in existing buildings that conform to the requirements of the building code under which they were constructed if, in the opinion of the fire code official, they do not constitute a distinct hazard to life. Accordingly, the UCC did not apply to appellant’s property.

Moreover, city did not establish that a staircase less than 80 inches in height constituted a fire hazard, per se, or a distinct hazard to life. Although a building code inspector was present at the hearing, he did not testify as to safety. He only expressed his opinion as to the legal applicability of the UCC to appellant’s house. The only person to testify as to safety was appellant, who did so in his attempt to prove grounds necessary for issuance of a variance. Admitting that the staircase in question was less than the required height, appellant testified generally that he never had a tenant complain about the staircase height, that a fireman would have no problems climbing the stairs under normal circumstances and that a tall person simply could tilt his head. Although board members expressed their concerns regarding safety, their opinions do not constitute the opinion of a fire code official or substantial evidence supporting a finding of a distinct hazard of life and or a safety and welfare issue.