J. Keefe, CHIBS, Inc. d/b/a Carnivores Sports Bar v. Borough of Oakmont ZHB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Keefe, CHIBS, Inc., d/b/a :

Carnivores Sports Bar, TWID 365, :

LLC, d/b/a The Pub at 333, The J. :

Keefe Co., LLC d/b/a The Lot of :

Edgewater, Co 83, LLC, d/b/a :

Hoffstots Cafe’ Monaco, MR 2021, :

LLC, OOWH, LLC, d/b/a Vinnie’s :

Tavern, Oakmont Saloon, LLC, :

Mangia Italiano, LLC, and :

Hoff & Lots Holdings Co., LLC, :

Appellants :

:

v. :

:

Borough of Oakmont Zoning Hearing : No. 201 C.D. 2024

Board and Borough of Oakmont : Argued: October 8, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge (P.)

HONORABLE MATTHEW S. WOLF, Judge

OPINION

BY JUDGE FIZZANO CANNON FILED: November 6, 2024

John Keefe, individually and as the principal of his various business

entities1 (collectively, Keefe), appeals from an order of the Court of Common Pleas

of Allegheny County (Common Pleas Court) that affirmed the denial by the Borough

of Oakmont (Oakmont) Zoning Hearing Board (Board) of Keefe’s substantive

validity challenge to a zoning ordinance amendment. Upon review, we conclude

1

CHIBS, Inc., d/b/a Carnivores Sports Bar, TWID 365, LLC, d/b/a The Pub at 333, The J.

Keefe Co., LLC d/b/a The Lot of Edgewater, Co 83, LLC, d/b/a Hoffstots Cafe’ Monaco, MR

2021, LLC, OOWH, LLC, d/b/a Vinnie’s Tavern, Oakmont Saloon, LLC, Mangia Italiano, LLC,

and Hoff & Lots Holdings Co., LLC.

that the ordinance at issue violates the constitutional equal protection rights of

existing businesses in Oakmont, and we reverse the Common Pleas Court’s order.

I. Background

Oakmont is a suburb of Pittsburgh. John Keefe is a longtime resident

of Oakmont and the owner of a number of businesses in its Commercial District.

Board’s Findings of Fact, Conclusions of Law, and Decision, August 7, 2023 (Bd.

Dec.) at 1; Reproduced Record (RR) at 97a-99a. In 2011, Oakmont enacted an

amendment to its zoning ordinance2 that, in pertinent part, required businesses in the

Commercial District – which included Keefe – to provide off-street parking for their

patrons. Bd. Dec. at 2, 5 & Ex. A.

Beginning in the fall of 2021, Oakmont became aware that owners

desiring to bring new businesses to its Commercial District were unable to do so,

although the proposed businesses were permitted uses as of right, because they could

not comply with the zoning ordinance’s off-street parking requirements. RR at

108a-14a. In Ordinance No. 1-2023, Oakmont amended the zoning ordinance to

allow public parking spaces to count toward fulfilment of the zoning ordinance’s

parking requirements under certain conditions.3 Id. at 84a-86a & 188a. For

conditional uses, on-street parking can count toward the parking requirement “when

a traffic study supports that traffic congestion and/or parking concerns will not be

created and all other parking requirements under Article VIII [of the zoning

ordinance] are met.” RR at 84a; Bd. Dec. at 2 (additional quotation marks omitted).

2

OAKMONT, PA., CODE OF THE BOROUGH OF OAKMONT, § 205-802 (2011).

3

The signed text of Ordinance No. 1-2023 can be found online on Oakmont’s website at

https://oakmontborough.com/wp-content/uploads/O1-of-2023-Parking-Ordinance-Amendment.pdf

(last visited November 5, 2024).

2

For uses by right, public parking can count toward the parking requirement “when

the on-street spaces are located within 300 feet of a property line and in the

Commercial District.” Bd. Dec. at 3 (additional quotation marks omitted).

Keefe brought a substantive validity challenge to Ordinance No. 1-

2023, asserting that it is (1) unconstitutionally vague, (2) arbitrary and unreasonable

with no substantial relationship to the public health, safety, and welfare, and (3)

improper special legislation. RR at 10a-19a; see also id. at 3a-5a (listing the same

three issues as those brought before the Board and asserting the same three issues

before the Common Pleas Court). Keefe did not assert a written challenge to the

amendment’s procedural validity. See generally id. at 10a-19a. However, Keefe’s

counsel cross-examined witnesses during the hearing before the Board concerning

the Planning Commission’s input in the enactment process and included that issue

in Keefe’s proposed findings and conclusions submitted after the hearing. See Bd.

Dec. at 1 n.1; RR at 109a-10a, 219a-20a, 842a-44a, 850a & 855a.

The Board held a hearing on May 23 and June 27, 2023. See generally

RR at 90a-251a & 877a-920a. At the conclusion of the hearing, the Board voted

unanimously4 to deny Keefe’s substantive validity challenge to Ordinance No. 1-

2023. Id. at 919a. Keefe appealed to the Common Pleas Court, which affirmed the

Board’s decision without taking additional evidence. This appeal followed.5

4

Board Member David Lowry recused himself at Keefe’s request. RR at 240a-42a. Board

Chair Joseph Luciana also recused himself. Id. at 242a; Bd. Dec. at 2. Accordingly, Board

Member Charles Fisher and Alternate Member Donald Kaplan presided at the hearing in order to

form a quorum. Bd. Dec. at 2.

5

Because the Common Pleas Court took no additional evidence, this Court’s review on

appeal is limited to determining whether the Board committed an error of law or abused its

discretion. See Lamar Advantage GP Co., LLC v. City of Pittsburgh Zoning Bd. of Adjustment,

244 A.3d 348, 354 (Pa. 2021).

3

II. Issues

Keefe asserts five issues on appeal, which we reorder as follows. First,

Keefe asserts that the Board applied an incorrect standard of review in adjudicating

his substantive challenge to the ordinance. Further, Keefe contends that the

Common Pleas Court ignored procedural defects in the enactment of Ordinance No.

1-2023 and failed to recognize that some testimony was untrue. Keefe also asserts

that Ordinance No. 1-2023 is unconstitutionally vague, in violation of constitutional

due process requirements; unconstitutional as special legislation; and arbitrary and

unreasonable with no substantial relationship to the public health, safety, and

welfare, in violation of constitutional equal protection requirements.

III. Discussion

A. The Board’s Standard of Review

Keefe posits that the Board failed to apply the proper legal standard of

substantive due process analysis in rendering its decision on Keefe’s validity

challenge to Ordinance No. 1-2023. Keefe bases this argument on two assertions:

first, that the Board’s introductory summary in its opinion was inaccurate; and

second, that Lowry’s recusal indicated bias by the entire Board that calls the whole

proceeding into question. Br. of Appellants at 39-42. We reject both bases of this

argument.

In the second paragraph of its opinion, the Board stated: “To

summarize this case, [Keefe] is an established landowner/business operator in the

[Oakmont] Commercial District who believes that the [a]mendment makes it easier

for competitors to enter the Commercial District because it relaxes certain parking

requirements.” RR at 1035a. Keefe contends that this “summarization is factually

4

incorrect as the [validity c]hallenge was solely based on the identified legal

deficiencies of . . . Ordinance No. 01-2023 . . . .” Br. of Appellants at 40. We

disagree. The Board’s statement is plainly accurate, as evidenced by Keefe’s express

claim, discussed further below, that Oakmont was discriminately targeting Keefe by

enacting Ordinance No. 1-2023 to favor specific new businesses entering Oakmont.

Further, we perceive nothing in this accurate statement of Keefe’s position that

suggests the Board failed to apply a proper due process analysis in its decision.

Lowry’s recusal likewise fails to support Keefe’s position. Lowry

recused himself at Keefe’s request. RR at 240a-42a. The Board’s Chair had recused

himself earlier. Id. at 242a. The remaining Board member, along with its alternate

member, comprised a quorum to conduct the hearing and render the decision. Id. at

242a & 449a. Keefe made no objection to the conduct of the hearing by the

remaining Board member and alternate. Had Keefe believed that those two Board

members were biased or otherwise not properly qualified to proceed, he could have

requested additional recusals or otherwise objected to the conduct of the hearing, but

he did not do so. Only Lowry was asked to recuse himself, and he immediately

complied following a discussion with counsel in executive session. RR at 240a-42a.

Having made no other objection to the composition of the Board for purposes of the

hearing, Keefe has not preserved this issue for appeal. See In re McGlynn, 974 A.2d

525, 534 (Pa. Cmwlth. 2009) (failure to raise an issue before a zoning hearing board

results in waiver, and the issue cannot be considered on review by this Court) (citing

Mack v. Zoning Hearing Bd. of Plainfield Twp., 558 A.2d 616 (Pa. Cmwlth. 1988)).

For these reasons, we reject Keefe’s assertion of error regarding the

Board’s standard of review.

5

B. Procedural Issues and Alleged Perjury

Keefe asserts that the Board improperly ignored procedural defects in

the enactment of Ordinance No. 1-2023 and “perjury” by Scot Fodi, Oakmont’s

Borough Manager and Zoning Officer (Fodi), in testifying concerning that process

at the hearing, see infra at 10 n.9. Br. of Appellants at 36-39. Keefe insists that

Oakmont’s purportedly improper enactment process relating to consideration of a

comment letter from the county and Fodi’s purportedly untrue testimony relating to

the comment letter “illustrate a pattern of arbitrary and capricious conduct that is

unrelated to the public health, safety, or welfare of the residents of Oakmont . . . .”

Id. at 36. Through this argument, Keefe is asserting a challenge to the process of

enacting Ordinance No. 1-2023. That challenge is both improper and untimely.

Keefe initially filed a written challenge with the Board only to the

substantive validity of Ordinance No. 1-2023; Keefe did not assert a written

challenge to the amendment’s procedural validity. See generally RR at 10a-19a.

Later, however, Keefe sought to assert a procedural challenge verbally during the

hearing before the Board and included it in proposed findings and conclusions

submitted after the hearing. See Bd. Dec. at 1 n.1. Such a challenge must be brought

in a court of common pleas, not before a zoning hearing board. Section 1002-A(b)

of the Pennsylvania Municipalities Planning Code,6 53 P.S. § 11002-A(b); Messina

6

Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202. Section 1002-A

was added by the Act of December 21, 1988, P.L. 1329, No. 39. Section 1002-A(b), effective July

4, 2008, states:

Challenges to the validity of a land use ordinance raising procedural

questions or alleged defects in the process of enactment or adoption

shall be raised by appeal taken directly to the court of common pleas

of the judicial district in which the municipality adopting the

6

v. E. Penn Twp., 995 A.2d 517, 530 (Pa. Cmwlth. 2010), aff’d, 62 A.3d 363 (Pa.

2012). A procedural challenge, therefore, has not been preserved and is not properly

before this Court.

Moreover, Section 5571.1(b)(1) of the Judicial Code7 requires that

“[a]ny appeal raising questions relating to an alleged defect in statutory procedure

shall be brought within 30 days of the intended effective date of the ordinance.” 42

Pa.C.S. § 5571.1(b)(1); see also Bartkowski Inv. Grp., Inc. v. Bd. of Comm’rs of

Marple Twp., 18 A.3d 1259, 1263 (Pa. Cmwlth. 2011). Here, the effective date of

Ordinance No. 1-2023 was on or about March 20, 2023.8 Keefe, however, did not

first raise issues implicating any procedural challenge until the hearing before the

Board on May 23, 2023, more than 30 days after the effective date of Ordinance No.

1-2023. See Bd. Dec. at 1 n.1.

Section 5571.1(b)(2) of the Judicial Code provides a potential mechanism for

an untimely challenge to the enactment process of an ordinance as follows:

ordinance is located in accordance with 42 Pa.C.S. § 5571.1

(relating to appeals from ordinances, resolutions, maps, etc.).

53 P.S. § 11002-A(b).

7

42 Pa.C.S. §§ 101-9913.

8

Keefe’s proposed findings of fact averred that the adoption date was March 30, 2023, and

later averred that the date was March 20, 2023. RR at 838a. The correct adoption date is March

20, 2023. Borough of Oakmont, Pa., Ordinances & Resolutions Archive, 2023 Ordinances

Recently Adopted, 01 of 2023, Parking Ordinance Amendment, available online at

https://oakmontborough.com/wp-content/uploads/O1-of-2023-Parking-Ordinance-Amendment.pdf

(last visited November 5, 2024). Paragraph IV of Ordinance No. 1-2023 provides, “This

Ordinance shall be effective upon adoption by the Borough Council and recording in the Borough

Ordinance Book.” Id. The Borough Secretary signed and sealed Ordinance No. 1-2023 as having

been recorded in the Ordinance Book but did not fill in the recording date. See id. However,

Keefe has not alleged any material delay in the recording of Ordinance No. 1-2023, and his counsel

conceded at oral argument that the effective date was on or about March 20, 2023.

7

(2) In the case of an appeal which is exempt from the 30-

day time limitation in accordance with subsection (c), the

party alleging the defect must meet the burden of proving

each of the following:

(i) That there was a failure to strictly comply with

statutory procedure.

(ii) That there was a failure to substantially comply

with statutory procedure which resulted in

insufficient notification to the public of impending

changes in or the existence of the ordinance, so that

the public would be prevented from commenting on

those changes and intervening, if necessary, or from

having knowledge of the existence of the ordinance.

Bartkowski, 18 A.3d at 1264 (quoting 42 Pa.C.S. § 5571.1(b)(2) (quotation marks

omitted)). Here, however, Keefe’s procedural challenge focused on a comment

letter from Allegheny County to Oakmont, not notice to the public. See RR at 842a-

44a, 850a & 855a. Therefore, the exception in Section 5571.1(b)(2) does not apply.

Accordingly, Keefe’s challenge to the enactment process was untimely and has not

been preserved for appeal.

For these reasons, we reject Keefe’s argument concerning procedural

defects in the enactment of Ordinance No. 1-2023.

C. Vagueness

Regarding his assertion that Ordinance No. 1-2023 is impermissibly

vague, Keefe observes that “[a] law is void on its face if it is so vague that persons

of common intelligence must necessarily guess at its meaning and differ as to its

application.” Br. of Appellants at 24 (quoting Fabio v. Civ. Serv. Comm’n of City

of Phila., 414 A.2d 82, 84 (Pa. 1980)) (additional quotation marks omitted). This

vagueness argument is based on due process requirements under both the

8

Pennsylvania and United States constitutional equal protection provisions. See U.S.

CONST. amend. XIV (providing, in pertinent part, that “[n]o State shall make or

enforce any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of . . . property, without due

process of law; nor deny to any person . . . the equal protection of the laws . . .”); Pa.

Const. art. III, § 32 (providing, in pertinent part, that “[t]he General Assembly shall

pass no local or special law in any case which has been or can be provided for by

general law . . .”); St. Margaret Mem’l Hosp. v. Borough Council of Aspinwall, 641

A.2d 1270, 1272 (Pa. Cmwlth. 1994) (explaining that “[t]he Pennsylvania Supreme

Court has adopted the standards and analysis of the United States Supreme Court in

order to interpret and apply the equal protection provisions of the Pennsylvania

Constitution”) (citing Commonwealth v. Parker White Metal Co., 515 A.2d 1358

(Pa. 1986)).

Here, Keefe maintains that Ordinance No. 1-2023 is improperly vague

and thereby violates due process requirements in two ways: (1) it appears to give

both the Planning Commission and the Borough Council the right to determine

whether on-street parking will count toward the parking requirements related to a

conditional use, and (2) it provides “no clear standards or definitions as to what

‘traffic congestion’ or ‘parking concerns’ actually mean as applied.” Br. of

Appellants at 25. Keefe relies on the expert testimony of Joseph Haydo (Haydo), a

traffic engineer, and Steven Victor (Victor), a landscape architect, regarding his

assertions of vagueness. See Br. of Appellants at 25-27. Neither assertion of

vagueness has merit.

Victor opined that the zoning ordinance confusingly gives both the

Planning Commission and the Borough Council the same right to determine when

9

and how to count on-street parking in relation to a conditional use. Br. of Appellants

at 25. However, quoting specific provisions of the zoning ordinance, the Board

found as a fact that “[i]t is Borough Council that determines whether or not to allow

a conditional use to count on-street parking spaces toward the fulfillment of its

parking requirements.” Bd. Dec. at 6; see also id. at 10-11 (quoting OAKMONT, PA.,

CODE OF THE BOROUGH OF OAKMONT, § 205-1503.B(5), (6) & (10) (2014), and

concluding that “the role of the Borough Planning Commission is recommendatory

only . . .” and that Borough Council has exclusive jurisdiction over conditional use

determinations); RR at 124a, 182a & 447a. Moreover, the Board found that in

Victor’s testimony, “cross[-]examination . . . reveal[ed his] direct testimony to be

exaggerated or misleading [and] the most credible testimony . . . supported the

validity of [Ordinance No. 1-2023].” Bd. Dec. at 4. The Board also credited Fodi’s

testimony as “truthful.”9 See id.

9

Keefe argues that the Board committed an “abuse of discretion” and an “error of law” in

this credibility finding, in that Fodi admitted on cross-examination that his statement on direct

examination that Allegheny County had no comment on Ordinance No. 1-2023 was not true. Br.

of Appellants at 35; see also RR at 884a-86a (oral argument at the Board hearing, interpreting a

county letter as advising a traffic study relating to the parking provisions in amending the zoning

ordinance). Keefe insists that “Fodi has no credibility” and that his testimony “should have been

stricken in its entirety by the Board from its consideration as falsus in uno, falsus in omnibus”

(false in one thing, false in everything). Br. of Appellants at 35. However, the law is settled that

“questions of credibility are solely within the province of the [Board], and the [Board] is free to

accept or reject the testimony of any witness, in whole or in part.” Se. Chester Cnty. Refuse Auth.

v. Zoning Hearing Bd., 898 A.2d 680, 687 (Pa. Cmwlth. 2006) (emphasis added) (citing Domeisen

v. Zoning Hearing Bd., 814 A.2d 851 (Pa. Cmwlth. 2003)). Moreover, in response to a question

from a Board member, Fodi explained that Allegheny County’s letter did not clearly state whether

its comment concerning a traffic study was “providing some guidelines for how the traffic study

would be performed once the ordinance would pass, or . . . saying, a traffic study should be

performed in conjunction with the drafting and potential passing of the ordinance.” RR at 905a.

Thus, Keefe has not established that the county’s comment or Fodi’s testimony concerning that

comment was material to the Board’s decision on his substantive validity challenge, and the Board

was not required to reject Fodi’s testimony as a whole on the basis that he acknowledged making

10

Victor further opined that the definitions of traffic congestion and

parking concerns should be controlled by the language of the zoning ordinance itself.

Br. of Appellants at 26. Keefe insists the Common Pleas Court ignored Victor’s

testimony in this regard. Id. at 27.10 However, as stated previously, the Board

rejected Victor’s testimony as not credible. Moreover, there was contrary evidence

in the record before the Board. First, the zoning ordinance itself requires that an

applicant demonstrate through a traffic study that its proposed business will not

result in traffic congestion or parking concerns. Bd. Dec. at 2. In addition, Haydo

acknowledged his understanding that “traffic congestion” is a traffic engineering

industry standard. RR at 153a. When asked on cross-examination whether he

believed that the implementation of Ordinance No. 1-2023 in relation to new

businesses would increase traffic congestion in Oakmont’s Commercial District,

Haydo was careful to clarify his opinion that new business “only has the potential

to increase traffic . . . .” RR at 154a (emphasis added). Further, he conceded that

his expressed concerns were “theoretical” and not based on actual observation or

traffic study in Oakmont, and that the effect of a new business on traffic “depends

on use.” Id. at 144a, 146a-47a, 156a & 164a. Haydo testified that the Pennsylvania

Department of Transportation (PennDOT) has adopted a grading system for state

roads, which is followed by most municipalities. RR at 152a. Haydo also

acknowledged that, because the terms “traffic congestion” and “grading system” are

a statement regarding the county’s lack of comment that was not accurate. Therefore, we discern

no error of law or abuse of discretion in the Board’s credibility determination.

10

As our review is of the Board’s decision, Keefe’s argument is more properly asserted as

error by the Board rather than the Common Pleas Court. See RDM Grp. v. Pittston Twp. Zoning

Hearing Bd., 311 A.3d 1216, 1224 (Pa. Cmwlth. 2024) (citing Pham v. Upper Merion Twp. Zoning

Hearing Bd., 113 A.3d 879, 887 (Pa. Cmwlth. 2015), and explaining that “because we review the

[B]oard’s decision, we do not address arguments challenging the [Common Pleas C]ourt’s

decision”).

11

industry standards used by traffic engineers and there are national standards for

traffic studies, application of those standards by different traffic engineers should

yield consistent traffic study results. RR at 153a & 165a-66a. Based on these aspects

of Haydo’s testimony, Oakmont asserts that “[b]ecause the term ‘traffic congestion’

is an industry standard term, the Ordinance clearly does not require businesses in the

Borough to guess its meaning.” Br. of Oakmont at 11. We agree.

Evaluation of the weight of the evidence and the credibility of

witnesses, including expert witnesses, was exclusively within the Board’s authority.

This Court has explained that

[the B]oard’s function is to weigh evidence, and it is the

sole judge of the credibility and weight of the witnesses’

testimony. [SPC Co. v. Zoning [Bd.] of Adjustment of the

City of Phila[.], 773 A.2d 209, 214 (Pa. Cmwlth. 2001).]

[The B]oard is “free to reject even uncontroverted

testimony it finds lacking in credibility, including

testimony offered by an expert witness.” Taliaferro v.

Darby [Twp.] Zoning Hearing [Bd.], 873 A.2d 807, 811

(Pa. Cmwlth. 2005). We must view the evidence in a light

most favorable to the party that prevailed before the

[B]oard and afford that party all inferences reasonably

drawn from the evidence. . . .

RDM Grp. v. Pittston Twp. Zoning Hearing Bd., 311 A.3d 1216, 1224 (Pa. Cmwlth.

2024). As the preceding paragraphs explain, the record contained substantial

evidence that, as credited by the Board, was sufficient to support the Board’s

rejection of Keefe’s vagueness argument. Accordingly, we may not disturb the

Board’s determination of those issues on appeal. See id. We reject Keefe’s assertion

that Ordinance No. 1-2023 is void as unconstitutionally vague.

12

D. Special Legislation

Article III, section 32 of the Pennsylvania Constitution provides: “The

General Assembly shall pass no local or special law in any case which has been or

can be provided for by general law . . . .” PA. CONST. art. III, § 32.11 Legislation is

“special” where it creates a classification on the basis of an artificial or irrelevant

distinction. See Harrisburg Sch. Dist. v. Hickok, 761 A.2d 1132, 1136 (Pa. 2000)

(explaining that “[t]he judicial function . . . with respect to classifications, is ‘to see

that the classification at issue is founded on real distinctions in the subjects classified

and not on artificial or irrelevant ones used for the purpose of evading the

constitutional prohibition’”). Keefe asserts that Ordinance No. 1-2023 constitutes

impermissible special legislation, in that it was aimed at discriminating specifically

against Keefe, which owns the majority of businesses in Oakmont, and giving

parking advantages to foster a particular new business. Br. of Appellants at 42-43.

We discern no merit in this argument.

Oakmont presented evidence that, since the autumn of 2021, at least

two businesses seeking to locate in Oakmont’s Commercial District had been

prevented from doing so by the parking requirements of the 2011 version of the

11

Research did not reveal any appellate decision expressly holding that article III, section

32 applies to municipalities as well as to the General Assembly. However, our Supreme Court, in

considering a prohibition on special legislation in the previous version of the Pennsylvania

Constitution, applied it as prohibiting a local ordinance favoring one retired employee, observing

that “[s]ince the Legislature may not authorize such a procedure, it naturally follows that a

township board of commissioners may not do it on its own.” Francis v. Neville Twp., 92 A.2d

892, 893 (Pa. 1952). Moreover, this Court has previously applied article III, section 32 to local

ordinances without distinguishing that section’s application to legislation enacted by the General

Assembly. See generally, e.g., Murrysville Watch Comm. v. Municipality of Murrysville Zoning

Hearing Bd. (Pa. Cmwlth., No. 579 C.D. 2020, filed Jan. 24, 2022); Seneca Res. Corp. v. City of

St. Marys Zoning Hearing Bd. (Pa. Cmwlth., No. 136 C.D. 2020, filed Nov. 30, 2021). We cite

these unreported opinions of this Court as persuasive, pursuant to Section 414(a) of our Internal

Operating Procedures. 210 Pa. Code § 69.414(a); see also Pa.R.A.P. 126(b)(1)-(2).

13

zoning ordinance. RR at 108a-11a. One of those businesses had not opened in the

Commercial District because its variance request regarding parking spaces had

already been rejected before the enactment of Ordinance No. 1-2023; another had

approached Fodi about a proposed laundromat but, after learning of the parking

requirements, had “never returned.” See RR at 109a-12a & 114a. Thus, the record

does not indicate that either business benefitted from the enactment of Ordinance

No. 1-2023. See RR at 123a (stating that no applications for conditional use

approvals that would require traffic studies have been filed since the enactment of

Ordinance No. 1-2023).

Further, Oakmont presented evidence that it was not targeting Keefe

for discriminatory treatment. Fodi testified that neither the Planning Commission

nor Borough Council ever raised any issue relating to Keefe’s interests in

considering Ordinance No. 1-2023.12 RR at 220a & 229a. Fodi also explained that

all previously established businesses in Oakmont, not only Keefe, must retain their

existing parking spaces notwithstanding the enactment of Ordinance No. 1-2023.

RR at 120a-21a. The Board was entitled to credit this testimony, which constituted

substantial evidence in support of the Board’s decision. See, e.g., RR at 1042a

(finding as a fact “that there was no evil motive or ill will . . .” in Oakmont’s

enactment of Ordinance No. 1-2023).

12

Fodi acknowledged that in a conversation with Brian Clark (Clark) (whose position is

not identified in the reproduced record) concerning state permits for a proposed parking lot project

to be owned by Oakmont, Clark commented that John Keefe “ticked off a man with a lot of

money.” RR at 231a. Although John Keefe testified at one point that he believed Fodi was “ticked

off because [John Keefe] challenged his authority . . .” in relation to a business called Taco Boys,

RR at 215a, the record does not establish and the Board made no finding as to who the man

referenced by Clark was or what, if any, connection Clark’s comment had to the enactment of

Ordinance No. 1-2023.

14

Accordingly, we will not disturb the Board’s findings of fact, which

adequately supported its conclusion that Ordinance No. 1-2023 did not constitute

unconstitutional special legislation.

E. Arbitrariness – Equal Protection

An ordinance is presumptively valid; “[a] legislative enactment can be

declared void only when it violates the fundamental law clearly, palpably, plainly

and in such a manner as to leave no doubt or hesitation in the mind of the court.”

Adams Outdoor Advert. v. Zoning Hearing Bd. of Smithfield Twp., 909 A.2d 469,

477 (Pa. Cmwlth. 2006) (citing Baker v. Upper Southampton Twp. Zoning Hearing

Bd., 830 A.2d 600 (Pa. Cmwlth. 2003)). More specifically, a municipality’s

“exercise of judgment in regard to zoning regulations will not be interfered with

except where there is obviously no relation to health, safety, morals or general

welfare.” Ethan-Michael, Inc. v. Bd. of Supervisors of Union Twp., 918 A.2d 203,

210 (Pa. Cmwlth. 2007) (citing Gladwyne Colony, Inc. v. Twp. of Lower Merion,

187 A.2d 549 (Pa. 1963)).

Here, Keefe argues that Ordinance No. 1-2023 “is arbitrary and

unreasonable and has no substantial relationship to public health, safety, morals, or

general welfare . . . ” and thereby violates equal protection principles. Br. of

Appellants at 30 (first citing St. Margaret Mem’l Hosp., 641 A.2d at 1272; and then

citing Verland C.L.A., Inc. v. Zoning Hearing Bd. of Twp. of Moon, 556 A.2d 4 (Pa.

Cmwlth. 1989)). As discussed previously, the Pennsylvania and United States

Constitutions contain comparable equal protection provisions. See U.S. CONST.

amend. XIV; PA. CONST. art. III, § 32; Love v. Stroudsburg, 597 A.2d 1137, 1139

(Pa. 1991) (stating that “[t]he equal protection provisions of the Pennsylvania

15

Constitution are analyzed by this Court under the same standards used by the United

States Supreme Court when reviewing equal protection claims under the Fourteenth

Amendment to the United States Constitution”).

Keefe concedes that, in applying equal protection principles, “the

Pennsylvania Supreme Court ‘has determined that ordinances which provide parking

restrictions involve neither suspect classes nor fundamental rights, and that the

appropriate standard to be applied is the rational basis test.’” Br. of Appellants at 31

(first quoting St. Margaret, 641 A.2d at 1272; and then citing Love, 597 A.2d at

1139) (additional citation omitted). Under the rational basis test, a parking provision

in a zoning ordinance is valid if it is directed at accomplishing a legitimate

governmental interest in a manner that is not arbitrary or unreasonable. Love, 597

A.2d at 1139-40. Nonetheless, Keefe argues that Ordinance No. 1-2023 fails even

the rational basis test. We agree.

As explained above, Oakmont learned that new businesses were unable

to open in Oakmont’s Commercial District because there was no way to comply with

the zoning ordinance’s off-street parking requirements without tearing down an

existing building. RR at 108a-14a. Through Ordinance No. 1-2023, Oakmont

allowed public parking spaces to count toward fulfilment of the zoning ordinance’s

parking requirements but also imposed certain conditions, such as a traffic study

showing that the proposed new business will not create traffic congestion or parking

concerns. Bd. Dec. at 2.

Keefe points to the testimony of its expert witnesses, who opined that

the implementation of Ordinance No. 1-2023 will result in inadequate parking,

create or add to traffic congestion, and negatively impact pedestrian safety, thereby

having a “negative impact on the health, safety, and welfare of Oakmont. Br. of

16

Appellants at 32. However, it was Oakmont’s function and prerogative to balance

interests in fostering new businesses with interests in traffic and pedestrian safety.

See Frederick v. Allegheny Twp. Zoning Hearing Bd., 196 A.3d 677, 700-01 (Pa.

Cmwlth. 2018) (observing that “[a] municipality balances the interest of landowners

in the use and enjoyment of their property with the public health, safety and welfare

of the community when it enacts land use regulation . . .”) (citing In re Realen Valley

Forge Greenes Assocs., 838 A.2d 718, 727-28 (Pa. 2003)). In amending the zoning

ordinance to relax parking requirements for new businesses, Oakmont permissibly

balanced the interest in promoting new businesses in its Commercial District with

safety interests by requiring applicants for new businesses to demonstrate that their

proposals will not adversely affect safety and traffic congestion. Ordinance No. 1-

2023 is not constitutionally infirm in balancing these two competing interests but,

rather, violates equal protection principles because it arbitrarily fails to treat new

businesses and existing businesses similarly.

In Atlantic Richfield Co. v. Erie Zoning Board of Adjustment, 43 Pa.

D. & C.2d 504 (1967), the Court of Common Pleas of Erie County sustained an

equal protection challenge to a zoning ordinance that required the entrance and exit

of a gasoline service station to be at least 200 feet from a school. The court

determined that the requirement was founded solely on traffic congestion concerns

but did not similarly burden other businesses that would generate as much or more

traffic; therefore, it was unconstitutional. Id. at 510 & 512. We find the common

pleas court’s reasoning in Atlantic Richfield persuasive here. Ordinance No. 1-2023

is similarly discriminatory in that it treats existing and new businesses differently

even if they generate the same amount of traffic.

17

Allegheny County v. Monzo, 500 A.2d 1096 (Pa. 1985), although not

factually on point, is also instructive. In Monzo, our Supreme Court held that a

county ordinance imposing a hotel room tax on hotels throughout Allegheny County

was unconstitutional where its purpose was to fund a convention center in Pittsburgh

that would provide a practical benefit only to those hotels in close proximity to the

planned convention center. Id. at 1106. The constitutional issue in Monzo concerned

tax uniformity rather than equal protection, but as the Court observed, “[t]he

standards of the uniformity clause and of the equal protection clause are identical.”

Id. (emphasis added). As such, the test of constitutional validity is whether there is

a reasonable distinction and difference between the classes burdened by the

ordinance sufficient to justify different treatment. Id. In concluding that the

ordinance in Monzo violated constitutional rights to equal treatment, our Supreme

Court agreed with the trial court’s statement that the countywide hotel room tax was

“an arbitrary form of classification, an appropriation of money from one group to

the benefit of another, [and] that it is unequal in its operation or effect upon similar

businesses . . . .” Id. (additional quotation marks omitted).

The principles articulated by our Supreme Court in Monzo apply

equally here. Ordinance No. 1-2023 allows a new business to count public parking

spaces toward its parking space requirement under the zoning ordinance if it meets

the applicable conditions, i.e., a satisfactory traffic study report for a conditional use

and proximity to the public parking spaces for a permitted use. However, an existing

business cannot obtain the same benefit, even if it meets the same conditions.

Oakmont has not offered any rational basis for discriminating by benefitting new

businesses and burdening existing ones with respect to parking space requirements,

and this Court perceives none. Like the ordinance in Monzo, Ordinance No. 1-2023

18

imposes an arbitrary form of classification, essentially appropriates money from one

group to the benefit of another, and operates upon and affects similar businesses

differently. See Monzo, 500 A.2d at 1106. This is because Ordinance No. 1-2023

arbitrarily classifies new businesses and existing businesses differently with regard

to the parking space requirements imposed upon them, without any rational basis,

and thus affects new and existing businesses differently even if they are similar in

nature. In addition, by requiring existing businesses to incur the cost of maintaining

private parking, but allowing new businesses to avoid similar requirements,

Ordinance No. 1-2023 forces existing businesses to bear the costs of lessening

parking congestion and then allows nearby new businesses to capitalize on the

benefit of that reduced congestion in establishing the sufficiency of their own

parking compliance.

For these reasons, we conclude that Ordinance No. 1-2023 arbitrarily

and unconstitutionally denies equal protection of the law to existing businesses in

Oakmont, including Keefe. Therefore, Ordinance No. 1-2023 is invalid.

IV. Conclusion

Based on the foregoing discussion, we conclude that Ordinance No. 1-

2023 is invalid as violative of constitutional equal protection principles.

Accordingly, the Common Pleas Court’s order is reversed.

___________________________________

CHRISTINE FIZZANO CANNON, Judge

19

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Keefe, CHIBS, Inc., d/b/a :

Carnivores Sports Bar, TWID 365, :

LLC, d/b/a The Pub at 333, The J. :

Keefe Co., LLC d/b/a The Lot of :

Edgewater, Co 83, LLC, d/b/a :

Hoffstots Cafe’ Monaco, MR 2021, :

LLC, OOWH, LLC, d/b/a Vinnie’s :

Tavern, Oakmont Saloon, LLC, :

Mangia Italiano, LLC, and :

Hoff & Lots Holdings Co., LLC, :

Appellants :

:

v. :

:

Borough of Oakmont Zoning Hearing : No. 201 C.D. 2024

Board and Borough of Oakmont :

ORDER

AND NOW, this 6th day of November, 2024, the order of the Court of

Common Pleas of Allegheny County dated February 21, 2024 is REVERSED.

Ordinance No. 1-2023 of the Borough of Oakmont is hereby declared to be invalid.

___________________________________

CHRISTINE FIZZANO CANNON, Judge