Eichlin v. Zoning Hearing Board

671 A.2d 1173, 1996 Pa. Commw. LEXIS 53
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 14, 1996
StatusPublished
Cited by16 cases

This text of 671 A.2d 1173 (Eichlin v. Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eichlin v. Zoning Hearing Board, 671 A.2d 1173, 1996 Pa. Commw. LEXIS 53 (Pa. Ct. App. 1996).

Opinion

COLINS, President Judge.

Harry L. Eichlin (Appellant) appeals an order of the Court of Common Pleas of Bucks County (trial court) that affirmed the decision of the Zoning Hearing Board of New Hope Borough (Zoning Hearing Board) sustaining the New Hope Borough Zoning Officer’s (Zoning Officer) decision to grant a zoning permit to Bucks Villa, Inc. (BVI), for the intended use of the subject property as a family group home pursuant to Section 218 of the New Hope Borough Zoning Ordinance (Ordinance).1

The property at issue is zoned R-B Urban Residential and is improved by a residential building, which currently consists of two separate dwelling units. Family Services Association of Bucks County (FSA) is a non-profit corporation that is sponsoring BVI, a nonprofit corporation that is the equitable owner of the property. BVI c/o FSA proposed to renovate the structure for use as a family group home intended to house eight HIV-infected persons and a residential manager.

On August 3, 1993, BVI applied for a zoning permit and a use and occupancy permit. A zoning permit was issued authorizing BVI c/o FSA to use the property as a family group home; no action was taken on the use and occupancy permit application, as the Borough of New Hope (Borough) reserved [1175]*1175the right to act on the application upon completion of construction. Marion Eichlin, the wife of Appellant, appealed the issuance of the zoning permit to the Zoning Hearing Board, and hearings were conducted on September 30, October 19, and October 26,1993. On December 2, 1993, the Board issued a decision denying Marion Eichlin’s appeal and sustaining issuance of the zoning permit. An appeal to the common pleas court was filed on December 29,1993.

On July 23,1994, Marion Eichlin died, and Appellant was subsequently permitted to substitute himself as a successor in interest and/or to intervene in Marion Eichlin’s appeal. Appellant’s entry into the case was accomplished by stipulation of the parties. FSA, the Borough, and Jill A. Ferrari were also permitted to intervene as parties.

By order of the trial court dated November 1, 1994, the case was remanded to the Zoning Hearing Board for that body to take additional evidence on what is meant by the term “functional equivalent of a traditional family,” and to develop a factual record as to whether the proposed facility satisfies that definition. After remand, the trial court affirmed the Zoning Hearing Board, concluding that the Board’s findings that the property as renovated is a single-family dwelling and that the residents will live together as the functional equivalent of a traditional family are supported by substantial evidence. This appeal followed.

Appellant raises three issues for our consideration: (1) whether the use proposed by the landowner is the functional equivalent of a traditional family, thereby qualifying said use as a family group home; (2) whether a family group home of more than five (6) members is a permitted use only in detached single family dwellings; and, (3) whether the record, including the Board’s decision, establishes that the proposed use will be conducted and/or carried on in something other than a detached single-family dwelling.

The trial court took no additional evidence; therefore our scope of review is limited to determining whether the Zoning Hearing Board committed a manifest abuse of discretion or an error of law. Constantino v. Zoning Hearing Board of the Borough of Forest Hills, 152 Pa.Cmwlth. 258, 618 A.2d 1193, 1195 n. 2 (1992). A conclusion that the Zoning Hearing Board abused its discretion may be reached only if its findings are not supported by substantial evidence. Valley View Civic Ass’n v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The Zoning Hearing Board as fact finder is the ultimate judge of credibility and resolves all conflicts in the evidence. Constantino. If the Zoning Hearing Board’s findings of fact are based upon substantial evidence, those findings of fact are binding upon this Court for purposes of appellate review. Id.

First, Appellant argues that the use proposed by BVI is not a family group home as contemplated by Section 218(3) of the Ordinance, New Hope Borough Zoning Ordinance No. 1993-2, art. 1, § 1(3), because BVI is only providing housing for individuals infected with the HIV virus and is not creating a family living arrangement that is the functional equivalent of a traditional family. We note initially that a significant portion of Appellant’s argument relative to this issue focuses on the expert testimony of Fred Wicks, Ph.D., a psychologist licensed to practice in the Commonwealth and who concentrates in family practice. However, the opinions offered by Dr. Wicks were rejected by the Zoning Hearing Board in performing its fact-finding function. Our limited scope of review forecloses our investigating that determination; thus, Dr. Wicks’ testimony will not be considered anew by this Court on appeal.

Section 218(3) of the Ordinance defines the term “family” to include:

A home for no more than eight unrelated persons which is sponsored and operated by a non-profit group, organization or corporation for a group of persons to Uve together in a single communal living arrangement where the residents permanently live together as the jfunctional equivalent of a traditional family in a non-profit dwelling unit maintaining a non-transient commxm household with [1176]*1176single cooking and dining facilities and sharing a permanent unity of social life. This shall be referred to as a “family group home”. Groups contemplated by this use include, but are not limited to, the handicapped, the elderly, and the disabled,

New Hope Borough Zoning Ordinance No. 1993-2, art. 1, § 1(3) (emphasis added).

Appellant argues that BVI will not be providing the residents of the subject property with personal care, attendant care, direct care, assistance in the giving and taking of medicines, contact with physicians to ensure compliance with physicians’ orders, use of the telephone, and help with the laundry. Further, Appellant argues that the resident manager will not provide any hands-on care or on-site care for the residents, except in a crisis. Appellant also makes much of the leases signed by residents of the home, the fact that residents are charged rent each month, and the residents’ ability to leave the home at their preference.

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Bluebook (online)
671 A.2d 1173, 1996 Pa. Commw. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eichlin-v-zoning-hearing-board-pacommwct-1996.