Verland C.L.A., Inc. v. Zoning Hearing Board

556 A.2d 4, 124 Pa. Commw. 150, 1989 Pa. Commw. LEXIS 142
CourtCommonwealth Court of Pennsylvania
DecidedMarch 13, 1989
DocketAppeal No. 1941 C.D. 1988
StatusPublished
Cited by5 cases

This text of 556 A.2d 4 (Verland C.L.A., Inc. 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
Verland C.L.A., Inc. v. Zoning Hearing Board, 556 A.2d 4, 124 Pa. Commw. 150, 1989 Pa. Commw. LEXIS 142 (Pa. Ct. App. 1989).

Opinion

Opinion by

Senior Judge Barbieri,

Verland C.L.A., Inc. (Verland) appeals an order of the Allegheny County Court of Common Pleas dismissing its appeal of a decision of the Zoning Hearing Board of the Township of Moon (Board) denying its request for a variance from the spacing requirement for a group residence facility and its validity challenging to this provision of the local zoning ordinance.

Verland is a Pennsylvania non-profit corporation which operates eight family community living arrangements (C.L.A.s) in Allegheny County under contract with the County Mental Health, Mental Retardation, Drug and Alcohol Program.1

[152]*152In March of 1986, Verland purchased a residence at 217 Winridge Drive in the Township for use as a C.L.A. The proposed C.L.A. would serve as a home for three mentally retarded residents and would be staffed by individuals who assist the residents in their daily activities.

The property is zoned R-l Residential and in March of 1987, Verland moved its residents into the home, assuming the C.L.A. would qualify as a single-family residence. Shortly thereafter, the Township advised Verland that it was in violation of Section 600.5(d)* 2 of the Ordinance. Although Section 600.5 of the Ordinance conditionally allows group residence facilities in all residential zoning districts and commercial districts which are contiguous thereto, subsection (d) requires that such a facility may not be located less than one mile from any other. The distance is to be measured by drawing a circle with a one mile radius around the proposed facility. Measured this way, the property in question is within 1800 feet of another group residence.

The Township sought to enjoin Verland’s use of the premises as a C. L. A. However, by way of a consent order dated March 20, 1987, the hearing on the summary injunction was continued and the residents temporarily allowed to remain in the home on the condition that Verland seek a variance. The Board denied Verland a variance from the spacing requirement and the trial court dismissed Verland’s appeal. This appeal followed.

[153]*153Section 501.5 of the zoning ordinance (Ordinance) defines “single-family dwelling” as:

A separate, detached building designed for or occupied exclusively as a residence by one family.

“Family” is defined in Section 501.8 of the Ordinancé as:

One or more persons occupying a premises and living as a single housekeeping unit, as distinguished from a group occupying a boarding house, lodging house, club, fraternity or hotel.

A “group residence facility” is defined in Section 501.41 of the Ordinance which reads in pertinent part:

An establishment that provides room and board to persons who are residents by virtue of receiving supervised specialized services limited to health, social and/or rehabilitative services provided by a governmental agency, their licensed or certified agents or any other responsible nonprofit social service corporation. These services shall be provided in a family environment and only to persons who are children under eighteen years of age; physically or mentally handicapped of any age . . . who are in need of supervision and specialized services. . . . Supervision shall be provided by responsible adults. . . . However, one responsible adult shall always be in actual residence on a twenty-four hour a day basis. . . .

On appeal, Verland contends that it qualifies as a single-family residence rather than a group residence facility under the Ordinance. It further maintains that the one mile spacing requirement between group residence facilities in the Ordinance is exclusionary and arbitrary as well as in violation of the 1988 amendments to Title VIII of the Civil Rights Act of 1968. In the alternative, Verland argues that it should be granted a variance as the distance [154]*154between it and the nearest group residence facility is de minimis.3

We have previously held that three C.L.A.s, each designed for three mentally handicapped residents, constituted rooming houses rather than single-family residences under the local zoning ordinance. Step-By-Step, Inc. In that case, Step-By-Step sought to operate a C.L.A. in a residential district where special use permits were required for rooming houses.

Step-By-Step, Inc. argued that the properties were being used as residential family units rather than boarding houses. “Family” was defined under the Borough of McKees Rocks’ zoning ordinance as one or more persons related by blood together with their blood relatives and respective spouses. We held that as the C.L.A. residents were not related by blood, required twenty-four hour assistance of Step-By-Step employees, paid under a room and board agreement, and were not placed in the residence permanently, that there was substantial record evidence to support a conclusion that the C.L.A. was a rooming house father than a single-family residence.

In the present case, the Board found that Verland provides room and board to its residents along with specialized health, social and rehabilitative services. At the time of the hearing before the Board, three mentally retarded individuals, ages 13, 16, and Í9, were residing in the residence at 217 Winridge Street. The Board also found that the home is staffed by individuals who assist and supervise the residents and there is one staff person on duty at all times. Further, Verland’s Project Director [155]*155admitted that she could not predict how long each individual would remain in the home.4

As was the case in Step-By-Step, Verland’s C.L.A. does not qualify as a single-family residence. Instead, it falls squarely within the definition of a group residence facility and is therefore subject to the one mile spacing requirement of Section 600.5(d) of the Ordinance.

Verland next contends that the one mile spacing requirement in Section 600.5(d) of the Ordinance is unconstitutional in that it fails to promote any public health, safety, or welfare interests and is therefore unreasonable and arbitrary.

Zoning ordinances are presumed to be valid and the burden of proving otherwise is on the party challenging the ordinance. Boundary Drive Associates v. Shrewsbury Township, 507 Pa. 481, 491 A.2d 86 (1985). A zoning ordinance is valid if it promotes public health, safety or welfare and if its provisions are substantially related to the purpose it is to serve. Id. If the validity of the provision in question is fairly debatable, the provision must be upheld. Owens v. Zoning Hearing Board of the Borough of Norristown, 79 Pa. Commonwealth Ct. 229, 468 A.2d 1195 (1983).

A review of the record reveals that Verland did not prove that the one mile distance constituted an unreasonable limitation on the number of C.L.A.s in the Township. Further, the Board found that one of the purposes of the one mile spacing requirement as applied to a residential district is the preservation of a family type community atmosphere and the accompanying preservation of property values.

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Cite This Page — Counsel Stack

Bluebook (online)
556 A.2d 4, 124 Pa. Commw. 150, 1989 Pa. Commw. LEXIS 142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/verland-cla-inc-v-zoning-hearing-board-pacommwct-1989.