Appeal of Kates
| Decision Date | 16 October 1978 |
| Citation | 38 Pa.Cmwlth. 145,393 A.2d 499 |
| Parties | Appeal of Lewis KATES et al. from decision of Cheltenham Township Zoning Hearing Board. Lewis Kates and Judith Kates, John Leonard and Barbara Leonard, Donald Mayer and Vera Mayer and Arnold Zaslow and Brenda Zaslow, Appellants (Two Cases). |
| Court | Pennsylvania Commonwealth Court |
Joseph R. Livesay, Kates & Livesay, Lewis Kates, Philadelphia, for appellants.
Samuel High, Jr., Frank L. Newburger, III, Norristown, for appellee.
Morris Gerber, Gerber, Maerz, Wilenzik & Shields, Norristown, for Crestview Conval. Home.
Before BOWMAN, President Judge, and CRUMLISH, Jr., WILKINSON, MENCER, ROGERS, BLATT and DiSALLE, JJ.
Two appeals from a consolidated order of the Court of Common Pleas of Montgomery County affirming decisions of the Cheltenham Township Zoning Hearing Board (Board) have been consolidated for argument and opinion of this Court. Lewis Kates and other owners (appellants) of residential property in the neighborhood in which the Crestview Convalescent Home (Crestview) is located have asked us to reverse both the grant of a special exception permitting Crestview's expansion and the decision upholding the validity of a zoning ordinance under which the exception was granted.
Crestview has been operated as a convalescent home since 1953 and is located in an R-3 residential district, as determined by Cheltenham Township's Zoning Ordinance of 1929. Although the use did not conform to the zoning restrictions, Crestview was granted a variance in 1965 to expand from thirty-five to fifty-three beds. Objections to the facility's variance request were withdrawn when the owners of Crestview promised that they would make no further expansion requests. In 1971 Crestview sought, and was granted by the Board, a second variance request to double its occupancy. This action, however, was reversed by the lower court, which found that Crestview had failed to establish the hardship necessary for the grant of a variance.
In March, 1974, Cheltenham Township (Township) Commissioners enacted Ordinance No. 1318 (Ordinance) which added a provision to the nonconforming use section of the existing zoning ordinance to permit special exceptions subject to a number of requirements 1 for "the expansion and/or replacement of an existing nonconforming nursing home or home for the aged" when the building does not comply with township, state or federal regulations "as to size, capacity, safety or type of construction" or when reconstruction, addition or replacement is required to meet such regulations "in order to provide Health Insurance Benefits to all occupants or patients." Crestview applied for a special exception to expand its facility from seventy to one hundred seventy beds pursuant to the Ordinance, and the Board granted the special exception on June 18, 1974. On appeal, the lower court dismissed the appellants' objections and affirmed the grant of the special exception but limited the number of beds to 153. 2 In a separate appeal to the lower court, these same appellants challenged the validity of the Ordinance, but the lower court also affirmed the Board's determination of its validity. Now before us is a review of the propriety of the grant of the special exception and the validity of the Ordinance.
Our scope of review here, in a case where the lower court has taken no additional evidence on an appeal from a zoning board, is limited to a determination of whether or not the Board committed an abuse of discretion or an error of law. Warwick Land Development Corporation v. Board of Supervisors, 31 Pa.Cmwlth. 450, 376 A.2d 679 (1977).
The appellants first argue that the Ordinance permitting the expansion of nursing homes was designed for the benefit of four specific landowners and that it, therefore, constitutes unlawful spot zoning. We find no merit in this argument because the Ordinance does not Rezone any property but merely permits the expansion of existing buildings if they meet certain criteria set forth in the Ordinance. Spot zoning is defined as " ' "(a) singling out of . . . a small area (of land) for different treatment from that accorded to similar surrounding land . . . ." ' " Mulac Appeal, 418 Pa. 207, 210, 210 A.2d 275, 277 (1965). Spot zoning is nevertheless a concept of land Classification. The Ordinance in question here does nothing to alter the zoning classification of the land on which nursing homes are located and it does not, therefore, spot zone any property.
The appellants' second argument is that the effect of the Ordinance is to give special treatment to four landowners without requiring them to prove their entitlement to a variance and that the ordinance is, therefore, invalid. A court must presume the validity of an ordinance and the burden of proving its invalidity rests with the party challenging it. Cleaver v. Board of Adjustment, 414 Pa. 367, 200 A.2d 408 (1964). Furthermore, the challenging party must clearly establish that the ordinance is arbitrary and unreasonable, with no relation to the public health, safety, morals and general welfare. and if the validity is debatable the court will defer to legislative judgment. Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975). We must conclude, as the lower court did, that the appellants have not met their heavy burden of proving that the Ordinance is either arbitrary or unreasonable. There is ample evidence in the record to substantiate the conclusion that the singular purpose of the Ordinance was to ensure the continued availability of nursing and convalescent services within the neighborhood. The Township recognized that if expansion or alteration of the presently existing facilities was precluded, these facilities could be closed for failure to meet state or federal standards, and that special consideration was required to prevent their closing. The Ordinance contains a number of restrictions, however, designed to protect the interests of the abutting property owners as well. We believe that the Ordinance does promote the general welfare of the surrounding community and that it has a rational relationship to a legitimate zoning objective. We cannot agree, therefore, that the Ordinance should be held to constitute an invalid discrimination.
Holding as we have that the Ordinance itself is valid, we have been asked to consider, in addition, whether or not Crestview was entitled to a special exception as provided by the Ordinance. The appellants contend that Crestview is not a "non-conforming use" and that it, therefore, does not meet the criteria for the grant of a special exception.
The Ordinance...
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