Appeal of McGinnis
| Decision Date | 29 July 1982 |
| Citation | 448 A.2d 108,68 Pa.Cmwlth. 57 |
| Parties | In re Appeal of Theresa McGINNIS from the decision of the Langhorne Manor Borough Zoning Hearing Board. Appeal of Theresa McGINNIS. In re Appeal of Theresa McGINNIS from the decision of the Langhorne Manor Borough Zoning Hearing Board. Appeal of LANGHORNE MANOR BOROUGH. |
| Court | Pennsylvania Commonwealth Court |
Thomas J. Profy, III, Begley, Carlin, Mandio & Popkin, Bristol, Mindy M. Brook, Moskowitz, Zamparelli & Weiss, Gerald E. Bloom, III, Langhorne, Jackson, Sullivan & Beckert, Fairless Hills, for appellant.
Before ROGERS, BLATT and CRAIG, JJ.
In these cross appeals, Theresa McGinnis and the Borough of Langhorne Manor seek review of an order of the Court of Common Pleas of Bucks County reversing the decision of the Langhorne Manor Zoning Hearing Board that Ms. McGinnis' use of her property as a group home for elderly persons constituted a violation of the Borough's Zoning Ordinance.
The facts, adduced during four lengthy hearings of the board conducted between January and April, 1980, are largely undisputed. In late June, 1979, Ms. McGinnis purchased a residentially zoned property and related improvements including a large single-family residence located at 401 Station Avenue in Langhorne Manor Borough. Shortly thereafter she began occupancy of the residence together with five elderly persons only one of whom is related to Ms. McGinnis and none of whom are otherwise related to each other. 1 The particular circumstances of the living arrangement of these persons will be described at a later point in this opinion. Within the RA-Residential zoning district here at issue single-family detached homes, religious uses, non-profit educational uses, public recreational uses, and certain accessory and temporary uses are permitted by right. Schools operated for profit, nursing homes, and private recreational uses are prohibited. Section 215 of the zoning ordinance defines the term "family," permitted to occupy a single-family dwelling, as follows:
One or more persons related by blood, marriage or adoption, and in addition, domestic servants or gratuitous guests thereof; or a group of not more than five persons who need not be so related, and in addition, domestic servants or gratuitous guests thereof, who are living together in a single non-profit dwelling unit and maintaining a common household with single cooking facilities. A roomer, boarder or lodger shall not be considered a member of the family.
On July 19, 1979, Mr. Max Einenkel, zoning officer and building inspector for the Borough, in response to the complaints of neighbors, who expressed then and at the hearings concern that an unlawful commercial use in the neighborhood would have an adverse effect on surrounding property values, attempted to deliver to Ms. McGinnis at her newly acquired home a copy of a letter written by Thomas J. Profy, III, Esquire, the Borough's solicitor, the contents of which was as follows:
Dear Miss McGinnis:
401 Station Avenue, Langhorne Manor Borough is situate in an RA zoning district in which nursing homes, convalescent homes and related-type facilities are not permitted.
Borough Council for which I am Solicitor has been contacted by various persons within the community who are under the impression that you intend to utilize the subject premises as a nursing home, convalescent home or related-type facilities. It may well be that you do not so intend to use the property but to avoid confusion and hardship upon you if you so utilize the premises and were forced to cease and desist, Borough Council has directed that I bring to your attention the zoning classification of the property and aforesaid limitation upon the use thereof.
Mr. Einenkel was refused entry to the house by Ms. McGinnis' sister and was told to leave the letter described above outside where, he was told, it would be retrieved after his departure. Ms. McGinnis later denied any knowledge of the letter.
On August 9, 1979, Mr. Einenkel again attempted to deliver a letter, dated August 8, 1979, written by himself, to Ms. McGinnis, notifying her that the current use of her property "as a multi-person-boarding, nursing and convalescent home" was in violation of the zoning ordinance and requiring her to immediately cease and desist from such use. Again Mr. Einenkel was met at the door by Ms. McGinnis' sister who first agreed to inform Ms. McGinnis of Mr. Einenkel's presence but who then returned with a Mr. Jack Wilson who stated that Ms. McGinnis was unavailable and had authorized him to accept the letter; whereupon Mr. Einenkel delivered the letter to Mr. Wilson. Ms. McGinnis later testified that Mr. Wilson had been in her employ during the relevant period for the purpose of accomplishing certain repairs but she denied any knowledge of the August 8, 1979, letter.
On October 10, 1979, a criminal citation was issued charging Ms. McGinnis with the illegal "[o]peration of a nursing home or convalescent home for 3 or more individuals who are not related by blood or marriage in the property situate at 401 Station Ave ...." The citation was received by the appellant on October 16, 1979 and she appealed therefrom to the zoning hearing board where her position was that the residents of 401 Station Avenue constitute a family within the meaning of Section 215 of the zoning ordinance, above quoted, and, in the alternative, that the ordinance is unconstitutional as discriminating against groups of unrelated individuals who desire to reside together and, in any event, that she was entitled to a variance from the zoning strictures on account of the unnecessary hardship that would be caused to her by a literal application of the ordinance provision. The zoning board rejected each of these contentions on the basis, inter alia, of the following pertinent factual findings:
7. Shortly after purchasing the subject property at 401 Station Avenue, Theresa McGinnis commenced use of the property as a commercial operation for the residential care of the aged.
8. Theresa McGinnis holds herself out to the public as offering a commercial service by providing residential care of the aged.
9. Theresa McGinnis has established a pattern of charges and regular fees for such services and the same has continued.
10. The operation of a residential home for the aged at 401 Station Avenue is commercial in nature and is a service operated for profit....
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12. The immediate area of Langhorne Manor in which the subject property is located is exclusively residential.
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14. The property in question is well suited as a private single family residence and could have been sold as such at the time Theresa McGinnis purchased the property ....
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15. Residing at 401 Station Avenue beside the applicant, Theresa McGinnis, is her uncle and five (5) other individuals with no clear evidence establishing a specific family relationship with the applicant.
The board concluded:
3. Other than her uncle, the individuals residing with Theresa McGinnis are not "family" in the traditional sense and within the first definition of the same found in Section 215 of the [zoning ordinance].
4. The present and proposed use of 401 Station Avenue as a residential home for the elderly is not "a single non-profit dwelling unit"; to the contrary, it is a commercial operation for profit and therefore the individuals residing with the owner/applicant are not "family" within the second and broader definition found in Section 215.
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6. Theresa McGinnis has not proved the necessary legal factors which would entitle her to a variance in that no physical conditions peculiar to the particular property cause the unnecessary hardship which is a pre-requisite to a variance.
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8. The property ... can be fully and reasonably used as a single family residential dwelling in strict conformity with the R.A. Zoning District.
9. Theresa McGinnis has not proved that the Langhorne Manor Borough Zoning Ordinance is unconstitutional either in general or as applied to her.
As we have indicated the Court of Common Pleas reversed the action of the board holding that the zoning ordinance definition of "family," as applied to the particular circumstances of this case, is unconstitutional. Where, as here, the lower court has taken no additional evidence, review by this Court is directed toward the decision of the zoning hearing board and is limited to a determination of whether the board abused its discretion or committed an error of law, and whether each necessary finding of fact is supported by substantial evidence. Haverford Township v. Zoning Hearing Board of Haverford Township, 55 Pa. Commonwealth Ct. 209, 423 A.2d 757 (1980).
We first express our agreement with the board and the trial court that Ms. McGinnis failed to meet her burden to show the unnecessary hardship required to support the grant of a variance from the restrictive terms of a zoning ordinance. "[A] variance is justified only by the unnecessary hardship that results when physical characteristics peculiar to the property or incompatible neighboring uses make permitted development physically impossible or economically infeasible." Appeal of American Medical Centers, Inc., 54 Pa. Commonwealth Ct. 573, 577, 422 A.2d 1192, 1194 (1980). Here permitted development not only is possible and feasible but has been accomplished. The home occupied by Ms. McGinnis and her "guests" was, prior to their occupancy, used as a single-family dwelling. No physical characteristics peculiar to the property were claimed to exist or were the subject of proof at the hearings before the board. The Borough zoning officer testified that of the approximately twenty properties neighboring that of Ms. McGinnis within a distance of one block, all but two are developed as single-family dwellings; the others being a permitted school and a non-conforming five unit apartment house. It was not claimed...
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