Appeal of Miller

• Decision Date: 03 October 1986
• Citation: 511 Pa. 631,515 A.2d 904
• Parties: In re Appeal of Irene C. MILLER from the Middletown Township Zoning Board of Adjustment. Irene C. Miller, Appellant.
• Court: Pennsylvania Supreme Court

Page 904

515 A.2d 904

511 Pa. 631

In re Appeal of Irene C. MILLER from the Middletown Township

Zoning Board of Adjustment.

Irene C. Miller, Appellant.

Supreme Court of Pennsylvania.

Argued Dec. 5, 1985.

Decided Oct. 3, 1986.

Colin M. Jenei, Wayne N. Cordes, Newtown, for appellant.

Martha F. Lindner, Bernard D. Cullen, Langhorne, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION

NIX, Chief Justice.

This is an appeal from an order of the Commonwealth Court, 85 Pa.Cmwlth. 407, 482 A.2d 688, affirming a decision by the Court of Common Pleas of Bucks County which sustained the Zoning Board of Adjustment's direction to appellant, Irene C. Miller, to cease and desist her current use of her property. Appellant argues, inter alia, that the use was a lawful, nonconforming one.

The property here involved is a detached, single-family dwelling located in a district of Middletown Township ("Township"), Bucks County, that is zoned "R-2." Like most single-family homes, Mrs. Miller's house has one kitchen; however, the structure is large enough to include six bedrooms, two bathrooms and a finished recreation room. Pursuant to the Township's zoning ordinance, a detached single-family dwelling is a permitted use in an "R-2" district; but convalescent homes, nursing homes and boarding houses are not. (See Board of Adjustment's findings Nos. 24 and 25, Reproduced Record page 183a).

Beginning in October of 1974, Mrs. Miller started receiving into her house as boarders various aged or physically handicapped or mentally retarded persons who had been referred to her by certain hospitals or social agencies. Between 1974 and 1978, the number of such boarders ranged from a minimum of one to a maximum of seven. After having accepted her first paying "guest" in October, 1974, Mrs. Miller increased the number to two by the end of that year. In 1976 the number rose to four; and from 1977 onward there were seven. In return for a fee of approximately $200.00 a month per individual, Mrs. Miller provided them with room, board, some transportation, supervision in grooming, and monitoring of personal needs. The Miller house, in addition to accommodating the several paying residents, was the residence of Mrs. Miller and her foster daughter. Another resident of the home was a Mrs. Hart, who, in return for bed and board, assisted in the care of the paying residents. With the exception of Mrs. Miller and her foster daughter, none of the people living in the house were related.

When Miller commenced this use of her property in 1974, the zoning ordinance in effect was one that had been enacted by the Township in 1948. Under that ordinance, the term "family" was defined as "any number of persons living and cooking together as a single housekeeping unit." (Emphasis added.) Subsequently, on June 27, 1978, that definition was amended to read:

FAMILY. a family is: 1 one or more persons related by blood, adoption or marriage living and cooking together as a single housekeeping unit; and (2) not more than two persons living and cooking together who are not related-by-blood, adoption or marriage. (Emphasis added.)

On June 10, 1980, the Assistant Township Zoning Officer, purporting to act on the protests of neighbors, notified Mrs. Miller that her having more than one unrelated person in her house violated the zoning ordinance, and ordered her to cease and desist from such use of the property. Miller responded by filing an appeal to the Township's Zoning Board of Adjustment ("Board").

In her appeal to the Board, the property owner asserted that the residents of her house are a "family" within the definition of that term in the pre-1978 ordinance, and that, consequently, the premises are being used as a single-family dwelling within the meaning of that ordinance. In short, she contended that the use was a lawful, nonconforming use. ¹ Mrs. Miller also argued that the 1978 zoning ordinance is unconstitutional because, according to her, the ordinance made no provision for boarding homes in residential areas. Additionally, she asserted that she was entitled to a use variance.

The Board rejected all of the appellant's arguments, and entered a decision upholding the cease and desist order. With regard to the issue of lawful nonconforming use, the Board determined that the residents of the Miller household did not constitute a "family" even within the definition of the 1948 ordinance, because eight of them either paid money or rendered services for their lodging, board and care, and because the membership of the group was subject to periodic change. Mrs. Miller followed with an appeal to the Court of Common Pleas of Bucks County, renewing her claim of a nonconforming use and the constitutional challenge she had made before the Board. ² Without taking additional evidence, the Court of Common Pleas affirmed the Board's decision. Upon a further appeal to the Commonwealth Court, the order of the trial court was affirmed. Mrs. Miller petitioned our Court for review, which we granted.

Where, in a zoning case, the trial court has not taken additional evidence, our scope of review is limited to determining whether or not the zoning hearing board committed an error of law or a manifest abuse of discretion. Pyzdrowski v. Board of Adjustment of City of Pittsburgh, 437 Pa. 481, 263 A.2d 426 (1970); Stratford Arms, Inc. v. Zoning Board of Adjustment, 429 Pa. 132, 239 A.2d 325 (1968); Gross v. Zoning Board of Adjustment of City of Philadelphia, 424 Pa. 603, 227 A.2d 824 (1967); Brennen v. Zoning Board of Adjustment of the City of Connellsville, 409 Pa. 376, 187 A.2d 180 (1963). For the reasons that follow, we are satisfied that appellant is correct in her assertion that the use was permitted under the 1948 ordinance. In view of our disposition, the remaining arguments raised need not be addressed.

Our resolution of this issue focuses upon the definition of the term "family" as used in the 1948 ordinance. The drafters of that ordinance defined that term as "any number of persons living and cooking together as a single housekeeping unit." For purposes of the instant dispute the meaning of the term "housekeeping unit" as used in that definition must be determined.

To fully appreciate the issue raised, some background in this area is helpful. Alfred Bettman in a law review article written in 1924 stated the proposition that "promotion of the single family home ... is deemed good public policy in America." Bettman, Constitutionality of Zoning, 37 Harv.L.Rev. 834, 839-40 (1924). From that point "zoning spread swiftly, particularly in suburban communities." J.R. Richards, Zoning For Direct Social Control, 5 Duke Law Journal 761, 767 (1982). At an early stage of that development the legitimacy of exclusive single-family districts was settled. However, the question that emerged was how, if at all, a given ordinance should define the term "family." Initially, a significant number of ordinances resolved that issue by leaving the word undefined. See, e.g., Baltimore, Md., Code art. 49, § 1 (1928); Birmingham, Ala., General Code Ordinance 1101-C, art. I, § 1 (1930). The consequence of that approach was to leave the resolution of the meaning of the term "single family" to the courts. See, e.g., Brady v. Superior Court, 200 Cal.App.2d 69, 77-82, 19 Cal.Rptr. 242, 247-49 (1962); Region 10 Client Management, Inc. v. Town of Hampstead, 120 N.H. 885, 887, 424 A.2d 207, 208-09 (1980); Carroll v. Washington Township Zoning Comm'n, 63 Ohio St.2d 249, 251, 408 N.E.2d 191, 193 (1980). The weakness of that strategy was the uncertainty it created and also the attendant cost of the litigation.

As the dissatisfaction with reliance solely upon judicial interpretation for the definition of the term "family" became increasingly apparent, the drafters of those ordinances attempted to legislatively set forth a more precise meaning within the ordinances. One of the early formulations used to define "family" within the terms of those provisions was that of a "single housekeeping unit." ³ See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). The ordinance in effect, in the instant Township prior to the 1978 amendment, used the "housekeeping unit" formulation. Regrettably, this attempt to define "family" did not supply the degree of clarity it was intended to provide. A review of the cases throughout the country indicates that the change served only to focus the litigation upon a determination as to the meaning of a "housekeeping unit." In those cases interpreting zoning ordinances wherein the "family" limitation had been defined as a "single housekeeping unit," many extended family groups were deemed to fall within that category. The use of this test was viewed as extending beyond the occupancy by a one-family unit to a determination as to whether it was a one-housekeeping unit. See Neptune Park Ass'n v. Steinberg, 138 Conn. 357, 84 A.2d 687 (1951). The focus was on whether the unit functioned as a family unit, rather than on the respective relationships that existed between the members of the unit. See, e.g., City of Syracuse v. Snow, 123 Misc. 568, 205 N.Y.S. 785 (Sup.Ct.1924) ("single housekeeping unit" held not to exclude a college sorority); Robertson v. Western Baptist Hospital, 267 S.W.2d 395 (Ct. of Appeals of Ky.1954) (use of a residence as a home for about 20 nurses constituted a permitted use under a "single housekeeping unit" test); Boston-Edison Protective Ass'n v. Paulist Fathers, 306 Mich. 253, 10 N.W.2d 847 (1943), 148 A.L.R. 364 (approved the use of a dwelling house in a highly restricted district as a residence for Roman Catholic priests).

From these cases it is evident that the "single housekeeping unit" formulation was not generally construed as limiting the use to a group of persons related by blood or marriage. Nor did the fact that some fee is charged...