Children's Aid Soc. v. Zoning Bd. of Adjustment
| Decision Date | 09 July 1979 |
| Citation | 44 Pa.Cmwlth. 123,402 A.2d 1162 |
| Parties | CHILDREN'S AID SOCIETY v. ZONING BOARD OF ADJUSTMENT. Appeal of CITY OF PHILADELPHIA. |
| Court | Pennsylvania Commonwealth Court |
Argued April 5, 1979.
Sheldon L. Albert, City Sol., Gayle Smith Asst. City Sol., Barbara Axelrod, City of Philadelphia Philadelphia, for appellant.
Linda S. Martin, Peter M. Matton, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, for appellee.
Before BLATT, DiSALLE and MacPHAIL, JJ.
The City of Philadelphia (city) appeals here from an order of the Court of Common Pleas of Philadelphia County which reversed a decision of the Zoning Board of Adjustment (Board). The Board had denied a use certificate to the appellees, the Children's Aid Society of Pennsylvania (Society).
The Society seeks to use a detached dwelling at 543 East Durham Street Philadelphia as a residence for a family with six foster children. The property is located in an R-4 residential district where a single-family dwelling is a permitted use, but, because the individuals who will reside in the house do not constitute a family as that term is defined by applicable zoning ordinance, [1] the Society has asked for a use certificate as for a charitable institution. It applied for the certificate to the Philadelphia Department of Licenses and Inspections, where the matter was referred to the Zoning Board of Adjustment. A public hearing was held, and testimony was received from the Society and from several neighbors. The Board denied the application, finding that the Society had not met its burden of proof under Section 14-1803(1)(d) of the Philadelphia Zoning Ordinance. [2] The Board held that the grant of the certificate requested would overcrowd the land or create an undue concentration of population, would increase the danger of fire or otherwise endanger the public safety, would adversely affect or unduly burden public services and would adversely affect the public health, safety or general welfare and would not be in harmony with the spirit and purpose of the ordinance. The Society appealed this determination to the Court of Common Pleas, which, without taking additional evidence, sustained the appeal. The Court held that the Board had erred as a matter of law in concluding that the Society had failed to meet its burden of proof under the zoning ordinance. This appeal followed.
Our scope of review in a zoning case where the lower court takes no additional evidence is limited to a determination as to whether or not the zoning board abused its discretion or committed an error of law. Meyers v. Board of Supervisors, 38 Pa.Cmwlth. 578, 394 A.2d 669 (1978).
The certificate which the Society seeks here is in the nature of a special exception providing for a use permitted by the zoning ordinance. It is generally granted unless, under the facts of the specific application, such use would prove injurious to the public interest as set forth in the ordinance. Conversely, the reason for refusal to permit a proposed use must bear a substantial relationship to the standards provided by the ordinance. Archbishop O'Hara's Appeal, 389 Pa. 35, 131 A.2d 587 (1957).
The Society argues that the record clearly indicates that the Society's proposed use of the property is virtually identical to that which would exist due to the permissible, normal use of the premises by a family with six children. It contends that the evidence plainly shows that the proposed use would have no greater effect upon the public health, safety, and welfare and other conditions identified in the zoning ordinance than that which would occur if a family with six children occupied the premises. [3] The Society claims in addition that it has established that the proposed use will not substantially increase traffic congestion; that the risk of fire and the dangers to the public safety will not be increased because the house will be in full compliance with the fire and safety code of the city; and that the schools and other public facilities in the area will easily accommodate the foster family just as they would any other family of six children. Our examination of the record leads us to agree.
The record reveals that those persons opposed to the grant of the certificate based their opposition on three basic grounds (1) that the proposed use of the property would detract from the residential nature of the neighborhood and cause property values to decrease, (2) that the proposed use would result in an increase in traffic congestion and (3) that there were more suitable houses in the area which the Society could use. Such reasons for denial, however, are not legally sufficient. The uncontroverted evidence here shows that the house will be used as a residence for a family...
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