Philadelphia Center for Developmental Services, Inc. v. Zoning Hearing Bd. of Plymouth Tp.

• Decision Date: 30 May 1985
• Citation: 89 Pa.Cmwlth. 591,492 A.2d 1191
• Parties: The PHILADELPHIA CENTER FOR DEVELOPMENTAL SERVICES, INC. v. The ZONING HEARING BOARD OF PLYMOUTH TOWNSHIP. (Three Cases) Appeal of PLYMOUTH TOWNSHIP. (Three Cases)
• Court: Pennsylvania Commonwealth Court

Page 1191

492 A.2d 1191

89 Pa.Cmwlth. 591

The PHILADELPHIA CENTER FOR DEVELOPMENTAL SERVICES, INC. v. The ZONING HEARING BOARD OF PLYMOUTH TOWNSHIP. (Three Cases) Appeal of PLYMOUTH TOWNSHIP. (Three Cases)

Commonwealth Court of Pennsylvania.

Argued April 9, 1985.

Decided May 30, 1985.

Arthur Lefkoe, Wisler, Pearlstine, Talone, Craig & Garrity, Norristown, for appellant.

Edmond A. Tiryak, Maguigan, Shapiro, Engle & Tiryak, Philadelphia, for Philadel. Center for Develop. Services, Inc.

Thomas K. Gilhool, Judith Gran, Frank J. Laski, Philadelphia, for amicus curiae Pa. Assoc. for Retarded Citizens.

Herbert F. Rubenstein, Broad Axe, for Plymouth Township Zoning hearing board.

Before CRAIG, COLINS, JJ., and JACOB KALISH, Senior Judge.

CRAIG, Judge.

Plymouth Township appeals from an order of the Montgomery County Common Pleas Court which reversed a ruling of the Plymouth Township Zoning Hearing Board which had refused zoning approval as to three existing residential, nonprofit community living arrangements (CLA) ¹ for mentally retarded citizens. The township contends that the three CLA's, each housing three nonrelated, mentally retarded citizens in a supervised, residential home atmosphere designed to assist these persons to adjust to mainstream society, are actually mini-institutions and accordingly cannot be considered to be single-family residences because of the township definition of "family."

Appellee Philadelphia Center for Developmental Services (Center) is a nonprofit corporation which operates the three CLA's questioned here. Each CLA is located in a B Residential District, where the only residential use allowed is a single-family detached dwelling. Two full-time day and one overnight staff member assist the residents with cooking and housekeeping chores. The residents perform other daily living tasks and attend workshops during the day to help them develop the skills needed to function independently. Center supervisory personnel visit each CLA several times weekly.

Before the township challenged the arrangement, the Center had operated CLA's in Plymouth Township for several years. In fall 1982, the township governing body required that all CLA's located in the township apply for a special exception under the zoning ordinance in order to continue operation.

The Center filed applications for special exceptions, under protest, and argued that its CLA's already complied with the township zoning ordinance and therefore did not need special exception approval.

The board conducted public hearings on the applications and denied the Center's petition. In its opinion and order, the board concluded that the CLA's did not comply with the zoning ordinance definition of "family" and, therefore, could not operate in a single-family zoned district. The board also concluded that the Center had not established that, in the alternative, its CLA's complied with section 400.C.2 of the zoning ordinance which permits the operation of sanitariums, convalescent homes and hospitals as special exceptions in residential districts. Upon appeal to the common pleas court, Judge Brody, with a comprehensive opinion, reversed.

Our scope of review, where the reviewing common pleas court has taken no additional evidence, is limited to determining whether or not the zoning board abused its discretion or committed an error of law. Children's Aid Society v. Zoning Board of Adjustment, 44 Pa. Commonwealth 123, 402 A.2d 1162 (1979). Because we conclude that the board has incorrectly interpreted its zoning ordinance, we must affirm Judge Brody's sound decision.

The Plymouth Township Zoning Ordinance permits single-family dwellings in its residentially zoned districts. Section 200 of the ordinance defines "family" as

[a]ny number of individuals living together as a single, nonprofit housekeeping unit and doing their cooking on the premises, when said individuals are related by blood, marriage or adoption, including any number of foster children under the care of same; or no more than five (5) unrelated individuals living together as a single, nonprofit housekeeping unit and doing their cooking on the premises.

Section 200 of the Plymouth Township Code, Appendix B-Zoning (emphasis added).

The township questions "whether the use of the subject properties as a residence for three mentally retarded individuals in a Community Living Arrangement program operated by appellees with a large staff, specialists and therapists and without live-in houseparents is a single housekeeping unit constituting a 'Family' under a single family dwelling ordinance provision in a residential district."

There is nothing in the ordinance definition which bars the three CLA's here, because each CLA houses only three nonrelated residents who live together "as a single, nonprofit housekeeping...