Schwartz v. Phila. Zoning Bd. of Adjustment

Decision Date24 September 2015
Docket NumberNo. 1334 C.D. 2014,1334 C.D. 2014
Citation126 A.3d 1032
Parties Sheldon SCHWARTZ and Kenneth L. Baritz, Esquire v. PHILADELPHIA ZONING BOARD OF ADJUSTMENT. Sheldon Schwartz and Kenneth L. Baritz, Esquire v. Philadelphia Zoning Board of Adjustment. Sheldon Schwartz and Kenneth L. Baritz, Esquire v. Philadelphia Zoning Board of Adjustment. Paul Abeln v. Philadelphia Zoning Board of Adjustment. Appeal of: Paul Abeln, Sheldon Schwartz, Rachel Lisitsa, Stephanie Burns, Elizabeth Clanaman and Jessica Nabitovsky.
CourtPennsylvania Commonwealth Court

Louis I. Lipsky, Philadelphia, for appellants.

Jared N. Klein, Philadelphia, for appellee Drexel University.

Andrew S. Ross, Chief Deputy City Solicitor, Philadelphia, for appellee City of Philadelphia.



Sheldon Schwartz and Paul Abeln (collectively Appellants)1 appeal the July 1, 2014 order of the Court of Common Pleas of Philadelphia County (Trial Court) holding that the definition of "family" contained in Section 14–102(49) of the former Philadelphia Zoning Code (Code) is constitutional on its face and as applied to Appellants. We affirm.

This appeal arises out of two matters that proceeded separately before the City of Philadelphia Zoning Board of Adjustment (ZBA). Both matters began when the Department of Licenses and Inspections (L&I) issued citations to Appellants. Appellants each own and are landlords for properties zoned for single-family and two-family residential use; Appellants' properties each have use permits for single-family residential use. The properties are located in the Powelton Village section of the City of Philadelphia near the Drexel University campus. Appellants were each cited for violating a section of the Code2 that prohibits an unauthorized change in the zoned use or occupancy of a property based on the presence of more than three unrelated individuals residing in a property zoned for single-family residential use. The Code defines a "family" as:

A person living independently or a group of persons living as a single household unit using housekeeping facilities in common, but not to include more than three persons unrelated by blood, marriage or adoption.

Code § 14–102(49).3 Appellants each rented their properties to groups of students attending Drexel University that contained more than three persons unrelated by blood, marriage or adoption.

Appellants' challenges to the citations followed different procedural paths. Mr. Schwartz appealed to the L&I Review Board and the Board transferred his appeal to the ZBA. The ZBA held a hearing and denied the appeal. Mr. Schwartz then appealed the denial to the Trial Court. Mr. Abeln appealed directly to the ZBA, which denied the appeal following a hearing. Mr. Abeln then appealed the denial to the Trial Court and the Trial Court remanded to the ZBA to develop a full record. The ZBA held three hearings and issued a March 18, 2014 decision containing findings of fact and conclusions of law that denied the appeal.4 Mr. Abeln appealed the denial to the Trial Court.

On August 2, 2013, the Trial Court consolidated the appeals. The legal issues involved in the appeals are identical. The Trial Court did not take additional evidence and both Mr. Schwartz and Mr. Abeln proceeded in reliance on the record developed in the Abeln proceedings before the ZBA for the property located at 317 N. 34th Street. The Trial Court issued a thorough and well-reasoned opinion on October 30, 2014 affirming the ZBA.

Before this Court, Appellants argue that: (i) the Code provision defining "family" should be reviewed with strict scrutiny to determine its constitutionality; (ii) the Code provision defining "family" is facially unconstitutional under both a strict scrutiny and a rational basis analysis; and (iii) the Trial Court erred in concluding that the evidence did not demonstrate that the use of the property by more than three unrelated persons was functionally equivalent to a single-family use of the property.5

The United States Supreme Court held in Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), that the enactment of zoning ordinances is a constitutionally permissible exercise of the police power and, as such, an ordinance will be held unconstitutional only where the ordinance is clearly arbitrary and unreasonable, with no substantial relation to the public health, safety, morals, or general welfare. Id. at 386, 395, 47 S.Ct. 114. The Court cautioned reviewing courts that "[i]f the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control." Id. at 388, 47 S.Ct. 114. In addressing the constitutionality of zoning ordinances under the United States Constitution, the United States Supreme Court echoed the conclusion previously reached by the Pennsylvania Supreme Court when addressing the constitutionality of zoning ordinances under the Pennsylvania Constitution; following Euclid, the federal courts and the courts of this Commonwealth have scrutinized zoning ordinances to determine whether the ordinance had a rational basis and if the ordinance was not clearly arbitrary, the courts have deferred to legislative judgment and upheld the ordinance.6 Best v. Zoning Board of Adjustment of the City of Pittsburgh,

393 Pa. 106, 141 A.2d 606 (1958) ; Appeal of Ward, 289 Pa. 458, 137 A. 630 (1927) ; Appeal of White, 287 Pa. 259, 134 A. 409 (1926).

The United States Supreme Court was asked to revisit the level of scrutiny applied to the review of zoning ordinances in Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), where an ordinance that permitted single-family residences and excluded all other residential uses was challenged on the basis that it violated the right to equal protection under the law and the rights of association, travel, and privacy guaranteed by the United States Constitution. Id. at 3, 8, 94 S.Ct. 1536. The ordinance at issue in Belle Terre defined "family" as: "(o )ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit through [sic] not related by blood, adoption, or marriage shall be deemed to constitute a family." Id. at 2, 94 S.Ct. 1536. After the owner of a home subject to the ordinance was cited by the village for leasing the property to a group of six unrelated college students, the owner and three tenants brought suit under 42 U.S.C. § 1983 seeking an injunction and a declaration that the ordinance was unconstitutional. Belle Terre, 416 U.S. at 3, 94 S.Ct. 1536.

The Court held in Belle Terre that the ordinance did not burden fundamental rights and instead was economic and social legislation that bore a rational relationship to a permissible state objective. Id. at 8, 94 S.Ct. 1536. The Court noted that when a point must be fixed to mark the change from one category to another, the legislature must act reasonably but cannot be expected to act with absolute precision.7 Id. at 8 n. 5, 94 S.Ct. 1536. The Court also concluded that the concept of public welfare was broad and inclusive; rather than limited to preventing blight, disease, and crime, the police power included the authority to design and create different kinds of spaces within a community, stating:

A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one. The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.

Id. at 9, 94 S.Ct. 1536 (internal citations omitted). The Pennsylvania Supreme Court has likewise interpreted the police power as granting the legislature broad authority to enact zoning ordinances that seek to serve the public need by supporting different types of residential housing, providing for aesthetically pleasing and open spaces, and establishing well-balanced and multifarious land uses through large-scale planning within municipalities. Best, 141 A.2d at 611–612 ; see also Albert v. Zoning Hearing Board of North Abington Township, 578 Pa. 439, 854 A.2d 401, 410 (2004) ("one of the many benefits of single-family zoning districts is that they create residential neighborhoods in which the residents may develop a sense of community and a shared commitment to the common good of that community. Without some level of stability and permanence in the composition of the groups residing in such residential districts, this goal is necessarily subverted").

Appellants do not dispute the primacy of Euclid in any discussion of the constitutionality of a zoning ordinance or the majority holding in Belle Terre and its adoption by the courts of this Commonwealth. See, e.g., Appeal of Miller, 511 Pa. 631, 515 A.2d 904, 909 (1986) ; Owens v. Zoning Hearing Board of Borough of Norristown, 79 Pa.Cmwlth. 229, 468 A.2d 1195, 1197 (1983) (ordinance preventing seven adults unrelated by blood or marriage from residing in single-family and two-family residential district is a legitimate exercise of the police power); Appeal of McGinnis, 68 Pa.Cmwlth. 57, 448 A.2d 108, 112 (1982) (ordinance prohibiting more than five unrelated people from cohabitating in single-family residential district is a permissible exercise of the police power); see also Farley v. Zoning Hearing Board of Lower Merion Township, 161 Pa.Cmwlth. 229, 636 A.2d 1232 (1994) ; Lantos v. Zoning Hearing Board of Haverford Township, 153 Pa.Cmwlth. 591, 621 A.2d 1208, 1209 (1993).8 Instead, Appellants argue...

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