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APPEAL FRANCIS M. FLEMING AND VIRGINIA M. FLEMING (08/08/79)

decided: August 8, 1979.

IN RE: APPEAL OF FRANCIS M. FLEMING AND VIRGINIA M. FLEMING, HIS WIFE, AND HEDWIG HOUSE, INC. FROM THE DECISION OF THE ZONING HEARING BOARD OF THE BOROUGH OF NORRISTOWN. BOROUGH OF NORRISTOWN, APPELLANT


Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In Re: Appeal of Francis M. Fleming and Virginia M. Fleming, his wife, and Hedwig House, Inc., from the Decision of the Zoning Hearing Board of the Borough of Norristown, No. 77-12629.

COUNSEL

Joseph J. Hylan, with him Paul C. Vangrossi, and Vangrossi & Recchuiti, for appellant.

Cassin W. Craig, with him Wisler, Pearlstine, Talone, Craig & Garrity, for appellees.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 44 Pa. Commw. Page 642]

Francis and Virginia Fleming and Hedwig House, Inc., a non-profit corporation, were denied a variance and/or special exception by the Zoning Hearing Board of Norristown, Montgomery County. Their purpose was to operate the premises as a "recreational and community center" for discharged mental patients in a reacclimation to normal social community life project.*fn1 The Board found insufficient evidence to support

[ 44 Pa. Commw. Page 643]

    the application; and the Flemings, as legal titleholders, and Hedwig House, as equitable titleholders to the premises, appealed. Without taking additional evidence, the Court of Common Pleas held that the Board erred in law.

With no additional evidence of record taken by the court below, we must limit our review to a determination of whether the Board abused its discretion or erred as a matter of law. Seidita v. Board of Zoning Appeals of the City of Scranton, 41 Pa. Commonwealth Ct. 340, 399 A.2d 156 (1979). In special exception cases, the applicant shoulders the initial burden of proving that the zoning ordinance permits the proposed use; thereafter, the burden shifts to protestant(s) to prove that, if allowed, the use would be detrimental to the public health, safely and welfare. Borger v. Towamensing Township Zoning Board of Adjustment, 39 Pa. Commonwealth Ct. 361, 395 A.2d 658 (1978).

Consider the case's following factual posture. This property is in an R-2 residential district. The neighborhood includes single-family residences, apartments, doctors' and dentists' offices, and commercial establishments. During the past 25 years, it has served as a funeral home which is, incidentally, a non-conforming use.

Hedwig House, the record discloses, is to operate as a "half-way house" to assist in resocializing former institutionalized mental patients by teaching and training them in certain elementary job skills in an effort to improve their emotional and psychological stability so that their transition to normal behavior and its inherent difficulties would be orderly and without deleterious incident. For these purposes, it would operate on a daily basis, 9 o'clock A.M. to 5 o'clock P.M., Monday through Friday, with a potential four-hour period on weekends.

[ 44 Pa. Commw. Page 644]

Protestants, neighboring property owners demanding strict ordinance compliance, relied on the established character of the area and presented evidence suggesting an increase in the numbers of highly visible aberrated persons in the community which, in addition to their ...


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