Appeal from the Order of the Court of Common Pleas of Northampton County in the case of Children's Home of Easton v. City of Easton, No. 1979-2346.
Joseph M. Reibman, Reibman and Reibman, for appellants.
Herbert V. Giobbi, with him Robert A. Freedberg, Assistant City Solicitor, for appellee.
Judges Wilkinson, Jr. Mencer and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Wilkinson, Jr. dissents on the opinion of Judge Alfred T. Williams, Jr., President Judge of the Court of Common Pleas of Northampton County.
[ 53 Pa. Commw. Page 217]
Children's Home of Easton (Appellant) filed a petition for declaratory judgment before the Court of Common Pleas of Northampton County seeking a determination of the constitutionality of Section 1301.67 of the Codified Ordinances of the City of Easton (1965).
Appellant proposed to operate a foster home consisting of three foster children, the foster parents, and their two natural children in an area of the City of Easton (Easton) zoned Residential-Medium Density. On the basis of an opinion from its solicitor, Easton rejected the proposal because the use of the premises would violate Easton's definition of "family" in the ordinance.*fn1 Thereupon, Appellant filed its petition for declaratory judgment challenging the constitutional validity of the restrictive definition of "family" contained in Section 1301.67 as violative of the Due Process and Equal Protection Clauses of the United States and Pennsylvania Constitutions. Easton filed an answer to the petition following which a hearing was held. Upon receipt of briefs from counsel, the trial court declared the ordinance constitutional holding that the decision of the United States Supreme Court
[ 53 Pa. Commw. Page 218]
in Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) was controlling.
In his opinion in support of his order, the learned trial judge noted that while some other states have held similar ordinances unconstitutional by distinguishing Belle Terre on its facts or by applying their own state constitutions,*fn2 Pennsylvania has not done so. Understandably, the trial court, confronted with two ordinances almost identical in their terms*fn3 and a decision of our nation's highest court upholding the constitutionality of one of them, declined to follow the decisions of the other jurisdictions.
The trial court was also cognizant of a later United States Supreme Court case, Moore v. City of East Cleveland, Ohio, 431 U.S. 494 (1977), which held as unconstitutional a zoning ordinance which too restrictively defined a "family" of related persons.*fn4 The trial
[ 53 Pa. Commw. Page 219]
court observed that the Supreme Court in Moore distinguished its opinion in Belle Terre by pointing out that Belle Terre's ordinance affected only unrelated individuals whereas the City of East Cleveland's ordinance regulated the ...