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decided: July 24, 1980.


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.

Author: Macphail

[ 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 occupation of housing by slicing deeply into the family itself.

Finally, the trial court here observed that in Lehigh County the Court of Common Pleas upheld the denial of a conversion of a premises by a zoning hearing board where the applicants were unrelated and the municipality's ordinance had limited conversions to "family units."*fn5 The ordinance in question there defined "family" as "a collective body of two or more persons doing their own cooking and living together as a separate housekeeping unit in relationship based upon birth, marriage, adoption or other domestic bond." Pointing to Belle Terre, that trial court held that such a definition of "family" was not unconstitutionally restrictive.

Appellants here would distinguish Belle Terre or, in the alternative, argue that the decision in Belle Terre lends support to its position that a foster family cannot be excluded as a permissible use under the instant ordinance.

In the brief uncontradicted testimony presented to the trial court, the foster family proposed was described in all respects as akin to a "natural" family. There would be no professional counselors involved,

[ 53 Pa. Commw. Page 220]

    nor any "days off" for the foster parents.*fn6 The "hope" would be that the foster children would remain in the home until graduation from high school. The foster parents would be expected to provide all the services that would have been expected from natural parents. They would serve in a "nurturing, supervisory and caring role." In sum, the foster family in this instance would be the functional equivalent of a biologically related family.

Contrary to the factual situation presented to the United States Supreme Court in Belle Terre, where six unrelated college students chose to live together for a temporary period of time as a matter of convenience, here we are concerned with a functional family unit which would promote the very values the United States Supreme Court held in Belle Terre to be worthy of preservation:

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. . . . The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people. (Emphasis added.)

Village of Belle Terre v. Boraas, supra at 9.

Recently, our own Court had occasion to consider whether a use certificate should be granted for a dwelling in Philadelphia to be used as a residence for

[ 53 Pa. Commw. Page 221]

    a family with six foster children. Children's Aid Society v. Zoning Board of Adjustment, 44 Pa. Commonwealth Ct. 123, 402 A.2d 1162 (1979). In the Philadelphia ordinance, "family" was defined 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." (Emphasis added.) Id. at 124, 402 A.2d at 1163. We noted 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 natural or adopted children occupied the premises. We affirmed the grant of the certificate.

Our Supreme Court has held in Glorioso Appeal, 413 Pa. 194, 198, 196 A.2d 668, 671 (1964), that

One who challenges the constitutionality of a zoning ordinance has no light burden and it is settled that before a zoning ordinance can be declared unconstitutional it must at least be shown that its provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare. If the validity of the legislative judgment is fairly debatable, the legislative judgment must be allowed to control: . . . . (Citations omitted.)

[ 53 Pa. Commw. Page 222]

Here, the only state interest asserted in the ordinance to be attained by the provision now in dispute is population density control. While such a purpose has been recognized as a legitimate state interest in zoning matters, Campbell v. Ughes, 7 Pa. Commonwealth Ct. 98, 298 A.2d 690 (1972), mere logic demonstrates that whether there are three children in a foster home or three children in a home related by blood or adoption to their parents the numerical result is the same. See Page 222} Children's Aid Society v. Zoning Board of Adjustment, supra. On this issue there can be no "fair debate." Nowhere in the record of this case is there any evidence whatever that there is any relationship much less a substantial relationship between foster homes and the public health, safety, morals or general welfare of other persons residing in the same residential district. Since no other legitimate state interest has been asserted, we conclude that the regulation is clearly arbitrary and unreasonable.

To summarize, while the decision in Belle Terre on its face would appear to control the matter now before us, we are of the opinion that the factual differences between a foster family as described in the record of this case and six unrelated college students residing temporarily in a residential dwelling are so vast that a different result is compelled. Furthermore, while judgment will be entered in favor of the plaintiff (Appellant, here) in this declaratory judgment proceeding, it must be observed that we have held that the disputed provision is unconstitutional as to that litigant only.


And Now, this 24th day of July, 1980, the decree of the Court of Common Pleas of Northampton County, dated April 16, 1979, is set aside and the case is remanded for the entry of judgment in favor of Children's Home of Easton.

Judge Wilkinson, Jr. dissents on the opinion of Judge Alfred T. Williams, Jr., President Judge of the Court of Common Pleas of Northampton County.



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