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THREE RIVERS YOUTH v. ZONING BOARD ADJUSTMENT FOR CITY PITTSBURGH (12/15/81)

decided: December 15, 1981.

THREE RIVERS YOUTH, A NON-PROFIT CORPORATION, APPELLANT
v.
ZONING BOARD OF ADJUSTMENT FOR THE CITY OF PITTSBURGH, APPELLEE



Appeals from the Order of the Court of Common Pleas of Allegheny County in the cases of Three Rivers Youth v. Zoning Board of Adjustment of the City of Pittsburgh, Nos. S.A. 358 of 1977, S.A. 359 of 1977 and S.A. 360 of 1977.

COUNSEL

James F. Malone, III, Dickie, McCamey & Chilcote, for appellant.

D. R. Pellegrini, Deputy City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellee.

Judges Williams, Jr., MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 63 Pa. Commw. Page 185]

Three Rivers Youth, Inc. (Three Rivers) has appealed to this Court from a decision of the Court of Common Pleas of Allegheny County which affirmed the Zoning Board of Adjustment of the City of Pittsburgh's (Zoning Board) denial of Three Rivers' protest appeals from the revocation by the Superintendent of the Bureau of Building Inspection of occupancy permits for three properties being used as group homes for children by Three Rivers.

While three separate properties are involved in this appeal, the facts involved in each are basically the same. Three Rivers purchased each of these homes with the open intention of using them as group homes. Two of the homes were in an R2 residential district, with the third in an R3 district. For at least two of the properties, the Agreement of Sale was specifically conditioned upon Three Rivers being able to obtain occupancy permits for their use. Upon the advice of the Administrator of the Code Enforcement Division for the City of Pittsburgh, with full disclosure of their intent to use the properties as group homes, Three Rivers filed occupancy permits in each case for a two family dwelling to be occupied by three unrelated people

[ 63 Pa. Commw. Page 186]

    and two lodgers.*fn1 These permits were granted*fn2 and Three Rivers entered into operation of the group homes. Approximately one year after the last permit was issued, and over seven years after the first permit was issued, the occupancy permits for all three properties were revoked on the grounds that these group homes were an institutional use and therefore could not operate under a two family dwelling occupancy permit.*fn3

Three Rivers appealed to the Zoning Board, raising three challenges to the revocations: 1) that the city was estopped, under a theory of vested rights, from revoking a permit issued after full disclosure of the facts; 2) that the group homes were not an institutional use, but were actually a "family" as defined by the ordinance; and 3) that the group homes operated like a biological family and therefore could not be excluded by a restrictive definition of the term "family." The Zoning Board refused to consider the first and third arguments and based its affirmance upon a finding that the group homes were an institutional use. Three Rivers then perfected an appeal to the Court of Common Pleas which appointed a referee to take such added testimony as needed and to submit to the Court proposed Findings of Fact and Conclusions of Law. By agreement of counsel, the referee took no further testimony and based his proposed decision upon the record below and arguments of the parties. The referee

[ 63 Pa. Commw. Page 187]

    proposed overruling the Zoning Board for the reason that Three Rivers had acquired vested rights to its use of the properties. The Court of Common Pleas chose not to adopt the referee's proposal, holding that Three Rivers had no vested rights to group home usage and that since the group homes were an institutional use and not a family, then the permits were properly revoked. Three Rivers has again raised all three challenges before this Court. Since we believe Three Rivers has acquired vested rights to group homes use, we need not address the other arguments.

The doctrine of vested rights has assumed a position of increasing importance in Pennsylvania zoning law. Ryan in his ...


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