Appeal from the order of the Court of Common Pleas of Lackawanna County in case of Allied Services for the Handicapped, Inc. v. Zoning and Hearing Board of the City of Scranton, No. 81 Civil, 406.
John R. O'Brien, with him Joseph A. O'Brien and Kenneth A. Rhodes, Oliver, Price and Rhodes, for appellant.
Albert B. MacKarey, with him Peter Tayoune, Assistant City Solicitor, John J. Brazil, Assistant City Solicitor, and Edmund J. Scacchitti, City Solicitor, for appellee.
Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 73 Pa. Commw. Page 559]
This zoning case comes before us on appeal from an order of the Court of Common Pleas of Lackawanna County. The court's order affirmed a decision
[ 73 Pa. Commw. Page 560]
of the Zoning and Hearing Board of the City of Scranton (appellee) denying appellant Allied Services for the Handicapped, Inc. ("Allied Services") a permit to construct a group home.
In August of 1980, Allied Services became the owner of a parcel of land located within an R-1A zoning district, wherein single family detached dwellings are a permitted use. Subsequent to the purchase of the property, appellant filed an application for a building and zoning permit to construct a group home for five (5) unrelated individuals who had undergone treatment for various forms of emotional disturbance. The Zoning Officer of the City of Scranton rejected the application, concluding that appellant's proposed use of the subject property did not qualify as a permitted use as a single family residence. In addition, the Zoning Officer determined that Allied Services' application was, in effect, a request for a special exception to use the premises as a mental health facility, and thus a matter for consideration by the City's Zoning and Hearing Board (Board).*fn1
Allied Services filed a timely appeal to the Board from the Zoning Officer's denial of its application. Following a hearing, the Board rendered a decision dismissing the appeal, and denying what it characterized as appellant's "petition for a 'Special Use'," or request for a special exception. The Court of Common Pleas of Lackawanna County, without taking additional evidence, affirmed the Board's decision by order dated May 22, 1981.
[ 73 Pa. Commw. Page 561]
On appeal to this Court, appellant maintains that the residents of the proposed dwelling constitute a "family" as defined by the Zoning Ordinance of the City of Scranton, and that, therefore, its group home qualifies as a permitted use as a single family dwelling. In the alternative, Allied Services contends that, even if the proposed group home is not a permitted use, it is nonetheless entitled to the requested building and zoning permit by special exception.
Where, as here, the court below has taken no additional evidence, our scope of review is directed toward the decision of the Board, and is limited to a determination of whether the Board abused its discretion or committed an error of law, and whether each necessary finding of fact is supported by substantial evidence. Appeal of McGinnis, 68 Pa. Commonwealth Ct. 57, 448 A.2d 108 ...