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PETERS TOWNSHIP v. EDWARD DOTTER ET AL. EDWARD DOTTER AND BARBARA J. DOTTER (12/07/83)

decided: December 7, 1983.

PETERS TOWNSHIP
v.
EDWARD DOTTER ET AL. EDWARD DOTTER AND BARBARA J. DOTTER, HIS WIFE, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Washington County in cases of Peters Township v. Edward Dotter and Barbara J. Dotter, his wife and Edward Dotter and Barbara J. Dotter, his wife v. Peters Township Hearing Zoning Board, Nos. 7799 and 63 February 1981, dated September 10, 1982.

COUNSEL

Thomas A. Berret, with him James R. Mall, Meyer, Unkovic & Scott, for appellants.

William A. Johnson, Wilson, Johnson & Sweat, for appellee.

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

Author: Blatt

[ 79 Pa. Commw. Page 3]

This case comes here on appeal from a decision of the Court of Common Pleas of Washington County, which held that the appellants were in violation of a township Zoning Ordinance and Building Code.

The appellants own property in the township zoned R-1 Residential-Agricultural, on which they have erected and operated a small "personal care boarding home", housing eight elderly residents along with a full-time resident manager, his wife and their two children.*fn1 After receiving an adverse decision*fn2 from a township zoning officer, they appealed to the Township Zoning Board (Board) and sought a determination that their operation was permissible under either § 201.14 or § 803.41 of the Ordinance as a special exception, or that it should be allowed as a variance pursuant to § 803.3 of the Ordinance, or, alternatively, that the Ordinance unconstitutionally excludes personal care boarding homes altogether. The Board denied all of the claims, and an appeal was then taken to the court of common pleas. At approximately the same time, the Board filed an equitable action to force the closing of the facility on the basis that its continued operation threatened the health, safety and welfare of the township residents, and a Township Code Enforcement

[ 79 Pa. Commw. Page 4]

Officer ordered the premises vacated immediately. All actions were consolidated by the court of common pleas, which took no new evidence, denied the special exceptions, the variance, and the constitutional challenge, and ordered that the boarders be removed from the premises. Exceptions were then filed which the court, en banc, dismissed, and the instant appeal ensued.

Where, as here, no new evidence is taken by the trial court, our scope of review is limited to determining whether or not the findings are supported by substantial evidence and whether or not an error of law or abuse of discretion was committed. Hanlen v. State College Zoning Hearing Board, 60 Pa. Commonwealth Ct. 190, 430 A.2d 1236 (1981).

The appellants claim that they should be granted a special exception pursuant to Section 201.14 of the Township Zoning Ordinance, which provides as follows:

Uses by Special Exception

The following uses may be permitted as a Special Exception by the Zoning Hearing Board in accordance with the procedure set forth in this Ordinance:

Semi-public community facilities, i.e., churches, private or parochial schools, colleges, nursing or convalescent homes (subject to Section 508 of this Ordinance), hospitals;

Section 106.2 of the ordinance, however, more explicitly defines such facilities as "Churches, Sunday schools, parsonages and other related functions, colleges, hospitals and other institutions of an educational, religious, charitable or philanthropic nature." And, in light of the fact that the ...


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