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OLLIE OWENS v. ZONING HEARING BOARD BOROUGH NORRISTOWN (12/28/83)

decided: December 28, 1983.

OLLIE OWENS, APPELLANT
v.
ZONING HEARING BOARD OF THE BOROUGH OF NORRISTOWN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Ollie Owens v. The Zoning Hearing Board of the Borough of Norristown, No. 81-12277.

COUNSEL

Charles J. King, Jr., Rogers, King & Cole, for appellant.

Roderick D. Mathewson, for appellee.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 79 Pa. Commw. Page 230]

Ollie Owens (applicant or owner) appeals from an order of the Court of Common Pleas of Montgomery County affirming a decision of the Zoning Hearing Board of the Borough of Norristown (Board) which denied her permission to use a former single family dwelling as a boarding house.

Applicant owns a three story, five-bedroom building which is used as a boarding home by seven unrelated, adult boarders who participate in Norristown State Hospital's day treatment program. The boarders pay rent for which they receive meals, lodging and use of laundry facilities, but neither personal care nor medical services is provided by the absentee owner or her operator. Significantly, the boarding house is operated for profit and each resident is required to sign a contract with the operator, valid for a thirty day period and renewable thereafter, prior to lodging there.

The boarding house is situate in a residential neighborhood, within the zoned R-2 Single and Two Family Residence District, predominately comprising single family dwellings. Although each family dwelling in the R-2 zone is permitted to have, as an accessory use, up to three rental rooms for roomers or tourists, boarding houses*fn1 are excluded by the terms of the Ordinance. The Ordinance, however, permits boarding houses in the Borough's central business district by special exception.*fn2

[ 79 Pa. Commw. Page 231]

Before the Board, the applicant sought a special exception or variance to use the property as a residence for not more than eight unrelated persons. The owner also argued that the Ordinance is unconstitutional in that it excludes boarding house uses, not only in residential districts zoned R-2, but throughout the Borough. The Board denied the owner's application and the common pleas court, without taking additional evidence, sustained the Board's order. This appeal followed.*fn3

The owner chiefly contends that the Ordinance irrationally and therefore unconstitutionally distinguishes between traditional families (i.e., whose members are related by birth and marriage) which are permitted to reside, and groups of unrelated adults which are prohibited from residing, in dwellings located in the R-2 residential district.

We initially note that zoning classifications are within the legislative domain and that

[o]ne who challenges the constitutionality of a zoning ordinance has no light burden and it is settled that before a zoning ordinance can be ...


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