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APPEAL IRENE C. MILLER FROM MIDDLETOWN TOWNSHIP ZONING BOARD ADJUSTMENT. IRENE C. MILLER (10/09/84)

decided: October 9, 1984.

IN RE: APPEAL OF IRENE C. MILLER FROM THE MIDDLETOWN TOWNSHIP ZONING BOARD OF ADJUSTMENT. IRENE C. MILLER, APPELLANT


Appeal from the Order of the Court of Common Pleas of Bucks County in the case of In: Appeal of Irene C. Miller from the Middletown Township Zoning Board of Adjustment, No. 80-12004-16-1.

COUNSEL

Colin M. Jenei, Cordes, King & Associates, for appellant.

Bernard D. Cullen, with him, Martha F. Lindner, Brady, Lindner & Cullen, for appellee.

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

Author: Palladino

[ 85 Pa. Commw. Page 408]

Irene C. Miller (Appellant) appeals here from an order of the Court of Common Pleas of Bucks County (trial court) affirming a decision of the Zoning Hearing Board of Middletown Township (Board) which denied her permission to use a former single family dwelling as a "personal care boarding home."

Appellant owns a single family ranch style dwelling which she operates as a personal care boarding home, housing unrelated, adult boarders who are either physically or mentally handicapped and who have been referred by local health agencies. Appellant lives at the home together with her eighteen year old foster

[ 85 Pa. Commw. Page 409]

    daughter, a helper and, since 1977, seven boarders.*fn1 The boarders pay a fee for which they receive room, board, some transportation, supervision in grooming and an overall monitoring of their needs. The home consists of one kitchen and all of the boarders eat together. According to Appellant, her boarders are persons who, because of their physical and/or mental handicaps, have difficulty functioning in the community. All of the services offered to the boarders are provided by Appellant, her foster child and her helper.*fn2 The boarders need not sign an agreement and are charged on a per diem basis. Since the home's inception, the identity of the boarders has changed considerably as boarders have moved on either for health reasons or personal preference. Only two of the boarders who were with Appellant in 1978 are still with her today.

Appellant's home is situated in a residential neighborhood, within the zoned R-2 Residence District. Under the zoning ordinance, use and occupancy of a residence in this district is limited to "single family detached dwellings."*fn3 Prior to June, 1978, Section 104 of the Township's zoning ordinance defined "family" as "any number of persons living and cooking together as a single housekeeping unit." On June 27, 1978, the ordinance was amended to define "family" as "one or more persons related by blood, adoption or marriage living and cooking together as a single housekeeping unit and not more than two persons living and cooking

[ 85 Pa. Commw. Page 410]

    together who are not related by blood, adoption or marriage."

On June 10, 1980, the Township's assistant zoning officer, in response to the complaints of neighbors, issued to Appellant a letter notifying her that having more than one boarder is a violation of the Township's zoning ordinance and requiring her to cease and desist from such use. On or about July 10, 1980, Appellant filed an appeal from the cease and desist order to the Board contending that the use of her residence as a personal care boarding home constitutes a valid nonconforming use inasmuch as the residents of her home constitute a family as that term was defined in the Township's zoning ordinance prior to June 27, 1978. Appellant also argued, in the alternative, that the ordinance is unconstitutional in that it excludes personal care boarding homes from not only residential districts but all districts in the Township and ...


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