Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



decided: June 3, 1985.


Appeal from the Order of the Court of Common Pleas of Berks County in case of Re: Appeal of Ethken Corporation from the Decision of the Zoning Hearing Board of the Borough of Kutztown, No. 305 May, 1983.


Donald F. Spang, Merkel & Spang, for appellant.

Walter M. Diener, Jr., with him, David M. Kozloff, Kozloff, Diener, Payne & Fegley, for appellee.

Judges Craig and Colins and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 89 Pa. Commw. Page 613]

In this zoning case Ethken Corporation appeals from an order of the Court of Common Pleas of Berks County, which affirmed a decision of the Zoning Hearing Board of the Borough of Kutztown denying Ethken's*fn1 application for a special exception and request for variances. The issues for our determination are (1) whether the board erred in concluding that the proposed use was not within those which the zoning ordinance permits by special exception, and (2) whether the board erred in denying Ethken's requested variances.

Ethken is the owner of a corner lot of approximately 1.4 acres (144 feet wide and 413 feet deep), which existed as a single lot in 1972 when Kutztown adopted its zoning ordinance. The lot is located in an R-2 Low Density Residential District,*fn2 which permits a

[ 89 Pa. Commw. Page 614]

"nursing home, convalescent home, or similar health care facility" only by special exception.*fn3

Ethken proposed to construct a geriatric personal care facility, which would include an infirmary and medical office; the proposal specified a seventy-five bed facility, covering approximately 34% of the area of the lot and providing 60 parking spaces. After taking testimony, the board concluded that the proposal was outside the ordinance definition of a nursing or convalescent home and was therefore not entitled to a special exception. The board also denied variance from lot coverage, lot dimension and parking requirements. On appeal, the court of common pleas, without taking additional evidence, affirmed the board's decision.*fn4

With reference to Ethken's contention that the board erred in concluding that the proposal was not a nursing home, and therefore not permitted by special exception,*fn5 we note that the ordinance defines a nursing or convalescent home as an

Establishment providing nursing, dietary, and other similar personal services to convalescents, invalids, or aged persons, but excluding mental cases, cases of contagious or communicable disease, surgery, or other treatments which are customarily provided in sanitariums and hospitals.

Borough of Kutztown Zoning Ordinance of 1972, § 201.4.

[ 89 Pa. Commw. Page 615]

Dr. Lambert testified for Ethken, explaining the physical characteristics of the structure, the details of the care which the facility would provide, the proposed staffing and the community need which he hoped the proposal would serve. Ethken's architect, Wolfgang Rapp, also testified about the design of the facility.

Their testimony indicated that the facility would include an institutional kitchen and dining room, hospital-size elevator and corridors, activity areas, chapel, administrative offices, conference room, reception desk, loading or delivery area, and sprinkler system, and would be of fireproof construction. With respect to the medical care, Dr. Lambert explained that he would locate his medical office within the facility and that he would maintain an infirmary which would be open 24 hours a day. He further testified that the staff would include a full-time physician, 24-hour nursing care,*fn6 and approximately 25 full-time employees, including dieticians, nursing aides, maintenance workers and security personnel.

Dr. Lambert further testified that the purpose of the facility was to provide "custodial care", as distinguished from the more common skilled care or intermediate care facility. The facility would serve, he testified, those people who, because of age, are becoming infirm or forgetful, who often fail to eat properly, either through neglect or lack of finances, and who are no longer physically able to maintain their homes and are often targets of crime. These individuals fortunately do not require the more intense level of care of the skilled or intermediate care nursing homes

[ 89 Pa. Commw. Page 616]

    and, in comparison with the patients of those homes, would be "pretty well independent of care"; however, they can no longer live safely without some level of medical supervision and care.

Based on the evidence, the board found that the proposed facility would provide "basically residential care", a term which it did not define, and concluded that the evidence was insufficient to demonstrate that the proposed facility was a "health care facility similar to a nursing home or convalescent home." The board concluded that the proposed use was "a boarding home for aged persons" and that such a use was not permitted in the R-2 district by special exception or otherwise.

"Whether a proposed use, as factually described in an application or in testimony, falls within a given category specified in a zoning ordinance is a question of law and subject to review on that basis." Crary Home v. DeFrees, 16 Pa. Commonwealth Ct. 181, 184, 329 A.2d 874, 876 (1974).

We are mindful that in construing a statute or an ordinance, our polestar is the intent of the legislature, Appeal of Neshaminy Auto Villa Ltd., 25 Pa. Commonwealth Ct. 129, 358 A.2d 433 (1976), and that we must ascribe their common meaning to terms not legislatively defined. 1 Pa. C.S. § 1903. With respect to the interpretation of zoning ordinances, we must afford permitted uses the broadest interpretation so that a landowner may have the "benefit of the least restrictive use and enjoyment of his land." Barnhart v. Zoning Hearing Board of Nottingham Township, 49 Pa. Commonwealth Ct. 481, 483, 411 A.2d 1266, 1267 (1980); Gilden Appeal, 406 Pa. 484, 178 A.2d 562 (1962).

In order to construe the ordinance definition of nursing home, which we quoted above, we must rely

[ 89 Pa. Commw. Page 617]

    on the common usage of the words "nursing, dietary, and other similar personal services", because the ordinance fails to explain their meaning. Webster's Third New International Dictionary, p. 1551, although failing to define the adjective form, defines the noun "nurse" as "a person skilled in caring for and waiting on the infirm, the injured, or the sick."

Given Dr. Lambert's testimony that the facility would have a full-time physician, a "skilled nurse" at all times and "nursing aide backup", we are satisfied that the facility would clearly provide "nursing care" for those who resided there. Nothing in the record supports the contention in the board's brief here, consistent with the trial court's comments, that "nursing" would not be regularly or routinely provided to the residents; similarly, the record does not support the contention that the nursing services would be merely incidental or provided only on an emergency basis.

With respect to the required dietary care, Webster's defines the noun "diet" as "food and drink regularly provided or consumed." Webster's Third New International Dictionary, p. 629. Because the proposed facility would provide total meal service to its residents, including planning, preparation and service of every meal, the board could not seriously contend that the home would not provide dietary care within the meaning of the ordinance. The facility also clearly satisfies the third requirement that it provide "similar personal services" because integral to the "custodial" level of care would be, for example, the bathing and dressing of the residents and the cleaning of their rooms.

With respect to the board's determination that the proposal was a boarding house, we note that Webster's defines "boarding house" as "a house that provides board and sometimes rooms" and defines

[ 89 Pa. Commw. Page 618]

"board" as "food in the form of daily meals often provided as payment for services." Webster's Third New International Dictionary, pp. 243-44. That definition, lacking reference to any of the personal and medical services which the facility would provide, is a patently inaccurate characterization of the facility.

Because the facility, as described in the testimony, clearly will provide "nursing, dietary, and other similar personal services," we must conclude that the proposed facility is a nursing home or similar health care facility as defined by the zoning ordinance. Accordingly, the use is one permitted by special exception in the R-2 district.

We must now direct our inquiry to the ordinance's specific requirements for nursing homes as special exceptions, found in section 402.3h. Bray v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 523, 410 A.2d 909 (1980). That section provides the following requirements:

Minimum Lot Size 40,000 sq. ft.

Minimum Lot Width 150 ft.

Minimum Front Yard 50 ft.

Minimum Each Side Yard 30 ft.

Minimum Rear Yard 100 ft.

Maximum Building Coverage

Including Accessory

Structures 20 percent

Maximum Building Height 2-1/2 stories

Ethken contends that ordinance section 602, which makes certain specified allowances for lots which existed on the date of the enactment of the zoning ordinance, exempts it from compliance with the total area and width requirements listed above.*fn7 Ethken further

[ 89 Pa. Commw. Page 619]

    contends that ordinance section 501.6, which describes restrictions applicable to corner lots, reduces the minimum side yard requirement to 20 feet.*fn8 Even if those contentions are correct, Ethken's proposal nevertheless fails to conform to the 20% maximum building coverage requirement because, as explained above, the proposed structure would cover 34% of the lot area.

Furthermore, with respect to the ordinance's general requirements, section 508.1 specifies that a nursing home must provide one parking space per bed. As the board correctly noted, the ordinance would require Ethken to provide 75 parking spaces; the proposal included only 60 spaces.

Therefore, at minimum, Ethken's proposal required variances from the ordinance's building coverage and parking space requirements.

[ 89 Pa. Commw. Page 620]

One who seeks a variance has the burden of establishing that the existence of unique physical circumstances or conditions on the property create an unnecessary hardship so that a variance from the terms of the ordinance is necessary to enable a reasonable use of the property. Ramondo v. Zoning Hearing Board of Haverford Township, 61 Pa. Commonwealth Ct. 242, 434 A.2d 204 (1981); section 912 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10912.

The board found that Ethken had failed to show the presence of any unique physical circumstances or conditions which created an unnecessary hardship. After careful review of the record, we concur with the board's determination that Ethken failed to produce evidence that would establish its entitlement to the necessary variances.*fn9

Accordingly, although we conclude that the board erred in its determination that the proposal did not come within those uses authorized by special exception,

[ 89 Pa. Commw. Page 621]

    we agree with the board's disposition of the variance request and therefore affirm.


Now, June 3, 1985, the order of the Court of Common Pleas of Berks County, No. 305 May, 1983, dated February 28, 1984, is affirmed.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.