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APPEAL ETHKEN CORPORATION FROM DECISION ZONING HEARING BOARD BOROUGH KUTZTOWN. ETHKEN CORPORATION (06/03/85)

decided: June 3, 1985.

IN RE: APPEAL OF ETHKEN CORPORATION FROM THE DECISION OF THE ZONING HEARING BOARD OF THE BOROUGH OF KUTZTOWN. ETHKEN CORPORATION, APPELLANT


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.

COUNSEL

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, ยง 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, ...


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