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APPEAL IRENE C. MILLER FROM MIDDLETOWN TOWNSHIP ZONING BOARD ADJUSTMENT. IRENE C. MILLER (10/03/86)

decided: October 3, 1986.

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 Commonwealth Court at No. 1248 C.D. 1983, dated October 9, 1984 affirming the Order of the Court of Common Pleas of Bucks County at No. 80-12004-06-1.

COUNSEL

Colin M. Jenei, Wayne N. Cordes, Newtown, for appellant.

Martha F. Lindner, Bernard D. Cullen, Langhorne, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Nix

[ 511 Pa. Page 632]

OPINION

This is an appeal from an order of the Commonwealth Court, 85 Pa. Commw. 407, 482 A.2d 688, affirming a decision by the Court of Common Pleas of Bucks County which sustained the Zoning Board of Adjustment's direction to appellant, Irene C. Miller, to cease and desist her current use of her property. Appellant argues, inter alia, that the use was a lawful, nonconforming one.

The property here involved is a detached, single-family dwelling located in a district of Middletown Township ("Township"), Bucks County, that is zoned "R-2." Like most single-family homes, Mrs. Miller's house has one kitchen; however, the structure is large enough to include six bedrooms, two bathrooms and a finished recreation room. Pursuant to the Township's zoning ordinance, a detached single-family dwelling is a permitted use in an "R-2" district; but convalescent homes, nursing homes and boarding houses are not. (See Board of Adjustment's findings Nos. 24 and 25, Reproduced Record page 183a).

Beginning in October of 1974, Mrs. Miller started receiving into her house as boarders various aged or physically handicapped or mentally retarded persons who had been referred to her by certain hospitals or social agencies.

[ 511 Pa. Page 633]

Between 1974 and 1978, the number of such boarders ranged from a minimum of one to a maximum of seven. After having accepted her first paying "guest" in October, 1974, Mrs. Miller increased the number to two by the end of that year. In 1976 the number rose to four; and from 1977 onward there were seven. In return for a fee of approximately $200.00 a month per individual, Mrs. Miller provided them with room, board, some transportation, supervision in grooming, and monitoring of personal needs. The Miller house, in addition to accommodating the several paying residents, was the residence of Mrs. Miller and her foster daughter. Another resident of the home was a Mrs. Hart, who, in return for bed and board, assisted in the care of the paying residents. With the exception of Mrs. Miller and her foster daughter, none of the people living in the house were related.

When Miller commenced this use of her property in 1974, the zoning ordinance in effect was one that had been enacted by the Township in 1948. Under that ordinance, the term "family" was defined as " any number of persons living and cooking together as a single housekeeping unit." (Emphasis added.) Subsequently, on June 27, 1978, that definition was amended to read:

FAMILY. a family is:*fn1 one or more persons related by blood, adoption or marriage living and cooking together as a single housekeeping unit; and (2) not more than two persons living and cooking together who are not related-by-blood, adoption or marriage. (Emphasis added.)

On June 10, 1980, the Assistant Township Zoning Officer, purporting to act on the protests of neighbors, notified Mrs. Miller that her having more than one unrelated person in her house violated the zoning ordinance, and ordered her to cease and desist from such use of the property. Miller ...


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