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CHRISTOPHER P. MARKLEY v. CARLISLE ZONING HEARING BOARD AND HELEN H. STEVENS COMMUNITY MENTAL HEALTH CENTER. HELEN H. STEVENS COMMUNITY MENTAL HEALTH CENTER (06/12/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 12, 1987.

CHRISTOPHER P. MARKLEY, ET AL.
v.
CARLISLE ZONING HEARING BOARD AND HELEN H. STEVENS COMMUNITY MENTAL HEALTH CENTER. HELEN H. STEVENS COMMUNITY MENTAL HEALTH CENTER, APPELLANT. CHRISTOPHER P. MARKLEY, ET AL., APPELLANTS V. CARLISLE ZONING HEARING BOARD AND HELEN H. STEVENS COMMUNITY MENTAL HEALTH CENTER, APPELLEES

Appeals from the Order of the Court of Common Pleas of Cumberland County, in case of Christopher P. Markley, et al. v. Carlisle Zoning Hearing Board and Helen H. Stevens Community Mental Health Center, No. 85 Civil 1986.

COUNSEL

Marcus A. McKnight, III, Irwin, Irwin & McKnight, for Mental Health Center.

Charles E. Zaleski, Tive, Hetrick & Pierce, P.C., for Intervenor Markley, et al.

Judges Craig and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig. Judge Palladino dissents.

Author: Craig

[ 106 Pa. Commw. Page 580]

In these consolidated appeals, intervenor Helen H. Stevens Community Mental Health Center (center) appeals an order of the Court of Common Pleas of Cumberland County which reversed the decision of the Carlisle Zoning Hearing Board and concluded that the center's proposed operation of a community residential rehabilitation service (CRRS) program for mentally disturbed individuals in an apartment building in a residential district would change the use of that building from that of an "apartment building" to a "convalescent home," which would constitute a prohibited change of the legal non-conforming apartment use.

In their precautionary cross-appeal, Christopher Markley and other citizens (citizens' group) contest the trial court's conclusion that the program's clients occupying each dwelling unit would live independently of each other.

Where the trial court, in reviewing a zoning appeal has taken no evidence beyond that presented to the zoning hearing board, the Pennsylvania Supreme Court has stated that:

[T]he scope of our review is limited to determining whether the Board committed a manifest abuse of discretion or an error of law. . . . (Citations omitted.) We may conclude that the Board abused its discretion only if its findings are not supported by substantial evidence, 53 P.S. § 11010 (1972) [Pennsylvania Municipalities Planning Code § 11010]; 2 Pa. C.S. § 754(b) [Local Agency Law] (citations omitted). By 'substantial evidence' we mean such relevant evidence as a reasonable mind might accept as adequate to

[ 106 Pa. Commw. Page 581]

    support a conclusion. (Citations omitted.) Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 554-55, 462 A.2d 637, 639-40 (1983).

The policy objective of the CRRS program, briefly stated, is to assist persons with chronic psychiatric disability to live as independently as possible by providing training and assistance in the skills of community living. The CRRS program pursues those objectives through:

(1) A homelike, non-institutional environment providing maximum opportunity to learn the skills necessary for more independent living.

(2) A residential setting providing each client with maximum possible autonomy, independence, and self-determination.

(3) A program which constantly strives to enable clients to move to less restrictive living settings.

(4) Responsible staff to support and assist the client as needed in his movement to independence.

(5) Well-developed cooperative efforts with other agencies in the service delivery system to ensure coordinated, continuous and effective services for the rehabilitation of clients.

55 Pa. Code § 5310.2(a), (c).

According to the trial court, which adopted the board's findings of fact, the center proposes, by lease, to take eight of the fourteen dwelling units at the Bellaire Apartments and place nineteen of its clients in seven of the dwelling units, while using one unit as an administrative office for staff personnel. Additionally, the trial court found that the administrative office would be staffed by at least one person twenty-four hours per day, but no staff person would reside in that apartment. The

[ 106 Pa. Commw. Page 582]

    office would be used for record storage, as a social and meeting area for clients,*fn1 and for medication storage.

The area in which the Bellaire Apartments are located is zoned R-4 High Density Residential. Although an apartment building is not a permitted use in that district under the borough zoning ordinance, the Bellaire Apartments building constitutes a pre-existing nonconforming use. Under section 311(4) of the Borough of Carlisle Zoning Ordinance, "a nonconforming use may be changed only to a conforming use; it may not be changed to another nonconforming use". Therefore, in order to establish the CRRS program at the Bellaire Apartments without resorting to an application for a variance, which the center sought in the alternative, the center's burden was to establish that, notwithstanding the establishment of the CRRS program at the Bellaire Apartments, the use of that structure would continue to be that of an "apartment building".

"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." Appeal of Ethken Corp., 89 Pa. Commonwealth Ct. 612, 616, 493 A.2d 787, 789 (1985).

[ 106 Pa. Commw. Page 583]

    to the inquiry of whether the clients in each dwelling unit live independently of each other. Certainly, the activity of occasional gatherings of some or all of the program's clients for social functions differs little from the practice of many apartment dwellers of meeting with other residents for social occasions.

The present case is analogous to Philadelphia Center for Development Services v. Zoning Hearing Board of Plymouth Township, 89 Pa. Commonwealth Ct. 591, 492 A.2d 1191 (1985). In that case, this court concluded that a community living arrangement (CLA) for mentally retarded citizens was a permitted use as a single-family residence within the township's residentially zoned districts because the CLA residents constituted a "family" as defined by the ordinance.

Each CLA housed three non-related, mentally retarded citizens in a supervised, residential home atmosphere designed to assist them in adjusting to mainstream society. In each CLA, two daytime and one overnight staff member assisted the residents with housekeeping, cooking and other daily living activities. Additionally, supervisory personnel made several weekly visits, but no staff members actually resided at a CLA.

In that case, although this court was not required to determine specifically whether a CLA constituted an independent family unit, our decision, which likened the role of staff members to that of a "non-resident housekeeper, maid or gardener who performs services for the occupants of a home," in effect treated a CLA as an independent living arrangement; we affirmed the trial court's rejection of the township's suggestion that a CLA was more like an institutional use.

We therefore conclude that the trial court committed no error of law in concluding in this case that the "family units" within the building live independently of each other.

[ 106 Pa. Commw. Page 585]

    not fill that void with its own findings.*fn3 As we stated in Hess v. Upper Oxford Township, 17 Pa. Commonwealth Ct. 399, 403, 332 A.2d 836, 838-39 (1975),

This Court will not rummage through the record, speculating upon the credibility and weight of the evidence before a finder of fact. Nor will we, with one hat on, make our own findings, and then don our appellate hat to determine whether our decision can be sustained.

Among its conclusions of law, the board did indicate that the use of one unit for staff is analogous to the situation in a large apartment building unit, where a superintendent resides, monitoring the building's physical and mechanical plant. However, we note discrepancies between the board's example and the present situation. In the present case, no staff member resides in the office, and the monitoring performed by the staff is of the clients and their daily activities, not of the apartment building itself.

The pivotal issue, as raised by the center, remains whether the staff unit constitutes an accessory to the apartment building so that the building remains a legal nonconforming use. Pertinent to that issue, we note that the staff apartment could be legally categorized as an "office". However, this court does not have before it the zoning ordinance definition of "office", which is necessary to make that determination. Nor has a finding of fact been made as to whether the staff unit does in fact constitute an office.

Accordingly, we must remand for findings of fact as to whether (1) the staff unit constitutes an "office", and if

[ 106 Pa. Commw. Page 587]

    so, (2) whether that use is "clearly incidental to", and (3) "customarily found in connection with",*fn4 an apartment building as the particular principal use here, consistent with the ordinance definition of "accessory use."*fn5

We therefore remand to the trial court, which may elect to remand the case to the zoning hearing board to make the specified findings, taking additional evidence if necessary, or the trial court itself may make those findings, as permitted by section 1010 of the MPC, 53 P.S. § 11010.

[ 106 Pa. Commw. Page 588]

After those findings have been made, the trial court will be able to redetermine whether the staff unit constitutes an accessory use.

Only if that possibility is negated can this court reach the potential remaining issues of whether the center's proposed use would be a permitted use within the borough's Institutional District, so that the center's alternative claim of exclusionary zoning would be refuted.

Order

Now, June 12, 1987, the order of the Court of Common Pleas of Cumberland County dated April 23, 1986 at No. 85 Civil 1986 is vacated and the case is remanded to the trial court, which may elect to remand the case to the zoning hearing board to make additional findings, taking additional evidence if necessary, on whether the staff unit (1) constitutes an office, and, if so, (2) whether that use is "clearly incidental to", and (3) "customarily found in connection with", an apartment building. In the alternative, the trial court itself may make those findings.

Jurisdiction retained.

Judge Palladino dissents.

Disposition

Vacated and remanded.


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