Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Edward J. Dotter and Barbara D. Dotter, his wife v. Zoning Hearing Board of Kennedy Township, No. S.A. 1007 of 1985.
Frederick A. Boehm, with him, Patrick J. Clair, Goehring, Rutter & Boehm, for appellants.
Samuel J. Pasquarelli, Jubelirer, Pass & Intrieri, P.C., for appellee.
Judges Craig and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry.
[ 110 Pa. Commw. Page 219]
Edward J. Dotter and Barbara D. Dotter, husband and wife, appeal an order of the Court of Common Pleas of Allegheny County which dismissed their appeal from and affirmed an order of the Zoning Hearing Board of Kennedy Township.
In 1976, Kennedy Township passed its present Zoning Ordinance (Ordinance 171). In 1982, the Dotters purchased a one story ranch dwelling located within a R-1 zoning district as defined by the ordinance. The Dotters wished to use the dwelling as a personal care home, which essentially would house up to eight older adult residents and provide full time custodial care by two adult supervisors who also would live in the dwelling. The residents, while requiring some assistance with some of their day to day activities, require neither hospitalization nor care of a skilled nursing or intermediate care facility.
Believing that the zoning ordinance totally excluded personal care homes from Kennedy Township, the Dotters filed a challenge to the ordinance with the Zoning Hearing Board (the Board) pursuant to Section 1004(1)(a) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, repealed and reenacted by the Act of June 1, 1972, P.L. , 53 P.S. § 11004(1)(a). A hearing was subsequently held before the Board which, on May 30, 1985 denied, the Dotters' challenge. The Dotters then filed an appeal to the Court of Common Pleas of Allegheny County. The trial court appointed a local attorney to act as a referee in the matter.
[ 110 Pa. Commw. Page 220]
No additional testimony was taken, and after the submission of briefs to the referee, the trial court dismissed the Dotters' appeal and affirmed the order of the Board. This appeal followed.
Where the trial court takes no additional evidence, our scope of review is limited to determining whether the Zoning Hearing Board committed an error of law or manifestly abused its discretion. Borough Council of Churchill Borough v. Pagal, Inc., 74 Pa. Commonwealth Ct. 601, 460 A.2d 1214 (1983). While zoning ordinances are presumed to be constitutional, National Land & Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965), an ordinance which totally excludes a legitimate use is particularly suspect. Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 228 A.2d 169 (1967). In the present case, the Dotters argued that the Board committed an error of law in holding that the ordinance did not exclude personal care homes. We do not agree.
The Board held that personal care homes are permitted as a use in the R-3 zoning districts and thus are not permitted in only the more restricted districts (the R-1 and R-2) but allowed in all other districts. The ordinance itself provides: "In this [R-3] district, the land and structure may be used, and the structures may be erected, enlarged, altered and maintained for the following uses only. . . . 421.2. Multiple-family dwelling." Ordinance 171, § 421. Multiple family dwelling is defined as
[a] dwelling, designed or occupied otherwise than as a one-family dwelling or a two-family dwelling. The term multiple-dwelling shall be understood to include apartment houses, row houses, and all other family dwellings of ...