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STEP-BY-STEP v. ZONING HEARING BOARD BOROUGH MCKEES ROCKS (07/12/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 12, 1988.

STEP-BY-STEP, INC., APPELLANT
v.
ZONING HEARING BOARD OF THE BOROUGH OF MCKEES ROCKS, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of Step-By-Step, Inc. v. Zoning Hearing Board of the Borough of McKees Rocks, No. S.A. 1496 of 1985.

COUNSEL

James C. Larrimer, Dougherty, Larrimer & Lee, for appellant.

Eugene P. Girman, Girman & Bacharach, for appellee.

President Judge Crumlish, Jr., Judge Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 117 Pa. Commw. Page 548]

Step-by-Step, Inc., appeals an Allegheny County Common Pleas Court order upholding a Borough of McKees Rocks Zoning Hearing Board (Board) decision. That decision sustained citations issued against Step-by-Step for establishing three community living arrangements (CLA's)*fn1 in a Residential, R-2 district permitting only one and two-family occupancies.

Step-by-Step, a non-profit, charitable corporation operating CLA's for mentally handicapped Allegheny County residents, leased three separate dwelling units*fn2

[ 117 Pa. Commw. Page 549]

    in the Borough of McKees Rocks (Borough) for the purpose of providing specialized health, social and rehabilitative services.*fn3 The residents are required to pay approximately seventy-two percent (72%) of their income to Step-by-Step to cover room and board as well as other expenses. Although staff members do not reside at the CLA's, one to three members are always present to assist the residents and to provide training and transportation.

Subsequent to the establishment of these CLA's, the Borough cited Step-by-Step for violating Ordinance No. 1330, which requires special use permits for the occupancy of dwellings as rooming houses in an R-2 district.

Pursuant to Sections 909 and 910 of the Municipalities Planning Code (MPC),*fn4 Step-by-Step requested a hearing before the Board to challenge the necessity of use applications. The Board concluded that Step-by-Step was operating facilities in the nature of commercial boarding homes or rooming houses and thus violated the ordinance.*fn5

[ 117 Pa. Commw. Page 550]

The common pleas court agreed, and held that CLA households are comprised of unrelated adults paying room and board. The trial court reasoned that whatever characteristics the CLA's incidentally have in common with single-family residences, they fit more specifically into the category of rooming houses.

Step-by-Step contends that it occupies the properties not as boarding houses but as residential family units and, therefore, it should not be required to seek a special use permit under the ordinance. We disagree.

Where the common pleas 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. . . . We may conclude that the Board abused its discretion only if its findings are not supported by substantial evidence. . . . By 'substantial evidence' we mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

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

Here, the Borough's ordinance defines "family" as consisting of one or more persons each related to each other by blood (or adoption), together with such blood relatives' respective spouses, who are living together in a single dwelling and maintaining a common household. Section 2.114 of the McKees Rocks Zoning Ordinance.

The record reveals evidence that CLA residents are not related by blood and require the twenty-four hour assistance of paid Step-by-Step employees; that each resident is required to pay a substantial part of his income to Step-by-Step under a room and board agreement;

[ 117 Pa. Commw. Page 551]

    and that there is the potential for a significant degree of impermanency in the composition of the residence. Thus, there is sufficient, competent evidence to support the conclusion that these CLA's constitute rooming houses.*fn6

In Lakeside Youth Service v. Zoning Hearing Board of Upper Moreland Township,*fn7 51 Pa. Commonwealth Ct. 485, 414 A.2d 1115 (1980), we held that in view of the number of people entering and leaving the house and the transient nature of the principal residents, the basic social structure of the proposed use is simply too far removed from the ordinance's concept of "single family dwelling" to be considered of the same general character of use.

Finally, we agree with the common pleas court that even though the CLA's do not constitute single-family units under the Borough ordinance, they may be located in R-2 districts if Step-by-Step applies for the proper special use permits. The common pleas court declined to specifically address the constitutional issues because it found that this citation procedure was not the proper forum to challenge alleged exclusionary practices since Step-by-Step could still seek a special use permit. In Re: Appeal of Frank Merlino, 19 Pa. Commonwealth Ct. 143, 339 A.2d 642 (1975).

Accordingly, the common pleas court order is affirmed.

[ 117 Pa. Commw. Page 552]

Order

The Allegheny County Common Pleas Court order, No. S.A. 1496 of 1985 dated December 21, 1987, is affirmed.

Disposition

Affirmed.


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