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APPEAL HORTENSE SUMMERS FROM DECISION SPRINGFIELD TOWNSHIP ZONING HEARING BOARD. HORTENSE SUMMERS (12/13/88)

decided: December 13, 1988.

APPEAL OF HORTENSE SUMMERS FROM DECISION OF THE SPRINGFIELD TOWNSHIP ZONING HEARING BOARD. HORTENSE SUMMERS, APPELLANT


Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Appeal of Hortense Summers from Decision of Springfield Township Zoning Hearing Board, No. 86-15441.

COUNSEL

John A. Rule, Miller, Turetsky & Rule, for appellant.

Thomas F. Oeste, with him, Thomas M. Garrity and Michael J. O'Donoghue, Wisler, Pearlstine, Talone, Craig & Garrity, for appellee.

Judge Smith, and Senior Judges Kalish and Narick, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case.

Author: Smith

[ 122 Pa. Commw. Page 44]

This matter arises from cross-appeals taken by Hortense Summers (Summers) and Springfield Township (Township) from the order of the Court of Common Pleas of Montgomery County which affirmed in part and reversed in part the decision of the Springfield Township Zoning Hearing Board (Board) that Summers' use of her residence for participation in two county mental retardation programs is not permitted in a single-family detached dwelling located in an "AA" Residential Zone. The trial court affirmed the Board's decision concerning Summers' participation in the "Host Family" program ("Respite Care"),*fn1 but reversed as to Summers' participation in the "Family Living" program.*fn2 The trial court is affirmed.

Issues presented for review are whether Summers' participation in the subject mental retardation programs is permitted of right as a single-family use under the Township zoning ordinance; and whether the prohibition of Summers' participation in the "Respite Care" program is an unlawful discrimination in violation of the Federal and State Constitutions.

Summers owns a residence located in an area zoned "AA Residential" that she uses, and proposes to use, to house mentally retarded persons referred to her by the "Respite Care" and "Family Living" programs. Two cease and desist orders dated May 6, 1986 and July 2, 1986 were issued by the Township Code Enforcement

[ 122 Pa. Commw. Page 45]

Officer directing Summers not to house boarders from the mental retardation programs. Summers appealed to the Board, which after hearing, upheld both cease and desist orders on the grounds that the temporary placement contemplated by the "Respite Care" program was not permitted in the "AA" Residential Zone; and that the facility-type placement required by the "Family Living" program was an impermissible institutional use in the "AA" Residential Zone. Neither program, according to the Board, was analogous to a Community Living Arrangement placement program (CLA).*fn3 Summers appealed the Board's decision to the trial court, which affirmed in part and reversed in part, whereupon Summers petitioned this Court for review and the Township cross-appealed.*fn4

Summers initially contends that her participation in the "Respite Care" program is consistent with uses permitted as of right in the Township's "AA" Residential Zone; and that the daily routine of the subject premises is indistinguishable from that of a natural family having mentally retarded family members. The Township, on the other hand, argues that Summers' use of her residence in accordance with the "Respite Care" program is not a permissible single-family use within the meaning of the Township zoning ordinance.

[ 122 Pa. Commw. Page 46]

Permitted uses in the Township "AA" Residential Zone include single-family detached dwellings such as Summers' residence. Section 114-41 of the Township zoning ordinance. "Family" is defined in ...


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