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APPEAL LYNCH COMMUNITY HOMES (02/01/89)

decided: February 1, 1989.

IN RE: APPEAL OF LYNCH COMMUNITY HOMES, INC. FROM THE DECISION OF THE ZONING HEARING BOARD OF UPPER MORELAND TOWNSHIP. LYNCH COMMUNITY HOMES, INC., APPELLANT


Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Lynch Community Homes, Inc. v. The Zoning Hearing Board of Upper Moreland v. Township of Upper Moreland, No. 86-11944.

COUNSEL

Elias S. Cohen, for appellant.

George B. Ditter, Jenkins, Tarquini & Jenkins, for appellee, Upper Moreland Township.

Jon Pushinsky, with him, Michael L. Rosenfield, Pushinsky & Rosenfield, for Amicus Curiae, Association for Retarded Citizens, Allegheny County Chapter.

Howard Ulan, Assistant Counsel for Amicus Curiae, Department of Public Welfare.

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

[ 123 Pa. Commw. Page 279]

Lynch Community Homes, Inc. (Appellant) appeals from the order of the Court of Common Pleas of Montgomery County which sustained the decision of the Upper Moreland Township Zoning Hearing Board (Board) denying Appellant's application for a special exception*fn1 to operate a home for retarded persons in Upper Moreland Township's (Township) R-3 Residential District. Issues presented for review are whether the proposed use of Appellant's property is a permitted use under the Township zoning ordinance's (Ordinance) definition

[ 123 Pa. Commw. Page 280]

    of "family";*fn2 whether the ordinance's definition of "family" is unconstitutional as applied to Appellant's proposed use of the subject property; whether the ordinance's definition of "family" frustrates a legitimate state objective to provide appropriate care for mentally retarded persons; whether Appellant is entitled to a special exception under Children's Aid Society v. Zoning Board of Adjustment, 44 Pa. Commonwealth Ct. 123, 402 A.2d 1162 (1979); and whether the requirement that group homes be 2500 feet apart lacks a rational basis. The decision of the trial court is affirmed.

Appellant filed an application with the Board seeking a special exception under the Ordinance's "group home" exception provisions to use the subject property, a leased single-family residence, as a home for three unrelated mentally retarded persons and one houseparent. The Board, after hearing, found that Appellant's proposed operation constituted a "group home" under the Ordinance, and accordingly, required a special exception to locate within the R-3 Residential District.*fn3 The Board further found that the subject property was located only

[ 123 Pa. Commw. Page 2811700]

feet from another group home operated by Appellant in contravention of the 2500-foot distance requirement attached to the special exception governing group homes and thus denied Appellant's request for a special exception. Appellant appealed to the trial court which, without taking additional evidence, also found Appellant's proposed operation to be a group home subject to the Ordinance's special exception criteria. The trial court, like the Board, concluded that Appellant failed to satisfy the 2500-foot distance requirement, and accordingly, sustained the Board's denial of a special ...


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