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April 14, 1993


The opinion of the court was delivered by: BY THE COURT; DONALD W. VANARTSDALEN

 VanARTSDALEN, S.J. April 14, 1993

 Plaintiffs seek a preliminary injunction to compel the Township of Ridley and the Ridley Township Zoning Hearing Board to grant plaintiffs' zoning application to permit plaintiffs to construct an addition to Jeanann Dobrikovic's single family dwelling house. The addition would provide wheelchair-accessible, separate first floor living accommodations for Robert Pulcinella, a handicapped person. Plaintiffs' applications for a variance and/or special exception from the zoning ordinance were denied. Under the Township Zoning Hearing Board's interpretation of the zoning ordinance, the proposed addition would leave a zero side yard clearance on the side of the lot adjoining the other half of the twin house of which the plaintiff's house was a half. The twin house shared a party wall along the lot line. The zoning ordinance required eight foot side yards on both sides of the addition. Plaintiffs' residence lot was a total of only twenty feet in width. Under the ordinance, therefore, any addition on the ground floor could be only four feet wide.

 Plaintiffs contend that the refusal to grant a variance and/or special exception to the zoning ordinance and to preclude plaintiffs from building and occupying the addition violates the 1988 Amendments to the Fair Housing Act (FHAA), 42 U.S.C. § 3604(f). In substance, plaintiffs claim that they have submitted a plan that defendants must approve as a "reasonable accommodation" to Robert Pulcinella's handicap.

 Plaintiffs seek a preliminary injunction which in effect would be a mandatory injunction requiring the township to permit the plaintiffs to construct the proposed addition. They contend that any delay will have severe adverse effects on Robert Pulcinella's health. The application for a variance and/or special exception was denied on November 5, 1992, and on reapplication again denied on January 13, 1993. On January 20, 1993, plaintiffs filed their complaint in this civil action and, on March 3, 1993, filed the present motion for a preliminary injunction. After a conference and a short period of time for discovery, an evidentiary hearing was held on March 24, 1993.

 Plaintiffs availed themselves of none of the remedies and procedures provided by state law to review the decision of the Township Zoning Hearing Board. There is nothing in the record to suggest that utilizing state court procedures would be futile or unsuccessful or that state administrative and judicial decisions would ignore or incorrectly apply the FHAA to the facts of this case. *fn1" There is no doubt, however, that both the Fair Housing Act and the FHAA provide for a civil suit in federal court by aggrieved persons who claim a violation of the FHAA. Clearly there is federal subject-matter jurisdiction.

 In 1988, the plaintiff, Robert Pulcinella, was involved in a motor vehicle accident that rendered him a paraplegic and permanently confined him to a wheelchair. At the time of the accident, he was residing in the house owned by his sister, the co-plaintiff, Jeanann Dobrikovic. He has continued to live in the house with his sister and her family since the time of the accident, except for extensive hospital confinements and several rather brief intervals when he stayed with a brother in Florida. Robert Pulcinella has been paying some rent to his sister and is, in effect, both a boarder and a tenant in his sister's home.

 The house is one-half of a twin house located at 717 Mount Vernon Avenue, Ridley Township, Pennsylvania. The house is located in a "Residential B" area under the Township Zoning Ordinance. The Residential B category was created by the zoning map for this area around 1970. Twin dwellings are not permitted in Residential B areas. The house owned by Jeanann Dobrikovic was erected prior to the time that the zoning map classified the area as Residential B. Thus, the dwelling continues to exist in the area as a valid non-conforming building. There exist numerous other twin dwelling houses within the immediate neighborhood located in the Residential B area that also remain as valid pre-existing, non-conforming buildings.

 Mr. Pulcinella has extreme difficulty crawling up and down stairs. The only bathroom in the house is on the second floor. Mr. Pulcinella has been sleeping and living in the first floor living room portion of the house, with great inconvenience to himself and his sister and her family. Although he has been able to work as a lawn mower repairman in a shop owned by another relative of his, it has become increasingly difficult for him to enter and leave his residence as the house has no wheelchair ramp for entrance or exit, and in general is not internally "wheelchair accessible." There is convincing medical evidence that the conditions in the house, especially those requiring that he crawl to the second floor to carry out normal bodily functions, are seriously aggravating decubitus ulcers on his buttocks which have become so severe in the past as to require hospitalization and surgical correction by, among other procedures, skin grafting.

 It is clear that Robert Pulcinella is, and has been since the date of the motor vehicle accident, a handicapped person within the definition of the FHAA. Section 3602(h), 42 United States Code, provides:

(h) "Handicap" means, with respect to a person -
(2) a record of having such an impairment, or
(3) being regarded as having such an impairment,
but such term does not include current, illegal use of or addiction to a controlled substance as defined in section 802 of Title 21.

 42 U.S.C. § 3602(h).

 Around the end of 1991, plaintiffs contacted an architect, Raymond Di Paola, who had extensive experience in designing wheelchair accessible homes and buildings. He designed for plaintiffs a one-story 704 square foot addition that would attach to the rear of the present house. It would contain a living room-bedroom, bath, exercise room and computer room, all accessible for wheelchair occupants in accordance with governmental and architectural building standards. It would almost double the ground floor area of the present house. An outside ramp for wheelchair exit and entrance was included in the plans. The proposed addition would have made the total building area 38% of the total lot size. The zoning ordinance allowed a maximum of building area to be no more than 30% of the lot size. Likewise, the proposed addition would come within 3 feet 11 inches of the lot's boundary line on the side opposite the adjoining twin dwelling. The application to the Ridley Zoning Hearing Board for a variance for excess building area and side-yard distance and a special exception to extend the "party wall line" for a zero side-yard distance along the adjoining half of the twin house was denied on or about April 11, 1992.

 After the denial, Mr. Di Paola prepared a smaller sized addition, and resubmitted for plaintiffs a request for a variance and a special exception that still required a zero side yard on the side of the adjoining half of the twin house. According to Mr. Di Paola, the proposed exterior ramp and the new proposed addition would conform to all requirements of the Zoning Ordinance except in two respects: (1) the exterior ramp (for which Ridley Township Zoning Hearing Board granted a variance), and (2) the zero side yard requirement along the lot line of the adjoining half of the twin home. In other words, the revised plan would not cause the building to exceed 30% of the total lot size, had an adequate rear yard clearance, and the allowed minimum 8-foot side line clearance on the side away from the adjoining half of the twin home.

 Except for granting the variance for the exterior ramp, the application was rejected because, as interpreted by the Zoning Hearing Board, a zero side yard could not be allowed as a special exception or variance along what would be an extension of the party wall in a "Residential B" area. *fn2" The obvious effect of the Zoning Hearing Board's decision would preclude the extension along the party wall lot line of any addition to a twin dwelling house that exists as a valid non-conforming building in a Residential B area. As previously noted because plaintiff's lot is only twenty feet wide, in order to allow eight feet of side yard, on both sides, any extension would have to be no more than four feet wide. The practical effect would be that no extension or addition to the house in the rear could be made for living quarters.

 The failure to grant the variance effectively precludes plaintiffs from constructing an addition to the rear of the house along the party wall lot line of the twin dwelling house. This denial might well be held, under state law, to be error on the part of the municipal authorities. Although the granting of a variance allows fairly wide discretion to municipal zoning authorities, in general where a party can show a hardship to the land, a variance must be granted. However, the federal district court lacks jurisdiction to sit as a court of appeals from a local zoning decision. It is, however, I think, quite significant that plaintiffs admittedly have never sought their clearly defined appellate state court rights to challenge the adverse decision by the Ridley Township Zoning Board. Plaintiffs seek mandatory injunctive relief that would order defendants to issue "the requested special exception/variance allowing the construction of the requested accessible improvements at 717 Mount Vernon Avenue, so as to allow plaintiff the use and full enjoyment of said premise," together with damages, including punitive damages for failure to grant "promptly" the application and attorney's fees. (Complaint at 11, PP 3-6). Plaintiffs sought a preliminary injunction with a proposed order that would direct Ridley Township and the Ridley Township Zoning Hearing Board "to issue a variance to the zoning code to permit the construction of the wheelchair accessible addition as proposed to the defendants at Variance Hearing 92-65 and 93-3, until completion of this litigation" and would prohibit interference with the construction and use of the addition. Finally, the proposed preliminary injunction seeks an injunction against the defendants "from failing to make reasonable accommodations in the Township's policies and practices with respect to the interpretation and application of its zoning code and the issuance of a variance for construction of a wheelchair accessible addition as proposed to the defendants at Variance Hearing 92-65 and 93-3." (Pls.' Proposed Order Attached Memo. Supp. Mot. Prelim. Injunction at 1-2). *fn3"

 Prior to plaintiffs' motion for the grant of a preliminary injunction, the defendants, Ridley Township and Ridley Township Zoning Board, filed a motion to dismiss the complaint contending that the FHAA, 42 U.S.C. § 3604(f)(3)(A) & (B), upon which plaintiffs' federal claims are founded, are "inapplicable to the facts of this case." (Defs.' Memo. Supp. Mot. Dismiss, filed Doc. No. 7, at 2). In substance, defendants contend that the FHAA does not require a township zoning ordinance to provide for variances or special exceptions to make reasonable accommodations for a handicapped person who rents from an owner who owns only one single family dwelling. Section 3603(b), 42 United States Code, appears to exempt expressly and entirely from the operation of the statute, "any single family house sold or rented by an owner" unless such owner owns more than three such single dwelling houses at any one time, with certain other provisos that are clearly inapplicable to the facts of this case. 42 U.S.C. § 3603(b)(1).

 Plaintiffs base their claims statutorily on " 42 U.S.C. § 3613" *fn4" and on "28 [sic] U.S.C. § 1983." (Complaint, P 5). They rely on the provisions of the FHAA, particularly 42 U.S.C. § 3604(f)(1), (2) and (3).

 A violation of FHAA by a municipal zoning board would probably give rise to private cause of action under 42 U.S.C. § 1983. A denial of a zoning application in violation of FHAA would clearly constitute "state action," and would be a deprivation of rights and privilege secured by the laws of the United States. The present claims, even if proved, would not however, in my view, amount to a constitutional violation under 42 U.S.C. § 1983. As noted, they could amount to a statutory violation under 42 U.S.C. § 1983.

 Handicapped persons, as defined under the FHAA and as applicable to the facts of this case, have not been, so far as I am aware, accorded that special type of classification that gives rise to a constitutionally protected class under the equal protection and/or due process clause of the Fourteenth Amendment of the United States Constitution. The Supreme Court of the United States held in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985), that mentally retarded are not to be accorded special constitutional protection. The court opined that legislation that may discriminate against mentally retarded does not require, under the equal protection clause, "strict scrutiny" or "heightened scrutiny," but only a "rational relationship" analysis. *fn5" Id. at 444-446. In so doing, the Supreme Court made clear that a variety of types of minority groups such as age, mental illness, physical disability, and infirmity are not quasi-suspect classes that require heightened scrutiny.

Fourth, if the large and amorphous class of the mentally retarded were deemed quasi-suspect for the reasons given by the Court of Appeals, it would be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large. One need mention in this respect only the ...

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