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12/24/97 ACT I v. ZONING HEARING BOARD BUSHKILL

December 24, 1997

ACT I, INC. AND RICHARD E. KEENHOLD, JR., APPELLANTS
v.
ZONING HEARING BOARD OF BUSHKILL TOWNSHIP AND CHRIS MILLER AND CHARLOTTE MILLER



Appealed From No. 1996-C-3327. Common Pleas Court of the County of Northampton. Judge MORAN.

Before: Honorable James Gardner Colins, President Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Senior Judge Mirarchi.

The opinion of the court was delivered by: Mirarchi

OPINION BY SENIOR JUDGE MIRARCHI

FILED: December 24, 1997

Act I, Inc. and Richard E. Keenhold, Jr. (Keenhold) appeal from an order of the Court of Common Pleas of Northampton County which affirmed the decision of the Bushkill Township Zoning Hearing Board (Board) denying their request for permission to operate a group home for fourteen dependent female youths.

Keenhold is the owner of the subject property containing a three-story building, which was previously used as a restaurant/bar and two apartments. Act I, Inc. is a non-profit corporation licensed by the Department of Public Welfare to operate group homes for youths.

In January 1996, Keenhold and Act I, Inc. (collectively, Act I, Inc.), filed a zoning/building application seeking permission to make alterations to the interior of the building and operate "a group home." Section 902.AA of the Ordinance permits a group home by right in a lawful dwelling unit located in the NC-Neighborhood Commercial zoning district, where the property is located, if various specific requirements are met. The zoning officer denied the application on the basis that the proposal failed to meet the requirements of the Ordinance. Act I, Inc. appealed the denial to the Board and, in the alternative, requested a variance from the requirements of the Ordinance. Act I, Inc. also challenged the validity of the provisions of the Ordinance applicable to group homes.

At the hearing before the Board, Act I, Inc. proposed to lease the basement and first floor of the subject property previously used as a restaurant/bar and operate a group home for fourteen female youths (children), whose ages will range from twelve to seventeen. The children will be referred to Act I, Inc. by the County Children and Youth Division after being adjudicated to be "dependent" by the juvenile court. The dependent children are individuals who have been abused at their home and can no longer function within their own household. They are not emotionally disturbed and do not present a threat to themselves or others.

The objective of the proposed group home is to stabilize the children's behavior in a normal living environment and eventually return them to their home and family. The proposed facility will have a common eating area, separate bedrooms and common recreational area. Employees of Act I, Inc, who meet the guideline of the Department of Public Welfare, will supervise the children on three shifts and act as "surrogate" parents. No treatment will be provided to the children at the facility. Some children will attend a private school operated by Act I, Inc., and the remainder will attend schools in the Nazareth Area School District. The average length of the children's stay at the facility will be eight to nine months.

The Board concluded that the proposed use does not fall within the definition of a "group home"; Act I, Inc. failed to comply with the requirement for on-lot septic system set forth in Section 1903.W.9 of the Ordinance; the proposed use is not a "use of the same general character as those permitted by right and condition in the NC District" and therefore is not permitted by a special exception under Section 904.A of the Ordinance; and, Act I, Inc. failed to establish unnecessary hardship required for granting a variance. The Board accordingly refused to grant Act I, Inc. a special exception or a variance. On appeal, the trial court affirmed the Board's decision. The court also rejected the challenge to the validity of the provisions of the Ordinance related to group homes. *fn1

Act I, Inc. first contends that the proposed use meets the specific criteria for a group home permitted by right in the NC zoning district.

Section 201 of the Ordinance defines a "group home" as follows:

The use of any lawful dwelling unit which meets all of the following criteria:

1. involves the care of the maximum number of persons permitted by the 'group home' standards of Section 2002, *fn2 and meets ...


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