S. Schwartz v. Philadelphia Zoning Board of Adjustment

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sheldon Schwartz :

and Kenneth L. Baritz, Esquire :

:

v. :

:

Philadelphia Zoning Board of :

Adjustment :

:

Sheldon Schwartz :

and Kenneth L. Baritz, Esquire :

:

v. :

:

Philadelphia Zoning Board of :

Adjustment :

:

Sheldon Schwartz :

and Kenneth L. Baritz, Esquire :

:

v. : No. 1334 C.D. 2014

: Argued: May 5, 2015

Philadelphia Zoning Board of :

Adjustment :

:

Paul Abeln :

:

v. :

:

Philadelphia Zoning Board of :

Adjustment :

:

Appeal of: Paul Abeln, Sheldon :

Schwartz, Rachel Lisitsa, Stephanie :

Burns, Elizabeth Clanaman and :

Jessica Nabitovsky :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY

SENIOR JUDGE COLINS FILED: September 24, 2015

Sheldon Schwartz and Paul Abeln (collectively Appellants)1 appeal

the July 1, 2014 order of the Court of Common Pleas of Philadelphia County (Trial

Court) holding that the definition of “family” contained in Section 14-102(49) of

the former Philadelphia Zoning Code (Code) is constitutional on its face and as

applied to Appellants. We affirm.

This appeal arises out of two matters that proceeded separately before

the City of Philadelphia Zoning Board of Adjustment (ZBA). Both matters began

when the Department of Licenses and Inspections (L&I) issued citations to

Appellants. Appellants each own and are landlords for properties zoned for single-

family and two-family residential use; Appellants’ properties each have use

permits for single-family residential use. The properties are located in the

Powelton Village section of the City of Philadelphia near the Drexel University

campus. Appellants were each cited for violating a section of the Code2 that

prohibits an unauthorized change in the zoned use or occupancy of a property

1

Kenneth L. Baritz, Esquire, is not participating in this appeal and was named in the underlying

action solely because he appealed the initial violation on behalf of his client, Sheldon Schwartz.

(See April 1, 2015 Notice of Non-Participation.) Appellees Robin Dominick, Carolyn Healy,

Michael Jones, George Poulin, the Powelton Village Civic Association and the City of

Philadelphia Zoning Board of Adjustment are precluded. (See April 1, 2015 Order.) The

participating Appellees are the City of Philadelphia and Drexel University.

2

Philadelphia enacted a new Code, with an effective date of August 22, 2012, and has been

engaged in a comprehensive remapping process. The citations were issued under the prior Code.

Under the new Code, the properties have remained zoned for single-family and two-family

residential use.

2

based on the presence of more than three unrelated individuals residing in a

property zoned for single-family residential use. The Code defines a “family” as:

A person living independently or a group of persons living as a single

household unit using housekeeping facilities in common, but not to

include more than three persons unrelated by blood, marriage or

adoption.

Code § 14-102(49).3 Appellants each rented their properties to groups of students

attending Drexel University that contained more than three persons unrelated by

blood, marriage or adoption.

Appellants’ challenges to the citations followed different procedural

paths. Mr. Schwartz appealed to the L&I Review Board and the Board transferred

his appeal to the ZBA. The ZBA held a hearing and denied the appeal. Mr.

Schwartz then appealed the denial to the Trial Court. Mr. Abeln appealed directly

to the ZBA, which denied the appeal following a hearing. Mr. Abeln then

appealed the denial to the Trial Court and the Trial Court remanded to the ZBA to

develop a full record. The ZBA held three hearings and issued a March 18, 2014

decision containing findings of fact and conclusions of law that denied the appeal.4

Mr. Abeln appealed the denial to the Trial Court.

3

Under the new Code, this definition includes foster children and life partners. See Current

Code § 14-203(115).

4

On remand from the Trial Court, the ZBA held multiple hearings in order to create an

evidentiary record. Paul Abeln testified before the ZBA on July 31, 2013. (Reproduced Record

(R.R.) at 1687a-1725a.) The hearing held on September 11, 2013 included testimony from

tenant Rachel Lisitsa and Reaves Luken, III, a real estate appraiser and consultant offered as an

expert by Paul Abeln. (R.R. at 1595a-1629a.) The hearing held on December 4, 2013 contains

testimony from L&I Inspector Charles Wise, George Poulin, an architect and zoning committee

chair of the Powelton Village Civic Association (PVCA), Michael Jones, President of PVCA,

Brian Keech, Drexel University’s Senior Vice-President for Government Community Relations,

and neighbors Cara Crosby and Joe Revelock. (R.R. at 1441a-1592a.)

3

On August 2, 2013, the Trial Court consolidated the appeals. The

legal issues involved in the appeals are identical. The Trial Court did not take

additional evidence and both Mr. Schwartz and Mr. Abeln proceeded in reliance on

the record developed in the Abeln proceedings before the ZBA for the property

located at 317 N. 34th Street. The Trial Court issued a thorough and well-reasoned

opinion on October 30, 2014 affirming the ZBA.

Before this Court, Appellants argue that: (i) the Code provision

defining “family” should be reviewed with strict scrutiny to determine its

constitutionality; (ii) the Code provision defining “family” is facially

unconstitutional under both a strict scrutiny and a rational basis analysis; and (iii)

the Trial Court erred in concluding that the evidence did not demonstrate that the

use of the property by more than three unrelated persons was functionally

equivalent to a single-family use of the property.5

The United States Supreme Court held in Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926), that the enactment of zoning ordinances is a constitutionally

permissible exercise of the police power and, as such, an ordinance will be held

unconstitutional only where the ordinance is clearly arbitrary and unreasonable,

with no substantial relation to the public health, safety, morals, or general welfare.

Id. at 386, 395. The Court cautioned reviewing courts that “[i]f the validity of the

legislative classification for zoning purposes be fairly debatable, the legislative

judgment must be allowed to control.” Id. at 388. In addressing the

5

Where the trial court has taken no additional evidence, appellate review is limited to

determining whether the zoning hearing board committed an error of law or a manifest abuse of

discretion. Hertzberg v. Zoning Board of Adjustment, 721 A.2d 43, 46 (Pa. 2004). An abuse of

discretion will be found only where the zoning board’s findings are not supported by substantial

evidence. Id. Substantial evidence is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Id.

4

constitutionality of zoning ordinances under the United States Constitution, the

United States Supreme Court echoed the conclusion previously reached by the

Pennsylvania Supreme Court when addressing the constitutionality of zoning

ordinances under the Pennsylvania Constitution; following Euclid, the federal

courts and the courts of this Commonwealth have scrutinized zoning ordinances to

determine whether the ordinance had a rational basis and if the ordinance was not

clearly arbitrary, the courts have deferred to legislative judgment and upheld the

ordinance.6 Best v. Zoning Board of Adjustment of the City of Pittsburgh, 141

A.2d 606 (Pa. 1958); Appeal of Ward, 137 A. 630 (Pa. 1927); Appeal of White, 134

A. 409 (Pa. 1926).

The United States Supreme Court was asked to revisit the level of

scrutiny applied to the review of zoning ordinances in Village of Belle Terre v.

Boraas, 416 U.S. 1 (1974), where an ordinance that permitted single-family

residences and excluded all other residential uses was challenged on the basis that

it violated the right to equal protection under the law and the rights of association,

travel, and privacy guaranteed by the United States Constitution. Id. at 3, 8. The

ordinance at issue in Belle Terre defined “family” as: “(o)ne or more persons

related by blood, adoption, or marriage, living and cooking together as a single

housekeeping unit, exclusive of household servants. A number of persons but not

6

Article I, Section 1 of the Pennsylvania Constitution, and the Fifth and Fourteenth Amendments

to the United States Constitution protect private property rights. Article I, Section 1 provides

that “All men are born equally free and independent, and have certain inherent and indefeasible

rights, among which are those of enjoying and defending life and liberty, of acquiring,

possessing and protecting property and reputation, and of pursuing their own happiness.” Pa.

Const. art. 1 § 1. The Fifth Amendment provides that no person shall “be deprived of life,

liberty, or property, without due process of law; nor shall private property be taken for public

use, without just compensation,” and the Fourteenth Amendment makes these protections

applicable to the states. U.S. Const. amend. V, XIV.

5

exceeding two (2) living and cooking together as a single housekeeping unit

through [sic] not related by blood, adoption, or marriage shall be deemed to

constitute a family.” Id. at 2. After the owner of a home subject to the ordinance

was cited by the village for leasing the property to a group of six unrelated college

students, the owner and three tenants brought suit under 42 U.S.C. § 1983 seeking

an injunction and a declaration that the ordinance was unconstitutional. Belle

Terre, 416 U.S. at 3.

The Court held in Belle Terre that the ordinance did not burden

fundamental rights and instead was economic and social legislation that bore a

rational relationship to a permissible state objective. Id. at 8. The Court noted that

when a point must be fixed to mark the change from one category to another, the

legislature must act reasonably but cannot be expected to act with absolute

precision.7 Id. at 8 n.5. The Court also concluded that the concept of public

welfare was broad and inclusive; rather than limited to preventing blight, disease,

and crime, the police power included the authority to design and create different

kinds of spaces within a community, stating:

A quiet place where yards are wide, people few, and motor vehicles

restricted are legitimate guidelines in a land-use project addressed to

family needs. This goal is a permissible one. The police power is not

confined to elimination of filth, stench, and unhealthy places. It is

ample to lay out zones where family values, youth values, and the

blessings of quiet seclusion and clean air make the area a sanctuary

for people.

Id. at 9 (internal citations omitted). The Pennsylvania Supreme Court has likewise

interpreted the police power as granting the legislature broad authority to enact

7

“[T]he Constitution presumes that even improvident decisions will eventually be rectified by

the democratic process.” City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432

(1985).

6

zoning ordinances that seek to serve the public need by supporting different types

of residential housing, providing for aesthetically pleasing and open spaces, and

establishing well-balanced and multifarious land uses through large-scale planning

within municipalities. Best, 141 A.2d at 611-612; see also Albert v. Zoning

Hearing Board of North Abington Township, 854 A.2d 401, 410 (Pa. 2004) (“one

of the many benefits of single-family zoning districts is that they create residential

neighborhoods in which the residents may develop a sense of community and a

shared commitment to the common good of that community. Without some level

of stability and permanence in the composition of the groups residing in such

residential districts, this goal is necessarily subverted”).

Appellants do not dispute the primacy of Euclid in any discussion of

the constitutionality of a zoning ordinance or the majority holding in Belle Terre

and its adoption by the courts of this Commonwealth. See, e.g., Appeal of Miller,

515 A.2d 904, 909 (Pa. 1986); Owens v. Zoning Hearing Board of Borough of

Norristown, 468 A.2d 1195, 1197 (Pa. Cmwlth. 1983) (ordinance preventing seven

adults unrelated by blood or marriage from residing in single-family and two-

family residential district is a legitimate exercise of the police power); Appeal of

McGinnis, 448 A.2d 108, 112 (Pa. Cmwlth. 1982) (ordinance prohibiting more

than five unrelated people from cohabitating in single-family residential district is

a permissible exercise of the police power); see also Farley v. Zoning Hearing

Board of Lower Merion Township, 636 A.2d 1232 (Pa. Cmwlth. 1994); Lantos v.

Zoning Hearing Board of Haverford Township, 621 A.2d 1208, 1209 (Pa. Cmwlth.

1993).8 Instead, Appellants argue that the precedential value of the majority

8

Farley and Lantos are particularly salient here as each case addressed ordinances that directly

regulated use of single-family residences for student housing. In Farley, a group of property

owners argued that an ordinance unconstitutionally and arbitrarily distinguished student tenants

7

holding in Belle Terre has eroded and been superseded in many jurisdictions by the

dissent authored by Justice Thurgood Marshall.9

from other residential property users and should be struck down under the Pennsylvania

Constitution. 636 A.2d at 1234, 1236 & n.2. This Court held that the township had produced

substantial evidence that the presence of students diminished the residential character of the

neighborhood by creating a “dormitory-like” atmosphere with increased noise, trash, congestion,

and public urination. Farley, 636 A.2d at 1238-1239. In Lantos, the municipality enacted an

ordinance that permitted use of single-family residences for student housing by special

exception. 621 A.2d 1209. An owner of two single-family residences that did not meet the

requirements for a special exception brought a challenge arguing that continued use of his

properties as student housing was a legal non-conforming use and that an ordinance limiting use

of single-family residences by students was unconstitutional. Id. at 1210. This Court concluded

that the property owner had not produced evidence that “the unrelated student tenants had

maintained a ‘common household,’ operating in the manner akin to a family unit or the

functional equivalent thereof,” and therefore the property owner had not shown that the use had

been lawful under the previous ordinance. Id. at 1211. Furthermore, this Court rejected an

attempt to impose a higher scrutiny than the rational basis test because students are not a suspect

class and instead held that the constitutional challenge was without merit. Id. at 1212.

Following Farley and Lantos, it is clear that municipalities in Pennsylvania may enact

ordinances excluding students from certain districts where the ordinance is rationally related to

the legitimate purpose of preserving single-family residential uses within the municipality.

9

See, e.g., Berger v. State, 364 A.2d 993, 1002-1004 (N.J. 1976) (“When the Mantoloking

ordinance defining ‘family’ as those persons related by blood, marriage or adoption is measured

against the demands of due process, it is clear that the regulation must fall. It so narrowly

delimits the persons who may occupy a single family dwelling as to prohibit numerous potential

occupants who pose no threat to the style of family living sought to be preserved. As such, we

cannot conclude that the definition of ‘family’ is reasonable.”); McMinn v. Oyster Bay, 488

N.E.2d 1240, 1244 (N.Y. 1985) (accord); Charter Township of Delta v. Dinolfo, 351 N.W.2d

831, 843 (Mich. 1984) (accord); Santa Barbara v. Adamson, 610 P.2d 436, 442 (Cal. 1980)

(accord). But see also Ames Rental Property Association v. City of Ames, 736 N.W.2d 255, 263

(Iowa 2007) (“We find Ames’s zoning ordinance, which allows an unlimited number of related

persons to live together while limiting to three the number of unrelated persons in single-family

zones, is rationally related to the government’s interest in providing quiet neighborhoods.”);

McMaster v. Columbia Board of Zoning Appeals, 719 S.E.2d 660 (S.C. 2011) (accord); State v.

Champoux, 566 N.W.2d 763, 776 (Neb. 1997) (accord); City of Brookings v. Winker, 554

N.W.2d 827, 831-832 (S.D. 1996) (accord); Dinan v. Board of Zoning Appeals of Town of

Stratford, 595 A.2d 864, 871 (Conn. 1991) (accord); Town of Durham v. White Enterprises, Inc.,

348 A.2d 706, 710 (N.H. 1975) (accord).

8

In his dissent, Justice Marshall agreed with the Belle Terre majority’s

conclusion that the ordinance had a legitimate purpose that was within the

legislature’s power to advance, but concluded that the ordinance impermissibly

burdened an individual’s first amendment right to association and the right to

privacy, describing the village’s attempts to regulate zoning as a “commendable

course in a constitutionally faulty vessel.” 416 U.S. at 15, 20 (dissent). Justice

Marshall concluded that the ordinance impermissibly discriminated on the basis of

personal lifestyle choice as to household companions and imposed greater

restrictions on people who deviated from the community norm. Id. at 16 (dissent).

Justice Marshall further concluded that the village’s attempt to address density,

noise and traffic, to appeal to families, and to preserve economic vitality was both

underinclusive and overinclusive; the ordinance permitted an infinite number of

related people to cohabitate while preventing three unrelated people sharing a

single income and vehicle to cohabitate in a large house. Id. at 18-19 (dissent).

Finally, Justice Marshall noted the lack of any evidence in the record that

demonstrated the goals of the village would be undermined by allowing the same

number of unrelated people to share a dwelling as it did related people. Id. at 20

(dissent).

Justice Marshall’s dissent was animated by a concern that a

municipality not be allowed to “fence out those individuals whose choice of

lifestyle differs from that of its current residents.” Id. at 16-17 (dissent). In

support of this principle, Justice Marshall cited to the landmark Pennsylvania

Supreme Court case Appeal of Girsh, 263 A.2d 395 (Pa. 1970), which held that a

township had “to provide for apartments in its plan for future growth; it cannot be

allowed to close its door to others seeking a ‘comfortable place to live.’” Id. at 397;

9

see also Belle Terre, 416 U.S. at 16 n.4 (dissent). However, in Belle Terre and

Girsh the residential uses sought by the challengers were prohibited within the

bounds of the municipalities. In the instant matter, the Code does not prohibit

more than three persons unrelated by blood, marriage or adoption from

cohabitating within the municipality; instead the Code prohibits groups that do not

fit within the definition of “family” from cohabitating by right in a property zoned

for single-family residential use.

Even if we were to accept that Justice Marshall’s dissenting views had

evolved into majority precedent, it is difficult to reason that these views would

hold sway here. It is of note that in highlighting an example of an ordinance that

Justice Marshall did find constitutionally permissible, he singled out an ordinance

that defined “family” as “one person living alone, or two or more persons related

by blood, marriage, or legal adoption, or a group not exceeding four persons living

as a single housekeeping unit,” to the detriment of a communal living group

cohabitating in an area zoned for single-family residential use. Belle Terre, 416

U.S. at 17 n.6 (dissent) (citing Palo Alto Tenants’ Union v. Morgan, 487 F.3d 883

(9th Cir. 1973)). The Code provides for a diversity of residential uses by right, as

the village ordinance in Belle Terre did not, and the Code strikes a balance in its

provision of uses by right in single-family residential districts between the

fundamental rights surrounding related or legally bound families,10 and the rights

10

See, e.g., Obergfell v. Hodges, __ U.S. __, __, 135 S. Ct. 2584, 2599-2603 (2015) (discussing

the fundamental right to marry and the constellation of benefits that States have permissibly

linked to marriage, as well as the privileged place marriage holds in our laws and society);

Moore v. City of East Cleveland, 431 U.S. 494, 498-503 (1977) (plurality) (discussing

Fourteenth Amendment protection of marriage and family life and recognizing that regulations

intruding into the life of families related by blood, marriage or adoption are subject to a higher

level of scrutiny); Loving v. Virginia, 388 U.S. 1, 12 (1967) (recognizing that “[m]arriage is one

of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”). The

10

of those who are unrelated but desire a similar residential use without having to

seek a variance or special exception.

This Court is not persuaded by Appellants’ argument that the opinions

of our sister states interpreting their state constitutions, coupled with the passage of

time, has lessened the authority of the holding reached by the Belle Terre majority.

Pennsylvania courts have consistently utilized the rational basis test to examine the

constitutionality of zoning ordinances limiting the composition of households in

single-family residential districts. Moreover, where applicable, the Belle Terre

majority has been interpreted as controlling authority under the Pennsylvania as

well as the United States Constitution. Appeal of Miller, 515 A.2d at 909; Owens,

468 A.2d at 233; Appeal of McGinnis, 448 A.2d at 112 & n.2; Children’s Home of

Easton v. City of Easton, 417 A.2d 830 (Pa. Cmwlth 1980)11; see also Farley 636

constitution continues to be interpreted to privilege relationships grounded in marriage, adoption,

and biology; the privileging of these relationships, when equally applied to all people who enter

into them, has not been interpreted to burden the right of association, including the associational

rights of those who do not establish formal legal relationships amongst one another. See, e.g.

Moore, 431 U.S. at 499 (concluding that the ordinance in Moore is distinguishable from the

ordinance in Belle Terre because the ordinance in Belle Terre affected only unrelated persons

while the ordinance in Moore “slic[es] deeply into the family itself.”)(plurality).

11

In Children’s Home, this Court held that an ordinance was unconstitutional as applied because

it defined family to prohibit the use of a dwelling by two parents with two biological children

and two foster children in an area zoned medium density residential. Id. at 831, 833. This Court

stated that by permitting two parents with four biological children and prohibiting two parents

with two biological children and two foster children the ordinance was not rationally related to

the legislature’s objective. Id. at 833. This Court discussed and distinguished Belle Terre,

concluding that while “Belle Terre on its face would appear to control the matter now before us,

we are of the opinion that the factual differences between a foster family as described in the

record of this case and six unrelated college students residing temporarily in a residential

dwelling are so vast that a different result is compelled.” Children’s Home, 417 A.2d at 833.

Furthermore, this Court stressed that the ordinance was not facially unconstitutional. Id.; see

also Hopkins v. Zoning Hearing Board of Abington Township, 423 A.2d 1082 (Pa. Cmwlth.

1980) (ordinance limiting more than two unrelated persons from living together in an area zoned

for single-family use is unconstitutional as applied to three intellectually disabled children and

11

A.2d at 1236 n.2. Therefore, we reaffirm that a zoning ordinance limiting single-

family residential use based on a definition of “family” that permits an unlimited

number of persons related by blood, marriage, or adoption to cohabitate in a single-

family residence, while restricting the number of unrelated persons who may do so,

is not subject to strict scrutiny under the Pennsylvania Constitution and instead

should be reviewed to determine if the ordinance has a rational basis.

Social and economic legislation involves drawing lines that are

inherently overinclusive and underinclusive. The concerns expressed by Justice

Marshall in his Belle Terre dissent regarding legislative attempts to regulate people

alleged to deviate from a supposed norm is an area of great concern to the courts,

particularly as our society has grown to recognize previously unscrutinized barriers

to access and freedoms guaranteed to all people by our founding documents.

These concerns do not, however, render each and every line drawn and category

created by the legislative branch constitutionally infirm. Rather, these concerns

require us to ensure that the lines drawn and categories created are free of arbitrary

whims and burdens placed on fundamental rights and interests. Land use is an area

of law where the rubber meets the road in the relationship between local

government and its citizenry; land use law reaches from mundane issues of

setbacks to profound issues of personal freedoms, and in traversing this spectrum

the land use laws of a local government encroach upon the lives and living space of

each person within its bounds, creating tension with what Justice Brandeis termed

the right most valued by civilized people, “the right to be let alone.” Olmstead v.

United States, 277 U.S. 438, 478 (1928). We resolve this tension by recognizing

that such intrusions are permissible when rationally related to the use of land rather

two house parents brought together by a state program because they are the functional equivalent

of a biological family).

12

than the people using it and, in dense urban areas, have been acknowledged as a

practical necessity, and by construing zoning ordinances strictly to prohibit

restriction of the use of land by implication. Euclid, 272 U.S. at 387; Fidler v.

Zoning Board of Adjustment of Upper Macungie Township, 182 A.2d 692, 695 (Pa.

1962). A zoning ordinance is presumed to be constitutional, it is presumed to be

enacted in service of the general welfare, and therefore, a heavy burden rests upon

the person raising a constitutional challenge. Upper Salford Township v. Collins,

669 A.2d 335, 336 (Pa. 1995). Although Belle Terre informs our analysis of the

constitutionality of the definition of “family” contained in the Code, our analysis is

more aptly guided by the precedents of our Supreme Court, specifically Appeal of

Miller and Albert.12

In Appeal of Miller, our Supreme Court addressed whether use of a

single-family residence as a personal care boarding home constituted a valid non-

conforming use of the property. The definition of “family” contained in the

ordinance, which was replaced by a definition of “family” utilizing blood and

marriage, permitted “any number of persons living and cooking together as a single

housekeeping unit.” 515 A.2d 904. Our Supreme Court held that this definition of

“family” permitted use of a single-family home to board elderly residents and that

appellant’s use was therefore a legal non-conforming use. Id. at 909.

In reaching its holding in Appeal of Miller, our Supreme Court

reviewed the history of ordinances defining single-family residential uses,

explaining that while the legitimacy of creating exclusive single-family districts

12

In Albert our Supreme Court held that a property zoned for single-family residential use could

not be used as a sober-living house for people in recovery from drug and alcohol addiction

because the residents changed on a regular basis and the group did not possess internal stability

and permanence, and therefore were not functionally equivalent to a “family,” even though the

applicable ordinance left that term undefined. 854 A.2d at 410-411.

13

was settled early on and employed frequently as suburban communities developed,

the question of how to define “family” remained unsettled. Id. at 907. The first

attempts to define “family” in an effort to reduce uncertainty and litigation led to

adoption of the term “single housekeeping unit,” which focused the inquiry on

whether the unit functioned as a “family” rather than the respective relationships

within the unit and permitted large extended families to live together, but which

also failed to limit litigation, leading to the subsequent usage of definitions based

on blood, marriage and adoption. Id. Our Supreme Court concluded that the term

“single housekeeping unit” was not construed to limit use to persons related by

blood or marriage or to exclude units where fees were paid. Id.

The Court examined two prior Commonwealth Court cases addressing

the validity of ordinances that limited single-family residential use by defining

“family” and concluded that in each instance this Court had employed a functional

analysis to determine if the use of the property was equivalent to the single-family

use defined in the challenged ordinance. Id. at 908. The cases examined by our

Supreme Court were Children’s Aid Society v. Zoning Board of Adjustment, 402

A.2d 1162 (Pa. Cmwlth. 1979), and Wengert v. Zoning Hearing Board of Upper

Merion Township, 414 A.2d 148 (Pa. Cmwlth. 1980). In Children’s Aid Society, a

charitable society sought to use a detached dwelling in a residential district

permitting single-family use for a family with six foster children. 402 A.2d at

1163. The society sought a special exception in the form of a use certificate

because the foster family did not fit within the definition of “family” contained in

the ordinance, which defined “family” as related by blood or marriage, and L&I

denied the use certificate. Id. This Court held that the ordinance was

unconstitutional as applied because use of the property as a residence for a family

14

with foster children was functionally equivalent to use of the property as a

residence for a biologically related family. Id. at 1164. By contrast, in Wengert,

this Court held that a corporate-run foster home for troubled adolescents referred

by court order was an institutional home and was not a permitted use in a single-

family residential district that defined family as “any number of individuals living

together as a single non-profit housekeeping unit.” 414 A.2d at 149.

Following its examination of Children’s Aid Society and Wengert, the

Court in Appeal of Miller approved of this Court’s application of “single

housekeeping unit” to exclude uses that were primarily driven by profit or were for

therapeutic or corrective purposes, but concluded that neither of these factors

precluded the appellant’s use of her residence as a personal care boarding home.

515 A.2d at 909. The Court held that, when employing a functional analysis, the

evidence demonstrated that the unit within appellant’s home fit within the

definition of “family” contained in the applicable ordinance. In reaching its

holding the Court highlighted the fact that the property owner provided her fellow

residents with room, board, some transportation, supervision in grooming, and

monitoring of personal needs, that each resident had access to and shared the entire

house, and that the residents cooked and took meals together. Id. at 905, 908. The

Court concluded that “[t]he mere fact that a member of the unit pays a fee for

belonging to the unit does not transform the relationship unless it also appears that

the profit motive is the basis for the relationship.” Id. The Court addressed

transience as a factor for evaluating the unit, stating “it is clear that this is not a

transient establishment but rather that the residents usually remain substantial

periods of time and move only for health reasons or personal preference.” Id.; see

also Albert, 854 A.2d at 410 (“in order to qualify as a ‘single housekeeping unit,’ a

15

group of individuals in a single household must not only function as a family

within that household, but in addition, the composition of the group must be

sufficiently stable and permanent so as not to be fairly characterized as purely

transient”). Finally, the Court concluded Appeal of Miller with its approval of the

newly enacted definition of family that utilized blood and marriage, stating that the

“Township recognized the inadequacy of its earlier ordinance and has adopted a

more specific one to carry out its intended planning for the area.” Id.

Following Appeal of Miller, as more and more municipalities adopted

a definition of family that utilized biological and legal relationships, including

blood, marriage, life-partners, and adoption, our Supreme Court and this Court

have repeatedly held that utilizing these relationships to limit use of a single-family

residence is not facially unconstitutional. Albert, 854 A.2d at 407 n.5; Act I, Inc.

v. Zoning Hearing Board of Bushkill Township, 704 A.2d 732, 737 (Pa. Cmwlth.

1997). However, Appeal of Miller makes clear that facial validity is not the end of

the inquiry, but rather the court must closely examine the ordinance in the context

of the record to ensure that the ordinance is not unconstitutional when it is applied

to the specific use at issue. See, e.g., Appeal of Lynch v. Community Homes, Inc.,

554 A.2d 155 (Pa. Cmwlth. 1989).13 Based on the record created before the ZBA,

13

In Appeal of Lynch, this Court examined a zoning ordinance that defined “family”, in relevant

part, as “[a]ny number of individuals living and cooking together as a single housekeeping unit,

provided that not more than two (2) of such number are unrelated to all of the others by blood,

marriage or legal adoption.” 554 A.2d at 156 n.3. This Court succinctly summarized the

analysis required in constitutional challenges to definitions of “family,” stating:

Whether zoning ordinances may or may not subject [group homes] or similar

operations to additional requirements not imposed upon biological families, even

when such operations can be viewed as functional equivalents of biological

families, must be determined on a case-by-case basis with consideration given to

the ordinance and municipal interests in question. Miller; Hopkins; Children’s Aid

Society.

16

Appellants have not demonstrated that the definition of family used in the Code is

unconstitutional as applied to their use of the properties.

Appellants admit that their properties are zoned for single-family

residential use and are rented to more than three unrelated individuals. However,

Appellants contend that the use of the properties by unrelated groups of students is

functionally equivalent to use of the properties by a “family.” In support of their

argument that the ordinance is unconstitutional as applied to their use of the

properties, Appellants offered the testimony of Paul Abeln, the owner of 317 N.

34th Street, and Rachel Lisitsa, a tenant residing at 317 N. 34th Street.14

Mr. Abeln testified that he does not reside at the property and that he

rents the property to groups primarily consisting of students. (ZBA July 31, 2013

Hearing Transcript (July H.T.) at 13, 31, R.R. at 1690a, 1695a.) Mr. Abeln

testified that he “advertised it as a house for a group of friends to live together, to

make it a home and enjoy their experience while at Drexel University, or their

college experience.” (Id. at 38, R.R. at 1697a.) Mr. Abeln testified that he has

three tenants from the group sign a lease and lists the remainder of the residents on

the lease as additional occupants of the property. (Id. at 39, R.R. at 1697a.) Mr.

Abeln further testified that each of the residents has access to all parts of the house

and that he receives one check each month signed by one of the tenants listed on

Appeal of Lynch, 554 A.2d at 158 (holding that definition of “family” was not unconstitutional as

applied to proposed use of the subject property for a community living group home for

intellectually disabled persons).

14

Appellants also offered the testimony of Reaves Lukens, III, a real estate appraiser and

consultant, who testified concerning the economic benefit derived from a higher density use of

the property but did not address whether the current use of the property was functionally

equivalent to the zoning ordinance’s definition of single-family residential use. (ZBA September

11, 2013 Hearing Transcript at 57-130, R.R. at 307a-326a.)

17

the lease. (Id. at 47-48, R.R. at 1699a.) At the time of the hearing before the ZBA,

eight people were residing at the property, collectively paying $5,000 per month in

rent in accordance with a two-year lease. (Id. at 52, 56, 60, R.R. at 1700a-1702a.)

Ms. Lisitsa testified that she rents the property with seven other

tenants under a two-year lease that she and two other tenants signed with their

parents as co-signers. (ZBA September 11, 2013 Hearing Transcript (Sept. H.T.)

at 15, 28, 51, R.R. at 297a, 300a, 306a.) Ms. Lisitsa testified that the other

residents of the property are her friends and sorority sisters, most of whom she’s

known for “a couple of years now,” since they rushed their sorority together. (Id.

at 20, 22, R.R. at 298a, 299a.) Ms. Lisitsa testified that during the lease, two of her

roommates moved out of the property, and two more of her sorority sisters moved

in after reaching an arrangement with the residents who were leaving. (Id. at 28,

40, 41, R.R. at 300a, 303a.) Ms. Lisitsa testified that she takes a leadership role in

the household; however, in regard to the incoming occupants of the property, Ms.

Lisitsa stated that the “parents are mainly the ones who handle it” and “I wasn’t

involved in it because I wasn’t moving out. The previous tenants and the new

tenants were the ones dealing with it. I just knew they were moving in.” (Id. at 40,

51, R.R. at 303a, 306a.) Similarly, Ms. Lisitsa testified that her father reviewed

and signed the lease before she signed it and that her father pays for her rent and

handles the collection of rent from the other occupants because “[h]e’s just more

responsible than I am, so we trust him more than we do trust a 20 year old girl with

rent.” (Id. at 33-35, R.R. at 301a-302a.)

Ms. Lisitsa also testified that each of the occupants of the property

have access to the full house, that the occupants do not rent merely a room, and

that although the individual bedrooms do have locks, “We don’t really lock the

18

doors, but if I were to go home for a weekend, I may lock it just in case the front

door is left unlocked by accident so no strangers can come in.” (Id. at 20, 57, R.R.

at 298a, 307a.) Ms. Lisitsa testified that the occupants of the property cooked,

dined and did chores together, bought or acquired furnishings as a group for

common use, and engaged in activities and planning as a group. (Id. at 17, 20, 38,

54-55, R.R. at 297a, 298a, 301a, 307a.) Finally, when questioned as to whether

she and the other occupants of the house considered themselves a family, Ms.

Lisitsa testified that her family lived in Richboro, Pennsylvania, which was home,

but that she would describe herself as having two families. (Id. at 32, 56-57, R.R.

at 301a, 307a.)

The Code prevents more than three persons unrelated by blood,

marriage or adoption from cohabitating in a single-family residence. The record

here reflects that more than three persons unrelated by blood, marriage or adoption

use the property as their residence; none of the occupants are legally bound to one

another and the group within the house has not shown itself to be a stable

permanent unit, although the evidence does reflect that they have permanent

biological, financial and legal ties with individuals who do not use the residence.

The use of the property is therefore very much unlike the use in Children’s Aid

Society of a single-family residential home by a foster family. Instead, the use of

the property more closely resembles the use in Albert. In Albert, the group was not

bound together by internal ties but by an external goal each was seeking to

achieve—to stay sober and return to their lives and families—which, when

achieved, would mark the end of the composition of the group and therefore leant

the group a transient character. 854 A.2d at 410. In the instant matter, each of the

residents are bound together by their college experience, ties which necessarily

19

entail regular change in the groups formed to use the property, and the internal

composition of these groups. However, even Albert is of little application because

the ordinance there had left “family” undefined, whereas here the ordinance very

clearly defines the term.

While the evidence supports the determination that the individual

residents have formed a single-household unit, the Code has a more restrictive

definition of “family” than the definition applicable in Appeal of Miller, capping

the number of unrelated people who can compose such a unit in a property zoned

for single-family residential use at three. Therefore, evidence that the group is

“living as a single household unit using housekeeping facilities in common,” is

insufficient to meet Appellants’ burden. Code § 14-102(49). Instead, when a

zoning ordinance utilizes the term “family” to define single-family residential use

based upon how the household is composed rather than on how the residents within

the household function, the burdened party must produce substantial evidence to

show that the use of the property will be equivalent to the use of the property by a

group that does fit within the strict definition of “family” found in the ordinance.

Compare Children’s Home and Hopkins, with Act I and Appeal of Lynch.

Appellants have not done so, seeking instead to graft the analysis applicable to

ordinances that do not utilize blood, marriage or adoption to define “family” onto

the definition found in the Code. Therefore, we conclude that because Appellants

have not produced substantial evidence to demonstrate that their use of the

properties is equivalent to use of the property by a group of persons related by

blood, marriage or adoption, Appellants have not demonstrated that the Code is

unconstitutional as applied to their use of the properties.

20

In sum, we hold that the question of the constitutionality of a zoning

ordinance is subject to a rational basis review, zoning ordinances defining “family”

using biological and legal bonds are not facially unconstitutional, and the

definition of “family” found in the Code is not unconstitutional as applied to

Appellants’ use of their properties. Accordingly, the order of the Trial Court is

affirmed.

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge

21

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sheldon Schwartz :

and Kenneth L. Baritz, Esquire :

:

v. :

:

Philadelphia Zoning Board of :

Adjustment :

:

Sheldon Schwartz :

and Kenneth L. Baritz, Esquire :

:

v. :

:

Philadelphia Zoning Board of :

Adjustment :

:

Sheldon Schwartz :

and Kenneth L. Baritz, Esquire :

:

v. : No. 1334 C.D. 2014

:

Philadelphia Zoning Board of :

Adjustment :

:

Paul Abeln :

:

v. :

:

Philadelphia Zoning Board of :

Adjustment :

:

Appeal of: Paul Abeln, Sheldon :

Schwartz, Rachel Lisitsa, Stephanie :

Burns, Elizabeth Clanaman and :

Jessica Nabitovsky :

ORDER

AND NOW this 24th day of September, 2015, the order of the Court

of Common Pleas of Philadelphia County in the above-captioned matter affirming

the decision and order of the City of Philadelphia Zoning Board of Adjustment is

AFFIRMED.

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge