Petition — McGinnis v. Langhorne Manor Borough

Supreme Court brief1983

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oe 7 1605

Office -Supreme Court, Th |

,rILED

MAR 28 1983

in The

ALEXANDER L. STEVAS,

CLERK

Supreme Court of the United States

OCTOBER TERM, 1983

IN RE: APPEAL OF THERESA McGINNIS FROM

THE DECISION OF THE LANGHORNE

MANOR BOROUGH ZONING HEARING

BOARD

THERESA MCGINNIS, PETITIONER

PETITION FOR A WRIT OF CERTIORARI TO

THE COMMONWEALTH COURT

OF PENNSYLVANIA.

DAVID H. MOSKOWITZ

Moskowitz, Zamparelli &

Weiss, P.C.

Suite 414, One Oxford Valley

Langhorne, Pennsylvania

(215) 752-7770

19047

Attorneys for Petitioner

THE SUPERIOR APPELLATE PRINTING COMPANY

PO BOX 363 AREA CODE 609

CRANBURY NJ 08512 443-4202

QUESTIONS PRESENTED

Where a group of unrelated indivi-

duals create a family living arrance-

ment in a single-family residential

zoning district, (a) does the group

have a constitutional right to exist

as a family, and (b) is the means

by which the family living arrange-

ment is made financially feasible

determinative of whether it con-

stitutes a family for zoning pur-

poses?

Is it a denial of the constitutional

right of adults and especially

elderly adults, to equal protection

to hold that the functional equival-

ent of a biological family must

consist of parent and dependent

child?

May a municipality make a decision

which will force elderly residents

to levae their homes, without deter-

mining the constitutional rights of

the elderly to due process of law

and protection of those rights?

TABLE OF CONTENTS

Page

Petition for Writ of Certiorari

to the Commonwealth Court of

Pennsylvania . .. ++ -+-+-s« el

The Opinions Below. . .. ++ «2

Jurisdiction . . « «© «© «© e « « 03

Constitutional and Statutory

Provisions Involved. .... «4

Statement of the Case. . ... «5

Reasons for Granting the Writ. 16

I. THIS COURT SHOULD ISSUE A

WRIT OF CERTIORARI BECAUSE THIS

CASE PRESENTS AN IMPORTANT

UNSETTLED CONSTITUTIONAL QUESTION

WHICH HAS BEEN DECIDED DIFFERENTLY

BY STATE COURTS. - - «© « « « 16

A. A GROUP OF UNRELATED

INDIVIDUALS WHO CREATE A

FAMILY IN A SINGLE-FAMILY

RESIDENTIAL ZONING DISTRICT

IS ENTITLED TO CONSTITUTIONAL

PROTECTION AND A HEIGHTENED

LEVEL OF SCRUTINY .. . 16

B. THE MEANS BY WHICH A FAMILY

LIVING ARRANGEMENT IS MADE

FINANCIALLY FEASIBLE ARE NOT

DETERMINATIVE OF WHETHER IT

CONSTITUTES A FAMILY FOR

ZONING PURPOSES... . . 29

TABLE OF CONTENTS

Page

II. THIS COURT SHOULD GRANT

CRTIORARI BECAUSE THE CONSTI-

TUTIONAL RIGHTS OF ADULTS,

ESPECIALLY ELDERLY ADULTS TO

EQUAL PROTECTION ARE ADVERSELY

AFFECTED BY THE DECISION OF THE

COMMONWEALTH COURT ©F PENNSYLVANIA

WHICH CONSTITUTIONAL RIGHTS HAVE

NOT BEEN BUT SHOULD BE SETTLED BY

THIS COURT... « «© «© «© © «© © «© 034

III. THIS COURT SHOULD GRANT

CERTIORARI BECAUSE THE ELDERLY

RESIDENTS OF THE McGINNIS HOME

HAVE A CONSTITUTIONAL RIGHT TO

DUE PROCESS BEFORE A DECISION IS

MADE THAT WILL REQUIRE THEM TO

LEAVE THEIR HOMES... ..+-+ - 43

Conclusion . ° . . . . . * . . . 48

Appendix A eo 2+ 6 6 82 6 & eS ee & 8 la

Opinion of the Zoning Hearing

Board of Langhorne Manor

Borough dated June 11, 1960

Appendix B . «+ + « «+ «+ « « « « 10a

Opinion of the Court of Common

Pleas of Bucks County (Biester,J.)

dated March 24, 1981

Appendix C «2 + 0 0 6 0 oe 0 oo O88

Opinion of the Commonwealth Court

of Pennsylvania dated July 29, 1982

’

TABLE OF CONTENTS

Appendix D a 2k a ae oon ho ae ee ee -62a

Constitutional and Statutory

Provisions Involved

Appendix EB. «© © «© «© © © «© eco « 0648

Questions Presented

iii

CITED AUTHORITIES

Cases Page

Berger v. State, 71 N.J. 206,

364 A.2d 993(1976)..... 27

Bracco v. Lackner, 462 F.Supp

436 (N.D. Cal 1978) - a . . . 44

Brede v. Director for Department

of Health, 616 F.2d 407

(9th Cir. 1980)... . . «43,44

Bumpus v. Clark, 681 F.2d

679 (9th Cir. 1982). ... . 44

Burchette v. Dumpson, 387 F.

Supp 812 (E.D.N.Y¥.1974). . . 43

Children's Home of Easton v.

City of Easton,53 Pa.Cmwlth.

Ct.216,417 A.2d 830(1980)

oe « « Seeaeeae ~ae

City of Des Plaines v.

Trotter, 34 111.2d 432, 516,

N.E. 2d 116(1966)..... . 26

City of Santa Barbara v.

Adamson, 27 Cal. 3d 123,

610 P.2d 436 (1980). . 21,25, 26

City of White Plains v.

Ferraioli, 34 N.Y. 2d

300, 357 N.Y.S.2d

449, 313, N.E. 2d 756

(1974) ceososevues @

Costley v. Caromin House, Minn. ,

313 N.W.2d 21 (1981) ©. . . 32

CITED AUTHORITIES

Cases

‘Crowley v. Knapp,94 Wis 2d 42,

288 N.W. 2d 815(1980)- - -

Doe v. Bolton, 410 U.S. 179,

93 S.Ct.739,35 L.ED.2d

BOs SEPTOR 2 6 8 8 6 8 8 le

Hopkins v. Zoning Hearing

Board of Abington Township

55 Pa. Cmwlth. Ct. 368, 423

A.2d 1082 (1980) . 32,35,

Klein v. Mathews, 430 F. Supp,

1005 (D.N.J. 1978) ....

Lakeside Youth Service v.

Zoning Hearing Board of

Upper Moreland Township,

51 Cmwlth Ct. 485,

414 A.2d 1115(1980) °

McGinnis v. Zoning Hearing

Board of Langhorne Manor

Borough,136 Bucks Co.

L. Rep. 115 (1981) aff'd

in part, rev'd in part_ Pa.

Cmwlth Ct. ,448A.2d

108(1982)

Moore v. ari ae E. ate Wa

Ohio, US 494, 97 S. Ct.

1932, 52 L. Ed 2d 531

Page

- 47

36,38

» «43

« edo

Passim

(1971) . « © © © «© © 19,21, 24, 36

Neptune Park Association v.

Steinberg, 138 Co 357

84 A.2d 687 (1951). ....

- 27

CITED AUTHORITIES

Cases Page

Pennsylvania George Junior

Republic v. Zoning Hearing

Board of Cool Springs Town-

ship, 37 va. Cmwlth Ct. 151,

389, A.2a 261 (1978)... . 35

Sierra Club v. Morton, 405

U.S. 737, 92, S.Ct. Li,

31 L. Ed 2d 636(1972) ... 46

State ex rel Region II Child

& Family Services v.

District Court of the

Eighth Judicial Circuit,

609 P. 2d 245 (Mont. 1986)- 27

Township of Pemberton v.

State of New Jersey, 178

N.J. Super 346, 429, A.2d

360 CAS0E). 6 6 ee oe eo 8 SF

Village of Belle Terre v.

Boraas, 416 U.S. 1 (1974), Passim

Wengert v. Zoning Hearing

Board of Upper Merion

51 Pa. Cmwlth Ct. 79,

414 A2d 148 (1980). . .. . 35

Yaretsky v. Blum, 629 F.2d

817 (2d Cir. 1980),

rev.d other grounds U.S. ,

102 S.Ct 2777 (1982). .43,44

CONSTITUTION OF THE UNITED STATES

F irs t Amendmen t . . 7 . . . .

Fourteenth Amendment ....

ZONING ORDINANCE OF LANGHORNE

MANOR BOROUGH

Section 215 oe ee ee eae

vii

Petition

IN THE SUPREME COURT

OF PENNSYLVANIA

OCTOBER TERM, 1983

THERESA McGINNIS,

Petitioner

IN RE: APPEAL OF THERESA McGINNIS FROM

THE DECISION OF THE LANGHORNE

MANOR BOROUGH ZONING HEARING

BOARD

PETITION FOR A WRIT OF CERTIORARI TO

THE COMMONWEALTH COURT OF PENNSYLVANIA

The Petitioner, Theresa McGinnis,

prays that a Writ of Certiorari issue

to review the judgment and order of the

Commonwealth Court of Pennsylvania

rendered in these proceedings on July 29,

1982 and the denial of Petition to allow

appeal of said decision by the Supreme

Court of Pennsylvania on December 28,

1982.

THE OPINIONS BELOW

The Opinion of the Commonwealth

Court of Pennsylvania is reported

at Pa. Cmwlth Ct. , 448 A.2d 108

(1932) and appears herein as

Appendix C. The Denial of the Supreme

Court of Pennsylvania of the Petition

for Allowance of Appeal is by letter and

is not reported.

The Opinion of the Zoning Hearing

Board of Langhorne Manor Borough appears

herein as Appendix A. The opinion of

the Court of Common Pleas of Bucks

County (Biester, J.) is reported at

36 Bucks County L. Rep. 115 (1981) and

Appears herein as Appendix B.

JURISDICTION

(i) The judgment of the Commonwealth

Court of Pennsylvania which is sought to

be reviewed was entered on July 29, 1982.

See Appendix C, infra. On August 30, 1982,

Petitioner filed a Petition for Allowance

of Appeal to the Supreme Court of Penn-

sylvania which denied the Petition on

December 28, 1982. This petition for

certiorari was filed within ninety (90)

days from the date of the aforesaid judg-

ment.

(ii) Jurisdiction to review the

judgment of the Commonwealth Court of

Pennsylvania by writ of certiorari is

conferred on this Court by Title 28 of the

United States Code, Section 1257(3).

CONSTITUTIONAL AID STATUTORY

PROVISIONS AND RULES INVOLVED

1. The following provisions of the

Constitution of the United States

are involved:

Amendment I

Amendment XIV

2. The following provision of the

Zoning Ordinance of Langhorne Manor

Borough is involved:

Section 215

The full text of the Amendment to the

Constitution and Ordinance Provision are

set forth in Appendix D which is attached

hereto.

STATEMENT OF THE CASE

Petitioner Theresa McGinnis indivi-

dually purchased the subject property

located at 401 Station Avenue, Langhorne

Manor Borough, Bucks County, Pennsylvania

in June of 1979. The property is zoned

R.A. Single Family Residential. Langhorne

Manor Borough is less than 1 mile long,

contains .65 square miles and has 17% of

its area zoned institutional, all of

which is owned by two schools and a

nursing home. The Borough contains 276

residential homes, some of which are

occupied as multifamily homes and

others of which have professional or

commercial accessory uses. In June or

July of 1979, Ms. McGinnis moved into

the property with several senior citizens.

After written notice to McGinnis

requesting her to cease and desist from

using the aforesaid property as a

nursing home or convalescent home in

violation of the Zoning Ordinance, the

Langhorne Manor Borough Zoning Officer,

on October 10, 1979, cited McGinnis for

failure to comply with Section 215 of

the Zoning Ordinance. McGinnis then

appealed from the issuance of the cita-

tion to the Zoning hearing Board of

Langhorne Manor Borough and, simultaneously,

requested a variance from the use regu-

lations of the R.A. District, or, in

the alternative, a determination that

Section 215 of the Langhorne Manor

Borough Zoning Ordinance was unconsti-

tutional in general or as applied to

her property. Hearings were held by

the Langhorne Manor Borough Zoning

Hearing Board on January 9, 1980,

January 30, 1980, March 26, 1980, and

April 2, 1980. At the January 30, 1980

hearing, McGinnis requested that her

application also be regarded as asking

for a special exception residential

conversion under Section 403(c) of

the Zoning Ordinance. No decision was

ever rendered on this application.

The subject property is a very large

English Tudor house with three floors,

plus attic and cellar. (R.19(a))+. Its

immediate previous use was as a

physician's residence with attached

medical offices. (R.22(a)-23(a)). The

first floor of the house consists of a

foyer, dining room, kitchen, patio, en-

closed porch, two powder rooms, laundry

and sitting room. (pR.24(a)-30(a). The

1 “R" references are to the reproduced

record of the testimony before the Zoning

Hearing Board appellee in the Court of

Common Pleas, entered March 24, 1981

Bucks County at No. 80-7453-14-5.

former mejical offices are also on this

floor and consist of three (3) additional

rooms which are being used as a bedroom

suite. (R.23(a)). The second floor of

the house contains five (5) bedrooms,

a converted sitting room and three full

baths. (R.31l(a)-33(a)). McGinnis has

equipped the home with an electric eye

garage, mechanical chair for access to

the second floor and a comprehensive

smoke alarm system. (R.21(a)-22(a),

30(a)).

At the time of the hearings, Ms.

McGinnis and six (6) senior citizens

lived in the home, at least one of

whom is her relative. (R.35(a)-36(a)).

Although Ms. McGinnis has a B.S. and an

M.A. in nursing, she is not providing

nursing care for the individuals in

the subject house, all of whom are

ambulatory, continent, and capable, in

varying degrees, of taking care of most

of their own physical needs.

(R.37(a)-39(a)).

Individual residents are charged

what they and their families can afford

although the exact fee arrangements for

several of the individuals were not

disclosed. (R.64(a), 70(a), 286(a)-

287(a)). The charges vary from $14.00

a day to $20.00 a day depending upon

the degree of supervisory care which

the resident requires. Each of the

residents testified as to a desire to

remain permanently in the home, that

each performed household tasks within

her capability and tended to the house-

hold pets and that they considered them-

selves to be a family. Ms. McGinnis

receives compensation from the operation

of the home and spends all of her time

there, assisted infrequently by her

sister, who volunteers her time. (R.42(a)).

Ms. McGinnis presented as an exhibit

to the Zoning Hearing Board her

business tax return, showing that the

house is being depreciated and that the

expenses of her running the residential

home are being taken as business expenses.

All of the witnesses and residents

testified that the residence was a home

and most of the senior citizens believed

that they had some sort of tenuous

familial relationship with Ms. McGinnis.

There is only one kitchen with single

cooking facilities, the residents eat

together, share all common areas and

live communally.

The residents, with the exception of

James McGinnis, testified that they came

to stay with Ms. McGinnis after having

heard gf her by word of mouth; there

is no sign, no advertising, no business

listing nor any other activity testified

to whereby Ms. McGinnis holds herself

out to the public as running a residential

home for senior citizens. In her

testimony before the Zoning Hearing

Board, Ms. McGinnis raised the issue of

the harmful and possibly fatal effects

an adverse decision and forced closing

of her residential home would have on

the elderly residents.

On June ll, 1980, the Langhorne

Manor Borough Zoning Hearing Board

rendered its decision. (Appendix A)

McGinnis appealed to the Court of

Common Pleas of Bucks County raising the

same issues that were presented to the

Zoning Hearing Board. The Borough of

Langhorne Manor intervened as Appellees

in support of the decision of the Zoning

Hearing Board. No additional testimony

was presented to the Court. The Court,

by the Honorable Edward G. Biester, Jr.,

entered an order sustaining the appeal of

Theresa McGinnis on the basis that the

Zoning Ordinance of Langhorne Manor Borough

was unconstitutional as specifically

applied to the McGinnis property. The

Court denied the request for a variance

and found that the use did not fit

within the definition of family pursuant

to the Langhorne Manor Borough Zoning

Ordinance. The Court did not decide

whether the Zoning Ordinance was uncon-

stitutional in general. Judge Biester

wrote the opinion for the Court on behalf

of the panel consisting of Judges William

Hart Rufe, III, Harriet M. Mims and Edward

G. Biester, Jr. (Appendix B)

The Borough of Langhorne Manor

appealed to the Commonwealth Court and Ms.

McGinnis filed a Cross-Appeal in order to

preserve the issues of permissive use,

variance and unconstitutionality in

general.

On July 29, 1982, the Commonwealth

Court rendered its decision reversing the

Court of Common Pleas' decision that the

Zoning Ordinance was unconstitutional as

applied to Ms. McGinnis’ use and affirming

the Court of Common Pleas of Bucks County's

refusal of a variance; there was no decision

concerning the issues of unconstitutionality

in general and of permissive use (Appendix

Cc).

In the initial presentation before the

Zoning Hearing Board, the issues of whether

the zoning ordinance could constitutionally

prohibit a family-like living arrangement

was raised and that any restriction should

be to use rather than users. The right of

the occupants to freedom of association

and travel was also raised at that time.

These issues were preserved on appeal

before the Court of Common Pleas of Bucks

County, the Commonwealth Court and the

Supreme Court of Pennsylvania.

The issue of the deleterious effect

upon the residents of their being forced

to move was first raised by Ms. McGinnis

in her testimony before the Zoning Hearing

Board (R.296a) as well as by one of the

residerts (R.85a). It was part of the

argument presented at every court level

and was part of the reproduced record for

the Commonwealth Court.

A copy of the questions presented to

the Supreme Court of Pennsylvania is set

forth in Appendix E. The Borough argued

in its brief to the Supreme Court of

Pennsylvania that these rights could not

have been raised by the residents unless

they were parties and that they therefore

have no standing. This issue was raised

by Ms. McGinnis on behalf of the elderly

residents; the question of her standing

to assert their rights has never been

raised by Langhorne Manor Borough.

The specific issue of whether it is

a violation of equal protection to hold

that the functional equivalent of a

biological family is limited to parent

and child did not arise until the

Commonwealth Court rendered its decision.

It was raised before the Pennsylvania

Supreme Court.

Petitioner filed a Petition for

Allowance of Appeal on August 30, 1982 to

the Supreme Court of Pennsylvania. On

December 28, 1982, by letter-Opinion, the

Supreme Court of Pennsylvania denied

Petitioner's Petition for Allowance of

Appeal. Petitioner now seeks certiorari

from this Court.

I. THIS COURT SHOULD ISSUE A WRIT OF

CERTIORARI BECAUSE THIS CASE PRESENTS

AN IMPORTANT UNSETTLED CONSTITUTIONAI.

QUESTION WHICH HAS BEEN DECIDED DIFFER-

ENTLY BY STATE COURTS

A. GROUPS OF UNRELATED INDIVIDUALS

WHO CREATE A FAMILY IN A RESIDEN-

TIAL SINGLE-FAMILY ZONING DISTRICT

ARE ENTITLED TO CONSTITUTIONAL PRO-

TECTION AND A HEIGHTENED LEVEL OF

SCRUTINY

In recent years this Court has

decided two cases which involved the inter-

pretation of ordinances similar to that of

Langhorne Manor Borough.

In Village of Belle Terre v.

Boraas 4116, U.S. l, 94 S. Ct. 1536, 39 L.

Ed. 2d 797 (1974), the zoning ordinance

defined a "family" as follows:

"One 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

exceeding two (2) living and

cooking together as a single

housekeeping unit though not

related by blood, adoption,

or marriage shall be deemed

to constitute a family." 416

U.S. at 3.

The Village of Belle Terre had restricted

land use to one family dwellings excluding

lodging houses, boarding houses, fraternity

houses, or multiple-dwelling houses. The

village sought to apply the zoning ordin-

ance to six unrelated college students

sharing a single dwelling. The students

and the landlord challenged the consti-

tutionality of the ordinance as violative

of equal protection and rights of associa-

tion, travel and privacy. The court found

that no fundamental rights of the students

had been violated and held that the

challenged statute withstood equal pro-

tection scrutiny since it bore a rational

relationship to a permissible state objec-

tive.

In Moore v. City of East Cleveland,

Ohio, 431 U.S. 494, 97 S. Ct. 1932, 52

L. Ed 2d 531 (1977), this Court in-

validated a zoning ordinance which de-

fined "family" so narrowly as to exclude

certain blood relatives of the head of house-

ho1a’. The city relying on Belle Terre,

(supra), enforced the ordinance against

Inez Moore who lived with her son and two

grandsons who were first cousins.

1 Section 1341.08 (1966) provides:

"'Pamily' means a number of individuals

related to the nominal head of the household or

to the spouse of the nominal head of the house-

hold living as a single housekeeping unit in a

Single dwelling unit, but limited to the following:

"(a) Husband or wife of the nominal head of

the household.

"(b) Unmarried children of the nominal head

of the household or of the spouse of the nominal

head of the household, provided, however, that

such unmarried children have no children

residing with then.

"(c) Father or mother of the nominal head of

the household or of the spouse of the nominal

head of the household.

"(d) Notwithstanding the providions of

subsection (b) hereof, a family may include not

more than one dependent married or unmarried

child of the nominal head of the household or of

the s e of the nominal head of the household

and spouse and dependent children of such

dependent child. For the purpose of this sub-

section, a dependent person is one who has more

than fifty percent of his total support fur-

nished for him by the nominal head of the house-

hold and the spouse of the nominal head of the

household.

“(e)A Family may consist of one individual.”

The Court, per Mr. Justice Powell writing for a

plurality, concluded that the ordinance was

unconstitutional as violative of substan-

tive due process. "When government

intrudes on choices concerning family

living arrangements, this court must

examine carefully the importance of the

governmental interests advanced and the

extent to which they are served by the

challenged regulation." 431 U.S. at 499.

This Court then found that, since the

ordinance in question placed no numerical

limitation on nuclear families and the

municipality could show no important

governmental interest which could be

advanced only by limiting extended families,

the ordinance could not be upheld.

The results in these two cases may be

distinguished by the level of scrutiny

applied. When a municipality applies

statutes like the one in question to un-

related individuals without family bonding,

a rational relationship test is appropriate.

When a statute is aimed at related indivi-

duals, strict scrutiny is appropriate.

What level of scrutiny is appropriate for a

group of unrelated elderly individuals who

have banded together to form a spiritual

family to care for each other's emotional

and physical needs? What protection from

state interference is accorded these

citizens by the constitution? This case

squarely presents this court with an

opportunity to address this important

unsettled question. It is suggested that

an intermediate level of scrutiny be

applied such as has been applied in cases

involving classification based on sex?

This heightened sorutiny may be

appropriate because of the special needs of

the elderly but the basic argument being

made here is that it is appropriate

because the constitutional protection of

the "sanctity of the family" described

2 Even without heightened scrutiny, the or-

dinance is overinclusive, mderinclusive and

bears no rational relationship to an objectiv

of preserving family life.

in Moore should extend to the creation

of a family where no biological ties

exist; such protection is already being

accorded by state law to those who function

as a family unit. The California Supreme

Court, for example, has suggested the right

to privacy sectunns the right of persons

to make intimate life style decisions free

from unnecessary government interference,

i.e. to become the functional equivalent

of a family. City of Santa Barbara v.

Adamson, 27 Cal. 3d 123, 610 P.2d 436

(1980). The court concluded that generally

zoning ordinances are much less suspect

when they focus on the use than when they

command inguiry into who are the users.

3 The court suggested two possible factors

to aid in a determination of whether a group shares

the characteristics of a family and thus is pro-

tected under the right to privacy. The first is

whether the group is a close group with social,

economic and psychological commitments to each

other and the second whether emotional support and

stability are provided by the members to each

other. The more “a traditional fanily, the

Iikely fhe,secigign i Live. wogether wil be pro-

In McGinnis, the overinclusive and under-

inclusive nature of the zoning ordinance was

ignored and Belle Terre found controlling. The

Court asserted that "no persuasive reason has

been offered why a municipality may, as a legit-

imate exercise of its police power, prohibit six

college students from residing together but may

not constitutionally prohibit cohabitation of

six unrelated older persons". 448 A.2d at 112

This simplistic approach ignores the

basic and crucial differences between the two

situations. In Belle Terre, (supra) Mr. Justice

Douglas writing for the majority, found that

the statute in question bore a rational rela-

tionship to a permissible state goal since " (A)

quiet place where yards are wide, people few and

motor vehicles restricted are legitimate guide-

lines in a land-use project addressed to family

needs...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." 416 U.S. at 9.

While the presence of six transient

college students living together for

convenience and without desire for

family living or permanence of residency

is inimical to these goals, the same

rationale should not be applied to

exclude six elderly individuals whose

only desire is to live the remainder of

their lives in the community, comforted by

the support and dignity of their chosen

family.

Many of these same arguments were

made to this Court in Belle Terre (supra)

based upon the right to privacy and the

freedom of association but the focus of

these arguments was that the ordinance

in mestion was unconstitutional because

it interfered with a lifestyle choice as

to household companions. There was no

express or implied aim on the part of

the Belle Terre tenants to recreate a

family but merely to maintain a life

style which did not match the rest of

the community, a transient tenancy based

solely upon economic expediency. In the

instant case, the McGinnis lifestyle is

obviously an attempt to mirror the

community and participate in its life;

it is the very values of the community

and the glorification of family living

of which these elderly residents wish to

partake. To provide a home environment

was the reason why Ms. McGinnis purchased

the subject property rather than a nearby

property which had previously been con-

verted into a nursing home and in which the

residents would be confined to an upper

floor. (R.297a)

In the state court decisions since

Belle Terre (supra) and Moore (supra),

the focus of the courts has been on the

nature of a family rather than upon the

particular relationships of the people

involved and, where a use is determined

to have the characteristics of a family,

the occupancy is so considered even where

no biological relationship exists and

despite the existence of financial over-

tones.

City of Santa Barbara v. Adamson,

27 Cal. 3d, 123 , 610 P.2d 436,164

Cal. Rptr. 539 (1980) involved a zoning

ordinance which defined a "family" as,

inter alia, "(A) group not to exceed five

(5) persons, excluding servants, living

together as a single housekeeping unit

in a dwelling unit". The city of Santa

Barbara sought to enforce this statute

against a group of twelve adults living

together in a single dwelling. The

California Supreme Court characterized

this group as an alternate family".

164 Cal.Rptr. at 541. Although this case

was decided exclusively on state con-

stitutional grounds, in determining that

an “alternate family" existed, the

court noted that the group had "social,

economic, and psychological commitments

to each other"... shared expenses,

rotated chores...and ate evening meals

together". 164 Cal. Rptr. at 541. It is

likewise interesting to note that the

Adamson court questioned in a footnote

whether Belle Terre, (supra),still

enunciated federal law. 164 Cal. Rptr.

at 543.

In City of Des Plainesv. Trotter, 34

Ill. 2d 432, 516 N.E. 24 116 (1966),

the Ill. Supreme Court facec a challenge

to a single family zoning ordinance by a

group of four unrelated young men who

occupied a dwelling and operated a single

housekeeping unit and refused to extend

the authority to zone to an ordinance that

penetrated "so deeply... into the internal

composition of a single housekeeping unit".

Id., at 438, 216 N.D. 2d at 120.

The New York Court of Appeals has

reached a similar conclusion. "As long

as a group bears the generic character

of a family unit as a relatively perma-

nent household it should be equally en-

titled to occupy a single family dwelling

as its biologically related neighbors".

City of White Plains v. Ferraioli, 34

N.Y. 2d 300, 306, 357 N.Y. S. 2d 449,

313 N.E. 2d 756 (1974).

In accord: Berger v. State 71 N.J.

206, 364 A.2d 993 (1976), State ex rel

Region II Child and Family Services v.

District Court of the Eighth Judicial

Circuit, _ Mont. __, 609 P.2d 245 (1980);

Neptune Park Association v. Steinberg,

138 Conn. 357, 84 A.2d 687 (1951).

In Township of Pemberton v. State of

New Jersey, 178 N.J. Super 346, 429 A2d

360 (1981), the Superior Court of New

Jersey held that a group home for

preadolescent boys which wished to create

a normal family environment was a family

housekeeping unit under a residential

ordinance. Basing its decision on state

constitutional grounds, the Court explained

its reasoning as follows:

"We are further persuaded that

the law of this state prohibits

a municipality from enacting a

zoning ordinance which dis-

tinguishes, in the context of

permitted uses, between a blood-

related family unit and a similarly-

sized group of people who are un-

related but who function to-

gether as a family unit.” 429 A.2d

at 364.

It is therefore submitted that the

Belle Terre holding should be limited to

the situation it considered, that it should

not be held up as a straitjacket where-

ever unrelated persons try to live to-

gether, no matter what lifestyle these

persons are creating and that the clear

light of the reality of the times in

which we live with the alternate living

arrangements required should be allowed

to shine forth, illuminating even those

residential communities in which the

elderly, retarded or troubled wish to

enjoy family living along with their

more fortunate brethren who already have

such a lifestyle.

B. THE MEANS BY WHICH A FAMILY

LIVING ARRANGEMENT IS MADE

FINANCIALLY FEASIBLE ARE NOT

DETERMINATIVE OF WHETHER IT

CONSTITUTES A FAMILY FOR ZONING

PURPOSES.

Even in the Pennsylvania cases

which have considered the issue of

whether group homes may lawfully exist

in single-family residential zoning

districts, the distinction which the

courts have made has always been based

upon the presence of factors which

predicate the basic use as familial or

institutional in nature.

The means by which the greup living

is made financially feasible should be

considered at most one of these factors

rather than a conclusive determinant of

the issue. The Langhorne Manor Borough

Zoning Ordinance in question employs the

undefined term "non-profit" as part of

its definition of family; however, this

does not bar leasing a residence or the

payment of money by a blood relative to

another in order to live in the household.

Langhorne Manor Borough has been arguing

that "non-profit" means "commercial"4

Certainly there have been similar indicia

present either expressly or by implica-

tion in those group homes which have been

permitted in Pennsylvania and elsewhere.

The Supreme Court of Pennsylvania has

‘ Langhorne Manor Borough bootstraps its

argument by referring to commercial

indicia in a previously run business of

Ms. McGinnis’ in another mmicipality; none

of these commercial indicia have been

attributed to the residence in Langhorne

Manor Borough.

refused to allow this appeal from the

decision of the Commonwealth Court and

has never directly addressed the issue

of whether a family use can exist within

a framework which is not "non-profit",

whatever the term is ultimately deter-

mined to mean. The courts of last resort

of other jurisdictions have considered

this issue and have reached the same

conclusion as that of the panel of

Bucks County Court of Common Pleas

judges who decided the ordinance in

question was unconstitutional as applied:

"One aspect of the situation

which troubled the Zoning

Hearing Board was the profit

nature of the arrangement

established by appellant.

We do not believe that the

manner in which the arrange-

ment is made financially

feasible controls the resolu-

tion of the case. It is the

nature of the use and its

character and its potential

for adverse impact or non-

potential for adverse impace

upon the residential character

of the neighborhood which

must be analyzed, rather than

the means by which the

arrangement has been made

economically possible. We

note that in Hopkins,...

one of the users of the

subject property worked as

a full-time houseparent and

was paid to do so. The fact

that she was paid by a non-

profit corporation does not

mean that for her the opera-

tion did not involve com-

pensation in money just as

any profit realized by Ms.

McGinnis would involve com-

pensation for her efforts,

and as any support payments

made to the users in

Children's Home of Easton, ...

were money compensation.”

McGinnis v. Langhorne Manor

Borough Zoning Hearing Board,

36 Bucks Co. L.R. 115, 119

(1981) citing Hopkins v.

Zoning Hearing Board of

Abington Township, Pa.Cmwlth.

Ct aes Boa A. 0382 (1980)

and Children's Home of Easton

v. City of Easton, Pa. Cmwlth.

ct. at? A.2d 830 (1980).

In Costley v. Caromin House, _Minn._,

313 N.W. 2d 21 (Minn. 1981), neighbors

sought to enjoin the construction of a

group home for retarded children, citing

a putative violation of the city's single

family zoning ordinance. In discussing

the for-profit status of the proposed

home, the court noted, "That (the group

home) is paid for its efforts does not

detract from the essential character

of its program of non-institutional

living for the retarded. Clearly, the

receipt of money to support the care of

more or less permanent residents is

incidential to the scope of (its) efforts".

313 N.W. 2d at 26. In accord: Crowley v.

Knapp, 94 Wis 2d 42, 288 N.w. 2d 815 (1980).

Although it is either ignored or

glossed over in many of the cases in

which group living is permitted, financial

dealings are obviously a part of these

arrangements although not the primary

purpose of the lifestyle. Foster parents

are paid for care of foster children,

houseparents are paid for care of the

retarded--the financial realities do

not destroy the fact that families are

being created, lives intertwined and love shared.

II. THIS COURT SHOULD GRANT CERTIORARI

BECAUSE CONSTITUTIONAL RIGHTS OF

ADULTS, ESPECIALLY ELDERLY ADULTS,

TO ae PROTECTION ARE ADVERSELY

FFECTED BY THE DECISION OF E 5

COMMONWEALTH COURT OF PENNSYLVANIA’,

WHICH CONSTITUTIONAL RIGHTS HAVE NOT

EEN BU HOULD BE TLED BY

COURT.

In the cases which have been before

the Commonwealth Court which involve non-

related persons living together, the dis-

tinction made by the Court was whether

the persons involved would live as a

family. Where there were numbers of

supervisory personnel, an intention of

transient residency, regulations from out-

side persons or groups, court supervision,

the appearance and use of the residence

as an institution, it was determined that

5 The Commonwealth Court of Pennsylvania

Decision is the last written opinion in

this matter. Appeals to the Pennsylvania

Supreme Court fram the Commonwealth Court are

by Petition for Allowance of Appeal, not as

of right; the Supreme Court denied the

Petition for this appeal.

the institutional aspects dominated

and the use was not familial. Pennsylvania

George Junior Republic v. Zoning Hearing

Board of Cool Springs Township, 37 Pa.

Cmwlth. Ct. 151, 389 A.2d 261 (1978).

Wengert v. Zoning Hearing Board of Upper

Merion, 51 Pa. Cmwlth. Ct. 79, 414 A.2d 148

(1980). Lakeside Youth Service v. Zoning

Hearing Board of Upper Moreland Township,

51 Cmwlth. Ct. 485, 414 A.2d 1115 (1980).

In those cases in which the Common-

wealth Court found unrelated persons to be

living as a family, the test applied

by the Court was whether the lifestyle

was the functional equivalent of a bio-

logical family. Children's Home of

Easton v. City of Easton, _ Pa. Cmwlth.

Ct. __, 417 A. 2d 830 (1980). Hopkins v.

Zoning Hearing Board of Abington Township,

_. Pa. Cmwlth. Ct. —— 423 A.2d 1082 (1980).

In each of these cases, Village of Belle

Terre v. Boraas, 416 U.S. 1 (1974), was

distinguished although the "families"

did not fit within the definition of the

ordinances in question.

In comparing the McGinnis situation

to the above two lines of cases, it is

easy to see that McGinnis falls in the

Easton-Hopkins category. Ms. McGinnis

lives in the dwelling in question with

her eljerly residents, assisted only by

her retired sister Mary, who voluntarily

and infrequently provides her time. The

elderly residents wish to live with Ms.

McGinnis permanently. There are no

Support personnel nor have the residents

been placed in the home by the Court.

The home has the appearance and use of a

normal home and the residents have access

to all common areas. Even more poignantly,

the residents testified that they felt

like a family and some considered them-

selves to be related to Ms. McGinnis even

though the actual degree of relationship

was either nonexistent of impossible to

ascertain.

The Commonwealth Court is saying

that the functional equivalent of a

biological family must consist of

parents and children.

It is denial of equal protection to

hold that single-family residential zoning

permits the "functional equivalent of a

biological family" while limiting that

"equivalent" to parent and dependent

child. The "sanctity of the family”

championed in Moore, (supra) should

extend to those who are adults unfortu-

nate enough to lack or be unable to

live with biological relatives but

desirous of and needing to recreate a

family for themselves with a lifestyle

which in all pertinent aspects imitates

that of their neighbors.

That the Commonwealth Court's view

is also shortsighted and irrational may

be shown by two arguments. In Hopkins,

(supra), the state regulations cited had

as their purpose the placement of per-

sons disabled by mental retardation

into a family setting as nearly normal

as possible and into the mainstream

of society. The question before the

Court was whether retarded children

living with house parents acted as a

family unit and, in so finding, the

Court held that the definition of a

family in the Abington Township Zoning

Ordinance was constitutionally invalid

as applied to the Hopkins situation. The

Court did not deal with the question of

whether these mentally retarded children

would still be considered part of this

same family when they chronologically

became adults. These persons would

have the same needs but would still

be unrelated to the house parents by

blood, adoption or marriage. There-

fore, it should make no difference

whether these retarded persons are

children or adults for the purposes of

creating and existing as part of a

family setting which of course was the

aim of the program developed by the

Commonwealth of Pennsylvania.

More importantly, the distinction made

between these elderly persons and the

foster children in the Easton case

(supra), is one which is constitutionally

suspect. Certainly, many of the needs

for nurturing and care are the same for

these two groups and there is no doubt

that the concept of foster parents is

equivalent to the concept of foster

children. Moreover, the number of foster

children which may exist as a family is

limited by the same familial character-

istics as the number of foster parents.

After some number, the group would lose

its characteristics as a family, but so

long as the number is not reached, cer-

tainly the elderly may be viewed as

"foster parents” and receive the same

emotional support and care in a family

setting as do foster children. In both

cases, there may exist relatives in

whose homes the foster children or the

elderly have no place.

The testimony shows that the

elderly persons intended their residency

to be permanent. The fact that a

resident is free to leave at any time

is indicative not of less of a

commitment to remain at the home but

the fact that the residents are legally

adults. Certainly, most of them tes-

tified as to their inability to live

alone, the degree of supervision or care

necessary and their bonds to the living

experience at the McGinnis home. Thus,

there were social and moral bonds created

just as there are for foster children

who also may be reclaimed by their

natural parents. The bonds created by a

commitment to child rearing mentioned

by the Commonwealth Court are the bonds

of the caretaker and not the bonds of the

residents whether the residents be

foster children or senior citizens. No

One reading this record can deny that

Ms. McGinnis has a commitment to the care,

emotional and mental health of the

elderly residents which commitment is far

beyond that of a professional for a

patient.

A Zoning Hearing Board may consti-

tutionally prohibit six college students

from residing together in a single family

zone when it is found that they have no

intention of promoting family values

and living a family lifestyle but may

not constitutionally prohibit the

cohabitation of six unrelated elderly

persons when (1) these persons are living

a family lifestyle and (2) the only

significant distinction between their

lifestyle and that permitted by the

Commonwealth Court is that they are

adults and the others are children. It

is constitutionally impermissible to state

that the only equivalent of a biological

family is parent and unrelated child

and not a person acting in a parental

capacity to an unrelated adult who needs

supervisory care. To state otherwise

is to confine such elderly to institu-

tional care in institutional districts

and tell them that they have outlived

their capacity for,and entitlement to,

family life.

III. THIS COURT SHOULD GRANT CERTIORARI

BECAUSE THE ELDERLY RESIDENTS OF

THE McGINNIS HOME HAVE A CONSTITU-

TIONAL RIGHT TO DUE PROCESS BEFORE

A DECISION IS MADE THAT WILL REQUIRE

THEM TO LEAVE THEIR HOMES.

Ms. McGinnis testified before the

Zoning Hearing Board of the deleterious

effect which she believed would result

from the elderly residents being forced

to leave. This phenomenon, called

"transfer trauma" has recently been

recognized by the courts as causing

irreparable emotional and physical

deterioration and increased incidence

of mortality in the elderly and inform.

Klein v. Mathews, 430 F. Supp 1005

(D.N.J. 1978); Burchette v. Dumpson,

387 F. Supp 812 (E.D.N.Y. 1974). Brede

v. Director for Department of Health, 616

F. 2d 407, 412 (9th Cir. 1980);

Yaretsky v. Blum, 629 F. 2d 817, 821

(2d Cir. 1980), reversed on other grounds,

U.S. » 102 S. Ct. 2777 (1982);

Bumpus v. Clark, 681 F. 2d 679 (

1982). "The basic principle of the

phenomenon is the recognition that the

transfer of geriatric patients to any

unfamiliar surrounding produces an

increased rate of morbidity and

mortality." Bracco v. Lackner, 462

F. Supp. 436, 445 (N.D. Cal. 1978).

In Yaretsky (supra), medicaid

patients were held to be entitled to

due process when these patients were

transferred from lower level care to

higher level care because of the

patient's constitutionally protected

liberty interest in avoiding the effects

of "transfer trauma". 629 F.2d at 821.

As the Ninth Circuit Court of

Appeals held in Brede, "to the extent...

that transfer trauma is a possible

result of the state's decision to relocate

the Hale Mohalu patients, relocation may

constitute a deprivation cognizable

under the due process clause"; on this

basis, the case was remanded for further

proceedings to determine if the require-

ments of due process had been satisfied.

616 F. 2d at 412.

In the instant case, it is clear

that state action, if used to make

Ms. McGinnis cease to use her home as

a family residence for these elderly

people, will impinge upon the liberty

interest of these people to avoid

danger to their own health and lives.

There has been no effort made by the

municipality to protect the constitutional

right of these elderly persons to be free

from transfer trauma. This issue, even

when raised by Ms. McGinnis, was ignored

by the Zoning Hearing Board as were those

parts of the testimony by the elderly

residents as to their fears of having to

go elsewhere.

That a person such as Ms. McGinnis

would have standing to raise the issue of

"transfer trauma” on behalf of the

elderly residents has been determined.

Ms. McGinnis is sufficiently within

the zone of this protected interest to

invoke judicial review. Certainly, if

the rights of the residents to be

protected where transfer trauma is

involved are violated and the residents

must move, Ms. McGinnis is also injured;

however, her standing is also based upon

her relationship to these elderly

persons. Cf. Sierra Club v. Morton,

405 U.S. 737, 92 S. Ct. 1361, 31 L.Ed. 2d

636 (1972) (org. permitted to ascert

rights of affected members without show-

ing any impact on organization itself);

Village of Belle Terre (supra) (interest

of landlord in rental values as affected

by Permissible Occupancy limits providing

Standing as to rights of prospective

tenants); Doe v. Bolton, 410 U.S. 179,

93 S. Ct. 739, 35 L. Ed 2d 201 (1973)

(physicians allowed standing to challenge

abortion statutes on behalf of pregnant

women because of impact on their pro-

fession)

No determination has been made as to

what due process is required in this

situation.

CONCLUSION

Petitioner Theresa McGinnis requests

this Honorable Court to grant a Writ of

Certiorari to review this case because

the constitutional right of a group of

unrelated individuals to create a family

in a single-family residential zoning

district has been decided differently by

state courts and the financial means by

which the arrangement is made possible

should not preclude its being considered

familial because a decision which holds

that adults and, particularly the elderly,

cannot form a living arrangement which is

the functional equivalent of a biological

family violates the equal protection

Clause of the Fourteenth Amendment to

the Constitution of the United States;

and, lastly, because the elderly residents

of the McGinnis home have a constitutional

right to due process before a decision is

made that will require them to leave their

home.

Respectfully submitted,

Attorney for Petitioner

APPENDIX A

LANGHORNE MANOR BOROUGH ZONING

HEARING BOARD

Application of Theresa McGinnis

I. FINDINGS OF FACT

1. The Langhorne Manor Borough

Zoning Hearing Board held hearings on the

within application on December 20, 1979;

January 9, 1980; January 30, 1980 and

March 26, 1980, which hearings were con-

tinued by adjournment to a date certain.

2. The final hearing on the

above application was held on April 2,

1980.

3. By written agreement of the

parties of record, the date for which a

decision must be handed down by this

Board was extended, in writing, to June 13,

1980.

4. The premises which is the sub-

ject of this application is located at

401 Station Avenue, and was purchased by

the applicant/appellant, Theresa McGinnis

in June of 1979.

5. The subject property is zoned

R.A. RESIDENTIAL DISTRICT.

6. Theresa McGinnis is a nurse

and is experienced in the operation of

residential homes for the care of the aged.

7. Shortly after purchasing the

subject property at 401 Station Avenue,

Theresa McGinnis commenced use of the

property as a commercial operation for

the residential care of the aged.

8. Theresa McGinnis holds herself

out to the public as offering a commercial

service by providing residential care of

the aged.

9. Theresa McGinnis has established

a pattern of charges and regular fees for

such services and the same has continued.

10. The operation of a residential

home for the aged at 401 Station Avenue

is commercial in nature and is a service

operated for profit as shown by Schedule "C"

of the 1979 Federal Income Tax Return of

Theresa McGinnis.

11. Langhorne Manor Borough sent

notices of possible zoning violations

shortly after applicant purchased the

subject property and on October 10, 1979,

the Zoning Officer of the Borough cited

Theresa McGinnis for failure to comply

with the use regulations in the R.A.

District.

12. The immediate area of Langhorne

Manor in which the subject property is

located is exclusively residential.

13. The proposed use of the pro-

perty as a residential home for the

elderly is opposed by a number of neighbors

who cited primarily traffic and potential

sewer problems.

14. The property in question is well

suited as a private single family residence

and could have been sold as such at the

time Theresa McGinnis purchased the pro-

perty. In fact, an offer to purchase

the same property for a higher sum was

refused by the seller.

15. Residing at 401 Station Avenue

beside the applicant, Theresa McGinnis,

is her uncle and five (5) other individuals

with no clear evidence establishing a

specific family relationship with the

applicant.

II. CONCLUSIONS OF LAW

1. The present and proposed use of

401 Station Avenue by Theresa McGinnis is

not permitted as a matter of right in the

R.A. Zoning District in Langhorne Manor

Borough.

2. The present and proposed use of

401 Station Avenue as a residential home

for the elderly is not permitted as a

Single family dwelling use as defined by

the Langhorne Manor Borough Zoning

Ordinance.

3. Other than her uncle, the

individuals residing with Theresa McGinnis

are not “family” in the traditional sense

and within the first definition of the

same found in Section 215 of the Langhorne

Manor Borough Zoning Ordinance.

4. The present and proposed use of

401 Station Avenue as a residential home

for the elderly is not "a single non-

profit dwelling unit"; to the contrary,

it is a commercial operation for profit

and therefore the individuals residing

with the owner/applicant are not "family"

within the second and broader definition

found in Section 215 of the Langhorne

Manor Borough Zoning Ordinance.

5. The individuals residing with

the owner/applicant at 101 Station Avenue

are not “maintaining a common household,”

but rather are paying fixed fees and

charges constituting a commercial dwelling

operated for profit; therefore, they are

not "family" and the use of the property

is not as a single family dwelling unit.

6. Theresa McGinnis has not proved

the necessary legal factors which would

entitle her to a variance in that no

physical conditions peculiar to the

particular property cause the unnecessary

hardship which is a pre-requisite to a

variance.

7. That the unnecessary hardship

which was shown and established was both

self created by the property owner and

was not peculiar to the particular pro-

perty resulting from the physical

circumstances of the property.

8. The property located at 401

Station Avenue can be fully and reason-

ably used as a singly family residential

dwelling in strict conformity with the

requirements of the R.A. Zoning District.

9. Theresa McGinnis has not proved

that the Langhorne Manor Borough Zoning

Ordinance is unconstitutional either in

general or as applied to her.

10. The application of the Langhorne

Manor Borough Zoning Ordinance to the

applicant and her property does not

violate due process of law nor does it

violate the Equal Protection Clause of

the United States Constitution.

ll. The present proposed use of 401

Station Avenue as a residential home for

the elderly is prohibited by the Zoning

Ordinance of Langhorne Manor Borough

_ which has not been preempted by other

laws or regulations of the Commonwealth

of Pennsylvania.

III. DECISION

AND NOW, this 11th day of June,

1980, upon consideration of the foregoing

Findings of Fact and Conclusions of Law,

it is the decision of the Langhorne

Manor Borough Zoning Hearing Board that:

1. The present and proposed use of

401 Station Avenue as a residential home

for the elderly is prohibited by the

Zoning Ordinance of Langhorne Manor Borough

and should immediately cease.

2. The appeal to this Zoning Hearing

Board from the actions and orders of the

Zoning Officer is denied.

3. The application of Theresa McGinnis

for a variance for use of this property

as a residential home for the elderly is

denied.

4. The Zoning Ordinance of Langhorne

Manor Borough is Constitutional in general

and as specifically applied to this pro-

perty and this application.

5. The application/appeal of

Theresa McGinnis is hereby denied and

dismissed.

/s/ Charles E.Light

LANGHORNE MANOR BOROUGH

ZONING HEARING EOARD

/s/ Larry A. Brossman

Larry Brossman, Chairman

/s/ Charles E. Light

Charles Light

/s/ Dr. Frank DiMoia

Dr. Frank DiMois

10a

APPENDIX B

DECISION OF THE COURT OF COMMON PLEAS OF

BUCKS COUNTY

DATED MARCH 24, 1981

IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY

CIVIL

IN RE:

APPEAL OF THERESA : No. 80-7453-14

McGINNIS FROM THE

DECISION OF THE :

LANGHORNE MANOR BOROUGH

ZONING HEARING BOARD H

BEFORE: RUFE, MIMS, BIESTER, JJ.

OPINION AND ORDER

This appeal was argued twefore the

Court en banc. Theresa McGinnis,

appellant, is the owner of the house and

land located at 401 Station Avenue,

Langhorne Manor Borough, Bucks County,

Pennsylvania. She appeals the decision

of the Zoning Hearing Board of Langhorne

Manor Borough dated June ll, 1980. This

decision of the Board denied a variance

request by the appellant and also found

the zoning ordinance of Langhorne Manor

Borough constitutional, generally and as

lla

specifically applied to the appeilant.

Theresa McGinnis purchased the subject

property in June of 1979. The property

is and was zoned R.A., single-family

residential. Prior to its purchase, its

previous use had been as a physician's

residence with attached medical offices.

The testimony established that the

residence in question is a very large

English Tudor with three floors, not

including the attic and cellar. The

house is currently in very good repair,

having had extensive work done in it

since being purchased by Ms. McGinnis.

The first floor of the house contains

all the usual rooms present in a large

private residence. It also includes a

patio, an enclosed porch, a laundry and

a sitting room. The former medical

offices consist of three additional

rooms.

The second floor of the house contains

12a

five bedrooms, a converted sitting room

and three full baths. The house has been

equipped with an electric eye garage, a

mechanical chair for access to the second

floor, and a comprehensive smoke alarm

system. In this large, well maintained,

and apparently comfortable home reside

appellant, Ms. McGinnis and six adults,

ranging in age from 72 to 95.

Ms. McGinnis has a B.S. and an M.A.

in nursing. Over the years she has been

employed both as a private duty nurse and

as an administrator in hospitals and

nursing homes. Ms. McGinnis is presently

not employed in any capacity outside of

her home. Her present vocation appears

to be that of providing a family-like

environment for the six senior citizens

who live with her. All these individuals

are ambulatory, continent, and capable,

in varying degrees, of taking care of

most of their own physical needs. They

l3a

dress and feed themselves. Appellant

supervises their medical and their diet.

Meals are prepared by the appellant, but

she is assisted in this task by the

elderly household members. She testified

that she takes the elderly residents for

automobile rides, weather permitting, and

drives the ladies to their hairdressers

when necessary. These residents are

assigned small chores, each according

to his or her ability. The household

includes a canary and a French poodle

and the residents participate in their

care and feeding.

The residents uniformly testified that

they were very satisfied with their

present living arrangements. They felt

they were part of a family at 401 Station

Avenue, and indicated a wish to remain so.

It is pertinent to note that some

residents had, in the past, lived with

their own families, but for various

14a

reasons were no longer able to do so. A

few residents had been in and out of

nursing homes while others had been

living alone in apartments.

Ms. McGinnis refused to divulge

exactly what fee arrangements were made

with each household member. It appears,

however, that individuals were charged

according to what they and their families

could afford. Testimony revealed on two

occasions that payment was between $400.

and $500. monthly and that such payment

consisted of social security plus additional

fees paid by relatives of the residents.

Ms. McGinnis also appeared less than

candid when discussing her own familial

relationship with the residents. She was

able credibly to establish only one

gentleman as a blood relative, that

being her uncle James McGinnis. Neither

Ms. McGinnis nor the other five individual

residents were able to establish even

13a

remote relationships to each other. Ms.

McGinnis did not always make a satisfactory

witness and her attitude was sometimes

evasive and sometimes flinty.

As previously noted, the appellant's

property is zoned R.A. single-family

residential. Section 215 of the

Langhorne Manor Borough Zoning Ordinance

defines family as follows:

"One or more persons related

by blood, marriage, or adoption,

and in addition, any domestic

servants or gratuitous guests

therof; of a group of not more

than five persons who need not

be so related, and in addition,

domestic servants or gratuitous

guests thereof, who are living

together in a single non-

profit dwelling unti and main-

taining a common household with

single cooking facilities. A

roomer, boarder or lodger shall

not be considered a member of

the family."

On October 10, 1979 appellant was cited

for failure to comply with the zoning

or¢é.mance. She then appealed from the

issuance of the citation to the Zoning

l6a

Hearing Board of Langhorne Manor

Borough and, simultaneously, requested

a variance from the use regulations of

the R.A. district, or, in the alterna-

tive, a determination that the Borough

Zoning was unconstitutional in general

or as applied to appellant's property.

Hearings were held on December 9,

1979, January 9, January 30, March 6

and April 2, 1980. On June ll, 1980,

Langhorne Manor Borough Zoning Hearing

Board rendered its decision. The Board

held that the present and proposed use

of 401 Station Avenue as a residential

home for the elderly was prohibited by

the zoning ordinance and should therefore

immediately cease. Further, the

application of Ms. McGinnis for a

variance for use of said property as a

residential home for the elderly was

denied. Finally, the zoning ordinance of

Langhorne Manor Borough was held

17a

constitutional in general and as

specifically applied to this property.

Ms. McGinnis appeals to this Court from

the decision of the Board.

The scope of review in a zoning

appeal where the court has not heard

additional evidence is limited to whether

the zoning board has committed a manifest

abuse of discretion of error of law.

Upper Leacock Township Supervisors v.

Zoning Hearing Board, 181 Pa. 479, 393

A.2d 5 (1978); Pyzdrowski v. Pittsburgh

Board of Adjustment, 437 Pa. 481, 263 A.

2d 426 (1970); Salisbury v. Rummel, 44

Pa. Commonwealth Ct. 581, 406 A.2d 808

(1979); Kauffman v. Doylestown Township

Zoning Hearing Board, 34 Bucks Co. L.

Rep. 345 (1980).

This Court must consider three issues.

First, whether Ms. McGinnis and the

residents of 401 Station Avenue fit within

the definition of family pursuant to the

léa

Langhorne Manor Borough zoning ordinance;

second, whether Ms. McGinnis is entitled

to a variance and third, whether the

zoning ordinance in question is uncon-

stitutional as applied to the instant and

proposed use of the McGinnis property.

Clearly, the Zoning Hearing Board of

Langhorne Manor Borough committed neither

a manifest abuse of discretion nor error

of law in regard to the first two issues

outlined above. Substantial evidence

supports the Board's conclusion that the

residents at 401 Station Avenue are not

"family" within the scope of the alternate

definitions given in §215 of the zoning

ordinance. Further, appellant did not

establish her entitlement to a variance.

Variances should be granted only

sparingly and under exceptional circum-

stances. Jones v. Lower Makefield

Township Zoning Hearing Board, 23 Bucks

19a

Co. L. Rep. 14 (1975). The property is

not subject to unique physical circum-

stances nor is appellant deprived of all

productive use of her property, Swift v.

Zoning Hearing Board of East Hempfield,

20 Pa. Commonwealth Ct. 87, 340 A.2d 592

(1975). Personal and economic hardship

alone is not sufficient to support a

variance, Borough of Latrobe v. Sweeney,

17 Pa. Commonwealth Ct. 356, 331 A.2d

925 (1975). Further, it is clear

appellant was aware at the time of

purchase, of the zoning classification

of the subject property. Therefore, the

.emaining issue to be considered by this

Court is the constitutionality of the

zoning ordinance as it is applied to the

instant use.

This case draws into focus a very

troubling set of land use questions and

apparently conflicting concerns over

the quality of family life and the

20a

enhancement of family values in resi-

dential neighborhoods.

On the one hand, Langhorne Manor

Borough has very appropriately expressed

its interest in establishing single-

family residential neighborhoods and

preserving their integrity. On the

other hand, the appellant is striving

to establish for elderly persons in

danger of institutionalization a setting

which most nearly approximates traditional

familial living arrangements.

The resolution of this case is

controlled by two very recent Commonwealth

Court decisions. Children's Home of

Easton v. City of Easton, _ Pa.

Commonwealth Ct. _— 417 A.2d 830 (1980)

and Hopkins v. Zoning learing Board of

Abington Township, __ Pa. Commonwealth

Ct. _ 423 A.2d 1082 (1980). We note

that both of these cases were decided

well after the decision of the Zoning

2la

Hearing Board and it is quite under-

standable that the propositions they

decided were not fully taken into account

by the Board. Pursuant to the principles

enunciated in those two decisions and

comparing the instant facts to those

cases we find the Zoning ordinance of

Langhorne Borough as applied to the

specific circumstances, including the

specific number of persons living in

the subject property; to be unconstitu-

tional.

We recognize as did the Commonwealth

Court in Children's Home of Easton, supra,

that our Supreme Court has held in

Glorioso Appeal, 413 Pa. 194, 198, 196

A.2d 668, 671 (1964) that “one who

challenges the constitutionality of a

zoning ordinance has no light burden and

it is settled that before a zoning ordin-

ance can be declared unconstitutional it

must at least be shown that its provisions

22a

are clearly arbitrary and unreasonable,

having no substantial relation to the

public health, safety, morals or general

welfare. If the validity of the legis-

lative judgment is fairly debatable, the

legislative judgment must be allowed to

control."

Whether there are seven persons living

in a traditional nuclear family home in

which the ties are by blood or adoption

or seven persons living in a home-like

environment although only two of them

are related to each other, the numerical

result is the same. We cannot find in

this record as the Commonwealth Court in

Children's Home of Easton, supra, could

not find in that record any evidence

whatever "that there is any relationship

much less a substantial relationship

between the home established by appellant

and the public health, safety, morals or

general welfare of other persons

23a

residing in the same residential

district." at p. 833. Therefore as the

Court did in Children's Home of Easton,

supra, we conclude that the regulation is

Clearly arbitrary and unreasonable as

applied to the precise circumstances of

the instant case and as applied to the

precise number of persons living in the

subject property.

While the decision in Village of

Belle Terre v. Bruce Boraas, 416 U.S. l,

39 L. Ed. 2d 797, 94S. Ct. 1536 (1974)

would appear to have a general application

to the subject ordinance, we find that

the situation of seven persons considering

their age, the home environment and the

apparent permanence of their dwelling

arrangement in the instant case is dis-

tinguished from six unrelated college

students residing temporarily in a

residential area and dictates a

different result.

24a

The case of Hopkins, supra, dealt

with a residence into which a couple,

husband and wife, brought three unrelated

mentally retarded persons to live pursuant

to a community living arrangement program

developed by the Commonwealth of

Pennsylvania through the Department of

Public Welfare. The purpose of that

arrangement was to place persons disabled

by mental retardation into a family

setting as nearly as normal as possible

and into the mainstream of society.

There, as here, the user of the

property sought to establish a family

life as near)y normal as possible for

persons who might otherwise be confronted

with institutionalization. In Children's

Home of Easton, supra, it was three foster

children. In the instant case it is

six elderly persons. In Hopkins, supra,

as here the users of the property sought

to strive to "mirror the residential

25a

family life that surrounds them", at page

1084. The Court specifically found and

held that there was "no rational rela-

tionship between the restrictive

definition of family in the township

ordinance and the state interest to

preserve the residential character of the

neighborhood." at page 1084. The Court

held the definition unconstitutional as

applied to the property users in that

case.

The instant situation differs really

from Children's Home of Easton and

Hopkins, supra, only in the category

of the persons who are being served by the

effort to achieve a normal home life.

In Children's Home of Easton, supra, it

was foster children. In Hopkins, supra,

it was mentally retarded persons and in

the instant case it is elderly who are

in danger of institutionalization.

We should note that while there is

26a

not yet a formal program which has been

adopted and established with respect to

the elderly in Pennsylvania which would

be comparable to the CLA Program which

was the subject of Hopkins, supra, such

a program is envisioned by the Department

of Aging of the Commonwealth of Pennsyl-

vania. In that Department's proposed

rule-making with respect to domiciliary

care services for adults, it sets forth in

Section 21.3 thereof the following goals:

"(1) To provide supportive,

homelike, community-based

living arrangements for adults

who cannot live independently

in the community.

(2) To encourage and assist

adults in developing and main-

taining maximum initiative

and self-determination in a

home-like setting.

(3) To prevent unnecessary

institutionalization and to

help individuals in institutions

to return to their own community

and, ultimately, if possible,

to their own home." Pennsyl-

vania Bulletin, Vol. 10, No.

Po Mae

27a

We believe that these policy goals

set by the Department on Aging clearly

emphasize and promote a homelike setting

for persons who are elderly and who are

confronted with precisely the terrible

choice which confronts the elderly persons

living in the subject property, institu-

tionalization or aloneness.

We certainly realize that the size

of a particular household could reach

certain numbers such as to endanger the

residential character of a residential

neighborhood, but that in the instant

case the numbers thus far attainei do not

reach such a figure and the decision of

this case is limited to the precise facts

which have been presented to the Court.

Obviously, the municipality and the

elderly both share in the desire that

the living arrangement be limited in

terms of its scope and size. For were

the size to be too great the whole

28a

concept of familial arrangement would

disappear. And were the size to be too

great the residential character of the

entire neighborhood might be adversely

affected.

One aspect of the situation which

troubled the Zoning Hearing Board was the

profit nature of the arrangement estab-

lished by appellant. We do not believe

that the manner in which the arrangement

is made financially feasible controls the

resolution of the case. It is the nature

of the use and its character and its

potential for adverse impact or non-

potential for adverse impact upon the

residential character of the neighborhood

which must be analyzed, rather than the

means by which the arrangement has been

made economically possible. We note that

in Hopkins, supra, one of the users of

the subject property worked as a full-

time houseparent and was paid to do so.

29a

The fact that she was paid by a non-profit

corporation does not mean that for her the

operation did not involve compensation in

money just as any profit realized by Ms.

McGinnis would involve compensation for her

efforts, and as any support payments made

to the users in Children's Home of Easton,

supra, were money compensation.

Appellee has cited us to the landmark

case of Village of Belle Terre v. Bruce

Boraas, 416 U.S. 1, 39 L.Ed. 2d 797

94 S. Ct. 1536 (1974) and we have reviewed

that case. Appellee has also cited us to

the following paragraph in Justice Douglas'

opinion:

"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 within

Berman v. Parker, supra. 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

30a

seclusion and clean air

make the area a sanctuary for

people." at page 804, 39

L.Ed.2.

We do not believe that the concept of

family values as set out by Justice Douglas

is to be limited only to the persons who

presently enjoy nuclear family living

in a residential area. Elderly persons

who may have lost a spouse or other mem-

bers of their nuclear family and who may

not be able to manage totally for them-

selves must not be forced to make a

choice between aloneness and institution-

alization. They too have a desire for

family values. They too wish to live in

a setting which as nearly as possible

approximates traditional familial living

arrangements. They too are entitled to a

sanctuary and must not be confined to

commercial, industrial or institutional

areas of a municipality. They too have a

right to live in a dignified residential

3la

setting.

We must also note that these elderly

people in the numbers presently living

in the subject property are no real

danger to the peace, quiet and tranquility

of this community. They are simply

struggling to live as they have always

lived in a setting which permits them

to feel the dignity of personal integrity,

coupled with the association of other

persons with whom they experience a sense

of family if not family in fact. We do

not believe it is possible for anyone to

read the testimony in this record without

experiencing a significant degree of

empathy with the problems and aspirations

of these elderly citizens.

We pay a high price when we institu-

tionalize or isolate our elderly citizens

from any genuine family life or from our

concern. Appellee's brief argues that if

one were to apply too extensive a definition

32a

to "family" then all of us born since Adam

and Eve would be part of one family. We

agreed with this argument as it was applied

to the rather tortured effort made by the

appellant to establish a family relationship

among her residents but we should note

that in a very real sense we as a

community of human beings must understand

that our individual nuclear family values

are not themselves fully realized until

those family values are applied to our

association with and our understanding

of the problems of other members of our

larger human family such as the elderly

persons who are truly the subjects of

this case. Otherwise those individual

nuclear family values we prize so

highly will have been only partially

attained and only partially fulfilled.

We believe that underlying the decisions

in Children's Home of Easton and Hopkins,

supra, is a recognition by the Commonwealth

33a

Court that foster children are entitled

to experience family values in a resi-

dential setting and that retarded persons

are entitled to experience family values

in a truly residential setting. Can we

in this case in the light of the limited

number of persons involved hold that

elderly persons are not entitled to the

same legitimate expectation of the

pursuit of family values in a genuine

residential setting? The question answers

itself. We therefore make the following

AND NOW, this 24th day of March, 1981,

the Appeal of Theresa McGinnis from the

Decision of the Zoning Board of Adjustment

of Langhorne Manor Borough is sustained.

BY THE COURT:

A Courid ¢ Sock;

EDWARD G. CSTER,JR.J.

* APPENDIX ©

34a

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN RE: APPEAL OF THERESA :

MCGINNIS from the decision of

the LANGHORNE MANOR BOROUGH

ZONING HEARING BOARD. : No.1013 C.D.

1981

No. 1137 C.D.

1981

BEFORE: HONORABLE THEODORE O. ROGERS, Judge

HONORABLE GENEVIEVE BLATT, Judge

HONORABLE DAVID W. CRAIG, Judge

June 7, 1982 - Philadelphia

35a

OPINION

OPINION BY JUDGE ROGERS FILED: 7/29/82

In these cross appeals, Theresa McGinnis

and the Borough of Langhorne Manor seek

review of an order of the Court of Common

Pleas of Bucks County reversing the deci-

sion of the Langhorne Manor Zoning Hearing

Board that Ms. McGinnis' use of her

property as a group home for elderly per-

sons constituted a violation of the

Borough's Zoning Ordinance.

The facts, adduced during four lengthy

hearings of the board conducted between

January and April, 1980, are largely

undisputed. In late June, 1979, Ms.

McGinnis purchased a residentially

zoned property and related improvements

including a large single-family residence

located at 401 Station Avenue in Langhorne

Manor Borough. Shortly thereafter she

began occupancy of the residence to-

gether with five elderly persons only

36a

one of whom is related to Ms. McGinnis

and none of whom are otherwise related

to each other.? The particular circum-

stances of the living arrangement of

these persons will be described at a

later point in this opinion. Within the

RA-Residential zoning district here at

issue single-family detached homes,

religious uses, non-profit educational

uses, public recreational uses, and cer-

tain accessory and temporary uses are

permitted by right. Schools operated for

profit, nursing homes and private recrea-

tional uses are prohibited. Section 215

of the zoning ordinance defines the term

"family,"permitted to occupy a single-

family dwelling, as follows:

One or more persons related

by blood, marriage or adoption,

and in addition, domestic servants

or gratuitous guests thereof; or

a group of not more than five

persons who need not be so re-

lated, and in addition, domestic

servants or gratuitous guests

thereof, who are living together

37a

in a single non-profit dwelling

unit and maintaining a common

household with single cooking

facilities. A roomer, boarder

or lodger shall not be con-

sidered a member of the family.

On July 19, 1979, Mr. Max Einenkel,

zoning officer and building inspector

for the Borough, in response to the

complaints of neighbors, who expressed

them and at the hearings concern that an

unlawful commercial use in the neighbor-

hood would have an adverse effect on

surrounding property values, attempted

to deliver to Ms. McGinnis at her newly

acquired home a copy cf a letter written

by Thomas J. Profy, III, Esquire, the

Borough's solicitor, the contents of

which was as follows:

Dear Miss McGinnis:

401 Station Avenue, Langhorne

Manor Borough is situate in an

RA zoning district in which

nursing homes, convalescent

homes and related-type facilities

are not permitted.

38a

Borough Council for which I am

Solicitor has been contacted

by various persons within the

community who are under the

impression that you intend to

utilize the subject premises

as a nursing home, convalescent

home or related-type facilities.

It may well be that you do not

so intend to use the property but

to avoid confusion and hardship

upon you if you so utilize the

premises and were forced to cease

and desist, Borough Council has

directed that I bring to your

attention the zoning classifica-

tion of the property and afore-

said limitation upon the use

thereof.

Mr. Einenkel was refused entry to the

house by Ms. McGinnis' sister and was

told to leave the letter described above

outside where, he was told, it would be

retrieved after his departure. Ms.

McGinnis later denied any knowledge of

the letter.

On August 9, 1979, Mr. Einenkel again

attempted to deliver a letter, dated

August 8, 1979, written by himself, to

Ms. McGinnis, notifying her that the

current use of her property "as a multi-

39a

person-boarding, nursing and convales-

cent home" was in violation of the

zoning ordinance and requiring her to

immediately cease and desist from such

use. Again Mr. Einenkel was met at the

door by Ms. McGinnis' sister who first

agreed to inform Ms. McGinnis of Mr.

Einenkel's presence but who then re-

turned with a Mr. Jack Wilson who stated

that Ms. McGinnis was unavailable and

had authorized him to accept the letter;

whereupon Mr. Einenkel delivered the

letter to Mr. Wilson. Ms. McGinnis later

testified that Mr. Wilson had been in her

employ during the relevant period for

the purpose of accomplishing certain

repairs but she denied any knowledge of

the August 3, 1979, letter.

On October 10, 1979, a criminal

citation was issued charging Ms. McGinnis

with the illegal "(o)peration of a

nursing home or convalescent home for

40a

3 or more individuals who are not related

by blood or marriage in the property

situate at 401 Station Ave ....."

The citation was received by the appellant

on October 16, 1979 and she appealed

therefrom to the zoning hearing board

where her position was that the residents

of 401 Station Avenue constitute a

family within the meaning of Section 215

of the zoning ordinance, above quoted,

and, in the alternative, that the ordinance

is unconstitutional as discriminating

against groups of unrelated individuals

who desire to reside together and, in any

event, that she was entitled to a

variance from the zoning strictures on

account of the unnecessary hardship

that would be caused to her by a literal

application of the ordinance provision.

The zoning board rejected each of these

contentions on the basis, inter alia,

of the following pertinent factual

4la

findings:

7. Shortly after purchasing the

subject property at 401 Station

Avenue, Theresa McGinnis commenced

use of the property as a commer-

cial operation for the residential

care of the aged.

8. Theresa McGinnis holds herself

out to the public as offering a

commercial service by providing

residential care of the aged.

9. Theresa McGinnis has estab-

lished a pattern of charges and

regular fees for such services

and the same has continued.

10. The operation of a residen-

tial home for the aged at 401

Station Avenue is commercial

in nature and is a service

operated for profit... ."

12. The immediate area of Langhorne

Manor in which the subject pro-

perty is located is exclusively

residential.

14. The property in question is

well suited as a private single

family residence and could have

beer sold as such at the time

Theresa McGinnis purchased the

property ... -

15. Residing at 401 Station

Avenue beside the applicant,

Theresa McGinnis, is her uncle

and five (5) other individuals

with no clear evidence estab-

lishing a specific family

42a

relationship with the applicant.

The board concluded:

3. Other than her uncle, the

individuals residing with

Theresa McGinnis are not "family”

in the traditional sense and

within the first definition of

the same found in Section 215

of the (zoning ordinance).

4. The present and proposed use

of 401 Station Avenue as a resi-

dential home for the elderly is

not "a single non-profit dwelling

unit"; to the contrary, it is a

commercial operation for profit

and therefore the individuals

residing with the owner/applicant

are not "family" within the second

and broader definition found in

Section 215.

6. Theresa McGinnis has not

proved the necessary legal factors

which would entitle her to a

variance in that no physical

conditions peculiar to the particu-

lar property cause the unnecessary

hardship which is a pre-requisite

to a variance.

8. The property .. . can be fully

and reasonably used as a single

family residential dwelling in

strict conformity with the R.A.

Zoning District.

9. Theresa McGinnis has not proved

that the Langhorne Manor Borough

Zoning Ordinance is unconstitutional

either in general or as applied

to her.

43a

As we have indicated the Court of

Common Pleas reversed the action of the

board holding that the zoning ordinance

definition of "family," as applied to the

particular circumstances of this, is

unconstitutional. Where, as here, the

lower court has taken no additional

evidence, review by this Court is

directed toward the decision of the

zoning hearing board and is limited to

a determination of whether the board

abused its discretion or committed an

error of law, and whether each necessary

finding of fact is supported by

substantial evidence. Haverford Township

v. Zoning Hearing Board of Haverford

Township, 55 Pa. Commonwealth Ct. 209,

423 A.2d 757 (1980).

We first express our agreement with

the board and the trial court that

Ms. McGinnis failed to meet her burden

to show the unnecessary hardship

44a

required to support the grant of a

variance from the restrictive terms of

a zoning ordinance. "(A) variance is

justified only by the unnecessary hard-

ship that results when physical charac-

teristics peculiar to the property or

incompatible neighboring uses make

permitted development physically impossi-

ble or economically infeasible." Appeal

of American Medical Centers, Inc., 54 Pa.

Commonwealth Ct. 573, 577, 422 A.2d 1192,

1194 (1980). Here permitted development

not only is possible and feasible but has

been accomplished. The home occupied by

Ms. McGinnis and her "guests" was, prior

to their occupancy, used as a single-

family dwelling. No physical characteris-

tics peculiar to the property were

Claimed to exist or were the subject of

proof at the hearings before the board.

The Borough zoning officer testified

that of the approximately twenty properties

45a

neighboring that of Ms. McGinnis within

a distance of one block, all but two

are developed as single-family dwellings;

the others being a permitted school and

a non-conforming five unit apartment

house. It was not claimed that these

neighboring uses rendered the existing

structure unsalable as a single-family

residence and, indeed, Ms. McGinnis testi-

fied that in her opinion the house could

be sold at a profit even if no zoning

relief were granted. The discussion of

the Supreme Court in Best v. Zoning

Board of Adjustment, 393 Pa. 106, 109-

110, 141 A.2d 606, 608-609 (1958), affirm-

ing the zoning board's refusal to grant

a variance to the owner of a large

Pittsburgh home containing "twenty-two

rooms and seven baths" who desired

for economic reasons to convert the

edifice to multi-family use, is equally

applicable here:

46a

The contentions of the appellant

with respect to the refusal of

her request for a variance are

without merit and, indeed, are

not urged on this appeal.

When appellant purchased the

Morewood house she knew or

should have known of the pro-

visions of the zoning ordinance

restricting the property to

use as a one-family dwelling and

of the large expenditures

required to maintain and keep

up the property. Thus, appellant

took the property with the con-

ditions of economic hardship

staring her in the face, and she

cannot now be heard to complain

- « « Moreover, as we said in

Michener Appeal, 382 Pa. 401,

406-407, 115 A.2d 367 (1955):

"The law is well established

that a variance may be granted

Only where a property is sub-

jected to a hardship unique or

peculiar to itself as distinguished

from one arising from the impace

of the zoning regulations on the

entire district." ... . The

financial hardship suffered by

the appellant in this case is

no different from that endured

by the owners of other large homes

in the neighborhood... .

(Citations omitted.)

Ms. McGinnis has devoted her efforts

below and on this appeal chiefly to the

contention that the zoning ordinance

provision here at issue irrationally and,

47a

therefore, unconstitutionally distinguishes

between traditional families whose members

are related by birth, marriage, or

adoption, and which are permitted to

reside in a single residential dwelling

without limitation as to the number of

individual residents, and groups of

unrelated individuals which are pro-

hibited from residing together in a

Langhorne Manor Borough single family

dwelling if their number exceeds five.

We are convinced that the decision of the

Supreme Court of the United States in

Village of Belle Terre v. Boraas, 416

U.S. 1 (1974) is controlling with respect

to this issue. In Belle Terre a zoning

ordinance single-family provision

materially identical to that here at issue

and having the effect of prohibiting the

cohabitation of a gruop of six college

students was sustained in the face of

a groad constitutional challenge. No

48a

persuasive reason has been offered why

a municipality may, as a legitimate

exercise of its police power, prohibit

six college students from residing to-

gether in a single family zone but may

not constitutionally prohibit the co-

habitation of six unreated older persons.“

But more importantly, in our judgment,

the decision of the board that Ms.

McGinnis' enterprise is not permitted in

the R.A. Residential District is pri-

marily grounded on the commercial

characteristics of that enterprise and the

decision must be upheld on that basis.

It has long been established beyond per-

adventure that a municipality may law-

fully create residential zoning districts

from which all commercial uses are

excluded. Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926); Swade v. Spring-

field Township Zoning Board of Adjust-

ment, 392, Pa. 269, 140 A.2d 597 (1958);

49a

Volpe Appeal, 384 Pa. 374, 121 A.2d 97

(1956); Ward's Appeal, 289 Pa. 458,

137 A. 630 (1927)- In this context

prohibited commercial uses may include

fraternity houses, motels, boarding houses,

and such institutions as nursing and

convalescent homes. See e.g. Volpe

Appeal at 377, 121 A.2d at 99; Harris-

burg v. Pass, 372 Pa. 318, 93 A.2d 447

(1953); Devereux Foundation, Inc., Zoning

Case, 351 Pa. 478, 41 A.2d 744, appeal

dismissed, 326 U.S. 686 (1945). The

validity of the prohibition does not

depend, as Ms. McGinnis would have it,

on a determination that the proposed

commercial use would endanger the public

health, safety, or morals of those

living in the residential district.

Best v. Zoning Board of Adjustment;

Swade v. Spingfield Township Zoning

Board of Adjustment.

Therefore, if the board's factual

50a

findings concerning the commercial

nature of Ms. McGinnis' enterprise are

supported by substantial evidence it is

clear that the use was property deter-

mined to be prohibited. The evidence on

this score was that Ms. McGinnis charges

a standard daily rate or fee for room and

board of fourteen dollars to those of her

patrons who require no nursing services

and up to twenty dollars per day for those

requiring more extensive care; that she

described her operation at 401 Station

Avenue as a business, styled the

"Theresa McGinnis Residential Home," for

purposes of federal income taxation and

reported a gross income attributable

to the business of $37,330.00 for the

taxable year 1979 from which gross income

was excluded $25,324.00 for cost of goods

sold and operational expenses and

$17,261.00 for other deductions

including advertising expenses, depreciation,

5la

licenses, wages and repairs; and that

immediately preceding her arrival in

Langhorne Manor Borough Ms. McGinnis

had owned and managed a facility of an

apparently identical nature in Cornwells

Heights, Pennsylvania, styled a

"Residential Home for Senior Citizens"

on stationery of which was advertised

a purpose to "Care for Senior Citizens

Daily, Weekly, Week-ends and Permanent

Basis" and at which location were

housed on the same terms many of the

persons later residing at the subject

property in the Borough. We cannot say,

especially in the light of the complete

absence of evidence having a contrary

import, > that the factors just recited

are insufficient to support the board's

determination that Ms. McGinnis was

engaged in a commercial endeavor

designed and intended to be, if not yet

realizing that intention, profitable.

52a

Finally, we note that the court below

seems to have been persuaded that the

services provided by Ms. McGinnis to a

number of elderly persons in her

community are valuable and in accord

with certain statements of policy

attributed to the Commonwealth Department

of Aging. We do not disagree. The record

admits of no conclusion other than that

the elderly residents in Ms. McGinnis'

charge have benefited greatly from her

expert care as well as from the companion-

ship and healthful environment her

residential home provides. However, as

we have earlier emphasized, the issue is

not whether Ms. McGinnis ought to be

permitted to carry on her useful vocation

but whether it is within the power of the

municipality to exclude commercial

activities from residential zoning

districts. The Borough has such power

53a

and no more than the proper exercise

fo such power is here challenged.

In the matter of the Borough's

appeal to No. 1137 C.D. 1931, the order

below is reversed. The trial court

disposed of all of the issues before it

by an order which simply sustains Ms.

McGinnis' zoning appeal. It will be

recalled that the Zoning Hearing Board

had also refused Ms. McGinnis' applica-

tion for a variance for her home and

that the trial court, in the course of

the opinion in support of its order,

rejected her appeal from this action.

Although Ms. McGinnis won in the trial

court, she filed a cross appeal to save

her position with respect to the variance.

We affirm the lower court's decision on

this issue.

THEODORE O. ROGERS, J.

54a

1. Ms. MGinnis disingenuously testified

that a number of her patrons were related

to her as "aunts." However, the testi-

monial evidence failed to support this

claim and the board preperly found that

the only resident related to her was

Mr. James McGinnis, the brother of

appellant's father. Moreover, it was

finally conceded that at least two of

the six members of the group were unrelated

to the others and Section 215 prohibits

any group of greater than five members

from residing together if any member of

the group is unrelated to the others.

2. Moore v. East Cleveland, 431 U.S.

494 (1977) relied on by Ms. McGinnis, is

not to the contrary. In Moore the Court

held to be unconstitutional a housing

ordinance which had the effect of creating

criminal culpability on the part of a

grandmother who resided with her son and

her two grandsons. Mr. Justice Powell,

writing for the plurality, reasoned

that the regulation at issue was unjusti-

fiably intrusive and violative of the

protections traditionally afforded to the

sanctity of the family. Of Belle Terre,

Mr. Justice Powell wrote:

(O)ne overriding factor sets this

case apart from Belle Terre. The

ordinance there affected only un-

related individuals. It expressly

allowed all who were related by

"blood, adoption, or marriage” to

live together, and in sustaining

the ordinance we were careful to

note that it promoted "family

55a

needs" and"family values". 416

U.S. at9.... East Cleveland,

in contrast, has chosen to regulate

the occupancy of its housing by

slicing deeply into the family

itself. (Emphasis in original).

Id. at 498. The concurring opinions of

Mr. Justice Brennan and Mr. Justice

Stevens are equally explicit in their

reassertion of the viability of Belle

Terre. Id. at 511, 519 n. 15. In the

instant case the ordinance challenged,

like that in Belle Terre and unlike that

in Moore, permits related persons to

reside together without limitation and

attempts only to regulate the number of

unrealted persons who may reside ina

single dwelling.

Ms. McGinnis also relies, as did the

court below, on two decisions of this

court in which it was held that single-

family zoning ordinance provisions

Similar to that here at issue could not

prevent unrelated foster children or

56a

mentally retarded children from living

with an adult couple in a domestic

environment intentionally structured

under the auspices of agencies of the

Commonwealti. so as to mirror a traditional

nuclear family. Hopkins v. Zoning Hearing

Board of Abington Township, 55 Pa.

Commonwealth Ct. 365, 423 A.2d 1082

(1980); Children's Home of Easton v.

City of Easton, 53 Pa. Commonwealth Ct.

216, 417 A.2d 830 (1980). In Hopkins

and Children's Home of Easton Belle

Terre was factually distinguished on the

grounds that the six unrelated college

students there involved did not con-

stitute the equivalent of a nuclear

family.

The living arrangement involved in

the case sub judice, unlike that in

Hopkins and Children's Home of Easton,

embodies no permanent commitment on the

57a

part of the individual residents. The

record here reveals that during the course

of the hearings before the board at least

One and perhaps two of the residents at

Ms. McGinnis’ home had gone elsewhere.

Each resident is free to leave at any

time unfettered by the legal, social and

moral bonds -- including those bonds

created, for example, by a commitment to

the task of child rearing -- that import

greater stability to nuclear families.

In sum, each of these cases must turn on

its facts and with the exception of the

age of the residents, the living arrange-

ment here involved is very much like

that of Belle Terre and unlikely to be

mistaken for a nuclear family.

We have also examined but are un-

persuaded by the many authorities of

other jurisdictions cited in appellant's

brief for the proposition that unrealted

individuals must be permitted to reside

58a

together despite local zoning ordinance

provisions to the contrary. A number of

these cases were decided prior to Belle

Terre, others represent factual circum-

stances involving, as did Hopkins and

Children's Home of Easton, the equivalent

of a nuclear family, others concern

issues not here present; for example,

whether unmarried couples or members of a

religious order may be prohibited from

living together.

3. Ms. McGinnis, acting on advise of her

counsel, resisted throughout the hearings

before the board attempts to elicit

evidence concerning the nature of her

enterprise in the Borough: refusing to

answer questions concerning her financial

arrangements with those living at the

residential home; claiming, without

citation to authority, that all such

matters are privileged; refusing to

produce, despite the failure to obtain a

59a

protective order, business records the

subject of subpoenas duly issued; and

Claiming a "banker-client" privilege in an

attempt to prevent the testimony of Mr.

Ira Wright, Assistant Vice President of

the First National Bank and Trust Company

of Newtown, with respect to the financial

particulars of her purchase of the sub-

ject property.

Of course it was the appellant's

burden to establish her use of the pro-

perty was permitted under the ordinance

or that sufficient hardship existed to

justify a variance from the ordinance's

terms. Here the appellant's intransigence

and persistent refusal to cooperate with

the fact finding tribunal cannot have

been helpful to her cause and, although

we do not here face the issue as the find-

ings of the board are adequately supported,

we would be inclined to sustain the

fact finder in any case where a party

60a

who refuses to cooperate or to divulge

necessary information properly requested

is found to have failed to meet his

evidentiary burden.

6la

IN THE COMMONWEALTH COURT OF PENNA.

IN RE: APPEAL OF THERESA : NO.1013 C.D.

McGINNIS from the decision 1981

of the LANGHORNE MANOR :

BOROUGH ZONING HEARING

BOARD,

THERESA McGINNIS, :

Appellant

IN RE: APPEAL OF THERESA ;:

McGINNIS from the decision

of the LANGHORNE MANOR

BOROUGH ZONING HEARING

BOARD :NO. 1137 C.D.

1981

LANGHORNE MANOR BOROUGH,

Appellant :

ORDER

AND NOW, this 29th day of July, 1982,

in the matter of the appeal of the

Langhorne Manor Borough to No. 1137 C.D.

1981 , the order below made March 24,

1981 is reversed; in the matter of Theresa

McGinnis's appeal to No. 1013 C.D. 1981,

from the refusal of a variance, the

decision of the Court of Common Pleas of

Bucks County is affirmed.

ry . ’ .

62a

APPENDIX D

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The following provisions of the

Constitution of the United States are

involved:

AMENDMENT I

Congress shall make no law respecting

an establishing of religion, or prohibiting

the free exercise thereof; or abridging

the freedom of speech, or of the press;

or the right of the people peaceably to

assemble, and to petition the Government

for a redress of grievances.

AMENDMENT XIV

Section 1. All persons born or

naturalized in the United States, and

subject to the jurisdiction thereof, are

citizens of the United States and of the

State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall

any State deprive any person of life,

liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the

laws.

63a

2. The following provision of the

Zoning Ordinance of Langhorne

Manor Borough is involved:

Section 215 Family

One or more persons related by blood,

Marriage or adoption and in addition,

any domestic servants or gratuitous

guests thereof; or a group of not more

than five persons who need not be so

related, and in addition, domestic ser-

vants or gratuitous guests thereof,

who are living together in a single

non-profit dwelling unit and maintaining

a common household with single cooking

facilities. A roomer, boarder or

lodger shall not be considered a member

of the family.

APPENDIX E

64a

SUPREME COURT OF PENNSYLVANIA

QUESTIONS PRESENTED IN

PETITION FOR ALLOWANCE OF APPEAL

1. Where the Commonwealth Court has held

that foster parents and foster child-

ren and houseparents and mentally

retarded children constituted the

functional equivalent of biological

families and zoning ordinances which

barred them from single-family

residential districts were unconsti-

tutional as applied, is it a denial

of equal protection and state public

oy | for the Commonwealth Court to

old that the elderly residents and

Ms. McGinnis cannot be considered

the functional equivalent of a

biological family?

2. Where the elderly residents have a

liberty interest in avoiding transfer

trauma and have not been accorded due

process, was it error for the Common-

wealth Court and the Zoning Hearing

Board to fail to determine the due

process necessary to assure these

elderly residents their constitutional

rights before denying the McGinnis

applications before the Zoning

Hearing Board?

3. Where the Commonwealth Court pre-

viously decided that foster children

and foster parents and houseparents

and mentally retarded children con-

stituted the functional equivalent

of biological families despite the

fact that the parents were paid to

care for the children and other

commercial dealings were implicated

in the relationship and the Zoning

Hearing Board's findings of fact and

65a

conclusions of law as to those

commercial indicia which differed

from those present in Hopkins (infra)

and Easton (infra) were not supported

by substantial evidence, was it error

for the Commonwealth Court to decide

that the commercial dealings between

Ms. McGinnis and her elderly residents

barred the use under the Langhorne

Manor Borough Zoning Ordinance?

Where the cross-appeal was filed to

preserve the issues of constitu-

tionality in general, permissive use

and entitlement to a variance, was it

error for the Commonwealth Court to

ignore the first two issues and

consider the appeal to be only from

the denial of a variance?

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.