Posted by: Patricia Salkin | October 14, 2015

PA App. Court Holds Zoning Ordinances Defining “Family” Using Biological and Legal Bonds Were Not Facially Unconstitutional

Sheldon Schwartz and Paul Abeln (collectively Appellants) appealed the order of the Court of Common Pleas of Philadelphia County holding that the definition of “family” contained in Section 14–102(49) of the former Philadelphia Zoning Code was constitutional on its face and as applied to Appellants. Appellants each owned and were landlords for properties zoned for single-family and two-family residential use, and were each cited for violating a section of the Code that prohibited an unauthorized change in the zoned use or occupancy of a property based on the presence of more than three unrelated individuals residing in a property zoned for single-family residential use. Appellants had rented their properties to groups of students attending Drexel University. The Code defined a “family” as: “a person living independently or a group of persons living as a single household unit using housekeeping facilities in common, but not to include more than three persons unrelated by blood, marriage or adoption.”

In Appeal of Miller, which this court followed, the Supreme Court addressed whether use of a single-family residence as a personal care boarding home constituted a valid nonconforming use of the property. It held that the definition of “family” permitted use of a single-family home to board elderly residents and that appellant’s use was therefore a legal non-conforming use. It further held the term “single housekeeping unit” was not construed to limit use to persons related by blood or marriage or to exclude units where fees were paid. However, the court also noted that zoning ordinance limiting single-family residential use based on a definition of “family” that permits an unlimited number of persons related by blood, marriage, or adoption to cohabitate in a single-family residence, while restricting the number of unrelated persons who may do so, is not subject to strict scrutiny under the Pennsylvania Constitution, but instead should be reviewed to determine if the ordinance has a rational basis. Here, the burdened parties were required to produce substantial evidence to show that the use of the property would be equivalent to the use of the property by a group that fit within the strict definition of “family” found in the ordinance. Since they failed to do so, the definition of “family” found in the Code was held to not be unconstitutional as applied to Appellants’ use of their properties.

Schwartz v Philadelphia Zoning Board of Adjustment, 2015 WL 5601248 (PA Commonwealth 9/24/2015)


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