Posted by: Patricia Salkin | March 7, 2016

PA Commwlth Court Finds Board Could Consider Four Volunteers Who Were to Care for Three Terminally Ill Patients at Dwelling as Part of the Family Unit to Satisfy Definition of Family

On July 24, 2014, St. Francis Home filed an application for a residential building permit (building permit) with Township, seeking permission to build a single-family, detached dwelling on undeveloped property designated as Lot 1 of the Final and Minor Subdivision Plan of the Impink Subdivision located in the Township (Property). St. Francis Home planned to build the dwelling pursuant to a June 9, 2014, agreement with Margaret J. Impink, which provided that Impink would donate the Property to St. Francis Home for the purpose of providing care to terminally ill individuals in a family-like environment in a residential dwelling constructed on the Property. The proposed dwelling would house three terminally ill residents, and four members of St. Francis Home (volunteers) would come on a daily basis to provide comfort and care to the residents. The Hartmans, who owned the neighboring property, contested the granting of a permit to construct a curb, a sidewalk, and a driveway entrance on the Property. The Zoning Hearing Board (ZHB) of Cumru Township determined that the proposed dwelling constituted a single-family dwelling, which is a permitted use in the HR zoning district. The Hartmans appealed to the trial court, which dismissed their appeal and affirmed the ZHB.

The Hartmans’ first contended that the terminally ill residents are transient because they will only reside at the dwelling for six months or less. However, the court found that this was not a temporary housing situation, since the residents will reside permanently at the dwelling until their death and do not have to leave if they live longer than six months. Accordingly, the court agreed with the ZHB that the arrangement was stable and permanent, not transient. Additionally, it found that the ZHB was correct in determining that the residents will maintain the home as a functional common household because the residents would have access to all areas of the home and all of the meals would be made in the kitchen and served to the three residents, who would eat together in the dining room, socialize in the living room, and go to the chapel for religious services.

Next, the Hartmans contended that the ZHB erred in considering both the residents and the volunteers together as the “family.” Section 701(A) of the relevant Ordinance provided in pertinent part that “the term ‘family’ shall be deemed to include any domestic employees.” Here, the “family” would consist of the three terminally ill residents and four volunteers, one of which would stay overnight at the dwelling each night. Furthermore, the volunteers at St. Francis Home would be going to the dwelling on a daily basis to cook, serve, assist, and care for the residents. Accordingly, the court found the ZHB correctly determined that the volunteers met the definition of a domestic employee. Lastly, the ZHB’s refusal to admit testimony and evidence regarding traffic congestion and decreased property values did not amount to bias and was not improper, as this case involved the issuance of building and construction permits. As such, testimony on traffic congestion and decreased property values was not relevant. The court therefore affirmed the trial court’s dismissal of the case.

Hartman v. Zoning Hearing Bd. of Cumru Tp., 2016 WL 555676 (PA Commwlth 2/12/2016)


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