Daily Development for Wednesday, November 10, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

ZONING AND LAND USE; USE RESTRICTIONS; SINGLE FAMILY; HALFWAY HOUSES: A halfway house for recovering alcoholics and drug-addicts does not qualify as a “single-family detached dwelling” under zoning ordinance permitting single-family detached dwellings in residential district in which halfway house was located, when the average stay for a resident at the Retreat was expected to be just two to six months.

Albert v. Zoning Hearing Board of North Abington Township, 854 A.2d 401 (Pa. July 2004).

The plaintiff landowner filed a zoning application to operate a retreat house (the “Retreat”) for recovering alcoholics and drug addicts on a 30-acre parcel of land. The Township’s zoning officer denied the application, concluding that the proposed use was not a permitted use under the ordinance in the residential district in which the property was located. The landowner appealed to the Zoning Hearing Board (“ZHB”), who reversed the decision of the zoning officer, concluding that the proposed use of the property as a halfway house was permitted under the local zoning ordinance because the Retreat qualified as a “single family detached dwelling,” a permissible use in the ordinance’s residential district. A group of abutters appealed, but both the trial court and the Commonwealth Court of Appeals affirmed the ZHB’s decision.

On appeal to the Pennsylvania Supreme Court, held: Reversed. The city can bar the group care facility from a “single family detached dwelling” zone.

The appellant abutters put forth two primary arguments. The abutters argued that the residents of the Retreat could not be deemed a “family” because: (1) by charging a monthly fee to Retreat residents, there was a clear profit motive that was the basis for the relationship between the owner/operator and the residents and (2) the short-term stays of the Retreat residents were not qualities consistent with a traditional family.

The Supreme Court rejected the appellants’ first argument that the Retreat had a profit motive that was incompatible with the concept of a “family.” The Court found no support for the conclusion that a profit motive would be the basis for the Retreat’s relationships, especially given the owner’s testimony that she did not propose the project as a profit-making enterprise, and that the owner was willing to organize the Retreat as a non-profit organization.

The Court agreed with the abutters argument that the Retreat could not qualify as a “single-family detached dwelling” under the Ordinance in light of the transience of its residents. In reversing both the trial and appellate courts, the Supreme Court held that in order to qualify as a “single family dwelling” under the ordinance, the composition of the group must be sufficiently stable and permanent so as not to be fairly characterized as “purely transient.” It acknowledged that dicta in its own prior opinions had emphasized that the quality, rather than the duration, of the stay, is what is relevant to the question of whether the property is used for “family” purposes, and indicated that otherwise this was an issue of first impression in Pennsylvania.

Relying on New Jersey authority, the Court reasoned that in order for a group of unrelated persons living together as a single housekeeping unit to constitute a single family in terms of a zoning regulation, they must exhibit the kind of stability, permanency and functional lifestyle that is equivalent to that of a traditional family unit. Because the evidence adduced at trial indicated that the average stay for a resident at the Retreat was expected to be just two to six months, the Court held that this level of instability and turnover was simply incompatible with the single-family concept, and accordingly, denied the landowner’s application to operate the Retreat as a “single-family dwelling.”

Comment 1: Note that this case now has passed through the filter of state court interpretation of the ordinance. Now, if there is juice behind the group home position (often national nonprofits advocate for homes in these cases), we’ll see if the Fair Housing Act or the Equal Protection Clause provide other answers for this conflict.

Comment 2: The editor was struck by the notion that operation of a home for a profit might preclude it from being a single family home. Note that the “profit” if any, was being owned by a nonresident owner, not someone who was conducting activities in a house in which she resided. (A paid “housemother” would administer the activities within the household.)

The court decided this issue on the grounds that in this case the owner in fact was not making a profit. But what if she was? Is she any different from any other landlord? Are we saying that people with homes in single family neighborhoods cannot rent them out? It’s moot here, but that’s where the dicta appears to lead.

Comment 3: The court ignored entirely the continuous presence of a resident “housemother.” In many single family homes, children come and go, for school, for jobs, etc. And for significant periods of time, one or two parents are the only stable residents. Is this “home” really any different from that situation? If not, then did the county really intend to draw a distinction based upon how long given residents reside in a home that is also occupied by a continuous “mother?”

In short, to the editor, this opinion has a number of holes that suggest an interpretation hostile to a group care facility that might well qualify for special treatment as a handicapped facility under the Fair Housing Act. Is there a distinction because these alcoholics are “recovering,” rather than currently undergoing withdrawal treatment? Shouldn’t be.

Comment 4: For the "there goes the neighborhood" Nimbies who feel editor is selling them out - please note that this was a single house on a thirty acre parcel.

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