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Details on zoning decision; ruling upheld ban on more than two unrelated people living in residence

By Dan Miller

danmiller@pressandjournal.com

717-944-4628
Posted 8/8/18

A Middletown zoning provision banning more than two unrelated people from living in a residence has been upheld in decisions of the U.S. Supreme Court and, as recently as 2015, by Pennsylvania …

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Details on zoning decision; ruling upheld ban on more than two unrelated people living in residence

This residence at 239 W. Water St. was at the center of the zoning question.
This residence at 239 W. Water St. was at the center of the zoning question.
staff photo by jason maddux
Posted

A Middletown zoning provision banning more than two unrelated people from living in a residence has been upheld in decisions of the U.S. Supreme Court and, as recently as 2015, by Pennsylvania Commonwealth Court.

That is among reasons cited by the borough’s zoning hearing board in a written decision released July 24, regarding the board’s 3-0 denial on June 28 of a landlord’s appeal of the ban.

The appeal was filed March 23 by Sweet Arrow Properties LLC, of a notice of violation dated Feb. 23, issued by borough zoning officer Al Geosits, regarding four unrelated persons living in the residence at 239 W. Water St. owned by Sweet Arrow Properties.

The single-family residence, located in the R-2 residential zoning district, had been rented by Sweet Arrow Properties to four unrelated college students attending Penn State Harrisburg, according to the written decision.

Sweet Arrow Properties has not decided whether to appeal the zoning hearing board decision to Dauphin County Court, said Diana McGlone, one of two principals who make up the company.

“We are looking at all options, including appealing and or litigation with the borough and individual (borough) council members,” said McGlone, a former elected borough councilor who resigned in March.

McGlone has publicly alleged that the borough’s decision to cite Sweet Arrow Properties regarding the four unrelated persons living together is part of a campaign of harassment being waged against her by Middletown officials.

“I believe this zoning as currently written is used as a mechanism of the borough for selective enforcement against individuals,” McGlone told the Press & Journal on Tuesday.

She also noted that borough council “has made no effort to change” its definition of family “to accommodate the changing times in society regarding individuals who make a lifestyle choice to live together.”

McGlone also added that as she testified during the hearing before the zoning board, “not all of my tenants are students.”

Previous court cases

Sweet Arrow Properties in its appeal contended that the borough definition of “family” banning no more than two unrelated persons from living in a residence violated the Federal Fair Housing Act, according to the decision.

The zoning board decision cites a 1974 U.S. Supreme Court case, Belle Terre v. Boraas, as having “unequivocally established” that zoning ordinance provisions restricting how many unrelated people can live together in a residential zone “do not violate U.S. Constitutional requirements, including 14th Amendment legal protection requirements or associated interests.”

Such provisions “bear a rational relationship to the permissible state objectives and typical zoning goals of controlling density, maintaining the residential character of neighborhoods, and allotting and controlling parking and traffic facilities,” the board said in its decision.

The board also cited language in the 2015 Pennsylvania Commonwealth Court decision, Schwartz v. Philadelphia Zoning Board of Adjustment, in which the court denied a landlord’s appeal in a case similar to the one in Middletown, the board said.

The state court held that “zoning ordinances defining ‘family’ using biological and legal bonds are not facially unconstitutional,” the board said.

The board decision said Sweet Arrow Properties’ contention that the ban discriminates under the Federal Fair Housing Act and Pennsylvania Human Relations Act is not valid, as none of the four people renting from Sweet Arrow were younger than 18, and therefore “they are not part of a protected class” as defined in the federal and state statutes.

The board rejected an argument from Sweet Arrow Properties that its appeal should be deemed approved because the zoning board did not hear the matter within 30 days of the appeal being filed.

The board said that under the zoning ordinance, the hearing was required to be held within 60 days. As the appeal was filed by Sweet Arrow Properties on March 23 and heard by the board on May 8, the hearing was “well within the 60 days required by law,” according to the written decision.