            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Phive Starr Properties, LP,                      :
                          Appellant              :
                                                 :
                      v.                         :   No. 435 C.D. 2015
                                                 :   Argued: November 17, 2015
City of Washington                               :



BEFORE:        HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                                                         FILED: April 18, 2017


               Phive Starr Properties, LP (Phive Starr) appeals from an order of the
Court of Common Pleas of Washington County (common pleas) affirming the
decision of City Council of the City of Washington (City Council) to deny Phive
Starr’s application for a curative amendment to the Zoning Ordinance of the City
of Washington (Zoning Ordinance). This matter originated with Phive Starr’s
proposal to develop and operate a boarding house in the City of Washington,
which was rendered somewhat problematic by the fact that the Zoning Ordinance

    1
       This case originally was assigned to the opinion writer on or before January 31, 2016,
when Judge Leadbetter assumed the status of senior judge. However, the case subsequently was
held in abeyance pending mediation. In light of the parties’ inability to reach a timely resolution
of the matter in mediation, the prior order holding the case in abeyance was vacated and the
Chief Clerk assigned the case for disposition in February 2017.
neither defines nor directly addresses boarding houses. The sole issue on appeal is
whether common pleas erred in determining that boarding houses were not
unconstitutionally excluded from the uses permitted in the Zoning Ordinance. We
conclude that there is no merit to Phive Starr’s de jure validity challenge to the
Zoning Ordinance and, accordingly, affirm.
               Located in the City’s Business Improvement District (BID) at 130
North Franklin Street, the property at issue was previously owned by a church and
used as a residence for nuns. Planning to use the property as a boarding house for
approximately twenty-eight boarders, primarily oil and gas workers, Phive Starr
filed a conditional use application. There is a catch-all provision in the BID
providing: “Residential uses other than single-family shall be a conditional use in
said district subject to the provisions of the City of Washington Code of
Ordinances including, but not limited to, area, size, set back and parking
regulations for multi-family and multi-residential uses in the City of Washington.”
Section 301.1.A.(3) of the Zoning Ordinance at 577; Reproduced Record (R.R.) at
169a. Following a special meeting, City Council denied Phive Starr’s application.
The record reflects that the original applicants did not appeal from that denial.2
               Subsequently, Phive Starr filed the application for a curative
amendment presently before us, arguing that the Zoning Ordinance was
exclusionary because it failed to permit a boarding house in any district.
Following a hearing, City Council denied the application at a subsequent public



    2
      Mr. Robert C. Starr testified as to the original composition of the partnership and as to why
those individuals chose not to pursue the matter. May 8, 2014, City Council Hearing, Notes of
Testimony (N.T.) at 44-47; R.R. at 45-48a. He stated that they “didn’t want to deal with it
anymore and they didn’t have enough money.” Id. at 54; R.R. at 55a.



                                                2
meeting. Phive Starr appealed and, without taking additional evidence, common
pleas affirmed the denial.3 Phive Starr’s appeal to this Court followed.
              In resolving this matter, we are mindful of the following:
                     Zoning ordinances in Pennsylvania enjoy a
              presumption of constitutionality and validity, and the
              party challenging one bears a heavy burden of proving
              otherwise. In order to overcome this presumption of
              constitutionality, the challenger must demonstrate that
              the ordinance totally excludes an otherwise legitimate
              use.     Unless the challenger demonstrates that the
              ordinance in question completely or effectively excludes
              a legitimate use, the challenger has failed to carry its
              burden. To prove total or effective exclusion of a
              permitted use, the challenger can show that the ordinance
              is either de jure or de facto exclusionary. A de jure
              exclusion exists where an ordinance, on its face, totally
              bans a legitimate use. A de facto exclusion exists where
              an ordinance permits a use on its face, but when applied,
              acts to prohibit the use throughout the municipality.

In re Bartkowski Inv. Group, Inc., 106 A.3d 230, 238 (Pa. Cmwlth. 2014), appeal
denied, 118 A.3d 1109 (Pa. 2015) (citations omitted).              In addition, it is well
established that, “[u]ncertainties in the interpretation of an ordinance are to be
resolved in favor of a construction which renders the ordinance constitutional.”
Upper Salford Twp. v. Collins, 669 A.2d 335, 336 (Pa. 1995).
              As an initial matter, we note that the Zoning Ordinance does not
define boarding houses and that the only direct reference therein is their exclusion
from the definition of a dwelling, which provides: “[A] building or structure or
manufactured home, designed or used exclusively for residential occupancy,

    3
      Where, as here, a full and complete record was made before the governing body and
common pleas did not take additional evidence, we are limited to reviewing whether an error of
law has been committed or there has been a manifest abuse of discretion. Maple St. A.M.E. Zion
Church v. City of Williamsport, 7 A.3d 319, 322 n.2 (Pa. Cmwlth. 2010).



                                              3
including single-family dwellings, duplexes and multifamily dwellings, but not
including hotels or lodging and boarding homes.” Section 102 of the Zoning
Ordinance at 543-44; R.R. at 130-31a (emphasis added). Notwithstanding the
absence of a definition for “boarding house,” a “boarder” is defined as “an
individual or individuals, other than a family member of the family occupying the
dwelling unit, or part thereof, who, for a consideration, is furnished sleeping
accommodations and may be furnished meals or other services as part of the
consideration.” Id. at 538; R.R. at 125a. A “dwelling unit” is defined as follows:
“[A] group of connected rooms, whether in a separate structure, a duplex,
townhouse or apartment building including, in each unit, bathing, toilet and
cooking and food storage facilities for the exclusive use of one (1) family or not
more than three (3) unrelated individuals.” Id. at 544; R.R. at 131a.
             Notwithstanding the fact that the Zoning Ordinance defines a boarder
as one who lives in a dwelling unit, it is not clear that a boarding house is
necessarily a dwelling unit or that it houses boarders as defined by the ordinance.
In any event, the fact that an ordinance does not contain a specific provision
addressing a proposed use is not, in and of itself, a basis for finding an
unconstitutional exclusion of that use. Kratzer v. Bd. of Supervisors of Fermanagh
Twp., 611 A.2d 809, 812 (Pa. Cmwlth. 1992). Where a zoning ordinance is broad
enough to encompass the proposed use, there is no de jure exclusion. Id. In that
regard, we conclude that the BID’s catch-all provision, which provides that
residential uses other than single-family shall be a conditional use, encompasses
the boarding house use. In so determining, we note common pleas’ reliance on the
testimony of Ron McIntyre, the City’s code enforcement officer, in support of its
conclusion that Phive Starr’s “proposed use of [the] property could conceivably be



                                         4
accommodated via conditional use application.”                  June 11, 2015, Opinion of
Common Pleas at 8; R.R. at 373a.
               By way of background to McIntyre’s testimony, we note that the
Zoning Ordinance provides for two discrete business districts: the BID at issue
and the General Business District. As common pleas observed: “[N]o significant
distinction exists between [them], at least to the extent that the relevant permitted
uses and intended purposes of these districts are identical . . . .” 4 Id. at 11; R.R. at
376a. Pertinent here, the General Business District contains the identical catch-all
provision as the BID.5           In any event, McIntyre testified that City Council
previously considered something akin to a boarding house when it approved an
application for conditional use to operate a “common area apartment complex” at
the old sixth ward school located at 315 Hallam Avenue in the City’s General
Business District. November 4, 2010, Minutes of City Council at 1-2; R.R. at 317-
18a. He stated that the multi-story converted school is used to house transient
workers for the oil and gas industry and that “they come in and they share, like, a
living room area, share a kitchen and bathroom area, and then have sleeping
quarters.” May 8, 2014, City Council Hearing, Notes of Testimony (N.T.) at 17;
R.R. at 18a. Regarding the layout, he testified as follows: “[W]hen you walk in,
there’s, like, a shared suite or common area for recreation, watching TV, sitting on
couches, things like that. And then off of that are sleeping rooms off of the suite.
And I think there’s several floors of those with male and female bathrooms.” Id. at
13; R.R. at 14a.


    4
       The only differences between permitted uses in these districts relate to offices, government
facilities, and retail establishments. Part 3 of the Zoning Ordinance at 577-79; R.R. at 168-70a.
     5
       Section 302.1.A.(3) of the Zoning Ordinance at 578; R.R. at 169a.



                                                5
              While it is true that the Zoning Ordinance contains neither a definition
for “boarding house” nor “common area apartment complex,” we conclude that a
“boarding house” qualifies as a residential use other than single-family under
Section 301.1.A.(3) of the Zoning Ordinance.6 This determination is consistent
with City Council’s past treatment of something tantamount to a boarding house as
a conditional use under the Zoning Ordinance, which occurred regardless of the
fact that those patrons were paying for their lodging. It is also in line with the
well-established edict that an ordinance must be construed in a sensible manner.
Adams Outdoor Adver., L.P. v. Zoning Hearing Bd. of Smithfield Twp., 909 A.2d
469, 483 (Pa. Cmwlth. 2006). We, therefore, reject Phive Starr’s argument that
boarding houses were unconstitutionally excluded from the permitted uses outlined
in the Zoning Ordinance.
              Accordingly, we affirm.




                                            _____________________________________
                                            BONNIE BRIGANCE LEADBETTER,
                                            Judge




    6
      This record does not reflect why the earlier conditional use application was denied. At all
events, that denial was not appealed and it is not clear whether a renewed application could cure
whatever defects prevented its approval.



                                               6
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Phive Starr Properties, LP,              :
                          Appellant      :
                                         :
                  v.                     :     No. 435 C.D. 2015
                                         :
City of Washington                       :


                                      ORDER


            AND NOW, this 18th day of April, 2017, the order of the Court of
Common Pleas of Washington County is hereby AFFIRMED.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge
