*1 ORDER PER CURIAM: of sentence affirmed.
Judgment
OF PITTSBURGH. Appeal of CITY OF PITTSBURGH. Pennsylvania.
Supreme Court Argued March 1983. 4,May
Decided 1983. Denied June 1983. Reargument *2 D.R. Pellegrini, Sol., City Gretchen Donaldson, G. Pitts- burgh, for appellant.
E.J. Strassbu rger, Pittsburgh, appellee. ROBERTS, C.J., NIX, LARSEN, FLAHERTY,
Before jj. McDermott, zappala, hutchinson OPINION THE COURT OF McDERMOTT,Justice.
This case by arose from the denial Adjustment Pittsburgh appellee’s request she as boarding leases occupy property decision, That by house. affirmed Court of Common Pleas of was based the fact that Allegheny County, located in an R-4 appellee’s residential district property the Pittsburgh where under 937.02 of Code § Court,1 The Commonwealth how- homes are permitted. *3 homes could not be ever, rationally reasoned that boarding rooming R-4 residential districts when excluded from the Therefore, that court in such districts. houses were allowed be of the Code to unconstitutional Pittsburgh held 937.02 § law. We now the of the equal protection violative reverse. are classifications zoning we note that
Initially, the body the judgment legislative within the largely the be interfered with by will not judgment exercise of that has is that the classification it obvious except courts where morals or safety, public to no substantial v. Co. Land and Investment National welfare. 215 504, Pa. 419 Adjustment, Township Easttown 194, 668 413 Pa. 196 A.2d Appeal, Glorioso 597 (1965); A.2d of a addition, constitutionality when the In (1964). the ordi that is a attacked, presumption there is ordinance acted body municipal legislative that is valid and nance The burden welfare. the public of serving with the purpose that and prove this presumption to rebut is the challenger on Schu unconstitutional. is clearly question the ordinance in Bilbar (1975); A.2d 328 366, 336 Silver, v. bach 258, A.2d Adjustment, 64 Pa.Cmwlth. 439 Layne Board 1. (1982). 1311
227 Construction Co. v. Board Adjustment, Pa. A.2d 851
In is case, the instant it clear legislative that the body has Pittsburgh classified rooming houses as different entities for zoning Section purposes. of the Code 903.02(b) provides, “ ‘Boarding house’ means a or building portion thereof, other a hotel, than more than containing not one dwelling unit, if where any, meals and lodging for provided not in the persons unit.” residing dwelling (Emphasis added)
And, notes, 903.02(r) Section “ a ‘Rooming house’ means or thereof building portion hotel,
other than an hotel or apartment a not containing unit, more than one if dwelling any, lodging where without provided persons meals residing unit.” dwelling added) (Emphasis distinction, this Despite meal-service the Commonwealth Court no found real difference relevant to zoning purposes between the so, house. In rooming doing they relied primarily Brown, of Mr. a testimony city zoning administrator who noted: “A in the boarding home, general sense, there, where live people merely place it’s their of residence and have at least one meal day provided them, I see don’t much difference between that and a (N.T. 9/4/80) house.” do not Mr.
We find Brown’s testimony sufficient *4 rebut the presumption in favor of the of constitutionality the ordinance, nor find do we that the classification distinc tion between and houses boarding rooming fails to bear a the health, substantial morals or safety, gen Rather, eral welfare of the community. the reveals record that the in legislature’s making a distinction be purpose tween these entities was exclude commercial institutions from residential districts.2 Within this a distinction design, Brown, administrator, 2. Mr. the testified: the of availability based meal service—a service which city’s invokes the health necessarily code—is sufficiently related to the welfare of the safety so the protection as not to offend community, clause our is constitution. The one of the tools of zoning power which, effective, in order to be must government not be subjected to interference unless judicial clearly necessary. Co., National Land and Investment supra. stated, we not find necessary
For the reasons do it to set legislative body aside the determination the local in this case.
Therefore, the order the Commonwealth Court is re- versed.
' J., LARSEN, in which NIX, J., dissenting files a opinion joins.
FLAHERTY, files a J., dissenting opinion. separate Justice, NIX, dissenting.
I Court that exclusion with the Commonwealth agree when rooming from R-4 residential districts homes boarding is a in such not supported by are allowed districts houses basis. reasonable as of the class as houses in cities
Rooming boarding trade homes. not more of a transient much, if a board- today equating I Further, question accuracy a even two meals with one or home which serves ing restaurant. commercial com- houses are more that it
Actually, appears renting rooms the business nature because mercial in than transient more cities large frequently time, my some time be- Well, up was before rationale set years, through gather, and as I 1950 and tween boarding house they was a time that in mind at the had difference usually it’s more use since appeared more of commercial or was something feeding people, of a you’re trade, of a transient use, they type placed a reason for that restaurant added). (Emphasis district. in a commercial home
229 homes that are stable residences with a essentially family- type atmosphere. sees a health,
The to the majority and safety of the general welfare in the distinction community based of meal service. That distinction has availability “no real difference relevant to zoning purposes.” Layne Zoning Adjustment, of 64 Pittsburgh, Com 258, 265, 1311, monwealth 439 Ct. A.2d 1315 (1982). Espe when an of the laws cially protection challenge raised we must scrutinize ensure closely to that regulations to adopted pursuant zoning power unreasonable, or arbitrary confiscatory. to thus does an power regulate not extend to
[T]he or unreasonable arbitrary, unnecessary intermeddling with the of ownership even such private property, though acts be labelled for the preservation and safety welfare. . . 1, 6, Eller v. Board 414 Pa. Adjustment, 198 A.2d (1964), 865-866 Anstine v. Board of Ad- quoting A.2d justment, 712 Therefore I dissent.
LARSEN, J., dissenting opinion. this joins FLAHERTY, Justice, dissenting.
I dissent. The administrator’s con- city testimony an tained acknowledgment absence any meaningful houses, distinction between rooming houses boarding and the failed establish city has an basis evidentiary from an excluding boarding houses R-4 district where room- ing houses are Even if a house were permitted. character, regarded having “commercial” due its inn, functional to an the nature of a similarity inn-like, house is no less its despite meal-service, lack the latter is no less “commercial” than A the former. distinction houses, between houses and rooming meal-service, based on the no availability embodies signif- is, icant legitimate difference relevant to zoning goals, *6 therefore, protection. violative noted, too,
It
be
to the matter of
response
is to
scope
review
ordinances as
Mr.
judicial
addressed
by
McDermott, that review must be
strict
sufficiently
Justice
Hopewell Township
meaningful
inquiry.
constitute a
Golla,
v.
COMMONWEALTH BALLARD, Gregory Appellant. Pennsylvania. Supreme Court' 25, 1983. April Submitted 27, 1983. May Decided