Apr 21, 2017 2 min read

A developer who appealed the city of Washington’s denial of a request to operate a boarding house in a former convent at 130 N. Franklin St., has lost a round in Commonwealth Court.

Phive Starr Properties LP sought to house about 28 boarders, primarily temporary oil and gas industry workers, in what had been a North Franklin Street residence for nuns assigned to Immaculate Conception church and school across the street.

The city denied Robert C. Starr’s application for conditional use of the building as something other than a single-family dwelling in an area designated a Business Improvement District.

Commonwealth Court Judge Bonnie Brigance Leadbetter, in a memorandum opinion filed Tuesday, called the issue “somewhat problematic” because the city’s zoning ordinance “neither defines nor directly addresses boarding houses.” The sole reference to the city’s zoning ordinance defines a dwelling and notes that the definition does not apply to hotels, lodging and boarding homes.

Starr in May 2014 testified his business partners “didn’t want to deal with it anymore and they didn’t have enough money.”

The original applicants did not appeal from the city’s denial, but sought what the court called a “curative amendment,” calling the zoning ordinance “exclusionary” because it failed to permit a boarding house in any district.

Phive Starr took the matter to Washington County Court, where Judge Katherine B. Emery affirmed the city’s denial, writing zoning ordinances in Pennsylvania “enjoy a presumption of constitutionality and validity and the party challenging one bears a heavy burden of proving otherwise.” Commonwealth Court upheld Emery’s ruling.

Starr, who purchased the property in March 2014 for $39,245, was the second of two developers to tackle the project in the 15,000-square-foot building, which has stood vacant for several years after being used as a nursing home. Parishioners from Immaculate Conception, which operates John F. Kennedy grade school, were against the proposal because of the transient nature of the boarders and the lack of parking.

The case was argued in November 2015 before Leadbetter, Judge Robert E. Simpson and Senior Judge James Gardner Colins.

A footnote in Leadbetter’s opinion states Phive Starr Properties and the city entered into mediation, but they were unable to resolve the matter in a timely manner. Attorneys for Phive Star did not return calls seeking comment.