A. & D. Carunchio v. Swarthmore Borough Council & Headstrong Foundation ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony and Deborah Carunchio, :
William and Lisa Feehery, Jim :
Anderson, Mark and Lisa O’Brien, :
Tam Heckel, John and Kay Coldiron, :
and Joanna and Jarrod Barton, :
Appellants :
:
v. : No. 1379 C.D. 2017
: Argued: June 10, 2020
Swarthmore Borough Council :
and Headstrong Foundation :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION BY JUDGE BROBSON FILED: August 11, 2020
Anthony and Deborah Carunchio, William and Lisa Feehery, Jim Anderson,
Mark and Lisa O’Brien, Tam Heckel, John and Kay Coldiron, and Joanna and Jarrod
Barton (Appellants) appeal from an order of the Court of Common Pleas of Delaware
County (Common Pleas), dated August 31, 2017. Common Pleas affirmed the
decision of the Swarthmore Borough Council (Borough Council), which approved
Headstrong Foundation’s (Headstrong) request for an accommodation
(Accommodation Request) under the Fair Housing Amendments Act of 1988
(FHAA).1 For the reasons set forth below, we affirm.
1
42 U.S.C. §§ 3601-3631.
I. BACKGROUND
Headstrong is the equitable owner of real property (Property) located
at 200 South Chester Road in the Borough of Swarthmore (Borough), Delaware
County, near the intersection of South Chester Road and Harvard Avenue. The
Property, upon which sits a residence containing 7 bedrooms and 2½ bathrooms, is
located in the RB Residential Zoning District (RB District). Headstrong intends to
use the Property to “provide temporary housing for cancer patients who are
undergoing treatment at Philadelphia area hospitals and treatment facilities and their
caregivers.” (Reproduced Record (R.R.) at 396a.) Section 1248.02 of the
Borough’s Codified Ordinances (Ordinance) permits single-family dwellings in the
RB District. Section 1240.05(36) of the Ordinance defines “dwelling” as “a building
or portion of a building used for human habitation by a family.” Section 1240.05(37)
of the Ordinance defines a “single-family dwelling” as “a building designed and
occupied exclusively as a residence for one family on one lot.” A single family can
include “[n]ot more than three unrelated persons occupying a dwelling unit, living
together.” Section 1240.05(43)(c) of the Ordinance.
On August 2, 2016, Headstrong filed its Accommodation Request with the
Borough’s Accommodation Request Review Board (Review Board), seeking an
accommodation under the FHAA to revise the Ordinance’s definition of “family” to
include “up to [7] unrelated cancer patients and their caregivers.” (R.R. at 397a.)
Headstrong alleged that the people who would be using the Property “are physically
disabled and requir[e] specialized medical treatment,” which meets the definition of
“handicapped” under the FHAA. (Id. at 397a.) The Review Board held hearings on
Headstrong’s Accommodation Request and, by order dated September 13, 2016,
2
approved the Accommodation Request. Appellants appealed the Review Board’s
order to Borough Council, which conducted a de novo hearing.
At the hearing, Headstrong presented the testimony of Cheryl Collelouri,
Headstrong’s President. (Id. at 48a.) Ms. Collelouri testified that Headstrong is a
non-profit organization that provides direct services to improve the lives of people
affected by cancer. (Id. at 49a.) One of those services is a complimentary long-term
housing facility for cancer patients and their families located in Ridley Township
called “Nick’s House.” (Id. at 49a-50a, 69a.) Ms. Collelouri stated that cancer
patients who are forced to travel from their homes to receive treatment at nearby
cancer facilities are permitted to stay at Nick’s House with 1 caregiver.
(Id. at 52a-53a.) Headstrong accommodates those patients as referrals from the
social work network, the American Cancer Society, the Leukemia and Lymphoma
Society, and/or medical teams from the University of Pennsylvania Medical Center
(Penn Medicine) or the Children’s Hospital of Philadelphia (CHOP). (Id. at 58a.)
Ms. Collelouri also testified that a typical stay at Nick’s House is 6 to 8 weeks,
but patients have stayed for as short as 4 weeks and as long as 6 months. (Id. at 52a.)
Nick’s House, which sleeps 8 people, has served 67 families in the 5 years since it
opened its doors. (Id. at 49a-50a, 69a.) There have never been any calls for
emergency services at Nick’s House. (Id. at 57a.) Ms. Collelouri explained that,
through Nick’s House, Headstrong “become[s] an extension of [a patient’s] family”
and a support system and provides patients and their families “with the comforts of
home, a place to stay, a place to shower, a place to unwind, [and] a place to rest and
recover.” (Id. at 59a-60a.) Headstrong also provides patients/caregivers staying at
Nick’s House with emotional support and assistance with hospice arrangements, if
needed. (Id. at 59a.) Headstrong does not, however, provide food/meals, laundry
3
services, or medical services to the patients/caregivers staying at Nick’s House.
(Id. at 60a-61a, 79a, 86a.) Ms. Collelouri testified further that while Headstrong
provides cleaning services for the common areas, the patients and their caregivers
are responsible for cleaning their rooms and tidying up after themselves. (Id. at 86a.)
Ms. Collelouri also testified that each of the bedrooms at Nick’s House contains a
safe and a coded door lock. (Id. at 77a-78a.)
Ms. Collelouri indicated that Headstrong is prepared to purchase the Property
to be used as an extension of Nick’s House. (Id. at 57a-62a.) She explained that
Headstrong plans to add an additional bathroom to the Property that is handicapped
accessible. (Id. at 63a.) Ms. Collelouri also explained that the bedrooms at the
Property will each sleep 4 people. (Id. at 75a-76a.) The maximum number of people
staying at the Property at any given time, however, would be limited to 14.
(Id. at 76a.) Patients/caregivers staying at the Property would be
limited to 1 vehicle, and, therefore, the maximum number of patient/caregiver
vehicles at the Property would be 7. (Id. at 53a-54a.) Headstrong anticipates
having 2 representatives/staff members present at the Property to address the needs
of the families, as well as other service providers on an occasional basis—e.g.,
cleaning persons, repair persons, and landscapers. (Id. at 55a-56a, 81a-83a.)
Ms. Collelouri estimated that an average of 10 vehicles would be present at the
Property at any given time. (Id. at 56a-57a, 63a.) The plan for the Property
includes 11 parking spaces. (Id. at 63a-64a.) Although she admitted that guests
would be permitted to visit the Property, which could increase the number of
vehicles at the Property, Ms. Collelouri indicated that there has only ever
been 1 visitor/guest at Nick’s House due to the distance from home that the
patients/caregivers travel to receive treatment. (Id. at 71a-74a, 85a.) Ms. Collelouri
4
also explained that Headstrong does not expect the Borough to provide any services
other than general municipal services—i.e., trash removal. (Id. at 66a.)
Headstrong also presented the testimony of Pam Dutton, the
caregiver/grandmother of a cancer patient, who, at the time of the November 1, 2016
hearing, was residing at Nick’s House. (Id. at 14a, 21a.) Ms. Dutton testified that
her grandson received a bone marrow transplant at CHOP, which required him to
stay in the Philadelphia area for 100 days post-transplant. (Id. at 14a-15a.)
Ms. Dutton testified further that, after being in a hospital for 44 days, it was nice for
her grandson to be in a home environment with his own room where he could spread
out. (Id. at 17a-18a.) Ms. Dutton explained that they used the kitchen for several
meals, but they also brought food in from local restaurants. (Id. at 18a.) Ms. Dutton
explained further that Nick’s House is “almost like a little home. Our home here has
other components to it. We have the staff that is there to help us so we can get what
we need, and [with] a hotel room, you would not have that at all.” (Id. at 19a.)
Ms. Dutton admitted that there were no other patients or caregivers staying at Nick’s
House other than her and her grandson.2 (Id. at 22a.)
Headstrong also presented the testimony of Vukan R. Vuchic, a transportation
engineer who is also a member of the Borough’s Planning Commission and who
heard testimony and rendered a decision in this matter at the Review Board level.
(Id. at 26a, 35a.) Dr. Vuchic3 testified that a full-scale traffic study of
South Chester Road at the intersection of Harvard Avenue was not necessary
2
Ms. Collelouri explained that Ms. Dutton and her grandson were the only
patients/caregivers staying at Nick’s House because Ms. Dutton’s grandson’s immune system was
compromised due to his treatment. (Id. at 69a-70a.)
3
While the nature of the witness’s doctorate has not been explained, we will refer to the
witness as “Dr. Vuchic” to be consistent with the hearing transcript.
5
because the impact that the accommodation will have on traffic will not be large.
(Id. at 32a-34a.) Dr. Vuchic explained that South Chester Road is very busy, with a
daily average vehicle count of 11,000 vehicles, and the Property’s “proposed use
would generate somewhere between 20 and 30 trips per day.” (Id. at 29a, 33a.)
Dr. Vuchic explained further that those 20 to 30 trips, which he categorized as
medical trips to a hospital, “would not be [as] highly peaked” as other traffic
because people would be coming and going from the Property at different times.
(Id. at 33a, 41a-43a.) Dr. Vuchic opined that the traffic increase associated with the
accommodation “is not that great.” (Id. at 34a.) Dr. Vuchic admitted, however, that
there are problems with traffic on Harvard Avenue at times. (Id. at 43a-44a.)
Headstrong also presented the testimony of Jane Billings, the Borough’s
Manager, Zoning Officer, and Code Enforcement Officer. (Id. at 89a, 96a.)
Ms. Billings testified that the Property is located in the RB District, which is
“basically thought of as a single-family residential.” (Id. at 90a.) Ms. Billings
explained that the areas surrounding the Property are zoned RB Residential,
RC Residential, and Institutional and include such things as the Swarthmore
Presbyterian Church, the Swarthmore Community Center, Swarthmore College
dorms, a shared drive, a parking lot, houses, and two large apartment buildings.
(Id. at 90a-93a, 98a-100a.) Ms. Billings indicated that the Ordinance does not
require that a house located in the RB District be occupied for a certain length of
time to be considered a “dwelling.” (Id. at 94a-95a.) Ms. Billings explained that
Borough Council has even “taken the position in the last [6] months that [bed and
breakfasts] are allowed [in the RB District] as long as they are not violating
the [3] unrelated persons rule.” (Id. at 94a.) Ms. Billings confirmed that there is
nothing in the Ordinance’s definition of “family” that requires that a family eat meals
6
together or addresses whether a family can have locks on their bedroom doors.
(Id. at 95a.) Ms. Billings explained that there is no zoning district within the
Borough that permits more than 3 unrelated persons to live in 1 dwelling.
(Id. at 101a-02a.) As the Borough Manager, Ms. Billings has not received any
complaints about the traffic on Harvard Avenue. (Id. at 104a.)
Headstrong also presented the testimony of Stephanie Fooks-Parker, an
oncology social worker at CHOP. (Id. at 105a.) Ms. Fooks-Parker testified that her
job duties include working with local housing providers to secure housing for her
patients and their families in the Philadelphia area. (Id. at 106a.) She decides which
patients to send to the different types of housing based on factors such as location,
cost, family size and makeup, the family’s resources, the type of the patient’s study,
and the family’s needs. (Id. at 106a-07a, 109a-10a.) Ms. Fooks-Parker explained
that “ideally we want something that is going to be homey for [the patients and their
families], something where they have control over their environment, meaning they
will have the opportunity to cook meals for their family, the opportunity to be in an
area where they can go outside and kind of experience the community and so on.”
(Id. at 107a.) She has referred patients to Nick’s House in the past for periods
ranging from 6 weeks to 3 months. (Id. at 107a.) There have been times when she
has attempted to secure housing at Nick’s House for a patient but was unable to do
so because Nick’s House was occupied. (Id. at 108a.)
Headstrong also presented the testimony of Stephen Schuster, M.D., an
oncologist at Penn Medicine, who specializes in blood cancers, specifically
lymphoma. (Id. at 112a.) Dr. Schuster testified that he “treats patients from all over
the country[,] . . . Europe, Asia, [and the] Middle East.” (Id.) His patients come to
the Philadelphia area for treatment because they cannot get the treatment that they
7
need where they live. (Id.) He has referred his out-of-town patients that have needed
to stay in the area for more than a week or two to Nick’s House. (Id. at 113a-15a.)
He would endorse the expansion of Nick’s House because there have been times
when he has attempted to secure housing for a patient at Nick’s House but was
unable to do so because Nick’s House was full. (Id. at 116a.)
Headstrong also presented the testimony of Donald Coneen, a licensed
architect and home improvement contractor. (Id. at 117a.) Mr. Coneen testified that
he and his team have conducted an informal feasibility analysis to determine what
renovations his company would need to perform so that the Property would meet
Headstrong’s needs. (Id. at 119a, 129a-30a.) Those renovations, which are mainly
focused on making the Property more handicapped accessible, include the
installation of: (1) a third bathroom that is handicapped accessible; (2) a parking
area that is compliant with the Americans with Disabilities Act of 1990
(ADA);4 (3) a platform lift from the ADA-compliant parking area to the outside
porch to create an accessible pathway from the parking area into the house; (4) an
interior staircase chair lift from the first to second floor; (5) a second laundry area;
and (6) an air conditioning upgrade. (Id. at 119a-26a.) Mr. Coneen does not expect
to perform any major structural renovations, because Headstrong is “very concerned
[with] maintaining the characteristic and the integrity of the building.” (Id. at 126a.)
Mr. Coneen explained that all of the intended renovations are consistent with a
single-family home. (Id. at 126a-27a.) Mr. Coneen also explained that the Property
has been maintained over the years and the intent is “to maintain the character of the
site and the home.” (Id. at 127a.)
4
42 U.S.C. §§ 12101-12213.
8
Headstrong also presented the testimony of Michael Peters, Esquire, a
licensed architect and a practicing attorney, who is a member of the Borough’s
Zoning Hearing Board (ZHB). (Id. at 136a.) Mr. Peters testified that he served as
the primary caregiver for a friend who had been diagnosed with acute lymphoblastic
leukemia and spent the summer of 2013 in a hotel in Indianapolis while his friend
sought treatment. (Id. at 137a-38a.) He would have preferred to stay in a setting
like Nick’s House because living in a hotel “was not a fantastic way to try and
recover from a bad situation.” (Id. at 138a.) Mr. Peters indicated that given his
experience with and knowledge of the Ordinance as it relates to zoning,
Headstrong’s proposed use for the Property is not inconsistent with the character of
the RB District, “particularly the edge of the RB District,” where the Property is
located. (Id. at 139a-40a.) Mr. Peters explained:
[I]t’s residential. The only thing that’s nonconforming is
the fact that the individuals are not related by marriage or
blood, but in terms of the use and the character of the use
it’s very consistent with what you would see of a family.
It’s a [7]-bedroom house. So any family, single family,
that lived in that house would be pretty big. They [sic]
would have a lot of cars. They [sic] would have probably
kids in the range of ages and multiple adults.
(Id. at 139a.)
Headstrong also presented the testimony of John Patro, the owner of Crown
Security Systems. (Id. at 145a.) Mr. Patro testified that he performed a preliminary
assessment of the Property for security and fire safety purposes. (Id. at 146a.) Based
on that assessment, he recommended that Headstrong install a life safety fire alarm
and a smoke detection and carbon monoxide system to protect the Property and its
residents. (Id. at 146a-47a.) Mr. Patro explained that these systems are typical to
9
what he would install in any type of residential home, including a single-family
home. (Id. at 146a-47a.)
Headstrong also presented the testimony of Perri Evanson, an associate broker
at Berkshire Hathaway Home Services, who has been working in the Swarthmore
real estate market for 20 years. (Id. at 150a-51a.) Ms. Evanson testified that the
property located at 718 Harvard Avenue, which is directly adjacent to the Property,
was on and off the market for 4 years before it sold for $528,270. (Id. at 152a.)
Ms. Evanson opined that the sales price was very low, which she attributed to the
impact of the church parking lot and Chester Road. (Id. at 152a-53a.) Ms. Evanson
does not believe that the Accommodation Request would have an adverse impact on
the value of the Property, which has been on and off the market for about 3 years.
(Id. at 153a, 159a-60a.) She explained:
I’ve lived in many properties in the area that are large and
it is extremely difficult to find a family that’s not blended
to fit into a property like this, especially
with [7] bedrooms. It’s one of the reasons why these
houses are on the market for so long, and why their value
goes [sic] down, because there is not an accommodation
for more than just husband, wife and a couple of kids.
(Id. at 153a-54a.) Ms. Evanson also does not believe that the sale of the Property
would have a detrimental impact on property values in the area if the Property was
sold for $699,927, the price identified on Headstrong’s agreement of sale.
(Id. at 154a-57a.) She explained:
I believe that keeping houses on the market for a long time
is one of the worst things that you can do for real estate.
Values go down significantly, especially if you go after it.
You get into years and years of a property being on the
market, especially a property when it’s in [sic] a busy
street. You really run into trouble with the stability of the
actual area itself . . . .
....
10
. . . . So I do believe the faster that you can sell a property
the better. The faster that house is not vacant, the better,
and that if you put a viable living family, no matter how
you, whatever your definition of family is, into a property,
it will help stabilize that area as far as real estate is
concerned.
(Id. at 156a-57a.)
Headstrong also presented the testimony of Robert Smythe, a resident of the
neighborhood in which the Property is located. (Id. at 161a-62a.) Mr. Smythe does
not believe that the proposed use of the Property would change the character of the
neighborhood. (Id. at 162a.) Mr. Smythe explained that the neighborhood does not
have “a single set of characteristics” and “contains many different uses already.”
(Id. at 163a.) Mr. Smythe also does not believe that the Property’s residents would
pose any greater threat or safety concern than anyone else who enters the
neighborhood. (Id. at 164a.)
In opposition to Headstrong’s Accommodation Request, Appellants presented
the testimony of Joseph Kujawski, who previously resided at the Property for a
period of approximately 2 years. (Id. at 171a.) Mr. Kujawski provided a description
of the Property’s interior and exterior features. (Id. at 172a-79a.)
Appellants also presented the testimony of Appellant Lisa Feehery, who has
lived 2 houses down from the Property on Harvard Avenue for the past 7 years.
(Id. at 180a.) Ms. Feehery testified that her neighborhood consists of large and small
single-family homes, historic houses, and tree-lined streets; the residents, who are
long-term and stable, are involved in the community and hold regular neighborhood
events. (Id. at 181a-83a.) She described the neighborhood as “hidden” and
explained that because Harvard Avenue and Chester Road are busy streets, the
residents use the rear of their homes for access. (Id. at 182a.) The character of the
neighborhood is important to her, because she has a special needs child who wanders
11
the neighborhood, and she needs the “village,” which she described as parents
watching the neighborhood kids to make sure they are safe and behaving themselves,
“to know him so that he can stay safe.” (Id. at 187a-89a.) Ms. Feehery explained
that, as a parent, there is no way that she will be able to get to know the Property’s
residents as neighbors so that she can ensure that her child is safe. (Id. at 188a-89a.)
She is concerned about the character of the neighborhood because people invest in
their homes and their community, and they should be able to know that the homes
in their neighborhood will remain single-family homes and not be turned into hotels.
(Id. at 189a.)
Ms. Feehery stated further that there are school bus stops “literally every few
feet on Harvard [Avenue]” that transport children to and from the high school, the
middle school, the elementary school, the Swarthmore Presbyterian Church, and the
community center. (Id. at 194a-95a.) The children riding those school busses access
Harvard Avenue from the shared driveway that is located behind the Property.
(Id. at 194a-95a.) She does not believe that the requested accommodation would be
compatible and/or in character with the other uses in the RB District. (Id. at 196a.)
She explained that the intensity of the intended use of the Property far exceeds what
anyone is currently doing with any single-family home in the neighborhood and
throughout the Borough. (Id. at 196a-97a.) Ms. Feehery indicated further that the
traffic generated by guests coming to the Property every 6 to 8 weeks is not
consistent with the community. (Id. at 197a.) When asked if she had concerns about
whether the accommodation would adversely affect the health and safety of the
neighborhood, Ms. Feehery stated that no one would be living at the Property
permanently; the residents and volunteers would be cycling through the Property and
the neighbors would have no idea who the residents and volunteers are.
12
(Id. at 197a-98a.) Ms. Feehery believes that the influx of people and the volume of
traffic is dangerous to the neighborhood. (Id. at 198a-99a.)
Appellants also presented the testimony of Appellant Lisa O’Brien, who has
lived 3 houses down from the Property on Harvard Avenue for the past 25 years.
(Id. at 203a.) Ms. O’Brien testified that Harvard Avenue is the dividing line between
the RB District and the Institutional zoning district; on her side of the street, it is
residential, and on the other side of the street, it is institutional. (Id. at 204a-07a.)
The businesses located along Harvard Avenue create a lot of traffic. (Id. at 207a.)
Harvard Avenue is so narrow that when vehicles are parked on the north side of the
street, Harvard Avenue becomes a one-lane road and several periods of gridlock
occur, because people traveling in one direction have to wait for traffic to clear from
the other direction before they can proceed. (Id. at 208a-11a.) Ms. O’Brien believes
that the intersection of Chester Road and Harvard Avenue is unsafe and one of the
most dangerous intersections in the Borough. (Id. at 212a-17a.) She is concerned
about Headstrong’s intended use of the Property, because the Property’s driveway
is located in the middle of all these traffic issues, and additional vehicles at the
Property will exacerbate the traffic problems that already exist. (Id. at 217a.) She
also stated that the driveway at the back of the Property provides access to 3 homes
located on Chester Road. (Id. at 218a, 227a-28a.) The Property serves as the
cornerstone of the neighborhood and creates “a bulwark against the traffic and
activity on Chester Road.” (Id. at 219a.) If the Property is used as a residence for
people who are changing on a regular basis and do not have a stake in the
community, the Property will no longer serve as a safety net for the neighborhood.
(Id.)
13
Appellants also presented the testimony of Jessica Harrington, who resides on
Chester Road across the Swarthmore Presbyterian Church parking lot from the
Property. (Id. at 232a-33a.) Ms. Harrington accesses her home using the shared
driveway located behind the Property. (Id. at 234a.) She has an easement with the
Swarthmore Presbyterian Church that permits her to use the shared drive. (Id.) Her
concerns regarding Headstrong’s intended use for the Property relate to parking.
(Id. at 235a.) She explained that while the Property “owns [the] parking spaces on
[the] shared driveway, [she believes that] the easement require[s] that there’s a good
faith that they do not use that parking on Sundays during events and major holidays.
And so any overflow parking, we don’t know where that would go.” (Id. at 235a,
238a-39a.) She is also concerned because when the use of the Property is changed
from a single-family home to a high-impact use, there will be additional vehicles
using the shared driveway, and it will be difficult for the people living in the 3 homes
that use the shared driveway as the only access to their homes to get in and out.
(Id. at 235a-36a.) She was also concerned about safety due to the lack of oversight
“into how many actual cars end up coming to the house, how many visitors actually
come to the house, and the enforcement of the rules that were presented to a patient.”
(Id. at 236a-37a.)
Appellants also presented the testimony of Patrick McFadden, a registered
architect with expertise in municipal plan review. (Id. at 240a-42a.) Mr. McFadden
opined that Headstrong’s intended use of the Property “is clearly a change of use
from RB residential single family to a normal, quotable, business zone . . . for
transient lodging which could be accommodated elsewhere within the [B]orough
limits.” (Id. at 245a, 258a.) Mr. McFadden testified that the only parking plan that
he had available to review was the property plan prepared by H. Gilroy Damon
14
Associates, Inc., which shows “parking spaces and comments on the number of
parking spaces.” (Id. at 244a, 246a.) There are several issues with the parking
spaces delineated on the property plan: (1) 3 of the parking spaces are located within
the driveway, which cannot be used for parking because it is a single lane; (2) 3 of
the parking spaces are located in the garage and the middle bay door is so narrow
that it is doubtful that 3 vehicles will fit inside the garage; and (3) 5 of the parking
spaces are located along the common drive, which at least on Sundays are to be
reserved for the Swarthmore Presbyterian Church. (Id. at 246a-47a.) Mr. McFadden
also testified that the parking spaces are delineated using only the existing stone
driveway and parking area, and, therefore, the parking area is not adequate to meet
circulation and turnaround requirements. (Id. at 247a.)
Mr. McFadden stated further that the Uniform Construction Code,5 which has
been adopted in Pennsylvania, requires that 60% of all exits be accessible to comply
with the ADA, and the property plan for the Property does not show any such
accessibility. (Id. at 247a-49a.) He admitted, nevertheless, that this requirement
does not apply to single-family homes. (Id. at 253a.) Mr. McFadden also indicated
that, based on the building code classification for the Property’s intended use,
Headstrong may be required to install a fire sprinkler system, enclose the stair
towers, and make the entire building, especially the bedrooms on the third floor,
handicapped accessible.6 (Id. at 249a-51a.) He believes that even with the
accommodation, the Property’s intended use would still be in violation of the
5
34 Pa. Code §§ 401.1-405.42.
6
Mr. McFadden appeared to incorrectly assume that just because the patients would qualify
as handicapped under the FHAA, they would all require accessible facilities. (R.R. at 251a,
256a-57a.)
15
Ordinance’s definition of “single family” and would trigger a different use and
occupancy under the building code. (Id. at 253a-56a.)
In rebuttal, Headstrong presented the testimony of David P. Damon, PE, PLS,
whose company prepared the property plan that Mr. McFadden referenced during
his testimony. (Id. at 267a.) Mr. Damon testified that while Headstrong could
modify the narrow center door of the garage to make the garage more accessible, the
garage is “certainly wide enough to fit the [B]orough’s code requirement for size of
parking spaces and it’s usable for [3] cars.” (Id. at 268a-69a.) He testified further
that it is possible to add 3 parking spaces, 1 of which will be handicapped, in the
area immediately adjacent to the house. (Id. at 269a-70a.) He explained that with
the removal of some shrubbery, it is also possible to add an additional parking space
adjacent to the church property. (Id. at 270a.) While it would be tight, vehicles
would be able to back in and out of all of these parking spaces. (Id.) He concluded
that in addition to the 5 parking spaces that are within the shared common drive,
there is enough room on the Property for 10 off-street parking spaces.
(Id. at 270a-71a.) The revision to the property plan showing parking was just
something that Mr. Damon sketched to show how many parking spaces were
available at the Property. (Id. at 272a-73a.) Both of the proposed parking plans that
he prepared for the Property comply with the Ordinance’s parking requirements.7
(Id. at 273a-74a.)
7
Following the testimony of Appellants’ witnesses, Borough Council opened the hearing
up to public comment, during which time several individuals offered support and opposition to
Headstrong’s Accommodation Request. (R.R. at 276a-81a.)
16
On December 20, 2016, Borough Council rendered its decision, approving
Headstrong’s Accommodation Request, subject to certain enumerated conditions.8
In so doing, Borough Council made the following relevant findings of fact:
9. The cancer patients who will reside at the
Property come from across the United States and foreign
countries come [sic] to the Philadelphia area to obtain
medical treatments that are not available where such
patients reside.
10. Dr. [Stephen] Schuster, professor of
medicine and [an] oncologist specializing in blood
cancers, testified that some cancer patients require
“prolonged” residency of “more than a week or two,” near
their hospital of treatment, and that “those patients we ask
to keep close to the hospital” for treatments such as
radiation therapy or daily infusion therapy, and that such
patients’ residency is “best in that kind of environment” to
be offered by [Headstrong] rather than in a hotel. The
communal family setting afforded by the single-family
home provides significant emotional benefits for the
cancer patients.
11. There is a need for an increase in the amount
of long-term housing available to cancer patients. Nick’s
House is often full and unable to take on additional
patients.
12. [Headstrong] will have one (1) or
two (2) employees working at the Property from time to
time. When fully occupied, residents and employees may
park up to sixteen (16) vehicles on the Property at a time;
more regularly, the number of vehicles to be parked on the
Property would be in the range of seven (7) to ten (10).
13. [Headstrong] intends to install
eighteen (18) on-site parking spaces on the site,
[Headstrong] provided a drawing . . . demonstrating that
8
Sometime after it rendered its December 20, 2016 decision, Borough Council issued
undated findings of fact and conclusions of law in support thereof. All further references to
Borough Council’s decision shall be considered to be references to the undated findings and
conclusions.
17
eighteen (18) parking spaces can be installed on the
Property, and issuance of a certificate of occupancy is
conditioned upon [Headstrong] submitting a professional
parking plan for on-site parking spaces.
14. In the five years that Nick’s House has been
in operation in Ridley Township, there has not been any
call for emergency services at the property.
15. The Property is a large single[-]family stone
dwelling that includes [seven (7)] bedrooms, [two (2)] full
baths, [one (1)] half bath; [Headstrong] does not propose
any alterations other than accessibility alterations that
would be visible from the exterior, and [Headstrong]
intends to “maintain the character of the site and of the
home.”
16. [Headstrong] will not require municipal
services at the Property in excess of those provided to
other properties in the Borough, such as trash removal.
17. The Property is located in the southwest
corner of the intersection of Pennsylvania State Route 320
(S. Chester Road) and Harvard Avenue (the
“Intersection”), at the northeast corner of the
[RB District]. The street on which the Property is located
is the boundary between the [RB District] and the
IN-A Industrial District. The neighborhood in which the
Property is located is a transitional area among different
zoning districts that provide for institutional[] and
residential uses. The block at the northeast corner of the
Intersection is zoned RC Residential, which allows for
semi-detached dwellings, and AR Apartment Residential,
which allows for multi-family dwellings and contains an
apartment building.
18. The property immediately to the south of the
Property is zoned RB residential but is vacant and is
owned by the Swarthmore Presbyterian Church and is
used as a parking lot.
19. The Property has been owned at different
times in the past by the Swarthmore College, when it was
used for offices, and by the Swarthmore Presbyterian
Church[,] when it was used for a variety of church
purposes including as a nursery school.
18
20. S. Chester Road is a busy north-south state
road that was recorded as having over 11,000 trips per day
in a traffic study conducted in 2013. The increase in traffic
that will result from the requested accommodation will not
be materially different from traffic that would result for
use of the Property for a single family, as defined [by] the
[Ordinance] . . . and the traffic generated from the Property
would not be highly peaked during rush-hours.
21. The proposed use permitted by the
[a]ccommodation may stabilize the housing prices after
the recent sale of the neighboring property for a very low
price, well below the price that [Headstrong] is proposing
to pay under its agreement of sale [for] the Property. The
presence of seven (7) bedrooms on the Property limits the
demand for the Property, and has resulted in the Property
remaining on the market for an extended period of time,
which may adversely affect property values. Sale of the
Property to [Headstrong] would not have an adverse
impact on property values in the neighborhood; allowing
it to remain on the market for an extended period of time
may adversely affect property values.
22. “In terms of the use the character of the use”
[sic] the [a]ccommodation will be “very consistent with
what you would see of a family.” Since the residence on
the Property has seven (7) bedrooms, in all probability
only a large family would reside therein, which may result
in the parking of a large number of vehicles parked on or
near the Property.
(Borough Council Decision at 1-3 (citations omitted); R.R. at 286a-88a.) Based on
those findings of fact, Borough Council made the following relevant conclusions of
law:
34. The cancer patients that [Headstrong] seeks
to house at the Property are handicapped within the
meaning of the [FHAA]. The Property is a single-family
home that meets the requirements of [Headstrong] and
enables it to provide cost[-]effective[,] supportive housing
in a manner that [is] recognized as being beneficial to the
patients. The communal family setting afforded by the
single-family home provides significant benefits for the
patient and their [sic] family member or partner who is
19
serving as a caregiver. Without the [a]ccommodation that
relaxes the definition of “single-family” for purposes of
the [RB District] to include up to seven [(7)] unrelated
cancer patients and their caregivers, the cancer patients
cannot use and enjoy a supportive communal dwelling in
a quiet suburban single[-]family residential neighborhood
while they are undergoing treatment at area cancer
treatment centers. Accordingly, the [a]ccommodation is
necessary within the meaning of the [FHAA] and
[Ordinance] Section 1298.
35. The definition of a “family” for purposes of
restricting occupancy in a particular zoning district, is
subject to accommodation when that definition is limited
only by the number of “unrelated” persons and that is
particularly open to accommodation when the definition
of family contemplates some additional number of persons
unrelated by blood or legal family relationships.
36. Under the [FHAA], a municipality must
provide a reasonable accommodation for handicapped
persons to enjoy a dwelling. The determination as to what
is “reasonable” is highly fact specific.
37. The Borough, in [Ordinance]
Section 1298.07, has set forth the criteria for determining
whether the requested accommodation is reasonable.
38. [Headstrong] has met the burden under the
[FHAA] and [Ordinance] Section 1298.07 that the
[a]ccommodation is reasonable by demonstrating:
(a) the [a]ccommodation will not result in an
undue financial or administrative hardship upon the
Borough . . . ;
(b) the [a]ccommodation does not undermine
the purpose of the Zoning and Planning Code or the
procedure with regard to which [Headstrong] is
requesting an [a]ccommodation insofar as the
proposed use is a residential use in an [RB District],
and the exterior traditional appearance of the
residence will not be altered;
(c) the [a]ccommodation does not alter the
use of the Property for residential purposes or
render the Property incompatible with the other uses
20
in the [RB District] and is less intensive than other
uses in immediate proximity to the Property;
(d) the [a]ccommodation will not create
parking problems in the neighborhood because the
parking needs will not be materially different from
the parking needs of a large family;
(e) the [a]ccommodation will not result in any
material increase in traffic on already heavily
travelled roads bordering the [P]roperty and may
mitigate trips during high traffic volume periods
because the cancer patients and their caregivers will
be less likely that [sic] residential occupants going
to school and work would be to exit or enter the
[P]roperty during peak traffic hours;
(f) the [a]ccommodation will further the
health and welfare of the occupants of the Property
and will not adversely affect the health and safety
of the public;
(g) the conditions of the [a]ccommodation
insure that the Property will be operated and
maintained in a manner consistent with the safety
requirements of the Borough and the building code
requirements of the Borough with any special
accommodations;
(h) the [a]ccommodation will not adversely
affect property values in a manner unrelated to the
presence of persons qualifying as “handicapped”
under the [FHAA] as the only accommodation
requested is with respect to whether the persons
residing in the house are related; in fact, sale of the
Property to [Headstrong] may stabilize property
values in the neighborhood;
(i) the proposed use which is the subject of
the [a]ccommodation is not subject to any licensure
requirements in connection with the ownership,
leasing, construction or operation of the Property;
[and]
(j) the [a]ccommodation does not undermine
the zoning and land use component of the
Borough’s comprehensive plan—there will be no
21
external changes in the appearance of the traditional
residence located on the Property.
....
40. Having established that the residents of the
Property are “handicapped” within the meaning of the
[FHAA], that the [a]ccommodation is necessary to enable
the handicapped persons to enjoy the benefits of the
dwelling in an environment most suited to furthering their
health and safety and that the [a]ccommodation is
reasonable, the burden shifts to the Appellants to
demonstrate that the [a]ccommodation is not reasonable.
41. Assuming, arguendo, that Appellants have
demonstrated that the [a]ccommodation may occasionally
result in parking on the Property in excess of that which a
single[ ]family might produce, Appellants have not
demonstrated that such increase in parking rises to the
level of rendering the [a]ccommodation unreasonable.
Any finding that a requested accommodation is
unreasonable must be based on the record and not merely
on the expression of fears by the neighbors of a [p]roperty
subject to an accommodation request.
(Borough Council Decision at 5-7 (citations omitted); R.R. at 290a-92a.) Appellants
appealed Borough Council’s decision to Common Pleas, which affirmed the
decision. This appeal followed.
II. ISSUES ON APPEAL
On appeal to this Court,9 Appellants raise the following issues for our
consideration: (1) whether Borough Council committed an error of law by
9
This Court’s “review in land use appeals where the trial court takes no additional evidence
is limited to determining whether the [local governmental body] committed an error of law or
abused its discretion. Galzerano v. Zoning Hearing Bd. of Tullytown Borough, 92 A.3d 891, 894
(Pa. Cmwlth. 2014). “A [local governmental body] abuses its discretion if its findings are not
supported by substantial evidence.” Arter v. Phila. Zoning Bd. of Adjustment, 916 A.2d 1222,
1226 n.9 (Pa. Cmwlth.), appeal denied, 934 A.2d 75 (Pa. 2007). “Substantial evidence is such
relevant evidence as a reasonable mind might consider as adequate to support a conclusion.” Id.22
determining that Headstrong was entitled to an accommodation under the Ordinance
and the FHAA;10 (2) whether Borough Council committed an error of law by
determining that Headstrong intends to use the Property as a “dwelling”; (3) whether
Borough Council committed an error of law by failing to set forth its credibility
determinations in its decision and by wholly disregarding the entirety of the evidence
presented by Appellants; and (4) whether Borough Council’s findings of fact in
support of its decision to grant the Accommodation Request are supported by
substantial evidence.
III. DISCUSSION
A. Legal Standard
Section 3604(f)(1) of the FHAA, 42 U.S.C. § 3604(f)(1), inter alia, makes it
unlawful to discriminate in the sale of a dwelling or otherwise make a dwelling
unavailable to a buyer because of that buyer’s handicap or the handicap of persons
associated with that buyer. Discrimination includes “a refusal to make reasonable
accommodations in rules, policies, practices, or services, when such
accommodations may be necessary to afford such person equal opportunity to use
and enjoy a dwelling.” Section 3604(f)(3)(B) of the FHAA, 42 U.S.C.
§ 3604(f)(3)(B). Thus, Section 3604(f)(3)(B) of the FHAA requires that an
accommodation be granted when it is reasonable and necessary to afford
handicapped persons an equal opportunity to use and enjoy housing. Lapid-Laurel,
L.L.C. v. Zoning Bd. of Adjustment of the Twp. of Scotch Plains, 284 F.3d 442, 457
10
In addition to the Ordinance and the FHAA, Appellants also identify the ADA and
suggest that Borough Council committed an error of law by determining that Headstrong was
entitled to an accommodation under the ADA. Appellants, however, have failed to develop any
argument with respect to the ADA, and, therefore, we will not address the ADA any further in this
opinion. See Pa. R.A.P. 2119(a); Rapid Pallet v. Unemployment Comp. Bd. of Review, 707 A.2d
636, 638 (Pa. Cmwlth. 1998).
23
(3d Cir. 2002). Discrimination challenges for failure to make reasonable
accommodations under the FHAA are analyzed using the burden-shifting framework
developed by the Third Circuit in Lapid-Laurel: “the plaintiff bears the initial
burden of showing that the requested accommodation is necessary to afford
handicapped persons an equal opportunity to use and enjoy a dwelling, at which
point the burden shifts to the defendant to show that the requested accommodation
is unreasonable.” Lapid-Laurel, 284 F.3d at 457.
The Borough exercised its police power and legislatively established a formal
procedure that persons covered by the FHAA may use to request a reasonable
accommodation to its Ordinance. See Chapter 1298 of the Ordinance. An applicant
seeking to utilize such procedure must file a fair housing accommodation request
with the Borough. In rendering a decision on an application for accommodation
under the FHAA, the Review Board—and subsequently Borough Council if the
Review Board’s decision is appealed—must take into consideration the following
criteria, if applicable:
(a) Whether the requested accommodation is
necessary to afford a person “handicapped” within the
meaning of the [FHAA] equal opportunity to use and
enjoy a dwelling.
(b) Whether the requested accommodation would
impose an undue financial or administrative hardship upon
the Borough.
(c) Whether the requested accommodation would
undermine the purpose of this chapter or procedure with
regard to which the applicant is requesting an
accommodation.
(d) Whether the requested accommodation would
be compatible and/or in character with other uses in the
particular zoning district.
(e) Whether the requested accommodation would
adversely affect traffic and/or parking issues.
24
(f) Whether the requested accommodation would
adversely affect the health and/or safety of the occupants
or the public.
(g) Whether the requested accommodation would
adversely affect property values in a manner unrelated to
the presence of persons qualifying as “handicapped” under
the FHAA.
(h) Whether the applicant has complied with any
applicable licensure or other governmental requirements
in connection with the ownership, leasing, construction, or
operation regarding which the accommodation is sought.
(i) Whether the requested accommodation would
undermine the zoning and land use component of the
Borough’s comprehensive plan.
(j) Whether, if the applicant has requested a
reasonable accommodation to the Building Code that
implicates a safety concern, the applicant has adequately
explained how it intends to satisfy the safety concern
underlying the provision to which the applicant seeks an
accommodation.
Section 1298.07 of the Ordinance. Section 1298.07(a) of the Ordinance
represents the first prong of the Lapid-Laurel burden-shifting framework.
Section 1298.07(b)-(j) of the Ordinance represents the second prong of the
Lapid-Laurel burden-shifting framework and identifies those factors that Borough
Council must consider in determining whether the requested accommodation is
reasonable, i.e., the reasonableness factors.
B. Whether Headstrong was Entitled to an Accommodation
Under the Ordinance and the FHAA
Appellants argue that Borough Council committed an error of law by
determining that Headstrong was entitled to an accommodation under the Ordinance
and the FHAA, because Headstrong failed to establish that the accommodation is
necessary to afford a handicapped individual an equal opportunity to use and enjoy
the Property. More specifically, Appellants contend that the approval of the
25
Accommodation Request would provide handicapped individuals with an
opportunity beyond what non-handicapped persons could enjoy,
because 14 unrelated non-handicapped individuals cannot live at the Property under
the Ordinance. In response, Headstrong argues that “the fact that the
[a]ccommodation gives handicapped individuals an opportunity that
non-handicapped individuals do not enjoy . . . is precisely why it is an
accommodation[,]” and the “[a]ccommodation is necessary to provide cancer
patients with both the comforts of a home and a support network of other cancer
patients and their caregivers.” (Headstrong’s Br. at 22-23.)
This case is not your typical FHAA discrimination case, where handicapped
individuals allege that a local municipality’s zoning ordinance is facially
discriminatory or is being applied in a discriminatory manner against handicapped
individuals, or that the local municipality has failed to provide handicapped
individuals with a reasonable accommodation. Rather, this case involves an appeal
from a local municipality’s decision to grant an accommodation request pursuant to
a legislatively defined procedure, whereby handicapped individuals can apply to the
local municipality for an accommodation under the FHAA. Headstrong filed its
Accommodation Request pursuant to Chapter 1298 of the Ordinance, seeking an
accommodation under the FHAA to revise the Ordinance’s definition of “family” to
permit it to use the Property, a single-family dwelling located in the RB District, as
a long-term housing facility for “up to [7] unrelated cancer patients and their
caregivers.” (R.R. at 397a.) In connection with its Accommodation Request,
Headstrong was only required to establish that the accommodation is necessary to
afford the cancer patients an equal opportunity to use and enjoy the Property.
See Section 1298.07(a) of the Ordinance; Lapid-Laurel, 284 F.3d at 457.
26
Headstrong was not required to establish that the Ordinance’s definition of “family”
is discriminatory against cancer patients. Thus, Appellants’ discrimination-based
argument—i.e., that the accommodation is not necessary to afford a handicapped
individual an equal opportunity to use and enjoy the Property because it provides
handicapped individuals with an opportunity beyond what is available to
non-handicapped individuals—is misplaced. In addition, Appellants have not
challenged Borough Council’s finding with respect to the cancer patients’ need for
the requested accommodation. As a result, Borough Council’s finding of
need/necessity is dispositive. For these reasons, we cannot conclude, based upon
the issues presented to us on appeal, that Borough Council committed an error of
law by determining that the Accommodation Request is necessary to afford the
cancer patients an equal opportunity to use and enjoy the Property.11
Appellants also argue that Borough Council committed an error of law by
determining that Headstrong was entitled to an accommodation under the Ordinance
and the FHAA because Headstrong failed to establish that the accommodation is
reasonable. More specifically, Appellants contend that Headstrong failed to
demonstrate that the accommodation: (1) will not adversely affect traffic and
11
We emphasize that we have made no decision relative to whether the requested
accommodation—i.e., increase of the single-family dwelling unrelated persons cap from
the 3 permitted by the Ordinance to 7 cancer patients plus caregivers (up to 14 unrelated)—is
necessary to afford cancer patients an equal opportunity to use and enjoy the Property. From our
review of the record, we are dubious of whether Headstrong met its burden on this question.
Nonetheless, that question is not before the Court. In their brief to the trial court, Appellants
argued that the record does not contain substantial evidence to support Borough Council’s finding
that the accommodation is necessary for cancer patients to have a supportive communal dwelling.
Appellants, however, appear to have abandoned that line of argument on appeal to this Court,
because they did not develop it in their brief. Instead, Appellants’ argument, which we address
above, focuses on the contention that the Ordinance does not present an inequity that must be
addressed by the FHAA, because 14 unrelated non-handicapped individuals also cannot live at the
Property.
27
parking; and (2) is compatible and/or in character with the other uses in the
RB District—i.e., that the use of the Property for transient lodging does not
fundamentally alter the existing residential quality of the neighborhood. In response,
Headstrong argues that once it established that the accommodation was necessary to
afford the cancer patients an equal opportunity to use and enjoy the Property, the
burden shifted to Appellants to demonstrate that the accommodation was
unreasonable. Headstrong argues that Appellants failed to meet their burden of
proving that the accommodation is unreasonable.
Under the Lapid-Laurel burden-shifting framework, once Headstrong
established that the accommodation is necessary to afford cancer patients an equal
opportunity to use and enjoy the Property, the burden shifted to Appellants to
demonstrate that the accommodation was unreasonable. Lapid-Laurel, 284 F.3d
at 457. Thus, any burden relating to the accommodation’s effect on traffic and
parking and compatibility with other uses in the RB District was on Appellants, not
Headstrong.
Appellants seem to confuse the standard that the ZHB must apply to an
application for a use variance with the standard that Borough Council must apply to
an accommodation request under the FHAA. In the context of a use variance,
Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC) 12 requires
the ZHB to, where applicable, make specific findings relative to all of the required
elements before it may grant a variance, including, but not limited to, “[t]hat the
variance, if authorized, will not alter the essential character of the neighborhood or
district in which the property is located, nor substantially or permanently impair the
12
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988,
P.L. 1329, 53 P.S. § 10910.2.
28
appropriate use or development of adjacent property, nor be detrimental to the public
welfare.” In the context of an accommodation request, however, Section 1298.07 of
the Ordinance simply requires Borough Council to consider all of the reasonableness
factors set forth therein. Put more simply, the standard for a use variance contains
elements, all of which must be affirmatively established, whereas the standard for
an accommodation request under Section 1298.07 of the Ordinance contains factors,
all of which must be considered but not necessarily affirmatively established.
Our review of Borough Council’s decision reveals that Borough Council
considered all of the reasonableness factors set forth in Section 1298.07 of the
Ordinance in reaching its decision. Borough Council made specific findings with
respect to each of the reasonableness factors and specifically discussed those factors
that had particular areas of concern—i.e., parking and traffic, impact on property
values, character of the Property’s intended use, and consistency of the Property’s
intended use with other uses in the RB District. (See Borough Council’s Decision
at 2-3, 6-7; R.R. at 287a-88a, 291a-92a.) As a result, we cannot conclude that
Borough Council committed an error of law by determining that the accommodation
was reasonable.
C. Whether Headstrong Intends to Use the Property as a “Dwelling”
Appellants argue that Borough Council committed an error of law by
determining that Headstrong intends to use the Property as a “dwelling.” More
specifically, Appellants contend that Headstrong intends to use the Property not as
a dwelling but merely “as a temporary sojourn, limited to the time needed for the
patient’s treatment in the Philadelphia area.” (Appellants’ Br. at 17.) In response,
Headstrong argues that its intended use of the Property meets the requirements for a
“dwelling” under both the Ordinance and the FHAA. Headstrong argues further that
29
the “Ordinance does not include any durational requirement and, moreover,
[Borough Council] has taken the position that bed and breakfasts, which house
guests for shorter durations than [its intended] use, are ‘dwellings’ and permitted in
the [RB District.]” (Headstrong’s Br. at 38.) Headstrong also argues that “[t]he
duration and character of the residents’ stay at the [Property] support a finding that
[Headstrong’s intended] use of the [Property] constitutes more than merely
temporary sojourns or transient visits and, therefore, satisfies the definition of
‘dwelling’ under the FHAA.” (Headstrong’s Br. at 42.) Similarly, Borough Council
argues that the plain language of the Ordinance’s definition of “dwelling” contains
no minimum duration of stay, but rather, contemplates that a family will use its
dwelling for habitation by boarders, roomers, or lodgers, as those terms are included
in the Ordinance’s definition of “family.”13 Borough Council argues further that its
“interpretation of the Ordinance . . . is entitled to great weight and deference,” and,
even assuming the Ordinance was ambiguous, Borough Council “was required to
interpret the Ordinance to allow the least restrictive use of the [Property,]” which
would include a finding that the Ordinance’s definition of “dwelling” does not “rely
on the length of the resident’s stay where it specifically contemplates ‘boarders,
roomers or lodgers.’” (Borough Council’s Br. at 12-13.)
Section 1240.05(36) of the Ordinance defines “dwelling” as “a building or
portion of a building used for human habitation by a family.” Appellants have not
cited and we have not found any provision in the Ordinance that limits habitation by
duration or permanency. In fact, Borough Council has recently permitted Borough
13
Section 1240.05(43) of the Ordinance defines “family” as: “(a) A single person
occupying a dwelling unit; (b) Two or more persons related by blood or marriage occupying a
dwelling unit, plus not more than two boarders, two roomers or two lodgers; or (c) Not more than
three unrelated persons occupying a dwelling unit, living together.”
30
residents to operate bed and breakfast establishments at their single-family homes in
the RB District, provided that such residents do not violate the 3-unrelated
persons rule established by the Ordinance’s definition of “family.” (R.R. at 94a.)
With the accommodation revising the Ordinance’s definition of “family” to
include 7 unrelated cancer patients and their caregivers, Headstrong will be using
the Property for habitation by a family, thus meeting the definition of “dwelling”
under Section 1240.05(36) of the Ordinance. For these reasons, we cannot conclude
that Borough Council committed an error of law by determining that Headstrong
intends to use the Property as a “dwelling.”
D. Whether Borough Council Erred by Failing to Set Forth its Credibility
Determinations and by Wholly Disregarding Appellants’ Evidence
Appellants argue that Borough Council committed an error of law by failing
to set forth its credibility determinations in its decision and by wholly disregarding
the entirety of the evidence presented by Appellants. In response, Borough Council
argues that its decision should be affirmed because it properly weighed the evidence
presented by the parties and concluded that Headstrong met its burden of proof.
It is clear from our review of Borough Council’s decision that Borough
Council considered Appellants’ evidence. In fact, Borough Council placed a
condition on its approval of Headstrong’s Accommodation Request that specifically
addressed Appellants’ concerns about parking at the Property. (R.R. at 284a
(“[Headstrong] agrees to provide [Borough Council] for its review and approval a
professional parking plan to accommodate the use and needs created by the
accommodation.”).) Furthermore, Borough Council was not required to set forth its
credibility determinations in its decision, so long as its credibility determinations
were clear from its findings/conclusions. See, e.g., Fisler v. State Sys. of Higher
Educ., Cal. Univ. of Pa., 78 A.3d 30, 43 (Pa. Cmwlth. 2013) (citing Forest Area Sch.
31
Dist. v. Shoup, 621 A.2d 1121, 1124 (Pa. Cmwlth. 1993)). Upon review of the
record, it is evident to this Court which testimony Borough Council credited and
which testimony Borough Council rejected. For these reasons, we cannot conclude
that Borough Council committed an error of law by failing to set forth its credibility
determinations in its decision and by wholly disregarding the entirety of the evidence
presented by Appellants.
E. Whether Borough Council’s Decision
is Supported by Substantial Evidence
Appellants argue that the “majority” of Borough Council’s findings of fact are
not supported by substantial evidence. In support of their argument, however,
Appellants cite to only one finding of fact—Finding of Fact No. 22, which provides:
“In terms of the use the character of the use” [sic] the
[a]ccommodation will be “very consistent with what you
would see of a family.” Since the residence on the
Property has seven (7) bedrooms, in all probability only a
large family would reside therein, which may result in the
parking of a large number of vehicles parked on or near
the Property.
(Borough Council Decision at 3 (citation omitted); R.R. at 288a.) Appellants
contend that Finding of Fact No. 22 is not supported by substantial evidence because
the patients are guests, not a family—i.e., “all rooms are locked with key codes, all
rooms have hotel-like safes, all guests must supply their own food and the general
rules require all guests to treat the common areas similar to hotel lobbies.”
(Appellants’ Br. at 19.) Appellants also contend that Finding of Fact No. 22 is
further eroded by Appellants’ unrefuted evidence establishing that the RB District is
“family friendly” and that the average single-family home in the RB District is
inhabited by an average of 2.55 people. (Appellants’ Br. at 20.)
32
Borough Council’s finding that the Accommodation Request will be
consistent with a family and the other uses in the RB District is premised on the
undisputed evidence regarding the number of bedrooms on the Property and the
amount of vehicles that could be parked at the Property if all of those bedrooms are
occupied by the members of the family who are residing at the Property. Mr. Peters,
a member of the ZHB, testified that Headstrong’s proposed use for the Property is
consistent with the character of use in the RB District because any single family that
would reside at the Property would be large and would have a number of vehicles
parked thereon. (R.R. at 139a.) In addition, Appellants, who had the burden of
proving that the accommodation is unreasonable, have not established how the
character of the RB District is altered if the Property’s bedrooms are locked with key
codes and contain hotel-like safes and the Property’s residents are required to supply
their own food. Appellants have also not established that the accommodation will
alter the “family-friendly” nature of the RB District. Appellants’ concerns regarding
the turnover in the Property’s residents are just that—concerns that obviously did
not sway Borough Council in making its decision. Furthermore, whether other
single-family homes in the RB District are inhabited only by an average
of 2.55 people is irrelevant, because, assuming that the Property’s residents meet the
definition of family under Section 1240.05(43) of the Ordinance, there is no limit on
how many individuals can reside at the Property. For these reasons, we conclude
that Borough Council’s decision, specifically Finding of Fact No. 22, is supported
by substantial evidence.
33
IV. CONCLUSION
Accordingly, we affirm Common Pleas’ order.
P. KEVIN BROBSON, Judge
President Judge Leavitt dissents.
Judge Fizzano Cannon concurs in the result only.
34
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony and Deborah Carunchio, :
William and Lisa Feehery, Jim :
Anderson, Mark and Lisa O'Brien, :
Tam Heckel, John and Kay Coldiron, :
and Joanna and Jarrod Barton, :
Appellants :
:
v. : No. 1379 C.D. 2017
:
Swarthmore Borough Council :
and Headstrong Foundation :
ORDER
AND NOW, this 11th day of August, 2020, the order of the Court of Common
Pleas of Delaware County is hereby AFFIRMED.
P. KEVIN BROBSON, Judge