P. Murray v. Shaler Twp. ZHB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Patrick Murray, Allison Murray, :
and Robert Neely, :
Appellants :
:
v. :
:
Shaler Township Zoning Hearing :
Board, Township of Shaler and : No. 966 C.D. 2021
Scioto Properties SP-16 LLC : Argued: February 7, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 14, 2022
Patrick Murray (Appellant Murray), Allison Murray, and Robert Neely
(collectively, Appellants) appeal from the Allegheny County Common Pleas Court’s
(trial court) August 11, 2021 order affirming the Shaler Township (Township)
Zoning Hearing Board’s (ZHB) December 10, 2020 decision that upheld the
Township’s Zoning Officer Robert C. Vita’s (Zoning Officer) determination that
granted a Certificate of Zoning Compliance (Zoning Certificate) to Scioto Properties
SP-16 LLC (Scioto) for the property located at 444 McElheny Road in the Township
(Property). Appellants present two issues for this Court’s review: (1) whether the
ZHB erred by concluding that the ZHB and Appellants were bound by a Full and
Final Settlement and General Release of All Claims (Settlement Agreement); and
(2) whether the ZHB erred by concluding that the Zoning Officer properly issued
the Zoning Certificate for the proposed use at the Property.1 After review, this Court
reverses.
Background2
Scioto is a national developer of properties for persons with disabilities
and other special needs.3 Scioto purchased the Property in November 2017. The
Property consists of two lots totaling 1.8 acres located in the Township’s Limited
One-Family (R-1) Zoning District. The Property included a four-bedroom, four-
bathroom ranch-style house with a footprint of 2,273 square feet and a total living
area of 3,939 square feet (Dwelling). Scioto purchased the Property with the
intention of leasing it to ReMed Recovery Care Centers LLC (ReMed), for use as a
residence for eight unrelated persons with disabilities resulting from traumatic brain
injuries.4 Appellants reside in McElheny Road properties that abut the Property.
1
Appellants present two issues in their Statement of Questions Involved: (1) whether the
trial court erred by concluding that Appellants and the ZHB were bound by the Settlement
Agreement; and (2) whether the trial court erred by affirming the ZHB’s decision that, although
the Zoning Ordinance of the Township of Shaler defines “family” to include no more than three
unrelated persons, the Zoning Officer correctly determined that the proposed use of the Property
by six unrelated persons with disabilities would be for a single family, and was a reasonable and
necessary accommodation under the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601-
3631. See Appellants’ Br. at 4-5. Appellants challenge the propriety of the trial court’s decision.
Because this Court’s review is limited to the ZHB’s decision, see Friends of Lackawanna v.
Dunmore Borough Zoning Hearing Bd., 186 A.3d 525 (Pa. Cmwlth. 2018), the issues have been
rephrased accordingly.
2
The underlying facts of this case are largely undisputed. On October 1, 2020, the parties
stipulated to the details of the proposed use’s operation (Stipulations). See Reproduced Record
(R.R.) at 315a-319a.
3
Scioto is a limited liability company organized on a for-profit basis, that owns
approximately 1,400 properties in 40 states.
4
ReMed is a for-profit company that provides rehabilitation to adults who have suffered
traumatic brain injuries. It is regulated by the Pennsylvania Department of Human Services and
accredited by the Commission on Accrediting Rehabilitation Facilities. The purpose of residential
rehabilitative treatment is “to recreate family dynamics and retrain the individual[s] to be able to
operate within family systems and small living communities.” R.R. at 98a; see also R.R. at 99a,
107a.
2
Section 225-13.A of the Zoning Ordinance of the Township of Shaler
(Ordinance) specifies that the permitted principal use of properties located in the
Township’s R-1 Zoning District “shall be one-family dwellings.” Shaler Twp., Pa.
Zoning Ordinance (Ord.) § 225-13.A (2014) (Reproduced Record (R.R.) at 147a).
Section 225-218 of the Ordinance defines “family” as:
Either an individual or two or more persons related by
blood or marriage or adoption and, in addition, any
domestic servants or gratuitous guests thereof or a group
of not more than three persons who need not be related,
who are living together in a single dwelling unit and
maintaining a common household. Nothing in this chapter
is intended or shall be interpreted, enforced or
administered in any means or manner inconsistent with or
conflicting with the [f]ederal Fair Housing Amendments
Act of 1988 [(FHAA), 42 U.S.C. §§ 3601-3631].
Ord. § 225-218 (R.R. at 276a). Because the Ordinance permits only up to three
unrelated people to live together in a house in the Township’s R-1 Zoning District
as though they are family, the Ordinance prohibits the proposed use at the Property.5
However, Section 3604(f)(2)of the FHAA provides that it shall be
unlawful
[t]o discriminate against any person in the terms,
conditions, or privileges of sale or rental of a dwelling, or
in the provision of services or facilities in connection with
such dwelling, because of a handicap of--
(A) that person; or
(B) a person residing in or intending to reside in
that dwelling after it is so sold, rented, or made
available; or
5
Group-care facilities consisting of two or more unrelated disabled persons are permitted
in the Township’s Multifamily Dwelling (R-4) Zoning District as a conditional use. See R.R. at
149a-150a, 278a. There are currently 20 group homes in the Township for intellectually
challenged persons. See R.R. at 82a. The record does not reflect in which of the Township’s
Zoning Districts those homes are located.
3
(C) any person associated with that person.
42 U.S.C. § 3604(f)(2). Section 3604(f)(3)(B) of the FHAA specifies that, for
purposes of Section 3606(f) of the FHAA, 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[.]” 42 U.S.C. § 3604(f)(3)(B) (emphasis added).
On March 20, 2018, (and revised April 12, 2018), Scioto and ReMed
jointly filed an application with the ZHB to operate a residential home at the Property
for up to eight unrelated persons who have suffered brain injuries to live together as
a single-family unit with 24-hour assistance from staff (2018 Application). In the
2018 Application, Scioto and ReMed raised a substantive validity challenge to the
Ordinance, pursuant to Section 909.1(a)(1) of the Pennsylvania Municipalities
Planning Code (MPC).6 In the alternative, they asked the ZHB to interpret the
Ordinance’s definition of “family” to permit the proposed use and/or grant a
reasonable accommodation for the proposed use at the Property pursuant to the
FHAA or the Americans with Disabilities Act of 1990 (ADA)7 to institute the
proposed use on the Property. See R.R. at 602a. In the 2018 Application, Scioto
and ReMed proposed to add approximately 2,627 square feet to the Dwelling,
6
Act of July 31, 1968, P.L. 805, as amended, added by Section 87 of the Act of December
21, 1988, P.L. 1329, 53 P.S. § 10909.1(a)(1). Section 909.1(a) of the MPC states, in relevant part:
The zoning hearing board shall have exclusive jurisdiction to hear
and render final adjudications in the following matters:
(1) Substantive challenges to the validity of any land use ordinance,
except those brought before the governing body pursuant to
[S]ection[] 609.1 [of the MPC, added by Section 10 of the Act of
June 1, 1972, P.L. 333, 53 P.S. § 10609.1 (relating to curative
amendments),] and [Section] 916.1(a)(2) [of the MPC, added by
Section 99 of the Act of December 21, 1988, P.L. 1329, 53 P.S. §
10916.1(a)(2) (relating to curative amendments)].
53 P.S. § 10909.1(a).
7
42 U.S.C. §§ 12101-12213.
4
increasing its size to 6,566 square feet, and related Scioto’s intention to include 8
parking spaces.
The ZHB conducted hearings on the 2018 Application on May 10, June
14, and July 18, 2018. At the hearings, ReMed’s Clinical Director of Residential
Programs Regina Lesako (Lesako) testified concerning the proposed use’s operation
if approved, and Scioto employee Bill Lepper explained the proposed physical
alterations to the Property. Appellants opposed the 2018 Application, specifically
objecting because of added occupancy by residents and staff, more vehicle traffic,
and the expanded Dwelling’s footprint. Appellants also presented the testimony of
brain injury expert Scott Tracy, Ph.D. (Dr. Tracy), who described that the proposed
use was inappropriate in the Township’s R-1 Zoning District. The ZHB granted
Appellants’ unopposed request to appear as party protestants. The Township took
no position on the 2018 Application.
On September 13, 2018, the ZHB denied and dismissed the 2018
Application. See R.R. at 601a-614a. The ZHB explained that Scioto failed to
demonstrate how the proposed use complied with the Ordinance’s definition of
“family” and, in the alternative, failed to show that allowing the proposed use at the
Property would be a reasonable accommodation. See R.R. at 613a.
On October 29, 2018, Scioto and ReMed filed a civil action in the
United States (U.S.) District Court for the Western District of Pennsylvania (District
Court) against the Township and the ZHB,8 alleging that, in denying the 2018
Application, the ZHB and the Township violated the FHAA; Section 504 of the
8
Scioto Props. SP-16 LLC v. Twp. of Shaler (W.D. Pa., No. 2:18-cv-01448).
5
Rehabilitation Act of 1973 (Rehabilitation Act);9 Section 202 of the ADA;10, 11 the
equal protection clause of the U.S. Constitution;12 Section 1983 of the Civil Rights
Act of 1871;13 and the equal protection clause of article 1, section 26 of the
9
Section 504 of the Rehabilitation Act declares, in relevant part: “No otherwise qualified
individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving [f]ederal financial assistance . . . . ” 29 U.S.C. § 794.
10
Section 202 of the ADA provides: “[N]o qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42
U.S.C. § 12132.
11
“[B]oth the ADA and the Rehabilitation Act impose upon public
entities an affirmative obligation to make reasonable
accommodations for disabled individuals.” Bennett-Nelson v. La.
Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005). “Because ‘[t]he
relevant portions of the [FHAA], [the] ADA, and . . . the
Rehabilitation Act offer the same guarantee that a covered entity . . .
must provide reasonable accommodations . . . to people with
disabilities,’ ‘analysis of a reasonable accommodation claim under
the three statutes is treated the same.’” Logan v. Matveevskii, 57 F.
Supp. 3d 234, 253 (S.D.N.Y. 2014) (quoting Sinisgallo v. Town of
Islip Hous. Auth., 865 F. Supp. 2d 307, 337 (E.D. N.Y. 2012)) . . . [.]
Oxford House, Inc. v. Browning, 266 F. Supp. 3d 896, 907 (M.D. La. 2017).
12
Section 1 of the Fourteenth Amendment to the U.S. Constitution states, in pertinent part:
No [s]tate shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the [U.S.]; nor shall any
[s]tate deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
U.S. CONST. amend. XIV, § 1.
13
Section 1983 of the U.S. Code specifies, in pertinent part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any [s]tate . . . subjects, or causes to be
subjected, any citizen of the [U.S.] or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper
proceeding for redress[.]
42 U.S.C. § 1983.
6
Pennsylvania Constitution.14 See R.R. at 616a-631a. On January 8, 2019, the
District Court granted Appellants’ motion to intervene in the civil action.
Appellants, the ZHB, and the Township filed answers to the complaint.
Through the District Court’s Alternative Dispute Resolution process, at
mediation, Scioto, ReMed, and the Township entered into the Settlement
Agreement, wherein it was agreed that: (1) Scioto and ReMed would withdraw and
dismiss the civil action; (2) Scioto would withdraw the 2018 Application; (3) Scioto
would submit a new application reducing the number of proposed residents from 8
to 6, and eliminate its request to double the Dwelling size; and (4) the Township
would “interpret and apply its [Ordinance] in a manner consistent with the
disabilities clause[s] of the [FHAA] . . . ; Section 504 of the Rehabilitation Act, . . .
[;] and [] offer a reasonable accommodation to [Scioto and ReMed.]”15 R.R. at 297a;
see also R.R. at 296a-304a. Although the Settlement Agreement identified the ZHB
as a released party, the ZHB did not execute the Settlement Agreement. Appellants
attended the mediation, but they did not join the Settlement Agreement.
On September 9, 2019, Scioto and ReMed filed a motion to dismiss the
civil action (Dismissal Motion). See R.R. at 697a-700a. Scioto and ReMed apprised
the District Court therein that Appellants did not agree to the settlement. See R.R.
at 698a. Scioto and ReMed referenced the Settlement Agreement in the Dismissal
Motion, but did not attach the Settlement Agreement to the Dismissal Motion.
Although the Dismissal Motion informed the District Court that “[the Township]
will issue [Scioto and ReMed] a use permit to occupy and use [the] [P]roperty as a
14
Article 1, section 26 of the Pennsylvania Constitution states: “Neither the
Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of
any civil right, nor discriminate against any person in the exercise of any civil right.” PA. CONST.
art. 1, § 26.
15
Scioto executed the Settlement Agreement on October 16, 2019, ReMed executed it on
October 22, 2019, and the Township Board of Commissioner’s President David Shutter executed
it on November 12, 2019.
7
group home for not more than six (6) unrelated individuals with disabilities, along
with associated staff support[,]” the parties agreed that Appellants would retain their
right to challenge the Township’s grant of the permit. R.R. at 698a.
On November 20, 2019, Appellants filed a response to the Dismissal
Motion, wherein Appellants did not oppose the dismissal but, rather, requested that
the District Court condition dismissal on Scioto and ReMed paying Appellants’
attorney’s fees and costs. See R.R. at 703a-709a, 723a-729a. On February 21, 2020,
the District Court granted the Dismissal Motion and dismissed the civil action with
prejudice, but without conditions. See R.R. at 723a-729a. The District Court added
that Appellants “maintain their right to challenge, by way of appeal pursuant to state
land use law, the agreed-upon use permit when it is issued to [Scioto and ReMed]
by [the Township and the ZHB].” R.R. at 727a.
On July 30, 2020, Scioto filed an application for a zoning certificate to
use the Property as a residence for not more than six persons with disabilities, along
with associated staff, consistent with the terms of the Settlement Agreement (2020
Application).16 The same day, the Zoning Officer issued the Zoning Certificate
permitting occupancy as follows:
R-1 Single Family, to be used as a community[-]based
group home for persons with disabilities[,] with an
occupancy of no more than 6 residents at one time[,] along
with associated staff consistent with the terms of the
[Settlement Agreement] last executed on November 12,
2019[,] between the Township [] and Scioto.
R.R. at 305a. Appellants appealed to the ZHB, which conducted a hearing on
October 8, 2020.17 At the hearing, the Zoning Officer testified that he granted the
16
The 2020 Application does not appear to be a part of the record before this Court. Scioto
obtained the Township Planning Commission’s approval of its site plan. See R.R. at 129a, 131a.
17
In addition to hearing testimony, the ZHB admitted into the record, inter alia: the Zoning
Certificate, the Stipulations, the ZHB hearing transcripts and findings of fact and conclusions of
law relating to the 2018 Application, documents from the civil action, the Settlement Agreement,
8
Zoning Certificate pursuant to the Settlement Agreement and the FHAA “at the
instruction of the Township Solicitor Harlan Stone [(Township Solicitor)].” R.R. at
69a; see also R.R. at 66a, 70a, 73a.
On December 10, 2020, the ZHB voted to deny the appeal and uphold
the Zoning Officer’s issuance of the Zoning Certificate, “because the reasonable
accommodation granted by the Township [] in the [Settlement Agreement] . . . is
binding upon the [ZHB] and the proposed use is compliant with the [Ordinance] due
to the changed circumstances and the lack of an addition to the existing residential
building.” R.R. at 845a. The ZHB issued its findings of fact and conclusions of law
on January 6, 2021, wherein it added that the Zoning Officer’s grant of the Zoning
Certificate was a reasonable accommodation to ensure the Township’s compliance
with federal law. See R.R. at 847a-854a.
Appellants appealed from the ZHB’s decision to the trial court, which
heard argument and, on August 11, 2021, affirmed the ZHB’s decision. See R.R. at
931a-938a. Appellants appealed to this Court.18
the Planning Commission’s transcript, and the approved site plan. See R.R. at 58a-59a, 65a, 92a-
93a, 130a-131a, 848a-849a.
After the ZHB hearing, the parties submitted proposed findings of fact and conclusions of
law. Also, at the ZHB’s request, Appellants, Scioto, and the Township submitted supplemental
letter briefs addressing whether the ZHB was bound by the Settlement Agreement. In its letter
brief, the Township argued that the Settlement Agreement bound the ZHB.
18
Appellate review of a decision of a zoning hearing board, where the
trial court does not take any additional evidence, is limited to
determining whether the [zoning hearing] board abused its
discretion or committed an error of law. Twp. of Exeter v. Zoning
Hearing Bd. of Exeter Twp., . . . 962 A.2d 653 ([Pa.] 2009). An
abuse of discretion occurs where the [zoning hearing] board’s
findings are not supported by substantial evidence. Id. Substantial
evidence is such relevant evidence that a reasonable person would
accept as adequate to support the conclusion reached. Id.Friends of Lackawanna, 186 A.3d at 531 n.6.
9
Discussion
1. Settlement Agreement
Appellants argue that neither they nor the ZHB were bound by the
Settlement Agreement, and the District Court’s dismissal of the civil action did not
bind Appellants or the ZHB to the Settlement Agreement. Specifically, Appellants
contend that the ZHB did not execute the Settlement Agreement, the Settlement
Agreement contained no promises that the ZHB would do or refrain from doing
anything, the ZHB was not mentioned in the Consideration section of the Settlement
Agreement, and the Settlement Agreement did not create any obligations for the
ZHB.
The Township, the ZHB, and Scioto respond that the Settlement
Agreement was valid and enforceable and bound the Township and the ZHB.19 They
specifically claim that Pennsylvania law authorizes municipalities to settle land
disputes with developers, as long as the municipality does not amend the Ordinance
or permit an unlawful act. The Township, the ZHB, and Scioto assert that Appellants
do not make either argument but, rather, claim that since neither they nor the ZHB
signed the Settlement Agreement, they are not bound by it.
Initially, this Court acknowledges that Pennsylvania “law favors
settlements.” Miravich v. Twp. of Exeter, Berks Cnty., 54 A.3d 106, 112 (Pa.
Cmwlth. 2012); see also Summit Twp. Taxpayers Ass’n v. Summit Twp. Bd. of
Supervisors, 411 A.2d 1263 (Pa. Cmwlth. 1980). In particular, “the courts of this
Commonwealth have recognized that settlement agreements are a permissible tool
for resolving land use disputes.” Miravich, 54 A.3d at 112.
19
Scioto adopts and incorporates the Township’s and the ZHB’s arguments that the
Settlement Agreement is valid and enforceable. See Scioto Br. at 21.
10
A settlement agreement is “in essence a contract binding
the parties thereto.” Roe v. P[a.] Game Comm[’]n, 147
A.3d 1244, 1250 (Pa. Cmwlth. 2016) (quoting
Commonwealth v. U.S. Steel Corp[.], . . . 325 A.2d 324,
328 ([Pa. Cmwlth.] 1974)). Courts construe settlement
agreements “according to the traditional principles of
contract construction.” Commonwealth ex rel. Fisher v.
Phillip Morris, Inc., 736 A.2d 693, 697 (Pa. Cmwlth.
1999).
Waggle v. Woodland Hills Ass’n, Inc., 213 A.3d 397, 405 (Pa. Cmwlth. 2019).
However, “[t]o be enforceable, a settlement agreement must possess all
the elements of a valid contract -- offer, acceptance, and consideration or a meeting
of the minds.” Baribault v. Zoning Hearing Bd. of Haverford Twp., 236 A.3d 112,
118 (Pa. Cmwlth. 2020). “A ‘general principle of contract law [is] that an agreement
cannot legally bind persons who are not parties [thereto].’” Mandler v.
Commonwealth, 247 A.3d 104, 114 (Pa. Cmwlth.), aff’d, 263 A.3d 551 (Pa. 2021)
(quoting Chambers Dev. Co., Inc. v. Commonwealth ex rel. Allegheny Cnty. Health
Dep’t, 474 A.2d 728, 731 (Pa. Cmwlth. 1984)).
Here, Appellants refused to join the Settlement Agreement and the
District Court’s order dismissing the civil action expressly “maintain[ed] their right
to challenge, by way of appeal pursuant to state land use law, the agreed-upon use
permit when it is issued to [Scioto and ReMed] by [the Township and the ZHB].”
R.R. at 727a. Accordingly, Appellants were not bound by the Settlement
Agreement.
Regarding the ZHB’s status relative to the Settlement Agreement,
the Pennsylvania Supreme Court has made clear that “the
authority of a zoning [hearing] board to act arises
exclusively from the ordinance and the enabling statute
and the language of both demarcates [its] jurisdiction . . . .
Norate Corp. v. Zoning Bd. of Adjustment of Upper
Moreland Twp., . . . 207 A.2d 890, 893-94 ([Pa.]1965).
11
[A] zoning [hearing] board is not a legislative
body, and it lacks authority to modify or amend the
terms of a zoning ordinance. ‘[Z]oning [hearing]
boards . . . must not impose their concept of what
the zoning ordinance should be, but rather their
function is only to enforce the zoning ordinance in
accordance with the applicable law.’ Thus, the
[zoning hearing] [b]oard is required to apply the
terms of the [z]oning [o]rdinance as written rather
than deviating from those terms based on an
unexpressed policy.
Greth Dev. Grp., Inc. v. Zoning Hearing Bd. of Lower
Heidelberg Twp., 918 A.2d 181, 187 (Pa. Cmwlth. 2007)
(citation omitted . . . ) (quoting Ludwig v. Zoning Hearing
Bd. of Earl Twp., 658 A.2d 836, 838 (Pa. Cmwlth. 1995));
see also MarkWest [Liberty Midstream & Res., LLC v.
Cecil Twp. Zoning Hearing Bd., 102 A.3d 549 (Pa.
Cmwlth. 2014)]. “A zoning hearing board does not enjoy
broad, inchoate powers to advance its members’ vision of
what constitutes the public welfare or even the public
welfare as defined in a variety of environmental protection
statutes, be they state or federal. Other governmental
agencies bear that enforcement authority.” HHI [Trucking
& Supply, Inc. v. Borough Council of Borough of
Oakmont], 990 A.2d [152,] 160 [(Pa. Cmwlth. 2010)] . . . .
MarkWest Liberty Midstream & Res., LLC v. Cecil Twp. Zoning Hearing Bd., 184
A.3d 1048, 1060 (Pa. Cmwlth. 2018) (emphasis omitted). Therefore, “a zoning
hearing board . . . is a municipal agency [that] has no authority to act on behalf of
the municipality itself.” Marshall v. Charlestown Twp. Bd. of Supervisors, 169 A.3d
162, 166 (Pa. Cmwlth. 2017). Rather, its “only role is to act as an adjudicatory body
. . . .” Id.; see also Section 909.1(a) of the MPC, 53 P.S. § 10909.1(a) (describing
zoning hearing board jurisdiction).20
20
Section 909.1(a)(3) of the MPC, declares that zoning hearing boards are authorized to
hear and render final adjudications in “[a]ppeals from the determination of the zoning officer,
including . . . the granting . . . of any permit[.]” 53 P.S. § 10909.1(a)(3).
12
Here, the Township is a first-class township governed by its Board of
Commissioners (Board) pursuant to The First Class Township Code (Code).21
Section 1801(a) of the Code authorizes the Board to “make contracts for lawful
purposes . . . ” on the Township’s behalf. 53 P.S. § 56801(a). The contract in this
case - the Settlement Agreement - named the Township and the ZHB as released
parties, and Board president David Shutter signed the document on behalf of both
the Township and the ZHB.22 See R.R. at 296a, 304a. Accordingly, regardless of
whether the ZHB approved and/or signed the Settlement Agreement, to the extent it
was valid and legally enforceable, the ZHB was bound by it.
Notwithstanding that settlement agreements are permissible for
resolving land disputes, and can even “permit[] a departure from existing zoning
ordinance regulations[,]” Miravich, 54 A.3d at 112; see also Summit Twp. Taxpayers
Ass’n, the Pennsylvania Supreme Court has warned:
The proposition has long been recognized in this
Commonwealth that individuals cannot, by contract,
abridge police powers which protect the general welfare
and public interest. As stated in Leiper v. Baltimore &
Philadelphia Railroad Co., . . . 105 A. 551, 553 ([Pa.]
1918)[:] “Where the rights of individuals under a contract
which would otherwise be perfectly valid are in conflict
with the ‘general well-being of the [s]tate,’ the rights of
the individuals must give way to the general welfare.” See
also, Mun[.] Auth[.] of Blythe v. P[a.] Pub[.] Util[.]
Comm[’]n, . . . 185 A.2d 628 ([Pa. Super.] 1962). The
21
Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. §§ 55101-58501. “The [Township]
is governed by the [Board] as established under [the Code].” www.shaler.org/27/Government (last
visited Mar. 11, 2022). “The Board plays the central role in Township government by serving as
the main legislative body of the Township.” www.shaler.org/150/Board-of-Commissioners (last
visited Mar. 11, 2022); see also Section 225-199 of the Ordinance, Ord. § 225-199 (describing the
Board as the Township’s legislative body) (R.R. at 236a-237a); Sections 225-216 and 225-217 of
the Ordinance, Ord. §§ 225-216, 225-217 (describing that the Board enforces the Ordinance) (R.R.
at 262a-263a).
22
Although not part of the record, the Township’s counsel represented at this Court’s
February 2022 oral argument that the Board approved the Settlement Agreement at a public
meeting.
13
police power of municipalities cannot be subjected to
agreements which restrict or condition zoning district
classifications as to particular properties. We are in accord
with the position adopted by the Supreme Court of New
Jersey, in Houston Petroleum Co. v. Automotive Products
Credit Assoc[’]n, Inc., . . . 87 A.2d 319, 322 ([N.J.] 1952),
wherein the [c]ourt stated: “Contracts thus have no place
in a zoning plan and a contract between a municipality
and a property owner should not enter into the
enactment or enforcement of zoning regulations.” In
Houston, covenants and restrictions agreed to by a
landowner as a means of effecting a zoning change were
held invalid on grounds that the purported contract thereby
made, was, with regard to the municipality, ultra vires and
contrary to public policy. In so holding, the Court relied
upon its decision in V.F. Zahodiakin Engineering Corp. v.
Zoning Board of Adjustment, . . . 86 A.2d 127, 131 ([N.J.]
1952), setting forth the following principle, with which we
agree, governing exercise of municipal zoning power:
Zoning is an exercise of the police power to serve
the common good and general welfare. It is
elementary that the legislative function may not
be surrendered or curtailed by bargain or its
exercise controlled by the considerations which
enter into the law of contracts. The use
restriction must [] have general application. The
power may not be exerted to serve private interests
merely, nor may the principle be subverted to that
end.
Carlino v. Whitpain Invs., 453 A.2d 1385, 1388 (Pa. 1982) (emphasis added).
Relative to the 2020 Application, the ZHB admitted the Settlement
Agreement into the record. See R.R. at 848a. Although the Settlement Agreement
reflects the parties’ intention for the Township “to interpret and apply its [Ordinance]
in a manner consistent with the disabilities clause[s] of the [FHAA] . . . [and] Section
504 of the Rehabilitation Act . . . ,” R.R. at 297a, and that Appellants could challenge
the ZHB’s decision, see R.R. at 698a, 727a, the Township therein committed “to
issue a zoning permit to allow a single[-]family dwelling located at [the Property]
14
to be used as a community-based group home for occupancy by no more than six (6)
residents at one time, along with associated support staff.” R.R. at 297a (emphasis
added).
However, in entering into the Settlement Agreement, the Township
disregarded the Zoning Officer’s duty to grant zoning certificates in accordance with
the Ordinance’s clear language. Section 225-175.A of the Ordinance mandates:
The Zoning Officer shall . . . [a]dminister [the Ordinance]
in accordance with its literal terms and shall not have the
power to permit . . . any use or change of use which does
not conform with [the Ordinance]. . . . The Zoning Officer
shall administer and enforce the provisions of [the
Ordinance] in accordance with the provisions of [the
Ordinance] and the [MPC].
Ord. § 225-175.A (R.R. at 226a) (emphasis added); see In re Smith, 231 A.3d 59(Pa. Cmwlth. 2020); Kohl v. New Sewickley Twp. Zoning Hearing Bd., 108 A.3d 961(Pa. Cmwlth. 2015) (a zoning officer’s ordinance interpretation is entitled to
deference). In particular, Section 225-175.B of the Ordinance declares that “[t]he
Zoning Officer shall . . . [i]ssue all certificates of zoning compliance and use
registration certificates . . . .” Ord. § 225-175.B (R.R. at 226a) (emphasis added).
Section 225-170.A of the Ordinance directs that a zoning certificate represents “that
the proposed use of the building, structure[,] or land conforms to the requirements
of [the Ordinance].” Ord. § 225-170.A (R.R. at 223a). To that end, “[t]he Zoning
Officer shall . . . [c]onduct inspections of buildings, structures[,] and uses of land to
determine compliance with the terms of [the Ordinance] and make and maintain
records thereof.” Section 225-175.C of the Ordinance, Ord. § 225-175.C (R.R. at
226a) (emphasis added).
Section 225-170.C of the Ordinance further provides, in relevant part:
No zoning certificate and occupancy permit shall be issued
until all erection, construction[,] or alteration has been
15
completed and the use established, inspected[,] and
approved by the Zoning Officer. No such certificate shall
be issued for a proposed change in use until such change
has been established and has been inspected and approved
by the Zoning Officer.
Ord. § 225-170.C (R.R. at 224a). Importantly, Section 225-218 of the Ordinance
specifies that the term “shall” “[i]ndicates that an action is required or prohibited.”
Ord. § 225-118 (R.R. at 289a).
The Zoning Officer testified at the October 8, 2020 ZHB hearing that
he has been the Township’s Zoning Officer for 21 years, and he is familiar with his
duties under the Ordinance, particularly his responsibility to inspect properties and
ensure that a proposed use conforms with the Ordinance, and to issue notices for
violations. See R.R. at 64a-65a, 67a-70a, 77a-79a. The Zoning Officer
acknowledged that only single-family residences are permitted in the Township’s R-
1 Zoning District, and group care facilities like the one Scioto proposed are not a
permitted use by right or by conditional use therein. See R.R. at 75a-77a. The
Zoning Officer further admitted that Scioto’s proposed use does not comply with the
Ordinance. See R.R. at 71a-73a. Nevertheless, the Zoning Officer issued the Zoning
Certificate to Scioto on July 30, 2020, “at the instruction of [the] Township
Solicitor[,]” R.R. at 69a, pursuant to the Settlement Agreement, as “[i]t falls under
the auspices of the [FHAA].” R.R. at 66a; see also R.R. at 65a, 70a. By doing so,
the Zoning Officer, at the Township Solicitor’s direction, acted contrary to the
Zoning Ordinance’s clear language.
The Ordinance in this case authorizes the Board to amend the
Ordinance if certain procedural steps are taken. Sections 225-186.E and 225-199 of
the Ordinance declare that land use ordinance amendments are legislative acts that
fall under the Board’s (not the ZHB’s) jurisdiction and, to be valid, they must be
proceeded by Planning Commission approval, public notice, public hearing, and
16
public vote. See Ord. §§ 225-186.E, 225-199 - 225-203 (R.R. at 233a, 236a-238a);
see also Section 609 of the MPC, 53 P.S. § 10609 (relating to zoning ordinance
amendment enactments).
Section 225-180.A.(4) of the Ordinance also allows the ZHB to grant
use variances when physical circumstances or conditions peculiar to a particular
property present an unnecessary hardship; there is no possibility that the property
can be developed in strict conformity with the Ordinance and a variance will enable
reasonable use thereof; the property owner has not created the circumstances; a
variance will not alter the neighborhood’s essential character, substantially impair
the use of adjacent properties, or be a detriment to the public welfare; and it
represents the minimum variance necessary to afford relief. See Ord. § 225-
180.A.(4) (R.R. at 182a); see also Section 910.2 of the MPC, 53 P.S. § 10910.2
(relating to zoning hearing board variance approval).23
Based on the record before this Court, the Township treated the
Settlement Agreement as a foregone conclusion.24 The Township and the ZHB take
the position that the Zoning Officer and the ZHB had no choice but to grant the 2020
Application simply because Section 225-218 of the Ordinance references the FHAA.
However, the statement in Section 225-218 of the Ordinance that “[n]othing in
[Ordinance Chapter 225 - Zoning] is intended or shall be interpreted, enforced or
administered in any means or manner inconsistent with or conflicting with the
[FHAA,]” Ord. § 225-218 (R.R. at 276a), articulates that the ZHB will not
discriminate against disabled persons in violation of the FHAA. That language does
23
Section 910.2 of the MPC was added by Section 89 of the Act of December 21, 1988,
P.L. 1329. A zoning hearing board’s failure to make findings regarding each of an ordinance’s
variance criteria is reversible error. See Coyle v. City of Lebanon Zoning Hearing Bd., 135 A.3d
240 (Pa. Cmwlth. 2016).
24
Even if the ZHB was authorized to adopt the Settlement Agreement, it did not expressly
do so.
17
not require the ZHB to grant every zoning application filed by or for disabled persons
regardless of whether doing so comports with the Ordinance. Congress did not
intend the FHAA as “affirmative action by which handicapped persons would have
a greater opportunity than nonhandicapped persons. . . . Congress only prescribed
an equal opportunity.” Bryant Woods Inn, Inc. v. Howard Cnty., 124 F.3d 597, 604
(4th Cir. 1997) (citation omitted).25
Nevertheless, the Township impermissibly bypassed the Board’s
legislative power and granted an Ordinance amendment, and/or disregarded the
ZHB’s variance process, by allowing Scioto to have six unrelated persons reside at
the Property when other property owners are limited to three. Scioto, the Township,
and the ZHB have not put forth any legal authority that allows the Settlement
Agreement to circumvent the Ordinance or the MPC.
Historically, land use dispute settlements that represent significant
ordinance changes (to zoning districts, in particular,) are typically subject to court
approval.
25
[W]hile decisions of the [U.S.] Supreme Court interpreting federal
statutes are binding on this Court, the same is not true of decisions
by the lower federal courts. See Krentz v. Consol. Rail Corp., . . .
910 A.2d 20, 33 n.15 ([Pa.] 2006) (“The decisions of the [U.S.]
Supreme Court interpreting federal statutes are binding on this
Court.”); Hall v. Pa. Bd. of Prob. & Parole, . . . 851 A.2d 859 . . .
([Pa.] 2004). This does not mean we are compelled to ignore on-
point Third Circuit [court] decisions or, for that matter, decisions of
any federal court of appeals, interpreting a federal statute. To the
contrary, such decisions in factually similar cases with persuasive
legal analysis may inform our disposition of the matter before us. In
re Stevenson, . . . 40 A.3d 1212, 1221 ([Pa.] 2012) (“The
Commonwealth Court was not incorrect in observing that the
pronouncements of the lower federal courts have only persuasive,
not binding, effect on the courts of this Commonwealth.”).
Cole v. Pa. Dep’t of Env’t Prot., 257 A.3d 805, 813 (Pa. Cmwlth. 2021). This Court relies on the
federal cases cited herein to interpret the FHAA and its impact accordingly.
18
This Court has long held that court-approved settlements
of zoning issues are lawful.[26] See Miravich . . . ; Yaracs
v. Summit Acad[.], 845 A.2d 203, 209 n.6 (Pa. Cmwlth.
2004); Boeing Co[.] v. Zoning Hearing B[d.], 822 A.2d
153, 161 (Pa. Cmwlth. 2003); Summit T[wp.] Taxpayers
Ass[’]n . . . ; Monroeville Borough v. Al Monzo Constr[.]
Co., . . . 289 A.2d 496 ([Pa. Cmwlth.] 1972).
Baribault, 236 A.3d at 122 n.12. This Court has explained that court-approved
settlements are “distinct from zoning hearing board variances; even though a judicial
settlement may result in a departure from the ordained zoning pattern, that kind of
departure falls within the court’s jurisdiction, not the [zoning hearing] board’s
jurisdiction.” Summit Twp. Taxpayers Ass’n, 411 A.2d at 1266; see also Monroeville
Borough.
Scioto, ReMed, and the Township executed the Settlement Agreement,
and asked the District Court to discontinue the civil action. The District Court
referenced the Settlement Agreement in its February 21, 2020 memorandum and
order, see R.R. at 724a, but did not review the Settlement Agreement, incorporate it,
or expressly approve it. In fact, the District Court expressly recognized Appellants’
right to challenge it.
Because the Settlement Agreement memorialized the Township’s
concession to grant the Zoning Certificate apparently without regard for the
Township’s R-1 Zoning District restrictions and the Ordinance’s other
specifications, including the Zoning Officer’s review and inspection, and/or the
Ordinance’s amendment and variance requirements, the Township via the
Settlement Agreement bypassed or deviated from the Ordinance without court
26
“The courts have jurisdiction over the municipality and landowner and therefore may
approve settlement agreements.” Miravich, 54 A.3d at 112.
19
approval. Under such circumstances, this Court is constrained to conclude that the
Settlement Agreement was not valid and legally unenforceable.
2. Zoning Certificate
Appellants also argue that the Zoning Officer erred by issuing the
Zoning Certificate for the proposed use at the Property. Specifically, Appellants
contend that the Ordinance does not expressly permit the proposed use at the
Property, the proposed use is not a reasonable accommodation required by federal
law, and federal law does not otherwise require the Township to permit the proposed
use.
The Township and the ZHB respond that, even if the Settlement
Agreement was not valid and enforceable, the 2020 Application stood on its merits
and Appellants failed to prove that the requested accommodation was not
reasonable. Scioto also argues that the record and applicable law supported the
ZHB’s conclusion that the Zoning Officer properly issued the Zoning Certificate for
the proposed use at the Property.
Despite that an invalid Settlement Agreement was the impetus for the
ZHB’s December 10, 2020 decision, if the ZHB’s decision approving the 2020
Application met all of the necessary requirements, it could nevertheless stand on its
merits without reliance on the Settlement Agreement.
Preliminarily,
[l]and-use restrictions designate “districts in which only
compatible uses are allowed and incompatible uses are
excluded.” D. Mandelker, Land Use Law § 4.16, pp. 113-
114 (3d ed. 1993) (hereinafter Mandelker). These
restrictions typically categorize uses as single-family
residential, multiple-family residential, commercial, or
industrial. See, e.g., 1 E. Ziegler, Jr., Rathkopf’s The Law
of Zoning and Planning § 8.01, pp. 8-2 to 8-3 (4th ed.
20
1995); Mandelker § 1.03, p. 4; 1 E. Yokley, Zoning Law
and Practice § 7-2, p. 252 (4th ed.1978).
Land use restrictions aim to prevent problems caused by
the “pig in the parlor instead of the barnyard.” Vill[.] of
Euclid v. Ambler Realty Co., 272 U.S. 365, 388 . . . (1926).
In particular, reserving land for single-family residences
preserves the character of neighborhoods, securing “zones
where family values, youth values, and the blessings of
quiet seclusion and clean air make the area a sanctuary for
people.” Vill[.] of Belle Terre v. Boraas, 416 U.S. 1, 9 . . .
(1974); see also Moore v. E[.] Cleveland, 431 U.S. 494,
521 . . . (1977) (Burger, C.J., dissenting) (purpose of East
Cleveland’s single-family zoning ordinance “is the
traditional one of preserving certain areas as family
residential communities”). To limit land use to single-
family residences, a municipality must define the term
“family”; thus family composition rules are an essential
component of single-family residential use restrictions.
City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732-33 (1995).
In the instant matter, Section 225-218 of the Ordinance defines
“family,” in relevant part, as “[e]ither an individual or two or more persons related
by blood or marriage or adoption . . . or a group of not more than three person[s]
who need not be related, who are living together in a single dwelling unit and
maintaining a common household[,]” consistent with the FHAA. Ord. § 225-218
(R.R. at 276a).
Section 3604(f)(2) of the FHAA, inter alia, makes it unlawful to
discriminate in the sale or rental of a dwelling because of an intended resident’s
handicap.27 It is well settled that
27
“Handicap” is defined in Section 3602(h) of the FHAA as “a physical or mental
impairment which substantially limits one or more of such person’s major life activities, [] a record
of having such an impairment, or [] being regarded as having such an impairment[.]” 42 U.S.C. §
3602(h). Section 100.201(a)(2) of the Code of Federal Regulations further defines “handicap” to
include physical and mental impairment, including “[a]ny mental or psychological disorder, such
as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning
disabilities.” 24 C.F.R. § 100.201(a)(2). The parties do not dispute that “[b]rain-injured persons,
such as the residents and would-be residents of the [Property], unquestionably qualify as
21
“[t]he purpose of the [FHAA] [is] to prohibit
discrimination in the national housing market for
handicapped individuals,” Groome Res. Ltd. v. Par. of
Jefferson, 234 F.3d 192, 200-01 (5th Cir. 2000) (footnote
omitted), thereby bringing handicapped individuals within
the [FHAA’s] “broad and inclusive compass” to eliminate
housing discrimination in the U[.]S[.], City of
Edmonds . . . , 514 U.S. [at] 731 . . . . Similarly, the ADA
- as well as the Rehabilitation Act, which is “interpreted in
pari materia” with the ADA - “is a broad mandate of
comprehensive character and sweeping purpose intended
to eliminate discrimination against disabled individuals . .
. and to integrate them into the economic and social
mainstream of American life.” Frame v. City of Arlington,
657 F.3d 215, 223 (5th Cir. 2011) (quoting PGA Tour, Inc.
v. Martin, 532 U.S. 661, 675 . . . (2001)) (internal
quotation marks omitted).
Oxford House, Inc. v. Browning, 266 F. Supp. 3d 896, 907 (M.D. La. 2017).
Accordingly, “the language of the [FHAA] is ‘broad and inclusive’ and must be
given a ‘generous construction.’ Trafficante v. Metro. Life Ins. Co., 409 U.S. 205,
209, 212 . . . (1972); see also City of Edmonds . . . .” Samaritan Inns, Inc. v. D.C.,
114 F.3d 1227, 1234 (D.C. Cir. 1997).
“Section 3604(f)(3)(B) [of the FHAA] prohibits the enforcement of
zoning ordinances and local housing policies in a manner that denies people with
disabilities access to housing on par with that of those who are not disabled[.]”28
handicapped persons under the [FHAA].” ReMed Recovery Care Ctrs. v. Twp. of Willistown,
Chester Cnty., Pa., 36 F. Supp. 2d 676, 683 (E.D. Pa. 1999); see also R.R. at 973a.
28
Congress has not yet evinced an intent to occupy the field of
municipal zoning, but it has evinced its intent that the FHAA
preempt[s] state laws to the extent that any state laws conflict with
the FHAA. Section 3615 of the [FHAA] provides . . . :
Nothing in this subchapter shall be construed to invalidate
or limit any law of a [s]tate or political subdivision of a
[s]tate, or of any other jurisdiction in which this subchapter
shall be effective, that grants, guarantees, or protects the
same rights as are granted by this subchapter; but any law
of a [s]tate, a political subdivision, or other such
22
ReMed Recovery Care Ctrs. v. Twp. of Willistown, Chester Cnty., Pa., 36 F. Supp.
2d 676, 683 (E.D. Pa. 1999). In particular, zoning ordinances that define who makes
up a family and that limit the number of unrelated persons who may occupy a house
in a single-family zoning district are subject to the FHAA’s anti-discrimination
provisions. See City of Edmonds; see also ReMed Recovery Care Ctrs.
“There are three ways to show discrimination under the [FHAA]: (1)
intentional discrimination[;] (2) discriminatory impact[;] and (3) refusal to make a
reasonable accommodation.” State ex rel. Bruskewitz v. City of Madison, 635
N.W.2d 797, 804 (Wis. 2001). The instant appeal is from the ZHB’s decision
granting Scioto’s accommodation request.
“Section 3604(f)(3)(B) [of the FHAA] . . . places upon a municipality
an ‘affirmative duty’ to make reasonable accommodations.” ReMed Recovery Care
Ctrs., 36 F. Supp. 2d at 683 (quoting Hovsons, Inc. v. Twp. of Brick, 89 F.3d 1096,
1104 (3d Cir. 1996)). Specifically, “[u]nder [the FHAA], municipalities are required
to make ‘reasonable accommodations in rules, policies, practices, or services when
such accommodations may be necessary to afford such person equal opportunity to
jurisdiction that purports to require or permit any action
that would be a discriminatory housing practice under this
subchapter shall to that extent be invalid.
42 U.S.C. § 3615.
Oconomowoc Residential Programs, Inc. v. City of Greenfield, 23 F. Supp. 2d 941, 952 (E.D. Wis.
1998). Federal courts have concluded that “the FHAA, explicitly . . . , and the ADA, implicitly,
express Congress’ intent that the Acts protecting the disabled preempt any conflicting laws[.]” Id.Accordingly, “[b]oth the FHAA and the ADA apply to zoning regulations, practices, or decisions
that subject persons with handicaps or disabilities to discrimination based on their handicap or
disability.” State ex rel. Bruskewitz v. City of Madison, 635 N.W. 2d 797, 803 (Wis. 2001).
Importantly, Section 3604(f)(9) of the FHAA declares: “Nothing in this subsection requires
that a dwelling be made available to an individual whose tenancy would constitute a direct threat
to the health or safety of other individuals or whose tenancy would result in substantial physical
damage to the property of others.” 42 U.S.C. § 3604(f)(9). However, “[t]here is not a scintilla of
evidence that disabled people present a public health or safety threat to other residents of a
community.” Oconomowoc Residential Programs, 23 F. Supp. 2d at 954.
23
use and enjoy a dwelling.’ 42 U.S.C. § 3604(f)(3)(B).” Judy B. v. Borough of Tioga,
889 F. Supp. 792, 799 (M.D. Pa. 1995). Thus,
the plain language of the [FHAA] requires [zoning hearing
boards and the courts29] to focus on . . . whether the
requested accommodation is “(1) reasonable and (2)
necessary to (3) afford handicapped persons an equal
opportunity to use and enjoy housing.” Bryant Woods Inn,
124 F.3d at 603.
Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Twp. of Scotch Plains, 284 F.3d
442, 457 (3d Cir. 2002); see also Kennedy House, Inc. v. Phila. Comm’n on Hum.
Rels., 143 A.3d 476 (Pa. Cmwlth. 2016).
The Fourth Circuit Court of Appeals has provided the most
comprehensive analysis of the three accommodation factors, as follows:
In determining whether the [“]reasonableness[”]
requirement has been met, a court may consider as factors
the extent to which the accommodation would undermine
the legitimate purposes and effects of existing zoning
regulations and the benefits that the accommodation
would provide to the handicapped. It may also consider
whether alternatives exist to accomplish the benefits more
efficiently. And in measuring the effects of an
accommodation, the court may look not only to its
functional and administrative aspects, but also to its costs.
“Reasonable accommodations” do not require
accommodations which impose “undue financial and
administrative burdens,” [Se. Cmty. Coll. v.] Davis, 442
U.S. [397,] 412 . . . [(1979)] or “changes, adjustments, or
modifications to existing programs that would be
substantial, or that would constitute fundamental
alterations in the nature of the program,” Alexander v.
Choate, 469 U.S. 287, 301 n.20 . . . (1985) (internal
quotations omitted). Thus, for example, even though a
prohibition of pets in apartments is common, facially
neutral, and indeed reasonable, the FHA[A] requires a
29
“FHAA . . . plaintiffs have the burden of seeking an accommodation before seeking relief
in a judicial forum.” Oconomowoc Residential Programs, 23 F. Supp. 2d at 955. Requesting a
zoning exception under the Ordinance meets this requirement. See id.24
relaxation of it to accommodate a hearing dog for a deaf
person because such an accommodation does not unduly
burden or fundamentally alter the nature of the apartment
complex. See Bronk v. Ineichen, 54 F.3d 425, 429 (7th
Cir. 1995).
The “necessary” element - the FHA[A] provision
mandating reasonable accommodations which are
necessary to afford an equal opportunity - requires the
demonstration of a direct linkage between the proposed
accommodation and the “equal opportunity” to be
provided to the handicapped person. This requirement has
attributes of a causation requirement. And if the proposed
accommodation provides no direct amelioration of a
disability’s effect, it cannot be said to be “necessary.” See
Bronk, 54 F.3d at 429.
And finally, the “equal opportunity” requirement
mandates not only the level of benefit that must be sought
by a reasonable accommodation but also provides a
limitation on what is required. The FHA[A] does not
require accommodations that increase a benefit to a
handicapped person above that provided to a
nonhandicapped person with respect to matters
unrelated to the handicap. As the Court in Davis noted,
the requirement of even-handed treatment of
handicapped persons does not include affirmative
action by which handicapped persons would have a
greater opportunity than nonhandicapped persons.
Davis, 442 U.S. at 410-11 . . . [.] Congress only prescribed
an equal opportunity. See 42 U.S.C. § 3604(f)(3)(B).
Bryant Woods Inn, 124 F.3d at 604 (emphasis added).
In Kennedy House, this Court agreed:
Federal courts have interpreted the necessary requirement
of the FHA[A] as “meaning that, without the
accommodation, the [complainant] will be denied an equal
opportunity to obtain the housing of her choice.” Wis[.]
Cmty. Servs. [v. City of Milwaukee], 465 F.3d [737,] 749
[(7th Cir. 2006)]; see also Smith & Lee Assoc[s]., Inc. v.
City of Taylor, Mich., 102 F.3d 781, 795 (6th Cir. 1996)
(holding that complainants “must show that, but for the
accommodation, they likely will be denied an equal
25
opportunity to enjoy the housing of their choice”). In other
words, in order to satisfy the necessary element of the
FHA[A], a complainant must demonstrate “a direct
linkage between the proposed accommodation and the
‘equal opportunity’ to be provided. . . . ” Bryant Woods
Inn, 124 F.3d at 604. “[I]f the proposed accommodation
provides no direct amelioration of a disability’s effect, it
cannot be said to be ‘necessary.’” Id.Kennedy House, 143 A.3d at 486 (emphasis omitted).
The Third Circuit Court of Appeals has further expounded:
The [FHAA] applies “when [] accommodations may be
necessary,” but “may” does not change our analysis. 42
U.S.C. § 3604(f)(3)(B). . . . In this statute, “may” signals
not a low probability of necessity, but rather the
conditional mood. The condition, when met, makes the
accommodation necessary, as in the phrase “as the case
may be.” “[W]hen such accommodations may be
necessary” in [Section] 3604(f)(3)(B) [of the FHAA] is
another way of saying “whenever they are necessary” or
“as far as they are necessary.”
In short, the [FHAA’s] necessity element requires that
an accommodation be essential, not just preferable.
....
Here, the [FHAA] tells us what to look for: an
“accommodation[] . . . [that] may be necessary to afford
[the disabled] person equal opportunity to use and enjoy a
dwelling.” 42 U.S.C. § 3604(f)(3)(B). The text pegs the
necessity to the goal of providing the particular tenant with
equal housing opportunity. “[T]he object of the [FHAA’s]
necessity requirement is a level playing field in housing
for the disabled.” Cinnamon Hills Youth Crisis Ctr. v. St.
George City, 685 F.3d 917, 923 (10th Cir. 2012).
26
Vorchheimer v. Philadelphian Owners Ass’n, 903 F.3d 100, 107 (3d Cir. 2018)
(emphasis added). The Vorchheimer Court added that it is proper to consider
reasonable alternatives when assessing an accommodation’s necessity.30, 31 See id.The U.S. District Court for the Western District of Pennsylvania
recognized:
In case after case, [lower federal] courts have concluded
that the FHA[A] has been violated where municipalities
have attempted to prevent or restrict persons with
disabilities from living in the single family-zoned homes
of their choice, even when the number of residents exceeds
the number of unrelated people permitted to live together
under the applicable zoning ordinances.
Dr. Gertrude A. Barber Ctr., Inc. v. Peters Twp., 273 F. Supp. 2d 643, 651 (W.D.
Pa. 2003). Clearly, however, “[t]he reasonable accommodation inquiry is highly
fact-specific, requiring a case-by-case determination.” Hovsons, Inc., 89 F.3d at
1104 (quoting United States v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413,
30
For example,
[g]iving the paraplegic a first-floor apartment is one way to give him
access and thus equal opportunity to use his apartment. But an
elevator would work too. That alternative would give him access to
every apartment, so a first-floor apartment would no longer be
necessary. The landlord has to offer at least one of the
accommodations, but not both. If she does offer one of them, she
has not “refus[ed] to make reasonable accommodations . . . [that]
may be necessary to afford [the tenant] equal [housing]
opportunity.” 42 U.S.C. § 3604(f)(3)(B) (emphasis added). In that
vein, food is necessary to survive. But if soup and salad are on offer,
a sandwich is not necessary. Gauging necessity, then, requires
considering whether another alternative on offer satisfies the goal of
equal housing opportunity for that tenant.
Vorchheimer, 903 F.3d at 108.
31
The parties’ reliance on the Lapid-Laurel Court’s statement that one seeking an
accommodation must show that it was necessary either for the facility’s financial viability or would
serve a therapeutic purpose is misplaced here. The Lapid-Laurel Court limited such conclusion to
cases in which the size of a building and/or expansion are at issue, which was the case for the 2018
Application, but not the 2020 Application.
27
1418 (9th Cir. 1994); see also Oconomowoc Residential Programs v. City of
Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002) (“Whether a requested
accommodation is reasonable . . . is a highly fact-specific inquiry and requires
balancing the needs of the parties.”); Wis. Cmty. Servs.
Finally, this Court has ruled that accommodation requests
under the FHAA are analyzed using the burden-shifting
framework developed by the Third Circuit in Lapid-
Laurel: “[T]he [applicant] 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 [complainant] to show that the requested
accommodation is unreasonable.” [Id.] at 457.
Carunchio v. Swarthmore Borough Council, 237 A.3d 1183, 1197 (Pa. Cmwlth.
2020). Accordingly, in this matter, Scioto had the burden of proving that the
accommodation was necessary to afford the residents an equal opportunity and, if
Scioto satisfied that burden, Appellants had to prove that the accommodation was
not reasonable.
With this background in mind, this Court examines whether the
Township erred by granting Scioto an accommodation under the FHAA and issuing
the Zoning Certificate for the proposed use at the Property.
Relative to the 2020 Application, the parties stipulated that the
proposed use at the Property will be a medically supported living facility for up to
six brain-injured adult residents who have experienced a breakdown in their family
and/or other support systems, who need daily assistance, and who cannot return to a
traditional family setting. See R.R. at 317a. “Due to their disabilities, without the
assistance of staff [] and other resources provided by the medical support living
program, the residents would not be able to live together at the Property.” R.R. at
318a. The residents will be supported by 2 to 3 staff working 8:00 a.m. to 4:00 p.m.,
28
and 4:00 p.m. to 12:00 a.m. day shifts, and 1 to 2 staff working 12:00 a.m. to 8:00
a.m. night shifts, that overlap approximately 20 minutes at shift changes. See id.ReMed anticipates there will be two minivans kept at the Property to transport
residents to activities and appointments, and families will visit the residents during
visiting hours (i.e., weekdays from 1:00 p.m. to 3:00 p.m., and weekends from 12:00
p.m. to 4:00 p.m.). See id. The parties “agree that the six residents [will] maintain[]
a common household and a single-dwelling unit.” R.R. at 973a.
The ZHB also heard additional testimony. The Zoning Officer testified
that the proposed use’s description is more like a group care facility than a single-
family residence. See R.R. at 74a-75a. The Zoning Officer was not aware of any
legal requirement or other reason why persons with brain injuries would need to live
in groups of six or more, and he had no financial information about the operation of
the proposed use. See R.R. at 75a-76a.
Dr. Tracy testified that “the whole purpose and idea of residential
treatment is to recreate family dynamics and retrain the individual to be able to
operate within family systems and small living communities.” R.R. at 98a, 107a.
Dr. Tracy explained that theorists suggest that the ideal number of residents in these
residential facilities should be close to what a typical family structure would look
like,32 which is generally agreed upon as being three or four. See R.R. at 98a-99a,
103a, 106a. Dr. Tracy explained that two residents would be too few, and five or
six residents plus staff would be too many, because those numbers do not represent
a typical family dynamic. See R.R. at 100a-101a, 103a, 106a. Dr. Tracy opined that
having more than three or four residents would reduce the program’s power
32
Dr. Tracy did not know the Township’s family demographic data. See R.R. at 108a.
However, this Court has declared that “whether other single-family homes in the [municipality]
are inhabited only by an average of [a number of] people is irrelevant, because, [if] the [p]roperty’s
residents meet the definition of family under . . . the [o]rdinance, there is no limit on how many
individuals can reside at the [p]roperty.” Carunchio, 237 A.3d at 1203.
29
“[b]ecause family dynamics, interpersonal dynamics, group dynamics, all those
kinds of things that feed the therapy process are diminished.” R.R. at 101a; see also
R.R. at 100a, 110a-111a. Dr. Tracy added that the severity of the residents’
conditions also has “a lot to do with how many folks you’re going to have in the
facility.” R.R. at 101a. Dr. Tracy acknowledged that five or six residents with “very
low severity” may be manageable in a residential setting and might, in some
situations, be better than two or three. R.R. at 102a; see also R.R. at 107a, 109a-
110a. Dr. Tracy admitted that there is not a therapeutic need for a residential facility
to exceed three or four residents.33 See R.R. at 102a.
Appellant Murray testified that the 2020 Application did not alleviate
his prior concerns regarding the affect additional traffic at the Property with
residents, staff, and visitors may have on the surrounding area, particularly when the
Property’s driveway is narrow and is located on a hill near a bend, and the shift
changes would occur when the school buses are operating. See R.R. at 113a-115a,
121a-124a, 127a. Appellant Murray was not aware of the Township or anyone
having conducted a traffic study of the area. See R.R. at 125a. Appellant Murray
also expressed that approving the accommodation would change the makeup of the
33
Notably, relative to the 2018 Application, even Lesako did not testify that eight residents
are necessary. Rather, Lesako indicated that “[t]ypically, there are eight residents in these
facilities.” R.R. at 340a; see also R.R. at 351a. She described that the model is intended to create
a community environment. See R.R. at 340a. Notably, when asked why eight patients is necessary,
Lesako replied:
[W]hat we found is eight patients really works best for people with
traumatic brain injuries. . . . Ours is really for the clinical need for
that feeling of community within community . . . . So [] you have
people -- just like in your own family, people that get along better
than don’t get along. You know, they develop friend groups. And
having eight individuals give more opportunity for that than having
four. If you have four, two and two can turn against each other.
R.R. at 387a. The ZHB found Dr. Tracy’s testimony more credible than Lesako’s. See R.R. at
614a.
30
community, since the proposed use will operate as more of a facility than a family
residence. See R.R. at 114a, 116a, 127a.
Based upon all the evidence, the ZHB found that the Zoning Officer’s
decision to issue the Zoning Certificate “was guided both by his understanding of
the Settlement Agreement . . . and his opinion that the [2020 A]pplication falls under
the auspices of the [FHAA], which is incorporated into the [Ordinance] . . . . ” ZHB
Dec. at 4 (R.R. at 850a). In addition, the ZHB made a finding that Dr. Tracy
“conceded that the optimal . . . number of residents may fluctuate depending on the
severity of the residents[’] injuries, and that six residents might be optimal . . . .” Id.
The ZHB further found that, although the 2020 Application alleviated some of
Appellant Murray’s prior expansion concerns, he still had concerns about the
number of vehicles that would travel to and from the Property. See id. The ZHB
finally found that “the proposed use is compliant with the [Ordinance] due to the
changed circumstances and the lack of an addition to the existing [Dwelling] on the
Property.” ZHB Dec. at 5 (R.R. at 851a).
The ZHB concluded that, “[p]ursuant to the FHAA, discrimination
includes the refusal to make reasonable accommodations in rules, policies, practices,
or services, when such accommodations may be necessary to afford such person [an]
equal opportunity to use and enjoy a dwelling. 42 U.S.C.[] § 3604(f)(3)(B).” ZHB
Dec. at 6-7 (R.R. at 852a-853a). In addition, the ZHB determined:
10. Under the FHAA, it is the defendant’s burden to show
that the requested accommodation is not reasonable.
Lapid-Laurel . . . .
11. To establish that an accommodation proposed to
satisfy the [FHAA] is not reasonable, one must establish
that the proposed accommodation would: (1) impose
undue financial and administrative burden; (2) impose
undue hardship on the [Township]; or (3) would require a
fundamental alteration in the nature of [the Township’s]
zoning program. Re[M]ed Recovery Care Ctrs. . . .
31
12. Appellants did not establish that the proposed
accommodation would impose undue financial or
administrative burden, impose undue hardship on the
[Township], or would require a fundamental alteration in
the nature of the Township’s zoning program.
13. Appellants have presented expert testimony through
Dr. Tracy that, depending on the severity of the injuries, it
could be medically necessary for Scioto to have six
residents reside at the Property.
14. The Zoning Officer’s determination was reasonable,
necessary, and designed to ensure the Township’s
compliance with federal law.
15. The Zoning Officer’s decision to approve the [2020
A]pplication (which reduced the number of permitted
occupants from eight to six and did not include an
enlargement of the existing residential [D]welling or the
parking area on the Property), was a reasonable and
necessary accommodation by the Township.
16. . . . [T]his decision shall not be interpreted as a blanket
authorization for four or more unrelated individuals to
reside in a [single]-[f]amily [d]welling in all
circumstances.
ZHB Dec. at 7 (R.R. at 853a).
The ZHB clearly understood that, “[p]ursuant to the FHAA,
discrimination includes a refusal to make reasonable accommodations in rules,
policies, practices, or services, when such accommodations may be necessary to
afford such person [an] equal opportunity to use and enjoy a dwelling[,]” ZHB Dec.
at 7 (R.R. at 853a) (emphasis added), and ultimately concluded that the Zoning
Officer’s issuance of the Zoning Certificate was reasonable and necessary. See id.
However, the ZHB’s analysis focused only on reasonableness. Because Scioto
presented no evidence regarding whether the accommodation was necessary, the
ZHB could not and did not make any finding that the accommodation was necessary
32
to afford the proposed residents an equal opportunity.34 Dr. Tracy’s statement that
“it could be medically necessary for Scioto to have six residents reside at the
Property,” id. (emphasis added), was hardly “such relevant evidence that a
reasonable person would accept as adequate to support the conclusion reached.”35
Friends of Lackawanna v. Dunmore Borough Zoning Hearing Bd., 186 A.3d 525,
531 n.6 (Pa. Cmwlth. 2018). Moreover, “[w]here substantial evidence does not
support the [zoning hearing] board’s findings, the [zoning hearing] board abused its
discretion and reversal is warranted.” Hafner v. Zoning Hearing Bd. of Allen Twp.,
974 A.2d 1204, 1209 n.1 (Pa. Cmwlth. 2009).
Because Scioto did not satisfy its initial burden of showing “that the
requested accommodation is necessary to afford handicapped persons an equal
opportunity to use and enjoy a dwelling,” the burden never shifted to Appellants to
demonstrate that the accommodation was not reasonable. Carunchio, 237 A.3d at
1197 (quoting Lapid-Laurel, 284 F.3d at 457). Accordingly, the ZHB erred by
concluding that the Zoning Officer properly issued the Zoning Certificate for the
proposed use at the Property.
34
Appellants’ stipulation that “[d]ue to their disability, without the assistance of staff
personnel and other resources provided by the medical supported living program, the residents
would not be able to live together at the Property[,]” R.R. at 318a, did not alone satisfy Scioto’s
burden to prove necessity. “[This C]ourt will not extend the language [of a stipulation] by
implication or enlarge the meaning of terms beyond what is expressed.” Gravel Hill Enters., Inc.
v. Lower Mount Bethel Twp. Zoning Hearing Bd., 172 A.3d 754, 760 (Pa. Cmwlth. 2017) (quoting
Cobbs v. Allied Chem. Corp., 661 A.2d 1375, 1377 (Pa. Super. 1995) (emphasis added)).
35
Notably, the ZHB made findings on Scioto’s evidence in its September 2018 decision
(reviewing the 2018 Application), which was admitted into the record for the 2020 Application
proceeding, and expressly incorporated into the December 2020 decision. See ZHB Dec. at 3 (R.R.
at 849a); see also R.R. at 610a-614a. However, since the ZHB’s September 2018 decision declared
that Scioto failed to demonstrate that the proposed use complied with the Ordinance’s definition
of “family,” and failed to meet its burden of proving that the requested accommodation was
necessary to afford eight residents an equal opportunity to use and enjoy a dwelling in the R-1
Zoning District, the ZHB’s September 2018 decision does not plug the gaps left here, particularly
where the ZHB found Dr. Tracy’s testimony more credible than Lesako’s testimony.
33
Conclusion
Based on the foregoing, the trial court’s order is reversed.
_________________________________
ANNE E. COVEY, Judge
34
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Patrick Murray, Allison Murray, :
and Robert Neely, :
Appellants :
:
v. :
:
Shaler Township Zoning Hearing :
Board, Township of Shaler and : No. 966 C.D. 2021
Scioto Properties SP-16 LLC :
ORDER
AND NOW, this 14th day of March, 2022, the Allegheny County
Common Pleas Court’s August 11, 2021 order is reversed.
_________________________________
ANNE E. COVEY, Judge