Eagle Run Holdings, LLC v. ZHB of the City of Reading

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eagle Run Holdings, LLC, :
Appellant :
:
v. :
:
The Zoning Hearing Board : No. 222 C.D. 2022
of the City of Reading : Argued: June 5, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: July 6, 2023
Eagle Run Holdings, LLC (Eagle Run), appeals from the February 8,
2022, opinion and order of the Court of Common Pleas of Berks County (trial court),
which upheld the Zoning Hearing Board of the City of Reading’s (Board) denial of
Eagle Run’s application to operate a group home for disabled individuals in a
residential district. Upon review, we affirm.
I. Background
On March 24, 2020, Eagle Run submitted a zoning permit application
for a group home to the City of Reading’s Zoning Office concerning property Eagle
Run owned at 1916 Olive Street, which is in the City’s R-1 residential zoning district
and the Heights Conservation District.1 Reproduced Record (R.R.) at 4 & 6.2
Section 802 of the City’s Zoning Ordinance (Ordinance),3 which governs the R-1
district, allows one-family detached dwellings as a permitted-by-right use.
Ordinance § 600-802(B)(1)(b). Group homes4 are not included as either a permitted-
by-right use or a conditional use in the R-1 district. See Ordinance § 600-
802(B)(4)(a) (listing only “student home”5 as a conditional use limited to existing
lawful apartment dwellings). Group homes are allowed as a conditional use in the
1
The parties at times also refer to Section 801 of the City’s Zoning Ordinance (Ordinance),
which is the designation for the R-1A residential district, an area with larger lot sizes. The R-1
and R-1A districts both allow “one-family detached dwellings” as a permitted-by-right use and do
not list “group care homes” as a conditional use. We will refer to Section 802 since there is no
dispute that the property is within the R-1 (rather than R-1A) district.
2
As Eagle Run failed to paginate the reproduced record in accordance with Pennsylvania
Rule of Appellate Procedure 2173, citations to the reproduced record reflect electronic pagination
for ease of reference.
3
Adopted by the City Council of the City of Reading on July 26, 2010 by Ordinance No.
47-2010 (Ch. 27 of the 2001 Code of Ordinances).
4
The Ordinance defines a “group care facility” as follows:
A household facility of no more than nine persons, other than
persons related by blood, marriage, adoption or legal guardianship,
who because of their physical or emotional condition or their social
or interpersonal skills otherwise would limit, inhibit or prevent their
ability to function as useful or productive members of society, are
provided supportive services and supervision through a nonprofit
social service agency or other established entity. This use is also
known as a “group home.” This use shall not include a treatment
center.
Ordinance § 600-2202.
5
The Ordinance defines a “student home” as “[a] living arrangement for at least two
students, up to a maximum of three students . . . and who are unrelated to each other by blood,
marriage or legal adoption. . . . This term shall not include one or more students living in the same
dwelling as their parent.” Ordinance § 600-2202.
2
R-2 and R-3 residential districts, which are more diverse but still allow detached
one-family homes as a permitted-by-right use along with one-family6 semi-detached
and attached dwellings. See Ordinance §§ 600-803(B)(4)(a) & 600-804(B)(3)(b).
The application sought a permit for a group home for two unrelated
disabled residents to live on the property. R.R. at 4. On April 9, 2020, the City’s
Zoning Administrator denied the application, stating that group homes are “not
among the permitted uses in the R-1 district.” Id. at 6-7. Eagle Run appealed to the
Board, asserting that the prohibition on group homes in the R-1 district discriminated
against the disabled and violated the federal Fair Housing Amendments Act of 1988
(Fair Housing Act), 42 U.S.C. §§ 3601-3631.7 R.R. at 14.
6
The Ordinance defines “family” as:
One or more persons related by blood, marriage, adoption or foster
relationship, legal custody, guardianship or written permission of a
person with custody or are the great- grandparent, great-grandchild,
grandparent, grandchild, parent, child, brother, sister, aunt, uncle,
niece, nephew, great uncle, great aunt, great nephew or great niece,
living together as a single housekeeping unit; or a group of not more
than three unrelated persons over the age of 14 years, who are living
together in a single dwelling unit and maintaining a common
household with a single cooking facility.
Ordinance § 600-2202. However, the definition adds as an exception that “[s]hared housing
arrangements, where the individuals are permanent or temporary ‘roommates,’ do not constitute
family arrangements.” Id. As will be addressed below, Eagle Run did not argue to either the
Board or the trial court that its residents should be considered a family, and its argument to this
Court in that regard is therefore waived.
7
There is no dispute here that the trial court, as opposed to the City’s Human Relations
Commission (Commission), had jurisdiction to address Eagle Run’s claims. However, Eagle Run
would not have been able to bring this claim as an affirmative matter through the Commission.
The Commission does have jurisdiction to address allegations of unlawful housing practices
brought against real estate owners, brokers, or any “person.” City Code § 23-507. However, the
Board is neither an owner nor a broker, and as a governmental entity, it does not fit within Chapter
23’s definition of “person”: “Any individual, partnership, corporation, labor organization or other
organization or association including those acting in a fiduciary or representative capacity, whether
3
A video hearing was held on November 18, 2020. Original Record
(O.R.) #2 Ex. C (Transcript). Gabriel Dalfin, Eagle Run’s principal, testified as
follows. Eagle Run is a real estate company that leases properties to CareSense
Living, which operates group homes; Dalfin has an ownership share in CareSense.
Id. at 24-25 & 32. The property has a one-family detached dwelling that has been
used since May 2019 as a group home for two unrelated women with disabilities
who pay rent to CareSense. Id. at 11-14 & 28-30. One is blind and can hear but
does not speak; she uses sign language to communicate with others and has family
members in Reading. Id. at 22. The other has no physical disabilities but needs
assistance to “make good choices” and not “hang out with the wrong people.” Id.
Dalfin stated that according to the individuals’ service plans, help is
needed on a 24/7 basis, but one aide at a time can serve both residents. Transcript
at 23-24. The aides do not live in the home but drive and park there for shifts. Id.
at 13-14. Dalfin had not been to the property since it became a group home but was
unaware of any complaints to the Board about it. Id. at 29 & 34-35. He believed
that the impact on the neighboring community was no greater than if two non-
disabled people resided on the property and that the denial of Eagle Run’s
application discriminated against the disabled residents in violation of the Fair
Housing Act. Id. at 14-16. He did not know until he received the denial letter that
the R-1 district does not allow group homes. Id. at 28.
Robert Wambold, who lives on the same block as the property, testified
that the property’s grass and shrubbery were not maintained, that a lot of different
cars were coming and going from it, and that there were often more than two cars at
appointed by a court or otherwise. The term ‘person,’ as applied to partnerships or other
organizations or associations, includes their members, and as applied to corporations, includes
their officers.” City Code § 23-503.
4
a time blocking the sidewalk so pedestrians with strollers, dogs, or wheelchairs were
forced to detour into the street. Transcript at 39-40. Wambold averred that the group
home was started “under the radar” without any notice to the neighbors and without
first checking the zoning status, which would have shown that group homes are not
allowed in the R-1 district. Id. at 41. James and Carolyn Mann, who live across the
street at 1909 Olive Street, added that their attempts to contact CareSense were
ignored. Id. at 42-44.
Linda Kelleher, president of the College Heights Community Council,
testified that the group home had a disruptive impact on the immediate area.
Transcript at 45-46. She believed Eagle Run “slipped in” the group home without
checking whether it was permitted in the district and “hoped they would not get
caught.” Id. at 46. She noted that if Eagle Run’s application for a group home is
approved, the permission could last beyond the current residents’ tenure and that
future residents could need even more accommodations and cause more disruption
to the area.
On December 9, 2020, the Board issued a unanimous decision
upholding the Zoning Administrator’s denial of Eagle Run’s application. R.R. at
30-33. The Board concluded that the proposed use was not compliant with the
Ordinance, that it would be a detriment to the health, safety, and welfare of the
neighborhood, and that the sole basis for the requested relief was financial in nature.
Id. at 31-33.
Eagle Run appealed to the trial court, which conducted oral argument
and accepted briefing, but did not take any new evidence before affirming in a
February 8, 2022, opinion and order. R.R. at 36-50. The trial court first concluded
that the mere fact that Section 802 does not expressly exclude group homes, which
5
are expressly permitted in other residential districts, did not amount to intentional
disparate treatment of the disabled. Id. at 45. The trial court next concluded that
Section 802 did not disparately impact the disabled, noting that the plaintiff’s burden
of proof under the Fair Housing Act requires some evidence of such impact and
Eagle Run had produced none. Id. at 46. The trial court next held that Eagle Run
failed to present evidence that the Board’s denial of its application amounted to a
failure to reasonably accommodate the disabled. Id. at 47-48. The trial court added
that even if Eagle Run had met its burden, the Board’s decision rested on evidence
that due to the consistently poor condition of the property’s exterior and the parking
violations, both of which created health and safety risks, Eagle Run’s request for
accommodation was unreasonable.8 Id. at 48. Eagle Run thereafter appealed to this
Court.
II. Discussion
On appeal, Eagle Run argues that Section 802 of the Ordinance, which
does not allow group homes as a permitted-by-right use or otherwise in the R-1
district, violates the Fair Housing Act on both facial and as-applied bases.9
A. Fair Housing Act
Section 3604(f)(1) of the Fair Housing Act states that “it shall be
unlawful . . . [t]o discriminate in the sale or rental, or to otherwise make unavailable
These proffered grounds for the Board’s decision are questionable, as they relate to
8
property maintenance and parking issues rather than zoning. However, Eagle Run has not
appealed on that basis.
9
In a land use appeal where the trial court does not take additional evidence, the appellate
scope of review is limited to determining whether the local governing body committed an error of
6
or deny, a dwelling to any buyer or renter because of a handicap of--(A) that buyer
or renter[;] (B) a person residing in or intending to reside in that dwelling after it is
so sold, rented, or made available; or (C) any person associated with that buyer or
renter.” 42 U.S.C. § 3604(f)(1). Moreover, “[f]or purposes of this subsection,
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).
The Fair Housing Act also states that “any law of a State, a political
subdivision, or other such 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; see Evans v. Zoning Hearing Bd. of Borough
of Spring City, 732 A.2d 686, 693 (Pa. Cmwlth. 1999) (holding that municipal
zoning ordinances are subject to the Fair Housing Act). Zoning authorities are not
permitted to leave disabled individuals with no alternative other than to live outside
of a residential area. McKivitz v. Twp. of Stowe, 769 F. Supp. 2d 803, 826 (W.D. Pa.
2010). “It does not follow, however, that the [Fair Housing Act] provides
handicapped individuals with the prerogative to live in a particular home of his or
her choosing, regardless of the applicable zoning regulations.” Id. at 826-27 (stating
that the disabled cannot be excluded from one-family neighborhoods, but this does
not mean that such persons have “carte blanche to determine where and how they
would live regardless of zoning ordinances to the contrary”).
law or an abuse of discretion. EQT Prod. Co. v. Borough of Jefferson Hills, 208 A.3d 1010, 1024-
25 (Pa. 2019). Our review of whether the governing body committed an error of law is conducted
de novo and we are not bound by the legal conclusions of the governing body or the trial court. Id.An abuse of discretion will be found only when the findings of the governing body are not
supported by substantial evidence. Id. Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id.7
B. City of Reading Zoning Ordinance
The R-1 district is characterized in the Ordinance as follows:
A. The Residential Districts are intended to provide
sufficient area in appropriate locations for residential uses
and development in an effort to meet the housing needs of
the City without sacrificing desirable established
residential patterns.
(1) The R-1A, R-1, R-2 and R-3 Residential Districts
allow for varying residential densities. The R-1A and
R-1 Districts preserve and enhance low-density areas
composed of one-family detached dwellings on relatively
large lots. The R-2 Medium Density District provides a
variety of one-family detached, semidetached and attached
dwellings. The R-3 District allows the highest residential
densities and permits multifamily apartments.
Ordinance § 600-702(A).
Section 802 of the Ordinance sets forth the use parameters for the R-1
district:
B. Allowed uses.
(1) Permitted-by-right uses.
(a) Gardens, crop farming and forestry.
(b) One-family detached dwelling.
(c) Public parks, nature preserves and
nonmotorized recreation trails.
....
(3) Special exception uses. In compliance with
§ 600-1202 [“Conditions for special exception uses” as
allowed in various districts].
(a) Bed-and-breakfast inn.
8
(b) Home occupations, major: in compliance
with § 600-1006.
(c) Tower-based [wireless communication
facilities], including poles that are located within 500 feet
of a residential property or within a setback area, subject
to Part 21 of this chapter.
(4) Conditional use. In compliance with § 600-
1203 [“Conditions for conditional uses” as allowed in
various districts].
(a) Student home, which shall only be
allowed in an existing lawful apartment dwelling.
Ordinance § 600-802 (A)(1), (3), (4).10
The Ordinance defines a “group-care facility,” which is synonymous
with “group home,” as follows:
A household facility of no more than nine persons, other
than persons related by blood, marriage, adoption or legal
guardianship, who because of their physical or emotional
condition or their social or interpersonal skills otherwise
would limit, inhibit or prevent their ability to function as
useful or productive members of society, are provided
supportive services and supervision through a nonprofit
social service agency or other established entity. This use
is also known as a “group home.” This use shall not
include a treatment center.
Ordinance § 600-2202.
C. Fair Housing Act Analysis
Plaintiffs may bring three different types of claims against land use
authorities under the Fair Housing Act: (1) intentional discrimination claims, also
called disparate treatment claims; (2) disparate impact claims; and (3) claims that
10
Student homes in the R-1 district are limited to apartment dwellings occupied by students
enrolled in a college, university, or trade school. Ordinance § 600-2202 (“Definitions”).
9
the municipal authority failed to “make reasonable accommodations in rules,
policies, practices, or services, when such accommodations may be necessary to
afford handicapped persons an equal opportunity to use and enjoy a dwelling.”
Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Twp. of Scotch Plains, 284 F.3d
442, 448 n.3 (3d Cir. 2002).
1. Intentional Discrimination/Disparate Treatment
In the context of the Fair Housing Act, “to prevail on a disparate
treatment claim, a plaintiff must demonstrate that some discriminatory purpose was
a motivating factor behind the challenged action.” 431 E. Palisade Ave. Real Est.,
LLC v. City of Englewood, 977 F.3d 277, 284 (3d Cir. 2020) (internal quotation
marks omitted). “The discriminatory purpose need not be malicious or invidious,
nor need it figure solely, primarily, or even predominantly into the motivation behind
the challenged action.” Id.Eagle Run’s statement of errors pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b) and the questions presented in its brief assert
identically that Section 802 of the Ordinance, which governs the R-1 district, violates
the Fair Housing Act’s prohibition on disparate treatment of the disabled. O.R. # 13
& Eagle Run’s Br. at 8. However, Eagle Run’s brief focuses entirely on disparate
impact and reasonable accommodation. Pursuant to Pennsylvania Rule of Appellate
Procedure 2119(a), a party’s failure to develop an issue in the argument section of
its brief constitutes waiver of the issue. In re Condemnation ex rel. Com., Dep’t of
Transp., 76 A.3d 101, 106 (Pa. Cmwlth. 2013). We therefore conclude that Eagle
Run has waived any arguments it may have as to disparate treatment.
10
2. Disparate Impact
Unlike the analysis for disparate treatment, consideration of whether a
zoning provision creates a disparate impact on the disabled does not require evidence
of discriminatory intent. Lapid-Laurel, 284 F.3d at 466. Nor does this analysis
entail consideration of the ordinance text as, by nature, disparate impact presupposes
facially neutral enactments or actions. Id. at 467. In order to succeed, a plaintiff
must first make a prima facie case of disparate impact under the Fair Housing Act.11
The plaintiff must show that the facially neutral provision or action of the locality
had a greater adverse impact on the disabled than on others. Id. at 466-67.
“Typically, a disparate impact is demonstrated by statistics, and a prima
facie case may be established where gross statistical disparities can be shown.”
Oxford Investments, L.P. v. City of Phila., 21 F. Supp. 3d 442, 457 (E.D. Pa. 2014).
In the absence of statistics, the plaintiff must at least demonstrate proof of the alleged
disparate impact in a “plausibly measured way.” Allentown Victory Church v. City
of Allentown, ___ F. Supp. 3d ___, ___ (E.D. Pa. 2022), 2022 WL 4071851, at *8.
Allegations devoid of evidence, such as a pattern of denials of permits for group
homes, will be insufficient to establish a plaintiff’s prima facie case. Id. at ___, 2022
WL 4071851 at **8-9; see also Oxford Investments, 21 F. Supp. 3d at 457(concluding that plaintiff’s “unsupported assertions” were “simply insufficient to
state prima facie claim for disparate impact discrimination”). If the plaintiff
establishes a prima facie case, then the burden shifts to the defendant to show that it
11
Eagle Run argues that the local government entity bears the initial burden of proof to
show that its policy does not discriminate, but case law is clear that the plaintiff must first make
out a prima facie case of disparate impact. Lapid-Laurel, 284 F.3d at 466-67 (italics added).
11
had a legitimate, non-discriminatory reason for the action and that no less
discriminatory alternatives were available. Lapid-Laurel, 284 F.3d at 467.
As noted, Section 802 of the Ordinance, which governs the R-1 district,
allows one-family detached dwellings as a permitted-by-right use. Ordinance § 600-
802(B)(1)(b). Group homes are not included as either a permitted-by-right or a
conditional use in the R-1 district. See Ordinance § 600-802(B)(4)(a) (listing only
“student home” as a conditional use). Group homes are allowed as a conditional use
in the R-2 and R-3 districts, which are more diverse but still allow one-family
dwellings as a permitted-by-right use. See Ordinance §§ 600-803(B)(4)(a) & 600-
804(B)(3)(b).
Eagle Run argues that the Ordinance’s exclusion of group homes from
the R-1 district results in an adverse disparate impact on the group home’s two
disabled residents in violation of the Fair Housing Act. Eagle Run’s Br. at 5-6.
According to Eagle Run, the fact that it was even required to seek out a permit for
use of the property as a group home while other potential residents of the R-1 district
are not required to do so is part of the discriminatory impact. Id. at 9-10. Eagle Run
also posits that the Ordinance is discriminatory because it bars disabled individuals
from living in “the most desirable single-family district in the city.” Id. at 5.
The Board responds that the Ordinance’s limitations on residential uses
in the R-1 district do not discriminate against the disabled because the R-1
designation also omits other kinds of non-family groups, such as roommates,12 that
are expressly permitted in the more diverse R-2 and R-3 districts. Board’s Br. at 12.
12
As noted above, while “a group of not more than three unrelated persons over the age of
14 years, who are living together in a single dwelling unit and maintaining a common household
with a single cooking facility” may constitute a “family,” roommates “do not constitute family
arrangements” in the Ordinance. Ordinance § 600-2202 (definition of “family” and exceptions
thereto).
12
As a further example, nursing homes are allowed as a special exception use in the
R-2 and R-3 districts, but not at all in either the R-1A or R-1 districts. See Ordinance
§§ 600-803(B)(3)(h) & 600-804(B)(4)(j). The Board notes that Eagle Run could
have sought approval of the group home through the variance process but failed to
do so. Id. at 6. The Board adds that Eagle Run failed to present any actual evidence
at the hearing and that the mere assertion that the R-2 and R-3 districts may be less
desirable than the R-1 district is not a basis for a finding of disparate impact. Id. at
13-14.
The Board’s opinion did not address Eagle Run’s Fair Housing Act
allegations, but the trial court concluded that Eagle Run had proffered no evidence
that Section 802 or the Board’s denial of Eagle Run’s group home application on the
basis that it was incompatible with Section 802 created a disparate impact on the
disabled. R.R. at 46. We agree. Eagle Run cited the Fair Housing Act in its appeal
to the Board but presented no evidence (statistical or otherwise) that the R-1 district’s
non-inclusion of group homes created a greater adverse impact on the disabled than
on others also not allowed to reside in the R-1 district, such as nursing home
residents or other groups of individuals who do not constitute a family.
For example, Dalfin did not describe any problems or challenges that
would result if the individuals relocated to the R-2 or R-3 districts where group
homes are allowed as a conditional use. Although one of the residents has family in
Reading, Dalfin did not indicate that they live in the immediate area or within the R-
1 district such that moving the resident to another area zoned for group homes would
adversely impact her. Because the R-2 and R-3 districts allow group homes as a
conditional use, there is no evidence that the residents have nowhere else to live, as
was the case in Dr. Gertrude A. Barber Center, Inc. v. Peters Township, 273 F. Supp.
132d 643, 655-560 (W.D. Pa. 2003), where the court found that exclusion of a proposed
group home for the mentally disabled violated the Fair Housing Act because there
was nowhere else in the township where the individuals could live. Moreover, Eagle
Run presented no evidence to support its assertion that seeking a variance for the
group home would be futile, such as records of other instances where a variance for
a group home was sought and denied.
Eagle Run also cites no authority for its position that the desirability of
the R-1 district alone is sufficient to determine that the Ordinance’s otherwise neutral
zoning rules barring group homes in that district disparately impacts the disabled.
This Court is unaware of any such authority. In Lapid-Laurel, the court rejected the
plaintiffs’ disparate impact claims based on the alleged undesirability of the district
in the township that allowed senior housing. 284 F.3d at 467-68. The court pointed
out that the mere fact that the zoning scheme limited senior housing to one district
did not establish a prima facie case of disparate impact, particularly because the
plaintiffs could seek a low-burden variance in any district and because the plaintiffs
failed to show evidence of a pattern or other conduct of disparate impact. Id.; Cf.
Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 158 n.13 (3d Cir.
2002) (holding that removal of ceremonial demarcation allowing Orthodox Jews to
push and carry during Sabbath may have made that area “less desirable” for them
but did not make housing within it unavailable or more difficult for them so as to
support Fair Housing Act claim); see also McKivitz, 769 F. Supp. 2d at 826-27(declining to find that the Fair Housing Act “provides handicapped individuals with
the prerogative to live in a particular home of his or her choosing, regardless of the
applicable zoning regulations”) (emphasis in original).
14
Ultimately, all Eagle Run has proffered in support of its disparate
impact claim are the kind of unsupported and conclusory allegations that courts have
consistently found insufficient to establish a prima facie case of disparate impact in
violation of the Fair Housing Act. See Lapid-Laurel, 284 F.3d at 467-68; Allentown
Victory Church, ___ F. Supp. 3d at ___, 2022 WL 4071851, at **8-9; Oxford
Investments, 21 F. Supp. 3d at 457. Eagle Run’s as-applied challenge is therefore
meritless.
To the extent Eagle Run presents a facial challenge in this context, we
agree with the Board that in light of the exclusion of other non-family residential
groups from the R-1 district, such as nursing home residents or other non-family
groups of individuals, there is no basis for Eagle Run’s assertion that as a facial
matter, the R-1 classification discriminately impacts the disabled as opposed to non-
disabled persons. See Lapid-Laurel, 284 F.3d at 466-67; see also 431 E. Palisade
Ave. Real Estate, 977 F.3d at 287 (stating that “[t]he mere fact that some general
terms in the ordinance operate to disallow assisted living facilities and other terms
expressly permit assisted living facilities as of right in another district, does not
transform the ordinance into one that discriminates on its face”). The trial court
therefore did not err in concluding that Eagle Run failed to make a prima facie case
in support of its disparate impact claim.13
3. Reasonable Accommodation
In addition to disparate treatment and impact, discrimination in the
context of the Fair Housing Act includes “a refusal to make reasonable
13
Because Eagle Run did not meet its burden to show prima facie evidence of disparate
impact, the burden did not shift to the Board to show a legitimate, non-discriminatory reason for
denying Eagle Run’s permit application and that no less discriminatory alternatives were available
other than denial of the permit application. See Lapid-Laurel, 284 F.3d at 467.
15
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). Cases addressing reasonable
accommodations often include specific requests, such as requests for exclusive
parking spaces, to install a new elevator, or for a waiver of pet policies for comfort
animals. See Gittleman v. Woodhaven Condo. Ass’n, Inc., 972 F. Supp. 894 (D.N.J.
1997) (parking space); Congdon v. Strine, 854 F. Supp. 355 (E.D. Pa. 1994)
(elevator); Kennedy House, Inc. v. Phila. Comm’n on Hum. Rels., 143 A.3d 476 (Pa.
Cmwlth. 2016) (comfort animals). However, reasonable accommodations cases
have also concerned zoning matters such as in Lapid-Laurel, where a developer
sought a variance to build a nursing home in a zoning district that allowed only
single-family houses. 284 F.3d at 447. The ability to live in a residential zone has
been held necessary as a reasonable accommodation to achieve equal opportunity in
housing for the disabled. Id. at 460.
“[T]he 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.
Additionally, evidence that a request for accommodation has been made and refused
is relevant to this inquiry. Congdon, 854 F. Supp. at 363.
The Ordinance provides a process for the disabled to seek “a special
exception allowing modifications to specific requirements of [the Ordinance] that
the applicant proves to the satisfaction of the [Board] are required under applicable
federal law to provide a reasonable accommodation to serve persons who the
applicant proves have ‘disabilities’ as defined in and protected by such laws.”
16
Ordinance § 600-1201(B). Applicants seeking reasonable accommodations “shall
identify the disability which is protected by [the Fair Housing Act and] the extent of
the modification of the provisions of [the Ordinance] necessary for a reasonable
accommodation[.]” Id.; see Carunchio v. Swarthmore Borough Council, 237 A.3d
1183, 1199 (Pa. Cmwlth. 2020) (concerning a group home application for cancer
patients and their caregivers and requesting revision of the ordinance’s definition of
“family” in order to provide the residents “both the comforts of home and a support
network of other cancer patients and their caregivers”).
Eagle Run asserts that the Ordinance’s exclusion of group homes from
the R-1 district violates the “reasonable accommodations” requirement of the Fair
Housing Act. Eagle Run’s Br. at 6-7 & 12. In this regard, Eagle Run’s arguments
are largely identical to its arguments concerning disparate impact: the mere fact that
group home arrangements are not allowed as a permitted-by-right use or a
conditional use in the R-1 district amounts to a failure by the City to reasonably
accommodate Eagle Run’s disabled residents. See id. at 12-13. Eagle Run relies on
Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1103 (3d Cir. 1996), for the
premise that the entire burden is on the defendant to prove that a requested
accommodation is unreasonable. Eagle Run also relies on City of Edmonds v.
Oxford House, 514 U.S. 725 (1995), where the United States Supreme Court found
that preservation of the family character of a residential neighborhood alone was an
insufficient basis to refuse accommodation of a group home for 12 individuals (over
the ordinance’s maximum of 10) in substance abuse recovery.
The Board responds that Eagle Run neither asked for reasonable
accommodations (beyond submitting its permit application) nor gave the Board or
City an opportunity to make such accommodations (other than granting the
17
application outright). Board’s Br. at 14. The Board adds that Eagle Run failed to
meet its burden to present evidence that it was reasonable and necessary for Eagle
Run’s residents to live in the R-1 district. Id. at 14-16.
The Board’s decision did not directly address Eagle Run’s Fair Housing
Act allegations, but the trial court concluded that Eagle Run failed to show necessity
because group homes are allowed as conditional uses in other residential districts
and Eagle Run failed to present evidence other than its assertion that the R-1 district
was “better” than the other residential districts that allow group homes. R.R. at 48.
The trial court added that even if Eagle Run had met its burden to show necessity,
the objectors’ evidence was sufficient for the Board to find that Eagle Run’s request
was unreasonable. Id. We are constrained to agree.
First, the Board is correct that Eagle Run failed to avail itself of the
Ordinance’s process to formally request a special exception for a reasonable
accommodation under the Fair Housing Act. See Ordinance § 600-1201(B). The
application did not cite or refer to the Fair Housing Act, identify the residents’
disabilities, or specify the aspect of the Ordinance that required an accommodation.
See R.R. at 4. However, the Fair Housing Act “does not require that a request be
made in a particular manner or at a particular time”; the request must simply be made
“in a manner that a reasonable person would understand to be a request for an
exception, change, or adjustment to a rule, policy, practice, or service because of a
disability.” Lloyd v. Presby’s Inspired Life, 251 F. Supp. 3d 891, 901 (E.D. Pa.
2017). Therefore, despite its formal deficiencies, Eagle Run’s application for
permission to operate a “group home” in the R-1 district may be construed as a
request for a reasonable accommodation for disabled individuals that was denied
when the Board rejected the application.
18
Next, we reject Eagle Run’s reliance on Hovsons in support of its
argument that the entire burden is with the Board to show that the requested
accommodation (allowing a group home in the R-1 district) is unreasonable. In
Lapid-Laurel, the court acknowledged that Hovsons governs the reasonability aspect
of the inquiry, but concluded that the overall inquiry requires a burden-shifting
approach:
We think that a burden-shifting approach in which the
plaintiff would first have the burden of demonstrating that
the requested accommodation is necessary to create an
equal opportunity, at which point the burden would shift
to the defendant to show that the accommodation is
unreasonable, makes sense from a policy standpoint.
While a plaintiff is in the best position to show what is
necessary to afford its clients (i.e., the handicapped
population that it wishes to serve) an equal opportunity to
use and enjoy housing, a defendant municipality is in the
best position to provide evidence concerning what is
reasonable or unreasonable within the context of its zoning
scheme.
284 F.3d at 457.
Here, Eagle Run failed to meet its initial burden to show that living in
the R-1 district is necessary to afford its disabled residents a fair opportunity to use
and enjoy housing in a residential area. Eagle Run’s tenants are not barred from all
one-family residential districts in the City because group homes are allowed as
conditional uses in both the R-2 and R-3 districts, which both also allow one-family
dwellings as permitted-by-right uses. Living in a particular residential district has
not been found necessary when a locality’s zoning scheme provides comparable
residential opportunities elsewhere. Similar facts were present in McKivitz, where
the court found the plaintiffs had not met their prima facie burden for a reasonable
accommodation:
19
Under Ordinance No. 912, “group residences” are allowed
as a “conditional use” in R–2 and R–3 districts and as a
“permitted use” in RC–2 districts. Single-family
dwellings are permitted in each type of district. The
Plaintiffs have presented no evidence concerning the
availability (or unavailability) of group residences in
Stowe Township, nor have they attempted to establish
that, as a practical matter, no single-family dwellings are
located in R–2, R–3 and RC–2 districts. The Plaintiffs
base their entire case on the unavailability of “group
residences” in a single residential area of Stowe Township
that happens to be zoned as an R–1 district. In order to
shift the burden of proving “unreasonableness” to the
Defendants, the Plaintiffs must establish a nexus between
the proposed accommodations and their necessity for
providing handicapped individuals with an equal
opportunity to live in a residential area of Stowe
Township. It does not suffice for them to show that the
proposed accommodations are needed to enable
handicapped individuals to live in a specific facility
located within a particular residential district. Because
the Plaintiffs have failed to satisfy their initial burden of
showing that “reasonable accommodations” are necessary
to provide handicapped individuals with an “equal
opportunity to use and enjoy a dwelling,” the burden of
demonstrating that the requested accommodations are
“unreasonable” does not shift to the Defendants.
769 F. Supp. 2d at 827 (citations omitted). As such, Eagle Run’s argument that the
R-1 district is more desirable than the R-2 and R-3 districts, without more, did not
establish necessity.
Eagle Run also did not present evidence that using the property as a
group home was necessary for the property’s financial viability or served a particular
therapeutic purpose that could not be accomplished in the R-2 or R-3 district. See
Lapid-Laurel, 284 F.3d at 461. Likewise, Eagle Run’s reliance on City of Edmonds
is misplaced; that case pertained to the reasonableness of the city’s refusal to
accommodate the group home, which is part of the second aspect of the burden-
20
shifting inquiry and was not reached here because Eagle Run did not meet its initial
burden to show necessity. As with its disparate impact allegations, Eagle Run’s
argument on reasonable accommodations is limited to unsupported and conclusory
allegations, lacking proof of necessity, which cannot establish a prima facie case of
discrimination in violation of the Fair Housing Act. See, e.g., Allentown Victory
Church, ___ F. Supp. 3d at ___, 2022 WL 4071851, at *8; Oxford Investments, 21
F. Supp. 3d at 457. The trial court therefore did not err in concluding that Eagle Run
failed to make a prima facie case for its disparate impact claim.14, 15
D. Additional Discrimination Claims
It is well established that “a party has a duty to preserve an issue at
every stage of a proceeding, [and] he or she also must comply with the general rule
to raise an issue at the earliest opportunity.” In Re Petition to Set Aside Upset Tax
Sale, 218 A.3d 995, 998 (Pa. Cmwlth. 2019). Pennsylvania Rule of Appellate
Procedure 302(a) provides: “Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Similarly,
Pennsylvania Rule of Appellate Procedure 1925(b)(4)(ii) requires that issues be
14
Because Eagle Run did not meet its burden to show prima facie evidence that living in
the R-1 district was necessary for its disabled tenants, the burden did not shift to the Board to show
that allowing group homes in the R-1 district is unreasonable. See Lapid-Laurel, 284 F.3d at 457.
15
Eagle Run also cites the federal Department of Housing and Urban Development’s
(HUD’s) 2013 “Implementation of the Fair Housing Act’s Discriminatory Effects Standard”
(“2013 Rule”) for the principle that the Board should bear the entire burden of proof with regard
to Eagle Run’s allegations of disparate treatment, disparate impact, and reasonable
accommodations. Eagle Run’s Br. at 8 (citing 78 F.R. 114460 (2020)). However, the 2013 Rule
expressly approved the burden-shifting framework (used by the federal courts and here) with the
plaintiff required to first establish a prima facie case of discrimination. 78 F.R. 114460(“Executive Summary”). We note also that the most recent HUD Rule, which became effective in
October 2020, just before the Board issued its decision in this case, retained the burden shifting
structure including the plaintiff’s prima facie requirement. See 85 F.R. 60288 (2020)
(“Summary”).
21
raised with “with sufficient detail” so that the trial court will be on notice of the
appellant’s claims. Pa.R.A.P. 1925(b)(4)(ii).
In addition to its discrimination claims based on the Fair Housing Act,
Eagle Run argues in its brief to this Court that the Ordinance violates equal
protection principles by treating the disabled residents of its group home differently
from other residents in the R-1 district. Eagle Run’s Br. at 6-7 & 13. Eagle Run
further asserts that the trial court erred in failing to conclude that the two residents
of its group home constituted a functioning “family unit” such that they should have
been able to live in the R-1 district on a permitted-by-right basis because the Fair
Housing Act bars discrimination based solely on family status. Id. at 14. The trial
court did not address these claims.
In its entirety, Eagle Run’s Rule 1925(b) statement reads as follows:
1. Does [Section 802 of the Ordinance] violate the [Fair
Housing Act], based on the fact that “Group Homes” of
any size or numbers of people are not an allowed use by
right in the R-1 Residential District, nor is it a permitted
accessory use, special exception or condition use
according to the [Ordinance]”?
2. Does [Section 600-802 of the Ordinance] violate the
Department of Housing and Urban Development’s
(HUD’s) Implementation of the Fair Housing Act’s
Disparate Impact or Treatment Standard?
3. Has [Section 802 of the Ordinance] violated the [Fair
Housing Act’s] Reasonable Accommodation Standard?
4. Has the [trial court] committed an abuse of discretion
or an error of law by denying Eagle Run Holdings Zoning
appeal, and ruling that [Section 802 of the Ordinance] is
not discriminatory either on its face or in its application in
this case?
22
O.R. #13. Claims 1-3 clearly set forth Eagle Run’s primary arguments concerning
the application of the Fair Housing Act to this dispute, namely that the Ordinance’s
non-inclusion of group homes in the R-1 district is impermissible. Claim 4 indicates
that Section 802 of the Ordinance is discriminatory both facially and as applied here.
However, nothing in Eagle Run’s statement would have put the trial court on notice
that it was bound to address equal protection principles or whether the Board should
have considered the two residents of Eagle Run’s group home as a “family” for
purposes of the Fair Housing Act. These specific issues, which are distinct from the
points raised in Claims 1-3, could not be discerned from Eagle Run’s statement.
Moreover, we have reviewed Eagle Run’s notice of appeal to the trial court from the
Board’s decision and its brief to the trial court in support of that appeal; these issues
were not raised in those filings either. See O.R. #1 & #5. They are therefore waived.
III. Conclusion
In light of the foregoing discussion, we conclude that Eagle Run failed
to establish that the Ordinance’s prohibition on group homes in the R-1 residential
district violated the disparate impact and reasonable accommodations aspects of the
Fair Housing Act. Additionally, Eagle Run waived its challenges based on the
disparate treatment aspect of the Fair Housing Act, equal protection, and whether
the group home’s tenants constitute a family unit pursuant to the Fair Housing Act.
The trial court’s order denying Eagle Run’s appeal is therefore affirmed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eagle Run Holdings, LLC, :
Appellant :
:
v. :
:
The Zoning Hearing Board : No. 222 C.D. 2022
of the City of Reading :
ORDER
AND NOW, this 6th day of July, 2023, the February 8, 2022, order of
the Court of Common Pleas of Berks County is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge