COMMUNITY SERVICES, INC. v. HEIDELBERG TP.
439 F.Supp.2d 380 (2006)
United States District Court, M.D. Pennsylvania.
July 25, 2006.
83. The letter states that CSG's proposed use may "have been perfectly suited" for a DCU classification, but that CSG failed to seek an exception for that classification's numerical limitation and, in any event, CSG failed to "present specific evidence" of the proposed residents' disabilities. (Doc. 7 at 267.)
84. The letter states that CSG's proposed use "falls within or is similar to" a convalescent home, but that CSG "failed to present evidence or to persuade" the Zoning Board that requiring a special exception for this use was discriminatory. (Doc. 7 at 267.)
85. The letter states that CSG witnesses "refused to testify as to any of the facts underlying" the prospective residents' disabilities, and that "[t]hose who opposed [CSG's zoning] application could not even make independent inquiry because the identity of the [prospective] residents was not revealed." (Doc. 7 at 266.)
86. The letter avers that "[w]ithout knowing the specific disabilities [of the individuals], the Board has no way Of determining whether or not they can otherwise obtain housing on a par with that of those who are not disabled. . . . [and] cannot tell whether [other options] would have been suitable to the needs of [the prospective residents] because [CSG] did not present specific evidence of their disabilities or
the needs that arise as a result of those disabilities." (Doc. 7 at 266-67.) 87. The letter provides that "[i]t may well be that [CSG] find[s] HIPAA to be problematic . . . but [CSG] had the burden of presenting evidence and the Board is entitled to draw negative inferences from [CSG's] failure or inability to present specific evidence" of the disabilities. (Doc. 7 at 266.)
88. The April 25, 2006 letter concludes that the Zoning Board "has DENIED [CSG's] challenge to the determination of the zoning officer that the principal use of the proposed facility is not that of a single family dwelling, and the Board has DNIED [CSG's] request for a variance to permit the proposed use as a reasonable accommodation under the Fair Housing Act." (Doc. 7 at 268.)
89. On May 2, 2006 CSG sent correspondence to the solicitor for the Township Supervisors, setting forth the facts and circumstances surrounding CSG's proposed use of the Township Property, advising the Township Board of its obligations under the Americans with Disabilities Act ("ADA") and the FHA, that the Zoning Board interpreted the Township's Zoning ordinances in a discriminatory manner, that requiring. CSG to disclose the prospective residents' medical records before granting a variance likely violated the ADA, the FHA, and HIPAA, and again requesting that, as a reasonable accommodation, the Township Supervisors and/or Zoning Board interpret the ordinance governing "family" dwellings to include CSG's proposed use, and issue to CSG a use and occupancy certificate. (Doc. 7 at 283-86.)
1. The entity is registered with the Commonwealth as Community Services Group, Inc. (See Doc. 7 at 97.)
2. Defendants lodge objections to the inclusion of certain documents in the administrative record, claiming that they were not before the defendants. These objections are without merit, as the documents in question were either considered by the Zoning Hearing Board or the Township Board of Supervisors, or are matters of public record. Moreover, the exclusion of these documents from the administrative record would not affect the court's ratio decidendi.
3. (See Finding of Fact No. 69.)
4. Defendants belatedly argue that the proposed use does not constitute a "dwelling," averring that the proposed residents are "transients" and CSG's proposed use of a "long-term structured residence" is merely transient housing. This argument is meritless. There is a plethora of evidence of record that the LTSR is intended and designed for the proposed residents to live in and return to over a significant period of time. See Lakeside Resort, 455 F.3d at 156-60; see also 42 U.S.C. § 3602(b) (defining "dwelling").
5. See H.R. REP. No. 100-711, at 24 (1988), as reprinted in 1988 U.S.C.C.A.N. 2173, 2185 ("While state and local government have authority to protect safety and health, and to regulate use of land, that authority has sometimes been used to restrict the ability of individuals with handicaps to live in the communities. This has been accomplished by such means as the enactment or imposition of health, safety, or land-use requirements on congregate living arrangements among non-related persons with disabilities. Since these requirements are not imposed on families and groups of similar size of other unrelated people, these requirements have the effect of discriminating against persons with disabilities. . . . The [FHA] is intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community."); see also H.R. REP. No. 100-711, at 31, as reprinted in 1988 U.S.C.C.A.N. 2173, 2192 ("A number of jurisdictions limit the number of occupants based on a minimum number of square feet in the unit or sleeping areas of the unit. Reasonable limitations by government would be allowed to continue [pursuant to the FHA], as long as they were applied to all occupants, and did not operate to discriminate on the basis of race, color, religion, sex, national origin, handicap or familial status." (emphasis added)).
6. Application of these ordinances is likely to also violate the Equal Protection Clause of the Fourteenth Amendment. See, e.g., City of Cleburne v. Cleburne Living Ctr.,473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). 7. Although defendants contend that plaintiff failed to proffer objective evidence of the disabilities at the zoning hearing, as discussed, supra, federal and state laws prohibit the disclosure of such information—all the more so at a public hearing. See 45 C.F.R. § 164.502; 55 PA. CODE § 5320.26. And, it is evident from the record that defendants, at a minimum, regarded the prospective residents as disabled. See 42 U.S.C. § 3602(h)(3) (defining "handicap" as "being regarded as having" a disability). Finally, although defendants argue that the proposed residents could constitute a "danger" to the community, there is absolutely no evidence that these individuals are a risk to the safety of anyone. Cf. Dadian v. Vill. of Wilmette,269 F.3d 831, 840 (7th Cir.2001) ("[T]he text and legislative history of the FHA support imposing the burden of proof on the public entity that asserts safety as a defense to a disability discrimination action."). 8. Indeed, the zoning ordinances do not even define the term "health care treatment facility." (See Finding of Fact No. 99.)
9. But cf. Acierno v. New Castle County,40 F.3d 645, 653 (3d Cir.1994) (stating that "economic loss does not constitute irreparable harm"); Frank's GMC Truck Ctr., Inc. v. Gen. Motors,847 F.2d 100, 102 n. 3 (3d Cir.1988) (stating that where money damages are available injunctive relief is inappropriate because "the applicant has an adequate remedy at law"); Liveware Publ'g Inc. v. Best Software Inc., 125 Fed.Appx. 428, 433 (3d Cir.2005) (same). 10. This concurrent resolution, adopted in 1985, reaffirms Pennsylvania's policy that "people who are developmentally disabled, mentally retarded, mentally ill, physically disabled, [and] elderly . . . shall enjoy the benefits of community residential surroundings . . . [and][t]hat all municipalities throughout [the] Commonwealth are urged to review their zoning ordinances to assure that they facilitate the achievement of this policy." S. Res. 42, 169th Gen. Assem. (Pa.1985).
11. See, e.g., Congregation of Kol Ami v. Abington Twp.,309 F.3d 120, 135-36 (3d Cir.2002); see also Hovsons, Inc., 89 F.3d at 1106. 12. Given the holding of this opinion, the court will not address the Zoning Board's peculiar position to abstain from, or its last-minute entry into, these proceedings. Similarly, CSG's motion for "default" relief against the Zoning Board will be denied as moot.
13. Fair Housing Amendments Act of 1988, Pub.L. No. 100-430, 102 Stat. 1619.
14. See, e.g., Rehabilitation Act of 1973, 29 U.S.C. §§ 701-7961; Education of All Handicapped Children Act of 1975, Pub.L. 94-142, 89 Stat. 773; Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213.