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