Opinion
No. 325 C.D. 2012
11-28-2012
TWL Realty, LLC and Keystone Correctional Services, Inc., Appellants v. The Board of Supervisors of West Hanover Township Pennsylvania
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
TWL Realty, LLC, and Keystone Correctional Services, Inc. (together, Appellants) appeal from the February 2, 2012 order of the Court of Common Pleas of Dauphin County (trial court), which affirmed the decision of the Board of Supervisors (Board) of West Hanover Township (Township) upholding the validity of section 195-103(T)(4) of the Township's zoning ordinance (Ordinance) and rejecting Appellants' curative amendment.
Appellant TWL Realty, LLC, is the owner of a 3.8-acre parcel of land located at 7201 Allentown Boulevard in West Hanover Township. The property is located in a Commercial Highway (CH) zoning district. The property contains a 44,000 square foot building in which Appellant Keystone Correctional Services, Inc., operates a privately owned community work-release facility under a contract with the Commonwealth's Department of Corrections (Department). In accordance with standards established by the American Correctional Association (ACA), the Department has approved the facility to house up to 256 residents. However, section 195-103(T)(4) of the Ordinance restricts occupancy of any structure used as a work-release facility in the CH zoning district to 150 residents.
On November 23, 2010, Appellants requested a text amendment to the Ordinance to increase the maximum occupancy limit of any such facility to 250 residents, but the Township denied the request. On June 17, 2011, Appellants filed a challenge to the substantive validity of the Ordinance and submitted a curative amendment striking section 195-103(T)(4) in its entirety. Appellants alleged that this Ordinance provision is invalid because: (1) local regulation of work-release facilities is preempted by Pennsylvania statutes and regulations; (2) the resident limitation is exclusionary in that it might limit the ability of a nonviolent criminal to serve his work-release as a resident of a Township facility; (3) fixing the maximum number of residents at 150 is arbitrary and irrational; and (4) fixing the maximum number of residents at 150 prevents the reasonable use of the property.
The Board conducted a hearing on August 1, 2011, during which Appellants and the Township submitted numerous exhibits. Terry Lee Davis, owner/president and Chief Executive Officer of Keystone Correctional Services, Inc., and a member of TWL Realty, LLC, testified for Appellants, and Robert T. Leonard, zoning administrator, testified on behalf of the Township.
Davis testified as to the manner in which the work-release facility is operated, the safety record of the facility, and the level of community service performed by residents of the facility. Davis explained that the facility must meet the standards established by the ACA for residential assignment in order to maintain its contract with the Department. Davis stated that the facility only accepts nonviolent offenders from central Pennsylvania and from out of state. Davis noted that he has complete discretion over who will be accepted into the facility and the maximum number of residents to be housed there. Davis also noted that neither the ACA nor the Department sets forth a limitation on the maximum capacity for a work-release facility and that the present facility has the capacity to house 256 residents.
Davis acknowledged, however, that the ACA and the Department require consideration of the local zoning regulations for the property where a work-release facility will be located. Davis further acknowledged that the Department's Bureau of Community Corrections, which conducts audits/inspections of community corrections facilities, requires the facility to comply with all applicable zoning ordinances. Finally, Davis noted that staff at the facility has the authority to restrain residents under limited circumstances, to prevent bodily injury or structural damage, but not to prevent them from leaving.
Leonard testified that he had been the Township's zoning administrator for approximately eight years. Leonard discussed the factors taken into consideration in developing the criteria for a work-release facility within the CH zoning district, including the size of the Township, the scale of use in light of that size, similar uses in the community, fire and police services, available parking, the rural character of the community, other permitted uses within the CH zoning district, and the Township's comprehensive plan. Leonard stated that he also reviewed model ordinances and ordinances from other municipalities for relevant provisions to include within the Ordinance. Leonard noted that the Township had a volunteer fire department and that police protection was provided by the Pennsylvania State Police. Leonard acknowledged that there were no other work-release facilities within the Township but said that the resident limitation would apply equally to any work-release facility proposed in the Township.
By decision dated September 12, 2011, the Board denied Appellants' challenge to the substantive validity of section 195-103(T)(4) of the Ordinance, concluding that this section is not preempted by state statutes or regulations, is reasonable, is not unlawfully exclusionary, and does not unreasonably restrict the use of property in the CH zoning district. The Board explained that the resident limit does not contradict the authority of the Pennsylvania Board of Probation and Parole in deciding whom to parole or otherwise interfere with or obstruct the purposes and objectives of the Pennsylvania Sentencing Code, 42 Pa. C.S. §§9701-9799.41, or the Probation and Parole Code, 61 Pa. C.S. §§101-7123.
Rather, the Board determined that Appellant Keystone Correctional Services, Inc., is the only entity that is affected by the resident limit, in a purely economic sense. The Board stressed that the testimony and exhibits it received reflect that compliance with local zoning ordinances is a prerequisite for a work-release facility and concluded that such compliance would not be necessary if the local zoning ordinances were preempted.
The Board also concluded that the Ordinance's resident limitation is rational, in conformity with the objectives of the Ordinance, and directly related to the health, safety, and welfare of the Township and its residents. The Board noted that Appellants relied on an excerpt of testimony by Leonard at a hearing regarding Appellants' request for a text amendment wherein Leonard stated that the 150 resident limitation was "an arbitrary number based upon the largest assemblage that we have in the township currently, which would be one of the larger hotels, assume [sic] it was filled seven days a week, 365." (R.R. at 91a-92a.) The Board cited the bulk of Leonard's testimony describing the reasons underlying this limitation as support for its conclusion that Ordinance section 195-103(T)(4) is not arbitrary or irrational. The Board further rejected Appellants' claim that section 195-103(T)(4) was exclusionary, in the nature of selective admission, by prohibiting the placement of offenders who would otherwise qualify for such placement within the facility.
Moreover, the Board indicated that section 195-103(T)(4) does not preclude the work-release use in its entirety nor does it dictate who is admitted to the facility. Rather, it merely limits the number of residents in any one facility. Finally, the Board noted that Appellants chose to use the property as a work-release facility and that the relevant provisions of the Ordinance were in effect well before Appellants acquired and renovated the property for this use.
Appellants thereafter filed a land use appeal with the trial court reiterating their allegations that section 195-103(T)(4) of the Ordinance is preempted by state law, is arbitrary and irrational, and is exclusionary. By opinion and order dated February 2, 2012, the trial court affirmed the Board's decision. In rendering its decision, the trial court relied on the record established by the Board and did not take additional evidence. The trial court concluded that there is no conflict between section 195-103(T)(4) and the Pennsylvania Sentencing Code or Probation and Parole Code. Rather, the trial court determined that the Ordinance facilitates, rather than obstructs, the criminal justice system's goals of rehabilitation, reintegration, and diversion by allowing a work-release facility to operate within the Township. Additionally, because there are no state-established occupancy limits for such facilities, the trial court concluded that Ordinance section 195-103(T)(4) was not subject to conflict preemption.
The trial court also stated that the 150-person resident limit "clearly has a substantial relationship to the public's health, safety and welfare," noting that the limitation was based upon the Township's limited fire and police resources. (Trial court op. at 5.) Like the Board, the trial court indicated that Leonard's testimony regarding the justifications for this limitation outweighed his single statement in a prior proceeding that the 150 resident limitation was arbitrary. Further, the trial court rejected arguments of disparate treatment between work-release facilities and detention centers, for which the Ordinance has established a 500-person resident limit, citing the increased security measures at the latter. Finally, the trial court concluded that the 150-person resident limit is not designed to exclude a particular class, that it applies to any such facility that desires to open in the Township, and that it is premised upon legitimate concerns for the safety of all Township residents.
On appeal to this Court, Appellants first argue that the trial court erred or abused its discretion in concluding that section 195-103(T)(4) of the Ordinance is not preempted by state law and is not superseded by and/or irreconcilably conflicts with the Pennsylvania Sentencing Code, the Probation and Parole Code, and the ACA Standards as adopted by the Department of Corrections. We disagree.
Our scope of review where, as here, the trial court does not take additional evidence, is limited to determining whether the zoning hearing board committed an error of law or a manifest abuse of discretion in rendering its decision. Cottone v. Zoning Hearing Board of Polk Township, 954 A.2d 1271 (Pa. Cmwlth. 2008). An abuse of discretion will be found only where the zoning hearing board's findings are not supported by substantial evidence. Id.
Our Supreme Court recently discussed the three forms of preemption in Pennsylvania, "express preemption," "field preemption," and "conflict preemption" in Holt's Cigar Co. v. City of Philadelphia, 608 Pa. 146, 10 A.3d 902 (2011). "Express preemption" simply means that a statute specifically declares "it has planted the flag of preemption in a field." Id., 608 Pa. at 153, 10 A.3d at 907 (citing Department of Licenses and Inspections v. Weber, 394 Pa. 466, 468, 147 A.2d 326, 327 (1959)). In "field preemption," a statute is silent on supersession, "but proclaims a course of regulation and control which brooks no municipal intervention." Holt's Cigar Co., 608 Pa. at 153-54, 10 A.3d at 907. Under "conflict preemption," any local ordinance that contradicts, contravenes, or is inconsistent with a state statute is invalid. Id.
For "conflict preemption" to be applicable, the conflict between the statute and the ordinance must be irreconcilable. Holt's Cigar Co.; City Council of the City of Bethlehem v. Marcincin, 512 Pa. 1, 515 A.2d 1320 (1986). Further, the local ordinance in question must be considered in light of the objectives of the General Assembly and the purposes of the relevant statute, and the local ordinance may not stand as an obstacle to the execution of those objectives and purposes. Holt's Cigar Co.; Huntley & Huntley, Inc. v. Borough Council of the Borough of Oakmont, 600 Pa. 207, 964 A.2d 855 (2009).
Nevertheless, a municipality "may make such additional regulations in aid and furtherance of the purpose of the general law as may seem appropriate to the necessities of the particular locality and which are not in themselves unreasonable." Holt's Cigar Co., 608 Pa. at 154, 10 A.3d at 907 (citing Mars Emergency Medical Services, Inc. v. Township of Adams, 559 Pa. 309, 314, 740 A.2d 193, 195 (1999)).
In this case, Appellants concede that the statutes they cite do not contain express preemption language. However, citing the statutes' underlying goals of rehabilitation, reintegration, and diversion of appropriate offenders in the Pennsylvania criminal justice system; issues of overcrowding; and statutory provisions authorizing the Department to establish work-release centers and community corrections facilities, Appellants contend that either field preemption or conflict preemption must apply.
Had the Ordinance entirely excluded these types of facilities or limited the number of work-release facilities in the Township or a particular zoning district, we might be inclined to agree with Appellants. However, the Ordinance expressly permits such facilities in a CH zoning district and merely regulates the use of these facilities by restricting occupancy to 150 residents.
Moreover, neither the statutes nor the ACA standards address the specific use of work-release facilities, such as the number of offenders, or otherwise prevent municipal involvement relating to where such facilities may be located. Indeed, our Supreme Court has previously held that state agencies, including the Department, must comply with local zoning ordinances. See Commonwealth v. Ogontz Area Neighbors Association, 505 Pa. 614, 483 A.2d 448 (1984) (Department of General Services, in constructing a day development center for mentally handicapped persons, must comply with the use and structural requirements of a local zoning ordinance); City of Pittsburgh v. Commonwealth, 468 Pa. 174, 360 A.2d 607 (1976) (Bureau of Corrections, in establishing a pre-release facility in leased premises, must apply for a certificate of occupancy, variance, or other zoning authorization for the intended use).
Despite these holdings, Appellants cite our Supreme Court's recent decision in Fross v. County of Allegheny, 610 Pa. 421, 20 A.3d 1193 (2011), as support of their arguments. However, such reliance is misplaced. Fross involved a challenge to an amendment of Allegheny County's zoning ordinance to prohibit sex offenders from establishing a permanent or temporary residence within 2,500 feet of any child-care facility, community center, public park, recreational facility, or school for the duration of his or her registration under the terms of those provisions of the Sentencing Code collectively known as Megan's Law (relating to registration of sexual offenders). The practical effect of the amended ordinance was to preclude convicted sex offenders from living in most parts of Allegheny County, except for remote areas distanced from public transportation and public facilities. The Court in Fross held that the ordinance was so restrictive that it undermined the General Assembly's policies of rehabilitation, reintegration, and diversion from prison of appropriate offenders, and that it effectively subverted the goals and operation of the Sentencing Code and Probation and Parole Code.
The Megan's Law provisions are generally found in sections 9791 through 9799.41 of the Sentencing Code, 42 Pa. C.S. §§9791 - 9799.41.
The Ordinance at issue in this case does not have a similar preclusive or exclusionary effect. To the contrary, the Ordinance expressly permits work-release facilities in the Township, thereby advancing the goals and operation of the aforementioned statutes. Additionally, in contrast to the ordinance at issue in Fross, the specific resident limit in Ordinance section 195-103(T)(4) does not effectively preclude criminal offenders from residing in the Township.
Accordingly, because Ordinance section 195-103(T)(4) does not irreconcilably conflict with the Sentencing Code, the Probation and Parole Code, or the ACA Standards, the trial court did not err or abuse its discretion in concluding that preemption did not apply.
Next, Appellants argue that the trial court erred or abused its discretion in concluding that Ordinance section 195-103(T)(4) has a rational basis and is not the result of arbitrary and irrational zoning. Again, we disagree.
A property owner's right to enjoy his property may be reasonably limited by legitimate zoning ordinances that are enacted by municipalities pursuant to their police power, i.e., governmental action taken to protect or preserve the public health, safety, morality, and welfare. C & M Developers, Inc. v. Bedminster Township Zoning Hearing Board, 573 Pa. 2, 820 A.2d 143 (2002). Traditionally, when determining the validity of a zoning ordinance, the ordinance is presumed to be constitutionally valid unless the challenging party shows that it is unreasonable, arbitrary, or not substantially related to the police power interest that it purports to serve. Id.
An ordinance will be found to be unreasonable and not substantially related to a police power purpose where it is shown to be unduly restrictive or exclusionary. Id. Similarly, an ordinance will be deemed to be arbitrary where it is shown that it results in disparate treatment of similar landowners without a reasonable basis for such disparate treatment. Id. The function of judicial review is to "engage in a meaningful inquiry into the reasonableness of the restriction on land use in light of the deprivation of landowner's freedom thereby incurred." Id. at 15, 820 A.2d at 151.
Appellants point to the testimony of Leonard, the Township's zoning administrator, in prior matters before the Township's Planning Commission, wherein Leonard described the 150-resident limit as "arbitrary" and did not address other factors Leonard later testified were considered in establishing this limit. However, Appellants fail to acknowledge the context of Leonard's statements. Leonard explained before the Planning Commission that he had no prior experience with community corrections but that he had previously visited Dauphin County's own work-release center. He indicated that in reaching the 150-resident limit, he considered other large-scale uses in the Township, such as hotels, the largest of which accommodated approximately 150 guests. See R.R. at 91a-92a. Appellants also fail to acknowledge that Leonard previously testified before the Board in 2009 that he reviewed model ordinances and ordinances from other municipalities for relevant provisions to include within the Ordinance, which is consistent with his later testimony before the Board. See R.R. at 67a.
In this later testimony, Leonard discussed the other factors the Township took into consideration in developing the criteria for a work-release facility, including the size of the Township, the scale of use in light of that size, similar uses in the community, fire and police services, available parking, the rural character of the community, other permitted uses within the CH zoning district, and the Township's comprehensive plan. Leonard's substantial testimony amply supports the trial court's conclusion that Ordinance section 195-103(T)(4) has a rational basis and is not the result of arbitrary and irrational zoning.
Next, Appellants argue that the trial court erred or abused its discretion in concluding that West Hanover Township has a reasonable basis to treat the residency requirements of work-release facilities differently from other residential facilities within the Township. Again, we disagree.
Section 601 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10601, provides that "[t]he governing body of each municipality, in accordance with the conditions and procedures set forth in this act, may enact, amend and repeal zoning ordinances to implement comprehensive plans and to accomplish any of the purposes of this act." In relevant part, section 604(1) of the MPC states that the provisions of zoning ordinances "shall be designed [t]o...promote, protect and facilitate...coordinated and practical community development and proper density of population...." 53 P.S. §10604(1).
Appellants note that certain uses, such as hotels and hospitals, do not have resident limits and that detention centers, which, unlike work-release facilities are permitted to house violent offenders, have a resident limit of 500 offenders. Appellants argue that the Board failed to establish a reasonable basis for such disparate treatment. However, the obvious differences between uses such as hotels or hospitals and work-release facilities are so considerable as to justify the imposition of a resident limitation for the latter and not the former.
Likewise, there are considerable differences between detention centers and work-release facilities. Section 195-103(V) of the Ordinance addresses the standards for detention centers. See R.R. at 274a-75a. When comparing these standards to those for work-release facilities under section 195-103(T), see R.R. at 273a, it is evident that detention centers warrant greater distance buffers with residential dwelling units, schools, or other similar facilities; they also require greater security, in the form of solid walls at least twelve feet in height, fences as high as twenty feet with optional security wiring at the top, security systems tied directly in with the Pennsylvania State Police, and complete backup power systems. Additionally, occupants of detention centers are subject to restrictions on their ability to leave. Because work-release facilities have substantially less security and restrictions, the trial court did not err or abuse its discretion in concluding that West Hanover Township had a reasonable basis to treat the residency requirements of work-release facilities differently than other residential facilities within the Township.
Finally, Appellants argue that the trial court erred or abused its discretion in concluding that section 195-103(T)(4) of the Ordinance was not adopted for an exclusionary purpose. Once more, we disagree.
In determining whether a zoning ordinance is unlawfully exclusionary, courts will engage in a three-part analysis. BAC, Inc. v. Board of Supervisors of Millcreek Township, 534 Pa. 381, 633 A.2d 144 (1993); Surrick v. Zoning Hearing Board of the Township of Upper Providence, 476 Pa. 182, 382 A.2d 105 (1977). Part one of the analysis asks whether the municipality has a propensity for population growth, and part two asks whether the municipality has the capacity to accommodate additional development. Id. If the answer to both of these parts is yes, then a third inquiry must be made to determine the exclusionary impact of the challenged zoning ordinance. Id.
Here, even assuming that the first two prongs are satisfied, we simply cannot agree with Appellants that section 195-103(T)(4) of the Ordinance is exclusionary. As indicated above, the Ordinance specifically permits, rather than excludes, work-release facilities in the Township. Section 195-103(T)(4) merely imposes a limitation on the number of residents in these facilities in order to accommodate the interests of the Township and its residents in protecting the health, safety, and welfare of the community. Leonard credibly testified regarding the various factors that the Township considered in developing the criteria for a work-release facility. Because section 195-103(T)(4) lacks the necessary exclusionary impact, we can conclude that the trial court did not err or abuse its discretion in determining that section 195-103(T)(4) of the Ordinance was not adopted for an exclusionary purpose.
While we recognize that properly structured work release facilities and re-entry efforts promote the successful rehabilitation of identified offenders and, thus, reduce correction costs and recidivism rates, the ACA and the Department require compliance with all applicable zoning ordinances and the record in this case supports the trial court's opinion that section 195-103(T)(4) of the Ordinance, permitting work release facilities, satisfies the requirements of Pennsylvania law.
Accordingly, the order of the trial court is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 28th day of November, 2012, the order of the Court of Common Pleas of Dauphin County, dated February 2, 2012, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge