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August 28, 1992


The opinion of the court was delivered by: LOWELL A. REED, JR.

 Plaintiff Horizon House brought this action against defendants seeking a declaration that the provision of Ordinance No. 300, imposing a distance requirement of 1000 feet for group homes within the township of Upper Southampton, discriminates against people with handicaps in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq., as amended by the Fair Housing Amendments Act of 1988 [hereinafter FHAA], and the equal protection clause of the United States Constitution, and seeking to enjoin the Township from enforcement of the ordinance.

 After a nonjury trial and for the reasons set forth in the following findings of facts and conclusions of law, I conclude that the distance requirement contained in Ordinance No. 300 is facially discriminatory in violation of the FHAA, constitutes an equal protection deprivation, and alternatively, has an unlawful and unconstitutional discriminatory effect. I will grant plaintiff's request to enjoin the enforcement of the ordinance.

 Based upon the testimony, exhibits and stipulations at the trial, I make the following findings of fact and conclusions of law. *fn1"


 A. Status of the Horizon House Homes under Ordinance No. 300

 1. Horizon House Developmental Services, Inc., is a non-profit Pennsylvania corporation, that provides residential services to people with mental retardation. Agreed Upon Stipulation of Facts (Document No. 75) ("Stip.") PP 8 & 9.

 2. Since 1952, Horizon House has developed a total of fifteen group homes *fn2" in the Commonwealth of Pennsylvania. These are located in Montgomery County, Bucks County, and Philadelphia. Testimony of Wayne Chiodo, Chief Executive Officer of Horizon House ("Chiodo").

 3. In addition to developing group homes in single-family dwellings, Horizon House developed housing in a Philadelphia apartment building for three years. Horizon House provides the apartment dwellers with supervision and other support, according to individual needs. Testimony of Chiodo.

 There is no evidence that the residents there have had a negative impact on others residents in the building.

 4. On April 20, 1988 Horizon House leased two houses in a single family residential area in Upper Southampton Township to provide housing for people with mental retardation. The two group homes are located at 941 Maple Drive and 906 Hillside Drive, respectively. Stip. P 10.

 5. Professionally trained staff are available twenty-four hours a day to assist the residents in these homes. Testimony of Chiodo.

 6. The three residents at the 941 Maple Drive home moved into their home in September, 1988. The three residents at the 906 Hillside Drive home moved into their home in January, 1989. Testimony of Chiodo.

 7. After having been in an institution for many years, the residents in these homes have acclimated well to living in the community. They relate to each other like members of a family. Testimony of Chiodo and Joann DeMassio, Resident Advisor ("DeMassio").

 8. The Horizon House homes blend into the neighborhood. They are indistinguishable from other homes on the block. They appear well maintained. Testimony of Demassio & Plaintiff's Trial Exhibits 48 (A)-(B).

 9. There is no evidence that either home, individually or collectively, has had any negative impact on the neighborhood in terms of noise, or other like disturbances; nor that the homes imposed any greater burden on public resources, such as public transportation, than any other single family dwelling in the neighborhoods in which they are located. Testimonies of Demassio and Phillip Fenster, Administrator of Bucks County Office of Mental Health and Mental Retardation ("Fenster").

 11. People with handicaps often require permanent care or professional supervision. Testimony of Thaler.

 12. The residents of the Horizon House homes are "handicapped" within the definition of the Fair Housing Act, 42 U.S.C. § 3602(h).

 13. The two Horizon House homes are situated 800 feet apart from each other within the Upper Southampton Township. Testimonies of Chiodo and Professor Elaine Bosowski, Department of Geography at Villanova ("Bosowski").

 14. The two Horizon House homes do not have a variance from the spacing requirement of Ordinance No. 300. Testimony of Chiodo.

 B. The History of Ordinance No. 300

 15. Ordinance No. 300 is the fourth in a series of ordinances passed by the Township relating to group homes.

 1. Ordinance No. 261

 16. The first effort to exclude or limit the homes through a spacing requirement occurred in 1988. Testimony of Chiodo.

 17. In the summer of 1988, Horizon House sought to open two group homes in the Township. At that time, the Township had no spacing requirement or any other restriction or regulation on housing for people with handicaps or other group homes. Stip. PP 12 & 13.

 18. After Horizon House announced its intention to open up the homes, there was overwhelming community opposition to them. Testimony of Fenster. Many neighbors and some Township Supervisors expressed hostility toward Horizon House. Testimonies of Chiodo and Fenster. It was a classic case of "NIMBY", which is the acronym for the colloquial expression "not in my backyard." Testimony of William Kerins, Township Supervisor ("Kerins").

 19. At a public meeting held before the Board of Township Supervisors on August 16, 1988, approximately 70 residents out of about 150 attendees, submitted a petition to the Township Board to stop Horizon House and its clients from moving into the neighborhood. Plaintiff's Trial Exhibit 6 & Stip. PP 14, 15 & 16.

 20. Many residents at the public meeting expressed their concern that property values would decline and their children would be unsafe. Deposition Testimony ("Dep.") of Charles Martin, Township Supervisor at 9-11, Dep. of John Held, Township Supervisor at 9-10, Dep. of Gerald Crandley, Township Supervisor at 7-9. Some neighbors expressed concern that the character of their neighborhood would change or that they objected to the presence of people with mental retardation living in the community. Plaintiff's Trial Exhibit 5 & Stip. P 17.

 21. Initially, the Supervisors responded to the community opposition by directing their Township Manager, Robert Pellegrino, to inquire at the office of the Township Solicitor as to whether the zoning code treated a group home as a nursing home. Plaintiff's Trial Exhibit 8 & Stip. P 18.

 22. At a meeting of the Township Board of Supervisors on September 6, 1988, the Township Solicitor advised Pellegrino and the Supervisors that, under Pennsylvania law, a group home was classified under the definition of "family" and could not be regulated as an institutional use, such as a nursing home. Stip. P 19 & Plaintiff's Trial Exhibit 10.

 23. The Board then directed Pellegrino to draft an ordinance governing group homes for handicapped persons. Plaintiff's Trial Exhibit 10 & Stip. P 20).

 24. Pellegrino prepared a first draft on September 8, 1988. Plaintiff's Trial Exhibits 11, & 74: Dep. of Pellegrino I at 82-83. In this draft, entitled "GROUP HOME FOR MENTALLY RETARDED PERSONS," group homes were defined as "any facility providing residential services to persons who due to age, disability, or handicap are not able to live without long term or permanent care or supervision provided by professionals. . ." Plaintiff's Trial Exhibit 11 (emphasis added). Also in the draft and in addition to many other restrictions, was the requirement that group homes for "the mentally retarded" be 2,000 feet apart from each other and secure a conditional use permit.

 25. On September 15, 1988, Pellegrino submitted the draft to the Board. Plaintiff's Trial exhibits 13 & 74 at 83 & Stip. P 22.

 26. On October 4, the Township held a public meeting to consider the proposed group home ordinance. Stip. P 24 & Plaintiff's Trial Exhibit 15. At that meeting, Chris Shubert, a lawyer representing members of the community opposed to the homes, proposed that the coverage of the ordinance go beyond group homes for mentally retarded people and cover group homes for other types of disabled people, including people with physical disabilities and developmental disabilities. Plaintiff's Exhibit 74 at 41-42 & Stip. P 25.

 27. Pellegrino marked up his draft of the proposed ordinance incorporating Shubert's recommendations by inserting the words "physical disabilities" and "developmental disabilities" into the definitional section and changing the title of the ordinance from "GROUP HOME FOR THE MENTALLY RETARDED" to "FAMILY CARE HOME FOR DISABLED PERSONS." Additionally, Pellegrino crossed out the number "2,000" for the spacing requirement, and replaced it with the number "3,000." Plaintiff's Trial Exhibit 51; see also, Plaintiff's Trial Exhibit 74 at 76, lines 7-24, and at 41-42).

 28. The ordinance defined family care homes for disabled persons as "any facility providing residential services to persons due to age, physical disability, developmental disabilities or mental retardation [sic] are not able to live without long term or permanent care or supervision provided by professionals trained to provide such care.

 29. The draft ordinance, including the new recommendations were approved and incorporated by the Board into the final version of the ordinance, which was enacted, on October 4, 1988, as Ordinance No. 261 Id.; see also, Plaintiff's Trial Exhibit 15 & Stip. P 26.

 30. Before voting on Ordinance No. 261, the Board did not hear from an expert on social services or mental retardation regarding the need and effect of such an ordinance.

 31. Soon after the ordinance was passed, Pellegrino, who was also the Township zoning enforcement officer began to enforce Ordinance No. 261 against Horizon House. Pellegrino directed Horizon House to comply with the terms of the ordinance. The Township instructed Horizon House to apply for a use permit, and then, after that proved fruitless, the Township told Horizon House to apply for a variance from the Township Zoning Hearing Board. Testimony of Chiodo, & Plaintiff's Trial Exhibits 22, 23 & 38.

 32. After a lengthy and costly proceeding, see Stip. PP 34-43, Horizon House's request for a variance was denied because its homes were within 3,000 feet of each other, in violation of Ordinance No. 261, and the Zoning Hearing Board concluded that Horizon House had not made a sufficient showing of hardship to obtain a variance. Plaintiff's Trial Exhibit 63.

 33. To date, Horizon House has no variance for its two homes.

 34. The Township enforced the terms of Ordinance No. 261 against Horizon House despite that one of its homes was occupied before the enactment of Ordinance No. 261.

 35. This enforcement is in direct contrast to the argument of the Township at trial that the homes constitute a prior non-conforming use and are, therefore, insulated from enforcement action under any ordinance passed after the homes were occupied, in particular Ordinance No. 300.

 36. This history is evidence which supports the finding that the current homes may not be treated as a prior non-conforming use under Ordinance No. 300, notwithstanding the Township's attestations to the contrary.

 2. Ordinance No. 266

 37. The second attempt to limit or exclude group homes occurred on May 2, 1989, when the Township enacted Ordinance No. 266 as an amendment to Ordinance No. 261. Plaintiff's Trial Exhibit 2 & Stip. P 44.

 38. Ordinance No. 266 retained the same definition of "FAMILY CARE HOME" as in Ordinance No. 261, but included a different spacing requirement between group homes. The Township reduced the spacing ...

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