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November 19, 1993


The opinion of the court was delivered by: LOUIS H. POLLAK

 These two cases arise under the Fair Housing Act, 42 U.S.C. §§ 3601 et seq.. In No. 92-7108, the plaintiff is the United States and it alleges that the defendant City of Philadelphia's failure to grant a requested zoning permit for a proposed home for homeless persons constitutes "a refusal to make reasonable accommodations in the 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)(B)(3). *fn1" In No. 92-7110, the plaintiffs are a group of potential residents of the proposed home, and their allegations are identical with those in the suit brought by the United States. Pending before this court are cross-motions for summary judgment in both cases. *fn2"

 Part I of this opinion outlines the background and procedural history of these cases. Part II addresses the legal issues posed by the summary judgment motions.


 A. Background

 Project H.O.M.E. is a Pennsylvania non-profit corporation, co-founded by Sister Mary Scullion, which provides a continuum of services to homeless men who are mentally ill and/or recovering substance abusers. The organization operates two emergency shelters, open to any chronically homeless person in Philadelphia. A separate facility on the upper floors of one of the two shelters offers a structured environment and serves as a way-station to stabilize its twenty residents to the point at which they are receptive to treatment. Such treatment is provided by Project H.O.M.E. at two drug- and alcohol-free transitional homes located in other neighborhoods. Those residing in the transitional homes are closely supervised, and have shared bedrooms and communal meals.

 Sister Mary believes that many residents of the transitional homes would benefit from more privacy and independence than these homes afford. Her proposed solution is a "Single Room Occupancy" ("SRO") which would provide small individual rooms and community kitchen facilities. The goal of such a facility is to give the resident a sense of control over his or her environment. The SRO would have staff members on site 24 hours/day and other case-management services available on a daily basis. The use of drugs and alcohol would be forbidden, with the prohibition enforced by random drug testing. The residents of the proposed SRO would come from Project H.O.M.E. and Women of Hope *fn3" transitional homes and from similar facilities. To be eligible to move to the SRO, a resident would have to have been actively participating in a recovery program for at least a year. A number of residents currently in transitional homes are capable of living in a less restrictive environment at this time and would benefit from a move to the proposed SRO. Their exodus from transitional homes would free up beds for homeless persons whose needs are not being met.

 Project H.O.M.E. has acquired two adjacent buildings at 1515 and 1523 Fairmount Avenue to use for its proposed SRO. 1523 Fairmount Avenue, the much smaller of the two buildings, is essentially a conventional row house on a conventional lot. 1515 Fairmount, however, is four stories high and occupies the entire depth of the block. The parcel includes a side yard with an area of about 5,400 feet, which also extends the entire depth of the block.

 According to the declaration of Mark E. Levin, managing attorney for the agency that is providing legal representation to Project H.O.M.E., Project H.O.M.E. has assembled a combination of financing from public and private sources to pay for the purchase and rehabilitation of 1515-1523 Fairmount Avenue. The financing includes "a $ 500,000 self-amortizing loan from the City of Philadelphia; a $ 206,619 first mortgage loan from the Pennsylvania Housing Finance Authority ("PHFA"); [and] $ 813,318 in deferred payment second mortgage loans from PHFA under its HOMES program." See Exh. F to the United States' Motion for Summary Judgment. In addition, Mr. Levin declares that the loan portion of the financing is made affordable primarily by rent subsidies committed by the United States Department of Housing and Urban Development ("HUD") under its Section 8 Moderate Rehabilitation Program and its Shelter Plus Care Program in the amounts of $ 2,160,000 and $ 276,480, respectively. See id. However, according to Mr. Levin,

It is the practice of PHFA, in common with other public and private institutions which provide financing for housing, to require counsel to the project sponsor . . . to opine as to specific matters relating to such project. Specifically, PHFA requires counsel to opine that "there is no legal action pending or threatened, or proposed changes in zoning, which would prevent the construction from being commenced or completed in accordance with the plans and specifications and existing zoning laws and requirements." This opinion letter is a precondition to release of PHFA funds and the availability of those funds is necessary to obtain the equity investment from investors.

 Id. Mr. Levin explains that "because of the ongoing litigation in the courts of Pennsylvania, [he] is presently unable to issue an opinion letter which should be acceptable to PHFA." *fn4" Id. In a letter dated October 12, 1993, PHFA advised Sister Mary that "if the proposal cannot evidence the necessary requirements for commitment presentation, including financial viability on or before November 30, 1993, the project will be removed from our processing pipeline and the HOMES set-aside will be utilized for other housing proposals." See Additional Submission of Fact of the United States and Private Plaintiffs. However, in a letter to Sister Mary dated November 4, 1993, PHFA indicated that "if this court were to rule in favor of Project H.O.M.E. - Fairmount, the Agency will withdraw its November 30 deadline for submission of project documents." Supplemental Declaration of Mark Levin.

 B. Procedural history

 Project H.O.M.E. applied for a zoning and use permit for 1515-1523 Fairmount Avenue on August 9, 1990. The Philadelphia Department of Licensing and Inspections ("L&I") granted the permit. Two civic associations that had publicly opposed the introduction into the neighborhood of a new residential facility for persons beset with handicaps -- the Spring Garden Civic Association and the Francisville Neighborhood Advisory Committee -- appealed the grant of the permit to the Zoning Board of Adjustment. At issue on appeal was the question of whether 1515 Fairmount is required, in order to be converted from commercial to residential use, to have a rear yard. Under the Zoning Code, a commercial building or a residential building housing fewer than three families must have a rear yard "with a minimum depth of not less than 10% of the lot depth, but in no case less than eight feet." Zoning Code, § 14-303(4)(g)(.1). Buildings "housing three or more families shall have a rear yard with a minimum depth of nine feet and a minimum Rear Yard Area of 344 square feet, plus an additional 100 square feet of Rear Yard Area for each additional family more than three families." Zoning Code, § 14-303(4)(g)(.2). The building at 1515 Fairmount meets neither of these requirements. However, because it was built in 1932, before the Zoning Code took effect, it constitutes a permitted nonconforming structure under § 14-104(1). A nonconforming structure may be put to any use permitted in the district as long as the nonconforming structure is not extended in any way so as to increase the nonconformity.

 The Zoning Board upheld the permit on July 5, 1991, reasoning that charitable organizations were exempt under the Zoning Code from the rear yard requirement. The civic associations appealed to the Court of Common Pleas, which reversed the Zoning Board's decision on December 19, 1991. The Court of Common Pleas found no charitable exemption in the Code. Project H.O.M.E. then appealed to the Commonwealth Court, which reversed the decision of the Court of Common Pleas and reinstated the permit on November 10, 1992. See Spring Garden Civic Association et al. v. Zoning Board of the City of Philadelphia, et al., 151 Pa. Commw. 413, 617 A.2d 61 (Pa. Commw. 1992). In its opinion, the Commonwealth Court did not reach the exemption issue, but instead concluded that each resident of the home would not constitute a "family" under the Code and thus that Project H.O.M.E.'s proposed use of the facility would not increase the nonconformity of the structure from that which existed before the Zoning Code took effect. *fn5" ...

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