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June 19, 1995

JUDY B. and DEBRA T., Individually and on behalf of all Individuals similarly situated, Plaintiffs
BOROUGH OF TIOGA, et al., Defendants

James F. McClure, Jr., United States District Judge

The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

June 19, 1995

 Plaintiffs Judy B. and Debra T. filed this action to contest a decision by the Zoning Hearing Board for the Borough of Tioga, Pennsylvania as inconsistent with the federal Fair Housing Amendments Act of 1988 (FHAA), 42 U.S.C. §§ 3601-3631. Plaintiffs bring this action on their own behalf and on behalf of other Tioga County residents similarly situated who have a disability and are without a permanent or long-term residence. *fn1"

 United Christian Ministries (UCM) has contracted to purchase a property in the Borough of Tioga (the borough) formerly operated as the Seven Dwarfs Motel (the motel). UCM plans to convert the motel into a single room occupancy (SRO) residence for individuals such as the plaintiffs as a facility where they could live semi-independent lives, and with counseling and support, acquire the life-skills, coping mechanisms and confidence they need to live on their own as productive members of society.

 The district in which the motel is located is zoned CI Restricted Commercial/Industrial under section 165-19 of the Tioga Borough Zoning Ordinance, Ordinance No. 118 (Nov. 5, 1973) codified as Chapter 165 of the Code of the Borough of Tioga. *fn2" The zoning enforcement officer interpreted the ordinance as requiring UCM to obtain a use variance in order to qualify for a building permit. UCM's variance application was denied by the Tioga Zoning Borough Hearing Board on May 3, 1994 on the ground that it had not made a sufficient showing of hardship. The denial was affirmed by the Court of Common Pleas of Tioga County on September 12, 1994. Subsequent requests by UCM to the Zoning Hearing Board for a waiver of the variance requirement as a "reasonable accommodation" mandated by the FHAA were unsuccessful.

 Plaintiffs then filed this action seeking, inter alia, an injunction *fn3" from this court mandating issuance of the permit necessary to allow UCM to use the motel as proposed.

 A hearing on plaintiff's motion *fn4" for a preliminary injunction was held on May 31, 1995. Five witnesses testified for the plaintiffs: Reverend Virginia Boley, Executive Director of UCM; co-plaintiffs Judy B. and Debra T.; Michael Egan, Executive Director of the Tioga County Redevelopment Authority; and Walter Gray Smith. Smith testified as an expert on zoning and planning issues. Charles LaVancher testified for the defendants.

 Based on the evidence presented at the May 31, 1995 hearing and the arguments made by counsel in briefs and during oral argument, this court will grant plaintiffs' motion for injunctive relief. Defendants' motion to dismiss the complaint will be denied. Plaintiffs' request for attorneys' fees pursuant to 42 U.S.C. § 1988 will be considered at a later date.



 Based on the testimony presented and the documentary evidence introduced at the May 31, 1995 hearing, the court makes the following findings of fact:

 The Parties

 1. Plaintiff Judy B. is resident of Tioga County, Pennsylvania.

 2. Plaintiff Debra T. is resident of Tioga County, Pennsylvania.

 3. The Borough of Tioga (the borough) is a Pennsylvania municipal corporation located in Tioga County.

 4. The Zoning Hearing Board of the Borough of Tioga is the body charged with certain zoning-related duties including the granting of variances under the Tioga Borough zoning ordinance in accordance with the applicable provisions of the Pennsylvania Municipalities Planning Code, 53 Pa. Stat. Ann. tit. 53, §§ 10901-10961)

 5. Defendant Curtis Osterhoudt is the Mayor of the Borough of Tioga.

 The Osceola Shelter

 6. United Christian Ministries (UCM) is a Pennsylvania non-profit corporation with offices at Main Street, Osceola, Tioga County, Pennsylvania dedicated to providing services to the poor and disadvantaged of Tioga County. UCM currently operates in Osceola a shelter (Osceola shelter) for the homeless, many of whom are recovering alcoholics, drugs addicts, or suffer from a mental or physical disability which hinders their ability to live independently. UCM also operates a food bank from the Osceola site. The Reverend Virginia Boley is the Executive Director of UCM and was the guiding force in its development.

 7. The Osceola shelter is located in a converted house and has space for up to twelve occupants, if occupants are housed two to a room. All occupants share a single bathroom and a single kitchen and have counseling and support services available them around-the-clock. Privacy is at a premium since space is limited.

 8. Residents cannot lock their individual rooms and can have overnight guests only to a very limited degree. These restrictions impact the lives of those who reside there, particularly those who have minor children.

 9. Demand for rooms at the shelter far exceeds available space. The Osceola shelter has been filled to capacity since it opened, and there is always a waiting list.

 10. Operation of the shelter is funded by contributions and grants from government and private sources.

 11. The Osceola shelter was originally intended to serve as an emergency shelter, with residents staying only a few days until they could obtain housing elsewhere. Circumstances have altered the original plan. Most residents extend their stay for months or even years due to: the lack of affordable housing; their limited incomes and their inability to move from a communal-type living arrangement to total independence without an interim step. There is currently no facility in Tioga County where shelter residents can gradually learn to cope with their disabilities and gain skills necessary to live responsibly and productively on their own.

 12. Perceiving the need for such a transitional shelter, UCM decided to establish the proposed facility in Tioga Borough. The motel was selected because it was the most suitable property on the market at that time. Reverend Boley looked at several residential properties on the market, but found them too small for the proposed facility. The motel has 11 individual units--each consisting of a room and a bath. The property also contains a four-room house and a garage. (Hearing exhibit P-1)

 13. UCM plans to remodel the motel into a fifteen unit single room occupancy (SRO) shelter. Its plan will not require substantial structural alterations. The eleven motel units, each of which already has an adjoining bath, and four rooms in the house, which will have private baths added, will comprise the fifteen individual rooms. The garage is to be used as a learning center where classes and counseling services will be made available to residents. All occupants will share kitchen facilities. A food bank will also operate from the site. The additional space will allow UCM to provide services to residents currently not available elsewhere in Tioga County.

 Acquisition of the motel property

 14. UCM entered into an agreement of sale on December 8, 1994 to purchase the motel property for $ 155,000.00. Closing is contingent on UCM's obtaining zoning approvals and financing. The closing must take place on or before July 30, 1995, and is contingent upon UCM's obtaining a grant and/or low interest loan and the necessary zoning approvals and on other conditions unrelated to this action. (Hearing exhibit P-1)

 15. UCM has obtained commitments from private and governmental sources to fund the purchase of the property and the mortgage payments. Both sources of funding are contingent upon UCM's ability to obtain necessary zoning approvals. Both commitments will expire if such approvals are not obtained by a specified date. UCM's mortgage commitment expires July 30, 1995. (Hearing exhibit P-1) Tax credits are also part of the financing package.

 16. UCM has succeeded in qualifying shelter residents for Section 8 rental assistance payments from the United States Department of Housing and Urban Development (HUD). The section 8 payments will be used to pay off the mortgages. Without section 8 funding, UCM cannot guarantee repayment of the mortgage.

 17. If the necessary zoning approvals and other contingencies are not satisfied by a specified date, HUD will recapture, i.e. reallocate, the section 8 funds currently allocated to residents of the proposed shelter.

 18. UCM has received one extension from HUD to obtain the necessary project approvals, but has been notified that no further extensions will be given. If UCM loses the promised section 8 funding, it can re-apply, but has no guarantee that its application will be granted. A previous application for section 8 funding for this project was denied. The project cannot go forward without section 8 funding.

 Plaintiffs Judy B. and Debra T.

 19. Both plaintiffs are long-term residents of the Osceola shelter.

 20. Plaintiff Debra T. is a recovering alcoholic who has lived at the Osceola shelter on two separate occasions. She lived there for two months during 1993 and for several months earlier this year. On both occasions, she moved into the shelter after competing a residential rehabilitation program for alcoholism. She moved out on her own in 1993, was successful for a time in living on her own, but ultimately relapsed and entered a rehabilitation program for alcoholism. After completing that program, she moved into the Osceola shelter for the second time. She moved out to resume life on her own in April, 1995 and has, so far, been doing well. A facility such as the proposed Tioga SRO residence would have eased her transition into independent living and increased the odds of her succeeding and avoiding a second relapse.

 21. Plaintiff Judy B. suffers from bipolar personality disorder with recurring depression and, with the exception of a short period in 1994, has resided continuously at the shelter since July, 1993. She receives counseling and attends support groups and could benefit greatly from an opportunity to reside in a setting where she has more privacy and more control over her life with available counseling and continuing support services as a transition from communal living to independent living.

 22. During the period when she was not residing at the Osceola shelter, Judy B. made an unsuccessful attempt to live on her own. She left the shelter in January, 1994, was hospitalized shortly thereafter, and returned to the shelter in February, 1994, where she has resided ever since. Due to the lack of support services, she was unable to make the transfer from living communal-style to living on her own. Judy B. has valid concerns that a future attempt to make that transition may be equally doomed unless she can avail herself of a transitional facility which can offer her a more independent life-style, with support services available should she need them. The proposed Tioga SRO residence will be such a facility. If UCM is successful in its efforts to establish such a facility, Judy B. will reside there.

 23. Plaintiffs Judy B. and Debra T. are typical of individuals currently residing at the Osceola shelter and are representative of those individuals who would avail themselves of the services provided by the proposed Tioga shelter.

 Motel zoning

 24. The motel is located at 2 Berry Street in Tioga in a district zoned CI Restricted Commercial/Industrial (CI district). The property is located on a well-traveled street.

 25. A motel was operated on the site prior to the enactment of the borough zoning ordinance classifying the district as CI Restricted Commercial/Industrial.

 26. Within a few blocks of the motel, there currently exist: residential properties, a box factory, a ball field, and various shops and businesses.

 27. The CI District is gerrymandered to incorporate the motel within its boundaries. Had the district lines followed borough streets along straight lines, the motel site would have been included within the neighboring R-2 Medium Density Residential District (R-2 District). The motel is surrounded on three sides by the R-2 District and on the fourth by the CI District.

 28. Permissible uses in the CI District include: retail sales, professional or business offices, barber shops, commercial education facilities, restaurants, medical research laboratories, manufacturing concerns, printing or publishing businesses and wholesale or retail sale establishments. Residences such as the proposed UCM transitional shelter are not expressly listed as permissible uses.

 29. Motels are not among the permitted uses specifically listed. While it was in operation, the motel operated either as a non-conforming use or as a permitted use ...

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