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December 7, 1999


The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.



Marriott Senior Living Centers, Inc. ("Marriott")*fn1 seeks to build a large, multiunit senior assisted living*fn2 facility in Springfield Township, Delaware County, Pennsylvania ("Township"). For a site, Marriott has chosen an area zoned "A" Residential under the Township's Zoning Code, which principally permits single-family detached homes to be built in that area. In order to build the senior assisted facility on the chosen site, Marriott has requested that the Township grant a reasonable accommodation under the Fair Housing Act ("FHA"). Marriott claims that the Township has failed to grant its request. It is Marriott's theory of liability that, in doing so, the Township has violated the FHA by: 1) failing to make a reasonable accommodation to its proposal; 2) maintaining a zoning scheme which is facially discriminatory towards elderly people with disabilities; and 3) maintaining a zoning scheme which has a disproportionate impact on elderly people with disabilities. In addition, Marriott asserts that the Township has violated the Americans with Disabilities Act (ADA) by maintaining a zoning scheme that segregates elderly people with disabilities from living in the community of their choice.

The Township responds that, while Marriott has made informal inquiries of Township officials, it has never formally submitted its proposed plan for review by the appropriate Township authorities. Nor has Marriott sought variances or other relief from the Township's Zoning Code. Accordingly, the Township argues that Marriott's claims that it was not granted a reasonable accommodation and that the zoning scheme disproportionately impacts upon elderly persons with disabilities are not final decisions which are ripe for judicial review. Further, the Township contends that the claim that the zoning scheme is facially discriminatory lacks merit as a matter of law.

Marriott has moved for summary judgment on all these claims.*fn3 In turn, the Township seeks dismissal of Marriott's reasonable accommodation and disparate impact claims as unripe for judicial review and judgment as a matter of law on the facial discrimination claim.*fn4

The court finds that: 1) since Marriott has not afforded the Township the opportunity to meaningfully consider a formal proposal, to hold hearings at which the public and others affected by the project were afforded the opportunity to comment, and to state in writing the reasons for its decision, any decision made by the Township on Marriott's reasonable accommodation claim is not final, and therefore, Marriott's reasonable accommodation claim is not presented in sufficiently concrete terms to permit judicial review; 2) the Township's zoning scheme challenged by Marriott does not on its face discriminate against elderly persons with disabilities; and 3) there is a genuine issue of material fact as to whether the challenged zoning scheme, as applied, disproportionately impacts elderly people with disabilities because the Township has never previously ruled on an application for relief from the zoning code to allow an assisted living center in an "A" residential area and in the instant case, Marriott has not submitted a formal application for approval.


A. Springfield Township's Land-Use Procedures.

Land-use planning and the enactment of land-use restrictions are some of the most important functions performed by local government. See, e.g., FERC v. Mississippi, 456 U.S. 742, 768 n. 30, 102 S.Ct. 2126, 72 L.Ed.2d 532 (1982) ("regulation of land use is perhaps the quintessential state activity"); Village of Belle Terre v. Boraas, 416 U.S. 1, 13, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974) (Marshall, J., dissenting) ("[zoning] may indeed be the most essential function performed by local government"). In Pennsylvania, local governing bodies of every municipality are empowered by statute, the Pennsylvania Municipalities Planning Code, to enact regulations, controls and procedures which govern land-use planning. See 53 Pa.Cons.Stat.Ann. § 10101-11202 (West 1997); see also 1 Robert M. Anderson, Law of Zoning in Pennsylvania § 2.04 (1982). It is pursuant to this delegated authority from the Commonwealth, that Springfield Township enacted its zoning code and zoning ordinances.

In Springfield Township, two sections of the Springfield Township Code guide and control land development within the Township — the Springfield Township Zoning Ordinance of 1985 (Chapter 143) ("Zoning Ordinance") and the Springfield Township Subdivision and Land Development Ordinance of 1987 (Chapter 123) ("S & L Ordinance") (collectively "Zoning Code").

The S & L Ordinance outlines in detail the two steps every applicant must satisfy to obtain approval of a subdivision and/or land development. First, the applicant must submit, for approval by the Township Planning Commission and the Township Board of Commissioners, a Preliminary Plan. See S & L Ordinance § 123-12. Section 123-12 lists the requirements of the Preliminary Plan, as well as the procedures that must be followed in submitting the plan.*fn5 Furthermore, if the proposed subdivision or land development requires a conditional use permit or special exception, the S & L Ordinance provides the following regulation:

See id. § 123-10(B). Thus, to obtain approval of any proposed Preliminary Plan, an applicant is required to file, at a minimum, a Preliminary Plan in accordance with section 123-12, along with an application for a conditional use permit if necessary, as outlined by the Zoning Ordinance.*fn6 Within six months after the Preliminary Plan is approved, the applicant must next submit a Final Plan. See id. § 123-13(A).*fn7 The requirements and procedures for approval of a Final Plan are enumerated in section 123-13.*fn8

The S & L Ordinance also provides a procedure for "an informal discussion between the Planning Commission and the landowner" prior to the submission for Preliminary Plan approval. See id. § 123-11. While this non-mandatory section of the ordinance is not an alternative to the submission of a formal plan pursuant to section 123-12, it does provide assistance to the applicant in pursuing a proposed land development plan by allowing an applicant to test its proposal without incurring the increased costs and time associated with the submission of formal Preliminary and Final Plans. See, e.g., Board of Commissioners of Abington Township v. Quaker Constr. Co., 65 Pa. Cmwlth. 8, 441 A.2d 801, 802-03 (1982) (recognizing that informal Sketch Plans may be mandatory or non-mandatory, and when mandatory, township must comply with all provisions of the Pennsylvania Municipalities Planning Code, including notice provisions); Mid-County Manor Inc. v. Haverford Township Bd. of Commissioners, 22 Pa.Cmwlth. 149, 348 A.2d 472, 476 (1980) (same). This non-mandatory and informal discussion section provides, in pertinent part, as follows:

  A sketch plan for any proposed subdivision and/or
  land development may, at the option of the landowner
  or developer, be submitted to the Township Planning
  Commission for review. The submission of a sketch
  plan does not constitute submission of an application
  for approval of a subdivision and/or land development
  plan. However, it does represent a basis for an
  informal discussion between the Planning Commission
  and the landowner or developer which may prove to be
  valuable to the prospective applicant in formulating
  plans, documents and other submissions for
  preliminary plan approval.

Id. § 123-11. In addition, this section further provides the procedures and requirements for submitting a Sketch Plan. See id. § 123-11(A)-(E). Although the requirements and procedures are similar to those of the Preliminary and Final Plans, there are a few major differences. For instance, the informal Sketch Plan is only reviewed by the Planning Commission and not the Board of Commissioners; section 123-11 does not provide procedures for public hearings after public notice; and the procedures for denying an informal Sketch Plan are not outlined. Furthermore, both the Preliminary Plan and Final Plan applications require a significantly increased number of submissions in the form of supporting documents and other data than does the informal Sketch Plan. Compare § 123-20 (Preliminary Plan Requirements) and § 123-23 (Final Plan Requirements) with § 123-19 (Sketch Plan Requirements). The different procedures associated with the non-mandatory and informal Sketch ...

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