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Jeanne Mckivitz and Robert Mckivitz v. Township of Stowe

December 22, 2010

JEANNE MCKIVITZ AND ROBERT MCKIVITZ, PLAINTIFFS,
v.
TOWNSHIP OF STOWE, TOWNSHIP OF STOWE ZONING BOARD OF ADJUSTMENT, AND WILLIAM J. SAVATT, INDIVIDUALLY AND AS THE STOWE TOWNSHIP CODE ENFORCEMENT OFFICER, DEFENDANTS.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER OF COURT

I. Introduction

Before the Court for disposition are the Plaintiffs‟

MOTION FOR PARTIAL

SUMMARY JUDGMENT (Document No. 28), with their supporting brief and exhibits (Document Nos. 29-37), the MOTION FOR SUMMARY JUDGMENT filed by Defendants William J. Savatt and the Township of Stowe (Document No. 38), with their supporting brief, appendix and concise statement of material facts (Document Nos. 39 & 40), the MOTION FOR SUMMARY JUDGMENT filed by Defendant Township of Stowe Zoning Board of Adjustment (Document No. 41), with its supporting brief, appendix and concise statement of material facts (Document Nos. 42-43, 45-46), the Plaintiffs‟ omnibus response to the Defendants‟ motions for summary judgment (Document No. 50), and their supporting appendix and exhibits (Document Nos. 51-56), the Defendants‟ briefs in opposition to the Plaintiffs‟ motion for partial summary judgment (Document Nos. 53 & 57), the responsive concise statement of material facts filed by Defendants William J. Savatt and the Township of Stowe (Document No. 54), and additional exhibits submitted by Defendant Township of Stowe Zoning Board of Adjustment (Document No. 58).*fn1 For the reasons that follow, the Plaintiffs‟ motion for partial summary judgment (Document No. 28) will be denied, and the Defendants‟ motions for summary judgment (Document Nos. 38 & 41) will be granted.

II. Background

Plaintiffs Jeanne and Robert McKivitz ("Mrs. McKivitz" and "Mr. McKivitz," respectively, or the "Plaintiffs," collectively) reside in McKees Rocks, Pennsylvania. ECF No. 1 at ¶ 9. On November 23, 1998, Mr. and Mrs. McKivitz purchased a dwelling located at 1119 Charles Street in Stowe Township, Pennsylvania. Id. at ¶ 14. The property is located in an area of Stowe Township that is classified as an "R-1" residential district under the applicable zoning ordinances. Id. at ¶ 15. Ordinance No. 912 provides that R-1 districts should consist primarily of "single family homes on individual lots with customary residential accessory uses."*fn2 ECF No. 40-1 at 9. The term "family" is defined as "[o]ne or more persons occupying a dwelling unit and maintaining a single housekeeping unit." Id. at 4.

On or around June 1, 2007, Mr. and Mrs. McKivitz leased the dwelling to Carmella Gasbarro ("Gasbarro") and four other females, all of whom were recovering from drug or alcohol addiction. ECF No. 1 at ¶ 18. Each of these individuals had previously received treatment for drug or alcohol addiction in a "half-way house" or similar residential treatment facility. Id. at ¶ 19. Mr. and Mrs. McKivitz intended to operate their property as a "three-quarter house," which they considered to be a "single-family dwelling." Id. at ¶¶ 20-21. The individuals residing in the dwelling were required to remain free of drug and alcohol abuse. Id. at ¶ 22. Urine tests were administered to ensure compliance with this policy. ECF No. 40-1 at 29. Gasbarro served as the "house supervisor" during her stay. ECF No. 50-4 at 8. In return for her services, she received a $100.00-per-month discount in the amount of her rent. Id. She was charged only $300.00 per month to stay at the facility, while the other residents paid $400.00 per month. Id.

In a letter to Mr. McKivitz dated June 12, 2007, Ordinance Officer William J. Savatt ("Savatt") stated as follows:

Mr. McKivitz, this letter is to inform you there are two violations of Township ordinances regarding your property at 1119 Charles St. First, you are running a rooming house at 1119 Charles in an area of the Township not zoned for such a use. Your house is in an R-1 single family residential area.

Second, you have not submitted a rental form for the persons living at 1119 Charles as required by Township ordinance 791, Ch 11 Sec 201-1, and 202.

Both issues have been confirmed by my conversation with your tenant Stephanie Palkey, and Chief Marciws [sic] conversation with you.

You have ten days from the receipt of this letter to: cease operation of the rooming house or apply for a zoning variance, and you must submit the proper rental form to the Township. If you fail to comply with these issues within the time specified, citations will be issued.

ECF No. 40-3 at 1. Stephanie Palkey ("Palkey") was apparently one of the individuals who had been residing at the facility. Ordinance No. 912 defines the term "rooming or boarding house" as "[a] residential building other than a hotel in which part or parts are kept, used, or held out to be a place where sleeping accommodations are offered for hire for three or more persons." ECF No. 40-1 at 8. An individual is required to obtain a "Certificate of Occupancy indicating compliance with the provisions of" Ordinance No. 912 prior to changing "the use of an existing building, structure, water body or land area."*fn3 Id. at 23.

Mr. McKivitz apparently spoke with Savatt and argued that the property was being used as a single-family dwelling, and that no occupancy permit was needed. In a written notice dated June 13, 2007, Savatt informed Mr. McKivitz that both an occupancy permit and a building inspection were necessary. ECF No. 40-3 at 2. On August 20, 2007, Savatt filed citations against Mr. and Mrs. McKivitz for collecting rent without having filed a notice of occupancy. Id. at 3-4. The charges were ultimately dismissed after a hearing conducted before Magisterial District Judge Tara Smith. ECF No. 1 at ¶¶ 40-41.

Mr. and Mrs. McKivitz applied for a "Certificate of Occupancy" on August 23, 2007, proposing that their property be used as a "three-quarter house" for "disabled individuals." ECF No. 40-3 at 13. Savatt denied the request on October 22, 2007. Id. at 14. In a letter to Mr. and Mrs. McKivitz explaining the reasons for his decision, Savatt stated that a "three-quarter house" was not permitted in an R-1 district. Id.

On November 21, 2007, Mr. and Mrs. McKivitz appealed Savatt‟s decision to Stowe Township‟s Zoning Board of Adjustment (the "Board"). ECF No. 40-3 at 15. In a written attachment to their formal "notice of appeal," they declared:

The property owner appeals from the determination of the Ordinance Officer and asserts the following reasons for approval:

Contrary to the determination of the Zoning Officer a three-quarter house is permitted in the R-1 residential area;

Use of the property, a single family dwelling, as a three-quarter house does not constitute a change of use for the subject property;

The Zoning Officer erred in finding Stowe Township Ordinance 912 is the applicable ordinance in determining the use of the property;

The Zoning Officer erred in finding the Zoning Ordinance in force in Stowe Township on and before July 9, 2007, was not applicable to the present use of this property by the Owners;

Owners are not required to obtain a zoning certificate from the Zoning Officer because the current use of the property predates the adoption of Stowe Township Ordinance 912;

The determination of the Zoning Officer deprives the Owners of the use and enjoyment of their property without due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and violates their rights as established under Article 1, §§ 1, 9 of the Pennsylvania Constitution and because it is an ex post facto application of the Ordinance in violation of Article 1, § 17 of the Constitution of the Commonwealth of Pennsylvania.

Id. at 16. As this language illustrates, the only federal basis for the appeal referenced by Mr. and Mrs. McKivitz was their contention that the Due Process Clause of the Fourteenth Amendment prohibited Stowe Township from applying Ordinance No. 912 retroactively.*fn4

The Board conducted a hearing on January 17, 2008. ECF No. 40-2 at 1-140. Mr. McKivitz, Gasbarro and Savatt all testified at the hearing. Id. In a decision dated February 21, 2008, the Board affirmed Savatt‟s decision to deny the request for a "Certificate of Occupancy."

ECF No. 40-3 at 17. Although Mr. and Mrs. McKivitz had not filed a formal request for a variance, the Board treated their appeal as an implicit request for a variance and proceeded to deny it. Id. at 18, 19-22. In denying the implicit request for a variance, the Board noted that counsel for Mr. and Mrs. McKivitz had argued at the hearing that the residents of the facility were "disabled or handicapped," and that they needed the "reasonable accommodation" of a "three-quarter house" in order to live in an R-1 district. Id. at 20. The Board determined that the facility, as used by Mr. and Mrs. McKivitz, constituted a "group residence," which was defined as follows:

A facility located in a residential area, which provides room, board and specialized services to six or fewer unrelated persons, such as children (under 18 years), handicapped or elderly (over 60 years) individuals. The individuals must be living together as a single housekeeping unit with one or more adults providing qualified, 24-hour supervision. The group residence may be operated by a governmental agent, certified agent or nonprofit corporation. This category shall not include facilities operated by or under the jurisdiction of any governmental bureau of corrections or similar institution.

ECF No. 40-1 at 6-7; Doc. No. 40-3 at 20-22. According to the Board, a group residence could be permitted as a "conditional use" in an R-2 district, but not in an R-1 district. Id. The Board denied the request for a variance after finding that Mr. and Mrs. McKivitz had not satisfied the criteria for obtaining a variance under the applicable zoning ordinance.*fn5 Id.

On March 24, 2008, Mr. and Mrs. McKivitz appealed the Board‟s decision to the Court of Common Pleas of Allegheny County, Pennsylvania. ECF No. 1 at ¶ 58; ECF No. 40-3 at 23-34. They commenced this action against Stowe Township, the Board and Savatt on September 8, 2008, alleging violations of the Fair Housing Act of 1968 ("FHA") [42 U.S.C. § 3601 et seq.], the Rehabilitation Act of 1973 [29 U.S.C. § 701 et seq.], the Americans with Disabilities Act of 1990 ("ADA") [42 U.S.C. § 12101 et seq.], the Equal Protection and Due Process Clauses of the

Fourteenth Amendment to the United States Constitution, and Article 1, § 26, of the Pennsylvania Constitution.*fn6 ECF No. 1 at ¶¶ 80-105. On June 21, 2010, Mr. and Mrs. McKivitz filed a motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56. ECF No. 28. Stowe Township and Savatt filed a motion for summary judgment four days later. ECF No. 38. A separate motion for summary judgment was filed by the Board. ECF Nos. 41 & 44. These motions are the subject of this memorandum opinion.

III. Standard of Review

Summary judgment may only be granted where the moving party shows that there is no genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. FED. R. CIV. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the Court must enter summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party‟s case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In evaluating the evidence, the Court must interpret the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Township, 478 F.3d 144, 147 (3d Cir. 2007). The burden is initially on the moving party to demonstrate that the evidence contained in the record does not create a genuine issue of material fact. Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). A dispute is "genuine" if the evidence is such that a reasonable trier of fact could return a verdict for the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Where the non-moving party will bear the burden of proof at trial, the moving party may meet its burden by showing that the admissible evidence contained in the record would be insufficient to carry the non-moving party‟s burden of proof. Celotex Corp., 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond his or her pleadings and designate specific facts by the use of affidavits, depositions, admissions or answers to interrogatories in order to show that there is a genuine issue of material fact for trial. Id. at 324. The non-moving party cannot defeat a well-supported motion for summary judgment by simply reasserting unsupported factual allegations contained in his or her pleadings. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).

IV. Discussion

A. The Statutory Claims

The Plaintiffs‟ statutory claims arise under the FHA, the Rehabilitation Act and the ADA. ECF No. 1 at ¶¶ 80-96. The FHA, as originally enacted in 1968, prohibited discrimination in the sale or rental of housing against an individual because of his or her race, color, religion or national origin. Pub. L. No. 90-284, § 804; 82 Stat. 73, 83 (1968). Congress amended the FHA in 1974 to prohibit similar forms of discrimination against an individual because of his or her sex. Pub. L. No. 93-383, § 808; 88 Stat. 633, 729 (1974). Section 6 of the Fair Housing Amendments Act of 1988 ("FHAA") amended the FHA to add subsection (f) to 42 U.S.C. § 3604. Pub. L. No. 100-430, § 6; 102 Stat. 1619, 1620-1621 (1988). The relevant provisions of that subsection provide: 3604. Discrimination in the sale or rental of housing and other prohibited practices.

As made applicable by section 803 [42 U.S.C. § 3603] and except as exempted by sections 803(b) and 807 [42 U.S.C. §§ 3603(b), 3607], it shall be unlawful (f)(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of (A) that buyer or renter[;] (B) a person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or (C) any person associated with that person.

***

(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of (A) that person; or (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that person.

(3) For purposes of this subsection, discrimination includes (B) a refusal to make reasonable accommodations in 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).*fn7 The FHA‟s preemption provision, which is codified at 42 U.S.C. § 3615, provides that "any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under [the FHA] shall to that extent be invalid."*fn8 42 U.S.C. § 3615.

Section 504 of the Rehabilitation Act provides, in pertinent part, that "[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C. § 794(a). The term "program or activity" includes all operations of "a department, agency, special purpose district, or other instrumentality of a State or of a local government . . . ." 29 U.S.C. § 794(b)(1)(A). In a letter to the Plaintiffs‟ counsel dated June 9, 2010, Stowe Township‟s solicitor stated that Stowe Township had received federal financial assistance in 2007 and 2008. ECF No. 50-4 at 10. The Rehabilitation Act requires recipients of federal funding to reasonably accommodate the needs of disabled individuals to the extent necessary to enable such individuals to enjoy the benefits of the relevant "program or activity." Chedwick v. UPMC, 619 F.Supp.2d 172, 185-187 (W.D.Pa. 2007).

Title II of the ADA provides, in pertinent part, that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The term "public entity" includes "any State or local government," as well as "any department, agency, special purpose district, or other instrumentality of a State or States or local government . . . ." 42 U.S.C. § 12131(1)(A)-(B). The term "qualified individual with a disability" is defined as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the ...


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