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Abraham Atiyeh v. Board of Commissioners of the Township of Bethlehem

April 5, 2012

ABRAHAM ATIYEH, APPELLANT
v.
BOARD OF COMMISSIONERS OF THE TOWNSHIP OF BETHLEHEM



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Submitted: March 12, 2012

BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

Abraham Atiyeh (Appellant) appeals from the January 11, 2011, order of the Court of Common Pleas of Northampton County (trial court), which sustained the decision of the Board of Commissioners (Board) of Bethlehem Township (Township) denying Appellant‟s curative amendment and finding that the Bethlehem Township Zoning Ordinance (Ordinance) is not de jure exclusionary. We reverse.

On February 6, 2009, Appellant filed with the Board a substantive challenge to the validity of the Ordinance, together with a proposed curative amendment pursuant to Section 609.1 of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §10609.1.*fn1 Appellant brought the challenge as the equitable owner of property located at 4255 Fritch Drive (Property) in the General Industrial (GI) zoning district in the Township.*fn2 The surrounding properties‟ uses vary from office to industrial, including an automotive garage, a warehouse and a medical office. (Board‟s Findings of Fact, Nos. 1, 3-4 and 12.)

Appellant alleged in the challenge that the Ordinance was and is de jure exclusionary and unconstitutional because it fails to permit the use of any land in the Township as a prison. (Board‟s Findings of Fact, No. 4.)

The Board held public hearings on Appellant‟s challenge. Appellant offered the testimony of David Martin (Martin), a registered professional engineer. Martin testified that it was feasible to develop a prison on the Property. Martin further testified regarding the plans he prepared for a prison on the Property. (Board‟s Findings of Fact, Nos. 13-14.)

Appellant also offered the testimony of Olev Taremae (Taremae), Chief Planner with the Lehigh Valley Planning Commission (Commission). Taremae confirmed the position of the Commission that the Ordinance does not provide for a prison as a permitted use anywhere in the Township. (Board‟s Findings of Fact, No. 26.)

The Township offered the testimony of Frances Rosato (Rosato), an attorney and former deputy warden for the New York City Department of Corrections. In support thereof, Rosato testified to the effect that treatment centers, which are permitted uses under the ordinance, are a type of prison despite the fact that the definition of treatment center specifically excludes prisons.*fn3 (Board‟s Findings of Fact, No. 52.) A "treatment center" is defined in section 202 of the Ordinance as:

A use (other than a prison or a permitted accessory use in a "hospital") providing housing facilities for persons who need specialized housing, treatment and/or counseling because of:

A. criminal rehabilitation, such as a criminal halfway house or a treatment/housing center for persons convicted of driving under the influence of alcohol,

B. addiction to alcohol or a controlled substance, or

C. a type of mental illness, criminal history or other behavior that has caused or could reasonably be expected to cause a person to be a threat to the physical safety of others.

(Ordinance at 2-24; R.R. at 324a.) Rosato determined that subsection A of the definition of "treatment center" describes a prison; subsection B of the definition does not describe a prison but involves the voluntary admission to a drug and alcohol treatment center; and subsection C "might include being housed in a prison where a prison does provide for those who are ...


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