SUNLIGHT OF THE SPIRIT HOUSE, INC. et al v. BOROUGH OF NORTH WALES, PENNSYLVANIA et al

Filing 57

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 1/15/2019. 1/16/2019 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SUNLIGHT OF THE SPIRIT HOUSE,
INC., ET AL.,
Plaintiffs,
v.
BOROUGH OF NORTH WALES,
PENNSYLVANIA, ET AL.,
Defendants.

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CIVIL ACTION

No. 16-cv-909

Goldberg, J.

January 15, 2019
Memorandum Opinion

Plaintiffs, Sunlight of the Spirit House, Inc. (“SOS House”) and Matthew Bartlet, bring
this civil action against Defendants, Borough of North Wales (the “Borough”) and the Zoning
Hearing Board of North Wales (the “ZHB”). Plaintiffs allege that Defendants violated the Fair
Housing Act, 42 U.S.C. § 3604 (the “FHA”) and the Americans with Disabilities Act, 42 U.S.C.
§ 12132 (the “ADA”) by denying them a reasonable accommodation that would permit more than
three unrelated individual residents to live together. Specifically, Plaintiffs assert that Defendants’
denial was discriminatory and improperly based upon the residents’ disabilities of drug addiction
and alcoholism.
Both parties have moved for summary judgment. After careful review of the record, I
conclude that this case will have to be resolved by a factfinder, and for the reasons stated below, I
will deny all dispositive motions.

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I.

PROCEDURAL BACKGROUND
Plaintiffs filed their Complaint on February 25, 2016, alleging that Defendants violated the

FHA (Count One) and the ADA (Count Two). Plaintiffs’ lawsuit stems from an application to the
ZHB, requesting a special exception to the Zoning Ordinance that would allow Plaintiffs to open
a “sober housing” facility for persons in recovery from alcoholism and drug addiction. Plaintiffs
allege that, as part of this application process, Defendants engaged in discrimination in voting
against the special exception by failing to discount the impermissible prejudices of the neighbors’
opposition, and were instead influenced by those prejudices.

Plaintiffs further claim that

Defendants failed to consider the request for a reasonable accommodation for the SOS House
Residents to be treated as a family under the Zoning Ordinance, and that Defendants provided
pretextual reasons for the denial.
II.

FACTUAL BACKGROUND
Unless otherwise indicated, the following facts are undisputed:
A. The Parties
1.

The Plaintiff, SOS House, is registered as a Pennsylvania nonprofit corporation in
Lansdale, Pennsylvania. The mission of SOS House is to “provide safe and sober
housing for persons in recovery from alcoholism and drug addiction.” (Compl. ¶ 3.)

2.

Plaintiff Matthew Bartlet is the 50% owner and president of SOS House. (Bartlet
Dep. 10/12/17 at 10:15–17, ECF No. 42 Ex. B; N.T. 9/1/15 at 87:1–89:2, ECF No.
42, Ex. D.)

3.

Matthew Douglas, who is not a party to this lawsuit, owns the other 50% of SOS
House and serves as the vice president and treasurer. (Douglas Dep. 10/12/17 at
31:22–32:1, ECF No. 42 Ex. C; N.T. 10/6/15 at 11:25–12:3, ECF No. 42, Ex. H.)

4.

Initially, on August 4, 2014, SOS House was formed by Mr. Bartlet and Mr. Douglas
as a for-profit limited liability company. (Douglas Dep. 10/12/17 at 22:10–18, 27:1–
6, ECF No. 42 Ex. C; N.T. 9/1/15 at 99:1–7, ECF No. 42, Ex. D.) In July of 2015,
based on the advice of their attorney, Mr. Bartlet and Mr. Douglas changed SOS
House from a limited liability company to a corporation under Pennsylvania state
law. On August 5, 2015, the Commonwealth of Pennsylvania accepted SOS House
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as a nonprofit corporation for Pennsylvania state law purposes. While SOS House
is a nonprofit corporation, it has not sought tax exempt status from the Internal
Revenue Service under Internal Revenue Ordinance § 501(c)(3). (N.T. 9/1/15 at
67:13–68:19, 86:17–88:23, ECF No. 42, Ex. D.)
5.

Defendant Borough is a Pennsylvania municipal corporation. The Defendant ZHB
is responsible for interpreting the Borough’s Zoning Ordinance. (Compl. ¶¶ 5–6.)

6.

The relevant property is located at 500 E. Montgomery Avenue, North Wales,
Pennsylvania (the “Property”), which is located within the Borough. The Property
is a half of a twin home structure that shares a wall with the remaining half of the
structure. The Property is a five bedroom, two bathroom home. (Douglas Dep.
10/12/17 at 18:5–10, ECF No. 42 Ex. C; N.T. 9/1/15 at 21:1–5, 48:2–22, 57:4–58:14,
65:8–67:10, ECF No. 42, Ex. D.)

7.

Mr. Bartlet purchased the Property on May 14, 2015 and spent approximately
$65,000 in renovations because “it wasn’t able to be lived in . . . it was completely
destroyed.” (N.T. 9/1/15 at 18:21–19:15, 20:15–22:16, ECF No. 42, Ex. D.)

8.

On August 5, 2015, Mr. Bartlet and SOS House entered into a lease agreement,
wherein Mr. Bartlet was the landlord and SOS House was the tenant. (N.T. 9/1/15
at 18:21–21:24, ECF No. 42, Ex. D; Lease Agreement §§ 21.C–21.J, ECF No. 42,
Ex. G.)

B. The Zoning Ordinance
9.

The Borough’s Zoning Ordinance divides the Borough into fourteen different types
of zoning districts. The Property is located in the “R-C Residential” zoning district
on a street that is restricted to permit parking. (Borough of North Wales Ordinance
No. 796 § 208-9, ECF No. 42 Ex. F; Douglas Dep. 10/12/17 at 18:5–10, 117:1–4,
ECF No. 42 Ex. C; N.T. 9/1/15 at 52:16–25, ECF No. 42, Ex. D; Borough of North
Wales Ordinance No. 607 § 42(c), ECF No. 42 Ex. O.)

10. The R-C Residential District is limited to dwellings for families. (Borough of North
Wales Ordinance No. 796 §§ 208-46, 208-47, ECF No. 42 Ex. F.) The Zoning
Ordinance defines a “family” as follows:
A. The definition of family includes:
***
(4) A greater number of three unrelated persons, occupying a
dwelling unit as a family, provided the Zoning Hearing Board
shall grant a special exception after ascertaining that the
dwelling unit has adequate off-street parking facilities, living
space, indoor plumbing, and operating as a single, nonprofit
and non-transient housekeeping unit and facilities to do their
cooking on the premises which constitute a functional family
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equivalent and complying with the requirements of the
Uniform Construction Ordinance.
B. The definition of family shall not include activities that
require treatment regularly performed on the premises and
shall not include uses which meet the definition of
“boardinghouse,” “dormitory,” “motel” or “hotel,” or
“treatment center.” This definition shall not include housing
persons released from or under the jurisdiction of a government
Bureau of Corrections or similar institution. (Borough of
North Wales Ordinance No. 796 § 208-8, ECF No. 42 Ex. F.)
11. The Zoning Ordinance defines “functional family equivalent” as “[p]ersons living
and cooking together as a single, nonprofit and non-transient housekeeping unit and
having facilities to do their cooking on the premises.” (Borough of North Wales
Ordinance No. 796 § 208-8, ECF No. 42 Ex. F.)
12. The Zoning Ordinance defines “special exception” as:
A use which may be granted or denied pursuant to express
standards or criteria by the Zoning Hearing Board in
accordance with Article XXII hereof where provisions
therefore are made by the terms of this chapter. In granting a
special exception, the Zoning Hearing Board may attach such
reasonable conditions and safeguards as it may deem necessary
to implement the purposes of this chapter. (Borough of North
Wales Ordinance No. 796 § 208-8, ECF No. 42 Ex. F.)
13. The Zoning Ordinance does not define the terms “nonprofit” or “transient.”
(Borough of North Wales Ordinance No. 796 § 208-8, ECF No. 42 Ex. F.)
C. The Application for a Special Exception
14. Sometime in May of 2015, Mr. Bartlet applied for, and was granted, a certificate of
occupancy for “up to three unrelated persons” from the Borough. The certificate of
occupancy did not provide permission to operate a recovery house. (Douglas Dep.
10/12/17 at 100:4–21, ECF No. 42 Ex. C; N.T. 9/1/15 at 128:18–21, ECF No. 42,
Ex. D; Borough Certificate of Occupancy 5/28/15, ECF No. 42, Ex. Q.)
15. Mr. Douglas informed the Borough that SOS House was intended to be used as a
home for people recovering from addiction, and specified that the number of
residents was to be between three and ten men. With this knowledge, the Borough
provided a certificate of occupancy for three unrelated individuals, and advised that
SOS House would have to apply for a special exception to house more than three
unrelated individuals. (Bartlet Dep. 10/12/17 at 32:2–36:17, ECF No. 42 Ex. B;

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Douglas Dep. 10/12/17 at 100:4–21, ECF No. 42 Ex. C; N.T. 9/1/15 at 32:2–34:9,
ECF No. 42, Ex. D; Borough Letter 5/20/15, ECF No. 42, Ex. U.)
16. On July 31, 2015, SOS House’s attorney, Edward Hughes submitted an application
to the ZHB on behalf of SOS House for a special exception as to the definition of a
family to permit occupancy of up to ten residents. (ZHB Application 7/31/15, ECF
No. 42, Ex. E.)
17. During a Borough Council Meeting on August 11, 2015, Borough Member Hart
advised that the hearing was scheduled for September 1, 2015 to rule on SOS
House’s application for a special exception. (Borough Council Meeting Minutes
8/11/15 at 2, ECF No. 45, Ex. 12.)
18. During the Borough Council Meeting on August 25, 2015, Borough Member Hart
again advised that the hearing was scheduled for September 1, 2015. Mel Magee,
the neighbor owning the other half of the twin home, advised that SOS House posted
information about the Property, which stated that the Property was empty. However,
Ms. Magee advised that the Property was currently occupied. Another neighbor
expressed concerns about having ten people live in one house. (Borough Council
Meeting Minutes 8/25/15 at 2, ECF No. 45, Ex. 13.)
19. Mr. Daniel O’Connell, Sr. was a member of the Borough Council for various terms
between 1984 and 2016. (O’Connell Dep. 2/16/18 at 6:18–10:8, ECF No. 42, Ex.
L.) During the Borough Council Meeting on August 11, 2015, the SOS House
Application was discussed, wherein Mr. O’Connell recommended that the Borough
Solicitor should attend the ZHB Hearing. (Id. at 34:4–36:19.) During this meeting,
the Borough voted to oppose SOS House’s application, based on the concern about
the number of residents, “what would be going on in the house,” and whether the
house was legally occupied. (Id. at 36:20–40:8.) Mr. O’Connell recalled that there
were public objections during this Borough Council meeting. (Id. at 39:11–40:8.)
20. Mayor Gregory D’Angelo was the Mayor of the Borough at all relevant times, and
explained in his deposition that the Borough Council opposed Plaintiffs’ Application
because of concerns that Plaintiffs could not satisfy the requirements of a family,
particularly the “non-transient” requirement. (D’Angelo Dep. 2/16/18 at 15:18–
16:7, ECF No. 42, Ex. M.)
21. During his deposition, Mr. James Sando testified that he was a Borough Council
member at all relevant times, and had been interviewed by the newspapers in June
of 2015 about neighbor concerns regarding the SOS House’s Application for a
Special Exception. (Sando Dep. 2/16/18 at 6:12–7:13, 9:19–11:11, ECF No. 45, Ex.
6.) He also confirmed that the Borough had hired special counsel so that someone
would be familiar with this specific zoning issue. (Id. at 15:15-16:15.)

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D. The ZHB Hearings on September 1, 2015 and October 6, 2015
22. On September 1, 2015, the ZHB held a hearing regarding SOS House’s Application
for a Special Exception. Due to the length of the hearing, it was continued on
October 6, 2015. (N.T. 9/1/15 at 209:1–7, ECF No. 42, Ex. D; N.T. 10/6/15, ECF
No. 42, Ex. H.)
23. The Borough Solicitor stated during the September 1, 2015 Hearing that all
applications for zoning relief are treated separately and that no ZHB decision has
precedential value. (N.T. 10/6/15 at 168:11–25, ECF No. 42, Ex. H.)
24. During the September 1, 2015 Hearing, Mr. Bartlet explained to the ZHB that he
was the landlord of the Property and rented the Property to SOS House. Mr. Bartlet
provided the ZHB with a copy of the lease, which was unsigned, did not have an
amount listed in the monthly rent provision, and included irrelevant provisions
regarding auto body work and spray work. When the ZHB questioned Mr. Bartlet
about these matters, he explained that this lease was copied from a previously used
and unrelated lease. He advised that there would be some modifications to the lease,
but these changes would not be “substantial.” Mr. Bartlet explained that the monthly
rent amount was blank because it had not yet been determined. (N.T. 9/1/15 at
18:21–21:24, 62:1–64:25, 115:13–25, ECF No. 42, Ex. D; Lease Agreement, ECF
No. 42, Ex. G.) During the October 6, 2015 Hearing, Plaintiffs provided the ZHB
with the revised signed lease, which stated that the monthly rent was $2,200 and
contained revised home rules that the residents would be required to follow. (N.T.
10/6/15 at 9:11–25, ECF No. 42, Ex. H.)
25. Mr. Bartlet advised the ZHB during the September 1, 2015 Hearing that SOS House
was seeking a special exception to permit ten people to live in the Property, which
he argued was a reasonable accommodation because the individuals needed such
support and a greater sense of community. (N.T. 9/1/15 at 30:5–7, 69:6–24, ECF
No. 42, Ex. D.)
26. During the September 1, 2015 and October 6, 2015 Hearings, Mr. Bartlet advised
that SOS House did not have liability insurance at the time of the September 1, 2015
Hearing, but that they were in the process of obtaining such insurance. Mr. Douglas
testified that SOS House did not have liability insurance because they needed to be
at full capacity to afford it. However, Mr. Douglas admitted that he had not looked
into the cost of liability insurance. (N.T. 9/1/15 at 117:5–119:19, 130:14–134:24,
34:10–36:25, ECF No. 42, Ex. D; N.T. 10/6/15 at 16:9–18:7, ECF No. 42, Ex. H.)
27. During the ZHB Hearings, the topic of whether it was “necessary” for SOS House
to have ten residents was discussed extensively.
− When the ZHB members asked Mr. Bartlet and Mr. Douglas if SOS House
needed ten people to provide the necessary support, Mr. Bartlet and Mr.
Douglas advised that based on their knowledge and experience a lower
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number was not practical. (N.T. 9/1/15 at 152:20–25, ECF No. 42, Ex. D.)
While Mr. Bartlet did not have professional qualifications to support this
position, he argued that he had the practical experience to run this home
because he had lived in a recovery home as a recovering addict. (N.T.
9/1/15 at 74:7–76:10, ECF No. 42, Ex. D.)
− Mr. Douglas testified at the hearing that they were breaking even on the
property with three residents living there. (N.T. 10/6/15 at 18:5–10, ECF
No. 42, Ex. H.)
− Ms. Nina Aniskevich testified during the October 6, 2015 Hearing as an
expert in the benefits of sober homes and the referral/placement process.
She opined that sober homes were critical for recovery and that a sober
house needed at least eight people to be successful. (N.T. 10/6/15 at 41:23–
25, 69:14–17, ECF No. 42, Ex. H.)
− Several residents of SOS House stated that the home was critical to their
recovery, and commented on the importance of having a community
environment. (N.T. 10/6/15 at 93:3–95:6, ECF No. 42, Ex. H; Aff. John
Ciminelli, ECF No. 45, Ex. 8; Aff. John Founds, ECF No. 45, Ex. 9; Aff.
Fred Way, ECF No. 45, Ex. 10.)
− Mr. Robert Bedford testified at the October 6, 2015 Hearing as an expert in
the area of the effectiveness and benefits of sober houses. (N.T. 10/6/15 at
126:4–130:13, ECF No. 42, Ex. H.) Specifically, Mr. Bedford described
the benefits of the sober home, specifically the benefit of living in a
community/family environment, which he opined is “optimal” with seven
to ten people. (Id. at 130:17–25, 134:8–135:8.) Mr. Bedford also explained
that the average stay is between eight to ten months, sometimes up to a year
and a half. (Id. at 132:1–23.) Mr. Bedford also explained that SOS House
was seeking accreditation from the Pennsylvania Alliance of Recovery
Residences (“PARR”), which is an accreditation organization that ensures
compliance of standards for recovery houses: “It’s probably the top
accreditation you can get in the United States currently.” (Id. at 132:24–
134:7.) Mr. Bedford also stated that drug and alcohol abuse is recognized
as a disability under federal law. (Id. at 135:9–20.)
− Some residents spoke in favor of the special exception. (N.T. 10/6/15 at
169:1–170:21, ECF No. 42, Ex. H.)
28. During the Hearings, the issue of whether there was sufficient living space in the
Property for ten adult males was also raised.
− The ZHB members expressed concerns that the size of the home would not
be adequate for ten adult males. (N.T. 9/1/15 at 48:2–22, 57:4–58:14, 65:8–
67:10, ECF No. 42, Ex. D.)
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− Mr. Joseph Zadlo testified during the September 1, 2015 Hearing as an
expert in residential planning. He opined there was adequate living space
in the Property for ten residents. However, he advised that he had not
reviewed the exact room dimensions. (N.T. 9/1/15 at 175:17–25, ECF No.
42, Ex. D.)
− Ms. Nina Aniskevich testified during the October 6, 2015 Hearing as an
expert in the benefits of sober homes and the referral/placement process.
She opined that the home was operating well with three people, and there
was no reason to think it would not work with ten people. Ms. Aniskevich
admitted that she had not seen the property as of the date of the hearing.
(N.T. 10/6/15 at 41:23–25, 60:23–62:21, ECF No. 42, Ex. H.)
− During the October 6, 2015 Hearing, neighbors also raised concerns that ten
residents were too many for the Property. (N.T. 10/6/15 at 169:1–6, ECF
No. 42, Ex. H.)
29. The question of whether there was sufficient parking available was also discussed
during the Hearings.
− The ZHB expressed concerns about adequate parking for ten people. Mr.
Bartlet acknowledged that it was possible that all ten residents could have a
vehicle as it was permitted for all residents to have a vehicle. However, Mr.
Bartlet further explained that it was highly unlikely that all ten individuals
would need parking, given the proximity of the Property to public
transportation. Mr. Bartlet also advised that he could add a limitation to the
rules that would permit only up to two residents to have a car on the
Property. (N.T. 9/1/15 at 117:5–119:19, 130:14–134:24, 34:10–36:25, ECF
No. 42, Ex. D.)
− The neighbor residents also complained about the current lack of parking
on the street. (N.T. 9/1/15 at 165:21–167:21, ECF No. 42, Ex. D.)
− Mr. Joseph Zadlo testified during the Hearing on September 1, 2015 as an
expert in residential planning. He opined that ten additional cars would
strain the neighborhood’s parking. (N.T. 9/1/15 at 190:17–191:3, 199:17–
25, ECF No. 42, Ex. D.)
30. During the ZHB Hearings, the issue of the short amount of time that the residents
would live at the Property (i.e., the “transience” of the residents) was also discussed.
− Mr. Bartlet explained that the residents can live at SOS House for any
duration of time, so long as they abide by the house rules. Mr. Bartlet did
not provide these rules to the ZHB at the Hearings. (N.T. 9/1/15 at 104:25–
105:2, 109:24–111:10, ECF No. 42, Ex. D.)
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− Mr. Douglas explained that the sober home began operating in May of 2015
within the three person limitation. Between May and September 1, 2015,
Mr. Douglas advised that eight different residents had lived in the Property,
due to turnover. (N.T. 9/1/15 at 123:17–125:24, ECF No. 42, Ex. D.)
− Mr. Douglas also admitted that there had been further turnover between
September 1, 2015 and October 6, 2015. (N.T. 10/6/15 at 29:22–25, ECF
No. 42, Ex. H.)
− Ms. Nina Aniskevich testified during the Hearing on October 6, 2015 as an
expert in the benefits of sober homes and the referral/placement process.
She opined that she did not know the average length of stay for residents.
(N.T. 10/6/15 at 41:23–25, 64:25–65:21, ECF No. 42, Ex. H.)
− During the October 6, 2015 Hearing, Mr. Angelo Delgrippo testified as one
of the residents of SOS House and the house manager. He stated that he
had asked five people to leave between June of 2015 to the October 6, 2015
hearing due to a variety of reasons, including failing to do chores and using
drugs or alcohol. (N.T. 10/6/15 at 105:9–112:25, ECF No. 42, Ex. H.)
31. During the Hearings, the ZHB members expressed concern over whether SOS
House was a nonprofit organization, given that Mr. Douglas claimed that he and Mr.
Bartlet were earning “equity” in the Property. It was also unclear whether Mr.
Bartlet and Mr. Douglas were planning to be paid salaries at any point. (N.T. 9/1/15
at 140:25–143:13, ECF No. 42, Ex. D.) The ZHB expressed concerns that Mr.
Bartlet did not have plans for the money after the Property’s mortgage was paid.
(N.T. 10/6/15 at 173:22–174:13, ECF No. 42, Ex. H.)
32. Significant neighbor opposition and concerns were presented during the Hearings.
− The neighbor opposition parties were permitted to speak, so long as the
individual provided the testimony under oath. (N.T. 9/1/15 at 144:7–16,
151:23–152:6, 158:1–25, 166:1–25, ECF No. 42, Ex. D; Kratowicz Dep.
2/16/18 at 43:7–44:3, ECF No. 42. Ex. P; Berenson Dep. 2/16/18 at 41:21–
48:11, ECF No. 42, Ex. N.)
− While one resident attempted to present a petition in opposition to SOS
House’s Application, the ZHB did not accept this petition because the
individuals who had signed the petition would all need to be sworn in,
testify, and be cross-examined. (N.T. 10/6/15 at 187:13–190:19, ECF No.
42, Ex. H.)
− The neighbors expressed concerns regarding the individuals, based on their
alcoholism and drug addiction (i.e., their disability). Specifically, one
neighbor stated: “I do think it’s great what you guys are doing. I just don’t
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want it in the neighborhood.” Another neighbor echoed this sentiment by
stating that Plaintiffs had not established that this type of home was needed
or wanted by this community and neighborhood. (N.T. 10/6/15 at 166:20–
167:15,195:17–199:13 ECF No. 42, Ex. H.)
− Other neighbors expressed concerns about the impact of this type of home
on children’s safety: “If I’m living in a community where halfway houses
are popping up, call me prejudice, call me a jerk, call me a bad person. I
don’t care. I got three young kids. It’s bad enough out there. I’m trying to
find the best damned neighborhood that I can, and I pay good tax dollars to
do that, and I put my kids before anyone.” (Id. at 23:2–28:14, 194:12–
195:9, 184:7–12, 191:7–194:4.)
− Neighbors further expressed concerns on the impact of this type of home on
property values. (Id. 54:19–60:14; 165:5–19.)
E. The November 16, 2015 ZHB Decision and Order
33. At the conclusion of the October 6, 2015 Hearing, the ZHB denied Plaintiffs’
application “on the grounds that it does not meet the burden of proof in 208-191-A,
and specifically, it does not meet the definition in 208-8 family, Subsection A,
Subsection 4, and for the reasons that the use is transient and does not meet the
definition of a not for profit. With respect to 208-191-A, Subsection 2, it’s contrary
to the public interest, in that it’s detrimental to the appropriate use of the adjacent
property, and it causes undue congestion of pedestrian and vehicular traffic.” (N.T.
10/6/15 at 226:21–227:25, ECF No. 42, Ex. H.)
34. On November 16, 2015, the ZHB issued a written “Decision and Order,” wherein
the ZHB found the following:
79. The Zoning Hearing Board finds that the tenants’ stay at
the Property is transient in nature.
80. The Zoning Hearing Board finds that the Applicant did not
meet its burden to prove that it complies with all of the specific
and objective criteria set forth in (4) of the definition of Family,
including that the Applicant has adequate off-street parking
facilities.
81. The Zoning Hearing Board finds that the Applicant did not
meet its burden to prove that it complies with all of the specific
and objective criteria set forth in A(4) of the definition of
Family, including that the Applicant is operating as a single
nonprofit housekeeping unit.

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82. The Zoning Hearing Board finds that the Applicant did not
meet its burden to prove that it complies with all of the specific
and objective criteria set forth in (4) of the definition of Family,
including that the Applicant is operating as a non-transient
housekeeping unit.
83. The Zoning Hearing Board finds that the Applicant did not
meet its burden of proof as required by Section 208-191 of the
Zoning Ordinance as the allowance of the special exception
will be contrary to the public interest.
84. Several of the Neighbor Parties and other North Wales
residents and neighbors of the Property testified as to their
opposition to the Application testifying that the proposed use
was not compatible with the residential neighborhood.
85. The Zoning Hearing Board finds that the Neighbor Parties
opposed to the Applicant met their duty and burden to prove
that the proposed use will be injurious to the public health,
safety and welfare.
86. The Zoning Hearing Board finds that the proposed use will
be detrimental and/or injurious to the adjacent property and the
neighborhood and will cause undue congestion of vehicular
traffic.” (ZHB Order and Decision 11/16/15 ¶¶ 79–86, ECF
No. 45, Ex. 4.)
35. Mr. Andrew Berenson was a ZHB member during the 2015 Hearings. (Berenson
Dep. 2/16/18 at 9:23–15:9, ECF No. 45, Ex. N.) At his deposition, he stated that
there were complaints made during the Hearings and that, because “North Wales is
a small borough, the philosophy of the zoning hearing board is that we’ll let the
residents get their say.” (Id. at 41:21–42:22.)
36. Mr. Berenson also stated during his deposition that he did not remember the specific
line of complaints by the public, other than concerns about traffic and “an issue of
people coming and going for the nature of the sobriety house, whether it was your
applicants who were checking in on them or whether it was any other professionals
who were coming and going.” (Id. at 42:24–46:19.)
37. When asked during his deposition what the ZHB relied upon to make its
determination, Mr. Berenson explained:
I don’t recall specifics because it was over two years ago. I do
recall that – and this is what I relied on – the testimony that the
applicants gave when they testified, any of their people
testifying on their behalf. And I do remember at least there was
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one woman who testified on their behalf. And, also, I relied on
was the exhibits that was presented, as well as public comment.
And public comment could either be questions or testimony
wherein the public was sworn in . . . And that is typically what
I always rely on when I make a determination.” (Berenson
Dep. 2/16/18 at 66:1568:8, ECF No. 45, Ex. N.)
38. When asked during his deposition about the condition that Mr. Bartlet would impose
to limit the number of cars at the property, Mr. Berenson said that the concern was
not just about the residents but the visitors. (Id. at 74:7–75:22.) He also advised
that the Borough can limit visitor parking for a particular household “in some
instances,” such as a business, but explained that he could not recall the exact
requirements of the Zoning Ordinance. (Id. at 75:23–79:1.) Because SOS House
stated that they needed ten residents, “the Board felt that ten was not a reasonable
accommodation.” (Id. at 85:9–86:22.) Mr. Berenson further explained that the ZHB
found that the proposed use would be injurious to the public health, safety, and
welfare because of traffic: “the applicants had testified that there would be people
coming and going. That the residents would still need to have jobs. So they may
still need vehicles.” (Id. at 86:23–88:15.) When asked what specific evidence was
relied upon by the ZHB to determine the traffic issue, Mr. Berenson advised that he
did not recall any specific testimony. (Id. at 88:16–89:22.) Mr. Berenson’s reason
for not considering the accommodation in light of Mr. Bartlet’s acceptance of a
condition to limit the number of cars was: “just because [Mr. Bartlet] said he would
limit the number of cars doesn’t mean he would be able to.” (Id. at 89:19–22.) Mr.
Berenson could not point to any specific facts that the Application posed a public
safety issue except “that the residents and public comment provided opinions[, a]nd
it was [the neighbors’] opinion that if there were 10 people living there, there would
be too many cars.” (Id. at 90:18–93:12.)
39. When Mr. Berenson was asked during his deposition whether the “Board made its
decision based on opinions that were rendered by the public,” he testified that “[t]his
is part of the –as I interpret the burden of proof on the zoning hearing body of our –
of what we consider, we can consider certain factors, and that is one of the factors
that can be considered.” (Id. at 93:14–22.) He also stated that the “transient” nature
of the residents was a factor. (Id. at 96:10–19.)
40. Mr. Michael Kratowicz was a ZHB member when SOS House applied for the special
exception. (Kratowicz Dep. 2/16/18 at 7:15–23, ECF No. 42, Ex. P.) He explained
during his deposition that there was discussion of a reasonable accommodation. (Id.
at 15:3–21.) He further explained that the ZHB had never considered a special
exception to waive the number of unrelated persons, or family equivalent, or groups
of disabled persons. (Id. at 19:5–24.) He recalled only one other time when the
Borough had hired counsel for a proceeding, which was when a developer wanted
to build a hotel across the street from a SEPTA station. (Id. at 22:8–23:1.)

12

41. During his deposition, Mr. Kratowicz also testified that his job as Chairman was to
ensure that the hearings proceeded efficiently, and to permit everyone to have the
opportunity to speak. (Id. at 30:15–31:10.) He stated that one of the reasons for
denying the application was because of the parking concern,. He explained that Mr.
Bartlet’s offer to limit the amount of cars was not sufficient because Mr. Kratowicz
was “not so sure how he could agree or guarantee that there were only four cars
within the property.” (Id. at 37:8–41:24.) Mr. Kratowicz stated that he did not rely
on the statements of the audience regarding the parking, but could not speak for the
other ZHB members. (Id. at 43:9–44:2.) He also explained that there were opposing
opinions by the neighbors, but that he could not remember the specific facts. When
pushed on this question, he explained that the opposition revolved around the
parking concerns and that the “transience” would cause too much stress on the
community. (Id. at 55:21–63:11.)
F. The January 26, 2016 Notice and Subsequent Discovery
42. On January 26, 2016, the Borough sent a letter to Plaintiffs to alert them that they
had violated the Zoning Ordinance because they had more than three individuals
occupying the residence. (Violation Letter 1/26/16, ECF No. 42, Ex. V.)
43. Defendants conducted a parking study in March of 2018, which concluded that,
given the proposal for a home with ten adults within the facility, “[t]he intensity
for trip generation and parking demand is likely to exceed that predicated in this
analysis.” (North Wales Parking Study 3/13/18 at 5, ECF No. 42, Ex. R.)
44. Dr. William Santoro, an expert in drug and alcohol addiction, stated that a sober
house can operate with three people, but five to eight residents is optimal, as a
home with too many residents can cause factions. (Santoro FRCP 26 Statement
3/13/15 at 1–2, ECF No. 42, Ex. S.)
45. Mr. Brian Duffy submitted a Rule 26 Statement, concluding that SOS House was
a for-profit entity that afforded financial benefits to its officers in a way that was
inconsistent with the restrictions of a nonprofit corporation in Pennsylvania.
(Duffy FRCP 26 Statement 3/13/15 at 11, ECF No. 42, Ex. T.)
46. Mr. Fred Way, the executive director of PARR., explained in his Affidavit that
SOS House was PARR certified on April 10, 2017. Additionally, Mr. Way
explained that PARR does not certify houses that are overcrowded. Mr. Way
further explained that the smallest certified house is four residents, and the
average is between twelve to eighteen. However, Mr. Way opined that the
optimal benefit is realized with homes that have between eight and twelve
residents. (Aff. Way 5/21/18 ¶¶ 7, 10, 13, 15, ECF No. 45, Ex. 11.)

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III.

LEGAL STANDARDS

A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” A dispute is “genuine” if there is a sufficient evidentiary basis on which a
reasonable factfinder could return a verdict for the non-moving party, and a factual dispute is
“material” if it might affect the outcome of the case under governing law. Kaucher v. Cnty. of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). The court must view the evidence in the light most favorable to the non-moving
party. Galena v. Leone, 638 F.3d 186, 196 (3d Cir. 2011). However, “unsupported assertions,
conclusory allegations or mere suspicions” are insufficient to overcome a motion for summary
judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F. Supp. 2d 490, 493 (E.D. Pa. 2010)
(citing Williams v. Borough of W. Chester, Pa., 891 F.2d 458, 461 (3d Cir. 1989)).
The movant “always bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the
moving party’s initial Celotex burden can be met by showing that the non-moving party has
“fail[ed] to make a showing sufficient to establish the existence of an element essential to that
party’s case.” Id. at 322.
After the moving party has met its initial burden, summary judgment is appropriate if the
non-moving party fails to rebut the moving party’s claim by “citing to particular parts of materials
in the record, including depositions, documents, electronically stored information, affidavits or

14

declarations, stipulations . . . , admissions, interrogatory answers, or other materials” that show a
genuine issue of material fact or by “showing that the materials cited do not establish the absence
or presence of a genuine dispute.” FED. R. CIV. P. 56(c)(1)(A).
B. General Legal Standards of Discrimination Under the FHA and ADA
The FHA prohibits discrimination in the sale or rental of housing on the basis of race, color,
religion, sex, disability,1 familial status, or national origin. 42 U.S.C. § 3604(f)(2); Revock v.
Cowpet Bay W. Condo. Ass'n, 853 F.3d 96, 110 (3d Cir. 2017).2 The FHA defines a “handicap”
as: “(1) a physical or mental impairment which substantially limits one or more of such person's
major life activities, (2) a record of having such an impairment, or (3) being regarded as having
such an impairment, but such term does not include current, illegal use of or addiction to a
controlled substance.” 42 U.S.C. § 3206(h); Cmty. Servs., Inc. v. Wind Gap Mun. Auth., 421 F.3d
170, 179 (3d Cir. 2005).
Drug addiction and alcoholism are both recognized as potential handicaps under the FHA
where the addiction substantially limits a major life activity. The pertinent FHA regulations clarify
that “[t]he term physical or mental impairment includes, but is not limited to, . . . drug addiction

Though the FHA uses the term “handicap,” I will use the term “disability” throughout this
opinion for sake of consistency with my analysis of Plaintiffs’ ADA claim. There is no substantive
difference between the two terms. See McKivitz v. Township of Stowe, 769 F.Supp.2d 803, 821
(W.D. Pa. 2010) (“Courts generally consider individuals deemed to be ‘handicapped’ within the
meaning under the FHA to likewise be ‘disabled’ within the meaning of the [] ADA.”)
1

As for Plaintiffs’ claim under the ADA, Title II of that statute, which prohibits
discrimination by public entities on the basis of disability, also applies to zoning decisions, and
places upon governments an affirmative duty to make accommodations in order to afford
disabled persons with the same housing opportunities as the non-disabled, so long as those
accommodations are reasonable and do not place an undue financial or administrative burden on
the municipality or require a fundamental alteration in the nature of the program. Tsombanidis
v. City of West Haven, 129 F.Supp.2d 262, 291-92 (D. Conn. 2001). Being that these
requirements are essentially the same as the FHA reasonable accommodations standard, I will
discuss Plaintiffs’ FHA and ADA reasonable accommodations claim together.
2

15

(other than addiction caused by current, illegal use of a controlled substance) and alcoholism.” 24
C.F.R. § 100.201. “Recovering alcoholics and drug addicts can sometimes qualify as handicapped
individuals under the FHA, provided that they are not currently using illegal drugs.” McKivitz v.
Twp. of Stowe, 769 F. Supp. 2d 803, 823 (W.D. Pa. 2010) (quoting Lakeside Resort Enterprises,
LP v. Bd. of Sup’rs of Palmyra Twp., 455 F.3d 154, 156 n.5 (3d Cir. 2006)); Oxford Investments,
L.P. v. City of Philadelphia, 21 F. Supp. 3d 442, 454 (E.D. Pa. 2014).
“[D]iscrimination includes . . . 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.” McKivitz, 769 F. Supp. 2d at 823 (quoting 42
U.S.C. § 3604(f)(3)(B)). Statutory claims brought against zoning authorities under the FHA and
the Americans with Disabilities Act may proceed under the “intentional discrimination,”
“disparate impact” or “reasonable accommodation” theories. Id. Plaintiffs allege violations
pursuant to the “intentional discrimination” and “reasonable accommodation” theories.
IV.

DISCUSSION AND ANALYSIS
Both Plaintiffs and Defendants move for summary judgment as to the Intentional

Discrimination Claim (Count One) and the Reasonable Accommodation Claim (Count Two). For
the reasons discussed below, I conclude that genuine issues of material fact exist as to both claims.
A. The Intentional Discrimination Claim
Both parties urge that the undisputed facts justify judgment as matter of law in their favor.
Plaintiffs argue that the ZHB and the Borough had a duty to put aside the impermissible prejudices
of those in opposition to Plaintiffs’ Application for a Special Exception, and that the undisputed
facts reflect that Defendants were instead influenced by these prejudices. Defendants respond that
Plaintiffs’ Application was denied for legitimate, non-discriminatory reasons because Plaintiffs

16

failed to establish that they complied with the specific and objective criteria in the Zoning
Ordinance, including that SOS House had adequate off-street parking facilities, was a nonprofit
housekeeping unit, and was a non-transient unit. Defendants also point out that the Neighbor
Parties opposed to the Applicant met their duty to prove that the use would be injurious to the
public health, safety, and welfare, and that the proposed use was injurious to the neighborhood and
would cause undue congestion of vehicular traffic.
To prevail on an intentional discrimination claim under the FHA, a plaintiff is required
only to show that the disability was a “motivating factor” in the adverse decision. Cmty. Servs.,
Inc. v. Wind Gap Mun. Auth., 421 F.3d 170, 177 (3d Cir. 2005). “In order to prove intentional
discrimination it is not necessary to show an evil or hostile motive. It is a violation of the FHA to
discriminate even if the motive was benign or paternalistic.”

Id. (quoting Horizon House

Developmental Servs., Inc. v. Twp. of Upper Southampton, 804 F. Supp. 683, 696 (E.D. Pa. 1992),
aff’d, 995 F.2d 217 (3d Cir. 1993)). “The plaintiff is only required to ‘show that a protected
characteristic played a role in the defendant's decision to treat her differently.’” Id. (citing Cmty.
Hous. Tr. v. Dep't of Consumer & Regulatory Affairs, 257 F. Supp. 2d 208, 225 (D.D.C. 2003)).
A plaintiff may demonstrate a violation of the FHA if he can show that “discriminatory
governmental actions are taken in response to significant community bias.” Tsombanidis v. City
of West Haven, Conn., 129 F.Supp.2d 136, 152 (D. Conn. 2001).
“[A] decision made in the context of strong, discriminatory opposition becomes tainted
with discriminatory intent even if the decision-makers personally have no strong views on the
matter.” Innovative Health, 117 F.3d at 49. “Discriminatory intent may be established where
animus towards a protected group is a significant factor in the community opposition to which the
commissioners are responding.” United States v. Borough of Audubon, N.J., 797 F. Supp. 353,

17

361 (D.N.J. 1991), aff’d, 968 F.2d 14 (3d Cir. 1992) (finding that there was intentional
discrimination where the “officials stated that they agreed with or were responding directly to
community opposition which was clearly discriminatory”).
Both parties point to facts of record which they urge justify the grant of their motion as to
the intentional discrimination claim. But, as set forth below, the record contains facts favorable to
both sides which, if accepted by a factfinder, could justify a verdict for either party.
Plaintiffs’ Evidence
The following facts, if accepted, could allow a reasonable factfinder to find that the
application’s denial was discriminatory: First, there was significant opposition to the Application
based on the residents’ disability (i.e., alcohol and drug addiction). For example, one neighbor
stated: “I do think it’s great what you guys are doing. I just don’t want it in the neighborhood.”
Another neighbor echoed the sentiment as it related to his children: “If I’m living in a community
where halfway houses are popping up, call me prejudice, call me a jerk, call me a bad person. I
don’t care. I got three young kids. It’s bad enough out there.” (See supra ¶ 32.)
Second, the Decision and Order issued by the ZHB provided several reasons for denying
the Application, some of which could be viewed by a factfinder as improper. For example, one of
the stated reasons for the denial was that “[s]everal of the Neighbor Parties and other North Wales
residents and neighbors of the Property testified as to their opposition to the Application testifying
that the proposed use was not compatible with the residential neighborhood.” (See supra ¶ 34.)
Another stated reason for the application’s denial was that “the Neighbor Parties opposed to the
Applicant met their duty and burden to prove that the proposed use will be injurious to the public
health, safety and welfare.” (See supra ¶ 34.) While neither of these reasons explicitly cite
alcoholism or drug dependence, both directly reference the neighbor comments that explicitly cite

18

these handicaps. Thus, when read in conjunction with the entire record, a factfinder could find
these stated reasons to be discriminatory.
The ZHB further found that “the proposed use will be detrimental and/or injurious to the
adjacent property and the neighborhood and will cause undue congestion of vehicular traffic.”
(See supra ¶ 34.) While this stated reason does contain a legitimate non-discriminatory factor (i.e.,
parking), the Residents’ testimony could also establish a discriminatory basis for the application’s
denial, upon which the ZHB relied. Indeed, the ZHB members stated during their depositions that
the public opinions heard during the Hearings was a factor considered. (See supra ¶¶ 37, 39–41.)
In short, viewed in a light most favorable to Plaintiffs, a reasonable factfinder could
conclude that the application’s denial was discriminatory.
Defendants’ Evidence
The following facts, if accepted, could also allow a reasonable factfinder to find that the
application’s denial was not discriminatory. First, the Property was located in the “R-C
Residential” zoning district of the Borough, which restricted the number of unrelated occupants in
a residence to three, and Plaintiffs were granted a certificate of occupancy for up to three unrelated
persons in May of 2015. (See supra ¶¶ 6, 9–10, 14.) The Zoning Ordinance required Plaintiffs to
apply for a “special exception” to use the Property as Plaintiffs intended, and Plaintiffs had to
satisfy these requirements. (See supra ¶¶ 10–12, 15.) The Decision and Order provided several
reasons for denying the Application, including that “the Applicant did not meet its burden to prove
that it complies with all of the specific and objective criteria set forth in (4) of definition of Family,
including that the Applicant has adequate off-street parking facilities.” (See supra ¶ 34.)

19

Moreover, the neighbor parties opposed the Application for a variety of non-discriminatory
reasons, such as their concern that permitting ten adult men to reside at the Property would put too
much strain on the Property, and create traffic and parking problems. (See supra ¶¶ 28–30.)
Because Plaintiffs must only establish that the disability was a “motivating factor” in the
adverse decision to prevail on an intentional discrimination claim, the ultimate question here is
whether the ZHB relied upon the discriminatory comments and animus in their decision. See
Cmty. Servs., Inc. v. Wind Gap Mun. Auth., 421 F.3d 170, 177 (3d Cir. 2005). This is an
outstanding question of fact. Given the existence of disputed material facts, I find that none of the
parties are entitled to summary judgment as to the Intentional Discrimination Claim.
B. The Reasonable Accommodation Claim
Plaintiffs assert that the ZHB did not properly consider the request for a reasonable
accommodation to be treated as a family, given that the ZHB could have waived or modified the
conditions needed to be met to be deemed a “functional family equivalent.” Specifically, Plaintiffs
argue that they satisfactorily established the necessity for the home by introducing expert
testimony at the Hearings, and that Defendants failed to show that a modification would have been
unreasonable, in light of Plaintiffs’ offer to limit parking needs by the residents. Defendants
respond that Plaintiffs have failed to establish that the accommodation was necessary to afford the
residents an equal opportunity to use or enjoy the property, and that the ZHB did consider the
request by Plaintiffs as it related to the special exception under the definition of a family, but found
it was unreasonable due to parking restrictions. For the reasons set forth below, I will deny all of
the parties’ motions for summary judgment as to the Reasonable Accommodation Claim.
The Third Circuit employs “a burden-shifting analysis in which the initial burden is on the
plaintiff to demonstrate that the accommodations that it requested are ‘necessary to afford

20

[disabled] persons [an] equal opportunity to use and enjoy a dwelling,’ at which point the burden
shifts to the defendant to show that the requested accommodations are unreasonable.” LapidLaurel, L.L.C. v. Zoning Board of Adjustment of the Township of Scotch Plains, 284 F.3d 442,
457–58 (3d Cir. 2002) (quoting 42 U.S.C. § 3604 (f)(3)(B)) (“While a plaintiff is in the best
position to show what is necessary to afford its clients . . . an equal opportunity to use and enjoy
housing, a defendant municipality is in the best position to provide evidence concerning what is
reasonable or unreasonable within the context of its zoning scheme.”). In order to grant summary
judgment, a court “must determine whether there is a genuine issue of material fact regarding:
(1) whether the accommodations that [the plaintiff] requested were necessary to afford
handicapped persons an equal opportunity to use and enjoy housing; and, if so (2) whether the
accommodations requested were unreasonable.” Id. at 459.
In order to satisfy the initial burden under § 3604(f)(3)(B), “a plaintiff must, at a minimum,
demonstrate that the proposed accommodations will ‘affirmatively enhance’ a handicapped
person’s quality of life ‘by ameliorating the effects of [his or her] disability.’” McKivitz v. Twp.
of Stowe, 769 F. Supp. 2d 803, 824 (W.D. Pa. 2010) (quoting Bronk v. Ineichen, 54 F.3d 425, 429
(7th Cir. 1995)). In order to shift the burden of proving “unreasonableness” to Defendants,
“Plaintiffs must establish a nexus between the proposed accommodations and their necessity for
providing handicapped individuals with an equal opportunity to live in a residential area.” Id. It
is insufficient “to show that the proposed accommodations are needed to enable handicapped
individuals to live in a specific facility located within a particular residential district.” Id.
(emphasis in original).
When the burden shifts to the defendant “to establish that the accommodation proffered by
the applicant was not reasonable, the municipality is required to prove that it could not have

21

granted the variance without: (1) imposing undue financial and administrative burden;
(2) imposing an undue hardship upon the township; or (3) requiring a fundamental alteration in
the nature in the zoning program.” Lapid-Laurel, 284 F.3d at 462 (internal quotations and
alterations omitted). The Third Circuit has “cautioned that this inquiry is highly fact-specific,
requiring a case-by-case determination.” Id. (internal quotations omitted).
Here, none of the parties are entitled to summary judgment as to the Reasonable
Accommodation Claim under the FHA or ADA because there are genuine issues of material fact
as to whether Plaintiffs have satisfied the factual burden of necessity and whether Defendants have
demonstrated the unreasonableness of Plaintiffs’ accommodation request.
Plaintiffs’ Demonstration of “Necessity”
The burden lies with Plaintiffs to establish that the requested accommodation for ten
residents will “‘affirmatively enhance’ a handicapped person’s quality of life ‘by ameliorating the
effects of [his or her] disability.’” McKivitz v. Twp. of Stowe, 769 F. Supp. 2d 803, 824 (W.D.
Pa. 2010) (quoting Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995)). Plaintiffs argued both
during the ZHB Hearings and here that the accommodation for ten people was necessary by
offering the testimony of SOS House’s owners, experts, and SOS House Residents. Specifically,
Mr. Bartlet and Mr. Douglas offered that SOS House needed ten people to provide the necessary
support, and that a lower number was not practical. (See supra ¶¶ 25, 27.) Ms. Aniskevich testified
during the Hearing on October 6, 2015 as an expert in the benefits of sober homes, wherein she
opined that sober homes were critical for recovery, and that a sober house needed at least eight
people to be successful. (See supra ¶ 27.) Mr. Bedford testified at the hearing on October 6, 2015
as an expert in the area of the effectiveness and benefits of sober houses, wherein he opined that a
sober house provides the benefit of living in a community/family environment, which is “optimal”

22

with seven to ten people.” (See supra ¶ 27.) Plaintiffs have also introduced statements from SOS
House’s residents regarding the benefits of a community environment within the home as evidence
of the necessity of such homes. (See supra ¶ 27.)
However, Defendants have raised genuine issue of material fact as to the question of
necessity through the testimony of another expert, Dr. Santoro, who testified during the ZHB
Hearing as an expert in drug and alcohol addiction, wherein he opined that a sober house can
operate with three people, but five to eight residents is optimal. (See supra ¶ 44.) Defendants also
challenge the professional qualifications of Mr. Bartlet regarding his ability to opine on the
necessity of a certain number of residents. (See supra ¶ 27.) Given that the parties have presented
genuine disputes as to the factual question of necessity, I find that none of the parties are entitled
to summary judgment on this point as a matter of law.
Defendants’ Demonstration of “Reasonableness”
Even assuming that Plaintiffs established necessity for the purposes of summary judgment,
the burden would then shift to Defendants to show that the accommodation was not reasonable by
proving that Defendants “could not have granted the variance without: (1) imposing undue
financial and administrative burden; (2) imposing an undue hardship upon the township; or
(3) requiring a fundamental alteration in the nature in the zoning program.” Lapid-Laurel, L.L.C.
v. Zoning Board of Adjustment of the Township of Scotch Plains, 284 F.3d 442, 462 (3d Cir.
2002).
In attempting to establish undue hardship, Defendants argue that the accommodation would
impose an undue burden on parking. As evidence of this undue hardship, Defendants introduced
a parking study that concluded ten adults would likely exceed the parking capacity. (See supra
¶ 43.) Plaintiffs countered by offering to restrict the availability of parking to its residents. (See

23

supra ¶ 29.) When asked about this proposed solution, Mr. Berenson, a ZHB member, responded
that the parking concern was not just about the number of residents but their visitors. However,
Mr. Berenson could not recall whether the Zoning Ordinance permitted the ZHB to limit visitor
parking to a particular residence. Additionally, Mr. Kratowicz, another ZHB member, explained
that Mr. Bartlet’s statement about limiting the amount of cars was not sufficient because he was
“not so sure how he could agree or guarantee that there were only four cars within the property.”
(See supra ¶¶ 29, 38, 41.)
Defendants also argue that the request was unreasonable because permitting SOS House to
have ten residents would “fundamentally alter the nature of the zoning program,” given that the
Zoning District of the Property intended only to serve families and family-equivalents. Defendants
point to the fact that Plaintiffs failed to satisfy the “family equivalent” zoning requirement, which
required SOS House to be a “nonprofit” and “non-transient” unit.

In support, Defendants

introduced an expert, Mr. Duffy, who conducted a financial analysis and concluded that SOS
House was a for-profit corporation. (See supra ¶ 45.) Additionally, Defendants point to the
testimony that established the “transient” nature of the residents, where SOS House had
experienced high resident turnover in a few short months. (See supra ¶¶ 36, 38, 41.)
Plaintiffs have raised genuine issue of material fact as to the question of “reasonableness”
by pointing to the fact that the Zoning Ordinance did not expressly define the terms “nonprofit” or
“transient.” Because the terms were not defined, Plaintiffs assert that a factfinder could find that
they sufficiently established that SOS House was a nonprofit entity through Mr. Bartlet and Mr.
Douglas, who testified during the ZHB Hearings that SOS House was legally a nonprofit entity
under Pennsylvania law at the time of the application. (See supra ¶ 4.) Moreover, a factfinder
could find that Plaintiffs sufficiently established that the residents of SOS House were “non-

24

transient,” depending on the interpretation of this undefined term, given the expert testimony
provided during the ZHB Hearings on this point. (See supra ¶ 13.)
Under the Third Circuit’s burden-shifting analysis, Plaintiffs are required to establish the
“necessity” of the accommodation for 10 unrelated residents, and Defendants then must establish
the “unreasonableness” of this requested accommodation. Lapid-Laurel, L.L.C. v. Zoning Board
of Adjustment of the Township of Scotch Plains, 284 F.3d 442, 457–58 (3d Cir. 2002). Given the
existence of the aforementioned disputed material facts, I find that none of the parties are entitled
to summary judgment as to the Reasonable Accommodation Claim.
V.

CONCLUSION
For the foregoing reasons, I conclude that Plaintiffs’ Motion for Summary Judgment and

Defendants’ Motion for Summary Judgment should be denied.
An appropriate Order follows.

25