813 STONYBROOK DRIVE Sober House Proposal Neighbor Meeting December 12, 2018

Transcription

1 813 STONYBROOK DRIVE Sober House Proposal Neighbor Meeting December 12,

2 Adam D. Zucker, Chair, Whitpain Township Board of Supervisors Kenneth F. Wollman, Whitpain Township Supervisor Roman M. Pronczak, Township Manager David J. Mrochko, Assistant Township Manager Michael E. McAndrew, Township Code Enforcement Officer Frank R. Bartle, Esq., Township Solicitor Scott M. Badami, Esq., Township Special Counsel Appearing on behalf of interested neighbors is Michael Yanoff, Esq. 2

3 Solicitor presentation setting forth the Sober House proposal; applicable Federal law; and a time-line for next steps. Opportunity for neighbor questions, concerns, and comments. 3

4 The clarifying point: The Township has not yet taken any formal position on the Sober House proposal. The request: Please remain respectful and patient in all your discourse during this meeting, as well as the entire process regarding the proposal and the persons who are the intended occupants. We fully understand and appreciate some personal opinions as to the Sober House proposal are strong, passions are high, and you all want to be heard. You will be given an opportunity to be heard, but we want to make sure that nothing inflammatory is said that could be held against us in any litigation matter. This matter must be handled in compliance with applicable Federal law, no matter how unpopular it may be, or strong opinions are against it, if the proposal complies with applicable law, that is the end of the analysis. The Township is currently reviewing the proposal for such compliance. 4

5 On May 25, 2018, Applicant Jane Medvetz, by way of her daughter and Power of Attorney, Lisa Medvetz, filed a Zoning Application seeking certain zoning relief to facilitate a 9- person Sober House use on the property located at 813 Stonybrook Drive, within the Township s R-1 Residence District. 5

6 The Applicant is represented by Fredric M. Wentz, Esq. of McGrory Wentz, LLP. Specifically, the Applicant is seeking a use variance from Zoning Ordinance Article V, Section , related to permitted uses in the R-1 District. Under the Township s R-1 use regulations, any one of the following uses is permitted by-right: (1) a single-family detached dwelling; (2) farms and farm buildings; (3) municipal recreation use; and (4) municipal buildings devoted to community service. The Applicant s requested zoning relief is necessary because the proposed Sober House use is not expressly permitted in the R-1 District. 6

7 This Application was subsequently amended on November 28, 2018 to include a reasonable accommodation request for the proposed Sober House use in accord with Federal law. Under Federal Law, it is unlawful to refuse to make reasonable accommodation to zoning rules, policies, practices, or services, when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling. 7

8 Application, as amended, is scheduled to be heard by the Zoning Hearing Board on January 17, Under Pennsylvania law, hearings on zoning applications are required. The required hearing needs to be heard within 60-days of the application s receipt, unless extended. Here, the Applicant has continued the matter for several months and waived the applicable time-requirements until the Zoning Board s January 17 th hearing. At the hearing, the Zoning Board, sitting as a quasi-judicial body (almost like a judge) takes evidence by the parties by way of testimony and exhibits, and, ultimately, determines whether the Applicant is entitled to the requested zoning relief. 8

9 The Township is always a party to zoning hearings, however, it decides on a case-by-case basis as to whether it will actively participate. The Township, however, does intend to participate in this hearing. At the hearing all interested individuals, with appropriate standing will be allowed as parties. Individuals not wishing to be made parties, but still desiring to participate in the hearing will be able to ask questions and make statements at the appropriate time. At the conclusion of the hearing, the Zoning Board will have 45-days to render its formal Decision and Order. Thereafter, the parties will have 30-days to appeal. 9

10 The Fair Housing Act was enacted in Its stated policy is to provide, within constitutional limitations, for fair housing within the United States. It was originally intended to prohibit discrimination on the basis of race, color, religion, or national origin. The Act was amended in This Amendment included handicapped individuals as members of a class sought to be protected under the Act Amendment applies to Zoning 10

11 Courts have routinely overturned denials of zoning relief for group-homes when a discriminatory intent or impact is shown. Court decisions have made it clear that individuals recovering from drug and/or alcohol addiction are handicapped individuals entitled to the protections of the Act. 11

12 In applying the Act s analysis to any Sober House proposal, the Act, and its associated decisional law, makes clear that we need to determine two things: Are the Sober House residents a protected class under the Act?; and Are the Sober House residents a Family under the Act? 12

13 The Courts have held that individuals recovering from addiction to drugs and/or alcohol are individuals who qualify as individuals with disabilities or handicaps for purposes of the Act, and as such should be afforded the classprotections of the Act. Such individuals, however, are only protected if they are not currently taking drugs or drinking. 13

14 In determining whether the Sober House residents constitute a Family under the Act, we first turn to the Whitpain Zoning Ordinance. The Zoning Ordinance currently defines Family as: Family a group of persons living together and related to the head of the household by blood, marriage, or legal adoption, and, in addition, two gratuitous guests thereof. 14

15 Township s current definition of Family determined to be violative of applicable Federal Law in that it limits the definition of family to groups of persons living together and related by either blood, marriage, or adoption. Applicable Federal case law has made clear that such limited definitions of Family are violative of the Act because they have a discriminatory impact, even if there is no intent to discriminate. So the Township is in the process of amending the Zoning Ordinance to ensure its definition of Family complies with applicable Federal law. 15

16 The proposed new definition of Family reads as follows: FAMILY (1) One or more individuals related by blood, marriage, legal guardianship, licensed or court-appointed foster care, or legal adoption living in a dwelling as a Single Housekeeping Unit; or (2) a maximum of three persons who are not related to each other by blood, marriage, legal guardianship, licensed or courtappointed foster care, or legal adoption living in a dwelling as a Single Housekeeping Unit, with limited exception to persons possessing a handicap and living together in a Group Home, as defined in this Article, and within the meaning of the Fair Housing Act. A Family does not include group living situations such as student-housing, dormitories, fraternities, sororities, monasteries, or nunneries. 16

17 The Ordinance Amendment also provides for new definitions of Single Housekeeping Unit and Group Home, which read as follows: SINGLE HOUSEKEEPING UNIT One or more individuals living and cooking together in a dwelling, on a non-transient basis and sharing household responsibilities and activities, which may include sharing living expenses, chores, eating meals together and participating in recreational activities and having close social, economic, and psychological commitments to each other. 17

18 GROUP HOME A dwelling inhabited by handicapped persons, within the meaning of the Fair Housing Act, as a Single Housekeeping Unit. Such Group Home shall: (1) not exceed the maximum allowable occupancy of the dwelling as permitted by the Township s Code; and (2) either (a) provide non-routine support services and oversight to persons who need such assistance to avoid being placed in an institution because of a physical, mental, or developmental disability, or old age; or (b) be occupied by individuals who meet the definition of handicap, as defined by applicable federal law. For the purposes of this Ordinance, Group Homes shall be permitted and regulated just as the applicable residential dwelling type. 18

19 Under Federal law, as well as the Whitpain Zoning Ordinance, once the amendment is enacted, residents of a Sober House, are a Family if they are: recovering drug addicts and alcoholics, not currently taking drugs or drinking (i.e., individuals deemed to be disabled or handicapped under the Act and as such, members of a protected class); and living together as a Single Housekeeping Unit, on a nontransient basis, within a Group Home setting not exceeding the dwelling s maximum allowable occupancy as permitted by the Township Code. 19

20 We then have to look at the Act s decisional law to determine what constitutes a Single Housekeeping Unit and a non-transient basis. In so doing, we must consider two things: Is the facility intended or designed for occupants who would intend to remain for a significant period of time? Do occupants view the facility as a place to return to? 20

21 Federal courts look toward average stay and whether it is possible for residents to stay longer. The Courts have determined that the average stay at such a facility is 14.8 days. They have determined such facilities as nontransient, and where residents intended to remain for a significant period of time when: (a) the average stay was 14.8 days; and (b) it was possible for residents to stay longer. 21

22 The Federal courts consider several facts to determine whether a facility is one in which residents are living as a Single Housekeeping Unit, including: Do the residents eat meals together? Do the residents return to their rooms in the evening? Are the residents assigned any particular room for the length of their stay? How many residents are there housed per bedroom, as opposed to a dormitory style or barrack style bunks? Do the residents receive mail at the facility? 22

23 Do the residents have chores to maintain or keep-up the facility (cooking, cleaning, laundry, yardwork, shopping, room clean-up, etc.)? Do the residents decorate or personalize their rooms with pictures, ornaments, photographs, or other such indicia of longterm residence? Do the residents engage in social events together, both on and off-site? Do the residents travel to work? How do the residents travel off-site? 23

24 Intent of the Act and interpretation by the Court: Is to move handicapped individuals out of large institutions and into mainstream residential communities? Upon receipt of the Application, the Township has been dealing directly with the Applicant and her counsel relative to the proposal. In so doing, we have sent a series of questions to Applicant s Counsel to get a better understanding of the nature and extent of the proposal. The Applicant and her Counsel have fully cooperated with our information requests. 24

25 The Township is currently in the process of reviewing and analyzing this information to determine whether the proposed Sober House passes muster under the Act s analysis as I just summarized (i.e., whether a protected class and family under Act) and whether the proposal complies with the Township s Building Code. 25

26 The Applicant bears the burden of establishing an entitlement to her requested relief at the hearing in January. At the hearing, the Applicant will need to demonstrate, among other things: The residents of the proposed Sober House will be individuals who are recovering drug addicts and recovering alcoholics, not currently using drugs or drinking, and as such, are individuals with disabilities or handicaps under the Act; and The Sober House residents are a Family under the Act because they are not transient or short-term, but rather, tend towards being permanent/long-term residents in a Group Home, which is a dwelling under the Act, that they view as a place to return to. 26

27 It should also be noted, that if there is anything within the Township s Ordinance that could plausibly be relied upon to prohibit the proposed use for which certain zoning relief is required and being sought, the Applicant s reasonable accommodation request all but entitles her to the use, irrespective of any zoning impediment. Under Federal law, as Courts have strenuously asserted that the Act requires municipalities to make reasonable accommodation, when requested, to fulfill the Act s purpose of handicap access of living in residential areas. As referenced early, Courts have routinely overturned denials of zoning relief by Sober Houses when reasonable accommodations are requested. 27

28 Building Code/Occupancy compliance, however, is an exception to this general rule (because such occupancy compliance requirements apply to all, regardless of whether the residents are an active family or a group of individuals with disabilities living as a single housekeeping unit). The Applicant has currently proposed a 9-resident Sober House. She has stated that in the future she may add two more beds in the basement, if she is able to afford a second means of access to the basement. At current, 9 residents are proposed. This is why we are so thoroughly reviewing the proposal from a Building Code compliance standpoint. 28

29 Zoning Application, as amended, is scheduled to be heard by Zoning Board on January 17, Prior to that time, the Township Planning Commission and the Board of Supervisors will further review the Application. In reviewing the Application, the Planning Commission may suggest that the Zoning Board impose certain conditions upon any grant of the requested relief. The Planning Commission will be meeting on January 8, 2019 to review this Application. All are welcome to attend. 29

30 The Township, as a party to the Application, can do the same. Specifically, the Supervisors can also elect to take an official position on the Application, whether deciding to remain neutral, oppose it, or support it, as well as authorize me to appear at the hearing, whether to simply participate or actively oppose it. The Board will formally review this matter and decide on what actions it intends to take on January 15,

31 While the Township acknowledges that this may be an unpopular proposal, that in and of itself, is not proper justification to oppose the application. The Township is required to comply with applicable Federal law no matter how unpopular. The Township may, however, make the proposed use like any other residential use, as much as possible from a health/safety/welfare perspective through agreed upon conditions on any relief granted. 31

32 Only if and when the Township is convinced that the applicant can meet its burden under Federal Law, will we discuss with Applicant s Counsel significant conditions that in the aggregate will have the substantive effect of rendering the proposed Sober House more compatible with other residential uses in the neighborhood. 32