Cohen v. Township of Cheltenham, Pennsylvania

• Decision Date: 15 November 2001
• Docket Number: No. 97-3978.,97-3978.
• Citation: 174 F.Supp.2d 307
• Parties: Sidney COHEN and Dorothy Cohen and Susan Cohen, Plaintiffs, v. TOWNSHIP OF CHELTENHAM, PENNSYLVANIA, and Zoning Hearing Board of Cheltenham Township, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

Page 307

174 F.Supp.2d 307

Sidney COHEN and Dorothy Cohen and Susan Cohen, Plaintiffs, v. TOWNSHIP OF CHELTENHAM, PENNSYLVANIA and Zoning Hearing Board of Cheltenham Township, Defendants.

No. 97-3978.

United States District Court, E.D. Pennsylvania.

November 15, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Stephen A. Durham, Media, PA, for Plaintiff.

George H. Knoell, III, Norristown, PA, for Defendants.

MEMORANDUM

DuBOIS, District Judge.

I. INTRODUCTION

On June 11, 1997, the United States of America ("United States") filed a Complaint alleging that defendants, Township of Cheltenham ("Township") and the Zoning Hearing Board of Cheltenham Township ("Board"), denied Sidney Cohen's and Dorothy Cohen's petition for a zoning variance in violation of the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601 et seq. ("FHAA"). On July 11, 1997, Sidney Cohen and Dorothy Cohen moved to intervene as plaintiffs and were granted permission to do so by Order dated August 13, 1997. In December 1997, the United States' lawsuit against defendants was settled after the Township agreed to amend its zoning ordinance so as to provide for the granting of reasonable accommodations to handicapped individuals. Sidney Cohen and Dorothy Cohen maintained their lawsuit against defendants, and their daughter, Susan Cohen, was permitted to intervene by Order dated July 1, 1999. Sidney Cohen, Dorothy Cohen, and Susan Cohen ("plaintiffs") now seek declaratory, injunctive, and compensatory relief.

Presently before the Court are Defendants' Motion for Summary Judgment (Document No. 64, filed March 9, 2001) ("Defs.' Mot.") and Plaintiffs' Answer to Defendants' Motion for Summary Judgment and Plaintiffs' Cross Motion for Summary Judgment (Document No. 66, filed March 22, 2001) ("Pls.' Mot."). For the reasons set forth below, defendants' motion will be granted and plaintiffs' motion will be denied.

II. FACTS

This case involves plaintiffs' efforts to sell their home in Elkins Park, Pennsylvania to Safe Haven for Children, Inc. ("Safe Haven"), a not-for-profit corporation which, according to plaintiffs, intended to convert the home into a residential facility, or group home, for abused, neglected, and abandoned children. Plaintiffs were unable to proceed with the sale, however, because defendants denied plaintiffs' application for the necessary zoning variance. Plaintiffs allege that defendants' denial of that application constituted a violation of the FHAA's provisions prohibiting discrimination on the basis of handicap. Specifically, plaintiffs argue that defendants violated the reasonable accommodations provision of the FHAA, 42 U.S.C. § 3604(f)(3)(B), which states that discrimination on the basis of handicap includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling."

The property in question is a five-bedroom, five and one-half bathroom home located at 8208 New Second Street in Elkins Park, Cheltenham Township, Pennsylvania. Pls.' Am. Compl. (Document No. 53, filed July 12, 1999) ("Compl.") at ¶ 7; see also Plan of the Cohen Residence, Record of the Zoning Hearing Board of Cheltenham Township ("R."), Ex. 5. It was owned by plaintiffs, Sidney Cohen and Dorothy Cohen from 1964 until January 1999 when it was sold at a sheriff's sale.¹ Sidney Cohen Dep. at 16-17.

The property is located in a residential zoning district designated "R4." Compl. at ¶¶ 6-7. Section 601 of the Cheltenham Township Zoning Ordinance of 1929, as amended, ("Zoning Ordinance") permits single-family residences as a matter of right in such "R4" areas. Id. at ¶ 6. Section 100(15) of the Zoning Ordinance defines "family" as either (1) any number of persons who are related by blood, marriage, or legal adoption; or (2) two or fewer unrelated persons sharing a house. Id. The Zoning Ordinance allows up to four unrelated persons to live in a single housing unit by special exception. Id. Witnesses testified before the Board that under the Township's Housing Code, a home the size of the Cohens' was large enough to accommodate up to sixteen related people. See, e.g., Testimony of Daniel Lauber, R., Sept. 18, 1995, at 47-48.²

In 1995, plaintiffs, Sidney Cohen and Dorothy Cohen, entered into an agreement to sell their house to Dr. Ira Glazer, who agreed, in turn, to lease the house to Safe Haven. Compl. at ¶ 11. Some time later,³ plaintiffs' agreement with Dr. Glazer and Safe Haven expired. Id. at ¶ 27. Susan Cohen, the daughter of Sidney Cohen and Dorothy Cohen, who has educational training and professional experience in the mental health field, then agreed to purchase the property and operate the group home. Id. Safe Haven, and, later, Susan Cohen, planned to use the house as a residential child care facility for up to ten abandoned, abused, and neglected children between the ages of five and nine. Id. at ¶ 8.

Plaintiffs' intended purpose was to create a "residential child care facility"⁴ that provided a "normalized home-type environment for abused children." Testimony of Mary Riggs-Cohen, R., Sept. 18, 1995, at 134. The "structured, predictable environment" of the home would be aimed at meeting the emotional needs of the proposed residents. Id. at 136. Such an environment was central to the home's plan for treatment of the abused, abandoned, and neglected children as "frequently these type[s] of children have never had their emotional needs responded to at all." Id. Children would be admitted to the proposed home upon a physician's determination that such a facility was "medically necessary" for each abandoned, abused, or neglected child. Compl. at ¶ 8. As a means of treating the resident children, mental health workers would be available to provide services twenty-four hours a day. Testimony of Susan Cohen, R., Nov. 2, 1995, at 20. After arrival at the home, children would reside there for a period of time lasting up to nine or ten months, or, if necessary, longer. Id. at 39. While residing there, the children would be assigned chores in the home, eat together as a family, and sleep in the home each night. Id. at 20-25.

In order to operate as a residential child care facility, plaintiffs required zoning approval. Accordingly, on June 30, 1995, plaintiffs filed an application with the Board requesting a zoning variance from the "R4" designation so as to allow up to ten children to reside in the home. Compl. at ¶ 13. The Board conducted a series of hearings concerning plaintiffs' application. In their application and throughout their presentation of evidence, plaintiffs argued that the Board was compelled to grant the variance under the FHAA. Specifically, plaintiffs argued that the abused, neglected, and/or abandoned residents of the proposed group home would be "handicapped" as that term is defined under the FHAA. See 42 U.S.C. § 3602(h). In light of the residents' handicapped status, plaintiffs argued, the Board was required to grant the variance under the FHAA's "reasonable accommodations" provision. 42 U.S.C. § 3604(f)(3)(B).

During the pendency of the proceedings before the Board, the Township Building and Zoning Committee, on which members of the Township Board of Commissioners sit, reviewed plaintiffs' application. See Pls.' Mot., Ex. 1. Ultimately, the Building and Zoning Committee voted to direct the Township Solicitor to appear before the Zoning Hearing Board and recommend denial of plaintiffs' application. See id.

On December 11, 1995, the Board issued an oral decision denying plaintiffs' request for a variance. Compl. at ¶ 15. On January 10, 1996, plaintiffs filed a Notice of Appeal with the Court of Common Pleas of Montgomery County. On April 16, 1996, plaintiffs filed with the Secretary of the Department of Housing and Urban Development ("HUD") a complaint alleging housing discrimination by defendants on the basis of handicap. Id. at ¶ 20. Under 42 U.S.C. § 3610(g), the Secretary of HUD referred the matter to the Department of Justice. Id. On June 11, 1997, the Attorney General, pursuant to 42 U.S.C. § 3614(b)(1)(A), brought an action on behalf of the United States against defendants. Id. at ¶ 21. On October 24, 1997, plaintiffs Sidney Cohen and Dorothy Cohen filed a complaint in intervention against defendants pursuant to 42 U.S.C. § 3614(e).

The United States subsequently entered into a settlement agreement with defendants in December 1997 and withdrew its suit against defendants. Id. at ¶ 24. The terms of that agreement required defendants to enact new zoning legislation authorizing the Board to grant reasonable accommodations as provided for in 42 U.S.C. § 3604(f)(3)(B), and defendants did so. Id.

On June 2, 1998, plaintiffs applied for a reasonable accommodation under the new zoning ordinance, seeking, as they did in their first application to the Board, a variance from the "R4" designation so as to allow ten unrelated abused, abandoned, or neglected children to reside in the proposed group home. Compl. at ¶ 25. The Board conducted a second series of hearings on plaintiffs' application and, on October 19, 1998, again, denied plaintiffs' application. Id. at ¶ 29.

In both sets of hearings before the Board, plaintiffs offered evidence concerning what they argue to be the handicapped status of the children who would reside in the group home. Plaintiffs' expert, Mary Riggs-Cohen, who has a doctorate in clinical psychology, testified that abused, abandoned, or neglected children might suffer from a number of physical or mental impairments that would substantially limit the children's major life activities. Testimony of Mary Riggs-Cohen, R., September 18, 1995, at 134-35. According to Dr Riggs-Cohen, these impairments may include an inability to relate with other people, excessive fear and anxiety, sleep disturbances, eating problems, problems with bed wetting, low self...