Mckivitz v. Twp. of Stowe, Civil Action No. 08–1247.

• Decision Date: 22 December 2010
• Docket Number: Civil Action No. 08–1247.
• Citation: 769 F.Supp.2d 803
• Parties: 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.
• Court: U.S. District Court — Western District of Pennsylvania

769 F.Supp.2d 803

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.

Civil Action No. 08–1247.

United States District Court, W.D. Pennsylvania.

Dec. 22, 2010.

Thomas J. Michael, Thomas J. Michael & Associates, Pittsburgh, PA, for Plaintiffs.Catherine A. Conley, John F. Cambest, John H. Rushford, Dodaro, Kennedy & Cambest, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION AND ORDER OF COURT

TERRENCE F. McVERRY, District Judge.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 ).¹ 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.” ² 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.” ³Id. 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.⁴

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-l 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-l district. Id....