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spccifically cxcludcs a boarding or rooming housc. lodging housc, club. fratcrnity. hotcl or any similar
group living arrangcmcnt. Thc zoning officcr dctcrmincd that thc CLA proposcd by CP ARC was a
group living arrangcmcnt similar to a boarding or rooming housc, lodging housc, club. fratcmity, or
hotcl.
CP ARC appcalcd this intcrprctation to thc Middlcscx Township Zoning Hcaring Board,l Thc
Middlcscx Township Zoning Hcaring Board conductcd a hcaring on Fcbruary 12, 1997 with Icgal
argumcnt continuing at a hcaring on March 12, 1997.
On April 4, 1997 thc Middlcscx Zoning Hcaring Board rcndcrcd a dccision that thc proposcd
CLA was not a pcrmittcd usc as a "singlc family dwclling", but rathcr was a "group homc" which could
only bc cstablishcd as a spccial cxccption undcr thc township zoning ordinancc.
On April 21, 1997 CP ARC took this appcal from the Township Zoning Hcaring Board dccision,
Aftcr this appcal was filcd. Edward W. Harkcr, Esquirc. Solicitor for thc Middlcscx Township
Zoning Hcaring Board filcd a "Statcmcnt of Position" indicating that thc Zoning Hcaring Board would
not bc rcprcscntcd by an advocate in this appcal. No appcarancc has bccn cntcrcd on bchalf of
Middlcscx Township. Thcrcforc, thc Appcllant cxpccts that thcrc will bc no opposing advocatc in this
procccding,
B. FACTUAL HISTORY
Thc facts of this casc arc not in disputc, Carolc Fcrcnz, Dircctor of Rcsidcntial Scrviccs for
CP ARC dcscribcd thc proposcd CLA program in hcr dircct cxamination which appcars on pagcs 6
I CPARC simultancously sought a spccial cxccption from thc Middlcscx Township
Zoning Hcaring Board for thc CLA as a group homc cvcn if it was not rcgardcd as a singlc
family dwclling,
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through 23 of thc hcaring trunscripts, Ms, Fcrcnz was thcn qucstioncd by mcmbcrs of thc Zoning
Ilcaring Board and also by township rcsidcnts, Thcsc qucstions and rcsponscs appcar on pagcs 24
through 43,
CPARC is a nonoprofit corporation formcd undcr thc laws ofthc Commonwcalth of
Pcnnsylvania, It providcs scrviccs and advocacy for pcoplc with mcntal rctardation, (NT 6) CP ARC
scrvcs thrcc countics, It opcratcs ninc group homcs likc thc proposcd homc and CPARC also providcs
othcr levels of servicc. (NT 7)
Thc sitc of the proposcd Community Living Arrangcmcnt (CLA) is 102 North Middlcsex Road
in Middlcsex Township. Thc prcmiscs is undcr Icasc from the owncr. It contains 3.489 acres and is
improvcd with a two-story dwclling and a garagc, (NT 809) The dwclling has three bedrooms and a largc
kitchen with scparatc space for an officc, Linc drawings of cach floor of thc prcmises wherc introduccd
as CPARC's Exhibit No, 4. (NT 10011) Thc property is scrviccd by public watcr and scwcr.
CP ARC obtains a Iiccnsc from thc Pcnnsylvania Departmcnt of Public Wclfarc to operate
residences, Each location must have a license. A liccnsc will be obtaincd for this CLA, but had not yct
becn obtained at thc timc of the hearing. Township approvals wcrc first needcd beforc CPARC would
invest in rcquircd equipmcnt for thc home. (NT 12013)
Mrs. Fcrcnz cxplaincd that a CLA is a familyohomcolikc arrangemcnt for individuals who rcquirc
supcrvision and assistancc with their daily living skills. The focus in a CLA is a family atmosphere,
Rcsidents within the CLA plan mcnus and shop together. preparc and cat mcals togcthcr in a family
stylc. CPARC staffprovidcs support to the residcnts. CPARC staffdo not rcside within thc propcrty,
but thcrc is always stuff present if u resident is present. (NT 15017)
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Based upon CPARC's cxpcricncc with ninc othcr CLA's. Mrs, Fcrcnz tcstificd that thcrc would
bc a TV room, and thc homc would bc furnishcd likc any othcr homc, Ncithcr rcsidcnts nor staff would
wcar uniforms, A washcr and drycr would bc uscd in common by all rcsidcnts, Ilolidays and birthdays
would bc celcbratcd togcthcr by thc rcsidcnts, Thcrc is a communallillnilyolikc atmosphcrc which
pcrvadcs all activitics such as dccorating Christmas trccs, (NT 19020)
Mrs. Fcrcnz cxplaincd that all rcsidcnts would havc a diagnosis of mcntal rctardation, This
mcans that a rcsidcnt's IQ will bc subavcragc, It also mcans that rcsidcnt has an inability to carry out
daily living tasks without assistancc, Thcrc is a dcficicncy of adaptivc behaviors. (NT 16) Each rcsidcnt
is impaircd in onc or morc of his or hcr major Iifc activitics. (NT 2])
Rcsidcncy in this CLA will bc for an cxtcndcd indcfinitc pcriod of timc mostlikcly mcasurcd by
ycars, (NT 20)
Thc Middlcscx Township Zoning Officcr, Mark Carpcntcr, also tcstificd at thc hcaring, Hc
intcrprctcd thc Middlcscx Township zoning ordinancc in accordancc with its litcral tcrms, In rcsponsc
to a qucstion from thc audicncc, Mr. Carpcntcr agrccd that four unrclatcd individuals (collcgc studcnts
or high school drop outs) living togcthcr within this housc in onc singlc housckccping unit would bc
rcgardcd as a family cvcn though unrelatcd, This would bc a pcrmittcd usc as a singlcofamily dwclling,
(NT 58)
Mr. Carpcntcr acknowlcdgcd that hc was not askcd by CP ARC to dctcrminc whcthcr thc
proposcd CLA was or was not a "group homc". Rathcr, hc was askcd for an intcrprctation that this
particular "group homc" with lewcr than lour (4) unrclatcd occupants was also a "family" undcr thc
township ordinancc, Hc coneludcd that it was not. As a "group homc" thc lISC was similar to a boarding
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dwelling in one housekeeping unit, the CLA should be permitted as a single family dwelling even
though it may also be deemed to be a "group homc", "Group homcs" with morc than four unrclatcd
occupants would not satisfy the dcfinition of "family" and could only be cstablished as a special
cxccption,
E. TOWNSHIP INTERPRETATION
Thc Township's interprctation is containcd in thc conclusions set forth on pagc 2 ofthc dccision
of the Zoning Hcaring Board, Thosc conclusions arc:
I, 'i'he Zoning Code authorizes group home uscs upon approval ofthc zoning hearing board.
(Zoning Code Section 14,51)
2. A usc for which thc Zoning Board may grunt a spccial use pcmlit constitutcs a "spccial
exception" as defincd by thc Ordinanccs, (Zoning Codc Section. 11-21),
3. The Zoning Officer is mandatcd to apply the Zoning Ordinance Iitcrally and may not
modify or vary its terms, (Zoning Codc Section 17,01)
4. The ordinance definition of "Family" specifically excludcs boarding homes or similar
group living arrangements from the cxccption which dcclarcs four or fcwer pcrsons a
"family". (Zoning Codc Scction 2.03)
S. Thc Code eontains a spccific definition ofthc tcrm "Group l'lomc", (Zoning Code Scetion
2,03),
6, The spccific term "Group Homc", and the exclusion containcd in thc definition of
"family" control the gcncrullanguagc containcd in thc dcfinition of family,
7, Thc Applicant in this casc is not in fact a pcrson proposing to Iivc as a member of a single
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A, THE MIDDLESEX TOWNSHIP ZONING IIEARING BOARD ERRED WHEN IT CONCLUDED
THAT THE PROPOSED CLA WAS EXCEPTED FROM THE DEFINITION OF "FAMILY" AS A
GROUP LIVING ARRANGEMENT SIMILAR TO A BOARDING OR ROOMING HOUSE, LODGING
HOUSE, CLUB. FRATERNITY, OR 1I0TEL.
CPARC '.I' Prono\'ed CI.A i,\' No/ a " ..Similar C;/'0I11J Ul'il1!' Arrlll1!'elllelll" /0 a /1ollrdil1!' or Roomil1!:
/louse, l.od!'il1!' /louse, ('/uh, Pm/emitI' o/' /10/'"
In Appcal ofMillcr, 511 PA 631, 515A.2nd 904, (1986) thc Pcnnsylvania Suprcmc Court notcd
thc historical significancc of thc tcrm "family" in land usc cascs, Thc Pcnnsylvania Suprcmc Court
found that Mrs, Millcr's providing room. board, somc transportation. supcrvision in grooming, and
monitoring ofpcrsonal nccds ofscvcn unrclatcd individuals in hcr homc with cach paying $200.00 a
month constitutcd a "family" undcr thc Township Zoning Ordinancc that was applicablc. Thc function
within thc homc was dctcrminativc, Thc Suprcmc Court rcjcctcd thc argumcnts ofthc Township that thc
arrangcmcnt was in fact a "boarding housc," Justicc Nix wrotc "thc mcrc fact that a mcmbcr ofthc unit
pays a fcc for belonging to thc unit docs not transform thc relationship unlcss it also appears that thc
profit motivc is thc basis for thc relationship," 515 A,2d at 909.
Justicc Nix also ob~crvcd. thc following:
Wc also do not acccpt as valid appcllcc's argument strcssing thc special carc
that is providcd thcsc individuals, It is truc that thc rccord indicatcs that
many of thc rcsidents arc e1dcrly or handicappcd adults who havc no
biological family with which to sharc a homc cnvironmcnt. Thus their nccds
would nccessarily bc grcatcr than thosc ofthc young hcalthy adult. It isjust
this kind of support that thc traditional family unit is designed to providc,
Thc fact that thcsc individuals may bc agcd and infirm. and may offcnd thc
scnsibilitics of somc. docs not warrant thc conclusion that thcir prcscncc is
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notcd that zoning ordinanccs must bc strictly construcd. Furthcr, a pcmliucd usc must bc alTordcd thc
broad cst intcrprctation so that a landowncr may havc thc bcncfit ofthc Icast rcstrictivc usc und
cnjoymcnt of his land. 522 A,2nd at 712, Thc holding in this casc is consistcnt with thc intcrprctation
proposcd by CP ARC that thc proposcd usc in this casc may simultancously bc u "group homc" and a
"singlc family dwclling."
Thc Commonwculth Court followcd this rcasoning in Human Scrviccs Consultants Inc. v. ZHB
ofRutlcr Township. 137 Pa. Cmwlth, Ct. 594, 587 A.2nd 40 (1991), Likc Middlcscx Township, Butlcr
Township cxcludcd from its dcfinition of "family" a club, fratcrnallodging, or rooming housc, Sincc
thc Township did not cxcludc an "institutional homc" cxplicitly, it fcll within thc dcfinition of "family".
In Middlcscx Township, thc Ordinancc docs not cxplicitly cxcludc "group homcs" from thc dcfinition of
"family". Thcrcforc, a usc can, and this proposcd usc is, both,
The Prono,\'etl Cf.A ;,1' a "(011/;(1'''
A comparison ofthc dcfinitions for "dwclling" and "family" in thc Middlcscx Township
Ordinancc is instructivc. Thc dcfinition for "dwclling", likc thc dcfinition for "family" excludcs
boarding homcs, rooming homcs, and hotcls, Thc dcfinition for "dwclling" also cxcludcs "othcr
accommodations uscd for transicnt occupancy". This suggcsts that thc common charactcristic ofthosc
uscs cxcludcd as "dwcllings" is thc transicncc ofthc occupancy,
Thc group ofuscs in thc cxclusions for "family" is similar to thc exclusions for "dwclling. Thc
rcasonablc intcrprctation is that a "similar group living arrangcmcnt" is anothcr group living
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arrangement characterized by transient occupancy, This is not a characteristic of the proposed CLA as
has been found in many prior Pennsylvania cases,
The Appeal ofSummcrs _l'a. Comwlth, Ct._, 551 A2d, 1134 (1988) prcscntcd a similar
question. Thc township ordinancc dcfincd "family" as .....not morc than four unrelated individuals living
togcthcr in a singlc, nonprofit housckeeping unit and doing thcir own cooking on the prcmiscs". 551
A2d, at 1136. Ms, Summcrs proposcd two different programs in thc rcsidcnce that shc owncd. Thc first
was a rcspitc carc rcsidential program for rctardcd individuals, Thc sccond was a family living program
for rctardcd individuals, Thc Commonwcalth Court found that thc rcspitc carc program was not a
pcrmillcd usc as a family bccausc thc rcsidency was only tcmporary, In contrast, thc family living
program was a CLA and was a pcrmillcd usc as a singlc-family usc, 551 A2d. at 113701138.
Just by thc common ordinary mcaning ofthc tcrms uscd, thc proposcd CLA is not similar to a
fratcmity, club, or hotcl. By dcsign it is as similar as it can be to a family homc, Sincc thc proposcd
CLA mccts thc dcfinitions of "family" in the Middlcscx Township Ordinancc the proposcd usc should
bc rcgardcd as a pcrmittcd usc as a singlc family dwclling,
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B. THE MIDDLESEX TOWNSHIP ZONING HEARING BOARD INTERPRETATION OF THE
TOWNSHIP ZONING ORDINANCE VIOLATES THE FEDERAL FAIR HOUSING ACT
AMENDMENTS 42 U.S,C.A. !111360103616 BY FAILING TO MAKE REASONABLE
ACCOMMODATIONS IN THE TOWNSHIP RULES, POLICIES, OR PRACTICES, WHEN SUCH
ACCOMMODATIONS ARE NECESSARY TO AFFORD HANDICAPPED INDIVIDUALS EQUAL
OPPORTUNITY TO USE AND ENJOY A DWELLING.
711e Fail' HOI/.\'inl! Acl Amcne/mcnl,I' of 191111 rcal/irc IIIc 7iJII'l1.\'IIin
10 accomlllOe/alc IIIi.\' CIA a,~ a IIC/'millce/II.\'C
Whilc Icgal digcsts arc full of dccisions from thc Pcnnsylvania Commonwcalth Court pcrtaining
to group homcs as familics, fcw eascs rcflect disputcs which arosc after thc effectivc datc of thc Fcdcral
Fair Housing Act Amcndmcnts, 42 U,S.C.A. * 360]03616 (March 12, 1989),
Judgc Lcvin ofthc Eric County Court of Common PIcas analyzed thc impact ofthc Fcdcral Act
in In rc Millcrcck Township Zoninll Ordinance, 4 D,&C. 4th (1989),2
Thc court must also eonsidcr thc applicability of the fcderal Fair Housing
Amcndmcnts Act of 1988 to thc instant case, Thc 1988 amcndments to thc Fair
Housing Act (codificd at 42 U,S.C. **360103616) make denial of housing on thc
basis of an individual's handicap illegal. These new provisions address the
serious shortagc of nonoinstitutional accessiblc housing availablc to thosc with
disabilities. Thc amended act is set forth In rclcvant part below:
"*3604. Di.\'crimination/nlhe .\'ale or I'ell/a/ of hal/.\'illK ane/ alher
prohibited praclice.\' 00
"As madc applicable by scetion 3606 of this titlc and cxeept as cxcmptcd
by scctions 3603(b) and 3607 of this title, it shall bc unlawful m
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2 Appcllant recognizcs that this County Court Opinion is of no prccedcntial valuc to thc
Cumberland County Court, Thc opinion is neverthcless cited at length due to thc quality of
Judge Levin's rcscarch and analysis.
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"(f)( 1) To discriminatc In thc salc or rcntal, or 10 olherwise make
/l/lCIl'ailable or deny, a dwclling to any buycr or rcntcr bccausc of a handicap of 00.
"(a) that buycr or rcntcr;
"(b) a person residing In or intending 10 reside Inlhal dwelling ,!/ier it is
so sold. rented. or made available; or
"(c) any pcrson associatcd with that buycr or rcntcr" 42 U,S.C. 93604.
(cmphasis supplicd)
Thc FHAA broadly dcfincs "handicap" as follows: 93602, Definitions 0-
"As uscd In this subchaptcr ..
"(h) 'Handicap' mcans, with rcspcct to a pcrson 0.0
"( 1) a physical or mcntal impairment which substantially limits onc or
morc of such pcrson's major lifc activities,
"(2) a record of having such an impairment, or
"(3) bcing rcgardcd as having such an impairment. . ,42 U,S,C. 93602
This cxpansivc dcfinition cxtcnds protcction against housing
discrimination to a widc range of pcrsons, including thosc who havc bccn affccted
by ordinancc 87024 In thc casc at bar.
Thc act docs not apply solcly to discrimination In thc privatc salc or rcntal
of housing, In fact, under fcdcral case law, govcrnmcntal cntitics In thc housing
situation are subjcct to a strictcr standard for facially ncutral zoning dccisions
which havc discriminatory cffccts, Scc, c,g, Rcsidcnt Advisory Board v, Rizzo,
564 F ,2d 126 (3d Cir. 1977), ccrt, dcnicd, 435 U,S, 908 (1978); Arlinglon Heighls
II, 558 F,2d 1283 (7th Cir, 1977); Unitcd Statcs v, City of Black Jack, 508 F.2d
1179 (8th Cir, 1974), cert. dcnicd, 422 U.S, 1042 (1975).
+ + +
Thc Icgislativc history ofthc 1988 amcndmcnt undeniably indicatcs that local
zoning ordinanccs arc affectcd thcrcby:
'Whilc statc and local govcrnmcnts havc authority to protcct safcty and
hcalth, and to rcgulatc usc ofland, that authority has somctimcs bccn uscd
to restrict thc ability of individuals with handicaps to Iivc In communitics,
This has bccn accomplish cd by such mcans as thc cnactmcnt or imposition
ofhcalth, safcty or landousc rcquircmcnts on congrcgatc living
arrangemc!1ts among nonorclatcd pcrsons with disabilitics. Since Ihese
requirements are nol imposed onfamilies ami group.~ orsimilar size of
unrelaled people, Ihese re1luirement.l' have Ihe 4recI oldiscriminating
againsl people with disabililies. 11/C committee intends Ihallhe
prohibilionagainsllhe discriminalirlll againsllhose wilh lumdicap,\' apply
10 zoning decisiom and practices, Thc act is intcndcd to prohibit thc
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application of spccial rcquircmcnts through landousc regulations,
rcstrictivc covcnants, and conditional or special-use permits that have the
cffcct of limiting thc ability of such individuals to live In the residence of
thcir choicc In thc community.' Report, I louse Committcc on the
Judiciary, H,R, 1158, p, 24, Junc 17, 1988 (emphasis supplied),
4 D,&C. 4th pgs. 457-460
Fcdcral authoritics from the 3rd Circuit Districts confirm Judgc Lcvin's analysis ofthc Fair
Housing Act Amcndmcnts. In Assoc. for Advanccmcnt ofthc Mcnta\lv Ilandicappcd, Inc, vs, City
ofEli7~1bcth, 876 F. Supp. 614 (I994),thc District Court In New Jcrscy cnjoincd thc City from
cnforcing a city ordinancc which placcd land usc rcquircmcnts on a homc for six rctardcd citizens
whcn such rcquircmcnts wcrc not placcd on non-disablcd individuals, In Horizon Housc
Dcvelopmcntal Serviccs, Inc, vs, Southampton 804 F, Supp,683 (1992) thc District Court for thc
Eastcrn District of Pcnnsylvania found that a township ordinancc which had scparation rcquircmcnts
for homcs for disablcd individuals was In violation of thc fcdcral act and unconstitutional. Thc
township was found to bc In violation ofthc rcquircmcnts ofthc Fair Housing Act that
municipalitics makc rcasonablc accommodations In rulcs, policics. practices, or scrviccs whcn such
accommodations may bc ncccssary to afford handicappcd individuals cqual opportunity to usc and
cnjoy a dwclling. 804 F, Supp. at 699.
In Judy B. vs. Borou~h ofTio!:a, 889 F. Supp. 792 (M,D. Pa, 1995) Judgc McClurc cnjoincd
thc Borough of Tioga from cnforcing it's zoning ordinancc which rcquircd a rcsidcntial program to
obtain a usc variancc, Judgc McClurc dctcrmincd that thc possibility of sccking a usc variancc was
not a sufficicnt accommodation rcquircd by thc fedcral act. Judgc McClurc found unlawful
discrimination In thc Borough's cnforcement llfit's ordinancc, In Ilovsons, Inc. vs, Township of
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IV. CONCLUSION
For the above stated rcasons this Court should rcversc the decision of the Middlesex
Township Zoning Hearing Board, and dctermine that thc proposed CLA is a pcrmitted use under the
Middlesex Township Zoning Ordinance as a singlc-family dwelling.
Rcspcctfully submittcd,
ANDREWS & JOHNSON
By:
TIP. Andrews, Esq.
7 est Pomfret Strect
Carlisle, PA 17013
(717) 243.0123
Supremc Court ID No, 15641
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CUMBERLANDopERR Y ASSOCIATION
FOR RETARDED CITIZENS (CPARC),
PENNSYLVANIA
: IN TilE COURT OF COMMON I'LEAS OF
: CUMBERLAND COl JNTY,
Appellunt
: CIVIL ACTION -LAW
v.
THE ZONING HEARING BOARD OF
MIDDLESEX TOWNSHIP.
Appellee
: NO, 9702056
: ZONING APPEAL
CERTIFICATE OF SEIWICE
I hereby ccrtify thm on lhis datc August I, 1997, Illlailcd a copy of Ihc APPELLANT'S
BRIEF to thc following pcrsons at lhc following addresscs hy U .S, Mail, postagc prcpaid. to
addressce only:
Keith O. Brcnneman. Esquirc
Snelbakcr, Brcnncman & Sparc
44 West Main Strccl
Mechanicsburg, PA 17055
Solicilor lilr Middlesex Township
Edward W, Harker. Esquirc
Farmers Trust Building
1 West High Strcct
Carlisle, PA 17013
Solicitor In M idlllcsex Zoning IIcaring Board
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........C' '
By __~_~_ ~_,~~,~_,__
Tav r 1', AndreIVs, Esquire
C IIIsellilr CPARC, Appellant
1M W, POlllfrel Slrecl
Curlisle.PA 17013
Superior Court I.!>. IS()."
(717) 2.13.0123
Ie)
!
CIVIL ACTION - LAW
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CUMBERLAND-PERRY ASSOCIATION
FOR RETARDED CITIZENS (CPARC),
Appellant
IN TIlE COUR'l' OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Vs.
THE ZONING HEARING BOARD OF
MIDDLESEX TOWNSHIP,
Appellee
ZONING APPEAl,
NO. 97-2056
STATEMENT OF POSITION
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The Appellee, Middlesex Township Zoning lIearing Board, is a
duly appointed body of municipal government of Middlesex
Township. It is the function of the Zoning lIenring Board to
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receive, hear, and decide cases over which it hns jurisdiction
pursuant to the Pennsylvania Municipn1ities Planning Code and the
Middlesex Township Zoning Code. The Zoning Board performs a
quasi-judicial function and does not net in nn ndversarial
matter. Accordingly, it is the position of the Zoning Ilea ring
Board that it would be improper for it to proceed as an advocate
in this proceeding.
The Zoning Board submits that its decision was based upon
substantial competent evidence and in accordance with the limits
of its discretion under the Zoning Code.
The Zoning Hearing Board of Middlesex Township will
respectfully abide by the decision of this Honorable Court and
respectfully declines to participate further as an advocate
herein.
Board
Date: S- /S- - 17
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CORRECTED
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and subnitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next ArglJnent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
CUMBERLAND-PERRY ASSOCIATION
FOR RETARDED CITIZENS (CPARC)
(plaintiff)
vs.
THE ZONING HEARING BOARD OF
MIDDLESEX TOWNSHIP
(Defendant)
No. 97-2056
Civil
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1. State matter to be argued (Le.. plaintiff's mtion for new trial. defendant's
demurrer to complaint. etc.):
Appeal from decision of Zoning Hearing Board of Middlesex Township.
2. Identify counsel who will argue case:
(a) for plaintiff: Taylor P. Andrews, Esquire
Address: 78 W. Pomfret Street, Carlisle, PA 17013
(b) for defendant:
J\ddress:
none
see Appellees' Statement of position
3. I will notify all parties in writing within t\oQ days that this case has
been listed for argtJrell t.
4 . Argunent Court Date:
August l3, 1997
Dated: June 16, 1997
Appe II an t
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CUMBERLAND-PERR Y ASSOCIATION
FOR RETARDED CITIZENS (CPARC),
Appcllant
: IN TIlE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
: CIVIL ACTION - LA W
v.
TIlE ZONING HEARING BOARD OF
MIDDLESEX TOWNSHIP,
Appcllcc
: NO. 97- ,JOSL,
: ZONING APPEAL
. .1 ...."
L~J V<!t-"l
NOTICE OF APPEAL
CUMBERLAND-PERRY ASSOCIATION FOR RETARDED CITIZENS (hercinafter
CPARC), by its attorncy, Taylor P. Andrews, Esquirc of Andrcws & Johnson, hcrcby appcals from thc
decision of thc Zoning Hcaring Board of Middlcsex Township, and in support thcrcof, statcs thc
following:
1, This Court has jurisdiction ovcr thc instant appcal pursuant to Scction 1002A of thc
Pennsylvania Municipalitics Planning Codc,thc Act ofDccembcr 21,1988, P,L. 1329,53 P,S, Scction
1 1002-A and Scction 933 of thc Judicial Codc, the Act of April 28, 1978, P.L. 202, No, 53, amcnded, 42
Pa. C,S,A, Scction 933,
2, Thc Appcllant is CumbcrlandoPerry Association for Retarded for Citizens, a nonoprolit
corporation organizcd undcr thc laws of thc Commonwealth of Pcnnsylvania with its officc at 117 North
Hanovcr Strcet, Carlislc, Pcnnsylvania 17013,
3. The Appcllcc is thc Zoning Hearing Board of Middlcscx Township (hcrcinaftcr rcfcrrcd
to as thc "Board"), an agency of Middlcsex Towmhip creatcd and cxisting pursuant to thc Pcnnsylvania
Municipalitics Planning Codc, The Act of July 31. 1968, P.L. 80S, as amendcd, 53 P,S, Scction 10101 ct
c :\dntn\sharcd\cparc\zoning .apl
scq" and having its officc and placc of busincss at 350 North Middlcscx Road, Carlislc, Pcnnsylvania
17013,
4.
5.
CP ARC providcs rcsidcntial scrviccs to dcvelopmcntally disablcd (rctardcd) individuals,
In Dcccmbcr 1996 CP ARC sought approval from Middlcscx Township, Cumberland
County, Pcnnsylvania to cstablish a rcsidcntial program known as a Community Living Arrangcmcnt
(CLA) in n house located in thc Villagc Ccntcr Zoning District in Middlcscx Township. Thc Middlcscx
Township acting Zoning Officcr advised CP ARC that such a usc could only bc cstablishcd as a "group
homc" which would rcquirc approval by thc Township Zoning Hcaring Board,
6. By Icttcr datcd January 17, 1997 CPARC, through Icgal counscl, Taylor p, Andrcws,
Esquirc, requcstcd that the Middlcscx Township Zoning Officcr intcrprct the Middlcscx Township
Zoning Ordinancc to pcrmit CPARC's cstablishmcnt ofthc proposcd CLA for thrcc rctarded individuals
as a singlc family dwclling which was a pcrmittcd usc within thc Villagc Ccntcr District. (A copy of
CPARC's rcqucstcd intcrprctation is attachcd hcrcto as Exhibit I)
7. In rcsponsc to thc rcqucst by CPARC for an interpretation, thc Zoning Officcr of
Middlcscx Township madc a fonnal writtcn intcrprctation that thc proposcd CLA was not n pcrmitted
usc, but rathcr a usc that could bc cstablishcd only by a special cxception, (The Zoning Officcr's
intcrprctation is attachcd hcrcto as Exhibit 2)
8, CI'ARC appcalcd to thc Middlcscx Township Zoning Hcaring Board from this
intcrprctation by thc Middlcscx Township Zoning Olliccr ofthc Middlcscx Township Zoning
Ordinancc.
CUMBERLAND-PERR Y ASSOCIATION
FOR REI ARDED CITIZENS (CPARC),
Appcllant
: IN TIlE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
r
I
!
: CIVIL ACTION - LAW
v.
THE ZONING HEARING BOARD OF
MIDDLESEX TOWNSHIP,
Appcllcc
: NO, 97-
: ZONING APPEAL
CERTIFICATE OF SERVICE
I hereby certify that on this date April 21, 1997, I mailed a copy of the Notice of Appeal to the
following persons at thc following addrcsscs by U ,S. Mail, postage prcpaid, to addressee only:
Keith O. Brenneman, Esquire
Snelbaker, Brenneman & Spare
44 West Main Street
Mechanicsburg, PA 17055
Solicitor for Middlesex Township
Edward W, Harker, Esquire
Farmers Trust Building
1 West High Strect
Carlislc, PA 17013
Solicitor to Middlesex Zoning Hearing Board
ANDREWS & JOHNSON
By
Ta or . Andrcws, Esquirc
C un I for CI' ARC, Appcllant
7 , Pomfrcl Strcct
Carlislc,l'A 17013
Supcrior Court I.D. 15641
(717) 24300123
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ANDREWS & .JOHNSON
Allorlleys at Law
tOf1(
7X W, 1'0ll1frel Street
Carlisle.l'A 17013,3216
TA YLOR P. ANDREWS
RONALD E. .IOHNSON
Telephone (717) 243-0123
Telefax (717) 243-006\
January 17. \997 (Corrected)
Regular mail and faxed to: 24908564
Middlesex Township Zoning Hearing Board
c/o Mr. Mark Carpenter, Middlesex Township Zoning Officer
350 North Middlesex Road
Suite 1
Carlisle, PA 17013
Re: Cumberlandoperry Association for Retarded Citizens (CPARC) request
for interpretation that proposed community living arrangement (CLA) is
permitted use,
Dear Mr. Call1enter:
By thi~ Ielll'r I formally request an interpretation from your (,nice ,If your IOwnship
wning ordinance as it applies to the propusal of (PARC 10 establish a CI.A in your Village
Center District
The CLA program proposed by CPARC 1I'0uld be a residence for 3 developmentally
disabled (retarded) individuals in a single family dwelling. CPARC woold provide supporting
staff 24 hours per day, thuugh none of the staff 1I'0uld reside in the homc, The three residents
woold be unrelated and they would live and cook together as a single housekeeping unit.
I am cnclosing with this lettcr copics of several cases, _The el.l\ proposed by CPARC
is the same type of residence as is described in the following cases which are enclosed:
Philadelphia CClllcr for Developmental Serviccs. Inc, vs, ZHB of Plynll1uth Township, 89 Pa.
Cmwllh, 591, 492 A ,2d 1191 (1985), Human Services Consultants, Inc, vs, ZHB of Butler
Township, _ Pa, Cmwllh. _,587 A,2d 40 (1991), Horizon House Developmental
Serviccs,lnc vs, Township of Uppcr Southampton, 804 F. Supp, 683 IE,D,Pa, 1992),
EXHIBIT 1
Mark Carpenter
,2-
January 17, 1997
The definition of "family" in your township ordinance includes the CLA proposed by
CPARC under the law of the land as established by the cases which I enclose, There will not
be more than four unrelated persons living and cooking together in a single housekeeping unit
and this home will not be a boarding or rooming house, lodging house, club, fraternity. hotel
or any similar group living arrangement. As is the case with most ordinances, the Middlesex
Township zoning ordinance does not count household servants as occupants of a dwelling unit
for determining whether the definition of family is met. Philadelphia Center for
Developmental Services, Inc, vs, ZHR of Plvmouth Township, Supra, and I'(uman Services
Consultants. Inc, vs, ZIIR of Butler Townshi[l, Supra, hold that rotating staff for a CLA are to
be treated as household servants and do not change the nature of the use from a "family" use,
I acknowlcdge thaI there is a definition for "group home" in the Middlesex ordinance,
I also acknowledge that it would seemingly apply to CPARC's proposed CLA, Since the
definition of "group home" permits up to seven unrelated persons to reside IOgether, 1 suggest
that "group homes" with more than four residents would not be considered a "family" under
your ordinance, but "group homes" with fewer than four residents would be regarded as a
"family".
I further suggest that the ordinance should be interpreted to allow the CLA as a single
family dwelling as a permitted use without need for a special exception even if it should also
meet the definition of "group home", This would leave for another day whether the township
can require special exceptions for group homes for more than four residems, (if the homes are
to provide a residence for a class protected by the Federal Housing Act Amendments)
In funher support of our proposed interpretation. I enclose wples of five separate
federal decisions fnlm \\uhillthe third circuit which clearly estahlish a dlll~ IIp.'n each
municipahlY to a\'.,id "'lImg lequirements which. though neulral .'11 Ilk'lr laa' may have a
discrimillatoryeffect lhe cases also establish a duty upcllmUllicll'alilil'~ 11\ make reasonable
accommodatiolls inlhe application of their ordinances so thaI hf)u~lItg "PPllllllllilies for the
disabled may be assured and protected, I have not included a cor~ of Ihe felbal act for it is
cited repeatedly throughoulthe federal cases,
I call your allellll1lll. and the attention of your township sollcilor. tothe Ilorizonl'louse
Developmcnlal Services, Inl. Surra, case which \\'as one of the 1c:lIltng ca~es 111 the nation
inlerpreting Ihe impact of the Fair I'lousing Act Amendments of l'IXX onnllllllcipal zoning,
You willl\llle the Dislrict Cnurt struck down as discriminator-)' a spacillg rcquirement such as
exists in Scction 14,)1C61nf your ordinance.
Bascll uron the aUlhorities which I have suhmilled, I requcst your inlerpretation thaI
CPARC may establish ils eLA forlhrec residents as a permitted use in the Village Center
District without the need for a special exception or any other approval from the Zoning
Hearing Board. I ask Ihal you confer with your township solicitor on the aUlhorities which I
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January 17, 1997
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havc submittcd, and that you makc a prompt decision, If you agrcc, 1 ask thatthc $600
dcposit prcviously paid by CPARC be rcturncd and the request for a spccial cxccption bc
dccmcd withdrawn,
As I indicated in my letter of January 15, 1997. if your dccision is advcrsc to CPARC,
CI'ARC plans to appcal so that thc Zoning Hearing Board may considcr thc intcrprctation
question along with thc application for thc spccial cxccption.
Thank you for your considcration 10 this rcqucst I look forward to rccciving your
responsc,
Sincerely.
ANDREWS & JOHNSON
Taylor P. Andrcws
Attorney for CumbcrlandoPerry Association
for Rctardcd Citizens
TI'A:ss
cc: Kcith Brcnncman, Esquire
Edward W, Harkcr, Esquirc
Caml Ferenz. Director Residential Services
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MIDDLESEX T
350 N. MIDDLESEX ROAD, SUITE I- CARLISLE, PA 17013 -
Municipal Socrelllt'(.
Gall W. JonSlk
Zoning Officet:
MBlk Q. Carpentor
Board 01 Supervisors
Robell M. EpploV. Joseph V. Capuano. Charles W ShughOlI
I
,
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January 27, 1997
Mr, Taylor P. Andrews
And;ews k Johnso/1 Att(lm"y~ at Law
78 W, 1'0mlTet St.
Carlisle, PA 17013-3216
,
Re: CumberlandoPeny Association for Retarded Citizens (CPARC)
request for interpretation that proposed Commwlity Living Arrangclllcnt
(CLA) is pennittcd u~e.
l
Dcar Mr. A1idrllws:
By this'letter 1 am [(lmially iiiterprelIDgthe Township'Z6ning Ordinance as it
applies to the proposal ofCPARC to establish a Group home for thrc.: individuals ill all
existing residcnlial house locatcd al 102 North Middlesex Road in the Vill:.gc CClltcr (VC)
Zoning District.
1 interpret that, lhe Group Home as proposed in the application for hcaring bcfore
the Middlesex Township Zoning Hearing Board (ZHB) by CPARC, (datcd 12-18096 and
granted an extcnsion for continuance ofhcaring by lhe ZHB on 1-15-97) is in filct a
Group Home as defined in thc Middlcsex Township Zoning Ordinance (ZO). "Group
HOII/e" is thercin defincd as: "A licemed dwelll/lg providil/g supervised I/O/l'/!'lI1/,\Ie/l/
iodgillg lJr redden/ial se/Tice:; for /IU/more /hall sew/I ,7j jlO!/'SOI1S including supel1'lsOI:I'
persollni!I, hll/ excluding domes/ie help limited /0 /wo (2) inll/mlber, il/lI'll/ch some 0,. (/11
of /lIe (}(,CUpaIllS arc ul/,.ela/~d." In their ZHfi ^pplicalion, CP^ RC. stales Ilwl
"CPARe operaled group hUlllcs arc lic"lIscd by thc St:tte 'JfPCl!'lsyl~allia," ThercliJrc,
since the proposed lucility is liccnscd, il is a Group Home as dllfinctl in the ZO,
111l: uefinitiun of""""l11i~I'" in the ZO exclllllcs thc plOpllscd US!; hy CPARC. 'l1sis
dcfinil:(ln states in part lhil! "A fami~l' as he,..!ill defi,,,!d specifically excludes 1/ uoardill:.J
or /'DVmillg house, ludgi/lg ho/!se, l'iub..rm/(!I'Ili~l'. lIo/e1I.l/' I1I!J' ~illlilar }!./'OUj> lili/!g
WTa/If.<!/lWm", I inicl]lI'~1 th"t the group home pro(Jos~d hy CPARC is n, "~il11ilal gruup
livint; llirali!:clIlcut". which j" ':xdndd 1II111cr the dl'liniliun or"blllily" inlh.~ 1.0
EXHIBIT 2
Under Section 14,51 of the ZO, the Middlesex Township Zoning Hearing Doard
may approve group homes according to certain procedurcs and rcqnircmcnts as sct forth
inlhat scclion, In my opinion, thc grant ofthc group home usc uudcr circumstanccs
whcrc ccrtainlistcd rcquiremcnts are to be met or complicd with makcs the approval in
the nature ofspccial exccption, '11lcrcfore, I concludc that approvalofthc group homc
must bc obtained fromthc Zoning Ilcaring Board.
Plcasc be adviscd that you clicnt has thc right to appeal this dctcnllination to thc
Middlcscx Township Zoning Hcaring Board in accordancc with thc rcqnircmcnts
containcd in thc Zoning Ordinancc,
Also, as requestcd in their letter dated 1-17-97 by Andrcws and Johnson, 1 will
advcltise that an appcal to my intcrprctation of the ZO, dcnying CPARC's proposcd
Group Homc as a pcmlittcd use in thc VC District, bc hcard at thc 2-12097 ZIIn hearing
prior to considcration ofthc application for Spccial Exccption.
[n conclusion, [ dctcnlline that thc proposcd CPARC group homc is not a
pcnllittcd usc within the VC district. As requcstcd, I will advcrtisc Ihc proposcd CPARC
Group Homc as an application for Special Exccptionlo bc considcrcd allhc 2012-97
hearing oflhe Middlcscx Township ZHB, '111is issue will be brought bcforc thc Middlcscx
Towuship Planning Commission on 1-27-97 for rcvicw and written rccommcndation to
thc ZHB as requircd iu ZO Scction 17.07,
-
Sinccrcly,
/&J $9, ~
Mark D, Carpcntcr
Zoning Officer
cc: Keith Brcnncman
Edwald Harkcr
Robcrt Epplcy
Joseph Capuano
Charles Shughart
6. The Applicant concedes that the proposed use fits
the ordinance definition of "Group Home", but argues that
this definition is inapplicable because the ordinance
provides that not more than four persons living together
as a single housekeeping unit shall be deemed to
constitut& a "family".
7. The Applicant also contends that it would be
discriminatory to hold that three retarded citizens did
not constitute a "family"; however, no evidence of actual
discrimination or intent to discriminate was presented.
~ONC_LUSJ..QNS :
1. The Zoning Code authorizes group home uses upon
approval of the zoning hearing board, (Zoning Code
Sect i on 14.51).
2.
special
defined
A use for which the Zoning Board may grant a
use permit constitutes a "special exception" as
by the Ordinance. (Zoning Code Section, 11-21).
3. The Zoning Officer is mandated to apply the Zoning
Ordinance literally and may not modify or vary its terms.
(Zoning Code Section 17.01).
4, The ordinance definition of "Family" specifically
excludes boarding homes or similar group living
arrangements from the exception which declares four or
fewer persons a "family" (Zoning Code Section 2.03),
5. The Code contains a specific definition of the
term "Group Home" (Zoning Code Section 2.03).
6, The specific term "Group Home", and the exclusion
contained in the definition of "family" control the
general language contained in the definition of family.
7, The Applicant in this case is not in fact a person
proposing to live as a member of a single housekeeping
unit as specified in the definition of "family", but
rather is a corporate entity proposing to occupy the
premises for the purpose of its licensed activity as a
caregiver or provider. (Zoning Code Section 2.03).
8. The definitions of "group home" and "family" are
not in conflict, but rather the specific provisions as to
group homes define and clarify the nature of the living
arrangements provided for by the ordinance.
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aJMBERLAND-PERRY ASSOCIATION
(oUR RE:J'ARDED CITIZENS (CPARC)
Appellan t
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
111E ZONIl'-KJ IIE1\RING OOARD OF
MI DDLESEX 'iU.'lNSIII P
Appellee
NO. 97-2056
CIVIL TER-!
WRIT OF CERTIORARI
COMMONWEALTH OF PENNSYLVANIA)
55.
COUNTY
OF
CUMBERLAND)
TO: THE ZONING HEIIRING OOlIRD OF MIDDLESEX 'iU.'lNSHIP
We, being willing for certain reasons, to have certified a certain action
between aJMBERLJl.ND-PERRY ASSOCIATION FOR RETARDm rT'I'T7.F.N~ (rPARr') V"
THE ZONING HEIIRING OOJ\RD OF MIDDLESEX TCMNSHIP
pending before you, do command you that the record of the action aforesaid with
all things concerning said action, shall be certified and sent to our judges of
our Court of Common Pleas at Carlisle, within 20
days of the date hereof,
together with this writ: so that ~~ may further cause to be done that which ought
to be done according to the laws and Constitution of this Commonwealth.
WITNESS, the Honorable Harold E. Sheely, P.J.
our said Court, at Carlisle, Pa., the
21st day of April
, 19 .!n-.
'1ft!!/( K ,~&, 0;4'i
Prothonotary
THE ZONING HEARING BOARD OF
MIDDLESEX TOWNSHIP,
Appellee
ZONING APPEAL
,
r
,
CUMBERLAND-PERRY ASSOCIATION
FOR RETARDED CITIZENS (CPARC),
Appellant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Vs,
NO. 97-2056
CERTIFICATE OF RECORD
I, Edward W, Harker, One West High Street, Carlisle,
Pennsylvania, Solicitor to the zoning Hearing Board of Middlesex
Township, hereby certify that the following documents, filed
herewith, constitute a true and correct record of all proceedings
in the above matter before the Zoning Hearing Board.
A. Zoning Application by Cumberland Perry Association
for Retarded Citizens dated December lB, 1996;
B. Decision of the Zoning Hearing Board dated
April 4, 1997;
C, Letter of Determination by Zoning Officer
Carpenter dated January 27, 1997;
D. Brief of Applicant;
E. Brief of Township Supervisors dated March 12, 1997;
F. Transcript of the February 12, 1997, hearing;
G. Transcript of the March 12, 1997, hearing;
H. Exhibits admitted A-I to A-7 (attached to
transcript) .
I. Middlesex Township Zoning Ordinance:
Current Ordinance No. 3-B9.
Date:
5" - / S-'17
S~bmitte~
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er.~ Esqu~re
One W st High Street
Carl sle, PA 17013
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1, The hou~e has 1,900 soare feet of habitable floor ~rea (a minimum of 1,050
~quare feet is required).
2. A ~ommon kitrhen and dining area exi~t~ in the home and thi~ i~ where the
individual~ will prepare and eat meal~ family ~tyle, No rooking or dining
farilities exi~t in the individual rooms.
3. This home ha~ publir water and ~ewage farilities.
~. CPARC operated group homes all romply with the Federal Life Safety Code,
Department of Labor and Industry, and all other applirable building, safety,
and fire rodes.
5. CPARC operated group homes are licensed by the State of Pennsylvania
(Lirense 0331690).
6. There are no ether rroup hc~e5 lorated within 2,000 square feet of thi~ house,
7. There i5 ample off-street parking at this house (inoluding a two-oar garage,
parking area for at lea~t four car~, and a long driveway). The three
individual~ who will reside at this house do not drive or own vehioles;
however, staff working at the hou~e (usually one or two at a time) will have
cars there while on duty.
MIDDLESEX TOWNSHIP
PLANNING COMMISSION WORKSHOP MEETING
FEBRUARY 10, 1997
In attendance: Ms. Kathy Holtry, Chairman
Mr. Victor Stabile, Vice-Chairman
Mr, Edward Kessler
Mr, Bruce Bistline
Mr, John Rebert
Mr, George Murin
Ms. Doris Law
Mr. Mark Carpenter,Zoning Officer
Mr. Bud Grove, Grove Associates
Ms. Nancy Holland, Secretary
The meeting was called to order at 7:00 p.m. by Ms. Holtry.
Mr. Bistline made a motion to approve the minutes of January 27,1997
with correction to T.I.P. second (2) motion reads be approved, shOUld
read be recommended for approval. Mr. Kessler second the motion.
REDNECK TRAILER SUPPLIES-PRELM/FINAL LAND DEVELOPMENT PLAN
Mr. John Murphy Of ALPHA Engineers, Inc. stated that a subdivision plan
had been added to the submission and also comments from Grove Assoc.
dated January 27, 1997 and Mr. Carpenters comments have been addressed.
A revised letter also was received from the sewer authority and a letter
from the county conservation district.
Mr. Carpenter states that the ordinance states that the fence shOUld be
shown in the rear yard. The northern property line shOUld be shown as
the rear setback line, Mr. Carpenter also added that the plan shOUld be
titled as a Preliminary/Final Subdivision and Revised Land Development Plan
on the C-l cover sheet.
Waivers requested are Prelm/Final Plan, traffic impact study, and also
a waiver request for sidewalks, curbing currently exists,
KEEN TRANSPORT, INC. SHOP BUILDING ADDITION FINAL LAND DEVELOPMENT PLAN.
Mr. Alan Zeigler,Mr. Jerry Longenecker of Skelly & Loy Mr. Mark Chrysler
of Keen
Mr. Grove's main concern was comment #11 of Grove Associates comments
dated February 6. 1997, that more support is needed to show how they
arrive at the infiltration rates. Keen requested using a higher run-off
co-efficient higher than recommended for this project. Mr. Grove replied
that he would not be in the position to recommend changing his recommend-
ation on the run-off co-efficient to the planning commission, and requested
from Keen more information on how the determined infiltration rates.
The Municipal Authority at this time has recommended the plan for approval,
with some minor revisions. letter dated January 31, 1997 Re: Submitted
Waste Water Management Report and Specifications for Keen Leasing, Inc.
Mr, Carpenter commented again on the boundaries between paving and grass
be delineated, also a note be placed on the plan detailing the language
contained in the decision of the Zoning Hearing Board, As stated in the
letter dated January 31,1997 of the Municipal Authority to show the 20'
right of way and water main located on Keen's property, along with ex-
isting water and fire hydrant located along US Route ~II in front of
Keen's property.
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CUNBERLAND-PERRY ASSOC. FOR RETARDED CITIZENS (CPARC)
Nr. Taylor Andrews attorney for (CPARC) and Ns. Carol Ferenz director of
residential services for (CPARC)
Ns. Ferenz had inquired about the flooding and water levels in the
residence of 102 North Middlesex Road, Nr. Norrison the owner had
stated no water had been inside the home and when the basement was checked
no evidence of water was found, The oil company that services the home
had no service calls for the furnace. Should water ever be a problem
(CPARC) does have evacuation procedures.
In regard to the parking area there is room for four (4) vehicle's each
easily moved. Ms. Ferenz added on an average day two(2) or three (3)
vehicles may be there, and on occasion as high as four (4) vehicles
could be there, Ms. Law inquired about the staff requirements. Ms.
Ferenz replied that the staff members mayor may not have a degree,
they must be eighteen (18) have a valid drivers license. First aid,
CPR training, fire safety, medication training are required. Ms. Ferenz
added a requirement for this group home is to be able to be managed and
live in a community environment, The staff is trained to handle
emergencies, how to handle a person who is aggravated or upset.
Mr. Shughart spoke with neighbors and found little interest in visiting
other group homes, however Mr. Shughart plans on doing so. Ms. Ferenz
added all the people who come into the program come voluntary, there
are no court orders, they are free to come and go, The individual is
placed near where their family is or where they have grown up or spent
time. They are people who have a desire to learn community skills and
self care skills. They help with clean-up days, United Way ect.
Ms. Law questioned if the individuals had a history of being arrested.
Ms. Ferenz added that it is possible, but it is not your typical profile.
they are mentally retarded, not mentally ill. Mr, Stabile asked the
planning commission and the public to review the special exception
criteria, article 17 page 11 section 1707, as these are the consider-
ations we have to address in making recommendation to the Zoning Hearing
Board. The first consideration is the safety, health and welfare of
the neighborhood. Ms. Ferenz presented an article on effects of Group
Homes on Property Values, also Mr. Andrews presented a resolution.
Numerous studies have demonstrated that small community residential
facilities have no adverse impact on the property values of neighbo~ing
homes. Second consideration is structure easily accessible by fire and
police protection, which Mr, Andrews assures is no problem.
Public comment for recommendation. Nr Scott Watkins concerns, Is this
considered a business, about the habitable 350' per person, and parking.
Concerns of the flooding of Clemson Road and traffic safety. Mr. Watkins
also asked how Ns. Ferenz would have the individuals involved in the
community. Her reply was to have an open house, church involvement,
community events clean-up days ect.
Mr. Boze of (CPARC) expressed the residents of (CPARC) are gentle and
caring individuals and know when they are not liked. Nr. Johnson of
144 North Niddlesex Road has a concern about all the local truck stops
with the drug use and prostitution, that the individuals may be easily
persuaded, Ns Ferenz replied all walks are supervised.
Nr. Norrison owner of the home states all of the previous tenants over
the past ten (10) years have had small children and have had no problems
with the water or traffic.
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Mr. Gordon replied that he will defend his property and rights nt any
cost. Mr. Stabile stated he feels that most of the fear residents have
comes from the fear of the unknown and not understanding.
Mr. Schughart added he has a seriously handicapped child as a neighbor and
welcomes (CPARC) to be his neighbor if the plan is disapproved.
Ms. Law questioned if a friendship was made with a neighbor would the
individual be allowed to go on outings with that friend. Ms, Ferenz
replied yes it would be just like any other friend.
Mr. Stabile took a vote of the planning commission, all are in agreement.
Mr. Kessler noted that nothing in the ordinance prohibits this intended
use. The safety and welfare of residents is the concern.
Mr. Stabile on behalf of the Middlesex Planning Commission, the following
is a summary of the recommendation that would be made to the Zoning Hearing
Board for the consideration on the application of (CPARC) to operate a
group home at 102 North Middlesex Road for three (3) individuals and a
full time supervisor, The explanation of (CPARC) and comments from the
residents of the community and have looked at section 1707 to guide
us in consideration of the application. We have considered in particular
section 170 7 B-2 A. & B. C & D do not apply to what is being proposed.
Two (2) A requests looking at the public safety and welfare of the
public and immediate neighborhood. Based upon what we have heard we can
discern no imninenr threat to public health safety and welfare by
(CPARC) using the home in the manner stated, however there have been
a number of concerns by residents for the ability of )CPARC) residents
to inhabit the home and kept there safely,llith respect to local flooding
conditions, traffic safety with residents walking the neighborhood,
and with residents wandering, We recommend to the Zoning Hearing Board
that those concerns be considered by the board under the criteria in
the ordinance and that it be judged by the applicable legal standards.
We are satisfied on what has been brought to us by (CPARC) for
accessability for fire and police protection, as well as parking meets
the spirit and letter of the ordinance and at this time no other concerns
to the health, safety and welfare, Subject two (2) the further review
of the safety considerations that I have stated would be the recommend-
ation of the planning commission that the group home be allowed as
presented in the application as a special exception, and that if it is
granted by the Zoning Hearing Board that it be granted specifically
to the user (CPARC) and not the landlord.
Mr. Kessler second the motion.
MIDDLESEX TOHNSIIIP
PLANNING COMMISSION REGULAR MEETING
JANUARY 27,1997
CUMBERLAND-PERRY ASSOCIATION FOR RETARDED CITIZENS (CPARC)
Mr. Taylor Andrews attorney for (CPARC) Ms. Carol Ferenz director
of residential services for (CPARC).
The residential dwelling at 102 North Middlesex Road In the Village
Center Zoning District, Is being purposed to establish a group home
for three (3) Individuals. They are asking for an Interpeetatlon
of the township zoning ordinance as it applies to a group home.
A group home i~ permitted I~'t~(s'di~~rict under a special exception.
Application has been made to the Zoning lIearing Board for special
exception on February 12. 1997.
There will be staff peesent at the dwelling whenever any of the
individuals are there . The staff works on a rotating shift. The
house will operate to the maximum extent possible as a family
dwelling. The idea is to emulate family life for the citizens
living in the home. with the assistance and support of the staff of
(CPARC) .
Presently (CPARC) operates nine (9) group homes serving forty-seven (47)
individuals in Cumberland-Perry County.
Referal come from the County Office of Retardation. They are people
who show interest in learning skills and being part of the community,
who do not need nursing care, and can be managed. The goal is for
everyone to be employed. however if they are not employed in a regular
work environment. they attend some type of training program to learn
job skills. The level of retardation varies in people who are put
in geoup homes, some serve people who need assistance with feeding.
dressing bathing other homes serve people who live very independently,
and their goal is to eventually live in their own apartment. Mr.
Stabile asked Ms. Feeenz what her experiences were with other municipal-
itties, and how that has worked out in the community. Hs. Ferenz has
been involved in opening seven (7) homes and has had a variety of
responses. fear mostly. as people do not know what to expect. In
nine out of ten instances where there had been opposition. most have
turned around and are appreciative. and have a good relationship with
neighbors. However. some have chosen not to be Involved.
Mr. Gordon who live next to the dwelling being purposed as a group
home, in the past had to put up a 6' fence to protect his family from
dogs, now his concern is with the individuals that would be living
next to them. Mr. Kessler questioned the safety factor with the
traffic on North Middlesex Road.
Mr. Ed Rotz of 105 North Middlesex Road is concerned about the
special exception if this Is approved what is next?
Hs. Lynn Reinhold of 112 North Hiddlesex is concerned about her property
value and keeping the Village Center original historic district.
He. Marlin Calaman of 107 North Middlesex has conceens with the water
and how quickly it rises. Ms Vesta Calaman of 107 Noeth Middlesex
feels (CPARC) need to meet with the people and get more Input.
Julie Green of 107 North Middlesex is concerned about supervision, how
can at times, one (1) staff watch theee (3) individuals.
Mr. Stabile questions the interpretation. There is no place in the
ordinance that permits this as a permitted use, or as an identified
special exception. Do we need an Interpretation as to this district
allowing a special exception. Mr. Brenneman added that the Zoning Hearing
Board will decide if It is permitted.
Ms. Holtry suggested to (CPARC) that they may want to further look
into the high vater problem. before going any further.
Hr. Stabile requested that section 17.07 under B 2 a.b,c,d
which need to be considered under special exception request, comments
from both sides for and against addressing that criteria, Ms. Law
suggested giving a list of homes for people to drive by or to talk
with neighboes, The special exception would follow (CPARC) not the
landlord.RQco~mcndatian "ill be made at tIle next "orkshop meeting.
MIDDLESEX TOWNSHIP ZONING HEARING BOARD
350 NORTH MIDDLESEX ROAD
CARLISLE, PENNSYLVANIA 11013
Q,!;gJUQJ'1 Of. J}iE ZQ",ING,!:lI~l~.!:n!iG.B_Q~BD
IN RE~ CUMBE=RLAllfl-PERRY ASSOCIATION FOR RETARDED CITIZENS
(CPARC)
APPLI~ATlnN DATED:
12- 1 8- 96
PROPERTY: 102 North M i dd I esex Road
HEARING DATES: February 12, 1997, March 12, 1997
ATTENDANCE: Board Members Nelderer, McLane, Barnett,
Layman, Boyer, SolicItor Harker, TownshIp SolicItor
Brenneman, Zoning Officer Carpenter, Applicant
represented by Taylor Andrews, Esq.
EI!iQ.IN~~__Of_EAC1:
1, The Appllcant, CPAR~, is seeking to establish ~
grolJp home fOt' up t.r. t.hree unrelFlterl r'elanled citizens,
and has reQIlf'sted both H "peclal except io;'n , and r'evers'll
of the detprmjnatlon of the Zonlng Officer lo the effect
that such specjal exception Is necessary.
2. This decislon relates to the Appeal from the
de1.ermil'a1:.lon of the Zon ing Off Il~er that the use prop0sed
by the Appl icant constitutes a "Group Horne".
3. The Applicant contends that the zoning officer
erred as a mAtter of law In his 1nt.erpretatlon of the
Ordinance in accordance WIth a letter Issued on January
21, 1991,
4, The Applicant is a non-pr'ofit Cot'pr;ration which
specializes in advocating and prOVIding for the needs and
interests of retarded citizens.
5, The Appllcant proposes t.o operate a state lIcensed
facility for retarded CItizens at. H site leased by the
Applicunt.
Ii. Though t.he pt'ellllse~' would be occupIed by the
retarded citlzens, the Appllcant would be the entity
responSIble for the operation of the h0me,
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6. The ApplIcant concedes thut the proposed use fits
the ordInance def Ini t ion of "Group Hum,~", but a"ques thut
this definition is inappl icable because the ordInance
provines that not more t.han four persons l,v ing togethe,'
as a single housekeeping unit shall be deemed to
constItute a "family",
7. The Applicant also contends that 1t would be
discriminatory to hold that three retarded citizens did
not constitute a "family"; however, no eVld~nce of actual
discrimination or intent to discrim1nate was presenten.
CONCl.USIONS;
1, The Zoning Code authorIzes group home uses upon
approval of the zoning hearing board. (Zon1ng Code
Section 14.51 J.
2,
special
defined
A use for which the Zoning Board may grunt a
use permit constitutes a "specIal exception" as
by th'l Ordinance. (Zoning Code SectIon, Ir-21 I.
3, The Zoning Offir.er is mandated to apply the Zoning
Ordinance literally and may not n10dify or vary It.S terms.
(Zoning Code Section 17.01).
4, The ordinance definItion of "Fami Iy" specifically
'lxcludes boarding homes or simIlar group liVIng
arr'ang'lments f,'om tl'1'~ .Jxception wh iGh dec lares four or
fewer persons a "family" (ZonIng Code SectIon 2.031.
5. The Code cont.ains a speCIfic definition of the
term "Group Home" (Zoning Code Section 2.031,
6. The speCific term "Group Home", and the exclusinn
contained in the definition of "family" control th'l
general language contained in the definItion of family.
7. The Applicant in this case 1S not in fact a person
proposing to I ive as a member of a SIngle housekeepIng
unit as specified in the definition of "family", but
rather is a corpora te ent. i ty propos i ng t.O OCC1IPy the
premises for the purpose of its licensed actiVIty as a
crlt'eg i ver or p"ov i rier. ( Zon i ng Code Sect i on 2.031.
8. The definItions of "group home" and "family" are
not in cnnfl ir.t, but rather the specific provisions as to
group homes define and clarify the nature of the living
arrangements provided for by the ordinance.
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*. 1721 *
~.:
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lOWNSI-I1\'
MIDDLESEX TOWNSHIP
HO N, MIDDLESEX ROAD. SUITE I' CARLISLE, PA 17013 . 2494409 or 795.9631. FAX 249.8564
Board of SUPff\lliOf'
Robtrl M Eppley. Joupr\ V Capuano, Char In W ~hljgt'!&r1
MunlClpal $eelellrV
G4lIWJen$lk
ZDnlng onlcer:
Mat" D. Carptnlll
January 27, 1997
Mr. Taylor P. Andrews
Andrews & Johnson Attorneys at Law
78 W. Pomfret St.
Carlisle, PA 17013-3216
Re: Cumberland-Perry Association for Retarded Citizens (CPARC)
request for interpretation that proposed Community Living Arrangement
(CLA) is permitted use.
Dear Mr, Andrews:
By this letter I am formally interpreting the Township Zoning Ordinance as it
applies to the proposal ofCPARC to establisb a Group home for three individuals in an
, existing residential house located at 102 North Middlesex Road in the Village Center (VC)
Zoning District.
I interpret that, the Group Home as proposed in the application for hearing before
the Middlesex To\wship Zoning Hearing Board (ZHB) by CPARC, (dated 12-18-96 and
granted an extension for continuance of hearing by the ZHB on 1-15-97) is in fact a
~oup Home as defined in the Middlesex Township Zoning Ordinance (ZO), "Group
Home" is therein defined as: "A licellSed dwellil/g providil/g supervised I/ol/otral/sielll
lodgil/g or residelllial services for 1/01 more Ihal/ sevel/ (7) persons il/c1udil/g supervisory
persol/I/el, bul excludil/g domestic help limited to two (2) il/I/umber, iI/ which some or all
of the occupal/ts are ul/related." In their ZHB Application, CPARC states that
"CPARC operated group homes are licensed by the State of Pennsylvania, " Therefore,
since the proposed facility is licensed, it is a Group Home as defined in the ZOo
The definition of "Family" in the ZO excludes the proposed use by CPARC. This
defmition states in part that "A fami{~' as hereil/ defilled specifically excludes a boarding
or roamil/g hOllSe, lodgil/g house, club, fratemity. hotel or al/Y similar group IMI/g
arral/gemelll", 1 interpret that the group home proposed by CPARC is a, "similar group
living arraugement", which is excluded WIder tile definition or "Family" inlhc ZOo
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INRE:
APPEAL OF CUMBERLAND
PERRY ASSOCIATION FOR
RETARDED CITIZENS
: BEFORE TilE ZONING HEARING BOARD
: OF MIDDLESEX TOWNSHIP, CUMBERLAND
: COUNTY
DRIEF IN SUPPORT OF CPARC'S,
PROPOSED INTERPRETATION OF MIDDLESEX TOWNSHIP
ZONING ORDINANCE
I. FACTUAL BACKGROUND:
Cumbcrland-Pcrry Association for Rctardcd Cilizcns (hcrcinaftcr CPARC) proposcs to
cstablish a Community Living Arrangcmcnt (CLA) in thc Villagc Ccntcr District of Middlesex
Township. This CLA will bc a rcsidcntial homc for thrcc rClardcd citizcns who shall maintain a
singlc housckccping unit. Supcrvisory staff shall bc on sitc at all timcs that a rcsidcnt is on thc sitc,
and thc supcrvisory staff shall bc providcd by CPARC, Thc staffprovidcs support for thc rcsidcnts
to do thosc things whcrc assistancc is ncccssary. Thc slaffalso providcs supcrvision for thc
rcsidcnts,
CP ARC sought an approval from Middlcscx Township to commcncc this CLA as a singlc
family dwclling without thc nccd for any particular approvals from thc Township, Thc Township's
initial rcsponsc was that thc proposcd CLA was a "group homc" and that zoning hcaring board
approval was requircd. CPARC, through counsel, submittcd a proposcd intcrprctation ofthc
Middlcscx Township Zoning Ordinancc which would trcat thc proposed CLA as a singlc family
dwclling, In rcsponsc, thc Township Zoning Ofliccr providcd a formal and writtcn intcrprctation of
thc Middlcsex Township Zoning Ordinancc, The Township Zoning Officcr's intcrprctation trcats
thc proposcd CLA as a "group homc" which would only be permittcd as a spccial cxccption.
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CPARC has appcaled thc Zoning Oniccr's intcrprctation ofthc Township Ordinance to the
Middlesex Township Zoning Hcaring Board, Simultaneously, CPARC has formally rcqucsted
approval of the proposcd CLA as a special exception as a "group homc", Both matters are schcdulcd
to bc prcsented to the Middlcscx Township Zoning Ilearing Board on Wedncsday evcning, Fcbruary
12,1997.
This Bricfaddrcsscs thc first issuc which is the appcalofthe Zoning Officer's interpretation
of the Township Ordinancc,
II. ISSUE:
Should the CLA proposed by CPARC for thrce unrelatcd developmentally disabled
individuals bc dccmcd a pcrmittcd use in the Village Ccnter District?
Ill. ARGUMENT:
I, Imnortalll Definitions and Zoninl: Ordinance Sections
The following definitions from the Middlesex Township Ordinance are important to the
issued raiscd hercin:
Dwellin~: Any building or structure designcd for living quarters for one or more
families or housckecping units, including mobile homes which are supported by a
permancnt foundation, but not including tents, cabins, travel trailers, boarding
homes, rooming houses, convalescent homes, motels, hotels or other
accommodations used for transient occupancy, (See page 11-8 of ZO)
[Bold print added for emphasis,]
Family: One or morc persons related to cach othcr by blood, adoption,
marriage, or othcrwisc by law, who are occupying the same dwelling unit and arc
living and cooking together as a single housckecping unit, exclusive of foster
childrcn, household scrvants, and not more than two additional persons who are not
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or rooming house, lodging housc, club, fratcrnity, hotcl or any similar group living lIrrungement",
[Bold print added for cmphasis,] Spccilically, Mr, Carpcntcr intcrprctcd that thc proposed CLA is a
"similar group living arrangcmcnt" which is cxcludcd undcr thc dclinition of family. Implicit in this
intcrprctation is the conclusion that thc proposcd CLA is similar to a hoarding or rooming house,
lodging house, club, fratcmity or hotcl.
4, CPA RC's Pronosed CfA is Not a " ,Simi/ar GrOlIn
Ul'inl! Arrrllll!ement" /0 a Boardilll! or Roomilll! HOlIse. l.odyil1l! HOllse,
Clllh, Pmternitl' or Hotel
In Appeal of Miller.
PA _, 5lsA.2nd 904, (1986) tr.e Pennsylvania Supreme
Court noted the historical signilicance of the tcrm "family" in land use cases, The Pennsylvania
Supreme Court found that Mrs, Miller's providing room, board, some transportation, supervision in
grooming, and monitoring of personal nceds of seven unrelated individuals in her home with each
paying $200.00 a month constituted a "family" under the Township Zoning Ordinance that was
applicable, The function within the home was determinative. The Supreme Court rejected the
arguments of the Township that the arrangement was in fact a "boarding house," Justice Nicks wrote
"the mere fact that a member of the unit pays a fee for belonging to the unit does not transform the
relationship unless it also appears that the prolit motive is the basis for the relationship." 515 A,2d
at 909.
Justice Nix also observed, the following:
We also do not accept as valid appellee's argument stressing the special care
that is provided these individuals, It is true that the record indicates that
many of the residents arc elderly or handicapped adults who have no
biological family with which to share a home environment. Thus their needs
5
concludcd that thc usc was simultancously an "institutional homc" and a "singlc family dwclling".
Judgc MacPhail noted that zoning ordinanccs must bc strictly construcd. Furthcr, a pcrmittcd usc
must hc affordcd thc hroadcst intcrprctation so that a landowncr muy huvc thc bcncfit of thc Icast
rcstrictivc usc and cnjoymcnt of his land, 522 A.2ml ut 712. Thc holding in this cusc is consistcnt
with thc intcrprctation proposcd by CP ARC thut thc proposcd usc in this cusc may simultuncously bc
a "group homc" and a "singlc family dwclling."
Thc Commonwculth Court followcd this rcasoning in Illlmun Scrviccs Consultants ~
ZHB ofButlcrTownship,_Pa, Cmwlth, Ct. _, 587 A.2nd 42 (1991), Likc Middlcscx
Township, Butlcr Township cxcludcd from its dcfinition of "family" a club, fratcmallodging, or
rooming housc. Sincc thc Township did not cxcludc an "institutional homc" cxplicitly, it fcll within
thc dcfinition of "family", In Middlcscx Township, thc Ordinancc docs not cxplicitly cxcludc
"group homcs" from thc dcfinition of "family", Thcrcforc, a usc can, and this proposcd usc is, both.
5, The I'rono.l'ed ('LA i.l' " "fill/li(v"
A comparison ofthc definitions for "dwclling" and "family" in thc Middlcsex Township
Ordinancc is instructivc. Thc dcfinition for "dwclling", likc thc dcfinition for "family" excludes
boarding homes, rooming homcs, and hotcls, Thc dcfinition for "dwelling" also excludes "othcr
accommodations uscd for transicnt occupancy"', This suggcsts that thc common charactcristic of
thosc uscs cxcludcd as "dwcllings" is thc transicncc ofthc occupancy.
Thc group of uscs in thc cxclusions for "family" is similar to thc cxclusions for "dwclling,
Thc rcasonablc intcrprctation is that a "similar group living arrangcmcnt" is anothcr group living
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"(I)( I) To discriminatc in thc salc or rcntal, o/'to otherwise make
//IulI'ai/ahle O/' deilY, a dwclling to any buycr or rcntcr bccuusc of u handicup of m
"(a) that buycr or rcntcr;
"(b) a pe/',\"IJII /'esidill!i ill O/' intellllill!i to /'eside ill that c!l\'e/lill!i '!fie/' it is
,\'() solc/, rell/ed. or made ami/ahle; or
"(c) any pcrson associ at cd with that buycr or rcntcr" 42 U,S.C, !l3604.
(cmphasis supplicd)
Thc FHAA broadly dcfincs "handicup" us flJllows: !l3602, Defillitiolls--
"As uscd in this subchuptcr ..
"(h) 'Handicap' mcans, with rcspcct to a pcrson no
"( 1) a physical or mcntul impairmcnt which substuntiully limits onc or
morc of such pcrson's major Iifc uctivitics,
"(2) a rccord of having such un impairmcnt, or
"(3) bcing rcgardcd as having such an impairmcnt , , ,42 U.S,C. !l3602
This cxpansivc dcfinition cxtcnds protcction against housing
discrimination to a widc rangc of pcrsons, including thosc who havc bccn affcctcd
by ordinancc 87024 in thc casc at bar.
Thc act docs not apply solcly to discrimination in thc privatc salc or rcntal
of housing. In fact, undcr fcdcral casc law, govcrnmcntal cntitics inthc housing
situation arc subjcct to a strictcr standard for facially ncutral zoning dccisions
which havc discriminatory cffccts. Scc, c,g, Rcsidcnt Advisory Board v, Rizzo,
564 F.2d 126 (3d Cir. 1977), ccrt, dcnicd, 435 U,S, 908 (1978); Arlingtoll fleig/liS
11,558 F.2d 1283 (7th Cir. 1977); Unitcd Statcs v. Citv of Black Jack, 508 F.2d
1179 (8th Cir. 1974), ccrt. dcnicd, 422 U.S. 1042 (1975),
. . .
Thc Icgislativc history of thc 1988 amcndmcnt undcniably indicatcs that local zoning
ordinanccs arc affcctcd t1krcby:
"Whilc statc and local govcrnmcnts havc authority to protcct safcty and
hcalth, and to rcgulatc usc ofland, that authority has somctimcs bccn uscd
to rcstrict thc ability of individuals with handicaps to Iivc in communitics,
Tbis has bccn accomplishcd by such mcans as thc cnactmcnt or imposition
ofhcalth, safety or landousc rcquircmcnts on congrcgatc living
arrangcmcnts among nonorclatcd pcrsons with disabilitics, Since these
requirements are not imposed onfamilie.\'allll groups c!!simi/ar size of
unrelated people, these requirements have the effectc!! discriminating
agaillst people with disahilitie,\'. rhe committee intend\' that the
prohihiticm a!iainstthe discrimination a!iaillStthose with handicaps apply
to zOllin!i decisiolls and practices. Thc act is intcndcd to prohibit thc
application of spccial rcquircmcnts through landousc rcgulations,
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pcrmit a CLA for thrcc unrelatcd individuals tll bc trcatcd as a singlc lumily homc cvcn if it was also
Rcspcctfully submittcd,
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rcgardcd as a group homc.
T I 1', Andrcws, Esq.
7 cstl'omfrct Strcct
Carlislc, P A 17013
(717) 243-0123
Suprcmc Court ID No. 15641
ANDREWS & JOHNSON
By:
V,\CPARC\CPARC,DRF.
12
Mark Carpenler
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January 17, 1997
The definition of "family" in your lownship ordinance includes the CLA proposed by
CPARC under the law of the land as cstablishcd hy the cascs which I cnclosc. Thcrc willnol
bc morc than four unrelatcd pcrsons living and cooking togcthcr in a single housckccping unil
and this home will nOI be a boarding or rooming house, lodging house, cluh, fraternity, hotel
or any similar group living arrangcmcnt. As is the case with most ordinances, the Middlcscx
Township zoning ordinancc does nol count houschold servanlS as occupants of a dwelling unit
for determining whether thc dcfinition of family is mct. Philadclphia Centcr for
Dcvclopmcntal Scrviccs, Inc, vs, ZHI3 of Plvmoulh Township, Supra. and Human Services
Consullants, Inc, vs, ZH13 of Butler Township, Supra, hold that rotating staff for a CLA arc to
he trcaled as household scrvants and do not change the nalure of the usc from a "family" usc,
I acknowlcdgc Ihal there is a dcfinition for "group homc" inlhc Middlescx ordinancc,
I also acknowledgc lhat it would seemingly apply to CPARe's proposcd CLA, Sincc thc
definition of "group homc" permits up to scven unrclatcd pcrsons to rcsidc together, I suggest
that "group homcs" with more than four rcsidcnts would not be considered a "family" undcr
your ordinancc, but "group homcs" with fcwcr than four rcsidcnts would hc rcgardcd as a
"family" ,
I further suggcst thatthc ordinancc should bc inlcrprctcd to allow thc CLA as a singlc
family dwelling as a pcrmiltcd usc without nccd for a spccial exceplion cvcn if il should also
mcct Ihc dcfinilion nf "group homc". This would leave for another day whclher thc township
can requirc spccial exceplions for group homes for morc than four residcllls, (if thc homes arc
to provide a residencc for a class protectcd by the Fcdcral Housing Acl Al11cndmcnts)
In furthcr SUpporl of our proposed interpretation, I cnclme "'1'1'" "I fI\'c scparate
federal dcci'HlIl' 1'1<1111 \\ IIhin Ihc Ihird circuit which clearly eSlahll.h ,I .1111' "1"'11 cach
municipalil~ 10 ;11,'"I/"nl11g Icquircl11cnts which. Ihough nculral.-:: 111,'11 I.,.e, l11ay ha\'c a
discrinllnahll y eltecl lhe cascs also cstablish a duty uPllnmulllllJ'.t1I1II" I" l11akc rcasonahle
accOl11mOd,lIlom in Ihe applicalion of Ihcir ordinanccs so thai hOIl'lllg "PP"rllll1ilies for Ihc
disahlcd may he aSSllled alld protcctcd, I have not includcd a cop' "I' Ihe klkral acl for illS
cited Icpealedly 111I,,"~1101I1I Ihc fcdcral cascs.
I calt VlllII allenll"II, ;lIld Ihc altclllion of your township SOlklhll, I" lilt' lli.!liL\Jnllollsc
Dcvcl\Jlilll\'llt.!LSeJH~~~,JJ1" SlIpla case which was onc of Ihc k;,dI1l1' ,;I'e, In thc nalion
illlcrprcIIII~' Ihe IIl1pall olthc Fair Ilousing Act Amcndl11cllls of I'IXX "1111l1l01Clpal wning
You \I t1llh'll' Ihe 1l1'IIICI ('OUrl slruck down as diserilllinatory a 'I'.\lllll' 1\'qllllcl11cnt such as
ex isls 111 Sl'\'1 h '11 1,1 "J (I, J of 1"0111 oHlinance,
lIa,,'d IIpOl1lhl' ,llIlh'lIlIlCS which I havc suhmilted, IlcqU\"1 \'''"1 IIl1e'l'lctallonthat
CPAIH' nJ:I\ ,'slahll,h II' ('I.A 101 Ihrec residents as a pCrllliltcd lI'l' III lilt' Vllla~c CClllcr
, ,
Distrlcl wlIllllllllhe lIeed 101 a speCial cxccplion or any other appl"";1I tllllllllle Zoning
I-Icaring Illlald, I a'h 111;11 you confer with your township soli,II"1 'lIlllle ;Ullholllics which I
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MIDDLESEX T
JIll N. MIIlIlLESEX IlOAll, SUITE I. CAIlUS!.E,I'A 17111 J . -l~9~~I~J or 795'91>31 ~ 'l'A'lM
1l0d,tJ ol SUIX',...,son,
llolH'lrl M [pploV. Josf!ph V Capuano. Ch,lItc~ W Shuohnrl
MurwcllhllSm:ltJllllV
G,111W Jcnsd..
lonmu OM,cl.ll
M;lIk [) CQrpcnlOl
Jnnunry 27, 1997
Mr, Tnylor p, Andrews
"r,d:~.\Vs ~ J!lhll~1J1l Atl(ln\r~IS III La!'
','S W, I'olllli'et Sl.
Cndisle,I'A 17013-32ICl
Re: Cumherlnnd-Pell)' Assul'intion for Retnrded Citizens (CPARe)
reqUllst for inte'llletation Ihnt JlroJlosed Commnnity I.,il'ing Armngcmenl
(CLA) is Jlennitted USI),
Dear Mr, Audrc\Vs:
By this letter 1\1111 f(,"nally intelllretiug the Township Zoning Ordinance as it
appli.:s to thl) proposal ofCPARC' tll estahlish a GroUJl home for Ilorel: indi\ id'wls;n:1II
existing lesidelllial house locnled at 102 North Middlesex Road iollle Village Celllel (Ve)
Zoning District.
I inte'lllelthat, the GroUJl Home as proposed inlhe applicntion 101 heal ing befole
the Middlesex Tt1\\1lship Zoning Healing Bonnl (ZHB) hy CPARC, (1Ialc,1 12.1 ~-1J6 and
glanled an e,\lension fill coni inuance of hearing by the ZIIIl on I-I ~-(17) i, in LId a
(jIUIlP Ilollle as dclincd inlhc Middlesex Township Zoning Il,dinanC( (ZU) . (;,,///1'
/fUIll.... is Iher~in dclincd as ",., hC<'lIsed dll'l'I/l/Ig /}/,OI'idill!: ,\III"" \'/.\'<"/11,'/1 '''<1//\11'111
i(Jo'gIlIJ; W' rf':;lllcllliui ~'t'/T/' l':,'/ur tUJllllore thall st'\'l!/I {IJ p...'l'SOJl.l iIlChltilJ.,!!. '.'tI/'l'n'I:iOIY
fI<'I'SOt:lli!/, "'/1 <'xdlllf/llg ';"11/<'.111<. /trip hmi/nJ 10 Il\'O '-2) /11 /11/11//1('1', OIIl'/IICh "."lIh' 01' oil
of//II' (I(('II/HIIIIS",'.. Illlre/n!:'d" Inthcil ZIIIl ^ppli~alion, (,PARC sl:lIc.; Ih:II
"l'P^Ill' Ilpclalcd gmllp IlIInlcs arc liecnscd hy the St:;le "lfPCI"I~)h:lnia." lhl'ld"IC,
:;incc iI,c pi ''1,,,,,'d Ii,cilil)' is liccnsed, it is a (jmupllnl1le a' oIclinc,; in Ihl' II I
'Il,c ,icli"ili"n nt'''!';",,,!,,' inlh'l ZO ex~hll"" thc III "lh",:,1 II'" hy ('1'..\ It( , This
t!;:Jiail :t'lI s1:11 ~'.... ill pall Illal ".1 1;:1I:;~\' fJo\' "l"'l'ill di:/i/ll'd spi'p/i\ "/~l' "\<";11'/.',\ II I"~ '.11 ,IllIg
or "Ot,l""'JI.~ h, 1//\',' 11I'~I~IH.!.~ /'I1/I.\'(". n'uh, .Ii'flf('rlli~l' hoil!/ In' mil' \'wII/,ll' g,l'cJ,'l/' lll/".l~
1;1'.'m/~:;Jn:('Jil" I illtt>I;Il',:! lILI~ Ihe gf\Hlp lUll Ill' I)tOIWS~d II': CP:\ll(' i~ :~. "~.imil:lI l'llllil'
I' " 1'1 I I I I I'"" I I ,,,' I . I
1'''Ill;~ ;11 1::a.r.t'liu. ul . ,,",pI:! ,... .:X.... lh '.;'. uildn ( ll:<< l"IIIHtIUI1 t\ " jlllli~~ 11111,', r
EXHIBIT B
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IN RE: APPEAL OF CUMBERLAND-
PERRY ASSOCIATION FOR
RETARDED CITIZENS
BEFORE THE ZONING HEARING
BOARD OF MIDDLESEX
TOWNSHIP, CUMBERLAND COUNTY,
PENNSYLVANIA
BRIEF IN SUPPORT OF ZONING OFFICER'S
DECISION OF JANUARY 27. 1997
The Board of Supervisors of Middlesex Township, by its
solicitor, Snelbaker, Brenneman & Spare, P. C., submits this
Brief in support of the decision of the Middlesex Township Zoning
Officer of January 27, 1997 as follows:
A. THE ZONING OFFICER PROPERLY DETERMINED THAT THE
USE PROPOSED BY CPARC WAS A GROUP HOME AND NOT A
SINGLE FAMILY DWELLING USE.
Cumberland-Perry Association for Retarded Citizens'
("CPARC") proposed interpretation of the Middlesex Township
Zoning Ordinance is logically incorrect and lacks legal support.
CPARC argues that its proposed Community Living Arrangement
comports with the definition of a "family" even if it also meets
the definition of a "group home". Accordingly, it contends that
a group home with more than four unrelated occupants would not
satisfy the definition of a "family" and could only be
established as a special exception use.1 Such an interpretation
ignores the plain language of the Ordinance and therefore is
directly contrary to the express intent of the Township
LAW O"ICU
SNELDAKER.
BRENNEMAN
II SPAR'
.See Argument, Section 111.2. of CPARC's Brief in Support of
Proposed Interpretation of Middlesex Township Zoning Ordinance.
Supervisors as evidenced by such language.
Neither the definition of "group home" as found in Article
IIr section 2.02 of the Zoning Ordinance nor Article XIV, Section
14.51 of the Zoning Ordinance defines or describes a "group home"
in terms of a family unit. .The def ini tion of group home
specifically limits the number of occupants to no more than
seven. Had the governing body desired to limit the definition of
a group home to only five to seven unrelated occupants, it could
have done so. It clearly chose not to. In sumr the Ordinance
provides no distinction between group home uses that have: (1)
more than four and less than seven occupants; and (2) four or
less occupants. CPARC's effort to argue such a distinction lacks
basis in a fair and impartial reading of the Ordinance.
Even assuming, arquendo, that CPARC's proposed occupancy
fits within the definition of a "family", such a position ignores
the distinguishing factor that makes a proposed use a group home:
the requirement that its dwelling be licensed. CPARC has not
contended at any time that its proposed facility is not required
to be licensed. Therefore, the Zoning Ordinance is clear that
whether CPARC proposes that one or seven individuals occupy the
dwelling, its described use clearly falls within the definition
LAW O"ICU
SNtLDAKER.
BRENNEMAN
6: SPARE:
of "group home" under the Ordinance. None of the cases cited by
CPARC for the proposition that its use is a single family
dwelling use (Appeal of Miller, ZHB of Plvrnouth Township,
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Alleqhenv Vallev School. JALC Real Estate corDoration and ZHB OF
Butler TownshiD) considered any use in the context of a specific
definition of group home. Those cases therefore provide no
support for CPARC's position.
The Township Zoning Officer was correct in finding that
CPARC's proposed use did not fall within the confines of the
definition of "family" and therefore did not constitute a single
family dwelling use. First, as indicated above, CPARC ignores
the characteristics of its proposed use, the definition of group
home and imposes distinctions in the number of occupants (four or
less versus four to seven) which are not found in the Ordinance.
Second, CPARC's use is indeed similar to the group living
arrangements of boarding or rooming houses, lodging houses, clubs
and fraternities. These similar uses are specifically excluded
from the definition of "family". The fact that the definitions
for the words "dwelling" and "family" share similar exclusions
does not suggest that a group home does not constitute a "group
living arrangement" under the definition of a family.
For the above reasons, the Zoning Officer properly concluded
that CPARC's proposed use was that of a group home and not a
family which would allow the use as of right as a single family
dwelling.
LAW O,,..C:U
SNELDAKER.
BRENNEMAN
a SPARE:
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B. THE FAIR HOUSING ACT DOES NOT REQUIRE THE TOWNSHIP
TO ACCOMMODATE CPARC'S PROPOSED USE AS A PERMITTED
USE.
CPARC advocates the position that the Fair Housing Act (42
U.S.C.A. S 3601, et seq.) requires the Township to accommodate
CPARC's proposed use as a permitted use. It further contends
that the Township's interpretation of its Zoning Ordinance which
requires CPARC to obtain approval of its use by special exception
renders the Township ordinance unconstitutional.
CPARC cites no authority indicating that the special
exception process as applied to its proposed use is unlawful.
Indeed, it cites no authority that holds that the Fair Housing
Act has abrogated all local governmental zoning controls and
procedures.
CPARC, like many other applicants, is required to obtain
special exception approval of its use. The ordinance is facially
neutral in that it applies to all uses involving dwellings
licensed by the state or federal government regardless of whether
the occupants in same have disabilities. Because the group home
use is not limited to or specifically allowed in any particular
zoning district or districts, it may be located in any district
LAW O"'ICU
SNELDAKER.
BRENNEMAN
6: SPARE
in the Township. The fact that CPARC, like any other applicant
seeking a special exception use, must obtain approval through the
Zoning Hearing Board neither indicates nor suggests
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LAW O"ICn
SNELDAKER.
BRENNEMAN
a SPARE
discrimination in intent or in fact against persons with
disabilities.
the'E~ousing Ac~ntended to rende-~zonin9L
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and procedural requirements for obtaining use approval
Had
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controls
inva~d,
so held.
elther the Act itself or subsequent case law would have
T~t clea~has~~~ the case. DesPit~ ~~e br~
the Fair Housing Act, not all zoning ordinances which
reach of
impact on the handicapped are ~ ~ invalid. Rather, congress
has indicated that the Fair Housing Act is intended to allow
reasonable government limitations so long as they are imposed on
all groups and do not effectively discriminate on the basis of
handicap. Association for Advancement of Mentallv Handicapped v.
citv of Elizabeth, 876 F.SUpp. 614, 620 (D.N.J. 1994).
All other group homes not proposing occupancy by handicapped
individuals and all other special exception applicants alike are
required to obtain Zoning Hearing Board approval. This
requirement is a reasonable governmental limitation which
ultimately may lead to a use, if approved, that is thereafter
permitted as of right. This requirement is imposed by the
Middlesex Township Zoning ordinance in an evenhanded and
nondiscriminatory manner. Accordingly, the decision by the
Zoning Officer that CPARC is required to obtain special exception
approval for its use is not unlawful, improper
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or unconstitutional.
By:
SNELBAKER, BRENNEMAN , SPARE, P. c.
..i~.qUir.
44 West Main Street
Mechanicsburgr PA 17055
(717) 697-8528
Solicitors for Middlesex Township
Board of Supervisors
Date: March 12, 1997
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MIDDLESEX TOWNSHIP
ZONING HEARING BOARD
CARLISLE, PENNSYLVANIA
Appeal of Cumberland Perry Association for
Retarded Citizens
TRANSCRIPT OF PROCEEDINGS
VOLUME I (pgs 1-89)
Before:
KELLY NEIDERER, Chairperson
JOAN PATTISON, Member
CURTIS BARNETT, Member
RICHARD BOYER, Member
JAY LAYMAN, Member
MARK CARPENTER, Zoning Officer
EDWARD W. HARKER, Board Solicitor
KEITH O. BRENNEMAN, Township Solicitor
Date:
February 12, 1997, 7:20 p.m.
Place:
350 North Middlesex Road
Carlisle, Pennsylvania
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ORIGINAL
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APPEARANCES:
20
ANDREWS & JOHNSON
21 BY: TAYLOR P. ANDREWS, ESQUIRE
FOR - APPLICANT
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Amy R. Moore, R.P.R.
Court Reporter-Notary Public
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C,P,C.R.S
(717) 258-3657 or (800) 863-3657
4 1
2 FOR APPLICANT
3 Carol Ferenz
4 Leon Morrison
5 Alex Leach
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7 TOWNSHIP
6 Mark Carpenter
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10 AUDIENCE MEMBERS
11 Scott Watkins
12 Lee Gordon
I 13 Ann Claycomb
14 Dorothy Hampson
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INDEX TO TESTIMONY
EXAMINATION PAGE
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By Mr. Andrews 6 I,
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Andrews 44 I
By Mr.
By Mr. Andrews 47
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INDEX TO EXHIBITS
16 NO. DESCRIPTION IDENTIFIED
19 1 Aerial Tax Map for Site Location 8
20 2 Survey of Subject Lot 8
21 3 Sketch-map of Neighboring Structures 10
22 4 Floor plan (not to scale) with Measurements 11
23 5 Envelope with 5 Photos of parking Area 14
24 6 1965 Joint Resolution No. 42 of Pa. Senate 52
and House of Representatives
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7 Sketch of Hard Surface Parking Area 23
C.P.C.R.S
(717) 256-3657 or (600) 663-3657
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PRO C E E 0 I N G S
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MR. HARKER: Ladies and gentlemen, thank you
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for bearing with the Board in this other matter. I hope
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perhaps you learned something of what the Board does go
5 through in deciding these cases.
6 The procedure in a hearing is that the
7 applicant, in this case CPARC represented by Mr. Andrews,
8 has what's called the burden of proof and the burden of
9 going forward on certain issues.
10 There are two distinct cases that the applicant
11 has brought. One, that they are entitled to what they are
12 requesting as a permitted use by law, and, second, that
13 alternatively or in conjunction with that they are also
14 entitled to that use as a special exception under the
15 zoning code which provides for granting of permits for
16 group homes by the zoning board.
17 Now, the applicant has to produce evidence in
18 support of this request. They do so by having witnesses
19 appearing and present these documents and so on as you
20 might have seen in other court cases. The witnesses and
21 all of you who will be giving statements will be
22 identified by name and address, and you will be required
23 to take an oath to ensure that anything you say and the
24 evidence you give is truthful.
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We don't adhere strictly to the rules of
C.P.C.R.S
(717) 258-3657 or (800) 863-3657
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evidence that you see in court. It's because this board
functions as a quasi judicial board, but it's the lowest
court in all the rungs of the court leading all the way up
to the Supreme Court. But the Board does have the power
to exclude clearly irrelevant evidence and any evidence
that is redundant.
There are many of you here who have strong
views one way or the other on this matter, and the Board
welcomes your attendance and your appearance. But it
would be, indeed, a lengthy process if all of you were to
get up and say essentially the same thing over and over
again. That's redundant, and the Board can exclude that.
Because keeping this record is quite a bit of work and
copying it is expensive, very expensive. And in the event
of an appeal, the entire record is transmitted to the
Court, and the Court looks at that record to see whether
the Board properly decided the case down here.
The applicant's witnesses will go first. They
can be questioned in the order in which they/re presented.
When the applicant is done with their case, then people
who are opposed to it or wish to support it independently
may do so. And we will proceed in that order.
Are there any questions?
Mr. Andrews, you have the floor. How many
witnesses do you have this evening?
C,P,C.R.S
(717) 258-3657 or (800) 863-3657
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MR. ANDREWS: Carol Ferenz will be our primary
witness. We have two other witnesses that will be very
short after her testimony.
MR. HARKER: I ask that all of the witnesses
for CPARC please stand at this time.
(Witnesses sworn en masse.)
(CPARC Exhibits Nos. 1-7 were previously
marked.)
MR. ANDREWS: What I propose to do, as you
indicated, Mr. Harker
and, Board, good evening. There
are two basic claims, but the claim on the interpretation
of the ordinance is for the most part a legal argument.
The record that you will hear that describes the program
and what CPARC proposes to do will be important, and I
have briefed the legal issues. And I've given a copy of
the brief to Mr. Harker and to the township solicitor, and
I have other copies of the brief which I can also give to
Mr. Harker if you care to have that, which enhances our
legal arguments on the appeal from the interpretation of
the ordinance and in support of our claim that this
proposed residential use by CPARC should be considered and
treated as any single family dwelling without the need to
have a special exception or any other township oversight.
So you'll hear a description of the program, a
description of the property, which you can use in
C,P.C.R,S
(717) 258-3657 or (800) 863-3657
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considering the legal argument, then it will be given to
you in written form.
Have you identified yourself yet?
THE WITNESS: My name is Carol Ferenz.
MR. ANDREWS: And I'm not sure if I identified
myself for the record. My name is Taylor Andrews,
attorney for the applicant.
BY MR. ANDREWS:
Q. Ms. Ferenz, where do you work?
A. I work for Cumberland Perry Association for
Retarded Citizens.
Q. What is Cumberland Perry Association for
Retarded Citizens?
A. It's a service and advocacy organization for
people with mental retardation.
Q. Is it a nonprofit corporation formed into the
laws of the Commonwealth of Pennsylvania?
A. Yes. It's a private nonprofit organization.
Q. Do you know how long it has been in existence?
A. Since 1953.
Q. And what is your position there?
A. I'm the director of residential services.
Q. And how long have you been the director of
residential services?
A. Ten years,
C.P,C.R.S
(717) 258-3657 or (800) 863-3657
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Q. And how long have you been involved, not as
director but in any way, with residential services at
CPARC?
A. I was a full-time employee for 15 years.
Q. Does CPARC provide residential services to
retarded citizens in this region?
A. Yes.
Q. Can you indicate how large a region that CPARC
covers?
A. We provide services in Cumberland, Perry and
Dauphin County, ranging from Mount Holly to New
Cumberland, Duncannon, Harrisburg, Carlisle,
Mechanicsburg.
Q. And can you say how many different sites you
have residential programming established?
A. We have nine group homes that are similar to
the type of program we're proposing for Middlesex
Township, We have several other levels of service to
individuals throughout the counties.
Q. You are proposing to establish a group home at
a particular location here in Middlesex Township. Is that
correct?
A. That's correct.
MR. ANDREWS: Now, I'm not sure of your
protocol for handling exhibits. I do have them premarked.
C.P.C.R.S
(717) 258-3657 or (800) 863-3657
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I don't know if I should just give them to Mr, Carpenter
to come around. All but two of them I have multiple
copies, so everyone can have one. What is marked CPARC's
Exhibit Number 1 is a tax map aerial photograph that just
shows this property, so to give the Board some idea as to
where this is located in the township.
BY MR. ANDREWS:
Q. Here's the bridge coming across Middlesex Road;
here's Clemson Drive. Is this the property right here?
A. Yes.
Q. And the address of the property?
A. 102 North Middlesex Road.
Q. Does CPARC currently have that property under
lease from the owner?
A. Yes, we do.
Q. And the owner of the property is whom?
A. Leon Morrison.
Q. And the purpose of the lease is to establish a
program?
A. Correct.
Q. And we're going to get to the description of
the program in the testimony; I can assure you. First we
want to describe the property.
I'm going to show you what's marked CPARC
Exhibit Number 2. Can you indicate what that
C.P.C.R.S
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is?
A. This is a survey of the property.
Q. And this is the property that CPARC is now
leasing and proposes to be the site of this residential
program?
A. Correct.
Q. And shows the property to be 3.489 acres?
A. Yes.
Q. On both sides of Clemson Drive?
A. Yes.
Q. And there is on this survey what's indicated as
two-story dwelling. Is that the house that would become
the residence?
A. That's the house.
Q. And behind, there/s another square that's
marked outbuilding. What is that building?
A. That's a garage. That's two bays for vehicles.
The macadam driveway is not clearly outlined on this
drawing.
Q. You have photographs to show that driveway and
some measurements, do you not?
A. Yes.
Q. Now, have you also, to comply with the request
of the township, done a survey of the immediate area of
this site and put on paper other structures that
C.P.C,R.S
(717) 258-3657 or (800) 863-3657
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are __ all that are within 200 feet and some that are
2 beyond 200 feet to show the structures in the immediate
3 vicinity?
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A.
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Q.
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A.
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Q.
That's correct.
And is that what is shown on CPARC Exhibit 3?
Yes, it is.
And at the very bottom of this exhibit, there's
8 a square marked 102 with a star on it that says home. Is
9 that right?
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A.
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Q.
Yes.
And is that the address, 102 North Middlesex
12 Road, where you propose to establish this residence?
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A.
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Q.
Correct.
Now, can you describe the residence for the
15 Board, please?
16
It's a two-story, three-bedroom home, a very
A.
17 large kitchen area, small area in the back for office
18 space.
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Q.
And the kitchen area you say is a large area?
A.
Yes.
Q.
Has that been recently redone?
A.
Yes. It's been completely remodeled.
Q.
Have you done a line drawing of the layout of
24 the home, first floor and second floor?
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Yes, I have.
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Q. And is that what is marked CPARC Exhibit 4?
A. Yes, it is.
Q. You did not draw this to scale. Is that
correct?
A. That's correct. I'm not a professional at
drawing house floor plans.
Q. But did you take measurements along the
internal walls to show the size of the rooms?
A. Yes, I did,
Q. And did you write those measurements on the
plan?
A. Yes.
Q. Does this show the way it's put together, I
think the second floor as the top page and the first floor
as the bottom page?
A. Yes, except, Taylorl this is not the correct --
Q. This is the upstairs?
A. Right.
Q. Now, in that structure, is there more than one
kitchen?
A. NOI there's not.
Q. Would there be kitchen or dining facilities in
the individual rooms for the residents?
A. No.
Q. Is the property serviced by public water and
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sewer?
A. Yes, it is.
MR. ANDREWS: And at this point, just for the
Board's understanding, what r'm going down are the
criteria in section 14,51 of your ordinance, those
criteria applying to the definition of group homes.
BY MR. ANDREWS:
Q. Now, are your homes, your residential programs,
licensed?
A. Yes, they are.
Q. And who are they licensed by?
A. State of Pennsylvania.
Q. Which department?
A. Department of Public Welfare.
Q. Does CPARC just get one general license to put
on residential programs, or does each site get a separate
license?
A. We have one license that is for operating group
homes I and each site is listed on that particular license.
Q. So does each site need an approval?
A. Each site needs approval, and if we add on,
it's added to the license with an addendum.
Q. Can you operate the residential program that
you propose to operate without a license from DPW?
A. No.
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Q. Do you yet have that license for this
particular site?
A. No, I don't,
Q. And why is that?
A. Because we'd need to furnish the home and
install an interconnected fire alarm system and fire
extinguishers prior to receiving our license.
Q. One of the provisions here for under the
definition of group homes of requirements is that you must
comply with various safety codes from Labor and Industry
or applicable building safety and fire codes of federal,
state or local government. Is that a requirement of your
license?
A. Yes, it is.
Q. You've made reference to some sort of an alarm
system or warning system, protection system. Can you
explain what this home will be equipped with?
A. The home will be equipped with an
interconnected fire alarm system that has smoke and heat
detectors on each floor. We also will be required to have
fire extinguishers located on each floor of a certain
grade level, and we also are required to hold monthly fire
drills so that the individuals gain practice in exiting in
case of an emergency.
Q. Are you aware of any other program that could
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be characterized as a group home existing within 2,000
feet of this particular location?
A. No, I'm not.
Q. There is a photograph here marked CPARC Exhibit
5 -- an envelope here. Excuse me. Is that right?
A. Right.
Q. And in it are five photographs. Did you take
those photographs?
A. Yes, I did.
Q. And what do these photographs show?
A. They show the parking area, the driveway that
leads to the parking area and garage that's connected with
this property.
Q. Now, two of these pictures show just two
cars excuse me, show just one car in that parking area,
and the other three pictures show four cars. Is that
correct?
A. Correct.
Q. Was a question raised earlier in the
proceedings before the planning commission as to whether
four cars could be accommodated in that parking area
without parking one of the cars in?
A. That's correct.
Q. And was your purpose for taking these pictures
to show that you can park four cars there without any of
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the cars being parked in?
A. That's correct.
Q. Now, these cars are all parked in the hard
surface, and none of them are in the garage. Is that
correct?
A. That's correct.
Q. But is that garage also something that you're
renting?
A. Yes, it is.
Q. And is it empty?
A. Yes. The garage for two cars is empty.
Q. Now, I want to ask you a little bit about the
nature of the program and the residents who would live in
this home. Can you describe -- I believe I've referenced
it in various written materials that I've submitted as a
CLA. Is that accurate?
A. Yes.
Q. Would you explain to the Board what a CLA is?
A. CLA stands for community living arrangement.
The intention of a CLA is to provide a family-horne-like
atmosphere for individuals who require supervision and
assistance with daily living skills. And in that type of
setting, the staff who are working in the program are
responsible for helping the individuals who live there
with their daily living with all types of things that
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other people may do, taking for granite, such as budgeting
2 their money, cooking their meals, doing their laundry,
3 cleaning their home, transportation to doctors'
4 appointments, transportation to a job. The focus is very
5 much on a family atmosphere. The individuals all plan
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Q.
Now, is there support provided to the residents
6 their menus and go grocery shopping together. They
7 prepare their meals and eat their meals together in a
8 family-style manner.
9
Q.
How many residents do you propose have live in
10 that home?
11
A.
Three people.
12
Q.
And those three individuals, must they all have
13 a certain diagnosis to be eligible to be in this program?
14
A.
Yes. They must all have a diagnosis of mental
15 retardation.
16
Q.
And that diagnosis means what?
17
A.
It means that the individual's IQ must fall
18 within a certain range, which is subaverage intellectual
19 functioning.
20
Q.
Does it mean more than that?
21
A.
Yes. Mental retardation also carries with it
22 the inability to carry out daily living tasks without
23 assistance. It's some -- the word is losing me. Not
24 having all the adaptive behaviors that most people do.
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1 in this home by CPARC?
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A.
Yes.
3
Q.
Can you explain that to the Board, how that
4 works?
5
Well, as I alluded to a bit in the earlier
A.
6 question, the staff are responsible for helping the
7 individuals, not only in carrying out their daily living
8 skills, but in learning more normal type of activities and
9 independent skills. There's an individualized plan
10 written for each -- we refer to the people who live in the
11 home as individuals. And the staff have a specific plan
12 for each person that is geared towards their needs to help
13 them with whatever their specific needs are. Every person
14 is a little different, so there's not one particular goal
15 plan for each person.
16
Now, I know you've explained this to another
Q,
17 board but not to this board, that the folks that provide
18 the support, are they living there 24 hours a day?
19
None of the staff are living there, There are
A.
20 always staff on-site whenever the individuals who live
21 there are home, but it's a rotating shift of staff.
22
So would there be some times that you could
Q.
23 expect during a 24-hour day that some of these -- the
24 residents of the program would not be at the house, would
25 not be at the home?
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A. Yes, !
Q. Where might they be if they weren't at the
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A. During the day, they will either be employed at !
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5 a job, in a competitive employment job, or attend some
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type of day activity program like a job training program,
7 and the staff mayor may not be at the house, then, when
8 those three individuals are not at the home,
9
Q.
But when there is an individual, a retarded
10 individual who is a resident of the home at the home, will
11 there always be a staff person there?
12
A.
There will always be staff at the home when
13 individuals are home. And I might add that during the
14 evening hours when the individuals are sleeping I the staff
15 member who is on duty is an awake staff person.
16
Q.
Is there an ability to respond if unpredictably
17 one of the residents must remain at the home when that
18 wasn't foreseen?
19
A.
Yes. That happens quite often in our programs
20 due to illness or weather conditions or whatever. If
21 that's the case, the staff who's on duty stays there with
22 the individuals until someone can come in to relieve them.
23 If only one person needs to stay home because theylre ill,
24 then our staff calls for back-up staff to come in who will
25 then either stay with the person whols ill or transport
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the other people to their work.
Q. If you could, just describe a little bit from
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your experience at other CLAs that CPARC has run -- let me
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withdraw that. CPARC has other CLA type programs?
5
A. Correct.
6
Q.
How many of their programs are actually CLAs?
7
A.
Nine.
8
Q.
From your experience with the other programs,
9 what sort of activities would the individuals who will
10 reside at this home engage in?
1 1
A.
Same kind of activities that any other family,
12 any other people living in the community would engage in.
13
Q.
Will you equip a living room with a television
14 or one of the common rooms with a television?
15
A.
Yes, The house will be furnished -- if you
16 would walk into the home, it would not be identified to
17 you as a group home. It would look no differently than
18 any other person's home. The furnishings are all the
19 same. We buy them from local stores. We've ordered
20 living room furniture from N,B. Liebman, Our staff
21 members wear street clothing. They don't wear uniforms,
22 The activities in the home, as I say, are very much like
23 any other family. We have a washer and a dryer in the
24 home, The people that live there wash their clothes at
25 the home, They prepare their meals and eat their meals
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together at the home.
Q. Is that with support from staff, as is
necessary?
A. Yes, that is with support from staff.
Q. How about as events occur within the life of
the residents, will there be birthdays, holidays? How is
that typically
A. Celebrated the same way most families do.
We'll have one Christmas tree in the living room, and
everybody will help decorate that. Each person who lives
in the home is free to and encouraged to decorate their
own bedroom with their own personal belongings and so
forth, but the house in general is maintained by the
group. And as a group they help to pick out things that
are they would pick a tree out together, for example,
and probably decorate the tree together for Christmas.
There is typically gift exchanges on birthdays and
birthday cakes, There's very much a communal kind of
atmosphere.
Q. Now, the individuals who will reside in this
home, are they there just for a six-month period or
three-month period, or is it for an indefinite period?
A. It's an indefinite period of time, generally
several years.
Q. And just so -- because this is important on
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some of the law that I have submitted. You've indicated
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retardation. Does that mean that they are impaired in one
or more of their major life activities?
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A.
Yes, it does, That's what I was looking for
6
earlier.
7
Q.
Will there be any alteration to this dwelling
6 that would be at all visible from the outside?
9
A.
No, there won't be.
10
Q.
A question did come up with the planning
11 commission, and you've indicated the floor plan that you
12 drew. A question came up as to the height of the
13 ceilings, I believe, Is that right?
14
A.
That's correct.
15
Q,
Have you gone back and measured all the
16 ceilings?
17
A.
Yes, we did,
16
Q.
Are there any ceilings in that home that are
19 less than 7 feet?
20
A.
No, there are not.
21
Q.
We've been through two different nights with
22 the planning commission. They have made a written report
23 to the zoning hearing board. Concerns were brought up at
24 those meetings. Among those concerns were concerns about
25 traffic, the hazards of traffic along Clemson Road and
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1 North Middlesex Road to the residents of the dwelling and
2 also the hazard of the flooding in the meadow below
3 Clemson Road. Now, you've heard thoso concorns of tho
4 planning commission. Is that right?
5
A.
Yes, I did.
6
Q.
I think it's important that you addross thoso
7 concerns and give your explanation of CPARC's position
8 with regard to those concerns to this board.
9
A.
We feel comfortable in handling any concorns
10 regarding those safety issues for several reasons.
11 Foremost is that there is 24-hour supervision when the
12 individuals are at home. So there is not a risk of
13 somebody leaving the house unsuporvisod. And wo do
14 operate other group homes who are in neighborhoods similar
15 to this that serve the same type of individuals that arc
16 in areas that do not have sidewalks. That's not of great
17 concern to us,
18 The flooding issue -- and not to say that we'ro
19 not concerned; we certainly would keep an eye on tho water
20 and would be very careful about that. However, we feel
21 comfortable that we'd be able to handle situations if the
22 water would rise.
23 We do currently operate two group homos that
24 are also very close to water that also serve people
25 similar to the type of people that would be living in
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MR. BRENNEMAN: I have nothing.
MR. HARKER: Does anyone here in the audience
have any questions of this witness?
There's a group of you here. Is thero an
attorney representing all or you folks, a spokesperson?
No?
Well, one at a time. Do you have any questions
of the witness as to the factual matters that this witness
has placed on the record in support of the application?
Do you have a question, sir? What is your
name?
MR. WATKINS: Scott Watkins.
MR. HARKER: Mr. Watkins, you address your
questions to the witness, please.
MR. WATKINS: Carol, havo you looked into -- I
realize now that the property is on both sides of Clemson?
THE WITNESS: Correct.
MR. WATKINS: What is your concern of the
residents crossing that highway?
THE WITNESS: Which highway?
MR. WATKINS: Clemson.
THE WITNESS: The concern
I'm not sure how
to answer. Again, the individuals will be supervised, and
I expect that they probably will be crossing the road and
utilizing that field with supervision.
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MR. HARKER: Follow-up question, sir?
MR. GORDON: Yes. I have a question on that
flooding.
MR. HARKER: Your name?
MR. GORDON: Lee Gordon; I live at 106 North
Middlesex Road. My property adjoins the property that
these people want to rent.
My question to you, sir, is, where did you get
your information that the only place that floods is at the
meadow of Clemson Drive?
MR, HARKER: Is that a question to the witness?
MR, GORDON: Yes, sir.
MR. HARKER: Can you answer that, ma'am?
THE WITNESS: I'm not sure I testified to that.
The information that I've gained about the flooding has
been from the current owner of the property and also from
the oil company that has serviced the home for several
years.
MR. GORDON: Well, ma'am, the oil company that
services the home is also affiliated with Leon Morrison by
his son, number 1; and, number twol the run bridge that
more or less joins that property -- I'm talking about the
run bridge now -- last year was completely over the
guardrails and a man drowned there, and that water was up
darn near in the back of the garage that you're talking
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about is a two-car garage and is empty now. And last year
it was completely across North Middlesex Road, and I had
pictures
MR. HARKER: Mr. Gordon, this is your chance to
ask questions, not to make your statement. You'll have
that chance later.
MR. GORDON: Okay. The statement that I want
to make is
MR. HARKER: No, no. You don't make a
statement now; you'll make your statement later when the
applicant has concluded their case. Now, I can formulate
a question from this.
Were you aware of the flooding conditions that
this gentleman referenced? Have you been made aware of
that information?
THE WITNESS: Yes. I am aware that there has
been flooding that has crossed Clemson Road and required
it to be closed at times.
MR. ANDREWS: And we will have the owner of the
property testify at this proceeding about his knowledge of
the history of the property.
MR. HARKER: Well, I'm only trying to expedite.
I'm not taking a role on behalf of anyone here. But to
try and phrase some of this gentleman's sentiments as a
question, what does this knowledge that you have
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concerning flooding import in terms of safety both for the
residents and adverse impact upon neighbors?
THE WITNESS: Are you asking me that?
MR, HARKER: Yes.
THE WITNESS: What concern do I have regarding
that? My concern is that -- I'm not sure it's a concern.
The staff who are on duty will be alert to that
possibility and will be responsible for evacuating the
home in a timely manner.
MR. HARKER: Any other person here who has any
questions?
MR. WATKINS: I have a question on your other
homes. How many of them are in areas with no sidewalks?
TilE WITNESS: Three, I believe,
MR. WATKINS: And how often do you say that
your residents are out for walks on them highways?
THE WITNESS: That depends very much so on the
person and if they enjoy going for walks. It's very
individualized,
MR. WATKINS: And are they supervised at all
times while they are out for walks?
THE WITNESS: Again, that's very
individualized. It's based on the level of safety
awareness of the person.
MR. WATKINS: In the planning commission, I
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believe you stated that anytime they are off the property
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that they are supervised?
THE WITNESS: I stated that anytime that the
3
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individuals of this particular home leave the property
5
that they will be supervised.
6
MR. WATKINS: They will be supervised?
7
THE WITNESS: There are, as I believe I
8 explained also to the planning commission -- we have
9 various levels of service, And even with the group homes,
10 there are various levels of skill, and some of the
11 individuals we serve in group homes do have the ability to
12 walk unescorted downtown and use public restaurants,
13 etcetera.
14
MR. WATKINS: Three individuals -- well, for
15 this home, at what level are the individuals that you're
16 proposing for this home?
17
THE WITNESS: Regarding safety skills?
18
MR. WATKINS: Or will they be supervised while
19 they're out walking?
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THE WITNESS: Yes.
21
MR. HARKER: Does the Board have any questions?
22
MR. BOYER: You've given us quite a detailed
23 picture of how you intend to operate the home, but could
24 you also fill in some of the basics for the benefit of the
25 Board? Your testimony is that you believe that your
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the zoning officer that this proposed use would be termed
2
a group home and a group home is only permitted by special
3
exception. We have appealed that and tendered an
4 alternative interpretation of the ordinance that a program
5
such as this, a residence such as this, may be both a
6 group home and a single family dwelling if it contains
7 less than four unrelated individuals, which complies with
8 the definition of family in your ordinance.
9 The record that we're making here tonight will
10 help you understand exactly the nature of the program.
11 Our arguments on that point are in the brief that I made
12 reference to before, and I have copies for all those that
13 would be interested, so I do have additional copies. But
14 we're advancing -- it will be the same record, but it will
15 be legal argument on that point.
16
MR. HARKER: I think what Mr. Andrews is trying
17 to do is just establish a factual context for the
18 presentation of his legal arguments on these other
19 matters.
20
MR. ANDREWS: And I'm happy to make those legal
21 arguments to you orally if that would help you understand
22 better what my position is.
23
MR, HARKER: Well, let's finish the evidence.
24
MR. ANDREWS: I propose to do that at the end
25
to keep things in a sequence.
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MR. HARKER: We may not be able to finish all
the evidence tonight, given the number of people here. We
may have to come back at a later date to get into these
legal arguments.
MR. BOYER: Then are you saying that the two
things that are contained in your response to type of
request on the form, that they are in the nature of
altern a ti ves?
MR. ANDREWS: Not really, because even if you
were to say yes, this use can be -- can receive a special
exception, we would, nevertheless I want a ruling on
whether it also can be established as a single family
dwelling, Even if it's adverse I we're going to want a
ruling on tha t.
MR. LAYMAN: Mr. Solicitor, I think I'll have
to defer to you,
MR. ANDREWS: By special exception --
MR. HARKER: We're really putting the cart
before the horse here. I wish that we could defer all
this until the evidence is in because we have a lot of
people who want to testify. They may not want to come
back at another hearing just to listen to lawyers argue
about these cases. We'll leave these things until last
and spare them this agony.
MR. BOYER: I wasn't looking for the argument.
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What I was looking for was a foundation. The application
is the foundation of your request, and I thank you for the
information as to why you requested it this way.
MR. HARKER: Any other questions of a factual
nature?
MR. LAYMAN: If I understand it, then, Ms.
Ferenz, your testimony is that this -- it wouldn't matter
really who was living in this property; the activities and
the way you intend to use the property is the same as any
other family or person or several people who might live in
a place. Is that your factual intention?
THE WITNESS: That's correct.
MR. LAYMAN: And then the additional, I guess,
issue is that because of the diagnosis of mental
retardation, these individuals that are assisted in
various ways as you've explained, then that would be the
only distinction from any other family living on-site?
THE WITNESS: That's correct.
MR. BARNETT: I need a little more clarity on
the three individuals and mental retardation. To me,
mental retardation is a pretty wide definitionl and my
concerns in reading from the planning commission and
everything is probably a little more clarity on your
description of these individuals as far as retardation.
Are you wanting a broad spectrum so that you can pick
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individuals, or is this going to be a special group within
retardation?
THE WITNESS: Yes, It could be a number of
different people who may live in that home over the years.
And I hesitate in getting too specific regarding those
individuals because of their need for confidentiality.
Each person is very different, so I canlt say that there's
a standard type of person that's going to live there other
than it's someone who would voluntarily live in the home
who requires the kinds of services that we've been
describing, who is unable to live independently that does
not pose a threat to others, is somebody who is willing to
learn and is interested in living in this type of
environment.
Does that help you at all?
MR. BARNETT: It doesn't clarify it. It still
leaves a pretty broad -- the difficulty I've got is
understanding, too, the location of this home on more of a
rural environment versus a townhouse in town where some of
these people can get out and socialize and travel and
communicate with other people versus isolation that seems
to be more in this corner. People going for walks and
being supervised and not clarifying the three individuals
of three people wanting to go for walks at different
directions for different times and staffing and stuff, I'm
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having trouble with really seeing all the clarity of some
of these things versus just kind of an umbrella covering
everything, and that's my concern with the location,
safety and stuff.
THE WITNESS: Some people prefer living in a
rural area versus living in a downtown environment that
tends to be a little noisier and a little bit more closer
to your neighbors. We have some homes that are located
very close to other homes and that are in sidewalk areas
where people can walk downtown. We like to offer a
variety of living situations to individuals.
MR. LAYMAN: I guess in follow-up to Mr.
Barnett's question, you alluded that there's different
levels of care or support, and I think maybe that's what
is creating some concern here. Without revealing
confidences -- I mean, maybe you could distinguish for us
what other options -- I mean, if somebody was not coming
to this CLA, as you describe itl where else would they go?
In other words, what criteria do they have to meet in
order to be able to come to a CLA versus some other type
of support environment or supported environment?
THE WITNESS: Basically the self-care and
self-maintenance type of activities that requires more
supervision in a group home setting like this. We have
people who live in less supervised settings or who are
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to do if some stranger comes to the door and knowing
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It's based on your ability to cook and knowing when to
7 turn the stove off when you're cooking a meal, knowing
8 things like when you pay for something with cash, if you
9 should be getting change back,
10 So if you have those kind of skills, then you
11 may live in a less supervised setting where staff check on
12 you occasionally, whereas if you don't have those skills,
13 you need someone to be there with you to look out for you
14 to make sure that when you buy a meal in a restaurant,
15 someone's giving you the appropriate change back or if
16 someone's trying to take advantage of you, that you have
17 an advocate with you to help you learn what's right and
18 what's not.
19
MR. LAYMAN: But then I guess what I'm getting
20 at is if it's not that level, then it might be much more
21 involved. I mean, place this in perspective for us. I
22 mean, are there a lot of medical -- I mean, are we dealing
23 with medical complications? What degree of, you know,
24 independence and cognitive ability do these folks have? I
25 don't want to lead you on, but I'm saying -- aren't in
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effect you saying they have a fairly high degree of
cognitive ability and they are living in a -- they've
chosen to live in this environment? I mean, we're not
dealing with people with IQ5 of 6, or maybe we are.
THE WITNESS: That's a very hard question to
answer because the three people may all be on very
different levels and different kinds of needs. Someone
may have a medical problem; someone else may not. To
address the medical needs, all I can tell you is that they
must be medically stable enough that they could live and
not in a medical facility. Our staff are not nurses;
they're not trained,
MR. LAYMAN: That's what I was wondering.
THE WITNESS: Our staff do administer
medications to some individuals who take medications.
That actually would be another good example of the kinds
of supervision needs our clients have. If they have a
headache, they may not know how many aspirin to take, for
example, or which medication to pick to take, so our staff
would be there to guide them with that kind of thing. But
we don't have people who are so medically complex that
they need nursing care.
MR. BOYER: You mentioned that some residents
prefer an urban environment, somp. rural. Could you give
us some idea what degree of choice the residents,
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themselves, would usually exercise in determining whether
2 to come to this site if you put it in operation rather
3 than some other?
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THE WITNESS: Typically referrals are made to
5 our agency of good candidates for a particular home and
6 trial visits are done where the individuals come and they
7 visit the home, they tour the site; they may do a couple
8 of overnight visits. If we have openings in a few places,
9 they get to go to a couple of different homes, ones that
10 would definitely meet their needs. And we have people who
11 are very vocal about their choices about whether they'd
12 rather live in town or a farm type of setting. We try to
13 keep that in mind when offering services to someone.
14 We also look at where their family is from and
15 where they may have grown up and try to keep them in a
16 close proximity to what theylve known, if that's what they
17 like. If that's not what they like, then we look for
18 something different. But the people who would be moving
19 to this program, their families live in the area.
20 Does that answer it?
21
MR. BOYER: Yes. Is there an urban CLA in
22 Carlisle, in or around Carlisle?
23
THE WITNESS: Yes, there is.
24
MR. BOYER: More than one?
25
THE WITNESS: There's one operated by CPARC.
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There are others operated by other agencies.
BY MR. ANDREWS:
Q. In Carlisle?
A. Yes.
Q. And do you also have residential programs in
Mechanicsburg?
A. Yes, we do.
Q. You have referenced one in Harrisburg?
A. Yes.
Q. And New Cumberland?
A. New Cumberland, Camp Hill.
Q. And on the outskirts of Mount Holly, as well ?
A. And the outskirts of Mount Holly, and a very
rural setting, not in downtown Duncannon, but in Perry
County.
MR. BOYER: Thank you.
MS. PATTISON: Ms. Ferenz, if this was granted
to you in the future, might you want to plan to add onto
the building and add more people?
THE WITNESS: That's not our plan, no.
MS, PATTISON: I have some interest in the
employees that help you there. I don't know -- I tried to
read the planning commission a little bit. I was
wondering if the employees, what their qualificati~ were
and also if they have any training of their own before
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they come into this home.
THE WITNESS: Yes, we do, I believe at the
planning commission I had stated that minimal requirements
are that someone is 18 years of age and has a driver's
license I has a high school diploma. Many of our staff
have many more qualifications than thatl and that's for
the direct care level to be a supervisor, and there's a
supervisor at each site. They generally have a degree or
else several years of experience in the field.
We provide a great deal of training to our
staff prior to them working with the individuals in the
homel including first aid and CPR and fire safety, general
acclamation of policies and how to work with people with
mental retardation, medication administration training,
and there's 24 hours of training provided to staff within
the first year. There's a great deal of -- we have
ongoing monthly training for our staff, for all of our
staff, Then therels also individuals at each home where
training is given to the staff; how to deal with crisis
management, some specific plans. people are trained in
specific plans for the individuals that they're working
with,
MS. PATTISON: And all this you mentioned, do
they have this before you begin, or are you saying this is
ongoing and they may not have it all to begin with?
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THE WITNESS: Some of those things are given
prior to working with individuals. First aid and
CPR -- I'm sorry, not the full course. They aren't
certified generally beforehand, although some are. But
there is a general first aid and CPR taught to people, A
basic orientation to the job is provided prior to. Fire
safety is provided prior to working with the individuals,
MS. PATTISON: And are you saying, then, that
in addition to these people, there's always a supervisor
there?
THE WITNESS: No. A supervisor is not always
at the home. There is a full-time supervisor assigned to
that house, but obviously they can't be there
MS. PATTISON: It's only one full-time
supervisor?
THE WITNESS: Right, and there's a manager
above that person who is assigned to the home, too.
MS. PATTISON: If the neighbors would have
problems, say if someone would get out of the home and no
one would know, is there somewhere they could call? Are
the neighbors left to search around?
THE WITNESS: No. We have provided our
telephone number and my name and the executive director's
name to several of the neighbors, and I know it's been
mentioned at the planning commission meetings. Typically
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at other homes that we operate, neighbors are given
information about who to contact, including the phone
number for the house.
MS. PATTISON: That's what I wondered.
THE WITNESS: The immediate thing would
obviously be to call to the home.
MS. PATTISON: Have you had any fire histories
in these homes or other homes similar to yours?
TilE WITNESS: Yes, we have had fires within our
homes.
MS. PATTISON: And that's why you speak of the
different fire alarms you have? Do you have them in every
room?
THE WITNESS: The bedrooms are equipped with
them, and there's one on every floor. And some of our
homes there's -- and I don't have the exact square footage
with me, but if it exceeds a certain square footage, then
there's more than one detector on each floor. There's one
in the basement.
MS. PATTISON: So you personally have had fires
there. Have there been one or many?
THE WITNESS: I believe in the history of
CPARC's operation of group homes, which has been since
1970, there have been two fires.
MS. PATTISON: I live near here, and I know
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home, that will enable them to establish the program. I
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think we also want to establish the principle that a
3
program such as this does not need to have a special
4 exception. That may not be a direct answer to your
5 question, but we will be happy to have a special exception
6 so that they can get started with the group home, We
7 would like more.
8
MR. HARKER: If there are no further questions
9 of this witness, we'll proceed to your next witness,
10 unless there's someone who would like a brief adjournment.
11 Hearing no objection, I guess we'll proceed.
12
13 LEON MORRISON, called as a witness I being
14 previously duly sworn, was examined and testified as
15 follows:
16
17 BY MR. ANDREWS:
18
State your namel please.
Q.
19
Leon Morrison.
A.
20
Q.
And are you the owner of the premises that
21 we've been talking about?
22
Yes, I am.
A.
23
Q.
How long have you owned the premises?
24
Since 1990.
A.
25
Q.
And basically, Mr. Morrison, what I want you to
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do is to bring to this board your knowledge about the
property, the dwelling, the structure, itself, and how
it's been affected by the Conodoguinet Creek nearby.
Since you've been the owner of the property, has any water
from the creek ever got into the dwelling?
A. No, it has not.
Q. Now, before you became an owner of the
property, were you familiar with the property?
A. Yes. I've been familiar with that property for
quite a few years.
Q. Explain that, please.
A. Well, I was currently in the oil business, and
that property is heated with oil. And from the time that
the property -- I went back in the records today. I think
sometime in the late '40s that was converted from coal to
oil. And from that time on my company did serve that
property with oil. And to our recollection, the only time
that there was ever any water in the basement was in the
flood of 1972. I personally worked on that furnace. The
water was in the basement. The water was up over the
furnace, but there was no other damage done down there. I
also -- in conjunction with that, my aunt was raised in
that house. I just talked to her yesterday; she's 85
years old.
Q. I don't want you to tell the Board what your
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have your own personal knowledge or familiarity with the
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aunt may have told you because that would be hearsay. But
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while she was there living there as your aunt, did you
4 property, like observing it?
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A.
Yes, I did.
Q.
And over what period of time was that?
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A.
My aunt lived there. She moved out probably in
6 the '50s, but I was friends with the people who did live
9 there, the owners who I bought it from.
10
Q.
You've had other tenants in that property, is
11 that correct, since you've owned it?
23
MR. ANDREWS: I have no further questions for
12
A.
Yes, I have.
13
Q.
And have any of those tenants had problems with
14 water interfering with their enjoyment of the property?
15
A.
Not to my knowledge. The first tenant I had
16 had three children. We've only ever had two tenants. The
17 first tenant had three children, and the second tenant I
16 had had three children. The first tenant stayed for 36
19 months; the second tenant stayed for 36 months. And to my
20 knowledge, they never had any trouble with the children
21 going to the water or the water being at the house at that
22 particular time.
24 Mr. Morrison.
/
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MR, HARKER: Ladies and gentlemen in the
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audience, do you have any questions for Mr. Morrison?
I'm surprised. I was expecting some questions.
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Members of the Board?
Next witness, Mr. Andrews.
MR. ANDREWS: Mr. Leach.
'"
ALEX LEACH, called as a witness, being
previously duly sworn, was examined and testified as
follows:
BY MR. ANDREWS:
Q.
Mr. Leach, where do you live?
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I live at 324 West Main Street in
Mechanicsburg.
Q. And how long have you lived there?
A. Four years.
Q. And who is your neighbor to your west?
A. That would be the group home.
Q. And is that the group home run by Cumberland
Perry Association for Retarded Citizens?
A. Yes, it is.
Q. How many individuals, retarded individuals,
reside in that group home? Do you know?
A. Eight. I just recently learned that. I didn't
know until..,
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and they allow us to do that. My kids occasionally play
baseball, wiffleball, with a couple of the residents.
I've been to church with one of the members. I've prayed
with that same individual.
Q. You say member. You mean one of the retarded
individuals?
A. Yes. Two of the women that have worked at the
home -- I guess not supervisors; that's a title, but
employees -- have lived with us. They lived on the third
floor. We have a very large home. There's an apartment
on the third floor. The one paid rent, the other didn't.
She's going through a divorce; she didn't have the money.
r'm also home with my kids during the day. My
wife works; she's an OB/GYN, so r've been there a lot.
We've never had a problem. In fact, at one point there
was a problem with groundhogs ripping up the gardens in
the surrounding area, and we discovered through tracking
them down that they had really formed a large colony
underneath this apple tree in the very back of their
property. They have a large home, and then there's a
garage, and then behind that is sort of a field area that
nobody is ever in; just a lot of fallen apples all the
time. That's a great source of food for the groundhogs.
And then they would from there move out, and they started
getting in everybody's garden. Once they were made aware
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of it where the groundhogs were livingl they not only
filled the holes but they cut down the tree to take away
the source of the food, which was very helpful,
Q. When you say they, do you mean the staff of the
CPARC home?
A. That's correct.
MR. ANDREWS: I have no further questions.
MR. HARKER: Questions of the neighbor here?
MR. GORDON: Any of these people ever been out
and wondered off away from that home?
THE WITNESS: I've never seen anyone unattended
before.
MR. GORDON: Have they ever been out
unsupervised?
THE WITNESS: Not to my knowledge, not that
I've seen.
I want to be clear. There are people in the
backyard. They're in their backyard.
MR. GORDON: No, I'm saying, have they ever
left the home unsupervised?
THE WITNESS: Not to my knowledge. Several of
them work, They have actually a large range there. They
have one fellow that has tremendous physical problems as
well as the mental problems, and he basically needs to be
moved around. They have others that work. There's a
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vehicle that comes and picks them up and takes them to
work each day. Then they have others, I guess, that are
in between; may work and may not. I don't know.
MR. HARKER: Anything else?
Board members?
MS. NEIDERER: Mr. Leach, as a landowner beside
the home, have you found that the property is maintained
satisfactory?
THE WITNESS: The property value has increased.
My home was -- we purchased it. It's a huge home. Our
home was purchased for $3141000 four years ago. I had the
mortgage refinanced, and I wanted to get the mortgage
protection insurance dropped, and so I just recently back
in October had it appraised, and it appraised at 325,000
at that time. So it had accrued, not a great deal, but it
did go up.
MR. HARKER: You, sir, one more?
MR. GORDON: In the time that you've lived next
to this home or the time the home has been there since
you've lived there, has cops in Mechanicsburg ever been
called to that home for trouble?
THE WITNESS: I have not seen the police there.
MR. GORDON: No. I didn't ask you if you seen
it. I asked you, sir, have they ever been called to that
home.
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THE WITNESS: I would have said yes if I had
known that they had been there. NOI I don't, and I have
not seen them,
MR. GORDON: I'm just sorry I don't have the
officer here that appeared at the last meeting.
THE WITNESS: But you asked me if I know.
MR. GORDON: Okay. That's fine. You answered
it to the best of your ability, and I appreciate that.
MR. HARKER: Thank you very much.
Do you have any other witnesses?
MR, ANDREWS: No other witnesses, I just have
one other exhibit I would like to introduce and ask the
Board to take judicial notice. This was in the record at
the planning commission as well. This is a joint
resolution of the Pennsylvania Senate and House of
Representatives from 1985 supporting CLAs, the
establishment of CLAs in residential communities
throughout the Commonwealth and urging municipalities to
be accommodating with their zoning effort. And you will
see, I think in the report from the planning commission,
just a reference to a statement that I made to the
planning commission, and it is from this resolution.
There are recitals to this resolution or findings of the
legislatures, and one of them is that property values do
not go down from the establishment of small residential
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MR. HARKER: Reserving the right to put in your
4
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legal argument.
MR. ANDREWS: That's correct.
MR. HARKER: Now, ladies and gentlemen, there
7 have been a number of exhibits presented here. We accept
8 all of these as evidence in this case, and we will accept
9 any relevant exhibits that you have. But before you want
10 to make your statements or participate any further, you
11 have the right to look at any of these things.
12 Would any of you like to come up here and look
13 these over before you proceed?
14
MR. WATKINS: May I ask one question of the
15 attorney for CPARC?
16
MR. HARKER: Yes.
17
MR. WATKINS: You stated previously in planning
18 meetings that federal laws override this.
19
MR. ANDREWS: That's correct.
20
MR. WATKINS: That's depending on whatever
21 decision this board would make that a federal law would
22 override this.
23 If the Board would vote not to allow this,
24 would you proceed with the federal rulings?
.
----
25
MR. ANDREWS: I'm not going to discuss whether
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we'd proceed or not, but the point that you have made is
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addressed in the brief that I have submitted to the Board
3
having to do with the Federal Fair Housing Act amendments
4
of 1966 and my contentions of what that requires of the
5 township. I won't say more than that.
6
MR. HARKER: You're also welcome to look at
'I
7 that brief.
6
MR. GORDON: Sir, didn't you make the statement
9 at the last meeting -- and you quote me if I'm
10 wrong -- that regardless of what these boards would say at
11 this point, the federal law in the end would win, if you
12 had to go that route it would win?
13 You made that statement, and I have witnesses
14 here to clarify it.
15
MR. ANDREWS: My statement was that it was my
16 contention that that was the case, and it is my
17 contention.
16
MR. HARKER: Attorneys are known to talk up the
19 strength of their own cases, Mr. Andrews in particularl of
20 the various attorneys in Carlisle. But there are
21 differing interpretations of the law as you heard from the
22 discussion of the law in the previous case. We will look
23 at what Mr. Andrews has to say, and we will look at Mr.
24 Carpenter's interpretation, and we will look at the law
25 independent before either agreeing or disagreeing with Mr,
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Andrews.
MR, ANDREWS: Just for accuracy sake, when I
said that, I said the township so far differs. I
disclosed that.
MR. HARKER: Nowl you all -- the township is
here. It is represented by Mr. Brenneman. Now, he had to
leave. Now Mr. Carpenter is here, the zoning officer, and
I would like him at this time to take the opportunity to
present the township's position with respect to the
interpretation since it's been led into by Mr. Andrew's
response, as well.
MARK E. CARPENTER, called as a witness I
being duly sworn, was examined and testified as follows:
MR. HARKER: Your name and address and
employment.
THE WITNESS: Mark E. Carpenter; 1630 Gap Road,
Carlisle, PA; zoning officer for Middlesex Township.
MR, HARKER: What can you tell us about the
role of the zoning officer in this case, what you were
requested to do and your response?
THE WITNESS: I was requested by Mr. Andrews to
offer an interpretation of the ordinance in regard to them
trying to locate a community living arrangement at 102
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North Middlesex Road. I did render an interpretation. I
2 wanted to submit to the hearing board at this time a group
3 of correspondence that I have concerning this application.
4 It consists of -- if Mr. Andrews is not in any -- against
5 this.
6
MR. HARKER: Well, show Mr. Andrews a copy of
7 it. These are documents that you received in the course
8 of normal correspondence in your office?
9
THE WITNESS: Yes, and one that I wrote. The
10 first is a letter I wrote in response from the
11 interpretation of the township.
12
MR. HARKER: And that is your determination
13 that's being appealed?
14
THE WITNESS: Yes.
15 The second is a letter from the Middlesex
16 Township Municipal Authority stating that the sewage flow
17 from the home would be the same -- it would fall under the
18 residential criteria. The third and fourth are letters
19 from Mr. Andrews. The fifth is a letter from a concerned
20 citizen, Mr. Gene McCallips from Middlesex United
21 Methodist Church. I'd like to present these to the Board.
22
MR. ANDREWS: No objection.
23
MR. HARKER: Mr. Carpenter, as the zoning
24 officer of the township, isn't it fair to say that you are
--)
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restricted in interpreting the zoning ordinance to its
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home, and, therefore, I ruled that it did not fall under
the definition of family and would not be a permitted use
in the Village Center District by right but would have to
go before the zoning hearing board to be determined
whether or not it was allowed as a special exception use.
MR, HARKER: Questions, Mr. Andrews?
MR. ANDREWS: No, I don't have any questions.
Thank you.
MR. HARKER: Ladies and gentlemen, any
questions of the zoning officer?
Board members?
MR. MORRISON: I have a question. If I decided
to rent that home to four college students, is that
considered a family?
THE WITNESS: Yes, I believe it would be.
MR. MORRISON: Although they're not related,
not a family?
THE WITNESS: Yes, I believe it would be. I
would have to look at your proposal and give a preliminary
opinion first like I did with Mr. Andrews. The reason I
decided his did not fall under the definition of family
was specifically because at the end of the definition of
family, it states that a family is here and defines
specifically, excludes a boarding or rooming house,
lodging house, club, fraternity, hotel or any similar
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is you wish the Board to consider as clearly and as
2 succinctly as possible, And then you are subject to
3 questioning by Mr. Andrews or by the Board or other
4 people.
5 Given those conditions, who would like to come
6 up first to express their own views on this matter? In
7 fact, would all of you who would like to do so, please
8 stand and raise your right hands now?
9 (Witnesses sworn en masse.)
10
MR. HARKER: Your name, address and occupation,
11
THE WITNESS: My name is Scott Watkins. My
12 address is 109 North Middlesex, and my occupation is a
13 driver.
14
MR. HARKER: And you're a close neighbor to
15 this property?
16
THE WITNESS: Yes,
17
MR. HARKER: What is your position?
18
THE WITNESS: I would ask that the Board look
19 closely at the flooding problems in the area, the safety
20 of the individuals on the busy highway, North Middlesex
21 Road and Clemson Road. And the last thing I have is in
22 the zoning book, the zoning board can attach conditions to
23 a special exception if granted, and if granted, that they
24 attach a condition of it being renewed on a
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periodic -- whatever you feel would be reasonable, and
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when the residents are off the said property, that they
are accompanied by a trained staff member. That's all I
have.
MR. HARKER: Mr. Andrews?
MR. ANDREWS: I have no questions.
MR. HARKER: Any questions of this witness?
MR. LAYMAN: Just onel Mr. Watkins. If this
were anything other than retarded individuals, would you
have the same concerns about flooding or safety?
THE WITNESS: Yes, I would. My concern is
allowing a special exception. If this is allowed, how far
is this going to go? What's the next thing that's going
to be allowed in this township?
MR. LAYMAN: Well, the zoning ordinance
addresses those issues.
MR, HARKER: Thank you very much.
LEE GORDON, called as a witness, being
previously duly sworn, was examined and testified as
follows:
THE WITNESS: My name is Lee Gordon. I live at
106 North Middlesex Road. My property adjoins the
property that these people want to come into. Now, I have
lived there since 1970. I've seen the high water come;
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I've seen the high water go. I can remember sitting at
6:00 in the morning and counting the traffic on the road
and counting 50 cars the same time from 6 to 6 in the
morning, the same time period you now talk 250 cars. That
is just on North Middlesex Road. I'm not talking Clemson
traffic. A lot of people come from Perry County to
Cumberland County, and that's a shortcut to the Miracle
Mile. The Miracle Mile, as of April, goes down to a
one-lane highway. We're going to have a torrible amount
of traffic. We're going to have excess traffic on our
back roads, and there's only three hard roads meeting off
the Miracle Mile. So that means a terrible amount of
traffic.
Now, I know you read the article in the papers
about past meetings. That's right, I am concerned, I
want to clarify something. We have a retarded boy on my
wife's side of the family; he was a good kid. We have a
retarded kid that lives on up toward the top of the hill.
I have no problem with retarded people, which was stated
otherwise in the paper. I have no problem with
handicapped people.
My feelings, if it's a home, a family that
moves into that home and they have handicapped or
retarded -- I don't have a problem with that because I
know for a fact those parents is going to be looking out
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for them, Whether they're adults or kids, they're going
2 to be looking out for them, When you take a group home
3 and set them in there and you've got one supervisor over
4 three people, that supervisor goes to the bathroom and
5 that door's open and they decide to go, who's going to
6 stop them?
7 I have an in-ground swimming pool, and I'm very
8 much concerned. My pool is built according to state
9 regulations. The fence is there, and I even put a hedge
10 on the outside of the fence. And in the summertime, the
11 gate is locked only except when my grandkids are there and
-"
12 they're swimming.
13
Now, I don't think itls right that I'm going to
have to live with that pool 24 hours a day and worry about
the next-door neighbors getting into that pool. And if
they do, where's my legal status?
People, I've lived there since 1970; it's my
sweat and blood. I'm not going to move; I made the
statement I would. There's no way 1111 move, They all
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20 are prejudice; I'm hollering prejudice on my side. I need
21 your help.
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MR. HARKER: Mr. Andrews?
23 BY MR. ANDREWS:
24
Mr. Gordon, you feel you live in a nice
Q.
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residential neighborhood?
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A. I do.
Middlesex Township is one of the best
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MR. ANDREWS: No further questions.
MR. HARKER: Board members?
5
Your pool is fenced and locked now?
6
THE WITNESS: Yes.
7
MR. HARKER: How high is the fence?
6
THE WITNESS: Four foot. And also, for safety
9 precaution, sir -- I don't know what you call them; I
10 guess a Japanese U, completely around it. But, now, Lord
11 forbid, it could happen; r'm not saying it couldn't. God
12 only knows I don't want it to happen, but itls on me if it
13 does happen.
14
MR. HARKER: Is there any other barrier between
15 your pool and the open space at the proposed home?
16
THE WITNESS: Yes, sir. I just put a 6-foot
17 fence up.
16
MR. HARKER: So there's two fences?
19
THE WITNESS: No. I just put the one 6-foot
20 fence up, and I'm 6 inches off the property line on my
21 property. But then state regulation required when I put
22 the pool in that I had to put in a regulation fence which
23 was 4 feet, which I do have. And on the outside of that
24 fence I also put one which is brand new which puts that
25 out 3 feet by what the actual fence is.
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MR. HARKER: And you have a 6-foot fence, too?
THE WITNESS: At the property line.
MS. PATTISON: Is this an in-ground pool?
THE WITNESS: Yes, ma'am.
MR. HARKER: Have you tried to speak with any
of the personnel, Mrs. Ferenz from the CPARC, to determine
what, if anything, they might do to allay some of your
concerns about liability for your pool?
THE WITNESS: No, sir, I didn't. I feel at
this point I was there first and what I have, I've done on
all the legal technicalities that the law says that is
required of me to do, and I don't feel I have to go to
these people to find out whether it's all right in what!
done.
But my question is, if that gentleman goes to
the bathrooml he has a virus, he's got diarrhea and he
might be in there for 15, 20 minutes -- and we all know
what that's all about -- and they can get out that door,
what's the answer?
MR. HARKER: You mean in the pool?
THE WITNESS: No. I'm talking about at the
home.
MR. HARKER: And I know this board is very
concerned about you because you're an adjoining property
owner, so we want you to express yourself very clearly.
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THE WITNESS: I was at the other board twice,
and I dreaded coming back here tonight; I really did.
Because the other board, the second meeting, I thought the
guy was going to come over the table after me, and you
make me feel comfortable here tonight. And I want to
clarify here, and I know some of the other people sitting
back here feel just like I do. My point is, whenever
whoever's in charge of that home down there, if these
people come in and they have to go to the bathroom with a
virus and they're going to be in there for 15, 20 minutes,
who is going to watch these three or four people that's
going to be there while he's in the bathroom not going out
that door? And this is my concern because once they get
out the doorl the open space is there. And I don't want
to have to watch my swimming pool 24 hours a day, and I'm
not going to push it shut because my little grandkids come
there every year to swim.
MR. HARKER: In other words, if the staff at
CPARC drops the ball, then what --
THE WITNESS: I'll let you'ns handle it because
I'm coming back on you'ns.
BY MR. ANDREWS:
Q. Mr. Gordon, let me just ask you briefly. There
were children in that home with the previous tenant?
A. Yes, sir, and they come up and swam all the
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time.
Q. Would you not have these same concerns with any
other family moving into that homel a family with young
children?
A. Yes, sir, I would. And I'll tell you why I
would. When I put the pool inl the owner of the insurance
company that I got my insurance off of, my first question
to him was when I put the swimming pool in, put the fence
up, what was my legality if, sir, somebody got in that
pool. He came back at me and said, Lee, I have my pool;
I've done the same thing you've done and you're asking me
a question I researched thoroughly. A kid 5 years of age
or under climbs that pool, you Ire liable, A kid 5 years
of age or older gets in that pool, you're exempt.
Q. If it were one of four college students living
in that house, it would be the same problem.
A. That's exactly right.
MR. ANDREWS: I have no further questions.
MS. PATTISON: Mr. Gordon, do you know if
you're about the same level, your heme, as this home, and
if so --
THE WITNESS: I'm higper, ma'am. In fact, in
the flood of '72 -- and you're welcome to pull in my
driveway anytime you wish. In the back of my yellow barn,
the water was 4 feet from that barn,
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MS. PATTISON: I wondered what problems with
water you've had.
THE WITNESS: I've never had problems, but the
funny thing of that is I had to drill a well; I had to
drill 365 feet to get water, and all my neighbors around
me are down 96 feet. Now, when all the floods hit and we
had all the rains, my basement stayed completely dry but
everybody around me had water running out of their houses.
In fact, the house below me, the water was
coming out the cellar door on the first flood. The second
flood the cellar was halfway flooded. I know because the
people that lived there at that time was Mr. and Mrs.
Shaffer, and they are both passed away now, but they
stayed with my wife and I the first time for a week and a
half; the second time they stayed there, I think, four
days until we got the thing cleaned out that it was no
longer damp, that they could move back in and not worry
about getting soaked.
MR. HARKER: Thank you, Mr. Gordon.
THE WITNESS: Thank you, people.
MR. MORRISON: I have a question of Mr. Gordon.
MR. HARKER: Oh, I'm sorry.
Do you know Mr. Morrison?
THE WITNESS: Yes, sir.
MR. MORRISON: If CPARC doesn't rent this house
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and I rent it to someone that has three small children,
are your concerns as great about your swimming pool as it
is when CPARC wants to rent it?
THE WITNESS: Yes, sir, it is.
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MR. MORRISON: Then you don't want CPARC to
rent it for that reason?
THE WITNESS: No. I didn't say that. My
concern is, I don't care who you rent to; I could care
less who you rent to. My concern is, whoever you rent to,
whether or not they're going to get in that pool. That is
my concern.
MR. MORRISON: My question to you is this: If
I rent to someone who has three children, do you have the
same concern?
THE WITNESS: Yes, I do.
MR. MORRISON: And you would not like me to
rent to someone that has three children?
THE WITNESS: No. Hey, that's your right.
MR. MORRISON: That's exactly right; that is my
right. But if you're saying that you have a great
concern, who can I rent it to, and what am I supposed to
do with it?
THE WITNESS: Now, you put these three people
in down there, Leon, that these people want to put in that
has to be supervised, 10 to 1 those three children that
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you want to put in that property have more knowledge than
what the three people are that they're going to put in
this home at this point.
MR. MORRISON: When your three grandchildren
came down, didn't they have to be supervised?
THE WITNESS: Yes, they did. And they got a
lickin if they got in the pool if they wasn't supervised.
MR. MORRISON: And didn't their mother have to
go to the restroom if she had diarrhea?
THE WITNESS: My wife was always at the bay
window; that's why we put the bay window in. The bay
window went in and then the pool.
MR. MORRISON: Well, your wife can't see from
her bay window whatls going on down at 102.
THE WITNESS: No, To a point, no, but then to
another point, yes.
MR, MORRISON: Well, she has to be able to see
through a building if she can see it.
THE WITNESS: No, she don't have to see through
a building.
MR. HARKER: Mr. Morrison, that's just being,
what we call, argumentative, We get the point.
MR, BOYER: Mr. Gordon, having expressed your
worries about both children next door as well as the
children unsupervised from the neighborhood and retarded
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72
who they're going to bring in here out at this house. And
if he was bad down there and he comes up here, now that's
our problem until he gets in trouble here and they move
him out again.
Nowl as far as the children, I think through
raising four, if I tell one of my grandchildren or I told
one of my kids no, that's what I meant, and they would not
do it. Now, CPARC can tell these people no. Are they
going to listen?
MR. BOYER: Would it be fair to say, then, that
your concern is that of adequate supervision?
THE WITNESS: That's exactly right, sir.
MR. BOYER: And that's what it hinges on?
THE WITNESS: That's exactly right.
MR. BOYER: Assuming that the Board feels
obligated to grant either a reversal of the determination
of the zoning officer or a special exception, which by the
way is not something which has to be invented or created
by the Board; it is already in the ordinance. You should
understand that. The Board has very limited powers. But
let's assume that one way or the other that this board
makes a decision that permits CPARC to occupy the property
for the purposes that it wants by either one of the two
methods that they've asked for, is there anything then, is
there any sort of assurance that you could get from CPARC
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that would make you feel more comfortable with the
liability problem that you perceive and the supervision
problem that you perceive?
THE WITNESS: Sir, I don't think at this point
what they would tell me I would feel comfortable with, as
far as dealing with this type of people. You asked me to
be truthful, I'm going to be as truthful as I can.
MR. BOYER: Thank you. You've answered me.
MR. HARKER: You may step down.
Next witness. You've all been very patient and
listened very thoughtfully. This is your opportunity. I
hope you do not hold back and then wish you hadn't.
Yes, ma'am?
ANN CLAYCOMB, called as a witness, being
previously duly sworn, was examined and testified as
follows:
THE WITNESS: My name is Ann Claycomb, and I'm
a resident at 141 North Middlesex. Basically I didn't
realize that special exceptions were, more or less, part
of the ordinance already. I thought it was something not
to be taken lightly and something that we had some control
over. And one of the things I was going to say is that I
donlt take exceptions lightly to zoning ordinances at all.
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Because when you move into a community, if you look into
the zoning ordinances at all at that time, then you learn
a lot about the community that you're moving into, and to
some degree, you hope that the community will stay
somewhat as you expect it to be. So whenever there's any
kind of a deviation in an ordinance, I think it has to be
taken very seriously and considered minutely.
MR. BOYER: Excuse me, but I don't remember
saying anything or remember the matter arising of taking
anything lightly. The point that I was attempting to
make -- and you will be able to determine it for yourself
if you read the zoning ordinance -- is that certain uses
are provided for by right.
In the Village Center district, for instance,
you may have a single family residence by right. Certain
other uses are permitted as what are known as special
exceptions, and it's a very unfortunate choice of words
because they are neither special nor exceptions. They are
written into the ordinance. They are described group
homes by group lodgings, and boarding houses are among the
uses that are permitted by special exception.
And if it appears that the use which is being
proposed of this property fits that description, then the
Board may be required to find in favor of the applicant
and say, yes, your use fits that of a special exception
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under the ordinance, and, therefore, you may proceed. And
that was why I posed the question as I did to Mr. Gordon.
I said if the determination 1s made that the use must be
permitted.
THE WITNESS: Must be permitted.
MR. BOYER: Yes.
THE WITNESS: Thank you.
My second concern is that I'm just wondering
what would happen to the individuals in the group home as
well as to the neighbors in the community if the rules
that were spelled out about not going off the premises
unattended, therefore not being harmed on the road and
that sort of thing, if they weren't abided by, what
recourse is available if we find that things get out of
hand and people are getting hurt or feel uncomfortable in
some way and these understandings and rules aren't being
honored. Any recourse at all?
MR. LAYMAN: Well, they said it's a licensed
facility, so I would imagine that there is some recourse
to whoever has granted them that license.
MR. BARNETT: Are you asking the question if we
grant a special exception I are we as a board allowed to
put restrictions on that?
THE WITNESS: Thatls one of the things I'm
wondering about. I'm just wondering what you know along
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MR. LAYMAN: No, no. You said you were
3 concerned about the special exception process being taken
4 lightly.
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THE WITNESS: Right.
MR. LAYMAN: I will tell you that I personally
7 agree with that.
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THE WITNESS: I take that very seriously.
9
MR. LAYMAN: But then your next statement was
10 that you weren't saying that you were opposed. That's
11 what I heard you to say, that you were not opposing
12 necessarily the application. Did I hear that correctly?
13 what is your position on the application?
14
THE WITNESS: I have no position at this state.
15 I'm here learning. I just found out about this recently.
16
MR. LAYMAN: I was just trying to get a sense
17 of where you were.
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THE WITNESS: I'm still open-minded. Thank
19 you.
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MR. WATKINS: Can I clarify something that the
21 gentleman said there?
22
MR, HARKER: No, no. We're trying to get
23 evidence from you folks. As I said, it's important for
24 the Board to consider your views. It's not as important
_~J
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at this point in the proceeding for you to know what the
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1 Board's views are. You need to put your views on this
2 record because it is from this record and from this record
3 only that the Board can make its decision, and nothing
4 else, nothing that you may say afterwards, nothing that
5 may be said outside this hearing room, nothing that might
6 have been said and was not or is said untimely and too
7 late can even be considered by the Board in making its
9 So this is your chance to say what you want to
8 decision.
10 say. There may be a time later for you to ask questions
11 of the Board, but that has nothing to do with making your
12 case. So if you have any other objections or any other
13 reasons either for or against this applicant, I wish you
14 would all please try to understand what I'm saying and
15 just tell us what those reasons are.
16 There are quite a few of you who haven't taken
17 this opportunity. Maybe you feel that what you have to
18 say has already been said.
19 Yes, ma'am?
20
MS. HAMPSON: That was my concern that perhaps
21 what I have to say is a little redundant.
22
MR. HARKER: Well, it may be, but let's give it
23 a whirl and see.
24
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DOROTHY HAMPSON, called as a witness, being
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previously duly sworn, was examined and testified as
follows:
THE WITNESS: My name is Dorothy Hampson. I
live in Middlesex Township, 8 Oak Ridge Road, Carlisle.
MR. HARKER: And your concerns are?
THE WITNESS: Yes. You might say I wear two
coats, first as a resident. For the first time in 32
years, I'm ashamed to be a citizen in Middlesex Township.
The second coat I wear is an advocate for a self-help
group called the Head Trauma Family Network, and I've done
17 years of advocacy work for the traumatically brain
injured, One member of that community was my son,
Matthew, who died this past year after having been
traumatically brain injured for 17 years.
I would hope that this township can open its
heart and make a place for these people to live, at least
give it a try. What we're hearing iSI I think, fear, fear
of the unknown. What's it like to live next door to a
person who doesn't have all their brain cells functioning?
How many of us know? I know what itls like to live in a
house with one, and I s~rvived it, I spent 17 years in a
rather happy state of caring, and I would like to see this
township be able to do something in a similar way. We say
we're worried about floods; we're not worried about
C.P.C.R.S
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floods. We say we're worried about their safety; we're
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not worried about their safety. We're worried about our
4
Questions?
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own safety. We're worried about ourselves.
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MR. HARKER: Any questions for this woman?
6
Board members?
7
So you're in favor of this?
9
MR. BOYER: I have a question.
8
THE WITNESS: Yesl I am.
10 Are you familiar with CPARC and its homes and
11 provisions?
12
THE WITNESS: Yes. And also another type of
13 home which I've had some experience in helping to set up
14 is the CILs, the Centers for Independent Living, and they
15 are not for the retarded but for either handicapped and
16 disabled individuals. And the problems are kind of
17 cross-related because the same attitude in our society
18 exists regardless of whether itls brain damage you're
19 talking about or whether it's physical damage. Except
20 when it involves the brain, it's a little more mysterious
21 and a little more scary, so the fear is greater.
22
MR. LAYMAN: Where do you live in relation to
23 this proposed property use?
24
THE WITNESS: I live on the other side of the
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Carlisle Pike, actually between Trindle Road and South
C.P.C.R.S
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Middlesex Road,
MR, LAYMAN: You're down in the Iron stone
Ridge area?
THE WITNESS: Yes.
MR. BOYER: My question about your familiarity
with CPARC, do you believe having heard the concerns of
residents from the immediate area where this use is
proposed, do you believe that the supervision standards
and the safeguards taken on the policy executed by CPARC
is adequate to allay the fears that you've heard expressed
here tonight by nearby residents?
THE WITNESS: Yes, because they haven't
really -- we haven't really tried it, have we, in
Middlesex Township? They can tell us how they operate in
other areas and the homes that are operating successfully.
We can't say tomorrow that something isn't going to happen
in Middlesex Township. They can't guarantee that.
Nothing could be guaranteed by anybody that lives in that
house, a family. There could be a fire. Corne on.
You know what I'm trying to say; all of these
issues are just dancing issues. They are not the real
nitty-gritty, which is fear of the unknown or fear of the
brain-injured.
The question I think that you were trying to
ask, dancing around. How retarded are they, is really the
C.P.C.R,S
(717) 256-3657 or (800) 863-3657
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question that you were trying to ask; how retarded are
they.
MR. LAYMAN: You indicated that you are an
advocate as well as having been a parent?
THE WITNESS: Yes.
MR. LAYMAN: In line with what Mr. Boyer has
asked, are you comfortable -- if you were an advocate for
somebody who you knew was going into this type of home,
this home in Middlesex, are you comfortable as being their
advocate that this would be a good environment for them if
this was an appropriate environment?
THE WITNESS: Yes, because I know what they do.
There's a screening process. They try to put the
individuals in the area that they have available that's
the best for that particular individual. I know they do
that with the CILs. I mean, you're looking around trying
to find a place to live, not to vegetate, but to live to
the very best of your ability.
MR. HARKER: Thank you very much.
Any other witnesses that we haven't heard from
thus far?
Yes, sir?
MR. GREEN: I don't have any testimony, but I
would like to make a statement.
MR. HARKER: All right. Come up here and do
C,P.C.R.S
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so.
MR. GREEN: My name is Bill Green. I live at
107 North Middlesex Road. I've lived here for about six
years, and the neighborhood, itself, is pretty quiet,
everybody pretty much keeps to themselves. We say hi, we
waive, and that's about the extent of it. We don't have
wild parties. We don't do drugs, at least I don't. I
can't answer for everybody else, so 11m not going to. But
ever since the CPARC issue has come about, there has
been -- I think Middlesex is being unfairly stereotyped as
prejudice.
When I was younger, I grew up -- my grandmother
takes care of three mentally retarded individuals right
now; she has for the past 25 years. And I've spent many
of nights with them and never had any problems. But there
always was concerns, regardless. She did have some
outbursts with some of them. It's going to happen. I
donlt care what anybody says. It happens.
But the way things have been going these past
couple weeks and everybody in the Comment Line of the
Sentinel and everybody else telling other people that
Middlesex Township should be ashamed, that's wrong. I
think everybody here has a legitimate reason or concern,
and if we weren't a community, we probably wouldn't even
be here right now. And I think as a whole, I think it's
C.P.C.R.S
(717) 258-3657 or (800) 863-3657
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great that everybody is at least showing some kind of
concern. And I think that should be looked at. I'm just
flat out sick of hearing the comments that we're
prejudice. We're not prejudice. I'm not racist. I'm not
teaching my kids that; I was never taught that. So if
that's your opinion, that's fine, but I just wanted to let
everybody know how I feel about it. And that's it.
MR. HARKER: Thank you.
Well, I think that we've heard a very broad
spectrum of information. I suppose there could be
something else that hasn't been said, but, frankly, right
now I don't know what it may be. But the floor is still
open to you if you have anything over and above what we've
heard.
If not, then what we will do, unless the
applicant wants some rebuttal, is close the record, and
then the Board will begin the process of deliberating. We
will allow Mr. Andrews to make his legal argument, but
that's not evidence; that's just his opinion.
MR. CARPENTER: If it came down to granting a
special exception, would I be able to have input after the
hearing is closed?
MR. HARKER: Right. It's not what we call
evidence. It's just an expression of opinions.
Do you have a question of a factual nature of
C,P.C.R.S
(717) 258-3657 or (800) 863-3657
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MR. GORDON: Right at the metal bridge at
2
Clemson Drive, about 15 feet after the bridge.
3
MR, MORRISON: That happened last year, and it
4 was probably one of the coldest nights of the year. What
5 happened was the man was coming in on Wolfs Bridge Road
6 and went across the Wolfs Bridge Road bridge and his
7 truck -- when he tried to go through the water, his truck
8 went off the road on the Harrisburg side of Wolfs Bridge
9 Road. He then got out of his truck. Instead of going up
10 over the hill where he would have been safe to go out
11 toward Sheetz, he decided to come back. He walked through
12 the water at the corner of Clemson Drive and Wolfs Bridge
13 Road at one point. He went down to the next run, walked
14 through the water down there, passed all the homes on the
15 way down, including my home which had three area lights
16 up -- and there was no water at my home -- and decided to
17 go down and tried to cross the bridge.
18
MR. HAR~ER: So the condition of flooding, it's
19 a general concern of the area, but not necessarily this
20 property?
21
AUDIENCE MEMBER: That's true. Everybody at
22 Clemson Drive would have that same problem,
23
MR. HARKER: Okay. Thank you.
24
I suggest that the record be closed at this
25 time, Any objection?
C.P.C.R.S
(717) 258-3657 or (800) 863-3657
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.....,
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I hereby certify that the proceedings and
2 evidence are contained fully and accurately in the notes
3 taken by me on the within proceedings, and that this copy
4 is a correct transcript of the same.
5
6
f.\~ '? ltoFll.l
Amy R. Moore, R.P.R.
Court Reporter-Notary Public
7
8
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The foregoing certification does not apply to
13 any reproduction of the same by any means unless under the
direct control and/or supervision of the certifying
14 reporter.
15
16
17
18
19
20
21
22
23
24
25
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LEGISLATIVE JOUHNA I.-SEN ATE
MA Y I.'. 985
~ Wh!,h ~\~I\ (tlllllllilll"'~1 It) tile COl1ll1lillL'C till GAME ANI>
lSIIERII:S. ~I"y N. I JS5.
Senaloll RIIO"'JFS, SIIU~IAKEH. III'I.I'RICK.
O'CONNEll.. L1N((lI.N, MELLO\\', STOUT.
WILLIAMS. SINliU. SCANLON. SALVATORI'.
IIANKINS, ,\NIJIU:ZFSKI ,,"d I.YNCII I'f<'Cllled 10 Ihe
Chair 511851. el1ll1l<'d:
An Act 311ll"lIdlll!: Titl~', !.I (l:dul";uilUl) ;lIHI 711Slat~ (io\crll-
ment) of (he: Pl."lIIh) ".lllia run~(llid"ICd Stalllll'\, fUrlhcr fHO\'id.
ing for I.'mt.or .li\ IIII' lll~rl'.,,"'\ Iu Jnlluilal1l\.
Which \\11\ (tlllllllilll'd III Ille Ctlll1l11illl'C till FINANCE,
May 8. 1985.
Sel1alo" SIOl' I. I.I.\\'IS. RO~lANELlI. IINCOLN.
MUSTO. HOCI\S, SINl;11. al1d ANIJREZI:Sl\ll'reS<l1led 10
the Chair sn H5!.1:1l11l1l'lJ:
An Act ptlwidlnl! flIt the C\I;thli,hllh.'1l1 or a IIlUllll.'lP,11 rC\l.'IlUt.'
~haring progr;lIn; iruPll'llIg fltH\cr\ and dUlic~ Iln Ihl'llcparllllC'llt
of Re\lcnuc:; and all<)l'Jllllg (,'rlain rC\'CIHIl:\ fl'n'lll'd br Ihe Com-
monwealth,
Which \1+3\ (Ollllllllll.'d 10 the: COlllrnilll'l' \111 FINANCE.
May 8, 1985.
IU::SOLUTIO:'-:S I:'-:TllOlllJCEIl ANIl IlEFEllIlEIl
The PRESIlJENT 1"0 leml'o'e laid before ,lie Senate the
rallowing Senate Resolutions numbered, enlitled and rderred
rollowl. which were ,cad by Ihe Clerk:
May 8. 1985
REAFFJIlMI:':lG I'UlIl.IC 1'01.lC," "1\1l
URGI!':G MUNICll'Al.ITlES TO IlEI'IE\\'
THEil! ZONI:oiG OIl1lINA:':lCE IlEC;AIlIlII\(;
GIlOUI' I.IVII\G AIlI!ANGEME,'\ IS
FOil CEllTAI!': CITIZENS
Senators COH~l,\N. WIl.LlAMS. HO\I,INU,\.I.
SHAFFER. SALVATORI'. WENGER, Slll;~IAKER.
REIBMAN. HELFRICK. ANIJREZESKI. I\R,III.I:R and
MADIGAN orrered the roll()\~illg resolulion (Sl'Il;lh' C"ncur-
renl Resolulion ~o_ -12), which was read and rdl'nl'd 10 Ihl'
Commit ICe on Public Ileahll a"d Welrare,
III Ihe Sellale, ~I,f\' H. 1985.
A CONCURRENT RESO\'u'IION
Rearfirming public policy and urging l1\unicip;t!tll\'\ III rr\il'\\
their zoning ordinan(e legaltling group 11\'lnr ;lfl,IIlI'\'lIll'llI\
ror certain citin:ni,
WHEREAS, It i~ puhlic policy in Penn"yh'alll,' th,ll pwpk
who are devclopment;lll)' disahll'd, I1h.'lllaUy Il't;lIdnl. lIll'nl,llh
ill. physieallydis:lbkd, elderly, and childlcn \11;1111'111\1\ till' ill'IW'
filS or communilY resillcllli;1I surruundiIlC~; and
WIIEREAS, Such CiliulI\ whu lire: unahll' Itl ll~~' llHkJl~'Il'
d~ntly wilhoul sp~cial calC' and \upcr\'i\iull f\.'Il~'I,dl\ ;h.:llln,,'
~igher runclioning levels whl'lIli\ing ill IHlI1lC'.hkl' \f1l1l1!,' III thl'
nrnunilY rallll'r Ihan in large institution\; anti
_./WIIEREAS, Thl' li...ine r"cilllil's (or Ihc\l' ~itIJl'Il' IL.I\l' 1111
years tendC'd to he Im,'JIl'd in i\nlall'd, Ulll.ollh,'\\,I) pl.IU'\
wher~ few oppollunilil'\ C\.i'l 10 integr.uc 1l'~IlLlIh \\1111 l111l\'1
p~ople living in Ihe l,'oll1l1lullity; alld
WIIFRE^S, Slll.:u'\\hllwlIIlIlllnit). illll.'gralillll \\ dl'I'~/hklll
UpOIl all incll';l\l'd a\~llla"iIIIY III ,tPP10IHi.uc: <lml \\\.'lI'\UP~'I\I,,\1
small, nllIlIllUnil)' Il'\l{kllliall.lnILlI~\: ,Hal
WllI:Rh\S, NIlllll'WtI\ \Iudll'\ hil\C dl.'1lI01l\1I0l1\.'d Ihal '!l1J11.
communit), rC\ltkntlill r,Klhlll'\ 11;1\1.' nu adHl\l' IIllP"Cl l'l1 !h\'
propcrty \'alul'\ of nClgh"llI illt: 1IIIII\l'\; ami
WllrRb\S, Small, nHllllllllllty li~illg "'I,llll!l'lIll'lll\ 11.1\\'
bcen rl.'fo:oglli/l'\111I CUllIII10tl\\l';illll COllll and IIIII\'r (\lUll d\.',~.
\ion\ iI'I hl'ill~' lln' rUlh:IH\II,lll'qlll\;lklll III' Illtll('~h:;11 ra11l1h~'"
and
WIII~Rr,\S, It i\ l.:o\II~- 1\\ hl1lh 'l'I\I"l' plll\ld,'" and IIlIlIll,:'
palilic\ 10 11;1\(' In Il'\tlll 'l'p\',lIl'lIly to 111\' ":lllHl\ hI Il'llll'" 1t111l1o~
Ob\IOIcll'\ to 11ll' l'\labh,llllll'nl III ,m.lll, \.ollrnIlHlIlll~ rl'\I,kll~IJ"1
radlitil's;.lIltl
WIIEKFAS, II i\ prillliud~ Ih"'Il"IHI/I\lbdll~ 1I111111111":11'.'IIl'l:~
Ihrough llll'if luning pll\\l'h iiI P'-'llllllhl'l'\labll,hllh:lll III 'Ill ,1:1.
COlllll1Unil)' rl'\I(lt'lllial r.ll'illll,:' III :dl rl'\Ukllll,d /llll\',; 111\.'...',.'.
be il
RESOL VI:(} (tIlt' IhHI\l' III Ih'I'r"'\l.'lIl;ali\l" "'"11dllnll~1. rt,.:'
Ihe Genl'rJI '\\\l'lIlhl~ rC;lfllllll I ILl' Pllliq th,ll p"Ilpk \\lll1 ,II,'
de\'eloplT1l'lIIall)' lIi\ahkd, mC/llall~ rl't;utkd, !llt'III,III~ III, rh\,.o
1,:3I1y di\ahkll, l'I(krl~, anll ...hildll'll \hall CllJOY I lit' b.'ndll' 1'1
comlllunit)' cl'\Hll'lIllid \urwulHlllI~\; ;lrHl Ill' IIIUIIII\'/
RESOI.\'I.ll. I hat ;111 lIl11lllclpalllil'lo thhl\I~'lll'1l1 1111' (,1111'
lllonwC'3lth all: urgl'lIltl r~~ll'\\ tlll'lf lOlling llrdlll,lll~".." III ;1"\11.-
Ih311hcy (Jl.'illl.IlC Ihe OId\ic\'l'll\cllt of Ihi, poli~y"
SUI'I'OInl!':G C()~TI"'UEIJ ~'U:oiIlI'C;
OF TilE FWEIl"L GENI:Il"L
I!EI'ENIH: SII"III"'C; I'llOC;IlA~1
Senalors RIIOADES. IIELFRICK. SIIU~J..\~I II,
UNCOLN. O'PAKE, STOUT. STAPLETON. I'l\IO.
ROMANELLI. SINGEL. PECOIlA. RllC~S.
ANDIlEZESKI and RElIIMAN orrered Ihe follow,ng ,<,<'Iu-
tion (Senall' ne~()llIllnn No, 43), which w:t\ rl';ul and rd,'nt.J
(Q Ihe COmmilll'e on Local Go\"Crnmclll:
III Ihl' Sl'lI,lll', ~LI\" S, I'I"~
,I RESOlUTION
SUPPorling wnlinul'd runding lIf Ihe Fcllt'! ,II (!l'IL:'l1 I~~'o, ':~' ..
Sharing l'rogrotm.
WIIEREAS, Thl' Fcder,,1 funding uf II,..' (i~'I1\'I,d ~~'\'-:
Sharing Progfillll ii in JCOpJHJy; .llld
WHEREAS, "111e Gcncral Rl'~'l'IlIlC Shallll~ I'lli~r;llll I'
1lI0S1 visible lot.:'al rcllUn or Ihe F~deralla,\ dollal hllllH hl~,I: :""
eromenls and cOl11ll1unilic:s; and
WItEREAS, The General Rnl'lIue SIHlIlII~! 1'1l\!'I;lIll ,1:1,.,..
municipalities Ihc hcedom 10 tailor spl'lIdill~ 10 mdl\ Idll,lI ,,;.
rnunilY nceds; :llld
WIIEREAS, The General Rcvenue Sh;lIlll~ I'llI!'I.l!~' .. '"
~Ilabled local gO\'errlllu.'nls 10 financ(' projt'(\, ,\llll \\'1 \:,,' ' "
thl'ir cililens Ih:ltthcy olherwi\C' would nul !o\' ,Ihk III 1'1""':'
al1d
WIIERE,\S, (ieiiclal Re\CllIll' Shallll~ ,1\\l1IIU1\ II1I .','
I~olo or local gO\'l.'rnIllCI11 budgel\ in Pellll\)'h ;lm:l; ;lIld
WIIEREAS, PrOpCfl)' la~C\ or tither la~C\ ;llld U\,'I In" ,.',1,.
hOl'o'e to be rai\l'd 10 orr\el an)' 10\\ of Gelll'I;lllh'\t'lllll' \I:,\!"
funds; and ,
WIIERE,\S, M;II1)' lot'al gm"efllllll'lll\ in Pl'I1I1\\];,lIll,' ,I~, I
or ncar thcir SI;IlUlory t",alion lilllll\; and
WIIEREAS, Fa\'tHahle action need\ to lll' lill-t'lIlltl Ill,
tlllul'd runlling of lhe Gencral Rncllue Sh:UIll~', 1'1111'1,1111 /'1'1.":
11Illnicipalili~i begin to work Olllheir 11)8S.19~6 hIl<11:\'I', :!l;t:
rnre hl' it
:l~~1A-~~
EXHIBIT 6
RI'S'.l1 \'1
enl Olnll ell
~d('ral Gelll'
it rUflher
RESOL\'I
e Pres;dcl1'
use of em
Ivania,
,
I
t
I
';
I
I
I
I.Ee
Tho 1'1(\
resence 01\
rll be cane,'
I
Senator I
rar)' Capi\
Tho 1'1(1
~qtlc\tcd ;1
hair hl.';ar~
Tho I'RI'
ollowing (I
1I0\\s:
o pl:lce bel
CPA.ai;'
0: The 1',,"
WE, TIl\'
2(OIlR(bl
I b)' rcqlh"
A, IIJ~'cr
"ccounl;1
olllination
3)'S:
~ The PHI
10110\\ iog I.',
0110\\"\:
, 0 IllilCC hl'l,
a mCll1lwI
0: The Pr,'
t
"
1326
LEGISI.A nVE JOllHNAI.-SENA TE
DEe
')
AITlCtllJ Sec. I (Sec. 2905), page 4. line 2. by striking oul
"CONTRACT" ant..! inserting: service
-;\m,nd See, I (Sec. 2905), page~, lines 3Ihrol1&" 5, by ,uikinl'.
uul all or ,aid lines and inserting:
(ol) All emu of services required by Ihis section shall he hOlllt'
\01.:1 . b the 916 recorded 1111:553 c service and b' thol,c ~tlll'
,lIll1erS who use 916 recorded message services. -.
t\lI\l:nd Sec. I (Sec. 2905), page 4, line 10. by suiking nlll
..~!~.. ant..! inserting: ~plY with lhis section shall \'Ie il ,,'i(l~.~_~
tnUl of this title. Failure of .
On the question.
\\'llIlhe Senale agree to the amendment?
II wa\ agreed to.
Onlhc question.
\\'llIlhe Senate 3grce 10 lhe bill on second consideration, ;l"
all1cIldcd7
It '\a\ agreed 10.
Urdered, To be prinled on the Calendar ror Ihird con,idel'
atlon.
BILL ON SECONO CONSIOERATION
S\l1 \18 (l'r. No. 1591) - The Senale proceeded III c,,,\\,,I.
eralion of the bill, enlilled:
An Act amending Ihe acl or April 12, 1951 (P, L. 90. No. 111.
(nlilted "Liquor Code," reestablishing and renaming the Pellll-
s)hania Liquor Control Board; establishing the nur~all of COil.
sumer Relations; providing powers and duties of the OUice ui
Adminisuati\'c Law Judge, the Orricc of Attorney General and
13w enforcement agencies: adding certain definitions: pro...iding
for review of liquor regulations, for statements of licensing poll.
cies. for special occasion permilS for volunteer ambulance com.
panics, \loluntecr rescue companies and women's auxiliaries. for
wine. based beverages. for manufacturcu' records of sales in C.,d1
wunty. for revocation of licenses for 13;( delinquency. (or pOilll'
of-sale advertising, and for the revocation of a liceme for un\;\',\'
ful pmsession or transportation of liquor or alcohol; funbcr Ilfl1
\iJing for (he appointment and cOnlpensalion of board mcmhcr-,
for audilS, for restrictions on employee oUlside enlploY\1l1:nl, k'[
~torc hours, for sales by stores and licensees, for rebalcs alHll,\~
Jl~p()\ition of money in the Liquor License ruml; ptohitlilll,~'
pornography and obscene material on licensed prenlisc~; plOhd'
iling unlawful advertising; providing for civil and criminal pcn;ll
tie\~ and making appropriations,
Con,idered Ihe second time and agreed 10,
Ordered, To b, prinled on Ihe Calendar ror Ihird con,idcr'
alion,
BILLS OVER IN ORDER
I
\
\
i \
SII 1194 and \207 - Wilhonl objeclion. Ihe bill\ ""IC
passcd ovcr in their order at thc rcqucst of SCI\;\Itl!
ST,\UFFER,
IIILL ON SECOND CONSIDERATION
\,/
i\
rl'
SII1208 (I'r, No, 1599) - The Senale proeeede" 10 colI",1
"alion or Ihe bill. enlilled:
An Act amending the act of April 9, 1929 (p, L 177, Nu 1 ~ (I.
el1lil!nl "The Administrative Code of 1929," fmthcr pro\l,lllIf
for Ilrofessional and occupational affairs.
COllliidcred the second time and agreed to,
Ordcred, To be printed on the Calendar for (
"lion,
IIILl. OVER IN ORDER
SU 1210 _ WithmH objection, lhe bill was I
II' '"'''' allhe relln"l or Senator STAUFFER,
IlILI. ON SECOND CONSIDERAl
1111 \1,35 (I'r. i'OlI, 20K7) - The Senate proce<
t.'l ;11 Ion of the bill, entilled:
.\11 ..\~t amending Ihe act of Dece:mber 2l. 19'
S,\ 2.111, ~ntitlcJ ",'n a~t amending Title 66 (Pu
Ih.: PCllnsylvania Consolidated SliltuteS, furth~
It.'rlll 'public utility'; and providing for the: con\'cr
lll~ Ullil\ from oil or ga~ (0 coal and for the rel:l'
'lOn w~IS, for the: approval of Ihe constructio
1I11lh fuded by nuclcar energy, oil or natural I
fLl\:\I\1:ing of cnergy ~upply alternatives," cxten
,l.'l:lIing to mobile donte~tic cellular radio tete..
~~'r\icc for an additional period of time.
Ctll\~idcrcd thc second time and agreed la,
(lr<krcd, To be printed on Ihe Calendar for
a(ltlll.
\111.1. ON SECOND CONSIDERATION
11111685 (I'r. No. 2505) - The Senale proel
eralion or the bill, entilled,
,\n Ael amending the ael or April 14, 1972 (P,
~no\\'n as the "Pennsylvania Drug and Alcoho
Act," funher providing far powers and duties 0
and the council: and reestablishing and continuir
The bill was considered.
On the question,
\\',lIlhe Senate agree 10 Ihe bill on second c.
Sellalor WILT orrered Ihe following am'
,\~!rt.'\'d to, asked that the bill be considered
Illllt.':
t\lncnd Sec, 4, page 18, line: 4, by strikill!
.\IJD\TION,\L FIVE YEARS"
On the question,
Willlhe Senate agree to Ihe amendmenl?
It was agreed 10.
On the queslion,
Will the Senate agree 10 the bill on second
ilI1lcndcd1
It was agreed to,
Ordere~, To be prinled on lhe Calendar r,
aliull,
SENATE CONCUIUlENT IU-~~Ol
NO, 42, CA1.LED UI'
Senalor CORMAN, withoUI objeclion. e:l
7 of Ihe Calendar t Senate Concurrent Itcsnh
tll'd:
:~;
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to ':
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:!\:;.1:--
.;,;.'-
LEGISLATIVE ,JOUHNAL-SENATE
~~
'" .~"(t1rrC:1I1 N.c!\~ll1lion .r('afri~lTIillg ~uhlic polit.:). and url~illg
, ""\Jlili('~ In rl'\'ICW Ihelr 101111I& nrdllwncc H'l~i\,dil1~ ~'llllp
...l~ .....J .111~cnll.'lll~ (m ccrlainl'il irelU.
1,1"1 J.
'r :~: qucs!iOI1,
the ScnalC' "doPI the rC!loltllion?
..
SENATE CONCUIlRENT RESOI.UTION
NO, 42, ,\IJOPTI:IJ
...,-J"lI COII~IAN, Mr. Presidenl, I move Ihatlhe Senate
. ....! ScnalC' COllcurrl'l11 Resolution No. 42.
,........
.' ,'::qtll'sliol1.
... :~Il' Scn,llc.' :!Crre 10 the 11I(Jlion~
......J'.'r 1I0\\'ARD. Mr. President, sadly, I rise to oppose
~. 1,;.,,;-:iiJ11 of IlIe rcsohllion for several reasons. Firsl of all,
. .., .111 of the Members have received a lelter \Willen sOl11e
.1..
.' :' :~Hl'\" \\"l'l'ks OlgO hOll1lhc Direclor of the Penl1sylvilllia
I . ..~::,111 for lh'linded Citill'lIS, nol only ursins lhe adop.
.' :' ::',1> Il'~ohl1ioll, hut .11\0 making il dear thatlhat orga.
I'" ,':.. \~hidl has becn one of those in Ihe forefront of
., ,...~;1f (;I[l' for Ihe 1('lardl'd, rcgards its adoption as a vcr\'
ro... .-'.l~l (lllllplllll'lIt 10 ils ongoing interest for lhe relillded
~.:" Ilhill~ we (an aglee that this is not a rOUlinc resolu-
,..,: :-:,~. ~lcl1lhels of the Senate ma}' remember that three
,',;' J ;.' the Senate authorilcd the investigation of the men.
.: ':-:.1~J"d plojJram ill the Slate of Pennsylvania. I was Ihe
,'.J,o.~...I.:l of a committee which conducted Ihat review. The
.... l".: ....as so conlroversial that the commiuee itself could
._~ Jr:c all the COlllellts of the report that it ultimalely
...."': .l:'ld the minority repon was filed. \Vithout belaboring
. /,;,:. of Ihal lepOrl, Olll' Ihing that was velY clear is Ihat
.... l'~' many dedkatcd, hardworking people in this field
.,2 .~. \cry lillll' "!,rceIllCIlI on what is best for people who
. .. ,'ill IIll'lllal,ctardalioll. ARC and Ihis resohlliol1 rep.
.~' ~Il'\ ;Iilln~ \ il'\~ l1f Oil\,' of lhe segments of the people
,'!~'l' .Plll!lllllllly. \\'hal concerns me is that Ihe
. 'J :1',\' ll"l'llltillll. ;tlld II~ adoption by Ihe LeI;islaIUIl'
.,' .,!,d J '1!,'llilIIO I Ill' many people who do not agrce
. .,'ll..lll~i'-\Il~ ~t'l forth illlhis resolution, many who arc
:':;!l lI:l\l' Id;udl'd Illt'lI1hers in them and who live in
.~,:: ;h.n 1I111\r It'lalth'd mcmbers will be laken from
,',1,1 ,H',llIl'" lllt'it ',\ill in an environment they red
;I\"l' III IIU'JI l\l'~l inh'Ic51 and in some instancl's
C:,!:dl'II' 1'\11 thrill l/l which to live. The COmmilll.'C
,~l ,I";J!1I111Y lrnll\ J1l'tlple who had ramily members
..,':\ :I\ll,~' ;1I"IIl!,l'llll'nl~ where Ihey fell they well'
0\, 1'1111.'1 1'11\1'1'1 ~\Jpl'l\"i\ion or where lhey fell theil
,I ; \: I .:111 IItl! ,uCgl'sling in all inslances Ihal
.1 ~'I.\' Ii! 111l'1I tmn, What concerns me her!.' is
.,.L i' ''"II l,t 111\\ Il'sohllion I am arraid we all'
.~ ,I 1:':,tlllllhl1~I' p('oplc who feal Ihe imposition
\ .,,1"1:."1 "n Iht'1l p;lllklllar c",se and will increa~l.'
.. ','\ .~h ,hh h.l\l', ;lI1d rOI Ihat leasonI Ihink we arc:
. L.i I' "Il' Ib,lll \\l' hal~'ained for if this resolution is
I 'h',l h .Ullfplllll' Ihi~ lesolution WC, in fact, slalc
, i':~';:, pdhC\' \\ hll'h have not been detenllined 10 be
" ,
" '.:" \l'1 I h.1I 1\ 1t';\\On number one, I think it is a
".:,.... ':l'flllli.ll q;llulpoilll.
"
1327
SCl'ondly, Ilhink Ihi~ rcmhlliun, ir you will rCill! it, invades
.1IHllhl'l area Ilhin~ i\ \l'r)' scnsilive ill1d one Ihi.ltlhc 1.eGisla.
lUll' h;l\ always Hod \.CI)' rarefully Oil, al1l.llhal is the Plcroga.
live or local r,o\'c:rlllllelll ill louillS cases. The lesolution sug.
gcSls Ihal lOlling is Ihe dClTlon Ihat is preventing an orderly
de\'elopmcnl or el.A '5, I hal1(lel1l0 come flom a cOl1llllunity
Ih:1I has j] nUlllhl'r or CI.^ '5 alld they arc 1101 illlcmote plnces.
Tiley me in Ihe mid'iIlCalll, hUI they have been placed there
alld il has been wor~l'd out wilh loenl officinls who arc
s)'mpalhetic tn the prohlem hUI, also, arc responsible 10 Iheir
ohlil~alions undel Ihl' lo(alloning codes. For Ihe I.egislature
to pas!! II resohuioll Ihal .Icruses them of being e,\c1usionary,
or of some other lae~ of sensilivily on Ihis subjeet, Ilhink is
1101 ani)' an insllll to Iheir inlelligcnce and responsibility, but I
Ihin~ is also laking ,he I.egislalllre inlo an area Ihal has been
exclu'iivcly prolecti\,e 10 local governmenls. For Ihat rcason, I
think, again, till' pa'i'iaf'c of lhis resolution is going to send a
signalth;1I we do 1\(11 \\anl to \end to local officials who arc
trying to do Ihcir bl''il \\Ilh a \'Cr)' complex problem.
In ~hon, th~ "hnk field of mcntal retard.Hion is character.
ilCd by a 101 of dl'lJi(atl'd, hardworking people-zealous in
somc inslancl's-.III;lllY llf \\hom ha\'e difrerent opinions on
Ihc hL'sl wa)' to de.1I \\ ith Ihe complex problems in this field.
B)' the adoption or Ihi~ I"solution, we are laking sides in thai
hallie, and Ilhink wc ;ue going to ccrlainly creale a sense of
jo>, on Ihe pari of many people in this field, but Ilhink we are
also going to crcalc tI !lensc of lerror on the part of olhers, a
number of \\-'hom havc been in conlact with my office. tor
Ihat reason, I oppmt' Iht' ildoplion of this resolution.
S.nalor ROC~S. \Ir I'le,idenl, ISland 10 support Sen.te
Concurrent Ih'~('llu[i,11\ ~n. 42 and to thank its sponsor, the
gl'l1llclllan hum Ct.'!1lll'. Sl'nalor Corman, ror his patience
and diligclll'C ill 5l't.'11l!, Ihi\ Ihrough len days on the Calendar
and now had Ollli' 1 Ill' rl,l{ll and no\\' thank Ihe Senale ror its
~oll!lidl'l tlliOll,
I ;lIn ~ure "t' ,iI! ~ .:.'. ::..l:t~ a~'lh'ilies that we take on in our
I\llme di\llil'l\ ;llld ",.'; !Ill' ~'\'rnl11l1nitics. In the Cilv of Phil-
;ldc:ll1hia J ha\'L' Ihl' I !l,\'IJlC of scrving on the boa;d of the
A!lSOl'ialiull of Rl'I;I:,~~',l CililCIlS. Like Ihe genlleman from
BlId,~. Sl'nalOl 1I11"'..~~d, I h.1\c lIied 10 spend a pan of m\'
puhlic lift' kllllll1l' ,1.,d j":lIl~ ill\'olvcd with the issues of bOlil
IIll'lIlal hl'i1llh allt! II,," ,Ii ll'l;utlalion. For any of us who have
IIll1ll' 10 1I1llh'lq;!I,d ,', ,q!l', we all have a feel for the diffi.
lIllly of lh(' 1t"ll!:l: .,,, ;h.tl I' III r,ont of us. I feci a need to
IdHIl iI fl'\\' of dld'\ ,'o\':!1' Ihal were made by the gentleman
fWIll BIlCh, Sl'Il.ll," 11"'1 ;lId, and I do Ihis with greal respect
IOW;lftl hl"'I1"~llllln
I tll' litH II!llll ,II' '":\ filing threalening at all about this
Il'\ohllion. 1 Ihltl~.. II: ',ld, 101 ;1 Conutlonwealth where we
haVt' \l'l a Ihllh\ "",1,' ~l';jl\ aeo concerning institution-
ali/alioll anti, \1111 \' ", ,I' 1,1\\ Il\aker!! and policy makers in this
\lall' ha\t' "'l'l 111,11 \),,11. " \\ C ha\'l' all obligation now to rollow
lhlourh wilh 11 I h'linl' Ihl' i... till a number or fronlS.I Ihink
pI nhahly 011I .'II';III'! 1.1I1lJll' in the creation of that policy has
hnll dilCl:llll!, 0111, .'::!llllllll!il'.\ 10 lake full responsibility for
Illl'1l1ally ICltllth'd 1h'1~"Il~. and we have not put the dollars in
1328
LEGISLATIVE JOUHNA L-SE:'o:..\ TE
DEer:
the funding '1Ul,;llll hi fllllllw \\ hat h.n becn that redirection in
)0 IOllger ilhlillllltlll.lIl/lll~'_ pccsllm.
We: Ihl'll l'\l!Ill': h' lh~' I\'IIC of cOl1lmunit)' living arrange.
ments wludl lhi, Il'~ltltllH\i\ addressc.., It has been an inter.
esting one rill Illl' III till' FOllllh Scn;lIurial Uistrict. I have
some areaj III' 111\ \11,llhl III I'hiladclphia where CLA's have
been rC;HJjl~ ,IU:l'Ph\! .llld. in fa..:t, au.' in c,'(islcllce and arc
being \cr~ 'U~'':l'"flll I h;I\C olher arl'a\ of my own Senate
dislril:l \\lll'll. Ill; .\h..,....l.;r Ihe rc;t~nll--Iack of education
cCrlainl~ bCIIl~ i.lll~' ..I lilli'll.' CCi\SllIlS.--thc)' arc nol readily
accepled. In 1.1':[ . lhp .11': llppLl'icd.
1I0\\c\cr ;.lllfl~II:1 :1\1. 1I1.IY he, it i.. Ileac lime we face Ihe
issue at Ih\.' L'\d 1'1 l',l"l.'llIllll.'lIt I.\hcrl.' \\1.' b~gan the policy of
the instiItlIH11I.dlllll!' ,J! PI.'II p!t.'. This i\ it re\ohllion, We wc:lI
kno\\ in thl\ Ch.ln:l'~'r 1 h.11 il doe\ nO! (.Hry the full impal.:1 of
law. 1 b~lil.'\\.'1 \\Illtl~ ':'tlh.ll'lIlhi~ nOllr in \Upport oflhe full
impael (\1' 101'.\ llf ,l.llll!\.' III illlplelll":lll the same polk)'.
CLA's, COrllIllUlll[~ 11\ 11I~ t\rrangcllll'III~, must be accepled
in e\"er~ ~llllll\lilllil~ .111.1 lI~i~hhnrhood of Ihis slate if our
policy fLlr IIll'IlLlll:, r':l.lllkd 1'I.'\lPh.' i"I'Hr glling 10 be SIl":":C5\"
rul.
I can mah' iI \~l ~ qllh:~ analogy 10 anolher isslIe, one (hall
ha..'c had a lot of in\llhl.'III~lIt wilh, anu thai is mass transpor-
tation, I find in Iii..: Cily llf Philildl'lphia Ih.1t c'w'erybody wants
mass transportalioll ;'l:r\'il.'e; jusl pll'.l\", do nol pUI that bus
on my street. It is fHc.'IlY alllaling and difficult 10 deal with the
public mel1lality when il comcs 10 Ihese isslles where we are
charged as represenratives and leaders to. in raet, lead, Ilhink
we would do Ihat with the passage of Senale Concurrent Res-
olution No, 42, I would hope we supporl it here lodaYI and I
would hope wilh respect 10 those who feel as if we are impos-
ing somelhing on a IOl.'alullit of gmernlllenl, we understand,
as thosc pers\)ns \\h0 I."t.'ale:d Ih~ policy 10 begin with, that
mentally rel:udcd pt.'l ,Olh "r~ going 10 he bell~r cared for at
home in Ollr cOllllllllnitic" Ihal they ale: going to b~ cared for
in CLA's :IIHI in lhl' hud of hlHhil1!! ;lrr,lllgelll~nls Ihat Ihis
resolution simply ,t,(;lIC:-. .Il~ going III h~ provilkd acro,;!;; this
Commonwealth ill all of our cOlI\lIlullilil.'s :\Ild in all of our
neighborhoods,
Mr, President. I thal1~ you, I diU not intend 10 speak on
this. I would hope the support is here for Senat" Concurrent
Resolulion No. 41.
Senator BEI.I.. Mr. I'rcsidelll, I ~110W this resolution is not
mandator)'. I know it is lItll worded a.. "mandalory" but.
unfortunately, SOIllC pl.'orlc l."allllOI II.'ad. This resolulion can
be reeeh'cd, perhaps, in sevl'ral way':> hy local folks, I want 10
make it vcry c1car that I rom... ftom a bOlough Ihal does have
neighborhood cOlllmunilY livil\~. Aholll a hlod; from where I
live is a halfway hOllsc and Pl.'oplt' ;111.' lhing there. In fact,
they ha\'e been dlling a \cry }!ond Joh. ;lIHllhe: folks in my
community favor Ihis hnlllc, BUI. a\ Ihc gl.'lIllcman frolll
Ducks, Senator lIoward, saitl, lhi~ \hould hc dOll~ al (he 10c:lI
levcl. It should hc dune hy thmc ,,!Ill (.IHH cOlllll\lInilY living,
going in anll cdul"atil1~ Ihe lll'ighhOlhnod, Ihitl Ihi\ i\ some-
thing good for Ihc neighbnrlll1lltl. \Vhal will hl' II.'sulling from
this resohlliun is a fl'dillg 10l';111~' Ih.ll hig brother in
.;
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Ilarrisbulg i\ Idllll:' 10,.';11 c11.'I,:ted offici"" Wh:ll
thcir localllei!!hl''''!j'''ltl \'l'ry frankl)', thi" willi
mcntal hl';llth rW':I;.,! 1..'I;lId.lliI1n IlIU\'CIlICllt, I:
cOlllt1lunit~' li\ \th' t,,: ,lhll HI tllllcr field", h~' a lh
in Ililllhbul~, '...il I, kdul pllhlil' nffidalr, in a
a borough III .111.:1 ,Ii\ \\11.11 ththC elt.'l.:h:d pul
should till Itl \'1'1I1r .: ';1;.'1\1'1.' of /11l1ing I Ill')' hilvc
thai is Hllal Ik\ ':: l.tH ir1l-' abolll, lllUiuf--1 tl
going 10 'l'l' it ".! ~ ",1'\ r~'a':lillll. I thillk you
crcate Il(hlilil~ "\!'. l' pll"~'IlIl) we: do havc ":01\'
mesr,a!!I.' h 1111' I d,' :,.I!.;HL'lhIW you \I.old this
is going 10 hl' r(.'~'.l' .~,.! h~ th.' 101.";11 d~t.'ll'd off
beliCH' Ihl.' P"l'I"i. i11l11~' lIIajolit)' of l'Il.\:t~d
Pcnn\yhaniit ,If': ".' :'(.'1-:111, t.:apahle, dL'dkalctl
Ihey do 11\11 ~ll1l\\,\;',1I i, ~,111d fll! Iheil COrlllW
up hcre do \'l'..:.IIl, '\l' .HI.' qt!ll.'r pl.'ople. l.e:tl1\l'
thai if ":011\11I111111, ,I'oIl1~ fil\.t1itic~ sian hlt.l.:~bl
not be a vcry pk,I'II: .Iilk ,illlali\IIl,
Sen:llOf ('(H{'.I \\: \Ir. I'rl...idellt. thi,
always re:I.'1l ,I ,l~ ; \ 1"1I~' III mal1Y of Ih~' co
home as il Ok,I"l: I' h....[l. III Iii..: Sl.'nale :\ yc.
we had kgillall~lll .J~ I hI.' S":llille: Ihal \\ollld ha'
Ihe genllelllafl frll'lI 1>l.'Ia\\.HL'. Senalor Bdl,
that is we: wlluld h.ne p:ll\e:d a law thai \\'ould h;-
thai local gO\~'rlllll':1\1 {11tl\iJe: in each CtJl1ll1lUI
nity Ii\'ing arrangt.'IlIe:IlI"i, This docs 1101 do
against th:l1 pil...,:,. of lcgislation IWo years II
believe, as the: gl'l1llt'rnan from Dcla\\are, Sen.
Slated, we arc not a slIpe:r group who knows bel
community IIlllSI do, but I think there arc ccrt
should bc slIggclling to each t.'ol11l11l1nilY that
should consiJcr, ,.\, it says in Ihe lalil par ;tgraph
tion, "Rcsol....ed. lhal alll1Hlnidpalitic~ thr~"lllgh
monwealth ;'Ire: lIf:.!L'd"_uthl"Y :lrl' nol lold. the~
"to rcview Ihdr 1(lllil1~ OIdil\i1l1~":s tp ;1\"11111.' II
tale thc :lchil.'\~I'I~'1I1 \If Ih;~ pilli\'y."
When I \011,'(\ .1~;lillq Ihl.' la\\ th;tl WPllld ,-
mllnicipalit~ Ih~'~ IIltl'll <Iuthi\ st.'\'l'lill y..:af' a~w
.....ith several of Ill:: liming hnard':> and planllin
of several of illY \'j\tlnti":l and lllunicip;llitie:f, ;111\
the best way we: ..:an try 10 pro\'idl' for t.'llll
arrangemcnls "ilhin our l11unicipalitll'\, bl.t.';;l\l
arc importanl, I lhink Ihcy havc a plOp~'r pia
gested to l1\e \\'h"l wc 11Iohahly oughl In lill i\
urge each l1luni":lp;lliIY 10 let."on,idef. 10 dl\(Il\
try 10 reml\'t.' it so Ihelc ilj :1 plalL' ill l';ldl llUI'
properly run, plope:r1y COli II 011..'(\ t.'llllJlllllnllY
men!. 501 MI, Ple\ident, I inllotllllTd, \\1111
many of my -wlk;lgllCc;, SCn:lll' COil": III r l'nl I
42, It docs 1l0llry In slIpclimpn\c 11ll' ..1;111.' tllll'
ity, II urgec; Ihl'l\l hl t.'()ll\ilk. in thl'lr IOlJl1I~' ;1
munity living .1II;;lllgl'Il1I.'IlI:-. in eadl of I ill'lI 111111
Senator RIIO,\DES. ~1I. Prt.'silll'lIl. I \\IHlld
a quote frorn SOlllconc who i\ Illu..:h rll.';lll.'l
greater than :\11 of us tngl'(llrr. "\\'hill nlll lIll
my brothers, )'011 do tn I1ll'... Simply pili III
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LEGISLA TIVE JOUnNAL-SENA TE
1329
l';;~
rC we no\\' saying 10 the dcvclopmclltOllly disabled,
('~..\n. ;1 11\' rt:t:Hlkd. the mClllall)' ill. the ph)'l'lically handi.
(."1113 .
f'. .' Ihe clderl)' :lI11lthc childrl'll who need cOIllIIHlnit)' res-
,....oJ. 'I' , I ' ?
.t, >Jl ~urrnll1l(hngs. I lcre IS 110 room 1111 Ie 11111.
.1~' r SINGEl.. Mr. Prcliidcnl, I had intended 10 speak at
.....,Jh' .
'>0;.'. ,'0 1111: isslIe. but I belie\'e the subjccl has been lIIore
,"I I "I\latelY co\'ered. I would like 10 :I!lsol'iate ll1)'sl'Ir par.
. J..~
..... .'\ ,dlh the fl.'marks of the gentlcmitn from Schurlkill,
1'" ~ '~ ~hoades, I ask for an afnrm3ti\'e \,ole on this resolll"
,--:.1-"
I""
LEGISLATIVE LEAVE
'1' LINCOLN. Mr. PresideIH, I reque!<ot a tl'JUl1nrary
~...P
. .llo\e for Scnator Musto.
I::~- PRESIDENT pro tempore. Senator Lincoln 'cque~ts a
, ,'J(\' C<1I1ilolleavc for Senator Musto. The Chair hcars
I-r....'. ,
... ~.tilln. That leave will be granted.
.,-" ..
,.; :h~' qucHion recurring,
1. ': :hc Senate t1~ree to the motion?
..... r,lOlion was ..greed to and the resolution was adoptl'd,
..~::(J. That the Secretary of Ihe SelliJte prcselltlhe !'>:lmc
'': Ih"use of Representatives for conCUrrCI\l.:C,
51.:\ATE CONCUIUlENT IlESOLl1TION
NO, 101, CALLEIl UI'
\<.".J:N STAUFFER, without objcction, called up frolll
u.(' . or the Calendar, Scnale Coneurrenl Hcsolutiun Nn.
lit c:::lllcd:
, ~'~':'l.:urtcnt Resolution requesting the Feder;11 Go\'ernment
:....~:_'f1 3 solution to the national liquor price arrirmalion
'.,-: qucHion,
\ ::,e Senale adopt the resolution?
5EN..\ TE CONCURRENT RESClI.1JlION
NO. 101, ADOPTED
;',-r ST:\UFFER. Mr. President, 1111<1\\' :h;t1thl' IUl,:h
;-: Sc:nale Concurrent Resolulion No, 101.
.~ question.
'~...: Sc:natc agree to the motion?
,,'~ 1\1:I.LEY. Mr. President,l dc!>il': 11l11lit'I111.1';illl!lI'
.;:1 iro01 Dauphin, Senator SIHIIIl"~~'1
I'RESIDENT pro tempore. \Vi1Ilh~' !'t:l1km.lll lll'lll !
"., S~'nittor Shumaker, permit him,!.'ll In he illll'l
, ~:'
. ,','I ~HUMAKER, I will, Mr. I',esidllll.
.'"4','1 "EI.I.EY. Mr. Presidenl, readinr \l\'l'llhl'l'lollll'lll~
. ~:-: (t,.\llCurrent Resolution No. 1ll1. I \\lllldCI II Ih..
'..:11 l"Ould explain the reasons ;lIltl \1 hal bl'nd II 1111'
. ~: ,-f Ih~ Cummonwealth would den'... 11 Ila' '('1l1l11111l1~
:~\('ll1lion were successful and COIl!'ll..." 'llu'\-,',!ilil' III
;' ,:1r lhe price arnrmation policy?
...!.:l! SIIUMAKER. Mr. Pre\ident, \1I1l"~' \ll' lllllptlu
':,' IWI have jurisdiction over the l'q<lhli\IIIIIl'1l1 III Ihl'
'.' 1':HwiHion. the result would bc. if \\~. could 1111'\' ( .111
:'. :alr action, which would enable 1I1~'IHII('ha\1I11' IIY lilt
pl.cn 10 l>e based upon the quantity purchased, which is the
l;lrce.~t single quantit)', as I uIHlerSlilnd, of alcoholic hevcm~es
)Huclla'icd inlhe United Slates hy Olle buyer, we would he ahle
to nhtain a heller luice by l>uying large ')uautilie!!. in bulk
which is pre\'ented hec;H1~c uf the afnrnwtion policy eSlab.
li~hed on a Ilationalle\'cl.
Sl'nalor KEI.I.EY. Mr. Presidcnt, do I cunclude accurmcl)'
rlOI11 Ihe gClltleman's remarks that the Comll1onwealth by
buying in greater volume would l>e ahle to pay Icss unit price?
Doe~ the gentlel1H1n expect. lherdorc, that the price reduction
would be passed onlo Ihe consumers of Pennsylvania?
Sl'na'o' SIIUMAKER, Mr. I're,idenl, I would cCrlainl)'
hopc ~o l>ecause lhat is one of the marketing tools that thc)'
,hould be provided wilh 10 he co",pelitive.
Swalo, KELLEY, Mr. I'residenl, docs Ihe genlle",an
heliel'e Ih.1 if Ihe prices were reduced 10 Ihe people of Ihe
COlllmonwealth, there would be greater sales ami grcflter con.
\\Ill1plion or the OIlcoholic bc\"Crages in the COlIIlJltJl1wcalth or
Ill'nmyh'anhl?
ScnalOr SHUMAKER. Mr. President. sinl.:e Ihe gentleman
i\ ~ind or asking a rhetorical question, I think till' al1swcr i\
th~'re "il1 probably be more compctitive salcs in this Com"
lIlol1\\'l'alth and wc would prol>ably ha\'e belief markcling
Plocedures and pcople would have an opportunity 10 pur.
chasc, as they say, their fincr quality producls at a bettcr
price.
Sen.lor KELLEY. Mr. President, do I eonclode f,om Ihi,
Ihallhe genlleman is asselling Ihallhe passage of Ihis resqln.
tian urges Ihe Congrcss to do and act 10 correct the arrirma.
tion price policies. that there would be resulting to the con.
~ulllers in Pennsyl\'ania an advantage that is identifiable \\ ilh
thc hc~' enlerprise system?
Sen,uor SHUMAKER, Mr. Presidenl, Ilhink an)'lhing ,hal
(all he idel1lifiable as acting in a free enterpri~C' malllll'r would
l'c nllC', This would give the PLeD a markl'ting capahllll~
'.\ Ilidllhey do not have now within a COllHOIIl'd 'Y\I('IIl.
S~'n:llor KEI.LEY, I thank the gentleman, \11. !'rl"I.klll
Ilhlll~ it shows his authorization and SllPP\lll ur thi!'> Il'"l.
!Inion as \leing a major step of not just a compromise bUI ;1
1ll;1)I'r ~tC'p on his part 10 move on to Ihe free l'11l~'rpri\r ,y<.tl'1II
\11' ';Il~' Jill! di'olribution.
..\nd the question rCl.:urring,
\\'llIllIe Senalc agrec 10 the motion?
1111' motion \\'as agreed to and lhe rcsolutillll \\a.. adopl~'d
OHlcrcd, Thai Ihe Secretary of Ihe Senale pr~'''cnl llll' ,;t1:;~'
III I Ill' Ilomc or Representatives for concurrl'II(C,
~t:\AT," IlL~OI.UTlON NO. 10J, C\I.I.F1l 1'1'
'-'1'1\:\101 STAUFFER. without objection, (;llkd up ""Ill
Il;l!'l' 7 ur th~ Calendar, Senalt' Resolution Nu. InJ, (,Illilkd
.\ Ih'\nlutian amending Senate Resolution No. n, ad,)ph',l
\;'111 ~-l. 198~, cnlitled "A resolution direclinr lilt' CnIl1l1l1l1l'I' ,'n
\ldll:llY ,Illd VelCfiH\S Affairs to study the prollll'lm of jlK.U.l'I
:lll'll \1'1l'lam," extending Ihe period for thc mil1~ of lhl' Ulllllllll
li"l"\a!lorl.
.
.. I S 1 0 . 1
II
. I 5 u L 0 'I
--
)
suh1 10. l8 111 s.utora rJstlU. UIlPULLl, LueoL'.
IO!UULLl, sUPLua., 1I1Lt, pr:uI5(a, 511UlU,
ULrIlCl, SCULO', co"'''. PlCOI' U" :'1.lttL.
"Ilat~r' I '0. 'J"d.
, ...olutiol ",0Ii.1il1a~ eOa~I'~s tu ~DCO~t.~@
eoqlll.u,t1011 "cU'lli.s bl ~..s dilll, t.ol'I"'J ce"'''Dl
,,It... rlgi.tered ..dlr t~a Public Dtll\tl ~oldia~
COIPUI let 01 1<J15.
Is tll. Sluh
..r.rred to CO.5Ulr:1 PIOtICtlo. 1'0 Plorr:SSlC'IL
LICE.SUlt. "., 1, 1915
I.portld loa cO'littld, Juo~ 19. I~d~
Adopted. JUQl 2!., 19U
Snh1 '0. J9 I, SuHor nOLL.
'ri.DtIC'S 10. <JfI'J.
& COllcurrellt I..olatiol '1IOll..ltl"~ lbl Co.eClel
to proehl' Ue weak of JUIII 2) tllrol911 Juu JO, 1'J8!l.
a. -'lIt1911 lute.obil. I.e'- 11 PVIlls,I'.lla.
III UI SID..tl
.Iferrvd to IDLES A'O tlleDII'. 101l1.1110.S.
a., 1. 19U!.
lepoctll4 ..s couitted. 1Ia, 6. 1985
Adopted. II', B. nB5
Is till Bo~u
I.hcnd to lULU, n" 1\, 1'985
Ilport.d I., cOI.itted, JDIII J, '<JUS
&dopied. Juao 5. '985 1190-01
III tbe Seute
feas.n1ned .s diucted. Jau U. 1985
.
Serial 110. '0 !I, S...tor. LOEP", IHOaDLS. t.EftPIILLI,
SCULOI. llSlIlI. Snu.tOu. BOOU. UeaH. BILL.
BELrIlCI. O'COII!LL. SIICB1!IILL. JDULlI!I. BESS.
SODlCI. stOUt, 'ELLEr aDd LI.ell.
'lUhC'S 'e. 96J.
l '(!sol~lioD C"CO'JIli&1alJ lIa, IS. 1985. I.. Police
Olfice,s' aelert..l D., ..lid C~C09Dili1l9 tbe _.ek 01 aa,
'2. 198~. as Pol1cw officur" a.loc..1 tlUlt.
III lbe SlIlat.
lalcoduced .IlJ adepted, 8', 1. 1~8S
TUlluilh'.1 .s thlt!Clcd, .IIal <J. n8~
Subl 10. " S, s...tO[S lOCkS, lOSS. SIUUU.
KELll1CI, iOlSlIIELL1, JOlltLJUI. 11&11115. O'PUI.
SHUllllt.. 'ECO" ..d nIDIC'I.
'clat.c'. 10. <Jll.
I iel'lolutloa rll!co<jlli'lh<j tll. _'Ik of hI 6. 1'J8~.
... .Cel'~II!t, Col1"9' Ve.k.-
III tbo Slute
llllCoJucf'J ud adoptud. a., 8. 1985
(I...na st...., S...,. JOllu.1 "9' !l'8I, a., 8. 1'J8!.
SIItTa
ll'S
I.
1.1
S I . " t 1
::'llr,.1 10. 14J III SeOltlJllo CtIlB. HLII&IlS. .O"UULI.
s"rllr, :'1 "'011. IE"II, SaU!lll~, Ilia,.,..
IIlLPIICI, 'JDUllSIl, UI1UI uJ ut.h.".
Illal,t'l '0. 'Ih.
A eOlll:UCuot '~loel~lllJD lullullb" r~ll.c Icllq
allll U1'.llD'J IUIIlUI.IUal'lo le UUII 1~(1t 1011I119
utlll'"C. r..,udLOfJ 91ou" 1..11'.1 "rr..a......llt, 101
cUII..i. C!tI1~n!.
In tbe :IU'.
..tlued to PUIlLlC. IIULU lit ~IL"U, ur f1, nB~
hpoctf.d .. ce"lU,d, Ocl. " Illll~
L.ld u U,c hU,. Ie,. 11. 1'iS!.
'..o"d hoe t..th. '0.. 18, l'td~
'do," lid. Dee. l, 1'ill~
elt..,,;:> .uu S@ut~ Joul..l "1" 114bl.
O.c. J. I'll!.
III tbe tlau..
..tuu",J lQ lULlS. ttc. Ci. I'H~
h:polted u. CCI.ittid, .1.1. 41, lUb
ldo,l.d, Ju. H. nUb 11U.01
S.ri... 'e. "l B) Seutou nOHIS, blltidO. Stiaall".
11ItOL_. C'pall. StOUI. S11PLll~.. f~!C. ~~~a.llll.
SHeEL. PHUIl. 100S. ",UliSIII .aiJ ..l1n".
rr1DlQt'~ Ie. sse.
I ..~olu'io' AUlfCltiog celltllc~d tUDdio~ ot tb'
'ede,.l Cloer. I l.ltDUe SIl.eill~ fte~r....
I. ne SeD.l.
I"~lred to LCCAL COVI'.nalt. I.., e. '~8S
'Ipolted .~ cOI.'tled, JUOI lB. l'l!l
liJopttd, JWOIf 1\. 1985 1'6-;j
fC'Q~.lttld '$ 4arecttd, JUII. 16. 1S8~
-------------.---.----------- .---------.-.
Sect..1 .0. " !, 5'0.t015 rIS!I., S1aPLllCI. aQ510.
COlell. SlluaUII. UDUUSU ud 1l1ll811.
'ei.llt<<c's 10. ,'J4'
A Coac~lC"Qt ittlOlutlOD CllJUUID'l .. stud) oJ It.'
t~'5ibllat, el 'IICI,.tID9 ta. C~.t'l .cd t'f' of
fri...tf ceDCt~sioos lot Sl..t. l..rks ..od .. S~lleJ to
dt!teuiD' tbe 11.....1 101 hpCC1.lIlIts lo lb. Sl.t( '411
$)lillll!!'.
Jill the Sl'llUt
i'l~lt~d tu 1.'lie.nE'laL .lSOaiCIS liD l.II,I.
~UI Ill. l'lt!')
--.-.-.----------------------.-------.----------------
Suul '0. 11'.1 E) S"'UIOt~ 1I1C1I. IcellS. 51LH1C;;U. .
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90
1
2
3 IN RE:
4
5
6
7
8
9
10
11
12
13
14
15
16
17
MIDDLESEX TOWNSHIP
ZONING HEARING BOARD
CARLISLE, PENNSYLVANIA
Appeal of Cumberland Perry Association for
Retarded Citizens
TRANSCRIPT OF PROCEEDINGS
VOLUME II (pgs 90-145)
Before:
KELLY NEIDERER, Chairperson
JOAN PATTISON, Member
CURTIS BARNETT, Member
RICHARD BOYER, Member
JAY LAYMAN, Member
DALE MCLANE, Alternate
MARK CARPENTER, Zoning Officer
EDWARD W. HARKER, Board Solicitor
KEITH O. BRENNEMAN, Township Solicitor
Date:
March 12, 1997, 7:00 p.m.
Place:
350 North Middlesex Road
Carlisle, Pennsylvania
ORIGINAL
18
19
20 APPEARANCES:
21 ANDREWS & JOHNSON
BY: TAYLOR P. ANDREWS, ESQUIRE
22 FOR - APPLICANT
23
24
Amy R. Moore, R.P.R.
Court Reporter-Notary Public
25
C,P.C.R.S
(717) 258-3657 or (800) 863-3657
92
M
1
also suggest that since we are relying on CPARC's
2 testimony that they aren't going to make any changes to
3 the property outside but they would change it inside, as I
4 recall, you might want to add another condition to that
5 that that would remain the case in the future if it were
6 to be transferred.
7 Other than that, you know, I have a decision
8 drafted, but I haven't -- it's not finished because of
9 that particular issue. So that was the last condition.
10 Conditions I have so far is that the special
11 exception would be granted for a group home, a
12 professionally supervised housekeeping unit, for not more
....
13
than three retarded citizens at anyone time subject to
14 condition of on-site parking spaces for residents, staff
15 and visitors, maintained and established in accordance
16 with the ordinance; the number of live-in residents not to
17 exceed three retarded citizens at anyone time, in
18 addition to trained staff which shall be on-site at all
19 times; the applicant and any future operator shall be
20 licensed by the Commonwealth, includes certification and
21 so on, and that this decision doesn't in any way alter or
22 modify any of the other regulations,
23 The last condition was on the question of
24 assignment, As a practical matter, when you decide that
.
25
something is not harmful, you're really doing so on the
C,P,C,R.S
(717) 258-3657 or (800) 863-3657
93
PI.\
1
basis of what the people who are here testified to.
2 You're installing a certain degree of faith and trust in
3 them as opposed to any other third party who isn't here.
4 So saying you can't assign it is a shortcut to ensure that
5 you can rely on them. But if you can't rely on them
6 exclusively, then you might have to say, well, we need to
7 put a condition in there that future operators will be
8 licensed.
9 A lot was said about how they're not changing
10 the outside; it's going to remain single family character.
11 You might want to see to the future. I have no question
12 CPARC has that intention. But if they do assign it, we
...
13
don't know what that person might think since they weren't
14 here and it's not in the decisionr they don't know that.
15 It's up to you. If you want to withdraw the one
16 condition, I'd like to suggest a motion that that
17 condition be withdrawn.
18
MR. BOYER: Before moving that, I'd like to say
19 that my somewhat-defective-at-times memory thinks that
20 your memory is just about perfect on this matter and that
21 you properly characterized the intentions.
22
MR, HARKER: I wouldn't say that. I mean, I
23 have a lot of flaws, but infallibility isn't one of them.
24
MR, BOYER: I said on this matter.
.
25
In that, I believe the sense of the Board, had
C.P.C.R.S
(717) 258-3657 or (800) 863-3657
94
,
I
~
!.
j
--)
I
,I
~
1
there been a stenographic record, it would have been
2
clearly noted that the sense of the Board was that we were
3
relying entirely upon the testimony given by CPARC, both
4
historically in reference to the other properties that
5
they operate and in what they propose for this one. And
6 certainly what you suggested will be satisfactory to me as
7 a collective indication of intent that we were relying on
...
13
accommodations and the condition, the conditions for the
8 their agreement to the conditions to which they presented
9 as being their operating parameters to the other
10 scriptures which they found acceptable and above all to
11 the purpose for which they wish to operate the group home.
12 And that would include the number of people and their
14 people that they were gathering together, that they were
15 retarded persons and this was the reason for their wanting
16 to establish a group home embedded in the community.
17 So it all looks the same, as far as I'm
18 concerned. And the additional restriction on the change
19 in external or being bound to not change the external
20 appearance of the property is, again, a representation of
21 the applicant, and to that extent, I believe would be a
22 reasonable condition, Thank you for the suggestion.
23 MR. LAYMAN: I think that summarizes very well,
24 Dick. I had some problems initially with the idea of
..
25
nontransferability, so this satisfies my concerns, and I
C.P.C,R.S
(717) 258-3657 or (800) 863-3657
95
~
1
would so be prepared to offer a motion.
2
MS. NEIDERER: Any other concerns, or would you
3 be willing to entertain a motion at this time?
4 I'd be willing to vote on a motion if someone
5 wants to put one forth summarizing it accurately.
6
MR. LAYMAN: Well, is that number 7 he had as a
7 condition? I think so.
8 I'll make a motion to withdraw the condition as
9 proposed at the last meeting regarding nonassignability
10 and substitute in its place a condition that the outside
11 conditions of the premises shall remain in their present
12 state as -- let me rephrase it,
.
13
That the general character of the outside
14 premises shall remain substantially the same and that the
15 intent of the use is to maintain it as a single family
16 type dwelling.
17 Is that stated with what you were recommending,
18 Ed?
19
MR. HARKER: I think that's what the
20 applicant's witness said was their intent.
21
MR. LAYMAN: Was there something else in your
22 recommendation that we need to add?
23
MR. HARKER: No.
24
MR. BOYER: I'd like to add language that the
.
25
special exception shall remain valid for so long as the
C,P.C.R.S
(717) 258-3657 or (800) 863-3657
96
,
~
1
property is operated for the same purposes under the Bame
2
general conditions and under all restrictions imposed by
,
f
3 this board at the grant of the special exception, which
4 would permit them to transfer, rename or what have you as
6
MR. LAYMAN: I thought we were going to say the
,
"
I
i
5
long as they
7 license--
8
MR. BOYER: And appropriately licensed, yes.
9 The front is licensed for the same purposes and under the
10 same conditions,
1 1
MR, LAYMAN: That they have to obtain/maintain
12 a license,
.
13
Maybe you can read that one back to us, Ed.
1 4
MR. HARKER: Well, I will write that into a
15 draft decision that I circulate around for you,
16
MR, LAYMAN: Fine,
17
MR. BOYER: In that case, I guess J can't
18 second that.
19
MR. BARNETT: I'll second the motion,
20
MS. NEIDERER: Curt seconded the motion,
21
We'll take a vote, All In favor of the motion
22 as it stands?
23 (Chorus of ayes.)
24
MS. NEIDERER: All opposed?
.
25
(No response.)
C,P,C,H,9
(717) 250-3657 or (000) Ob3-3657
97
~
1
MR. HARKER: The matter was continued in
2 consideration of the grant of the special exception due to
3 the late hour. The matter was continued with Mr. Andrews
4 agreeing to that and members of the Board accepting it,
5 reserving the right to have legal argument on the matter,
6 as I recall. And Mr. Andrews is present. He's already
7 provided a brief. I know that some of you -- you've had
8 that brief since the last meeting. I'm sure you've read
9 it.
10 We received a brief from Mr. Brenneman this
11 evening. And I would suggest now that we hear from Mr.
12 Andrews with respect to the argument that the zoning
~
13
officer committed an error and therefore should be
14 reversed.
15
MR. ANDREWS: Can I just seek some
16 clarification before I proceed to that?
17 As I think is recognized, we're really here for
18 two different purposes, and you've just acted -- tnere was
19 a motion just made on the special exception question. And
20 Mr. Harker just made some reference to their having been a
21 continuance. It was my understanding that the record had
22 been closed on that portion of this appeal last month.
23 And the reason I seek the clarification is it has to do
24 with when CPARC can expect a written decision because they
.
25
have to do their planning as to funding, equipping,
C,P.C,R,S
(717) 258-3657 or (800) 863-3657
911
p,
1
getting people on-line, making plans to occupy and so
2 forth,
3
MR. HARKER: I have a decision already drafted,
4 Taylor, so that is within a week.
5
MR. HARKER: It's not going to be 45 days from
6 today, is what I want to make sure of,
7
MR. HARKER: No, on the special exception part,
8 Now, on the other part of it, we would want 45 days on
10
MR. ANDREWS: I'm not going to repeat either my
9 that depending,..
11 logical argument or my legal argument, I've put it in
12 writing. I've distributed it to the 1I0ard. I do trust my
...
13
authorities. This process has been a difficult process.
14 It's been a difficult process for the crARC
15 representatives, I can assure you, their staff, board
16 members. It's a membership nonprofit corporation, so
17 there are members of that organization that have all
18 been -- many representing each entity havo been in
19 attendance, and they are caring and compassionate people
20 who advocate for the mentally retarded, and that's their
21 mission,
22 Many of the members of the organization are
23 parents of mentally retarded individuals, and I just want
24 to convey to you these individuals value their clients,
.
25
their residents, as people of very real worth who they
c,r,C,R,S
(717) 25B-3657 or (BOO) 863-3657
101
~
1
that has spawned its own nonprofit group. It has built a
2 residence for either six or eight retarded citizens. And
3 they talked about the waiting list to get into this
4 residence. It's a waiting list that those that are
5 involved in providing these services are quite familiar
6 with. Caretaking family members are typically outlived.
7 They're survived by their children who need to be cared
8 for, and they certainly don't like the notion that they're
9 only going to be cared for in the least attractive
10 portions of the municipality. That was the explicit
11 purpose of the federal law as is described by Judge Levin
12 in the Millcreek decision, which I quote at length in the
~
13
brief that I gave you, where he talks about the
14 legislative history of that federal legislation.
15 I indicated this before I was challenged at one
16 time at one of these meetings. Whether I said it, whether
17 I haven't said it, but CPARC had a quandary in this case.
18 I believe, it's my contentions, unproven at this point,
19 they could have just moved into this building and started
20 this program, And if you'd have taken steps to stop them,
21 they could have gotten an injunction from Federal Court,
22 and I think that would have been consistent with the
23 authorities that we even submitted.
24 At the same time, actions such as that by
.
25
CPARC, I suggest, would have been regarded as hostility by
C,P.C.R,S
(717) 258-3657 or (800) 863-3657
103
~
1
to discriminate against those that are handicapped. That
2 is precisely the effect of your ordinance. The township
3 solicitor has indicated in his brief, well, it really
4 doesn't becauser of course, there could be licensed group
5 homes that are not for the handicapped. Maybe we do.
6 It's not in the record what there might be or what there
7 might not be, but I suggest to you that in this instance
8 it's the license, it's the handicap that requires the
9 license, and it's the license that triggers this
10 definition.
11 I suggest to you that the federal law requires
12 you to make reasonable accommodations in the
.....
13
administration and the interpretation of your ordinance,
14 and I suggest to you that I have submitted in my
15 interpretation, my proposed interpretation, just such a
16 reasonable accommodation and interpretation consistent
17 with other state authorities that don't even rely on the
18 federal act.
19 Your definition of family includes four or less
20 unrelated people living in a single housekeeping unit.
21 Nobody disputes that that's the case here. These are
22 four -- three, there will be three. It's four or less in
23 your ordinance is a family, In this instance, there will
24 be three unrelated residents maintaining a single
.
25
housekeeping unit.
C.P,C,R,S
(717) 258-3657 or (800) 863-3657
105
F',,\
1
that you cannot do it. That's really my argument. My
2 legal argument and logical argument is in the written
3 materials that I submitted.
4
MS. NEIDERER: Mr. Brenneman?
5
MR. BRENNEMAN: Thank you. Before I address
6 what Mr. Andrews has said, I want to make sure that the
7 Board is clear. The township, of course, is not opposed
8 to the request for special exception. The township's
9 brief to you this evening is very narrow, and that is to
10 support the zoning officer's interpretation of the
11 ordinance that has, in effect, put CPARC before you in
12 requesting a special exception,
....
13
Mr. Andrews is absolutely correct. He could
14 have done this a different way that would never have
15 included you in this process. But he chose not to. CPARC
16 chose not to, and I think he did it in a way that makes it
17 open, makes it open to discussion, and really places the
18 matter in front of you as a body that makes these types of
19 decisions.
20
The township's position is very simple, Mr.
21 Andrews takes the position that if there are four or less
22 unrelated individuals, it is a family under the definition
23 of the zoning ordinance and it is a permitted use as a
24 right as a single family dwelling in this district, The
.
25
problem with that interpretation is there is a specific
C,P.C.R.S
(717) 258-3657 or (800) 863-3657
107
~
1
use, whether it was lodging, multiple dwellings, something
2 like that, took what the group wanted outside the
3 definition of the family. And the Court, I think in every
4 case, said, no, it didn't; this is a family use or a
5 family, constitutes a family. But, again, they didn't
6 have to grapple with the definition of group home.
7 The township's ordinance defines a group home,
8 and it has a special provision under Section 14 that deals
9 with the conditions that must exist for a group home to
10 exist in the township, Nowhere does the township
11 ordinance state that you cannot have a group home in any
12 particular district. Nowhere does it say you can only
...
13
have it in one district. The fact is you can have a group
14 home in any district but it must be done by special
15 exception.
16 Special exception is a process that allows you
17 to impose conditions as if someone wanted to come in here,
18 put a hospital in a certain location, put a garden supply
19 store in a certain location, Those are the types of uses
20 that are permitted by special exception, and it's no more
21 onerous for those people that want to use those types of
22 businesses or have those businesses in different districts
23 of the township to come before you.
24 It may have been an unpleasant process for
.
25
CPARC, and that's unfortunate. But you've been sitting on
C,P.C,R,S
(717) 258-3657 or (800) 863-3657
~
this board long enough to know that not all of these
1
2 applications, whether it's CPARC or someone else, are
3 pleasant; they are not. People oppose the process.
4 People oppose requests. That is exactly why the township
5 has to give notice to the public. Property has to be
6 posted so people know that something is happening and they
7 can come and they can voice their opinion. It's a
8 democratic process.
9 The unusual thing is in this case, the township
10 is being faulted because of their system of requiring the
11 procedure of having a special exception in front of this
12 zoning hearing board for this type of use. A group home,
.
by definition in the ordinance, is facially neutral. It
13
14 doesn't say that anyone with a handicap that wants this
15 type of use must come before you. It says a group home
16 that is licensed by the state or federal government
17 meeting other conditions must come before you,
18 The federal government licenses this type of
19 use. They are intruding, I think is the way CPARC may
20 interpret it; they're adding a level of government to what
21 they have to do. And that's the federal government doing
22 that or the state government doing that, but we're not
23 dealing with that here. We're dealing with CPARC's
24 objection to them having to come before you at the local
.
25
government level.
C,P,C.R.S
(717) 258-3657 or (800) 863-3657
108
~
We don't believe that this in any way
1
2 discriminates against CPARC. It doesn't discriminate
3 against them because they're handicapped, It requires all
4 group homes as defined, whether they be handicapped
5 individuals or other people that happen to be licensed in
6 use by the state or federal government, to come before
7 you. It's facially neutral, It's not the intent to
8 discriminate. And I submit that, in fact, it is not
9 discriminatory.
10 Mr. Andrews does a very good job in his brief
11 of indicating the types of decisions that have come about
12 as a result of the Federal Housing Act. And this is an
~
evolving area of the law; there's no doubt about it, and
13
14 he may be right. There may be a time, and it may be soon,
15 that there will be a decision saying you don't have to
16 come before boards like you for special exceptions or any
17 other type of relief. But the fact is that time is not
18 right now. And the ordinance, we believe, is adequately
19 drafted; it's facially neutral, and it is constitutional
20 in those respects.
21 For those reasons, we request that the Board
22 uphold the zoning officer's decision that he issued in
23 January of 1997. Thank you.
24
MS, NEIDERER: Thank you, Mr. Brenneman,
.
MR, BOYER: I have a question, I'd like to
25
C,P.C,R.S
(717) 258-3657 or (800) 863-3657
109
110
f';
1
pose this question in as nearly the same way as I can
2 manage to both counsel in this case, This board, as you
3 know, is required to decide on a relatively narrow issue,
4 and that is whether the zoning officer of Middlesex
5 Township was within his rights and within his authority in
6 denying the application for a use by right under the
7 ordinance. Therefore, I'd like to pose a question. There
8 may be more than one, but this is one that comes to mind
9 immediately.
10 Mr. Andrews, much of your brief deals with the
11 requirements as you believe that they should be imposed in
12 this case and the Federal Fair Housing Act as amended in
I, I
13
1988, Is that correct?
14
MR. ANDREWS: That's correct,
15
MR. BOYER: Can you tell us, in as simple
16 language as you can manage, mindful of the fact that all
17 but one of our number are laymen and the layman who is
18 present is an attorney, in what respect has the 1989
19 Middlesex zoning ordinance failed to make, quote,
20 reasonable accommodation, closed quote, for the proposed
21 use as required under the Federal Fair Housing Act?
22
MR. ANDREWS: Number one, your ordinance is not
23 explicit, It does require an interpretation to determine
24 what is the effect of saying something is a group home.
)
25
Group home is defined in your ordinance, but then no place
C.P.C,R.S
(717) 258-3657 or (800) 863-3657
111
~
1
does it say
no place does it allow it as a permitted
2 use or even as a special exception. So we're left to try
3 and guess, well, what is a group home. Is it the same as
4 a rooming house, a boarding house, a lodging house, or is
5 it the same as a single family dwelling? And I suggest to
6 you that this particular group home, this CLA, is designed
7 to be as much like a single family dwelling as it can
8 possibly be.
9 I mean, that's the history of CLA programs as
10 is recognized in the other cases that I've cited. It's
11 not designed to be a rooming house, a lodging house, a
12 boarding house, a fraternity or a club, I may not
...
13
be -- I'm not sure whether r'm giving the answer to your
14 question, but your ordinance does allow for interpretation
15 to determine what is the effect of being a group home.
16 And it is my argument that the interpretation is required
17 under the law, And we learn as you do cases and you argue
18 cases to judges, you don't ask them to decide more than
19 they have to. All you have to decide in this case is the
20 proposed home, which is a home for three retarded
21 residents. That's a number less than four, and it's our
22 argument that that meets your definition of family.
23
MR, BOYER: I'm sorry, but I'm getting what
24 doesn't appear to me to be an answer to the direct
.
25
question. In both your brief and your presentation this
C,P.C,R.S
(717) 258-3657 or (800) 863-3657
117
H
1
that say it's just not enough of an accommodation for the
2 township to say you've got your special use permit; that's
3 all we need to do to give you.
4
MR. BOYER: Thank you,
5
MR, LAYMAN: Mr. Andrews, I have a couple
6 questions. You made reference not only to the federal law
7 but to state law or state case law, So is it your
8 position that we have controlling judicial authority in
9 addition to the statutory authority that was already ruled
10 in our particular jurisdictions? You cite a Middle
11 District Federal Court case. We're in the Middle District
12 of Pennsylvania. You cite some Commonwealth Court cases
......
13
that are subject to Commonwealth Court. Is that the legal
14 authority you were referring to when you mentioned --
15
MR. ANDREWS: Yes, The federal authority here
16 really is here to explain the impact. That shows
17 interpretation of the federal act and how the federal act
18 does reach down and affect zoning decisions and
19 municipalities. The state decisions, the Commonwealth
20 Court decisions that you've made reference to are not
21 related, aside from the Millcreek case, which was an Erie
22 County case that relied on the federal act. The other
23 state cases are even before that, and they deal with this
24 notion that it's proper for you to interpret your
..
25
ordinance which is what the interpretation is that a group
C,P,C,R.S
(717) 258-3657 or (800) 863-3657
118
~
1
home is more like a boarding house, a lodging house or a
2 rooming house than it is a single family dwelling,
3 Those same arguments had come up previously
4 even outside the federal law and had been disposed of by
5 these other state cases where CLAs for retarded citizens
6 have been found to be a familYr not a rooming house.
7 There's a case here that says the fact that you have
8 rotating staff, such as this will, does not change the
9 fact that it is a family; that does not make it an
10 institution. And that's what the state cases were for.
11 And they were showing that, really, advocates such as
12 CPARC were winning these battles even before the federal
...
13
law came along. But they sometimes had to take these
14 battles all the way to the Commonwealth Court, or I think
15 there might even be a Supreme Court case here.
16 What's interesting is since 1989 -- you donrt
17 see many state cases, and I suggest that's because of the
18
effect of the federal law
cases that have gotten up to
19 the Commonwealth Court after that deal with controversies
20 that predate the federal law,
21
MR. LAYMAN: I note with some irony that the
22 effective date of the federal law is March 12th of 1989.
23 Here we are March 12th, 1997, Thank you.
24
MR. BOYER: I'd like to pose the question to
.
25
counsel for the township, simply the reverse of what I
C.P.C,R.S
(717) 258-3657 or (800) 863-3657
119
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1
asked Mr. Andrews,
2 Mr, Brenneman, would you care to comment on how
3 you feel that the township, in the drafting of the
4 ordinance and in the administration of the ordinance, has
5 made reasonable accommodation for all applicants?
6
MR, BRENNEMAN: Probably the simplest response
7 I can give you is by defining group home in such a way as
8 to allow that use by any group that would not include
9 handicapped individuals, and, secondly, by allowing that
10 use, a group home use, in every district and not limiting
11 it in one particular area or any other area. That is a
12 use that is allowed everywhere by special exception, and
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13
it goes back to the concept of what a special exception
14 is.
15
This is not a variance, This is not something
16 contrary to what is in the ordinance. This is something
17 that is allowed subject to certain conditions. And if it
18 is allowed, if it is in the nature of a permitted
19 use -- because the township, in my opinion, has presented
20 an ordinance that is even-handed and would apply to others
21 that are not handicapped, would have to be licensed, or
22 for that matter any other applicant that wants a special
23 exception -- then that is a reasonable accommodation to
24 handicapped individuals.
.
25
MR. BOYER: Since the applicant's brief has
C,P,C.R,S
(717) 258-3657 or (800) 863-3657
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1
spoken, as does the Fair Housing Act, of both legislation
2 and administration of the ordinance, is it then your
3 contention that the zoning officer was not only correct
4 with respect to his interpretation of the ordinance but
5 that the zoning officer's action in denying the permitted
6 use was also in the nature of a reasonable administrative
7 accommodation of the applicant? And if so, would you give
8 us the reasons for that, that you believe that that was
9 still a reasonable accommodation?
10
MR. BRENNEMAN: Is your question whether
11 denying the use as a permitted use is, in effect, a
12 reasonable accommodation?
...
13
MR. BOYER: Not specifically, but whether the
14 denial by the zoning officer did not foreclose the path to
15 reasonable accommodation of the applicant's
16 applied-for-use under the ordinance. What I'm doing is
17 I'm trying to stay in my relatively narrow mind to the
18 narrow point that this board has to decide, which was the
19 appeal of the zoning officer's decision. And so in order
20 to, if we can, dispose of the matter of the governments of
21 the Federal Fair Housing Act over the ordinance and the
22 administrative procedures -- and I'm assuming that the
23 actions of the zoning officer were a part of the
24 administrative procedures of the township, Am I correct
.
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in that?
C.P,C.R,S
(717) 258-3657 or (800) 863-3657
120
123
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written, it sounds very much to this member of the Board
2 as if the applicant believes that the Fair Housing Act
3 essentially preempts local zoning regulations in those
4 matters of which the Federal Fair Housing Act treats. Is
5 that correct, or is that not correct, and could you tell
6 us? And that will be my last question.
7
MR, ANDREWS: It doesn't preempt it to, like,
8 abrogate it, to do away with it, but there are situations
9 that will arise, such as I submit this is one, where the
10 Federal Fair Housing Act will apply and should dictate and
11 control a decision in the administration of the ordinance
12 by the township zoning officer. Frankly, I think that's a
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relatively new -- I don't want to say phenomenon. I
14 served as the solicitor for the planning commission in
15 North Middleton Township for 16 years, and I don't think I
16 ever looked at a federal law. Typically the questions
17 that come into a municipality, what you look at is the
18 ordinance; you look at the municipality's planning code
19 and you might look at some decisions that the state boards
20 have made on that.
21 Now, the notion that now you must take a
22 broader look -- because there is a federal act reaching
23 down also affecting your decisions -- I think is where we
24 are. I don't think that federal act abrogates your zoning
.
25
ordinance, but it does dictate at times how you must
C,P,C.R,S
(717) 258-3657 or (800) 863-3657
125
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an alternative argument? Is that a fair statement of your
3
MR, ANDREWS: Yes. I think, even without the
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brief?
4 federal law -- let me find the case. It's that case that
5 used the terms judgment fail, used the term institutional
6 home. I think that would control, That was the Jalc,
14
MR, LAYMAN: And then it is your position that
7 J-a-l-c, Real Estate Corporation versus the Zoning Hearing
8 Board of Lower Southford Township, It's a Commonwealth
9 Court case of 1987. And I think that that would control
10 this situation even in the absence of the federal law.
11 And that's why I think you don't see more Jalc cases now
12 is because the federal law is preventing these cases from
.
13
now getting up to the Commonwealth Court,
15 the township does retain jurisdiction, if you will, of
16 anything over four homes? In other words, you're really
17 saying there's no way we can really
18
MR. ANDREWS: This case is only going to decide
19 this application, which is less than four.
20
MR. LAYMAN: You're saying there's no way we
21 can distinguish between these three individuals or any
22 other three individuals that want to come in and live in
23 the township. I mean, that's the heart of your case.
24
MR. ANDREWS: True.
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MR, LAYMAN: But you do recognize that if it's
C.P.C,R,S
(717) 258-3657 or (800) 863-3657
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more than four, that the group home definition -- that's a
2 completely different issue, is what you're saying?
3
MR. ANDREWS: I could not argue that a group
4 home, under your definition, of six people would meet your
5 definition of family because it clearly wouldn't because
6 your definition of family is four or less unrelated
7 people. So I couldn't make the argument then, but I
8 clearly can make the argument now, And although the Jalc
9 case didn't use the term group home, it did use the term
10 institutional home, and I believe this was a term in that
11 municipality's ordinance. They had a different term for
12 what they were trying to regulate, The judge said it
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meets the definition of group home in that township.
14 Therefore, under traditional zoning law, the
15 zoning ordinance, itself, is to be strictly construed so
16 that the rights of the landowner are -- the language is in
17 here; it's good policy language, or, again, the greatest
18 recognition under those traditional principles under the
19 Jalc case that meets the definition of family. It's a
20 family.
21
MR, LAYMAN: Mr, Brenneman, I am having trouble
22 distinguishing this limited question we're being asked to
23 consider which is narrowly focussed on three or less than
24 four. Do you have any other comments in response to your
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colleague's arguments regarding why we should not
C,P,C,R.S
(717) 258-3657 or (800) 863-3657
126
127
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1
recognize this as a family and not even deal with the
~ federal law aspect of it?
3
MR, BRENNEMAN: I don't believe the issue of
4 whether or not this is a family even comes into play. I
5 see why that argument is being made. I can't find fault
6 with the argument being made, but the fact is that we're
7 talking about statutory construction or construction of
8 this ordinance. And in this case, unlike the cases cited
9 by Mr. Andrews, we have a definition of a group home. And
10 the applicant here, I believe in every respect, has
11 conceded that this is a group home under this ordinance.
12 Now, our definition of a group home makes no
...
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mention of whether there are two people or six people or
14 three people. It does not matter. If you fall within
15 that definition of a group home, you are a group home. A
16 family of four or fewer unrelated people is not licensed
17 by the state or federal government, A group home is.
18 I think that is a key distinction if we're
19 going to talk about interpreting an ordinance.
20
MR, LAYMAN: Following up on that, let's
21 recognize now that we have a federal law, Isn't this
22 federal law giving a preference to those with handicaps?
23 And regardless of what this ordinance says, we have to
24 recognize that in this narrow case there is legal
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protection at the federal level for folks who have
C.P.C,R.S
(717) 258-3657 or (800) 863-3657
,....
1
Federal Fair Housing Act argument, the fact that this law
2 exists and we're being asked to respond to it and give it
3 recognition?
4
MR. HARKER: Well, there apparently is still an
5 assumption, and it's erroneous that neither Mr. Andrews
6 nor Mr. Brenneman failed to point out that this law does
7 not say that zoning is preempted. There is no validity to
8 federal preemption as an argument to shoot down all
9 zoning, unless, of course, the law and zoning or any other
10 law is supplied in a discriminatory fashion. And there is
11 no evidence of discrimination here, although Mr. Andrews
12 can say, well, that's discrimination, per se, simply to
....
13
require his clients to be here, in which case that
14 argument can be extended to say that they are exempt from
15 any and all laws whatsoever, if you want to take it that
16 far,
17
But I don't see any case going that far. The
18 case-by-case analysis of Mr. Andrews' excellent brief
19 shows the courts have struggled with cases of actual
20 discrimination where townships tried to exclude these
21 homes. And the Court's responded to try and show, well,
22 why they cannot do that. There's no evidence that that's
23 been done here. I would say this case can be greatly
24 simplified, possibly. It sounds so complex, I'm probably
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way off base here, but the issue is whether Mr. Carpenter,
C.P,C.R,S
(717) 258-3657 or (800) 863-3657
129
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issues, and I have no answer on those more philosophical
2 points. Maybe a higher court would have the better
3 approach to it than what this board has, These cases,
4 these all come from the higher courts. I don't see one
5 exactly like this. Well, there has really been no
6 evidence of any attempt to discriminate shown. I don't
7 see that there's any precedent for that in here. There's
6 no evidence in the record of it,
9
MR, LAYMAN: But some of the cases cited say
10 you don't need that evidence. Help me out with the role
11 of the zoning hearing officer. He's made a decision, but
12 he's also made an interpretation of the ordinance.
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MR. HARKER: He's interpreted it literally.
MR. LAYMAN: He's had to determine that the
14
15 definition of family did not apply to this situation. I
16 don't see that as a challenge to the whole ordinance. I
17 mean, we have the right to review whether his
16 decision -- that that definition didn't apply. I mean, I
19 think that's part of our responsibility.
20
MR. HARKER: Well, you asked me a question, and
21 you don't accept my answer. You can have your own answer.
22 I'm only giving you my insights on it. You can read the
23 same as I can and make your own interpretation.
24
MR. LAYMAN: You say he -- I'm just seeking
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clarification of what his role is. You said it was to
C,P.C.R,S
(717) 256-3657 or (600) 663-3657
132
134
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apply, we're not saying that he's not interpreting it
2 literally; we're just saying he interpreted it wrong. Is
3 that not true?
4
MR, HARKER: Well, that's obviously your
5 opinion, but I'm not going to agree with you, You've
6 heard from counsel on both sides. you're an attorney, as
7 you've said, and we've had four attorneys give their
8 opinions here. Perhaps we should look further at the
9 proper procedure to question the validity of an ordinance.
10 Is it to appeal a determination, or is it to bring a
11 separate action questioning the substance of the validity
12 of the ordinance? And there is a separate procedure for
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that. The applicant hasn't brought that.
14
MR. LAYMAN: Well, my specific question to you
15 as solicitor, then, is it your opinion that this is an
16 appeal of how the ordinance -- an appeal of the validity
17 of the ordinancer or is it an appeal of the decision of
18 the zoning officer?
19
MR. HARKER: Well, the application specifically
20 states that it's an appeal of the decision of the zoning
21 officer. That's what the application states. You have
22 that in front of you, and you can read that as well.
23
MR. LAYMAN: So we're not dealing with whether
24 or not the whole zoning ordinance is being challenged;
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we're being presented with the question of whether the
C.P.C.R,S
(717) 258-3657 or (800) 863-3657
135
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zoning officer has interpreted it correctly.
2
MR, HARKER: That's the way I see it. That's
3
not the way Mr. Andrews wants you to see it, He wants you
4 to see that the ordinance is invalid,
5
MR. ANDREWS: No, that's not right. I don't
6 want to be misrepresented on that point; I really don't.
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13
herein defined specifically excludes -- and it lists a
7 And I want to be very clear, your ordinance under
8 family -- and this is the nub of this issue, and this is
9 what Mr. Carpenter had to interpret. It is his
10 interpretation. You can't go to the literal words in that
11 ordinance and get an answer to this question. And that's
12 the heart of it. It requires interpretation. A family as
14 number of things. In this list of exclusions, group home
15 does not appear. It could appear; it does not. what is
16 listed is boarding or rooming house, lodging house, club,
17 fraternity, hotel or similar group living arrangement.
18 Then you have a definition for group home, but nowhere in
19 your ordinance do you say what it means, what the
20 implication is for being a group home because nowhere is
21 it listed as a special exception. Nowhere is it listed as
22 a permitted use. It is just an isolated definition in
23 your ordinance.
24
MR. HARKER: Well, if you'll refer to ordinance
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Roman Numeral 2-21, special exception defined as a use for
C.P,C,R,S
(717) 258-3657 or (800) 863-3657
136
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which the zoning board may grant a special use permit.
2
MR, ANDREWS: But you go into -- and you spoke
3 of these districts, the zoning districts, and there's a
4 list of what's permitted by special exception. You've got
5 churches; you've got any number of types of uses. No
6 place is group home one of them. So the only way it comes
7 in is, again, through interpretation. It is the
8 interpretation of this township ordinance that this group
9 home is more like a rooming house or a boarding house;
10 therefore, it's not a family; therefore, the only way it
11 comes in -- and we have to have it someplace in this
12 township, we know that -- is it's got to be a special
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exception. Ironically, how does it get in as a special
14 exception? If you go back and read the record, I think of
15 the first hearing we had, it's because it's most like the
16 permitted use single family dwelling. It's not because
17 it's like a lodging house or rooming house or boarding
18 house that is also permitted. It goes to the
19 interpretation of the ordinance. The literal words of
20 this ordinance will not answer this question. This is not
21 a challenge to the validity of the ordinance. It's a
22 challenge to the administration of the ordinance and its
23 interpretation,
24
MR. BOYER: That prompts me to submit another
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25
question to our solicitor, I have had the feeling, though
C,P,C,R.S
(717) 258-3657 or (800) 863-3657
138
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reason that he believed that it could be granted under a
2 special exception. And we, to some extent, if that was
3 his belief, we have backed him in it because we have
4 granted a special exception.
5 If we were following entirely Mr. Andrews' line
6 of logic here, we should not have been able to grant a
7 special exception, I believe is what I'm hearing, because
8 group home does not appear under those two words as
9 something which can be granted as a special exception.
10 MR. BARNETT: For me, the discussions come with
11 you guys discussing this, This is a rudimentary part of
12 our community, of trying to make some decisions here, and
...
there's a lot of emotion involved. When this organization
13
14 came forward, I had no idea who they were, being nonprofit
15 or profit, being family members trying to form
16 associations and take care of some very serious problems,
17 very serious close problems to their families. The cases
18 that were stated come back to me as saying that there was
19 some prejudice and real problems with handling the
20 handicap, and I think there were some real issues that
21 started out with this presentation of the different
22 boards.
23 I feel that I personally, I would feel more
24 empathetic than I started with knowing more about the
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association. But I'm having real trouble with this
C.P.C,R.S
(717) 258-3657 or (800) 863-3657
142
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involved either. It was before either of us were
2 involved. I think it was an intern from CPARC came up and
3 met with an acting secretary out there and said we want to
4 start this program out here; what do we have to do. Well,
5 this is what you got to do; it looks like it's a group
6 home.
7 Once Mr. Carpenter got on the job and once I
8 got in the case, we really tried to bring some clarity and
9 definition to what the issue was, and that was the purpose
10 of my letter to Mr. Carpenter where I asked for a specific
11 definition. Also that application is not inconsistent
12 with our position. I'm not here saying that this is not a
......
group home. I'd be foolish to say that. I'm saying that
13
14 you should find that a group home for four or less is also
15 a family, That's the point.
16
MS. NEIDERER: Are we ready to make a motion?
17
Do you have another question?
18
MR, BOYER: Yes, Following from this train of
19 logic, which is what I have assimulated from all of the
20 people who have argued this case and from the advice from
21 your zoning hearing board solicitor, it appears that some
22 interpretation is required of the ordinance. It appears
23 and has not been contested that a group home was applied
24 for and has been granted as a special exception by this
..
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board. It appears that the choice which confronted the
C,P,C,R.S
(717) 258-3657 or (800) 863-3657
143
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zoning officer of Middlesex Township was a choice between
2 group home and family as to the definition and use of the
3 property,
4 It appears to this board member self-evident
5 that since a group home is what was applied for, since no
6 one among the representative's counsel and representatives
7 of the township have told us otherwise, that for our
15
MS. NEIDERER: Having that said, would somebody
8 purposes, the group home, it must remain. And that leads
9 me to the conclusion that the zoning officer made, within
10 his job description as laid down by the MPC of
11 Pennsylvania, the correct decision. And so I do not
12 believe that the Board is within its rights in reversing
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the zoning officer. Therefore, I move to uphold the
14 denial of the permitted use in this case.
16 like to second that motion?
17
MS. PATTISON: I second.
18
MS. NEIDERER: Seconded by Joan. Would you
19 like to take a vote on that? Any discussion?
20
Jay, you look like you
21
MR. LAYMAN: Well, I think -- now I don't know
22 what I wanted to say,
23
MS. NEIDERER: Do you want to cast a vote on
24 that motion?
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All in favor of Mr, Boyer's motion to uphold
C,P,C,R.S
(717) 258-3657 or (800) 863-3657
Develooer: Any landowner, agent of such landowner or tenant with the
permission of such landowner, who makes or causes to be made a
subdivision of land or a land development.
Develooment: Any man-made change to Improved or unimproved real estate,
including, but not limited to, buildings or other structures, the
placement of mobile homes, streets and other paving, utilities, filling,
grading, excavation, mining, dredging or drilling operations and the I
subdivision of land.
DeveloDment Phn: The provisions for development Including a planned
residential development, a plat of subdivision, all covenants relating
to use, location and bulk of bUildings and other structures, intensity
of use or density of development, streets, ways and parking facilities,
common open space and publl c facil it i es. The phrase "provi s ions of the
development plan" when used in this Ordinance shall mean the written and
graphic materials referred to in this definition.
Drivewav: A private drive providing access between a public or private
street or access drive and a permitted use or structure.
Dwellin~: Any bUilding or structure designed for living quarters for one
or more families or housekeeping units, including mobile homes which are
supported by a permanent foundation, but not including tents, cabins,
travel trailers, boarding homes, rooming houses, convalescent homes,
motels, hotels or other accommodations used for transient Occupancy,
Detached Dwelling:
A dwelling which is completely surrounded
by permanent open spaces,
Semi-detached Dwelling: A dwelling, one side wall of which is a
party or lot-line wall.
Attached/Row Dwelling: A dwelling, the walls on two sides of which
are party or lot-line walls,
End-row Dwell ing: Same as semi -detached. _'
Dwellino. Multi-Famil~ A detached building or a group of attached and
semi -detached bui 1 dings des igned for or used excl uSively for residence
purposes by more than two families or housekeeping units,
Dwellino. Sinole-Familv. Attached (Row): A building used by one family,
and having two party walls in common with other dwellings (such as row
house or townhouse), except in the case of an end-of-row unit which only
has one side wall which is a party or lot-line wall,
Dwellino. Sinole-Familv. Detached: A bUilding used by one family, having
only one dwelling unit, and having two side yards,
Dwellina. Sinole-Familv. Semi-Detached: A building used by one family,
having one side yard, and one party wall in common with another dwelling,
I1-S
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Owellina. Two-Familv: A building used by two families, with one unit
arranged over the other and having two side yards.
OwelJ ina Unit: A structure or entirely self-contained port ion thereof
designed to be occupied for 1 iving quarters as a single housekeeping
unit, including any domestic servants employed on the premises, and
having no enclosed space (other than vestibules, entrance or other
hallways or porches) or cooking or sanitary facilities in common with any
other "dwelling unit". A travel trailer, a boarding or rooming house,
convalescent home, fraternity or sorority house, hotel, inn, lodging,
nursing, or other similar home, or other similar structure shall not be
deemed to constitute a dwelling unit.
Easement: The authorization by a property owner of a right-of-way
granted, but not dedicated, for limited use of private land for a public
or quasi-public purpose, within which the owner of the property shall not
erect any permanent structures, but shall have the right to make any
other use of the land which is not inconsistent with the rights of the
grantee of the easement.
Enaineer. Professional: A person duly licensed as a professional
engineer by the State of Pennsylvania,
Enaineer. Townshio: The Township Engineer or any consultant deSignated
by the Board of Supervisors to review a subdivision plan and perform the
duties of engineer in behalf of the Township.
Essentiallv drv soace: space which will remain dry during flooding,
except for the passage of some water vapor or minor seepage.
Familv: One or more persons related to each other by blood, adoption,
marriage, or otherwise by law, who are occupying the same dwelling unit
and are living and cooking together as a single housekeeping unit,
exclusive of foster children, household servants, and not more than two
additional persons who are not so related. Apart from the above, not more
than four persons 1 iving and cooking together as a single housekeeping
unit though not so related, -shaH be deemed to constitute a family, A
"family" as herei n defi ned specHi cally excl udes a boardi ng or roomi ng
house, lodging house, club, fraternity, hotel or any similar group living
arrangement.
Farm Eauioment Sales and Service: The distribution, sale and/or
servicing of new and used equipment and machinery, including construction
equipment, commonly used for agricultural purposes.
Fill: Material placed or deposited on land so as to form an embankment
or raise the surface elevation of the land including, but not limited to,
levees, bulkheads, dikes, jetties, embankments and causeways.
11-9
Flood. Flooded. or F10odinQ: A partial or complete inundation of
normally dry land areas from the overflow of a watercourse or other bOdy
of surface water, or from the unusual and rapid accumulation or runoff of
surface waters from any source.
Flood FrinQe: That portion of the flood plain outside the floodway.
Flood of Record: The flood which has reached the highest flood elevation
above mean sea level at a particular location.
FloodDlailJ: A relatively flat or low land area which is subject to
partial or complete inundation from an adjoining or nearby stream, river
or watercourse; and/or any area subject to the unusual and rapid
accumulation of surface waters from any source,
Flood-orone Area: Same as "floodplain" 1!!lli.
Fl oodoroof. F1 oodoroofed, Fl oodoroofi ng: any combi nat i on of structural
and non-structural additions, changes, or adjustments to structures which
reduce or eliminate flood damage to real estate or improved real
property, water and sanitary facilities, structures and their contents.
Floodwav: The channel of a river or other watercourse and the adjacent
1 and areas requi red to carry and di scharge a flood of the one hundred
(100) year magnitude without increasing the water surface elevation of
that flood more than one (I) foot at any point.
Floor Area: The sum of the gross horizontal areas of the several floors
of the building or bUildings on a lot measured from the exterior faces of
exterior wall s or from the center 1 i ne of party wall s separat i ng two
bUildings, ,excluding cellar and basement areas used only for storage and
the operation and maintenance of the bUilding.
GaraQe. Private: An accessory garage maintained only for the convenience
of the occupant or occupants of the main building and in which no
business or other use is carried on and no service is rendered to the
general public.
GaraQe. Public: Any garage other than a private garage. A Public Garage
.may include servicing, repairs, washing or reconditioning of motor
vehicles, and filling station facilities.
GoverninQ Bodv: The Middlesex Township Board of Supervisors.
Green Area: The portion of a lot which may not be oCcupied or covered by
buildings or paved areas.
Grouo Home: A licensed dwelling providing supervised non-transient
1 odgi ng or res ident i al servi ces for not more than seven (7) persons
including supervisory personnel, but excluding domestic help 1 imited to
two (2) in number, in which some or all of the occupants are unrelated,
"
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a
Sian Area: The area of the smallest triangle, rectangle or circle, or
combination thereof, which can wholly enclose the surface of the sign,
All visible faces of a multi-faced sign shall be counted separately and
then totaled in calculating sign area. Three-dimensional signs shall be
treated as dual-faced signs, such that the total area shall be twice the
area of the smallest triangle, rectangle or circle, or combination
thereof, which can totally circumscribe the sign in the plane of its
largest dimension.
Site Plan: A plan of a lot or subdivision on which is shown topography,
1 ocat ion of all buildi ngs, structures, roads, rights-of-way, boundari es.
all essential dimensions and bearings. and any other information deemed
necessary by the Township in unusual or special cases,
Soil Survev: A scientific survey of soil conditions and characteristics
prepared by an engineer or soil scientist and approved or certified by
the Soil Conservation Service in the County.
Soecial Exceotion: A use in one or more districts for which the Zoning
Hearing Board may grant a special use permit pursuant to the provisions
of this Ordinance.
Start of Construction: For flood plain management and flood insurance
purposes only. the "Start of Construct i on" means either (1) the fi rst
placement of permanent construction of a structure on a site, such as the
pouring of slab or footings, the installation of piles, the construction
of columns, or any work beyond the stage of excavation; or (2) the
placement of a manufactured home on a foundation. Permanent construction
as used in this definition does not include land preparation, such as
clearing. grading and filling; nor does it include the installation of
streets and/or walkways; nor does it include excavation for a basement.
footings. piers, or foundations or the erection of temporary forms; nor
does it include the installation on the property of accessory buildings,
such as garages or sheds not occupied as dwelling units or not part of
the main structure.
StOry: A story is that part of a buil di ng between the surface of any
floor and the next floor above it or. in the absence of an upper floor.
then the finished ceil ing or roof above it. A "spl it level" story shall
be considered a second story of a building if its floor level is six (6) ,
feet or more above the le,al of the line of the finished floor next below
it. Any floor under a sloping roof at the top of a building which is
modre than two (2) feet below the top plate shall be counted as a story;
an . if 1 ess than 2 feet below the top pl ate. sha 11 be counted as a
~half-story. A basement shall be counted as a story if it averages more
an five (5) feet above grade.
~~reet: Any street. avenue. boulevard. road, highway, freeway, parkway.
v ne, all ey, vi aduct. or any other way used or intended for use by
.:~icui?r traffic or pedestrians, whether public or private. The word
carr tee ' includes the entire right-of-way and is not 1 imited to the
way area,
1I-21
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ARTICLE IX
VC - VILLAGE CENTER DISTRICTS
SECTION 9.01 - INTENDED PURPOSE. The VC Village Center Residential
District is designed to~aintain existing residential environments as an
asset to the total community; stabilize and improve toe existing values
inherent in the already built envirnnmpnt and encourage the upkeep of
existir.g development and the development of new properties; foster
conversion of larger dwellings, where applicable, for use into smaller
household units; allow flexibility in planning and induce creative and
economic methods of residential development; and promote the use of
properties for trade and, service activities which are compatible with
residential use.
All uses within the VC District shall comply with the following
regulations:
SECTION 9.02 - PERMITTED USES. Within the VC District shown on the Zoning
Map, the following uses shall be permitted as a matter of right:
Single family detached dwellings.
Single family semi-detached dwellings,
Two-family dwellings.
Retail sales of goods, prepared foods and/or services, but excluding
establishments designed to provide drive-in facilities.
Eating and drinking places, but excluding establishments designed to
provide drive-in facilities,
Personal services, but excluding establishments designed to provide
drive-in facilities.
Professional and administrative offices,
Financial institutions, including drive-in facilities.
Public and semi-public bUildings and uses,
Essential municipal and public utility services and installations.
IX-l
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SECTION 9.03 - ACCESSORY USES
The following customary accessory uses and buildings incidental to any:
permitted uses shall be permitted: ~
A. Uses and structures which are customarily associated with the:
permitted uses such as storage buildings, outdoor storage areas,;
yards, gardens, play areas and parking areas. j
B. Garden house, tool house, pl,ayhouse, wading pool, or sWimming pool.
incidental to the residential use of the premises and not operated..
for gain. All such wading or swimming pools shall be subject to the
provisions of Article XIV hereof, I
Private garages, In such garages with 2 or more passenger automobile
spaces, one such space may be 1 eased or rented to persons not
resident on the premises.
C.
D.
The keeping of a reasonable number of customary household pets or
domestic animals but excluding the commercial breeding or keeping of ;
same. All such household pets or domestic animals shall not be i
penned or housed within the appl icable minimum yard requirements of j
any lot. Commerci a 1 kennel s shall not be permitted. ;
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All storage accessory to any permitted principal use, other than f
off-street parking and loading, or trailer, boat, mobile home and
agricultural storage shall be carried on in completely enclosed
buildings,
Signs, as provided in Article XIV of this Ordinance.
E.
F.
SECTION 9,04 - SPECIAL EXCEPTION USES. The following uses and activities
may be permitted by Special Exception upon approval of the Zoning Hearing
Board after a publ ic hearing and recommendation by the Planning
Commission. Uses by Special Exception shall be subject, to the
requir..e~specified in Articles XIV and XVIII and elsewhere in This
Ordinance.
A. Uses which, in the opinion of the Zoning Hearing Board, are of the
same general character as those listed as permitted uses and which
wlll not be detrimental to the intended purposes of these districts.
B. Places of worship including accessory building such as parish houses
and church school facilities. (See Section 14.27)
C. Cemeteries. (See Section 14.28)
D. Schools, colleges and other educational institutions. (See Section
14,29)
IX-2
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E. Philanthropic and religious institutions, hospitals, nursing homes
and sanitaria for medical care. (See Section 14.30)
F. Membership clubs and camps, and outdoor recreation facilities such
as private playgrounds, golf clubs, swimming pools and tennis
courts. (See Section 14.31)
G. Commercial camps and resorts. (See Section 14.32)
H. Conversion of established single family dwellings Into two or more
'aoartment dwell i ng units, provided that both sanitary sewer and
~ater systems are available, each lot or parcel of land so used has
an area of not less than ten thousand (10,000) square feet and a
width of not less than one eighty (80) feet at the building line and
po ",,,rp than a total of twelve L!l.L_dwelllng units' are located
within the structure. Each dwelling unit within c~ted buildings
shall have not less than two thousand (2,000) square feet of land
area per dwelling unit and a minimum of seven hundred (700) square
feet of floor area per each unit; but, in no case, shall the total
1 and area be 1 ess than ten thousand (10,000) square feet. (See
Section 14.37)
I. Multiple dwell ing structures including apartment, row or attached,
dnd town house dwellings, (See Section 14.38)
J. Hotels, motels and tourist homes, (See Section 14,47)
K. Lodging and boarding houses,
~ L. Business conversions. (See Section 14.49)
M. Vehicle services, such as service stations, repair garages, and
11 vehicle supplies. (See Section 14.46) ...Jo~~
N. Commercial recreatio~nd entertainment facilities. ~~~._-~ '"
~O. Day care centers. (See Section 14,48)
P. Bed and Breakfast Inns. (See Section 14.42)
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SECTION 9.05 - LOT AREA, BUILDING HEIGHT AND YARD REQUIREMENTS,
A. Lot Reauirements. Lot width, lot area, yard and building setback of
not less than the dimensions shown on the following table shall be
provided for every dwelling unit and/or principal non-residential
building or structure hereafter erected or altered for any use
permitted in this district:
IX-3
SECTION 14.20 - LANDSCAPING, No shrubs or trees shall be planted or
maintained within right-ofway of any street, drainage or sewer right-of-
way, or any other public easement,
SECTION 14.21 - USES NOT PROVIDED FOR, Any use not specifically allowed
elsewhere in this Ordinance shall be allowed by special exception in the
district or districts where., and to the extent that, similar uses are
permitted or allowed by special exception provided that said use meets
the requirements for a special exception and does not constitute a public
or private nuisance.
SECTION 14.22 - HABITABLE FLOOR AREA. The minimum habitable floor area of
every dwelling unit or any building or structure hereafter erected or
used for 1 ivi ng purposes, shall .be not 1 ess than el even hundred (1,100)
square feet on the first floor if one story or seven hundred twenty (720)
square feet on the fi rst f1 oor if two or more stori es, In case of
apartment houses and conversion apartments, the minimum habitable floor
area shall be not less than four hundred (400) square feet per apartment,
except those apartments des i gned for and occupi ed excl us i vely by one
person, which apartment shall contain not less than three hundred (300)
square of habitable floor area, In the case of mobilehomes or
manufactured homes, the habitable floor area shall not be less than four
hundred (400) square feet.
SECTION 14.23 - FIRE ESCAPES, Nothing herein contained shall prevent the
project i on of an open fi re escape into a yard for a di stance not to
exceed eight (B) feet,
SECTION 14.24 - PRIVATE OUTDOOR SWIMMING POOLS. No swimming pool with a
capacity of 10,000 gallons or more shall be constructed or installed
unless the Township Engineer or Department of Environmental Resources has
cert i fled that the drainage of such pool is adequate and wi 11 not
interfere with any domestic water faci 1 ities, any sanitary sewage.
facilities or any streets,
A, A single private outdoor swimming pool may be permitted on the same
lot with a residence, subject to the following conditions:
1. The pool shall be located at the rear of the dwelling and shall
observe the sideyard and rearyard setbacks for the appropriate
di strict.
2. If a pool is located ~lith;n 50 feet from any lot or street
line, such pool shall be screened from the view of abutting
properties, Any such screen shall be at least five feet high.
XIV-32
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(b) Any public or private school, publ1c park or playgrOund
or any church or other house of worship.' .
I
No materials, merchandise, or fllm offered for sale, rent
lease, loan or for view Upon the premises shall be exhibited 0;
displayed outside of a building or structure.
Any bUilding or structure Used and occupied as an adult book
store or adult theatre shall be Windowless, or have an Opaque
covering over all windo~ls or, doors of any area in which
materials, merchandise, live entertainment or film shall be
visible from outstde of the bUilding or structure.
SECTION 14.51 -f~R~UP HOME " The Zoning Hearing Board may approve Group
Homes according 0 e proc dures and requirements specified below:
4.
5.
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A. The Use and occupancy of any land, bUilding or structure as a group
home shall be subject to the following:
(1)
Any group home shall have a minimum of 350 square feet of
habitable floor area provided for each OCcupant,
(2) A common kitchen and dining facll Ity shall be prOVided and no
Cooking or dining faciJ It les shall be provided in individual
rooms or suites, This proviSion is not intended to require any
kitchen and dining facilities if the affiliated institution
prOVides them elswhere,
(3) All group homes shall be connected to pUblic water and public
sanitary sewage facilities,
(4) All group homes shall comply with the Federal Life Safety Code,
the rules and regulations of the Pennsylvania Department of
labor and Industry, and all other applicable bUilding, safety,
and fire codes of the Federal, state or local government.
. (5) Group homes shall be registered and licensed by either the
Federa 1 Government or the Commonwea lth of Pennsyl vani a and
shall be in compliance with all applicable rules and
regulations of the licenSing body.
A group home shall not be located within 2,000 feet of any
other group home.
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Off-street parking shall be provided for all group homes based
upon one (1) parking space per OCcupant, including resident
staff.
XIV-64
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ARTICLE XVII
ADMINISTRATION AND ENFORCEMENT
SECTION 17.01 - APPOINTMENT OF ZONING OFFICER. For the administration of
this Ordinance, a Zoning Officer, who shall not hold any elective office
in the Township, shall be appointed by the 'Board of Supervisors. The
Zoni ng Officer shall meet qual i fi cat ions establ i shed by the Board of
Supervisors and shall be able to demonstrate to the satisfaction of the
Board of Supervisors a working knowledge of municipal zoning. The Zoning
Officer shall administer This Ordinance in accordance with its .J-liar.a]
.~, and shall not have the power to permit any construction or any use
or change of use which does not conform to This Ordinance and other
applicable Township codes and ordinances. The Zoning Officer shall issue
all permits required by This Ordinance. The Zoning Officer may be
authori~~--1nstitute civil enforcement proceedings as a means of
enforcement when acting within the scope of his employment by the
Township. -
SECTION 17.02 - POWERS AND DUTIES OF ZONING OFFICFR
A. It shall be the dutv of the Zoning Officer to enforce the provisions
of This Ordinance and all rules, conditions and requirements adopted
or specified pursuant thereto,
B. The Zoning Officer or his duly authorized assistant(s). shall have
the dg!tt to pnter any building or enter upon any land at any
reasonable hour as necessary in the execution of their duties,
provided that:
.-
1. The Zoni ng Officer shall .not i fv the owner and tenant before
conducting any inspection. -.
2. The Zoning Officer or his duly authorized assistant(s) shall
disDlav identification signed by the Board of Supervisors upon
'commencing an inspection.
3. Inspections shall be commenced in'the presence of ,the owner or
his representative or tenant.
C. The Zoning Officer shall maintain files, open to the public, of all
applications for certificates of occupancy and building permits
along with plans submitted therewith as well as final certificates
and permits.
XVII-I
CUMBERLAND-PERRY ASSOCIATION
FOR RETARDED CITIZENS (CPARC)
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
THE ZONING HEARING BOARD OF
MIDDLESEX TOWNSHIP
NO. 97-2056 CIVIL TERM
CIVIL ACTION - LAW
IN RE: APPEAL OF CUMBERLAND-PERRY ASSOCIATION
FOR RETARDED CITIZENS
BEFORE SHEELY. P.J.. HOFFER. J.. HESS. J.
OPINION AND ORDER OF COURT
Cumberland-Perry Association for Retarded Citizens (CPARC)
has appealed the decision of the Zoning Hearing Board of
Middlesex Township (the Board) ruling that a proposed Community
Living Arrangement (CLA) for three retarded citizens requires
approval by the Board as a special exception. The Board
submitted a "Statement of position" indicating that it would
stand by its decision but would not act as an advocate in this
proceeding. CPARC presented oral argument before this Court on
August 13, 1997.
FACTUAL AND PROCEDURAL HISTORY
Because this case essentially turns on legal issues, only a
brief summary of the record is provided. CPARC is a non-profit
corporation whose purpose is to assist and advocate for people
with mental retardation. CPARC has made preparations for the
establishment of a CLA in Middlesex Township whereby three
retarded individuals with varying degrees of mental retardation
would live together in a house located at 102 North Middlesex
Road. The residents' IQs would be subaverage, meaning they are
NO. 97-2056 CIVIL TERM
unable to carry out daily living tasks without assistance.
Residency is for an extended period of time, most likely measured
in years.
The house selected for the CLA has three bedrooms and a
large kitchen with separate space for an office. It also has a
washer and dryer to be used in common by all residents. The home
would be furnished like any other home, and the household
activities would also consist of the same activities usually
experienced. For instance, the residents would eat and plan
meals together, and celebrate birthdays and holidays together.
There are residents living at CLA's in other locations who have
jobs.
CPARC operates nine CLA homes in three counties using a
system of support staff who are always present at the home if a
resident is present, including through the night. However, the
staff do not reside within the property. The staff work in
shifts with a supervisor overseeing them, but the supervisor is
not present at the home. The Pennsylvania Department of Public
Welfare requires each CLA to have a license, which CPARC intended
to acquire pending township approval.
Initially, CPARC requested approval as a group home prior to
obtaining the advise of counsel. On January 17, 1997, after
entering an appearance, counsel requested the Township Zoning
Officer to interpret the Ordinance as allowing the establishment
of the CLA as a single family dwelling, which is a permitted use.
2
NO. 97-2056 CIVIL TERM
On January 27, 1997, the zoning Officer rendered a written
interpretation finding the proposed home was a group home as
defined in the Ordinance and that this particular group home
would not fit the definition of family. His reason for the
decision was that the Ordinance specifically excludes from the
definition a boarding or rooming house, lodging house, club,
fraternity, hotel or any other group living arrangement similar
to the foregoing li.ving arrangements.
CPARC appealed this interpretation to the Board and also
sought a special exception from the Board as a group home should
the CLA not be regarded as a single family dwelling. Hearings
were held on February 12, 1997, and on March 12, 1997. On April
4, 1997, the Board in a written decision came to the same
conclusion as the Zoning Officer. On April 21, 1997, the instant
appeal followed and is ready for disposition.
DISCUSSION
Because the Court relied on the established record and took
no new evidence, the standard of review to be applied is whether
the Board committed an abuse of discretion or error law. Spencer
v. McKean Township Zoning Hearing Board, 113 Pa.Commw. 521, 524,
537 A.2d 943, 944 (1988). CPARC has appealed the Board's
decision on three grounds: (1) the Board erred when it concluded
that the proposed CLA was a boarding home or similar group
arrangement which was excepted from the definition of "family"
under the Ordinance; (2) the Board violated the Federal Fair
3
NO. 97-2056 CIVIL TERM
Housing Act Amendments in its administration of the Ordinance;
and (3) the Board denied equal protection to the proposed
handicapped residents by subjecting them to increased township
scrutiny. This Court believes that the Board committed an error
of law with regard to the first argument raised and will grant
the appeal on this ground. The other issues proffered will not
be addressed.
Turning to the first issue, CPARC concedes the CLA fits the
definition of group home but maintains that it also fits the
definition of family.
Family: One or more persons related to each other by
bloodr adoption, marriage, or otherwise by law, who are
occupying the same dwelling unit and are living and
cooking together as a single housekeeping unit,
exclusive of foster children, household servants, and
not more than two additional persons who are not so
related. Apart from the above, not more than four
persons living and cooking together as a single
housekeeping unit though not so related, shall be
deemed to constitute a family. A "family" as herein
defined specifically excludes a boarding or rooming
house, lodging house, club, fraternity, hotel or any
other similar group living arrangement.
Group Home: A licensed dwelling providing supervised,
nontransient lodging or residential services for not
more than seven (7) persons including supervisory
personnel, but excluding domestic help limited to two
(2) in number in which some or all of the occupants are
unrelated.
Keeping in mind that "[t]he Zoning Officer is mandated to apply
the Zoning Ordinance literally and may not modify or vary its
terms",' the Court finds that the proposed CLA does fit into both
Zoning Code Section 17.01.
4
NO. 97-2056 CIVIL TERM
definitions. It is first noted that the use defined as "group
home" is neither explicitly listed as a permitted use or a use by
special exception in any zone in the Township. Additionally, the
Ordinance does not specifically exclude "group home" from the
definition of family. Moreover, the living arrangement as
testified to at the hearings is not "a boarding or rooming house,
lodging house, club, fraternity, hotel or any other similar group
living arrangement" and otherwise fits into the definition of
family.
The Court is inclined to agree with CPARC that this case is
controlled by the reasoning of JALC Real Estate Corporation v.
Zoning Hearing Board of Lower Salford Township, 104 Pa.Cornrow.
605, 522 A.2d 710 (1987). In JALC, a proposed CLA was construed
as simultaneously fitting the description of an "institutional
home" and a "single family dwelling." Although the term in this
case is "group home," it is similar enough to "institutional
home" to warrant the same analysis.
In sum, the Court finds the Board erred by concluding that
the proposed CLA is excepted from the definition of "family." We
hold that the CLA is a permitted use under the Middlesex Township
Zoning Ordinance as a single family dwelling. (This Court feels
that the Board should take careful note of Horizon House
Developmental Services, Inc. v. Township of Upper Southampton,
804 F.Supp. 683 (E.D.Pa. 1992) (holding that 1000 foot separation
requirement for homes for retarded citizens violates the Federal
5