            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Domenic F. Leone and                      :
Catherine V. Leone                        :
                                          :
               v.                         : No. 2065 C.D. 2014
                                          : Argued: November 16, 2015
Borough of Rochester,                     :
                 Appellant                :


BEFORE:        HONORABLE DAN PELLEGRINI, President Judge
               HONORABLE MARY HANNAH LEAVITT, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI                                FILED: December 10, 2015


               The Borough of Rochester (Borough) appeals from an order of the
Court of Common Pleas of Beaver County (trial court) finding the Borough Zoning
Ordinance (Zoning Ordinance) was de jure exclusionary by excluding all group
living facilities unless they had 24-hour onsite supervision. As a result, the trial
court found that Domenic F. Leone and Catherine V. Leone (Landowners) were
allowed to rent certain property that they owned for a licensed partial Community
Residential Rehabilitation Service (CRRS).1 The trial court also directed that the

      1
          The Pennsylvania Code defines “CRRS” as:

               Transitional residential programs in community settings for
               persons with chronic psychiatric disability. CRRS’s provide
               housing, personal assistance and psychosocial rehabilitation to
(Footnote continued on next page…)
Borough adopt a curative amendment to the Zoning Ordinance to permit the
operation of a licensed partial CRRS as a permitted use in the C-1 Community
Business District (C-1 Zoning District).


             Landowners own 101 Brighton Avenue, Rochester, Pennsylvania,
15074 (property) zoned as a C-1 Zoning District per the Zoning Ordinance and
Borough zoning map. Landowners have owned the property for 21 years, during
which Mr. Leone has operated his primary business, Henderson Printing, out of the
first two floors and leased residential apartments on the other two floors.


             In the spring of 2013, Zachewicz Enterprises, Inc., doing business as
Cornerstone Recovery and Supports (Cornerstone), approached Mr. Leone about
opening a licensed partial CRRS on the third floor of the property. Mr. Leone then
went to the Borough’s office and spoke with unnamed individuals of his intention
to lease a portion of his property to Cornerstone to operate a partial CRRS. He was
told to notify Berkheimer Tax Service so that taxes could be collected. Without
filing any permits, Landowners then commenced renovations and improvements to


(continued…)

             clients in nonmedical settings. There are two levels of care, full or
             partial, which are distinguished by the level of functioning of the
             clients served and the intensity of rehabilitation and training
             services provided by CRRS staff to the clients. In both levels of
             care, the provider acts as landlord to the client. Except host homes
             for children, every site used by a CRRS to house clients is owned,
             held, leased or controlled by the provider or a provider-affiliate.

55 Pa. Code §5310.6.




                                              2
the third floor of the property. In July 2013, Landowners received a cease and
desist letter from Tom Albanese, the Borough Zoning Officer, stating that the
Zoning Ordinance prohibited the use of properties located in a C-1 Zoning District
as a “personal care boarding home.” All “group” living uses under the Zoning
Ordinance required 24-hour onsite supervision.


              Because all group living uses required 24-hour onsite supervision,
Landowners       alleged   that   the    Zoning      Ordinance was unconstitutionally
exclusionary.2     On that basis, pursuant to Section 609.1 of the Pennsylvania
Municipalities Planning Code (MPC),3 Landowners filed a Curative Amendment
Application      (application)    with    the       Borough   seeking    to    “cure”    the
unconstitutionality of the Zoning Ordinance by presenting a curative amendment to
the Zoning Ordinance to add a licensed partial CRRS as a permitted or conditional
use in the C-1 Zoning District.


              At a public hearing before Borough Council, Mr. Leone testified that
he had entered into a lease with Cornerstone under which Cornerstone’s residents
occupied apartments on the third floor of the property. Mr. Leone testified that he
was unsure of how much supervision the residents received during the day but that
he had not had any incidents with regard to the residents. Mr. Leone also testified

       2
          A zoning ordinance is invalid as de jure exclusionary when it totally excludes a
legitimate use. H.R. Miller Co., Inc. v. Board of Supervisors of Lancaster Township, 605 A.2d
321 (Pa. 1992).

       3
        Act of July 31, 1968, P.L. 805, added by Act of June 1, 1972, as amended, 53 P.S.
§10609.1.




                                                3
that the property has been a mixed use ever since he has owned it and that he has
“had apartments, and … mental health patients renting off of [him] in one of the
apartments.”      (Transcript of Hearing, 3/26/14, at 28.)             However, Mr. Leone
testified that Cornerstone was not yet licensed to operate out of the property.


               Mark Zachewicz, Cornerstone’s CEO, testified that Cornerstone is a
nonprofit that contracts with Beaver County to provide two services:                      one is
residential rehabilitation services and the other is case management supports for
individuals with behavioral health issues. Mr. Zachewicz testified that he was
particularly interested in the property due to its close proximity to public
transportation and a mental health association. He also testified that Cornerstone
had a lease with Mr. Leone for office space but not apartments, and that there are
currently three residents living there for whom Cornerstone is providing services4
and 20 hours of supervision per day. Furthermore, Mr. Zachewicz testified that
because Cornerstone has less than four residents, it does not need a license, but it
would need a license in order to be able to increase the number of residents to six
so that the business is more financially feasible.5



       4
         According to Mr. Zachewicz’s testimony, the types of services Cornerstone provides to
these residents include guidance with medication administration, food prep, making sure the
residents make their doctors’ appointments, etc.

       5
         Additionally, Joe Cook, the Executive Director of the Mental Health Association; Dan
Edwards, an individual who has lived at a CRRS before; Raymond Gutowski, a mental health
professional and employee of Cornerstone; and Joanne Koehler, the Director of Programs of the
Mental Health Association, all testified in support of licensing the property for use as a partial
CRRS, opining that such a service would be beneficial to the community.




                                                4
                 Marcelle Scott, a consultant for businesses that provide support to
people with intellectual disabilities or mental health issues, testified that she was in
the process of assisting Cornerstone in its application for licensing for the property.
Ms. Scott testified that the individuals living on the property have their own
primary care physicians, who prescribe their medications, and they have their own
health insurance that covers their doctors’ visits and medications. She further
testified that if the individuals do not have insurance, they could still be accepted
into the program as there are programs that would subsidize them to purchase the
medications. She also testified that one of the requirements of a licensed facility is
that the individuals attend or have a productive day program or competitive
employment, which the current individuals do. Moreover, she testified that the
individuals have to sign a contract with Mr. Zachewicz to be a part of the
program.6


                 Mr. Albanese testified that given the information of the property’s
proposed use and based on the definitions set forth in the Zoning Ordinance, he
determined that the closest definition of the proposed use of the property would be
a “personal care boarding home,” which requires 24-hour supervision.                  Mr.


       6
           Ms. Scott testified that under the terms of the contract:

                 [The individuals] have to be able to function in a group setting.
                 They have to be able to be respectful of the people in their home,
                 respectful of the staff that are there, they have to take their
                 medications, they have to attend doctors’ appointments, they have
                 to have some sort of program outside of the program.

(Transcript of Hearing, 3/26/14, at 74-75.)




                                                   5
Albanese testified that partial CRRS is permitted as a conditional use in the Mixed
Use (M) and R-3 Zoning Districts within the Borough.


              By a unanimous vote, the Council rejected the application, finding
that Landowners have failed to meet their burden of proof in demonstrating the
exclusionary characteristics of the Zoning Ordinance.


              Landowners appealed to the trial court which found that the de jure
exclusion of group living facilities that had no supervision or less than 24-hour
onsite supervision was unconstitutionally exclusionary. The trial court found that
because the Zoning Ordinance constitutes a de jure exclusion of partial CRRS
facilities, Landowners are entitled to specific relief and should be permitted to
operate a licensed partial CRRS on their property. However, the trial court also
ordered that the Zoning Ordinance be cured to allow the operation of partial
CRRSs as a permitted use in the C-1 Zoning District. This appeal by the Borough
followed.7


              On appeal, the Borough argues that the Zoning Ordinance does not
totally exclude the use for a licensed partial CRRS in the Borough. It argues that


       7
         In a zoning appeal where the trial court has taken no additional evidence, our scope of
review is limited to determining whether the zoning hearing board has committed an error of law
or an abuse of discretion. Catholic Social Services Housing Corporation v. Zoning Hearing
Board of Edwardsville Borough, 18 A.3d 404 (Pa. Cmwlth. 2011). An abuse of discretion
occurs when the findings of the zoning hearing board are not supported by substantial evidence.
Id. Substantial evidence means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id.




                                               6
although the use of property as a licensed partial CRRS is not a permitted or a
conditional use within the C-1 Zoning District, it is permitted as a conditional use
in the M and R-3 Zoning Districts.


             A zoning ordinance is presumptively valid and constitutional. Ficco
v. Board of Supervisors, 677 A.2d 897, 899 (Pa. Cmwlth. 1996). “However, an
ordinance that effects a total prohibition of an otherwise legitimate business use is
particularly suspect.”   Atiyeh v. Board of Commissioners of the Township of
Bethlehem, 41 A.3d 232, 236 (Pa. Cmwlth. 2012).              A party challenging the
lawfulness of the ordinance bears the burden of proving that the ordinance
completely excludes a legitimate use. Id. Once the challenger’s burden is met, the
burden shifts to the municipality to show that the exclusion is substantially related
to the promotion of public health, safety and welfare. Id.


             Moreover, simply because a zoning ordinance does not specifically
mention a proposed use is not a basis for finding an unconstitutional exclusion of
that use. Id. Rather, in such cases, the court must determine whether the proposed
use is included within another specifically provided for use in the ordinance. Id.
In making this determination, we must construe the ordinance expansively,
“affording the landowner the broadest possible use and enjoyment of his or her
land,” and give undefined terms their plain meaning. Id.


             A major difference between a full-care CRRS and a partial CRRS is
that the full-care facility must have 24-hour onsite supervision, whereas for a
partial CRRS, supervision is on a “regularly scheduled basis.”         55 Pa. Code



                                         7
§5310.6.8 It is uncontroverted that the Zoning Ordinance does not allow for a
partial CRRS in the C-1 Zoning District. In fact, the Zoning Ordinance does not
permit the operation of any CRRSs in the C-1 Zoning District.9 The Borough


       8
           “Full-care CRRS for adults” is defined by the Pennsylvania Code as:

                A program that provides living accommodations for the client with
                staff onsite whenever a client is there and a full range of personal
                assistance and psycho-social rehabilitation for psychiatrically
                disabled adults who display severe community adjustment
                problems and who require an intensive, structured living situation.

55 Pa. Code §5310.6 (emphasis added).

       “Partial-care CRRS” is defined as:

                A program that provides living accommodations for the client.
                Staff is at the site on a regularly scheduled basis including
                evenings and weekends. A limited range of personal assistance
                and psychosocial services are provided for psychiatrically disabled
                adults who display community adjustment problems and require a
                living situation which includes rehabilitation and training services.

Id. (emphasis added).

       9
         Under Sections 305 and 306 of the Zoning Ordinance, governing R-3 Multifamily
Residential and M – Mixed Use Districts, respectively, group residences and personal care
boarding homes are permitted as conditional uses. However, while the Zoning Ordinance
permits a “group residence” and a “personal care boarding home,” a “group residence” is defined
as:

                [A] facility located in a residential area which provides room,
                board and specialized services to eight (8) or fewer unrelated
                persons, such as children (under 18 years of age), handicapped or
                elderly (over 60 years of age) individuals. These individuals must
                be living together as a single housekeeping unit with one (1) or
                more qualified adults providing twenty-four (24) hour supervision.
                The group residence may be operated by a governmental agency,
                certified agent or nonprofit corporation. This category shall not
(Footnote continued on next page…)

                                                 8
argues that the Zoning Ordinance permits the use of property as a licensed partial
CRRS within the M and R-3 Zoning Districts as a “group residence” or a “personal
care” home. For the Zoning Ordinance not to be de jure exclusionary, though,
group living uses that provide less than 24-hour supervision, such as partial CRRS
facilities, must be allowed within another use that is specifically provided for in the
Zoning Ordinance.        In this case, both applicable definitions in the Zoning
Ordinance expressly require that 24-hour supervision must be provided in CRRS-
type facilities and, thus, excludes a partial CRRS use even within the M and R-3
Zoning Districts, much less the C-1 Zoning District.




(continued…)

              include facilities operated by or under the jurisdiction of any
              government bureau of corrections or similar institution.

(R. 466a) (emphasis added).

       A “personal care board home” is defined as:

              [A]ny premises, operated for consideration or not, in which food,
              shelter and personal assistance or supervision are provided for on
              a twenty-four (24) hour per day basis for a minimum of three (3)
              persons and a maximum of eight (8) persons who require
              assistance or supervision in such matters as dressing, bathing, diet
              or medication prescribed for self administration [sic], but do not
              require hospitalization or care in a skilled nursing facility. These
              individuals may be children, handicapped, elderly, or otherwise in
              need of specialized supervision and care. This category of facility
              requires licensing, certification or supervision by the Pennsylvania
              Department of Welfare.

(R. 469a) (emphasis added).



                                               9
             The burden then shifts to the Borough to establish that this exclusion
is substantially related to the promotion of public health, safety and welfare. The
Borough offers no justification as to its exclusion of partial CRRSs. It simply
asserts that, “What [Landowners] argue is that the [Borough] does not permit
partial [CRRSs] for the reason that the Borough requires a 24-hour supervision in a
personal care boarding home at a group residence, clearly to protect the health,
safety, and welfare of all the citizens of [the Borough].” (Appellant’s Brief at 21.)


             Because the Zoning Ordinance does not allow for a partial CRRS, and
the Borough has failed to justify the exclusion, we conclude that the Zoning
Ordinance is de jure exclusionary. Where an ordinance has been found to be de
jure exclusionary, Pennsylvania law entitles the successful challenger of the
ordinance to specific relief. H.R. Miller Co., Inc. v. Board of Supervisors of
Lancaster Township, 605 A.2d 321, 324-25 (Pa. 1992).


             Here, Landowners have established that the Zoning Ordinance is de
jure exclusionary with regard to a partial CRRS use.         Thus, Landowners are
entitled to specific relief and should be permitted to operate a licensed partial
CRRS on the third floor of their property and the Zoning Ordinance must be
amended to allow for partial CRRSs in the Borough’s C-1 Zoning District.


             Even if the Zoning Ordinance is de jure exclusionary as to group
living uses that provide less than 24-hour supervision, the Borough then contends
that the trial court could only order site specific relief and could not, as it did,
direct the Borough to adopt Landowners’ proposed curative amendment that would



                                         10
allow a partial CRRS as a permitted use in the C-1 Zoning District. We agree.
Once “the landowner has won the right to proceed, the curative amendment loses
its viability. The courts cannot order the municipality to take a specific legislative
action.” Board of Commissioners of Ross Township v. Harsch, 467 A.2d 1183,
1187 (Pa. Cmwlth. 1983).


             Accordingly, we affirm the trial court’s order insofar as it found the
Zoning Ordinance exclusion of the group living facilities with less than 24-hour
onsite supervision was de jure unconstitutional, and we reverse that portion of the
order directing the Borough to adopt Landowners’ proposed curative amendment.



                                       ____________________________________
                                       DAN PELLEGRINI, President Judge




                                         11
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Domenic F. Leone and                 :
Catherine V. Leone                   :
                                     :
             v.                      : No. 2065 C.D. 2014
                                     :
Borough of Rochester,                :
                 Appellant           :




                                    ORDER


             AND NOW, this 10th day of December, 2015, the order of the Court of
Common Pleas of Beaver County dated October 17, 2014, at No. 10724 of 2014, is
affirmed insofar as it found the Borough of Rochester’s Zoning Ordinance exclusion
of the group living facilities with less than 24-hour onsite supervision was de jure
unconstitutional, but reverse that portion of the order directing the Borough of
Rochester to adopt Domenic F. Leone’s and Catherine V. Leone’s proposed curative
amendment.



                                     ____________________________________
                                     DAN PELLEGRINI, President Judge
