          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


TWL Realty, LLC and Keystone           :
Correctional Services, Inc.            :
                                       :
                  v.                   :
                                       :
West Hanover Township Zoning           :
Hearing Board                          :
                                       :
                  v.                   :   No. 17 C.D. 2015
                                       :   Argued: September 14, 2015
Board of Supervisors of West           :
Hanover Township                       :
                                       :
Appeal of: West Hanover Township       :



BEFORE:     HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
            HONORABLE MARY HANNAH LEAVITT, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION BY
JUDGE LEADBETTER                           FILED: January 5, 2016


            The Board of Supervisors (Board) of West Hanover Township appeals
from the order of the Court of Common Pleas of Dauphin County, which reversed
the decision of the West Hanover Township Zoning Hearing Board (ZHB)
upholding the validity of Sections 195-10 and 195-103.T(8) of the Township’s
zoning ordinance (Ordinance). We affirm.
            Appellee, TWL Realty, LLC, is the owner of a 3.8-acre parcel of land
located at 7201 Allentown Boulevard in West Hanover Township (Township).
The property is located in a Commercial Highway (CH) zoning district. The
property contains a 44,000 square foot building in which Appellee, Keystone
Correctional Services, Inc., operates a privately owned community work-release
facility under a contract with the Commonwealth’s Department of Corrections
(Department). Keystone has operated at this location since September 2008 under
two contracts with the Department. Under the first contract, which ran from
September 2008 until July 1, 2013, Keystone had the option to reject offenders
referred to them by the Department. Under the second contract, which runs from
July 1, 2013 until June 30, 2016, Keystone is required to accept all offenders
referred to it by the Department, regardless of criminal history. Under the first
contract, Keystone accepted both parolee referrals from the Parole Board and pre-
release offenders who were within a certain number of months from their
minimum sentencing dates. Reproduced Record (R.R.) at 130a-31a; Notes of
Testimony at 19-20. Under the second contract, Keystone accepts only parolee
referrals from the Parole Board. Id.
             Sections 195-10 and 195-103.T(8) of the Ordinance address the
operation of community work-release facilities within the Township.      “Work-
release facility” is defined as:

             A facility providing housing and supervision for
             nonviolent criminals who are within six months of
             completion of their term or release and who have the
             opportunity to work, go to school, or take job training.

Section 195-10 of the Ordinance.       R.R. at 230a.   Section 195-103.T of the
Ordinance provides for the operation of work-release facilities in the CH zoning
district and limits the number of residents to 150. Further, Section 195-103.T(8)
specifies that “[o]nly nonviolent crime detainee residents shall be permitted to



                                        2
reside in the premises.” The Ordinance does not define “nonviolent criminals” or
“nonviolent crime detainee.”1
             The Township zoning administrator issued to Keystone a notice of
violation dated August 26, 2013, based upon the residency of two residents, who
were convicted of Tier #3 sexual offenses and were listed on the Megan’s Law
Registry.    The zoning administrator stated that because the offenders had
committed Tier #3 sex offenses, the Township considered them to be violent
offenders and their residence at Keystone’s facility violated Sections 195-10 and
195-103.T(8) of the Ordinance.         Subsequently, the Department removed the
offenders from Keystone’s facility.
             Keystone filed an appeal from the notice of violation challenging the
zoning administrator’s interpretation of Sections 195-10 and 195-103.T(8) or, in
the alternative, challenging the substantive validity of the sections. After holding
hearings on the appeal, the ZHB denied Keystone’s appeal. The ZHB concluded
that the zoning administrator interpreted “violent criminal” as a person who
committed a “crime of violence.” ZHB’s December 4, 2013 Opinion at 6; R.R.
11a. The ZHB further concluded that the zoning administrator’s interpretation of
“nonviolent criminal” is consistent with Section 195-103.T(8)’s “nonviolent
detainee,” which focuses on the objective nature of the crime and not subjective
speculation as to whether an offender poses a risk to the public safety at the time of
parole. Id. The ZHB concluded that the zoning administrator’s interpretation of
Sections 195-10 and 195-103.T(8) were correct. Id. at 7; R.R. 12a. The ZHB
rejected Keystone’s reliance upon Fross v. County of Allegheny, 20 A.3d 1193 (Pa.

    1
       Keystone entered the second contract knowing that Sections 195-10 and 195-103.T(8)
limited residency to “nonviolent criminals” or “nonviolent crime detainee.”



                                           3
2011), and held that the Ordinance sections were not in conflict with the Prisons
and Parole Code, 61 Pa. C.S. §§ 101-6309, or the Sentencing Code, 42 Pa. C.S. §§
9701 - 9799.9, and therefore, not subject to conflict preemption. Id. at 7-8; R.R.
12a-13a. Relying upon Commonwealth v. Ogontz Area Neighbors Association,
483 A.2d 448 (Pa. 1984), the ZHB stated that Commonwealth agencies, including
the Department, are required to comply with local zoning ordinances. Id. at 8;
R.R. 13a. The ZHB determined that the Ordinance lacked an exclusionary impact
because it permits, rather than excludes, work-release facilities and permits violent
criminals to reside in detention centers within the Township. Id. at 9; R.R. 14a.
Finally the ZHB concluded that the prohibition against violent criminals residing in
work-release facilities is analogous to a limitation on the number of residents
permitted under Section 195-103.T(4), which the Commonwealth Court in TWL
Realty, LLC v. Board of Supervisors of West Hanover Township (Pa. Cmwlth., No.
325 C.D. 2012, filed Nov. 28, 2012) held to be a valid exercise of zoning powers.
             Keystone appealed to the court of common pleas, which reversed the
decision of the ZHB, concluding that the Ordinance sections were preempted by
the Parole and the Sentencing Codes. Common pleas relied upon Fross, in which
our Supreme Court considered whether an Allegheny County ordinance, which
imposed stringent residency restrictions on sex offenders in the county, was
preempted by the Parole Code and Megan’s Law. Ultimately, the Supreme Court
held that the county’s ordinance interfered with both statewide statutory schemes,
and, therefore, was preempted under the doctrine of conflict preemption. In the
present case, therefore, common pleas concluded that Sections 195-10 and 195-
103.T(B) obstructed the “full purposes and objectives” of Pennsylvania state law,
specifically the Sentencing Code and Parole Code. Common Pleas’ Opinion at 5;



                                         4
R.R. 185a. Common pleas rejected the ZHB’s conclusion that community safety
required the ordinances because work-release facilities have “substantially less
security” than other facilities, such as detention centers. Id. Common pleas stated
that the Parole Code provides that the Parole Board may approve an eligible
offender for parole if there is no reasonable indication of the offender posing a risk
to public safety and if the offender’s reentry plan is “adequate.” Id. at 5-6; R.R.
185a-86a (citing 61 Pa. C.S. § 6137(g)(4) and Fross, 20 A.3d at 1197).
             Moreover, common pleas noted that the Parole Board is charged with
balancing public safety with rehabilitation of offenders and that Sections 195-10
and 195-103.T(8) of the Ordinance are incongruous with the Parole Board’s
authority. Id. at 6; R.R. 186a. Common pleas concluded that

             The ordinances restrict the Parole Board’s ability to refer
             parolees to the facility, even after the Board has
             determined that the offender’s reentry plan is adequate
             and that there is no reasonable indication that the
             offender poses a risk to public safety. This restriction
             interferes with the statewide statutory scheme developed
             to achieve the legislature’s policy goal of a balance
             between public safety and rehabilitation. As such, state
             law preempts the sections at issue and invalidates them.

Id. Common pleas rejected Appellees’ argument that the Ordinance sections are
not preempted by state law because other facilities are available in which violent
offenders may be placed, such as detention centers. Common pleas held that work-
release facilities are unique from other facilities that house offenders because such
facilities provide offenders with the opportunity to work in, contribute to, and
reintegrate to the community.       Id. at 6-7; R.R. 186a-87a.       Common pleas
concluded that when the Parole Board or a sentencing court has determined that a



                                          5
specific work-release facility is an appropriate residence for an offender, in
accordance with state law and the offender’s reentry plan, local zoning ordinances
may not contravene that determination. Id. at 7; R.R. 187a. This appeal followed.
               The Board argues that its decision is supported by substantial
evidence and its interpretation of the Ordinance must not be disturbed. The Board
contends that it properly relied upon Section 9714(g) of the Sentencing Code, 42
Pa. C.S. § 9714(g),2 which enumerates the crimes defined as “crimes of violence”

    2
      Section 9714(g) provides:
              As used in this section, the term “crime of violence” means murder
              of the third degree, voluntary manslaughter, manslaughter of a law
              enforcement officer as defined in 18 Pa.C.S. § 2507(c) or (d)
              (relating to criminal homicide of law enforcement officer), murder
              of the third degree involving an unborn child as defined in 18
              Pa.C.S. § 2604(c) (relating to murder of unborn child), aggravated
              assault of an unborn child as defined in 18 Pa.C.S. § 2606 (relating
              to aggravated assault of unborn child), aggravated assault as
              defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated
              assault), assault of law enforcement officer as defined in 18
              Pa.C.S. § 2702.1 (relating to assault of law enforcement officer),
              use of weapons of mass destruction as defined in 18 Pa.C.S. §
              2716(b) (relating to weapons of mass destruction), terrorism as
              defined in 18 Pa.C.S. § 2717(b)(2) (relating to terrorism),
              trafficking of persons when the offense is graded as a felony of the
              first degree as provided in 18 Pa.C.S. § 3002 (relating to
              trafficking of persons), rape, involuntary deviate sexual
              intercourse, aggravated indecent assault, incest, sexual assault,
              arson endangering persons or aggravated arson as defined in 18
              Pa.C.S. § 3301(a) or (a.1) (relating to arson and related offenses),
              ecoterrorism as classified in 18 Pa.C.S. § 3311(b)(3) (relating to
              ecoterrorism), kidnapping, burglary as defined in 18 Pa.C.S. §
              3502(a)(1) (relating to burglary), robbery as defined in 18 Pa.C.S.
              § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), or robbery of a
              motor vehicle, drug delivery resulting in death as defined in 18
              Pa.C.S. § 2506(a) (relating to drug delivery resulting in death), or
              criminal attempt, criminal conspiracy or criminal solicitation to
              commit murder or any of the offenses listed above, or an
(Footnote continued on next page…)


                                                6
to determine which offenders qualify as “nonviolent criminals” or “nonviolent
crime detainees” under the Ordinance. By relying upon Section 9714(g), the
Board argues that it used an objective standard to classify offenders and thus acted
in a non-arbitrary and reasonable fashion.
              The Board also asserts that the Ordinance is not preempted by state
law.    The Board states that unlike Fross, there is no evidence of record
demonstrating that the full purposes and objectives of the Sentencing and Parole
Codes are being obstructed by the Ordinance. The Board argues that there was no
testimony that a class of individuals would be deprived of housing, or that the
Parole Board would in any way be prevented from placing offenders at separate
facilities properly zoned to house violent offenders.              The Board notes that
Keystone was able to return to the Department’s custody the two offenders that
prompted the notice of violation and thus, there was no evidence that the
Ordinance barred a single reentry plan approved by the Parole Board. The Board
also argues that the Ordinance supports the goals of the Parole Board because
violent offenders serving the remainder of their sentences are not completely
excluded from the Township since they may be housed in detention centers. The
Ordinance controls in which facility violent offenders may be housed given the
Township’s legitimate public health, safety, moral and general welfare concerns.
Finally, the Board asserts that common pleas erred by failing to give any deference
to the Township or the ZHB as required by Ogontz.

_____________________________
(continued…)
               equivalent crime under the laws of this Commonwealth in effect at
               the time of the commission of that offense or an equivalent crime
               in another jurisdiction.
42 Pa. C.S. § 9714.



                                              7
             Turning first to the preemption argument, there are three forms of
preemption in Pennsylvania, express preemption, field preemption, and conflict
preemption. Holt’s Cigar Co. v. City of Phila., 10 A.3d 902 (Pa. 2011). Under
conflict preemption, any local ordinance that contradicts, contravenes, or is
inconsistent with a state statute is invalid. Id. For conflict preemption to be
applicable, the conflict between the statute and the ordinance must be
irreconcilable. Id.; City Council of the City of Bethlehem v. Marcincin, 515 A.2d
1320, 1326 (Pa. 1986). Further, the local ordinance in question must be considered
in light of the objectives of the General Assembly and the purposes of the relevant
statute, and the local ordinance may not stand as an obstacle to the execution of
those objectives and purposes. Holt’s Cigar Co.; Huntley & Huntley, Inc. v.
Borough Council of the Borough of Oakmont, 964 A.2d 855, 862-63 (Pa. 2009).
However, a municipality “may make such additional regulations in aid and
furtherance of the purpose of the general law as may seem appropriate to the
necessities of the particular locality and which are not in themselves
unreasonable.” Holt’s Cigar Co., 10 A.3d at 907 [citing Mars Emergency Med.
Servs., Inc. v. Twp. of Adams, 740 A.2d 193, 195 (Pa. 1999)].
             In Fross, Allegheny County amended its county code to add a new
chapter entitled “Residence Requirements; Registered Sex Offenders,” which
prohibited offenders listed on the Megan’s Law registry from living within 2500
feet of a child care facility, community center, public park or recreational facility
or school. In practice, sex offenders would have been prohibited from living in the
vast majority of the habitable and developed areas of Allegheny County. The
validity of the ordinance was challenged by various sex offenders who argued that
the ordinance was invalid under the doctrine of conflict preemption.



                                         8
               The Supreme Court held that the General Assembly in Section
9721(b) of the Sentencing Code, 42 Pa. C.S. § 9721(b),3 expressly listed among its
purposes for adopting the Sentencing and Parole Codes the rehabilitation,
reintegration, and diversion from prison of appropriate offenders. 20 A.3d at 1203.
Further, in Section 6137(a)(1) of the Parole Code, 61 Pa. C.S. § 6137(a)(1),4 the
General Assembly made a determination that sex offenders, as a class, are eligible
for parole and may benefit from these Commonwealth policies and that the best
method for offering parole is to provide released offenders with familiar and stable
environments that promote family and community ties, and provide access to
employment, counseling and supervision.                Id. at 1204.       The Supreme Court
concluded that the ordinance failed to acknowledge and effectively subverted the
goals of the General Assembly.



    3
       Section 9721(b) of the Sentencing Code provides, in relevant part:
               In selecting from the alternatives set forth in subsection (a), the
               court shall follow the general principle that the sentence imposed
               should call for confinement that is consistent with the protection of
               the public, the gravity of the offense as it relates to the impact on
               the life of the victim and on the community, and the rehabilitative
               needs of the defendant.
42 Pa. C.S. § 9721(b).
    4
       Section 6137(a)(1) of the Parole Code provides:
               (1) The [Parole Board] may parole subject to consideration of
               guidelines established under 42 Pa. C.S. § 2154.5 (relating to
               adoption of guidelines for parole) and may release on parole any
               inmate to whom the power to parole is granted to the [Parole
               Board] by this chapter…:
                   (i) The best interests of the inmate justify or require that the
                   inmate be paroled.
                   (ii) It does not appear that the interests of the Commonwealth
                   will be injured by the inmate’s parole.
61 Pa. C.S. § 6137(a)(1).



                                                9
               Additionally, the Supreme Court determined that the ordinance failed
to take into account the General Assembly’s policy determination to facilitate the
diversion of offenders from prison and the Commonwealth’s interest in the timely
and effective administration of probation and parole as expressed in Section
9791(a)(5) of the Sentencing Code, 42 Pa. C.S. § 9791(a)(5), and Section 6102(1)
and (3) of the Parole Code, 61 Pa. C.S. § 6102(1) and (3).5 The Supreme Court
concluded that the added level of difficulty in devising adequate plans for release
in Allegheny County could result in either probation or parole being granted under
conditions less likely to maximize rehabilitation and reintegration potential,
additional, and significant delays in processing the release of eligible offenders, or
a greater number of otherwise eligible offenders simply being denied parole. Id. at
1205. Sentencing courts and the Parole Board are required to assess individual
offenders regarding their suitability for probation or parole, and impose conditions
tailored to the offender. Id. at 1206. The ordinance’s 2500-foot prohibition would

    5
       Section 6102(1) and (3) of the Parole Code provide, in relevant part:
               The parole system shall operate consistently with the following
               provisions:
               (1) The parole system provides several benefits to the criminal
               justice system, including the provision of adequate supervision of
               the offender while protecting the public, the opportunity for the
               offender to become a useful member of society and the diversion
               of appropriate offenders from prison.
               ***
               (3) …the [Parole Board] and any other paroling entity shall
               address input by crime victims, assist in the fair administration of
               justice by ensuring the custody, control and treatment of paroled
               offenders, shall consider any applicable guidelines established by
               the commission and shall ensure that parole proceedings, release
               and recommitment are administered in an efficient and timely
               manner.
61 Pa. C.S. § 6102(1) and (3).



                                               10
obstruct the operation of the statewide statutory scheme by requiring courts and the
Parole Board to abandon the tailored and proportionate approach of the General
Assembly and attempt to devise new approaches that would satisfy the Allegheny
County’s wider-reaching restrictions. Id. The Supreme Court opined that to allow
the ordinance to stay in effect would, in essence, allow the Allegheny County to
“opt-out” of the statewide plan. Id.
               Finally, the Supreme Court rejected Allegheny County’s reliance
upon Ogontz. 20 A.3d at 1207 n.13. In Ogontz, the Supreme Court held that a
Commonwealth agency was permitted to acquire property, but the agency’s use of
the property as a mental health facility was subject to the municipality’s zoning
ordinance because the contest was between two equal instrumentalities of the state,
the agency and a home rule municipality. Id. (citing Ogontz, 483 A.2d at 455). In
Fross, the Supreme Court concluded that the direct conflict was between acts of
the General Assembly and a county ordinance, between which, the statewide
enactments prevail. Id. The Supreme Court concluded that the ordinance was in
conflict with the Parole and Sentencing and Codes and, therefore was preempted.
Id. at 1207.
               In TWL Realty, this Court upheld the validity of Section 195-
103.(T)(4) of the Ordinance which limited the number of offenders who could be
housed at Keystone’s facility to 150. The Department had approved the facility to
house up to 250 residents based on the standards established by the American
Correctional Association (ACA). Keystone argued that Section 195-103.(T)(4)
was invalid because local regulation of work-release facilities was preempted by
the Sentencing and Parole Codes because the Section 195-103.(T)(4) interfered
with the goals of rehabilitation, reintegration, and diversion of appropriate



                                        11
offenders. This Court held that the Ordinance would have been invalid if it
entirely excluded work-release facilities or limited the number of work-release
facilities in the Township or a particular zoning district. TWL Realty (Pa. Cmwlth.,
No. 325 C.D. 2015, filed Nov. 28, 2012), slip op. at 7-8. However, because the
ordinance expressly permitted such facilities in a CH zoning district, restriction on
occupancy to 150 residents was a permissible density regulation. Id. Further,
relying upon Ogontz, the Court stated that neither Pennsylvania statutes nor ACA
standards address the specific use of work-release facilities, such as the number of
offenders, or otherwise prevent municipal involvement relating to where such
facilities may be located. TWL Realty (No. 325 C.D. 2015, filed Nov. 28, 2012),
slip op. at 7-8.
              The TWL Realty Court rejected Keystone’s reliance upon Fross
because Section 195-103.(T)(4) did not have a similarly preclusive or exclusionary
effect as the Allegheny County ordinance. TWL Realty (Pa. Cmwlth., No. 325
C.D. 2015), slip op. at 9. The Court held that because Section 195-103.(T)(4)
permits work-release facilities in the Township, it advances the Commonwealth’s
goals of rehabilitation, reintegration, and diversion of appropriate offenders and
did not effectively preclude criminal offenders from residing in the Township as
was the effect of the Allegheny County ordinance. Id.
              We conclude that this case is more akin to Fross than to our prior
decision in TWL Realty. It is the purview of the sentencing courts and the Parole
Board to determine which offenders are appropriate for community work-release
programs.     The Pennsylvania Commission on Sentencing was charged with
adopting guidelines that the Parole Board must consider when paroling an




                                         12
offender.6 Section 2154.5 of the Sentencing Code, 42 Pa. C.S. § 2154.5. Section
9721(b) of the Sentencing Code charges the sentencing court with balancing the
protection of the public with the rehabilitative needs of the offender. Section
6137(a)(1) of the Parole Code requires the Parole Board, when determining
whether to parole an offender, to balance the best interests of the inmate with the
need to avoid injury to the Commonwealth’s interests, should the offender be
paroled. Section 6137(g)(4)(iv) of the Parole Code specifically provides that the
Parole Board may parole an offender only when “[t]here is no reasonable
indication that the inmate poses a risk to public safety.”                        61 Pa. C.S.
§6137(g)(4)(iv). Additionally, Section 6102(1) of the Parole Code states that the


    6
      Section 2154.5 of the Sentencing Code provides in relevant part:
       (a) Adoption. -- The commission shall adopt guidelines that shall be
       considered by the [Parole Board] and any other paroling entity when
       exercising its power to parole and reparole all persons sentenced by any
       court in this Commonwealth to imprisonment in any correctional
       institution. The guidelines shall do all of the following:
           (1) Give primary consideration to the protection of the public and to
           victim safety.
           ***
           (3) Be designed to encourage inmates and parolees to conduct
           themselves in accordance with conditions and rules of conduct set
           forth by the department or other prison facilities and the [Parole
           Board].
           (4) Be designed to encourage inmates and parolees to participate in
           programs….
           (5) Provide for prioritization of incarceration, rehabilitation and other
           criminal justice resources for offenders posing the greatest risk to
           public safety.
           (6) Use validated risk assessment tools, be evidence based and take
           into account available research relating to the risk of recidivism,
           minimizing the threat posed to public safety and factors maximizing
           the success of reentry.
42 Pa. C.S. § 2154.5.



                                                13
Parole Code provides several benefits to society including the provision of
adequate supervision of the offender while protecting the public, the opportunity
for the offender to become a useful member of society and the diversion of
appropriate offenders from prison.
            Taken together, the Sentencing and Parole Codes demonstrate that
when the Commonwealth places an offender in a particular work-release program,
the Commonwealth has determined that the offender’s placement is consistent with
both the public’s safety and the needs of the offender to reintegrate into society.
The Ordinance’s ban upon the housing of offenders with violent criminal histories
is in conflict with the Commonwealth’s determination that an offender is suitable
for placement in the work-release facility; a determination that includes a
conclusion that public safety would not be jeopardized by the offender. If the
Ordinance is allowed to stand, other municipalities will be able to enact similar
ordinances that contain more restrictive standards than the Sentencing and Parole
Codes, thus jeopardizing the Commonwealth’s parole scheme as embodied by the
Sentencing and Parole Codes.
            Accordingly, for the foregoing reasons, we affirm.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Judge




                                        14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


TWL Realty, LLC and Keystone          :
Correctional Services, Inc.           :
                                      :
                  v.                  :
                                      :
West Hanover Township Zoning          :
Hearing Board                         :
                                      :
                  v.                  :    No. 17 C.D. 2015
                                      :
Board of Supervisors of West          :
Hanover Township                      :
                                      :
Appeal of: West Hanover Township      :


                                 ORDER


            AND NOW, this 5th day of January, 2016, the order of the Court of
Common Pleas of Dauphin County is hereby AFFIRMED.




                                   _____________________________________
                                   BONNIE BRIGANCE LEADBETTER,
                                   Judge
