Posted by: Patricia Salkin | April 20, 2012

PA Appeals Court Finds Ordinance’s Complete Exclusion of a Prison from Township is De Jure Exclusionary

Abraham Atiyeh, appellant, owned property in a General Industrial Zone in the Township of Bethlehem. Atiyeh was seeking to build and operate a private prison on his land. However, under the Bethlehem Township Zoning Ordinance, a prison was not permitted on any land in the township. Atiyeh challenged the ordinance claiming that it was de jure exclusionary and therefore unconstitutional. The Board of Commissioners rejected his challenge, finding that a “treatment center” which was a permitted use under the ordinance, encompassed a prison and the ordinance was therefore not de jure exclusionary and the trial court affirmed their decision. The trial court affirmed the Board’s decision and Atiyeh appealed. 

In describing the test for a de jure challenge, the Court explained that, while ordinances are presumptively valid, a challenger can rebut the presumption of validity by demonstrating that the ordinance completely excludes a legitimate use. Once this is established, the burden shifts to the municipality to show that the exclusion is substantially related to the promotion of public health, safety and welfare. 

Atiyeh alleged that the board erred as a matter of law in concluding that a treatment center encompassed the use of a prison. The court held that, because the ordinance does not explicitly provide for a prison within the township, it must be encompassed within another use that is specifically provided for in the ordinance. The court rejected the Boards conclusion that a prison was encompassed within a “treatment center” as the ordinance’s definition of a treatment center explicitly excluded a prison. 

Having established that the prison is not a permitted use, the burden shifted to the municipality to show that the exclusion was substantially related to the promotion of public health safety and welfare.  Because the board advanced no justification to support an exclusion of a prison, and the court found no evidence that Atiyeh’s plans would be injurious to the public health, safety and welfare, the ordinance’s complete exclusion of a prison was de jure exclusionary. 

Atiyeh then alleged that he was entitled to relief in the form of approval of his plan. The court held that where the cause of an ordinance’s invalidity is a de jure exclusion of a legitimate use, the sole remedy is to allow the use somewhere in the municipality and that equity dictated that this opportunity fall to Atiyeh.  Therefore the court ordered that the plaintiff be allowed to develop a prison on the property.

Atiyeh v. Bd. of Com’rs of Twp. of Bethlehem, 180 C.D. 2011, 2012 WL 1134064 (Pa. Commw. Ct. Apr. 5, 2012) 

The opinion can be accessed at:


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