Posted by: Patricia Salkin | May 9, 2016

PA Appeals Court Holds State Sentencing and Parole Guidelines Preempt Local Zoning with Respect to Work Release Facility

TWL Realty, LLC, is the owner of land zoned Commercial Highway (CH) and appellee, Keystone Correctional Services, Inc., operates a privately owned community work-release facility building on that land under a contract with the Commonwealth’s Department of Corrections. Sections 195–10 and 195–103.T(8) of the Township Ordinance defines “Work-release facility” 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 195–103.T of the Ordinance allows work-release facilities in the CH zoning district and limits the number of residents to 150. Section 195–103.T(8) specifies that “only nonviolent crime detainee residents shall be permitted to reside in the premises.” The Ordinance did not define “nonviolent criminals” or “nonviolent crime detainee.”

The Township issued Keystone a violation based on two residents who were convicted of Tier # 3 sexual offenses and were listed on the Megan’s Law Registry. The Township considered them to be violent offenders and their residence at Keystone’s facility violated Sections 195–10 and 195–103.T(8). The Department removed the offenders from Keystone’s facility. Keystone appealed 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. The ZHB denied Keystone’s appeal concluding that the zoning administrator interpreted “violent criminal” as a person who committed a “crime of violence.” Further, the interpretation of “nonviolent criminal” was consistent with Section 195–103.T(8)’s “nonviolent detainee,” which focused 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. The ZHB held that the Ordinance sections were not in conflict with the Prisons and Parole Code or the Sentencing Code, and therefore, not subject to conflict preemption. The Board determined that the Ordinance lacked an exclusionary impact because it permitted work-release facilities and permitted violent criminals to reside in detention centers within the Township. Lastly, the prohibition against violent criminals residing in work-release facilities was like 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. 2012 WL 8666779) held to be a valid exercise of zoning powers. In TWL Realty the 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 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.

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 of Pennsylvania. When the Parole Board or a sentencing court determines that a 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. The ordinances restriction interfered with the statewide statutory scheme developed to achieve the legislature’s policy goal of a balance between public safety and rehabilitation.

On appeal the Commonwealth Court affirmed stating that under Pennsylvania law, conflict preemption, any local ordinance that contradicts, contravenes, or is inconsistent with a state statute is invalid. For conflict preemption to be applicable, the conflict between the statute and the ordinance must be irreconcilable. 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, 600 Pa. 207, 964 A.2d 855, 862–63 (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.

In Fross, Allegheny County amended its county code to add a new chapter 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. These sex offenders would have been prohibited from living in the vast majority of the habitable and developed areas of Allegheny County.

The Supreme Court concluded that the ordinance failed to acknowledge and effectively subverted the goals of the General Assembly. The General Assembly expressly listed among its purposes for adopting the Sentencing and Parole Codes the rehabilitation, reintegration, and diversion from prison of appropriate offenders. The best method for offering parole was to provide released offenders with familiar and stable environments that promote family and community ties, and provide access to employment, counseling and supervision. Additionally, 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. 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.

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 was 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 was allowed to stand, other municipalities would be able to enact similar ordinances that contained more restrictive standards than the Sentencing and Parole Codes, thus jeopardizing the Commonwealth’s parole scheme as embodied by the Sentencing and Parole Codes.

TWL Realty v West Hanover Township Zoning Hearing Board, 132 A.3d 533 (Pa Cmwlth 1/5/2016)

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