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Key Topic: Zoning Validity Challenges

Municipality is not permitted through its zoning ordinance to regulate matters of parole and probation. The Commonwealth, alone, determines whether a Department of Corrections resident is a potential menace to public safety, and if the resident is permitted to enter a "work-release facility."

TWL Realty, LLC v. W. Hanover Twp. Zoning Hearing Bd., 2016 Pa. Commw. LEXIS 8 (Pa. Commw. Ct. 2016).

Applicant owned an approximately four acre parcel of land in the Township's Commercial Highway Zoning District.  The property contained a privately owned community work-release facility that had been in operation for five years.  Under a new contract, the facility was required to accept all offenders sent to it by the Commonwealth's Department of Corrections.  The Zoning Ordinance defined "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."  Such facilities were permitted in the Zoning District but must limit residents to no more than 150 "nonviolent crime detainee residents," and neither "nonviolent criminals" nor "nonviolent crime detainee" are defined by the Zoning Ordinance.

The Township Zoning Officer issued Applicant a notice of violation due to the residency of two individuals convicted of Tier #3 sexual offenses and who were listed on the Megan's Law Registry. The Zoning Officer stated that the Township considered those individuals to be violent offenders and their residence at Applicant's facility violated the Zoning Ordinance.  The Department removed the offenders and Applicant filed an appeal from the notice of violation challenging the Zoning Officer's interpretation of the Zoning Ordinance and, in the alternative, challenged the substantive validity of the Zoning Ordinance.

On appeal, the Commonwealth Court stated "it is the purview of the sentencing courts and the Parole Board to determine which offenders are appropriate for community work-release programs."   The "sentencing court [is charged] with balancing the protection of the public with the rehabilitative needs of the offender."   In addition, "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.'"  It is clear, then, that the Commonwealth determines when a particular offender is a potential detriment to public safety.  The Court determined that if the Zoning Ordinance could stand, other municipalities could enact similar ordinances that would restrict the Commonwealth's Sentencing and Parole Codes, thereby "jeopardizing the Commonwealth's parole scheme…."  Thus, the Commonwealth Court determined that the Zoning Ordinance was invalid with respect to that section.


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