Atiyeh v. Bd. of Comm’rs of Bethlehem Twp., 41 A.3d 232 (Pa. Commw. Ct. 2012).
Township's ordinance was de jure exclusionary where definition of treatment center did not include prisons and prisons were not permitted anywhere in the Township.
Arguing the Township’s Zoning Ordinance was de jureexclusionary and unconstitutional because it failed to permit the use of any land in the Township as a prison, Applicant submitted a substantive challenge to the validity of the ordinance and a proposed curative amendment. The Zoning Hearing Board concluded, based on testimony from a former deputy warden that the ordinance was not de jure exclusionary with respect to a prison use because the use was included in the definition of “treatment center,” a use permitted in the Township.
In reversing the Zoning Hearing Board’s decision, the Commonwealth Court held that, as defined by the Zoning Ordinance, the term “treatment center” was not sufficiently broad enough to encompass the use of a prison. Rather than encompassing prisons, as offered by the Township’s expert, the term “treatment center,” as defined by the Zoning Ordinance, specifically excluded prisons because it defined “treatment centers” as “[a] use (other than a prison or a permitted accessory use in a ‘hospital’) providing housing facilities….”
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