IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Department of Corrections, :
Department of General Services :
and Department of Human Services, :
Appellants :
:
v. : No. 588 C.D. 2021
: Argued: September 12, 2022
South Heidelberg Township Zoning :
Hearing Board :
:
v. :
:
South Heidelberg Township :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: December 9, 2022
The Department of Corrections (DOC), Department of General
Services, and Department of Human Services (collectively, Commonwealth) appeal
from the order of the Court of Common Pleas of Berks County (trial court) affirming
the decision of the South Heidelberg Township Zoning Hearing Board (Board) in
favor of South Heidelberg Township (collectively, Township). The Commonwealth
argues that Pennsylvania’s Prison and Parole Code (Parole Code) and Sentencing
Code1 preempt the Southwestern Berks County Zoning Ordinance of 2004
(Ordinance)2 to the extent the Ordinance precluded the Commonwealth from
1
61 Pa.C.S. §§ 101-7301; 42 Pa.C.S. §§ 9701-9799.75.
2
Sw. Berks Cnty., Pa., Zoning Ordinance (2004).
operating a correctional center on state-owned land. We agree and reverse the trial
court.
I. BACKGROUND
The Commonwealth owns the land at issue, which lies within the
Ordinance’s “Campus Employment” zoning district. See generally Ordinance, §
420.3 From 1998 to 2008, a private business operated a halfway house and drug and
alcohol treatment center on the land. In 2008, DOC took over and has operated the
Wernersville Community Corrections Center (Halfway House), which is also a drug
and alcohol treatment center.4 In 2018, Halfway House housed almost 900 parolees,
and as of July 2019, housed 181 parolees. Bd. Op., 2/11/20, at 10; Notes of
Testimony (N.T.) Hr’g, 7/15/19, at 338.5
The Township’s CE Campus Employment District is defined by
Section 420 of the Ordinance. Ordinance, § 420. In relevant part, Section 420.2 of
the Ordinance identifies over a dozen permitted uses in the district. Id. § 420.2(a)-
(m). The Ordinance does not permit a community correctional center or similar
facilities as a permitted use anywhere in the Township, including the Campus
Employment District. See generally Ordinance; accord Bd.’s Op. at 24; Twp.’s Br.
at 24 (stating that Halfway House “is not a use within the scope of permitted uses in
3
We quote from the Ordinance below.
4
Section 5001 of the Parole Code defines “community corrections center” as a “residential
program that is supervised and operated by [DOC].” 61 Pa.C.S. § 5001. We add that the
Commonwealth has also owned and operated a state hospital for mental health treatment on the
premises since the 19th century.
5
Halfway House has a two-year recidivism rate of 2.6% for new offenses and 7.8% for
technical violations. N.T. Hr’g, 6/10/19, at 177 (“We have a two-year recidivism rate of 2.6
percent . . . .”). We note this because the Board’s opinion states “2.8%” as the figure, which is an
apparent typographical error. Bd.’s Op. at 10.
2
the Campus Employment (CE) Zoning District”).6
In 2018, the Township’s Code Enforcement Officer cited the
Commonwealth for violating the Ordinance, specifically that the use of Halfway
House was not a permitted use as of right in the zoning district. Notice of Violation,
11/12/18, at 2. A few months later, the Commonwealth filed a form application with
the Board, which requested the applicant to identify the “type of application.” Appl.,
2/1/19, at 1. The Commonwealth indicated the following: (1) “[s]ubstantive
challenge to the validity of the Zoning Ordinance;” (2) “[a]ppeal from a
determination of the Zoning Officer;” (3) application for a variance; and (4)
application for a special exception. Id. at 1-2. The Commonwealth contended, inter
alia, that the Ordinance was preempted by state law. Id. at 6.
After several evidentiary hearings, the Board denied relief. In relevant
part, the Board concluded that the Ordinance was not preempted by state law. Bd.’s
Op. at 25. In the Board’s view, the Ordinance had no bearing on whether an offender
is paroled under the Sentencing and Parole Codes. Id. The Commonwealth timely
appealed to the trial court, which affirmed the Board. The Commonwealth timely
appealed to this Court and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.
II. ISSUES
The Commonwealth raises four issues. First, the Commonwealth
argues that the General Assembly has preempted the Ordinance with respect to
Halfway House. Second, the Commonwealth claims that the Ordinance improperly
excludes all uses similar to Halfway House’s use. Third, the Commonwealth argues
6
The Ordinance defines “group home” or “group lodge” as a permitted use, but explicitly
excludes from that definition “work release facilities for convicts or ex[-]convicts, or other housing
facilities serving as an alternative to incarceration,” i.e., Halfway House, as a permitted use.
Ordinance § 201(4).
3
in the alternative that the Ordinance nonetheless permits Halfway House’s use. Last,
the Commonwealth suggests that it should receive a variance by estoppel.
III. ARGUMENTS AND ANALYSIS7
In support of its first issue, the Commonwealth contends that to the
extent that the Parole and Sentencing Codes conflict with the Ordinance, the Codes
prevail. Commonwealth’s Br. at 17-18 (discussing TWL Realty, LLC v. W. Hanover
Twp. Zoning Hearing Bd., 132 A.3d 533 (Pa. Cmwlth. 2016) (TWL)). In the
Commonwealth’s view, TWL stands for the proposition that a township may not
enact an ordinance that bans the housing of violent offenders in a local work-release
or treatment facility when the Commonwealth has concluded those offenders
reasonably pose no risk to public safety. Id. at 18-19. The Commonwealth suggests
that TWL controls because, as in TWL, the Ordinance interferes with the
Commonwealth’s determination that an offender is suitable for placement in
Halfway House. Id. at 19.8
In TWL, this Court identified three forms of preemption: express, field,
and conflict. TWL, 132 A.3d at 537; accord Berner v. Montour Twp. Zoning Hearing
Bd., 217 A.3d 238, 247 (Pa. 2019). The TWL Court explained that under “conflict
7
Because the trial court did not take additional evidence, our standard of review is limited
to determining whether the Board abused its discretion or erred as a matter of law. In re
Charlestown Outdoor, LLC, 280 A.3d 948, 957 (Pa. 2022). As a general matter, our Supreme
Court noted that “the conflict that arises when a Commonwealth agency seeks to utilize real
property in a manner that conflicts with a municipal corporation’s zoning regulations is . . . a
contest between two instrumentalities of the state.” Dep’t of Gen. Servs. v. Ogontz Area Neighbors
Ass’n, 483 A.2d 448, 452 (Pa. 1984) (citation omitted).
8
The Township distinguishes TWL on the basis that the facility in TWL was privately
operated, unlike the instant DOC-operated facility. Twp.’s Br. at 19. Further, in the Township’s
view, TWL involved a “smaller community work-release program, and the parole board was taking
into consideration both the public’s safety and the needs of the offender to reintegrate into society.”
Id. at 19-20. The Township argues that no consideration was given to the public’s safety given
Halfway House’s size and that the “need of the offenders could be served in other communities at
a [lesser] impact.” Id. at 20.
4
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.” TWL, 132 A.3d at
537 (cleaned up).
For example, in Fross v. County of Allegheny, 20 A.3d 1193 (Pa. 2011),
our Supreme Court examined conflict preemption in resolving whether a county
ordinance was preempted by the Parole and Sentencing Codes. The county
ordinance at issue imposed certain residency restrictions on sex offenders. Fross,
20 A.3d at 1197. In resolving the issue, the Fross Court discussed the goals of the
relevant sections of the Parole and Sentencing Codes. Id. at 1196-97, 1203 (stating
the purposes of those Codes is the “rehabilitation, reintegration, and diversion from
prison of appropriate offenders” (citations omitted)). To achieve those goals, a
sentencing court may order a probationer to “reside in a facility established for the
instruction, recreation, or residence of persons on probation.” Id. at 1197. Similarly,
the Parole Board must approve the parolees’ residences at release. Id.
Allegheny County defended its ordinance as sound because it protected
the “health, safety, and welfare of their residents.” Id. at 1200. The plaintiffs
countered that Allegheny County usurped the Parole Board’s power to approve sex
offenders’ residences because the ordinance “essentially exclude[d]” all such
offenders from the county. Id. at 1201. In the plaintiffs’ view, the ordinance
improperly limited “the discretion of courts and of the Board in sentencing and
paroling,” as well as interfered with the goals of the Parole and Sentencing Codes to
rehabilitate and reintegrate sex offenders into the community. Id.
Our Supreme Court explained that ordinances may be preempted if they
act “as an obstacle to the execution of the full purposes and objectives of the General
5
Assembly, as expressed in a state law.” Id. at 1203 (cleaned up). The Court
explicitly held that because the ordinance effectively excluded sex offenders from
most of Allegheny County, the ordinance conflicted with the Parole and Sentencing
Codes. Id. at 1204. Further, the ordinance undermined the Legislature’s policy
determination that “diverting offenders from prison” advances “the
Commonwealth’s interest in the timely and effective administration of probation and
parole.” Id. at 1205. Additionally, the Fross Court noted that it could not “be
seriously disputed that the ordinance [would] interfere with the efficient and timely
administration of the parole system and significantly affect the quality of the
Commonwealth’s probation and parole systems.” Id. (cleaned up). For these
reasons, the Court concluded that the county ordinance was preempted. Id. at 1207.
Our Court’s decision in TWL is also instructive. In that case, this Court
addressed whether a zoning ordinance restricted a privately-operated community
work-release facility, which was under contract with the DOC. TWL, 132 A.3d at
534. The zoning ordinance permitted such a facility if it was limited to nonviolent
offenders. Id. The facility, however, began housing offenders who had committed
crimes of violence, which led to the township citing the facility for violating the
ordinance. Id. at 535. The court of common pleas ruled in favor of the facility
because the Parole and Sentencing Codes preempted the township’s zoning
ordinance. Id. That township appealed to this Court, which affirmed. Id.
The TWL Court held that the Parole and Sentencing 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.” TWL, 132 A.3d at 540. Therefore, the TWL Court reasoned, an
6
ordinance that bans “housing of offenders with violent criminal histories” conflicts
with the Commonwealth’s determination that such offenders may be safely housed
in a work-release facility. Id. The TWL Court also noted that if “the [o]rdinance 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.” Id.
Turning to the instant case, we initially disagree with the Township to
the extent it distinguished TWL on the basis that the TWL facility was privately
owned and the Parole Board in TWL considered the public’s safety. See Twp.’s Br.
at 19-20. The Township’s argument is not persuasive because the TWL Court did
not consider ownership a factor in resolving conflict preemption. See TWL, 132
A.3d at 540; accord Fross, 20 A.3d at 1204-05. Further, identical to the Parole
Board in TWL, the Parole Board’s decision to designate an offender as a parolee is
itself evidence that the offender poses little “risk to public safety.” See TWL, 132
A.3d at 540 (quoting 61 Pa.C.S. § 6137(g)(4)(iv)). Because the Township has not
persuasively distinguished TWL, we turn to the Ordinance.
Like the ordinances at issue in Fross and TWL, the Ordinance precludes
Halfway House’s use. See TWL, 132 A.3d at 534. Indeed, the TWL ordinance
merely precluded housing of violent offenders, whereas here the Ordinance does not
permit any use of a community correctional center in the Township. See id. The
Parole Board, much like the Parole Boards in TWL and Fross, cannot assign
qualified offenders to Halfway House because of the Ordinance. See id.; accord
Fross, 20 A.3d at 1197. The instant Ordinance, like the ordinances at issue in TWL
and Fross, conflicts with and undermines the Parole Board’s ability to assign
7
qualified offenders to an appropriate work-release facility. See Fross, 20 A.3d at
1204-05; TWL, 132 A.3d at 539-40. To paraphrase the Fross Court, the instant
Ordinance bars Halfway House’s use and unduly interferes with the efficient and
timely administration of Pennsylvania’s probation and parole systems. Cf. Fross,
20 A.3d at 1205. The Ordinance, which bans Halfway House’s use, conflicts with
“the Commonwealth’s determination that an offender is suitable for placement in”
Halfway House. Cf. TWL, 132 A.3d at 540. Accordingly, the Commonwealth is
due relief.
IV. CONCLUSION
For these reasons, because the Board and trial court misconstrued the
applicable law regarding conflict preemption, we reverse the trial court’s order, and
we need not address the Commonwealth’s remaining issues. See In re Charlestown
Outdoor, 280 A.3d at 957; Metalico Pittsburgh Inc. v. Newman, 160 A.3d 205, 214
n.15 (Pa. Super. 2017).9
LORI A. DUMAS, Judge
Judge Wallace did not participate in the decision in this case.
9
It is well settled that we may cite Superior Court cases for their persuasive value.
Commonwealth v. Monsanto Co., 269 A.3d 623, 653 n.20 (Pa. Cmwlth. 2021).
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Department of Corrections, :
Department of General Services :
and Department of Human Services, :
Appellants :
:
v. : No. 588 C.D. 2021
:
South Heidelberg Township Zoning :
Hearing Board :
:
v. :
:
South Heidelberg Township :
ORDER
AND NOW, this 9th day of December, 2022, the April 29, 2021 order
of the Court of Common Pleas of Berks County is REVERSED.
LORI A. DUMAS, Judge