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A drug and alcohol treatment facility qualifies as a “dwelling” under the Fair Housing Act – even if its average stay is just two weeks – because its patients “treat the facility like a home,” the 3rd U.S. Circuit Court of Appeals has ruled. The decision in Lakeside Resort Enterprises v. Board of Supervisors of Palmyra Township reverses a decision by U.S. District Judge Richard Caputo of the Middle District of Pennsylvania that tossed out a FHA claim just before it was set to go to a jury. In the suit, the owners of a resort in Pike County, Pa., claimed they had struck a $1.75 million deal to sell a hotel to Greenaway Inc., which intended to use the building as an addiction treatment center. But the deal fell apart, the suit said, when Palmyra Township’s board of supervisors passed a zoning ordinance in January 2001 that prohibited drug and alcohol treatment facilities in its “community commercial” zones. After losing the sale, Lakeside sued the township in federal court, claiming that the ordinance violated both the FHA and the Americans with Disabilities Act (ADA). The suit went to trial, but Caputo dismissed the FHA claim just before jury deliberations began. The jury then handed up a verdict that exonerated the township on the ADA claim. Now the 3rd Circuit has ruled that Caputo erred in tossing out the FHA claim on the grounds that a drug treatment center does not qualify as a dwelling due to trial testimony that showed its patients would stay on average just 14.8 days. Caputo, in granting the township’s motion for judgment as a matter of law, held that the facility did not meet the FHA’s definition of a “dwelling” because 14.8 days is not a “significant period of time,” and because patients would be like “mere transients” since they would not view the facility as a permanent residence and would be there solely for treatment. But a unanimous three-judge panel of the 3rd Circuit found that Caputo took too narrow a reading of the statute, and that courts must give a “generous construction” to the FHA’s “broad and inclusive” language. U.S. Circuit Judge Thomas L. Ambro, in an opinion joined by 3rd Circuit Senior Judge Walter K. Stapleton and visiting U.S. District Judge Tom Stagg of the Western District of Louisiana, noted that the 3rd Circuit has previously held that a nursing home and a summer bungalow qualify as dwellings under the FHA, while also writing “approvingly” of decisions from other courts that said a motel cannot be deemed a dwelling, but that an AIDS hospice and a children’s home did qualify. Although the term “residence” is not defined in the FHA, Ambro found that courts have consistently applied a dictionary definition, under which a residence is “a temporary or permanent dwelling place, abode or habitation to which one intends to return as distinguished from the place of temporary sojourn or transient visit.” In the summer bungalow case, United States v. Columbus Country Club, Ambro said, the 3rd Circuit announced two factors courts should use in deciding whether a facility is a dwelling – whether it is “intended or designed” for occupants who “intend to remain . . . for any significant period of time,” and whether those occupants would “view [it] as a place to return to” during that period. Although the 3rd Circuit has never precisely defined what it meant by the term “significant period of time,” Ambro noted that the summer bungalow case held that five months was significant, and that the nursing home qualified because its residents would likely live there “for the rest of [their] lives.” Ambro found that Caputo erred by focusing on the drug treatment center’s average stay. “This suggests that some people – possibly half, depending on how the average was calculated – stay longer than 14.8 days,” Ambro wrote. The FHA, Ambro noted, is broadly worded and applies to “any building, structure, or portion thereof” that meets its definition of dwelling. As a result, Ambro said, Caputo should have focused on the fact that some of the residents in the drug treatment center would stay “for extended periods, thereby satisfying with ease the significant-stay factor.” Ambro also found that Caputo took too literal a reading of the second factor announced by the 3rd Circuit in its Columbus Country Club decision that said the residents of a “dwelling” must view it as a “place to return to.” “What we meant by viewing a bungalow as a ‘place to return to’ is that the country club’s members saw their individual bungalows as homes. The members repeatedly returned to the same bungalow because they felt at home there,” Ambro wrote. The same was essentially true of the drug treatment center, Ambro said, because trial testimony showed that patients would eat meals together, return to their rooms in the evening, receive mail at the facility, and make it their “residence” while they were there. “Although residents in treatment were apparently not allowed off the grounds of the facility unsupervised, testimony showed that they treated it like a home for the duration of their stays,” Ambro wrote. Lakeside Resort Enterprises was represented in the appeal by attorney Ronald V. Santora of Bresset & Santora in Forty Fort, Pa. Palmyra Township was represented by attorney Patrick J. Murphy of Murphy Piazza & Genello in Scranton, Pa. (Copies of the 16-page opinion in Lakeside Resort Enterprises v. Board of Supervisors of Palmyra Township , PICS No. 06-1001, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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