Shaler commissioners vote to accept McElheny Road settlement

Thursday, August 15, 2019 | 12:42 PM


The Shaler commissioners voted Aug. 13 to accept a settlement from Scioto Properties, which will allow up to six residents with traumatic brain injuries to occupy 444 McElheny Road. In return, the developer will dismiss a federal lawsuit claiming that, when the township failed to issue Scioto a property variance for the facility, it violated residents with disabilities’ constitutional rights to fair housing.

Property owner Scioto Properties initially applied for a permit in May 2018 for a home housing eight people with traumatic brain injuries, in an area with an R-1 zone designation. For-profit corporation ReMed will operate the facility.

The votes were 6-1, with Susan Fisher dissenting.

Scioto sued Shaler and its Zoning Hearing Board, stating that the failure to permit the proposed use in the residential zoning districts violates the Fair Housing Act, Rehabilitation Act, Americans with Disabilities Act, Equal Protection Clause of the U.S. Constitution and the Constitution of the Commonwealth of Pennsylvania.

Some homeowners with properties near the group home also are parties in the case.

“I have to say that in my research and in my time going through the case law and in going through all the materials supplied by the residents in that federal lawsuit, that I understand their legal position,” township solicitor Harlan Stone said. “I realize that they have some case law that supports their legal position. However, I do believe that there is a substantial risk as a defendant in the federal lawsuit, which if the township has the opportunity to eliminate that risk at no cost to the township, that is in the best interest to the township.”

Attorney Patrick Murray, of 450 McElheny, a party in the case, remarked about the potential for future litigation.

“If we don’t know which way the zoning board is going, Shaler could be opened up to that all again,” he said.

Township Manager Tim Rogers agreed about the “high likelihood of continued litigation.” He said that nothing is stopping Scioto representatives from improving their plan’s issues and restarting the process.

“One of the advantages is that we still have the opportunity to get them (Scioto) before the (township’s) planning commission. We can request to them, ‘you don’t need this much square footage. If you have reduced it by two people, take a hard look at reducing the square footage of that to get an agreement from us.’”

Murray said that he is more concerned with the home’s number of visitors and service providers than its residents.

“I don’t see what six compared to eight does, other than terminate a federal lawsuit, which is just going to start a new litigation probably within the week when they ask for the permit and we appeal to the zoning board.”

Joseph Manno, of 411 McElheny, has issues with the number of temporary employees who could come near his property. He also is apprehensive regarding the lack of bus transit options to the development and nearby parking concerns.

“I have a 5-year-old to worry about,” he said.

“This is not a threat, but if this business goes in across the street, I’m going to have to move. I’m going to have to leave the township, and I don’t want to do that. I really don’t.”

Rogers said that, per residents’ requests, Shaler officials searched for alternate locations for the ReMed facility. They recommended a vacant Mt. Royal Boulevard church for the group home, but Scioto wasn’t interested.