property values, although the resolution of Council was grounded on such reasoning. Indeed, the staff of the Planning Department opined that presence of ARC would not impede development or reduce property values, and the evidence before this court is to the same effect.
(14) There was no evidence presented at the hearing before the Planning Commission or before this court to substantiate any limitation on lot area or side yard dimension causing a deficiency in recreation area and open space for adequate light, air and noise dispersion. On the contrary, the testimony at both hearings established that all zoning requirements were met and that ample open space was available.
(15) The reasons cited for the resolution of Council to deny the application of ARC are pretextual.
(16) None of the reasons offered by defendant for denying ARC's application--building code violations and license review--are relevant to approval of a conditional use permit; these concerns are relevant only to an occupancy permit.
(17) Council's discretion to deny a conditional use is sharply limited under state law. A conditional use is a permitted use, unless the objectors prove that approval is likely to substantially affect the health and safety of the community in an adverse manner. Robinson Township v. Westinghouse Broadcasting Co., 63 Pa. Commw 510, 440 A.2d 642 (1981). No such evidence was presented to council.
(18) Statutory classifications which affect the mentally retarded must be rationally related to a legitimate governmental purpose. City of Cleburne, Texas v. Cleburne Living Center, 53 U.S.L.W. at 5025 (1985). Recovering alcoholics are entitled at least to the same standard of judicial review.
(19) Recovering alcoholics have been: (1) victims of historic prejudice; (2) saddled with a disability; (3) members of an immutable class; and (4) relatively politically powerless. Medora v. Colautti, 602 F.2d 1149 (3d Cir. 1979).
(20) Access to treatment in a group residential facility is essential to effective treatment of recovering alcoholics and their reintegration into society.
(21) Although the Pittsburgh Zoning Ordinance does not refer specifically to alcoholics or recovering alcoholics, the decision of Council to single out the individuals living at the group residential facilities of ARC, at these particular locations, and receiving health, social or rehabilitative services, is an unconstitutional application of the Ordinance because it effectively discriminates against plaintiffs; burdens their access to appropriate treatment; and under the circumstances, is unrelated to any rational governmental purpose.
(22) It is not a valid justification for a discriminatory application of an ordinance that other groups of handicapped persons in need of residential and rehabilitative services in a group facility also are subject to discriminatory treatment.
(23) The application of the Zoning Ordinance with regard to ARC's applications violated plaintiff's right to equal protection of the laws. City of Cleburne, Texas, supra; J.W. v. City of Tacoma, supra.
(24) In failing to demonstrate or even articulate any rational relationship to an important governmental purpose or interest in denying the applications at 1216 Middle Street and 800 E. Ohio Street, the City acted in an arbitrary manner in violation of plaintiff's rights to substantive due process, J.W. v. City of Tacoma, supra, in addition to the right to be treated equally by the law.
(25) The City of Pittsburgh is a recipient of federal financial assistance in the form of Community Development Block Grant funds.
(26) These funds assist various forms of community development, nearly all of which require zoning approval before they can proceed.
(27) In withholding zoning approval to plaintiffs, a class of handicapped persons who need to reside and receive rehabilitative services in a group facility, the City of Pittsburgh discriminated against the class of otherwise qualified persons in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Plaintiffs have established that they are (a) handicapped individuals; (b) otherwise qualified for benefits from which they have been excluded; (c) solely because of their handicap; and (d) the program is subject to § 504. Strathie v. Department Trans., 716 F.2d 227 (3d Cir. 1983). Defendant failed to establish that its actions were either substantially justified or reasonable. Id. at 230.
(28) But for community opposition, the City of Pittsburgh directly or through the Urban Redevelopment Authority would have spent $100,000 of Community Development Block Grant funds to renovate the ARC facility at 800 E. Ohio Street.
(29) The City of Pittsburgh failed to reasonably accommodate the handicap of those who require group residence and rehabilitative services by denying the application for zoning approval of the ARC facilities at 800 E. Ohio Street and 1216 Middle Street when all enumerated and enforceable conditions suggested, in part, by defendant's officials were satisfied. Nelson v. Thornburgh, 567 F. Supp. 369 (E.D.Pa. 1983), affd. 732 F.2d 146 (3d Cir. 1984).
(30) Plaintiffs' contention that the Zoning Ordinance is violative of the Fourteenth Amendment on its face is without merit.
(31) The motion of ARC to intervene must be granted because the claim of ARC meets the test Fed.R.Civ.P. 24(b) and the federal claims of intervenor are not barred under federal or state law for the following reasons: (a) the consent decree of January 14, 1985 in the Court of Common Pleas of Allegheny County, Pennsylvania was not a final state court order adjudicating the constitutional claims of ARC; (b) the federal claims of ARC were not, and could not have been raised within the scope of a state court eviction proceeding, as the able state court judge noted; (c) ARC's federal claims arose from the acts of Council, i.e., administrative rulings, and an unappealed administrative ruling is not entitled to full faith and credit under 28 U.S.C. § 1738, Kremer v. Chemical Const. Corp, 456 U.S. 461, 470, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982); (d) the doctrine of claim or issue preclusion is inapplicable under state or federal law; and (e) abstention is not warranted. Wade v. City of Pittsburgh, 765 F.2d 405 (3d Cir. 1985);
(32) The decision of the Council of the City of Pittsburgh to deny the applications of ARC for conditional use approval and permits at 1216 Middle Street and 800 E. Ohio Street violated the constitutional right of ARC to equal protection of the laws and due process guaranteed by the Fourteenth Amendment for the reasons rehearsed.
(33) The request of plaintiffs for a judgment declaring that the zoning ordinance of September 15, 1980 is unconstitutional on its face must be denied.
(34) Plaintiff and intervenor are entitled to preliminary injunctive relief because plaintiffs have established by a preponderence of the evidence that: (1) they are likely to succeed on the merits; (2) they are subject to irreparable harm pendente lite; (3) defendants will suffer no harm from the grant of an injunction; and (4) the public interest requires that plaintiffs be accorded relief. Constructors Association of Western Pennsylvania v. Kreps, 573 F.2d 811 (3d Cir. 1978).
III. Injunctive Relief
(35)Plaintiffs and intervenor are entitled to a preliminary injunction requiring the City of Pittsburgh to grant to ARC a conditional use permit for a group care facility at 1216 Middle Street, and a conditional use permit for an institutional facility at 800 E. Ohio Street.
(36) Plaintiffs and intervenor are entitled to a preliminary injunction requiring the City of Pittsburgh to grant building permits to ARC to undertake repairs and renovations at 1216 Middle Street and 800 E. Ohio Street to bring those facilities into compliance with Electrical, Fire and other relevant Codes, if any.
(37) Plaintiffs and intervenor are entitled to a preliminary injunction requiring the City of Pittsburgh to grant occupancy permits to ARC at the two facilities without undue delay.
(38) Plaintiffs and intervenors are entitled to a preliminary injunction requiring the County of Allegheny and the City of Pittsburgh to appropriate and deposit in an appropriate account, within 90 days, the sum of $50,000 each, or a total sum of $100,000 of Community Development Block Grant funds to enable ARC to undertake the necessary repairs and renovations at the two facilities to bring those structures into compliance with all applicable codes, without undue delay.
(39) The sum of $100,000 shall be placed in an appropriate account at Mellon Bank, N.A., in the name of Donald Driscoll, Esquire, counsel for Neighborhood Legal Services Association, as trustee for ARC, to finance the necessary repairs, or renovations. Counsel and the NLS shall at all times be jointly and severally responsible and accountable for the aforesaid funds, and shall indemnify the payers in the event of any loss.
(40) No payment shall be made for necessary repairs unless approved by Donald Driscoll, Esquire, and counsel shall advise the court of all expenditures in a monthly written progress report.
(41) After initial code repairs have been completed, the County of Allegheny and the City of Pittsburgh shall appropriate additional Community Development Block Grant funds to finance renovations and site improvements at 800 E. Ohio Street to permit ARC to provide services to no more than 50 residents at the facility.
(42) The aforesaid site plan shall include, with respect to 800 E. Ohio Street, a privacy fence, landscaping, exterior renovations on E. Ohio Street, and a recreation area.
(43) Counsel for plaintiffs shall submit to the court within 10 days an appropriate preliminary injunctive decree which incorporates the aforesaid relief, as well as additional relief which may be appropriate.
ORDER OF COURT
AND NOW, this 23rd day of September 1985, in accordance with the findings of fact and conclusions of law of record,
IT IS ORDERED that Donald Driscoll, Esquire, shall submit to the court within 10 days an appropriate preliminary injunctive decree, as well as additional relief which may be appropriate.
© 1992-2004 VersusLaw Inc.