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September 23, 1985

DENNIS SULLIVAN, MICHAEL DISKIN, JAMES ROSEWEIR, HERSHEL HEILIG, WAYNE JACKSON, JOHN CLARK and JOHN KING, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
THE CITY OF PITTSBURGH, Pennsylvania, PAUL J. IMHOFF, Superintendent of the Pittsburgh Bureau of Building Inspections, and ROBERT H. LURCOTT, Director of the Pittsburgh Department of City Planning, Defendants

The opinion of the court was delivered by: ZIEGLER

 This is a civil action for declaratory and injunctive relief filed by members of a class of former and recovering alcoholics against the City of Pittsburgh for alleged deprivation of their Fourteenth Amendment rights to equal protection and due process. Plaintiffs are residents of a well-known alcoholic treatment program in the City of Pittsburgh, Pennsylvania, known as The Alcohol Recovery Center (ARC). ARC has provided treatment and shelter to over 20,000 homeless alcoholics for over 19 years at various locations in the Northside section of the City of Pittsburgh. The City has never required a conditional use or occupancy permit.

 On July 18, 1983, City Council voted to declare a moratorium on the establishment of group homes within the City following a dispute with the County of Allegheny over the location of such homes. Thereafter, Council voted to deny conditional use permits for continued operation of the ARC program at 1216 Middle Street and 800-820 East Ohio Street. On May 20, 1985, Council rejected the application of ARC to continue operation at a single facility due to community opposition. Plaintiffs filed the instant action contending that the amendment to the City of Pittsburgh Code (Zoning Code) is, in part, unconstitutional on its face, and violative of the Equal Protection Clause and Rehabilitation Act of 1973, as applied. We hold that the Zoning Code as drafted passes constitutional muster but that the decision of the Council of the City of Pittsburgh to deny the application of ARC for a conditional use violated the constitutional rights of plaintiffs to equal protection of the laws because the decision was not rationally related to any legitimate governmental interest. Plaintiffs have sustained their burden of proof with respect to preliminary injunctive relief and the findings that follow are based on the weight of the credible evidence.

 I. Findings of Fact

 (1) The Alcohol Recovery Center (ARC) is a non-profit corporation which has provided residential treatment to over 20,000 recovering alcoholics in the Northside section of Pittsburgh since 1966.

 (2) The Northside facilities have been located at 422-424 Tripoli Street, 1216 Middle Street and 800, 814, 816, 818 and 820 E. Ohio Street in Pittsburgh. ARC also operates facilities at 1831 Hulton Road, Verona, Pennsylvania and R.D. I, Avella, Pennsylvania.

 (3) At present, ARC operates at 800 E. Ohio Street in the City, and the Verona and Avella facilities in the County, with 27, 60 and 19 residents respectively.

 (4) The Zoning Code of the City provides that group homes are "conditional uses" which require: (1) an application which is processed by the Planning Department; (2) a public hearing before the Planning Commission which issues a recommendation and (3) approval by the Pittsburgh City Council.

 (5) ARC submitted applications to the City of Pittsburgh for conditional use and/or occupancy permits for the Northside facilities on four occasions between 1966 and 1977.

 (6) The Council of the City of Pittsburgh never acted upon these applications. The applications submitted in 1977 were processed by the Pittsburgh Planning Commission and recommended for approval.

 (7) On March 23, 1977, the City of Pittsburgh through the Mayor, Richard S. Caliguiri, sent a letter to ARC commending it for the work that it was performing.

 (8) On September 15, 1980, Title Nine of the Zoning Code was amended by ordinance to provide regulations for conditional use exceptions and to create three categories of group homes based on the number of residents.

 (9) The ordinance provides that group homes shall include "group residence" facilities where a maximum of seven clients or nine persons overall, including staff, may reside; "group care" facilities, where a maximum of 17 clients or 19 persons overall may reside; and "institutional" facilities where the number of clients and staff exceeds 19.

 (10) "Group homes" are defined as facilities which provide specialized health, social or rehabilitative services to the clients and 24 hour supervision.

 (11) The group home ordinance of September 15, 1980 prohibited occupancy in a group residence facility by persons 19 years or older who are serving a sentence for a criminal offense.

 (12) The group home ordinance was amended on November 7, 1983 to prohibit occupancy in a group care facility by persons 19 years or older who are serving a sentence for a criminal offense, or under arrest and charged with a felony or any violent crime.

 (13) There is no prohibition in the ordinance for occupancy in an institutional facility by persons serving a sentence for a criminal offense or under arrest and charged with a felony or any violent crime.

 (14) A building permit, issued by the Bureau of Building Inspections of the City, is required before new construction or substantial repairs or improvements (including electrical work) can be performed on any building in Pittsburgh, including group homes.

 (15) If repairs are undertaken without a building permit, the owner and workmen may be subject to criminal prosecution and the workmen may have their registrations revoked.

 (16) On several occasions since 1980, ARC sought building permits to undertake repairs and improvements. The permits were denied.

 (17) Before a building permit can be issued, zoning approval must be obtained. A group home must secure a conditional use permit approved by the Council of defendant.

 (18) In 1982, ARC applied for conditional use permits for a "group care" facility at 1216 Middle Street, an "institutional" facility at 800, 814, 816 and 818 East Ohio Street and a "group care" facility at 422 and 424 Tripoli Street. At the time, 142 individuals were residents at the Northside facilities of ARC; the applications sought approval for 99 residents.

 (19) Frederick Just, the senior planner of the Planning Department and the person responsible for processing City group home applications, recommended approval for three of seven facilities, including 1216 Middle Street and 800 East Ohio Street, for a total occupancy of 65 residents. The Planning Department also recommended that the City of Pittsburgh allocate $75-100,000 in federally financed money from the Community Development Block Grant for necessary renovations.

 (20) The senior planner concluded that such a recommendation would appease neighborhood residents, in which event, the Planning Commission would recommend the three facilities for approval.

 (21) Greg Schlinkmann, the person responsible for liason with the community and employed by the Planning Department, recommended approval for the Tripoli Street buildings (at a reduced capacity) as well as the 1216 Middle Street and 800 E. Ohio Street facilities.

 (22) On September 14, 1982, at a public hearing conducted by the Planning Commission with respect to the applications, the East North Side Area Council, a community organization, expressed hostility towards ARC and the presence of recovering alcoholics but agreed to accept as many as two facilities of ARC in the neighborhood.

 (23) On May 6, 1983, Charles Cain, the Director of ARC, in response to the order of the Hon. Maurice B. Cohill of this court limiting the population at the Allegheny County Jail and in response to the newly enacted mandatory state sentencing law for persons convicted of driving under the influence of alcohol, publicly stated that ARC would accept DUIs at its Northside facilities.

 (24) The East North Side Area Council held a meeting on July 12, 1983, and demanded through Councilman William Robinson that the Council of the City of Pittsburgh close all facilities of ARC.

 (25) On July 18, 1983, Council members Woods, Robinson, and Madoff introduced a resolution stating that Council intended to place a moratorium on the establishment of group homes in the City of Pittsburgh, whether funded by the County of Allegheny or State of Pennsylvania, until the County established a mutually acceptable procedure regarding the location of such homes. The resolution was adopted on that date.

 (26) The Planning Department has the responsibility of processing money received by the City of Pittsburgh from the federal government for the Community Development Block Grant Program.

 (27) On October 25, 1983, Ray Reaves, deputy director of the Planning Department, in an internal memo, recommended that only one ARC facility be approved, (1216 Middle Street), and that $200,000 in Community Development funds be provided to relocate the other residents to an Ohio Township site.

 (28) Richard Bruce, Inspection Supervisor of the Bureau of Building Inspections, advised the Planning Commission that 1216 Middle Street satisfied all building codes and was safe.

 (29) On October 25, 1983, the Planning Commission recommended approval of the facility at 1216 Middle Street but denied the Tripoli Street and East Ohio Street locations.

 (30) On November 21, 1983, Council rejected all three applications. No hearing was held before that body, and no findings of fact or reasons were given for the rejection.

 (31) Like ARC, "institutional facilities" operated by the Salvation Army, Goodwill Industries and the Abraxas Foundation also accepted DUIs. Each was requested by the City to seek new occupancy permits. Each facility, except ARC, chose to return DUIs to the Allegheny County Jail, thereby avoiding a confrontation with the City.

 (32) Shortly thereafter, Paul Imhoff, the Director of the Bureau of Building Inspections, ordered ARC to stop accepting persons serving sentences for crimes under the Alternative Housing Program conducted by Allegheny County. ARC continued to accept DUIs.

 (34) Frederick Just continued to work with Charles Cain to locate an alternate site for ARC.

 (35) The Planning Department considered community opposition to be a determinative factor in site selection for ARC. Mr. Just suggested to Charles Cain that ARC locate in an area removed from residential property to reduce community opposition.

 (36) The Planning Department concluded that community opposition had to be considered in selecting alternate sites due to Council's stated opposition to group homes.

 (37) ARC considered St. Margaret's Hospital in the Lawrenceville section of Pittsburgh as an alternate site, and the Director sought Community Development funds for renovation of the site. The proposal was rejected by the Planning Department due to anticipated community opposition.

 (38) All attempts to relocate the ARC facilities or its residents were met with community hostility. No acceptable alternate site was located by Frederick Just or Elizabeth Pugh, the Director of the Pittsburgh Relocation Agency, a division of the Urban Redevelopment Authority of Pittsburgh (URA), or Operation Lifeboat, A City-County Task Force, or Charles Cain.

 (39) No other facilities in the City of Pittsburgh or County of Allegheny provide the type of services rendered by ARC.

 (40) The U.R.A. could not place ARC residents in group care facilities because of prejudice against alcoholics.

 (41) The U.R.A. conducted a preliminary study of the feasibility and cost of renovating 800 E. Ohio Street and 1216 Middle Street because no alternate site was available for ARC residents.

 (42) The Relocation Director of the U.R.A. determined that it would be more economical to renovate the existing facilities than to relocate the residents, even if an alternate site was available.

 (43) Between the adoption of the group home amendment on September 15, 1980, and the enactment of the moratorium on July 18, 1983, City Council approved 16 of the 17 applications for group homes.

 (44) Since the moratorium of July 18, 1983, one group home application was approved while nine were denied including Council's rejection on May 20, 1985 of ARC's application for 800 E. Ohio Street.

 (45) Of the group home applications submitted since the moratorium, five were recommended by the Planning Commission. Each application which was subject to community opposition was rejected by Council. The only application approved by Council reduced the number of occupants from more than one hundred to twenty, and for that reason was not opposed by the community.

 (46) In the fall of 1984, City and County officials and representatives of ARC met to attempt a resolution which would keep ARC at a Northside facility. An agreement was reached which was dependent, at the insistence of the City of ...

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