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Airport Professional Office v. Zoning Hearing Board of Moon Township

May 4, 2011

AIRPORT PROFESSIONAL OFFICE CENTER 100 CONDOMINIUM ASSOCIATION, THOMAS A. BROWN AND MARY ANN ANUSZKIEWICZ, APPELLANTS
v.
ZONING HEARING BOARD OF MOON TOWNSHIP, MOON TOWNSHIP AND PARVIS JIAN, M.D.



The opinion of the court was delivered by: Johnny J. Butler, Judge

: Argued: April 5, 2011

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE JOHNNY J. BUTLER, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY JUDGE BUTLER

The Airport Professional Office Center 100 Condominium Association, Thomas A. Brown and Mary Ann Anuszkiewicz (collectively referred to as the Association) appeal from the September 24, 2010 order of the Court of Common Pleas of Allegheny County (trial court) affirming the decision of the Zoning Hearing Board of Moon Township (ZHB). Moon Township (Township) and Parvis Jian,

M.D. (Dr. Jian) intervened at the time of the appeal to the trial court on the side of the ZHB. The issues before this Court are: 1) whether the trial court erred as a matter of law or abused its discretion in affirming the ZHB's decision finding that Dr. Jian was not administering the drug Buprenorphine to his patients; and 2) whether the trial court erred as a matter of law or abused its discretion in affirming the ZHB's decision that Dr. Jian's use of his office fits within the definition of a medical office and not a methadone treatment facility as defined by the Moon Township Code (Code). For the reasons that follow, we affirm the order of the trial court.

Dr. Jian operates a medical practice at 1150 Thorn Run Road, Suite 101, Coraopolis, Moon Township, Pennsylvania (Property). From 1988 until 2007, Dr. Jian practiced obstetrics and gynecology (OB/GYN) at the Property. After 2007, Dr. Jian continued to work at the Property as a general medical practitioner. Part of his practice includes the treatment of opioid-addicted patients. The Property is located in a Business Park (B-P) Zoning District, which includes, but is not limited to, corporate offices, financial institutions, libraries, professional offices, and medical offices; it does not include methadone treatment facilities. Methadone treatment facilities and methadone clinics are only permitted in an M-1 Industrial Zoning District. Section 208 of the Code defines a "medical office" as:

A building or structure where one (1) or more licensed medical professionals, provide diagnosis and treatment to the general public without surgical procedures, overnight accommodation or pharmacy and shall include such uses as reception areas, offices, consultation rooms, and x-ray, providing that all such uses have access only from the interior of the building or structure.

Original Record (O.R.) at 62. It defines a "methadone treatment facility" as:

A facility owned and operated by a private for-profit entity, a private non-profit entity or the Allegheny County Department of Human Services Bureau of Drug and Alcohol where the drug 'Methadone' or similar substances are prescribed and administered for the treatment, maintenance or detoxification of persons. O.R. at 62.

In October of 2009, the Township Zoning Officer, upon receiving a complaint concerning Dr. Jian's use of the Property, advised Dr. Jian that the Township did not have an occupancy permit on record for the Property. Dr. Jian filed an application for an occupancy permit which required him, inter alia, to provide an explanation of the manner in which the Property would be used. Dr. Jian indicated on the application that the Property would be used, in part, to treat opioid addicts with the drug Buprenorphine.

On January 4, 2010, the Zoning Officer issued a formal determination stating that Dr. Jian was in violation of Section 208 of the Code on the basis that: 1)

Buprenorphine is similar to methadone and, therefore, cannot be prescribed and administered in a B-P Zoning District; and, 2) since Buprenorphine is prescribed and administered for the treatment, maintenance and/or detoxification of opioid addicts, Dr. Jian was not using the Property as a medical office, but as a methadone treatment facility which is not permitted in a B-P Zoning District. A letter was sent to Dr, Jian ordering that he cease and desist administering Buprenorphine. In addition, the Township approved Dr. Jian's application for an occupancy permit for a medical office, but on the condition that no drug treatments for opioid addicts take place at the Property. Dr. Jian appealed the determination on the basis that he wanted to continue treating opioid-addicted patients.

A hearing was held before the ZHB on February 11, 2010. On February 19, 2010, the ZHB issued its decision finding, inter alia, that: 1) Buprenorphine is a substance similar to methadone in that both are prescribed and administered for the treatment, maintenance or detoxification of persons; 2) the administration of

Buprenorphine from a medical office is not a permitted use in a B-P Zoning District; and 3) Dr. Jian was prescribing but not administering Buprenorphine from his office since the time he filed for his occupancy permit. The ZHB concluded that Dr. Jian was permitted to continue to prescribe Buprenorphine or other federally-approved Schedule III drugs, but could not administer any drugs for the purpose of treating opioid addicts at the Property. The Association appealed the ZHB's decision to the trial court ...


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