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THW Group, LLC v. Zoning Board of Adjustment and City of Philadelphia

Commonwealth Court of Pennsylvania

March 6, 2014

THW Group, LLC,
Zoning Board of Adjustment and City of Philadelphia, Appeal of: Domenick Parris, Melissa Casey, Patti Vaughn, Linda Lewis and Lori Prete

Argued February 10, 2014.

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Appealed from No. April Term, 2012, No. 01046. Common Pleas Court of the County of Philadelphia. Fox, J.

Dawn M. Tancredi, Philadelphia, for appellants.

Carl S. Primavera, Philadelphia, for appellee THW Group, LLC.

Andrew S. Ross, Chief Deputy City Solicitor, Philadelphia, for appellee City of Philadelphia.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge (P.). Judge Cohn Jubelirer did not participate in this decision.


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In this zoning appeal, Neighbors[1] ask whether the Court of Common Pleas of Philadelphia County (trial court) erred in reversing an order of the Philadelphia Zoning Board of Adjustment (ZBA) that denied THW Group, LLC (Applicant) a zoning use permit to allow for the operation of a methadone clinic. Neighbors assert: (1) the trial court erred in ignoring the ZBA's factual findings concerning the distinctions between a methadone treatment facility and a medical office; (2) a methadone treatment facility is not a permitted use under the Philadelphia Zoning Code (Code); (3) Applicant lacked standing to obtain a zoning permit; and, (4) the trial court erred in relying on facts outside of the ZBA record where the trial court received no additional evidence. Discerning no merit in these assertions, we affirm the trial court.

I. Factual and Procedural Background

In January 2011, Applicant applied for a zoning use permit for a medical office for the treatment of patients (no overnight stays) in the first floor of a two-story structure located at 7900 Frankford Avenue, Philadelphia (the property). The property lies in a C-2 Commercial District (C-2 District).

Applicant indicated that other existing uses of the building, an insurance/brokerage office on the first floor and 11 apartments on the second floor, would continue unchanged.[2] The Department of Licenses and Inspections (L& I) issued a permit for the proposed use under Title 14 of the Code.[3] Applicant subsequently obtained

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building permits for interior alterations, and it undertook construction work authorized by the permits.

The proposed methadone clinic would occupy a first floor tenant space last used as a restaurant and bar. The clinic would operate from 6:00 a.m. to 3:00 p.m. daily and would serve approximately 200 patients a day. It would be staffed by a doctor, counselors, a registered nurse, insurance administrators and secretaries. Services provided at the proposed facility would include administering daily medication, drug counseling, evaluation of new patients, and addiction-related medical testing, including urine and blood testing. Security would be provided both inside and outside the facility during all hours of operation. The facility would have five off-street, accessory parking spaces, four of which would be dedicated to staff use.

Upon learning the proposed medical office would be a methadone clinic, Neighbors challenged the issuance of the permit on the basis a methadone clinic is not a permitted use under the Code in the C-2 District. The ZBA held a public hearing on the appeal.

At the hearing, City employee Jeanne Klinger (Klinger), the head of L& I's zoning unit, testified regarding the issuance of the permit. Neighbors presented the testimony of Dr. Lawrence Norton (Neighbors' Expert), an expert in the field of addiction treatment, whose experience includes the operation of methadone clinics in New Jersey and Pennsylvania for approximately 12 years. Applicant presented the testimony of one of its owners. Additionally, several community members voiced their opposition to the proposed methadone clinic. Also, a state representative voiced concerns over parking near the property.

The ZBA also received and considered petitions in opposition and letters from area residents and political representatives who oppose the use. Grounds for concern included traffic congestion and the proximity of residences, a grade school, a day care center and churches.

After the hearing, the ZBA issued a decision in which (by a 4-1 vote) it determined L& I erred in granting Applicant's permit application for the proposed methadone clinic. In reaching its decision, the ZBA relied on the testimony of Neighbors' Expert, who testified regarding the differences between a methadone clinic and a medical office. According to Neighbors' Expert, a methadone clinic is open seven days a week, administers methadone to as many as 500 patients a day and warehouses large volumes of narcotics. He further testified methadone clinics create security concerns not typically associated with traditional medical offices, and such clinics can detrimentally impact the health and safety of the communities in which they are located.

The ZBA determined that, pursuant to Section 14-105 of the Code, " [i]n each district only the uses specified in this Title and uses accessory and incidental thereto shall be permitted." ZBA Op., Concl. of Law No. 1. Thus, the ZBA stated, the challenged use, a methadone clinic, is permitted as of right only if it is specifically authorized by the Code provisions applicable to C-2 Districts. The ZBA determined a methadone clinic is not a permitted use of a C-2 property; therefore, the permit for the proposed facility was issued in error.

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Although medical offices, hospitals and medical centers are permitted under C-2 regulations, the ZBA rejected Applicant's argument that the proposed methadone clinic fell within any of these authorized use categories. The ZBA also stated that methadone clinics did not exist at the time the Code was written. Therefore, it was unlikely that Philadelphia City Council (City Council), in authorizing medical offices, contemplated a facility that would serve such a high volume of patients on a daily basis.

In addition, and as explained more fully below, the ZBA found L& I should have refused the permit on the ground it created a condition of " multiple structures per lot," which is specifically prohibited by Section 14-113 of the Code. Applicant appealed to the trial court.

Without taking additional evidence, the trial court reversed the ZBA's decision. More particularly, the trial court determined the ZBA erred as a matter of law in concluding a methadone clinic is not a permitted use in the C-2 District. The trial court explained that the Code specifically permits the use of a property in a C-2 District for the " treatment of patients." Tr. Ct., Slip Op., 6/19/13, at 3. The Code also permits medical centers and medical offices in the C-2 District. The trial court further stated that a methadone clinic is a medical office for the treatment of patients and, therefore, a permitted use in the C-2 District. The trial court reasoned there is no difference between a medical clinic and a medical office or medical center--both provide treatment to patients. The trial court relied on a dictionary definition of the term " clinic" as " a private or specialized hospital; a place or occasion for giving medical treatment or advice, especially in a hospital devoted to one topic." Id. at 4 (quoting the NEW SHORTER OXFORD ENGLISH DICTIONARY ON HISTORICAL PRINCIPLES, Volume 1 (1993)).

Additionally, the trial court rejected Neighbors' reliance on this Court's decisions in Thomason v. Zoning Hearing Board of Township of Radnor, 26 A.3d 562 (Pa. Cmwlth. 2011), and In re Appeal of Costco Wholesale Corp., 49 A.3d 535 (Pa. Cmwlth. 2012), for the proposition that a zoning ordinance's failure to state that a specific use is permitted indicates such a use is not permitted in the applicable zoning district.

The trial court also distinguished this case from the Fayette County Common Pleas Court's decision in Boni v. Zoning Hearing Board of Fayette County, 81 Pa. D. & C.4th 44 (C.P. Fayette 2007), which Neighbors relied on to support their position that methadone clinics are not permitted as medical offices because they did not exist when the Code was written.

In Boni, the common pleas court determined a " methadone treatment facility" could not be considered a " clinic" as defined under the County's zoning ordinance. Id. at 60. Specifically, at the time the applicant filed its zoning application, there was a pending ordinance amendment that clarified that the definition of " clinic" did not include a " methadone treatment facility." Id. The pending ordinance amendment contained a specific definition and specific provisions for a new " methadone treatment facility" use category. Id. at 58-59. This established that the local legislative body intended to define a methadone facility as something different from a clinic. In this case, the trial court reasoned, no proposed amendment existed at the time Applicant filed its zoning application, rendering Boni easily distinguishable.

Further, citing a federal appellate decision from the Third Circuit, the trial court opined that municipalities are not free to apply different zoning standards to methadone

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clinics from ordinary medical clinics as this would be discriminatory. See New Directions Treatment Servs. v. City of Reading, 490 F.3d 293 (3d Cir. 2007) (holding Section 621(a)(1) of the Pennsylvania Municipalities Planning Code (MPC)[4] regulating the location of methadone clinics was facially discriminatory under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § § 12131-12165, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, because it singled out clinics for different zoning procedures). For all these reasons, the trial court sustained Applicant's appeal, reversed the decision of the ZBA, and reinstated the permit issued by L& I. Neighbors appealed to this Court.[5]

Thereafter, Neighbors filed an application for stay, which, after argument, this Court denied. This matter is ...

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