The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Metro Treatment of Pennsylvania, LP, :
:
Appellant :
v. : No. 424 C.D. 2017
: Argued: November 13, 2017
Zoning Hearing Board of the Township :
of Shenango and Township of Shenango :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge (P.)
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: January 10, 2018
This is an appeal filed by Metro Treatment of Pennsylvania, LP (Metro)
from an order of the Court of Common Pleas of Lawrence County (trial court),
affirming a decision of the Zoning Hearing Board of the Township of Shenango
(ZHB). By its decision, the ZHB denied Metro’s application for a special exception1
under Sections 1001.C.1.i. and 1403.13 of the Township of Shenango Lawrence
County Zoning Ordinance (Ordinance) to operate a methadone maintenance clinic
in the Township C-2 Highway Commercial District (C-2 District).2 The trial court
1
A special exception in a zoning ordinance is an allowable use where facts and conditions as
detailed in the ordinance are found to exist, and as such, the exception has its origin in the zoning
ordinance itself and relates only to such situations as are expressly provided for and enunciated by
the terms of the ordinance. Broussard v. Zoning Board of Adjustment of City of Pittsburgh, 831
A.2d 764, 769 (Pa. Cmwlth. 2003).
2
Ordinance Section 303(B) states:
determined, inter alia, that Metro failed to meet its burden of establishing that the
proposed use was of the same general character as “Business and Professional
Offices,”3 as claimed by Metro in its application, and affirmed the ZHB’s denial of
In the C-1, C-2, I-P and M-1 Districts, any use not specifically listed
in the Authorized Uses for the Zoning District shall not be permitted
in that Zoning District, unless such use is authorized by the [ZHB]
as a use by special exception in accordance with the applicable
express standards and criteria for “Comparable Uses Not
Specifically Listed” specified in 1403.13 of this Ordinance.
(Reproduced Record (R.R.) at 41a.)
Ordinance Section 1403.13(a) states:
Uses of the same general character as any of the uses authorized as
permitted uses by right, conditional uses or uses by special
exception in the Zoning District in which the property is located
shall be allowed, if the Zoning Hearing Board determines that the
impact of the proposed use on the environment and adjacent streets
and properties is equal to or less than any use specifically listed in
the Zoning District. In making such a determination, the Board shall
consider the following characteristics of the proposed use:
1. The number of employees;
2. The floor area of the building or gross area of the
lot devoted to the proposed use;
3. The type of products, materials, equipment
and/or processes involved in the proposed use;
4. The magnitude of walk-in trade; and
5. The traffic and environmental impacts and the
ability of the proposed use to comply with the
Performance Standards of Section 1501 of this
Ordinance.
(R.R. at 108a.)
3
Article II, Section 201 of the Ordinance defines “Business or Professional Offices as:
Any office of recognized professions such as doctors, lawyers,
architects, engineers, real estate brokers, insurance agents and others
who, through training, are qualified to perform services of a
professional nature and other offices used primarily for accounting,
2
the special exception request. For the reasons that follow, we affirm the order of the
trial court.
The ZHB held a hearing on Metro’s application on June 23, 2016, at
which Metro presented, inter alia, the testimony of James Scully, Metro’s Director
of Security Operations. (ZHB Transcript (H.T.), Reproduced Record (R.R.) at 220a-
353a.) Mr. Scully stated that Metro has established 65 methadone maintenance
clinics across the United States, and sought to establish such a clinic in Lawrence
County to help stop the recent surge in the number of deaths by overdose of opiate
painkilling medicines and heroin. (Id., R.R. at 239-240.) He described the proposed
layout of the facility and outlined the security plan. (Id., R.R. at 249a-253a.) Dr.
James Roberts, Metro’s Medical Director, testified that the treatment medications to
be administered at the clinic would be methadone and buprenorphine, and that in
addition to dispensing these medications, counseling would be provided. (Id., R.R.
at 262a-263a, 265a.) Rachel Costello, Ph.D., a licensed professional clinical
counselor and Metro’s regional operations director for the Midwest, testified that the
clinic would be staffed with either two physicians or one physician and a nurse
practitioner, five to twelve counselors, one pharmacist, approximately six nurses, a
treatment service coordinator, and a program director to serve as administrative
supervisor of the staff. (Id., R.R. at 276a-277a.) She stated that the majority of
patients were employed and, for that reason, the clinic would open early, at 5:30 a.m.
and remain open for counseling services, by appointment, until 2:00 p.m. five days
a week, with abbreviated hours on Saturday and Sunday; however, actual dosing
corresponding, research, editing or other administrative functions,
but not including banks or other financial institutions.
(R.R. at 16a.)
3
hours of methadone and buprenorphine would be from 5:30 a.m. until 11 a.m. and
most of the dosing patients would be at the clinic between 5:30 a.m. and 6:30 a.m.
(Id., R.R. at 277a, 292a-293a.) She stated that the maximum number of clinic
patients is 477, and the expectation is that approximately 25% of that number, or
125 patients would be at the clinic daily; patients were expected to begin to arrive at
4:30 a.m. to line up and their goal would be to get the patients who are only dosing
in and out of the clinic in under five minutes. (Id., R.R. at 280a-281a.)
At the conclusion of the hearing, the ZHB decided to convene at a later
date and to make a decision at that time, and at a hearing held on August 4, 2016,
the ZHB voted to deny the special exception request. The ZHB subsequently issued
its findings of fact, conclusions of law and decision (R.R. at 370a-380a), in which it
summarized the testimony of the witnesses, and in its conclusions of law, examined
the Ordinance definition of “Clinic,”4 stating:
The evidence presented is that the treatment facility is a
clinic as defined in the Ordinance. The Ordinance
distinguishes between the uses and the definitions of a
clinic and a medical office. Using the plain language of
the Ordinance, the Board concluded that the intention of
the Ordinance was that the impact that a clinic would have
to the surrounding area is not consistent with the C-2
district[,] which is why it is not zoned in that area.
4
“Clinic” is defined in Article II, Section 201 of the Ordinance as:
Any establishment, including mobile diagnostic units, where human
patients receive medical, dental, chiropractic, psychological and
surgical diagnosis, treatment and counseling under the care of a
group of licensed medical doctors and dentists and their supporting
staff, where said patients are not provided with board or room or
kept overnight on the premises.
(R.R. at 17a.)
4
(Conclusions of Law, ¶ 11, R.R. at 379a.) The ZHB further determined that Metro
had not met its burden of persuasion that the proposed use satisfies the objective
requirements of the Ordinance as set forth in Section 1403.13 with respect to the
magnitude of traffic. (Id., ¶ 14, R.R. at 380a.) Metro appealed to the trial court, and
after a hearing at which it took no additional testimony, the trial court denied Metro’s
appeal. (Opinion and Order, March 9, 2017.)
On appeal, Metro states, correctly, that a “Business or Professional
Office” is a permitted use in the C-2 District and that a “Clinic,” while not listed as
a use in a C-2 District, is listed as a conditional use in the C-1 Community
Commercial District.5 Metro also asserts, correctly, that the fact that a “Clinic” is
permitted in another district does not prevent consideration of the use in the C-2
District as a “Comparable Use Not Specifically Listed,” so long as the proposed use
is of the same general character as any use authorized in the C-2 District, the impact
of the use on environmental and adjacent streets is equal to or less than any use
specifically listed in the C-2 District, and the use meets other specific standards and
criteria set forth in Section 1403.13 and other applicable sections of the Ordinance.
However, Metro further asserts that Metro’s proposed use as a methadone treatment
clinic is of the same general character as the “Business or Professional Office” use,
and thus the ZHB erred in finding that the proposed clinic does not satisfy the
objective requirements of the Ordinance. 6 We do not agree.
5
Ordinance Section 901(B).1.b. establishes that in the C-1 Community Commercial District, a
“Hospital, Clinic or Nursing Home, subject to Section 1403.19” is a conditional use. (R.R. at 63a.)
6
Because the trial court took no additional evidence, our review is limited to determining whether
the ZHB committed an error of law or an abuse of discretion. City of Hope v. Sadsbury Township
Zoning Hearing Board, 890 A.2d 1137, 1144 (Pa. Cmwlth. 2006).
5
Citing MarkWest Liberty Midstream & Resources, LLC v. Cecil
Township Zoning Hearing Board, 102 A.3d 549, 558 (Pa. Cmwlth. 2014), Metro
argues that in order to establish that a proposed use is of the “same general character”
as a permitted use, the applicant need not show that it is identical, but only that the
proposed use bears a similarity to the authorized use. Metro also argues that all other
specific standards and criteria set forth in the Ordinance and related to the use have
been satisfied, and that the ZHB erred in imposing upon Metro the burden of
persuading the ZHB that the use was “not a hazard to public safety.” Because the
proposed use is not of the same general character as a “Business or Professional
Office,” we must affirm the decision of the ZHB and of the trial court, and we need
not reach the question of whether Metro has or has not met other specific standards
and criteria set forth in Ordinance Section 1403.12.
As the trial court noted, other than the testimony of a civil engineer who
stated that the proposed use was a comparable use because “we’ve looked at other
uses identified in the C-2, many of which would have a greater impact to the
roadways[,] surrounding properties and environment than this proposed use,” Metro
failed to present any evidence at all to establish that a “Clinic” is a use of the same
general character as a “Business or Professional Office.” (H.T., R.R. at 298-299.)
Metro failed to establish that the nature of the activities and operation of the
proposed clinic, as described in detail by its various witnesses, bear any similarity
whatsoever to a “Business or Professional Office” or to any other of the uses
authorized in the C-2 district. Instead, Metro focused on the impact of the proposed
use on the roadways and environment, which are criteria to be addressed only after
the ZHB has determined that a proposed use is of the same general character of an
authorized use. Moreover, as evidence that the two uses are not of the same general
6
character, the Ordinance clearly contemplates “Business or Professional Offices”
and “Clinics” as separate entities, authorizing professional offices as a permitted,
principal use in both the C-1 Community Commercial District and the C-2 District,
but authorizing “Hospitals, Clinics and Nursing Homes subject to Section 1403.19,”
as conditional uses only in the C-1 Community Commercial District and excluding
each of those uses as conditional uses in the C-2 District. In addition, while each of
the definitions of “Hospital,” “Clinic,” and “Nursing Home” expressly refers to the
care and treatment of human patients, the definition of a “Business or Professional
Office” describes the office of a trained professional qualified to perform services
of a professional and/or administrative nature and does not contain the word
“treatment,” “care,” or “patient.” Where an ordinance is not ambiguous, and where
different zoning districts impose different requirements, each section should not be
read in isolation. Appeal of Richboro CD Partners, L.P., 89 A.3d 742, 748 (Pa.
Cmwlth. 2014). Metro’s application for a special exception was properly denied
by the ZHB, in accordance with the Ordinance. Accordingly, we affirm the Order
of the Trial Court.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Metro Treatment of Pennsylvania, LP, :
:
Appellant :
v. : No. 424 C.D. 2017
:
Zoning Hearing Board of the Township :
of Shenango and Township of Shenango :
ORDER
AND NOW, this 10th day of January, 2018, the Order of the Court of
Common Pleas of Lawrence County in the above-captioned matter is AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge