Boni v. Zoning Hearing Board

81 Pa. D. & C.4th 44
CourtPennsylvania Court of Common Pleas, Fayette County
DecidedJanuary 31, 2007
Docketno. 1409 of 2005, G.D
StatusPublished

This text of 81 Pa. D. & C.4th 44 (Boni v. Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Fayette County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boni v. Zoning Hearing Board, 81 Pa. D. & C.4th 44 (Pa. Super. Ct. 2007).

Opinion

LESKINEN, J,

This matter comes before the court on the Township’s appeal from a decision of the zoning hearing board which granted a special exception for a “methadone treatment facility” under the theory that such a facility is a medical “clinic” under the terms of the zoning ordinance. The Frazier School Board, the landowners, and the prospective purchaser (and operator of the proposed methadone treatment facility) have all intervened.

For reasons set forth hereinafter, this matter will be remanded to the zoning hearing board for further proceedings in accordance with the new Fayette County Zoning Ordinance effective November 1, 2006.

BACKGROUND

Landowners/intervenors, Laurence A. Bujdos and Louis Waller filed a petition with the Fayette County Zoning Hearing Board requesting that the board grant a [46]*46special exception for a “substance abuse treatment program for persons with opiate addictions” on property owned by Mr. Bujdos (currently listed as owned by LLS Realty LLC). The property consists of 5.37 acres in Perry opolis Township on the west side of State Route 51 just north of Perry opolis Borough. Route 51 is a major commuting route between Fayette County and Pittsburgh. The property is zoned “B-l.” The Fayette County Zoning Ordinance is in effect, as Perry Township does not have its own zoning. At the time the application was filed, the county zoning ordinance made no specific provision for a “methadone treatment facility,” but amendments providing for same were pending.

The original petition was filed on March 29,2005. As noted, it sought a property use of “substance abuse treatment program for persons with opiate addictions.” As reasons for granting the petition, Bujdos and Waller wrote: “Property meet [sic] requirements of local zoning and state requirements as found at Act 10 of 1999.” Act 10 deals with “methadone treatment facilities.” Evidently when the petition was presented someone wrote “Clinic” next to the property use written in by the applicants, since, as noted above, the ordinance at that time made no express provision for methadone treatment facilities.

The zoning hearing board held a hearing on the petition on May 11, 2005. Only the three proponents of the petition testified. Petitions of various residents opposed to the petition were received, but in the absence of admissible testimony, the petitions were not considered. The board issued Resolution 05-43 approving the special exception with conditions on May 19, 2005. The [47]*47within land use appeal was filed by the Township on June 13, 2005 and the other parties intervened thereafter.

Perry Township first obj ected on the basis that the resolution was signed only by a member of the board, Mark Morrison, who was not present for the hearing, and who had not had an opportunity to review the testimony. This would appear to be fair criticism in the sense that the testimony at the hearing was not transcribed until sometime in 2006, and consists of 163 pages. Clearly, Mr. Morrison could not have reviewed the testimony. However, because of the disposition reached on other grounds, the court need not reach this particular objection.

Perry Township next objected on the general basis that “Petitioners failed to meet the burden of proof in connection with their case.” Again, while this point is arguably correct, the instant disposition is made on other grounds and the court need not reach this particular objection.

Next, the Township claims: “There should have been a traffic study successfully completed to indicate the additional ingress and egress to the proposed location.” The request for a traffic study was in light of the testimony that there would be approximately 250 persons using the treatment facility every day to receive their methadone, almost all of whom would be making a left-hand turn into and/or out of the facility across two lanes of southbound traffic at a location where there is no dedicated turning lane between the northbound lanes and the southbound lanes. The business district of Perryopolis Borough, immediately south of the proposed site, has a dedicated left-hand turn lane that is obviously appreciably safer. Again, this is a factor worthy of consideration, [48]*48but is not the immediate basis for the court’s current disposition.

At argument, counsel for the Township asserted that it is unlawful for persons taking methadone to drive a vehicle at all. (There appears to be no pedestrian access to the facility.) Common sense would seem to indicate that we, as a society, would not want persons under the influence of a synthetic opiate driving on public highways. See opinion of the attorney general no. 1, January 11, 1974, 64 D.&C .2d 43, 1974 WL 42930 (Pa.Dept.Just). However, it is clear that the Pennsylvania Legislature has specifically addressed this objection by allowing an exception from the DUI law for persons taking a Schedule II substance (which methadone is) that is “medically prescribed.” See 75 Pa.C.S. §3802 (d)(l)(ii).

In addition, in our current “through the looking glass” world, federal law requires that recovering heroin and morphine addicts be treated as persons with a “disability” under the Americans with Disabilities Act (ADA), and discrimination against such persons could subject the offending state, county or township to the payment of money damages. That may be one of the reasons for the legislature’s decision to allow legal methadone users to drive a vehicle; but counties and townships are bound by the same law, and cannot unfairly discriminate in the location of methadone treatment facilities. See Addiction Specialists Inc. v. Township of Hampton, 411 F.3d 399 (3d Cir. 2005); New Directions Treatment Services v. City of Reading, 2005 U.S. Dist. Lexis 17529 (E.D. Pa. 2005). In fairness, there was unrebutted testimony at the zoning hearing board’s hearing in this case that indi[49]*49cated that medically supervised methadone users are able to drive safely and normally.

The Township’s dispositive objection is noted in paragraph 13 of the appeal. Therein, it states that, “The special exception for a methadone clinic does not exist under B1 .... The zoning plan did not contemplate a special facility such as a methadone clinic to be compared to a hospital or a medical clinic as defined in the ordinance.”

The Fayette County Zoning Ordinance has been undergoing a comprehensive revision since at least 2003, which did finally culminate in a completely rewritten zoning ordinance becoming effective on November 1, 2006. Specific provisions governing “methadone treatment facilities” were contained in the proposed new ordinance from its inception in 2003, which changes remained pending throughout the proceedings on the instant petition.

GENERAL LEGAL BACKGROUND

Zoning law is relatively recent in origin, and was first introduced in crowded American cities because of the clear dangers of fire, contaminated water, inadequate sewage, stench and disease.

“Zoning at first was considered one of the most radical departures from the traditional concepts of private property because it was perceived as prohibiting a citizen from devoting his property to a purpose useful and entirely harmless, in the ordinary sense, in certain districts in a community.” The Law of Zoning and Planning, Rathkopf, 4th ed., vol. L, pp. 1-10.

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Related

Village of Euclid v. Ambler Realty Co.
272 U.S. 365 (Supreme Court, 1926)
Diversified Health Associates, Inc. v. Zoning Hearing Board
781 A.2d 244 (Commonwealth Court of Pennsylvania, 2001)
Bonner v. Upper Makefield Township
597 A.2d 196 (Commonwealth Court of Pennsylvania, 1991)
Levin v. St. Peter's School
578 A.2d 1349 (Commonwealth Court of Pennsylvania, 1990)
BD. OF SUPV., GREENE T. v. Kuhl
536 A.2d 836 (Commonwealth Court of Pennsylvania, 1988)
Manor Healthcare Corp. v. Lower Moreland Township Zoning Hearing Board
590 A.2d 65 (Commonwealth Court of Pennsylvania, 1991)
Boron Oil Co. v. Kimple
275 A.2d 406 (Commonwealth Court of Pennsylvania, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
81 Pa. D. & C.4th 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boni-v-zoning-hearing-board-pactcomplfayett-2007.