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November 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.JOVONE L. GORDON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-09-0508.
Submitted May 9, 2012 --
Before Judges Lihotz and St. John.
Defendant Jovone L. Gordon appeals from a jury verdict finding him guilty of first-degree robbery, N.J.S.A. 2C:15-1, and third-degree theft, N.J.S.A. 2C:20-3. The trial judge sentenced defendant to fifteen years of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the robbery and a concurrent term of four years for the theft. The judge charged the jury instructing them on the elements of first-degree and second-degree robbery. The jury convicted defendant of first-degree robbery, after concluding he was armed with a deadly weapon. On appeal, defendant challenges the denial of his motion for acquittal and identifies what he suggests were trial errors warranting reversal.
We conclude the State's evidence was insufficient to sustain a conviction for first-degree robbery and the court erred in denying defendant's motion at the conclusion of the State's case. We reverse and remand for the entry of a judgment of acquittal for the first-degree armed robbery conviction and amendment of the judgment of conviction to reflect the conviction of second-degree robbery. We also remand for sentencing.*fn1
The trial record reveals that on April 24, 2009, defendant entered the Harvest Community Bank in Pennsville and asked the bank manager about opening an account. The manager referred him to Sherry Weiss, the head teller. Defendant asked Weiss about obtaining a mortgage, but then acknowledged that he did not have any identification and proceeded to leave. However, he walked over to another teller, Ann Gladhill, told her he had a gun, and ordered her to give him money.
Donna Joe Bunting was working at the drive through window when defendant approached Gladhill. She heard defendant tell Gladhill he had a gun and watched as Gladhill put cash into a bag. Gladhill asked Bunting for additional money and she turned over large bills to defendant. Both Bunting and Gladhill included "bait money" in the bag they turned over to defendant. The "bait money" included several twenty dollar bills, the serial numbers of which were prerecorded and kept in the bank. A security camera recorded defendant in the bank, but did not show the interaction between defendant and Gladhill.
At the same time, an off duty police officer was in the banking lot and noticed a dark Crown Victoria. He became suspicious when he noticed one man in the driver's seat and another man in the back seat. He became more concerned when the car left at a high rate of speed. He followed the car for a short time and wrote down the license plate number. When he returned to the bank parking lot, he realized that a robbery had taken place and he related what he had seen to detectives on the scene. The registration for the car belonged to Kareem Sashier from Chester, Pennsylvania. The Chester police were notified and an officer was sent to look for the car. The officer found the car parked near the address given for Sashier, waited about ten minutes, and saw an African-American male enter the car and drive away. The officer pulled the car over and arrested the driver who was defendant. A cell phone and a large amount of cash were seized. Some of the "bait money" was among the bills seized.
Ultimately, defendant admitted to committing the robbery. He even wrote out an apology to the bank employees. However, when defendant testified on his own behalf at trial, he denied most of the State's case, including his confession. Defendant stated that his father gave him $1000 to pay for car insurance and to retrieve his car which had been impounded. He also stated that an acquaintance, Otis Bullock, gave him a roll of cash to give to Sashier. That was his explanation for the "bait money" found in his possession.
At the conclusion of the State's case, defense counsel moved to dismiss the case for lack of evidence. While counsel did not specifically mention the grading of the offense, a motion had apparently been made before trial to dismiss part of the first-degree crime for lack of evidence. The trial judge determined that there was sufficient proofs to go to the jury on that issue and denied the motion.
Gladhill testified that defendant "stated that he had a gun and that he wanted all my money." The prosecutor then sought to elicit testimony concerning the gun and asked the following questions:
Q. Did you ever see him with a gun?
A. No.
Q. Did he ever brandish, make some object, or make some gesture as if he actually had a gun?
A. No, I just - Q. He just said he had a gun?
A. Yes.
Defendant was convicted of first-degree robbery and third-degree theft. This appeal ensued.
Defendant raises the following issues for our consideration on appeal:
We first address our standard of review. When considering a defendant's motion denying acquittal, we apply the Reyes standard and review only the state proofs to determine: whether, viewing the . . . evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 459 (1967).]
See also Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 3:18-1 (2013). We review the decision of the trial judge de novo, applying the Reyes standard to evaluate the motion for acquittal. State v. Bunch, 180 N.J. 534, 548-49 (2004). See also Pressler & Verniero, supra, comment 5 on R. 3:18-1.
Prior to reviewing defendant's challenge, we review the elements of the offense for which he was charged. Robbery is a crime of the second-degree, but it is elevated to a first-degree crime if, in the course of committing the theft, the actor "is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b). The definition of a "deadly weapon" includes simulation of a deadly weapon, enabling a defendant's conviction for first-degree armed robbery to be based on simulation of the possession of a deadly weapon. Indeed, "deadly weapon" is defined as any . . . weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury[.] [N.J.S.A. 2C:11-1(c).]
In the context of simulation, the definition of "deadly weapon" in N.J.S.A. 2C:11-1(c) has been read to require that there be either an object that clearly simulates a weapon or a combination of words and gestures that "complete the impression of a concealed weapon . . . ." State v. Chapland, 187 N.J. 275, 292 (2006). It is important to note that our Supreme Court did not expressly limit the statutory interpretation to these two alternatives.*fn2 However, the Court stated that "[a] threat or reference to a deadly weapon alone is not enough." State v. Hutson, 107 N.J. 222, 227 (1987).
In this matter, defendant argues the nature of the threat to the bank teller was insufficient to convict him of armed robbery by simulation and the trial judge erred in denying his motion for acquittal. In commenting on the State's evidence, the trial judge concluded "there [were] sufficient proofs to go to the jury" to determine "whether a reasonable person would have believed there was a weapon based on the conduct of the perpetrator." We do not disagree with this construct of law, we disagree with the trial judge's determination that the State met its burden of proof as Gladhill related no observations of defendant's conduct and the video evidence captured no gestures suggesting defendant had a gun. On this record, it is unrefuted that defendant did nothing other than state the existence of a gun.
In State v. LaFrance, 224 N.J. Super. 364 (App. Div. 1988), aff'd in part, rev'd in part, 117 N.J. 583 (1990), we affirmed a conviction for first-degree robbery concluding the defendant's conduct satisfied the statute where the defendant stated he had a gun, positioned his hand inside his coat so it appeared to be a gun, and threaten to blow his victims' brains out. Id. at 368, 372-73. In State v. Huff, 292 N.J. Super. 185 (App. Div.), certif. denied, 146 N.J. 570 (1996), aff'd, 148 N.J. 78 (1997), we likewise affirmed a conviction for armed robbery in a case where the defendant told his victim that he had a gun and patted the waistline under his coat to indicate where the gun was allegedly concealed. Id. at 190-91. Despite the fact that defendant did not simulate a gun, we found significant the fact that "the victim testified and indicated by physical demonstration what defendant did when he said he had a gun and asked for the money." Id. at 191 (emphasis in original). LaFrance and Huff inform us that simulating the appearance of a weapon or gesturing to a location where it would be reasonable to believe the identified weapon was concealed, when combined with a threat, are sufficient circumstances to establish first-degree robbery by simulation.
The importance of an accompanying gesture was made apparent in Chapland. According to the defendant's account of the facts in Chapland, while struggling with the victim for her pocketbook, he drew his hand behind his back as though he were reaching for a weapon and yelled, "Give me your pocketbook, bitch." Supra, 187 N.J. at 291-92. A jury convicted the defendant of first-degree robbery but defendant appealed his conviction asserting that the trial court's instruction to the jury, that if it found that defendant had simulated the possession of a knife, it could find him guilty of first-degree robbery, was error. Id. 281-83. Our Supreme Court disagreed holding that even though the defendant may not have actually had a weapon, the gesture, which was indicative of both possession and imminent use of a weapon, was sufficient to meet the Hutson requirement that there be more than words. Chapland, supra, 187 N.J. at 291-92. The facts of Chapland indicate that a gesture is crucial, at least in circumstances where the defendant does not specify that he or she has a weapon. The question in this case, however, is what conduct is required to accompany words when the defendant explicitly references a gun.
Here, there is no testimonial or video evidence that defendant made a gesture, such as a gesture akin to pointing a fake gun in LaFrance or rapidly reaching for a nonexistent weapon in Chapland; or a gesture that he had a gun, similar to patting one's body, as in Huff. In fact, as we noted, there was no evidence, whether in the form of testimony or video, that defendant made any inculpatory gesture at all. The facts here are analogous to Hutson, in which there was no gesture accompanying the announcement that perpetrator had a gun.
Supra, 107 N.J. at 228 ("what is missing in this record is the link between the threat and the object viewed by the victim").
Consequently, the trial judge erred in determining defendant's threat of a gun unaccompanied by a gesture was sufficient to establish robbery by simulation. The threat to use a deadly weapon must be accompanied by some conduct evincing the existence of that weapon.*fn3 Defendant's conviction and sentence for first-degree robbery is therefore vacated. However, because the trial judge used interrogatories, it is clear the jury found defendant guilty of conduct that, "in the course of committing a theft did purposely threaten another with or put her in fear of immediate bodily injury," satisfying the elements of conviction of second-degree robbery. Thus, the judgment is amended to reflect defendant's conviction for second-degree robbery.
Defendant also argues that a comment made by the prosecutor in his summation resulted in an unfair trial and a denial of due process. Defendant testified that his father gave him $1000 to pay his insurance and to retrieve his car which had been impounded. He also stated he had received a small roll of money from Otis Bullock. As part of defendant's testimony, he told the jury his father was having surgery that day and could not attend the trial.
In summation, the prosecutor stated:
Mr. Gordon took the stand and told his story that you've got to ask yourself, does it make sense. Yes, I executed -- I happen to have all this money on me. Why? Well, because my dad gave me a thousand dollars this morning, earlier that morning something about my car was impounded and I needed that. It was interesting because we heard all this testimony about what a poor, crime ridden neighborhood it is and what a coincidence that in a poor, crime ridden neighborhood daddy just happens to give him a $1,000 that he has floating around, you know, to get his car -- car out. And of course dad didn't testify but, you know --and there's no corroboration of that but that was his story.
Defense counsel did not immediately object. Upon completion of the prosecutor's summation, the judge instructed the jurors to take their lunch break. After the jury left the court room, the judge inquired of the parties whether they wanted to address anything before the lunch break. Defense counsel responded, "Yes, Your Honor. If I heard Mr. Waterston in his closing say that Mr. Gordon didn't corroborate where he got his money from; is that Mr. Gordon's burden to corroborate where he got money from?" Both parties agreed it was not defendant's burden and the judge commented, "It might not be his burden but he did put that into the case and I think it's fair comment for the State to say there is no corroborating evidence." Defense counsel responded, "Okay."
Our Supreme Court addressed the use of a jury instruction permitting a negative inference upon a finding that a defendant failed to present available witnesses whose testimony would be reasonably expected to support his or her version of the facts. See State v. Clawans, 38 N.J. 162, 170-72 (1962). However, in State v. Alonzo Hill, the Court generally disapproved the use of Clawans instructions against defendants in criminal cases. State v. Alonzo Hill, 199 N.J. 545, 565-67, 566 n.8 (2009).*fn4
Nonetheless, the Court noted, "we recognize that not all summation comment on a defendant's failure to produce a witness would produce the impermissible effect of lessening the State's burden of proof." Hill, supra, 199 N.J. at 569 n. 9. This is such a case.
On the basis of the differences between the jury instruction given in Hill and the comment made by the prosecutor in this case, and weighing the relative strength of the evidence presented in both cases, we distinguish Hill and conclude that the error in this case is harmless. We accept the longstanding principle that "'[a] defendant is entitled to a fair trial but not a perfect one.'" State v. R.B., 183 N.J. 308, 334 (2005) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 604 (1953)).
Defendant also argues that the trial judge should have given a curative instruction after the offending remark was made by the prosecutor. In this case, the stray remark did not prevent defendant from establishing a defense on the merits. See State v. Witte, 13 N.J. 598, 612 (1953), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). Therefore, in light of the comment's fleeting nature, the ability of the trial judge to gauge the statement's effect on the jury, and the strength of the State's case, the omitted curative instruction was not so unduly prejudicial as to have denied defendant a fair trial and we find no basis for reversal. See State v. Cusick, 219 N.J. Super. 452, 467 (App. Div.), certif. denied, 109 N.J. 54 (1987).
The judgment of conviction and sentence for first-degree robbery is vacated; however, the judgment is amended to reflect defendant's conviction for second-degree robbery. The case is remanded to the Law Division for sentencing.
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Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Term Paper:
They want to maintain that livelihood. And for 90% of the world, being sustainable is a matter of life and death (Agnew n.d.)." To that end in 2007 they Architecture for Humanity launched the Open Architecture Network "an online, open source community dedicated to improving living conditions through innovative and sustainable design" where designers, engineers, and anyone else, professional or otherwise can share their ideas, designs and plans, collaborate, manage design projects from concept to implementation and build a more sustainable future (Open Architecture Network n.d.)
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Similarly while living in cities has a much smaller environmental footprint than living in rural and suburban areas, doing so often results in having green spaces. The Spiral Tower, designed by Philipp von Bock, is a family friendly eco tower designed for Berlin to overcome the lack of green space that often accompanies city living (Meinhold, Spiraling Eco Tower Provides Suburban-Style Living in the City 2010). Apartments are stacked in opposite directions in a criss-cross pattern, leaving open spaces for garden terraces (Meinhold, Spiraling Eco Tower Provides Suburban-Style Living in the City 2010).
Similarly the Idea House, "an eco house prototype that reinterprets the socio, cultural and environmental intricacies of the traditional Kampong house embraces environmental technologies in its attempts to become the first carbon zero residence in South East Asia (Green Modular Design of Idea House by Broadway Malyan 2009).
The first intriguing aspect of the Idea house is that it would be made of prefabricated modules both to reduce labor costs, but also to make deconstruction of the home easy at the end of the home's useful life, so the materials could be reused in another project (instead of being merely 'waste') a heavy nod to McDonough's argument that waste is a flaw in human design. Similarly the installation of gray water reuse systems - gray water is water that though unsuitable for direct consumption such as through drinking, cooking, or bathing, is, with minimal processing, suitable for a number of other purposes -- helps reduce the water consumption of the house (Dicum 2007). The green roof garden with rainwater capture system for irrigation provides multiple benefits including reducing building energy use, decreasing storm water runoff, mitigating urban heat island effect in cities, and improving air (Doug, et al. 2005). Green roofs also extend the life of the roof, also serving to reduce consumption.
Another quite visible aspect of this green building is the rooftop photovoltaic system to provide power to the entire house. Currently, most electrical systems are centralized systems powered by either coal or natural gas, in addition to being extremely harmful to the environment these systems lose a lot of energy to the inefficiencies of carrying electricity over long distance transmission lines. Solar panels provide clean energy that doesn't generate greenhouse gases. In addition, because the energy production is localized less energy needs to be produced to meet household needs because little energy is being lost to the inefficiency of transmission.
Sustainability in design is not just a question of high technology, but also of low. Optimal site orientation is a critical component of sustainable design. As the National Institute of Building Sciences Whole Building Design Guide points out, building location affects its sustainability directly because where buildings are 'facing' and consequently how much sun exposure a building gets (or doesn't get), whether there are protective barriers in high wind locations, trees etc. directly affects a buildings energy consumption, as well as indirectly (WBDG Sustainable Committee 2009). The energy consumed by transportation needs of occupants for commuting, the impact on local ecosystems (draining a wetland for example, to build a 'green community' is likely not sustainable), and the use/reuse of existing structures and infrastructures also affect a building's sustainability.
We already know that the path which we are on as a society is unsustainable. The question, then becomes what does a sustainable society look like? What vision do we hold of a sustainable society? As I have illustrated in the previous pages design is an integral component towards imagining an fashioning our sustainable future. As McDonough states it far more eloquently than I: "In the midst of a great deal of talk about reducing the human ecological footprint, we offer a different vision. What if humans designed products and systems that celebrate an abundance of human creativity, culture, and productivity? That are so intelligent and safe, our species leaves an ecological footprint to delight in, not lament?" (Braungart and McDonough 2002)
Agnew, Singeli. "India: Design Like You Give a Damn Interview." Front Line. http://www.pbs.org/frontlineworld/stories/india705/history/extended.html (accessed April 15, 2010).
Alter, Bonnie. "Sustainable Futures Exhibition Asks Can Design Make a Difference?" Treehuger.com. April 14, 2010. http://www.treehugger.com/files/2010/04/sustainable-futures-design-difference.php (accessed April 15, 2010).
-- . "Yves Behar and Puma Roll Out The Clever Little Bag." Treehugger. April 14, 2010. http://www.treehugger.com/files/2010/04/yves-behar-and-puma.php (accessed April 15, 2010).
Braungart, Michael, and William McDonough. Cradle to Cradle: Remaking the Way We Make Things. North Point Press, 2002.
Dicum, Gregory. "The Dirty Water Underground ." The New York Times, 31 May, 2007.
Doug, Banting PhD, et al. Report on the Environmental Benefits and Costs of Green Roof Technology for the City of Toronto. Toronto: Ryerson University, 2005.
Environment News Service. "New York City Tallies Its Greenhouse Gas Emissions ." Environment News Service. April 11, 2007. http://www.ens-newswire.com/ens/apr2007/2007-04-11-03.asp (accessed April 1, 2010).
Global Footprint Network. "Footprint Basics." Global Footprint Networ. December 03, 2009. http://www.footprintnetwork.org/en/index.php/GFN/page/footprint_basics_overview / (accessed April 10, 2010).
"Green Modular Design of Idea House by Broadway Malyan." Arnewde.com. November 15, 2009. http://www.arnewde.com/architecture-design/green-modular-design-of-idea-house-by-broadway-malyan / (accessed March 30, 2010).
Meinhold, Bridgette. "Living Exoskeleton Proposed for Province of Parma Headquarters." Inhabitat. April 19, 2010. http://inhabitat.com/2010/04/19/living-exoskeleton-proposed-for-province-of-parma-headquarters / (accessed April 19, 2010).
-- . "Spiraling Eco Tower Provides Suburban-Style Living in the City." Inhabitat. April 14, 2010. http://inhabitat.com/2010/04/14/spiraling-eco-tower-provides-suburban-living-in-the-city / (accessed April 15, 2010).
Open Architecture Network. "About the Open Architecture Network." http://openarchitecturenetwork.org/about (accessed April 18, 2010).
Owen, David. "Why New York is the greenest city in the U.S." The New Yorker, October 18, 2004.
Rocky Mountain Institute. "RMI Built Environment." RMI Built Environment. http://bet.rmi.org/our-work/case-studies/schools-and-labs.html (accessed April 7, 2010).
"Rocky Mountain Institute: Built Environment." Rocky Mountain Institute. http://www.rmi.org/rmi/Built+Environment (accessed April 18, 2010).
Sinclair, Cameron. "The Architect's Dilemma: The Architecture of Excess vs. An Architecture of Relevance." The Huffington Post. April 13, 2009. http://www.huffingtonpost.com/cameron-sinclair/the-architects-dilemma-th_b_185031.html (accessed April 15, 2010).
United Nations World Commission on Environment and Development (WCED). Our Common Future. Oxford: Oxford University Press, 1987.
Wald, Matthew L. "A U.S. Alliance to Update the Light Bulb ." The New York Times, March 14, 2007.
WBDG Sustainable Committee. "Optimize Site/Existing Structure Potential." National Institute of Building Sciences Whole Building Design Guide. August 18, 2009. http://www.wbdg.org/design/site_potential.php (accessed April 15, 2010).
- Studio Dosi Building Proposal (Meinhold 2010)
Spiral Tower
(Green Modular Design of Idea House by Broadway Malyan 2009)
This T-shirt is packaged in biodegradable corn starch bags, 720 tons of plastic yearly, by folding them one additional time they are able to reduce packaging by 45%. (Alter, Yves Behar and…[continue]
"Sustainability Is Development That Meets" (2010, April 18) Retrieved November 28, 2016, from http://www.paperdue.com/essay/sustainability-is-development-that-meets-1898
"Sustainability Is Development That Meets" 18 April 2010. Web.28 November. 2016. <http://www.paperdue.com/essay/sustainability-is-development-that-meets-1898>
"Sustainability Is Development That Meets", 18 April 2010, Accessed.28 November. 2016, http://www.paperdue.com/essay/sustainability-is-development-that-meets-1898
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Commonwealth Court of Pennsylvania
March 6, 2014
THW Group, LLC,v.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.
Page 331
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.
Page 332
ROBERT SIMPSON, Judge.
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
Page 335
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 now before us for disposition.
II. Issues
On appeal,[6] Neighbors argue the trial court erred in ignoring the ZBA's factual findings concerning the distinctions between a methadone treatment facility and a medical office in determining a methadone treatment facility was a permitted use in a C-2 District. They also argue a methadone treatment facility is not a permitted use under the Code because methadone treatment facilities are not specifically permitted and did not exist when the Code was enacted. Neighbors further contend the use permit L& I issued to Applicant was invalid where Applicant did not have a property interest and, thus, lacked standing to obtain the permit. Additionally, Neighbors maintain the trial court erred in relying on facts outside the ZBA record in concluding a methadone treatment facility was a permitted use in a C-2 District.
III. Discussion
A. ZBA's Determination that Methadone Treatment Facilities are not Permitted in C-2 Districts
Neighbors first contend the ZBA properly sustained their appeal because methadone treatment facilities are not defined in the Code, and the Code is a permissive code in which uses must be specifically allowed. As the ZBA recognized, a methadone treatment facility is not identified as a specifically authorized use in C-2 Districts. See Section 14-302 of the Code. The ZBA also correctly determined a methadone treatment facility does not fall within any of the use categories specifically authorized in C-2 Districts, such as medical offices, hospitals, and medical centers.
Neighbors argue the ZBA's decision was consistent with this Court's recent decisions that highlight the paramount importance of definitions in a permissive code. See Costco; Thomason. Neighbors assert the ZBA's determination that a methadone treatment facility is not a permitted use in a C-2 District was based on its findings
Page 336
concerning the stark differences between a methadone treatment facility and the other uses that are specifically permitted in C-2 Districts, i.e ., medical offices, hospitals, and medical centers. In particular, the ZBA accepted and relied on the unrebutted expert testimony of Neighbors' Expert concerning the unique characteristics of a methadone treatment facility, as compared to medical offices, hospitals, and medical centers. Thus, as in Costco and Thomason, the ZBA properly determined a methadone treatment facility was not a specifically permitted use and could not be " shoe-horned" into a permitted use. Appellants' Br. at 14. We disagree.
To that end, contrary to Neighbors' assertions, the trial court did not ignore the ZBA's factual findings in determining Applicant's proposed methadone clinic is a permitted use under the Code. Rather, the trial court looked to the applicable permitted uses in the C-2 District contained in the Code, and it determined Applicant's proposed methadone clinic was a permitted use. Thus, the trial court determined the ZBA erred as a matter of law in reversing L& I's grant of the permit because the ZBA's decision rested on a misinterpretation of the Code. We agree with trial court's determination.
The interpretation of a zoning ordinance is a question of law. Northampton Area Sch. Dist. v. Zoning Hearing Bd. of Twp. of Lehigh, 64 A.3d 1152 (Pa. Cmwlth.), appeal denied, __ Pa.
__, 76 A.3d 540 (2013). Similarly, the question of whether a proposed use falls
within a given zoning classification is a question of law that is fully subject
to this Court's review. Id.
When interpreting the meaning of municipal ordinances, we are guided by the principles of statutory construction. Bailey v. Zoning Bd. of Adjustment of City of Phila., 569 Pa. 147, 801 A.2d 492 (2002). Like statutes, the primary objective of interpreting ordinances is to determine the intent of the legislative body that enacted the ordinance. See Section 1921 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921; Bailey; Malt Beverages Distribs. Ass'n v. Pa. Liquor Control Bd. 918 A.2d 171 (Pa. Cmwlth. 2007) (en banc), aff'd, 601 Pa. 449, 974 A.2d 1144 (2009). In pursuing that end, we are mindful that an ordinance's plain language generally provides the best indication of legislative intent. Id. Thus, statutory construction begins with examination of the text itself.
In reading the plain language of an ordinance, " [w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage." 1 Pa. C.S. § 1903(a). Further, every ordinance shall be construed, if possible, to give effect to all its provisions so that no provision is " mere surplusage." 1 Pa. C.S. § 1921(a). Where the words in an ordinance are free from all ambiguity, the letter of the ordinance may not be disregarded under the pretext of pursuing its spirit. 1 Pa. C.S. § 1921; see also 1 Pa. C.S. § 1903 (words and phrases in a statute shall be construed in accordance with their common and accepted usage).
Also, where a court needs to define an undefined term, it may consult dictionary definitions for guidance. Adams Outdoor Adver. LP v. Zoning Hearing Bd. of Smithfield Twp., 909 A.2d 469 (Pa. Cmwlth. 2006).
In addition, zoning ordinances must be construed expansively so as to afford the landowner the broadest possible use and enjoyment of his land. Rabenold v. Zoning Hearing Bd. of Palmerton Twp. 777 A.2d 1257 (Pa. Cmwlth. 2001).
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Former Section 14-303(2)(k) of the Code, which set forth the use regulations for the C-2 District, permits by right, " the erection, construction, alteration or use of buildings and/or land for ... " [p]ersonal service or treatment of patients." Id. (emphasis added). The C-2 District regulations also permit by right, " [t]he uses permitted in any Residential District, except attached buildings used solely for dwelling purposes. All use qualifications provided in Residential Districts are not required in this district[.]" Former Section 14-303(2)(a) of the Code (emphasis added). In turn, " [m]edical and surgical hospitals and medical centers,[7] and sanitaria" are permitted in certain residential districts, as are " offices of any doctor of medicine, osteopathy, dentistry, chiropractic, optometry or podiatry; minister or lawyer[.]" Former Sections 14-203(2)(a)(6) & 14-212(a)(1) of the Code (emphasis added); see also former Section 14-203(b) of the Code (permitting offices of doctors of medicine as a " residential-related" use). Indeed, the ZBA recognized that " medical offices, hospitals and medical centers are permitted under C-2 regulations ...." ZBA Op., Concl. of Law No. 3.
Here, Applicant proposes to use the property for a methadone clinic. The dictionary defines the term " clinic," in relevant part, as " a facility (as of a hospital) for diagnosis and treatment of outpatients." Merriam-Webster's Collegiate Dictionary 214 (10th ed. 2001) (emphasis added). Applying the plain meaning of this term, Applicant's proposed use clearly qualifies as a use of the property for the " treatment of patients," and a medical office, both of which are specifically permitted in the C-2 District. Indeed, as the ZBA found, services provided at the proposed facility include administering daily medication, drug counseling, evaluation of new patients, and addiction related medical testing, including urine and blood testing. F.F. No. 11. The ZBA also found the proposed facility would be staffed by a doctor, counselors and a registered nurse. F.F. No. 10. Because Applicant's proposed use falls within a specific, permitted use category in the C-2 District in which the property lies, no error is apparent in the trial court's legal determination that Applicant's proposed methadone clinic is permitted in the C-2 District.[8] See Discovery House, Inc. v. Metro. Bd. of Zoning Appeals of Marion Cnty., 701 N.E.2d 577, 579 (Ind.Ct.App. 1998) (proposed methadone clinic fell " squarely under" language of permitted use classification for " [o]ffices
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for physicians ... and other professions dealing with public health." ); see also Comprehensive Addiction Treatment Servs., Inc. v. City & Cnty. of Denver, 795 P.2d 271 (Colo. App. 1989) (proposed methadone treatment facility qualified as an " office," like other medical offices, and was permitted by right in applicable zoning district under city zoning ordinance).
Further, Thomason and Costco, relied on by Neighbors, do not compel a different result. First, in Costco, this Court affirmed decisions of a zoning hearing board and a common pleas court that Costco's proposed gasoline filling station was not permitted as an accessory use to its retail store where the zoning ordinance only permitted " shops, stores or other indoor facilities" for retail sales as both permitted and accessory uses.
Costco, 49 A.3d at 540. Because a gasoline station was not included in the zoning ordinance's varied list of permitted retail uses as it was not a shop, store or " other indoor facility," we determined the lower tribunals properly determined Costco was not entitled to approval of its proposed gasoline station as an accessory use.
Costco is readily distinguishable here. There, we held the use of property for a gas station, which occurs almost entirely outdoors, could not be considered an indoor facility. Here, unlike in that case, Applicant's proposed methadone treatment clinic falls within the Code's permitted use of a building for the " treatment of patients," see former Section 14-303(2)(k) of the Code, and as a medical office.
Also distinguishable is Thomason. There, this Court held a zoning ordinance was de jure exclusionary where it excluded bed and breakfasts. Specifically, we held that a proposed five-room bed and breakfast did not fall within the zoning ordinance's defined " hotel, motel or inn" use, which required accommodations for more than 20 individuals, or the zoning ordinance's defined " rooming house" use, which contemplated an owner-occupied building with accommodations for no more than three roomers. Thomason, 26 A.3d at 564. In so doing, we focused on a provision of the zoning ordinance that specifically prohibited bed and breakfasts as a home occupation throughout the entire township. We further explained the proposed bed and breakfast did not fall within the defined " hotel, motel or inn" use because it would accommodate far fewer guests than that required by the ordinance, and it did not fall within the definition of a " rooming house" because a rooming house was a type of home occupation and the zoning ordinance specifically prohibited bed and breakfasts as a home occupation.
Clearly, Thomason is inapposite here. First, Thomason was based on the specific language of the Radnor Township Zoning Ordinance, not the Philadelphia Zoning Code. In addition, while at first blush it would appear that a bed and breakfast could fall within " motel, hotel or inn" or " rooming house" use categories, a reading of the zoning ordinance in its entirety in that case revealed it could not, based on the specific exclusion of bed and breakfasts as a permitted home occupation. Unlike in Thomason, Neighbors point to no Code provision that reveals that methadone clinics do not fall within the broad permitted use of property in a C-2 District for the " treatment of patients" or as a medical office or " medical center."
B. Non-existence of Methadone Treatment Facilities When Code was Written
Neighbors next argue the ZBA properly sustained their appeal because methadone treatment facilities did not exist when the Code was written. To that
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end, Neighbors analogize this case to the common pleas court's decision in Boni. In line with Boni, the ZBA here determined methadone treatment facilities did not exist when the Code was written, and " [i]t is therefore unlikely that City Council, in authorizing medical offices, contemplated a facility that would serve such a high volume of patients on a daily basis." ZBA Op., Concl. of Law No. 4. Thus, Neighbors contend, the ZBA properly determined a methadone treatment facility was not a permitted use in the C-2 District. This argument fails as Neighbors' reliance on Boni is misplaced.
More specifically, in Boni, the zoning hearing board granted a special exception for a " methadone treatment facility" under the theory that such a facility was a medical " clinic" under the terms of the county zoning ordinance. At the time the application was filed, the ordinance made no specific provision for a " methadone treatment facility," but an ordinance amendment pending at the time of the applicant's application made clear that such facilities were not included in the " clinic" use category. 81 Pa. D. & C.4th at 60. On appeal, the court of common pleas opined:
What the pending ordinance makes crystal clear, however, is that the definition of 'clinic' contained in the previous ordinance absolutely did not include a 'methadone treatment facility.' Methadone treatment facilities were essentially unknown when the previous ordinance was written. If the previous ordinance was understood to include a 'methadone treatment facility' as an ordinary medical 'clinic,' there would have been no need for the specific definition and specific provisions regarding a 'methadone treatment facility' in the new ordinance.
Id. (emphasis in original). Ultimately, the common pleas court remanded for further evidence to determine whether the proposed facility qualified as a methadone treatment facility under the amendment.
Boni is not controlling. See Ralston v. Ralston, 2012 PA Super 234, 55 A.3d 736 (Pa. Super. 2012) ( decisions of courts of common pleas are not binding precedent for appellate courts, but may be considered for their persuasive value). Moreover, Boni is easily distinguishable from the case presently before us. Specifically, the Code does not contain a definition of " clinic" or " medical office" that would exclude the proposed use. Rather, the Code permits a " medical office" for the " treatment of patients." As explained in greater detail above, the Code's C-2 District use regulations are clearly broad enough to encompass a methadone clinic. Moreover, unlike in Boni, there was no Code amendment pending here that would evidence a different intent by City Council. Indeed, City Council repealed and replaced Title 14 of the Code in 2011, and it did not make any special provisions for methadone clinics.[9]
C. Purpose and Scope of Code
Neighbors also briefly assert the ZBA's decision is consistent with the purpose and scope of the Code, and the ZBA's " powers" pursuant to Sections 14-101 and 14-1801 of the Code. To that end, in enforcing the Code, the ZBA is tasked with the responsibility of promoting " the public health, safety, order and general welfare by regulating and restricting the location ... and use of buildings ... to conserve property value and to encourage the most
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appropriate use of land ...." and " to lessen congestion in the streets." Section 14-101(1) of the Code. Neighbors contend the evidence relied on by the ZBA concerned these issues. Reproduced Record (R.R.) at 46a-49a. Thus, the ZBA's decision was consistent with both the Code's purpose and scope and the ZBA's power and responsibility to enforce its provisions. We reject this argument.
More particularly, we cannot sustain the ZBA's decision on the ground that it was consistent with the " purpose" and " scope" of the Code. Rather, as explained above, because the express terms of the Code are broad enough to encompass Applicant's proposed methadone treatment clinic as a use permitted by right in the C-2 District, any alleged inconsistency with the " purpose" or " scope" of the Code cannot serve as a basis upon which to reject Applicant's proposed use. See Freedom Healthcare Servs., Inc. v. Zoning Hearing Bd. of City of New Castle, 983 A.2d 1286, 1292 (Pa. Cmwlth. 2009) (where proposed methadone clinic was permitted by right without regard to number of patients served, concerns over health and safety of community, including unsuitability of volume of cars and patients and extensive hours of operation, as well as traffic and parking issues, while valid, were legally insufficient).
D. Prohibition on " Multiple Structures Per Lot"
Neighbors further maintain the ZBA properly found Applicant's proposed use created " multiple structures per lot," which is specifically prohibited by Section 14-113 of the Code. Thus, Neighbors argue, even if a methadone treatment facility was a permitted use in a C-2 District, which it is not, separate, proper grounds existed for the ZBA's decision sustaining Neighbors' appeal. This argument, to which Neighbors devote two sentences of their brief, fails.
Despite the fact that this issue was not raised or even discussed at the ZBA hearing, the ZBA determined L& I also should have denied Applicant's permit request on the ground that, " it created a condition of 'multiple structures per lot,' which is specifically prohibited by Code Section 14-113." ZBA Op., Concl. of Law No. 5. The ZBA stated " [t]he rules for determining what will constitute multiple structures are set forth at Code Section 14-102(119)," which defines the term ' Separate Building ' as follows:
Where any building is subdivided into separate units, floors or portions of floors which are not interconnected and served by a common entranceway to other units, floors or portions of floors, each subdivision of the structure shall be considered a separate building, provided, that each separate building may have additional entranceways serving the ground floor or portions thereof;
Concl. of Law No. 6. The ZBA stated that the plans submitted with Applicant's use registration application show no shared entryway or interconnection between the space occupied by the proposed methadone clinic and the space devoted to other uses on the lot. Concl. of Law No. 7. Therefore, the tenant space occupied by the proposed methadone clinic constitutes a " separate building" under the Code. Id. As such, the ZBA determined, Applicant's proposal required a variance from Section 14-113's prohibition of " multiple structures on a lot."
Contrary to the ZBA's convoluted determination, we perceive no violation of Section 14-113 of the Code. That Section states: " Unless otherwise specified under the provisions of this Title, only one principal structure or use shall be permitted on a lot." Id. (Emphasis added.)
Despite its determination that Applicant's proposal would impermissibly create
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" multiple structures per lot," see Concl. of Law No. 5, the ZBA found Applicant's proposed methadone clinic would be located " on the first floor of an existing [two] story structure ...." F.F. No. 1. Thus, Applicant's proposal would not create an additional or new " principal structure" as proscribed by Section 14-113 of the Code.
The ZBA also referenced Section 14-102(119) of the Code's definition of " separate buildings" in determining Applicant's use of the first floor for its proposed clinic would constitute a " separate building" because it is on a separate floor than the apartments above it, and it lacks an interconnection and common entranceway to the other floors of the building.
While the ZBA correctly observed that Section 14-113 of the Code permits only one principal structure per lot, Applicant's proposal does not contemplate creation of an additional " principal structure" on the lot. Thus, even if Applicant's proposal contemplates the creation of " separate buildings" as that term is defined by the Code, it simply does not contemplate creation of a prohibited additional " principal structure."
Perhaps more importantly, our review of the record reveals the original 1977 zoning/use registration permit L& I issued for the property,[10] which allowed for a restaurant and three shops on the first floor and 11 apartments on the second floor of the structure, long pre-dates the Code provision permitting only one principal structure on a lot.
E. Trial Court's Rejection of Neighbors' Expert's Testimony
Neighbors also argue the trial court exceeded its authority in rejecting the ZBA's acceptance of and reliance on the testimony of Neighbors' Expert concerning the factual differences between a methadone treatment facility and a " medical office for the treatment of patients." Neighbors assert the trial court was bound by the ZBA's factual findings where the ZBA issued findings of fact and the trial court did not take additional evidence. Thus, the trial court was required to accept the ZBA's factual finding that a methadone treatment facility was not a " medical office." We reject this argument.
In particular, Neighbors' Expert is an expert in the field of methadone clinics, not zoning. His testimony was admitted under that limitation. R.R. at 94a-95a. Although Neighbors' Expert testified regarding the differences between a methadone clinic and a typical medical office, he was not qualified to testify as to what constitutes a " medical office" under the Code. In any event, Neighbors' Expert essentially testified that a methadone clinic is a medical facility that treats patients by providing medication, counseling, physical examinations, and taking blood and urine samples. R.R. at 95a-96a. On cross examination, Neighbors' Expert agreed these are also characteristics of a medical office. R.R. at 103a. The trial court did not err in choosing not to rely on Neighbors' Expert's testimony to make a legal determination as to what constitutes a " medical office" under the Code.
F. Federal Law
Neighbors also contend the trial court erroneously concluded that the ZBA's determination results in impermissible discrimination in violation of the ADA. In
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support, the trial court relied on the Third Circuit's decision in New Directions. Here, unlike in that case, there is no such facial discrimination in the Code. Rather, the ZBA simply determined a methadone treatment facility is not a " medical office for the treatment of patients," and thus is not a permitted use in a C-2 District. Again, we disagree.
As the trial court explained in its opinion, federal law requires that recovering heroin addicts be treated as persons with a disability under the ADA and the federal Rehabilitation Act. Treating methadone clinics differently than other medical clinics violates the ADA. Freedom Healthcare (citing New Directions).
In New Directions, the Third Circuit held that Section 621 of the MPC, which restricted the placement of methadone treatment facilities within 500 feet of a school, public playground or park, residential housing area, child-care facility or church, facially violated Title II of the ADA and Section 504 of the federal Rehabilitation Act. In New Directions, the operator of a methadone treatment clinic and individual methadone patients brought suit after the City of Reading denied the operator's permit application in which it sought to open a new treatment center in an area of the city interspersed with private residences. The City denied the zoning permit application based on Section 621 of the MPC. The operator and patients of the clinic brought suit on constitutional and federal statutory grounds, raising both facial and as applied challenges to Section 621.
Relying on prior decisions by the Sixth[11] and Ninth Circuits,[12] the Third Circuit held Section 621 of the MPC, which singled out methadone clinics (and thereby methadone patients) for different treatment was facially discriminatory under the ADA and the Rehabilitation Act. The Court noted both federal statutes withhold protection from individuals who pose a significant risk to the health or safety of others,[13] but determined the record before it contained ample evidence the methadone patients did not pose a significant risk. The Court further stated that neither the City of Reading nor its amicus, the Commonwealth, offered any evidence to the contrary.
Two years later, in Freedom Healthcare, this Court relied on New Directions, in rejecting neighbors' concerns over the placement of a proposed methadone clinic in their neighborhood, explaining: " Simply put, a methadone clinic cannot be treated any differently than a medical clinic that is serving as an ordinary medical clinic." Freedom Healthcare, 983 A.2d at 1292; see also Habit OPCO v. Borough of Dunmore (Pa. Cmwlth., No. 2312 C.D. 2010, 2011 WL 10858496 (zoning ordinance provisions that treated methadone clinics differently from other medical clinics, were facially discriminatory under the ADA and were therefore invalid).
Based on this authority, the trial court here correctly stated, " the [Third] Circuit has held that municipalities are not free to apply different zoning standards to methadone clinics from an ordinary medical clinic. ... Although this court might sympathize with the concerns of the surrounding
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community, we are bound to follow the existing law of this City and Commonwealth." Tr. Ct., Slip Op., at 6.
G. Trial Court's Alleged Reliance on Extra-Record Evidence
Neighbors next maintain the trial court erred in accepting and relying on evidence that was not part of the record before the ZBA where the trial court did not receive additional evidence. Specifically, the trial court relied on the Oxford English Dictionary's definition of " clinic," which Applicant provided to the trial court during oral argument, even though that dictionary definition was not part of the record before the ZBA. Neighbors assert the trial court's acceptance and reliance on this dictionary definition was an impermissible abuse of the trial court's authority, particularly where numerous definitions from various other sources (including the McGraw Hill Concise Dictionary of Modern Medicine, Colliers English Dictionary, and the American Heritage Dictionary of the English Language) were part of the record before the ZBA. R.R. at 284a-90a. This argument fails.
The rules of statutory construction indicate that where terms are not defined they must be construed according to rules of grammar and according to their common and approved usage. 1 Pa. C.S. § 1903(a); Therres v. Zoning Hearing Bd. of Borough of Rose Valley, 947 A.2d 226 (Pa. Cmwlth. 2007). Pennsylvania courts generally use dictionaries as source material to determine the common and approved usage of terms not defined in statutes. Pennsy Supply, Inc. v. Zoning Hearing Bd. of Dorrance Twp., 987 A.2d 1243 (Pa. Cmwlth. 2009); Adams Outdoor Adver.; Therres. Thus, the trial court did not exceed its authority here by utilizing a dictionary to define a term that is not defined in the Code.
H. Applicant's Alleged Lack of Standing
As a final point, Neighbors argue the trial court erred in failing to conclude Applicant lacked standing to obtain the use permit. Neighbors point out that under Pennsylvania law, only a " landowner," defined as the owner or the owner's lessee, has standing to apply for relief in zoning matters. They contend the trial court here erred in failing to conclude Applicant lacked standing to obtain the use permit where it did not have a property interest when it filed its application and when the use permit was subsequently issued. Neighbors argue the trial court's opinion is void of any discussion of the standing issue. Nonetheless, it is beyond dispute that Applicant did not have a property interest when it applied for the permit, nor did it have a property interest when the permit was issued. Thus, the issuance of the permit was clearly erroneous and should be invalidated. Berman v. Pa. Convention Ctr. Auth., 901 A.2d 1085 (Pa. Cmwlth. 2006) (court may take judicial notice at any stage of a proceeding, including the appellate stage). We reject this argument.
To that end, our review of the record reveals that Neighbors did not raise a standing issue before the ZBA; therefore, this issue is waived.[14] See Thompson v. Zoning Hearing Bd. of Horsham Twp., 963 A.2d 622 (Pa. Cmwlth. 2009) ( lack of standing is not a jurisdictional question and any defect in standing can be waived if not presented before the zoning hearing board). Indeed, in zoning cases, this Court consistently holds that failure to
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raise the issue of standing during the proceedings before the fact-finder results in waiver. Friedlander v. Zoning Hearing Bd. of Sayre Borough, 119 Pa.Cmwlth. 164, 546 A.2d 755 (Pa. Cmwlth. 1988); Active Amusement Co. v. Zoning Bd. of Adjustment, 84 Pa.Cmwlth. 538, 479 A.2d 697 (Pa. Cmwlth. 1984); Cohen v. Zoning Bd. of Adjustment, 53 Pa.Cmwlth. 311, 417 A.2d 852 (Pa. Cmwlth. 1980).
For all the foregoing reasons, we affirm the trial court's order.
Cohn Jubelirer, Judge
did not participate in this decision.
AND NOW, this 6th day of March, 2014, the order of the Court of Common Pleas of Philadelphia County is AFFIRMED.
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Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Term Paper:
Family Life and Divorce: A Comparison Between the 1940's and the 1990's
The family has changed significantly in the fifty-year period from 1940 to 1990. The decade of the 1940's is one where World War II had just ended and people were beginning to adjust to life after the war. One of the major impacts the war had involved the fact that it put women into the workplace and established that women could be more than just homemakers. This is often seen as the beginning of a shift towards women and men being more equal, a shift that is continuing today.
One of the major issues of the 1990's is divorce, with divorce having a significant impact on the family. Some argue that the family is dying, others argues that the family is finally working. Either way, there is no doubt that the family is changing.
To consider these issues further, firstly the family of the 1940's will be presented. It will be shown how this period of time planted the seeds for the changes now being seen in the family. This will lead to a discussion on the modern family, and specifically, the modern family in relation to divorce. The modern family will then be looked at to see what sociological impact divorce has. Finally, it will be considered how technology impacts on the issue of divorce.
The Family of the 1940's
The family of the 1940's was one of change. World War II meant that women found themselves forced to take on greater roles at home. Women became part of the workforce and became more independent. At this time on history, divorce was allowed but not totally accepted. One book on the subject of the changing nature of divorce notes that the law represents the dominant social views of this time (Phillips 314). The divorce law at this time was one of fault-based divorce. Weitzman (48) describes this approach as one that was based on protecting marriage. Divorce was still allowed but only based on proving a fault of one party, such as abusiveness, adultery or cruelty.
In the year 1940 the divorce rate among the total population was 2.0% and the divorce rate among married women 15 years and over was 8.8% (Clarke). In 1946 these figures made a significant increase to 4.3 and 17.9% respectively (Clarke). The increase shows that the war had a major impact on the divorce rate.
This increase can be attributed to one major fact: because of World War II, women learnt that they could be independent. While men were away at war, women had little choice but to take on the traditional roles of men including entering the workforce. This was a major change for women, and as the doubling of the divorce rates shows, one that had a significant impact.
Phillips (422) describes three factors that are contributors to increasing divorce rates, "Easier access to divorce, married women's employment, and changes in social values." World War II is the beginning of a major change in social values.
As noted, for the first time, women became independent and took on the traditional male roles of society while men were at war. This is the basis for a continual change towards equality for the sexes.
This was also the beginning of women being employed. This trend continued with women finding roles within the workplace. As this continued, women felt more valued because of their working lives. Traditionally, men were the money earners and this gave them a certain power over their wives. With women now equally able to work, this power was reduced and the husband and wife relationship became less about domination and more about equality.
As noted earlier, the law is a good measure of the values of society. The change in social values continued and by the end of the 70's divorce laws across America had changed with no-fault divorce laws now the norm. Weitzman (40) describes these no-fault divorce laws noting that they are based on facilitating divorce, rather than protecting marriage. This shows that society has now changed with divorce being allowed and accepted as a right of every person. Importantly, these laws also equalized the sexes unlike previous fault-based laws. Fault-based laws had been based on women gaining custody of the children, while the men were responsible for paying alimony. By the end of the 70's this had changed with men and women both equally responsible for the child support and equally eligible for custody. This indicates that the gender roles had now been largely equalized with women no longer seen as homemakers and men no longer seen as the breadwinners.
In summary then, it can be seen that World War II had a major impact on the family and on divorce. World War II was the beginning of a change in society's values. This initial change meant that women began to enter the workforce, with this increasing the change of social values. To reflect these changing values, divorce laws changed, making divorce easier for all parties. This represented a change from protecting marriage and the family to giving all individuals, both male and female, the power to decide to end their marriage at any time.
The Family of the 1990's
The family of the 1990's has divorce as a central part of it. The divorce rate has steadily increased from 1946 to 1990, with 1990 figures showing a divorce rate of 4.7% among the general population and 20.5% among married women 15 years and over (Clarke). These figures compare with the 1940 and 1946 figures of 2.0 and 4.3%, and 8.8 and 17.9% respectively (Clarke).
Statistics for 1990 show that a total of 1,182,000 divorces occurred in the year, that the wife was awarded custody in 72% of cases, that the husband was awarded custody in nine percent of cases, that in 16% of cases joint custody was granted, and that 16.8 per 1000 children under 18 are involved in divorce (Clarke). These statistics show that divorce has a major impact on the family, changing the structure significantly.
The modern family has been described as including: married homosexuals and their children; blended families; single-parent families; childless couples; single persons; and lesbian and gay couples (Bessant & Watts 127). Families no longer have the traditional mother and father. Instead, families include single-parent families, ones where custody is shared between two parents and ones where children have parents, stepparents, stepsisters and stepbrothers.
The Impact of Divorce
It has now been seen that divorce is a part of modern society and the modern family. The next step is to consider what impact this has. One of the major considerations is the impact on the children.
One study conducted in 1993 found that children of divorced parents have poorer relationships with their parents, are more likely to drop out of school, are more likely to need psychological help and are more likely to get into trouble with the law (Zill, Morrison, & Coiro).
Other authors, such as Coontz in her book The Way We Are: Coming to Terms with America's Changing Families, argues that divorce and the changing family is not the problem, but the fact that society has not yet adapted to the changes. Coontz argues that society and society's institutions are still based on a traditional view of the family, with two parents, a mother as housewife and carer and a father as breadwinner. As Coontz (7) argues, "We cannot help contemporary families if we...insist there is only one blueprint for how all families should look and act." Coontz argues that workplaces, schools, childcare centers and the media all need to accept that families come in many different types. In Coontz's view, the family has changed and society needs to recognize this and adapt to it. Looked at in this way, the important thing is not whether or not divorce and changing families are good or bad, but how the reality of the modern family can be made most effective.
Technology and Divorce
There are two reasons why technology has a significant impact on divorce. Firstly, Internet technology makes divorce easier and secondly, Internet technology makes resources and support more accessible.
It was noted earlier that one of factors that impacts on the divorce rate is the ease of access to divorce. The Internet is making this easier than ever. An article in the Los Angeles Times in 2001 described a web site that allows for Californians to divorce over the Internet. The web site allows people to complete the legal papers in less than two hours, the papers are then mailed to the courthouse and a legal divorce is the result (Miller). This type of service makes divorce quick, simple and easily accessible.
The second reason is that Internet technology makes support and resources more accessible for those considering divorce. Many individuals may consider divorce, but without support from others, may not have the strength to make a definite decision about it. Internet technology however, makes…[continue]
"Family Life And Divorce A Comparison Between" (2002, November 02) Retrieved December 10, 2016, from http://www.paperdue.com/essay/family-life-and-divorce-a-comparison-between-137857
"Family Life And Divorce A Comparison Between" 02 November 2002. Web.10 December. 2016. <http://www.paperdue.com/essay/family-life-and-divorce-a-comparison-between-137857>
"Family Life And Divorce A Comparison Between", 02 November 2002, Accessed.10 December. 2016, http://www.paperdue.com/essay/family-life-and-divorce-a-comparison-between-137857
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