Smith Berch, Inc. v. Baltimore County, Md., Civil No. CCB-98-1821.

• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)
• Writing for the Court: Blake
• Citation: 115 F.Supp.2d 520
• Parties: SMITH BERCH, INC. v. BALTIMORE COUNTY, MARYLAND, et al.
• Docket Number: Civil No. CCB-98-1821.
• Decision Date: 28 July 2000

115 F.Supp.2d 520 SMITH BERCH, INC.
v.
BALTIMORE COUNTY, MARYLAND, et al. Civil No. CCB-98-1821. United States District Court, D. Maryland. July 28, 2000.

Page 521

Richard C. Boldt, Baltimore, MD, Jennifer D. Collier, Law Office, Ellen M. Weber, Washington, DC, for Plaintiff.

Carol Saffran-Brinks, Towson, MD, Ellen M. Weber, Washington, DC, for Defendants.

MEMORANDUM

BLAKE, District Judge.

Now pending before the court are cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Smith Berch, Inc., trading as the White Marsh Institute ("WMI"), brought this action against Baltimore County and related defendants ("the County") alleging that the County, in denying WMI a zoning permit for its proposed methadone treatment program, violated the plaintiff's rights under the Americans with Disabilities Act ("ADA") and the Due Process Clause of the Fourteenth Amendment. In an Order dated August 9, 1999, this court dismissed WMI's Section 1983 Due Process claim. The court, however, denied the County's motion to dismiss WMI's cause of action under Title II of the ADA. The court denied without prejudice the County's motion to dismiss WMI's cause of action under Title IV of the ADA.¹

By mutual agreement, the parties have submitted cross-motions for summary judgment on WMI's claim for declaratory and injunctive relief.² This matter has been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons that follow, the court will grant the plaintiff's motion and deny the defendants' motion.

STANDARD OF REVIEW

Rule 56(c) of the Federal Rules of Civil Procedure provides that:

[Summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Shaw v.

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Stroud, 13 F.3d 791, 798 (4th Cir.1994). In making this determination, the evidence of the party opposing summary judgment is to be believed and all justifiable inferences drawn in her favor. Halperin v. Abacus Technology Corp., 128 F.3d 191, 196 (4th Cir.1997) (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505). The nonmoving party may not rest upon mere allegations or denials in her pleading, however, but must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Allstate Fin. Corp. v. Financorp, Inc., 934 F.2d 55, 58 (4th Cir.1991). The "mere existence of a scintilla of evidence in support of the plaintiff's position" is not enough to defeat a defendant's summary judgment motion. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

BACKGROUND

The facts of this case are set forth in detail in Smith-Berch, Inc. v. Baltimore County, 68 F.Supp.2d 602, 621-23 (D.Md. 1999). The additional facts offered by the parties since that opinion are as follows.

Baltimore County follows a permissive zoning system whereby a use that is not delineated by the Baltimore County Zoning Regulations ("B.C.Z.R.") is not permitted. (Pl.Mot., Ex. A) The delineated uses are broadly defined, however, and most non-listed uses can fit within a listed use. (Id.) The County considers both "for-profit counseling centers" and "for-profit drug treatment programs" to fall within the B.C.Z.R. definition of "office." (Pl.Mot., Ex. C) Accordingly, these centers may locate as of right in a Business Roadside ("B.R.") zone (the zone in which WMI sought to locate) so long as they do not dispense drugs. (Id.) On the other hand, proposed drug treatment programs that offer methadone therapy must undergo a public hearing to determine both their category of use and, if not permitted as of right, whether they can obtain a special exception as a community care center. (Def.Mot., Ex. 1, pp. 3-4)

Evidence exists that the defendants had previously considered for-profit methadone clinics to have a right to locate in a B.R. zone without a public hearing. In 1993, the County Council passed Resolution 1993 asking the Baltimore County Planning Board ("Planning Board") to consider proposing amendments to the B.C.Z.R. that would define methadone clinics and restrict them from inappropriate zones. (Pl. Mot., Ex. D). This resolution stated that "methadone clinics fall into the classification of medical clinics and are permitted as of right in business and manufacturing zones." (Id.)

In response to this resolution, the Baltimore County Office of Planning and Zoning ("Planning Office") prepared a report. This report, dated April 12, 1993, states that methadone clinics fall "within both the definition of `office' and the definition of `medical office,' and not within the narrower definition of `medical clinic.'" (Pl.Mot., Ex. E, p. 2) Both "offices" and "medical offices" are permitted as of right in a B.R. zone. (Id.) Additionally, the Planning Office noted:

The Baltimore County Office of Law has advised that it would be extremely difficult, legally, for a locality to differentiate between non-profit and for-profit land uses or to require separate standards for methadone clinics as compared to medical offices. The manner in which a medical facility is run is not a land use issue, but rather is under the purview of the licensing agency.

(Id. at p. 3) The report recommended no changes at that time to the zoning regulations concerning methadone clinics. (Id.) The...