Smith-Berch, Inc. v. Baltimore County, Md.

• Decision Date: 09 August 1999
• Docket Number: No. CIV. CCB-98-1821.,CIV. CCB-98-1821.
• Parties: SMITH-BERCH, INC., trading as the White Marsh Institute v. BALTIMORE COUNTY, Maryland, et al.
• Court: U.S. District Court — District of Maryland

68 F.Supp.2d 602

SMITH-BERCH, INC., trading as the White Marsh Institute v. BALTIMORE COUNTY, Maryland, et al.

No. CIV. CCB-98-1821.

United States District Court, D. Maryland.

August 9, 1999.

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Ellen M. Weber, Washington, DC, for Plaintiff.

Carol Saffran-Brinks, Assistant County Attorney, Baltimore County Office of Law, Towson, MD, for Defendant.

MEMORANDUM

BLAKE, District Judge.

Now pending before the court is Defendants' motion to dismiss or, in the alternative, for summary judgment. This case centers on Plaintiff's contention that, in denying Plaintiff a zoning permit for its proposed methadone treatment program, Defendants violated Plaintiff's rights under the Americans With Disabilities Act ("ADA") and the Due Process Clause of the Fourteenth Amendment.¹ In their motion, Defendants respond by asserting a variety of immunity and substantive defenses that they contend require the court to enter judgment in their favor. This matter has been fully briefed, and oral argument was heard on July 23, 1999. For the reasons that follow, the court will deny Defendants' motion as to Plaintiff's ADA claim, but grant Defendants' motion as to Plaintiff's due process claim.

BACKGROUND

The White Marsh Institute ("WMI") was established in March 1997 by Walter Smith and Neal Berch for the purpose of providing methadone treatment services to individuals with opiate addiction living in the White Marsh area of Baltimore County. Compl. ¶¶ 10, 32. Although controversial, methadone treatment is widely recognized as an effective method for combating the effects of opiate dependence. See Pl.'s Opposition, Ex. 10 (statement of Dr. D'Lugoff). Only one other methadone treatment program currently operates in Baltimore County, the Awakenings Drug Treatment Program located in Timonium, which has operated in that location since 1991. Compl. ¶ 21. According to Plaintiff, since 1989 other methadone treatment programs have attempted to locate in the County, but none has succeeded. Id. ¶ 30. Plaintiff asserts that there is a pressing need for additional methadone treatment facilities to address the County's "escalating heroin problem." Id. ¶¶ 5, 19, 33.² Indeed, an official from the State Methadone Authority, in response to WMI's application for state certification, agreed that "it appears that there is sufficient need in the White Marsh area to support additional narcotic treatment in Baltimore County." Pl.'s Opposition, Ex. 2, Att. H.

A. Methadone Program Licensing Requirements:

To operate lawfully in Maryland, a methadone treatment facility must be licensed by the federal Food and Drug Administration and the federal Drug Enforcement Administration. It also must be certified by three separate agencies of the Maryland Department of Health and Mental Hygiene: the Licensing and Certification Administration, the Alcohol and Drug Abuse Administration (of which the State Methadone Authority is a part), and the Division of Drug Control. Id. ¶¶ 24-25. These three state agencies establish and enforce rules and regulations governing the operation of methadone treatment programs throughout Maryland. See Def.'s Motion, Ex. 8 (Alcohol and Drug Abuse Administration letter and order explaining certification procedures); Pl.'s Opposition, Ex. 2 (statement of Neal Berch). While WMI acknowledges that it has not yet fully completed the state certification process, see Pl.'s Opposition, p. 12 n. 4, it has received the requisite federal licenses and been approved by "at least two" state agencies. See Def.'s Motion, Ex. 4 (WMI's July 1997 petition for special hearing). WMI cannot complete the state certification process until it receives local zoning approval. See Def.'s Reply, p. 10. Whether WMI has fully complied with the requisite state procedures for operating a methadone treatment facility is irrelevant for purposes of resolving this case, however, as WMI does not allege in its lawsuit that it was improperly denied state certification and the County did not deny WMI's petition for a zoning permit on these grounds.³

The basis for WMI's claims in this case is the allegedly discriminatory decision made by various Baltimore County departments and officials to deny it a use permit pursuant to the County's zoning regulations. See Compl. ¶¶ 1, 3, 107, 110, 115. Section 102.1 of the Baltimore County Zoning Regulations provides that "[n]o land shall be used or occupied and no building or structure shall be erected, altered, located or used except in conformity with these regulations...." See also Balto. County Code § 26-116 (providing for county zoning regulations "to regulate and restrict ... the location and use of buildings, structures, and land for trade, industry, residence, or other purpose"). The Baltimore County Department of Permits and Development Management ("Permits Department") is responsible for administering and enforcing the County's zoning regulations. Id. § 2-56; Compl. ¶ 13. Thus, in order to operate a methadone treatment program in Baltimore County, in addition to securing federal and state approval, WMI must obtain a permit from the Permits Department indicating that the proposed use fully complies with the applicable zoning regulations. See B.C.Z.R. § 500.1.

B. The Baltimore County Zoning Process:

In March 1997, WMI located office space for its program at 11450 Pulaski Highway in a small strip shopping center hosting a variety of professional and retail establishments, including a law office, an insurance office, a physical therapist's office, a barber shop, a dry cleaners, and a deli. Compl. ¶ 34; Def.'s Motion, Ex. 4 (Deputy Zoning Commissioner's opinion), p. 2. Surrounding businesses included a sanitary landfill, an automobile repair shop, a self-storage facility, and an adult video store. Compl. ¶ 35. According to Plaintiff, the nearest residential neighborhood was 1.5 miles away. Id. ¶ 36.

The Pulaski Highway property that WMI sought to occupy for its methadone treatment facility was designated on the County's zoning map as a B.R.-A.S. (Business, Roadside; Automotive Services) zone. Id. ¶ 37; Def.'s Motion, Ex. 4 (Deputy Zoning Commissioner's opinion), p. 2. A B.R. zone is a highly intensive business zone, permitting a large variety of uses as of right, including all of the uses permitted in B.M. (Business, Major) and B.L. (Business, Local) zones. See B.C.Z.R. §§ 230, 233, 236; see also Hayfields, Inc. v. Valleys Planning Council, Inc., 122 Md.App. 616, 638, 716 A.2d 311, 322 (1998) ("Within any given zoning classification, the [B.C.Z.R.] prescribes two types of uses: certain uses are permitted as of right and others are conditionally permissible"). Relevant to this proceeding, among the uses permitted in a B.R. zone as of right are "offices," which includes "medical offices," and "medical clinics." See B.C.Z.R. §§ 101 (definitions), 230 (B.L. zone requirements). A "medical office" is defined by the County zoning regulations, in pertinent part, as "[a] place for the treatment of outpatients by one or more medical practitioners." Id. § 101. A "medical practitioner," in turn, is defined in pertinent part as "[a] physician ... psychologist ... nurse ... or other similar health professional licensed or certified by the state." Id. A "medical clinic," which is expressly (and somewhat confusingly) excluded from the definition of "medical office," is defined in pertinent part as encompassing "ambulatory care centers" and "diagnostic centers." Id.

WMI contends that it fits the definitions of both "medical office" and "medical clinic" because it would have been staffed by a licensed psychiatrist who served as medical director, a licensed physician who performed patient examinations, and two licensed nurses who dispensed methadone to the program's clients, who would have been treated on an outpatient basis. Defendants do not dispute WMI's description of the intended staffing and operation of its proposed methadone treatment program. Accordingly, WMI claims that it should have been permitted as of right to use the Pulaski Highway property for its program. See Compl. ¶¶ 43-44; Pl.'s Opposition, p. 3.

In addition to "medical office" and "medical clinic," there is another land use classification relevant to this dispute: "community care center." Although medical offices and medical clinics are permitted as of right in a B.R. zone, a "community care center" is permitted in a B.R. zone only if its sponsor first obtains a "special exception" from the Baltimore County Zoning Commissioner. See B.C.Z.R. §§ 230.13, 502 (setting forth special exception requirements and procedures). A "community care center" is defined by the zoning regulations, in pertinent part, as

[a] small-scale facility, sponsored or operated by a private charitable organization or by a public agency and licensed by the Maryland State Department of Health and Mental Hygiene or by the Maryland State Department of Social Services, for the housing, counseling, supervision, or rehabilitation of alcoholics or drug abusers ... who are not subject to incarceration or in need of hospitalization.

Id. § 101 (emphasis added). One of the central issues in this case is whether WMI constitutes a "medical office" or a "community care center." As explained below, the Deputy Zoning Commissioner who conducted WMI's special zoning hearing concluded that WMI constituted a community care center. See Def.'s Motion, Ex. 4 (Deputy Zoning Commissioner's opinion), p. 7. If considered a community care center, WMI is subject to the following additional requirements imposed for obtaining a "special exception":

Before any special exception may be granted, it must appear that the use for which the special exception is requested will not:

A. Be detrimental to the health, safety or general welfare of the locality involved;

...

C. Create a potential hazard from fire, panic or other danger;

...

B.C.Z.R. § 502.1 (quoting...