Dennis SULLIVAN, Michael Diskin, James Rosenweir, Hershel
Heilig, Wayne Jackson, John Clark and John King, on their
own behalf and on behalf of all others similarly situated
Arc House, Inc. (Plf Intervenor)
v.
The CITY OF PITTSBURGH, PENNSYLVANIA Paul J. Imhoff, Supt.
of Pittsburgh Bureau of Building Inspections,
Robert H. Lurcott, Director of the
Pittsburgh Dept. of City
Planning Appellants,
v.
The COUNTY OF ALLEGHENY, PENNSYLVANIA and the Allegheny
County Institution.
No. 85-3607.
United States Court of Appeals,
Third Circuit.
Argued Sept. 11, 1986.
Decided Jan. 23, 1987.
As Amended March 5, 1987.
Rehearing and Rehearing En Banc Denied May 12, 1987.
D.R. Pellegrini (argued), City of Pittsburgh, Dept. of Law, Pittsburgh, Pa., for appellants.
John Stember, Donald Driscoll (argued), Catherine Martin, Daniel Haller, Pittsburgh, Pa., for D. Sullivan, M. Diskin, J. Roseweir, H. Heilig, W. Jackson, J. Clark, J. King.
Lee Markovitz, Anton W. Bigman, Pittsburgh, Pa., for Alcoholic Recovery Center, Inc.
Before ALDISERT, HIGGINBOTHAM and HUNTER, Circuit Judges.
OPINION
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
This appeal arises from a class action brought by a group of recovering alcoholics to enjoin the closing of alcoholic treatment centers by the City of Pittsburgh, Pennsylvania. Alcoholic Recovery Center, Inc. ("ARC"), the non-profit corporation that manages and runs the treatment centers that treat class action plaintiffs-appellees, intervened in the action before the district court. The City now appeals the grant of the preliminary injunction enjoining it pendente lite from closing the treatment centers and requiring it to issue zoning and building permits and to distribute certain federal Community Development Block Grant ("CDBG") funds. Pursuant to 28 U.S.C. Sec. 1292(a)(1), we have jurisdiction over the district court's interlocutory order granting preliminary injunctive relief. For the reasons set forth below, we will affirm the district court's order.
I.
Since 1966, ARC has treated alcoholics in several facilities in the North Side section of Pittsburgh, Pennsylvania and elsewhere in Allegheny County. These facilities, located at 422-424 Tripoli Street, 1216 Middle Street and 800, 814, 816, 818 and 820 East Ohio Street in Pittsburgh and at 1831 Hulton Road, Verona and R.D. 1, Avella in Allegheny County, have served primarily low-income persons. In accordance with the then-existing Zoning Code of Pittsburgh,1 ARC, on four occasions between 1966 and 1977, submitted applications for conditional use or occupancy permits required by the Code.2 The Pittsburgh City Council never acted upon these Planning Department applications, although the Pittsburgh Planning Commission did recommend approval of the 1977 application. Despite its failure to act upon ARC's permit applications, the City sent a letter of commendation to ARC on March 23, 1977.
On September 15, 1980, Pittsburgh amended its Zoning Code with respect to facilities such as those operated by ARC.3 Thereafter, in 1982, ARC applied for conditional use permits for group care facilities at 1216 Middle Street and 422-424 Tripoli Street and for an institutional facility at 800, 814, 816 and 818 East Ohio Street, seeking approval for a total of 99 residents. The Pittsburgh Planning Department recommended approval for only 1216 Middle Street and 800 East Ohio Street for a total occupancy of 65 residents. One senior planner for the Planning Department also recommended that the City of Pittsburgh allocate $75,000 to $100,000 of CDBG funds for necessary renovations of ARC facilities.
On September 14, 1982, at a public hearing held by the Planning Department, the East North Side Area Council, a community organization, expressed hostility towards ARC and reluctance about accepting a treatment center for alcoholics in its neighborhood. Later, in early May, 1983, ARC responded to potential overcrowding in the Allegheny County Jail by announcing it would accept persons convicted of driving while under the influence of alcohol for treatment in its North Side Facilities, apparently raising some concern in the surrounding community. On July 12, 1983, City Councilman William Robinson, on behalf of the East North Side Area Council, demanded that Pittsburgh close all ARC facilities. Soon thereafter, on July 18, 1983, Councilman Robinson, along with two other council members, introduced a resolution stating that the Council intended to impose a moratorium on the establishment of group homes in Pittsburgh, funded from whatever source, until such time as a procedure acceptable to both the City and the County for locating such homes was established. The resolution was adopted by the City Council on that same date.
Apparently in partial response to the Council, the Planning Department, on October 25, 1983, recommended in an internal memo that conditional use permit applications for the 1216 Middle Street facility be approved, and that $200,000 in CDBG funds be used to relocate the residents of other ARC facilities outside Pittsburgh. On the same day, the Planning Department officially recommended approval of the Middle Street facility, but denied approval for the Tripoli and East Ohio Street locations. Later, Frederick Just, a senior planner for the Planning Department, indicated to Charles Cain, director of ARC, that community opposition had been a determinative factor in the Department's decision. On November 21, 1983, in keeping with its moratorium, the City Council, without providing a hearing or offering written reasons, rejected conditional use applications for the Middle Street, Tripoli Street, and East Ohio Street facilities.
After the Council's rejection of its applications, ARC worked with the Planning Department in an attempt to find alternate sites for its Pittsburgh facilities. Because the Planning Department concluded that community opposition had to be considered in selecting alternate sites, the Department rejected several proposals for relocation due to anticipated neighborhood hostility.
As a result of these developments, City and County officials and representatives of ARC met in the fall of 1984 to find a way to allay community fears and to allow ARC to remain in the North Side section. An agreement was reached which was to become effective, at the City's insistence, only with the consent of local community organizations. The agreement provided that (1) ARC would operate only its 800 East Ohio Street facility in the Northside section; (2) ARC would treat only 50 alcoholics in the facility; (3) the City would provide $100,000 and the County would provide $100,000 in the form of CDBG funds for renovations and improvements to the East Ohio Street facility, subject to formal approval by the City Council and County Commissioners; (4) the City Council would appoint one-third of the board members of ARC, and ARC in turn would remove all staff members from its Board while appointing community residents to it; (5) the City and County would monitor ARC's performance and ARC would regularly meet with neighborhood groups; (6) the County would seek funding so that it could hire a new administrative officer; (7) ARC would treat no persons convicted of driving while under the influence of alcohol at the East Ohio Street facility; and (8) the County would invest an additional $100,000 in CDBG funds to acquire or improve ARC facilities located in Allegheny County. City and County officials reached the agreement after having been given informal authority by their respective administrations to resolve the conflict. The agreement is significant because earlier, in January, 1984, the City had filed suit against ARC in the Allegheny County Court of Common Pleas seeking preliminary and permanent injunctions to close all ARC facilities in Pittsburgh. The action was based on ARC's failure to meet fire and building codes, which ARC maintained could only be corrected with the appropriate zoning approval from the City. After an issuance and vacation of the injunctions, a consent agreement was entered on January 14, 1985, which essentially incorporated the terms of the agreement between ARC and City and County officials. Subsequently, in accordance with the agreement, ARC sought to attain the required zoning approval for the East Ohio Street Center. ARC was unable, however, to obtain the required consent of the East North Side Area Council. Another community organization, the East Allegheny Community Council, later agreed to the proposal, but only upon certain conditions, one being that ARC sell its other properties only when the organization agreed that it could.
Despite its inability to gain the unanimous support of community organizations, ARC continued to seek zoning approval. On February 5, 1985, the Planning Department recommended that ARC's application for the East Ohio Street facility be approved for 55 residents. The Department also recommended that (1) an outside full-time director be hired by the ARC Board within 60 days of approval by the Council; (2) three neighborhood residents be appointed to the ARC Board within 30 days of Council's approval; (3) funds for remedying Code violations be secured within 90 days of Council's approval; and (4) a site plan to include a privacy fence, landscaping, and a recreation area be submitted to the Planning Department within 30 days of Council's approval. On April 22, 1985, presumably after a Planning Commission hearing, City Council held a five-hour public hearing on the ARC application. Apparently still bound by its moratorium, the Council voted on May 20, 1985 to deny ARC's application on grounds that approval would diminish surrounding property values and hinder orderly community development.
Shortly thereafter, the instant action was filed in the United States District Court for the Western District of Pennsylvania against the City by a class consisting of alcoholics in need of ARC services who could obtain those services nowhere else. ARC's subsequent motion to intervene was granted by the district court on grounds that ARC, as operator of the recovery centers, had an interest in the property and transactions which might be affected by class action plaintiffs' suit. After trial, pursuant to the Equal Protection Clause, 42 U.S.C. Sec. 1983, and 29 U.S.C. Sec. 794, the district court,
II.
This case requires us to make several inquiries. First, we must determine whether plaintiffs in the action before the district court had standing to bring suit. Second, we must determine whether the district court abused its discretion in failing to abstain from deciding the action before it. Third, we must determine whether this action was barred by the statute of limitations. Fourth, we must determine whether the granting of the injunction under the circumstances of this case violated federal statutory law. And finally, we must determine whether the district court correctly concluded that appellees were entitled to an injunction on the basis of their federal constitutional and statutory claims. We will resolve these issues in the order set forth above.
III.
We first consider the standing of class action plaintiffs in the action before the district court. On appeal, appellants assert for the first time that class action plaintiffs-appellees should be denied injunctive relief because appellees were not directly affected by the City's actions in denying ARC zoning approval. As indirectly affected parties without a property interest in the property denied zoning approval, appellants contend, class-action plaintiffs-appellees lack standing to challenge the City's actions. We are unpersuaded by appellants' argument.
The leading case on the issue of standing is Warth v. Seldin,
Here, class action plaintiffs-appellees' claims satisfy both Warth requirements. Since appellees contend in their pleadings that they will not receive treatment if an ARC facility is not kept open, see App. at 7a-10a, they have "allege[d] specific, concrete facts demonstrating that the challenged practices harm [them] and that [they] personally would benefit in a tangible way from the court's intervention." Warth,
IV.
We next consider the district court's decision not to abstain from passing on class action plaintiffs-appellees' claims. Appellants contend that Younger v. Harris,
After rulings by federal district and circuit courts, the Supreme Court held that the district court should have abstained. The Court held that Younger concerns are applicable to state administrative proceedings as well as state criminal proceedings and that so long as a state plaintiff has a full and fair opportunity to litigate his federal claims at some point in the state proceedings, abstention is appropriate. Dayton,
Appellants maintain that Dayton Christian Schools requires abstention in this case. Here, as in Dayton Christian Schools, a state administrative hearing is implicated. As in Dayton Christian Schools, it appears that the state plaintiff (ARC) may ultimately present its constitutional claims in the state administrative proceedings.5 Several facts, however, distinguish this case from typical cases in which abstention is appropriate, and these facts make Dayton Christian Schools and Younger inapplicable.
First, the federal plaintiffs in this suit (a class consisting of recovering alcoholics who seek and have received treatment at ARC) are not the defendants in, nor even parties to, the relevant state administrative proceeding. ARC alone brought the state action when it sought a conditional use permit and then appealed. As the Supreme Court made clear in Doran v. Salem Inn, Inc.,
It may be contended that the federal plaintiffs and state plaintiff in this suit, though legally distinct, are so closely related that a federal action by one should not be permitted while the other seeks redress of the operative wrong in a state proceeding. In fact, the Supreme Court in Hicks v. Miranda,
Moreover, the conclusion that class action plaintiffs-appellees have interests which are distinct for purposes of Younger from those of intervenor ARC is supported by Roe v. Wade,
Abstention in this case would also have been improper because federal plaintiffs would have been unable to request in the state proceeding all relief available in federal court. Under Pennsylvania law, the sole state method for contesting the validity or constitutionality of a zoning ordinance or the application thereof is the filing of an appeal with the board of adjustment (with possible subsequent judicial review) or directly with the court of common pleas, if appropriate. Appeal of Bradley, 58 Delaware County Ct. 119 (1970). To be effective, the appeal must be filed within 30 days of the relevant administrative action. 42 Pa.Cons.Stat.Ann. Sec. 5571 (Purdon 1981). Here, federal relief was available for the City's alleged November 21, 1983 violation of the Equal Protection and Due Process Clauses.8 The City's November 21, 1983 actions could not, however, have been attacked in any state zoning proceeding since, by the filing of the federal complaint, the state statute of limitations had lapsed. In light of class action plaintiffs-appellees' inability to litigate this claim, we cannot conclude that the state proceeding could have afforded complete relief.9
Younger and Dayton Christian Schools are inapplicable for a third reason. Since Younger, the Court has recognized that extraordinary circumstances may threaten irreparable injury which justifies federal intervention in ongoing state proceedings even in the absence of bad faith or harassment by state officials. Younger,
Here, appellees have made such a showing. As the evidence indicated, and the district court reasonably found, class action plaintiffs-appellees are primarily recovering alcoholics who are in a critical state of their recovery. Finding of Fact ("FF") 82. Without proper care, supervision and peer support each could easily suffer a relapse. Id. For these alcoholics, a relapse threatens not only a potentially irremediable reversion to chronic alcohol abuse but immediate physical harm or death. The record reflected that alcoholics who had been denied treatment at the Center were unable to end their alcohol abuse and suffered severe injury or death as a result, App. at 287a, and it is clear that ARC provides the only treatment available for appellees. FF 80, 82. It was therefore not a clear error for the district court to conclude that if recovering alcoholics at the Center were improperly forced from the center and into a community which cannot provide treatment for their abuse, these alcoholics too might suffer as earlier untreated alcoholics in the North Side section have. We believe that the threat of this type of injury is precisely what the irreparable harm exception to Younger is intended to prevent. Indeed, it is difficult to conceive of many facts which would more compellingly argue for appellees' relief. A wrongful deprivation by the City of Pittsburgh in this case would threaten not only to do harm to appellees' present enjoyment of rights to Equal Protection, Due Process and equal treatment under the Rehabilitation Act of 1973, but to eliminate the possibility of appellees' enjoyment or exercise of any federal constitutional or statutory rights in the future. In light of this, we cannot conclude that the district court should have abstained to accommodate attenuated comity and federalism interests.
V.
We next consider appellants' statute of limitations defense. In Wilson v. Garcia,
VI.
We next consider appellants' federal statutory claims. Appellants assert that the district court violated the Full Faith and Credit Act, 28 U.S.C. Sec. 1738 (1982), by issuing an injunction which was inconsistent with a January 14, 1985 consent decree of the Allegheny County Court of Common Pleas. That consent decree, entered into between ARC and the City, ordered ARC (1) to cease occupancy of any of its facilities in Pittsburgh other than the 800 East Ohio Street facility within 90 days of January 14; (2) ARC to cease occupancy of its 800 East Ohio Street facility within 90 days of January 14 if ARC had not acquired necessary use and occupancy permits and to resume occupancy only upon acquisition of those permits, and (3) to cease admission of persons into its Pittsburgh facilities and programs. Appellants contend that since the district court's decision in the instant litigation permits ARC to continue to occupy its 800 East Ohio Street facility without proper permits and to occupy its 1216 Middle Street facility at all, the district court failed to accord the judgment of the Court of Common Pleas full faith and credit.
Section 1738 requires federal courts to give a state court judgment preclusive effect to the same extent the courts of the rendering state would. Davis v. United States Steel Supply,
VII.
Finally, we turn to the question of the propriety of the district court's grant of preliminary injunctive relief. To grant a preliminary injunction, a trial court must conclude that:
(1) plaintiffs are likely to succeed on the merits;
(2) plaintiffs are subject to irreparable harm pendente lite;
(3) defendants will not suffer substantial harm from the grant of an injunction; and
(4) the public interest requires that plaintiffs be accorded relief.
Constructors Ass'n. of Western Pa. v. Kreps,
A. Section 504 of the Rehabilitation Act of 1973
i. Likelihood of Success on The Merits
The district court concluded that class action plaintiffs-appellees were likely to succeed on their claim under Sec. 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794. In order to prevail properly on that claim, appellees were required to make a prima facie case by demonstrating that
(1) they were handicapped individuals under the Act;(2) they were otherwise qualified for the program of benefits from which they had been excluded;
(3) they have been excluded solely because of these handicaps; and
(4) the program from which they have been excluded is subject to Sec. 504.
Strathie v. Dept. of Transp.,
We cannot conclude that the district court erred in finding that class action plaintiffs-appellees are likely to prevail on the first prong of the Strathie test. As the record shows, appellees demonstrated that they suffered from varying degrees of alcoholism. FF 77. Case law establishes that alcoholics are handicapped within the meaning of Sec. 504. Davis v. Bucher,
The district court also did not err when it concluded that class action plaintiffs-appellees are likely to prevail on the third prong of the Strathie test, which requires that Pittsburgh have denied funding based on the relevant handicap. The record more than adequately supports a conclusion that the City was motivated by the handicapped status of class action plaintiffs-appellees when it denied the relevant conditional use permit applications. As the evidence showed, the Planning Department rejected proposed relocations by ARC (which would have resulted in funding) based only on community hostility towards alcoholics. FF 37. In fact, the Department did so after actually recommending federal funding of ARC before community opposition to alcoholic treatment centers began to mount. Further, the City acknowledged through the Planning Department that the level of community opposition to the alcoholism of ARC's residents was a factor the City considered determinative in its decision concerning site selection for ARC. Id. Finally, Pittsburgh denied zoning approval for ARC after the East North Side Council refused to give its approval to the zoning, and the City later offered reasons for its actions that were unsupported by fact. CL 8-12. In light of the fact that appellees were otherwise eligible for the funding they were denied, and particularly in light of the City's constant emphasis on the handicap of ARC's residents, we cannot say that the district court's conclusion concerning the reason for appellees' exclusion was in error. Finally, the district court's conclusion that the fourth prong of Strathie is likely to be satisfied was also not clearly wrong. As the district court correctly found, Sec. 504's protection extends to any federal program or activity, Traynor,
In response, appellants offered the district court no substantive justification for their actions in denying CDBG funding as required by Strathie. As the evidence demonstrated and the district court found, the City's argument that it was attempting to preserve property values, to structure community development, and to ensure compliance with building codes had no rational basis since the only evidence adduced indicated that the continued operation of ARC would have had no negative effect on property values, ARC was already located in the community and thus could not affect development, and compliance with building codes was unnecessary for zoning approval. CL 12-16. Further, the City's arguments, even if valid, would legitimate only its denial of zoning permits, not its denial of federal CDBG funds.
Since class action plaintiffs-appellees showed a likelihood of success on each prong of the Strathie test, and the City failed to sustain its burden of rebuttal, we must conclude that the district court did not err in finding appellees showed the requisite likelihood of success on their Rehabilitation Act claim.
ii. Irreparable Harm to Plaintiff
The district court's finding that class action plaintiffs-appellees were subject to irreparable harm during litigation of their Rehabilitation Act claim was, we believe, not a clear error. The district court concluded that continued operation of the Center was necessary to prevent imminent harm to recovering appellees, and that relief that guaranteed the issuance of the required zoning permits and release of federal funds needed to comply with building and fire codes was necessary to assure continued operation, FF 97, CL 28; that conclusion was amply supported. Extensive testimony and evidence established the harm to which alcoholics in the North Side Section were exposed and the actual harm (e.g., relapse and suicide) some suffered without treatment. App. at 287a. Evidence also established that appellees could find treatment only at ARC centers. FF 80, 82. Since the evidence strongly suggested that at least some appellees would be seriously injured if ARC were closed, we cannot say the court clearly erred in determining that release of the CDBG funds pursuant to Sec. 504 was necessary to prevent harm to class action plaintiffs-appellees.
iii. Harm to Defendant from Grant
Similarly, we cannot say the district court erred in determining the City would not suffer substantial harm by release of the CDBG funds. The evidence before the district court on the issue was clear. The funds to be released were exclusively federal and had previously been designated for ARC. FF 26, 27. As a result of the court's actions, the City's fisc was entirely unaffected. Since the City cited no potential source of harm to itself from the injunction other than loss of revenues, the district court properly concluded the injunction imposed no hardship.
iv. The Public Interest
Finally, the district court did not err in concluding that the public interest was furthered by the issuance of the injunction. The potential harm posed to recovering appellees, as well as the surrounding community by the cessation of treatment, was extremely high. FF 82-85. The benefits ARC provides the East North Side section by treating alcoholics and reducing the burden imposed on area police and fire departments is correspondingly great. As the district court reasonably determined, these considerations outweigh any welfare concerns about temporary occupation of structures which may not comply with building codes.
Since each element necessary for the grant of preliminary injunctive relief under Constructors Ass'n was satisfied in connection with class action plaintiffs-appellees' Rehabilitation Act claim, we find that the district did not err in ordering injunctive relief with respect to that claim.
B. Equal Protection
i. Likelihood of Success on the Merits
The district court also concluded that class action plaintiffs-appellees were likely to prevail on their Equal Protection claim. To have properly gained a preliminary injunction, class action plaintiffs-appellees must have demonstrated the likelihood that the instant application of Pittsburgh Code of Ordinances Sec. 933.01 had no rational basis and thus violated the fourteenth amendment.13
The controlling case on class action plaintiffs-appellee's Equal Protection claim appears quite clearly to be City of Cleburne v. Cleburne Living Center,
Here, the class action plaintiffs-appellees have made a similar showing. Appellees showed that the City's alleged concern about a drop in property values was irrational since ARC had operated in the neighborhood for some years and adduced evidence indicating that property values would not be adversely affected by the Center's presence. FF 63. Appellees also established that the City's alleged concern with orderly development was irrational since ARC was already located in the North Side Section. FF 64. Additionally, appellees demonstrated that ARC facilities met lot size and other zoning requirements and that the City's alleged concerns about density were addressed by density ordinances with which ARC had complied. And finally, here as in Cleburne, appellees demonstrated that the City took its essentially unjustified action in an atmosphere charged with hostility towards a minority group. FF 37-38. These proofs, and their lack of contradiction by the City, lead us to conclude that, in light of Cleburne, class action plaintiffs-appellees are likely to prevail on the merits of their Equal Protection claim.
ii. Irreparable Harm to Plaintiff
The district court also did not clearly err in concluding that class action plaintiffs-appellees are subject to irreparable harm during litigation of their Equal Protection Claim. The evidence demonstrated that cessation of treatment threatened recovering appellees with imminent physical and psychological harm. FF 82. As when it considered appellees' federal statutory claim, the district court did not clearly err in finding that the grant of relief on the constitutional claim was necessary to ensure the continued operation needed to prevent irreparable harm to appellees.
iii. Harm to Defendant from Grant
Similarly, we again conclude that the district court did not clearly err in finding that Pittsburgh would not be substantially harmed by the grant of injunctive relief on the constitutional claim. That relief required the City only to issue the conditional use permit to which intervenor ARC was entitled, and such other permits which the use of properly released CDBG funds would later entitle them. Since the injunction caused the City no financial or other harm, the district court could have properly concluded that the injunction imposed no hardship.
iv. The Public Interest
Finally, we find that the district court did not clearly err in concluding that injunctive relief on the Equal Protection claim was in the public interest. Again, injunctive relief guaranteed benefits in averted physical harm and limited police and fire protection which exceeded the costs of occupation of incompletely approved structures.
Since class action plaintiffs-appellees appear to have satisfied their Constructors Ass'n burden with respect to each element of their Equal Protection claim, we conclude that the district court did not err in granting relief on that claim.
VIII.
For the foregoing reasons, we will affirm the district court's grant of injunctive relief.
HUNTER, Circuit Judge, concurring:
If I were writing on a blank slate, I would hold that the district court erred in failing to abstain in this case. In my view, a federal court unduly interferes with state judicial proceedings when the federal court issues an injunction nullifying a state administrative decision that is under review in state court. The pending parallel state proceeding and this case involve the exact same legal issues, the exact same facts, and the exact same parcels of real property--under these circumstances, we disserve the federal system by appropriating the resolution of the dispute which is properly in the state system. My views are well expressed by the dissenting opinion of Judge Rosenn in New Jersey--Philadelphia Presbytery of the Bible Presbyterian Church v. New Jersey State Board of Higher Education,
Notes
Since 1977, Pittsburgh has amended its Zoning Code, which regulates the use of real property within the City. See infra note 3. To the extent the City's actions under the pre-1977 Code belie a non-discriminatory purpose, it is factually relevant. Legally, however, the pre-1977 Code is of no consequence since the City took its challenged action under the Code as amended in later years
At all relevant times, the Zoning Code has established a tri-partite process for the acquisition of a conditional use permit. First, the person or organization seeking the permit must submit an application to the City's Planning Department, which is responsible for processing such applications, as well as distributing CDBG funds. If the Planning Department tentatively concludes that the applicant meets applicable zoning and spacing requirements, it makes a non-binding recommendation of approval and sets a date for a hearing before the Planning Commission; individual Department staff members may also make non-binding funding suggestions as the applications are considered. Second, at the Commission hearing, of which affected community residents are apprised and to which they are invited, the applicant may present testimony or evidence which he believes is supportive and may respond to questions posed or concerns raised by community members. Affected parties may present testimony or evidence either in support of or in opposition to the application. After consideration of testimony and evidence, the Commission makes a non-binding recommendation of approval or disapproval which is forwarded to the City Council. Third, the Council holds a hearing at which the applicant and affected parties may present testimony or evidence and at which the applicant may address questions or concerns raised by community members or the Council. After the hearing, the vote of a simple majority of the Council determines whether or not the application is approved. App. at 415a-417a; 476a. Determinations at every stage of the process are to be made in accordance with the Zoning Code
The Code, as amended in 1980, establishes three classes of group homes, which by definition provide specialized health, social, and rehabilitative services and which, in accordance with the amended Code, must acquire conditional use permits to operate. "Group residence facilities" serve seven residents and house a total of nine persons; "group care facilities" serve seventeen residents and house a total of nineteen persons; "institutional facilities" serve and house more than nineteen persons. Issuance of a conditional use permit is conditioned upon fulfillment of certain requirements set forth in Sec. 993.01. The grounds for denial of a conditional use permit are too numerous to set forth in full here; ARC's conditional use application was purportedly denied on the basis of three sections. The first, Sec. 993.01(a)D, provides:
No conditional use shall be recommended for approval if any of the following findings is made:
(1) That the establishment, maintenance, location and operation of the proposed use will be detrimental to or endanger the public health, safety, morals, comfort or general welfare; and
(2) That the proposed use will be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes permitted, nor substantially diminish or impair property values within the neighborhood; and
(3) That the establishment of the proposed use will impede the normal and orderly development and improvement of surrounding property for uses permitted in that district; and
(4) That adequate utilities, access roads, drainage and other necessary facilities have not been or will not be provided; and
(5) That adequate measures have not been or will not be taken to provide ingress and egress designated so as to minimize traffic congestion in the public streets; and
(6) That the proposed use will not, in all other respects, conform to the applicable regulations or the district in which it is located.
The second and third sections, Secs. 993.01(a)A1O and 993.01(a)A44 together provide that institutional or group care facilities will be denied conditional use permits if they fail to meet lot size requirements of their zoning districts. App. at 1124a-1126a.
See e.g., Park View Heights Corp. v. City of Black Jack,
Brief of Class Action Plaintiffs-Appellees at 26
See also Family Division Trial Lawyers v. Moultrie,
It cannot be contended that because federal class action plaintiffs-appellees could have permissibly intervened in the state proceeding involving federal intervenor ARC, federal plaintiffs-appellees possess interests which are sufficiently analogous to federal intervenor's to justify abstention. Although it appears that plaintiffs-appellees could have intervened in the state proceeding, see 53 Pa.Stat.Ann. Sec. 11009 (Purdon 1974), Younger has yet to be interpreted by the Supreme Court to require both abstention by a federal court and intervention by a potential private state litigant. New Jersey-Philadelphia Presbytery Church v. New Jersey State Bd. of Higher Educ.,
The Court's actions in Roe might indicate that the district court should have denied ARC's motion to intervene in the federal proceeding. Because the district court granted available injunctive relief on class action plaintiffs-appellees' claims, and thus ARC's intervention had no practical consequence, we do not consider the propriety of the district court's action in allowing ARC to intervene.
As is noted infra pp. 179-80, the relevant statute of limitations on the federal claims is two years
Since appeal of the City's November 21, 1983 decision was absolutely barred at the filing of the federal class action plaintiffs' suit, we need not consider whether it would be procedurally possible for the Allegheny County Court of Common Pleas to consider both the November 21, 1983 decision and the May 20, 1985 decision in the same zoning appeal. Temporal considerations aside, we find it sufficient to note that separate zoning appeals may be properly consolidated only where the causes of action involved in each appeal are so related that the determination of one cause is a virtual determination of the other. 1 Goodrich-Amram 2d Sec. 213(a):1 at 164-65 n. 98 (1976); Mosside Assoc. Ltd. v. Zoning Hearing Bd. of the Municipality of Monroeville, 70 Pa.Commw. 555, 558-59,
Although the district court in the underlying action did not award damages, relief was granted pursuant to 42 U.S.C. Sec. 1983, which authorizes federal courts to afford injunctive as well as retroactive relief. See Taylor v. City of Knoxville,
We must reject appellant's assertion that the proper statute of limitations in this case is the 30-day period provided for appeals of administrative decisions by 42 Pa.Cons.Stat.Ann. Sec. 5571 (Purdon 1981). Such an assertion flies in the face both of Wilson and Smith, neither of which suggests that a zoning decision should be afforded special statute of limitations protection. Indeed, the creation of such an exception would diminish the uniformity of statute of limitations periods that Wilson sought to achieve. See Wilson,
We must reject the City's assertion that it did not violate Sec. 504 because it denied CDBG funds to intervenor ARC which is not a "qualified handicapped individual" under the Act. See Brief of Appellant at 24. Section 504's protection extends not just to handicapped individuals who are direct participants in federally-funded programs or activities but also to those who are intended ultimate beneficiaries of such programs or activities. Under Sec. 504, discrimination on the basis of handicap is actionable upon a simple showing that discrimination has resulted in "a diminution of the benefits [a handicapped individual] would otherwise receive from [a federally-funded] program." Simpson v. Reynolds Metals Co., Inc.,
Since we conclude that the City's action was without rational basis, see infra, pp. 184-85, we do not consider whether alcoholics constitute a suspect class for purposes of the Fourteenth Amendment. Cf. City of Cleburne v. Cleburne Living Center,
The City's assertion that Cohen v. City of Philadelphia,