*1 in the as reflected last known address dent’s the clerk.
records of
All Justices INC., HOUSE, Appellant,
DISCOVERY
v. OF ZONING
METROPOLITAN BOARD COUNTY, OF MARION
APPEALS Community
Indiana, Organiza- Eastside Center, Inc.,
tion, Norton Health Care
Appellees.
No. 49A02-9711-CV-739. Indiana.
Court Aug. 1998. Bouwer, Kennedy, Greg Mer- P. A. Robert rillville, Appellant. for Clarifying Decision on Opinion
Rehearing, Oct. Neff, Corporation Stephen Coun- Office
sel, Indianapolis, Metropolitan Board Zoning Appeals. O’Neal, Dubisky, Duane Donna Heiser
C. P.C., Indianapolis, Kappes, Lewis & Community Organization. Eastside Warr, Sharpe, McNa- H. Alastair J. John McSharar, Indianapolis, for mar Fearnow & Inc. Norton Care OPINION SULLIVAN, Judge. (Discov-
Appellant, Inc. House), appeals the trial court’s decision ery upholding the Metro- the determination (BZA) that politan Zoning Appeals Board House’s real estate comport with clinic did not as a methadone the HD-2 classification. We reverse. essentially three House asserts upon appeal, we restate as fol-
issues lows: *2 SIMILAR HOSPITAL-
(1) proposed g.OTHER Discovery House’s Whether OR USES.” facility constituted a RELATED ORIENTED methadone treatment origi- zoning (Emphasis in HD-2 clas- at 280. use the Record permitted under nal). sification. the BZA’s decision Whether from sought opinion under tutes unlawful discrimination Develop- Department Metropolitan the rights the Americans Indiana civil law and (DMD) the as to it considered ment whether With Disabilities Act. treatment methadone violated the BZA’s decision Whether zoning use the HD-2 permitted under to be under both equal protection clause 1995, 20, Edward On October ordinance. Federal and Indiana Constitutions. (Mitro), Principal Planner Mitro Discovery House’s Because we hold that House, DMD, ap- to in a letter facility clear- treatment
proposed methadone methadone proposed use as a proved the HD- permitted use under ly constitutes letter, facility. Mitro char- In his treatment classification, not address zoning we need acterized the violated whether BZA’s determination facility which out-patient as a medical rights the American civil law and Indiana clearly permitted was under he concluded Act, Equal Protection or the Disabilities zoning HD-2 classification. and Indiana clauses of the United States 28, 1996, Norton counsel for On March Constitutions. (Norton), to wrote Inc. Care 1995, Discovery insti- fall of DMD, they position requesting its reconsider plans operate a methadone treat- tuted facility fit within that a methadone treatment building locat- facility within a medical 2.02A.2, specifications Code Section of. Indianapolis. at 5626 East 16th ed Street 26, April zoning HD-2 On ordinance. question under the The site in was zoned 1996, Dugan responded to Norton’s J. June Two) (Hospital classification. HD-2 District stating: letter purposes sec- appeal, For of this the critical opinion “It our that a methadone clinic HD-2 reads as zoning tion of the permitted by right in this a medical use follows: building, building properly as the itself is DIS- “2. PERMITTED HOSPITAL approved for medical office uses zoned (HD-2) TRICT TWO USES All uses restriction. A methadone clinic vdthout permitted within the HD-2 District shall use would fall under the HD-2 District approval, subject to the Commission’s is ‘an office dentist for a required as included within a site pub- professional dealing with the with, ap- development plan filed lic health’-” Record at 69. by, specified proved said Commission 2.02, 1996, 5, in Section B. June Norton and Eastside On (ECO),
Community Organization, pursu- Inc. 36-7-4-918.1, an administra- ant to I.C. filed dentists, physicians, e. OFFICES for appeal requesting a review tive BZA dealing with professions the DMD’s conclusion that a methadone public health. HD-2 was a under the clinic FLORISTS; PHARMACIES; f. classification. SHOPS; AND RES- CARD GIFT 16, 1996, TAURANTS; July BZA conducted a CLOTH- On UNIFORM STORES; hearing Following pre- AND on the matter. ING SIMILAR of evidence AND SPECIALTY sentation CONVENIENCE Norton, or interest- BUSI- ECO other affected SALES AND SERVICE BZA, persons,1 September ed NESSES. parties present- at the location. The Marion 1. We note that several interested department support County opined me- hearing of their Sheriff’s that a ed evidence at the opposition placement clinic would increase crimes in of a methadone language Af- interpretation con- of the HD-2 ordinance. DMD’s reversed record, reviewing ter it is clear that the a methadone treatment cluding that proposed facility’s operation squarely un- permitted use under the fits was not a language permitting the findings In its and conclu- der the ordinance’s classification. sions, use of ... and other “[o]ffices BZA stated that: *3 professions dealing health.” Rec- proposed by'Discovery House “The MDF Therefore, the BZA ord 280. we hold physicians, ‘...for
will not be an office law, erred, determining a in as matter of that dentists, professionals dealing facility the methadone treatment did not con- in public health’ as referenced Section permitted unambigu- a use stitute under zoning HD-2 ordinance. Section 3. of the zoning ous terms of the ordinance. contemplates of licensed 3. offices persons groups professional sional or The record reveals that the in-house staff dentists, (i.e., persons physicians, optome- of each House location is com- etc.). trists, podiatrists, prised of at least one one or more an ‘office of a House’s MDF would not be nurse(s) registered practical or rather, a professional’; it would be nurse(s), registered phar- and one or more facility. House’s distribution macists). No member of the medical staff permitted MDF therefore not be a may provide services without a doctor’s or- use under e.” Record at 188. Section facility may operate ders. No without supervision provided by medical and services appealed the BZA’s de- qualified medical doctor. by filing a Verified Petition for termination 15, August on 1996 in Writ Certiorari Also, every Discovery pro- House location Superior Marion The trial court en- Court. following virtually vides the services to 22, 1997, judgment July uphold- its tered patients: ing the BZA’s decision. provided by “a. A medical assessment Staff, member of the Medical which is zoning Construction of a visit; provided every question City is a' of law. Barnes v. Comprehensive physical b. examinations 1004, Ind.App., Anderson 642 N.E.2d advice; and medical Zoning regulations inhibit the 1006. which Laboratory analysis c. and evaluation of property derogation in use of real are of the specimens; blood and urine strictly common law and are construed. Id. zoning assessment; will not extend a restriction d. Initial medical
implication. Id. not defined in a Words Bi-weekly counseling e. individual and/or given statute or ordinance must be their bi-weekly group counseling sessions plain, ordinary meaning. and usual See Met with, ap- compliance surpassing, often and Zoning, ro Bd. Etc. v. Shell Oil Co. plicable regulations; laws and Ind.App. 395 N.E.2d testing; f. Tuberculosis g. Hepatitis HIV and educational ses- proposed House’s metha sions; facility permit done treatment constitutes a (if unambiguous prescribed); plain and h. Methadone and as ted under values, many neighborhood, property sympathetic and While this court is to the decrease cre- anxiety neighborhood. hearing, legitimate expressed ate for residents in concerns at the Craig whether, materials stat- Dr. ing R. Johnston submitted issue nonetheless must remain as a that he believed the would threaten law, Discovery proposed matter of House’s me- Mount, practice. Mr. Jim a broker at Hokan- his thadone treatment constitutes a Company building and who owned the sen unambiguous language use under the HD- site, proposed to the west of the testified block illegal ordinance. An otherwise action that the methadone clinic would cause severe illegal Zoning appeals of a Board of is no less occupancy of build- setback to the increase merely widespread legiti- or because it receives ings in the area. He also stated that he lived in public support. mate area, Irvington which was near the the site, subject young he did not want to his daughters type to this of environment. The public health. planning and Discharge i. aftercare it does. replete with evidence record at 315. referral.” Record addition, presented that In evidence was metha- dispensing of In addition Community Midtown Mental medi- done, Discovery provide Hospital, with Wishard affiliated assessments, physical examinations cal program. offers a methadone advice, testing, HIV and tuberculosis medical sessions, discharge hepatitis educational arguments basically Appellees make three planning. Every and aftercare support position that a methadone their fact, physicians. staffed with licensed constitute an of- does not precluded from dis- facility is each treatment professions deal- fice for on the doctor pensing methadone without (1) Discovery ing with the health: *4 premises. primarily provide not medical House does recipients, does to its methadone and care Therefore, Appellees maintain that while recognized profession; not constitute a pre- through the the of addiction treatment facility not the treatment would methadone recognized scribing is not a of methadone sole, a be the full-time office of disapproval dis- profession, their and mere “pro- not as and would function therefore does not dain for such method of treatment by contemplated as the HD- fessional office” negate legitimacy professional or charac- the ordinance; and heroin addiction does by ter the offered methadone of services dealing problem not constitute a Finally, in addition to facilities. “public We each of the three health”. find drug dispensing the prescribing and of arguments unpersuasive. methadone, provides Discovery House also counseling problem for the of addiction. argument, Appellees In their first contend argu- Appellees during oral Even conceded drug-addicted treatment for methadone provide mental that offices which care, individuals not medical does constitute counseling likely most health would and, such, entity pro- as of an classifi- tute a use under the HD-2 viding is not an office methadone treatment Accordingly, we find that cation. dealing physicians professionals or other provides care metha- medical to its disagree. health. Me- recipients. done treatment, cure, not a is a while problem of program devised to treat Next, Appellees maintain that because the such, addiction. As facilities like Dis- heroin sole, not full-time office would be House, covery counseling and which offer a physician, particular of and no doctor would treatments, clearly provide methadone some “office”, hold the out as his or her it seeking of care to individuals level medical “professional function office” would not as help problem for the of heroin addiction. contemplated by as HD-2 ordinance. words, Appellees attempt to characterize the func- because House would not of a “doc- tion of facilities as fit within traditional idea methadone loca- completely separate patients office” come to one dispensaries, mere tor’s where physi- any generally specific tion from a from of the more to seek treatment distinct cian, “professional accepted of not a office”. or traditional forms “medical is However, However, efficacy acceptance argument pro- while care”. or may hotly preclude a doctor who has priety of several offices methadone treatment circles, city, policy around the is never in one location contested in medical and but times, operating at from his plans are the most all one of offices whether such treatment efficient, effective, in a under the HD-2 classifi- or form medical location zoned wisest such problem cation. We find no evidence that treatment for the of heroin addic- language ever “an judicial not issue for result was intended tion is resolution. Rather, profes- physicians ... and other office for the issue whether methadone treatment, House, public health.” Record provided by at or constitutes an office of Discov- OPINION ON REHEARING Indianapolis location
While the House, initially, would not be the ery at least SULLIVAN, Judge. staffing the full-time office of the doctors Appellees, Metropolitan Zoning Board of concedes that a facility, and (BZA) Indiana, County, times, Marion duty may not be on doctor Community Organization Nor- Eastside only dispensing actual of methadone Center, Inc., ton Health Care have filed their present in physician a licensed occur when which, Rehearing part, Petition for as- the office. serts: importantly, language of the or- More opinion erroneously “2. The Court’s physicians ... reads an “office for dinance materially misstates the Record as follows: professions”, office not the sole (a) fact, ‘In each treatment professions. Record at physician or other precluded dispensing from such, unambiguous language 280. As premises.’ Opin- without a doctor on the clearly permits the use 580]; page ion at N.E.2d at [701 professional physician who of an office (b) office, Indianapolis ‘While the location of than or who is not maintains more initially, City-County at least the office full-time. The not be the full-time office of the doctors always language free to amend the Council is *5 Discovery staffing facility, permit only physicians if is to who House its intent location, may duty full-time, concedes that a doctor not be on oper- to work office times, dispensing at all the actual of me- in HD-2 ate an area. may only occur when a licensed suggest Finally, Appellees seemed to dur- physician present Opinion in the office.’ that, Discovery ing argument oral because page N.E.2d at [701 581]. problem by House’s clients created their own supporting The record has no evidence choosing drugs, problem to take of her- these statements.” matter, public oin addiction is not a health purely private opinion upon rehearing rather a health concern. but We issue this disagree. only prob- regard strongly purpose Not of clarification with to the drug complained of this nation’s lem of addiction one factual conclusions of. largest problems which affects individ- health Alexander, Paul Executive Director of Mr. irrespective uals of economic and social sta- Discovery in affidavit House USA an which tus, an have the fact that individual BZA, before the stated: was arguably by choosing to created his condition location, At each House “3. problem not make the of use heroin does comprised the in-house Medical Staff is purely “private” addiction a health con- Physician, Regis- one or more at least one reasoning, facilities which cern. Under . Nurse(s) tered or Licensed Practical lung by treat individuals for cancer caused Nurse(s), Registered more and one or voluntary cigarettes choice to smoke their Pharmacist(s). would not be considered office Physician, qualifi- qualified 4. A whose public health. Because by proscribed are the laws and cations else, anyone Appellees, or would be we doubt jurisdictions in regulations of each of the willing lung cancer is not a to contend that operates, House serves conclude, health, matter of we Medical Director at each House confidence, widespread degree that supervision qualified site. The of a Medi- problem drug be viewed addiction should necessary cal Director is a and absolute similarly. condition for each of the judgment of the trial court is reversed The initially, operate open to and to locations proceedings remanded for and this matter is daily on a basis. All other Medical Staff opinion. consistent with this only on may provide provided services Without the medical su-
Doctor’s Orders. BAKER, JJ., provided by quali- pervision and services KIRSCH location, as Director at each fled Medical BURRELL, signa- Jr., by the Director’s
indicated Medical C. William every patient’s Treat- Appellant-Defendant, ture each and Plan, must that v. Record at 365. operations.” cease hearing, that At he testified Indiana, Appellee-Plaintiff. STATE of “[wjithout physicians and without No. 84A01-9705-CR-162. operate.” premises, we do not nurse on the Furthermore, that Record at 206. he stated Indiana. Court of available, licensed, with a “... ... fact local ...” Rec- physician who is in Oct. ord at 224. remonstrances
The thrust of numerous
against methadone distribution physician be
was not whether but rather that
attendance at times visit- “patients” who would be
nature of
ing of the and the distribution
methadone as maintenance treatment community, to
tuted a threat
schools, children, neighbors and businesses expression
the area. There was encourage tend an increase not
in crime in the area. These fears would materially presence affected *6 pharmacist nurse and/or distribu-
at the crucial times of methadone
tion. may, retrospect, it our con-
Be that as opinion in the on the merits
clusion precluded from
“each treatment
dispensing methadone a doctor on without overly premises”, construed
broad, interpretation of the if not erroneous We, nevertheless, remain of
evidence. in its
view that
governed by all and state laws federal
regulations concerning the distribution drugs synthetics. According-
prescription
ly, legally methadone could not be distribut- appropriate licensed medical or
ed without
pharmacy persons in attendance.
Subject supplement to our earlier clarifying purpose, deny
opinion and its we Rehearing.
the Petition for BAKER, JJ.,
KIRSCH