Opinion
No. 1373 C.D. 2011
07-17-2012
The Friendship Preservation Group, Inc., a Pennsylvania Corporation, and AZ, Inc., a Pennsylvania Corporation, D.B.A. Cafe Sam, Appellants v. Zoning Board of Adjustment of the City of Pittsburgh and UPMC Shadyside
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
The Friendship Preservation Group and Café Sam (Appellants) appeal from an order of the Court of Common Pleas of Allegheny County (common pleas court) that affirmed the decision of the Zoning Board of Adjustment of the City of Pittsburgh (Board) that the University of Pittsburgh Medical Center Shadyside's (UPMC Shadyside) Urgent Care Center at Shadyside (Shadyside Urgent Care) was a medical office/clinic facility pursuant to Section 911-2 of the Pittsburgh Zoning Code (Zoning Code).
The Board made the following relevant findings of fact:
1. The Subject Property is located at 5231 Centre Avenue in an LNC/UNC (Local Neighborhood Commercial/Urban Commercial) Zoning District. This property is owned by UPMC.
2. Located on the Subject Property is an existing seven-thousand (7,000) square foot structure. UPMC is using the Property for an urgent care center known as UPMC Urgent Care Center at Shadyside ("urgent care facility").
3. Susan Tymoczko, the Zoning Administrator, testified that the urgent care facility is permitted as "Medical Office/Clinic" because it met the definition of Medical Office/Clinic found in Section 911.02 Use Table of the Code. Tymoczko further testified that the MedExpress located near the urgent care facility is also zoned in the LNC District, and is also under the Medical Office/Clinic category. (emphasis added).
4. "Medical Office/Clinic" is a permitted use in both the LNC and UNC Districts.
5. Café Sam and the Friendship Preservation Group ("Protestants") filed the instant protest appeal contending that the Zoning Administrator erred in determining that the use of the Subject Property for the urgent care is permitted as "Medical Office/Clinic." (emphasis added).
6. Protestants make the Argument that the urgent care facility is a Hospital use and that the Subject property must be rezoned to be in the EMI (Emergency/Medical Institution) Zoning District. If the property were to be rezoned, the proposed use would require Planning Commission review and approval as a Conditional Use. If approved, UPMC would be required to update its Institutional Master Plan to include the urgent care facility on the Subject Property. (emphasis added).
7. Protestants argue that the proximity of the urgent care facility coupled with a similar name to UPMC Shadyside show an intention to make the facility a part of the hospital. Furthermore, UPMC Mercy contains an Urgent Care that is known as the Urgent Care at UPMC Mercy. That facility is located inside the main hospital next to
the emergency room and is part of that hospital. (emphasis added).
8. The Board finds credible the testimony given by Joe Krolicki and Mark Sevco, representatives of UPMC Shadyside, that the purpose of the urgent care facility is to provide immediate medical care for illness and injury, on a strictly out-patient basis, as an alternative to waiting for an appointment with their primary physician or at an emergency room. (emphasis added).
9. Krolicki testified that the urgent care facility does not fall under the license of UPMC Shadyside because it is separate and maintains its own license. Krolicki explained that because the urgent care center is not part of the UPMC Shadyside complex the facility is not required to be reviewed by the State Health Department.
10. Krolicki further testified that the urgent care facility is an office building owned by UPMC. Furthermore, the Board finds credible the testimony given by Krolicki that the administration and officers of UPMC have no control over the operation of the urgent care facility, and that there is no relationship in terms of management between UPMC Shadyside and the urgent care facility because the facility is managed and operated by a wholly separate division. (emphasis added).
11. In addition, Krolicki noted that the urgent care facility and UPMC Shadyside do not employ the same workers. The employees of each respective division work exclusively for their particular division.
12. The Board also finds credible the testimony by Dr. Joe Suyama that the services provided by the urgent care facility are exactly the same as the services provided by MedExpress on Baum Boulevard, which is located in the same LNC district. The MedExpress is not classified as a hospital or an emergency department. (emphasis added).
13. Dr. Suyama noted that the hours of operation are strictly held to 9:00 AM to 9:00 PM with absolutely no overnight stays. Moreover, Dr. Suyama stated that while the facilities are equipped with an x-ray machine, the urgent care center does not have advanced equipment, such as CT scans or MRI machines, used for 3-D imaging. (emphasis added).City of Pittsburgh Zoning Board of Adjustment Decision, July 15, 2010, Findings of Fact (F.F.) Nos. 1-13 and 15 at 1-3; Reproduced Record (R.R.) at 205a-07a.
. . . .
15. Dr. Suyama also testified that the pay checks for the urgent care facility employees come from the physician services division, which is entirely separate from UPMC Shadyside.
The Board concluded:
4. The urgent care does not fall within the classification of a "Hospital" because the definition specifically states that the institution will have facility and bed-use 24 hours a day . . . .Board's Decision, Conclusions of Law (C.L.) Nos. 4 and 5 at 4; R.R. at 208a. The Board denied Appellants' appeal from the issuance of a building permit to Shadyside Urgent Care.
5. The Board has determined that the Zoning Administrator was correct in her determination to classify the Subject Property as a "Medical Office/Clinic" facility, apart from UPMC Shadyside and thus not part of the EMI district. Under these districts, no Conditional Use procedures are required for approval for the project, and no amendments to the Institutional Master Plan must be made. (emphasis added).
The Zoning Administrator approved the Urgent Care at Shadyside as a medical office/clinic. Appellants challenged this determination and alleged that the Urgent Care at Shadyside use was that of a "hospital."
Appellants appealed to the common pleas court and asserted:
. . . .
11. During the course of the hearing before the Board Protestants [Appellants] produced evidence that proved the Urgent Care at Shadyside is related to and integrated with UPMC Shadyside . . . .
12. Protestants [Appellants] also produced evidence that there is an Urgent Care located within the four walls of UPMC Mercy Hospital, next to the emergency room, that is considered a part of that hospital.
. . . .
14. In a previous case before this same Court, UPMC previously had argued . . . that an office building known as POB 2 was unquestionably a hospital related use and captured in the Code's definition of "hospital" for zoning purposes. (emphasis added).
. . . .
20. The Board concluded, inter alia, that the Urgent Care should not be classified as "Hospital" for zoning purposes because it does not have overnight beds, it was not managed by UPMC Shadyside, it is not physically connected to the existing hospital, and there is no state license requirement. (emphasis added).
21. The Board also concluded that the Urgent Care at UPMC Shadyside was different than the Urgent Care at UPMC Mercy because it was not physically inside the walls of the existing hospital. (emphasis added).
22. The action of the Board . . . erroneously determined that the Urgent Care should be classified and [sic] a Medical Office (as opposed to a Hospital use) for zoning purposes. (emphasis added).Appeal from the Decision of the Zoning Board of Adjustment of the City of Pittsburgh, September 16, 2010, Paragraphs 11-12, 14, and 20-21 at 3-5.
The common pleas court denied Appellants' appeal and concluded:
This Court finds the Appellants' arguments unconvincing. Pennsylvania courts have consistently held that zoning regulations are concerned solely with the use of land, not the method of ownership . . . . The record indicates that there are no overnight beds at the Urgent Care Center and that any injuries or illnesses beyond the purview of a primary care physician are referred from the Urgent Care Center to Shadyside Hospital or another similar institution. As such, the Urgent Care Center cannot be considered a "Hospital" under the Code and must instead be considered a "Medical Office/Clinic." If the Urgent Care Center was constructed several blocks away from UPMC Shadyside, instead of across the street, there would be no question that the Urgent Care Center was a "Medical Office/Clinic" use. (emphasis added).Opinion of the Common of Pleas Court, July 1, 2011, at 3.
I. Was Shadyside Urgent Care The Functional Equivalent To Mercy Urgent
Care?
Initially, Appellants contend that Shadyside Urgent Care operated and provided the same medical service that Mercy Urgent Care provided which was intended to relieve long waits in the emergency room for people with minor illnesses and injuries. Appellants state that it was of no consequence that Mercy Urgent Care's designation as a hospital use was based on its location within UPMC Mercy Hospital while Shadyside Urgent Care was located directly across the street from UPMC Shadyside. This Court rejects this argument for the following reasons.
Where, as here, the common pleas court takes no additional evidence, this Court's review is limited to a determination of whether the Board committed an abuse of discretion or committed an error of law. Lamar Advantage GP Company v. Zoning Hearing Board of Adjustment City of Pittsburgh, 997 A.2d 423 (Pa. Cmwlth. 2010). An abuse of discretion occurs where the Board's findings of fact are not supported by substantial evidence. Id. Substantial evidence is defined as such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id.
Additionally, Appellants assert that the management, staff, and payroll at a hospital are simply not determinative of hospital use and/or hospital related uses.
First, Section 911.02 of the Zoning Code defines the term "medical office/clinic" as "an establishment providing therapeutic, preventative, corrective, healing and health-building treatment services on an out-patient basis by physicians, dentists and other practitioners [and] . . . [t]ypical uses include medical and dental offices and clinics and out-patient medical laboratories." Also, there is no dispute that a "medical office/clinic" was a permitted use in the Local Neighborhood Commercial (LNC) and Urban Neighborhood Commercial (UNC) zoning districts and that Urgent Care at Shadyside was located in the LNC district. Clearly, the evidence established that the medical services provided by Shadyside Urgent Care fall within the definition of services provided by medical office/clinic
Second, the evidence established that the medical services provided by Shadyside Urgent Care are identical to the medical services provided by MedExpress. MedExpress, located in the LNC zoning district, was classified as a medical office/clinic use by the Zoning Administrator pursuant to Section 911.02 of the Zoning Code.
Third, there was no similarity between Mercy Urgent Care and Shadyside Urgent Care because Mercy Urgent Care was located within UPMC Mercy and Shadyside Urgent Care was located in a separate building across from UPMC Shadyside. Although Appellants argue that this is a distinction without a difference, Appellants failed to produce evidence why zoning approval as a hospital use was granted to Mercy Urgent Care. As UPMC points out, if such evidence was introduced by Appellants, the record would reflect that approval of a hospital use to Mercy Urgent Care was because it constituted a permitted ancillary use to UPMC Mercy. This Court agrees with the common pleas court.
II. Whether Shadyside Urgent Care Qualified As A Hospital Use Even
Though Overnight Beds Were Not Provided?
Appellants next contend that Shadyside Urgent Care qualified as a hospital use even though it did not contain beds for overnight stays of twenty-four hours or more. Appellants cite Friedlander v. Zoning Hearing Board, 546 A.2d 755, 757 (Pa. Cmwlth. 1988) in support of their position.
In Friedlander, Robert Packer Hospital (hospital) "signed an option to purchase three parcels of property from Sayre Motel, Inc. . . . located at 301, 304 and 306 South Wilbur Avenue . . . [in order] to convert all of the properties into administrative offices." Id. at 756. "The first two [properties] are located in an area zoned R/M (high density residential) by the Sayre Township Zoning Ordinance (ordinance) . . . 306 South Wilbur Avenue is an area zoned R/S (single family residence)." Id. at 756. "Hospitals are permitted within the R/M district as a special use . . . and hospitals are not permitted in the R/S district." Id. at 756. The Sayre Township Zoning Hearing Board (zoning board) held a hearing and granted the hospital's requested relief. Kay Friedlander (Friedlander) appealed that decision to the Court of Common Pleas of Bradford County (trial court) which affirmed the zoning board without taking additional testimony.
On appeal to this Court, Friedlander argued, among other things, that the zoning board erred as a matter of law "in granting the applications for special uses for the properties at 301 and 304 Wilbur Avenue . . . [in that] the proposed uses are not 'hospitals' because the building will be used for administrative purposes and not for housing patients." Id. at 757. This Court rejected Friedlander's argument and commented that "[w]e need say no more than the trial court in this regard . . . '[h]ospital offices are just as much a hospital as patient rooms . . . .'" Id. at 757. This Court affirmed the trial court.
Also, this Court agreed that the zoning board had properly granted the hospital a variance for 306 Wilbur Avenue because it proved an unnecessary hardship to the hospital. Friedlander, 546 A.2d at 759.
This Court believes that Friedlander is factually distinguishable from the present controversy and therefore, not controlling. In Friedlander, the hospital's proposed administrative office was located on two parcels of land separate from the hospital facility. The two parcels were within zoning districts that permitted a hospital use by special exception but did not permit an office use. The hospital's administrative offices were found to be an integral part of the hospital use in Friedlander. To the contrary, Shadyside Urgent Care was found by the Board not to be an integral part of UPMC Shadyside, and therefore, not a hospital use. The Board properly found that Shadyside Urgent Care qualified as a medical office/clinic use and permitted in the LNC and UNC zoning district.
Appellants also argue that a previous office building known as POB 2 and located on UPMC Shadyside's campus was determined by this Court to be a nonconforming expansion of a hospital use even though it did not provide overnight beds.
However, in response UPMC noted:
Appellants also reference the allegedly inconsistent approval of a five-story physicians' office building known as POB 2 that is located on the same zoning lot as UPMC Shadyside. Again, the Appellants baldly reference the existence of POB 2 without introducing anything into the record regarding the approval of that use. POB 2 was approved as an expansion of the nonconforming hospital use based upon the following facts: (i) POB 2 is located on the same zoning lot as UPMC Shadyside Hospital; (ii) POB 2 is physically attached to the main UPMC Shadyside Hospital building; and (iii) POB 2 is physically attached to POB 1, a seven story physicians' office building, which is also located on the same zoning lot and is physically attached to the main UPMC Shadyside Hospital building.
POB 2 was ultimately approved by the Commonwealth Court based on the application of the doctrine of natural expansion. The Friendship Preservation Group, Inc. v. Zoning Board of Adjustment, No. 1459 C.D. 2002 . . . . POB 2 was not found to be a "Hospital" use. Rather, it was found to be a proper continuation of other similar nonconforming uses, including the nonconforming UPMC Shadyside Hospital use.
III. Was Shadyside Urgent Care A Hospital Use Because It Was Part Of The
UPMC Shadyside's Campus?
Appellants contend that the Board erred as a matter of law because it failed to consider the Zoning Code definition of "hospital" in its entirety. Appellants state that the Board failed to consider that a hospital use may include such related uses as the website for Shadyside Urgent Care that established a direct relationship with UPMC Shadyside, that Shadyside Urgent Care referred patients to UPMC Shadyside's emergency room, and that the Family Health Center, located in the same building as Shadyside Urgent Care was considered part of UPMC Shadyside.
UPMC responds that Appellants' arguments that Shadyside Urgent Care should be classified as a hospital use was based exclusively on UPMC Shadyside's ownership of the property rather than Shadyside Urgent Care's use of the property. UPMC Shadyside stresses that Appellants' arguments must be rejected because they were contrary to the basic premise that zoning regulations are concerned strictly with the use of the land and not the method of ownership.
Section 911-2 of the Zoning Code defines the term "hospital" as an institution that:
1. Offers services beyond those required for room, board, personal services and general nursing care; and
2. Offers facilities and beds for use beyond 24 hours by individuals requiring diagnosis, treatment, or care for illness, injury, deformity, infirmity, abnormality, disease, or pregnancy; and
3. Regularly makes available clinical laboratory services, diagnostic x-ray services, and treatment facilities for surgery or obstetrical treatment of similar extent.
Hospitals may include offices for medical and dental personnel, central facilities such as pharmacies, medical laboratories and other related uses. (emphasis added).
In County of Fayette v. Cossell, 430 A.2d 1226 (Pa. Cmwlth. 1981), this Court emphasized:
Zoning regulations "concern the physical use to which the land is put" . . . . Zoning law enactments under the police powers, are not concerned with method of ownership of property . . . . Zoning ordinances regulate usage; if a use is permitted, a municipality may not regulate the manner of ownership of the legal estate. (emphasis added and citations omitted.)Id. at 1228.
Appellants reliance on the last portion of the definition of "hospital" in Section 911-2 of the Zoning Code, in particular, "offices for medical . . . personnel", completely misses the point. Shadyside Urgent Care provided the identical medical services as provided by MedExpress. It is ludicrous to believe that MedExpress qualified as a medical office/clinic, a permitted use, in both the LNC district and the UNC district and Shadyside Urgent Care did not because of UPMC Shadyside's ownership.
IV. Whether The Fact MedExpress Was Approved As A Medical Office/Clinic
Is Relevant To The Zoning Use Classification For Shadyside Urgent Care?
Appellants last contend that for zoning purposes Shadyside Urgent Care should have been classified as a "hospital use" similar to UPMC Shadyside which is located in an Educational/Medical Institution District (EMI). Appellants argue that Shadyside Urgent Care would then be required to apply for a conditional use which involved a lengthy zoning process to establish that Shadyside Urgent Care did not create detrimental operational impacts on the local community.
Appellants' argument boils down to this: "UPMC wanted to move fast to get ahead of MedExpress and avoid the Conditional Use process-and somehow they managed to get the City of Pittsburgh to accommodate them with the Medical Office/Clinic designation . . . ." Appellants' Brief at 23.
Section 922.06 of the Zoning Code provides:
An application for Conditional Use approval may be filed by the owner of the subject property or the owner's agent.
. . . .
922.06.C Hearing and Action by the Planning Commission
The Commission shall hold a public hearing on the Conditional Use application. After the public hearing, the Commission shall recommend to approve, approve with conditions, approve in part, deny or deny in part the application, within forty-five (45) days of the Commission hearing . . . . (emphasis added).
922.06.D Hearing and Action by City Council
. . . .
City Council shall hold a public hearing on the Conditional Use application within forty-five (45) days of the Planning Commission's action on the application. (emphasis added).
. . . .
922.06.E Review Criteria
922.06.E.1 General Criteria
City Council shall approve Conditional Uses only if (1) the proposed use is determined to comply with all applicable requirements of this Code and with adopted plans and policies of the City and (2) the following criteria are met:
. . . .
(d) That the development will not create detrimental operational impacts, including potential impacts of hours of operation, management of traffic, servicing and loading operations, and any on-site operations associated with the ongoing functions of the use on the site, in consideration of adjacent and surrounding land uses which may have differing sensitivities to such operational impacts . . . . (emphasis added).
Assuming arguendo that the Board and the common pleas court could have decided that Shadyside Urgent Care qualified as a hospital use, the Board and the common pleas court still properly determined that based on the facts, Shadyside Urgent Care's use was a medical office/clinic use.
First, in H.E. Rohrer, Inc. v. Zoning Hearing Board of Jackson Township, 808 A.2d 1014 (Pa. Cmwlth. 2002), this Court rejected the Court of Common Pleas of York County's determination that where a proposed use "fits" two classifications "the more specific of the two must control." Id. at 1016. This Court stated "[w]hether a proposed use falls within a given categorization contained in a zoning ordinance is a question of law . . . [and] [i]n considering this issue, we are mindful that ordinances are to be construed expansively, affording the broadest possible use and enjoyment of its land." (emphasis added). Id. at 1016.
Second, Shadyside Urgent Care qualified as a medical office/clinic which is a permitted use in the LNC and UNC zoning districts.
Third, the determination that Shadyside Urgent Care's use fits within a permitted use classification effectively ends the inquiry into whether Shadyside Urgent Care also qualifies as a hospital use.
Last, the broadest use of the property was that of a medical office/clinic, and UPMC, as the landowner, is entitled to the broadest use of its land. H.E. Rohrer.
Appellants last argument is a rehash of its second argument that UPMC Shadyside previously argued successfully that POB 2 (a five-story physicians' office building) located on the same zoning lot as UPMC Shadyside was a hospital use even though it lacked hospital beds and that this Court agreed. See note 5, page nine of this Opinion.
Again, as UPMC Shadyside points out, this Court approved POB 2 as a hospital use based on the application of the doctrine of natural expansion. POB 2 was found to be a proper continuation of other similar nonconforming uses, including the nonconforming UPMC Shadyside's use.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 17th day of July, 2012, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge
See Brief for Appellee University of Pittsburgh Medical Center at 17-18.