IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Shoemaker, William Buzzard, :
Terrence Fagan, Maryann Fagan, :
Neferetiti Campbell, Tony Ganci, :
Valerie Ganci, Joseph Iudicello, :
Marshall E. Anders, Patricia Anders, :
Bradley Rinschler, Terry Lynn Teel, :
and Richard Oshrin, :
:
Appellants :
:
v. : No. 613 C.D. 2021
: Argued: September 12, 2022
Smithfield Township Board of :
Supervisors and Water Gap Capital :
Partners, LLC :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: February 27, 2023
Appellants (Objectors)1 appeal from an order of the Court of Common
Pleas of Monroe County (trial court), dated April 30, 2021, which affirmed the
September 22, 2020 decision of the Smithfield Township (Township) Board of
Supervisors (Board) that concluded that the Smithfield Township Zoning Ordinance
1
Objectors are John Shoemaker, William Buzzard, Terrance Fagan, Maryann Fagan,
Neferetiti Campbell, Tony Ganci, Valerie Ganci, Joseph Iudicello, Marshall E. Anders, Patricia
Anders, Bradley Rinschler, Terry Lynn Teel, and Richard Oshrin.
(Ordinance) was exclusionary because it did not permit a residential drug and
alcohol rehabilitation facility in the Township, and granted Water Gap Capital
Partners, LLC (Water Gap) a curative amendment to allow the same as a conditional
use. Objectors seek reversal of the trial court’s decision arguing that the Ordinance
is not exclusionary, the Township’s newly created ED – Economic Development
Zone (ED Zone) cured any exclusion of such use in the Ordinance, and Water Gap’s
de facto operations mooted its exclusionary challenge. Discerning no error, we
affirm.
I. Background
This case arises out of Water Gap’s request for curative amendment to
the Ordinance to allow the operation of a residential drug and alcohol treatment
facility (proposed use) as a conditional use in the Township’s R-1 Low Density
Residential Zone (R-1 Zone).2 The location for the proposed use is a 40-acre tract
of land (Property) that was part of a 156-acre golf resort known as the Water Gap
Country Club.3 The Property is improved with an inn, pro club, golf course,
swimming pool, and parking areas. Water Gap renovated the inn with new electrical
wiring, HVAC, ceilings and flooring, and improved the existing water and septic
systems. The inn has 24 double occupancy rooms with a maximum capacity of 48
2
Principal permitted uses allowed in the R-1 Zone include conservation subdivision;
single-family detached dwellings; membership clubs, camps, and associations; communications
towers; and municipal recreation and entertainment facilities. Conditional uses include federal,
state and county buildings; assisted living facilities; bed and breakfasts; inns; planned residential
developments; resorts; and schools, colleges, and educational facilities. See Original Record
(O.R.), Ordinance, Schedule of District Regulations.
3
The 156-acre parcel is located in both Smithfield Township and the Borough of Delaware
Water Gap, but the subject Property is located entirely within Smithfield Township.
2
people. Water Gap has used the Property to house patients receiving treatment at
Water Gap’s offsite outpatient facility located in East Stroudsburg.
Following a determination from the Township zoning officer that the
proposed use was not recognized under the Ordinance, Water Gap sought relief in a
separate proceeding pursuant to Section 302.2 of the Ordinance4 (Section 302.2
proceeding). Water Gap challenged the Ordinance as exclusionary on the basis that
it did not permit a residential drug and alcohol rehabilitation facility anywhere within
the Township. Although “hospital” and “specialty hospital” are uses permitted in
other zones in the Township, the Board found that residential drug and alcohol
treatment facilities did not fit within either of these definitions or fall within any
other category of use within any zoning district under the Ordinance. To remedy the
exclusion, the Board allowed Water Gap to proceed with a conditional use
application. Objectors, who are neighboring property owners that were granted
party status, appealed the Board’s decision to the trial court.
4
This section provides:
If a proposed use is not included in any category of uses or within
any zoning district on the Schedule of District Regulations, the
[Board] shall render a formal determination as to whether or not the
use is permitted in a given district and if the use is permitted, it shall
then process the application as a conditional use. The Board of
Supervisors shall make its determination on the basis of similarities
of the use to other specifically listed uses within various districts,
taking into consideration the impacts of the use on the community
and the neighborhood in which it is proposed. This provision is
intended to avoid being exclusionary with respect to unlisted uses
not otherwise prohibited by this Chapter. This provision shall not be
used to reclassify uses that are already listed nor shall the Board of
Supervisors allow any use which is not listed in a particular district
if that use is already permitted in another district.
O.R., Section 302.2 of the Ordinance.
3
By decision dated June 10, 2020, the trial court agreed that the
Ordinance was exclusionary. See Shoemaker v. Smithfield Township Board of
Supervisors (C.C.P. Monroe, No. 009420-CV-2019, filed June 10, 2020)
(Shoemaker). However, the trial court determined that Section 302.2 of the
Ordinance was an invalid procedure for curing a defective zoning ordinance and that
Section 609.1 or 609.2 of the Pennsylvania Municipalities Planning Code (MPC)5
provided the exclusive remedial procedures. Significantly, no appeal was taken
from the trial court’s decision. Reproduced Record (R.R.) at 23a.
Two days later, on June 12, 2020, Water Gap filed a Curative Zoning
Ordinance Amendment Request to allow the proposed use in the R-1 Zone as a
conditional use pursuant to Section 609.1(c) of the MPC,6 which is the subject of the
current appeal. Following a public hearing and by decision dated September 22,
2020, the Board granted Water Gap’s curative amendment to allow the proposed use
on the Property as a conditional use. Objectors appealed. The trial court received
additional evidence, including the record of the Section 302.2 proceeding and the
Shoemaker opinion per stipulation by the parties, R.R. at 19a-23a,7 and reviewed the
matter de novo. By decision dated April 30, 2021, the trial court determined that
5
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10609.1, 10609.2.
6
Reenacted and amended by the Act of December 21, 1988, P.L. 1329,
53 P.S. §10609.1(c).
7
Although the parties agreed to the admission of the Shoemaker opinion, they noted they
were not necessarily agreeing with the legal analysis or factual findings expressed therein. R.R.
22a-23a.
4
Water Gap was entitled to its curative amendment and affirmed the Board’s decision.
Objectors’ appeal to this Court followed.8
II. Issues
Objectors seek reversal of the trial court’s decision on three grounds.
First, Objectors contend that the trial court erred in concluding that the Ordinance
did not permit a residential drug and alcohol rehabilitation facility anywhere in the
Township and was thus, exclusionary, even though the Ordinance permitted broadly
defined “hospitals” and “specialty hospitals.” Second, the trial court erred by
granting Water Gap’s curative amendment where the Board enacted a zoning
amendment specifically permitting drug and alcohol rehabilitation facilities in a
newly created ED Zone that cured any exclusion of such use in the Ordinance. Third,
Objectors argue that the trial court erred by refusing to recognize uncontradicted
testimony that Water Gap was in fact operating a residential treatment facility, in
conjunction with a licensed outpatient facility located outside of the Township, and
that such operation rendered Water Gap’s challenge of the Ordinance as
exclusionary moot.
III. Discussion
A. Exclusionary Ordinance
First, Objectors contend that the trial court erred in finding that the
Ordinance improperly excluded drug and alcohol rehabilitation centers. Although
the Ordinance did not specifically list that use, the B-2 Business and Professional
Office/Medical District (B-2 Zone) expressly permitted “hospitals” and “specialty
8
“Where the trial court takes additional evidence, ‘[o]ur review is limited to a
determination of whether or not the [trial court] abused its discretion or committed an error of
law.’” Larock v. Board of Supervisors, 961 A.2d 916, 923 (Pa. Cmwlth. 2008) (quoting Christ
United Methodist Church v. Municipality of Bethel Park, 428 A.2d 745, 746 (Pa. Cmwlth. 1981)).
5
hospitals,” which, when broadly defined, encompass drug and alcohol rehabilitation
centers. Consequently, the Ordinance was not exclusionary and there was no need
for a curative amendment.
Initially, we note that, in Shoemaker, the trial court considered whether
the proposed use was excluded from the Ordinance in a case involving the same
parties and the same issues in the Section 302.2 proceeding. The trial court found
that “[t]he use of a drug and alcohol treatment facility is not listed as a permitted,
conditional or accessory use in any zoning district in [the] Township. The term ‘drug
and alcohol rehabilitation facility’ is not defined in the [O]rdinance.” See
Shoemaker, slip op. at 2. “There is no dispute here that the [] Ordinance did not
identify a ‘drug and alcohol rehabilitation facility’ as a permitted use in the R-1
[Z]one. In fact, the [O]rdinance did not permit the use in any zone. The [O]rdinance
contains no definition of the use . . . .” Id. at 7 (emphasis added). The trial court
continued:
Where an ordinance fails to provide for a legitimate use
and the municipality fails or is unable to adequately justify
that exclusion by demonstrating its substantial relationship
to the promotion of the public health, safety and welfare,
that ordinance is not a rational exercise of the zoning
power and is therefore invalid.
Id. at 8. Critically, no appeal was taken from this decision. The parties stipulated to
the incorporation of the Section 302.2 proceeding in this matter. R.R. at 19a.
Because the issue was finally determined in Shoemaker, it appears that
the relitigation of this issue is barred by the doctrines of res judicata and collateral
estoppel.9 Curiously, neither Water Gap nor the Board raised the issue. Although
9
“Res judicata encompasses two related, but distinct principles: technical res judicata and
collateral estoppel.” J.S. v. Department of Human Services, 221 A.3d 333, 341 (Pa. Cmwlth. 2019)
(Footnote continued on next page…)
6
this Court may raise the issue sua sponte, we will address the merits. See In re
Nomination Petitions and Papers of Stevenson, 40 A.3d 1212, 1223 (Pa. 2012) (“The
failure of the parties to raise the issue does not tie the court’s hands. Rather, a court
may, ‘in appropriate cases,’ sua sponte raise the issue of the preclusive effect of a
prior judgment” to conserve judicial resources.).
Section 609.1 of the MPC provides: “(A) landowner who desires to
challenge on substantive grounds the validity of a zoning ordinance . . . which
prohibits or restricts the use or development of land in which he has an interest may
submit a curative amendment . . . .” 53 P.S. §10609.1. The landowner bears the
burden of proving that the ordinance is exclusionary. Allegheny Energy v. Blain
Township, 829 A.2d 1254, 1261 (Pa. Cmwlth. 2002).
(quoting C.J. v. Department of Public Welfare, 960 A.2d 494, 499 (Pa. Cmwlth. 2008)). Res
judicata, or claim preclusion, bars a claim where there has been a final judgment on the merits of
that claim, or issue, in a prior action. In re Coatesville Area School District, 244 A.3d 373, 378
(Pa. 2021). It bars any claims actually litigated as well as those that should have been litigated in
the prior action. Id. For res judicata to apply, there must be identity of (1) the issues, (2) the causes
of action, (3) the persons and parties to the action, and (4) the quality or capacity of the parties
suing or being sued. Id. Generally, causes of action are identical when the subject matter and the
ultimate issues are the same in both the old and new proceedings. Id.
In the same way, the doctrine of collateral estoppel bars a subsequent lawsuit where (1) an
issue decided in a prior action is identical to one presented in a later action, (2) the prior action
resulted in a final judgment on the merits, (3) the party against whom collateral estoppel is asserted
was a party to the prior action, or is in privity with a party to the prior action, and (4) the party
against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in
the prior action. In re Coatesville Area School District, 244 A.3d at 378. Occasionally, “the courts
add a fifth element, namely, that resolution of the issue in the prior proceeding was essential to the
judgment.” Id.
Both doctrines are “judicially-created precept[s]” based on practical considerations
including avoiding the “‘cost and vexation’ of repetitive litigation, conserving judicial resources,
‘and, by preventing inconsistent decisions, [and] encourag[ing] reliance on adjudication.’” In re
Coatesville Area School District, 244 A.3d at 379, 380 (quoting Office of Disciplinary Counsel v.
Kiesewetter, 889 A.2d 47, 50-51 (Pa. 2005)).
7
There is no dispute that the proposed use is not a permitted use or a
conditional use in the R-1 Zone. The use of a drug and alcohol treatment facility
was not specifically listed as a permitted, conditional, or accessory use in any zoning
district.
As for whether the proposed use fits within another classification, the
Township’s B-2 Zone expressly permits “hospitals” and “specialty hospitals” as
healthcare uses. The Ordinance defines these terms as:
HOSPITAL - A state-licensed facility providing primary
health services and medical or surgical care to persons
suffering from illness, disease, injury, deformity, and other
abnormal physical or mental conditions and including, as
an integral part of the institution, related facilities, such as
laboratories, outpatient facilities, training facilities, and
medical offices.
SPECIALITY HOSPITAL – A hospital that is primarily
or exclusively engaged in the care and treatment of
patients with a cardiac condition, orthopedic condition, a
condition requiring a surgical procedure and any other
Specialized category of services designated by the
Secretary of Health and Human Services. Specialty
hospitals are not required to provide the following:
surgical services; anesthesia services; nuclear medicine
services; outpatient services; psychiatric services;
obstetrical and newborn services; pediatric services or
emergency services.
O.R., Section 1002 of the Ordinance.
Although at first blush, it seems plausible that the proposed use could
fit within one or both of these definitions, Water Gap demonstrated otherwise by
uncontradicted expert evidence. Water Gap offered the testimony of Dr. Robert
Morrow, M.D. (Dr. Morrow), a psychiatrist and Water Gap’s chief medical officer,
8
regarding the distinctions between the proposed use and the classifications set forth
in the Ordinance. As found by the trial court, Dr. Morrow testified that
a drug and alcohol rehabilitation facility provides a
different level of care than a hospital or a specialty
hospital. Patients in a drug and alcohol rehabilitation
facility are not in need of the primary medical care offered
by a hospital. A patient coming to a residential inpatient
drug and alcohol treatment facility is in need of medical
oversight of detoxification for three to five days and will
receive rehabilitation through individual and group
counseling, education and arranging for out-patient
treatment for an extended period after that. A hospital
provides a higher level of care for acute illness than the
residential drug and alcohol rehabilitation facility
proposed here. Patients who are medically ill due to their
substance addiction and are unable to safely detox in a
residential setting would need the more intensive services
offered by a hospital. There[,] they would be seen on daily
rounds by doctors and would have twenty-four hour
nursing care. The drug and alcohol rehabilitation center is
a step down from that level of care, just as an assisted
living center would be.
Trial Court Opinion, 4/30/21, at 17-18. Dr. Morrow further testified that some, if
not many, patients addicted to drugs or alcohol also deal with mental health issues.
Id. at 18. However, he testified that those with serious mental illness requiring
treatment in a hospital would be referred to a hospital and would not be accepted at
the proposed facility. Id.
Based upon this testimony, the trial court found that a drug and alcohol
treatment facility provides a different level of care than a hospital or specialty
hospital because patients in drug and alcohol treatment facilities are not in need of
primary medical care. A drug and alcohol treatment facility is a step-down level of
care. Objectors did not offer evidence to rebut Dr. Morrow’s testimony. Based on
this distinction, the trial court determined that the proposed use did not fit within any
9
classifications of use and was thus excluded from the Ordinance. Upon review, the
trial court did not err or abuse its discretion in this regard.
B. Curative Amendment
Alternatively, Objectors argue that the trial court erred by affirming the
grant of Water Gap’s curative amendment. At the time of the curative amendment,
the Board was considering and subsequently adopted its own zoning amendment
explicitly permitting drug and alcohol rehabilitation centers in a newly created ED
Zone. The Board’s amendment cured any exclusion, thereby making Water Gap’s
curative amendment unnecessary.
Section 609.2(1) provides that if a municipality determines that its
zoning ordinance is invalid, it shall so declare, and it shall also propose that it will
take steps to cure the invalidity. Subsection (2) provides: “Within 180 days from
the date of the declaration and proposal, the municipality shall enact a curative
amendment to validate, or reaffirm the validity of, its zoning ordinance pursuant to
the provisions required by [S]ection 609.1 in order to cure the declared invalidity of
the zoning ordinance.” 53 P.S. §10609.2(2). Subsection (3) provides the following
protection if a municipality takes this course:
Upon the initiation of the procedures, as set forth in clause
(1), the governing body shall not be required to entertain
or consider any landowner’s curative amendment filed
under Section 609.1 nor shall the zoning hearing board be
required to give a report requested under Section 909.1 or
916.1 subsequent to the declaration and proposal based
upon the grounds identical to or substantially similar to
those specified in the resolution required by clause (1)(a).
Upon completion of the procedures as set forth in clauses
(1) and (2), no rights to a cure pursuant to the provisions
of sections 609.1 and 916.1 shall, from the date of the
declaration and proposal, accrue to any landowner on the
basis of the substantive invalidity of the unamended
10
zoning ordinance for which there has been a curative
amendment pursuant to this section.
53 P.S. §10609.2(3) (emphasis added). “[A]fter a municipality begins its declaration
procedures, the governing body is free to focus on the municipality’s cure without
considering subsequently filed private challenge(s) at the same time.” Piper Group,
Inc. v. Bedminster Township Board of Supervisors, 30 A.3d 1083, 1092 (Pa. 2011)
(emphasis added). This essentially provides the municipality a safe harbor within
which to act. However, such did not occur here because the Board did not “initiate
procedures” before Water Gap filed its curative amendment. Therefore, Water Gap
was not required to wait for the Board to act to correct its exclusionary Ordinance.
Consequently, the Board was required to consider Water Gap’s curative amendment.
See id. The Board’s subsequent Ordinance correction did not override Water Gap’s
rights under the MPC.
C. De facto Operation
Finally, Objectors argue that a curative amendment was not necessary
because Water Gap was already operating a drug and alcohol rehabilitation center
under the existing Ordinance. This de facto operation was proven by uncontradicted
evidence and belies the trial court’s determination that the Ordinance was
exclusionary.
Objectors’ argument ignores the critical distinction between an
outpatient treatment facility and a residential inpatient treatment facility and ignores
the underlying reason for the curative amendment — to allow Water Gap to obtain
licensing from the Commonwealth as required to operate an inpatient treatment
facility. The curative amendment was necessary for Water Gap to legally operate
the proposed use on the Property in compliance with the Ordinance. The fact that
Water Gap may have been operating the proposed use on the Property without a
11
license in violation of the law and without conditional use approval in violation of
the Ordinance did not somehow moot Water Gap’s exclusionary Ordinance
challenge or otherwise obviate the need for a curative amendment.
IV. Conclusion
Accordingly, we affirm the order of the trial court.
MICHAEL H. WOJCIK, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Shoemaker, William Buzzard, :
Terrence Fagan, Maryann Fagan, :
Neferetiti Campbell, Tony Ganci, :
Valerie Ganci, Joseph Iudicello, :
Marshall E. Anders, Patricia Anders, :
Bradley Rinschler, Terry Lynn Teel, :
and Richard Oshrin, :
:
Appellants :
:
v. : No. 613 C.D. 2021
:
Smithfield Township Board of :
Supervisors and Water Gap Capital :
Partners, LLC :
ORDER
AND NOW, this 27th day of February, 2023, the order of the Court of
Common Pleas of Monroe County, dated April 30, 2021, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge