Water Gap Capital Partners, LLC v. Smithfield Twp. Bd. of Supers. ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Water Gap Capital Partners, LLC, :
:
Appellant :
:
v. : No. 1304 C.D. 2021
: Argued: September 12, 2022
Smithfield Township Board of :
Supervisors, 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 :
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: May 19, 2023
Water Gap Capital Partners, LLC (Water Gap) appeals from an order
of the Court of Common Pleas of Monroe County (trial court), dated October 15,
2021, that affirmed the April 13, 2021 decision of the Smithfield Township
(Township) Board of Supervisors (Board) denying Water Gap’s conditional use
application (Application) for a drug and alcohol treatment facility. Water Gap
contends that the Board erred or abused its discretion in determining that Objectors1
1
Objectors are John Shoemaker, William Buzzard, Terrance Fagan, Maryann Fagan,
Neferetiti Campbell, Tony Ganci, Valerie Ganci, Joseph Iudicello, Marshall E. Anders, Patricia
(Footnote continued on next page…)
met their heavy burden of proving that Water Gap’s proposed use would be more
detrimental than would be typical for a state regulated drug and alcohol abuse
treatment facility. Upon review, we affirm.
In a related case, Water Gap was granted a curative amendment
allowing the operation of a residential drug and alcohol treatment facility (proposed
use) in the Township’s R-1 Low Density Residential Zone (R-1 Zone) pursuant to
Section 609.1 of the Pennsylvania Municipalities Planning Code (MPC),2 after
successfully challenging the Smithfield Township Zoning Ordinance (Ordinance) as
exclusionary because it did not permit such use anywhere within the Township. See
Shoemaker v. Smithfield Township Board of Supervisors and Water Gap Capital
Partners, LLC (Pa. Cmwlth., No. 613 C.D. 2021, filed February 27, 2023)
(Shoemaker) (affirming the determination that the Ordinance was exclusionary and
that the curative amendment was properly granted). Water Gap then filed the
Application seeking conditional use approval of the proposed use.
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 people. Water Gap has used the
Anders, Bradley Rinschler, Terry Lynn Teel, and Richard Oshrin, and have intervened in this
matter.
2
Act of July 31, 1968, P.L. 805, as amended, reenacted by the Act of December 21, 1988,
P.L. 1329, 53 P.S. §10609.1.
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
Property to house clientele suffering from drug and alcohol addiction (patients)
receiving treatment at Water Gap’s offsite outpatient facility located in East
Stroudsburg (outpatient facility). Reproduced Record (R.R.) at 207a, 313a.
The Board held several hearings on Water Gap’s Application. At the
outset of the hearings, the parties stipulated to incorporate the record of all prior
proceedings to avoid duplication of evidence and testimony.4 See R.R. at 199a.
Water Gap presented additional testimony and evidence, including the testimony of
Joseph Schlim (Schlim), a principal of Water Gap. In opposition, Objectors
presented the testimony of former Water Gap employees regarding operations at the
Property, as well as community residents who testified regarding their personal
encounters with the patients staying at the Property.
Following the close of evidence, the Board denied the Application by
decision dated April 13, 2021. The Board found that Water Gap did not meet the
criteria for conditional use and that Objectors met their burden of proving
detrimental effect. Water Gap appealed to the trial court.5 By decision dated
October 15, 2021, the trial court reversed the Board insofar as it found that Water
Gap had failed to meet the criteria for conditional use. However, the trial court
otherwise affirmed the denial upon determining that the Objectors sustained their
4
This included the record from the proceedings conducted pursuant to Section 302.2 of the
Ordinance and Section 609.1(c) of the MPC, 53 P.S. §10609.1(c). R.R. at 199a.
5
Water Gap filed a motion to supplement/correct the record to include information omitted
by the Board, namely, the site plan and review by the Township’s Planning Commission and
engineer. The trial court granted the motion and supplemented the record to include these items.
Because this supplement was a correction of the record, as opposed to the receipt of additional
evidence, the trial court did not review the matter de novo.
3
burden of showing that the proposed use would be detrimental to the community.
This appeal now follows.6
Water Gap contends that the Board erred and abused its discretion in
determining that Objectors met their heavy burden of proving that the proposed use
of the Property would be more detrimental than would be typical for a state regulated
drug, alcohol and substance abuse treatment facility. The Board approved Water
Gap’s curative amendment to the Ordinance to allow the proposed use as a
conditional use in the R-1 Zone. The approval entitled Water Gap to a presumption
that the proposed use was consistent with and not detrimental to the general welfare
of the community in the R-1 Zone. In the face of unwavering opposition from
Objectors who opposed any change of the use of the Property, as well as the Board’s
independent investigations conducted outside the conditional use proceedings, the
Board denied the Application. According to Water Gap, the Board’s decision was
based on the improper finding that Objectors had met their heavy burden of showing
a detrimental effect on the community, despite a lack of evidence to show that the
proposed use would be more detrimental than any other drug, alcohol, and substance
abuse treatment center. Evidence regarding a temporary, nonregulated use of the
Property was not probative as to whether the proposed use itself would be of a greater
impact than a comparable drug and alcohol treatment facility.
6
Where, as here, the trial court does not take additional evidence, our review is limited to
determining whether the Board abused its discretion, or committed an error of law in denying a
conditional use application. EQT Production Co. v. Borough of Jefferson Hills, 208 A.3d 1010,
1024 (Pa. 2019). “An abuse of discretion will only be found in circumstances wherein the findings
of the Board are not supported by substantial evidence.” Visionquest National, Ltd. v. Board of
Supervisors of Honey Brook Township, Chester County, 569 A.2d 915, 918 (Pa. 1990).
“Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” EQT, 208 A.3d at 1024 (quoting Gorsline v. Board of Supervisors of
Fairfield Township, 186 A.3d 375, 385 (Pa. 2018)).
4
A conditional use in a zoning ordinance “indicates legislative
acceptance that the use is consistent with the zoning plan and a use application
should only be denied where the adverse impact on the public interest exceeds that
which might be expected in normal circumstances.” In re McGlynn, 974 A.2d 525,
537 (Pa. Cmwlth. 2009). An application for conditional use involves a shifting
burden of persuasion:
First, the applicant must persuade the local governing
body its proposed use is a type permitted by conditional
use and the proposed use complies with the requirements
in the ordinance for such a conditional use. Once it does
so, a presumption arises the proposed use is consistent
with the general welfare. The burden then shifts to
objectors to rebut the presumption by proving, to a high
degree of probability, the proposed use will adversely
affect the public welfare in a way not normally expected
from the type of use.
Aldridge v. Jackson Township, 983 A.2d 247, 253 (Pa. Cmwlth. 2009) (citations and
footnote omitted); accord In re McGlynn, 974 A.2d at 537; In re Thompson, 896A.2d 659, 670 (Pa. Cmwlth. 2006); Sunnyside Up Corp. v. City of Lancaster Zoning
Hearing Board, 739 A.2d 644, 650 (Pa. Cmwlth. 1999). The objectors cannot meet
their burden with a “speculation of possible harms.” Marquise Investment, Inc. v.
City of Pittsburgh, 11 A.3d 607, 615 (Pa. Cmwlth. 2010); Sunnyside Up, 739 A.2d
at 650. In other words, the objectors’ “evidence cannot consist of mere ‘bald
assertions, personal opinions and perceptions’ of the use and its effect on the
neighborhood.” Visionquest National, Ltd. v. Board of Supervisors of Honeybrook
Township, 569 A.2d 915, 917 (Pa. 1990) (quoting Commonwealth of Pennsylvania,
Bureau of Corrections v. City of Pittsburgh, 532 A.2d 12 (Pa. 1987)). Rather, the
objectors must present substantial evidence regarding actual harm. Id.5
In meeting this burden, an applicant’s past conduct is both relevant and
probative in determining whether the applicant meets the conditions of licensure for
conducting future business activities of the same nature as those in which it had
previously engaged. EQT Production Co. v. Borough of Jefferson Hills, 208 A.3d
1010, 1026 (Pa. 2019); see Street Road Bar and Grille v. Pennsylvania Liquor
Control Board, 876 A.2d 346, 357-58 (Pa. 2005) (holding that prior instances of
conduct of liquor license applicant, including liquor code violations, was both
relevant and “extremely probative” in determining whether applicant met the
statutory criteria for being reputable, given that this history was an accurate gauge
of whether the applicant had the requisite degree of fitness required to operate a
liquor selling establishment). “[T]estimony as to prior experiences with the specific
proposed use, while the use was conducted unapproved or unlawfully, should be
given greater weight in determining the detriment to the community as such
testimony is clearly not speculative.” Visionquest, 569 A.2d at 918 (emphasis
added). “[E]vidence relating to past conduct and practices of a facility’s owners,
and specific impacts on the community from the functioning of the facility, [is]
relevant and probative in determining whether, if conditional use authorization were
granted, the facility’s operation would pose a threat to the welfare of the
community.” EQT, 208 A.3d at 1026.
In determining whether Objectors here met their burden, we are guided
by Visionquest. In Visionquest, an applicant sought conditional use approval from a
municipality’s governing body to continue operation of a rehabilitative facility,
which was structured as a wilderness camp that housed youths with behavioral
difficulties. The applicant was already operating the facility without conditional use
approval. At the conditional use hearing before the municipality’s governing body,
6
neighboring residents objected to the conditional use and presented testimony
regarding incidents occurring at the facility that disrupted their daily lives, namely,
obscenities and loud noises emanating from the facility every morning. The
residents detailed their apprehension about the potential for escapes occurring from
the facility, as well as their fears that escapees would cause damage to their property.
The residents presented evidence that such escapes had already occurred while the
facility was operating in an unlicensed manner, and that, during the time searches
were underway for the escapees, the facility’s operators advised residents to take
necessary precautions. Additionally, the residents presented evidence regarding
incidents of property damage at a similar facility owned and operated by the same
applicant in another county, and that applicant had expressly disclaimed
responsibility for any property damage caused by escaped youths. The governing
body denied the conditional use application on the ground that it did not meet the
objective criteria of the zoning ordinance governing the grant of a conditional use
permit, and that, even if it did, denial was justified because the proposed use “would
have a detrimental effect on the welfare of the community.” Visionquest, 569 A.2d
at 916-17. The applicant appealed.
The trial court found that the applicant had met the objective criteria
established by the zoning ordinance for the grant of the conditional use exception.
Visionquest, 569 A.2d at 917. However, the trial court upheld the denial based on
the evidence relating to the facility’s operations, as well as incidents of property
damage arising out of the applicant’s operation of a similar facility in another county.
The trial court found that this evidence supported a finding that denial was warranted
because of the detriment to the community. Id. On subsequent appeal, this Court
reversed on the basis that the evidence constituted “unsupported anxieties” that only
7
showed “the mere possibility of an adverse impact,” which was insufficient to prove
detriment. Id.
On further appeal, the Supreme Court reversed our order. Visionquest,
569 A.2d at 919. The Supreme Court examined the governing body’s “findings to
determine whether the applicant met the criteria of a school under the conditional
use ordinance and whether the residents met their burden of proving that the
proposed use would have a detrimental effect on the community.” Id. at 918.
Notably, the Supreme Court began its discussion with whether
substantial evidence supported the residents’ claim that this proposed use would
pose a greater detriment to the community than any other school facility.
Visionquest, 569 A.2d at 918. The Supreme Court examined the evidence received
by the governing body, as detailed above, particularly evidence provided by the
residents of the community regarding how the facility impacted their day-to-day
lives while it was in operation. Id. The Supreme Court concluded that this evidence
was “sufficient evidence” to enable the residents to demonstrate the requisite
detriment. Id. The Supreme Court expressly rejected this Court’s conclusion that
such testimony constituted only “bald assertions,” or “unsupported anxieties.” Id.
Rather, the residents offered “testimony as to their experiences with this specific
facility during its illegal and unlicensed activity.” Id.; accord EQT, 208 A.3d at
1026.
The Supreme Court then went on to determine that the youth facility
did not satisfy the objective criteria to be a “school” under the township’s zoning
ordinance. Visionquest, 569 A.2d at 918-19. The facility was penological in nature,
and the zoning ordinance excluded correctional or penal institutions from the zoning
8
district where the camp was located. Id. Thus, the use proposed was a conditional
use that was not contemplated by the ordinance. Id.
Ordinarily, if the objective criteria are not met, the burden of persuasion
never shifts to the objectors to prove detriment. See Aldridge. However, the
Supreme Court in Visionquest engaged in the community detriment analysis first.
Visionquest, 569 A.2d at 916-918. In so doing, the Supreme Court established clear
guidance as to what is necessary for Objectors to meet their burden. Id.
Here, although the Board found that Water Gap did not meet the
objective requirements of the Ordinance, the trial court remedied this error. The trial
court applied the correct legal standard for burden of proof with respect to
conditional use applications as set forth above. See Aldridge; McGlynn; Thompson;
Sunnyside Up. The trial court determined that Water Gap met its burden of proving
that its proposed use is the type of use permitted by conditional use, and that it
complied with the specific requirements of the Ordinance for such use.
Consequently, a presumption arose that Water Gap’s proposed use would be
consistent with the health, safety, and general welfare of the community. See
Aldridge. This is not disputed on appeal. Accordingly, the burden shifted to
Objectors to rebut the presumption by demonstrating to a high degree of probability
that the proposed use will adversely affect the public welfare in a way not normally
expected from a drug and alcohol treatment facility. Id.
To that end, as in Visionquest, Objectors offered evidence regarding
Water Gap’s unregulated and unapproved use. Diane Dellocono (Dellocono), a
licensed practical nurse and Water Gap’s former Director of Nursing/Director of
Client Care who worked at the Property and the outpatient facility in 2020, testified
regarding the Property’s operations during her tenure. R.R. at 200a, 203a-5a, 208a.
9
Dellocono testified that prescription medications, which were prescribed by Water
Gap’s psychiatrist and chief medical officer, Robert Morrow, M.D. (Dr. Morrow),
and called in by her, were delivered directly to the Property to Water Gap staff, not
to the patients. Id. at 209a-13a, 353a. Water Gap stored the medications in locked
cabinets at the Property. Id. at 211a. Water Gap staff dispensed medications to the
patients at regular intervals in a hospital-like manner. Id. at 209a-13a, 352a-54a.
Nurses administered some medications by injection. Id. at 213a, 353a. The patients’
vital signs were routinely checked and recorded with the medication administration.
Id. at 354a. Patients also received counseling and one-on-one therapy at the
Property. Id. at 223a.
Heather O’Donnell (O’Donnell), a licensed professional counselor who
worked for Water Gap primarily at its outpatient facility in 2020, testified that she
frequently provided counseling sessions to patients at the Property. R.R. at 464a.
She also testified that medications were stored in a locker and were regularly
distributed to patients at the Property. Id. at 465a. The medications included a
variety of psychotropic medications, including antidepressants, antianxieties, and
antipsychotics in addition to substance addiction therapies. Id. at 472a.
Both witnesses testified that Water Gap housed and treated some
patients suffering solely from mental health issues and not addiction issues. R.R. at
215a-16a, 343a, 349a, 467a-68a. The mental health diagnoses included paranoid
schizophrenia and bipolar disorder. Id. at 216a, 349a.
Dellocono’s and O’Donnell’s testimony regarding treatment
administered at the Property was corroborated by admissions made by Schlim during
testimony offered in rebuttal. Initially, Schlim testified that patients staying at the
Property received no treatment at the Property, only at the outpatient facility. R.R.
10
at 313a. Although Schlim acknowledged that the pharmacies regularly delivered
medications to the Property, he maintained that they were delivered and belonged to
the patients themselves. Id. However, on cross-examination, Schlim admitted that
the medications were delivered to Water Gap staff, not the patients themselves. Id.
at 326a-28a. He admitted that Water Gap stored those medications for its patients
onsite in locked cabinets. Id. at 314a-15a, 328a. Although Schlim initially testified
that Water Gap staff did not dispense any medications, id. at 314a, he later admitted
that staff not only dispensed medications but monitored whether the medications
were taken and how much. Id. at 329a, 336a-37a. Schlim admitted that nurses
visited the Property. Id. at 328a. Schlim testified that the Property housed patients
seeking treatment at the offsite facility, which included patients with acute mental
health issues who did not have a substance abuse diagnosis. See id. at 343a, 345a.
In addition, Dellocono testified that, before an inspection of the
Property, Water Gap removed all indications that treatment was taking place at the
Property. R.R. at 215a. All signage regarding medications were removed. Id. Even
her title was changed from “Director of Nursing” to “Director of Client Care.” Id.
O’Donnell testified that, in late August or early September 2020, Schlim advised her
to stop providing counseling services at the Property. Id. at 464a. Such testimony
bares the surreptitious nature of Water Gap’s operations.
Despite operating as an unlicensed residential treatment facility for
patients with mental illness and/or substance abuse issues, Water Gap did not have
appropriate security measures and safeguards in place for the safety of its patients
and the surrounding community. R.R. at 473a and 479a. Water Gap conceded that
such measures would be in place if it were a licensed treatment facility. See id. at
322a (Schlim testified that “with residential treatment there are more structured rules
11
in the treatment setting including 24-7 security and surveillance staffing, therapists
who would be on site every day, and support staff who are trained in de[-]escalation
techniques.”); see also id. at 347a (Schlim testified there are a different set of
requirements for a residential treatment facility).
Both Dellocono and O’Donnell expressed concern that some patients
staying at the Property were a danger to themselves and to others because of the lack
of security and safeguards. R.R. at 218a-19a, 473a. Both testified that some patients
staying at the Property were on suicide watch. Id. at 219a, 469a. Dellocono testified
that, on two occasions, patients “cut themselves.” Id. at 220a. Even Schlim
conceded that some of the patients residing at the Property had inflicted self-harm.
Id. at 330a-31a.
O’Donnell noted incidents of patients leaving the Property
unsupervised. R.R. at 470a, 473a. Dellocono testified that, on one occasion, a
patient left his room overnight, went missing for 12 hours, purchased drugs, and
brought them back to the Property. Id. at 220a.
Neighboring residents offered firsthand accounts of encounters
involving Water Gap’s patients in the community. Resident and former Township
Mayor, Walter T. Conway, Jr., described an incident where a man, who had stabbed
himself, entered his property. Attendants pursued the man and tried to persuade him
to return with them. Shortly thereafter, state and local police responded to the scene
along with an ambulance, which took the man away. R.R. at 225a-33a.
Additional residents testified regarding their encounters with Water
Gap patients on the outskirts of the Property. One resident testified he overheard a
patient screaming loudly for 15 to 20 minutes that he wanted to kill someone. R.R. at
239a-41a, 244a, 247a; see id. at 306a-7a. Another resident overheard a patient’s
12
cellphone conversation that he “was going to die if he didn’t straighten up.” Id. at
489a. The residents described the patients as alone, unsupervised, and highly
agitated, and the residents feared for their safety. Id. at 238a-46a, 489a.
Generally, the neighboring residents’ negative reported experiences
with patients residing at a drug and alcohol treatment facility in their community
showed an impact that can be expected for such a facility. See In re Thompson, 896A.2d at 679 (not only are the objectors required to “show a high probability that the
proposed use will cause adverse impact but also that the proposed use would create
an adverse impact not normally generated by the type of use proposed”) (emphasis
added). However, the evidence regarding Water Gap’s unregulated and unapproved
use while the conditional use application was pending, together with the neighboring
residents’ experiences, provided the requisite evidence that Water Gap’s proposed
use would create an adverse impact not normally generated by a drug and alcohol
treatment facility.
The foregoing evidence demonstrated that Water Gap was not just
housing patients who were being treated at its outpatient facility but was treating and
medicating them at the Property. Some patients had acute mental health issues,
without addiction issues. Such patients would not normally be expected at a
residential drug and alcohol treatment facility.7 Water Gap furnished treatment
without a license from the Commonwealth of Pennsylvania to operate a drug and
7
In Shoemaker, the trial court relied upon Dr. Morrow’s testimony distinguishing a drug
and alcohol rehabilitation facility from “hospital” or “specialty hospital” as those terms were
defined in the Ordinance in granting Water Gap’s curative amendment to allow the proposed use
on the Property. Dr. Morrow testified that patients with serious mental illness requiring medical
treatment in a hospital would be referred to a hospital and would not be accepted at the proposed
facility. Shoemaker, slip op. at 9. He explained that patients coming to a residential inpatient drug
and alcohol treatment facility do not require primary medical care as offered by a hospital, but a
step-down level of care involving medical oversight and counseling. Id. at 8-9.
13
alcohol rehabilitation center or mental health center on the Property and without
conditional use approval from the Township. R.R. at 324a-25a. Despite the
Property’s illicit operation as a residential treatment facility, Water Gap did not
maintain appropriate security or surveillance measures to keep patients on the
Property that would be in place if it were a licensed treatment facility.
Upon review, Objectors met their burden of proving that Water Gap’s
proposed use would adversely affect their neighborhood more than would otherwise
be expected under normal circumstances from this type of use. Objectors’ evidence
was not based on “bald assertions” or speculations regarding potential harm or what
could happen, but rather was based on firsthand “experiences with this specific
facility during its illegal and unlicensed activity” and actual encounters with Water
Gap’s patients in their community that caused them to be fearful. Visionquest, 569
A.2d at 918. As in Visionquest, such evidence constitutes relevant and probative
evidence regarding the detrimental effect that the proposed use would have and has
had on their community. See id. Furthermore, Water Gap’s mismanagement and
deceitfulness regarding its illegal operation of an unlicensed and unapproved
treatment facility contributed to the problems and undermined the Board’s faith that
Water Gap would safely operate the proposed use in accordance with legal
requirements and any conditions that the Board might impose. We, therefore,
conclude that the Board did not err or commit an abuse of discretion in denying
Water Gap’s Application.
Accordingly, we affirm the trial court’s order.
MICHAEL H. WOJCIK, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Water Gap Capital Partners, LLC, :
:
Appellant :
:
v. : No. 1304 C.D. 2021
:
Smithfield Township Board of :
Supervisors, 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 :
ORDER
AND NOW, this 19th day of May, 2023, the order of the Court of
Common Pleas of Monroe County, dated October 15, 2021, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge