          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clinton Township                                :
                                                :
               v.                               :   No. 920 C.D. 2018
                                                :   Argued: April 9, 2019
The Zoning Hearing Board of                     :
Clinton Township and Teen                       :
Challenge Training Center, Inc.                 :
                                                :
Appeal of: Teen Challenge                       :
Training Center, Inc.                           :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                                FILED: June 4, 2019

               In this zoning appeal, Teen Challenge Training Center, Inc.
(Applicant) asks whether the Court of Common Pleas of the 44th Judicial District,
Wyoming County Branch,1 (trial court) erred in denying its special exception
application for its proposed drug and alcohol rehabilitation program. Discerning
no error, we affirm.


                                        I. Background
               Applicant owns the property located at 70 Savage Road, Factoryville,
Clinton Township (Township), Wyoming County (property).                    The property is
comprised of approximately 36.9 acres, and it lies in a rural agricultural (RA)
zoning district. Applicant purchased the property in 2001.

      1
          The Honorable Russell D. Shurtleff, President Judge, presided.
             Applicant is a non-profit corporation, seeking to provide low-cost,
faith-based, live-in drug and alcohol rehabilitation and treatment services. From
2001 through 2010, Applicant operated a faith-based rehabilitation program for
young adults on the property. Thereafter, it discontinued that program, and it
leased the property to Keystone College for student housing.


             In 2016, Applicant contacted the Township Zoning Officer, indicating
that it was “interested in obtaining approval to restart a rehabilitation program at
the property that would service adults.” Tr. Ct., Slip Op., 8/15/18, at 4. The
Township Zoning Officer “represented that the proposed use of the property as a
drug and alcohol treatment center would be prohibited in the [RA district].” Id.


             As a result, Applicant filed an application with the Township Zoning
Hearing Board (ZHB) for a special exception to use the property as a drug and
alcohol treatment center pursuant to Section 404.2 of the Clinton Township-
Nicholson Borough Zoning Ordinance (zoning ordinance). That Section, titled,
“Uses Not Specified in Schedule of Uses,” states, as relevant: “Whenever a use is
neither specifically permitted nor specifically denied in any zoning district ... the
application shall be submitted to the [ZHB] which shall have the authority to
permit the use or deny the use as a special exception.” Section 404.2(A) of the
zoning ordinance. Thus, Section 404.2 is a type of “catch-all” provision that
allows for uses not otherwise addressed in the zoning ordinance, thereby reducing
the risk of exclusion of a use by failure to expressly provide for it. Id.




                                           2
              In its application, Applicant described the proposed use of the
property as

              a semi-long[-]term faith-based drug and alcohol
              rehabilitation program which will connect its occupants
              to the rural setting/nature surrounding the property and
              conduct an adapted version of the twelve-step program
              complimented by Bible study and community service.
              The dwelling unit will provide [a] housing facility for
              adult persons who need care, treatment and/or counseling
              for stays in most cases of less than one year.

Tr. Ct., Slip Op., at 4. Applicant further stated:

              The current zoning ordinance does not specifically permit
              nor does it specifically deny a treatment center in any of
              its zoning districts. Pursuant to [the] zoning ordinance at
              Section 404.2 … whenever a use is neither specifically
              permitted nor specifically denied in any zoning district,
              the matter is heard by the [ZHB]. The [ZHB] should
              approve the requested use as [a] treatment center
              because: 1. the use is similar to and compatible with the
              uses listed for the RA zoning district listed in the
              schedule of use regulations[;] 2. the use in no way
              conflicts with the intent of the [z]oning [d]istrict and
              general lawful purpose(s) and intent of the [z]oning
              [o]rdinance[;] and 3. the use as a treatment center is not
              permitted in any other zoning district.

Reproduced Record (R.R.) at 272a.


              The ZHB held a hearing on Applicant’s special exception application.
At the hearing, the Township stated that the zoning ordinance did, in fact, contain a
specific use category that encompassed Applicant’s proposed treatment center. In
particular, the Township relied on a 2011 amendment to the zoning ordinance,
which amended the definition of the “Health Facilities” use classification. R.R. at
226a. According to the Township, the original 2006 zoning ordinance contained a

                                           3
definition for a “Treatment Center/Clinic” use classification, which was separate
and distinct from the definition of “Health Facilities.” R.R. at 30a, 42a. More
particularly, Section 303 of the 2006 zoning ordinance previously defined a
“Treatment Center/Clinic” as:

               Treatment Center/Clinic: A use (other than a detention
               facility or a permitted accessory use in a hospital)
               providing housing facilities for persons who need
               specialized housing, treatment and/or counseling for
               stays in most cases of less than one (1) year and who
               need such facilities because of:

               A. Chronic abuse of or addiction to alcohol and/or a
               controlled substance, or

               B. A type of mental illness or other behavior that could
               cause a person to be a threat to the physical safety of
               others.

R.R. at 42a.


               In addition, Section 303 of the 2006 zoning ordinance defined “Health
Facilities” as:

               Establishments primarily engaged in providing services
               for human health maintenance including abused person
               shelters, hospital facilities, nursing homes and adult care
               facilities, and personal care homes or centers, whether
               publicly or privately operated, but excluding treatment
               centers/clinics.

R.R. at 30a.


               A 2011 amendment to Section 303 of the zoning ordinance eliminated
the separate definition of a “Treatment Center/Clinic.” R.R. at 226a. Additionally,


                                           4
it redefined “Health Facilities” as: “Establishments primarily engaged in providing
services for human health maintenance including abused person shelters, hospital
facilities, nursing homes and adult care facilities, and personal care homes or
centers, whether publicly or privately operated.” Id. Thus, the 2011 amendment
specifically deleted the prior exclusion of treatment centers/clinics from the
defined “Health Facilities” use classification. Id.


               At the conclusion of the hearing, the ZHB voted to deny the special
exception application.         The ZHB subsequently prepared a written decision.
Although the ZHB’s written decision was served on the objectors, it was not
served on Applicant. As a result, Applicant filed a complaint in mandamus with
the trial court alleging a deemed approval of its special exception application
pursuant to Section 908(9) of the Pennsylvania Municipalities Planning Code
(MPC).2      After filing its complaint with the trial court, Applicant’s counsel
received a document titled “Decision on Application for Special Exception Teen
Challenge Training Center, Inc.” by email. Tr. Ct., Slip Op., at 6-7.


               In response to the ZHB’s deemed approval, the Township filed a land
use appeal to the trial court, seeking reversal of the deemed approval. The parties
agreed that the trial court would conduct de novo review of Applicant’s special
exception application, and the trial court entered an order to that effect. R.R. at 5a.
The trial court also permitted the parties to supplement the record created before
the ZHB.


      2
          Act of July 31, 1968 P.L. 805, as amended, 53 P.S. §10908(9).



                                               5
             Thereafter, the trial court issued an opinion and order in which it
granted the Township’s land use appeal and denied Applicant’s special exception
application. In its opinion, the trial court explained that the crux of this case
involved the scope of the definition of the term “Health Facilities.” Tr. Ct., Slip
Op., at 7. In resolving that issue, the trial court reviewed case law from this Court
regarding the handling of treatment facilities under various zoning ordinances, see
THW Group, LLC v. Zoning Board of Adjustment, 86 A.3d 330 (Pa. Cmwlth.
2014); Freedom Healthcare Services, Inc. v. Zoning Hearing Board of City of New
Castle, 983 A.2d 1286 (Pa. Cmwlth. 2009); and Diversified Health Associates, Inc.
v. Zoning Hearing Board of Borough of Norristown, 781 A.2d 244 (Pa. Cmwlth.
2001), as well as case law regarding the principles used in interpreting zoning
ordinances. See Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd., 164
A.3d 633 (Pa. Cmwlth. 2017), appeal granted, 180 A.3d 367 (Pa. 2018).


             Ultimately, the trial court held that Applicant’s proposed drug and
alcohol treatment facility fell within the zoning ordinance’s definition of “Health
Facilities,” a use permitted in certain zoning districts in the Township, but not in
the RA district in which the property lies. Tr. Ct., Slip Op., at 10. Thus, the trial
court denied Applicant’s application for a special exception under Section
404.2(A) of the zoning ordinance, which permits the ZHB to grant or deny a
special exception application where the use at issue is “neither specifically
permitted nor specifically denied in any zoning district[.]” Id. (emphasis added).


             Applicant appealed to this Court, and the trial court directed it to file a
concise statement of the errors complained of on appeal pursuant to Pa. R.A.P.



                                           6
1925(b), which it did. The trial court then issued a brief opinion pursuant to Pa.
R.A.P. 1925(a), in which it explained that the basis for its decision was set forth in
its prior opinion.

                                           II. Issue
               On appeal,3 Applicant argues that it may apply for a special exception
as a “Treatment Center/Clinic” pursuant to Section 404.2 of the zoning ordinance
because a “Treatment Center/Clinic” is not included in the definition of “Health
Facilities” and is a land use that is neither specifically permitted nor specifically
denied in any zoning district. Appellant’s Br. at 2.


                                       III. Discussion
                                       A. Contentions
               Applicant argues the trial court erred in failing to apply the principles
of statutory construction and the rule set forth in Velocity Express v. Pennsylvania
Human Relations Commission, 853 A.2d 1182 (Pa. Cmwlth. 2004), in interpreting
the definition of “Health Facilities” in Section 303 of the zoning ordinance.
Applicant asserts the zoning ordinance defines “Health Facilities” as:
“Establishments primarily engaged in providing services for human health
maintenance including abused person shelters, hospital facilities, nursing homes
and adult care facilities, and personal care homes or centers, whether publicly or
privately operated.” R.R. at 226a. Applicant points out that each enumerated



       3
          When a trial court takes additional evidence on the merits, this Court reviews the trial
court’s findings of fact and conclusions of law for abuse of discretion or errors of law. Newtown
Square East, L.P. v. Twp. of Newtown, 38 A.3d 1008 (Pa. Cmwlth. 2011), aff’d, 101 A.3d 37
(Pa. 2014).



                                                7
example in this definition is separately defined in Section 303 of the zoning
ordinance.


             Because the definition of “Health Facilities” contains the word
“including,” Applicant asserts, the zoning ordinance is ambiguous as a matter of
law. Appellant’s Br. at 5 (citing Velocity Express). Applicant contends this Court
may consider that the definition could include additional land uses not expressly
enumerated in the definition; however, those additional land uses not expressly
enumerated would need to be of the same class or type as those expressly
enumerated. Because a “Treatment Center/Clinic” is not of the same type or class
as those land uses expressly enumerated, Applicant argues, it cannot be included in
the definition of “Health Facilities.” Appellant’s Br. at 5-6. Applicant asserts that,
if a “Treatment Center/Clinic” is not included in the definition of “Health
Facilities,” it is a use that is not specified in the schedule of uses in the zoning
ordinance. Appellant’s Br. at 6. As a result, Applicant contends, it was permitted
to apply for a special exception for a “Treatment Center/Clinic” under Section
404.2 of the zoning ordinance. Id.


             Applicant maintains its proffered interpretation of the definition of
“Health Facilities” is consistent with the principles of statutory construction and
the interpretation of zoning ordinances, including showing deference to the word
choices and definitions of the legislative body, Sterling v. City of Philadelphia, 106
A.2d 793 (Pa. 1954); Westbrook v. Robbins, 611 A.2d 749 (Pa. Super. 1992),
applying the principle that any ambiguity in a zoning ordinance should be
construed in favor of the landowner, Riverfront Development Group, LLC v. City



                                          8
of Harrisburg Zoning Hearing Board, 109 A.3d 358 (Pa. Cmwlth. 2015),
interpreting the zoning ordinance consistently and as a whole, Mt. Laurel Racing
Association v. Zoning Hearing Board, Municipality of Monroeville, 458 A.2d
1043 (Pa. Cmwlth. 1983), and giving meaning to all of its parts, George v. Moore,
147 A.2d 148 (Pa. 1959). Appellant’s Br. at 6.


               Applicant further argues the trial court erred in relying on THW
Group, Freedom Healthcare, and Diversified Health, and holding these cases
controlled the interpretation of the zoning ordinance here. It asserts the trial court
erred in failing to analyze and interpret the language of the zoning ordinance in
accordance with statutory construction principles. Applicant contends the zoning
ordinance here is distinguishable from the ordinances in THW Group, Freedom
Healthcare, and Diversified Health.               Further, it argues Freedom Healthcare
involved an interpretation of the term “medical clinic,” and it contends, ironically,
the zoning ordinance here permits a “medical clinic” in the RA district, so that if
Applicant’s proposed treatment center is classified as a “medical clinic” it may be
permitted by right. Appellant’s Br. at 7.4


               Applicant maintains that the expressly enumerated uses in the zoning
ordinance’s definition of “Health Facilities” can be grouped into four
classifications: (1) abused persons shelters; (2) hospitals; (3) nursing homes/adult
care facilities (as the relevant zoning ordinance definitions for these two uses are
identical); and (4) personal care homes or centers.                    Appellant’s Br. at 13.
       4
          Applicant notes that, although a “medical clinic” is a permitted use in the RA district, it
is considered a conditional use if it is located within 300 feet of any neighboring parcel with an
existing residential dwelling. Appellant’s Br. at 7 n.2.



                                                 9
Applicant sets forth the zoning ordinance’s definitions of each of these uses, and it
asserts, based on a review of these definitions, it is apparent that all of these uses
are similar to one another.


             Applying the holding of Velocity Express, Applicant maintains, if the
additional “Treatment Center/Clinic” use is to be included in the definition of
“establishments primarily engaged in providing services for human health
maintenance” along with the other expressly enumerated uses, a “Treatment
Center/Clinic” must be of the same class or type as any one of the other uses that
are expressly enumerated. Appellant’s Br. at 15. Thus, Applicant argues, it is
necessary to consider the definition of “Treatment Center/Clinic.” Id. It asserts
the term “Treatment Center/Clinic” is not currently defined in the zoning
ordinance because the definition was deleted by the 2011 amendment.                Id.
However, Applicant contends, because the local governing body previously
defined “Treatment Center/Clinic,” it understood the meaning of that term. Id.
Thus, Applicant argues the “best evidence” of the local governing body’s intent in
classifying a “Treatment Center/Clinic” is found in its own definition prior to
deletion in 2011. Id.


             Based on that prior definition, Applicant asserts, a “Treatment
Center/Clinic” can be classified as temporary residential uses for persons of all
ages receiving treatment for an addiction to a substance, for a mental illness, or
other behavior.     R.R. at 42a.      It argues that, comparing the “Treatment
Center/Clinic” definition with the definitions of the other uses enumerated in the
“Health Facilities” definition, reveals a “Treatment Center/Clinic” is not of the



                                         10
same class of uses as those enumerated. Appellant’s Br. at 16-17. Therefore,
Applicant contends a “Treatment Center/Clinic” does not fall within the definition
of “Health Facilities” under the zoning ordinance. Appellant’s Br. at 17.


               In seeking to classify a “Treatment Center/Clinic” as a “Health
Facility,” Applicant maintains, the trial court appeared to afford weight to the
testimony of Applicant’s representative that Applicant is involved in the practice of
“human health maintenance.” Appellant’s Br. at 18. Applicant asserts there are
many uses listed in the zoning ordinance that could arguably be classified as uses
that include establishments primarily engaged in the provision of services for
human health maintenance if the common dictionary definitions of those terms are
used.   It contends these uses are: “Adult Day Care,” “Child Day Care,” “Group
Home,” “Therapeutic Massage Facility,” “Medical Clinic,” and “Recreational
Facilities.”   Id.   Applicant maintains that if a representative of any of these
establishments was asked if his organization’s use was “an establishment primarily
engaged in providing services for human health maintenance” he would likely
respond in the affirmative, as did Reverend Joel Jakubowski, who testified on
behalf of Applicant here. Id.


               Applicant argues the “Medical Clinic” use category is an instructive
example because a “Medical Clinic” is obviously “an establishment primarily
engaged in providing services for human health maintenance.” Id. However,
Applicant asserts, “Medical Clinics” are not included in the definition of “Health
Facilities,” and they are treated differently than “Health Facilities” under the
zoning ordinance.      Appellant’s Br. at 18-19.   Thus, Applicant contends, it is



                                         11
apparent that the local governing body chose to specifically define “Health
Facilities” in the manner it did. Appellant’s Br. at 19.


              Applicant maintains that this Court must assume that the local
governing body did not intend to classify every “establishment primarily engaged
in providing services for human health maintenance” as a “Health Facilit[y].” Id.
It argues that if the local governing body chose not to define “Health Facilities” as
including an “Adult Day Care,” a “Child Day Care,” a “Group Home,” a
“Therapeutic Massage Facility,” “Recreational Facilities,” or even a “Medical
Clinic,” the local governing body understood and intended a very particularized
group of uses to embody the definition of “Health Facilities.” Id. It argues the
local governing body did not intend “Health Facilities” to be an all-encompassing
definition for the majority of establishments primarily engaged in human health
maintenance. Id. Otherwise, Applicant asserts, many additional uses, of which the
local governing body was aware and specifically defined in the zoning ordinance,
would have been included in the definition.


              For these reasons, Applicant contends, a “Treatment Center/Clinic”
cannot be included in the definition of “Health Facilities.” Id. It maintains Section
404.2 of the zoning ordinance is implicated because a “Treatment Center/Clinic” is
a use not specified in the schedule of uses. Id. As such, Applicant argues, the trial
court erred when it denied Applicant’s special exception on the basis that its
“Treatment Center/Clinic” was included within the definition of “Health
Facilities.” Id. at 20.




                                          12
                                    B. Analysis
              The issue raised by Applicant is whether the trial court erred in
determining that Applicant’s proposed “semi-long[-]term faith[-]based drug and
alcohol rehabilitation program” falls within the zoning ordinance’s definition of
“Health Facilities,” and, therefore, is not permitted in the RA district in which the
property lies. R.R. at 271a.


              This issue poses a question of statutory construction, to which our
review is plenary. Malt Beverages Distribs. Ass’n v. Pa. Liquor Control Bd., 918
A.2d 171 (Pa. Cmwlth. 2007) (en banc), aff’d, 974 A.2d 1144 (Pa. 2009). Like
statutes, the primary objective in interpreting ordinances is to determine the intent
of the legislative body that enacted the ordinance. See 1 Pa. C.S. §1921; Bailey v.
Zoning Bd. of Adjustment of City of Phila., 801 A.2d 492 (Pa. 2002); Malt
Beverages Distribs. In pursuing that end, we are mindful that an ordinance’s plain
language generally provides the best indication of legislative intent.          Malt
Beverages Distribs. Thus, ordinance construction begins with examination of the
text itself. Id.


              In reading the plain language of an ordinance, “[w]ords and phrases
shall be construed according to rules of grammar and according to their common
and approved usage.” 1 Pa. C.S. §1903(a). Further, every ordinance shall be
construed, if possible, to give effect to all its provisions so that no provision is
“mere surplusage.” 1 Pa. C.S. §1921(a). Where the words of an ordinance are free
from all ambiguity, the letter of the ordinance may not be disregarded under the
pretext of pursuing its spirit. 1 Pa. C.S. §1921; see also 1 Pa. C.S. §1903.



                                         13
             Thus, if we determine the ordinance is unambiguous, we must apply it
directly as written. Bowman v. Sunoco, Inc., 65 A.3d 901 (Pa. 2013); see 1 Pa.
C.S. §1921(b). However, if we deem the language of the ordinance ambiguous, we
must then ascertain the legislative body’s intent by statutory analysis, wherein we
may consider numerous relevant factors. Id. An ambiguity exists when language
is subject to two or more reasonable interpretations and not merely because two
conflicting interpretations are suggested. Adams Outdoor Adver., L.P. v. Zoning
Hearing Bd. of Smithfield Twp., 909 A.2d 469 (Pa. Cmwlth. 2006).


             In addition, where a court needs to define an undefined term, it may
consult dictionary definitions for guidance, although such definitions are not
controlling. Id.


             Here, in determining that Applicant’s proposed use falls within the
defined “Health Facilities” use classification in the zoning ordinance, the trial court
explained (with emphasis added):

                     During the hearing on [Applicant’s] [s]pecial
             [e]xception [application], Reverend Joel Jakubowski
             testified on behalf of [Applicant] that the nature of the
             proposed facilities was ‘a long-term residential, faith-
             based drug and alcohol treatment program that
             incorporates … continual care that includes counseling,
             classroom settings, psycho education [sic], work therapy,
             relationship     building,    [and]    family    dynamic
             reconstruction.’ [ZHB Hearing, Notes of Testimony
             (N.T.), 6/27/17, at 4]. [Applicant] currently has four
             facilities in [Pennsylvania] that are licensed as …
             ‘residential    [d]rug     and    [a]lcohol   [t]reatment
             [c]enter[s][.]’ [N.T. at 18]. The facility at issue, if
             approved, would likely also be licensed … as a
             [r]esidential [d]rug and [a]lcohol [t]reatment [c]enter.


                                          14
             [Id.] A fee is charged for services provided at the
             proposed facility. [N.T. at 23]. Medicare is accepted as
             payment and is generally approved. [N.T. at 23-24].
             [Applicant] accepts private insurance. [N.T. at 25].
             Patients must meet the Pennsylvania Client Placement
             Criteria to be admitted. [N.T. at 26]. Reverend
             Jakubowski stated that the program concerns human
             health maintenance and his description of the proposed
             facility fit squarely within the [z]oning [o]rdinance[’]s
             definition of a ‘Health Facility[.]’ [N.T. at 27].

                   In the instant case, the legislative body of the
             municipality, the [Township] Supervisors, possess[es] the
             authority to propagate legislative acts and … zoning
             ordinances are just that – legislative acts. Here, the
             [Township] Supervisors enacted an amendment to the
             zoning ordinance in 2011 when [they] eliminated
             language from the term [‘Health Facilities,’] which
             previously excluded treatment centers. It is clear from
             the definition contained in the [z]oning [o]rdinance at
             issue and the case law set forth above that the term
             ‘Health Facilities’ includes treatment facilities such as
             the one set forth in [Applicant’s] [a]pplication for
             [s]pecial [e]xception. And while this type of use [is
             permitted] in the Township, it [is not permitted] in the
             [RA district] where [the] property [lies]. As such, …
             [Applicant’s] application [for] [s]pecial [e]xception under
             Section 404.2 of the [z]oning [o]rdinance is denied.

Tr. Ct., Slip Op., 9-10. No error is apparent in the trial court’s interpretation of the
zoning ordinance.


             To that end, the plain language of Section 303 of the zoning ordinance
defines “Health Facilities” as: “Establishments primarily engaged in providing
services for human health maintenance including abused person shelters, hospital
facilities, nursing homes and adult care facilities, and personal care homes or
centers, whether publicly or privately operated.” R.R. at 226a (emphasis added).


                                          15
             While the zoning ordinance does not define the terms “health” or
“maintenance,” the dictionary defines “health” as “the condition of being sound in
body, mind, or spirit; esp : freedom from physical disease or pain,” and
“maintenance” as “the act of maintaining : the state of being maintained :
support[.]” MERRIAM–WEBSTER’S COLLEGIATE DICTIONARY 534, 700 (10th ed.
2001), respectively. In light of the trial court’s supported determinations, which
are based on the testimony of Applicant’s witness, Reverend Joel Jakubowski, R.R.
at 277a-78a, 291a, 296a-300a, it is clear that Applicant’s proposed residential drug
and alcohol treatment facility is an establishment “primarily engaged in providing
services for human health maintenance.” R.R. at 226a.


             Nevertheless, Applicant argues the use of the term “including”
preceding the list of enumerated examples of “Health Facilities” renders the
definition ambiguous. Contrary to Applicant’s assertions, the zoning ordinance’s
definition of “Health Facilities” is not ambiguous. Rather, prior to setting forth the
enumerated examples, the zoning ordinance defines “Health Facilities” as
“[e]stablishments primarily engaged in providing services for human health
maintenance ….” R.R. at 226a. We agree with the trial court that Applicant’s
proposed drug and alcohol treatment facility falls within this unambiguous plain
language. Further, contrary to Applicant’s assertions, as we explained in Tri-
County Landfill, Inc. v. Pine Township Zoning Hearing Board, 83 A.3d 488 (Pa.
Cmwlth. 2014), the fact that an ordinance uses words such as “including but not
limited to” followed by several enumerated examples, which do not include the
specific item at issue, does not “automatically” render the ordinance ambiguous.
Id. at 512 (citing Dechert, LLP v. Commonwealth, 998 A.2d 575, 582 (Pa. 2010)).



                                         16
             Moreover, our Supreme Court explains, “the term ‘include’ is ‘to be
dealt with as a word of ‘enlargement and not limitation’ ….” Dechert, 998 A.2d at
580 (quoting Pa. Human Relations Comm’n v. Alto-Reste Park Cemetery Ass’n,
306 A.2d 881, 885 (Pa. 1973)); see also Readinger v. Workers’ Comp. Appeal Bd.
(Epler Masonry), 855 A.2d 952 (Pa. Cmwlth. 2004); BLACK’S LAW DICTIONARY
777 (8th ed. 2004) (use of term “including” typically indicates a partial list). Thus,
the fact that the definition of “Health Facilities” contains a non-exhaustive list of
examples or types of such facilities, which does not specifically include treatment
centers/clinics, does not render it ambiguous. Tri-County.


             Further, as our Supreme Court explained in Department of
Environmental Protection v. Cumberland Coal Resources, L.P., 102 A.3d 962 (Pa.
Cmwlth. 2014):

             [I]t is widely accepted that general expressions such as
             ‘including,’ or ‘including but not limited to,’ that precede
             a specific list of included items are to be considered as
             words of enlargement and not limitation. Indeed, such a
             list of specific items is not meant to be exclusive of all
             items other than those specifically named. Yet, these
             terms also should not be construed in their widest
             context. Under our venerable statutory construction
             doctrine of ejusdem generis (‘of the same kind or class’),
             where specific terms setting forth enumeration of
             particular classes of persons or things follow general
             terms, the general words will be construed as applicable
             only to persons or things of the same general nature or
             class as those enumerated. In sum, the presence of such a
             term as ‘including’ in a definition exhibits a legislative
             intent that the list that follows is not an exhaustive list of
             items that fall within the definition; yet, any additional
             matters purportedly falling within the definition, but that
             are not express, must be similar to those listed by the
             legislature and of the same general class or nature.


                                          17
Id. at 966 (emphasis added) (citations omitted).


             Here, the following use classifications appear after the term
“including” in the “Health Facilities” definition: “abused person shelters,”
“hospital facilities,” “nursing homes and adult care facilities,” and “personal care
homes or centers.” R.R. at 226a. Section 303 of the zoning ordinance defines
these uses as follows:

             Abused Person Shelter: A non-profit residential use in
             which rooms are provided to serve as a temporary safe
             and supportive environment for persons who, because of
             actual or threatened physical or mental abuse, are forced
             to leave their previous living arrangement.           Such
             facilities shall be designed to provide in-house living for
             persons only until a safe, permanent living arrangement
             can be obtained.

                                      ****

             Adult Care Facility: See nursing home.

                                      ****

             Hospital: An institution providing primary health
             services and medical or surgical care to persons,
             primarily inpatients, 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 or training facilities. Considered a
             health facility for the purposes of this [z]oning
             [o]rdinance.

             Nursing Home: A facility licensed by the State for the
             housing and intermediate or fully-skilled nursing care of
             three (3) or more persons needing such care because of
             old age or a physical illness or disability or a
             developmental disability.


                                         18
               Personal Care Home or Center: A residential use
               providing residential and support services primarily to
               persons who are over age sixty (60), and/or physically
               handicapped and/or the developmentally disabled and
               that is licensed as a Personal Care Center by the
               Commonwealth of Pennsylvania. Considered a nursing
               home for the purposes of this [z]oning [o]rdinance.


R.R. at 19a-20a, 226a.


               Our review of these use classifications reveals that four of the five of
the specifically enumerated “Health Facilities” include a residential component,
and all five enumerated examples contemplate some form of assistance or
treatment to individuals in need. Similar to those enumerated uses, Applicant’s
proposed drug and alcohol treatment facility contains a residential component as
well as various forms of assistance or treatment, including “counseling, classroom
settings, psycho education [sic], work therapy, relationship building, [and] family
dynamic reconstruction[.]” R.R. at 277a-78a. As such, even if we apply the
doctrine of ejusdem generis, we conclude Applicant’s proposed use is similar to
those uses listed by the local governing body and of the same general class or
nature as those enumerated uses. Such an interpretation is not tantamount to
categorizing the “Health Facilities” definition as “all encompassing” or a “catch-
all” use classification as Applicant suggests. Appellant’s Br. at 19.5

       5
         To that end, Applicant asserts there are many uses in the zoning ordinance that could
arguably be classified as establishments primarily engaged in the provision of services for human
health maintenance if the common dictionary definitions of the terms human health maintenance
are employed. It contends these uses are: “Adult Day Care,” “Child Day Care,” “Group Home,”
“Therapeutic Massage Facility,” “Medical Clinic,” and “Recreational Facilities.” Appellant’s
Br. at 18. Contrary to Applicant’s assertions, the zoning ordinance separately and specifically
defines each of these use classifications and provides for specific zoning districts in which each
(Footnote continued on next page…)

                                               19
             Additional support for our conclusion that a treatment center or clinic
falls within the “Health Facilities” use category is found in the fact that Section
303 of the prior (2006) version of the zoning ordinance defined “Health Facilities”
as: “Establishments primarily engaged in providing services for human health
maintenance including abused person shelters, hospital facilities, nursing homes
and adult care facilities, and personal care homes or centers, whether publicly or
privately operated, but excluding treatment centers/clinics.” R.R. at 30a (Emphasis
added.) The 2011 amendment to the zoning ordinance specifically deleted the
exclusion of “treatment centers/clinics” from the definition of “Health Facilities”
as well as the prior definition of “Treatment Centers/Clinics.” R.R. at 226a. Thus,
to the extent it is necessary to discern legislative intent, the local governing body’s
specific deletion of the exclusion of treatment centers/clinics from the definition of
“Health Facilities” indicates the local governing body did not intend to exclude
such uses from that definition under the current zoning ordinance. See 1 Pa. C.S.
§1921(c)(5) (“When the words of the statute are not explicit, the intention of the
[legislative body] may be ascertained by considering, among other matters ….
[t]he former law, if any, including other statutes upon the same or similar
subjects.”) (Emphasis added.)




(continued…)

of these uses are permitted. Unlike the uses referenced by Applicant, the zoning ordinance
contains no definition of a “Treatment Center/Clinic” and, as set forth below, the 2011
amendment to the zoning ordinance specifically deleted the exclusion of a “Treatment
Center/Clinic” from the definition of “Health Facilities.” Reproduced Record at 226a.



                                           20
               Moreover, Velocity Express, relied on by Applicant, does not compel
a different result. There, we considered whether an individual was entitled to any
protection or remedy under the Pennsylvania Human Relations Act 6 (PHRA) as an
independent contractor. The PHRA contains a specific definition of the term
“independent contractor,” which is limited to independent contractors who are in
professions or occupations regulated by the Bureau of Professional and
Occupational Affairs or those who are included in the Fair Housing Act, 42 U.S.C.
§§3601-3631. Id. at 1185. We determined that the use of the term “includes” in
the PHRA’s definition of the term “independent contractor” was ambiguous
because it could be interpreted as a word of enlargement or limitation. Id. Thus,
we examined the General Assembly’s intent in enacting the PHRA to determine
whether the term “includes” was intended as a word of enlargement or limitation.
Id. at 1185-86. Relying on the doctrine of ejusdem generis, we explained that the
term “includes” in the definition at issue preceded a specific list, i.e., independent
contractors who are in professions or occupations regulated by the Bureau of
Professional and Occupational Affairs or those who are included in the Fair
Housing Act. Id. at 1186. Because the occupation of the individual at issue fell
outside both of these classifications, we held the individual was not an
“independent contractor” under the PHRA. Id. We further explained that our
interpretation was consistent with guidance on the Pennsylvania Human Relations
Commission’s website as well as the General Assembly’s use of the term
“includes” throughout the PHRA. Id. at 1186-87.




      6
          Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§951-963.



                                              21
             We reject Applicant’s reliance on Velocity Express for several
reasons. First, unlike Velocity Express, the case presently before us does not
involve an interpretation of the PHRA. Thus, our analysis in that case is not
instructive here. Further, unlike the more restrictive “independent contractor”
definition at issue there, the “Health Facilities” definition at issue here is broad and
unambiguous. R.R. at 226a. Additionally, as explained above, even if we apply
the doctrine of ejusdem generis here, as we did in Velocity Express, Applicant’s
proposed residential drug and alcohol treatment facility falls within the “Health
Facilities” definition because Applicant’s proposed use is similar to the uses listed
and of the same general class or nature as those enumerated uses. R.R. at 226a.


             In addition, Applicant appears to suggest that its proposed treatment
center may be classified as a “Medical Clinic,” which is permitted by right in the
RA district, if the proposed use is not located within 300 feet of any neighboring
parcel with an existing residential dwelling (otherwise conditional use approval is
required). R.R. at 48a. Aside from the fact that Applicant did not seek relief on
this basis in its application to the ZHB, R.R. at 270a-73a, and the fact that
Applicant offers no explanation as to whether conditional use approval would be
required here, contrary to Applicant’s assertions, the zoning ordinance defines a
“Medical Clinic” as: “An establishment where patients are admitted for
examination and treatment by one or more physicians, dentists, psychologists or
social workers and where patients are not usually overnight.” R.R. at 34a. Here,
Applicant’s witness testified that Applicant’s program is “traditionally a long-term
residential … treatment program” and individuals can remain at Applicant’s
proposed treatment facility for “up to six months.” R.R. at 277a, 282a (emphasis



                                          22
added). Thus, Applicant’s proposed use does not fall within the “Medical Clinic”
use classification, which does not contemplate usual overnight stays by patients.
R.R. at 34a.


               Finally, Applicant relies on the rule of construction that, in
interpreting the language of zoning ordinances to determine the extent of the
restriction on the use of property, the language shall be interpreted, where doubt
exists as to the intended meaning of the language, in favor of the landowner.
Section 603.1 of the MPC.7 However, “[w]hile it is undeniable that we are to
interpret ambiguous language in an ordinance in favor of the property owner and
against any implied extension of the restriction, such a restrictive reading of an
ordinance is unwarranted where ‘the words of the zoning ordinance are clear and
free from any ambiguity.’” City of Hope v. Sadsbury Twp. Zoning Hearing Bd.,
890 A.2d 1137, 1143 (Pa. Cmwlth. 2006) (quoting Isaacs v. Wilkes-Barre City
Zoning Hearing Bd., 612 A.2d 559, 561 (Pa. Cmwlth. 1992)) (emphasis added).
Thus, “[w]hile it is true that zoning ordinances are to be liberally construed to
allow the broadest possible use of land, it is also true that zoning ordinances are to
be construed in accordance with the plain and ordinary meaning of their words.”
Tri-County, 83 A.3d at 510 (quoting Zappala Grp., Inc. v. Zoning Hearing Bd. of
Town of McCandless, 810 A.2d 708, 710 (Pa. Cmwlth. 2002)). As explained
above, we reject Applicant’s arguments that the language of the “Health Facilities”
definition is ambiguous; therefore, this rule of construction does not apply here.
Id.

      7
         Section 603.1 of the MPC was added by the Act of December 21, 1988, P.L. 1329, 53
P.S. §10603.1.



                                           23
                                  IV. Conclusion
            While the proposed use is commendable, we discern no error in the
trial court’s determination that Applicant’s proposed drug and alcohol treatment
center falls within the plain meaning of the zoning ordinance’s definition of
“Health Facilities,” see Section 303 of the zoning ordinance, which are permitted
by conditional use in the commercial-industrial districts in the Township and by
special exception in the business districts in Nicholson Borough. R.R. at 49a, 54a.
As such, the trial court properly determined that Applicant is not entitled to a
special exception under Section 404.2(A) of the zoning ordinance (“Whenever a
use is neither specifically permitted nor specifically denied in any zoning district
established under this [o]rdinance and an application is made to the [z]oning
[o]fficer for such use, the application shall be submitted to the [ZHB] which shall
have the authority to permit the use or deny the use as a special exception.”)
(Emphasis added). Accordingly, we affirm the trial court’s order.




                                      ROBERT SIMPSON, Judge




                                        24
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clinton Township                    :
                                    :
            v.                      :   No. 920 C.D. 2018
                                    :
The Zoning Hearing Board of         :
Clinton Township and Teen           :
Challenge Training Center, Inc.     :
                                    :
Appeal of: Teen Challenge           :
Training Center, Inc.               :


                                  ORDER

            AND NOW, this 4th day of June, 2019, the order of the Court of
Common Pleas of the 44th Judicial District, Wyoming County Branch, is
AFFIRMED.




                                   ROBERT SIMPSON, Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Clinton Township                         :
                                         :   No. 920 C.D. 2018
            v.                           :
                                         :   Argued: April 9, 2019
The Zoning Hearing Board of              :
Clinton Township and Teen                :
Challenge Training Center, Inc.          :
                                         :
Appeal of: Teen Challenge                :
Training Center, Inc.                    :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE McCULLOUGH                                        FILED: June 4, 2019


            I must respectfully dissent from the well-reasoned Majority opinion
because I do not agree that the use proposed by Teen Challenge Training Center,
Inc. (Applicant), set forth in its application for a special exception, falls within
Clinton   Township-Nicholson      Borough     (Township)’s     Zoning    Ordinance
(Ordinance) definition of “Health Facilities.”      In 2011, section 303 of the
Ordinance was amended to specifically remove any reference to treatment
centers/clinics from the definition of “Health Facilities.” Where section 303 of the
2006 Ordinance separately set forth a definition of “Treatment Centers/Clinics,”1
the 2011 amendment eliminated that definition entirely and, significantly, deleted
the phrase “but excluding treatment centers/clinics” from the definition of “Health
Facilities.”2 (R.R. at 226a.)



       1
           As noted in the Majority opinion, the definition of “Treatment Centers/Clinics” was as
follows:

                  Treatment Centers/Clinics: A use (other than a detention facility or
                  a permitted accessory use in a hospital) providing housing facilities
                  for persons who need specialized housing, treatment and/or
                  counseling for stays in most cases of less than one (1) year and
                  who need such facilities because of:
                  A. Chronic abuse of or addiction to alcohol and/or a controlled
                  substance, or
                  B. A type of mental illness or other behavior that could cause a
                  person to be a threat to the physical safety of others.

(Reproduced Record (R.R.) at 42a.)

       2
           The 2006 Ordinance defined “Health Facilities” as,

                  Establishments primarily engaged in providing services for human
                  health maintenance including abused person shelters, hospital
                  facilities, nursing homes and adult care facilities, and personal care
                  homes or centers, whether publicly or privately operated, but
                  excluding treatment centers/clinics.

(R.R. at 30a) (emphasis added). As noted, the definition of “Health Facilities” after the 2011
amendment differed from the 2006 Ordinance only to the extent that it did not contain the phrase
“but excluding treatment centers/clinics”:

                  Establishments primarily engaged in providing services for human
                  health maintenance including abused person shelters, hospital
                  facilities, nursing homes and adult care facilities, and personal care
                  homes or centers, whether publicly or privately operated.

(R.R. at 226a.)


                                                PAM-2
             Therefore,   Applicant    is   correct   that   the   term   “Treatment
Center/Clinic” is presently neither permitted nor excluded from the definition of
“Health Facilities.”   Because Applicant’s proposed use does not qualify as a
“Health Facility,” and because it is not provided for elsewhere within the
Ordinance, it is a use “neither specifically permitted nor specifically denied in any
zoning district.” (Trial court op. at 4.) Hence, Applicant correctly proceeded
under section 404.2 of the Ordinance, a “catch-all” provision entitled, “Uses Not
Specified in Schedule of Uses,” which allows a party to submit an application for a
use not otherwise specified in the Ordinance to the Zoning Hearing Board for
approval. Id.
             Despite the explicit deletion of any reference to treatment
centers/clinics from the “Health Facilities” definition, the Majority would hold that
Applicant’s proposed treatment center/clinic nonetheless falls under that definition
and, because health facilities are not permitted in the rural agricultural district
where Applicant’s property sits, its application was correctly denied. However,
such an approach ignores that if the Township wished to include treatment centers
within the definition of “Health Facilities,” it could have done so by changing the
phrase “but excluding treatment centers/clinics” to “and including treatment
centers/clinics” in the 2011 amendment to the Ordinance. Instead, the Township
chose to delete all reference to treatment centers/clinics from the “Health
Facilities” definition thus qualifying them as a use not otherwise specified in the
Ordinance.
             Accordingly, I must respectfully dissent as I would reverse the order
of the Court of Common Pleas of the 44th Judicial District, Wyoming County




                                      PAM-3
Branch and remand for consideration of Applicant’s application for special
exception pursuant to the section 404.2 “catch-all” provision of the Ordinance.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                      PAM-4
