West Chester says doctor can’t prove harm in drug rehab fight

West Chester Twp. trustees Lee Wong, Mark Welch and George Lang listened for seven months to residents who oppose a drug rehab facility that is now the subject of a federal lawsuit. DENISE CALLAHAN/STAFF
West Chester Twp. trustees Lee Wong, Mark Welch and George Lang listened for seven months to residents who oppose a drug rehab facility that is now the subject of a federal lawsuit. DENISE CALLAHAN/STAFF

West Chester Twp. lawyers fighting a lawsuit about a proposed drug rehab clinic said the doctor who filed the suit does not qualify for a preliminary injunction.

The township offered a federal judge a litany of reasons why a preliminary injunction is inappropriate, chief among them that Dr. Mohamed Aziz is not a disabled person protected by federal law and that he can’t prove irreparable harm has come to him.

Aziz sued the township in federal court in September, claiming the township denied his drug- and alcohol-addicted clients — people who are considered disabled under the federal Americans with Disabilities Act — services when the township placed a temporary moratorium on drug rehab facilities. The township made the move to study the impact the facilities have on communities surrounding them and then launched zoning amendments for those and several other business types.

Law Director Scott Phillips and his associates filed a response to the injunction motion late Monday night. They said Aziz cannot satisfy the four-prong test required with such an “extraordinary” legal remedy.

“Plaintiffs are not likely to succeed on the merits of their claim, because there is nothing unlawful or discriminatory about the action taken by the township. Plaintiffs also will not suffer any irreparable harm without the moratorium …,” the lawyers wrote.

The response also cautioned the judge that granting an injunction would set dangerous precedent.

“As such, awarding preliminary relief to plaintiffs would impose a far greater burden upon the township by undermining its authority to regulate land use and forcing it to disregard the administrative processes of its zoning resolution,” the township lawyers wrote.

“Granting preliminary relief on the eve of the moratorium’s expiration would set a harmful precedent that would incentivize a disregard for administrative remedies, while causing confusion among residents, business owners and developers about the most appropriate means to achieve their land use goals.”

Last month, in an unusual move, Judge Timothy S. Black of the U.S. District Court, Southern District of Ohio placed a notation on the docket that basically tells the township it needs to work out a resolution with Aziz.

Black wrote in part: “The court has advised defendant that it would be wise to work with plaintiffs to find a potential resolution to this matter outside of the litigation process.”

The property at the heart of this dispute is an old nursing home facility on Ohio 42 across from the Pisgah Youth Organization (PYO) ball fields, next to Hickory Dickory Tots daycare, and it fronts a residential neighborhood. Neighbors and members of the PYO came to every trustee meeting for about seven months, mainly pleading with their elected officials to stop Aziz’s plans.

Gene Drozd, treasurer of the PYO, was at every meeting, usually clutching a petition with hundreds and hundreds of signatures on it.

“We again are in a position where a bunch of folks are totally against the location. We understand the need of the community, we understand the doctor probably does very good work, but we are just totally opposed to that location,” Drozd told the trustees in August.

Phillips said the doctor has also misplaced blame in other areas of the lawsuit.

“Any other allegations of discriminatory action in the complaint relate either to citizens addressing the township trustees — whose public comments cannot be imputed to the trustees where a rational basis for the legislative action exists — or relate to a result that has not yet occurred and that plaintiffs have no reasonable basis for assuming — permanent denial of zoning approval under the soon-to-be-effective amendments to the zoning resolution,” the reply brief reads.

The trustees recently passed zoning text amendments that take effect in mid-December that would make institutional care facilities, like drug rehab centers, conditional uses subject to zoning board scrutiny but only in commercial and manufacturing districts. One of the things the Board of Zoning Appeals must consider is "whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance."

Lastly, Phillips agreed the ADA does provide some protections for businesses like Aziz wants to operate but says he is missing a key element.

“In order to pursue relief to address injuries suffered solely by those individuals (e.g., injunctive relief arising from a lack of available treatment), plaintiffs should first be required to demonstrate that such individuals exist, that they will indeed be injured, and that claims are being brought on their behalf,” the reply reads. “Plaintiffs have not done so here.”

Aziz’s attorney Chris Finney said he could not comment on the case.

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