Pubdate: Thu, 16 Jun 2005
Source: Roanoke Times (VA)
Copyright: 2005 Roanoke Times
Contact:  http://www.roanoke.com/
Details: http://www.mapinc.org/media/368
Author: Laurence Hammack

JUDGE DISMISSES 2 CLAIMS AGAINST CLINIC

Opponents of the Roanoke Treatment Center can proceed on just one legal
argument - that the clinic should be subjected to new zoning rules.

A Roanoke judge has thrown out two of three claims made in a lawsuit filed
by residents seeking to shut down a controversial methadone clinic.

Circuit Judge Jonathan Apgar's decision means that opponents of the Roanoke
Treatment Center can proceed on just one legal argument - that the clinic
should be subjected to new zoning rules enacted by the city after issued a
business license for the outpatient operation on
Hershberger Road.

The rest of the opponents' lawsuit, including an argument that providing
treatment to drug addicts in a residential neighborhood amounts to a public
nuisance, was dismissed by Apgar in an opinion to lawyers dated Wednesday.

Meanwhile, the clinic will continue to operate following a quiet opening in
January.

Despite what she called some "down sides" to the ruling, clinic opponent
Judy Ferguson expressed optimism that residents will ultimately prevail.

"I think this is a victory for the Northwest Concerned Citizens," Ferguson
said of the group formed to fight the clinic. "Our work has not been in
vain. This is just the beginning."

As for the public nuisance claim, Apgar noted that concerns raised by the
clinic's neighbors would be the same at any methadone clinic. While the
General Assembly has placed limits on where the drug treatment centers can
operate, the state does not bar them outright.

"If the court were to rule that the clinic constitutes a public nuisance for
the reasons pleaded, all clinics in Virginia would logically fall into the
same category," Apgar wrote in his six-page opinion.

Last year, the General Assembly passed a law that prohibited methadone
clinics from operating within a half-mile of schools or day care centers.
But Apgar ruled the law does not apply to the case at hand.

Although the clinic at 3208 Hershberger Road is within a half-mile of at
least one school, it received a business license from the city before the
state law took effect.

The power to challenge the clinic's compliance with the law creating a "safe
zone" around schools and day care centers lies with state officials that
regulate it, Apgar ruled, and not residents who oppose it.

With those two issues no longer part of the case, the remaining question is
whether the clinic should have sought a special exception from the Board of
Zoning Appeals. An ordinance requiring such a step was passed by the city
council in December 2003 - after the clinic was issued a business license,
but before it began treating patients.

John Walker, a Richmond attorney who represents the clinic, said he may
renew his motion to dismiss the lawsuit's remaining claim after further
proceedings. Abingdon attorney Michael Bragg, who represents the residents,
could not be reached for comment.

Ever since the clinic's plans to open in Northwest Roanoke became public,
residents have complained that it would bring crime, drug dealing and
traffic congestion to their neighborhood.

Some of those concerns were raised in a complaint filed three months ago
with the Department of Mental Health, Mental Retardation and Substance Abuse
Services, the state agency that regulates methadone clinics.

Following a surprise inspection of the clinic on May 5, inspectors found no
evidence to support the allegations, according to a report filed after the
visit.

One concern raised in the complaint, filed by the Northwest Concerned
Citizens, was the number of times police and rescue workers have been called
to the clinic. But most of the calls were the result of false burglar alarms
or people becoming ill, the report stated.

The inspection found no evidence of "violence or other problems that would
necessitate police response since the facility began operations." Roanoke
police have also reported no major problems with the clinic. 
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