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Neighborhoods: Neighbors say city is allowing new UPMC facility to skirt around zoning codes

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North Point Breezers who opposed a new mental health facility moving into their neighborhood won their zoning appeal in December. But the center is coming anyway.

All that's changed is the reason why -- and now, some in the community say that city officials are interpreting the zoning code far too liberally.

The city is still going to allow UPMC Western Psychiatric Institute & Clinic to house as many as 14 patients at a time, for up to 72 hours each, at a recently renovated building at 333 N. Braddock Ave.

The building is also home to a 24-hour telephone hotline and mobile service provider. But the decision to house patients on-site has been far more controversial.

Last year, a group of neighbors challenged a decision by the city's zoning administrator to allow the structure to be used as a crisis center. They argued that allowing people, who were self-described as being in crisis, to spend the night was unsafe for the patients as well as the surrounding community.

On Sept. 10, residents and members of the North Point Breeze Planning Development Corporation picketed the building, which was then under renovation. The next day, critics protested at a hearing before the city's Zoning Board of Adjustment, which was considering an application to zone the structure -- a former Beer World -- as a "multi-suite residential/office space."

Residents found that zoning hard to swallow. And the board agreed. Kind of.

In its Dec. 19 decision, the board said that the new facility could not be considered a multi-suite residential unit. It also said, however, that while the primary function of the building was to be a "medical/office clinic," letting patients stay overnight could be considered an "accessory use."

The city code allows for properties to have "accessory uses," which provide functions other than the primary function identified in zoning. The accessory use must be "subordinate [in size and purpose, and] ... contribute to the comfort, convenience or necessity of occupants."

In a written opinion, the board determined that "the overnight residential program is a necessary part" of the center's services.

Residents say the board's decision offers an overly broad interpretation of "accessory use."

"The accessory code appears to be like using a 'life line' for the Zoning Board and zoning administrator when all else has failed," says Cheryl Hall, chairwoman of the North Point Breeze Planning and Development Corporation. "It enables them to take a code and accessorize it based on the applicants' desired need to have additional uses."

The city code explicitly defines eight kinds of accessory uses for non-residential facilities. Such uses include things like Dumpsters and guardhouses.

But the code also allows for "[o]ther necessary and customary uses determined by the Zoning Administrator" -- which in this case includes the center's overnight program, according to the board.

Zoning Administrator Susan Tymoczko says the code gives discretion to administrators in order to account for the unaccountable. Since no code could anticipate every situation, she says, "The code allows you to make that decision."

That decision is not necessarily final, however. Attorney Arnold Horovitz, who represents the North Point Breeze Planning and Development Corporation and some individuals, says they are going to appeal the board's decision to the common pleas court, which could take several more months.

The code "does give the administrator discretion, if it's a 'necessary and customary' use," he says. "It'd be our position that it's not necessary, nor is it customary. ... If that's the definition, I don't see how they can permit an accessory use that provides an overnight stay."

Ellie Medved, the vice president of ambulatory and crisis services at Western Psych, could not be reached for comment.

Hall says the residents of North Point Breeze are not done fighting.

"Should we not appeal this decision, a precedent would be set," she says. "If another desired need is defined by [Western Psych's] clinic to expand its service[s] ... the 'accessory' code would probably be used again, again, again and again. It could be limitless and used for inappropriate uses."

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