NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 18-1239 _____________

CORNERSTONE RESIDENCE, INC., Appellant

v. CITY OF CLAIRTON, Pennsylvania; GEORGE GLAGOLA

On Appeal from the United States District Court for the Western District of Pennsylvania (District Court No. 2-17-cv-00706) District Judge: Honorable Nora B. Fischer

Argued on September 11, 2018

Before: JORDAN, VANASKIE and RENDELL, Circuit Judges (Filed: December 31, 2018)

Donald Driscoll (Argued) Community Justice Project 100 Fifth Avenue, Suite 900 Pittsburgh, PA 15222

Brian V. Gorman Southwestern Pennsylvania Legal Aid Society 10 West Cherry Avenue Washington, PA 15301

Counsel for Appellant John C. Hansberry (Argued) Nathan J. Marketich Fox Rothschild 500 Grant Street BNY Mellon Center, Suite 2500 Pittsburgh, PA 15219

Counsel for Appellee

____________ O P I N I O N

RENDELL, Circuit Judge:

Cornerstone Residence, Inc. is a non-profit corporation established to operate

sober living residences for recovering drug and alcohol addicts. It wanted to establish

one such residence in the City of Clairton, so it executed an agreement of sale to purchase

a house and sought an occupancy permit from the City. Cornerstone argues that the City

considered the residence to be a Treatment Center and denied its application because

such centers were not permitted in that location. Cornerstone challenged this denial,

urging that the City is discriminating against recovering addicts in violation of the Fair

Housing Amendments Act (“FHAA”). In its view, the zoning ordinance (“the

Ordinance”) that the City purportedly relied on to deny its application was both

discriminatory as applied to Cornerstone and discriminatory on its face. The District

Court dismissed both claims.

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 Cornerstone appeals only the facial challenge. It argues that the definition of

Treatment Center in the Ordinance facially discriminates against recovering addicts—a

protected group under the FHAA—by limiting where residences that serve them may be

located. We agree, however, with the City and the District Court that the Ordinance does

not facially discriminate against recovering addicts. Therefore, we will affirm the

District Court’s order.

I

Cornerstone brings only a facial challenge. Thus, Cornerstone’s claim requires us

to determine whether the explicit terms of the Ordinance are discriminatory. This inquiry

is largely one of statutory interpretation. Therefore, we will limit our background

discussion to the Ordinance and the FHAA.

Like most American cities, Clairton regulates the use of property through zoning

ordinances. As relevant here, Clairton does not permit a Treatment Center to be located

in residential areas. Clairton Ordinance at Table 301. The definition of Treatment Center

encompasses several uses, including:

A use (other than a prison or a hospital) providing housing for three or more unrelated persons who need specialized housing, treatment and/or counseling because of … [c]urrent addiction to a controlled substance that was used in an illegal manner or alcohol… Id. at § 337-12.

In 1988, Congress passed the Fair Housing Amendments Act to prohibit housing-

related discrimination against handicapped persons. Pub. L. No. 100–430, § 6,

1619, 1620–21 (1988). The FHAA defines handicap as “a physical or mental impairment

which substantially limits one or more of such person’s major life activities … but such

term does not include current, illegal use of or addiction to a controlled substance.”

(h). The FHAA, therefore, provides that current addicts are not a protected

group. However, we have held, consistent with other courts, that recovering addicts are.

See Lakeside Resort Enterprises, LP v. Bd. of Sup’rs of Palmyra Twp.,

, 156

n.5 (3d Cir. 2006) (“We note that at least two other courts have held that recovering

alcoholics and drug addicts are handicapped, so long as they are not currently using

illegal drugs.”).

Cornerstone brought both an as-applied and a facial discrimination claim under the

FHAA at the District Court. The District Court granted the City’s motion to dismiss both

claims. First, the Court held that Cornerstone’s as-applied challenge was not ripe, as

Cornerstone had not exhausted its administrative remedies by appealing its denial to the

Zoning Board. Second, although the Court found that Cornerstone’s facial claim was

ripe under Third Circuit precedent, see County Concrete Corp. v. Town of Roxbury,

, 164 (3d Cir. 2006), it held that the definition of Treatment Center did not

violate the FHAA. Cornerstone appealed the District Court’s dismissal of its facial

challenge.1

1 The District Court had federal question jurisdiction pursuant to

. We have appellate jurisdiction pursuant to

. We review this grant of a motion to dismiss de novo. Fallon v. Mercy Catholic Med. Ctr. of Se. Pennsylvania,

, 489 n.5 (3d Cir. 2017). 4 II

Typically, a plaintiff is required to show that “some discriminatory purpose was a

‘motivating factor’” to prevail in a FHAA claim. Cmty. Servs., Inc. v. Wind Gap Mun.

Auth.,

(3d Cir. 2005). But such a showing is not required “where a

plaintiff demonstrates that the challenged action involves disparate treatment through

explicit facial discrimination.”

Because Cornerstone attempts to show this sort of

“explicit facial discrimination,” we focus on the “explicit terms of the discrimination” as

opposed to the manner in which it was applied to the plaintiff.

(citing Int’l Union,

United Auto. Aerospace & Agric. Implement Workers v. Johnson Controls, Inc.,

(1991)).

We apply Pennsylvania law when interpreting a municipal ordinance. See

Borough of Fleetwood v. Zoning Hearing Bd. of Borough of Fleetwood,

(Pa. 1994). Accordingly, we are guided by the rules set forth in the Statutory

Construction Act of 1972, 1 Pa.C.S.A. § 1921, as interpreted by the Pennsylvania

Supreme Court. These rules instruct us that “[z]oning ordinances are to be construed in

accordance with the plain and ordinary meaning of their words.” Upper Salford Twp. v.

Collins,

(Pa. 1995). “Where the words in an ordinance are free from

all ambiguity, the letter of the ordinance may not be disregarded under the pretext of

pursuing its spirit.” Bailey v. Zoning Bd. Of Adjustment of City of Philadelphia,

(2002). But when the ordinance is not clear, the legislature’s intent may be

discerned by considering a variety of other factors. See 1 Pa.C.S.A. § 1921 (c).

5 Cornerstone advances two main arguments in support of its argument that the

Ordinance facially discriminates against recovering addicts: first, the phrase “was used”

expands the phrase “current addiction” to include recovering addicts; and second, the

context and structure of the Ordinance reflect the legislative intent to adopt that meaning.

We find, however, that the text is clear: housing for recovering addicts is not included in

the definition of Treatment Center. Furthermore, even if the text was ambiguous, the

overall structure and surrounding circumstances of the Ordinance evince a legislative

intent consistent with our reading.

A

First, the plain meaning of the definition of Treatment Center does not include

recovering addicts. The plain meaning of “[c]urrent addiction to a controlled substance

that was used in an illegal manner or alcohol” is most naturally read to be limited to

current addicts. Clairton Ordinance at § 337-12 (emphasis added). But Cornerstone

argues that the phrase “was used” transforms the term “current addiction” into “current

and past addiction.” The thought being: a current addiction to a drug that was used

implies that the use and addiction are in the past and, therefore, not current.

This interpretation places inordinate weight on the phrase “was used.” The use of

this phrase (albeit a past tense verb phrase) is no reason to depart from the otherwise

plain meaning of “current addiction.” This becomes evident when one considers that a

current addiction “does not require that a drug user have a heroin syringe in his arm or a

marijuana bong to his mouth at the exact moment contemplated.” Shafer v. Preston

6 Mem. Hosp. Corp.,

(4th Cir. 1997). One can be currently addicted to

a drug that was used in the past. That the use occurred in the preceding days or weeks

does not alter one’s status as a current addict. See, e.g., Salley v. Circuit City Stores,

Inc.,

, 980 n.2 (3d Cir. 1998) (finding, under the ADA, that the term “current

user” includes individuals who have abstained from drug use for three weeks).

B

Second, even if the terms of the Ordinance were ambiguous, the overall context of

the Ordinance confirms the City’s interpretation. When discerning the legislative intent

of an ordinance, we presume that law-makers are “knowledgeable about existing law

pertinent to the legislation it enacts.” Goodyear Atomic Corp. v. Miller,

(1988); see also 1 Pa.C.S.A. § 1921(c) (“When the words of the statute are not

explicit, [courts may consider] other statutes upon the same or similar subjects.”).

With this principle in mind, we find that the Ordinance, read as a whole, reflects a

familiarity with and an intent to conform to the FHAA. The Ordinance includes another

category, “Group Homes,” that would seem to encompass recovering addicts, as it states:

“[i]t is the express intent of the City to comply with all provisions of the Federal Fair

Housing Act, as amended, and regulations promulgated thereunder, in the construction of

this term.” Zoning Ordinance at § 337-12. This is consistent with the definition of

Treatment Center, in which the language closely mirrors the language of the FHAA:

“[c]urrent addiction to a controlled substance that was used in an illegal manner or

alcohol” is nearly identical to the FHAA’s description of the unprotected classification;

7 namely, “addiction caused by current, illegal use of a controlled substance.” These

considerations favor reading the Ordinance in harmony with the FHAA. Thus, Treatment

Center would include only the unprotected class.2

III

For these reasons, we find that the Ordinance does not facially discriminate

against recovering addicts in violation of the FHAA. Therefore, we will affirm the

District Court’s order.

2 Because we are not presented with an as-applied challenge, we do not reach the issue of whether Cornerstone’s operations were properly considered to be a Treatment Center. 8