NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT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 - 0 0706 ) District Judge: Honorable Nor a B. Fischer
Argued on September 1 1 , 201 8 Before: JORDAN, VANASKIE and RENDELL , Circuit Judges

( F iled : December 31, 2018 )

Donald Driscoll ( A rgued) Community Ju s tice Project 100 Fifth Avenue, Suite 900 Pittsburgh, PA 15222
Brian V. Gorman Southwestern Pennsylvania Legal Aid Society 10 West Cherry Avenue Washi ngton, PA 15301

Counsel for Appellant2

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 , Cir cuit 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 s ale to purchase a house and sought an occupancy permit from the City. Cornerstone argues that th e City
considered the residence to be a Treatment Center and denied its application because such centers were not permitted in that location

. Cornerstone chal lenged 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.3

Cornerstone appeals only the facial challenge. It argues that the definition of
Treatment Cente r in the Ordinance facially discr iminates against recovering addicts

— a protected group under the FHAA

— by limiting where residences that serve them may be
located

. W e agree , however, with the City a nd the District Court that the O rdinance 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 whe ther the explicit terms of the O rdina nce are discriminatory. T his inquiry is largely one of statutory interpretation. Therefore, we will limit ou r background
discussion to the Ordinance and the FHAA

. Like most American cities, Clairton regulates the use of property through zoning
ordinance s . As relevant here, Clairton do es not permit a Tr eatment C enter to be located
in residential areas. Clairton Ordinance at Table 301. The definition of Treatment C enter
encompasses several uses, including : A use (other than a prison or a hospital) providing housing for three or more unrelated person s wh o 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 housi ng related discrimination against handicapped persons. Pub. L. No. 100

– 430, § 6, 102 Stat.4

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.” 42 U.S.C. § 3602(h). The FHAA , therefore , provides that current ad dicts are not a protected group. However, we have held, consistent with other courts, that recovering addicts are.
See Lakeside Resor t Enterprises, LP v. Bd. of Sup’ rs of Palmyra Twp. , 455 F.3d 154, 15 6

n. 5 (3d C ir. 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 preced ent, s ee County Concrete Corp. v. Town of Roxbury , 442 F.3d 159, 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 jurisdicti on pursuant to 28 U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review this grant of a motion to dismiss de novo

. Fallon v. Mercy Catholic Med. Ctr. of Se. Pennsylvania , 877 F.3d 487, 489 n.5 (3d Cir. 2017).5 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. , 421 F.3d 170, 177 (3d Cir. 2005) . But such a showing is not required “where a plaintiff demo nstrates that the challenged action involves disparate treatment th r ough explicit facial discrimination.” Id. Because Cornerstone attempts to show this sort of “explicit facial discrimination,” we focus on the “explicit terms of the discrimination” as
op posed to the manner in which it was applied to the plaintiff. Id. (citing Int’ l Union, United Auto. Aerospace & Agric. Implement Workers v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991) ). We apply Pennsylvania law when interpreting a municipal ordina nce . See Borough of Fleetwood v. Zoning Hearing Bd. of Borough of Fleetwood , 538 Pa. 536, 548 ( 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 interpr eted 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 , 669 A.2d 335, 337 (Pa. 1995)

. “ Where t he words in an ordinance are fre e 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 , 569 Pa. 147, 163 (2002). But when the ordinance is not clear, the legislature’ s intent may be discerned by conside ring a variety of other factors. See 1 Pa.C.S.A. § 1921 (c).6

Cornerstone advances two main arguments i n support of its argument that the Ordinance facially discriminates against recovering addicts : first, the phrase “wa s used” expands the phrase “current addiction” to include recovering addicts; and second, th e context and structure of the O rdinance reflect the legislative intent to adopt that meaning.
We find, however, that the text is clear: housing for recovering add icts is not included in
the definition of T reatment C en ter. 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 plai n mea ning of the definition of Treatment C enter 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

. Cl airton 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 us e 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 “ curren t 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. Preston7

Mem. Hosp. Corp. , 10 7 F.3d 274, 278 (4 th 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 week s does not alter one’s status as a current addict

. See, e.g., Salley v. Circuit City Stores, Inc., 160 F.3d 977, 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

S econd , e ven if the terms of the Ordinance were ambiguous , the overall context of
the O rdinan ce confirms the City’s interpretation. W hen 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 , 486 U.S. 174,
184

- 85 (1988); see also 1 Pa.C.S.A. § 1921(c) (“When the words of the statute are not explicit, [court s may consider] other statutes upon the same or similar subjects.”).

With this principle in mind , we find that t he O rdinance, read as a whole, reflects a
fami liarity 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 C enter, in which the language closely mirrors the language of the F HAA: “[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;8

namely, “addiction caused by current, illegal use of a controlled substance. ” The s e considerations favor reading the O rdinance 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.