Zoned Out

Katie Short

On April 19, 2006, a circuit court judge in Albemarle County Virginia, issued a proposed decree granting a declaratory judgment decree in favor of six local residents and landowners who opposed Planned Parenthood being permitted to operate an abortion facility in their residential neighborhood. The landowners, represented by J. Michael Sharman of Culpeper, had filed an action against the county and Planned Parenthood after learning that a building that had originally been approved by city authorities to house professional offices and apartments had morphed into a Planned Parenthood clinic offering abortions, HIV testing, and treatment for sexually transmitted diseases.

After a default decree was entered against Planned Parenthood in 2005, the judge heard evidence and argument and made a number of significant findings, including that “the current use of the property bears essentially no resemblance to the use of the property which was presented to the Planning Commission and the Board of Supervisors for their approval.” Moreover, the actual uses of the building as an abortion center and treatment center for sexually transmitted diseases “are not in keeping with the Neighborhood Model,” are “not in harmony with the purpose and intent of the Zoning Ordinance,” and “are of substantial detriment to adjacent property.” This last finding is particularly significant, in that it opens the door to a private action for damages by the landowners directly against Planned Parenthood.

Mike Sharman’s victory is not the only instance of an abortion clinic’s plan foundering on the shoals of city zoning restrictions. Attorney James Owens of Pennsylvania has also prevailed against abortion clinics seeking to skirt local laws. In one of his cases, notorious abortion malpractitioner Stephen Brigham opened a clinic in King of Prussia, Pennsylvania. Brigham had evaded minimum acreage standards applicable to medical clinics by styling his abortion mill a “professional office.” However, the truth came out when the clinic contacted the police about a planned pro-life rally in front of the clinic. When township officials became aware of the operation of the facility at that location, they demanded Brigham obtain the necessary permits or shut down.

Owens, who represented local residents during the administrative and judicial phases of the case, developed a factual record showing that Brigham himself was not currently a practicing physician but an abortion entrepreneur, owning and operating at least ten other clinics in the region. Further, the record showed that the clinic, for all practical purposes, provided only one service—abortion—performed by a rotating team of anonymous doctors who did not keep regular office hours or have ongoing doctor-patient relationships with the clinic clientele. The zoning board’s decision that the clinic was not a “professional office” was upheld at every stage of appeal, and the clinic closed in March 2003.

In Monrovia, California, attorney Greg Weiler represented residents challenging the granting of a conditional use permit to Planned Parenthood. While the action was still pending, accompanied by both public protest and prayer, the city decided to include Planned Parenthood’s building in a downtown redevelopment project, thus ending the dispute—and preventing the clinic from opening.

In response to this experience, Weiler called on his expertise in land use law to draft a model zoning ordinance specifically for abortion facilities. The beauty—one might even say the poetry—of this ordinance is that it uses the pro-aborts’ own rhetoric against them. For years abortion advocates have argued (unfortunately, in many cases successfully) to legislatures, courts, and the general public that abortion clinics and providers are in constant danger of being bombed, shot, set on fire, doused in acid, or otherwise violently attacked. These overblown claims have been used to justify privileged status for abortion clinics and providers as well as restrictions on those opposed to abortion.

However, looking at this same “evidence,” a reasonable city council could well conclude that an abortion clinic is not just another business or professional office. If a clinic installs bullet-proof windows, where is that bullet going to go after it bounces off the window? If the building is likely to be set on fire, aren’t adjacent buildings also at risk? If a bomb goes off in the middle of the night, who in the neighborhood might get hurt?

Based on the statements of the abortion providers themselves as to the extraordinarily hazardous nature of their operations, it would be quite reasonable for a city council to decide that operating an abortion clinic should be a special use, subject to conditions and restrictions related to these dangers. For example, clinics could not be situated within a certain distance of residences, schools, or playgrounds. They could be required to provide their own twenty-four-hour security, whether live or through surveillance cameras. They could be required to reimburse the city for the extra costs for law enforcement when requested by the clinic.

In addition to the alleged danger of violence, it is well-established that abortion clinics tend to attract protesters (we hope!). The clinics then complain about congested sidewalks and blocked driveways, and demand that the prolifer’s free speech rights be restricted by means of speech-free zones. Under the abortion clinic ordinance, however, the clinic itself would be required to provide an area immediately adjacent to its property, where free speech activity could take place without impeding the public’s use of the right-of-way.

Finally, under the city’s general police powers, it could require that no special use or conditional use permit issue except on findings that the proposed use would not adversely affect the public’s health, safety and welfare.

Obviously, this ordinance is not going to be to every city council’s taste. There are many towns and cities whose elected officials would welcome Planned Parenthood with open arms. But there are others who are not so blinded by pro-abortion ideology as to miss the fact that where abortion businesses go, trouble follows. They will be justifiably concerned about the deleterious effects—economic, moral, and otherwise—of an abortion clinic locating in their community and may welcome suggestions from concerned citizens about how to mitigate those effects.

However, one need not, and should not, wait until Planned Parenthood is already making plans to open a clinic or expand its services in a particular town before acting. In many cases, residents don’t find out about the arrival of an abortion provider until property has been purchased, permits have issued, and even construction has begun. By then, the clinic may have a vested legal right in pursuing its plans to completion. By acting before a potential abortion provider is even on the horizon, a city can prevent being ambushed by learning too late what that innocuous-sounding “professional office” offering “health services” actually is. At a minimum, city officials should be urged to review their zoning ordinances to eliminate ambiguities, such as whether “professional services,” “health services” or “medical services” includes surgical procedures such as first and second trimester abortions. For more information about the model abortion clinic zoning ordinance, contact LLDF at (707) 224-6675.