ISD: Hospital must stick to zoning rules

March 20, 2009
By

JOHN RUCH

MOU process at ‘impasse’

JP CENTER—Arbour Hospital, a private mental health facility at 49 Robinwood Ave., finally will have to fulfill various promises it agreed to 30 years ago as part of the zoning decision that let the hospital exist in the residential neighborhood.

The city’s Inspectional Services Department (ISD) soon will begin enforcement of the zoning decision’s provisos—a community demand for decades, ISD Assistant Commissioner Darryl Smith told the Gazette. The provisos notably include apparent restrictions on the hospital’s outpatient treatment rates and amount of parking, both of which the hospital appears to be exceeding, according to residents.

The enforcement decision follows the failure of a three-and-a-half-year attempt, led by ISD, for the local Robinwood-Parley Neighborhood Association (RPNA) and the hospital to reach agreement on other operational issues in an official legal document called a memorandum of understanding (MOU).

The MOU is complete and ready to be signed, but that will never happen now, according to Smith. “I think that the MOU process has reached an impasse,” he said.

The Gazette heard different versions of what happened from the three sides of the discussion: RPNA members, Arbour Chief Executive Officer Joe Murphy and ISD’s Smith.

But the core problem appears to be that Arbour sought to increase parking—a point previously agreed to as non-negotiable.

RPNA members said that Murphy told them hospital lawyers would have to review the MOU, then simply stopped responding to further questions since last August. They assumed the hospital withdrew from the process, and were later told by Smith that the hospital wouldn’t sign the MOU unless the provisos were opened to negotiation—a point that both sides previously agreed was off the table, they said. Earlier this month, they sent Smith a letter—prompted by Smith himself, they said—declaring the process dead and requesting enforcement of the provisos.

“Darryl said the hospital wouldn’t sign unless [we] change the rules of the game,” RPNA member Woody Streeter said in a group interview of five RPNA members at the Gazette office this week. “We’re not the ones who wouldn’t agree to sign the MOU.”

Murphy told the Gazette that he thought the MOU process was still alive. He acknowledged there had been no talks for more than a half-year. But, he said, that was because he was waiting for ISD to get back to him about “some issues” that he declined to specify. He also complained about a lack of “concessions” from neighbors, adding, “and that’s a problem.”

“This is news to me, and I think the city needs to communicate as well,” Murphy said when the Gazette informed him of the end of the MOU process. “We didn’t withdraw from it…I’m willing to meet. It’s really about trying to resolve issues that we have in a manner that works.”

Smith said there were problems on both sides. “Trying to point a finger or identify who is walking away from the process” can’t be done, Smith said. “It’s more like a stalemate.”

Smith said Arbour indeed made last-minute requests to negotiate some of the original provisos, including adding parking spaces. When residents complained that was against the rules, “they were right,” he said.

“The hospital then said, ‘If [residents] have no desire to support us on working on some of these issues, then there’s no process,” Smith said.

But Smith also suggested that some residents weren’t acting in completely good faith. “At the end of the day, you have some people who just want the [provisos enforcement] and nothing more,” he said.

The real goal of the MOU was to build a “relationship” to solve current and future issues, Smith said.

But, RPNA members said, they never understood why ISD didn’t simply enforce the provisos either years ago or right away. Proviso enforce-ment was supposed to happen after the MOU was signed in any case. The residents said they agreed to the MOU process mostly to ensure they did everything correctly to get the provisos enforced after three decades.

RPNA members pointed to other controversies about lack of ISD enforcement, including the high-profile case of the Bicon dental building in Forest Hills. They said that, like residents in those controversies, they feel ignored because of a lack of political connections, and that the city seems to favor commercial property owners in its processes.

“They’ve done what they wanted,” RPNA member Ellen Goodman said of Arbour. “The impact on the neighborhood is huge… I feel like we were up against a preference for businesses.”

Smith said ISD now will review all of the original provisos, meet with Arbour about them and provide a timetable for the hospital to ful-fill them. If that doesn’t work out, the city would take the hospital to court as a last resort, Smith said. Previous Arbour administrators have said the provisos are not legally binding.

RPNA members asked Smith to respond to them by today with a “plan for enforcement.” As of March 16, they had received no response, they said.

RPNA members also intend to ask the city’s zoning Board of Appeal (ZBA)—the body that originally set the provisos in stone—to review and issue an interpretation of the provisos.

ZBA member Anthony Pisani is one of Arbour’s neighbors, and his wife, Emilia Pisani, is one of the RPNA members active in the issue.

At a February hearing on an unrelated property, ZBA chair Robert Shortsleeve complained about what he called a pattern of property owners ignoring zoning decision provisos and ISD failing to enforce them. “There’s no enforcement for compliance,” he said.

The office of City Councilor John Tobin, a critic of ISD’s decisions in several local controversies, will send a letter to ISD supporting RPNA’s request for enforcement, according to Dave Isberg, Tobin’s chief of staff. “The bottom line is, they [Arbour] just weren’t complying,” Isberg said.

To read about the 30 years of dispute over Arbour, see this article at JamaicaPlainGazette.com

30 years of dispute

Arbour was established on Robinwood Avenue under a different name in 1979. The current hospital is part of a for-profit statewide system that is a subsidiary of the Pennsylvania-based national hospital management corporation Universal Health Services.

The hospital required zoning variances to exist on the site. In granting the variances, the ZBA at the time attached a list of 17 provisos to the decision—conditions that the hospital had to meet “as closely as practical” for the zoning variances to be valid.

Some of these provisos plainly were never fulfilled. They include a requirement to build a sidewalk on Robinwood and various landscaping and land management items.

The core proviso restricts the hospital to approximately 30 outpatient visits per day. It is unclear what the exact current visitation rate is, but RPNA members say it is about three times that, and the Gazette’s observations of traffic volume in the area would seem to support some higher rate. However, the hospital claimed five years ago that state admission figures showed about 15 outpatient visits a day on average.

In any case, RPNA members say, Arbour recently sought to renegotiate that limit.

The related issue of parking is technically not on the numbered list of provisos, but instead is in the main text of the original ZBA decision. Based on the hospital’s own traffic study, it notes the original 66 parking spaces should be more than enough and eliminate on-street parking by employees.

But on-street parking, much of it plainly illegal, has continued on narrow, crowded Robinwood Avenue and Parley Vale, as well as on a nearby section of Centre Street. The hospital also has constantly attempted to increase its parking, in at least one case in 2004 by creating several spaces without the proper permits. Its current total parking area on its property in the area appears to be more than 66 spaces.

Most recently, residents said, Arbour proposed adding parking by building a parking deck atop its current main lot.

Smith said it is currently not clear “whether [the parking limit] is being exceeded or not,” but added, “It’s clear they need more park-ing.”

Previous hospital administrators have claimed that the original zoning decision and provisos merely describe the site rather than restricting Arbour’s development.

The original zoning decision also appears to plainly restrict Arbour’s inpatient services to 118 beds, “which is not to be increased.” RPNA members say the hospital may be violating that with a “sober house”—a residential day program—that they say was improperly licensed by ISD.

For 30 years, neighbors have attempted to get the original provisos enforced and to draw city officials’ attention to traffic, trash and other perceived problems. They have also met sporadically with hospital administrators, who have come and gone relatively quickly in recent years.

After a new burst of community activism five years ago, ISD acknowledged that Arbour is in violation of at least some of the zoning provisos. But instead of enforcing them, ISD in 2005 began the MOU process.

“It needed to be expanded for both parties,” Smith said of the original ZBA decision, noting that modern conditions are different. “I think it would have been a win-win.”

Optimism increased when Murphy came on board. Smith and the residents praised him as far more open and responsive than previous administrators, one of whom was “definitely part of the problem,” Smith said.

RPNA members said that both sides agreed at the beginning to two main principles. First, the original provisos would be enforced and were not open to negotiation. Second, both sides came up with a “wish list” of issues to address and had to stick to it, not adding any concerns later.

Murphy’s wish list at first included proviso renegotiation—including requests to increase parking and the outpatient visit rate, RPNA members said. Neighbors objected and he removed those ideas from the table, but continued to express frustration about it, they said.

But the process seemed to go well. Last year, Murphy fulfilled one MOU item even though the MOU didn’t exist yet—hiring a parking attendant to help with traffic issues. Neighbors were pleased with that olive branch—though they say Arbour has since cut that job.

“Many of the things we talked about in that process, even though we’re not talking, I’m implementing,” Murphy told the Gazette. “Many of the things they want, we need to do anyway.”

He cited the expensive replacement of a noisy generator as one item. RPNA members noted the city’s envi-ronmental inspectors recently cited Arbour for the noise from that generator.

At the most recent MOU meeting in June—where ISD anticipated a finalization of the MOU—“the hospital put a whole slew of requests on the table,” according to RPNA member Fran Streeter. They once again included increased parking and outpatient visits, she said.

“Unfortunately…the hospital came back at the end of the process” and asked for “additional things,” Smith confirmed, including 10 to 15 more parking spaces.

When the hospital said it needed some give-and-take in the process to proceed, Smith asked RPNA to re-spond. Their request for proviso enforcement was the response, he said.

Residents said they actually asked Smith to write a letter of his own to the hospital pressing for the process to continue, but that Smith wanted them to write a letter instead. Woody Streeter said he felt that move was intended to make it look like the residents wanted out of the process.

In any case, that process is dead now, Smith said. Asked if it could be salvaged, he said, “No.”

“Once I send that letter out, it’s over,” he said of his upcoming notification to Arbour about enforcing the provisos.

“I’m disappointed, because I feel this is the first time [residents] had someone [at Arbour] who listened to them and was willing to be responsive,” Smith said. “Where we are now is going back to, ‘Let’s just implement the ZBA decision’…The enforcement part is easy for me. But I thought this could work.”

Smith said he expects to hear future complaints about issues such as delivery trucks that aren’t covered by the provisos but that the MOU would have restricted. He said he believes some residents will still have a relationship with Murphy and will work out future issues, but that it’s also possible “they’ve blown that.”

“It’s a shame it died,” said Fran Streeter, adding that Murphy was indeed the most helpful Arbour admin-istrator so far.

But, Goodman added, Murphy “didn’t seem to get it”—that the provisos were the basis for the hospital be-ing there in the first place. She said Murphy offered to keep the hospital at its current size as part of the negotiations, but that residents pointed out it is already beyond the provisos’ limits—provisos that essentially were a promise to keep the hospital at a specific size.

Emilia Pisani said the “spirit and purpose” of the provisos was to “contain the hospital.”

“We moved into that neighborhood knowing there was a psychiatric hospital there,” she said, joining other residents in saying they don’t object to such a facility in itself. “We’re saying, ‘Be a good neighbor.’”