LETTER TO THE EDITOR: Concerned Citizens Urge ZBA To Vote Against Request For Special Accommodations

WILMINGTON, MA — Below is the latest letter, written on February 3, from the Concerned Citizens of Wilmington to the Wilmington Zoning Board of Appeals.  A member of the Concerned Citizens shared the letter with Wilmington Apple and requested that it be published.

Re: 362 Middlesex Avenue
Proposal to site Detox Facility
Request for Special Accommodations

Dear Chairman Veerman and members of the Appeals Board, and members of the Board of Selectmen:

All who were at or watched the last Zoning Board of Appeals meeting (ZBA) on January 16 saw a group of residents gravely concerned about the impacts to the neighborhood and the town related to the proposal to site a detox facility in the heart of North Wilmington’s neighborhood business district. This was not the first meeting, as it has been a prolonged and difficult struggle over a year long, with a multitude of meetings, to have the neighborhood concerns heard, since from the beginning the residents’ concerns have been minimized or outright ignored.  Despite all this, when the vote came on the Special Permit Application, Mr. Siracusa and Mr. Lepore voted to deny the Special permit, which constitutes disapproval of the Application, since the Permit Application requires a four out of five vote to gain approval.  Mr. Siracusa and Mr. Lepore deserve tremendous credit for standing up to protect the town and the neighborhood interests.

Both Mr. Siracusa and Mr. Lepore were very clear on the reason for their disapproval – that the site proposal/building was not in harmony with the zoning or the neighborhood, which is the legal standard for making the determination.

In the days following the prior ZBA meeting, on December 12, 2018, neighbors became aware, through a public records request (the information was not freely shared), that the attorney for the applicant submitted two letters, one on November 16, 2018, and one on December 8, 2018, to the ZBA requesting the ZBA “waive” the requirement to comply with the Zoning Bylaw.  This seems by any account to have been an 11th hour action to threaten and bully the ZBA members into voting yes or else face the threat of a lawsuit, and was only taken after their efforts to deal with resident concerns failed.  This is also telling that the developer has no interest any further dealings with residents or the neighborhood, and wants to outright nullify the vote of the ZBA.

The request for special accommodations was a brazen one, to completely “waive compliance with any applicable zoning restrictions.”  In the November 16, 2018 letter, Mr. Bobrowski’s letter cites the federal Fair Housing Act, and specifically a case, Oxford House vs. Town of Babylon, which he alleges is “precisely” the circumstance here.  The Board should not take Mr. Bobrowski’s letter at face value.  First both the Board and the Town Counsel should review the Oxford House case[1].  There are many stark differences in Oxford rendering it not parallel to the matter before the board. The following facts are noted in the Court judgment on Oxford:

  • The case centered on an existing home in an area zoned for single family homes;
  • The home was leased to Oxford House to provide housing for recovering alcoholics or drug addicts;
  • The town attempted to evict the Oxford residents by claiming that there were not a family unit, as set forth in their Zoning bylaw.

The Court did in fact overturn the town’s action, but their reasoning demands close scrutiny for any inclination to compare this case to the case of Bettering LLC.  In taking the action, the Court did so affirming that the home “does not in any way burden the Town or alter the residential character of the neighborhood.”   The Judge also noted that “Plaintiffs in the present case merely seek to require the Town to permit them to continue to use housing which already exists”, and the decision clearly suggested that any matter involving construction of a newbuilding would demand more substantial justification.  The comparison of a few tenants being housed in an existing single family home with a proposed 48 bed detox treatment facility seems absurd, in regard to impacts and harmony with Zoning requirements. If Mr. Kneeland was transforming his own home to a recovery facility, then the parallels may exist.  The Bettering LLC matter involves construction of large, new facility in a neighborhood business area, in complete discord with the town’s master plan, and requiring of a ZBA approval which they failed to secure.

Mr. Bobrowski’s second letter, dated December 8, 2018, focused on 901 ERNSTON ROAD LLC v. BOROUGH OF SAYREVILLE ZONING BOARD OF ADJUSTMENT et al, No. 3:2018cv02442 – Document 22 (D.N.J. 2018)[2]. This is also a case where there are substantial differences to the Bettering case:

  • In making the determination that the Zoning Board’s decision constituted “disparate treatment” (i.e. was discriminatory), The Court indicated the Zoning Board’s denial “did not rely solely on zoning”, citing comments made by the Board members during the denial.  In contrast, for the Bettering matter, both Mr. Siracusa and Mr. Lepore were explicitly clear and on record why they voted to deny the special permit, and such denial was not based on any animus toward the potential clients. Indeed, Mr. Siracusa stated clearly on the record that the size of the building (2½ story vs. one story) was the telling factor in his denial.
  • The grounds for determining that the facility was not provided with reasonable accommodation was that “the use is not permitted anywhere in the Borough”, a fact which neither side disputed.  Again, this is in contrast to the Bettering case, where the Town already took action to create a more suitable zoning location for this facility, one which encompasses a large swath of the town, and one in which the proponent already owns a potential site.

I also note that Mr. Bobrowski’s letter is factually incorrect in representing that the Court in Ernston Road LLC casefound that the plaintiff had a likelihood of success on its claim of disparate impact, as the Court finding was the opposite.

Fair Housing Act and Reasonable Accommodation

Protected Persons

The U.S. Department of Justice (DOJ) provides detailed information on the Fair Housing Act (FHA) on its website[3].  The Act is important in protecting parties against discriminatory housing practices. In the information provided, DOJ specifically addresses issues related to the Bettering LLC matter before the Board. First, DOJ notes that “current” users of illegal, controlled substances are not a protected group under the FHA. This is further established in a joint statement, issued collaboratively between DOJ and the U.S. Department of Housing and Urban Development (HUD).  The statement includes specific guidance on Reasonable Accommodations under the Fair Housing Act[4].  While alcoholism and drug addiction qualify as disabilities, not all parties are protected. The Act specifically does not protect

“juvenile offenders and sex offenders, by virtue of that status, are not persons with disabilities protected by the Act. Similarly, while the Act does protect persons who are recovering from substance abuse, it does not protect persons who are currently engaging in the current illegal use of controlled substances. Additionally, the Act does not protect an individual with a disability whose tenancy would constitute a “direct threat” to the health or safety of other individuals or result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by reasonable accommodation.”

Even a cursory review of FHA cases related to housing for those in recovery indicates that the facilities in question have been in all cases, “group” type homes, or “sober living homes”, meant to house those addicted but in recovery stages, suggestive that a period of abstinence and rehabilitative efforts has in all cases preceded their placement.  The intention in all of these cases is to provide a home for those in recovery, and not detoxification.  In the cited case of Oxford, Oxford homes has, similar to other providers, three basic rules defined for their housing: (1) they must be democratically self-governed; (2) they must be financially self-supporting; and (3) any person using drugs or alcohol must be immediately expelled.  Anyone using is not in recovery and is out.

Detoxification by definition of the National Center for Biotechnology Information[5]is “the process by which an individual is withdrawn from the effects of a psychoactive substance.” It immediatelyfollows an active use of the opioid (or other drug), and there is no doubt that such individuals would test positive for illegal drugs.  To classify those in detox not as “current” users would defy logic.  Such an event would in all cases result in an individual being removedfrom a sober house or group home, where protections under the FHA do exist.  The matter of current users being excluded from FHA protections is set forth in United States of America, Plaintiff-appellee, v. Southern Management Corporation, Defendant-appellant, 955 F.2d 914 (4th Cir. 1992)[6].  Current drug use excludes their protections under the Act.

Reasonable Accommodations

Even IF the detox patients (more appropriate than calling them residents) were a protected group, that alone does not provide a guarantee that any request is a reasonable accommodation.  DOJ’s statement on reasonable accommodation is clear that not all requests are reasonable:

“Not all requested modifications of rules or policies are reasonable. If a requested modification imposes an undue financial or administrative burden on a local government, or if a modification creates a fundamental alteration in a local government’s land use and zoning scheme, it is not a “reasonable” accommodation.”

Mr. Siracusa and Mr. Lepore were emphatically clear the reasons for their disapproval – that the building was not in harmony with the Zoning bylaw and the neighborhood.  Their decision was not based on the proposed clients/use, but the impacts of the building to the area and neighbors.  Mr. Siracusa went so far as to suggest that a different design to the structure may have altered his vote, which the proponent was adamantly against.  Thus, there was no discriminatory intent on the part of Mr. Siracusa and Mr. Lepore that fueled their “no” vote.

The Town indeed made a very directed effort to create a special accommodation for this type of facility in their town meeting action to amend the Town of Wilmington Zoning Bylaw to allow medical facilities, including detox facilities, in industrial zones, which constitute a sizeable portion of the town, inclusive of land already owned by the project proponent.

In a case that much more resembles Bettering than Oxford, Thornton vs. City of Allegan[7], the Court construed a rezoning action to represent a reasonable accommodation, and affirmed the limitations of any request to waive zoning requirements:

“It is disingenuous for Plaintiffs to argue that Defendant’s making of “reasonable accommodations” requires that Defendant grant Plaintiff’s application for the special use permit. Such an interpretation would give handicapped persons carte blanche to determine where and how they would live regardless of zoning ordinances to the contrary. Certainly, this is not what Congress intended when it defined “discrimination” to include not making “reasonable accommodations.”

Thus, the town, even though it was not required to, created a pathway for the proponent to construct a detox facility only a short distance away, in a land area more suitable for such a facility.

Lastly, the ZBA has no procedures established to define what information should be required for any reasonable accommodation request, no process or public participation elements in place, or procedures for required member votes.  In another example of Mr. Bobrowski’s brazen request, he takes the liberty of presumably deciding for the Board in the letter that he interprets the law requiring only a simple majority of the Board, in an exceeding self-serving directive.  Many towns have procedures in place, and so should Wilmington.

Conclusions

The town counsel should be fully considering these issues and briefing the members of the Zoning Board (and Selectmen) on this upcoming vote for reasonable accommodation, and NOT just accepting Attorney Bobrowski’s opinions on this matter.  Based on the information outlined above:

  • The patients at the proposed detox are not protected under the FHA, by virtue of them being current drug users, which cannot be refuted
  • The Oxford House and Ernston Road LLC case Court decisions are not in any way “precisely” like the Bettering LLC matter before the ZBA for action, and other case law noted above must be considered
  • Even if the patients were identified as a disabled group under the FHA, the DOJ/HUD joint statement on reasonable accommodation is clear that NOT all requests are reasonable, as it clearly states… “if a modification creates a fundamental alteration in a local government’s land use and zoning scheme, it is not a “reasonable” accommodation.”  Asking the ZBA to fully waive applicable zoning requirements, and to nullify a duly taken vote of the ZBA is NOT reasonable, especially since the Town has already made accommodations for siting of such facilities.

Those who come before the ZBA for an action should all have to play by the same rules.  In the end, Mr. Kneeland has the capacity on his own for a reasonable accommodation of his interests – move the proposal to other parcels he owns, where town meeting zoning actions have opened the doors to siting facilities like the one he is proposing.

I ask that the ZBA do the right and legal thing to protect the town and neighborhood from the irreversible and negative impacts that this proposal presents to the neighborhood and business community in North Wilmington.

Sincerely,

The Concerned Citizens of Wilmington

cc: Jeff Hull, Town Manager
Members of the Board of Selectmen

[1]https://law.justia.com/cases/federal/district-courts/FSupp/819/1179/1965199/

[2]https://law.justia.com/cases/federal/district-courts/new-jersey/njdce/3:2018cv02442/367077/22/

[3]https://www.justice.gov/crt/fair-housing-act-1

[4]https://www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint_statement_ra.pdf

[5]https://www.ncbi.nlm.nih.gov/books/NBK50618/

[6]https://law.justia.com/cases/federal/appellate-courts/F2/955/914/448376/

[7]https://www.leagle.com/decision/19931367863fsupp50411266

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One thought

  1. Great piece and you just saved the town a few hundred hours of legal research fees.

    Will be interesting to see if the town cave$ or not.

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