(Editor’s Note: The Wilmington Planning Board will hold a Public Hearing on Tuesday, March 10, 2020 at 7:30pm in the Town Hall Auditorium at the request of Bettering LLC for a reasonable accommodation to modify the approved site plan for a detox facility at 362 Middlesex Avenue. WCTV will be covering the meeting. A copy of the plan is available with the town’s Planning & Conservation Department and may be viewed in their office at Town Hall from 8:30am to 4:30pm, Monday through Friday.)
As someone who is an avid watcher of our town government I wanted to write this letter to the benefit of all that care to keep an open mind. As many of you know, the 362 Middlesex Ave project is rearing its head again, out from the Federal Courts and sent back to the town for “reconsideration.” While I wont claim to know the entirety of the circumstances as to how or why its back I just know that, its back. Its back in new form, new building and plot plans, a completely new proposal being described as a “modification” to original plans so that it retains the appearance of grandfathered status.
The issue that it brings, has no basis on opinions as to whether or not you support it, or or its “value” to the people of town. The issue that it brings back to the table is that this case can and will set legal precedent for future generations of Wilmington residents as well as every American across the country.
Yes, I said across the country. Without getting too much into the legal framework of the ADA/FHA and “Reasonable Accommodations” requirement, Towns utilize zoning to protect its citizens as well as property within its borders. This excerpt describes in short one of the FHA’s purposes.
The Act also makes it unlawful for any person to refuse “to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford … person(s) [with disabilities] equal opportunity to use and enjoy a dwelling.
Several of us have been scouring case law in an attempt to find any legal precedent that upheld the use of the act to circumvent zoning to actually construct a new building. While there are many cases that involve pre-existing dwellings, there are few that have involved new construction. Of the cases that involve new or renovated construction, all have been decided in favor of upholding the municipalities denial of the permit.
I cite the (Public Law Journal Vol. 33 No.2 2010) Public Law Journal detailing a municipalities rights when considering a reasonable accommodation:
Even if the FHA applies, must reasonable accommodation be granted? As noted previously, while disabled individuals are entitled to reasonable accommodation from government restrictions which impact their use or enjoyment of housing, such does not automatically exempt all contrary provisions. Rather, accommodation from government restrictions may be denied if it imposes undue financial or administrative burdens on the agency or requires a fundamental alteration of an agency’s zoning provisions.
The reality of a reasonable accommodation historically has been used to aid handicapped folks with alterations like handicapped ramps and other aids, as well as workplace issues, it certainly was not to do an end run around zoning ordinances for new construction. Especially since our zoning does provide districts which this project could be built causing little if any public outcry.
Now I’m certainly not an attorney but I have been around legal issues and laws throughout my career. I know enough that if our town allows this project to move forward un-challenged, is irresponsible and would set precedent to any developer that wants to open up a newly constructed “medical” facility, anywhere, ignoring the zoning.
This facility, if approved, would not only allow other such construction anywhere in Wilmington but it would then be able to be used across the country at a developers whim. Is that how we want Wilmington to be viewed by those in California, Florida or Ohio? The town that sold out it’s citizens presumably because of whom was involved in its planning? While you can be for or against the project, the ramifications of its progression should be concerning to all.
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