Professional Documents
Culture Documents
a siting battle
case study for
non-profit
organization
board members
K E N N E T H N . M A R G O L I1 N , A T T O R N E Y A T L A W
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L E S S O N S F R O M T H E F I E L D
www.margolinlaw.com
margolin@margolinlaw.com
ISBN: 978-1-59571-329-2
K E N N E T H N . M A R G O L I N
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had been used some years ago as a sand and gravel pit; there was fill
material and some construction debris (e.g., bricks, wood, and con-
crete), beneath the site. A wetlands, known as Sucker Pond, bor-
dered the site. Wayside committed to the local and state
conservation agency to stabilize and clean the unsuitable materials
before breaking ground, thus improving the site environmentally.
After it purchased the land, Wayside embarked on a series of
meetings with town officials designed to explain the program and
to ease the way for the anticipated building permit when Wayside
was ready to begin construction. The meetings continued for many
months with no commitment from the town that Wayside’s build-
ing permit would be granted. Wayside agreed to downsize its orig-
inal plans by locating its mental health treatment center off-campus.
In a further show of good faith and commitment to the town, Way-
side volunteered to pay $300,000 to the town for sewer improvements.
Wayside administrators understood from certain town officials, that
$28,000 of the $300,000, would be used toward roadway improve-
ments in the immediate vicinity of the campus.
As Wayside announced its plan to locate its campus in Fram-
ingham, several potent economic, political, and social develop-
ments that had been percolating beneath the surface emerged into
often emotional public discussion. At the same time that state rev-
enues were falling, Framingham faced the reality of little land left
for development. Given the significant acreage devoted to tax ex-
empt state and local parks, schools, colleges, religious organizations,
a prison, and human service organizations, many citizens believed
that future development needed to be devoted to tax paying uses.
The political context that Wayside confronted was further com-
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not with the hoped for results. Abutters, who attended the meetings
in significant numbers, voiced dismay that a vacant parcel of land
would be developed (notwithstanding its proximity to Route 9 and
a heavily developed commercial district), and expressed concerns
that Wayside’s program would cause traffic problems on neigh-
borhood roads. Some abutters also voiced fears that Wayside clients
would be undesirable and would commit crimes in the neighbor-
hood. Nearly all opponents complained that the town already had
too many social service agencies.
A neighborhood group quickly formed to oppose the Wayside
campus plan. The group named itself the Sucker Pond Neighbor-
hood Association (SPNA). Members numbered more than 100. The
group held neighborhood meetings and collected money, all with
the goal of thwarting Wayside’s campus from opening. The exist-
ing anti-human service agency web sites became sources of often
vitriolic discussion about ways to stop Wayside from building its
campus. Despite the opposition to the Wayside project, the agency
was able to persuade the town Building Commissioner that it was
entitled to construct its campus on its Framingham site. The Build-
ing Commissioner issued a building permit on January 28, 2005,
nearly three years after the land was purchased.
SPNA appealed the Building Commissioner’s decision to the
Zoning Board of Appeals, thus beginning the formal legal battle.
Issues included whether Wayside’s lot conformed to the zoning
bylaw, and whether Wayside needed Planning Board approval for
its project. The case was covered extensively in the local newspa-
pers. At the end of a hearing with approximately 150 opponents of
Wayside in attendance, the three person Zoning Board voted 1 – 2
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Wayside and its clients. While a civil rights claim for monetary
damages might give the organization some leverage, it might also
make the lawsuit more expensive, and lengthier to pursue. Wayside
chose the more aggressive course and filed suit in state Superior
Court seeking an order that its public way access permit be granted,
and demanding monetary damages resulting from the Town’s vio-
lation of the organization’s constitutional right to access its prop-
erty. The lawsuit also alleged that the Town’s permit denial was
partially motivated by hostility to Wayside’s handicapped clients,
and that the Fair Housing and Americans with Disabilities Acts had
been violated. The defendants removed the case to federal court.
After several months in federal court, Wayside won a partial
summary judgment motion in which the judge ruled that Wayside
was entitled to the access permit. While the judge did not yet rule
on mitigation, he implied that if he allowed the Town to impose
any mitigation measures on Wayside, they would be modest. The
judge strongly advised that the parties attempt to mediate the re-
mainder of the case, and gave them 60 days to do so, after which
time, he would issue a comprehensive decision on all issues.
Wayside and the town agreed on a retired state Appeals Court
judge as the mediator. After a day-long mediation, the case was set-
tled. Wayside paid $130 thousand toward traffic control and road-
way mitigation measures, and the town, through its insurer, paid
Wayside $80,000 to partially offset its attorneys fees. While Way-
side believed that its legal position would have been very strong had
it made no deal with the town, the Wayside CEO and Board of Di-
rectors decided not to risk the additional 12 – 24+ months of delay
that might have occurred if the case was pursued all the way
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SOME CONSIDERATIONS
FOR BOARDS OF DIRECTORS IN
SITING CASES
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(b) Attorney
Periodic presentations by the program’s attorney to the Board of
Directors, is essential to the Board’s overall understanding. My pref-
erence is to distribute a bullet-point outline of key points in ad-
vance of the Board meeting, to make a concise presentation,
followed by a question and answer session. The attorney owes the
Board absolute candor, whether his assessment of the legal terrain
is rosy or more ambivalent. The attorney should provide the Board
with a plain-English and thorough explanation of the legal issues
involved in the siting case.
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long because they fear that making formal applications when they
are being advised to forbear, will result in denials, necessitating ap-
peals and litigation. The municipality holds out the carrot of co-
operation all the while costing the organization time and money. To
borrow from Winston Churchill once more – the organizations that
allow foot-dragging to work may think that they are offered a
choice between delay and litigation. They may choose delay and
find that they will have litigation.1
The good news is that after an appropriate provision of infor-
mation and a reasonable period of time for meetings to be held,
the human service organization can stop the delaying tactics cold
by deciding to file for the initial permit necessary to begin the proj-
ect, which is usually the building permit. Once formal application
is made, timelines are governed by statutes and regulations, rather
than the whim of local officials.
(b) If patience has run out, how should that message be conveyed to
relevant officials?
There is no need to be confrontational even in light of suspi-
cions that local officials were attempting to delay your project. Gen-
erally, a simple letter or even a telephone call, notifying the
appropriate official that a formal application will be filed, followed
promptly by the filing, will suffice. While there is no need to notify
a building inspector or other official that an application is about to
be filed, the notice may be viewed as a courtesy, especially if ongo-
ing discussions were being held.
1
Winston Churchill said of Neville Chamberlain, after Chamberlain returned from signing the Munich
Pact with Hitler, granting the Sudetenland of Czechoslovakia to Germany, “[Y]ou were given the choice
between war and dishonor. You chose dishonor and you will have war.”
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(c) Should counsel attend any meetings? All meetings? If not all,
which ones?
Counsel need not attend every meeting, except in cases when
local officials have let it be known that their goal is to stop your or-
ganization’s program. Your attorney should attend enough meet-
ings with local officials to enable him to be known by them and
develop a working relationship with them. Often, municipal coun-
sel will attend any meeting at which your organization’s lawyer will
be present. If the process is proceeding amicably, then counsel
should not be needed at most meetings.
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clear that the individuals were being sued because of their unlaw-
ful conduct, and not because of their opposition to the program.
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ing with the opposition rule is when events have created a situa-
tion in which progress can be made between your organization and
opponents. A meeting with the opponents at that juncture may be
worth the risk.
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legal action that will cost your program time and money. As dis-
cussed earlier, the Massachusetts anti-SLAPP legislation limits
counterclaims that can be brought against neighbors who resort to
the courts to thwart your program. Many state court actions over
the siting of non-profit human service programs, involve the Dover
Amendment. The Supreme Judicial Court has held that whether or
not strict imposition of zoning bylaw dimensional requirements is
“reasonable” as applied to non-profit educational programs is a de-
termination to be made on a case-by-case basis. Thus, unless your
planned program’s building and site comply strictly with local zon-
ing regulations, a lawsuit by opponents challenging your right to
build may be an exercise of their constitutional right of access to the
courts. That is a message my clients usually don’t want to hear, but
one they do understand.
As also mentioned earlier, no such forbearance is due opponents
if they violate the rights of your organization and its current and fu-
ture clients, with unlawful actions. Violence, harassment, intimi-
dation, and other conduct not protected by the law, can and should
be met with a lawsuit or counterclaim.
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(b) What role, if any, should the Board of Directors play, in litiga-
tion strategy?
Board members should insist that they be fully informed of the
progress of litigation and of the major tactical decisions to be made,
and their costs. Even as the Board entrusts the organization’s trial
lawyer with control of the litigation, the Board should be apprised
and consulted in advance of litigation steps that may cost signifi-
cant time, effort, and money. For example, sometimes a lawyer de-
termines that a motion for summary judgment is not likely to be
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won, but that the response the defendant will be required to make,
may unearth valuable information about the defendant’s case. If
that summary judgment effort will add $50,000 to the cost of the
litigation, its merits and disadvantages should be discussed with
the Board before the decision is made. In the example given, the
Board could reasonably advise counsel that they do not think the
cost is worth the potential benefit. Periodic meetings with the
Board of Directors or an Executive Committee of the Board, should
be an essential part of the trial counsel’s role.
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Post-litigation
(a) Maintaining and restoring relations with neighbors and munici-
pal officials
When your organization has won its litigation or settled on fa-
vorable terms, the only road to take is the high road. Public com-
ments should focus on a commitment to continue to be a good
neighbor and to work with local officials for the good of the com-
munity. Any request by reporters or others, to comment negatively
on your recent opponents, should be absolutely resisted. I have han-
dled cases in which a joint press release was prepared by my client
and the town in which the contested program was located, an-
nouncing the end of adversary relations and the intent to cooper-
ate in the future. In most cases, my clients have issued a solo,
forward-looking and conciliatory press release. The Executive Di-
rector of the organization would be well-advised to meet one-on-
one with key local officials, with a purpose to heal any strained
relationships.
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A FINAL WORD
Every fight to open a program for our clients is another advance
in establishing their rightful place amongst us in our communities.
It has been my experience over the course of thirty years, that even
after bitter and lengthy legal battles, when our programs open and
our once-feared clients become real human beings to their neigh-
bors, they are accepted and often, welcomed.
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Ken Margolin has counseled and represented a wide vari-
ety of human service organizations for more than twenty-
five years. Earlier in his career, he handled a series of
ground-breaking court cases that helped broaden the
rights of Massachusetts residents with mental retardation
a siting battle
and mental illness, to live in the community. Since then,
he has provided representation and counsel to dozens of case study for
organizations planning new programs in the community. Some of Attorney
Margolin’s cases include the Wayside case described in this book; judicial
invalidation of a law restricting funding to a program for adolescents with
non-profit
histories of sexual acting out; application of the federal Fair Housing Act to foil
a town’s efforts to limit the size of group homes with a restrictive definition of
organization
“family;” an amicus brief filed in the Supreme Judicial Court on behalf of
Massachusetts Association of Private 766 Schools, and Massachusetts Council board members
of Human Service Providers, in a decision preserving a broad interpretation of
the Dover Amendment; establishment, over concerted neighborhood opposi-
tion, of a hospice house for terminally ill senior citizens; a decision by the
Vermont Supreme Court, resulting in expansion of the rights to community
living for Vermont residents with serious mental illness. In addition to success-
ful court cases, he has helped many more clients develop strategies to open
their programs without litigation. In 2009, Attorney Margolin will be offering
to human service organizations, conflict resolution services, including the
design and implementation of conflict prevention and resolution systems. lessons from the field