South Middlesex Opportunity Council Inc. v. Town of Framingham

Decision Date09 September 2010
Docket NumberCivil Action No. 07–12018–DPW.
Citation752 F.Supp.2d 85
PartiesSOUTH MIDDLESEX OPPORTUNITY COUNCIL, INC. and South Middlesex Non–Profit Housing Corporation, Plaintiffs,v.TOWN OF FRAMINGHAM, Peter C.S. Adams, Steven Orr, Laurie Lee and Cynthia Laurora, in their individual capacities and as they are Framingham Town Meeting Members, Dennis Giombetti, Ginger Esty, and Jason Smith, in their individual capacities and as they are members of the Framingham Board of Selectmen, Susan Bernstein, Carol Spack, Andrea Carr–Evans and Ann Welles, in their individual capacities and as they are members of the Framingham Planning Board, Alexis Silver, in her individual and official capacity, and John Does I–V, and Jane Does I–V, in their individual and official capacities, Defendants.
CourtU.S. District Court — District of Massachusetts


Heidi A. Nadel, Howard M. Cooper, Megan C. Deluhery, Julie A. Schreiner–Oldham, Todd & Weld LLP, Boston, MA, Michael Allen, Relman, Dane & Colfax PLLC, Washington, DC, for Plaintiffs.


DOUGLAS P. WOODLOCK, District Judge.

The Plaintiffs, South Middlesex Opportunity Council, Inc. and South Middlesex Non–Profit Housing Corporation (“SMOC”), operate several residential substance abuse treatment programs in Massachusetts. In its attempt to relocate one of its programs in Framingham, Massachusetts, SMOC encountered resistance from some of the residents and local officials. SMOC brought this action, alleging a variety of claims under federal and state law. I ruled on the defendants' motions to dismiss, South Middlesex Opportunity Council, Inc. v. Town of Framingham, No. 07–12018–DPW, 2008 WL 4595369 (D.Mass. Sept. 30, 2008), dismissing some claims and allowing federal claims under the Fair Housing Act (“FHA”), the Americans with Disabilities Act (“ADA”), and the Federal Rehabilitation Act of 1973 (Rehabilitation Act) and a multiplicity of state law defamation claims to move forward. The Defendants—the Town of Framingham and individual Framingham residents and officials—now seek summary judgment on these remaining claims.


A. Factual Background1. The Parties

SMOC provides a range of social services to low-income and disadvantaged individuals and families in the Metrowest region of Massachusetts. SMOC has had operations in the Town of Framingham for several decades, and maintains its headquarters there. The South Middlesex Non–Profit Housing Corporation (SMNPHC) is a wholly owned subsidiary of SMOC, and manages the majority of SMOC's real estate holdings. James Cuddy serves as Executive Director and Chief Executive Officer of SMOC and SMNPHC.

The Town of Framingham is a body politic established under the laws of the Commonwealth of Massachusetts. Framingham has a town meeting form of government, which places executive authority with an elected Board of Selectmen (“BOS”) and the Town Manager. The Board of Selectmen does not have jurisdiction over the decisions of the Town Meeting, Building Commissioner, or Planning Board, and does not process applications for Site Plan Review. At regular meetings of the Board of Selectmen, the public can ask questions and make statements relating to the matter at issue.

The Planning Board is an elected five-member body, responsible for adopting and implementing Framingham's land use and municipal planning policies. The Town's Zoning Bylaw regulates the use of premises in the Town. The Planning Board evaluates Site Plan Review applications pursuant to Mass. Gen. Laws ch. 40A, § 9, the state zoning statute, and conducts public hearings on these applications.

Named as Defendants are the Town of Framingham, as well as twelve individual residents and Town officials: four Town Meeting members, three Board of Selectmen members, four Planning Board members, and the Human Services Coordinator.1

The four Town Meeting member defendants are Peter Adams, Cynthia Laurora, Laurie Lee, and Steven Orr.

Adams was elected a Town Meeting member in March 2007. He is also the founder and Director of Communications for the Stop Tax Exempt Private Property Sprawl (“STEPPS”) organization, whose formation was motivated at least in part by opposition to SMOC's relocation of Sage House to 517 Winter Street. STEPPS has no formal membership lists or requirements, but some of the Defendants admit to being members.

Laurora was elected in September 2006 and also considered herself a member of STEPPS. Laurora was appointed to the Payment in Lieu of Taxes (“PILOT”) Committee in 2005. The PILOT program was created by the Town Meeting to study the impact of social service sites on the Town, and permits nonprofit social service institutions to make voluntary contributions to the Town, even if the programs are tax-exempt.

Laurie Lee became a Town Meeting member in 2005; in April 2008 Lee was elected to the Board of Selectmen.

Orr was elected a Town Meeting member in 2001, and served as a member of the PILOT Committee. He created the Frambors website, which enables Town Meeting members to post and view messages on an interactive board.

The three Board of Selectmen defendants are Dennis Giombetti, Jason Smith, and Ginger Esty. Giombetti has served on the Board of Selectmen since April 2005, Smith since April 2006, and Esty since September 2000.

The four Planning Board defendants are Susan Bernstein, Carol Spack, Andrea Carr–Evans, and Ann Welles.

The Defendant Alexis Silver is the Human Services Coordinator, and has served in that position since January 2007. She does not sit on any Town board.

2. The SMOC Programs at Issue

SMOC has had three programs in Framingham that it alleges the Defendants targeted in various ways: the Sage House program, the Common Ground Shelter, and Larry's Place.

a. Sage House

Sage House provides residential treatment and support services to homeless and at-risk families where one or both parents are undergoing substance abuse rehabilitation. From 1990 until 2007, SMOC operated the Sage House program at 61 Clinton Street in Framingham. The program is protected by the “Dover Amendment,” Mass. Gen. Laws ch. 40A, § 3, which exempts land and structures used for educational purposes from restriction or regulation by zoning ordinances and by-laws; however, such land or structures may be subject to reasonable regulations concerning the bulk and height of structures, yard sizes, lot areas, setbacks, open space, parking and building coverage requirements. Id.2

SMOC decided to expand the Sage House program, and purchased property at 517 Winter Street in June 2005 for purposes of relocation. Local concerns about the relocation began to emerge, sparking the creation of STEPPS, some of whose members made public statements opposing Sage House's move to Winter Street. During a BOS meeting on June 2, 2005, STEPPS members expressed their objections to the Sage House relocation. After the meeting, Giombetti asked the Building Commissioner to list the permits that SMOC would require for the Sage House relocation.

Before June 2005, Framingham's Zoning Bylaw exempted Dover Amendment properties from Site Plan Review. Some members of STEPPS began to petition the Board of Selectmen and the Planning Board to amend the Bylaw to remove this exemption. Meanwhile, SMOC filed a building permit change-of-use application on July 12, 2005, seeking the Planning Board's approval to operate Sage House at 517 Winter Street. On July 28, 2005, the Planning Board voted to support a Zoning Bylaw amendment that would remove the Site Plan Review exemption for Dover Amendment properties. The Town adopted the Bylaw amendment on August 3, 2005, and it was then sent to the Attorney General of Massachusetts for final approval. On August 11, 2005, the Building Commissioner denied SMOC's change-of-use application under the terms of the revised Bylaw, stating that SMOC had failed to provide a description of the education program at Sage House, to complete Site Plan Review, or to provide a parking plan and stamped floor plan. SMOC appealed this decision to the Framingham Zoning Board of Appeals (“ZBA”). The Massachusetts Attorney General approved the Bylaw amendment on November 16, 2005, noting that Site Plan Review should nonetheless be limited to ascertain whether the site complies with “reasonable regulations pertaining to bulk and height of structures, yard size, lot area, setbacks, open space, parking, and building coverage requirements.” On November 22, 2005, the Town Counsel submitted an opinion letter to the BOS and the Building Commissioner, stating that a reviewing court would probably find that SMOC's use of the Winter Street property would constitute an educational use, and that Site Plan Review would be primarily limited to parking concerns.

After the Attorney General approved the Bylaw in November 2005, SMOC withdrew its ZBA appeal. SMOC applied to the Planning Board for site plan approval on February 17, 2006. It declined, however, to submit some of the requested materials, maintaining that it was not required to do so under the Dover Amendment. Consequently, the Administrator of the Planning Board asked the Town Counsel to provide further clarification as to which materials—of those typically required for Site Plan Review—Sage House would not be required to provide as a Dover Amendment project. On April 6, the Town Counsel provided some guidance, stating that applicants have the burden of establishing that they have protected status, and suggesting that the Sage House program probably constituted an educational use. Town Counsel also stated that because 517 Winter Street was a pre-existing structure, “this limits the application of site plan review to parking concerns.” On April 7, 2006, the Planning Board asked SMOC to provide a list of waivers for the items requested, with accompanying justifications. SMOC submitted the requested information on May 8, 2006. On June 9, 2006, the Planning Board requested that the Building Commissioner provide input on the...

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