A Siting Battle Case Study for Non-profit Organization Board Members

8/14/2019 A Siting Battle Case Study for Non-profit Organization Board Members

1/42

AN ABBREVIATED VERSION OF THIS BOOKWAS ORIGINALLY PRESENTED TO

THE NATIONAL COUNCIL FORCOMMUNITY BEHAVIORAL HEALTHCARE

ANNUAL CONFERENCE, BOSTON

K E N N E T H N . M A R G O L I N , A T T O R N E Y A T L A W

lessons f rom the f ie ld

a siting battlecase study for

non-profit

organizationboard members


2/42

1

AN ABBREVIATED VERSION OF THIS BOOKWAS ORIGINALLY PRESENTED TO

THE NATIONAL COUNCIL FORCOMMUNITY BEHAVIORAL HEALTHCARE

2008ANNUAL CONFERENCE, BOSTON

K E N N E T H N . M A R G O L I N , A T T O R N E Y A T L A W

l e s s o n s f r o m t h e f i e l d

a siting battlecase study for

non-profitorganization

board members


3/42

Copyright 2008 Kenneth N. Margolin

Law Ofce of Kenneth N. Margolin, P.C.246 Walnut Street, Suite 101

Newton, Massachusetts 02460

617 641 6900

www.margolinlaw.com

margolin @margolinlaw.com

All rights reserved. No part of this book may be used or reproducedin any manner whatsoever without written permission of the author.

Printed in the United States of America

ISBN: 978 -1-59571-329 -2

Designed and Published by:

Word Association Publishers

205 Fifth Avenue

Tarentum, Pennsylvania 15084

www.wordassociation.com

L E S S O N S F R O M T H E F I E L D


4/42

T H E P U R P O S E O F T H I S B O O K

The importance of Boards of Directors to the central mission of human service organizations has been increasingly recognized by professionals in the eld. As the challenges to human service or-

ganizations become more complex, so do the responsibilities of

Board members become more sophisticated. Using a case study of a respected non-prot corporation faced with a legal battle over its

plans for a new program, this book highlights some of the many issues facing members of non-prot Boards of Directors. The casestudy illustrates the over-arching need for Board members to re-

main informed and involved in their organizations major plans

and decisions.

T H E C A S E S T U D Y

Why a Siting Fight Case Study?

Opposition to community programs challenges our organiza-

tions fundamental missions to improve the lives of our clients.The battles can be costly, time-consuming and demoralizing. Our

clients may be demonized and our organizations plans character-ized as destructive to a neighborhood. In the end, when siting ghtscannot be avoided, they must be won, in a manner that preserves

the organizations integrity and that allows for mending fences aftervictory. Well-informed and strong Boards of Directors are critical

to success.

1

K E N N E T H N . M A R G O L I N


5/42

The Wayside Case

In early 2009, Wayside Youth and Family Support Network, willopen a comprehensive campus program in Framingham, Massa-chusetts. Wayside provides educational, therapeutic, and support

services to adolescents with signicant learning and emotional dif-

culties, and their families. The campus will consolidate residentialand other services that are currently provided in more than a half

dozen separate locations. Integration of the continuum of servicesprovided by Wayside will be enhanced, with the added benet of theeconomies of centralization. The Wayside campus is the vision of

Waysides CEO, Eric L. Masi, aided by an involved Board of Directors.

Before it could break ground, Wayside had to ght and win two

lawsuits. The rst lawsuit was initiated by a group of neighbors inan effort to nullify Waysides building permit. The second was

brought by Wayside against the Board of Selectmen, who had voted

to deny the organization a permit needed to build the access roadinto the campus.

Along the way to success, Waysides CEO and Board members,

grappled with many tough issues. The questions raised as develop-ments unfolded were often challenging. The answers were not al-ways clear. Waysides journey makes for an ideal case study, for the

nuanced issues and lessons it presents. The facts are therefore pre-

sented in considerable detail.

2



6/42

The Legal Backdrop

Massachusetts has an unusual law called the Dover Amend-ment. The law exempts non-prot educational corporations fromall zoning use regulations, allowing a program protected by the

statute to exist in any zoning district, including districts zoned for

residential use.

The Dover Amendment does allow municipalities to imposereasonable regulations concerning bulk and height of structures

and determining yard sizes, lot area, setbacks, open space, parking

and building coverage requirements. Whether a regulation is rea-sonable as applied to any given project is to be determined,

according to the Massachusetts Supreme Judicial Court, on a case-

by-case basis.

The town where Wayside purchased land for its planned campusprogram, had an old zoning bylaw that was ambiguous and confus-

ing in sections apparently applicable to Waysides project. The Bylaw

also appeared to give the Town more control over Waysides projectthan would be permissible under controlling appellate case law.

The Town also had a Public Way Access Permit bylaw, requir-ing every major project developer (Waysides project was major)

to obtain a permit from the Board of Selectmen, in order to builda driveway or access road from the developers private property to

the public way.

Waysides clients would be considered to have handicaps or

disabilities under the federal Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act.

3



7/42

The Saga of a Siting Fight

Wayside Youth and Family Support Network, Inc. is a Massa-chusetts non-prot, tax-exempt corporation. The corporation hasan annual budget in excess of $20 million. Wayside operates day

and residential programs for adolescents with serious emotional

and learning disabilities. It also operates three outpatient mentalhealth treatment centers and extensive home-based programs. The

day and residential programs are located in various cities and townsin the western suburbs of Boston.

Waysides CEO and Board of Directors determined that the or-ganizations clients could be best served, and the organizations s-

cal integrity best maintained, if its various programs were located at

a single campus-style location. The estimated cost of the project atthe time, was $17 million. Construction funding was secured through

a state-sponsored low-interest loan program. The bulk of the fund-

ing would be released once the organization secured all permits nec-essary for construction of the facility and was ready to build.

The corporation embarked on a two-year search covering many

towns for an appropriate piece of land. Locating a parcel that hadsufcient acreage and suitable topography, that was within the ge-ographical area served by Wayside, that was not in a commercial or

industrial area, and that was affordable, turned out to be a difcult

task. After viewing many lots and making unsuccessful offers ontwo, Wayside was able to close on a 14 acre lot of land in the town

of Framingham, which was the town where Wayside was foundedand in which it had operated several programs for years. Two-thirds

of Waysides Board members lived in the town of Framingham.

Framingham, with a population of 65,000, is the largest town

4



8/42

in Massachusetts. The town has a strong tradition of citizen vol-

unteers participating in local decision making. For decades, Fram-ingham has welcomed a wide variety of tax exempt educational,

human service, religious, cultural and recreational organizations.

The tax base is a mix of residential and commercial uses. Framing-ham, along with the contiguous town of Natick, is home to the

largest shopping area in the state, a series of giant strip malls which

cater to virtually any consumer need. While the malls are consid-ered by some residents to be unsightly and excessive, they con-

tribute heavily to the towns tax base. Also contributing to the taxbase are numerous national corporations that provide taxes and

jobs, and create as well trafc and infrastructure costs. The highway

system in Framingham, as well as in much of the state, has not kept

pace with development. The heaviest trafc, with frequent rushhour bottlenecks, occurs along stretches of Route 9, the highway

from which the Wayside campus would be accessed. Framinghamspopulation is diverse. Its central location, wide range of housing

stock, and affordability relative to suburbs closer to Boston have at-

tracted young families, white collar professionals, and a signicantblue collar population.

In addition to being located in a town with which Wayside had

a long and friendly relationship, Wayside administrators consid-

ered the land it purchased to be ideal for its campus. It was largeenough to allow for the desired building, with adequate parking,

while retaining trees, greenery, and buffering from the street andabutting neighborhood homes. The program would be accessible

by public transportation, was close to the Massachusetts Turnpike,

and was just off Route 9, a major east to west roadway. The land

5



9/42

had been used some years ago as a sand and gravel pit; there was ll

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 materialsbefore breaking ground, thus improving the site environmentally.

After it purchased the land, Wayside embarked on a series of

meetings with town ofcials designed to explain the program andto ease the way for the anticipated building permit when Waysidewas ready to begin construction. The meetings continued for many

months with no commitment from the town that Waysides 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 ofcials, 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 intooften 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 signicant 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-

6



10/42

plicated by immigration issues of the sort wrestled with in many

cities and towns across the country. In the past few years, Fram-ingham had attracted a large population of Brazilian immigrants.

Neighborhoods with a distinctly Brazilian avor developed, along

with vibrant ethnic shops and restaurants. As frequently occurswhen a large new foreign population enters a community, tensions

developed with some existing residents. At the same time, lack of

state funds forced the closure of a regional detoxication facility increasing the number of troubled individuals on the streets. The

closure of the detox program along with the population of existinghomeless shelters fueled a growing sentiment that the town was

carrying a social service burden beyond its capacity to manage.

A movement arose in town to oppose any new social service

programs from opening. The movement was headed by a group of aggressive and vocal long-time residents, who were skilled in the

use of the internet. They formed several web/blog sites. The sites

attracted a lot of online trafc, with participants sharing their dis-dain for social service organizations and their clients, as well as

ideas on how to keep them out of town. While a frequent theme of

this citizen movement was the drain on the tax base caused by taxexempt organizations, it was human service non-prots alone that

were the focus of their opposition.

Wayside adopted an open and public approach about its cam-

pus plans. Once it had purchased the land, Wayside developed a

professionally prepared brochure describing the organization andthe campus project, and inviting questions from community resi-

dents. Wayside sponsored a series of informational meetings, towhich neighbors were invited. The invitations were accepted, but

7



11/42

not with the hoped for results. Abutters, who attended the meetings

in signicant numbers, voiced dismay that a vacant parcel of landwould be developed (notwithstanding its proximity to Route 9 and

a heavily developed commercial district), and expressed concerns

that Waysides program would cause trafc 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 hadtoo 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. Thegroup held neighborhood meetings and collected money, all with

the goal of thwarting Waysides 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 Commissioners decision to the

Zoning Board of Appeals, thus beginning the formal legal battle.

Issues included whether Waysides lot conformed to the zoning

bylaw, and whether Wayside needed Planning Board approval forits 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

8



12/42

to uphold the Building Commissioner (because a unanimous vote

was needed for a reversal, the building permit stood). As the dis-senting ZBA member walked toward the exit, members of the au-

dience shouted insults at him. SPNA had collected enough money

to appeal the Zoning Board decision to the Massachusetts LandCourt. While courts uphold zoning boards more often than they

reverse them, the towns arcane zoning bylaw created several com-

plex legal issues regarding Waysides planned use, issues on whichthere was no clear guidance in the appellate case law. The outcome

of the Land Court case was therefore uncertain.

Delay would now become a signicant factor in Waysides deci-

sion-making. While it was difcult to get a precise handle on thecost of delay, there were estimates that construction cost ination

could add $1 million per year to the total cost of the project. In ad-dition to the scal uncertainty created by delay in construction, the

amount of legal fees that would be required could be estimated only

within a wide range, as total legal fees would depend on whether theLand Court case was decided on summary judgment; i.e., with no

trial, and whether or not there was an appeal. Wayside won the

Land Court case on summary judgment, a process that took four-teen months. The neighbors did not appeal.

In addition to the building permit, Wayside needed one addi-

tional permit in order to begin construction. This was known as a

Public Way Access Permit, essentially a curb cut or driveway per-

mit, required any time a developer accessed a public roadway fromits land. In the case of a major project such as Waysides, the Pub-

lic Way Access Permit was voted on by the Board of Selectmen, aftera recommendation by the Director of Public Works. The DPW Di-

9



13/42

rector could make recommendations with regard to placement and

dimensions of the driveway, as well as any roadway modicationsthat the applicant would be required to pay for, in order to provide

for safe and efcient access to the applicants property. Based on

the earlier water and sewer mitigation negotiations with town of-cials, Wayside was condent that the DPW Director would rec-

ommend that Wayside pay for roadway modications costing no

more than $28,000.Wayside administrators were stunned when the DPW Director

recommended to the Board of Selectmen that Wayside be granted

the PWAP, but only on the condition that the organization pay

nearly $400 thousand in roadway and sidewalk improvements. Therationale was a claim that Waysides project would create signi-

cant trafc through nearby neighborhood roads this despite Way-sides submission of two comprehensive trafc studies, approved by

two town consultants, which concluded that trafc impacts from

the program would be minor. At the public hearing before the Boardof Selectmen a televised hearing that was well-attended by project

opponents, and which lasted three nights Wayside challenged the

Selectmens authority to require it to pay for any but nominal mit-igation measures. Wayside also argued that the Board had no choice

legally but to grant the Public Way access permit. The Board of Se-

lectmen voted 4 1 to deny Waysides permit outright. Without thepermit, Wayside would be unable to access its property from the

public roadway, which would effectively kill the project.Wayside Board members weighed the pros and cons of a lawsuit

that simply challenged the Boards permit denial, versus alleging inaddition that the Board of Selectmen had violated the civil rights of

10



14/42

Wayside and its clients. While a civil rights claim for monetary

damages might give the organization some leverage, it might alsomake the lawsuit more expensive, and lengthier to pursue. Wayside

chose the more aggressive course and led suit in state Superior

Court seeking an order that its public way access permit be granted,and demanding monetary damages resulting from the Towns vio-

lation of the organizations constitutional right to access its prop-

erty. The lawsuit also alleged that the Towns permit denial waspartially motivated by hostility to Waysides handicapped clients,

and that the Fair Housing and Americans with Disabilities Acts hadbeen violated. The defendants removed the case to federal court.

After several months in federal court, Wayside won a partialsummary judgment motion in which the judge ruled that Wayside

was entitled to the access permit. While the judge did not yet ruleon 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 trafc 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 hadit 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

11



15/42

through trial and appeal.

Ground has been broken on Waysides campus project, with aprojected opening date of January 2009. The construction cost wasrevised upward to $22 million, $5 million higher than when the

permitting process began, in 2002.

Active opposition to the project appears to have ended.

12



16/42

S O M E C O N S I D E R A T I O N S

F O R B O A R D S O F D I R E C T O R S I NS I T I N G C A S E S

Due Diligence is the Bedrock Principle,

but what Diligence is Due?

The essence of due diligence is the obligation of Board mem-

bers to act in good faith and to make reasonably informed deci-sions on behalf of the organization on which they serve. Board

members must inform themselves based on all material reasonably

available to them, and must make reasonable efforts to gather avail-able information.

Board members will have a difcult time meeting their obliga-tion of due diligence unless they are able to have more than a su-

percial understanding of all the major elements that become partof their organizations program-siting plans. Siting a new program,

whether the venture goes smoothly or becomes a protracted battle,

invariably involves the following elements, some or all of which

may impact one another:

(a) Legal analysis

Too often, administrators of non-prot organizations planninga new or expanded program, underestimate the complexity of thelegal hurdles their project may need to overcome. They may be un-derstandably buoyed by the legal protections conferred on theirclients and programs by the federal Fair Housing and Americanswith Disabilities Acts, if their clients have disabilities, and by theDover Amendment if their Massachusetts program will be educa-

13



17/42

tional, as broadly construed by the courts. What is often misun-

derstood, however, is the limits of the reach of those laws.Massachusetts programs protected by the Dover Amendment

must still comply with reasonable local zoning regulations regard-ing various dimensional requirements, such as lot size, height, andsetbacks. If the programs building does not comply, then a zoningboard hearing and a potential lawsuit may be necessary to adjudi-

cate whether strict application of the local regulations are reason-able in the particular situation. Moreover, some areas of regulation,such as those related to wetlands and conservation, are not affectedby the Dover Amendment.

The federal laws require that communities make reasonable ac-commodations to local regulations that might unduly restrict peo-ple with disabilities from housing or services. A quick survey of thefederal cases that constitute the evolving scope of what accommo-dations are reasonable, and when accommodations need to bemade, shows that application of the federal disabilities rights lawsto a particular program is seldom a straight-forward process.

Before land or buildings are purchased for a new program, andbefore substantial sums of money are spent on a planned project,a comprehensive review of the law must be undertaken, and the re-sults of the review must be reported in writing to the Board andthe Executive Director. No non-prot administrator or board of directors can guarantee smooth sailing for their planned program even baseless legal opposition can cost an organization time andmoney. Board members have an obligation, however, to help insurethat the organization on which they serve is making informed de-cisions as it embarks on a new venture.

14



18/42

(b) Strategic planning; timing and sequence of actions

Every signicant project should include a proposed timeline of events and the people on the program team who will be responsi-ble for each. The timeline should include approaches to local of-

cials, public announcement of the plan and other steps necessary to

the public relations and permitting process. If the project encoun-ters determined opposition, the timeline will undoubtedly be mod-

ied, probably multiple times. A planned approach, however, asopposed to reacting on the y to opposition by abutters or intran-sigence by local ofcials, generally starts the project off on its

strongest footing.

(c) Budgetary issues

Budgetary planning for a development project is incomplete

unless the budget contemplates the worst case scenario of litigation

and lengthy delay. Larger organizations may well be able to budgetfor litigation and multi-year delay to a new program. Smaller or-

ganizations, on the other hand, need to address candidly how much

adversity they can withstand if a desired new program encountersopposition. Worst case budgeting, which is related to the worst case

planning discussed in the next section, should consider items suchas the cost of interest on any loans, delayed income, the cost of lit-

igation, and soft costs such as staff and administrative time.

(d) Gauging opposition and support

Many non-prot corporations will not back away from a ght

if a battle is necessary to achieve a new or expanded program for

15



19/42

their clients. On the other hand, some organizations, usually, but

not exclusively, smaller ones, will choose not to put their resourcesinto overcoming concerted opposition to a new program. They pre-

fer to search for a location where resident and ofcial opposition is

least likely. Whichever is your organizations style, a list should bemade of likely supporters and opponents to your project, and their

potential to become involved on behalf of or in opposition to your

organization.

(e) Public relations and public image

In my long experience representing human service organiza-tions in their development of programs, public relations and pub-

lic image has not generally affected the outcome of a siting ght.

Yet, without exception, public perception of my clients organiza-tions has been a major concern for executive directors and board

members alike. That concern is legitimate. Every battle to open a

program in the locations our organizations have chosen is part of the larger, long-running effort to educate the public about the

rights and needs of our clients to live in the community.Some organizations choose to hire public relations consultants.

I have seen mixed results with the use of such rms, but my clientsgenerally take comfort in the use of a public relations expert if the

budget allows. Whether your organization retains a paid specialist

or tends to public relations on its own, the effort should be given

careful thought and planning. An assessment should be made of the best contacts in the local media. When the timing is right a de-

cision that differs in each case these people should be given a well-constructed written description of your organization, its clients,

16



20/42

and the planned program. Supporters in the community who may

have a public presence, such as clergy or business leaders, should beincluded in the public relations effort. Critical to the success of the

public relations effort for your organizations development plans is

a well-conceived message that is understood by every member of the Board of Directors and any member of the staff who may be

called upon to explain the project.

Planning for the Worst Case Scenario

Developing strategies to overcome multiple obstacles to the sit-

ing project enables the plan to move forward with more condencein its ultimate success. Worst case planning requires imagining the

worst case and breaking it down into discrete parts. One of the

most effective ways to plan for the worst case scenario is to con-vene an executive team and free-associate all that can go wrong with

your project. Participants should be encouraged to throw out any

ideas that come to mind, with no comments made initially, in orderto encourage creative thinking. Each idea listed should be written

down on a large board or projected onto a screen that all can see.Once the parade of horrors has been listed, discussion should

proceed as to how likely each obstacle is to occur some will bediscarded as highly unlikely. The remaining potential problems

should then be listed in the order of concern. Once the list is made,

discussion can begin as to how each obstacle will affect the project

and the organization, and what the response should be to each.While there may be unexpected twists with the best strategic plan-

ning, anticipated difculties always seem more tolerable than theunexpected.

17



21/42

Information and Communication are the keys to Due Diligence

Organizations differ on the method of communication to Boardmembers, but whether through regular or special meetings of thefull Board, an Executive Committee, or designated Board members,

the following actors need to communicate effectively with each

other and with the Board, during a siting ght:

(a) Executive Director

The Executive Director has the primary obligation for keeping

board members sufciently informed so that they can fulll theirduciary duties to the organization. While the Board need not be

apprised of every ripple along the way, they must be made aware of

developments that may signicantly affect their organizationsbudget and future.

(b) Attorney

Periodic presentations by the programs attorney to the Board of Directors, is essential to the Boards 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 terrainis 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.

18



22/42

(c) Essential project consultants

Key consultants, such as architects, engineers, and others, mustfunction as a team with the programs attorney. Each must knowwhat the other is doing for maximum effectiveness. Generally, the

Executive Director or a key management designee, takes the re-

sponsibility for insuring good communication between team mem-bers, and with management and the Board of Directors.

Dealing with Neighbors and

Negotiating with Municipal Ofcials

Municipal Ofcials

Relationships with local ofcials that had seemed solidly cor-

dial can turn sour in a hurry if a vocal constituency organizesagainst a project planned for their neighborhood. If meeting withthe ofcials who are responsible for permitting and approvals can

gain their support, a great deal of time and money can be saved.

On the other hand, ofcials under the political gun will sometimesschedule endless meetings as a way to avoid decision-making and

conict. Some of the toughest calls will be:

(a) Jaw-jaw vs. war-war (with thanks, or apologies, to Winston

Churchill)

Any project, large or small, requires open and frequent com-

munication with municipal ofcials. Ideally, the approach to localofcialdom will have been carefully planned before the rst con-

tact is made. Before ofcials are notied of your upcoming plans,a complete package should have been prepared in advance, con-

19



23/42

sisting of all the information and documents that may be lawfully

requested by permitting authorities, such as the building and pub-lic safety departments. I advise candor about the nature of the

clients who will be served by your program, though if there are al-

ready identied clients, municipal ofcials are not entitled to per-sonal identity information.

A favorite tactic of local ofcials who have learned that some of

their constituents vehemently oppose a planned human serviceprogram, is to cause lengthy delay under the guise of seeking in-formation. The delay ruse is not always easy to spot, at least ini-

tially. Ofcials have the right to information about a new program

coming to their city or town. They are being responsible if they want to understand the potential impact of the program on the

neighborhood in which it will be located. When the inquiries are le-gitimate, there will generally be several meetings and an exchange

of information, followed by a formal application by the human

services organization, for a building permit. Applications for othernecessary permits follow in turn.

When ofcials intend delay, they will try to discourage the or-ganization from applying for a building permit, claiming that the

application is premature and should await further exchange of in-formation. Typically, meetings will be scheduled as far in advance

as the ofcial involved can get away with. There will be cancella-

tions, delayed rescheduling, and endless requests for additional in-

formation and more meetings. If the organization goes along withthe delay tactic, many months, even more than a year in some cases,

may be lost with no benet gained. Executive directors and boardsof directors sometimes allow the delay tactic to continue for too

20



24/42

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 thatallow foot-dragging to work may think that they are offered a

choice between delay and litigation. They may choose delay and

nd 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 le 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, ratherthan the whim of local ofcials.

(b) If patience has run out, how should that message be conveyed torelevant ofcials?

There is no need to be confrontational even in light of suspi-cions that local ofcials were attempting to delay your project. Gen-

erally, a simple letter or even a telephone call, notifying theappropriate ofcial that a formal application will be led, followed

promptly by the ling, will sufce. While there is no need to notify

a building inspector or other ofcial that an application is about to

be led, the notice may be viewed as a courtesy, especially if ongo-ing discussions were being held.

21


1 Winston Churchill said of Neville Chamberlain, after Chamberlain returned from signing the MunichPact with Hitler, granting the Sudetenland of Czechoslovakia to Germany, [Y]ou were given the choicebetween war and dishonor. You chose dishonor and you will have war.


25/42

(c) Should counsel attend any meetings? All meetings? If not all,

which ones? Counsel need not attend every meeting, except in cases when

local ofcials have let it be known that their goal is to stop your or-

ganizations program. Your attorney should attend enough meet-

ings with local ofcials to enable him to be known by them anddevelop a working relationship with them. Often, municipal coun-

sel will attend any meeting at which your organizations lawyer willbe present. If the process is proceeding amicably, then counselshould not be needed at most meetings.

(d) Informality versus formality in the approach to local ofcials

While the tone of communications can, and usually should be,congenial, I recommend a degree of formality early on. The for-

mality should take the form of non-aggressively worded letters con-

rming the results of meetings with local ofcials. Some ofcialsmay take umbrage at such communiques, thinking that they are

being set up in accordance with your programs designs, or fear-

ing they will appear to constituents opposed to your project, to betoo cooperative. If the letters are appropriate in tone, however, and

completely accurate, they are a legitimate means to create a recordof contacts between your organization and local ofcials. A written

record serves as a useful reminder of how much time has transpired

since local ofcials were initially contacted. The paper trail also

makes it easier to spot and short-circuit delaying tactics.

22



26/42

(e) Strategies to maintaining good relations if litigation becomes

necessary I have seen organizations and their lawyers pursue scorched

earth policies vis--vis the communities in which they seek to open

a program, if litigation becomes necessary because of the munici-

palitys opposition. In my view, such an approach is a mistake thatneedlessly harms future relations with ofcials and neighborhood

opponents. Even the bitterest of legal battles end sooner or later.Human service organizations are corporate citizens of the com-munities in which they are located.

Litigation can be pursued aggressively in terms of the intent to

win and to protect the rights of our organizations and clients, while

maintaining a tone of respectful disagreement. The intent to main-tain positive relations to the extent possible can be stated directly in

correspondence drafted by counsel upon the beginning of litiga-

tion. An invitation should be made to keep the lines of communi-cation open and to consider at every stage, a process for early

resolution of the dispute.

Neighbors and other Concerned Citizens

Philosophies differ on how to handle neighbors, before litiga-

tion in an effort to avoid the need for a lawsuit, and after a lawsuitis led. Below are some of the issues that can be controversial:

(a) Stealth vs. openness

When a large project is in the works, stealth is not realistic evenif desired. It is possible, however, when planning a small program

23



27/42

such as a single community residence, to communicate only in the

form of ofcial permit applications. I believe that once property has been purchased, an organization should be candid and open

about its plans. Whatever approach is taken, disingenuousness

should be absolutely avoided. Dishonesty will not enhance the con-siderable legal rights of our clients and organizations, and can gen-

erate enduring antagonism.

(b) If litigation becomes necessary, can the harshest opponents be

sued? Should they be sued?

Sometimes, well-organized and concerted opposition to ourplanned program by a neighborhood group can become personal-

ized and nasty. Lies and distortions may be disseminated about bothour organization and its clients. In such instances, I have been askeda number of times by my clients, can we sue them, shouldnt we

sue them? In most instances, the answer is a resounding NO. Sue

municipal ofcials in their ofcial capacities, but dont sue neighborswho are exercising their constitutional rights of free expression and

to petition their elected ofcials, no matter how annoyingly thoserights are exercised.

(c) Dont let your organization get SLAPPed

Massachusetts has a statute, the anti-SLAPP law, that can make

it costly to sue neighbors who publicly oppose a human service or-ganizations project. SLAPP is an acronym for Strategic Litigation

Against Public Participation. The anti-SLAPP statute, M.G.L. c. 231,59H, protects the constitutional right of people to petition any

24



28/42

public body or ofcial to review or take action on an issue, by im-

posing severe penalties on any party that uses litigation in an at-tempt to thwart those rights.

The law provides that if a party asserts that a lawsuit or coun-

terclaim led against them was based on their exercise of the right

to petition, the party can le a special motion to dismiss the actionor counterclaim. The special motion is heard promptly by the court.

If the court nds that the sole basis of the legal action or counter-claim was to suppress the right to petition, the court will dismiss theaction or counterclaim and assess costs and attorney fees against the

party who led the SLAPP lawsuit or counterclaim. While the anti-

SLAPP law was originally designed to protect citizens who mightoppose a large developer, such as a Walmart, it equally protects those

citizens who would publicly protest our projects.

In rare instances, individuals can and should be sued. I have

done it three times in my entire career, a career in which I have rep-resented dozens of human service organizations attempting to de-

velop new programs. In the rst instance, a group of opponentshad conspired with a state employee to photocopy condential in-

formation from the les of clients of the organization I represented.

In the second case, the leaders of the group opposing my client wereharassing visitors to the proposed program site by triggering cam-

era ashes in their eyes from close up, blocking cars in the organi-

zations driveway, and in one instance, bumping a consultant taking

measurements at the site. In the third case in which I named indi-viduals as defendants, the opponents threatened work crews at my

clients site with violence and continually trespassed on my clientsproperty. Even in these extreme instances, the lawsuit had to make

25



29/42

clear that the individuals were being sued because of their unlaw-

ful conduct, and not because of their opposition to the program.

(d) Should the organizations public response to vitriolic neighbor-

opponents, be to treat them gently regardless of the provocation?

Responses to verbal or written assaults on a human service or-ganization or its clients should be rm, but without personal at-

tacks. Our organizations missions should be vigorously asserted, as

well as the fundamental humanity of our clients and their rights tolive in the community, to receive needed services, and to be treated

with dignity and respect. Personal attacks on vitriolic opponentsserve no good purpose. The attackers often nd their inuence di-

minished over time, as other residents are repulsed by the mean-spiritedness of their approach and the ugliness of their words.

(e) Once opposition has been declared and aggressively pursued by

neighbor opponents, do continued meetings help, or do they serve toaid the opposition with their organizing effort?

Public meetings with groups that have asserted their undyingopposition to your organizations project can be counterproduc-

tive and should be avoided unless they can serve to end the oppo-sition or reduce the level of vitriol. Once a group has determined to

oppose you, meetings with the group are often little more than a

forum for attacks on your project and your clients. Your opennessmay be turned against you, as in, they invited us to speak our

mind, we told them we didnt want them in our neighborhood, andthey ignored us theyre arrogant. An exception to the no-meet-

26



30/42

ing with the opposition rule is when events have created a situa-

tion in which progress can be made between your organization andopponents. A meeting with the opponents at that juncture may be

worth the risk.

The Public Role for Board Members

Board members who are willing to take a public stance can help

their organizations in ways large and small. The following list is

self-explanatory and is presented without further comment. ActiveBoard members can:

(a) Identify project supporters in the community;

(b) Support the project in talks with friends, neighbors and col-

leagues;(c) Educate people with whom they come in contact about the true

nature of the programs clients, their needs, and the help they willreceive in the planned program;

(d) Write letters to the editor of the local newspapers;

(e) Seek the support of state politicians.

The above list is not exclusive. The public role for Board mem-bers is limited only by imagination. Whatever public role Board

members may take, however, must be of a type and pursued in a

manner, carefully discussed, analyzed, and agreed to by the Execu-tive Director and the full Board. Inconsistent statements or maver-

ick activities can give ammunition to the opposition, and harm the

organizations effort.

27



31/42

Litigation: Whats a Board to do when its time to bring in the

Lawyers?The sobering reality of many siting ghts that end up in court

is that a successful outcome is not assured. Every step along the way

can inuence cost, community relations, delay, and ultimately, vic-

tory or defeat. A strong, informed Board of Directors, increases thelikelihood that critical decisions will be the best ones. A sampling

of the types of decisions that can have major impact, include:

Beginning or Defending the Lawsuit

(a) Choosing an attorney weighing options, consequences, and how

to decide

Ideally, the lawyer who handles your organizations siting law-suit, will have been involved early on in the process. Often, however,program administrators try to save money by using a lawyer who is

on the Board of Directors, or curry favor with local ofcials by hir-

ing a local lawyer, regardless of whether the lawyer has experiencewith the type of issues relevant to the development plans. The

lawyer-hiring decision often breaks down into the following choices:

1. Board member vs. independent counsel

I am opposed to using a lawyer who is on the Board of Directors

to negotiate with local ofcials once negotiations have bogged

down or become adversarial, or to handle siting litigation. It strikesme as a potential conict of interest. How, for example, could an at-

torney Board member make an unbiased assessment of whether hewas the right person for the job, or advise the Board on decisions

28



32/42

affecting the cost of litigation? While I hold rmly to this position,

I am aware that some lawyers, including colleagues who I respect,do serve in the dual capacity of counsel and Board member. If that

dual relationship is undertaken, careful attention must be paid to

potential conicts of interest.

2. Local lawyer vs. outside attorney expert with the issues

Program administrators sometimes have the notion that if they

hire a lawyer who is well-wired into local politics, he will have aneasier time obtaining approvals and permits, getting meetings

scheduled, and avoiding obstructive behavior from local ofcials,many of whom may be his friends.

If there is little opposition to a project, there can be some ben-et to working with a local attorney who knows the personalities in

town hall and the quirks of the system. Once matters become con-

tentious, however, it may be difcult for a local counsel to be suf-ciently aggressive, particularly if ofcials are violating state and

federal civil rights laws, and a demand for damages as well as de-

claratory relief should be included in a lawsuit. Moreover, once thesituation becomes adversarial, knowledge of the legal issues and ex-

perience in litigation and trial work, becomes far more importantthan personal relationships with local ofcials.

3. Large law rm vs. small rm or solo practitioner

Full disclosure: I am a solo practitioner, who has also been apartner in a larger rm, and have handled and won siting cases in

both settings. I have a strong bias that may inuence my comments.

29



33/42

Regardless of whether your organization hires a solo practi-

tioner, a small law rm, or a 500 lawyer giant, the most importantfactor is the comfort that the Executive Director and the Board of

Directors have with the attorney who will be lead counsel on the

case. Make sure that any lawyer you are seriously considering has atrack record of success on similar, or at least, analogous cases. Ask

questions about your case and the law, and be satised that the an-

swers you receive make sense and are in plain English, not legalese.Most of the large law rms in the Boston area do skilled work.

The question may become one of cost-benet; i.e., does it make

sense for your human service non-prot corporation to spend

$500+ per hour for legal fees if there are equally good or better al-ternatives? Occasionally, an Executive Director believes that hiring

a large rm will give his organization more gravitas and may in-timidate the opposition. In practice, the opposite may occur. A

savvy defense or municipal counsel may realize that every step in

the litigation is costing the human services organization a smallfortune, and therefore gauge that delay serves the opponents to the

program.

In the end, the choice of counsel should be a calculated busi-

ness decision. Board members should be sure that their organiza-tion is obtaining the best chance of success for the most reasonable

amount of money. While that calculation is not scientic and not

always easy to make, the assessment needs to be undertaken.

(b) Determining the scope of the litigation if neighbors institute legal

action: can and should a counterclaim be pursued?

There is always the temptation to go after neighbors who le

30



34/42

legal action that will cost your program time and money. As dis-

cussed earlier, the Massachusetts anti-SLAPP legislation limitscounterclaims that can be brought against neighbors who resort to

the courts to thwart your program. Many state court actions over

the siting of non-prot human service programs, involve the DoverAmendment. The Supreme Judicial Court has held that whether or

not strict imposition of zoning bylaw dimensional requirements is

reasonable as applied to non-prot educational programs is a de-termination to be made on a case-by-case basis. Thus, unless your

planned programs 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 dont 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.

31



35/42

(c) Determining the scope of litigation if the organization institutes the

lawsuit

1. Should the lawsuit be narrowly conned to an appeal from an

adverse Zoning Board decision, or should it include civil rights claims against the municipality?

The answer to the question of how broad the lawsuit against a

municipality should be depends primarily on the facts. Not every

disagreement over the interpretation and application of zoning by-laws, amounts to a violation of your organizations and its clients

civil rights. The United States Supreme Court has held that goodfaith disagreements over zoning regulations are not civil rights is-

sues. On the other hand, if you have evidence that municipal of-cials or zoning board members are opposing your program becauseof your clients disabilities, or are responding to the illegal dis-

crimination of constituents, then a civil rights claim is warranted.

2. Is pursuit of monetary damages always the right decision?

The answer to the question of monetary damages is closely relatedto the question of whether civil rights allegations should be included

in a lawsuit instituted by your organization. Where civil rights viola-tions are alleged, monetary damages should generally be sought.

Often, inclusion of civil rights claims will cause the municipalitys in-

surer to become involved, which may make settlement easier if theinsurer concludes that it faces a signicant risk of a large nancial

payout if the case proceeds to trial. If, on the other hand, there are nocivil rights violations, monetary damages will generally not be avail-

able under the law and should not therefore be alleged.

32



36/42

After litigation has been led

(a) Are there litigation strategies that may shorten the duration of the lawsuit?

One of the risks of litigation is that once begun, the party initi-

ating the lawsuit cannot always control when it will end, short of conceding. Nevertheless, it generally makes sense to see if litigation

can be ended short of trial. If there are multiple issues in a case, itmay be prudent to isolate those that might be won on a motion for

partial summary judgment. In a summary judgment proceeding,

facts must be shown via documents and afdavits, with no live tes-timony. A package of documents and legal briefs is submitted to

the court, which is asked to rule whether the facts alleged by the

party seeking summary judgment are beyond credible dispute, andwhether that party is entitled to a favorable judgment as a matter

of law. Summary judgment hearings can be scheduled far sooner

than trial in most instances. If a party obtains a favorable summary judgment ruling on some issues, the opposition may well be more

likely to seek settlement discussions on the remaining issues.

At various stages of the litigation, it may be advisable to seekmediation of the case. With mediation, the parties agree to a pro-fessional third party neutral the mediator and meet for the pur-

pose of attempting to resolve all, or as many issues as possible.

Mediation can be very effective when the parties wish to settle, buthave been unable to reach agreement through negotiations between

counsel. Mediation does not, however, insure settlement. The tim-ing of mediation can be critical to its success. Mediation can some-

times be advisable before litigation is led, when all parties have

the incentive to avoid the time and expense of a lawsuit. Once a

33



37/42

lawsuit has been led, however, a period of discovery sometimes

even a summary judgment hearing may be necessary before me-diation makes sense. Counsel must be skilled in assessing whether

mediation has a reasonable chance of success, and if so, whether

the time is right to employ it.

In some cases, the parties will agree to submit their case to an ar-bitrator, who will hear evidence and decide the case in place of a

judge. Arbitrators are usually retired judges or experienced attor-neys. A major advantage of arbitration is that scheduling can bedone quickly and is in the control of the parties. Trials before an

arbitrator are generally less formal and less expensive than in court.

If the parties agree, arbitration can be held at any stage of litiga-tion, for example before discovery begins or after a period of mu-

tually acceptable abbreviated discovery. While arbitration may deserve a careful look in some cases, I would be very hesitant to

give up the right to decision by judge or jury, especially where civil

rights are involved. The courts have a long tradition of carefully scrutinizing well-presented claims involving civil rights.

(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 organizations trial

lawyer with control of the litigation, the Board should be apprisedand consulted in advance of litigation steps that may cost signi-

cant time, effort, and money. For example, sometimes a lawyer de-termines that a motion for summary judgment is not likely to be

34



38/42

won, but that the response the defendant will be required to make,

may unearth valuable information about the defendants 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, theBoard could reasonably advise counsel that they do not think the

cost is worth the potential benet. Periodic meetings with the

Board of Directors or an Executive Committee of the Board, shouldbe an essential part of the trial counsels role.

(c) Should any matters be off the table in settlement discussions?

My human service corporate clients have agreed with me with-

out exception that no settlement will be negotiated that compro-

mises fundamental rights of our current or future clients. We havean obligation to protect the privacy rights of our clients. We should

resist, to trial and verdict if necessary, any settlement terms that

imply that our clients are less than full members of the commu-nity. Even with clients rights held as non-negotiable, there is ample

room for creativity in settlement discussions with neighborhoodor municipal opponents. Periodic meetings after the programopens, the offer of an open ear to grievances, trafc calming or mit-

igation measures, and others, may all be worthwhile compromises

if they end litigation and speed the delivery of services to ourclients. On the other hand, the civil rights of our clients, earned

after decades of battles in the legislatures and the courts, are notours to diminish.

35



39/42

Post-litigation

(a) Maintaining and restoring relations with neighbors and municipal ofcials

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 ofcials 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 clientand 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 ofcials, with a purpose to heal any strainedrelationships.

(b) Planning for the projects opening and beyond When the programs opening date approaches, the focus should

be on the program and the needed services it will provide to the

client and the community. Many of my clients have held openhouses or public celebrations to kick off the opening of the pro-

gram. If the program is a large one, members of the entire com-

munity may be invited. Even in the case of stand alone grouphomes, some of my clients have experienced good results with an

open house to which selected public ofcials and immediate neigh-

bors were invited.

36



40/42

A F I N A L W O R D

Every ght to open a program for our clients is another advancein 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.

37



41/42


42/42

Ken Margolin has counseled and represented a wide vari-ety of human service organizations for more than twenty-ve years. Earlier in his career, he handled a series of ground-breaking court cases that helped broaden the

rights of Massachusetts residents with mental retardationand mental illness, to live in the community. Since then,he has provided representation and counsel to dozens of

organizations planning new programs in the community. Some of Attorney Margolins cases include the Wayside case described in this book; judicialinvalidation of a law restricting funding to a program for adolescents withhistories of sexual acting out; application of the federal Fair Housing Act to foil

a towns efforts to limit the size of group homes with a restrictive denition of family; an amicus brief led in the Supreme Judicial Court on behalf of

Massachusetts Association of Private 766 Schools, and Massachusetts Councilof 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 theVermont 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 opentheir programs without litigation. In 2009, Attorney Margolin will be offeringto human service organizations, conict resolution services, including thedesign and implementation of conict prevention and resolution systems.

Kenneth N. MargolinLaw Ofce of Kenneth N. Margolin, P.C.

Walnut Street, SuiteNewton, Massachusetts

- -

www.margolinlaw.commargolin @margolinlaw.com

$16.95

Documents

A Siting Battle Case Study for Non-profit Organization Board Members