Agenda - Planning Commission - 11/03/2016

Home

Zoning Bulletin September 25, 2016 1 Volume 10 1 Issue 18 Dover Amendment provides preferential zoning treatment to religious and educational uses of land. 110, Inc. claimed that its proposed land use fell under the educational category and was therefore exempt from any Town board permitting process. The Town agreed, and without holding any public hearings,allowed 110,Inc.to open its substance abuse facility. Lawrence Miller("Miller")resided on property abutting 110,Inc.'s.When he realized that 110, Inc. was operating a substance abuse treatment facility, he filed a Request for Zoning Enforcement with the Town's Building Inspec- for(who was also the Town's Zoning Enforcement Officer).Miller argued that the treatment facility was operating as a commercial operation and was therefore an illegal use in the residential zoning district pursuant to the Town's zoning by-laws. Miller argued that the facility was not covered under the Dover Amendment,and,even if it was,it was still subject to reasonable restric- tions that could be imposed by the Town after a public hearing. The Building Inspector agreed with Miller, and the Town's Zoning Board of Appeals("ZBA")denied 110,Inc.'s appeal. 110,Inc. then filed suit,alleging,among other things,that it was entitled to a "reasonable accommodation" under the Americans with Disabilities Act ("ADA") and the Federal Fair Housing Act("FHA"). (Very generally, those federal laws required zoning officials to allow for"reasonable accommoda- tions" in their policies to allow persons with disabilities to live in the community.)Eventually,the Building Inspector signed 110,Inc.'s"reasonable accommodation"request, and the Town and 110, Inc. entered into a Settle- ment Agreement, resolving 110, Inc.'s lawsuit against the Town, which al- lowed 110,Inc.to continue to operate its facility. After learning of the Settlement Agreement,the ZBA ultimately upheld the Building Inspector's grant of a reasonable accommodation to 110,Inc.,subject to certain limitations and requirements on the facility's operations.The public, including Miller, was not made aware of the Settlement Agreement until a month after it was ratified. Miller filed a legal action in state court.Among other things,he alleged that the Town violated his constitutional due process rights under the Due Process Clause of the 14th Amendment to the United States Constitution. The 14th Amendment provides that no "State [shall] deprive any person of life,liberty, or property, without due process of law." (U.S. Const. amend. XIV, § l.) Among other things,Miller argued that he had a property interest in the Town's enforcement of the zoning laws against 110,Inc.,and that the Town's decision to allow 110, Inc. to engage in unlawful uses deprived him of that interest without prior notice or an opportunity to be heard—thus violating his due pro- cess rights. After the Town removed the case to federal court, the district court dismissed Miller's federal procedural due process claim(as well as a state law I declaratory judgment claim), and remanded to state court the remaining state law claim challenging the ZBA's decision. Miller appealed from the dismissal. I DECISION:Affirmed in part,vacated in part,and remanded. The United States Court of Appeals, First Circuit, held that the Town did c 0 2016 Thomson Reuters 7