Agenda - Planning Commission - 11/03/2016

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� 3 September 25, 2016 1 Volume 10 1 Issue 18 Zoning Bulletin not violate Miller's procedural due process rights when Town officials decided that 110, Inc.'s substance abuse treatment facility was a lawful proposed use as a"reasonable accommodation"under the ADA and FHA. The court explained that, to succeed on his claim, Miller had to "allege facts which,if true, establish that [he] (1) had a property interest of constitu- tional magnitude and (2) was deprived of that property interest without due process of law."Here,the court examined"whether and in what manner Miller had a constitutionally protected property interest relevant to his claim,whether and to what extent the Town deprived him of that interest, and whether the procedures provided him were sufficient." Again, Miller had contended that"Massachusetts law creates a property interest in securing enforcement of the zoning laws against currently unlawful l uses of property that harm him, and that the Town's decision to allow such uses by 110, Inc. deprived him of that interest without prior notice or an op- portunity to be heard."Assuming, without deciding that the interest Miller claimed—having the Town's zoning by-law enforced—was a constitutionally protected interest, the court found that the Town never deprived Miller of that interest without notice and an opportunity to be heard. The court found that the Town never deprived Miller of any right to obtain enforcement of the zon- ing laws against 110,Inc.Although the Town did eventually decide not to take enforcement action itself in light of its view that 110, Inc.'s use was lawful, Miller still retained the ability to seek such enforcement on his own under the "remedial scheme provided by Massachusetts law."The court concluded that "Miller was therefore not deprived of the right to have the zoning laws enforced against 110,Inc."If anything,"[h]e was deprived only of the ability to enlist the support of Town administrative officials in this effort,"which the court found was"such a deprivation not to be the type of action that requires prior notice." In conclusion, the court found that Miller had not been deprived of any constitutionally protected property interest without due process of law. "He retained his right to initiate, receive notice of, and participate in a ZBA proceeding challenging 110, Inc.'s use of its property. While he lost the . advantage of having the Building Inspector on his side, which may have shifted a greater burden of persuasion to him, [the court found] that he had no property interest in having such an advantage. To rule otherwise would be to federalize all sorts of discretionary calls made by municipal officials even when applicable law does not render[those]calls binding or final." See also: Clukey v. Town of Camden, 717 E3d 52, 35 I.E.R.. Cas. (BNA) 1300, 195 L.R.R.M. (BNA) 2888, 96 Empl. Prac. Dec. (CCH)P 44833 (1st Cir. 2013). I Case Note: Miller had also argued that by granting 110, Inc. a reasonable accommodation, the N Town officials effectively gave 110,Inc.a special permit to do what it wanted—without the necessary public notice and hearings.The court found that argumentfailed because "special permits" can only be granted by the "permit granting authority,"which in this case was the ZBA. The actions of the Town officials and Building Inspector could 8 ©2016 Thomson Reuters is=,