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Article 38 - Amend Zoning By- Laws Section 11.0 - Definitions of Nursing or Convalescent Home Hospital
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Aspinwall, Charles
From: pderensis@aol.com
ent: Sunday, January 21, 2018 2:01 PM
To: twt1237@aol.com
Cc: Porter, Mark; Aspinwall, Charles; kvn.feeney@gmail.com; John Connolly
Subject: Re: substance abuse disorder facilities
Tom
This citizen article (copy below) is problematic because its attempt to separate substance abuse facilities from
other medical facilities for different treatment under the zoning bylaws of the town of Canton is likely to be
found to be "discriminatory", by the Atty General under the town of Milford decision, likely resulting in
formal disapproval when the article, if adopted at town meeting, is submitted to the Attorney General as
required by law for approval.
In summary form, the issue is that those patients having substance abuse disorders are considered
"disabled": under the Americans With Disabilities Act the "disabled" need to be treated the same as the "able".
If we approached this subject matter differently with a new article to be placed on the warrant by the BOS
now, and said that these substance abuse facilities are included in the definitions of hospitals and convalescent
nursing facilities, how can we rezone all these medical facilities to locations where sound land use planning
would demonstrate a better fit?
~ Ve could suggest rezoning the parcel from business to adjacent residential use as we understand from the
discussion yesterday that this site immediately abuts a residential zone, or we can suggest a zoning ban for all
medical facilities including substance abuse facilities from business districts entirely and allow all medical
facilities by special permit somewhere else in town but then where?
With more guidance as per above, we could draft an article for the BOS to consider adding to the warrant to
carry out the intent of the citizen petitioners?
Paul DeRensis
On Saturday, January 20, 2018, Tom Theodore <twt1237 e,aol.com> wrote:
Sent from my iPhoneSource page 2
Eckert Seamans Cherin &Mellott,LLC
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TEL 617 342 6800
Two Int ~ ~ ~ ~ FAX 617 342 6899
ATTORNEYS AT LAW
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Boston,
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www.eckertseamans.com
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617342.6836
February 26,2018
VIA FEDERAL EXPRESS
John H. Connolly, Chairman
Board of Selectmen
Town of Canton
Memorial Hall
801 Washington St.
Second Floor
Canton, MA 02021
RE: Town Meeting
Citizen's Article Proposing Amendment to Zoning By-Laws Section 11.0
Definitions of`Nursing or Convalescent Home' and `Hospital'
Dear Mr. Connolly and Board:
This firm represents Armando Petruzziello, 225 Turnpike Investment, LLC,or nominee
("Turnpike Investment"), which parties retain an option to purchase the property located at 225
Turnpike Street in Canton, Massachusetts (the "Property"). The Property is located in a Business
Zoning District(the "B District")1 and, accordingly, pursuant to the Canton Zoning By-Laws.
(the"By-Laws"), Turnpike Investment may use the Property fora `Nursing or Convalescent
Home' or `Hospital' as ofright.
Turnpike Investment plans to use the Property for a Medically Monitored Inpatient
Detoxification Facility, pursuant to Department ofHealth Regulations 105 C.M.R. §164.133 (an
"MMID Facility"). On December 15, 2017, Turnpike Investment sought the formal
determination of Canton Building Commissioner, Edward Walsh (the "Building Commissioner")
that an MMID Facility falls within the definition of a `Nursing or Convalescent Home' pursuant
to the By-Laws. On or about December 27, 2017, the Building Commissioner issued a formal
determination that an MMID Facility is not a `Nursing or Convalescent Home' under the By-
Laws. On or about January 22, 2018, Turnpike Investment timely appealed the Building
Commissioner's determination (the "Zoning Appeal").'The Zoning Appeal is set for hearing on
March 22,2018.
It has now come to our attention that a certain Petition Article, a copy of which is
attached hereto as Exhibit A,has been submitted for consideration to the Town for inclusion in
1 A portion ofthe Property is also located in a Single Residence "B" District.
{K07077941}Source page 3
Board of Selectmen
Town of Canton
February 26, 2013
~~ Page 2
ATTORNEYS AT LAW
the 2018 Warrant at Town Meeting (the "Article"). The Article seeks to amend the By-Laws by
deleting the current definitions of `nursing or convalescent home' and `hospital' and replacing
them with the following:
Nursing or convalescent home: Any building with sleeping rooms where
persons are housed or lodge and furnished with meals and nursing care for hire.
This excludes BSAS licensed Substance Abuse facilities under Department of
Health Regulations 105 CMR 164.133 (Medically Monitored Inpatient
Detoxification facilities).
Hospital: An institution providing primary health services and medical or
surgical care to persons, primarily inpatients, suffering illness, disease, injury, and
other physical or mental conditions and including, as an integral part of the
institution, related facilities, including laboratories, outpatient facilities, training
facilities, medical offices, and staff residences. This excludes medical settings
which are exclusively a BSAS licensed Substance Abuse facilities under
Department of Health Regulations 105 CMR 164.133 (Medically Monitored
Inpatient Detoxification facilities).
The Article's proposed amendment ofthe By-Laws is contrary to the express provisions
ofthe Massachusetts Zoning Act, G.L. c. 40A,§ 3, ¶ 4, and it is therefore illegal. Specifically,
the Petition would amend the By-Laws to discriminate against disabled persons by prohibiting
the construction and operation of MMID Facilities. G.L. c. 40A,§ 3, ¶ 4 states:
Notwithstanding any general or special law to the contrary, local land use and
health and safety laws, regulations, practices, ordinances, by-laws and decisions
of a city or town shall not discriminate against a disabled person. Imposition of
health and safety laws or land-use requirements on congregate living
arrangements among non-related persons with disabilities that are not imposed on
families and groups of similar size or other unrelated persons shall constitute
discrimination. The provisions of this paragraph shall apply to every city or town,
including, but not limited to the city of Boston and the city of Cambridge.
(emphasis added)
Indeed, the Massachusetts Office of the Attorney General has offered specific guidance
on precisely this issue. Attached hereto as Exhibit B is a June 12, 2017 letter from the Attorney
General regarding a substantially similar matter in Millbury, Massachusetts. The letter states, in
relevant part:
{K0707794.1Source page 4
Board of Selectmen
Town of Canton
February 26, 2018
~~ Page 3
ATTORNEYS AT LAW
[W]here a zoning by-law conflicts with state or federal law or the Constitution, it
is invalid. See Zuckerman v. Hadley, 442 Mass. 511, 520 (2004) (rate of
development by-law of unlimited duration did not serve a permissible public
purpose and was thus unconstitutional). In general, a municipality "is given broad
authority to establish zoning districts regulating the use and improvement of the
land within its borders." Andrews v. Amherst, 68 Mass. App. Ct. 365, 367-368
(2007). However, a municipality has no power to adopt a zoning by-law that is
"inconsistent with the constitution or laws enacted by the [Legislature]..." Home
Rule Amendment, Mass. Const. amend. art. 2, § 6.
Persons suffering from drug addiction are considered disabled under G.L. c.
40A, ~ 3, and facilities that serve this population are entitled to protections of
the statute. See S. Middlesex Opportunity Council, Inc. v. Town of Framin am,
752 F. Supp. 2d 85, 95(D. Mass. 2010)("Federal regulations define `handicap' to
include drug addiction or alcoholism that `substantially limits one or more major
life activities."'); Granada House, Inc. v. City of Boston, 1997 WL 106688 at *9
(Mass. Super. Feb. 28, 1997) ("Massachusetts would look to federal law,
including the [Fair Housing Act], in interpreting the phrase `disabled person' and
`persons with disabilities', and that by so doing, the [Massachusetts Zoning Act]
must be read to bar the City's discriminatory treatment of a group home for
recovering drug and alcohol users under the Code."); Spectrum Health S, d st
Inc. v. City of Lawrence, No. 2015-288-C (Essex Superior Ct.)("Based upon the
record now before this Court, the plaintiff Spectrum is entitled to those
protections set out under G.L. Ch. 40A, ~ 3, as amended.").
(emphasis added)
Here, because the Petition specifically targets MMID Facilities and treatment of disabled
persons, and imposes additional restrictions not imposed on other similar uses, the Petition is
facially invalid and illegal as it facially discriminates against disabled persons in violation of
G.L. c. 40A, ~3, ¶4.
Turnpike Investment demands that the Town withdraw the Article from inclusion in the
2018 Warrant at Town Meeting. Should the Board fail to do so, Turnpike Investment has
authorized me to pursue all available remedies.
Please be advised that this letter is written without waiver of Turnpike Investment's
rights and remedies, at law or in equity, all of which are hereby expressly reserved.
{K0707794.1}Source page 5
Board of Selectmen
Town of Canton
February 26, 2018
Page 4
ATTORNEYS AT LAW
Should you have any further questions concerning this matter, please do not hesitate to
contact me.
Very truly
Gabriel T. Dym
GTD/var
Enclosures
cc: (via Federal Express and electronic mail where indicated)
Alan Hines, Town Moderator
Richard Staiti, Town Moderator
Town of Canton
Memorial Hall
First Floor
801 Washington Street
Canton, MA 02021
Tracey Kenney, Town Clerk
Town of Canton
Memorial Hall
First Floor
801 Washington Street
Canton, MA 02021
Laura Smead, Town Planner
Town of Canton
Memorial Hall
First Floor
801 Washington Street
Canton, MA 02021
Office of the Massachusetts Attorney General
Municipal Law Unit
10 Mechanic Street, Suite 301
Worcester, MA 01608
{K0707794.1}Source page 6
Board of Selectmen
Town of Canton
February 26,2018
Page 5
ATTORNEYS AT LAW
Paul R. DeRensis, Esq.
Deutsch Williams Brooks DeRensis &Holland,P.C.
One Design Center Place, Suite 600
Boston, MA 02210
pderensis@aol.com
{K0707794.1}Source page 7
short-native-text
EXHIBIT A
Source page 8
DATE quid TIi1~ this pa~~er received by
T0~4~+rN MEETING- - CITIZ~+ N'S A:I2TICI~~ l:egistz•ars ~=~~~ ~j
_ ~
Amend Zonin y .~Sy-laws S`ectian zx.o
Definzf-ians ofNursing or Cornvalescent
SAN 1 %' ?018
.Florae and:I-Iosp i~al. TOWN CLE1tK
::,~_~ro~~, i~h,~.
~~ AR`T~CLE(.~)To see if the Town will vote Co amend
` Zoning ,By-Laws Section ii.o as follo~lrs:
By deletzng the definitions of"Nursing or convalescelit i; ,~
: home" and "Hospital".and replacing tl~ezl~ with the ,-,
'following:
' Nursing ox• convalescent horue: Az~y building with i
sleepi~lg roams where persons are ha~~sed or Lodge and
., furnished ~vith meals and nursing.cafie for hzre. This
excludes BSAS licensed Substance Abuse facilities undez•
Depar~neiit of Health Regulafiions xo~ CMR 164.133
i {Mectieally Monitored I~patier~t Detoxification facilities}.
Hospitals An institution providing priznaiy health
services and medical o~• surgical'care to persons, pz•imarily
~ izlpatients, suffering from llizess, disease, injury, and j
'~ other physical or mental concliiions and including, as an
integ~~a1. ~ai~t oftl~e institution, related facilities, including
', laboratories, outpatient facilities, training facilities,
i medical offzces, and staff residences. Tlzis excludes medical ~.
'i settings which are exclusively a BSAS licensed Substance
Abuse facility ui~dez~ Departrnent of Health Regulations
', zo5 CNIR ~:6~..133(Medically Monitored Inpatient
Detoxification focilities).
~ O~t
i o tka e any othei act'ion ze ~ latdt~
e sereto.
SIGNERS' S~'ATEIYT~NT VVe are c~uali~ed voters of the Commonrvealtl~
of Massachusetts acid of the Toti~m of C:antou,
INSTRUCTIONS TO SIGNERS:
Yoiu~ si~iah~re should be ~vz~itten as substanti
ally as registered, Tf you are prevented, by physical
residence in yom~ presence. disability, fi•om ~~~riting you may autlioz~ize some
person fo ti~~rite your mm~e and
C Signatures to be mnde in person with
name Now Living At
l~ substanti~ity as registered (except iu c;tse Prec YtttNT~D N.Anit;
o~ (Street and Number)
e physical disabilit}' as stated ;tbove) f~
c
kSource page 9
ocr-300dpi-psm3
EXHIBIT B
Source page 10
~~..
~
~ ~+~ THE COMMONWEALTH OF MASSACHUSETTS
'
~
,. OFFICE OF THE ATTORNEY GENERAL
CENTRAL MASSACHUSETTS DIVISION
..i ~zt
~j.ii :V~ I O MECHANIC STREET, SUITE 3OI
WORCESTER, MA OI6Og
MAURA HEALEY
(508)792-7600
ATTORNEY GENERAL (508)795-1991 fax
www.mass.gov/ago
June 12, 2017
Jayne Marie Davolio, Town Clerk
Town of Millbury
127 Elm Street
Millbury, MA 01527-2632
Re: Millbury Special Town Meeting of January 3, 2017 -Case # 8248
Warrant Articles # 3 and 4(Zoning)
Dear Ms. Davolio:
Article 4 — We must disapprove Article 4 because it is inconsistent with the
Massachusetts Zoning Act (G.L. c. 40A, S 3, ¶ 4), (and as discussed below, potentially the
Americans with Disabilities Act(42 U.S.C. ~~, 12132 et seq.), the Rehabilitation Act(29 U.S.C.
~ 794(a)), and the Fair Housing Act(42 U.S.C. ~ 36040(1) et seq.)), in its differing treahnent of
facilities that serve disabled persons. The reasons for our disapproval are explained below. I
This letter briefly describes Article 4; discusses the Attorney General's standard of
review of town by-laws under G.L. c. 40, ~ 32; and then explains why, governed as we are by
that standard, we must disapprove the Article because it is in conflict with state and federal law.
We emphasize that our disapproval in no way implies any agreement or disagreement with the
policy views that led to the passage of the by-law. The Attorney General's limited standard of
review requires her to approve or disapprove by-laws based solely on their consistency with state
and federal law, not on any policy views she may have on the subject matter or wisdom of the
by-law. Amherst v. Attorney General, 398 Mass. 793, 795-96, 798-99 (1986).
I. Description of Article 4.
Article 4 proposes to amend the Town's zoning by-law by adding a new (un-mined)
Section 54 as follows:
Any Methadone Treatment Center, Facility, Clinic, Service Center and/or, any
similar type program (hereinafter Methadone Clinic) that dispenses, prescribes,
~ In a decision issued April 1 I, 2017 we approved Article 3Source page 11
administers, allocates, delivers, hands out, or uses in any way, Methadone, or any
synthetic version of the salve or similar type drug form, inay not operate and/or
locate within one thousand (1,000) feet of a public school, private school,
parochial school, Town or Commonwealth of Massachusetts approved charter
school, a public or privately accredited preschool, accredited headstart facility,
vocational school, college or university, or a Town and/or state public park or
playground which is located within the Town of Millbury's boundaries. The
distance between any school, park or playground, as herein described, and a
proposed Methadone Clinic, will be determined by a straight line drawn between
the closest boundary lot line of the Methadone Clinic to the closest boundary lot
line of the school and/or park/playground as herein described.
Similar uses in the Town are not subject to such a buffer zone requirement. For example,
the Town allows "nursing, convalescent or rest home, hospital" by right in the Town's
Residential Districts, Suburban Districts, Bra~nanville Village District, Industrial I District, and
the Town's Business Districts. The Town also allows a "residential social service facility" by
special permit in the Residential Districts, the Suburban Districts, and the Business Districts,
with no buffer zone requirement. See Zoning By-law, Article 2, District Regulations.
IL Attorney General's Standard of Review and General Zoning Principles.
Pursuant to G.L. c. 40, S 32, the Atton~ey General has a "limited power of disapproval,"
and "[i]t is fundamental that every presumption is to be made in favor of the validity of
municipal by-laws." Amherst, 398 Mass. at 795-96. The Attorney General does not review the
policy arguments for or against the enactment. Id. at 798-99 ("Neither we nor the Attorney
General may comment on the wisdom of the town's by-law.") Rather, in order to disapprove a
by-law (or any portion thereofl,the Attorney General must cite an inconsistency between the by-
law and the state Constitution or laws. Id. at 796.'- "As a general proposition the cases dealing
with the repugnancy or inconsistency of local regulations with State statutes have given
considerable latitude to municipalities, requiring a sharp conflict between the local and State
provisions before the local regulation has been held invalid." Bloom, 363 Mass. at 154
(emphasis added). '`The legislative intent to preclude local action must be clear." Id. at 155.
Massachusetts has the "strongest type of home rule and municipal action is presumed to be
valid." Com7ors v. City of Boston, 430 Mass. 31, 35 (1999) (intenlal quotations and citations
omitted).
Article 4, as an amendment to the Town's zoninb by-laws, must be accorded deference.
W.R. Grace & Co. v. Cambridge City Council, 56 Mass. App. Ct. »9, 566 (2002) ("With
respect to the exercise of their powers under the Zoning Act, we accord municipalities deference
as to their lebislative choices and tl~eil- exercise of discretion regarding zoning orders."). When
' Tl~e Attorney General also reviews by-laws for consistency with the federal constitution and statutes. This is
because towns draw their legislative power from the state's Home Rule Amendment, Mass. Coast. amend. art. 2, S 6
(as amended by amend. art. 89), ~~~hich allows a town to exercise, subject to certain limits, "any power or function
which the general court has power to confer upon it" and the Le«isl~ture has no power to confer on a town the
power to enact by-laws contrary to federal law.
7Source page 12
reviewing zoning by-laws for consistency with the Constitution or laws of the Coininonwealth,
the Attorney General's standard of t-evie~v is equivalent to that of a court. "[T]he proper focus of
review of a zoning enactment is whether it violates State law or constitutional provisions, is
arbitrary or unreasonable, or is substantially unrelated to the public health, safety or general
welfare." Durand v. IDC Bellingham, LLC,440 Mass. 45, 57 (?003). Because the adoption of a
zoning by-law by the voters at Town Meeting is both the exercise of the Town's police power
and a legislative act, the vote carries a "stron;presumption of validity." Id. at 51. "Zoning has
always been treated as a local matter and much weight must be accorded to the judgment of the
local legislative body, since it is familiar with local conditions." Concord v. Attorney General,
336 Mass. 17, 25 (1957)(quoting Burnham v. Board of Appeals of Gloucester, 333 Mass. 114,
117 (1955)). "If the reasonableness of a zoning bylaw is even `fairly debatable, the judgment of
the local legislative body responsible for the enactment must be sustained."' Durand, 440 Mass.
at 51 (quoting Crall v. City of Leominster, 362 Mass. 95, 101 (1972)). Nevertheless, where a
zoning by-law conflicts with state or federal law or the Constitution, it is invalid. See Zuckerman
v. Hadley, 442 Mass. 511, 520(2004)(rate of development by-law of unlimited duration did not
serve a permissible public purpose and was thus unconstitutional). In general, a municipality "is
given broad authority to establish zoning districts regulating the use and improvement ofthe land
within its borders." Andrews v. Amherst, 68 Mass. App. Ct. 365, 367-368 (2007). However, a
municipality has no power to adopt a zoning by-law that is "inconsistent with the constitution or
laws enacted by the [Legislature]..." Home Rule Amendment, Mass. Const. amend. art. 2, ~ 6.
III. Article 4 Discriminates Against Disabled Persons in Violation of the
Massachusetts Zoning Act, G.L. c. 40A,§ 3,¶ 4.
The Massachusetts Zoning Act, G.L. c. 40A, ~ 3, ¶ 4 prohibits town by-laws that have a
discriminatory effect on disabled persons, as follows:
Notwithstanding any general or special law to the contrary, local land use and health and
safety laws, regulations, practices, ordinances, by-laws and decisions of a city or town
shall not discriminate against a disabled person. Imposition of health and safety laws or
land-use requirements on congregate living arrangements among non-related persons
with disabilities that are not imposed on families and groups of similar size or other
unrelated persons shall constitute discrimination.
Persons suffering from drug addiction are considered disabled under G.L. c. 40A, ~ 3, and
facilities that serve this population are entitled to the protections of the statute. See S. Middlesex
Opportunity Council, Inc. v. Town of Framingham, 752 F. Supp. 2d 85, 95 (D. Mass. 2010)
("Federal regulations define `handicap' to include drug addiction or alcoholism that
`substantially limits one or more major life activities.'") (citation omitted); Granada House, Inc.
v. City of Boston, 1997 WL 106688 at *9 (Mass. Super. Feb. 28, 1997)("Massachusetts would
look to federal law, including the [Fair Housing Act], in interpreting the phrase `disabled person'
and `persons with disabilities', and that by so doing, the [Massachusetts Zoning Act] must be
read to bar the City's discriminatory treatment of a `i-oup home for recovering drug and alcohol
users under the Code."); pS ectrum Health Systems,~Inc. v. City of Lawrence, No. ?015-288-C
(Essex Superior Ct.) ("Based upon the record l ow before this Court, the plaintiff Spectrum is
entitled to those protections set out under G.L. Ch. 40A, ~ 3, as amended.").Source page 13
The Town's by-law seeks to impose abuffer-zone requirement on a use described as:
"Methadone Treatment Center, Facility, Clinic, Service Center and/or, any similar type program
(hereinafter Methadone Clinic)." Although this use is not defined in Article 4 or elsewhere in the
existing Zoning By-law, the by-law appears to target facilities that dispense Methadone.
Methadone treatment is an established treatment for opioid addiction. See Massachusetts Office
of Consumer Affairs and Business Regulation, Bulletin 2015-OS "Access to Services to Treat
Substance Use Disorders; Issued July 31, 2015,"Medically Assisted Therapies." 3 On its face the
by-law imposes a buffer zone requirement on facilities that treat disabled individuals — a buffer
zone requirement that the Town does not impose on any similar use. By singling out substance
abuse treatment providers for additional land use restrictions not imposed on similar uses in
Town the by-law facially discriminates against disabled persons in violation of G.L. c. 40A, ~ 3.
See Brockton Fire Department v. St. Mary Broad Street, LLC, 181 F. Supp. 155, 157 (D. Mass.
2016) (ruling that the City could not enforce the Massachusetts Sprinkler Law, G.L. c. 148, ~
26H, against sober homes because such enforcement would constitute "facially disparate
imposition of the Sprinkler Law on a group residence sheltering disabled individuals."); see also
Jeffrey's House, Inc. v. City of Fitchburg, 2016 WL 4926415 at ~7(D. Mass. 2016)(Because the
Massachusetts Sprinkler Law `'imposes a health and safety requirement on sober homes... which
is not imposed on homes housing families and certain um•elated groups of a similar size" it "runs
afoul of the [Massachusetts Zoning Act] where it is a `facially disparate' statute which `shall
constitute discrimination.' ")(internal citations omitted). 4 Because of this conflict with G.L. c.
40A, ~ 3, we must disapprove the by-law.
IV. Article 4 May Also Violate the ADA, the Rehabilitation Act, and the Fair
Housing Act.
The Americans with Disabilities Act (42 U.S.C. ~~, 12132 et seq.) ("ADA"), the
Rehabilitation Act (29 U.S.C. ~ 794(a)) ("RA"), and the Fair Housing Act (42 U.S.C. S
36040(1) et seq.) ("FHA") all prohibit municipal by-laws from discriminating against disabled
persons.s "Under the ADA and FHA, a public entity such as the [Town] is prohibited from
implementing a zoning scheme that treats disabled individuals differently than non-disabled
individuals." U.S. v. City of Baltimore, 845 F.Supp. 2d 640, 647-648(D. Md. 2012)(Baltimore's
zoning code requirement that residential substance abuse treatment programs obtain a
conditional ordinance before locating in any district for which they were otherwise eligible was
facially discriminatory in violation of the ADA and FHA).e "[C]ourts have found ADA and FHA
violations not oi11y in cases of specific zoning actions such as outright permit denials, but also in
cases of burdensome procedural zoning requirements uniquely placed on disabled individuals."
~j See Bulletin ?015-02: Issued July 3 7. 20]~.
4 Article 4 may also be found to violate the protections foi- educational uses in G.L. c. 40A, ~ 3. Several courts
have ruled that substance abuse treatment centers qualify as educational uses under that staCnte. See e.g. Spectrum
Health Systems, Inc. v. City of Lawrence, No. 2015-288-C (Essex Superior Ct.). Whether a court would find the
1000-foot buffer requirement in Article 4 to qualify as a `Yeasonable regulation concerning ...setbacks..." allowed
by G.L. c. 40A, § 3, ¶ 2 is afact-specific analysis beyond the by-law review process in G.L. c. 40, ~ 32.
Because the analysis under the ADA and the RA is substantially the same, we hereafter refer only to the ADA.
~ The Article's definition of "Methadone Clinic" is broad enough to include residential facilities that administer
Methadone, thus triggering Fair Housing Act protections.
4Source page 14
Id. at 648 (collecting cases). Even if a local ordinance or by-law does not use the word
"disability" it can be found to discriminate against disabled persons if the effect is to impose
unique land use burdens on disabled persons. Coininunity Housing Trust v. Dept of Consumer
& Regulatory Affairs, 257 F.Supp.2d 208, 224-25 (D.D.C. 2003) (District of Columbia
requirement that community based residential facilities obtain a certificate of occupancy
expressly targeted individuals with disabilities, even if it did not use the word "disability," and
was thus facially discriminatory).
Here Article 4 does not use the word "disabled." However, by specifically targeting
"Methadone Treatment Centers[s]" for an additional land use requirement (a 1,000-foot buffer
zone) not imposed on similar uses, it facially discriminates against disabled persons. See
Community Housing Trust, 257 F.Supp.2d at 222-224 (by singling out community based
residential facilities for certificate of occupancy requirement, ordinance facially violated FHA).
If Article 4 were subject to a challenge under the ADA and FHA, an affected Methadone
Treatment Center would have to show that a "protected characteristic played a role in" the
Town's decision to treat such Centers differently from other land uses. Id. at 225-226. Because
such a proof would require analysis of a full factual record beyond the documents submitted to
the Attorney General for review under G.L. c. 40, ~ 32, we cannot conclude that Article 4
necessarily violates the ADA and FHA, but we caution the Town that the Article would be
vulnerable to such a challenge.
Note: Pursuant to G.L. c. 40,§ 32, neither general nor zoning by-laws take effect unless the Town
has first satisfied the posting/publishing requirements of that statute. Once this statutory
duty is fulfilled,(1) General by-laws and amendments take effect on the date these posting
and publishing requirements are satisfied unless a later effective date is prescribed in the
by-law, and (2) zoning by-laws and amendments are deemed to have taken effect from the
date they were approved by the Town Meeting, unless a later effective date is prescribed in
the by-law.
Very truly yours,
MAURA HEALEY
ATTORNEY GENERAL
By: Margaret J. Hurley
Chief, Central Massachusetts Division
Director, Municipal Law Unit
10 Mechanic Street, Suite 301
Worcester, MA 01608
(508) 792-7600 ext. 440?
cc: Town Counsel Brian Falk
5