Zoning Board of Appeals

FITCHBURG CITY CLERK ZONING Board of APPEALS Apr 17 2024 4:51 pm 718 Main Street – Suite 201B Fitchburg, MA 01420 MEETING MINUTES – THURSDAY MARCH 14, 2024 Legislative Building at 700 Main Street. Note: This was a Hybrid meeting, broadcasting and recording by FATV 1. Call to Order Christine Tree PLEDGE OF ALLEGIANCE ALL 2. Communications Christine Tree 3. ATTENDANCE: Christine Tree (Chair), Michael McLaughlin (Vice-Chair), Joseph Byrne (Clerk), Brian Gallagher, Robert Talbot & James Reynolds 4. ALSO ATTENDED: Atty. Costa (City Solicitor) & virtual, Felix Zemel (Acting Building Commissioner) 5. Hearings CASE No. APPLICANT PROPERTY TIME ZBA-24-2 Spectrum Health Systems, Inc. 72-80 FRANKLIN RD 6:00PM Appeal to Overrule the Building Commissioner’s decision under §181.9222 of the Fitchburg Zoning Ordinance that they are required to seek a Special Permit and Site Plan Approval for the medication assisted therapy clinic use of the subject property due to the fact that Spectrum’s proposed use qualifies as an Educational Use, Exempt under Section 181.3 (Use Regulations) pursuant to §181.313 (see Table at B.2.), located in the Commercial District Map 116 Block 63 Lot 0 JB - A clarification, this application in front of us is for 72 to 80 Franklin Rd., Mr. McLaughlin and myself did our due diligence and went to this location, which has four businesses there. Speaking to the owners of those businesses, they all say that they have six-year leases on the property with the landlord. On the packet, I didn't see anything from the landlord stating that these people are renting any area from them. I'd like to know, and seeing that we advertised this as 72 to 80 Franklin, do we have the right to proceed or do we have to get a better address? Present were Atty. Jill Meixel, in representation for Spectrum Health Systems, Inc. Kristen Obrien, Chief Behavioral Health Officer and Frank Hight, vice-president of Environmental caption Health Systems stating, CT - It is my understanding the numbered individual stores on this strip mall go from 72 to 80, and then increase beyond 100 as you go down to the end location, where the number on the building unit is 481 Electric Avenue. There was no lease or interior plan submitted with the application, but there is a reproduction of the Assessors card with a drawing notation made about where the property would be located in the strip mall, which is a higher numbered unit than 72 to 80. Can you make any clarification on that as far as the unit that you intend to locate in? – FH - We are working with a Realtor, I don't believe I've ever had any direct contact with the landlord. It was originally described to us as 481 Electric Ave. As I was preparing the Form of Intent we discovered that the property that we're interested in leasing is 72-80. CT - Am I correct in understanding that it would be the end cap unit? – FH – Yes CT - They're under a current possessory interest in the property? – Atty. Meixel - That's correct CT – Atty. Costa, could you give us an opinion on the standing and notice issue? – Atty. Costa - I'd concur that the standing issue is addressed, and that is typically the issue that is of greatest concern to zoning boards of appeal. In fact, the reality is in proceedings like these, standing is rarely an issue at all. Standing is most often a non-issue that is addressed by the courts. It's often raised for the first time before the courts and never before Zoning Board of Appeals. From time to time I have had applications before ZBA's were standing becomes an issue because an applicant can't establish that they have either the permission of the landowner or some form of possessory interest. Being a lease agreement, or a purchase and sale agreement. I would certainly caution the board that representations are one thing, but providing some documentary proof of a possessory interest is something different. The second issue is whether the notice is satisfactory, and typically in situations like this, the advice I'll give the ZBA is that it’s the risk of the applicant with respect to notice if proper parties don't receive notice through the permitting process and obtains a permit through that process, and then there's a later challenge, the fact that notice wasn't provided may expand the opportunities for challenges and the length of time within which the challenge can be raised, if there was an obvious error. So, if the address listed on the notice here were 1 Main Street, and the property was at 80 Smith St., those are entirely different properties within the community, and therefore there's an error in the notice. In addition, the Board may feel in that instance that there's a need to re-notice and not continue the substantive hearing. In a situation like this where the address and the notice is 72 to 80 Franklin Rd., it's possible based upon the markup of that assessors property record card. I would say two things. First is it sounds as if somebody was interested and curious about what the property was, and they put that information into your online GIS system, they would have been shown the entire area map, because that's the area characterized as 72 to 80 Franklin Rd., even if ultimately it includes higher numbered properties. So, I view this as the risk of the applicant and less of a concern for the Board. CT - Are you able to provide a copy of the signed lease to the ZBA, and I understand if, for instance, amounts or financial information are redacted. – Atty. Meixel - Yes. CT - By Monday, is that adequate time? – Atty. Meixel – Yes MM - What is the address? – FH - 481 Electric Ave. CT - I'll note that having looked it up the 481 Electric Ave. that you referenced in the beginning is not a property that comes up on the assessors GIS records at all. So with those preliminary matters having been discussed, I think the issue has been raised and the public has been made aware of the issue, as well as any rights they may choose to exercise under that issue Attorney Jill Brenner Meixel - On December 4th of last year, Spectrum filed a form of intent seeking to use the property at issue to operate a medication assisted treatment substance abuse program, which has a primarily educational use. The services that will be provided at this property will replace Spectrum’s Leominster facility location, which was destroyed by flooding in September of 2023. CT – Do you have any knowledge what is the extent of the destruction? From the exterior, it doesn’t seem as though there is any visible damage – FH – From the river or a brook that’s about ten feet behind the location, controlled by a dam, which burst and the water had to come out, about four feet high. It came through the front and back door, making the space inhabitable without a major renovation. CT - Was there any attempt to relocate within Leominster? – FH - We were unable to find a suitable location in Leominster, and we identified this site. Atty. Meixel – Further to that point, many individuals who are receiving services in Leominster that are now, traveling to Worcester for those services, who are Fitchburg residents. So, there's a serious need to get this program up and running as soon as possible through this appeal. Spectrum appeals the acting Building Commissioner’s zoning determination issued on December 7th, determining that Spectrum must apply for a special permit and a site plan review because it is classified as a medical treatment center / facility / clinic; under the Fitchburg Zoning Ordinance. The decision was an error and it should be reversed. The proper classification for the property’s use is Exempt Use; Educational. As is protected by the Dover Amendment, which is Mass General Law Chapter 40A, Section 3, which allows nonprofit educational organizations to be exempt from otherwise applicable zoning bylaws. Thus, our position here is that no special permit is required. 2 Spectrum’s use for the same type of program has been classified as an Educational use, exempt, on many occasions, at least five of which have been resolved in court. I understood from the audience that’s surprising that this is classified as educational. Education isn't simply a traditional education where children go to school and sit in the classroom, the definition of education has been very broadly defined by the courts in Massachusetts. Spectrum is a private, not-for-profit educational organization dedicated to improve the lives of individuals impacted by addiction, and or mental illness for more than fifty (50) years. It has developed a continuum of substance abuse and mental health treatment services throughout Massachusetts, and has served thousands upon thousands of patients each day. This continuum of care is very broad. It includes inpatient detox, residential treatment, medication for substance use disorders, outpatient counseling, peer recovery support, among other things. The cornerstone of Spectrum's program is abstinence from drugs, alcohol and the promotion of social norms and behaviors. Spectrum has the goal to improve each client's quality of life and functional abilities by teaching them cognitive and behavioral skills that will assist them in returning to a healthy and productive lifestyle. As I mentioned, Spectrum seeks to operate a medication assisted treatment program, of which it presently operates approximately twelve, so this would be the 13th. Spectrum operates this program pursuant to licensure by the Department of Public Health, and this program has proven to be very effective for persons who are experiencing opioid use disorder. Now, this specific program, highlighting the educational use, Spectrum's program is centered on educational content, which satisfies the educational purpose requirement of the Dover Amendment. The program's primary goal is education for participants to learn real life ways to help them lead a productive, healthy, social life, free of alcohol and drugs, without crime, and to teach patients cognitive and behavioral skills. Medication dispensing by a nurse occurs only in designated morning hours, between the hours of 5:30 AM and 10:30 AM, which takes about two minutes. It's very quick. I also will highlight that recently there was a change in federal regulations which will allow more participants to take the medication at home. So, that will limit even further the two minutes per patient to provide the medication. In addition to that, each participant in the program receives between 2 1/2 to five hours of education and behavior modification each week through groups and counseling. Classes that the individuals will take which will be in a classroom with about 15 seats in it. Which educates them on what to expect during the process of their treatment and education. Participants can choose from either one, two or more educational programs that they think would help them the most, Those include, for example, overdose prevention, parenting , job readiness education, life and recovery skills education, and relapse prevention education among possibly others. The program will serve approximately 200 to 250 clients, with approximately 70 per day. Now, as to the Zoning bylaw and why it should be classified as educational exempt, and not as medical. Spectrum’s principal use is an exempt educational use under Section 181.313 on the Table of Principal Use Regulation, Section B. The primary use includes the onsite dispensing of medication as a form of treatment, and here the primary use is not the medication. Participants are receiving medication, but the primary use and the bulk of their time is spent receiving education that will allow them to return to society without addiction. The medication is a very small part of that. I will note without going through all the cases that the courts have come down in over the years, that programs which seek to provide life skills, training classes or education relating to addiction, these are outside the scope of a classic education. Sitting in a classroom with a whole bunch of people for 8-hours a day constitutes an educational use. I'll just point out the Fitchburg Housing Authority case; In that case, the Supreme Judicial Court determined that the use of a facility was for an educational purpose. There are many other cases that have come down in recent years, including the recent case of McLean Hospital versus Town of Lincoln in 2019, which made it very clear that because you're receiving a medication as part of the program, doesn't transform the program automatically into being a medical program. In other words, a program doesn't lose its primary educational purpose when particularly competencies taught may also be therapeutic or rehabilitative, et cetera. There was Regis College versus Town of Weston, Congregation of the Sisters of Saint Joseph of Boston, and many others which have described educational uses in a very general broad and comprehensive way. 3 CT – One of your initial letters to the City cited a case in which you sued a city that denied the request for a permit and received a judgment of $100,000; that was in your initial communication. Atty. Meixel – Correct, and that was the Pittsfield, which was also a non-residential program that Spectrum was trying to establish in that city. The court affirmed the Dover rights and as a result, the city paid Spectrum $100,000 to resolve the ensuing litigation. We've litigated in Lawrence in 2015, and it was found that substance abuse treatment centers qualify as educational uses under the statute. In Framingham in 2001, the Land Court specifically ruled that a program operated by Spectrum providing drug treatment services is an educational use covered by the Dover amendment. Another case in Weymouth, in that case injunctive relief was granted. Finally Haverhill, which was also a non-residential facility in that the parties reached agreement on Spectrums operation of a drug treatment program. So, there have been many matters litigated in court, settled outside of court, et cetera. In closing, I would say that it's very clear that the Dover amendment applies and that this use warrants coverage as an Exempt Use, Educational, under the Fitchburg Zoning bylaws, this is not a medical use, and therefore a special permit and a site plan review should not be required in this instance. CT - Two questions. Do you still contest the Site Plan Review is not required whether or not you are considered an exempt use? – Atty. Meixel - There are 7-areas that Dover prescribes that can be reasonably regulated, and I believe that the only one that would be applicable here is parking. CT - That's for the Planning Board to determine, don't you think? – Atty. Meixel – Yes Madam Chair, the Planning Board can regulate the seven areas of reasonable regulation established by Dover, so they can do a limited site plan review so long as it focuses strictly on the areas of permissible restriction under Dover. CT - Going through the cases that you cited, and which court made the decision. In the Pittsfield case, which court? – Atty. Meixel - I don't know that off the top of my head, but I can certainly look. Acting Commissioner Zemel - A point of clarification about this, the original form of intent which was submitted for this is FI-23-262. The scope and narrative of that form of intent was to retrofit an existing retail space for use as medical assistant therapy clinic, and made no mention whatsoever of educational use. So, that is what the zoning determination was based upon. CT – Now, going to the public comment, please note for the record that the majority of persons present raised their hands in opposition to this appeal, and no hands were raised in support. Which were about 27- individuals, see exhibit “A” Jacquelyn Wehtje Fitchburg resident - Spectrum is claiming the right to locate in Park Hill Plaza, because they are an educational institution. I checked the site of the accrediting body of New England Association of Schools and Colleges, they are not listed. The National Association of Independent Schools directory, they are not listed. Next, the Department of Elementary and Secondary Education Schools page, as I found no active listings. Spectrum isn't listed on any of these places because it's not a school. According to their own website, Spectrum is a health system. They are accredited by the Commission on Accreditation of rehabilitation facilities; Spectrum is misrepresenting itself and in their appeal documents, is also trying to bully the city into accepting this clinic by writing about how they sued Pittsfield and other communities. They don't live in Fitchburg, and they don't care what city residents want. We already have a methadone clinic. Why don't they put this somewhere else? Because they don't want it in their backyard, they want it in ours. When you touch someone without their consent, it's an assault. This is the property equivalent of an assault on our community. History shows us that the appeasement of bullies is poor public policy, while Spectrum isn't an educational facility. There is a legitimate school we should be considering in these discussions, Memorial Middle School, and this proposed clinic is too close to that school. Please vote no on this appeal. Amy Green, Fitchburg City Council. I would like to know specifically what demographics data that you pulled from the clientele that you plan on assisting at Park Hill Plaza, that the existing facilities in Fitchburg are not meeting the needs of the patients that you plan on serving. The fact that your own statement said that the people from Leominster now have to be transported to Worcester, I find that hard to believe, with 4 again Fitchburg having seven facilities that offer services. Comprehensive Treatment Center on Airport Rd. LUK on Day St. Counseling and Assessment Clinic on Summer St. and Electric Ave. Community Health Link on Nichols Rd. LUK on Westminster St. and Health Alliance Rehab. Spectrum at 40 Spruce St. in Leominster hours of operation were Monday through Sunday, with dispensing between Monday and Saturday from 5:30 AM to 12:00 noon. I find it ironic that Mayor Mazzarella, as great as he is, can't find you a space in Leominster. I do have to mention that if you indeed wanted to be community partners with us here in Fitchburg, what you should have done was implement community engagement, better implementation with transparency and trust, careful planning and preparation, inclusion and demographic diversity, collaboration and shared purpose. The fact that you didn't even go to any of our seven other facilities that offer the same or like-minded treatment is disrespectful. I find it interesting that, if the dispensing time only takes 2-minutes, how much education is actually being offered? I'd like to also know through the other 14 facilities that you operate in Massachusetts, what is your rate of doping while dosing? Brian Rufiange, Fitchburg resident - my concern are the several schools in the area, Memorial and Reingold School down the street. Also, the football field where kids play all times, a driving school, a Karate school in that same development; to me is very unsafe for the children. Property values will most likely decline in our area, this clinic shouldn't be located this close to residential settings. Laurie Grover, Fitchburg resident - I was a registered nurse and worked in the health for four decades, experience in mental health and substance abuse. I'm concerned about #1. The recidivism of addicted individuals is extremely high. It leads to a concern about, if they don't take their medication at the facility and if they take it home, whether it's going to be sold, if it's going to be sold in the community. #2. People who take drugs and alcohol or have addictive issues also make poor choices. I'm concerned about the addicted individuals making poor choices so close to a middle school. I don't want my grandchildren exposed to that kind of potential detriment, it’s not a good choice of environment to the children Jason Andrews, Fitchburg resident and also President of the youth football and cheer in Fitchburg - We have just doubled our enrollment in that field directly behind where they proposed to put their treatment facility. I think that's extremely dangerous. It's in poor taste of them to name the lawsuits that they brought against other towns. I noticed they didn't bring a lawsuit against Somerville or Cambridge or Natick or any of these wealthy towns. I have a huge problem with that, specifically since I teach kids every day, I teach them how to play football. My coaches teach them how to cheer, we teach them how to be good community people. I don't think they're teaching these people in the right environment to get them back to a productive position in society. I'm worried about my property values; I've spent more than $150,000 on my house to improve it. I think it's insensitive of this organization, who's coming here to make money. Tasha Hill, Fitchburg resident - I firmly oppose placing a methadone clinic in Park Hill Plaza. Park Hill Plaza has many family-oriented businesses. If this facility were to be placed there; we would undoubtedly see an increase in loitering and soliciting. Many residents will feel uncomfortable and unsafe visiting the surrounding stores, and as a result, these businesses will suffer. Another concern is the anticipated influx in traffic, which will increase the potential for pedestrian and vehicular related accidents. Most importantly, the placement of this facility will put children who walk to and from school at risk, and exposed to and potentially harmed by used needles. We strongly urge you to put the safety and concerns of the surrounding community, above all else, when making your decision today. Sally Cragin, Fitchburg City Councilor at Large - I am opposed to this petition. I agree with everyone who has spoken, and I'm very surprised that the city of Leominster was not able to find an appropriate venue given the number of malls, vacant storefronts and business spaces not near residences and especially not near middle schools. I think anyone who wants recovery absolutely should be helped on that journey, but not at Park Hill Plaza and not within walking distance of a youth football field, a middle school and residences. 5 Jaime Andrews and I live in the city of Fitchburg - Currently my 20 year old son is an inpatient due to cocaine. I understand the need for these types of facilities, but this isn’t the right location. In addition, to be bullied and say that it’s educational. How are you getting paid for this? Are you being reimbursed by medical insurance? Are they paying out of pocket? Or are you doing this out of Spectrum’s cash flow to be used as educational? I'm afraid for my child to walk there now. And I believe Spectrum does get reimbursed by medical insurance for these services. Shelton Dobson, Fitchburg resident - I am a person in long term recovery. I've been clean and sober over 33 years, started out in Alcoholics Anonymous, Narcotics Anonymous. I still go to meetings. I live in that area and I walk my dog, and if I had a penny for every needle that I picked up in that area in the last few years. That is something that should be looked at very thoroughly, not just for the financial aspect. I want to share something with you, I respect them, but you cannot treat a drug with a drug. What you're doing is making sure that money is keep rolling in your pocket. I oppose this 110%; I'm 66-years old, and still going to recovery meetings. Lisa McMaster - I'm from Fitchburg and I'm please asking you folks not to vote for this. I have empathy for these people, and it's a growing problem. It's also a big money problem that people are getting money from, but there are spaces in Leominster right over Brady’s, right down the street from you, and the mall that has nothing in it with easy access to Routes 2 and 190. I was offended by the lawyer telling us about all the lawsuits they had, it's not about the lawsuit. It's about being moral, and decent, and we don't want it in our city. We are tired of people dumping in Fitchburg. Council DiNatale - It's clear to me that the Dover amendment is being abused by these agencies, because the Dover amendment is very vague. There is no specificity of what an educational use is. So, what these organizations are doing is, they're hiding behind it, and they're threatening communities, as you just heard earlier, if you don't approve this, we're going to sue you. Well, that's a willing partner that you want to have in your city, isn't it? Let's be honest, the patients going to this organization are not going there to learn. They're going to get weaned off of these drugs, and that is the use of methadone. In order to get that methadone, they have to attend these courses. If they don't attend, they don't get the methadone. Obviously, to get off heroin, you need the methadone. So who's kidding who here? This is not an educational facility, if you go on their website as I'm reading it right now, every word you read is medical. Doesn't say anything about education, it has a 20-page flyer that you can download on a PDF about all of the drugs that they deal with in order to wean people off of substance abuse. Medical insurance companies are paying for this. Jean Raobe - I live in Fitchburg, over 40-years, drug free. I went through a program where I spent a year, and they trained me to go out and find a job and get off drugs. They're going to give methadone or suboxone, both of which cause severe problems on your teeth, rots their legs, body, and they cannot just get off of it. Who regulates how much they get of these drugs are the patients themselves. Melissa Gonzalez & Luoskely Quintero, business owners on the plaza (485 Electric Ave.) - We have a small family salon, the logistics of the location was not fully thought through as people have mentioned about schools or businesses. This clinic is going to be two doors next to us, their patients will line up in front of our door. We don't want this. Paul McNamara, Fitchburg resident - I'm here to speak on ZBA 24-2. My background is in Traffic Safety, I've been qualified as an expert in collision analysis and crash reconstruction by the Massachusetts Trial Court, both Superior and District Criminal and civil bench and jury sessions. The proposed location of the business within Park Hill Plaza creates potential safety concerns for the patrons of not only the proposed business, but the pedestrians and motorists utilizing the services of current and future Plaza occupants. Currently, no public sidewalks exist on Franklin Rd. or Rollstone Rd. on the Plaza side of the roadway. 6 There are no public crosswalks to cross the public roadway to allow safe passage for pedestrians, bicyclists and other vulnerable roadway users. My concern for the patrons of the proposed is that they'll be placed in harm's way, and I would suggest that a stipulation of any business of that nature being placed in the Plaza be that a Traffic Safety plan in conformance with the Manual on Uniform Traffic Safety Devices be submitted and adhered to. Also, the creation of sidewalks for the safety of pedestrians, with crosswalks and pedestrian hybrid beacons, in accordance with the Manual on Uniform Traffic Control Devices, and if you approve this a traffic pattern in the Plaza to be laid out in accordance with the MUTCD to include a certified Traffic Safety engineer to prepare a parking plan. Mike Bursch, Fitchburg resident - My point is, if the commissioner said what they put on their application versus what they said are two different things. The lawyer coming out with the bully tactics, and I think that it's wrong, the fact that they can sit here and lie to us, is unbelievable to me. I agree with Marcus DiNatale, we're sick of being a dumping ground. Laura O’Kane, Fitchburg resident - I want to say that this is an inappropriate use in a neighborhood shopping center. We've invested heavily in our properties to see this type of use come in is disrespectful; this is a neighborhood center. Robyn Perla, Fitchburg resident - I sympathize with families struggling with addiction; I myself have a family member who goes to the methadone clinic on Airport Rd. Approximately 8 or 10 years of this educational treatment, and she still is on treatments and it's not educating at all. Having that experience, I saw the foot traffic that Airport Road has and I see the traffic of children who walk by my house every day. It's not fair to them or the community. So, I had to speak out against it. Bruce Cody, Fitchburg resident - I'm confused. When this meeting started this lady here made the statement that this place is an educational use and not a treatment center. We listened to 10-minutes of her dissertation and all I heard in there was that they're going to be distributing methadone, drugs or whatever it is. So, to me this isn’t an educational use, it is a treatment center. In opposition and take your business somewhere else. Laurie Barrows - I've lived in Fitchburg, I've owned a business for 30-years in different locations. Park Hill Plaza is very flourishing and we need to keep it that way. Heather Root, Fitchburg resident - I have a clarifying question. They said they're not-for-profit, but the Dover amendment is for nonprofit. Those are two completely different organizations run differently, so I don't understand how they're getting in under that. David Landry, Fitchburg resident - A couple of notes: We're talking about 200 to 250 patients weekly that was stated, 70 a day. We're talking about bringing 70 people a day; it’s going to overwhelm the system traffic wise. The primary use is a medical dispensary, if you eliminate their distribution of medication they become an abstinence-based program. Unfortunately, with opioid addiction, abstinence-based addiction programs are about 99% ineffective, so you have to be passing out drugs daily to these people to be effective. CT – We have received a couple emails. From Carrie Harris and Barbara Vosberg of 309 Teresa St. – Please see Exhibit “A” CT - We are going to bring the public comment portion of the meeting to a close, but I had asked about which courts had made those decisions. – Atty. Meixel - The Lawrence matter was in Lawrence Superior Court. Framingham was in Massachusetts Land Court. Weymouth was in Massachusetts federal District 7 Court. The Pittsfield was in Massachusetts federal court, at the district level. Haverhill was in Suffolk Superior Court. CT – Now, I’m going to ask you to respond to some questions from our members of the public. Do you have any educational accreditation or certification? – Atty. Meixel - Spectrum is not a traditional educational organization like a school. However, they are an educational organization as referenced in the Dover amendment, and as further delineated by Massachusetts case law. They're not accredited by the school system. However, that doesn't disqualify them from qualifying as an educational organization under the Dover amendment. CT – So, would it be fair to summarize that answer as - Accreditation is not required, but you don't have accreditation from an educational entity? – Atty. Meixel - That is correct. CT - What are your sources of payment for the services you render? – KO - State funds and insurance. CT - Is it solely DPH or is there another state entity that renders payment? – KO - Insurance companies, DPH and South Bay. CT - What measures were taken to monitor and regulate medication for the patients/participants? Who prescribes, monitors whether it's taken or not and its effectiveness and who authorizes, increases or decreases in levels – KO – A physician, a medical provider being a mid-level or a physician is who we staff to do monitoring of the dosing and they're the ones that make the final decision. As far as the security of the medication, we have a DEA certificate. They monitor the supply of the medication, and they often come in and do audits unannounced. CT - Any clarification on the question about not-for-profit versus nonprofit? – Atty. Meixel - They are the same thing. CT - You're basing that on a state statute. – Atty. Meixel - It has the same meaning, Spectrum is a nonprofit, or not for profit organization. It's a charitable organization. That is one of the several reasons why it qualifies for protection under the Dover Amendment CT – 501(c)3 status? – Atty. Meixel - Correct. CT - The Building Commissioner indicated that the original form of intent that was submitted referenced only a medication treatment facility. Would you like to address the difference between your form of intent, and the subject matter of the appeal? – Atty. Meixel - The facility that we seek to operate is not a medication assisted treatment center, just because it has the word “medication” in it doesn't mean that it is not primarily educational in nature, which is a factual matter and a legal matter CT - We do have that definition within our ordinance, medication Assisted treatment center. – Atty. Meixel - I don't believe it defines medication Assisted treatment center. I believe it defines Medical treatment center / facility / clinic, which definition requires that the primary use includes the onsite dispensing of medication as a form of treatment as the primary use. So, our position here is it's not the primary use. CT - Similar but not the exact wording of the term that is in the ordinance. JR - How do you respond to the opposition as you heard it tonight about location? – Atty. Meixel – Often times there is a false perception, that people who are seeking treatment or seeking recovery services are criminals or are going to cause some danger or property values will decrease. These are all arguments, but from our perspective, that’s not true. We're here to provide a helpful service; help people who are in recovery, and disabled individuals, unfortunately, these are stereotypes. You can't treat people who are disabled differently than people who are not disabled, and when we get into the business saying this use can be here and this use can't be here. And the use that we're prohibiting is the use that is servicing disabled people who are in recovery, that's when we encounter big problems. JR - Is this the only property that you're able to find? Are there lots of options? Why is this one the best one? – Atty. Meixel - We shouldn't be told where we can and cannot operate. – FH - I've been involved locating several sites including the Leominster site, and there's certain requirements to operate our business. We need parking for our staff and clients, public transportation and certain spaces are too small or too big. The space here being on an end cap, it seemed to be a space that would work well for us. 8 JR - In terms of the clientele, that would be in the program. How would you characterize what stage of recovery they are typically in? – KO - It varies, we have people in early recovery and we have people in long term recovery that continue to receive medication. JR - In terms of the different stages of recovery they are in. How a day works, is it all folks that are longer in recovery that might come in later, and those are in early recovery might be a little bit more needy for the for the medication? How does it work? – KO - Primarily the 5:30 AM folks that come in work, and that's why we open early, to accommodate them. We also offer the educational classes as early as 6:00 AM so they can go to work after. JR - Off of your experience, would you characterize any part of the clientele coming in, as having some risk of triggers? And if so, does this location help or not help with that type of concern? – KO - We provide educational groups that help the client to identify those triggers, and we also provide education on how they can deal with them and remain free of illicit substances. Acting Building Commissioner - I wanted to make a point of clarification. I did not deny the application. What the determination was, that a special permit is required from the Zoning Board and a site plan approval is required from the Planning Board in accordance with the information that was provided about the use. It is an allowed use by special permit from the Zoning Board in a commercial district, which is regulated under the zoning ordinance. In addition to being the acting Building Commissioner, I do possess both a master's degree and a doctorate in public health. So, I understand and have been pretty well read on much of the literature on the effects on some of substance use treatment. I'm very sympathetic, and I've advocated for substance use treatment in many communities and I am very much an advocate for getting people treatment. JB - I'd like to say, we have gone far and wide from what we're here for. What we're here for is to find out whether or not these people need the special permit as Mr. Felix said. All the information that we received is great, but it's not what we're here for. We're here to see whether or not the Building Commissioner was wrong or not. RT - As an educational facility. You refer to your clients as patients, not students. – KO - We refer to them as clients. RT - Are they being treated? – KO - They're being educated and as part of the toolbox to recovery, medication and education is part of that. RT - You are going to offer the same services at Leominster did? – KO - Yes. RT – So, of those five services you guys list on your website, only one of those lists an educational purpose. – Atty. Meixel - You have to look at the overview of the services that are being provided, all separate from what the website says, the services are primarily educational based on the overview. MM - One of the paragraphs in the presentation that was provided to the Board, it was with respect to reasonable accommodation and modification. Within that, there were several cases that you noted. Casa Marie versus Superior Court and then Oxford House versus Town of Babylon. Were those cases heard in Massachusetts? – Atty. Meixel – The Casa Marie case was the First Circuit case, so it was heard in the Circuit Court of Appeals that Massachusetts is a part of. Town of Babylon, is Eastern District of New York, is an out of state case. MM - How was the business was conducted in Leominster? What were the classroom hours? – KO - We begin at about 6:00 AM, and we offer classes until probably 7. Very minimal classes in the evening, most of our classes are early morning. That's when our clients prefer to come in. MM - From 6:00 to 7:00 PM when were the classes? – KO -I don't have the Leominster schedule in front of me, so I wouldn't be able to tell you the exact schedule in Leominster. MM - Classroom environment, Is there any testing required? – KO - No. MM - Are the teachers certified, or are there any specific qualifications they need? – KO - A master level clinician. 9 MM – From 5:30 to 7:00, what hours did you dispense medical treatment? – KO - 5:30 AM to noon. MM - Nothing between noon and seven? – KO - No. MM - What happened in the business during those hours? What did you offer? – KO – Education. MM - But you're not sure of the schedule? – KO - I don't have that specific site schedule in front of me. MM - How many teachers were at the Leominster location? At any given time or during the week. – KO - I would need to double check that, but I think 5 to 7 MM - Every day? – KO - Yes. MM - During an 8 hour period? – KO - Some flex are on scheduled to come in early, and then some would come in later. MM – So, during any given day there are five master clinician teachers on site to assist the clients? – KO - Yes. CT - How are the clients referred to you? – KO - Various pathways to treatment, but most are self-referred. CT - What percentage of your clients do not receive methadone, Sub Oxone, or some other medication? – KO - In Leominster None. CT - How many locations do you have, which do not administer methadone, Sub Oxone, or some other medication? – KO - We offer inpatient services, and we have programs on the inpatient side that do not offer medication, but all our outpatient facilities offer Medication assisted treatment and education. CT - What is the percentage of clients who are able to, through your efforts, stop using Methadone, Sub Oxone or some other medication within a 2-year period, or within any other statistical time period that would be relevant to the question, that would be fine? – KO - I don't have statistics in front of me, but there's different pathways to recovery. Some people receive medication education for the short term and they move on, and other individuals that need to be receiving ongoing medication and education in order to sustain their recovery. CT - Can you tell me, to the extent that you know, the full list of medications or other medical devices that are planned to be kept on the location? – KO – No, I could probably get that for you, but medications, would be methadone, Buprenorphine and Naloxone, which is given through a prescription. CT – Are there medical devices such as emergency resuscitation equipment or other emergency response equipment? – KO - An AED machine. CT - What would be the response if you had a client come in who was experiencing a medical emergency? – KO - We would call emergency services, we'd call a code, the nurses would respond and we do our best until emergency services arrived. CT - What is the minimum medical qualification of a professional at your facility? Is there a physician present at all times or on call? Is there a nurse or a nurse practitioner present on all times or on call? What's the minimum qualification present at all times of operation? – KO - A physician is on site once a week or a medical provider, there's also mid-levels. A medical provider is on call 24-hours a day, and a licensed practical nurse at our end. CT - Are you willing to locate at this facility without being able to administer methadone, Sub Oxone, or some other medication? – Atty. Meixel - That's a critical part of the program. CT - One of the cases mentioned, and well known to the City, is the Fitchburg Housing Authority case. I’m going to read a quotation from the case, which is at page 289 of the decision, from the deciding court, which is the Supreme Judicial Court, which discusses application of the Dover amendment. “Because the statutory purpose of preventing local discrimination against educational uses is only furthered if the intended use of the land is in fact educational, the term educational purposes should be construed to minimize the risk that the Dover amendment protection. Will improperly be extended to situations where form has been elevated over substance.” Would you like to response regarding your program? – Atty. Meixel - In Spectrum's case, we're certainly not using the Dover amendment in an improper way. In fact, Spectrum's use is specifically what the Dover amendment was used to protect, trying to help those who are recovering addicts to return to a healthy lifestyle and to be educated and informed. The use of medication is a small part of that process; we're certainly not abusing the Dover amendment in this use. 10 Atty. Meixel - In closing, I've made my arguments, and it's our position that a special permit is not required for the use of this property, and this property is an exempt educational use, as well having an educational purpose. Education is a critical component, and the primary component of the program. The dispensing of medication is a small part of that. There is significant authority out there, including the Town of Lincoln case, that makes it clear that because you dispense medication or engage in a rehabilitative purpose, doesn't mean that this takes a matter outside of the threshold of educational use. I would urge you to reverse the decision and determine that a special permit is not required, because Spectrum’s use of the property squarely falls within the Educational Use, Exempt provision of the zoning bylaws. Adam Costa, City Solicitor’s office - I've been present for the entirety of the proceeding tonight. First, I would advise you that there are certain things that were stated tonight, that probably aren't particularly relevant to the task that's before you tonight. For example, about what could have been, or what still can be in Leominster versus what is proposed in Fitchburg. What's before you tonight is not some proposal for what it is or what could have been in Leominster. I don't think it's relevant to the analysis you're being asked to undertake. In reviewing a determination made by your acting Building Commissioner, similarly things were said about the need, the perceived need, the actual need, the necessity of this sort of a facility in the city and then in this particular location within the city and the presence of other similar facilities within the community. The need for this sort of a facility is not part of the analysis in any of the case law that has been cited by counsel for the applicant. What is before you is an appeal to overrule the Building Commissioner’s decision. Under the Fitchburg Zoning Ordinance they are required to seek a special permit and site plan approval (those are two separate things) for the medication assisted therapy clinic use of the subject property. Due to the fact that Spectrum's proposed use, and their assertion of “qualifies as an educational use exempt”, and then it cites to the provision of the zoning ordinance. The claim is that this is an educationally exempt use, so what does that mean? We've heard a lot about the Dover amendment. The Dover amendment protects educational uses, religious uses, other institutional uses, such as agriculture. What does that mean exactly? Well, there is a body of case law; many were cited by counsel tonight, the more recent McLean Hospital case in Lincoln. One of the older was the Fitchburg Housing Authority case, from here in the city. It was a two-part test 30-40 years ago, and it continues to be a two-part test today. You need to determine whether this is an exempt educational use, and so you have to apply this two-part test. Part one, Is the program or does the program have an educationally significant goal? Second part, equally as important, Is the primary or dominant purpose of the program educational? Different terminologies been used, but that's the essence of it. Then I would urge the board to acknowledge that the definition of education is somewhat different today than it was 40-years ago. For better or for worse, traditional education is not all that the Dover Amendment protects. There are types of education that are not traditional, not schools, not colleges and universities; the example would be the Lincoln case. The Lincoln case involved McLean Hospital, hospital’s right in the word, which wasn't a methadone clinic and wasn't a drug rehabilitation clinic. It was a care facility for individuals with behavioral problems. And there was a therapist on staff, and they were able to persuade the court in that case, that they had enough of an educational component that it was the primary or dominant purpose of that program. They litigated all the way to the Supreme Judicial Court and that case was decided just four years ago. Conversely, we have other cases cited by counsel for the applicant like the Regis College case, as well the Whitinsville Retirement Society case, these are cases that are more recent. Regis was decided in 2012, Whitinsville, I want to say in 2010 maybe. It indicated here that a purely residential facility, which is what was being proposed, may not add an informal educational component merely as a smokescreen in order to obtain favorable protection under the Dover amendment. So in that case, there was an educational component that was alleged by the proponent of the use, but it was determined that was a smokescreen for what they were really doing. And what they were really doing was a residential use. And it didn't qualify for the educational exemption, because there was not a primarily educational use. So, it satisfied that first part of the test, but it wasn't the primary or dominant purpose. The Whitinsville Retirement Society case, there was an informal arts and crafts program, which did not render a nursing home educational. The court looked at that and said, this is a nursing home. A nursing 11 home is a nursing home. The fact that you're offering an informal arts and crafts program for an hour a day doesn't turn your nursing home into an educational facility. Yes, that's an educational component, but it's not the primary or dominant purpose. So, that's the law. You need to weigh that in light of that two-part test, and answer those questions. One final point about regulation. If it can be regulated, well then you can affirm the determination of the building commissioner. Therefore, this use is subject to a special permit and site plan approval. If you determine if the use is exempt, exempt uses can still be made subject to site plan approval. They're exempt from special permits; the statute says so. The site plan review authority can evaluate the bulk and height of structures and parking and things of that sort, but nevertheless it's still a non-discretionary site plan process that can be applied even to an exempt use. CT - I do think the first question we should examine addresses whether or not there's is an exempt use under the Dover amendment, and we need to discuss whether the program has an educationally significant goal, and that educational significant goal is the primary or dominant purpose of this facility. CT - Mr. Reynolds, you are a valuable participant in discussion, but we are up to five full members, so that you will not be voting on the matter. JB – A question was if they would be able to function or have their facility opened without giving any drugs. Her answer was no, because that's the heart of the program. Is education the predominant and the primary purpose? It is not, so in my opinion they need a special permit and a site plan review. RT - I agree with Mr. Byrne. BG – I also agree with Mr. Byrne. MM - The website predominantly refers to medical, that's a component that I was looking at. The Dover amendment has been around for a while, which is vague and broad. I think the intent around the Dover amendment was for truly a school type, university type and educational facility. Through the presentation tonight, there was some component related to education, but predominantly this is a dispensary. This is a medical facility, based on the presentation, and information has been provided to this board. CT - The applicant has a very important purpose, rehabilitating persons who suffer from any kind of substance abuse, to enable them to function. It is a valuable service to any community, whether it serves people in or outside the community. However, as we went through the application and the questioning tonight, we had a form of intent which was centered on medical treatment. We have personnel centered on medical treatment. We have a facility where no attendee is not receiving medication, and we have no willingness to locate without the ability to administer medication because that's the crux of the program. We do have some private payment which may come for any reason, but we have otherwise insurance and DPH payments. I agree that there is some education going on at this facility. I do not agree that it is the primary purpose. I also believe that the most appropriate description in the ordinance is medical treatment center, a facility that provides outpatient treatment whose primary use includes the on-site dispensing of medication as a form of treatment. In addition, I'm going to remind the applicant, and the public, that this use is allowable here by special permit and a site plan regardless of our decision. So, for those reasons I am inclined to find against the requested appeal. MM - Motion in the affirmative on ZBA-24-2 under §181.9222 & §181.313 to Approve the Appeal and OVERRULE the Building Commissioner’s Decision that a Special Permit and Site Plan Approval were needed, due to the fact that the applicant will conduct a primarily educational use, exempt from special permit under the Dover amendment, M.G.L. c.40A §3. JB – Motion Seconded 12 Voted 0–5 to OVERRULE the Building Commissioner’s Decision and therefore the Appeal is unanimously DENIED. MM – Motion in the affirmative on ZBA-24-2 under §181.9222 & §181.313 to Approve the Appeal to OVERRULE the Building Commissioner’s Determination that the applicant is a Medical Treatment Center, use, §181.313(D)17B on the Table of Uses rather than an Educational Use, Exempt use, §181.313(B)(2) on the Table of Uses. JB – Motion Seconded Voted 0–5 to Approve the Appeal to OVERRULE the Building Commissioner’s Determination, and therefore the Appeal is unanimously DENIED. 6. MISCELLANEOUS 7. ADJOURNMENT 13