Denied permit, agency files suit: Agency sues
Framingham Selectmen insist no discrimination
Sunday, May 21, 2006
Lisa Kocian 508-820-4231 Globe West
A social service agency that wants to build a school for youths with learning and mental health problems has sued Framingham, saying town officials discriminated against the disabled when they denied the facility a permit.

Wayside Youth and Family Support Network wants to build a school and six town house-style group homes for the students.  The Board of Selectmen last month cited concerns about traffic as it rejected Wayside's permit request.

Wayside filed a lawsuit last week in Middlesex Superior Court, contending that the board acted because of pressure from residents who didn't want the facility in their Lockland Avenue neighborhood.

"The decision was thus no mere legal error or excess of authority, but a gross abuse of power, disregard for settled rights, and acquiescence to and participation in" discrimination, Wayside attorney Kenneth N. Margolin wrote in the lawsuit.

Town attorney Christopher Petrini insisted the board had focused on traffic issues and rejected the discrimination allegations.

"Those are very inflammatory comments that Mr. Margolin has put forth to ratchet up what has been a difficult process," he said.

The lawsuit alleges that the town violated the US Constitution, particularly its guarantees of due process and equal protection; the federal Fair Housing and Americans with Disabilities Acts; and some state laws.

Wayside is seeking approval of the permit, compensatory and punitive damages for itself and for its clients who are experiencing a delay in service, and attorneys' fees.

In Massachusetts, specific dollar amounts sought by the plaintiff are typically not listed in lawsuits, but Margolin estimated that if the suit were successful the town could lose hundreds of thousands of dollars.

The board in its written decision denying the permit cited increased traffic and safety issues in the neighborhood near Route 9 but also emphasized that Wayside's refusal to agree to "reasonable mitigation" was a factor.

"This project would disrupt the traffic flow of the neighborhood, and adversely affect the safety of the neighborhood," said the decision, which was signed by a majority of the selectmen.  "Wayside has failed to demonstrate to the board a willingness to accept meaningful mitigation of the safety risks as a condition."

Wayside had offered to pay about $128,000, but the board said the work that the agency proposed to accomplish with the money would be "inadequate."

The Wayside complaint argues that the town has never before denied the particular type of permit Wayside was seeking (a public way access permit), and that the town has never placed major conditions on such a permit.

Wayside also argued that selectmen wanted to please constituents who didn't want troubled teens in their neighborhood or to at least "extract as much money as possible" from Wayside.

Petrini said he wasn't sure the town had never rejected such a permit.  He emphasized that Wayside had "adamantly refused" adequate mitigation, which was pegged around $400,000 by consultants and the town's public works director.

The bylaw allows selectmen to reject the permit for that reason, he said.

The proposed facility would house 72 adolescents, most of whom would attend school on the campus; another 15 day students would also attend the school, said Margolin.

The students would have special education needs and would have diagnoses that might include attention deficit disorder, social anxiety, obsessive compulsive disorders, schizophrenia, Asperger's syndrome (a form of autism), or dyslexia, according to Wayside's complaint.

"Wayside students and clients are not sent to Wayside as the result of adjudication through the juvenile justice system," the complaint said.  "Many of the students have themselves been the victims of physical, emotional, or sexual abuse.  Wayside provides them with a physically and emotionally safe setting, in which to learn the skills necessary to succeed in their lives."

Tom O'Neil, an abutter and Town Meeting member, has repeatedly expressed concerns about the teenagers who would live there.

"I resent the fact that a facility like this can move in, drag down the value of property, and there's nothing I can do about it," he said.  "Would you buy a house with a building 10 feet off your property line that houses troubled youth?"

Still, he said, the neighborhood considers traffic concerns to be the most troubling.

Margolin said the traffic worries are nothing more than a smokescreen for worries about living next to adolescents with learning and mental health problems.

He said Wayside is committed to the location, particularly because the organization would likely run into similar problems anywhere else.

"It's sad but true -- human service organizations often run into opposition," he said.  "Wayside and its board of directors, they are not going away on this location."

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