Building boss says SMOC shielded by Dover Amendment Thursday, June 29, 2006
David McLaughlin 508-626-4338 Metrowest Daily News
FRAMINGHAM -- The town's inspectional services director said yesterday he would reject any request to enforce local zoning laws against the homeless shelter downtown, saying the facility is protected by state law.

Joe Mikielian, the head of inspectional services, said the Irving Street shelter falls under the so-called Dover Amendment, which carves out broad protections for religious and educational uses.

In a memo to selectmen this week, he wrote the shelter would violate local zoning laws if not for the Dover Amendment.  Because it does fall under the state law, Mikielian said he would not take action against it.

"I'm going to come back and be consistent and say, 'Yes, I believe they are covered by the Dover Amendment,'" he said.

His ruling that the wet shelter would violate local zoning rules could open the door to a town lawsuit against the controversial facility.

Because the use is not allowed in the central business district, a neighbor could request an enforcement action against the shelter, beginning a long legal battle to challenge its Dover Amendment classification.

"If there's a commitment on the part of the selectmen and the town to take this all the way through the courts, up to the (Supreme Judicial Court) level, there could be a chance, not a guarantee, a chance that we could prevail," said Town Counsel Chris Petrini.

In a memo to selectmen, Petrini said the highest court in Massachusetts has applied a "more robust test" of the Dover Amendment, ruling that a facility's "primary or dominant purpose" should be educational.

Mikielian ruled in 2002, when the shelter obtain an occupancy permit, that it was protected by the Dover Amendment.

Petrini said yesterday that selectmen could also join a neighbor in filing a request for enforcement action against the shelter.  Once Mikielian turns it down, they would appeal to the Zoning Board of Appeals.  The case could move on to the courts from there.

Selectmen Chairman Dennis Giombetti said Tuesday the board would talk about Mikielian's memo at a future meeting.  He could not be reached for comment yesterday. He has previously called for SMOC, the agency that runs the shelter, to close it.

Selectman Ginger Esty, a staunch critic of the shelter, said she would support a legal fight against its classification as a Dover Amendment facility.  The board, she said, should be involved instead of relying solely on a neighbor to file a complaint.

"Why don't we step up and do it?" she said.  "Why do all the legal opinions put the onus on the neighbors."

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