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THE STATE OF NEW HAMPSHIRE SUPERIOR COURT ABC Advisory Board v. Township of Templeton C-04-124 COUNTY, SS.

TOWNSHIP OF TEMPLETONS TRIAL BRIEF At the final pretrial conference held on January 21, 2004, this court directed the parties to brief and argue a single questionwhether RSA ch. 135-C pre-empts the Townships right to enforce its zoning ordinance against the plaintiff to exclude the operation of a private club within a retail zone. This memorandum addresses this single issue. As the Township understands ABCs argument, it consists of two contentions: First, that ABC is an agent of the state because it carries out the purposes of a state statuteRSA ch. 135-C. Second, that as a state agent acting under color of state law, ABC may organize private clubs for mentally disabled citizens and locate them wherever it pleases, whether or not a specific location meets local zoning requirements. In ABCs view, RSA ch. 135-C pre-empts local zoning law to the extent that there is any conflict between that local ordinance and any activity in which ABC may choose to engage. For the following reasons, this argument fails. Argument 1 The case law on which ABC relies does not apply because the establishment of private clubs is outside the mandate or intended scope of its enabling statuteRSA ch. 135-C. ABC relies on 2 cases: Northern N. H. Mental Health Housing, Inc. v. Town of Conway, 121 N.H. 811 (1981); and Region 10 Client Management, Inc. v. Town of Hampstead, 120 N.H. 885 (1980). These cases deal with two separate statutes, RSA ch. 135-B and RSA ch. 171-A respectively, but they have in common their material facts. In the Region 10 Client Management, Inc. case, a local agency acting on behalf of developmentally impaired persons sought to establish a group home in a residential neighborhood in Hampstead. In the Northern

N.H. Mental Health Housing, Inc. case, a similar local agency acting on behalf of mentally ill persons requested permission to locate a group home in a residential section of Conway. In each case, the local authority interpreted the town zoning ordinance to exclude group homes from residential neighborhoods. The New Hampshire Supreme Court reached the same result in both cases. In Region 10 Client management, Inc., the court relied on an earlier pre-emption caseCity of Portsmouth v. John T. Clark & Son, Inc., 117 N.H. 797 (1977). That case presented the question whether the City of Portsmouths zoning ordinance could prevent an agent of the State Port Authority from operating a state pier. The answer was no. The court noted that The New Hampshire State Port Authority is an agency of the state created by RSA ch. 271-A to perform certain legitimate state functions as set forth by statute. The functions performed by the defendant Clark & Son fall clearly within the scope of the port authoritys mandate. Id. at 888, quoting City of Portsmouth v. John T. Clark & Son, Inc., at 798-700 (emphasis added). Turning to the facts presented in Region 10 Client Management, Inc., the court implicitly found the establishment of group residential facilities for developmentally disabled persons to be a state function . . . set forth by statute, and to be within the scope of the . . . mandate of the New Hampshire Division of Mental Health. The court determined that the statutory scheme of placing developmentally-impaired persons in various locations throughout the State carries out a State policy that cannot be frustrated by local zoning restrictions. Region 10 Client Management, Inc. v. Town of Hampstead, at 888. The reasoning and the result in both City of Portsmouth and Region 10 Client Management, Inc. were sound because in both cases, the enabling statute clearly contemplated the activity or function in question. The port authoritys enabling statute, RSA ch. 271-A, expressly empowered the authority to operate state piers and to contract with separate agents to oversee such operations. RSA 271-A:3. Likewise, several sections of RSA ch. 171-A make it clear that the mental health division, acting through local agencies, is charged with locating and establishing residential placements for developmentally disabled citizens. See, e.g., RSA 171-A:5, :6, :9, :11 and :14. The second case on which ABC relies, Northern N.H. Mental Health Housing, Inc. v. Town of Conway, 121 N.H. 811 (1981), presents the same material facts as the Region 10 Client Management, Inc. case decided the previous year. The only difference was the enabling statute. In Northern N.H. Mental Health Housing, Inc, the local agency acted on behalf of mentally ill persons instead of the developmentally disabled, and proceeded under RSA ch. 135-B instead of RSA ch. 171-A. Otherwise the two cases are indistinguishable on their facts. In this second case, however, the town had the benefit of the courts opinion in the Region 10 Client Management, Inc. case, and argued that RSA ch. 135-B, unlike RSA ch. 171-A, did not mandate

the establishment of group homes. In responding to this argument, the court compared similar provisions in both statutes, and found that both enactments dealt extensively with residential placement of disabled citizens. In addition, and very significantly, the court pointed out that the mental health divisions authority under both RSA ch. 135-A and RSA ch. 171-A flowed from a separate statute, RSA ch. 126-A, which established what was then known as the Department of Health and Human Services. Section 39 of that statute, the court noted, provided that the director of the division of mental health and developmental services (the director) shall develop a statewide program of community living facilities for developmentally impaired and mentally ill persons. RSA 126-A:39 (emphasis added). Thus the legislature had stated in a statute, in the clearest possible terms, that the division was expressly charged with providing the kinds of community living facilities that the towns of Hampstead and Conway had tried to exclude. With this kind of statutory language on the record, the court had no difficulty in reaffirming its decision in the Region 10 Client Management, Inc. case and in reaching the same result in the Northern N.H. Mental Health Housing, Inc. case. These cases, Region 10 Client Management, Inc. and Northern N.H. Mental Health Housing, Inc., are the legal foundation for ABCs position on the question of pre-emption. Yet even a hasty review of the present case shows that the facts are dramatically and materially different from those in the cases on which ABC relies. In those cases, the very reason for the existence of the local agencies was to provide housing opportunities for persons who otherwise would be institutionalized. If the courts had allowed local authorities to control the location of such housing facilities, the enabling statutes, and their underlying policies, would not have achieved their purposes. ABC, in contrast, is a local agency involved in the general provision of mental health services under RSA ch. 135-C. Nowhere in that statute, however, does the legislature manifest any intention that such services shall include social clubs or private clubs. Nowhere in that statute is ABC charged with establishing or locating such clubs. Nor can the statute reasonably be interpreted to comprehend the establishment of such clubs. In order to even offer the argument, ABC must contend that the establishment and supervision of a private social club is a mental health service as that term is used in the statute. RSA 135-D:3. Yet the statute itself defeats the contention. Section 1 of the statute sets forth the purpose and policy of the enactment. 135-C:1 Purpose and Policy. I. The purpose of this chapter is to enable the division of mental health and developmental services to; a. Establish, maintain, and coordinate a comprehensive, effective, and efficient system of services for persons with mental illness.



b. Reduce the occurrence, severity and duration of mental, emotional and behavioral disabilities. c. Prevent mentally ill persons from harming themselves or others. It is the policy of this state to provide to persons who are severely mentally disabled adequate and humane care which, to the extent possible while meeting the purposes of habilitation and treatment, is: a. Within each persons own community. b. Least restrictive of the persons freedom of movement and ability to function normally in society while being appropriate to the persons individual capacity. c. Directed toward eliminating the need for services and promoting the persons independence. It is the policy of this state that mental illness in and of itself is insufficient to involuntarily admit any person into the mental health services system.

Emphasis added. This statement of purpose and policy clearly illustrates that the legislature was concerned with providing services that a mentally disabled person needs precisely because he or she is mentally disabled. The lawmakers wanted to make sure that adequate and humane care will be available as needed. That this is the thrust of the law is further demonstrated by the various other sections in the act. Section 2, which defines the primary terminology used in the statute, describes a Community mental health program as one that provides emergency, medical or psychiatric screening and evaluation, case management, and psychotherapy services. RSA 135-C:2 IV (emphasis added). All local programs are required, at a minimum, to provide such services. RSA 135-C:7. Treatment is defined as examination, diagnosis, training, rehabilitation therapy, pharmaceuticals, and other services provided to clients in the mental health services system. RSA 135-C:2 XVI (emphasis added). The division director is vested with authority to require community mental health programs to be accredited by the Joint Commission on Accreditation of Hospitals, or to be in the process of obtaining such accreditation. RSA 135-C:10. None of these cited sections of RSA ch. 135-C even suggest that a local agency such as ABC is charged with a duty to establish and run private social clubs. Such activities are simply beyond the intended scope of the statute. In attempting to accomplish an aim that does not come within the express mandate of its enabling law, ABC places its case well outside the cases on which it reliescases in which the enabling statutes expressly required the mental health division to engage in the very activity that the town sought to circumscribe by application of a local zoning ordinance. Argument 2 In the cases on which ABC relies, Hampstead and Conway attempted to frustrate the legislatures policy of deinstitutionalization. Had the towns won, they would have thwarted the overriding purpose of the enactments at the heart of Region 10 Client Management, Inc. and Northern N.H. Mental Health Housing, Inc.--to allow disabled

persons to live among the general population in their communities. In excluding private clubs from a commercial retail district, The Township of Templeton is frustrating no such public policy. Indeed the exclusion opposes no public interest or policy at all. As discussed above, the Region 10 Client Management, Inc. and Northern N.H. Mental Health Housing, Inc. cases differ from ABCs case in that RSA ch. 135-C carries no express mandate for the establishment and operation of social clubs for mentally disabled persons. This is not, however, the only distinction to be made between these 1980 and 1981 cases and the case now before this court. RSA ch. 171-A and RSA ch. 135-B were enacted to carry out a statewide public policy of deinstitutionalization. It was understood at every level of state and local government that if mentally disabled persons were no longer to live at the restricted state facility, they would necessarily have to live somewhere else. In RSA ch. 126-A the legislature voiced its intention that this somewhere else should be where non-disabled citizens reside. It was the legislatures wish that developmentally disabled and mentally ill citizens should have the greatest possible opportunity to mingle with non-disabled citizens and become fully-integrated members of local communities. No longer were they to be segregated from the community at large. The single most important vehicle for implementing the legislatures policy of community integration was the group home. In preventing group homes in residential neighborhoods, Conway and Hampstead attacked the then newly formulated statewide policy at its heart. It was true then, as it is true now, that mentally disabled citizens, because of their unique needs, must live in groups, under the on-site supervision of trained adults. Only by means of such homes can the policy of deinstitutionalization be effected safely and in a manner that makes any economic sense. If towns had been allowed to exclude group homes from residential neighborhoods across the state, deinstitutionalization would not have occurred. Finally, in excluding group homes from residential areas, the towns of Hampstead and Conway caused a disproportionate impact upon the disables, who because of their unique needs, are the very citizens who have need of group home living arrangements. ABC directs the courts attention to Region 10 Client Management, Inc. and Northern N.H. Mental Health Housing, Inc. and suggests that the same analysis and considerations apply to the present case. They do not. First, unlike a group home, there is nothing about a private club that makes it uniquely necessary for mentally disabled persons. Second, there is no aspect to a private club that renders it incapable of fulfilling its primary purpose if it is not allowed to locate in a business retail district. The plaintiffs members do not need to be located in a retail storefront in order to achieve any of the goals that their club may have. Third, in excluding private clubs from retail districts without a special exception the Township of Templeton has discriminated against no one. ABC will never be able to show this court that disabled citizens are disproportionately affected by such an ordinance. Though disabled persons certainly live in group homes in far greater numbers that do citizens at large, it simply is not true that because of their unique characteristics and needs, they form private social clubs in greater numbers than do non-disabled citizens. Finally, in comparing its case to those upon which it relies, ABC does a

disservice to those who litigated those cases back in 1980 and 1981. The group homes that fought the towns of Hampstead and Conway did so in order to obtain a basic right for mentally disable people that other citizens already hadthe right to live in a residential neighborhood. ABC is litigating its case for a much less laudable purpose. It seeks a right that nobody else hasthe right to have a private club in a business retail district in Templeton. There is nothing in RSA ch. 135-C, or in any other statute, that supports ABCs case. For all of these reasons, the Township of Templeton asks this court to find and rule that RSA ch. 135-C does not pre-empt the Townships right to require a special exception for a private club in a commercial retail district.

Respectfully submitted THE TOWNSHIP OF TEMPLETON By its Attorney

_________________________________________ James L. Burke