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Ken Margolin has counseled and represented a wide vari-

ety of human service organizations for more than twenty-


five years. Earlier in his career, he handled a series of
ground-breaking court cases that helped broaden the
rights of Massachusetts residents with mental retardation
a siting battle
and mental illness, to live in the community. Since then,
he has provided representation and counsel to dozens of case study for
organizations planning new programs in the community. Some of Attorney
Margolin’s cases include the Wayside case described in this book; judicial
invalidation of a law restricting funding to a program for adolescents with
non-profit
histories of sexual acting out; application of the federal Fair Housing Act to foil
a town’s efforts to limit the size of group homes with a restrictive definition of
organization
“family;” an amicus brief filed in the Supreme Judicial Court on behalf of
Massachusetts Association of Private 766 Schools, and Massachusetts Council board members
of Human Service Providers, in a decision preserving a broad interpretation of
the Dover Amendment; establishment, over concerted neighborhood opposi-
tion, of a hospice house for terminally ill senior citizens; a decision by the
Vermont Supreme Court, resulting in expansion of the rights to community
living for Vermont residents with serious mental illness. In addition to success-
ful court cases, he has helped many more clients develop strategies to open
their programs without litigation. In 2009, Attorney Margolin will be offering
to human service organizations, conflict resolution services, including the
design and implementation of conflict prevention and resolution systems. lessons from the field

©  Kenneth N. Margolin AN ABBREVIATED VERSION OF THIS BOOK


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    KENNETH N. MARGOLIN, ATTORNEY AT LAW
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a siting battle
case study for
non-profit
organization
board members

lessons from the field

AN ABBREVIATED VERSION OF THIS BOOK


WAS ORIGINALLY PRESENTED TO
THE NATIONAL COUNCIL FOR
COMMUNITY BEHAVIORAL HEALTHCARE
2008 ANNUAL CONFERENCE, BOSTON

K E N N E T H N . M A R G O L I1 N , A T T O R N E Y A T L A W
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L E S S O N S F R O M T H E F I E L D

Copyright © 2008 Kenneth N. Margolin


Law Office of Kenneth N. Margolin, P.C.
246 Walnut Street, Suite 101
Newton, Massachusetts 02460
617 641 6900

www.margolinlaw.com
margolin@margolinlaw.com

All rights reserved. No part of this book may be used or reproduced


in any manner whatsoever without written permission of the author.

Printed in the United States of America

ISBN: 978-1-59571-329-2

Designed and Published by:


Word Association Publishers
205 Fifth Avenue
Tarentum, Pennsylvania 15084
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K E N N E T H N . M A R G O L I N

THE PURPOSE OF THIS BOOK


The importance of Boards of Directors to the central mission of
human service organizations has been increasingly recognized by
professionals in the field. As the challenges to human service or-
ganizations become more complex, so do the responsibilities of
Board members become more sophisticated. Using a case study of
a respected non-profit corporation faced with a legal battle over its
plans for a new program, this book highlights some of the many
issues facing members of non-profit Boards of Directors. The case
study illustrates the over-arching need for Board members to re-
main informed and involved in their organization’s major plans
and decisions.

THE CASE STUDY


Why a Siting Fight Case Study?
Opposition to community programs challenges our organiza-
tions’ fundamental missions – to improve the lives of our clients.
The battles can be costly, time-consuming and demoralizing. Our
clients may be demonized and our organizations’ plans character-
ized as destructive to a neighborhood. In the end, when siting fights
cannot be avoided, they must be won, in a manner that preserves
the organization’s integrity and that allows for mending fences after
victory. Well-informed and strong Boards of Directors are critical
to success.

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The Wayside Case


In early 2009, Wayside Youth and Family Support Network, will
open a comprehensive campus program in Framingham, Massa-
chusetts. Wayside provides educational, therapeutic, and support
services to adolescents with significant learning and emotional dif-
ficulties, and their families. The campus will consolidate residential
and other services that are currently provided in more than a half
dozen separate locations. Integration of the continuum of services
provided by Wayside will be enhanced, with the added benefit of the
economies of centralization. The Wayside campus is the vision of
Wayside’s CEO, Eric L. Masi, aided by an involved Board of Directors.
Before it could break ground, Wayside had to fight and win two
lawsuits. The first lawsuit was initiated by a group of neighbors in
an effort to nullify Wayside’s building permit. The second was
brought by Wayside against the Board of Selectmen, who had voted
to deny the organization a permit needed to build the access road
into the campus.
Along the way to success, Wayside’s CEO and Board members,
grappled with many tough issues. The questions raised as develop-
ments unfolded were often challenging. The answers were not al-
ways clear. Wayside’s journey makes for an ideal case study, for the
nuanced issues and lessons it presents. The facts are therefore pre-
sented in considerable detail.

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The Legal Backdrop


Massachusetts has an unusual law called the “Dover Amend-
ment.” The law exempts non-profit educational corporations from
all zoning use regulations, allowing a program protected by the
statute to exist in any zoning district, including districts zoned for
residential use.
The Dover Amendment does allow municipalities to impose
“reasonable” regulations concerning “bulk and height of structures
and determining yard sizes, lot area, setbacks, open space, parking
and building coverage requirements.” Whether a regulation is “rea-
sonable” as applied to any given project is to be determined,
according to the Massachusetts Supreme Judicial Court, on a case-
by-case basis.
The town where Wayside purchased land for its planned campus
program, had an old zoning bylaw that was ambiguous and confus-
ing in sections apparently applicable to Wayside’s project. The Bylaw
also appeared to give the Town more control over Wayside’s project
than would be permissible under controlling appellate case law.
The Town also had a “Public Way Access Permit” bylaw, requir-
ing every major project developer (Wayside’s project was “major”)
to obtain a permit from the Board of Selectmen, in order to build
a driveway or access road from the developer’s private property to
the public way.
Wayside’s clients would be considered to have “handicaps” or
“disabilities” under the federal Fair Housing Amendments Act of
1988 and the Americans with Disabilities Act.

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The Saga of a Siting Fight


Wayside Youth and Family Support Network, Inc. is a Massa-
chusetts non-profit, tax-exempt corporation. The corporation has
an annual budget in excess of $20 million. Wayside operates day
and residential programs for adolescents with serious emotional
and learning disabilities. It also operates three outpatient mental
health treatment centers and extensive home-based programs. The
day and residential programs are located in various cities and towns
in the western suburbs of Boston.
Wayside’s CEO and Board of Directors determined that the or-
ganization’s clients could be best served, and the organization’s fis-
cal integrity best maintained, if its various programs were located at
a single campus-style location. The estimated cost of the project at
the time, was $17 million. Construction funding was secured through
a state-sponsored low-interest loan program. The bulk of the fund-
ing would be released once the organization secured all permits nec-
essary for construction of the facility and was ready to build.
The corporation embarked on a two-year search covering many
towns for an appropriate piece of land. Locating a parcel that had
sufficient acreage and suitable topography, that was within the ge-
ographical area served by Wayside, that was not in a commercial or
industrial area, and that was affordable, turned out to be a difficult
task. After viewing many lots and making unsuccessful offers on
two, Wayside was able to close on a 14 acre lot of land in the town
of Framingham, which was the town where Wayside was founded
and in which it had operated several programs for years. Two-thirds
of Wayside’s Board members lived in the town of Framingham.
Framingham, with a population of 65,000, is the largest town

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in Massachusetts. The town has a strong tradition of citizen vol-


unteers participating in local decision making. For decades, Fram-
ingham has welcomed a wide variety of tax exempt educational,
human service, religious, cultural and recreational organizations.
The tax base is a mix of residential and commercial uses. Framing-
ham, along with the contiguous town of Natick, is home to the
largest shopping area in the state, a series of giant strip malls which
cater to virtually any consumer need. While the malls are consid-
ered by some residents to be unsightly and excessive, they con-
tribute heavily to the town’s tax base. Also contributing to the tax
base are numerous national corporations that provide taxes and
jobs, and create as well traffic and infrastructure costs. The highway
system in Framingham, as well as in much of the state, has not kept
pace with development. The heaviest traffic, with frequent rush
hour bottlenecks, occurs along stretches of “Route 9,” the highway
from which the Wayside campus would be accessed. Framingham’s
population is diverse. It’s central location, wide range of housing
stock, and affordability relative to suburbs closer to Boston have at-
tracted young families, white collar professionals, and a significant
blue collar population.
In addition to being located in a town with which Wayside had
a long and friendly relationship, Wayside administrators consid-
ered the land it purchased to be ideal for its campus. It was large
enough to allow for the desired building, with adequate parking,
while retaining trees, greenery, and buffering from the street and
abutting neighborhood homes. The program would be accessible
by public transportation, was close to the Massachusetts Turnpike,
and was just off Route 9, a major east to west roadway. The land

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had been used some years ago as a sand and gravel pit; there was fill
material and some construction debris (e.g., bricks, wood, and con-
crete), beneath the site. A wetlands, known as Sucker Pond, bor-
dered the site. Wayside committed to the local and state
conservation agency to stabilize and clean the unsuitable materials
before breaking ground, thus improving the site environmentally.
After it purchased the land, Wayside embarked on a series of
meetings with town officials designed to explain the program and
to ease the way for the anticipated building permit when Wayside
was ready to begin construction. The meetings continued for many
months with no commitment from the town that Wayside’s build-
ing permit would be granted. Wayside agreed to downsize its orig-
inal plans by locating its mental health treatment center off-campus.
In a further show of good faith and commitment to the town, Way-
side volunteered to pay $300,000 to the town for sewer improvements.
Wayside administrators understood from certain town officials, that
$28,000 of the $300,000, would be used toward roadway improve-
ments in the immediate vicinity of the campus.
As Wayside announced its plan to locate its campus in Fram-
ingham, several potent economic, political, and social develop-
ments that had been percolating beneath the surface emerged into
often emotional public discussion. At the same time that state rev-
enues were falling, Framingham faced the reality of little land left
for development. Given the significant acreage devoted to tax ex-
empt state and local parks, schools, colleges, religious organizations,
a prison, and human service organizations, many citizens believed
that future development needed to be devoted to tax paying uses.
The political context that Wayside confronted was further com-

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plicated by immigration issues of the sort wrestled with in many


cities and towns across the country. In the past few years, Fram-
ingham had attracted a large population of Brazilian immigrants.
Neighborhoods with a distinctly Brazilian flavor developed, along
with vibrant ethnic shops and restaurants. As frequently occurs
when a large new foreign population enters a community, tensions
developed with some existing residents. At the same time, lack of
state funds forced the closure of a regional detoxification facility
increasing the number of troubled individuals on the streets. The
closure of the detox program along with the population of existing
homeless shelters fueled a growing sentiment that the town was
carrying a social service burden beyond its capacity to manage.
A movement arose in town to oppose any new social service
programs from opening. The movement was headed by a group of
aggressive and vocal long-time residents, who were skilled in the
use of the internet. They formed several web/blog sites. The sites
attracted a lot of online traffic, with participants sharing their dis-
dain for social service organizations and their clients, as well as
ideas on how to keep them out of town. While a frequent theme of
this citizen movement was the drain on the tax base caused by tax
exempt organizations, it was human service non-profits alone that
were the focus of their opposition.
Wayside adopted an open and public approach about its cam-
pus plans. Once it had purchased the land, Wayside developed a
professionally prepared brochure describing the organization and
the campus project, and inviting questions from community resi-
dents. Wayside sponsored a series of informational meetings, to
which neighbors were invited. The invitations were accepted, but

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not with the hoped for results. Abutters, who attended the meetings
in significant numbers, voiced dismay that a vacant parcel of land
would be developed (notwithstanding its proximity to Route 9 and
a heavily developed commercial district), and expressed concerns
that Wayside’s program would cause traffic problems on neigh-
borhood roads. Some abutters also voiced fears that Wayside clients
would be undesirable and would commit crimes in the neighbor-
hood. Nearly all opponents complained that the town already had
too many social service agencies.
A neighborhood group quickly formed to oppose the Wayside
campus plan. The group named itself the Sucker Pond Neighbor-
hood Association (SPNA). Members numbered more than 100. The
group held neighborhood meetings and collected money, all with
the goal of thwarting Wayside’s campus from opening. The exist-
ing anti-human service agency web sites became sources of often
vitriolic discussion about ways to stop Wayside from building its
campus. Despite the opposition to the Wayside project, the agency
was able to persuade the town Building Commissioner that it was
entitled to construct its campus on its Framingham site. The Build-
ing Commissioner issued a building permit on January 28, 2005,
nearly three years after the land was purchased.
SPNA appealed the Building Commissioner’s decision to the
Zoning Board of Appeals, thus beginning the formal legal battle.
Issues included whether Wayside’s lot conformed to the zoning
bylaw, and whether Wayside needed Planning Board approval for
its project. The case was covered extensively in the local newspa-
pers. At the end of a hearing with approximately 150 opponents of
Wayside in attendance, the three person Zoning Board voted 1 – 2

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to uphold the Building Commissioner (because a unanimous vote


was needed for a reversal, the building permit stood). As the dis-
senting ZBA member walked toward the exit, members of the au-
dience shouted insults at him. SPNA had collected enough money
to appeal the Zoning Board decision to the Massachusetts Land
Court. While courts uphold zoning boards more often than they
reverse them, the town’s arcane zoning bylaw created several com-
plex legal issues regarding Wayside’s planned use, issues on which
there was no clear guidance in the appellate case law. The outcome
of the Land Court case was therefore uncertain.
Delay would now become a significant factor in Wayside’s deci-
sion-making. While it was difficult to get a precise handle on the
cost of delay, there were estimates that construction cost inflation
could add $1 million per year to the total cost of the project. In ad-
dition to the fiscal uncertainty created by delay in construction, the
amount of legal fees that would be required could be estimated only
within a wide range, as total legal fees would depend on whether the
Land Court case was decided on summary judgment; i.e., with no
trial, and whether or not there was an appeal. Wayside won the
Land Court case on summary judgment, a process that took four-
teen months. The neighbors did not appeal.
In addition to the building permit, Wayside needed one addi-
tional permit in order to begin construction. This was known as a
“Public Way Access Permit,” essentially a curb cut or driveway per-
mit, required any time a developer accessed a public roadway from
its land. In the case of a major project such as Wayside’s, the Pub-
lic Way Access Permit was voted on by the Board of Selectmen, after
a recommendation by the Director of Public Works. The DPW Di-

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rector could make recommendations with regard to placement and


dimensions of the driveway, as well as any roadway modifications
that the applicant would be required to pay for, in order to provide
for safe and efficient access to the applicant’s property. Based on
the earlier water and sewer mitigation negotiations with town of-
ficials, Wayside was confident that the DPW Director would rec-
ommend that Wayside pay for roadway modifications costing no
more than $28,000.
Wayside administrators were stunned when the DPW Director
recommended to the Board of Selectmen that Wayside be granted
the PWAP, but only on the condition that the organization pay
nearly $400 thousand in roadway and sidewalk improvements. The
rationale was a claim that Wayside’s project would create signifi-
cant traffic through nearby neighborhood roads – this despite Way-
side’s submission of two comprehensive traffic studies, approved by
two town consultants, which concluded that traffic impacts from
the program would be minor. At the public hearing before the Board
of Selectmen – a televised hearing that was well-attended by project
opponents, and which lasted three nights – Wayside challenged the
Selectmen’s authority to require it to pay for any but nominal mit-
igation measures. Wayside also argued that the Board had no choice
legally but to grant the Public Way access permit. The Board of Se-
lectmen voted 4 – 1 to deny Wayside’s permit outright. Without the
permit, Wayside would be unable to access its property from the
public roadway, which would effectively kill the project.
Wayside Board members weighed the pros and cons of a lawsuit
that simply challenged the Board’s permit denial, versus alleging in
addition that the Board of Selectmen had violated the civil rights of

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Wayside and its clients. While a civil rights claim for monetary
damages might give the organization some leverage, it might also
make the lawsuit more expensive, and lengthier to pursue. Wayside
chose the more aggressive course and filed suit in state Superior
Court seeking an order that its public way access permit be granted,
and demanding monetary damages resulting from the Town’s vio-
lation of the organization’s constitutional right to access its prop-
erty. The lawsuit also alleged that the Town’s permit denial was
partially motivated by hostility to Wayside’s handicapped clients,
and that the Fair Housing and Americans with Disabilities Acts had
been violated. The defendants removed the case to federal court.
After several months in federal court, Wayside won a partial
summary judgment motion in which the judge ruled that Wayside
was entitled to the access permit. While the judge did not yet rule
on mitigation, he implied that if he allowed the Town to impose
any mitigation measures on Wayside, they would be modest. The
judge strongly advised that the parties attempt to mediate the re-
mainder of the case, and gave them 60 days to do so, after which
time, he would issue a comprehensive decision on all issues.
Wayside and the town agreed on a retired state Appeals Court
judge as the mediator. After a day-long mediation, the case was set-
tled. Wayside paid $130 thousand toward traffic control and road-
way mitigation measures, and the town, through its insurer, paid
Wayside $80,000 to partially offset its attorneys fees. While Way-
side believed that its legal position would have been very strong had
it made no deal with the town, the Wayside CEO and Board of Di-
rectors decided not to risk the additional 12 – 24+ months of delay
that might have occurred if the case was pursued all the way

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through trial and appeal.


Ground has been broken on Wayside’s campus project, with a
projected opening date of January 2009. The construction cost was
revised upward to $22 million, $5 million higher than when the
permitting process began, in 2002.
Active opposition to the project appears to have ended.

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SOME CONSIDERATIONS
FOR BOARDS OF DIRECTORS IN
SITING CASES

Due Diligence is the Bedrock Principle,


but what Diligence is Due?
The essence of due diligence is the obligation of Board mem-
bers to act in good faith and to make reasonably informed deci-
sions on behalf of the organization on which they serve. Board
members must inform themselves based on all material reasonably
available to them, and must make reasonable efforts to gather avail-
able information.
Board members will have a difficult time meeting their obliga-
tion of due diligence unless they are able to have more than a su-
perficial understanding of all the major elements that become part
of their organization’s program-siting plans. Siting a new program,
whether the venture goes smoothly or becomes a protracted battle,
invariably involves the following elements, some or all of which
may impact one another:

(a) Legal analysis


Too often, administrators of non-profit organizations planning
a new or expanded program, underestimate the complexity of the
legal hurdles their project may need to overcome. They may be un-
derstandably buoyed by the legal protections conferred on their
clients and programs by the federal Fair Housing and Americans
with Disabilities Acts, if their clients have disabilities, and by the
Dover Amendment if their Massachusetts program will be “educa-

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tional,” as broadly construed by the courts. What is often misun-


derstood, however, is the limits of the reach of those laws.
Massachusetts programs protected by the Dover Amendment
must still comply with reasonable local zoning regulations regard-
ing various dimensional requirements, such as lot size, height, and
setbacks. If the program’s building does not comply, then a zoning
board hearing and a potential lawsuit may be necessary to adjudi-
cate whether strict application of the local regulations are reason-
able in the particular situation. Moreover, some areas of regulation,
such as those related to wetlands and conservation, are not affected
by the Dover Amendment.
The federal laws require that communities make “reasonable ac-
commodations” to local regulations that might unduly restrict peo-
ple with disabilities from housing or services. A quick survey of the
federal cases that constitute the evolving scope of what accommo-
dations are “reasonable,” and when accommodations need to be
made, shows that application of the federal disabilities rights laws
to a particular program is seldom a straight-forward process.
Before land or buildings are purchased for a new program, and
before substantial sums of money are spent on a planned project,
a comprehensive review of the law must be undertaken, and the re-
sults of the review must be reported in writing to the Board and
the Executive Director. No non-profit administrator or board of
directors can guarantee smooth sailing for their planned program
– even baseless legal opposition can cost an organization time and
money. Board members have an obligation, however, to help insure
that the organization on which they serve is making informed de-
cisions as it embarks on a new venture.

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(b) Strategic planning; timing and sequence of actions


Every significant project should include a proposed timeline of
events and the people on the program team who will be responsi-
ble for each. The timeline should include approaches to local offi-
cials, public announcement of the plan and other steps necessary to
the public relations and permitting process. If the project encoun-
ters determined opposition, the timeline will undoubtedly be mod-
ified, probably multiple times. A planned approach, however, as
opposed to reacting on the fly to opposition by abutters or intran-
sigence by local officials, generally starts the project off on its
strongest footing.

(c) Budgetary issues


Budgetary planning for a development project is incomplete
unless the budget contemplates the worst case scenario of litigation
and lengthy delay. Larger organizations may well be able to budget
for litigation and multi-year delay to a new program. Smaller or-
ganizations, on the other hand, need to address candidly how much
adversity they can withstand if a desired new program encounters
opposition. Worst case budgeting, which is related to the worst case
planning discussed in the next section, should consider items such
as the cost of interest on any loans, delayed income, the cost of lit-
igation, and “soft” costs such as staff and administrative time.

(d) Gauging opposition and support


Many non-profit corporations will not back away from a fight
if a battle is necessary to achieve a new or expanded program for

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their clients. On the other hand, some organizations, usually, but


not exclusively, smaller ones, will choose not to put their resources
into overcoming concerted opposition to a new program. They pre-
fer to search for a location where resident and official opposition is
least likely. Whichever is your organization’s style, a list should be
made of likely supporters and opponents to your project, and their
potential to become involved on behalf of or in opposition to your
organization.

(e) Public relations and public image


In my long experience representing human service organiza-
tions in their development of programs, public relations and pub-
lic image has not generally affected the outcome of a siting fight.
Yet, without exception, public perception of my clients’ organiza-
tions has been a major concern for executive directors and board
members alike. That concern is legitimate. Every battle to open a
program in the locations our organizations have chosen is part of
the larger, long-running effort to educate the public about the
rights and needs of our clients to live in the community.
Some organizations choose to hire public relations consultants.
I have seen mixed results with the use of such firms, but my clients
generally take comfort in the use of a public relations expert if the
budget allows. Whether your organization retains a paid specialist
or tends to public relations on its own, the effort should be given
careful thought and planning. An assessment should be made of
the best contacts in the local media. When the timing is right – a de-
cision that differs in each case – these people should be given a well-
constructed written description of your organization, its clients,

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and the planned program. Supporters in the community who may


have a public presence, such as clergy or business leaders, should be
included in the public relations effort. Critical to the success of the
public relations effort for your organization’s development plans is
a well-conceived message that is understood by every member of
the Board of Directors and any member of the staff who may be
called upon to explain the project.

Planning for the Worst Case Scenario


Developing strategies to overcome multiple obstacles to the sit-
ing project enables the plan to move forward with more confidence
in its ultimate success. Worst case planning requires imagining the
worst case and breaking it down into discrete parts. One of the
most effective ways to plan for the worst case scenario is to con-
vene an executive team and free-associate all that can go wrong with
your project. Participants should be encouraged to throw out any
ideas that come to mind, with no comments made initially, in order
to encourage creative thinking. Each idea listed should be written
down on a large board or projected onto a screen that all can see.
Once the parade of horrors has been listed, discussion should
proceed as to how likely each obstacle is to occur – some will be
discarded as highly unlikely. The remaining potential problems
should then be listed in the order of concern. Once the list is made,
discussion can begin as to how each obstacle will affect the project
and the organization, and what the response should be to each.
While there may be unexpected twists with the best strategic plan-
ning, anticipated difficulties always seem more tolerable than the
unexpected.

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Information and Communication are the keys to Due Diligence


Organizations differ on the method of communication to Board
members, but whether through regular or special meetings of the
full Board, an Executive Committee, or designated Board members,
the following actors need to communicate effectively with each
other and with the Board, during a siting fight:

(a) Executive Director


The Executive Director has the primary obligation for keeping
board members sufficiently informed so that they can fulfill their
fiduciary duties to the organization. While the Board need not be
apprised of every ripple along the way, they must be made aware of
developments that may significantly affect their organization’s
budget and future.

(b) Attorney
Periodic presentations by the program’s attorney to the Board of
Directors, is essential to the Board’s overall understanding. My pref-
erence is to distribute a bullet-point outline of key points in ad-
vance of the Board meeting, to make a concise presentation,
followed by a question and answer session. The attorney owes the
Board absolute candor, whether his assessment of the legal terrain
is rosy or more ambivalent. The attorney should provide the Board
with a plain-English and thorough explanation of the legal issues
involved in the siting case.

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(c) Essential project consultants


Key consultants, such as architects, engineers, and others, must
function as a team with the program’s attorney. Each must know
what the other is doing for maximum effectiveness. Generally, the
Executive Director or a key management designee, takes the re-
sponsibility for insuring good communication between team mem-
bers, and with management and the Board of Directors.

Dealing with Neighbors and


Negotiating with Municipal Officials
Municipal Officials
Relationships with local officials that had seemed solidly cor-
dial can turn sour in a hurry if a vocal constituency organizes
against a project planned for their neighborhood. If meeting with
the officials who are responsible for permitting and approvals can
gain their support, a great deal of time and money can be saved.
On the other hand, officials under the political gun will sometimes
schedule endless meetings as a way to avoid decision-making and
conflict. Some of the toughest calls will be:

(a) Jaw-jaw vs. war-war (with thanks, or apologies, to Winston


Churchill)
Any project, large or small, requires open and frequent com-
munication with municipal officials. Ideally, the approach to local
officialdom will have been carefully planned before the first con-
tact is made. Before officials are notified of your upcoming plans,
a complete package should have been prepared in advance, con-

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sisting of all the information and documents that may be lawfully


requested by permitting authorities, such as the building and pub-
lic safety departments. I advise candor about the nature of the
clients who will be served by your program, though if there are al-
ready identified clients, municipal officials are not entitled to per-
sonal identity information.
A favorite tactic of local officials who have learned that some of
their constituents vehemently oppose a planned human service
program, is to cause lengthy delay under the guise of seeking in-
formation. The delay ruse is not always easy to spot, at least ini-
tially. Officials have the right to information about a new program
coming to their city or town. They are being responsible if they
want to understand the potential impact of the program on the
neighborhood in which it will be located. When the inquiries are le-
gitimate, there will generally be several meetings and an exchange
of information, followed by a formal application by the human
services organization, for a building permit. Applications for other
necessary permits follow in turn.
When officials intend delay, they will try to discourage the or-
ganization from applying for a building permit, claiming that the
application is premature and should await further exchange of in-
formation. Typically, meetings will be scheduled as far in advance
as the official involved can get away with. There will be cancella-
tions, delayed rescheduling, and endless requests for additional in-
formation and more meetings. If the organization goes along with
the delay tactic, many months, even more than a year in some cases,
may be lost with no benefit gained. Executive directors and boards
of directors sometimes allow the delay tactic to continue for too

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long because they fear that making formal applications when they
are being advised to forbear, will result in denials, necessitating ap-
peals and litigation. The municipality holds out the carrot of co-
operation all the while costing the organization time and money. To
borrow from Winston Churchill once more – the organizations that
allow foot-dragging to work may think that they are offered a
choice between delay and litigation. They may choose delay and
find that they will have litigation.1
The good news is that after an appropriate provision of infor-
mation and a reasonable period of time for meetings to be held,
the human service organization can stop the delaying tactics cold
by deciding to file for the initial permit necessary to begin the proj-
ect, which is usually the building permit. Once formal application
is made, timelines are governed by statutes and regulations, rather
than the whim of local officials.

(b) If patience has run out, how should that message be conveyed to
relevant officials?
There is no need to be confrontational even in light of suspi-
cions that local officials were attempting to delay your project. Gen-
erally, a simple letter or even a telephone call, notifying the
appropriate official that a formal application will be filed, followed
promptly by the filing, will suffice. While there is no need to notify
a building inspector or other official that an application is about to
be filed, the notice may be viewed as a courtesy, especially if ongo-
ing discussions were being held.

1
Winston Churchill said of Neville Chamberlain, after Chamberlain returned from signing the Munich
Pact with Hitler, granting the Sudetenland of Czechoslovakia to Germany, “[Y]ou were given the choice
between war and dishonor. You chose dishonor and you will have war.”
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(c) Should counsel attend any meetings? All meetings? If not all,
which ones?
Counsel need not attend every meeting, except in cases when
local officials have let it be known that their goal is to stop your or-
ganization’s program. Your attorney should attend enough meet-
ings with local officials to enable him to be known by them and
develop a working relationship with them. Often, municipal coun-
sel will attend any meeting at which your organization’s lawyer will
be present. If the process is proceeding amicably, then counsel
should not be needed at most meetings.

(d) Informality versus formality in the approach to local officials


While the tone of communications can, and usually should be,
congenial, I recommend a degree of formality early on. The for-
mality should take the form of non-aggressively worded letters con-
firming the results of meetings with local officials. Some officials
may take umbrage at such communiques, thinking that they are
being “set up” in accordance with your program’s designs, or fear-
ing they will appear to constituents opposed to your project, to be
too cooperative. If the letters are appropriate in tone, however, and
completely accurate, they are a legitimate means to create a record
of contacts between your organization and local officials. A written
record serves as a useful reminder of how much time has transpired
since local officials were initially contacted. The paper trail also
makes it easier to spot and short-circuit delaying tactics.

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(e) Strategies to maintaining good relations if litigation becomes


necessary
I have seen organizations and their lawyers pursue scorched
earth policies vis-à-vis the communities in which they seek to open
a program, if litigation becomes necessary because of the munici-
pality’s opposition. In my view, such an approach is a mistake that
needlessly harms future relations with officials and neighborhood
opponents. Even the bitterest of legal battles end sooner or later.
Human service organizations are corporate citizens of the com-
munities in which they are located.
Litigation can be pursued aggressively in terms of the intent to
win and to protect the rights of our organizations and clients, while
maintaining a tone of respectful disagreement. The intent to main-
tain positive relations to the extent possible can be stated directly in
correspondence drafted by counsel upon the beginning of litiga-
tion. An invitation should be made to keep the lines of communi-
cation open and to consider at every stage, a process for early
resolution of the dispute.

Neighbors and other Concerned Citizens


Philosophies differ on how to handle neighbors, before litiga-
tion in an effort to avoid the need for a lawsuit, and after a lawsuit
is filed. Below are some of the issues that can be controversial:

(a) Stealth vs. openness


When a large project is in the works, stealth is not realistic even
if desired. It is possible, however, when planning a small program

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such as a single community residence, to communicate only in the


form of official permit applications. I believe that once property
has been purchased, an organization should be candid and open
about its plans. Whatever approach is taken, disingenuousness
should be absolutely avoided. Dishonesty will not enhance the con-
siderable legal rights of our clients and organizations, and can gen-
erate enduring antagonism.

(b) If litigation becomes necessary, can the harshest opponents be


sued? Should they be sued?
Sometimes, well-organized and concerted opposition to our
planned program by a neighborhood group can become personal-
ized and nasty. Lies and distortions may be disseminated about both
our organization and its clients. In such instances, I have been asked
a number of times by my clients, “can we sue them,” “shouldn’t we
sue them?” In most instances, the answer is a resounding “NO.” Sue
municipal officials in their official capacities, but don’t sue neighbors
who are exercising their constitutional rights of free expression and
to petition their elected officials, no matter how annoyingly those
rights are exercised.

(c) Don’t let your organization get “SLAPPed”


Massachusetts has a statute, the anti-SLAPP law, that can make
it costly to sue neighbors who publicly oppose a human service or-
ganization’s project. SLAPP is an acronym for Strategic Litigation
Against Public Participation. The anti-SLAPP statute, M.G.L. c. 231,
§59H, protects the constitutional right of people to petition any

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public body or official to review or take action on an issue, by im-


posing severe penalties on any party that uses litigation in an at-
tempt to thwart those rights.
The law provides that if a party asserts that a lawsuit or coun-
terclaim filed against them was based on their exercise of the right
to petition, the party can file a special motion to dismiss the action
or counterclaim. The special motion is heard promptly by the court.
If the court finds that the sole basis of the legal action or counter-
claim was to suppress the right to petition, the court will dismiss the
action or counterclaim and assess costs and attorney fees against the
party who filed the SLAPP lawsuit or counterclaim. While the anti-
SLAPP law was originally designed to protect citizens who might
oppose a large developer, such as a Walmart, it equally protects those
citizens who would publicly protest our projects.
In rare instances, individuals can and should be sued. I have
done it three times in my entire career, a career in which I have rep-
resented dozens of human service organizations attempting to de-
velop new programs. In the first instance, a group of opponents
had conspired with a state employee to photocopy confidential in-
formation from the files of clients of the organization I represented.
In the second case, the leaders of the group opposing my client were
harassing visitors to the proposed program site by triggering cam-
era flashes in their eyes from close up, blocking cars in the organi-
zation’s driveway, and in one instance, bumping a consultant taking
measurements at the site. In the third case in which I named indi-
viduals as defendants, the opponents threatened work crews at my
client’s site with violence and continually trespassed on my client’s
property. Even in these extreme instances, the lawsuit had to make

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clear that the individuals were being sued because of their unlaw-
ful conduct, and not because of their opposition to the program.

(d) Should the organization’s public response to vitriolic neighbor-


opponents, be to treat them gently regardless of the provocation?
Responses to verbal or written assaults on a human service or-
ganization or its clients should be firm, but without personal at-
tacks. Our organizations’ missions should be vigorously asserted, as
well as the fundamental humanity of our clients and their rights to
live in the community, to receive needed services, and to be treated
with dignity and respect. Personal attacks on vitriolic opponents
serve no good purpose. The attackers often find their influence di-
minished over time, as other residents are repulsed by the mean-
spiritedness of their approach and the ugliness of their words.

(e) Once opposition has been declared and aggressively pursued by


neighbor opponents, do continued meetings help, or do they serve to
aid the opposition with their organizing effort?
Public meetings with groups that have asserted their undying
opposition to your organization’s project can be counterproduc-
tive and should be avoided unless they can serve to end the oppo-
sition or reduce the level of vitriol. Once a group has determined to
oppose you, meetings with the group are often little more than a
forum for attacks on your project and your clients. Your openness
may be turned against you, as in, “they invited us to speak our
mind, we told them we didn’t want them in our neighborhood, and
they ignored us – they’re arrogant.” An exception to the no-meet-

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ing with the opposition rule is when events have created a situa-
tion in which progress can be made between your organization and
opponents. A meeting with the opponents at that juncture may be
worth the risk.

The Public Role for Board Members


Board members who are willing to take a public stance can help
their organizations in ways large and small. The following list is
self-explanatory and is presented without further comment. Active
Board members can:
(a) Identify project supporters in the community;
(b) Support the project in talks with friends, neighbors and col-
leagues;
(c) Educate people with whom they come in contact about the true
nature of the program’s clients, their needs, and the help they will
receive in the planned program;
(d) Write letters to the editor of the local newspapers;
(e) Seek the support of state politicians.
The above list is not exclusive. The public role for Board mem-
bers is limited only by imagination. Whatever public role Board
members may take, however, must be of a type and pursued in a
manner, carefully discussed, analyzed, and agreed to by the Execu-
tive Director and the full Board. Inconsistent statements or maver-
ick activities can give ammunition to the opposition, and harm the
organization’s effort.

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Litigation: What’s a Board to do when it’s time to bring in the


Lawyers?
The sobering reality of many siting fights that end up in court
is that a successful outcome is not assured. Every step along the way
can influence cost, community relations, delay, and ultimately, vic-
tory or defeat. A strong, informed Board of Directors, increases the
likelihood that critical decisions will be the best ones. A sampling
of the types of decisions that can have major impact, include:

Beginning or Defending the Lawsuit


(a) Choosing an attorney – weighing options, consequences, and how
to decide
Ideally, the lawyer who handles your organization’s siting law-
suit, will have been involved early on in the process. Often, however,
program administrators try to save money by using a lawyer who is
on the Board of Directors, or curry favor with local officials by hir-
ing a local lawyer, regardless of whether the lawyer has experience
with the type of issues relevant to the development plans. The
lawyer-hiring decision often breaks down into the following choices:

1. Board member vs. independent counsel


I am opposed to using a lawyer who is on the Board of Directors
to negotiate with local officials once negotiations have bogged
down or become adversarial, or to handle siting litigation. It strikes
me as a potential conflict of interest. How, for example, could an at-
torney Board member make an unbiased assessment of whether he
was the right person for the job, or advise the Board on decisions

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affecting the cost of litigation? While I hold firmly to this position,


I am aware that some lawyers, including colleagues who I respect,
do serve in the dual capacity of counsel and Board member. If that
dual relationship is undertaken, careful attention must be paid to
potential conflicts of interest.

2. Local lawyer vs. outside attorney expert with the issues


Program administrators sometimes have the notion that if they
hire a lawyer who is well-wired into local politics, he will have an
easier time obtaining approvals and permits, getting meetings
scheduled, and avoiding obstructive behavior from local officials,
many of whom may be his friends.
If there is little opposition to a project, there can be some ben-
efit to working with a local attorney who knows the personalities in
town hall and the quirks of the system. Once matters become con-
tentious, however, it may be difficult for a local counsel to be suffi-
ciently aggressive, particularly if officials are violating state and
federal civil rights laws, and a demand for damages as well as de-
claratory relief should be included in a lawsuit. Moreover, once the
situation becomes adversarial, knowledge of the legal issues and ex-
perience in litigation and trial work, becomes far more important
than personal relationships with local officials.

3. Large law firm vs. small firm or solo practitioner


Full disclosure: I am a solo practitioner, who has also been a
partner in a larger firm, and have handled and won siting cases in
both settings. I have a strong bias that may influence my comments.

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Regardless of whether your organization hires a solo practi-


tioner, a small law firm, or a 500 lawyer giant, the most important
factor is the comfort that the Executive Director and the Board of
Directors have with the attorney who will be lead counsel on the
case. Make sure that any lawyer you are seriously considering has a
track record of success on similar, or at least, analogous cases. Ask
questions about your case and the law, and be satisfied that the an-
swers you receive make sense and are in plain English, not legalese.
Most of the large law firms in the Boston area do skilled work.
The question may become one of cost-benefit; i.e., does it make
sense for your human service non-profit corporation to spend
$500+ per hour for legal fees if there are equally good or better al-
ternatives? Occasionally, an Executive Director believes that hiring
a large firm will give his organization more gravitas and may in-
timidate the opposition. In practice, the opposite may occur. A
savvy defense or municipal counsel may realize that every step in
the litigation is costing the human services organization a small
fortune, and therefore gauge that delay serves the opponents to the
program.
In the end, the choice of counsel should be a calculated busi-
ness decision. Board members should be sure that their organiza-
tion is obtaining the best chance of success for the most reasonable
amount of money. While that calculation is not scientific and not
always easy to make, the assessment needs to be undertaken.

(b) Determining the scope of the litigation if neighbors institute legal


action: can and should a counterclaim be pursued?
There is always the temptation to “go after” neighbors who file

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legal action that will cost your program time and money. As dis-
cussed earlier, the Massachusetts anti-SLAPP legislation limits
counterclaims that can be brought against neighbors who resort to
the courts to thwart your program. Many state court actions over
the siting of non-profit human service programs, involve the Dover
Amendment. The Supreme Judicial Court has held that whether or
not strict imposition of zoning bylaw dimensional requirements is
“reasonable” as applied to non-profit educational programs is a de-
termination to be made on a case-by-case basis. Thus, unless your
planned program’s building and site comply strictly with local zon-
ing regulations, a lawsuit by opponents challenging your right to
build may be an exercise of their constitutional right of access to the
courts. That is a message my clients usually don’t want to hear, but
one they do understand.
As also mentioned earlier, no such forbearance is due opponents
if they violate the rights of your organization and its current and fu-
ture clients, with unlawful actions. Violence, harassment, intimi-
dation, and other conduct not protected by the law, can and should
be met with a lawsuit or counterclaim.

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(c) Determining the scope of litigation if the organization institutes the


lawsuit

1. Should the lawsuit be narrowly confined to an appeal from an


adverse Zoning Board decision, or should it include civil rights
claims against the municipality?
The answer to the question of how broad the lawsuit against a
municipality should be depends primarily on the facts. Not every
disagreement over the interpretation and application of zoning by-
laws, amounts to a violation of your organization’s and its clients’
civil rights. The United States Supreme Court has held that good
faith disagreements over zoning regulations are not civil rights is-
sues. On the other hand, if you have evidence that municipal offi-
cials or zoning board members are opposing your program because
of your clients’ disabilities, or are responding to the illegal dis-
crimination of constituents, then a civil rights claim is warranted.

2. Is pursuit of monetary damages always the right decision?


The answer to the question of monetary damages is closely related
to the question of whether civil rights allegations should be included
in a lawsuit instituted by your organization. Where civil rights viola-
tions are alleged, monetary damages should generally be sought.
Often, inclusion of civil rights claims will cause the municipality’s in-
surer to become involved, which may make settlement easier if the
insurer concludes that it faces a significant risk of a large financial
payout if the case proceeds to trial. If, on the other hand, there are no
civil rights violations, monetary damages will generally not be avail-
able under the law and should not therefore be alleged.
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After litigation has been filed


(a) Are there litigation strategies that may shorten the duration of
the lawsuit?
One of the risks of litigation is that once begun, the party initi-
ating the lawsuit cannot always control when it will end, short of
conceding. Nevertheless, it generally makes sense to see if litigation
can be ended short of trial. If there are multiple issues in a case, it
may be prudent to isolate those that might be won on a motion for
partial summary judgment. In a summary judgment proceeding,
facts must be shown via documents and affidavits, with no live tes-
timony. A package of documents and legal briefs is submitted to
the court, which is asked to rule whether the facts alleged by the
party seeking summary judgment are beyond credible dispute, and
whether that party is entitled to a favorable judgment as a matter
of law. Summary judgment hearings can be scheduled far sooner
than trial in most instances. If a party obtains a favorable summary
judgment ruling on some issues, the opposition may well be more
likely to seek settlement discussions on the remaining issues.
At various stages of the litigation, it may be advisable to seek
mediation of the case. With mediation, the parties agree to a pro-
fessional third party neutral – the mediator – and meet for the pur-
pose of attempting to resolve all, or as many issues as possible.
Mediation can be very effective when the parties wish to settle, but
have been unable to reach agreement through negotiations between
counsel. Mediation does not, however, insure settlement. The tim-
ing of mediation can be critical to its success. Mediation can some-
times be advisable before litigation is filed, when all parties have
the incentive to avoid the time and expense of a lawsuit. Once a

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lawsuit has been filed, however, a period of discovery – sometimes


even a summary judgment hearing – may be necessary before me-
diation makes sense. Counsel must be skilled in assessing whether
mediation has a reasonable chance of success, and if so, whether
the time is right to employ it.
In some cases, the parties will agree to submit their case to an ar-
bitrator, who will hear evidence and decide the case in place of a
judge. Arbitrators are usually retired judges or experienced attor-
neys. A major advantage of arbitration is that scheduling can be
done quickly and is in the control of the parties. Trials before an
arbitrator are generally less formal and less expensive than in court.
If the parties agree, arbitration can be held at any stage of litiga-
tion, for example before discovery begins or after a period of mu-
tually acceptable abbreviated discovery. While arbitration may
deserve a careful look in some cases, I would be very hesitant to
give up the right to decision by judge or jury, especially where civil
rights are involved. The courts have a long tradition of carefully
scrutinizing well-presented claims involving civil rights.

(b) What role, if any, should the Board of Directors play, in litiga-
tion strategy?
Board members should insist that they be fully informed of the
progress of litigation and of the major tactical decisions to be made,
and their costs. Even as the Board entrusts the organization’s trial
lawyer with control of the litigation, the Board should be apprised
and consulted in advance of litigation steps that may cost signifi-
cant time, effort, and money. For example, sometimes a lawyer de-
termines that a motion for summary judgment is not likely to be

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won, but that the response the defendant will be required to make,
may unearth valuable information about the defendant’s case. If
that summary judgment effort will add $50,000 to the cost of the
litigation, its merits and disadvantages should be discussed with
the Board before the decision is made. In the example given, the
Board could reasonably advise counsel that they do not think the
cost is worth the potential benefit. Periodic meetings with the
Board of Directors or an Executive Committee of the Board, should
be an essential part of the trial counsel’s role.

(c) Should any matters be off the table in settlement discussions?


My human service corporate clients have agreed with me with-
out exception that no settlement will be negotiated that compro-
mises fundamental rights of our current or future clients. We have
an obligation to protect the privacy rights of our clients. We should
resist, to trial and verdict if necessary, any settlement terms that
imply that our clients are less than full members of the commu-
nity. Even with clients’ rights held as non-negotiable, there is ample
room for creativity in settlement discussions with neighborhood
or municipal opponents. Periodic meetings after the program
opens, the offer of an open ear to grievances, traffic calming or mit-
igation measures, and others, may all be worthwhile compromises
if they end litigation and speed the delivery of services to our
clients. On the other hand, the civil rights of our clients, earned
after decades of battles in the legislatures and the courts, are not
ours to diminish.

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Post-litigation
(a) Maintaining and restoring relations with neighbors and munici-
pal officials
When your organization has won its litigation or settled on fa-
vorable terms, the only road to take is the high road. Public com-
ments should focus on a commitment to continue to be a good
neighbor and to work with local officials for the good of the com-
munity. Any request by reporters or others, to comment negatively
on your recent opponents, should be absolutely resisted. I have han-
dled cases in which a joint press release was prepared by my client
and the town in which the contested program was located, an-
nouncing the end of adversary relations and the intent to cooper-
ate in the future. In most cases, my clients have issued a solo,
forward-looking and conciliatory press release. The Executive Di-
rector of the organization would be well-advised to meet one-on-
one with key local officials, with a purpose to heal any strained
relationships.

(b) Planning for the project’s opening and beyond


When the program’s opening date approaches, the focus should
be on the program and the needed services it will provide to the
client and the community. Many of my clients have held open
houses or public celebrations to kick off the opening of the pro-
gram. If the program is a large one, members of the entire com-
munity may be invited. Even in the case of stand alone group
homes, some of my clients have experienced good results with an
open house to which selected public officials and immediate neigh-
bors were invited.

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K E N N E T H N . M A R G O L I N

A FINAL WORD
Every fight to open a program for our clients is another advance
in establishing their rightful place amongst us in our communities.
It has been my experience over the course of thirty years, that even
after bitter and lengthy legal battles, when our programs open and
our once-feared clients become real human beings to their neigh-
bors, they are accepted and often, welcomed.

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Ken Margolin has counseled and represented a wide vari-
ety of human service organizations for more than twenty-
five years. Earlier in his career, he handled a series of
ground-breaking court cases that helped broaden the
rights of Massachusetts residents with mental retardation
a siting battle
and mental illness, to live in the community. Since then,
he has provided representation and counsel to dozens of case study for
organizations planning new programs in the community. Some of Attorney
Margolin’s cases include the Wayside case described in this book; judicial
invalidation of a law restricting funding to a program for adolescents with
non-profit
histories of sexual acting out; application of the federal Fair Housing Act to foil
a town’s efforts to limit the size of group homes with a restrictive definition of
organization
“family;” an amicus brief filed in the Supreme Judicial Court on behalf of
Massachusetts Association of Private 766 Schools, and Massachusetts Council board members
of Human Service Providers, in a decision preserving a broad interpretation of
the Dover Amendment; establishment, over concerted neighborhood opposi-
tion, of a hospice house for terminally ill senior citizens; a decision by the
Vermont Supreme Court, resulting in expansion of the rights to community
living for Vermont residents with serious mental illness. In addition to success-
ful court cases, he has helped many more clients develop strategies to open
their programs without litigation. In 2009, Attorney Margolin will be offering
to human service organizations, conflict resolution services, including the
design and implementation of conflict prevention and resolution systems. lessons from the field

©  Kenneth N. Margolin AN ABBREVIATED VERSION OF THIS BOOK


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    KENNETH N. MARGOLIN, ATTORNEY AT LAW