There was a message on my machine when I woke this morning, a garbled message because Verizon is taking forever to come out and rewire my prehistoric land line.

What was clear was the post above got the subject right but the details wrong. Sure, I could wait until the actual memo surfaces, but this is too much fun.

Mark Andrew's "Rick Stanley Going Away Extravaganza" is scheduled for next Wed, June 29, not this Friday. So correct your calendars. Attendance is apparently not optional.

In the UNLIKELY event you get too shitfaced to drive home to Wareham, overnight accommodations are available. No, I don't know who's paying but I can make an educated guess.

Please post that memo, someone.

And Walter? Take your rumor and stuff it sideways.

Last edited by billw (2011-06-22 13:33:08)

PONDER THIS
In all fairness to the BOS, being a selectman can only be a thankless and difficult job at best. Sometimes, just like the saying, “God hears all prayers and sometimes the answer is no,” selectman can seldom please everyone. They are often faced with winners and losers or those pleased and those upset by their actions. I don’t think anyone begrudges them for this as long as they acted correctly and fairly and without an obvious or agenda driven partiality to one outcome over the other. There are almost always people on both sides of an issue and Lynne Road is not different.

What the BOS seems to be missing is that on one side of the Lynne Road issue they have a single profit-driven non-resident individual willing to increase our costs of police, fire, emergency services, lower our property values and endanger our people for money. On the other side we have several hundred, soon to be perhaps several thousand pissed off voters focused on the safety of their children and the people they feel responsible, the BOS, Andrews and Burke. Do the math.

I would offer the BOS that in this case, regardless of the overlying issue and it’s complexity, in its simplest form we have an outsider looking to do something in Wareham which will, not might be harmful to their citizens and the BOS is missing that point regardless of any other consideration.

Wareham’s Town Counsel will most likely find that the “Dover Amendment” applies to Lynn Road. What a surprise.

The Dover Amendment is the common name for Massachusetts General Law (MGL) Chapter 40A, Section 3. This law exempts agricultural, religious, and educational corporations from certain zoning restrictions . It allows a structure that provides certain services to ignore local zoning laws and build the facility it needs to provide those services. The Dover Amendment allows many developers to build facilities that are substantially larger than zoning laws would ordinarily allow or which would be considered inappropriate, by some, for the neighborhood.
Considered by many to be overly broad, the exemption granted by the Dover Amendment has been narrowed somewhat by recent court decisions. While a corporation must merely be nonprofit and legally able to engage in educational activities to be considered a "nonprofit educational corporation," the actual use of a particular facility must have education as the “PRIMARY OR DOMINANT PURPOSE" to qualify for Dover protection. See Whitinsville Retirement Society, Inc. v. Northbridge, 394 Mass. 757, 760 (1985).

See Kurz v. Board of Appeals of N. Reading, 341 Mass. 110 , 113 (1960). Merely an "element of education," however, provided not by a formal program or trained professionals, but only informally gleaned from the interplay among residents of the nursing home community, is not within the meaning of "educational purpose" pursuant to G. L. c. 40A, Section 3. [Note 2] Such an interpretation of the words "educational purpose" is not within the plain meaning of G. L. c. 40A, Section 3. See Bronstein v. Prudential Ins. Co., 390 Mass. 701 , 704 (1984); Commonwealth v. Vickey, 381 Mass. 762 , 767 (1980). We conclude that there was error in the judge's determination that the purpose of the nursing home was "educational." [Note 3]

Therefore, while I might teach my wife how to make coffee in our non-profit office, I would be hard pressed to argue that activity constitutes an educational facility or primary business. 

So why then might the Town’s Counsel find that treating drug-dependant and potentially dangerous crazy people in a  “transient treatment” facility constitutes an educational use when more and more rulings are generally requiring that the use be primarily educational and not merely a consequence of residential or treatment based housing? Well, in a jury trial , a directed verdict is an order from the presiding judge to the jury to return a particular verdict . Typically, the judge orders a directed verdict after finding that no reasonable jury could reach a decision to the contrary. After a directed verdict, there is no longer any need for the jury to decide the case .

In Wareham we have a long history of  BOS “Directed Opinions”.

A directed opinion is where the BOS tells, not asks, the Town’s attorney to formulate, find, fabricate or otherwise render an opinion which is intended to provide cover for something they, or some other agent of the town has already done or wants to do.

Wareham has a long history of losing law suits in the face of legal opinions allowing or supporting its conduct. As an example, in this year’s annual Town Meeting, Town Counsel was asked for an opinion on an article. He gave the opinion, which determined the outcome of the vote. Unfortunately, shortly after the meeting was over counsel discovered that his opinion was wrong and now we have a problem. The problem is that the article needs to be re-voted, but because of the past vote a new vote may not be allowable for the same article.

Anyone remember the BOS action and their legal opinion allowing the firing of police Lt. Don Bliss? How’d that workout for us? Didn’t we just pay him several hundred thousand dollars because our attorneys were mis-mis-mis-mistaken on that one? How about when the BOS got a legal opinion allowing them to take a million dollar plus home on Swifts Beach by eminent domain at Town meeting for $400,000.00. As I recall we lost that suit and paid the woman 1.2 +/-million for our arrogance. Folks, legal opinions requested by people with agendas are self-deluding at best and seldom reflective of the actual outcome of a future lawsuit.

The reason we might see a Dover Amendment finding is because Town Counsel is facing the sure and certain knowledge that there will be litigation. Either the Town will be sued by the residents or by the builder at Lynne Road. Avoiding the litigation will be the driving impetus in a finding? We will most likely get an opinion that the Town acted believing that the Dover amendment applied and then they’ve basically put the burden back on the residents to protect the town through civil action and the BOS will have also insured that there will be no court ruling on the Dover Amendment one way or the other. (Safe at third!)

The BOS is praying that the Homeowners are successful in arguing the HOA restrictive covenants and therefore pulling the hook from their collective mouths. However, the boot in Andrews’s ass should stay firmly planted until he is flying over the nearest town line. 

Sadly, by an opinion as I suspect it will come, the Town will now insure that anyone who wants to build these facilities can now come to town and build as many as they want. This opinion would insure Wareham will be a target.

Virtually every town everywhere has challenged the Dover Amendment when in doubt or there was any chance to do so. While the law is ambiguous and overly broad, most Town’s fight the Dover Amendment at any time a reasonable argument against it can be made. They do so for two reasons, one, the town may prevail in court and two, because many proponents of these facilities will not or cannot bear the cost in money or time fighting a Town. Opponents will often simply move on or negotiate with the community something that works for all.

Let me suggest what we will accomplish if the BOS, in order to protect itself from the actions of Burke and Andrews, gets this decision from Town Counsel they want, that is that in any future circumstance, which is even remotely similar, they may not ever again argue against the Dover Amendment applying. If the do they will be sued for discrimination or some form of unfair application or practice. If they do fight the Dover Amendment’s authority in order to stop a future facility and prevail they will make the case for damages suffered by those at Lynne Road who claimed it did not apply to 7 Lynne Road.

The BOS should just fight the fight for your safety and security now. I believe the residents of Lynne Road will prevail on their Homeowners Covenants, but what about you? If you merely live on a street somewhere in Wareham, and not in a subdivision, the BOS will insure that they cannot, in the future, fight these facilities and that the Jeff White’s of the world will simply look for homes in neighborhoods not protected by protective covenants. That unfortunately will open up 95% of the homes in the town of Wareham folks. Yes, one of these facilities is coming to a house near you very soon.

Providing housing and treatment for a drug-addicted mentally-ill and possibly criminal clientele rises to the level of a teaching facility like prisons are not prisons; they are really centers for higher learning where the chronically criminally inclined can interact with more capable mentors and thereby raise their skill levels from mere ASS (Associate Scumbag Status) to a full and well rounded PHD in Criminal Diversity.

Win or lose, the BOS has always been willing to pour unlimited amounts of our money down any rat hole they can find if it’s for legal fees for their fight. Why not now in our defense? If Lynne Road goes live, this will be their fight for a very long time to come.
Clearly, we have support on the board, but not enough.

By the way, I’ll bet there is about to be more to this story for the BOS. Do the right thing while you can still argue it was your idea.