| Joanne Cole |
The Planning Board’s October 5 meeting focused not on the 10-bed 9000 s.f. residence hall that Morrison Center hopes to build for young people with disabilities at its Gloucester Hill Road campus, but instead on the property’s driveway. At issue is whether Morrison Center must redesign or relocate the entrance for safety and improved sightlines, a costly proposition.
At the board’s request, Morrison Center had submitted an alternative driveway design with an entrance down the hill and better sight distances. But at the October 5 meeting, Morrison Center attorney Aga Dixon argued that the sight distance standards either do not apply, have been met, or should be waived – and that the board may lack jurisdiction to review the application in the first place.
Those issues turn on how the facility’s past, current, and proposed use are characterized under the town’s zoning ordinance, a matter of interpretation and, apparently, disagreement.
Further, if the ordinance’s sight distances and entrance requirements are deemed to apply, Morrison Center is asking the board to waive them. If the board doesn’t grant the waivers, Morrison Center says the board could be violating the federal Fair Housing Act, which prohibits discrimination against persons with disabilities.
Given the complex, novel, and contested questions, the planning board voted unanimously to phone a friend. They will secure legal guidance at Morrison Center’s expense before taking more action on the application. It is not known when the town attorney’s opinion is expected.
The existing driveway entrance. Whether Morrison Center’s current driveway is acceptable for future uses depends in part on what standards apply and also on whether the board should consider only the pending 10-bed residence or Morrison Center’s full hoped-for vision. Its multi-phase build-out would bring multiple new residences, a therapy and education building, parking, and more staff to the hilltop campus.
As it is, the safety of the existing driveway even as currently used is a matter of dispute. At the October 5 meeting, board member Steve Libby called the entrance “unsafe now.” Morrison Center consulting engineer Andy Johnson countered with state data showing few crashes in the area. Johnson also noted that more trips were made in the past than now.
Johnson did say that the current driveway is not wide enough to support 330 daily car trips in and out—the estimate under the full build-out. But the board should not be considering the expanded vision, which he called hypothetical and theoretical. “We’re here for a 10-bed project,” Johnson said. “We may never do anything else on that site.” Morrison Center attorney Aga Dixon confirmed the point. “The marketing vision” is not before the planning board, she said. “We may never have the funding to do this.”
Practical considerations. For Morrison Center, the driveway issue is not just a legal issue but a practical one, as attorney Dixon explained. She emphasized that Morrison Center has no real wish to challenge the board’s jurisdiction or to contest the town’s use determination and need for site plan review by the planning board. But as a practical matter, if the board were to require them to relocate the driveway, “that is not something we can do.”
Dixon estimated that relocating the driveway would cost “hundreds of thousands of dollars,” something “not feasible” at this point. “I’m just being frank with you,” said Dixon. Morrison Center is not opposed to relocating the driveway “in the long term,” she said, if and when the organization actually proposes more building on the site.
For now, however, Morrison Center has marshaled a sequence of ‘if this/then that’ arguments that the ordinance’s sight distance and driveway requirements either do not apply, have been met, or should be waived.
What’s the use? In a detailed September 29 letter and memorandum to the board, and in person at the meeting, Dixon made the case that its use is “a legally existing non-conforming use,” which side-steps review and requirements.
The use is ‘non-conforming,’ Dixon explained, because there’s not a use category in the Rural Residential District that neatly fits the ongoing activity on the property: it’s not a live-in health care facility, not purely a school, not purely residential. That non-conforming use is ‘legally existing’ because it predates adoption of the zoning ordinance in the 1970s, she said.
To thread the needle, Dixon argued for an unbroken line—an unchanging use—from Opportunity Farm in the early 1900s, through Wayfinder School from 2006 to 2018, to Morrison Center, beginning in 2018. Board members disagreed. “The Opportunity Farm doesn’t count, no, no, no,” said chair Don Libby. “The Opportunity Farm is long gone. The use is different. You’ve got a school in between…. The Wayfinder School was a far different use from the Opportunity Farm,” Libby said.
For their part, town planner Natalie Thomsen and code enforcement officer Rick Haas appeared to conclude that Morrison Center would at least be continuing Wayfinder’s educational use. But Haas had also previously described the use as a live-in health care facility. Dixon noted the ambiguity and requested clarification.
Chair Don Libby thought the use was as a live-in care facility, a conforming use, and that planning board review is thus required and ordinance standards apply.
If that view were to prevail, then as a secondary argument Dixon asked that the driveway and sight distance standards either be deemed met or be waived by the board. Libby couldn’t recall ever waiving sight distances in his many years on the board. Board member Doug McAtee thought the sight distance requirements must be met no matter what use applies and that they shouldn’t be waived unless very close.
Federal Fair Housing Act. As a next follow-on if/then argument, Dixon said that if the board doesn’t waive the sight distances but would waive them for a single-family residence, then the board’s actions should be considered discriminatory under the federal Fair Housing Act.
Broadly, the Fair Housing Act prohibits actions that make housing unavailable to persons because of disability (or race, color, religion, sex, national origin, or familial status). It covers not only direct sale and rental transactions, but also zoning and land use regulations or actions that limit choice or unnecessarily restrict congregate residential arrangements.
Dixon said Morrison Center’s application should be considered as if it were a 10-person single-family home. If the board would waive sight distance or other requirements for that, but won’t for this residence for individuals with disabilities, then it’s arguably discriminatory, she said. As Dixon put it in her September 29 memorandum, “the Planning Board would effectively be treating a home for children with disabilities differently from a similarly situated single-family residence.”
Town attorney Mary Costigan questioned Dixon’s interpretation of the Act, but planning board members had gotten the message. “We don’t want to get sued,” said Don Libby. “We don’t want to sue,” replied Dixon. “I’m happy to look into it,” said town attorney Costigan.
The town attorney’s preliminary view. Before the meeting concluded, town attorney Costigan offered her own brief take on the issues, generally refuting Morrison Center’s analysis.
Costigan commented that Morrison Center’s stated use “keeps morphing” and said the applicant should give “one use.” As for the driveway, Costigan cited ordinance provisions that require additional curb cuts or updates for safety.
No matter how the use is characterized, Costigan said, planning board review is required. If it’s a conforming use, it definitely requires review. Even if this were deemed a nonconforming use, the project nevertheless represents a significant expansion, in her view, triggering mandatory review. As for the Fair Housing Act, Costigan said she is unaware of its being applied in the way Morrison Center is seeking.
Costigan, or another attorney from her law firm, will have the opportunity to take a closer look at the Fair Housing Act – and the other questions involving jurisdiction, driveways, sight distances, and the nature and history of activities at the top of Gloucester Hill.