B.2.October8

October 8, 2015

 

Cease and Desist Order; 60 Depot Street; tax map/lot 099-050-00

Dear Mr. Lewis,

We greatly appreciate that you took the time to “review the issues in greater detail” between your initial site inspection of September 21^st and the issuing of the “Cease and Desist Order” of October 1; however, it seems likely that the depth and complexity of relevant issues pertaining to the civil liberties of the residents of 60 Depot Street perhaps constituted a burdensome examination for the City within such a short time frame, and we would very much appreciate the opportunity to work with the City toward a joint understanding of the applicable Federal statutes pertaining to our residency.

Specifically, we ask that the City and Driven By Circumstances delve deeper into an assessment of residents’ protected status afforded by the Americans With Disabilities Act of 1990, including Title II and Title III protections (ADA Amendments Act of 2008), the Federal Fair Housing Amendments Act of 1988, as well as the 14^th Amendment right to equal protection and due process.

Both the ADA and FHAA recognize alcoholics and addicts in recovery as qualifying for disability status and protection under Federal law. [Please see 28 CFR § 35.104 (4)(1)(ii); 28 CFR § 35.131(a)(2); 42 USC § 3602; 42 USC § 3604; Moore v. City of East Cleveland, Ohio 431 U.S. 494 (1977).]

Federal protections have established and affirmed that stable, recovery-supportive, cooperative, sober group housing can be as essential to persons disabled by alcoholism and addiction as wheelchairs are essential to paraplegics.

Driven By Circumstances provides such residential supports to individuals facing the handicap

of addiction. [Please see United States v. City of Audubon, 797 F.Supp. 353, 358 – 359 (D.N.J. 1991); Corp. of the Episcopal Church in Utah v. West Valley City, 119 F.Supp.2d 1215, 1217-18 (D.Utah 2000); Oxford House,Inc. v. Town of Babylon, 819 F.Supp. 1179 (E.D.N.Y. 1993); Jeffrey O. Et Al., Plaintiffs, Vs. City Of Boca Raton, United States District Court Southern District Of Florida Case No. 03-80178-CIV-MIDDLEBROOKS/JOHNSON.]

Federal courts have established and affirmed that such sober residences – structured as supports for individuals disabled by alcoholism or addiction — constitute a “single housekeeping unit” appropriate to both dwellings deemed “single-family” and neighborhoods deemed “residential.”  [Please see City of White Plains v. Ferraioli, 313 N.E.2d, 756, 758 (1974).]

The City of Franklin itself classifies a family as “One or more persons occupying the premises and living as a single nonprofit housekeeping unit.” [Please see Oxford House-Evergreen v. City of Plainfield, 769 F.Supp. 1329 (D.N.J. 1991).]

Indeed, the entire purpose of structured living at DBC is to operate as a single housekeeping unit to ameliorate the loneliness, isolation, and boredom that so often derail a recovering addict’s abstinence (a concept supported by Federal case law). [Please again see Jeffrey O. Et Al., Plaintiffs, Vs. City Of Boca Raton,; Oxford House,Inc. v. Town of Babylon.]

Certain arguments have been raised (and negated) in the Federal courts that the cooperative, communal nature of sober living group homes may threaten the fundamental nature of single-family zoning.  The existence of DBC at 60 Depot Street actually enhances the fundamental nature of its particular neighborhood.

• The residents at 60 Depot Street number fewer than the previous occupants, who, while constituting a more “traditional” model of “family,” housed multiple adults and seven children.
• The residents at 60 Depot Street are quiet, conscientious, and respectful of neighbors, even when such considerations are not reciprocated.
• The residents at 60 Depot Street have not required nor attracted any attention from law enforcement or paramedics.
• All vehicles at 60 Depot Street are registered, inspected and running, which elevates the neighborhood standard.
• The property is well maintained, which also elevates the neighborhood standard.
• By virtue of the home’s purpose, no resident engages in illegal drug use, alcohol use, or illegal activity, another advantage to the neighborhood.
• Residents regularly sweep the street, help neighbors with lawn mowing and trash, collect debris from along the Rail Trail.
• Residents value, maintain, and thrive upon the quiet, low-profile, peaceable atmosphere of the home.

In short, the residents at 60 Depot Street create no nuisance or threat to our immediate neighborhood or to the City of Franklin.

The Fair Housing Amendments Act establishes that persons with qualifying disabilities under the ADA have the same basic rights to enjoying housing as other citizens, and the Olmstead Act affirms that such housing should be in the least segregated settings possible. [Please see 42 USC § 3604; Samaritan Inns v. District of Columbia, 114 F.3rd 1227 (D.C. Cir. 1997); Olmstead v. L.C., 527 U.S. 581, 607 (1999).]

Respectfully, the residents of 60 Depot Street request that you rescind the City’s “Cease and Desist Order” of October 1, 2015, in order to allow ample time for deeper examination, conversation, and development of cooperative understanding between the City of Franklin and the residents of 60 Depot Street..  Additionally, we ask that you reconsider your classification of our home as a “rooming house.”

Stigma, shame, and discrimination come in forms both subtle and unintended, and Federal statutes and case law are clear that effect, rather than motive, defines discrimination. [Please see United States v. City of Black Jack, Missouri,508 F.2d 1179 (8th Cir 1974):Id. at 1185 (8th Cir. 1974), cert. den. 422 U.S. 1042 (1975).]

The residents of 60 Depot Street do not represent “certain” members of our community (as they are deemed in the City’s letter of October 1); they represent members of our community.  [Please see 28 CFR § 35.130(b)(8).]

In issuing its “Cease and Desist Order” with 30 day timeframe, the City’s action could perhaps be misconstrued as insensitive to the absolute necessity of stable, family-style living so imperative as a functional disability aid to  alcoholics and addicts in recovery who have sought such support, based on the nature of their disability.  [Please see Bangerter v. Orem City Corp., 46 F.3rd 1491, 1500 (10th Cir. 1995); and again, United States v. City of Audubon; Corp. of the Episcopal Church in Utah v. West Valley City; Oxford House,Inc. v. Town of Babylon;  Jeffrey O. Et Al., Plaintiffs, Vs. City Of Boca Raton.]  We welcome the opportunity to engage in fruitful discussion with the City about any potential misunderstanding about the importance of such stable housing.

In classifying 60 Depot Street as a “rooming house,” the City’s determination could perhaps be misconstrued as stereotyping alcoholics and addicts as capable of, or deserving of, nothing more than mere occupancy, relegating them to the isolation of single rooms without the practical advantages and warmth associated with traditional home life, such as is enjoyed at DBC.  [Please see HR Rep. No 100-711 100^th Cong. 2d Sess at 24; Support Ministries v. Village of Waterford, 808 F.Supp. 121 (N.D.N.Y. 1992); Potomac Group Home v. Montgomery County, MD, 823 F.Supp. 1285 (D.Md. 1993).]  We welcome the opportunity to enter into conversation about the erroneous nature of such conclusion and the “rooming house” classification.

And it is with deep concern that we receive your directive to contact your office “as soon as the number of residents is below the allowed 3 unrelated persons” (emphasis added). We are optimistic that joint discussion and an examination of Federal case law will lead to an exemption of the City’s “unrelated persons” limit.  [Please see again Support Ministries v. Village of Waterford; Edmonds v. Oxford House, Inc; Jeffrey O. Et Al., Plaintiffs, Vs. City of Boca Raton.]  But in the meantime we are saddened to be held to an occupancy limit below the standard alleged for persons without disability. [Please see 42 USC § 3604.]

This official directive to achieve an occupancy standard below what is allowed non-disabled members of the community is acutely troubling in conjunction with the following:

• The seeming lack of any official review of FHAA and ADA protections between the site inspection on September 21 and the Cease and Desist Order on October 1, despite City officials having read DBC material specific to the nature of residents’ disability and having been verbally alerted to our protected status under Federal law.
• The seemingly casual willingness to displace a vulnerable population dependent upon stable housing as an aid in their disability, the lack of concern for the effect of such disruption upon residents’ sustained recovery from a chronic and life threatening disease, and the willingness to do so within such a short time frame without any mention of the City’s potential responsibilities under the Olmstead Act.
• The potentially demeaning and inappropriate classification of a home as a “rooming house.” In the absence of any explicit City recognition of our residents’ disability and their Federal rights to non-discriminatory treatment, this classification could be misconstrued as resulting from negative stereotype of persons battling addiction. [Please see 42 USC § 3604; HR Rep. No. 100-711 100^th, 2s Sess at 182.]
• The implications and humiliations of a “Cease and Desist” order upon a protected class (in this case, akin to demanding the cease and desist of wheelchair use). [Please see HR Rep. No. 100-711 100^th, 2s Sess at 23-24; 42 USC § 3617.]
• The very narrow, official option of “you could file an appeal for a variance” without an accompanying outline for other options such as a “reasonable accommodation” application regarding occupancy limits. [Please see 42 USC § 3604(f)(3)(b); Moorestown, L.L.C. v. Moorestown Township, F. Supp. , 1998 WL 129956 (D.N.J. 1998); again, Jeffrey O. Et Al., Plaintiffs, Vs. City Of Boca Raton.]
• The discouraging and intimidating caveat “…. but if you were successful….” (in applying for a variance)(emphasis added). [Please see 42 USC § 3617; Oxford House, Inc. v. Cherry Hill, 799 F.Supp. 450 (D.N.J. 1992); Alliance for the Mentally Ill v. City of Naperville, 923 F.Supp. 1057, 1069 (N.D. Ill. 1996).]
• The City’s concern for the WHERE (site) rather than the WHO (individuals with disability) when issuing both the “rooming house” classification and the “Cease and Desist” order.
• And the City’s seemingly circular suggestion that sober group living for alcoholics and addicts in recovery constitutes a rooming house, but rooming houses are not allowed in Franklin, therefore addicts and alcoholics in recovery who seek to maintain that recovery by living in a sober support home are effectively barred from residency in Franklin.

The aggravate effect potentially hints at a prejudicial tone in the City’s communications and conclusions concerning the residents of 60 Depot Street. [Please see Stewart B. McKinney Found, Inc. v. Town Plan & Zoning Com’n, 790 F.Supp. 1197, 1216-19 (D. Conn. 1992); Marbrunak, Inc. v. City of Stow, Ohio, 974 F.2d 43 (6th Cir. 1992).]

To the extent that DBC might have contributed to any prejudicial tone, please be re-assured that our interests are entirely cooperative.

We have little desire to set a legal precedent for sober group homes in New Hampshire or to attract public attention within or beyond the City of Franklin.

Additionally, research specific to the drafting of this letter has been costly, and we would very much like to avoid further expense for DBC in advocating for recognition of and action upon our civil rights under Federal law; likewise, we do not wish to provoke unnecessary expense for the City.

It is in this spirit of cooperation, and in recognition that Franklin might lack precedent for a sober group home and therefore lack a full understanding of the Federal protections that apply to sober group homes for individuals in recovery from and disabled by alcoholism and drug addiction that we welcome further conversation, as well as formally request a reconsideration of the “rooming house” classification and a withdrawal of the October 1 “Cease and Desist Order.”

An elementary clarification of our position regarding Federal protections under the ADA, FHAA, and the 14^th Amendment might be aided by the following resources:

• The John Marshall Law Review Volume 29 | Issue 2 Article 4 Winter 1996 “A Real Lulu: Zoning for Group Homes and Halfway Houses under the Fair Housing Amendments Act of 1988,” 29 J. Marshall L. Rev. 369 (1996) Daniel Lauber
• Joint Statement Of The Department Of Justice And The Department Of Housing And Urban Development: Group Homes, Local Land Use, And The Fair Housing Act.
• American Planning Association, Policy Guide on Community Residences. September 22, 1997.
• Rep. No. 100-711, 100^th Cong. 2s Sess. At 23-24.

We await your reconsideration and welcome the opportunity to discuss the issues further.  Thank you for your good will in examining this matter.

Jim Joy, Director