Chronology

A.Chronology

CHRONOLOGY

May 5, 2014   After review of the City’s zoning codes pertaining to the definition of single household occupancy, Jim Joy purchases 60 Depot Street from James and Ethel Dion, who had resided in the home since 1965, raising a large family in a single-family dwelling. The home is 3,600 square feet, with two bathrooms and six bedrooms.  The home sits on a corner lot, facing woods and the rail trail.  The neighbors to the right and rear are single family.  The neighbors to the left across the street are multi-family.

July 2014   Driven by Circumstances opens as a sober group home for men disabled by addiction or alcoholism.  A live-in House Manager and Jim Joy, as Director, help residents maintain recovery by offering peer recovery support, random drug testing, and the structure of curfews, chores, AA/NA meeting attendance, household meetings, and the example of cooperative living.  Residents range in age from 19 to 67.  Through word-of-mouth they are referred to DBC by places such as Webster Place, Farnum Center in Manchester, Hampstead Hospital, Plymouth House, Riverbank House, and Phoenix House.  All residents (unless retired) are expected to find employment.  Their occupations include student, retired corrections officer, master carpenters, software engineer, roofer, chefs, antique book dealer, Spaulding Youth Center employees, Webster Place employees, landscapers, retail workers, retired baker, mechanical engineer, a restaurant owner, and auto detailers.  Many are fathers.  A few own their own homes.  The number of residents (including a House Manager and the Director) fluctuates between four and ten, never exceeding the Dion family occupancy.  The length of time residents spend at DBC varies.  Two residents have been at DCB since February and plan to remain indefinitely.  One is in the process of opening his own restaurant in Tilton.  The majority of residents spend 4 to 6 months at DBC and move to more independent living or return to their original families when they feel ready.

March 2015  Jim Joy changes permanent residency from Meredith, NH to 60 Depot Street.

September 2015  The mother of a resident calls the City Welfare office to confirm that Driven by Circumstances exists; because her son has a long history of addiction and dishonesty the mother fact-checks every claim he makes.  A woman from the City Welfare office then called DBC because it was not listed as a licensed facility with the State.  We explained that we were a home rather than a facility and that the peer support and structure we offer does not require licensing by the State (nor do we receive any funding from the State) because we are not a clinical treatment program.  The State of New Hampshire has no regulatory requirements for sober group homes.

September 21, 2015    Mr. Lewis and Captain Bodien request a site visit.  At that time Jim Joy, the Director, explains the concept of sober group living and residents’ protected status under the ADA.

October 1, 2015  Mr. Lewis and Captain Bodien return and deliver a Cease and Desist Order B.1.October1, classifying our use of 60 Depot Street as a rooming house, a prohibited use.  (Item B. 1. of the supporting documents) with a 30 day deadline.  The Director again mentions protected status and the ADA.  Captain Bodien said he had heard of it.  He then said DBC’s zoning issue might be an issue of vocabularly.

October 8, 2015  DBC requests a reconsideration of the rooming house classification and a withdrawal of the Cease and Desist B.2.October8.  This correspondence attempts to outline the concepts behind sober group living as an aid in disability management. (Item B. 2. of the supporting documents.)  We receive no response from the City.

October 28, 2015  Jim Joy calls the Planning Office two days before the Cease and Desist deadline.  Mr. Lewis returns the call saying that the City was reviewing the October 8 letter from an administrative and legal perspective.  In a subsequent conversation Mr. Lewis said the City was withdrawing the Cease and Desist and that at some point the City would be in touch.

November 30, 2015  After review by the Planning Office, the Building Inspector, and the City Counsel, the City stands by the rooming house classification.  (Item B. 3 of the supporting documents.) B.3.November30

December 23, 2015  DBC acknowledges the November 30 administrative determination and begins the process of appeal Appeal grounds.  We ask that the Cease and Desist and any action on life or safety codes be held in abeyance until our appeal is heard.  Additionally, we request an administrative interpretation of the de-classification of 60 Depot Street as a single-family dwelling and an outline of the specific factors weighed in the City’s reconsideration of the rooming house classification. (Item B. 4 of the supporting documents.) B.4.December23

December 24, 2015  We request procedural direction from the Planning Office regarding the mechanism appropriate to making a request for reasonable accommodation based on disability.B.5.December24

December 28, 2015  We submit the Application for Appeal to the Planning Office.

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Grounds for Appeal

Appeal grounds

Appeal of Administrative Decision dated November 30, 2015

Re:  60 Depot Street; tax map/lot 099-050-00/Rooming House determination of October 1, 2015

Respectfully, the owner and residents of 60 Depot Street appeal the administrative determination classifying our use of structure as a rooming house rather than as a single family dwelling on the grounds that:

Collectively, the residents of Driven By Circumstances live together as a single nonprofit housekeeping unit in a single family dwelling as allowed by the City’s zoning ordinances. The “single housekeeping unit” concept and daily practice of communal living in a group home is the entire purpose of residency at 60 Depot Street; such residency is a crucial support in the maintenance of sobriety and abstinence for every member of the household.  Each member of our household has history or documentation of individual disability necessitating the support and structure of single household living focused on recovery.

  1. Residents choose to live together at 60 Depot Street specifically because residency in a rooming house would likely destabilize successful management of a life-threatening disability by encouraging isolation and by provoking relapse, a result realized in each resident’s personal history. Currently, as members of one household, we share use and enjoyment of the entire home.  There are no locks on the doors of individual rooms.  We collaboratively share in chores, meal preparation, lawn care and property maintenance.  We each actively participate in the community of the home and its recovery-focused practices.  We lean on each other and count on each other for emotional, social, and spiritual support as bonded members of a single household, much as a traditional family functions.  We choose single household membership and living based on the recommendations of counselors and treatment professionals.  While many of us have been unable to individually maintain stability while living alone or with our genetic families, as residents of 60 Depot Street, we are able to maintain individual stability because the household unit provides our stability.  As active members of a single, recovery-focused household we avoid the loneliness, isolation, boredom and social exclusion that have destabilized us and led to relapse in the past when we have attempted too much independence too soon in our previous attempts at recovery.
  2. Not every person in recovery is disabled by addiction. However, the residents of 60 Depot Street have been disabled by addiction to the extent that sober group living is essential to the management of a disease that threatens our very lives.  For some of us, the experience of group living will help us eventually recover from the state of disability that requires group living; some of us might never successfully live alone, independent from mutual support.  Each of us has found it difficult in the past to ask for or to seek out help and support.  Our choice to live as members of a single household at 60 Depot Street – to admit the extent to which we have been disabled by addiction and the extent to which we need the support of others – represents a huge personal victory for each of us.  We are participants in life – in our Driven By Circumstances household, in the larger Franklin recovery community, and in the community of Franklin itself.  This sense of belonging is a critical component to our recovery, yet by classifying us as a prohibited rooming house, the City has determined on two separate occasions (October 1 and November 30) that we do not qualify for belonging at our current household level, and that for as long as we are disabled to the extent that we need supportive group living, we do not qualify for belonging within the Franklin community since our group living constitutes a prohibited use.
  3. If we were to follow the City’s suggestion and apply for a variance to operate as a rooming house we would effectively be seeking permission to live isolated and segregated and independent — rather than as we live now, together, in mutual support. Applying for a variance to operate as a rooming house in a city that does not want and does not allow rooming houses would be seeking permission to live where we are not wanted at the very time in our lives that we are working so hard to reclaim membership within the larger community. The suggestion that we seek out a prohibited style of living is humiliating and threatens the sense of belonging so crucial to our recovery.  The City is under no obligation to provide us with a sense of belonging, but we ask that it not pursue capricious action to compromise the belonging we have worked so hard to achieve on our own.  Essentially, if we were to follow the City’s suggestion and apply for a variance to operate as a rooming house, the action would utterly compromise our commitment to recovery.  It would betray the individual efforts we have made to seek and rely upon structure, support, and mutual supervision.  It would start us on the slippery slope of regressive, reckless, and selfdestructive action, which would threaten our hard-earned stability in recovery.
  4. Currently, DBC group home members collectively agree to abide by certain recoverydirected expectations and requirements, because relying on such structure helps assure our continued recovery. Even with zoning permission, if DBC were to operate as a rooming house, the relationship between residents and the priorities of recovery would radically change; rooming house residents are not members of a single household, and an individual roomer could separate himself from the mutual aid and cooperative community we have built and refuse to abide by agreed upon expectations and requirements that help the majority maintain recovery.  An individual could refuse drug testing, leave prescription narcotics unsecured, and show up intoxicated with no consequence, creating and encouraging a detrimental and dangerous environment for others.  In short, if DBC were to operate as a rooming house, rather than as a single household that exercises democratic, communal, cooperative, recovery-focused, structured living for those who need it, DBC would cease to exist. 6. In its zoning ordinances, the City of Franklin uses a progressive definition of family: “One or more persons occupying the premises and living as a single nonprofit housekeeping unit.”  That definition does not require that members of the family household be related by marriage, blood, or adoption.  The definition does not specify age, gender, or household member limitations.  It does not define nonprofit as a 501c3 organization.  DBC established in Franklin in large part because a bonded, communal, supportive “family” model of recovery housing aligned with the City’s own zoning definitions.  The previous occupants of 60 Depot Street used the structure as a single family dwelling for 47 years.  That very large family established the structure’s practical occupancy capacity; DBC does not increase the number of previous occupants, and in our function as a single household we have not altered the structure’s use.  We are appealing the classification of rooming house for the reasons previously stated, but at the same time we contend that by living as a single household unit in a structure that has always been a single family dwelling, we are not in violation of Franklin’s zoning ordinances.

Respectfully, prior to this appeal, we have had multiple interactions and communications with Mr. Lewis, two with Building Inspector Bodien, and by virtue of cc’d correspondence, several with Mayor Merrifield, City Manager Dragon, Fire Chief LaChapelle, and City Attorney Fitzgerald.  These interactions included Mr. Lewis’ preliminary investigation of the DBC web page and Facebook page – both of which are replete with reference to addiction and recovery, two site inspections during which we alerted Mr. Lewis and Inspector Bodien to protections afforded by the Americans with Disabilities Act of 1990, a hand-delivered Cease and Desist Order, and an emailed Administrative Determination.  Our very detailed letter of October 8 outlined the federal statutes and case law pertaining to our protected status as persons with disability under the Fair Housing Amendments Act of 1988 and the ADA, as well as specific cases in which federal courts uphold the rights of group homes for persons disabled by addiction to function as family units in single-family dwellings and that such municipal accommodation of zoning ordinances is reasonable based on disability.  Our October 8 correspondence includes a list of resources that clarify Fair Housing laws for municipalities.  The letter was reviewed by the Planning and Zoning Department, the Office of the Building Inspector, and Attorney Fitzgerald, the City’s Legal Counsel.  They concluded that we had not presented “any information” that suggests the rooming house classification is misapplied.  (We disagree but will concede that presenting reference to information is not the same as presenting information.)  At no time throughout any of these interactions has any official from the City of Franklin even been willing to acknowledge disability, FHAA, ADA, or federal statutes affording certain protections to persons disabled by addiction.  At no time have we been directed to the City’s mechanism for request of reasonable accommodation based on disability.  The only remedy offered to us has been the suggestion that we apply for a variance to operate as a prohibited and misrepresentative use that would effectively deny us the benefit of substance-free, supportive, structured, communal living necessary for the management of our disabilities.

The burden of educating and enlightening Franklin officials about the City’s responsibility to consider and comply with the ADA, the FHAA, and federal case law should not fall upon the very citizens in need of — yet denied — consideration of such protections.

Accordingly, and because the Application for Appeal states an application is incomplete unless all pertinent and supporting documentation is included, our supporting documentation includes:

A.Chronological history of Driven By Circumstances

B.Copies of all correspondence:

  1. October 1, 2015 Cease and Desist from City
  2. October 8, 2015 response from DBC
  3. November 30, 2015 Administrative Determination from City
  4. December 23, 2015 request for interpretation by DBC
  5. December 24, 2015 request for clarification of procedure by DBC

C.New Hampshire Municipal Association. “Fair Housing in New Hampshire,” New Hampshire Town and City, November/December 2013. Christine Wellington, Esq. and Ben Frost, Esq., AICP C. New Hampshire Municipal Association

D.New Hampshire Housing Finance Authority. Fair Housing for Regional and Municipal Plannning: A Guidebook for New Hampshire Planners, April 2014.D. New Hampshire Fair Housing Planning Guide2014

E.American Planning Association. “Policy Guide on Community Residences,” September 1997. E. Policy Guide on Community Residences

F.“Alcoholism, Drug Addiction, and the Right to Fair Housing: How the Fair Housing Act Applies to Sober Living Homes,” Matthew M. Gorman, Anthony Marinaccio, Christopher Cardinale.  The Public Law Journal Vol 33, No. 2, Spring 2010 F. Alcoholism, Drug Addiction, and the Right to Fair Housing

G.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.” G. Joint Statement of DOJ and HUD

H. Michael Mirra, “Group Homes and Zoning Under the Fair Housing Act,” Columbia Legal Services. April 23, 1998. www.hudexchange.info/ resources/documents/GroupHomesandZoning.pdf H. Group Homes and Zoning

I.Daniel Lauber, “A Real Lulu: Zoning for Group Homes and Halfway Houses under the Fair Housing Amendment Acts of 1988,” 29 The John Marshall Law Review 369 (1996) I. A Real Lulu- Zoning for Group Homes and Halfway Houses under the

J.Douglas E. Miller, The Fair Housing Act, Oxford House, and the Limits of Local Control Over the Regulation of Group Homes for Recovering Addicts, 36 William & Mary Law Review 1467 (1995) J. The Fair Housing Act Oxford House and the Limits of Local Contr

K.“Fair Housing for Sober Living: How the Fair Housing Act Addresses Recovery Homes for Drug and Alcohol Addiction,” Matthew M. Gorman, Anthony Marinaccio, Christopher Cardinale. American Bar Association, 2010. K. Fair Housing for Sober Living

L.United States v. Borough of Audubon, 1991. United States District Court affirms persons disabled by addiction as a protected class. Borough found in violation of FHAA by taking actions to make unavailable or deny use of single family home by group in recovery and by taking actions to “coerce, intimidate, threaten, or interfere with exercise or enjoyment of any right granted or protected under the Act.”  Audubon in violation of the act by discriminating against residents on the basis of handicap.  Permanent injunction and civil penalty of $10,000 granted.  The court refrained from awarding damages because relief was voluntarily settled by the parties. L. US v. Audubon

M.Oxford House v. Township of Cherry Hill, 1992. United States District Court grants request for preliminary injunction enjoining the Township of Cherry Hill from interfering with the occupancy of the single family home by a group of persons disabled by addiction. Town found in violation of FHAA because application of “family” in zoning ordinance had a disparate impact upon persons disabled by addiction who need to live as a group in residential neighborhoods for mutual support.  Town found in violation of FHAA for failing to provide reasonable accommodation via waiver of single family requirement.  Town found to have caused irreparable injury by jeopardizing recovery process. M. Oxford House v. Cherry Hill

N.Oxford House v. Town of Babylon 1993. The Town takes action to evict the residents of a group home for persons in recovery, alleging a violation of Town Code in that the group home represents a “boarding house.”  The group home applies for an injunction in United States District Court, at which point the Town “contends that plaintiffs are in violation of the Town Code because they are not a “family” or the “functional and factual equivalent of a natural family.” The court affirms that “Recovering alcoholics or drug addicts require a group living arrangement in a residential neighborhood for psychological and emotional support during the recovery process” and that “As a result, residents of a (recovering group home) are more likely than those without handicaps to live with unrelated individuals.” The Town alleges that “any discriminatory effect (the eviction) may have on plaintiffs is due to plaintiffs’ transiency and failure to live as a family, not because of their handicap.”  The court finds discriminatory intent as well as discriminatory effect, in violation of the FHAA. The court also finds that the group home requested an accommodation based on disability (classification as a single family) and that the accommodation was reasonable because it imposed no burden upon the Town.  The court finds that in denying the reasonable accommodation, the Town is in violation of the FHAA and guilty of discrimination via disparate impact.  The injunction against the Town is granted. N. Oxford v. Babylon

O.City of Edmonds v. Oxford House, 1995. United States Supreme Court rules in groundbreaking, foundational case concerning group homes for persons disabled by addiction and the Fair Housing Act’s relationship to zoning codes pertaining to definitions of family.  The court held that “family-defining” in order to limit occupancy is not exempt from compliance with the Act. O. Edmonds v. Oxford House

P.United States v. CA Mobile Home Park MGMT, 1997. United States Court of Appeals, Ninth Circuit specifies requirements for request of reasonable accommodation based on disability in the context of the FHAA and ADA protections. P. Henrietta D. v. NYC

Q.Henrietta D v. Michael Bloomberg, Mayor of the City of New York, 2003. United States Court of Appeals, Second Circuit finds in favor of plaintiff in a decision that further specifies expectations and responsibilities for requesting and granting reasonable accommodation because of disability in the context of FHAA and ADA protections and compliance. Q. UnitedStates v. CA Mobile

R.Tsombanidis v. City of West Haven, Connecticut                                   1.Tsombanidis I, 2001. The United States District Court ruled in favor of plaintiff, finding that the City violated the FHAA and ADA by classifying a group home of recovering persons as an illegal boarding house, by enforcing building and fire codes in a discriminatory manner and by refusing to treat the group home as it would a single family residence.  Sample of relevant passages highlighted.  In addition to the ruling that the City acted with discriminatory intent, the City was found to be in violation of the FHAA based on disparate impact; the disparate impact ruling was not appealed. R.1.West Haven I                                                                 2.Tsombanidis II, 2002. The City’s appeal was heard in United States District Court. “Connecticut City and Fire Department to Pay $271,000 in Judgments and Fees in  Disability Case,” National Fair Housing Advocate. August 2002.  Notations at end of article.  R.2.West Haven II                              3.Tsombanidis III, 2003. The City’s appeal was heard in United States Court of Appeals, Second Circuit, which upheld the District Court’s finding of discriminatory intent and its finding of discriminatory failure to grant reasonable accommodation based on disability. The $271,000 judgment was also upheld. R.3.West Haven III

S.Pacific Shore Properties v. City of Newport Beach, 2011 S.1.From The Orange County Register S.2.PacificShoresvCityofNewportBeachand cover article from The Orange County Register.S.1.From The Orange County Register Before the United States District Court, a collection of group homes for persons in recovery from addiction alleged housing discrimination in violation of the FHAA and ADA.  The court ruled that the homes had no standing with which to sue the City.  In 2013, the group homes appealed to the United States Court of Appeals, Ninth Circuit and the court found cause to move forward with claims of discrimination.  The City asked the United States Supreme Court to hear an appeal, but the court declined.  In 2015, the City reached an out-of-court settlement with the group homes for $5.25 million.

Help Us to Understand

B.4.December23

December 23, 2015

 

 

Re:  Administrative Determination of November 30, 2015 and request for interpretation/ 60 Depot Street; tax map/lot 099-050-00

Dear Mr. Lewis,

We received the City’s administrative determination of November 30.  Our request for an appeal of that decision will arrive under separate cover.

Since all points in the City’s administrative determination of November 30 are dependent upon the de-classification of our residency as single household/single family and its re-classification as a disallowed rooming house, we ask that the City hold the Cease and Desist and action upon life and safety codes in abeyance until hearing our appeal.

We would like to emphasize again our desire to work with the City of Franklin.  In that context, we ask the City’s assistance in helping us better understand the civic perspective.  We would be grateful if you would provide us with an administrative interpretation of your initial classification of 60 Depot Street as a “rooming house.”

We would also ask, respectfully, for an outline of the specific factors considered, weighed, and brought to bear upon the City’s reconsideration of that classification which resulted in the Administrative Determination of November 30.  You note in that November 30 correspondence that we “have not presented any information” that suggests the classification was misinterpreted or misapplied; however, your letter provides no specific criteria upon which you and Building Inspector Bodien made your reconsideration, and we are left with only an outline of the factors that were deemed irrelevant or uninformative but no exposition on the factors that were deemed relevant.  In the spirit of good faith and cooperation, we seek a balanced understanding of the City’s position.

Additionally, we request an administrative interpretation of:

  • the factors that disqualify our use as a single nonprofit housekeeping unit in a single family dwelling
  • the ways in which, if any, our existence as a group home functioning as a family unit in a single family dwelling imposes an undue burden or expense upon the local government, necessitating action by the City
  • why or how our existence creates, if any, a fundamental alteration in the zoning scheme of Franklin, necessitating investigation by the City

Thank you for considering our request for interpretation of the initial re-classification, the reconsideration of that re-classification, and the de-classification of 60 Depot Street as single family use.

Sincerely,

Jim Joy, Director

 

City Won’t Reconsider

B.3.November30

CITY OF FRANKLIN, NEW HAMPSHIRE

‘”The Three Rivers City”

Planning and Zoning Department Tel: (603) 934-2341 316 Central Street          Fax: (603) 934-7413

Franklin New Hampshire 03235                                              dlewis@franklinnh.ora

November 30, 2015

Jim Joy

60 Depot Street

Franklin, NH 03235

Re: Response to Letter of 10/8/15 regarding Cease and Desist Issued by City on 10/1/15 60 Depot Street; tax map/lot 099-050-00

Dear Mr. Joy,

Thank you for the thorough response provided in your letter dated 10/8/15 [received on 10/14/15]. The letter has been reviewed by this office, the office of the Building Inspector, and the City’s Legal Counsel. While you raise some interesting points in your letter, the City still believes that its position and determinations outlined in our 10/1/15 letter remain valid and applicable. A few specific items highlight that position.

  1. The determination that this use, in relationship to the structure, is properly defined as a “rooming house” remains appropriate. You have not presented any information that either Building Inspector Bodien or I have misinterpreted or misapplied that use classification.
  2. It is our opinion that we have not singled out your use in any type of discriminatory fashion. The zoning ordinance is quite clear that rooming houses are not an allowed use, and they can only be approved through the issuance of a variance from the Franklin Zoning Board of Adjustment. Similarly, the life safety codes that would apply to your use and structure would also be applied to any rooming house type of use anywhere in the City.
  3. The determinations and findings in our 10/1/15 letter does not bar, contrary to your line-ofthinking it the bullet item at the top of page 5 of your letter, residency by persons engaged in recovery. The Cease and Desist Order was issued based on the determination that the structure is being used so that is meets the rooming house definition, thus there are violations of both zoning provisions and life safety codes.

I want to again inform you that the zoning issues relative to the rooming house determination can be brought, if you so choose, to the ZBA for an application for a variance and zoning relief. Regarding Life Safety codes, any discussion on the topic of appeals or variations from the applicable codes will need to be discussed with Captain Chuck Bodien, the Building Inspector.

If you wish to set-up another meeting to discuss any issues or proposed schedules for a variance application to the ZBA, please contact me as soon as possible.

Sincerely,

Richard Lewis

Director of Planning and Zoning

Sent Via Email

cc:                    Mayor Ken Merrifield

Elizabeth Dragon, City Manager

Kevin LaChapelle, Fire Chief

Captain Chuck Bodien, Building Inspector

Paul Fitzgerald, City Attorney

DBC Response to Eviction

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 21st 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 14th 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 100th 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 100th, 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 100th, 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 14th 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, 100th 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

Cease and Desist Order

B.1.October1

CITY OF FRANKLIN, NEW HAMPSHIRE

“The Three Rivers City

Planning and Zoning Department Tel: (603) 934-2341 316 Central Street   Fax: (603) 934-7413

Franklin New Hampshire 03235                                                     dlewis@franklinnh.org

October 1, 2015

Jim Joy

60 Depot Street

Franklin, NH 03235

Re:          Determinations from Site Inspection

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

Dear Mr. Joy,

First, thank you for taking the time to meet Chuck Bodien, the City’s Building Inspector and Fire Safety Code Officer, and I for the Site Inspection on Monday the 21st. After we walked through the building, and discussed some issues, we indicated that we would review the issues in greater detail and then get back to you with our findings and conclusions, Since there are two separate issues to be considered [zoning and fire and safety codes] I will address them individually. Given the type of use of the building, the use would be classified as a rooming house; this use classification is applicable for both Zoning and Fire / Life Safety Code purposes

Zoning Issues

Under the City of Franklin’s Zoning Ordinance, Rooming Houses are not an allowed use. As I indicated, this use was removed from the Zoning Ordinance Table of Uses several years ago. You could file an appeal for a variance from the Zoning Board of Adjustment, but if you were successful, the fire and life safety code issues discussed below would continue to be a requirement for keeping this building as a rooming house.

I do want to let you know that this property is located in the B-l [Business] zoning district, where, under the Table of Uses, a Two-family dwelling is allowed by right. Since, though, the property does not meet the required land area, you would need a variance from the Zoning Board of Adjustment. Obviously, several improvements [second kitchen, new bathroom(s), electrical work, fire and safety codes, etc.], all carried out under a building permit, would be required for the creation of a second dwelling unit.

Fire and Life Safety Code Issues

As mentioned above, the applicable fire and life safety codes classify this building as a rooming house. A rooming house designation carries with it significant code requirements, including, but not limited to, the following: a sprinkler system; the hard wired detectors mentioned above; appropriate fire separations; and, enclosed stairways for fire protection purposes. The design plans for all of the improvements that would be required for a rooming house could be prepared by a component contractor, but you should communicate with Captain Bodien to see if a licensed design professional may be required.

Cease and Desist Order

Based on the current use of the building, the number of residents living there, and the outstanding code issues, this letter is intended to serve as a Cease and Desist Order issued jointly by my office and the office of the Building Inspector and Fire & Life Safety Officer. By and through this letter, you are ordered to cease all rooming house uses of the property within 30-days from the date of issuance. As soon as the number of residents is below the allowed 3

unrelated persons, please contact my office so we can schedule a second inspection to verify that you have brought the property into compliance.

If you wish to set-up another meeting to discuss any issues or proposed schedules for a variance application to the ZBA, please contact me as soon as possible,

While I appreciate the support you were providing to certain members of our community, the Zoning Ordinance and the Fire and Life Safety Codes are critical to protecting the interests of the residents of the City and all of our neighborhoods. Thank you and I look forward to your cooperation and assistance in resolving these issues within the 30-day timeframe mentioned above.

Sincerely,

Richard Lewis Captain Charles Bodien
Director of Planning and Zoning Buitding Inspector and Fire & Life Safety Officer

Franklin Fire Department

cc:                            Mayor Ken Merrifield

Elizabeth Dragon, City Manager

Kevin LaChapelle, Fire Chief

Paul Fitzgerald, City Attorney