May 14, 2006

Council ‘can endorse social service report’

May 14 , 2006 

Worcester Telegram & Gazette (MA)
By Lee Hammel TELEGRAM & GAZETTE STAFF
lhammel@telegram.com

WORCESTER— The City Council can endorse the Mayor’s Social Service Task Force report without violating the law, according to an opinion of the city solicitor that will be given to the council Tuesday. 

But the city manager would have to be careful in implementing the recommendations in order not to violate state or federal law. 

A challenge to whether sober houses and the People in Peril Shelter are protected by state law almost certainly would not withstand court scrutiny, City Solicitor David M. Moore said in his opinion. The Research Bureau has recommended such a challenge.

City Manager Michael V. O’Brien provided the council with Mr. Moore’s opinion after city councilors showed impatience last week with a six-month wait. The recommendations from the task force and the research bureau were both issued in October. 

Two nonprofit legal organizations, Legal Assistance Corporation of Central Massachusetts and the Judge David L. Bazelon Center for Mental Health Law in Washington, D.C., both questioned whether implementation of the reports would violate federal housing law and the state’s Dover Amendment, which protects nonprofit organizations with religious or educational programs from certain zoning requirements. 

Among the task force’s recommendations are creation of a social service agency liaison and voluntary guidelines for social services agencies notifying city officials and neighbors about new residential programs. It recommends that the state require social service programs to map all other social service agencies operating within a half mile, limit programs to no more than eight residents, and encourage communities not doing their share to accept more social service programs. 

The task force also set forth several voluntary alternatives for nonprofit social services programs to make payments in lieu of taxes to the city or to forgo exemptions from property taxes to which the programs are entitled. 

A joint meeting of the Municipal Operations and Health committees last week unanimously recommended that the council take up the task force report on May 23. Some of the most well-known recommendations of the mayor’s task force are voluntary, including that social service agencies notify officials, and neighbors, when certain benchmarks are met during siting of residential human service programs. The task force recommended that the state make those notifications mandatory, but the legal advocates contend that notifications that discriminate against people with disabilities violate federal housing law. 

Mr. Moore wrote that “there is no doubt that government-mandated neighborhood notification requirements are contrary to federal law.” 

He addressed the steps that the report recommended the city take, particularly the creation of the social service agency liaison. Part of the liaison’s duties apparently would depend on the state implementing a recommendation to create a new property class code identifying the locations of programs funded by the state, Mr. Moore said. 

That is because the city’s social service agency coordinator would be charged with establishing an inventory of all social service programs so the assessors can classify them with the new code. To avoid running afoul of the law, the city solicitor said, the liaison position should be excluded from any funding decisions or recommendations made by any city or state official. 

Mr. Moore said he disagrees with the argument that collecting information about where people with disabilities live is prohibited. Mr. Moore also took on the research bureau’s challenge of the Dover Amendment. The research bureau’s observation is correct that the state Supreme Judicial Court has not precisely ruled that substance abuse recovery programs constitute educational programs covered by the Dover Amendment, he said. 

But Mr. Moore predicted that the SJC would rule that way because it has viewed “educational use” broadly in almost every case that has come before it. 

The city solicitor also said the research bureau is correct that the federal Fair Housing Act excludes illegal drug users from its protection, but the Supreme Judicial Court has ruled that anyone who has been rehabilitated successfully and no longer uses illegal drugs is protected. 

Roberta R. Schaefer, research bureau executive director, said she stillbelieves that the city would have a strong case if it challenged the belief that sober houses cannot be excluded from residential neighborhoods.