McLean Hospital has filed suit against the town asking the court to find that its proposed residential facility on Bypass Road constitutes an allowable educational use according to state law and Lincoln’s zoning bylaw.
Building Inspector Daniel Walsh initially decided that providing dialectical behavior therapy to adolescent boys and young men with borderline personality disorder was allowed by the Dover amendment, a state law that permits zoning exceptions for educational and religious uses of a property. After a group of residents hired an attorney and appealed to the Zoning Board of Appeals, the ZBA overturned that decision in a 4-1 vote earlier this month.
The lawsuit notes that although the ZBA voted on November 3, its decision will not be signed until December 8. The suit was filed on November 15.
“In the meantime, the delay in openings its program has severely prejudiced McLean, both in terms of its financial investment in the program and also given the needs of the prospective residents whose admission is now delayed,” the suit says. A program director and several other senior staff for the facility have already been hired and have relocated from out of state, it says.
McLean applied for a building permit on October 12 to begin interior renovations on the Bypass Road property, but Building Inspector Daniel Walsh (who is also named as a defendant) refused to accept the application or issue a permit, pending the ZBA’s decision, according to the suit. “Although McLean understands that such renovations are undertaken at its risk, McLean, like any property owner, is entitled to make interior changes to a residential property assuming those changes meet the requirements of state and local building codes,” the suit says.
At the ZBA’s recommendation, the Board of Selectmen voted at its November 2 meeting to retain attorney Jason (Jay) Talerman of Blatman, Bobrowski, Mead & Talerman to represent the town and the ZBA. Talerman has appeared before the ZBA several times, “and the ZBA has been impressed with him and thinks he would be a great fit for the town and the ZBA in these matters,” the selectmen said in a statement.
Prior to joining his current firm, Talerman (who is also the town moderator in Norfolk) was a partner at Kopelman & Paige, where he provided town counsel services to nearly a third of Massachusetts cities and towns, according to his firm’s bio page.
“The Board of Selectmen has every confidence that Town Counsel [Joel Bard] could have effectively represented the town and the ZBA in these matters, but agrees with the ZBA that it would be best under the circumstances to retain outside counsel going forward,” selectmen said. In a May 2 email to town officials, Bard said that in his opinion, McLean’s proposed use qualified as an education use under the Dover Amendment.
Generally speaking for lawsuits of this type, the court will schedule a case management conference in about four to six weeks, after which a trial before a judge or a summary judgement hearing may be scheduled, said Diane Tillotson, McLean’s attorney.