land use

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.

The Zoning Board of Appeals voted 4-1 on Thursday night to overrule a previous finding that a proposed McLean Hospital residential facility is a permitted use of the property under state law.

McLean bought adjoining parcels at 16 and 22 Bypass Road last spring with the intention of putting 12 beds for boys age 15-21 in the large home on one of the properties. The goal was to have boys with borderline personality disorder live there for several months while receiving dialectical behavioral therapy to help them learn to function better.

Lincoln zoning bylaws prohibit uses other than residential in that area, but McLean claimed an exemption under the Dover amendment, which allows religious and educational facilities in residential areas. Building Inspector Dan Walsh and town counsel Joel Bard agreed with the hospital’s claim that the proposal constituted an educational use. But a group of neighborhood residents appealed to the ZBA, which sided with the residents after a hearing that featured much debate over whether the proposed facility was primarily educational or medical/therapeutic.

“I’m certainly a fan of the notion that you don’t have to have traditional classrooms to have it be educational, and I’m favorably inclined to the idea that education is rolled into therapy, but the Dover amendment is not written in a way to say that education is therapy and therapy is education. This is closer to therapy than education,” said ZBA member Bill Churchill.

“The primary end goal is treatment. The curative aspect is the goal here,” said ZBA member David Henken.

“I do think this is treatment. There’s obviously some education involved, but I don’t think it’s the primary purpose,” agreed board member David Summer.

“I don’t think this is an educational purpose that is the intent of the Dover amendment,” ZBA chair Joel Freedman said.

Board member Eric Snyder said he would vote “based on what he read from various doctors” on both sides of the issue. He ultimately cast the lone dissenting vote.

Freedman had a word of caution for those against the proposal, however. “The idea that Dover amendment is something that has come in and usurped local zoning is something I disagree with very much,” he said. “It’s a good thing when a community like Lincoln has to participate in things… that may be distasteful or may not be what they want. There’s no credence to the idea that there needs to be protection here.”

The ZBA achieved the minimum of four votes that are required to overturn the building inspector’s finding. Board member Kathleen Shepard was not at Thursday’s meeting and Vinit Patel recused himself from the vote.

McLean officials declined to comment after the meeting.

After two public hearing sessions, the Zoning Board of Appeals is expected to vote Thursday on whether McLean Hospital’s proposed Bypass Road facility is a permitted use for the property.

The ZBA heard arguments surrounding the appeal of a group of residents on September 29 and October 20. Both the appellants and MCLean also filed numerous court cases and letters to bolster their positions. Among them were three statements from Lincoln physicians arguing that dialectical behavior therapy (DBT) for boys and young men with borderline personality disorder constitutes a medical use and should therefore not be allowed.

Earlier this fall, a neighborhood coalition hired attorney Michael Fee to appeal the town’s building inspector finding that the proposed 12-bed residential facility is allowed under the Dover amendment, a state statute that exempts religious and educational organizations from certain local zoning bylaws. McLean says the use is primarily educational and not medical.

Definitional differences

The two sides disagreed about the definitions of terms such as “medical,” “educational” and “therapeutic.” For example, gym memberships are often paid for by healthy plans, but psychiatrists and psychologists are allowed to see patients in home offices.

They also disagreed about the exact nature of DBT. “DBT is described on McLean’s own website under the tab ‘clinical services.’ It seems like an educational use implies teachers and students, not therapists and patients,” Smith Hill Road resident Dan Pierce said at the October 20 ZBA hearing.

“BPD is a brain disease with emotional dysregulation as its hallmark and underlying documented brain abnormalities as its basis,” psychiatrist and South Great Road resident Lynn DeLisi wrote in a letter to the ZBA. “It is clear that persons who receive recognized treatments for this disorder do so in order to have their symptoms treated, not to be ‘educated’ on how to function with them.”

But McLean’s Dr. Philip Levendusky had a different view. At the September 29 ZBA hearing, he said DBT teaches “learning-based behavior change techniques integrated with relevant social and carefully managed biological, a.k.a. psychopharmacologic, strategies” and that it teaches mindfulness, emotional regulation, distress tolerance and behavioral flexibility. On October 20, he reiterated that DBT is educational because “we’re trying to teach them ways of reframing what their impulses are and other ways to handle things.”

Levendusky is senior vice president for business development and communications and director of the Psychology Department.

“It’s a great business model [to put a residential facility] in a beautiful town next door that’s too weak to resist its exploitation,” said Brooks Road resident Arthur Anthony. “There’s a lot of profit there. The Dover amendment was not intended to be a cover for big business to exploit neighborhoods and towns.”

Along with an hour of therapy each day, the facility will require 15 hours a week of classroom activities, which are “not a tagalong, not a passing fancy—it’s completely integrated,” Levendusky said, adding, “this is three to five times more educational activity than we have on Cambridge Turnpike.”

Although prescription drugs can be administered and there will be a doctor and nurse at the Bypass Road site, they will not monitor vital signs or perform any other medical procedures,” Levendusky said. Likewise, there will be classrooms and meeting rooms rather than medicalized treatment rooms. “There will be a small medical and recreational component, but I’m hoping you’ll find this is primarily educational,” he said.

The Bypass Road building will be locked “based on [neighbors’] concerns, not based on the profile of the kids,” Levendusky said. Teenagers who are actively abusing substances or who have a police record will not be permitted.

McLean is applying for licensure for the Bypass Road facility from the state Department of Early Education and Care, which also licenses other children’s facilities including day care centers, McLean’s 3East inpatient facility for teenage girls (which is also licensed by the Department of Public Health), the Perkins School for the Blind and the Home for Little Wanderers. Because its residents are adults, McLean’s facility on Concord Turnpike is licensed by the state Department of Mental Health.

The whole issue is murky enough that “you can be intellectually honest and rigorous and come down on either side,” former Planning Board member Bob Domnitz, who was in the audience, told the ZBA. “This project is almost certainly headed to court, so you have to ask yourself, ‘What would residents want us to do?’ The answer is to follow the zoning. I don’t see why a local board would approve this in the absence of a clear mandate or requirement to do this. I’m asking you to keep this trust intact.”

The residents who appealed the building inspector’s decision are Steven and Linda Kanner, Robyn Laukien, Daniel McCarthy, Jay Gregory, Douglas and Lisa Elder, Ted and Nandini David, Beverly and Daniel Peirce, Michael and Lisa Gurrie, Lara and Arthur Anthony, and Mark and Sarah Crosby.