Wilmington Detox Facility Approved By Zoning Board Of Appeals

WILMINGTON, MA — A proposed Wilmington drug rehab facility was approved Wednesday by the Zoning Board of Appeals, more than a year after failing to win the same Board's approval. The Board granted reasonable accommodations, with conditions, to a new site plan submitted following mediation to resolve a federal lawsuit.

The proposal, by Bettering LLC, is to build a 48-bed short-term detox facility at 362 Middlesex Ave.

The accommodations were granted under the Americans with Disabilities Act, among other federal laws.

The Board voted four to one in favor of the facility, with Raymond Lepore as the lone vote against. The Board has the same five members as in 2019. Thomas W. Siracusa voted in favor, after voting against last time, while the other three members voted in favor both times. Zoning Board of Appeals votes generally requires supermajorities.

The new site plan rotates the building, removes a cul-de-sac and moves it closer to Middlesex Ave, reducing the visual impact on abutters behind the building, and allowing the developers to plant trees at the property line. The building is slightly taller, which Bettering attorney Mark Bobrowski attributed to a recommendation by Board member Anthony J. Barletta Jr. for the building to conform better to the neighborhood's residential nature.

Siracusa cited the building's height in his vote against the facility in 2019, but did not take issue with it Wednesday.

"It's higher but it's just a pitch height," Siracusa said. "The actual space of the building is reduced in size, and the building has been moved forward away from the neighbors."

The height conforms to the area's zoning, Bobrowski noted. Accommodations were needed for use and the new plan's closer proximity to the road.

In 2017, after the initial special permit application was submitted, the town changed zoning rules at town meeting to restrict detox facilities to industrial zones. Because of the new site plan, the facility now falls under the new zoning rules.

Attorneys representing the town said at the meeting Wednesday that the town risked serious monetary costs if it rejected Bettering's requested accommodations and then lost in court. Members of the board also faced potential personal exposure.

"The town would be looking at a multi-million dollar judgments," attorney Leonard Kesten said. "In a civil rights case like this, the town would be looking at paying opposing attorneys' fees as well, in the six figures."

Kesten is representing the town in the federal case. After the Board rejected the facility, Bettering LLC sued the town in Middlesex Superior Court. The case was moved to federal district court and in February, at the request of both parties, U.S. District Court Judge F. Dennis Saylor IV put the case on hold, pending the Board's decision.

Bobrowski said that if the vote did not result in a favorable determination, the federal case would resume.

"We thought there was a greater chance of losing than winning," Kesden said. "The town could lose a lot of money."

Board members were not named outside their representative capacity in the suit, but could be in the future, the lawyers at the meeting said. Town insurance would pay to defend them, but they could personally owe punitive damages if found guilty of acting in a willful, wanton and reckless matter.

"It'd be like going in like lambs to the slaughter if I have attorneys coming in and telling me I have a weak case," Siracusa said.

If the Board had rejected the request, the federal case would have continued with the old site plan, which did not require accommodations for use and frontage, Town Counsel Jonathan Silverstein noted.

Public commenters calling into the virtual meeting complained that the the Board was making the decision with a lawsuit hanging over them, and that the building's height had not been reduced.

Lapore said he felt intimidated by the lawsuit.

"This thing has worn on me," he said.

One caller asked if reasonable accommodation has been used for new construction. Silverstein said that there is no distinction in the ADA standard between new and old construction.

The full meeting video is available below from WCTV. The discussion of the detox facility begins at 51:20.

Christopher Huffaker can be reached at 412-265-8353 or chris.huffaker@patch.com.