COMMONWEALTH OF MASSACHUSETTS. HAMPDEN, ss. SUPERIOR COURT CIVIL ACTION No. 16-00401 PATRICIA TASTE-RAY vs. CITY OF SPRINGFIELD ZONING BOARD OF APPEALS & others! MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR ‘TEMPORARY RESTRAINING ORDEI ‘The plaintiff, Patricia Taste-Ray (“Ms. Taste-Ray”), requests that the court issue a ‘Temporary Restraining Order to prevent the continued construction and alteration to a building and site located at 155 Mill Street, Springfield (“Mill Street location”). The defendants, City of Springfield Zoning Board of Appeals (“the ZBA”), Daniel Morrissey, Norman Roldan, Walter Gould, Bruce George, Andrew Wall, Members of the Board of Appeals (“Board Members”), Steven Desilets, City of Springfield Code Enforcement Commissioner (“Enforcement Commissioner”), and Mill Street Iconic Properties, LLC (“Iconic”) (collectively “the defendants”), oppose Ms. Taste-Ray’s motion. For the following reasons, Ms. Taste-Ray’s motion is DENIED. BACKGROUND In 1985, the Hampden County Sheriff's Department (the “Sheriff's Department”), opened the Western Massachusetts Correctional Alcohol Center (“WMCAC”). The WMCACs stated purpose is “to uphold present and future Public Safety by confining addicted offenders within a safe and secure setting designed to inculeate within them the responsibility for living a sober and * Daniel Morrissey, Norman Roldan, Walter Gould, Bruce George, Andrew Wall, Members of the Board of Appeals, ‘Steven Desilets, City of Springfield Code Enforcement Commissioner, and Mill Street Ieonie Properties, LLC.law abiding lifestyle.” For nearly thirty years the WMCAC successfully operated on Howard Street in Springfield. In March, 2015, however, the WMCAC was forced to relocate due to MGM Casino construction, ‘The Commonwealth intends to renovate the existing building at the Mill Street location to house the WMCAC. The Mill Street location formerly housed the Ring Nursing Home and then was used as a lodging house, On April 7, 2015, the former Mill Street location owners and the Sheriff's Department submitted an application for a site-plan review for the proposed WMCAG, pursuant to Article 12 of the City of Springtield’s Zoning Ordinance. The application described the WMCAC as an “Educational Treatment Center.” The following day, April 8, 2015, the City of Springfield (“the City”), approved the site plan after finding that the proposed use came under G. L. ¢. 40A, §3, (the “Dover Amendment”). Accordingly, the site plan was not subjected to the typically required special permitting process. Iconic acquired the property and recorded the deed on January 27, 2016, Also in January, 2016, the Commonwealth entered into a lease agreement with Iconic to lease the Mill Street location. Iconic re-submitted the same site plan that the previous owners submitted for review and approval. On February 1, 2016, the City approved the site plan and again determined that the Dover Amendment exempted the proposed use from the special permitting process. On February 4, 2016, the City of Springfield Building Department (“Building Department”), issued Iconic a building permit to allow it to make the changes necessary to house the WMCAC at the Mill Street location. Ms. Taste-Ray’s residence abuts the Mill Street location. On March 29, 2016, Ms. Taste-Ray filed an application with the ZBA, pursuant to G. L. ©. 40A, §§ 3, 11, 15, and 16, to appeal the grant of the building permit. On May 11, 2016, theZBA held a hearing on Ms. Taste-Ray’s application for appeal. On the same day, the ZBA issued a Notice of Decision denying Ms. Taste-Ray’s appeal. On June 10, 2016, Ms. Taste-Ray filed this action in the Hampden County Superior Court seeking the herein requested Temporary Restraining Order, and, ultimately, judicial review of the ZBA’s final decision denying her appeal. DISCUSSION 1. Temporary Injunetion A preliminary injunction is an extraordinary remedy and “should not be granted unless the plaintiff [has] made a clear showing of entitlement thereto.” Student No, 9 v. Bd. of Educ., 440 Mass. 752, 762 (2004). The plaintiff's burden is well established. “To succeed in an action for a preliminary injunction, a plaintiff must show (1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction; and (3) that, in light of the plaintiffs likelihood of suecess on the merits, the risk of irreparable harm to the plaintiff outweighs the potential harm to the defendant in ‘granting the injunction.” Tri-Nel Mgmt, v. Board of Health, 433 Mass. 217, 219 (2001). “When, as here, a party seeks to enjoin governmental action, the court also considers whether the relief sought will adversely affect the public.” /d. By definition a preliminary injunction must be determined before the parties are granted a full hearing on the merits. See Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 616 (1990). Thus, the court will determine the necessary elements based on “an abbreviated presentation of the facts and the law.” Id. The moving party “must show that, without the requested relief, it may suffer a oss of rights that cannot be vindicated should it prevail after a full hearing on the merits.” Jd.A. Likelihood of success on the merits Ms. Taste-Ray's complaint alleges several counts for violations of the City of Springfield Zoning Ordinances (Counts I-II1), violations of several statutes regulating the scope of zoning laws (Counts IV-V), violation of the Dover Amendment (Count VD, and violation of due process, pursuant to Article 29 of the Massachusetts Declaration of Rights (Count VII), To prevail on her motion for preliminary injunction, Ms. Taste-Ray must show that she has a likelihood of success on the merits of at least one of her counts. See Tri-Nel Mgmt., 433 Mass. at 219. @ — Counts LVI Although the burden is on Ms. Taste-Ray to show a likelihood of success, the defendants assert two succinct arguments for why Counts I-VI cannot succeed on the merits. See Id. First, they claim that the WMCAC qualifies for a zoning exemption under the Dover Amendment, Second, the defendants argue that, because the WMCAC is a creation of the SherifPs Department and DCAMM, itis therefore, exempt from municipal zoning restrictions, a. The Dover Amendment's Applicability “The Dover Amendment provides, in relevant part [N]or shall any (zoning] ordinance or by-law prohibit, regulate or restrict the use of Jand or structures for religious purposes or for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politie or by a religious sect or denomination, or by a nonprofit educational corporation; provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements” Regis College v. Town of Weston, 462 Mass. 280, 284-285 (2012), quoting G. L. c. 40A, § 3. As it applies to the present case, in order to obtain the Dover Amendment's protection, the 4Jand use in question must be for an educational purpose and must be owned or leased by the Commonwealth. See Regis College, 462 Mass. at 285. ‘The parties’ exhibits clearly show that the Commonwealth entered into a contract, with Iconic to lease the Mill Street location. Ms. Taste-Ray, however, claims that the WMCAC is a correctional facility, and as such, cannot be considered to have the required educational purpose. The court disagrees. ‘The Supreme Judicial Court (“SIC”), has, on numerous occasions, considered the meaning and scope of the Dover Amendment's “educational purpose” requirement. See Regis College, 462 Mass. at 285; Whitinsville Retirement Soc'y, Inc. v. Northbridge, 394 Mass, 757, 759-761 (1985); Fitchburg Hous. Auth, v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869, 872-874 (1980); Kurz v. Board of Appeals of N. Reading, 341 Mass. 110, 113, (1960). “In so doing, {the SIC has] emphasized that the word ‘education,’ as employed in Massachusetts statutes and cases, is a broad and comprehensive term.” Regis College, 462 Mass, at 285 (internal quotations omitted). ‘The Dover Amendment’s protections are not limited to traditional educational institutions. Id. at 286. Rather, the court’s inquiry looks to whether the “primary or dominant” purpose is educational. Jd, at 286. When determining the facilities’ primary purpose, the court should look to the program’s stated goal. Id. at 290. A primary educational purpose may be found where the project's goal “reasonably could be described as educationally significant.” Jd. at 290, quoting Whitinsville Retirement Soc'y, Inc. v. Northbridge, 394 Mass. at 761 n.3. The Dover Amendment’s protections afford some degree of financial benefit to the land owner. Regis College, 462 Mass. at 290. “[The term‘educational purposes,’ [therefore], should be construed so as to minimize the risk that Dover Amendment protection will improperly be extended to situations where form has been elevated over substance.” Id. at 290. Ms, Taste-Ray claims that the WMCAC’s primary purpose is a correctional facility. She argues that this is the exact situation that the SIC warned of when it cautioned courts not to elevate form over function, See Id. Conversely, the defendants argue that, although the WMCAC does house inmates, the program’s primary purpose is educational in nature. The court agrees. When Sheriff Ashe submitted the Administrative Site Plan Application (“the application”), he attached a comprehensive program descr ion. This description lays out the “phases of treatment offered at WMCAC. Each phase is replete with educational courses from classes that teach residents about physiology and pharmacology to relapse prevention, life skills, and job readiness courses. Additionally, this is not a case where the court must trust a stated purpose or take the Sheriff at his word. See Regis College, 462 Mass. at 293- 294 (disputing whether plaintiff intended to operate facility in accord with its stated plan). ‘The court may look to and draw upon the WMCAC’s over thirty-year history to determine if the activities are, in-fact, educational, The record establishes that, in its thirty-year history, the WMCAC has continually offered a wide selection of educational classes and services. Ms. Taste-Ray asserts that the WMCAC is a correctional facility and houses inmates under sentence, but these assertions are not the dispositive considerations. It cannot be disputed that the WMCAC is not a traditional academic institution. ““[TJhe Legislature did not want’ the protection of the Dover Amendment to be limited only to those facilities closelyanalogous to traditional schools and colleges.” Id. at 286, quoting Commonwealth v. Houston, 430 Mass. 616, 625 (2000). “A proposed use of land or structures may have an educational purpose notwithstanding that it serves nontraditional communities of learners in a ‘manner tailored to their individual needs and capabilities.” Id. at 285, That is certainly the case here. Due to their incarceration, WMCAC residents are a nontraditional community of learners. Nonetheless, the residents are engaged in educational programming as their primary purpose for incarceration at WMCAC. If the Commonwealth only sought to incarcerate these individuals, it would do so, as is clear from the comparatively small number of individuals under sentence who have the opportunity to take part in the WMCAC program, Ms. Taste-Ray is unlikely to succeed on her argument that the WMCAC does not have an educational purpose pursuant to the Dover Amendment. Thus, a preliminary injunction is not appropriate as to Counts I-VI. b. The Commonwealth's Immunity The defendants argue alternatively that even if the Dover Amendment does not apply, the WMCAC, as a Commonwealth-created entity, is immune from municipal zoning | regulations. Ms. Taste-Ray argues that the placement of a correctional facility is statutorily controlled, thus, general immunity does not apply. “The general rule [. . | is that a State is immune from municipal zoning regulations, absent statutory provision to the contrary.” County Comm'rs of Bristol County v. Conservation Comm'n of Dartmouth, 380 Mass. 706, 708 (1980). More specifically, “an entity or agency created by the Massachusetts Legislature is immune from municipal zoning regulations (absent statutory provision to the contrary) at least in so far as that entity oragency is performing an essential governmental function.” Id, at 710. Ms. Taste-Ray does not dispute that the WMCAC seeks to perform an essential governmental function. She does, however, claim that the WMCAC was not created by the Massachusetts Legislature, and further, specific statutory provisions remove this general immunity. She is unlikely to succeed on the basis of either of these arguments, First, the general rule clearly states that immunity extends to either an entity or an agency created by the Legislature. See County Comm'rs af Bristol County, 380 Mass. at 708, (emphasis added). Accordingly, itis immaterial that the Legislature did not create the WMCAC, because, the Legislature did create both DCAMM and the Hampden County Sheriff's Department. DCAMM sited the WMCAC and the Sheriff's Department operates the : facility. Both DCAMM and the Sheriff's Department are State entities. Their operation of the WMCAC performs a necessary governmental function; therefore, the WMCAC is immune from local zoning laws. See id. This analysis is also illustrated in the case law. Teasdale v. Newell & Snowling Constr. Co. concerned a park commissioner’s decision to perform road work in Quincy. 192 Mass. 440 (1906). The Legislature did not create or approve the selected road work. See id. The Legislature did, however, create the Metropolitan Parks Commission, which determined the scope of the road work. The road work, therefore, was immune from local zoning ordinances. Id. at 442-443. This same scenario is discussed in numerous additional cases, all of which support the policy that “essential government function, and action reasonably related to that function, should not be prevented by a zoning statute applicable to one municipality or by a local zoning ordinance or by-law.” County Comm'rs of Bristol County,380 Mass. at 710 (internal citations omitted); see also Medford v. Marinucci Bros, 344 Mass. 50 (1962) (holding Department of Public Works immune from zoning laws where it sought to build railroad); Village on the Hill, Inc. v. Massachusetts Turnpike Auth,, 348 Mass. 107 (1964) (holding Massachusetts Turnpike Authority immune from zoning laws where it sought to extend tumpike). Accordingly, DCAMM and the Sheriff Department’s action, as it pertains to the WMCAG, is immune from local zoning ordinances, Ms. Taste-Ray’s second argument, that there is specifi statutory authority that strips the Commonwealth of immunity in this instance, also fails. She points to G. Lc. 124, § 10, to support her argument, Chapter 124, § 10, authorizes the Department of Corrections to site state correctional facilities, subject to the Governor’s approval. Ms. Taste-Ray fails to point to any authority, and the court can find none, that interprets this authorizing statute to also | strip the Commonwealth and its entities of governmental immunity as it applies to correctional facilities. Gi) Count Vi-Due Process Violations Ms. Taste-Ray argues that the defendants violated her right to due process by engaging in “procedural irregularities,” and because the ZBA chairman failed to recuse himself at the appeal hearing. “The extent of procedural due process which must be afforded in any situation varies with the nature of the private and governmental interests at stake, but basic to due process is the right to be heard ‘at a meaningful time and in a meaningful manner.” Department of Public Welfare v. B., 379 Mass. 1, 3-4 (1979), quoting Armstrong v. Manzo, 380 U.S. 545, 550 (1965). Article 29 guarantees “the right of every citizen to be tried by judges ‘as free,impartial and independent as the lot of humanity will admit.’ Beauregard v. Dailey, 294 Mass. 315, 324 (1936). “Interest in the outcome of litigation is a familiar ground for disqualification, and such disqualification is not limited to judges but extends broadly to all persons authorized to decide the rights of litigants .. ..” Jd. This rule, however, is not absolute, and does not require every adjudicator with a pecuniary interest, no matter how remote, to recuse themselves. See id, at 307 (“due process violations based on the pecuniary interest of the adjudicator have involved substantially greater probabilities of bias”). Ms. Taste-Ray claims that the ZBA chairman’s mother was employed by, and received benefits from, the Sheriff's Department. The chairman, she argues, was therefore, likely biased and should have recused himself from Ms. Taste-Ray’s appeal hearing. Her complaint and the supporting memorandum contain no fats that support an actual showing of bias. Speculation of bias and nothing more is unlikely to rise to the level of a constitutional violation. See id, at 307 (“The fact of [...] bias is itself speculative, and the prospect of any such bias influencing the decision making of other board members is implausible”), Further, the chairman's alleged bias is remote as compared to cases where the Court finds constitutionally impermissible bias. See Gibson v. Berryhill, 411 U.S. 564, 578-579 (1973) (every member of board of optometry stood to gain from specific outeome of hearing); Ward v. Monroeville, 409 U.S. 57, 60, 62 (1972) (mayor barred from adjudicating traffic violations where municipal finances were substantially drawn from fines, costs, and fees for traffic violations). Cf. Withrow v. Larkin, 421 U.S. 35, 47 (1975) (finding no due process violation where same individuals investigated and adjudicated violation becauseplaintiff did not show probability of actual bias). Here, Ms, Taste-Ray fails to show that the chairman had an actual pecuniary interest. Nor does she present a case for actual bias, or even the suggestion that the chairman's purported bias influenced other ZBA members. Ms. Taste~ Ray was afforded both notice and a hearing on the merits of her claim. She is unable to show bias on any level, much less bias that rises to the level of a constitutional violation, Accordingly, Ms. Taste-Ray is unlikely to succeed on the merits of Count VIL B._Irreparable Harm ‘Ms. Taste-Ray must show that she will suffer irreparable harm should the construction continue. See Tri-Nel Mgmt, 433 Mass. at 219. Ineparable harm, in the context of a preliminary injunction, means “that, without the requested relief, [she] will suffer a loss of rights that cannot be vindicated should [she] prevail after a full hearing on the merits.” Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 616 (1980). Typically, a plaintiff can show irreparable harm where money damages will be insufficient to vindicate her loss. See Alexander & Alexander, Inc. v. Danahy, 21 Mass. App. Ct. 448, 501 (1986). Ms. Taste-Ray is unable to show that she will suffer irreparable harm if the defendants continue construction Ms. Taste-Ray’s complaint alleges that she will experience a diminution in property value if the WMCAC is sited at the Mill Street location, Notwithstanding the fact that she fails to submit any documentation to support this assertion, a diminution in property value is * The provisions of our own Constitution [Art. 29] already quoted are at least as rigorous in exacting high standards of judicial propriety as are those of the Fourteenth Amendment to the Constitution of the United States.” King v. Grace, 293 Mass. 244, 247 (1936) uexactly the kind of harm that can be remedied with money damages. Ms. Taste-Ray ultimately seeks to stop a specific use of the Mill Street location, If the defendants continue with construction, and Ms. Taste-Ray prevails at trial, the WMCAC will not be sited at the Mill Street location, Ms. Taste-Ray will receive exactly the relief she seeks. The Mill Street location already houses a building. Further, the defendants assert that the majority of the construction is taking place on the inside of the building. Accordingly, the court cannot find any irreparable harm to Ms, Taste-Ray from continued construction, irrepare C. Balancing the Equities Ms. Taste-Ray cannot show a likelihood of success on the merits or the risk of irreparable harm; therefore, continued analysis is unnecessary. For the sake of thorough analysis, however, the court will consider the potential harm to the defendants if Ms. Taste- Ray prevails on her motion, “What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party's chance of success on the merits. Only where the balance between these risks cuts in favor of the moving party may a preliminary injunetion properly issue.” Packaging Industries Group, Inc,, 380 Mass. at 617. Therefore, “the risk of irreparable harm to the plaintiff [must] outweigh] the potential harm to the defendant in granting the injunction.” Tri-Nel Mgmt, 433 Mass. at 219, Ms. Taste-Ray’s motion fails at this juncture as well. While Ms. Taste-Ray’s likelihood of success and risk of irreparable harm are low, the defendants will incur substantial harm if the court grants the preliminary injunction. The defendants will likely suffer a financial harm if construction must halt pending the outcome of litigation, Financial 12harm, however, is not the only concer, The WMCAC relies on substantial volunteer assistance and local services to support its continued success. Many of the volunteers and services that support the program are located in Springfield, and while the WMCAC is located in Holyoke, many volunteers and services are unable to assist the program, Additionally, the current facility is set up to be temporary. The program, therefore, is operating in a facility that is not fully equipped to support the current or expanding program. ‘When balancing the equities, itis clear that the defendants stand to suffer significant harm, where conversely, Ms. Taste-Ray’s risk of harm and likelihood of success, are comparatively low. D. The Public Interest ‘Where, as here, the plaintiff seeks to enjoin government action, the court must consider how a preliminary injunction will affect the public interest, Tri-Nel Mgmt, 433 Mass. at 219, Ms. Taste-Ray asserts that there is no risk to the public interest in granting the preliminary injunction because the WMCAC can be relocated to the Hampden County House of Corrections in Ludlow. The court disagrees. As the above analysis shows, over its thirty years of operations, the WMCAC built a local support system based in Springfield. Again, the WMCAC would not have access to the necessary support in Ludlow. Further, the WMCAC provides education, treatment, and services to individuals struggling with addiction. Drug addi ion has a significant impact on the Springfield area, and therefore, holds significant public interest. Fewer individuals may receive treatment if the defendants are required to halt construction and delay opening the WMCAC. Reducing the treatment available to drug addicted offenders is not in the public Binterest. ORDER For the forgoing reasons, it is ORDERED that Ms. Taste-Ray’s Motion for ‘Temporary Restraining Order is DENIED. Dated: sin Loos 14