NEWS HEADLINES

Aurora makes way for drug treatment facility, residents still fighting

By David Talley | Published Wednesday, September 20, 2017
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The city of Aurora’s nearly four-month consideration of a contentious specific use permit to allow for the sale of private event venue MD Resort to a company with plans to open it as a drug treatment facility culminated last week in a council vote allowing the facility to set up shop.

In its wake lies a pending civil lawsuit, more than three hours of public meetings and an uncertain future for residents living near the incoming facility.

“We’re asking the council to go ahead and approve the SUP tonight under the reasonable accommodation doctrine under the ADA and the FHA,” Winsted PC attorney Art Anderson told the group of citizens gathered inside Aurora City Hall for a Sept. 7 council meeting.

Anderson was representing Milrose Capital, the company behind the request, and the room he addressed that day was full, but not overflowing. A volunteer firefighter had been posted at the door to count heads, and a Wise County sheriff’s deputy was stationed inside in case the crowd got unruly. Neither were needed for that meeting. The room wasn’t packed, unlike the city’s two previous meetings on the matter, and, excluding the occasional, exaggerated scoff from the audience during Anderson’s presentation, those in attendance were quiet and attentive.

The issue of legal protections for addicts was first brought up at the council’s June 12 session, its first meeting on the permit, which was held in the chapel at MD Resort. It was attended by more than 100 concerned citizens who spoke against the facility for more than an hour. Attorney George Staples, who was acting on behalf of the city, told the council and sizable audience that cities are universally unsuccessful when challenging companies that plan to open such facilities. The attorney’s remarks at the meeting were covered in the June 14 Messenger.

Several citizens who spoke at the meeting expressed interest in joining litigation against Milrose Capital to prevent the facility from coming in. Staples said the company’s request was protected under stipulations in the Americans With Disabilities Act, the American Rehabilitation Act and the Fair Housing Act, which includes protections for recovering substance abusers. Staples was interrupted multiple times by the audience.

“These acts specifically trump zoning,” Staples said. “My advice to the city council is they have no choice. The council has no choice in this situation. The courts have held consistently that you cannot keep these facilities out. There have been rumors that there have been cities that got away with it. That’s not true.

“The taxpayers end up paying the bill.”

Staples was then interrupted by audience members who expressed willingness to pay the bill, but he continued.

“What I’m trying to express to you is that the city has to pass the cost on to the taxpayers, plus they get to build the facility anyway,” he said. “You lose.”

Despite Staples’ recommendation, the council voted to table action on the permit until the city’s planning and zoning commission could resolve what Mayor Pro-Tem Jason Brummal labeled a “paperwork discrepancy” in the company’s request. Ward II Council Member Joe Smith advocated for fighting the permit.

“I know that this will probably be crammed down our throat, but we’re going to fight it as long as we can,” Smith said.

Brummal conceded at the council’s July meeting that the discrepancy was later determined to be a typographical error when it was pointed out by an audience member that the commission hasn’t met since June’s city council meeting. The council was set to make a decision on the permit at its July meeting, but tabled action again, this time to request several impact studies from the firm.

Several audience members at the June meeting had called for the city to replace Staples with an attorney who would pursue litigation against the company. Though the city didn’t pursue any legal action against Milrose, an Aurora citizen did file suit against the city and several officials to restrain the council from voting on the permit at its July meeting.

THE LAWSUIT

One day before the council’s July 13 meeting, Timothy Godwin filed a temporary restraining order and temporary and permanent injunction against the city, the council, its land use and planning department, and City Administrator Toni Wheeler in Wise County’s 271st District Court to prevent the council from voting on the permit.

Godwin’s suit alleged the approval of the permit was “predicated on false and outright fraudulent information,” including a letter of endorsement from the State of Michigan Department of Health and Human Services. Godwin also alleged “Milrose Capital LLC is not a licensed medical facility.” Throughout the meetings held on the permit, however, the company didn’t claim to be a licensed medical facility, but instead stipulated the incoming drug treatment facility would apply for and hold a state license.

Wheeler confirmed in June that acceptance of the company’s request would be predicated on the facility being licensed, not Milrose.

Godwin also alleged that, “The individual proposed to operate the facility fraudulently stated she has never had a complaint and provided the City Council with letters of recommendation, this alone is false as the individual has been involved in litigation in Michigan regarding this type of proposed facility.”

These issues, Godwin’s suit alleged, represent violations of the city’s zoning change processes and procedures, due to “fraudulent misrepresentation of applicant to the department and failure of the department to do the due diligence required for such a specific use request.”

Godwin, who filed to represent himself, sought the restraining order to stop the defendant from approving any zoning changes, including the permit requested by Milrose, and requested a permanent injunction prohibiting the defendant from approving the permit. Online court records indicate the lawsuit wasn’t served to any of the defendants, but attorney Betsy Elam, acting on behalf of the city, said the defendants were aware of the suit. Attorneys for the city filed an answer to the suit Aug. 4, denying Godwin’s allegations and demanding proof.

Elam told the Messenger Godwin’s suit was filed without merit. She said she expected a dismissal, but the city filed its response out of caution.

“We just wanted something on file,” she said. “We don’t think [the original suit] was actually properly served.”

A hearing is scheduled for Tuesday, Sept. 26, and Godwin told the Messenger Sept. 19 he’s hoping a judge will force the city to revisit its vote on the permit. Godwin addressed Staples’ remarks from the June city council meeting.

“The council wasn’t given full information because the city’s general counsel told them their vote wouldn’t matter because they would lose in court if they opposed the SUP, so it’s just better to approve it now, which isn’t the case,” Godwin said.

“My position is they didn’t follow the proper procedures, and [legal] counsel led them into believing there’s going to be a lawsuit.”

Godwin again disputed claims that Milrose had been endorsed by the Michigan Department of Health and Human Services.

“The whole thing has been done off the books, behind the books or whatever you want to call it,” he said. “It’s just not done properly.”

LATER MEETINGS

Council members didn’t cite Godwin’s pending lawsuit at their July 13 meeting, but did further table voting on the permit to ask for several impact studies from Milrose, including information on how the incoming facility might affect traffic in the area and what changes, if any, would be needed for its water and wastewater lines. Aurora’s city hall was almost at capacity, with around 40 citizens in attendance at the meeting.

“One thing we’d like to see is to make sure the road can handle the traffic that’s going to be in and out of there,” Ward 1 Council Member Bill McCurdy told the company’s representative at the meeting. “On water, we’d like to make sure the lines that are available to you are enough to handle the volume that you’re going to need.”

Those results were presented to the council before their vote Sept. 7. The council did not hold an August meeting. A traffic impact study by engineering firm Kimley-Horn concluded that “due to the relatively high peak hour traffic generated by the MD Resort event center and the steady, low peak hour traffic generated by the proposed treatment facility, the proposed treatment facility moderates the traffic nature of Old Base Road and has less impact on the community than the event center.”

Kimley-Horn also concluded that the site’s water system had adequate pressure to meet any proposed design and fire flows. Studies also showed the proposed use of the property would meet TCEQ standards for septic systems and that the facility’s septic system capacity is adequate to dispose of proposed flows. Milrose also clarified that medical waste wouldn’t be disposed of in the septic system, which corresponds with TCEQ standards.

MD Resort property owner William Benedick also addressed the council for the first time in a public meeting outside of answering direct questions.

“I’m in a pretty good position,” Benedick said. “I’ve got several other people very interested in the property.”

Those include representatives from parties also hoping to place a similar facility at MD Resort, he said. “They’ve called me twice in the last two months.”

Another offer on the site is from a Muslim group hoping to place a retreat center at MD Resort, according to Benedick.

“Though I really, frankly don’t like the idea,” he said. “They’ve contacted us four times in the last three months. They’re still interested if that doesn’t go through.”

“I’m just letting you guys know where I’m at. This property is going to sell.”

Before the council could vote on the permit, Elam explained since owners of at least 20 percent of the nearby property opposed the zoning change when notified, a super majority of at least five of the six council members would be required to approve the permit.

“State law requires that notice is sent to property owners within 200 feet of the affected property, and state law also requires that if the owners of at least 20 percent of that adjacent property within that 200 feet file an objection, that triggers a super majority for the council to pass and approve the requested zoning, so it’s my understanding the vote to approve this would need to be a super majority. What that means is in order to approve this, in a council of six members, five would have to vote to approve it.”

The vote for approval was 5-1 with council member Jackie Stone opposed.

MOVING FORWARD

Over the course of the three meetings, property owners near the incoming facility have claimed that approval of the permit would decrease the value of their land and homes and create potential public safety issues due to its proximity to a facility that provides housing for recovering drug addicts.

Documentation from Milrose stipulates that the facility would accept self-pay and PPO insurance, but not Medicare or Medicaid, wouldn’t accept state-mandated criminal referrals and would require physician supervision. A security and monitoring plan was also detailed, including:

  • attendance taken during all groups, counseling sessions, activities and meals, including morning, nightly and unannounced attendance by the facility’s security and quality control team;
  • sign-in and sign-out sheets every time the building is exited;
  • security cameras and a 24-hour security staff;
  • random drug and alcohol tests;
  • requirements for visitors to be pre-approved and stipulations that it can only take place on weekends between set hours;
  • Milrose is willing to allocate an annual monetary donation to increase local police presence though a foundation endowment; and
  • monthly meetings with neighbors can be scheduled to address concerns.

Elam said the vote was contingent on several conditions, which Milrose would need to finalize. Those included the preceding impact studies and security stipulations and also documentation of an emergency response plan, limiting food preparation to certain areas and an agreement to reevaluate the site’s septic system if a future residential structure is built.

Elam did not return a call for comment by press time Tuesday.

TIMELINE OF EVENTS

  • April 7 – Application filed
  • May 9 – Planning and zoning commission meeting
  • June 12 – First city council meeting, vote is tabled
  • July 12 – Lawsuit filed
  • July 13 – Second city council meeting, vote is tabled again
  • Sept. 7 – Third city council meeting, permit is approved 5-1
  • Sept. 26 – Hearing on suit scheduled

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