South Middlesex Opportunity Council, Inc. v. Town of Framingham (752 F. Supp. 2d 85, 2010)

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, District Judge.

The Plaintiffs, South Middlesex Opportunity Council, Inc. and South Middlesex Non-Profit Housing Corporation (“SMOC”), operate several residential substance abuse treatment programs in Massachusetts. In its attempt to relocate one of its programs in Framingham, Massachusetts, SMOC encountered resistance from some of the residents and local officials. SMOC brought this action, alleging a variety of claims under federal and state law. I ruled on the defendants’ motions to dismiss, South Middlesex Opportunity Council, Inc. v. Town of Framingham, No. 07-12018-DPW, 2008 WL 4595369 (D.Mass. Sept. 30, 2008), dismissing some claims and allowing federal claims under the Fair Housing Act (“FHA”), the Americans with Disabilities Act (“ADA”), and the Federal Rehabilitation Act of 1973 (“Rehabilitation Act”) and a multiplicity of state law' defamation claims to move forward. The Defendants — the Town of Framing-ham and individual Framingham residents and officials — now seek summary judgment on these remaining claims.

I. BACKGROUND

A. Factual Background

1. The Parties

SMOC provides a range of social services to low-income and disadvantaged individuals and families in the Metrowest region of Massachusetts. SMOC has had operations in the Town of Framingham for several decades, and maintains its headquarters there. The South Middlesex Non-Profit Housing Corporation (“SMNPHC”) is a wholly owned subsidiary of SMOC, and manages the majority of SMOC’s real estate holdings. James Cuddy serves as Executive Director and Chief Executive Officer of SMOC and SMNPHC.

The Town of Framingham is a body politic established under the laws of the Commonwealth of Massachusetts. Framingham has a town meeting form of government, which places executive authority with an elected Board of Selectmen (“BOS”) and the Town Manager. The Board of Selectmen does not have jurisdiction over the decisions of the Town Meeting, Building Commissioner, or Planning Board, and does not process applications for Site Plan Review. At regular meetings of the Board of Selectmen, the public can ask questions and make statements relating to the matter at issue.

The Planning Board is an elected five-member body, responsible for adopting and implementing Framingham’s land use and municipal planning policies. The Town’s Zoning Bylaw regulates the use of premises in the Town. The Planning Board evaluates Site Plan Review applications pursuant to Mass. Gen. Laws ch. 40A, § 9, the state zoning statute, and conducts public hearings on these applications.

Named as Defendants are the Town of Framingham, as well as twelve individual residents and Town officials: four Town Meeting members, three Board of Selectmen members, four Planning Board members, and the Human Services Coordinator.

The four Town Meeting member defendants are Peter Adams, Cynthia Laurora, Laurie Lee, and Steven Orr.

Adams was elected a Town Meeting member in March 2007. He is also the founder and Director of Communications for the Stop Tax Exempt Private Property Sprawl (“STEPPS”) organization, whose formation was motivated at least in part by opposition to SMOC’s relocation of Sage House to 517 Winter Street. STEPPS has no formal membership lists or requirements, but some of the Defendants admit to being members.

Laurora was elected in September 2006 and also considered herself a member of STEPPS. Laurora was appointed to the Payment in Lieu of Taxes (“PILOT”) Committee in 2005. The PILOT program was created by the Town Meeting to study the impact of social service sites on the Town, and permits nonprofit social service institutions to make voluntary contributions to the Town, even if the programs are tax-exempt.

Laurie Lee became a Town Meeting member in 2005; in April 2008 Lee was elected to the Board of Selectmen.

Orr was elected a Town Meeting member in 2001, and served as a member of the PILOT Committee. He created the Frambors website, which enables Town Meeting members to post and view messages on an interactive board.

The three Board of Selectmen defendants are Dennis Giombetti, Jason Smith, and Ginger Esty. Giombetti has served on the Board of Selectmen since April 2005, Smith since April 2006, and Esty since September 2000.

The four Planning Board defendants are Susan Bernstein, Carol Spack, Andrea Carr-Evans, and Ann Welles.

The Defendant Alexis Silver is the Human Services Coordinator, and has served in that position since January 2007. She does not sit on any Town board.

2. The SMOC Programs at Issue

SMOC has had three programs in Framingham that it alleges the Defendants targeted in various ways: the Sage House program, the Common Ground Shelter, and Larry’s Place.

a. Sage House

Sage House provides residential treatment and support services to homeless and at-risk families where one or both parents are undergoing substance abuse rehabilitation. From 1990 until 2007, SMOC operated the Sage House program at 61 Clinton Street in Framingham. The program is protected by the “Dover Amendment,” Mass. Gen. Laws ch. 40A, § 3, which exempts land and structures used for educational purposes from restriction or regulation by zoning ordinances and by-laws; however, such land or structures may be subject to reasonable regulations concerning the bulk and height of structures, yard sizes, lot areas, setbacks, open space, parking and building coverage requirements. Id.

SMOC decided to expand the Sage House program, and purchased property at 517 Winter Street in June 2005 for purposes of relocation. Local concerns about the relocation began to emerge, sparking the creation of STEPPS, some of whose members made public statements opposing Sage House’s move to Winter Street. During a BOS meeting on June 2, 2005, STEPPS members expressed their objections to the Sage House relocation. After the meeting, Giombetti asked the Building Commissioner to list the permits that SMOC would require for the Sage House relocation.

Before June 2005, Framingham’s Zoning Bylaw exempted Dover Amendment properties from Site Plan Review. Some members of STEPPS began to petition the Board of Selectmen and the Planning Board to amend the Bylaw to remove this exemption. Meanwhile, SMOC filed a building permit change-of-use application on July 12, 2005, seeking the Planning Board’s approval to operate Sage House at 517 Winter Street. On July 28, 2005, the Planning Board voted to support a Zoning Bylaw amendment that would remove the Site Plan Review exemption for Dover Amendment properties. The Town adopted the Bylaw amendment on August 3, 2005, and it was then sent to the Attorney General of Massachusetts for final approval. On August 11, 2005, the Building Commissioner denied SMOC’s change-of-use application under the terms of the revised Bylaw, stating that SMOC had failed to provide a description of the education program at Sage House, to complete Site Plan Review, or to provide a parking plan and stamped floor plan. SMOC appealed this decision to the Framingham Zoning Board of Appeals (“ZBA”). The Massachusetts Attorney General approved the Bylaw amendment on November 16, 2005, noting that Site Plan Review should nonetheless be limited to ascertain whether the site complies with “reasonable regulations pertaining to bulk and height of structures, yard size, lot area, setbacks, open space, parking, and building coverage requirements.” On November 22, 2005, the Town Counsel submitted an opinion letter to the BOS and the Building Commissioner, stating that a reviewing court would probably find that SMOC’s use of the Winter Street property would constitute an educational use, and that Site Plan Review would be primarily limited to parking concerns.

After the Attorney General approved the Bylaw in November 2005, SMOC withdrew its ZBA appeal. SMOC applied to the Planning Board for site plan approval on February 17, 2006. It declined, however, to submit some of the requested materials, maintaining that it was not required to do so under the Dover Amendment. Consequently, the Administrator of the Planning Board asked the Town Counsel to provide further clarification as to which materials — of those typically required for Site Plan Review — Sage House would not be required to provide as a Dover Amendment project. On April 6, the Town Counsel provided some guidance, stating that applicants have the burden of establishing that they have protected status, and suggesting that the Sage House program probably constituted an educational use. Town Counsel also stated that because 517 Winter Street was a pre-existing structure, “this limits the application of site plan review to parking concerns.” On April 7, 2006, the Planning Board asked SMOC to provide a list of waivers for the items requested, with accompanying justifications. SMOC submitted the requested information on May 8, 2006. On June 9, 2006, the Planning Board requested that the Building Commissioner provide input on the applicability of the Dover Amendment, he responded that he believed that SMOC’s proposed use would qualify for exemption under the Dover Amendment.

Between June 2006 and January 2007, the Planning Board held seven public hearings on SMOC’s application for Site Plan Review of the 517 Winter Street application. The hearings discussed Sage House’s parking plans, and access for fire and rescue vehicles. On October 12, 2006, SMOC filed an application for a Public Way Access permit, which also became a matter of discussion.

On September 18, 2006, the Director of the Planning Board issued a memorandum to the Building Commissioner, Joseph Mikielian, stating that the Board wanted to find out how Building Commissioner Mikielian had verified that Sage House was protected by the Dover Amendment, and how the Commissioner would monitor Sage House’s activities in the future to determine whether it remains exempt. The Town Counsel responded in an opinion letter on September 29, 2006, stating that Mikielian had previously determined that the proposed use of 517 Winter Street was an educational use, and that a program monitoring Sage House for zoning compliance could subject the Town to potential liability under the Fair Housing Act.

During this time, the Board of Selectmen was engaged in discussions about the Sage House relocation. In October 2006, the BOS voted to examine further whether Sage House qualified for Dover Amendment protection. Building Commissioner Foley confirmed that the 517 Winter Street project was an exempt use under the Dover Amendment. The Town Counsel responded on November 28, 2006 that several determinations regarding Sage House’s exemption had already been made, and that the Building Commissioner should stand by these determinations absent indications of “fraudulent misrepresentation.”

At the Planning Board hearing on December 7, 2006, residents of Framingham made a presentation regarding the residents’ opinions about SMOC’s proposal. Some time was devoted to the discussion of the Dover Amendment’s applicability to Sage House. At the January 4, 2007 hearing, defendant Bernstein, a member of the Planning Board, asked whether SMOC would consider participating in the PILOT program, i.e., making voluntary PILOT payments to the Town.

The public hearings closed on January 25, 2007. On January 29, 2007, Silver was hired as the Human Services Coordinator, and soon thereafter called the Institute for Health and Recovery (“IHR”) and told IHR that SMOC would never get approval to operate at 517 Winter Street. Nevertheless, the Planning Board approved SMOC’s application for Site Plan Review on April 5, 2007, and approved its application for a Public Way Access permit on April 12, 2007.

Meanwhile, in March 2007, the Department of Public Health (“DPH”) and the Department of Social Services (“DSS”) investigated evidence that several Sage House employees had tried to bring drugs into the MCI-Shirley Prison. The Department of Corrections (“DOC”) had investigated the matter after the allegations first emerged in late 2006, but no arrests were made.

DPH issued a report on April 20, 2007, concluding that SMOC had failed to inform DPH about investigations by the DOC into the employees’ conduct, and that SMOC had hired employees with criminal convictions without prior approval from DPH. But DPH also concluded that SMOC’s supervision of its employees had been adequate. DPH placed SMOC’s license to operate Sage House in a “Renewal Pending” status, until SMOC had complied with DPH’s request to remedy the violations,

b. Common Ground Shelter

Common Ground Shelter, operated by SMOC, provided shelter to a variety of homeless individuals, and did not deny access to those with active substance abuse problems or those with criminal records. SMOC closed the shelter in October 2006 as part of its revised plan for homelessness programs.

In 2002, the Building Commissioner had determined that Common Ground qualified for exemption from the Town’s zoning laws under the Dover Amendment. In 2006, after receiving complaints that Common Ground performed no educational services, the Building Commissioner began a review of whether or not Common Ground was being used predominantly or primarily for educational use. In September 2006, Building Commissioner Mikielian concluded that there was little evidence of educational use at the shelter, and recommended a cease-and-desist order requiring the closure of the shelter. On September 27, 2006, SMOC wrote to Framingham’s Town Manager, announcing that it would close Common Ground. SMOC’s Director of Emergency Shelters has stated that the decision was made by SMOC because of its own policy objectives.

In March 2006, in discussions related to those involving the Common Ground Shelter, defendants Lee and Esty and the interim Town Manager discussed the possibility of strengthening the Town’s Lodging House Bylaw to require shelters to be licensed by the Town. In May 2007, the Town Meeting adopted a Lodging House Bylaw amendment that required lodging house owners to exercise “due care” in selecting tenants, to keep a residents log, and to have on-site supervision at all times if there are twelve or more units. SMOC operates six of the thirteen lodging houses registered in Framingham.

Several incidents involving Common Ground Shelter are at issue. First, in October 2005, defendant Orr and another individual entered Common Ground Shelter on the pretense that they had authority to inspect the shelter as Town officials, when in fact they had no such authority. Second, SMOC allowed the police to enter the shelter to serve arrest warrants and conduct warrant checks on SMOC’s behalf. SMOC alleges, however, that the police also made unauthorized entries in 2005, and monitored the shelter in unmarked cars parked outside the facility. At one point, a police officer inquired about educational activities at the shelter.

c. Larry’s Place

Larry’s Place is a supportive residential program for homeless disabled veterans, located at 90 Lincoln Street in Framing-ham. Larry’s Place requires participants to attend educational programs directed at helping the residents achieve greater independence.

In September 2005, SMOC had acquired property at 90 Lincoln Street for the development of Larry’s Place. In July 2007, SMOC applied for a building permit for 90 Lincoln Street, and claimed exemption from the Town’s zoning requirements under the Dover Amendment. The Building Commissioner denied SMOC’s request in September 2007, for failure to provide documentation necessary to demonstrate that the proposed use was primarily educational. SMOC appealed the Commissioner’s decision to the ZBA, providing new documentation on its proposed use at 90 Lincoln Street. In February 2008 the ZBA reversed the Commissioner’s determination, and found Dover Amendment protection.

B. Procedural History

The Plaintiffs’ Amended Complaint included eight counts. In my Memorandum and Order of September 30, 2008, 2008 WL 4595369, I dismissed the counts alleging conspiracy (Count I), violations of 42 U.S.C. § 1983 (Count V), and violations of the Massachusetts Civil Rights Act (Count VI). I also dismissed Julian Suso from the case. What remain are the following allegations: FHA violations by all Defendants (Count II); ADA violations by the Town of Framingham (Count III); Rehabilitation Act violations by the Town of Framingham (Count IV); and defamation by Adams, Esty, Giombetti, Laurora, and Orr (Count VII). The Defendants move for summary judgment on all remaining counts.

II. STANDARD OF REVIEW

Summary judgment should be granted when the pleadings, discovery, disclosure materials, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). A dispute over material facts is “genuine” if the evidence is such that a reasonable jury could resolve the dispute in favor of the non-moving party. Rodriguez-Rivera v. Federico Trilla Reg’l Hosp., 532 F.3d 28, 30 (1st Cir.2008). “The party with the burden of proof must provide evidence sufficient for the court to hold that no reasonable fact-finder could find other than in its favor.” Scottsdale Ins. Co. v. Torres, 561 F.3d 74, 77 (1st Cir.2009).

III. FAIR HOUSING ACT CLAIMS

SMOC alleges FHA violations by all of the remaining Defendants in the case. In particular, SMOC alleges that 42 U.S.C. § 3617 was violated by each of the Defendants, and that § 3604(f)(1) was violated by the Town, the Board of Selectmen members (Esty, Giombetti, and Smith), and the Planning Board members (Bernstein, Carr-Evans, Spack, and Welles).

A. Legal Framework

1. Sections 3604 and 3617

Under 42 U.S.C. § 3604(f)(1), it is unlawful to “discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of that buyer or renter, [or of] a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available.” 42 U.S.C. § 3604(f)(l)(A)-(B). Federal regulations define “handicap” to include drug addiction or alcoholism that “substantially limits one or more major life activities.” 24 C.F.R. § 100.201; § 100.201(a)(2).

A plaintiff can allege three causes of action under Section 3604 of the FHA: intentional discrimination (or disparate treatment), disparate impact, or failure to make reasonable accommodation. See Gamble v. City of Escondido, 104 F.3d 300, 304-07 (9th Cir.1997) (describing the three causes of action); Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48 (2d Cir.2002) (same); Langlois v. Abington Housing Authority, 207 F.3d 43, 49 (1st Cir.2000) (reading the FHA to permit a disparate impact cause of action). SMOC advances only a theory of disparate treatment, which requires the plaintiff to present evidence showing that the challenged conduct “was due in part or whole to discriminatory intent.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1123 (9th Cir.2004).

Section 3617 of the FHA further provides that a person cannot “coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of’ rights protected under the FHA. 42 U.S.C. § 3617. Actions under this section require the plaintiff to make the following showing: (1) the plaintiff is a member of an FHA-protected class; (2) the plaintiff exercised a right protected by §§ 3603-06 of the FHA, or aided others in exercising such rights; (3) the defendants’ conduct was at least partially motivated by intentional discrimination; and (4) the defendants’ conduct constituted coercion, intimidation, threat, or interference on account of having exercised, aided, or encouraged others in exercising a right protected by the FHA. King v. Metcalf 56 Homes Ass’n, Inc., 385 F.Supp.2d 1137, 1142-43 (D.Kan.2005).

2. Discriminatory Intent

Under both in connection with a disparate treatment claim under Section 3604 and under Section 3617, there must be “sufficient evidence for a reasonable jury to conclude” that the Defendants were motivated by a protected characteristic in performing the challenged conduct. A plaintiff can show discriminatory intent either through direct or circumstantial evidence, or by making a prima facie case of discrimination under the McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Budnick v. Town of Carefree, 518 F.3d 1109, 1114 (9th Cir.2008) (describing the two approaches).

a. Direct Method of Proof

A plaintiff can make a disparate treatment claim by presenting evidence that a discriminatory purpose “more likely than not” motivated the conduct. Budnick, 518 F.3d at 1114 (internal citations omitted). This “direct method of proof’ shows that the conduct was discriminatory “without reliance on inference or presumption.” Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir.2003).

“Direct evidence is that which can be interpreted as an acknowledgment of the defendant’s discriminatory intent.” Kormoczy v. Sec’y, U.S. Dep’t of Housing and Urban Dev., 53 F.3d 821, 824 (7th Cir.1995). Circumstantial evidence is that which allows the fact-finder to infer that the defendant engaged in intentional discrimination. Id. This circumstantial evidence, however, “must point directly to a discriminatory reason for the ... action.” Cerutti, 349 F.3d at 1061 (quoting Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir.2003) (describing this “direct” method of proof as well as the “indirect” method under McDonnell Douglas).)

b. McDonnell Douglas Burden-Shifting

A plaintiff can also survive summary judgment by making a case under the McDonnell Douglas framework, which permits a plaintiff to present evidence “from which a jury could infer that the [defendants’] articulated reasons [for the challenged conduct] were pretextual and that ... discrimination was the real reason for [the adverse action].” Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 429 (1st Cir.2000) (applying the McDonnell Douglas framework to employment discrimination under the Age Discrimination in Employment Act); Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781, 791 (6th Cir.1996) (applying the burden-shifting process to alleged violations of the FHA).

The plaintiff must first make a prima facie case by providing evidence that gives rise to an inference of unlawful discrimination. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The First Circuit has stated that the prima facie showing is not an “onerous” burden, and can be “easily made.” Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir.2003) (internal citations omitted); see also Greenberg v. Union Camp Corp., 48 F.3d 22, 26 (1st Cir. 1995) (observing that the prima facie burden is “relatively light”).

Second, after the prima facie case is made, the burden shifts to the defendant to articulate a nondiscriminatory reason for the conduct. Dominguez-Cruz, 202 F.3d at 430; Casa Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d 252, 269 n. 20 (1st Cir.1993) (describing burden-shifting for disparate impact cases under the FHA).

Finally, after the defendant rebuts the presumption, the plaintiff has the burden of proof with respect to the discriminatory intent of the conduct. Dominguez-Cruz, 202 F.3d at 430. At this stage, a court ruling on a summary judgment motion must focus on whether, given the “aggregate package of proof’ and drawing all inferences in the plaintiffs favor, there is a genuine issue of fact as to the discriminatory motive of the conduct. Id. at 430-31 (quoting Mesnick v. General Elec. Co., 950 F.2d 816, 824-25 (1st Cir.1991)).

c. Totality of the Evidence

The First Circuit has noted that “bright line articulations” distinguishing the direct evidence approach from McDonnell Douglas may not always be helpful. Dominguez-Cruz, 202 F.3d at 429. The court has recognized that “the need for flexibility” sometimes justifies bypassing these approaches and instead considering whether the “totality of the evidence permits a finding of discrimination.” Id. at 430.

B. Section 3604 Allegations

Before turning to the specific allegations under 42 U.S.C. § 3604, I first address a threshold issue of whether the purported delays in obtaining approval for SMOC’s permits can be a cognizable claim, given that the permits were ultimately approved by Town officials.

1. Delay as a Cognizable Violation

Several of the Defendants challenge the Section 3604 allegations by arguing that there was no discriminatory action taken against SMOC, and therefore that the Defendants did not “discriminate in the sale or rental, or ... otherwise make unavailable or deny, a dwelling” to the SMOC residents. 42 U.S.C. § 3604(f)(1). The Defendants maintain that, notwithstanding any commentary made before and during the Site Plan Review, SMOC’s clients were never denied residence in Framingham, and all of SMOC’s housing applications were ultimately granted.

Discrimination under the FHA, however, includes delays in issuing permits that are caused in part by discriminatory intent, even if the permits are ultimately granted. To be sure, the court in Carmona-Rivera v. Puerto Rico, 464 F.3d 14 (1st Cir.2006), observed that “[mjerely labeling the delay as intentional discrimination, without some modicum of evidence demonstrating an actual discriminatory animus,” is not a violation of the FHA, id. at 18, but in that case, the record included no evidence that the delays “were anything more than the result of a slow-moving bureaucracy.” Id. While the FHA requires a “close causal link between housing and the disputed action,” United States v. Bankert, 186 F.Supp.2d 623, 628 (E.D.N.C.2000), once such a connection is demonstrated, the types of discriminatory actions prohibited are wide-ranging. Section 3604 “prohibios] all forms of discrimination, sophisticated as well as simpleminded, ... and tactics of delay, hindrance, and special treatment must receive short shrift from the courts.” Williams v. Matthews Co., 499 F.2d 819, 826 (8th Cir.1974); see also United States v. Hughes Memorial Home, 396 F.Supp. 544, 549 (W.D.Va.1975) (internal citations and quotations omitted) (The FHA’s “catch-all phraseology may not be easily discounted or de-emphasized. Indeed it appears to be as broad as Congress could have made it.”). “The imposition of more burdensome application procedures, [and] of delaying tactics ... constitutes a violation of’ the FHA. United States v. Youritan Const. Co., 370 F.Supp. 643, 648 (N.D.Cal.1973); see also United States v. City of Jackson, 318 F.Supp.2d 395, 417-18 (S.D.Miss.2002) (finding that a delay, combined with defendants’ statements evincing discriminatory intent, could violate the FHA); Bankert, 186 F.Supp.2d at 628 (noting that delay tactics may be a violation of the FHA); Robert G. Schwemm, Hous. Discrim. Law & Litig. (2008), § 13:4 (“[Delaying tactics and burdensome application procedures used to limit ... access to housing [ ] are clearly covered by [the] phrase ... ‘otherwise make unavailable or deny.’ ”).

This case involves not only evidence in the record indicating delays, but also communications by the Defendants linking such delays to the nature of the projects and their residents. While there may be some dispute as to whether animus played any role in creating such delays, and whether SMOC’s own slow-moving conduct also played a role, there is sufficient evidence in the record to raise a dispute as to whether discriminatory action was taken.

2. Alleged Instances of Discrimination

Although several Defendants were often engaged in the same instances of decision-making at particular moments, I organize my discussion according to the categories of Town officials.

a. Board of Selectmen Members

The Board of Selectmen did not have jurisdiction over the decisions made by the Planning Board or Building Commissioner. Nevertheless, several of the actions taken by the BOS raise genuine issues of material fact as to whether the Board (as governing body for the Town) and the Board member defendants intentionally discriminated against the residents of SMOC programs, in particular by raising procedural hurdles and delays during the permit application process.

i Involvement before Site Plan Review

SMOC claims that the BOS became significantly involved in the deliberations over the Sage House relocation to 517 Winter Street. In the period before Site Plan Review of the Winter Street application began, SMOC claims that the BOS “united” with STEPPS to obstruct the relocation. However, some of these allegations miss the mark. SMOC points to comments made by STEPPS members at the BOS meeting on May 19, 2005 and a memorandum sent to BOS outlining the group’s concerns. But SMOC cannot fairly characterize comments by non-BOS members, made in a public forum, as action by the BOS.

More relevant is BOS action during a meeting with STEPPS members on June 2, 2005. BOS member Giombetti stated that the Board’s approach should be “to put a strong burden on [SMOC] to be here in front of us and position it in such a way that we would be strongly disappointed if they did not show for this hearing, and that there may be ... problems ... for other things they want to do in Town.” The BOS then decided to look into the permitting process for Sage House’s relocation to Winter Street. On June 20, 2005, Town Manager King asked Building Commissioner Mikielian, at defendant Giombetti’s request, to answer a set of questions drafted by STEPPS and to provide the BOS with a list of permits that SMOC required before opening the Winter Street facility. Mikielian stated during his deposition that he could not recall other instances in which the BOS had inquired about a particular permit application.

In June 2006, Giombetti had a meeting with SMOC’s Executive Director during which Giombetti notified him that the Town wanted the Common Ground Shelter to be closed, and that the Sage House program was inappropriate for the Winter Street location.

Furthermore, the record includes evidence of various comments by Giombetti and Esty that may indicate discriminatory intent. See, e.g., Cmty. Housing Trust v. Dep’t of Consumer & Regulatory Affairs, 257 F.Supp.2d 208, 226 (D.D.C.2003) (considering as evidence comments made by the defendants regarding the “condition” of the disabled residents). BOS member Esty specifically stated that she opposed the relocation of Sage House to 517 Winter Street because she was concerned about the residents who would live there. Giombetti, during a June 23, 2005 meeting with Bernstein and the Town Manager, described a strategy to challenge the Dover Amendment determination in court, thereby “set[ting] the tone that if you want to come under the Amendment, it’s going to cost you some money because we’re going to fight those.” At this meeting, Esty also proposed roadblocks to the Sage House relocation, observing that “[w]e may have some influence here in stalling” the Building Commissioner’s decision on permits sought by SMOC until zoning rules could be changed to subject Sage House to more scrutiny.

ii Supporting the Bylaw Amendment

Another disputed action is the passage of the Zoning Bylaw amendment in July 2005, which subjected Dover Amendment properties to Site Plan Review by the Planning Board. On July 12, 2005, the BOS voted to hold a special town meeting to amend the Zoning Bylaw. In response to a BOS member’s observation that the BOS does not generally get involved in zoning issues, Esty responded that by taking a position, the BOS would have “some grasp of controlling some small aspect of proposed 40A Dover Amendment projects.”

The Attorney General, of course, ultimately approved the Zoning Bylaw amendment on its face. But the record suggests that the amendment may have targeted SMOC in order to prevent or deter SMOC from relocating Sage House to Winter Street. If the Defendants did intend the amendment to target SMOC and derail the relocation efforts, this could run afoul of the FHA. Under Section 3604, the unlawful denial of a dwelling includes erecting procedural hurdles that make it difficult to obtain the dwelling. In Support Ministries for Persons with AIDS, Inc. v. Vill. of Waterford, 808 F.Supp. 120 (N.D.N.Y.1992), residents objected to a house for homeless individuals with AIDS, and the Village changed the zoning laws to forbid group residences for persons recovering from illness or disease. One village resident described the change as “another lag” causing enough delay so that “they’ll just give up.” Id. at 124. The court found the Village’s actions improper under the FHA. Id. at 135.

iii. Sage House’s Dover Amendment Status

Although the Board of Selectmen had no official authority to determine or challenge an institution’s protection under the Dover Amendment, the BOS did become involved in the process. The clearest instance of involvement is the BOS’s multiple requests that the Building Commissioner address BOS concerns regarding Sage House’s Dover Amendment qualifications.

At a BOS meeting on October 17, 2006, Esty stated that “[n]ow the climate has changed” and the BOS is willing “to do anything we can to help [Framingham residents], and in the interest of testing this Dover Amendment.” Esty further stated with respect to the Winter Street project and the Vernon House project, “we should really hop on those before they go too much further and let the planning board know.” The BOS requested that Foley, the Town Manager, and the Town Counsel develop “criteria” for the Building Commissioner’s review of Dover Amendment sites. After Foley confirmed that Sage House fell under the Dover Amendment, the BOS asked Foley to “reconsider and reverse” the decision.

The Town adopted the new criteria for Dover Amendment uses by November 22, 2006, entitled “Supplemental Information for Applicants Seeking Exempt Use Status.” Building Commissioner Foley requested SMOC to complete the Supplemental Information form, though he could not require its completion.

iv. Approval for Larry’s Place

SMOC argues that the BOS, by creating new Dover Amendment criteria, influenced Commissioner Foley’s decision to deny SMOC’s application for a Dover Amendment exemption for Larry’s Place. Giombetti argues that the BOS remained uninvolved in SMOC’s permit application for Larry’s Place. Because the parties have presented conflicting evidence as to BOS’s involvement, I must read the evidence in the light most favorable to Plaintiffs, as the non-moving parties.

v. Common Ground Shelter

SMOC contends that the BOS also made inquiries into the Dover Amendment status of the Common Ground Shelter, at several points asking Building Commissioner Mikielian to reevaluate his 2002 determination that the Shelter was covered by the Dover Amendment. When Mikielian confirmed his determination, the BOS voted to have him review the issue again. The BOS voted on July 25, 2006 to provide support to a lawsuit by residents wishing to challenge Mikielian’s determination.

Disputed is whether the BOS involved the Framingham police department in the investigation of the Common Ground Shelter, including parking unmarked cars outside the shelter and questioning homeless individuals in Framingham about the shelter’s educational activities. The Defendants contend that the Town Meeting merely asked the police department to look into the increase in crime in the downtown area of Framingham. The nature of the conflicting evidence, however, creates an issue of fact for the fact-finder. Giombetti, for example, maintains that his actions had no impact on the Planning Board hearings. He concedes, however, that the BOS asked the Town Manager to respond to the STEPPS questions in June 2005, and asked Foley to reexamine the Dover Exemption for 517 Winter Street.

b. Planning Board Members

SMOC alleges that the Planning Board members engaged in a variety of actions, similar to those of the BOS members, aimed at deterring or delaying SMOC’s permit applications for the residences in question — from targeting SMOC with the Zoning Bylaw amendment to slowing the process of Site Plan Review.

i. Passage of the Bylaw amendment

The Planning Board members supported the Town’s passage of the Zoning Bylaw amendment, and there is evidence to suggest that some of the Planning Board members supported the amendment in order to target SMOC. Defendant Bernstein, for example, described the amendment as a “silver bullet” against the Sage House relocation effort, and without such effect, the “mission of the amendment would not be ‘productive.’ ”

ii Site Plan Review

There are genuine disputes as to whether the Planning Board deliberately prolonged the Site Plan Review process in order to delay the relocation or deter Sage House from pursuing it. Bernstein stated at one point that requiring a traffic study by SMOC, now permitted under the Zoning Bylaw amendment, “would have a nuisance value.”

A reasonable jury could infer that during the first Site Plan Review hearing on June 22, 2006, the Planning Board members expanded the scope of the review process beyond that permitted by the Zoning Bylaw amendment and the Dover Amendment. Spack, for instance, commented that “[t]he whole issue here is the context of this project in the neighborhood” and requested SMOC to provide information on this context. Spack also asked SMOC to “volunteer” to submit a fiscal impact assessment, stating that it was “appropriate” for the Planning Board to make this request even though the assessment was not required. Welles invited the public to submit additional conditions to the Planning Board. Bernstein asked SMOC to resubmit its Dover Amendment materials that had already been submitted to the Building Commissioner, commenting that “I don’t always agree with the Building Department’s rulings.”

Before the January 25, 2007 hearing, the Board permitted STEPPS to present a list of requests for the Sage House relocation, including a PILOT ■ payment, which STEPPS suggested would be “conditions of approval for SMOC’s proposed Sage House program at 517 Winter Street.” At the January 25, 2007 hearing, Laurora asked when SMOC would address the STEPPS conditions. Welles responded that the Town Counsel had advised the Planning Board that most of the STEPPS conditions were beyond the jurisdiction of Site Plan Review. Bernstein nevertheless submitted these and other conditions to the other Board members for discussion, although admitting that the Planning Board could not require them.

There is evidence to suggest that various forms of economic pressure were also placed on SMOC. During a March 8, 2007 meeting, Bernstein addressed the possibility of asking SMOC to make PILOT payments in order to facilitate the Site Plan Review. Faced with the Town Counsel’s statements that such a condition was beyond the scope of Site Plan Review, Bernstein responded that “it’s up to whether the applicant would prefer to see that in there or not have the positive vote.” Bernstein, along with Town Meeting member Adams, also discussed ways to make the Winter Street property’s development more costly. For example, the Planning Board tried to get SMOC to agree not to subdivide the Winter Street lot, apparently out of fear that multiple programs would be sited at Winter Street. Bernstein acknowledged that the Planning Board had no legal means of blocking the lot’s subdivision, but suggested that if the Board pursued this approach, this could present SMOC with a choice between “spending] a year or so in court unable to open the building vs. giving up the extra lots.”

in. Dover Amendment Evaluation

The Planning Board also engaged in fairly extensive discussions of the Dover Amendment protected status of Sage House, even though the Building Commissioner, not the Planning Board, was charged with making Dover Amendment determinations, and even though the Town Counsel informed the Planning Board that the Building Commissioner had determined that Sage House qualified for Dover Amendment protection. Bernstein, for example, requested Dover Amendment materials from SMOC during the November 22, 2006 hearing, admitting that such requests were beyond the Planning Board’s authority, but indicating that she would expect SMOC to “want to give all the help they could in that direction.”

The Planning Board members maintain that the record shows their genuine confusion as to the Dover Amendment status of Sage House. But given the evidence on record, the Defendants have failed to show as a matter of law that their conduct was motivated by confusion, and that discriminatory intent was not at least partially a motivating factor.

SMOC has identified various comments suggesting discriminatory animus on the part of some of the Defendants. The Planning Board members argue that their remarks and inquiries cannot be interpreted as inappropriate or insensitive to the disabled.

The Planning Board members are correct that a few scattered comments alone do not suffice to overcome a defendant’s motion for summary judgment. See Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 743-44 (1st Cir.1995) (“While ambiguous remarks may, under some circumstances, help to illuminate the summary judgment record, such remarks rarely will suffice to conceive an issue of material fact when none otherwise exists.”); Saulsberry v. St. Mary’s Univ. of Minn., 318 F.3d 862, 867-68 (8th Cir.2003) (finding that “an isolated, stray comment unrelated to the decisional process” is not direct evidence of discrimination). But Defendants’ alleged statements consist of far more than just “isolated, stray” remarks unrelated to the decisions in question. The alleged comments were specific, and often directly related to the permit application process. Further, they sit amidst a wealth of disputed material facts.

The Defendants also contend that the Planning Board (and other Town officials) were merely responding or listening to concerns expressed by private citizens during the hearings on Site Plan Review. Yet for discrimination against a protected group to qualify as a motivating factor, the decision-maker need not personally feel animus toward the group. One district court has found it sufficient that the Town officials’ purpose was to “effectuat[e] the desires of its private citizens,” and that “improper considerations were a motivating factor behind those desires.” People Helpers, Inc. v. City of Richmond, 789 F.Supp. 725, 732 (E.D.Va.1992).

c. Town of Framingham

While “federal courts should not become zoning boards of appeal to review non-constitutional land use determinations,” Zahra v. Town of Southold, 48 F.3d 674, 679-80 (2d Cir.1995) (internal quotation omitted), federal and state laws do place limits on discriminatory housing practices.

Given the evidence of the BOS and Planning Board members’ involvement, the Plaintiffs have adduced sufficient evidence to demonstrate a genuine issue of material fact as to the Town’s liability under Section 3604(f)(1). The Town argues that there is no evidence any of the Planning Board members harbored anti-disabled prejudices, and contends that the Board merely complied with its obligation to permit Framingham residents to exercise their First Amendment rights. This position, however, is in conflict with comments made by the defendant Planning Board members themselves, including the statements regarding how to use Planning Board policies and procedures to impede SMOC’s relocation request.

3. Similarly Situated Projects

To establish a disparate treatment claim under the § 3604 of the FHA, a plaintiff must establish that a similarly situated party, during a time period relatively near the period in question, was treated differently by the defendants. Gamble, 104 F.3d at 305; Budnick, 518 F.3d at 1114. SMOC maintains that it need not show disparate treatment of similarly situated projects so long as it can show that a discriminatory purpose motivated the conduct. This position is not supported by the case law cited for it. See Reg’l Econ. Cmty. Action Program, 294 F.3d 35 (making no mention of how to analyze similarly situated projects).

Nevertheless, SMOC does raise questions of fact as to whether the Defendants treated such projects differently from SMOC. Mikielian, the former Building Commissioner, has stated on the record that the Planning Board made regular inquiries into the Dover Amendment status of Sage House, and treated SMOC’s application for Sage House “differently” than it did other programs.

During the Site Plan Review process, the Planning Board and Building Commissioner considered four other projects. SMOC argues that these projects were not subjected to the delays and procedures imposed on SMOC. The Metrowest Jewish Day School, which qualified as religious and education use under the Dover Amendment, applied for Site Plan Review on May 18, 2006, and obtained a Planning Board decision by September 2006. The Planning Board Defendants respond that the Day School requested only the construction of a temporary off-street parking area, thereby requiring a much shorter period of review. But given the similarity in issues raised for both projects — Dover Amendment status, applicability of the Zoning Bylaw amendment, placement in a residential area — these projects can be considered similarly situated.

Another project was a group home for mentally ill adults at 20 Vernon Street. The Dover Amendment covered the project, but Site Plan Review took only five months from the filing of the application to Board approval. The Planning Board members explain this difference by pointing to factors such as the greater local opposition to Sage House’s relocation and the greater level of cooperation from the Vernon Street parties. But of course, resident opposition and SMOC’s level of cooperation could very well be directly related to discriminatory treatment against SMOC.

SMOC has presented sufficient evidence to indicate that there are genuine issues of material fact as to the comparison of these programs, and whether SMOC was treated differently from them. As a result, the Defendants’ motion for summary judgment as to the violations under Section 3604 will be denied.

C. Section 3617 Allegations

SMOC maintains that all of the Defendants engaged in unlawful coercion, interference, intimidation, or threats that give rise to liability under 42 U.S.C. § 3617. Of the four elements in a cause of action under Section 3617, the first two are not disputed by the Defendants. The third element, discriminatory intent, is discussed above except with reference to the Town Meeting Defendants (whom I will consider in this section), in connection with the discussion under Section 3604, leaving the fourth issue of whether the Defendants engaged in threats, intimidation, coercion, or interference on account of SMOC exercising rights protected by the FHA.

1. “Interference” Under the Statute

Some of the Defendants argue that overt acts of force must be involved to support an allegation under Section 3617. I rejected this approach at the motion to dismiss stage, 2008 WL 4595369, at * 12-*13, and need not rehearse that discussion in great detail here. It is sufficient to state that “interference” under the statute can encompass a “pattern of harassment, invidiously motivated.” Halprin v. Prairie Single Family Homes, 388 F.3d 327, 330 (7th Cir.2004). Though the case law is not uniform, the common view is that interference encompasses more than physical force or intimidation. See, e.g., Mich. Protection & Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 347 (6th Cir.1994) (“Section 3617 is not limited to those who used some sort of ‘potent force or duress,’ but extends to other actors who are in a position directly to disrupt the exercise or enjoyment of a protected right and exercise their powers with a discriminatory animus.”); Gourlay v. Forest Lake Estates Civic Ass’n of Port Richey, Inc., 276 F.Supp.2d 1222, 1235 (M.D.Fla.2003) (vacated because of subsequent settlement) (holding that the word “interference” refers to conduct “so severe or pervasive that it will have the effect of causing a protected person to abandon the exercise of his or her housing rights”); People Helpers, 789 F.Supp. at 733 n. 5 (“[W]hen the full weight of the City is brought to bear on a person and where ... investigations are threatened in order to discourage Plaintiffs from helping minorities find suitable housing, then it cannot be said that interference, coercion, or intimidation of the type contemplated by § 3617 did not occur.”); King, 385 F.Supp.2d at 1144 (finding that the defendant, by collecting information and making reports to the housing authority to get Section 8 funding cut off, “engaged in a severe and pervasive pattern of harassing” the plaintiff). But see White v. Lee, 227 F.3d 1214, 1230 (9th Cir.2000) (holding that Section 3617 violations are limited to advocacy “directed to inciting or producing imminent violence and is likely in fact to do so”).

2. Board of Selectmen Members

As discussed in Part III.B.2.a., supra, there is evidence from which a jury could infer that Giombetti, Esty and Smith were involved in increasing the scrutiny of the SMOC projects and in making it difficult for SMOC to relocate Sage House to Winter Street. The BOS members were allegedly involved in getting the police department to place unmarked cars outside the Common Ground Shelter, and described their own efforts as a strategy to increase the cost of Dover Amendment applications. Because the BOS is the primary executive decision-maker in the Town, it had influence over the process and the Town officials directly involved in it, even though the BOS did not have authority over Site Plan Review or Dover Amendment determinations. The BOS members also communicated directly with SMOC officers at times to request information and concessions.

Viewing the facts in the light most favorable to the Plaintiffs, I find that a reasonable jury could conclude that under Section 3617, Giombetti, Esty, and Smith unlawfully “interfered” with the Plaintiffs’ rights protected by the FHA.

3. Planning Board Members

A reasonable jury could also conclude that the Planning Board members engaged in unlawful conduct under Section 3617. As discussed in Part III.B.2.b., supra, there is evidence on the record involving each of the Planning Board Defendants and the discriminatory motives that may have been a factor in their involvement in the Sage House relocation.

Bernstein made several requests for PILOT payments by SMOC, even though such requests were an impermissible part of Site Plan Review. Her comments could have led SMOC to believe that it would have to abandon the Sage House relocation if it did not make payoffs to the Town, thereby constituting an interference with FHA-protected rights. Spaek, during Site Plan Review, was involved in increasing the burdens on SMOC to gain Planning Board approval, for example, offering a fiscal impact assessment and detailing the more general contextual issues related to the relocation. Welles sought to expand Site Plan Review beyond its permissible scope by inviting the public to submit additional conditions for the Sage House relocation. Carr-Evans also participated in attempting to impose additional conditions on SMOC and in preventing the STEPPS presentation from being interrupted. In addition, she allegedly made attempts to prevent Sage House from running programs that non-residents could access, though this was beyond the jurisdiction of the Planning Board.

Together, these actions could lead a reasonable jury to conclude that the Planning Board members actively and intentionally interfered with SMOC’s rights to neutral and nondiscriminatory treatment by Town officials.

4. Town Meeting Members

SMOC alleges that the Town Meeting members- — Adams, Laurora, Lee, and Orr — violated Section 3617, but not Section 3604.

a. Characterizing the Involvement

The threshold issue is whether the Town Meeting members can be liable under the FHA, given that they did not have any official authority over SMOC’s applications to the Town.

Adams cites Michigan Protection, 18 F.3d 337, for the principle that Section 3617 covers only those who could directly make a dwelling unavailable. The Town Meeting members, according to plaintiffs, were in such a position. The court in Michigan Protection stated that Section 3617’s proscription applies to those “who are in a position directly to disrupt the exercise” of a protected right. 18 F.3d at 347. Section 3617 does not require that the actors have official or sanctioned authority over the housing-related decisions; but it does require that they have the power or position to influence, upset, or delay the process. For example, in People Helpers, the court noted that one of the defendants in a Section 3617 claim was a former city councilwoman, and consequently “exerted more pressure and had greater influence than the average citizen would have had in getting the City to act on her behalf.” 789 F.Supp. at 732 n. 4.

Case law suggests that neighbors and residents who oppose a project and use municipal procedures to express their opposition do not run afoul of Section 3617. See White, 227 F.3d at 1230 (determining that a group of neighborhood homeowners did not violate the FHA when they opposed a development by writing letters, publishing a newsletter, and discussing their opposition with the local press); Sunrise Dev. Inc. v. Lower Makefield, No. 2:05-CV-02724, 2006 WL 626806, at *5 (E.D.Pa. Jan. 23, 2006) (“This Court does not believe that, in enacting § 3617, Congress intended to restrict the legal right of [neighbors] to appeal an adverse decision of the [zoning board].”).

But where defendants are themselves Town officials, and privately contact other Town officials in an attempt to influence the Town’s determination regarding the plaintiffs application, the scenario is no longer that of private residents using public channels of influence. Although the permitting decisions were made by the Planning Board, with involvement by the BOS, there are material disputes as to whether the Town Meeting members used their positions of influence as Town Meeting members to contribute to and directly influence the decision-making process. Here, like in People’s Helpers, plaintiffs offer evidence to establish that defendants brought “the full weight of the City ... to bear ... in order to discourage Plaintiffs from helping minorities find suitable housing.” 789 F.Supp. at 733 n. 5. Adams, who did not become a Town Meeting member until March 2007, may limit his liability under Section 3617 to activities taken after his acceptance of a position as a Town Meeting Member.

b. Alleged Interference

All of the Town Meeting member Defendants maintain that although they engaged in petitioning activity opposing the Sage House relocation, their behavior was reasonable and benign, and had no interference with the Plaintiffs’ exercise of their rights under the FHA. SMOC has adduced evidence raising factual questions about this characterization.

Before the first Site Plan Review hearing for Sage House on June 22, 2006, Orr made a statement on the Frambors website about the meeting, encouraging the project’s opponents to attend and “Lock’n’load.” Orr also trespassed on the property of the Common Ground Shelter under false pretenses, in an effort to gather information about the shelter and its educational activities. Orr disputes the manner in which SMOC characterizes these instances, but on the Defendants’ summary judgment motion, I interpret the facts in the light most favorable to SMOC, the nonmoving party.

Laurora worked to raise Dover Amendment issues before the BOS and Planning Board, writing to the Executive Office of Health and Human Services on May 11, 2007, asking for a written copy of allegations against SMOC involving the Sage House location on Clinton Street.

Lee allegedly helped prepare the STEPPS presentation at the December 7, 2006 hearing, and emailed Bernstein in January, 2007 with an “important idea” regarding additional provisions that the Planning Board should request of SMOC.

The outlier in this group is Adams, who, as noted, was not a Town official until March 2007. Adams emailed Bernstein on July 21, 2005, advocating that the Planning Board require a traffic study to impose “delay” and “burden” on SMOC. But this occurred long before his involvement as a Town Meeting member. While the Plaintiffs focus on Adams’s role as a STEPPS organizer, Adams’s STEPPS involvement is not sufficient to create liability under Section 3617. Case law suggests that courts should be hesitant to hold private citizens liable for opposing development projects, even when discriminatory intent may be a motivation. See, e.g., White, 227 F.3d at 1220, 1230 (finding no FHA violation where a group of neighbors actively opposed a development project that they feared would attract the mentally disabled).

The Plaintiffs’ evidence, however, does include comments made by Adams on the Frambors site on September 30, 2007, while Adams was a Town Meeting member: “SMOC is currently occupying 517 Winter on a temporary occupancy permit which expires in November. They hope to have their permanent permit by then. We are working in the intervening time to convince the state to revoke their contract and pull their financing.” A reasonable jury could conclude that the pronoun “[w]e” refers to Adams and other Town Meeting members, not Adams as a private citizen. This is sufficient to create issues of material fact as to whether Adams used his capacity as a Town official to oppose SMOC’s program at 517 Winter Street in service of the discriminatory intent evidenced in his pre-Town Meeting membership activities.

c. Discriminatory Intent

A reasonable jury could conclude that the actions of the Town Meeting member Defendants were motivated in part by the disability of the Sage House residents. Orr has admitted that he is “prejudiced” against individuals with drug addiction and alcoholism, and stated that he believed such individuals would “steal huge amounts of private property” in order to maintain their habits. Laurora opposed the Sage House relocation because she believed that the residents on Winter Street would be criminals. Lee provided the original idea to revise the Lodging House Bylaw in March 2006, and opposed Larry’s Place, commenting that “[i]n case you are not aware, this is around the corner from our only real library in town.” These comments and actions provide sufficient evidence of discriminatory intent by each defendant to survive summary judgment on the Section 3617 allegation.

5. Human Services Coordinator, Silver

The allegations against Silver, the Town’s Human Resources Coordinator as of January 2007, are limited. SMOC alleges that in a 2007 discussion with an employee at the IHR, Sage House’s referral source, Silver stated that SMOC would never get approval to relocate Sage House to Winter Street. There is no indication, however, that this comment created any response whatsoever at the IHR or had any effect on SMOC’s housing programs. Silver also presented a report to the BOS on August 21, 2007 on the costs imposed on the Town by social service agencies. Silver recommended an eighteen-month moratorium on the siting of such programs in the Town, and recommended that the Town develop community groups to monitor social service agency properties and their clients. But the facts do not show that the report was adopted by the BOS or communicated to SMOC in any way that would constitute threats, intimidation, coercion, or interference. Indeed, Silver’s presentation occurred four months after the Planning Board formally approved the Sage House relocation.

One of SMOC’s less compelling arguments is that Silver was involved in Foley’s denial of Dover Amendment status to Larry’s Place. SM