The above-captioned cases involve the Northwood at Sudbury Condominium (hereafter, Northwood) and, at this stage in the litigation (after the remand directed by my July 8, 2014 Decision), the question of precisely what facilities and services Northwood must provide to qualify as a Residential Care Facility under the Sudbury zoning bylaw, and thus be an allowable use in its zoning district (the Research District). The history of these cases is a long one, having occasioned two appeals to the Sudbury ZBA (and from there to this court), numerous decisions of the Sudbury Board of Selectmen and Sudbury building inspector, and a prior decision of this court determining certain issues and remanding to the ZBA the question of what the bylaw requires of a Residential Care Facility -- a term that is defined in the bylaw, but only with reference to terms that are not themselves specifically defined (here, independent living arrangements). [Note 1]
On remand, the ZBA determined that the bylaw required the facilities and services set forth in the Board of Selectmens 1997 site plan approval of the Northwood development, with two exceptions. These exceptions were: (1) the ZBAs determination that the bylaw did not require provision of an indoor swimming pool, and (2) its modification of the requirements as to transportation and in-home cleaning services for residents. After the ZBA issued its remand decision, the plaintiffs amended their pleadings to appeal that decision, objecting to the exceptions applied by the ZBA and arguing that the bylaw also had certain additional requirements suggested by their expert witness (Christopher Wise) at trial that had not previously been imposed by the Selectmens 1997 site plan approval.
At a November 18, 2014 status conference, the parties agreed that these issues should be determined solely on the basis of the evidence from the initial trial, their post-remand memoranda, and oral arguments, with no further testimony needed. Having considered those memoranda and arguments, as well as the evidence previously admitted at trial, for the reasons set forth below, the ZBAs remand decision is hereby AFFIRMED in all respects.
In 1997, the Conant-Welch Group (the original developer of the Northwood development) applied to the Sudbury Board of Selectmen for site plan approval to construct Northwood as a Residential Care Facility. [Note 2] By decision dated November 14, 1997, the Selectmen granted site plan approval for Northwood, conditioned on 100% occupancy by persons aged fifty-five and older (excepting spouses), as well as the construction and maintenance of numerous specified on-site facilities, and the continuing provision of numerous specified residential care services. In relevant part, these conditions were as follows:
Condition 22B. The following language shall be inserted in the Condominium Master Deed:
Residential Care Facility. Northwood at Sudbury is a residential care facility and shall provide a continuum of home health services and residential care to any Qualified Resident to enable such a resident to remain in his or her Unit for as long as possible without having to move to another facility in order to obtain a required level of care.
A continuum of residential care services will be provided by contract with recognized care providers, which will be designated as preferred providers, and which, by contract commitment, will be required to provide on an as-needed and as-requested basis, to Qualified Residents:
A) home health services for independent Qualified Residents,
B) skilled services for Qualified Residents requiring temporary respite care, and
C) specialized on-going services to the more medically fragile Qualified Residents.
D) provide for in-house Health Care Coordinator
To this end, Northwood at Sudbury shall at all times provide to Qualified Residents the following:
A. As part of the Common Area and Maintenance Fees of the Condominium:
1) Each Unit in Northwood at Sudbury a) shall be equipped for installation of grab bars which shall be installed (and removed) on an as-needed and as-requested basis for a Qualified Resident and b) shall have doorway dimensions large enough to accommodate wheelchairs and walkers;
2) An activities building which will contain the following:
Exercise and Fitness Room
Greenhouse and Garden Area
Kitchen and Dining Areas
Library and Lounge
Meeting and Craft Rooms
Nurses Offices and Wellness Clinic
3) An Emergency Response System installed and operating in each Unit in the Condominium together with a 24 hour a day, 7 days a week monitoring of the Emergency Response System;
4) Local transportation of Qualified Residents and their Guests for shopping, for doctors appointments, and for attendance at social, charitable, and religious gatherings; and
5) Weekly housekeeping services.
B. As an addition to and not included in the Common Area Maintenance Fees of the Condominium:
1) An arrangement with a preferred, independent living, health-care provider (initially expected to be Parmenter Health Services, Inc.) having a contract commitment to staff delivery, on site and on an as-needed and as-requested basis, to Qualified Residents, of a) independent living services (such as, but not limited to, fitness programs, wellness clinics, and homemaker services), b) assisted living services (such as, but not limited to, personal care attendants, companion service, and meal preparation), and c) skilled services (such as, but not limited to, nursing, physical, therapy, and home health aid services), all of such services to be contracted and paid for directly by the Qualified Resident receiving such service.
2) An arrangement with a preferred, assisted living, health-care provider (initially expected to be New Horizons at Madonna Hall, Marlborough), having a contract commitment to accept, on an as-needed and as-requested basis, Qualified Residents for off site assisted living services and Alzheimers care, and through such providers preferred provider (initially expected to be Wingate at Sudbury) or by separate contract with another provider, a contract commitment to accept, on an as-needed and as-requested basis, Qualified Residents for off site skilled nursing services, all of such services to be contracted and paid for directly by the Qualified Resident receiving such service.
Amendment. The provisions of this section shall not be amended or revoked unless any amendment or renovation has been approved in a writing executed by the majority of the Board of Selectmen of the Town of Sudbury [or,] without any such approval by the Town of Sudbury, these provisions may be amended by the Unit Owners, as otherwise provided herein, to mandate that Northwood at Sudbury provide additional facilities, services or arrangements to increase the number of services and facilities provided as a residential care facility or to arrange to have such existing or expanded services performed or provided for directly by the Condominium rather than by contract with preferred providers.
Sudbury Bd. of Selectmen, Site Plan Decision (Nov. 14, 1997) (hereafter, 1997 Site Plan Decision) at 18-19. No appeal [Note 3] was taken from this decision, and the conditions imposed were inserted into Northwoods master deed at Section 6(B)1-3. Plaintiffs Sidney and Rita Bourne purchased their unit soon after.
Years later, after the projects development rights had changed hands, the new developer (Castagna Construction Corp.) and the condominium trustees sought to modify those conditions by, among other things, (1) eliminating the requirement that all units be occupied by persons aged fifty-five and above, and (2) substantially modifying the conditions as to mandatory on-site facility and care requirements, leaving it to the condominiums board of trustees to determine what facilities and care would be provided. [Note 4] The Selectmen approved these modifications. With respect to required services and amenities, the Selectmen gave no guidance as to what the bylaws definition of Residential Care Facility required, except for the suggestion that: (1) mere coordination of services might suffice (without explaining how that should take place, or requiring any aspect of that coordination, or any of the services themselves, to be on-site), and (2) the non-exclusive designation of one room in the entire complex as available for visiting nurses, therapists and other medical personnel to examine and consult with unit owners, might be the only on-site space necessary for the development to qualify as a Residential Care Facility. See generally Sudbury Bd. of Selectmen, Site Plan Modification Notice of Decision (Mar. 25, 2010). The Bournes and other residents appealed that decision to the ZBA, which affirmed the Selectmen. See generally Sudbury Zoning Bd. of App., Notice of Decision (Jul. 2, 2010). The Bournes then appealed that affirmance to this court (Case No. 10 MISC. 434334 (KCL)). [Note 5]
By Decision and Judgment dated July 8, 2014, I vacated the portion of the ZBAs July 2, 2010 decision (appealed in Case No. 10 MISC. 434334 (KCL)) that purported to reduce the requirement that the Northwood condominium project be limited to residents aged fifty-five and above (excepting residents spouses) and remanded the cases to the ZBA for a determination of what facilities and/or services must be provided at the Northwood development in order for it to qualify as a Residential Care Facility under Section 7000 of the bylaw. See Decision (July 8, 2014) (10 MISC 434334 (KCL) & 12 MISC 465978 (KCL)) at 25. [Note 6]
On remand, the ZBA held a public hearing on these cases, after which it issued a decision dated October 29, 2014, ruling unanimously as follows:
MOTION: The minimum services and on-site facilities necessary for independent living arrangements at the residential care facility known and operated as the Northwood at Sudbury, as defined by the Sudbury Board of Selectmen in a Site Plan decision dated November 14, 1997 [the 1997 Site Plan Decision], are hereby reaffirmed and shall apply to the Northwood at Sudbury with the following amendments:
1) The requirement that a swimming pool be constructed and maintained on the premises shall be deleted as a minimum on-site facility;
2) Transportation shall be a required service on a fully subsidized basis, to be provided by standing, written arrangement with a local livery, transport, taxi or other service for local transportation, for a minimum of two (2) hours per day, Monday through Friday, with the exception of Federal and State holidays; and
3) Housekeeping services shall be offered as an on-site service, on an opt-in pay for services basis only.
Bd. of App. of the Town of Sudbury, Notice of Decision (Oct. 29, 2014) (hereafter, ZBA Decision) at 1. [Note 7] As the ZBA explained in its statement of reasons:
In reaching its decisions as set forth above, the Board determined that the conditions set forth in the [1997 Site Plan Decision] generally constituted an appropriate definition of minimum care requirements under the applicable bylaw, with the exception of the swimming pool. The Board noted with approval the Land Courts generally positive reference to the [1997 Site Plan Decision], as well as the fact that the [1997 Site Plan Decision] contained all the material elements of the Northwood project as described to prospective buyers, including but not limited to Mr. Sidney Bourne. The Board was cognizant of the tremendous amount of work and deliberation which went had gone [sic] into the [1997 Site Plan Decision]. The Board was also mindful of wanting to adopt a definition of minimum care requirements which fairly and fully meets the original intent and purpose of the bylaw, and the legitimate expectations of purchasers such as Mr. Bourne, while also (hopefully) allowing the Northwood development to finally complete development and move forward towards the long term financial stability which all parties, residents, and citizens want and deserve.
Id. at 9. With the exception of the swimming pool, [Note 8] transportation services, [Note 9] and in-home cleaning services [Note 10] (as to each of which the ZBA issued specific statements of reasons), the ZBA found that [t]he remainder of the minimum care requirements as set forth in the [1997 Site Plan Decision] . . . constitute minimum care requirements within the meaning of the bylaw. Id.
In these G.L. c. 40A, § 17 appeals, the only remaining issue for adjudication is whether the ZBA correctly interpreted Bylaw §7000 in terms of what facilities and services must be provided for a development to qualify as a Residential Care Facility under that section. While an incorrect interpretation must be disregarded by the court, deference is given to the local boards reasonable interpretation of its own zoning bylaw based upon its special knowledge of the history and purpose of its town's zoning by-law. Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Bd. of App. of Billerica, 454 Mass. 374 , 381 (2009) (internal quotation omitted); see also Shirley Wayside Ltd. Pship v. Bd. of App. of Shirley, 461 Mass. 469 , 475 (2012); Britton v. Zoning Bd. of App. of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003) (the court owes a highly deferential bow to local control).
As noted above, Bylaw §7000 defines a Residential Care Facility as one providing assisted living and/or independent living arrangements to persons 55 years or older in one or more buildings. Id. (emphasis added). What this means is determined according to ordinary principles of statutory construction. See Shirley Wayside, 461 Mass. at 477. Thus, I look to the statutory language of this bylaw as the principal source of insight into legislative intent and, if its meaning is plain and unambiguous, I will enforce it according to its plain wording unless a literal construction would yield an absurd or unworkable result[,] . . . giv[ing] effect to all its provisions so that no part will be inoperative or superfluous. Id. (internal citations omitted).
The plain language of the bylaw makes two things clear at the outset: (1) Residential Care Facilities must have dedicated spaces, on-site, that distinguish them from ordinary condominiums (making them residential care facilities), and (2) the care services required by the bylaw to enable true independent living by senior residents must be provided, at least in part, in one or more buildings in that facility. [Note 11] The question that remains is what facilities and services are required for independent living arrangements, and how they must be provided. [Note 12] The ZBA has ruled on these questions on remand. That bylaw interpretation is now before me for review.
As discussed above, in its remand decision, the ZBA determined that the conditions previously imposed by the Selectmen in the 1997 Site Plan Decision generally constituted an appropriate definition of minimum care requirements under the applicable bylaw (ZBA Decision at 9), subject to three modifications: (1) elimination of the swimming pool, (2) specification of the minimum hours during which transportation services for services are to be provided, and (3) clarification that in-unit cleaning services would be provided on an opt-in, owner-paid basis, rather than being provided for all residents and included in monthly condominium fees. See id.
I find and rule that the conditions imposed by the Selectmen represent a well-reasoned, thorough set of requirements intended to ensure that Residential Care Facilities providing independent living solutions for seniors have the necessary services and facilities on site to enable residents to maintain their independence, while at the same time ensuring that the necessary support (be it social, medical, recreational, transportational, etc.) for residents is provided. It is thus a reasonable interpretation of the bylaw, and is well within the measure of deference the ZBA is due. See Wendy's, 454 Mass. at 381 (local zoning board has special knowledge of the history and purpose of its bylaw). The services and facilities required satisfy the reasonable needs of senior residents, and the Selectmens requirements further allow for amendments to required conditions, which affords a much-needed element of flexibility to adapt to changing times and needs. This power to amend is not without limits, as it specifically requires approval by the Selectmen for any change that would reduce the level of services.
As noted above, the plaintiffs bought their unit at the time the Selectmens 1997 Site Plan Decision was in place. They did so in reliance on the conditions imposed by that decision, and now urge that each of those conditions be re-imposed with additional conditions added. But it also must be said that the plaintiffs also had full knowledge and awareness that the conditions set forth in the 1997 Site Plan Decision were subject to the possibility of amendment, as set forth both in the 1997 Site Plan Decision and the Northwood master deed. As such, they could only reasonably rely on the bylaws minimum requirements. [Note 13] Moreover many of the things they request are beyond even what their own witness, Mr. Wise, recommended in his testimony.
First, with respect to the indoor swimming pool, Mr. Wise specifically testified that, in his opinion, a swimming pool was [a] bonus, not an essential part of a Residential Care Facility. See Trial Tr. at 126-127. I agree, and I find the ZBAs discussion on this point to be eminently reasonable. It is true that a pool may have been a nice feature. ZBA Decision at 9. However, the ZBAs primary task was to determine minimum requirements for Residential Care Facilities, and a pool simply does not go to the core of independent senior living within the original meaning and intent of the bylaw. Id. Further, maintaining a pool would represent a significant expense, which was seriously out of favor with a majority of Northwood residents. Id.
Next, with respect to transportation services, the ZBA merely applied a reasonable qualification to an otherwise unspecific requirement. The 1997 Site Plan Decision stated only as follows: Local transportation of Qualified Residents and their Guests for shopping, for doctors appointments, and for attendance at social, charitable, and religious gatherings. 1997 Site Plan Decision at 19. Here, not only has the ZBA applied a minimum standard to ensure that services do not drop below a specified level, it allows for Residential Care Facilities to actually provide more transportation services than the bare minimum. This, complemented by the ability to amend the Northwood master deed, ensures a minimum level of transportation services while at the same time providing flexibility to adapt to changing needs. Moreover, the discussion by the ZBA reaffirms the essential nature of this service, especially given the Northwoods suburban location with somewhat limited available public transportation services. ZBA Decision at 9. [Note 14]
Finally, with respect to the provision of in-home cleaning services, as with transportation, all the ZBA did was to clarify an otherwise vague condition. The 1997 Site Plan Decisions treatment of this condition is even vaguer than that of transportation services, stating only Weekly housekeeping services. 1997 Site Plan Decision at 19. Here, the ZBA appears to have gone farther than even Mr. Wise thought was necessary. Whereas Mr. Wise testified that only cleaning of common spaces was necessary (implying that elect[ing] to use in-home cleaning services was a mere convenience) (see Trial Tr. at 130), the ZBA found that access to housekeeping services on an opt-in fee for services basis, in the event a resident does not have alternative solutions, appeared to the Board to be a minimum care requirement of healthy and enjoyable independent senior living. 1997 Site Plan Decision at 19. I concur.
The ZBAs reference here to a lack of alternative solutions speaks directly to the particular needs of residents of Residential Care Facilities, especially those catering to independent living solutions. Providing options in the face of such a lack of alternatives would seem to be exactly what is needed in order to enable seniors to enjoy independent living. Yet, specifying that such services would be an opt-in, fee-for-services option ensures that residents of differing abilities can elect to use those services only if needed and wanted, thus allowing the facility to keep costs down by not requiring that such services be available even to residents who, if given the choice, would prefer not to have them.
Turning lastly to the plaintiffs claim that the ZBA should have directed additional conditions that were not previously set forth in the 1997 Site Plan Decision, I find that this objection has no merit. As noted above, the Bournes purchased their unit with full knowledge of what was required of the Northwood development and what was not. They therefore had no reasonable expectation that an on-site resident assistant -- or anything else beyond the bylaws requirements (as now defined) -- would necessarily be provided. In any event, all that matters is that the required minimum services be provided. Nothing in the 1997 Site Plan Decision or the Northwood master deed prevents the creation of this position should it turn out to be logistically necessary. Likewise, nothing stops condominium residents from amending the master deed to specifically add a requirement that an on-site resident assistant position be created. This arrangement optimally ensures that Residential Care Facilities can adapt their specific arrangements for the provision of on-site services based on what works best for them. In all events, however, residents rights are protected by the bylaw-required minimum that, whether or not an on-site assistant is present, the services must be provided.
For the foregoing reasons, I find and rule that the ZBA Decision has covered all issues remanded, and that the ZBAs interpretation of the bylaws requirements for Residential Care Facilities is both reasonable and well-articulated. Accordingly, I defer to that interpretation. See Wendy's, 454 Mass. at 381; Shirley Wayside, 461 Mass. at 475; Britton, 59 Mass. App. Ct. at 73. In the opinion of this court, the ZBA, on remand, adequately considered both the general services and amenities requirements that should apply to Residential Care Facilities under Section 7000 of the Sudbury bylaw, as well as how those requirements should be applied in this particular instance. To the extent the ZBA modified the previously-imposed requirements, those modifications were limited and well-reasoned. Accordingly, the ZBAs remand decision is hereby AFFIRMED in all respects.
Judgment shall enter accordingly.
[Note 1] Rather than set forth the full history of these cases once again, I will simply summarize what is needed to follow the discussion. A full recitation of the considerable factual and procedural background may be found in my July 8, 2014 decision, which I incorporate herein by reference for that and other background purposes.
[Note 2] The Northwood site is located at 142 North Road in the Towns Research District, where all residential uses are prohibited with only the following exceptions: Residential Care Facilities, nursing or convalescent homes, assisted care facilities, senior residential communities (by special permit), and incentive senior developments (also by special permit). See Zoning Bylaw §2230, Appx A (Table of Principal Use Regulations). With few exceptions, none applicable here, all other residential uses are prohibited in this district. The Sudbury town bylaw defines a residential care facility as a facility providing assisted living and/or independent living arrangements to persons 55 years or older in one or more buildings. Bylaw §7000 (Definitions). No further detail is given. Site plan approval from the Board of Selectmen is needed before a Residential Care Facility may be built, and the Selectmen have authority to set conditions in connection with that approval to ensure that the facility is, and remains, zoning compliant. See Bylaw §6300; Jt. Pre-Trial Stmt. (Jan. 31, 2013) at Agreed Fact #10.
[Note 3] In Sudbury, site plan decisions are issued by the Board of Selectmen, and appeals of such decisions are to the ZBA (as permit granting authority for Sudbury), from which G.L. c. 40A § 17 appeals to this court may be taken. See Bylaw, §§ 6300-6389, 6390A; G.L. c. 40A, § 8.
[Note 4] They also requested that the number of units be reduced from the originally-planned sixty-six to forty- three, with new units to be constructed in townhouse-style buildings.
[Note 5] In or around 2011, Northwood changed developers once again, from Castagna to the current developer, defendant First Colony Northwood LLC. On October 18, 2011, defendant First Colony Northwood applied for further modifications to the Northwood site plan (including minor alterations to elevations and interior floor plans, re-location of two new duplexes, and implementation of certain storm water control measures). These were denied by the building inspector and the Selectmen on the ground that the ZBAs 2010 elimination of the requirement for 100% over-55 occupation made Northwood non-compliant with zoning. No appeal from the Selectmens decision was taken. Instead, on February 28, 2012, the developer filed a building permit application seeking to implement the modifications the Selectmen had rejected. The building inspector denied that building permit, an appeal was taken to the ZBA, and the ZBA directed that the building permit issue, ruling that the Selectmen had exceeded their authority in denying the permit. The Bournes then appealed that ZBA decision to this court (Case No. 12 MISC. 465978 (KCL)), contending that the ZBAs decision approving the modifications should be vacated on the merits.
[Note 6] I also remanded Case No. 12 MISC. 465978 (KCL) for reconsideration in light of the services and facilities that would be required pursuant to the ZBAs definition of residential care facility.
[Note 7] The ZBA also voted to restore the previously-mandated residency requirement of 100% aged fifty-five and up (excluding spouses), pursuant to this courts remand decision. Id. The ZBA further determined that no modification to the design elements of the site plan approval is required as a result of the above (id.), thus resolving the issues appealed in Case No. 12 MISC. 465978 (KCL).
[Note 8] [A]lthough a pool may have been a nice feature to have, it was a significant expense, was seriously out of favor with a majority of Northwood residents, and most importantly, did not go to the core of independent senior living within the original meaning and intent of the bylaw. The Board thus determined the swimming pool was not a minimum care requirement within the meaning of the bylaw. Id.
[Note 9] [R]egular local transportation services for residents to do errands and the like does go to the core of independent senior living at this facility, particularly given its location within a suburban community such as Sudbury with somewhat limited available public ransportation services. Id.
[Note 10] [A]ccess to housekeeping services on an opt-in fee for services basis, in the event a resident does not have alternative solutions, appeared to the Board to be a minimum care requirement of healthy and enjoyable independent senior living. Id.
[Note 11] As the Selectmen noted at their 1997 hearings on the original site plan application, the mere presence of a listing of services in the lobby would not suffice.
[Note 12] As stated in my remand order:
The key lies in evaluating what elderly persons need to remain independent for as long as possible, short of assisted living or nursing home care. They often do not drive, are more likely to need on-site social, interactive space because of that lack of mobility, and may greatly need someone on-site to help them obtain and coordinate doctors visits, grocery and clothing purchases, housekeeping services, meals, trips to stores and entertainment, and the like. The conditions in the Selectmens 2010 site plan approval are one possible solution, but as even that decision recognized when it explicitly provided for later amendment, may be more than reasonably necessary. Another was outlined by the Bournes expert, Christopher Wise the CEO of Wise Living, which owns and operates independent living facilities in Massachusetts who testified regarding the minimum level of service required of an independent living facility.
According to Mr. Wise, at the very minimum, the characteristics of an independent living facility include a 24-hour staff, meals available to residents on request, and common areas which include dining, exercise, and activities rooms. As Mr. Wise explained, although amended Condition 22B specifies that skilled services would be available on an as-needed basis rather than provided by a 24-hour on-site staff, it does not require an in-house health care coordinator, which, in his opinion, is critical to Northwood being a residential care facility. As he explained, [w]ithout the coordinator, none of it works because the individual has a hard time, if calamity has struck, to go and ferret things out. In Mr. Wises independent living facilities, for example, the coordinator (whom he calls the resident assistant), helps residents with everyday tasks, such as arranging transportation to medical appointments. According to Mr. Wise, common areas, such as a library and lounge, are necessary to allow residents to socialize and interact with each other. Mr. Wise also testified that garden areas serve an important function since they provide an activity for residents to engage in, and also offer benefits to residents with Alzheimers disease who, with their spouses support, need not yet go to full-time Alzheimers care. Likewise, in his view, arrangements, by contract or otherwise, with outside healthcare providers are important features of independent living facilities. As Mr. Wise acknowledged, there is no state regulation or statute that defines what constitutes an independent living facility and Northwood need not perfectly mirror one of Mr. Wises developments. However, his testimony demonstrates that the conditions that were put in place by the Selectmen in their 1997 site plan decision closely reflect an industry understanding of what care services must be offered to residents in an independent living facility.
Decision (July 8, 2014) (10 MISC 434334 (KCL) & 12 MISC 465978 (KCL)) at 23-24.
[Note 13] As noted above, the task of the ZBA on remand was twofold. First, it was required to determine, in general, what facilities and services Residential Care Facilities must provide. Second, it was required to determine if the facilities and services to be provided by the Northwood development met those requirements. As discussed in my prior decision, the Northwood development represented the first instance in which a developer sought to avail itself of the Residential Care Facility exception to the general restriction of residential developments in the Research zoning district. Thus, the Selectmen took great care, in their deliberations on the original Northwood site plan review, to promulgate what would represent a general standard for how that exception would be applied. The ZBA, on remand, determined that the Selectmens determination of the required facilities and services (as slightly modified) represented an acceptable standard. And, since that standard had already been applied to the Northwood development, in effect, the ZBA determined both the general and the specific question in one motion.
[Note 14] The defendants argue that Mr. Wises testimony entails that the actual transportation services condition could be eliminated without compromising the operation of the Northwood at Sudbury as an independent living facility . . . . Defs. Post-Remand Mem. at 11. They reach this conclusion by seizing on a strained distinction between coordinating transportation (which, Mr. Wise testified, is critical, Trial Tr. at 130) and providing it. I disagree both with the distinction and the conclusion drawn from it. Whether transportation services are coordinated with private livery services or provided by Northwood, the point is that those services are critical.