Crossing Over, Inc. v. City of Fitchburg

Decision Date23 November 2020
Docket NumberNo. 19-P-903,19-P-903
Citation161 N.E.3d 432,98 Mass.App.Ct. 822
Parties CROSSING OVER, INC., & others v. CITY OF FITCHBURG & others.
CourtAppeals Court of Massachusetts

Andrew J. Tine for the plaintiffs and the intervener.

Gregor Pagnini, Boston, for the city of Fitchburg & another.

Julie E. Green, Assistant Attorney General, for Automatic Sprinkler Appeals Board.

Present: Sullivan, Kinder, Lemire, JJ.


The plaintiffs, Theodore Bronson and Crossing Over, Inc. (collectively, Crossing Over), and the intervener, the Massachusetts Alliance for Sober Housing, Inc., appeal from a partial judgment on the pleadings entered pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), dismissing Crossing Over's claims for injunctive relief and damages against the defendants, the city of Fitchburg (city), the city's fire prevention bureau (fire department), and the Automatic Sprinkler Appeals Board (board), in which Crossing Over sought to bar the enforcement of an order of the city fire chief requiring installation of sprinklers in the plaintiffs' sober home.3 In the two counts before us, Crossing Over, the operator of a sober home, contends that the fire department's enforcement of the sprinkler law, G. L. c. 148, § 26H, against its sober home4 violates G. L. c. 40A, § 3, because § 3 prohibits the enforcement of laws and regulations that impose restrictions on facilities serving the disabled that are not imposed on family units of similar size.

We conclude that the sprinkler law is a State law that is unaffected by the prohibitions against local enforcement contained in G. L. c. 40A, § 3. We therefore affirm the judgment entered on the first two counts of the complaint, but remand for consideration of the plaintiffs' disability discrimination claims under State and Federal law.

Background. 1. Statutory framework. Before we turn to the facts of this case, it is important to describe the statutory framework within which this dispute arose.

The Commonwealth's sprinkler laws reflect a patchwork of requirements enacted, seriatim, in response to various tragedies.5 "[F]ollowing a fire in a luxury high rise hotel that killed nine firefighters," MacLaurin v. Holyoke, 475 Mass. 231, 245 n.33, 56 N.E.3d 1254 (2016), "automatic sprinklers were first required in 1972, in new high rise buildings throughout the Commonwealth, for buildings built after March 1, 1974. See G. L. c. 148, § 26A ; St. 1973, c. 395, § 1." Id. at 245, 56 N.E.3d 1254. "In 1982, following a deadly fire in Fall River, the commercial sprinkler provision, applicable to new nonresidential buildings of more than 7,500 square feet, and existing such buildings when they underwent ‘major alterations,’ was adopted." Id., discussing G. L. c. 148, § 26G, inserted by St. 1982, c. 545, § 1. "[I]n 1986, after a major fire in the Prudential Center in Boston, sprinklers were required in existing, and not just new, high rise buildings across the Commonwealth, G. L. c. 148, § 26A 1/2, with a ten-year phase-in period. St. 1986, c. 633, § 2." (Footnote omitted.) MacLaurin, supra. The sprinkler requirement for lodging houses at issue in this case was enacted within two years of the 1984 Elliot Chambers rooming house fire, a fire in Beverly in which fifteen people died and fourteen more were injured. See G. L. c. 148, § 26H, inserted by St. 1986, c. 265; Ortega, 1984 Beverly Fire Etched into Memory of Witnesses, Boston Globe (July 4, 2014), [].

The lodging house provisions of G. L. c. 148, § 26H, provide in pertinent part:

"In any city or town which accepts the provisions of this section, every lodging house or boarding house shall be protected throughout with an adequate system of automatic sprinklers in accordance with the provisions of the state building code. ...
"For the purposes of this section ‘lodging house’ or ‘boarding house’ shall mean a house where lodgings are let to six or more persons not within the second degree of kindred to the person conducting it, but shall not include fraternity houses or dormitories, rest homes or group residences licensed or regulated by agencies of the Commonwealth."

Into this statutory mix is added G. L. c. 40A, § 3, which provides:

"Notwithstanding any general or special law to the contrary, local land use and health and safety laws, regulations, practices, ordinances, by-laws and decisions of a city or town shall not discriminate against a disabled person. Imposition of health and safety laws or land-use requirements on congregate living arrangements among non-related persons with disabilities that are not imposed on families and groups of similar size or other unrelated persons shall constitute discrimination."

(Emphasis added.) It is this statute that Crossing Over asserts bars the application of G. L. c. 148, § 26H, to sober homes, and overrides any other State law to the contrary. See Beacon S. Station Assocs. v. Board of Assessors of Boston, 85 Mass. App. Ct. 301 306, 9 N.E.3d 334 (2014) ("The Legislature uses the ‘notwithstanding’ language to trump the effect of other potentially inconsistent statutes").

2. Crossing Over's sober home. Crossing Over operates a sober home occupied by eight residents in the city. The home provides housing to people in recovery from substance use disorders. Individuals in recovery are considered disabled and are entitled to the protection of State and Federal disability laws. See G. L. c. 151B, § 1 (17) (excluding from definition of "handicap" any "current, illegal use of a controlled substance as defined in section one of chapter ninety–four C"); 42 U.S.C. § 3602(h) (excluding "current illegal use or addiction to a controlled substance" from definition of "handicap"); 24 C.F.R. § 100.201(a)(1) (including in definition of handicap "drug addiction [other than addiction caused by current, illegal use of a controlled substance] and alcoholism").6

On November 4, 2002, the city accepted the provisions of G. L. c. 148, § 26H, which (as described above) requires lodging houses to be equipped with sprinklers. On March 8, 2017, the chief of the fire department sent a letter to Crossing Over to inform it that the fire department had determined that Crossing Over's sober home was a lodging house and that the home was not in compliance with the statute because it did not have automatic sprinklers.

Following an unsuccessful attempt to convince the fire department to reverse its determination, Crossing Over timely appealed to the board, arguing to that agency that a series of decisions rendered in the United States District Court for the District of Massachusetts had interpreted G. L. c. 40A, § 3, to exempt housing for disabled people -- such as those at the sober home -- from G. L. c. 148, § 26H. See, e.g., Brockton Fire Dep't v. St. Mary Broad St., LLC, 181 F. Supp. 3d 155, 156-157 (D. Mass. 2016).7

After an evidentiary hearing, the board affirmed the decision of the fire department, stating that "[t]he [b]oard believes that the legislative intent of both [G. L.] c. 148, [§] 26H [,] and c. 40A, [§] 3[,] can be applied in a harmonious manner. The purpose of [G. L.] c. 40A, [§] 3 [,] is to protect certain identified persons or groups of persons from discrimination by means of the adoption of local, ‘home grown’ land and building use restrictions that target said groups differently from other similarly situated groups. ... [T]he enhanced fire protection requirements of [G. L.] c. l48, [§] 26H[,] is a [S]tate statute, enacted by the Massachusetts Legislature. It is not a creation of a municipal local zoning authority acting pursuant to the [G. L.] c. 40A, [§] 3 [,] methodology." The board further concluded it had no jurisdiction to consider the plaintiffs' disability discrimination claim.

Crossing Over timely filed a complaint in the Superior Court alleging violations of G. L. c. 30A, § 14 ; the Federal Fair Housing Act, 42 U.S.C. §§ 3601, et seq. ; the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. ; and G. L. c. 151B, § 4. After substantial motion practice, a judge of the Superior Court also concluded that " G. L. c. 148, § 26H, governs and applies to this [p]roperty which is being used as a lodging house and that the anti-discrimination provision of [the] Zoning Act [contained in G. L. c. 40A, § 3,] does not invalidate the application of the sprinkler law in a sober house sheltering eight disabled persons," because "[t]he [c]ity's adoption of this [S]tate statute does not then transform it into a local law or ordinance" covered by G. L. c. 40A, § 3. Judgment entered for the defendants on the first two counts of the complaint, and a certification of partial final judgement pursuant to Mass. R. Civ. P. 54 (b) also entered. This appeal followed.

Discussion. At issue is whether G. L. c. 40A, § 3, exempts sober homes from application of the sprinkler law, to lodging houses for disabled persons.8 Under G. L. c. 30A, § 14 (7), "[w]e shall uphold an agency's decision unless it is based on an error of law, unsupported by substantial evidence, unwarranted by facts found on the record as submitted, arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law." Massachusetts Sober Hous. Corp. v. Automatic Sprinkler Appeals Bd., 66 Mass. App. Ct. 701, 704-705, 850 N.E.2d 585 (2006), quoting Massachusetts Inst. of Tech. v. Department of Pub. Utils., 425 Mass. 856, 867-868, 684 N.E.2d 585 (1997). "We review questions of statutory interpretation de novo." Worcester v. College Hill Props., LLC, 465 Mass. 134, 138, 987 N.E.2d 1236 (2013).9 See DiLiddo v. Oxford St. Realty, Inc., 450 Mass. 66, 73–74, 876 N.E.2d 421 (2007).

1. Statutory construction. Crossing Over contends that G. L. c. 40A, § 3, fourth par., inserted by St. 1989, c. 106, § 1, exempts sober homes...

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