United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR
PARTIAL SUMMARY JUDGMENT, DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT, AND PLAINTIFF'S MOTION TO STRIKE
DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE
a disability-discrimination case arising out of a failed
attempt to open a sober recovery home in Fall River,
Massachusetts. Plaintiff Mannai Home, LLC, sought to purchase
and convert a three-unit building to create such a home. The
complaint alleges that defendants the City of Fall River and
Joseph Biszko, the city's building
inspector/commissioner, prevented Mannai Home from doing so,
thereby unlawfully discriminating against the disabled in
violation of federal and state laws.
complaint asserts claims under the Massachusetts Zoning Act,
Mass. Gen. Laws ch. 40A, § 3 (Count 1); the Fair Housing
Act, 42 U.S.C. § 3604 (Count 2); and the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq.
(Count 3). In essence, Mannai Homes contends that the City
refused to grant it permission to open a sober recovery home.
It is undisputed that Mannai Home never actually applied for
a building permit or a special permit under the zoning laws,
and the City never formally refused permission.
parties have filed cross-motions for summary judgment. Mannai
Home has also filed a motion to strike portions of
defendants' statement of facts. For the following
reasons, plaintiff's motion to strike will be denied,
plaintiff's motion for summary judgment will be denied,
and defendants' motion for summary judgment will be
denied in part and granted in part.
where otherwise noted, the following facts are set forth in
the record and are undisputed.
Home, LLC, is a limited liability company with an office in
Quincy, Massachusetts. (Burke Aff. ¶ 2). Ryan Burke is
the manager of Mannai Home. (Id.).
2017, Mannai Home intended to purchase and renovate a
three-unit property located at 91-93 Barnaby Street in the
City of Fall River (“the property”) for the
purpose of establishing a sober recovery home. (Burke Aff.
¶ 4; Burke Dep. at 23; Howayeck Aff. Ex. 6 at No. 4).
Mannai Home intended to accommodate 20 to 22 individuals at
the property. (Burke Dep. at 23).
City of Fall River is a Massachusetts municipality. (Tine
Aff. Ex. E at ¶ 2). The City is currently home to
multiple group residences, including sober homes and
residences for the disabled. (Hathaway Aff. ¶
In 2017, Joseph Biszko was the City's Building
Inspector/Commissioner. (Biszko Dep. at 8-9; Tine Aff. Ex. E
at ¶ 3).
11, 2017, Mannai Home's legal counsel, Andrew Tine, sent
a letter to Biszko with the following subject line:
Re: 91-93 Barnaby Street, Fall River, MA RELIEF UNDER M.G.L.
c. 40A, SECTION 3 and REQUEST FOR REASONABLE ACCOMMODATION
UNDER THE FAIR HOUSING ACT
(Burke Aff. ¶ 5; Howayeck Aff. Ex. 3). Tine's
letter, and the attached memorandum, stated that Mannai
Home's intention was to renovate the property and
establish a sober recovery home. Although styled as a request
for reasonable accommodation, it effectively requested that
the City allow the intended use as a matter of right. (Burke
Dep. at 23; Howayeck Aff. Ex. 3; Burke Aff. ¶¶
The letter stated in part:
As stated in the memorandum the purpose of providing this
notice and information is to ensure that the City of Fall
River is aware of the intended occupancy by disabled
individuals entitled to protection under State and Federal
law and to ensure equal treatment and access to housing. In
the event your Department would find the intended use in
violation of any local or state building, sanitary or zoning
laws, I would like to address your concerns upfront to avoid
any impact to Mannai Home, LLC's use and the intended
occupants['] enjoyment of the Property.
To be clear, it is my understanding that State and Federal
law do not allow a municipality to impose any special
requirements to exclude disabled individuals from housing
opportunities, thus no special permit or variance is required
with respect to the intended use and occupancy of the
Property, however, should your Department disagree, I would
like to address your concerns promptly.
(Howayeck Aff. Ex. 3).
attached memorandum provided further explanation of the legal
basis for Mannai Home's position:
The purpose of this memorandum is to open a dialogue
concerning the applicability of Mass. Gen. L. c. 40A, Section
3 with respect to what is commonly referred to as "sober
housing," so that interested parties may amicably work
under the intent of the statute to facilitate equal access to
housing for persons in recovery from substance abuse. M.G.L.
c. 40A, Section 3, as interpreted by case law, provides that
persons in recovery from substance abuse may be qualified as
disabled. It further provides that groups of disabled
individuals may live together in the same numbers allowable
at a property if occupied by a single family (or groups of
similar size). In short, unrelated disabled individuals
living together are to be treated the same as related
individuals living as a family. The intent of the law is to
remove any barriers for housing opportunities for disabled
individuals that may be created by ordinances, zoning laws or
decisions of municipalities. For example, limits on the
number of unrelated people that may live together.
received the letter, but did not formally respond. Instead,
he referred it to the City's corporation counsel, Joseph
Macy, for an opinion. (Biszko Dep. at 14, 16-17; Tine Aff.
Ex. C at ¶ 1; Ex. E at ¶ 7). Tine called and
e-mailed Macy to discuss the letter, but did not receive a
response. (Tine Aff. Ex. E at ¶ 9).
13, 2017, Biszko received a response from Macy. (Biszko Dep.
at 17; Howayeck Aff. Ex. 5). Macy wrote that his office does
not render opinions to private individuals or organizations,
but referred Biszko to a prior opinion letter on the subject
of group residences, and stated that “the issue is
properly before the Zoning Board of Appeals.” (Howayeck
Aff. Ex. 5).
same day, Mannai Home entered into the purchase-and-sale
agreement for the property. (Burke Aff. Ex. A). The agreement
included the following “No Penalty Provision”:
Sale is contingent upon there being no adverse action,
refusal or opinion from the City of Fall River stating that
the property may not be used for congregate housing for
disabled individuals as present zoned and permitted
(“Adverse Notice”). The buyer intends on
notifying the City of Fall River on his intended use of the
property after the offer to purchase has been signed by all
parties. Buyer may withdraw from this purchase without
penalty if Adverse Notice is received prior to closing . . .
(Burke Aff. Ex. A at ¶ 23).
25, 2017, Tine called Biszko and spoke with him about the
property. (Biszko Dep. at 12-14; Howayeck Aff. Ex. 6 at No.
5). Biszko testified that he told Tine during that call that
a sober house could not be operated on the property because
it would be considered a group residence. (Biszko Dep. at
12-14). He further testified that he believes he would have
told Tine to file an appeal with the ZBA at that point, but
does not recall whether he did, in fact, do so. (Biszko Dep.
the call, Tine e-mailed Macy. (Howayeck Aff. Ex. 7; Tine Aff.
¶ 2 & Ex. A). The e-mail stated:
I spoke with Director Biszko of ISD who indicated my letter
had been referred to City counsel. Attached is a copy of my
letter with the referenced memorandum. I wanted to reach out
to see if the City had any policy or protocol in place with
respect to sober housing for disabled individuals, as my
client intends on purchasing the referenced property which is
in disrepair and making a significant investment to bring it
up to code and habitability standards to provide the subject
housing. I can be reached at [###-###-####]. I look forward
to speaking with you.
(Biszko Dep. at 17-18; Howayeck Aff. Ex. 7; Tine Aff. ¶
2 & Ex. A).
31, 2017, Burke went in person to inquire about the zoning
for the property and spoke with Biszko. (Burke Aff. ¶
6). According to Burke, Biszko told him during that meeting
that the City already had problems with sober homes, and that
the project was “never going to happen.”
that day, Burke e-mailed Biszko. (Tine Aff. Ex. E at ¶
11; Burke Aff. ¶ 7). Burke wrote that he had signed a
purchase-and-sale agreement for the property and asked Biszko
to confirm that the sober home would not be allowed, so that
Burke could share that information with the seller.
(Id.). Biszko received Burke's e-mail, but never
responded. (Tine Aff. Ex. E at ¶ 12). Biszko says he
does not recall any conversations with Burke, or ever meeting
him prior to this litigation; however, he was also unable to
state definitely that such a meeting did not occur. (Biszko
Dep. at 10-12).
August 2, 2017, Mannai Home invoked the “No Penalty
Provision” to opt out of the purchase-and-sale
agreement. (Burke Dep. at 32).
Home never applied for a building permit for the sober home,
sought a special permit for a group residence, or filed an
appeal with the ZBA. (Hathaway Aff. ¶¶ 8-9; Burke
Dep. at 41-42, 46).
October 5, 2017, Mannai Home filed the present action against
the City and Biszko. The complaint asserts claims of
disability discrimination under the Zoning Act, Mass. Gen.
Laws ch. 40A, § 3 (Count 1); discrimination under the
Fair Housing Act, 42 U.S.C. § 3604 (Count 2); and
discrimination under the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq. (Count 3) for
intentional discrimination and failure to grant reasonable
parties have filed cross-motions for summary judgment. Mannai
Home has moved for summary judgment as to Counts 1 and 2.
Defendants have moved for summary judgment on all counts.
Mannai Home has also moved to strike portions of
defendants' statement of material facts, to the extent it
relies on the affidavit of Glenn Hathaway.
Standard of Review
role of summary judgment is to “pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Mesnick v. Gen. Elec.
Co., 950 F.2d 816, 822 (1st Cir. 1991) (internal
quotation marks omitted). Summary judgment is appropriate
when the moving party shows that “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“Essentially, Rule 56 mandates the entry of summary
judgment ‘against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.'” Coll v. PB
Diagnostic Sys., 50 F.3d 1115, 1121 (1st Cir. 1995)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)). In making that determination, the court must view
“the record in the light most favorable to the
nonmovant, drawing reasonable inferences in his favor.”
Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.
2009). When “a properly supported motion for summary
judgment is made, the adverse party must set forth specific
facts showing ...