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Mannai Home LLC v. City of Fall River

United States District Court, D. Massachusetts

February 5, 2019

MANNAI HOME, LLC, Plaintiff,
v.
CITY OF FALL RIVER and JOSEPH BISZKO, Defendants.

          MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND PLAINTIFF'S MOTION TO STRIKE

          F. DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE

         This is 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.

         The 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.

         The 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.

         I. Background

         Except where otherwise noted, the following facts are set forth in the record and are undisputed.

         A. Factual Background

         Mannai 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.).

         In 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).

         The 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. ¶ 18).[1] In 2017, Joseph Biszko was the City's Building Inspector/Commissioner. (Biszko Dep. at 8-9; Tine Aff. Ex. E at ¶ 3).

         On July 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).[2] 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. ¶¶ 4-5).

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).

         The 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.

(Id.).

         Biszko 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).

         On July 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).

         That 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).

         On July 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. at 13-14).

         After 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).

         On July 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.” (Id.).

         Later 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).

         On August 2, 2017, Mannai Home invoked the “No Penalty Provision” to opt out of the purchase-and-sale agreement. (Burke Dep. at 32).

         Mannai 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).[3]

         B. Procedural Background

         On 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 accommodation.

         The 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.

         II. Standard of Review

         The 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 ...


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