CROSSING OVER, INC., & others [Note 1] vs. CITY OF FITCHBURG & others. [Note 2]

SULLIVAN, J. 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

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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. [Note 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 home [Note 4] 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

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requirements enacted, seriatim, in response to various tragedies. [Note 5] "[F]ollowing a fire in a luxury high rise hotel that killed nine firefighters," MacLaurin v. Holyoke, 475 Mass. 231, 245 n.33 (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. "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), https://www.bostonglobe.com/metro/2014/07/03/three-decades-later-beverly-rooming-house-fire-that-killed-leaves-legacy-loss-and-reform/PljEbDRo6WmiAs5L84MRNP/story.html [https://perma.cc/VXQ7-R5NF].

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

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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 (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

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definition of handicap "drug addiction [other than addiction caused by current, illegal use of a controlled substance] and alcoholism"). [Note 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). [Note 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 that

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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. [Note 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 (2006), quoting Massachusetts Inst. of Tech. v. Department of Pub. Utils., 425 Mass. 856, 867-868 (1997). "We review questions of statutory interpretation de novo." Worcester v. College Hill Props., LLC, 465 Mass. 134, 138 (2013). [Note 9] See DiLiddo v. Oxford St. Realty, Inc., 450 Mass. 66, 73-74 (2007).

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

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sober homes from compliance with the sprinkler law, because the sprinkler law, G. L. c. 148, § 26H, is a "health and safety law[]" imposed on a "congregate living arrangement[] among non-related persons with disabilities that [is] not imposed on families and groups of similar size." As a result, Crossing Over maintains, application of the sprinkler law to a sober home is unlawful because similar requirements are not imposed on a single family of the same size. See G. L. c. 40A, § 3.

This argument fails to recognize the critical distinction codified in G. L. c. 40A, § 3, between State statutes and local laws. [Note 10] "A fundamental principle of statutory interpretation is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." City Elec. Supply Co. v. Arch Ins. Co., 481 Mass. 784, 791 (2019), quoting Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749 (2006). "The statutory language, when clear and unambiguous, must be given its ordinary meaning." DiLiddo, 450 Mass. at 73, quoting Bronstein v. Prudential Ins. Co., 390 Mass. 701, 704 (1984).

The plain reading of G. L. c. 40A, § 3, fourth par., is that the provision applies to "local land use and health and safety laws, regulations, practices, ordinances, by-laws and decisions of a city or town" (emphasis added). To interpret the terms "local" and "of a city or town," to proscribe the enforcement of State health and safety laws such as G. L. c. 148, § 26H, is contrary to the plain meaning of the statute and would render the highlighted terms "unnecessary surplusage." City Elec. Supply Co., 481 Mass. at 790. [Note 11] Moreover, the Legislature gave c. 40A the title "The Zoning Act." G. L. c. 40A, § 1. The title offers "useful guidance"

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and "reinforc[es]" our view of the Legislature's intent. Tyler v. Michaels Stores, Inc., 464 Mass. 492, 496 (2013).

Our interpretation is consistent with the purpose of G. L. c. 40A, § 3, which limits the authority of cities and towns to adopt certain local laws. Chapter 40A, § 3, was originally enacted to prevent municipalities from restricting educational and religious uses of land, see St. 1975, c. 808, § 3, but the Legislature has expanded G. L. c. 40A, § 3, over time to ensure that other land uses would be free from local interference. See, e.g., St. 1983, c. 91 (wheelchair ramps exempted from zoning set-back requirements); St. 1985, c. 637, § 2 (limiting local authority to regulate solar energy systems); St. 1987, c. 191 (limiting local authority to regulate home child care facilities). The prohibition of discrimination against disabled persons contained in G. L. c. 40A, § 3, fourth par., works in the same manner: it prevents cities and towns from enacting "local land use and health and safety laws, regulations, practices, ordinances, [or] by-laws" that would exclude people with disabilities from "congregate living arrangements." General Laws c. 40A restricts municipalities from excluding or limiting certain types of land uses. General Laws c. 40A, § 3, fourth par., does not apply to the General Laws of the Commonwealth.

2. Other congregate living arrangements. Crossing Over notes that G. L. c. 148, § 26H, carves out from the obligation to install sprinklers "fraternity houses or dormitories, rest homes or group residences licensed or regulated by agencies of the commonwealth," and suggests that the carve-out means that the Legislature either intended to relieve group homes and lodging houses of the obligation to install sprinklers, or that different treatment should be afforded group homes. Lodging houses for the disabled, Crossing Over argues, should be treated in the same manner. The premise is incorrect. The distinction drawn between the lodging houses and other congregate living arrangements in G. L. c. 148, § 26H, preserves the regulatory authority granted to State agencies and municipalities over licensed group homes, dormitories, or fraternities, but does not generally exempt them from fire safety regulation.

The relevant language encompasses "rest homes or group residences licensed or regulated by agencies of the commonwealth" (emphasis added). G. L. c. 148, § 26H. "Rest homes" are licensed by the Department of Public Health. See G. L. c. 111, § 71. Group mental health residences, for example, are licensed by the Department

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of Mental Health. See G. L. c. 19, § 19. As of this writing, both rest homes and group mental health residences are subject to fire safety standards that are either set by statute, see G. L. c. 111, § 71, tenth par. (rest homes), or by regulation. See 104 Code Mass. Regs. § 28.13(1)(i)-(j) (2017) (group mental health residences); 104 Code Mass. Regs. § 28.14 (2017) (same). Moreover, various types of residences, including those listed in G. L. c. 148, § 26H, are subject to the comprehensive State fire code, which contains varying sprinkler requirements depending on the nature, size, and age of the building. See 527 Code Mass. Regs. § 1.04 (2018) (adopting by reference National Fire Protection Association [NFPA] 1 Code [2015 ed.]); 527 Code Mass. Regs. § 1.05 (2018) (modifying NFPA 1 Code [2015 ed.]); NFPA 1 Code (2015 ed.). [Note 12]

Sober homes, however, are not licensed by the Commonwealth. Instead they are subject to a voluntary State accreditation and training program, G. L. c. 17, § 18A, inserted by St. 2014, c. 165, § 37; accreditation is required if the sober home is to receive referrals from State agencies. G. L. c. 17, § 18A (h). Contrast G. L. c. 111, § 73 (providing fines for operation of rest home without license). General Laws c. 148, 26H, thus has the effect of extending the sprinkler statute to lodging houses that are sober homes; other statutes and regulations extend varying levels of fire safety standards to other congregate living arrangements. Whether the specific manner in which § 26H does so is permissible, or whether it violates State or Federal antidiscrimination statutes when applied to sober homes, is a separate question to be considered on remand.

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3. The Fair Housing Amendments Act and G. L. c. 140, § 3, fourth par. Congress passed the Federal Fair Housing Amendments Act of 1988 (FHAA) to, among other things, expand the list of protected classes to include those with physical and mental disabilities. See 42 U.S.C. §§ 3601 et seq., as added Sept. 13, 1988, Pub. L. No. 100-430, 102 Stat. 1627. See also 42 U.S.C. § 3604(f)(1) (rendering it unlawful "[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap"). [Note 13] See generally Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995). Crossing Over points to the following language found in the legislative history of the disability discrimination provisions of the FHAA to show that G. L. c. 40A, § 3, is "clearly derived from the legislative history of the Fair Housing Act."

"These new subsections [§ 804(f)(1), (2) of the FHAA, 42 U.S.C. § 3604(f)(1), (2)] would also apply to state or local land use and health and safety laws, regulations, practices and decisions which discriminate against individuals with handicaps. While state and local governments have authority to protect safety and health, and to regulate use of land, that authority has sometimes been used to restrict the ability of individuals with handicaps to live in communities. This has been accomplished by such means as the enactment or imposition of health, safety or land-use requirements on congregate living arrangements among non-related persons with disabilities. Since these requirements are not imposed on families and groups of similar size of other unrelated people, these requirements have the effect of discriminating against persons with disabilities.

The Committee intends that the prohibitions against discrimination against those with handicaps apply to zoning decisions and practices. The Act is intended to prohibit the

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application of special requirements through land-use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community."

(Footnotes omitted; emphasis added.) H.R. Rep. No. 100-711, 100th Cong. 2d Sess. at 24 (1988). Crossing Over contends that this legislative history is fully incorporated in G. L. c. 40A, § 3, fourth par., and that § 3 therefore confers a per se blanket prohibition against the enforcement of the sprinkler law by a municipality against group homes or lodging houses for disabled persons in situations in which a single family residence would not be similarly regulated. Thus, Crossing Over asserts, sober homes are permitted to operate without sprinklers "as a matter of right."

Putting aside the usual rule that we do not look to extrinsic sources when a statute is clear and unambiguous, see Commonwealth v. Buono, 484 Mass. 351, 356 (2020), the legislative history upon which Crossing Over relies reinforces our view that G. L. c. 40A, § 3, fourth par., does not apply to State laws. The Federal legislative history cited by Crossing Over makes an explicit reference to State laws: "These new subsections would also apply to state or local land use and health and safety laws, regulations, practices or decisions which discriminate against individuals with handicaps" (emphasis added). H.R. Rep. No. 110-711, at 24. There is no reference to State laws in G. L. c. 40A, § 3, a zoning statute that concerns municipal land use regulation. We understand this omission to reflect a legislative decision not to include State laws in the prohibitions of G. L. c. 40A, § 3, fourth par. "[E]xpress mention of one matter excludes by implication other similar matters not mentioned." Selectmen of Hatfield v. Garvey, 362 Mass. 821, 824 (1973). For this reason, § 3 does not provide the plaintiffs relief as a matter of right. [Note 14]

This is not to say, however, that sober homes are not protected by State or Federal disability discrimination laws, or that decisions

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of State and local officials are not subject to review under State or Federal antidiscrimination laws. See Summers v. Fitchburg, 940 F.3d 133, 138 (1st Cir. 2019) (FHAA applies to municipalities). The quoted section of the Congressional report was one of several examples intended to explain the reach of § 804(f)(1) and (2) of the FHAA, 42 U.S.C. § 3604(f)(1) and (2), the provisions of the FHAA that bar disability discrimination in the "terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith." 42 U.S.C. § 3604(b). The FHAA defines disability discrimination to include, among other things, the "refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B).

The Federal courts have consistently interpreted 42 U.S.C. § 3604 (f)(1),(2), and 3(B) to authorize causes of action under disparate impact, disparate treatment, and reasonable accommodation theories against municipalities in cases alleging housing discrimination on the basis of disability. [Note 15] Several Federal cases involve State or municipal regulation of sober homes or the application of sprinkler requirements to sober homes. [Note 16] Our appellate

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courts have also recognized these causes of action, though we have yet to squarely address claims of housing discrimination against State or municipal governments under G. L. c. 151B. [Note 17] See, e.g., Burbank Apartments Tenant Ass'n v. Kargman,

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474 Mass. 107, 121-126 (2016) (recognizing disparate impact claim under FHAA and rejecting per se rule precluding liability where developers acted in accordance with State law); [Note 18] Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833, 838-839 (2009) (reasonable accommodation); Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 307-309 (2005) (reasonable accommodation). See also DiLiddo, 450 Mass. at 76-79 (enforcing requirement of subsidy provisions of G. L. c. 151B, § 4 [10]). On remand Crossing Over may pursue its claims of disparate impact, disparate treatment, denial of reasonable accommodation, or other discriminatory conduct on the basis of disability. These claims require factual development and legal analysis, and have yet to be heard in the Superior Court.

Conclusion. The judgment entered pursuant to Mass. R. Civ. P. 54 (b), dismissing counts I and II of the complaint, is affirmed. The matter is remanded for further proceedings on counts III and IV.

So ordered.