MISC 129340

September 20, 1989

Norfolk, ss.



The Plaintiffs herein are residents of Redcoat Lane in a development known as Millbrook Estates in the Town of Plainville ("Town"). The Plaintiffs seek to prevent the Defendants, Autism Resources, Inc. ("AUTISM") and Amego Inc. ("AMEGO"), from using certain property on Redcoat Lane for what the Plaintiffs allege is other than residential purposes.

This matter was tried on January 17 and 19, and February 15, 1989. The Court in the presence of counsel viewed the premises on January 25, 1989. Eleven witnesses testified and twenty-two exhibits were admitted into evidence, all of such exhibits are incorporated herein for purposes of any possible appeal.

The parties have filed a stipulation of facts. Those which I find pertinent are as follows:

1. All Plaintiffs are owners of single family residential lots within the Millbrook Estates subdivision of the Town of Plainville. All lots are registered with this Court, each Plaintiff holding a Certificate of Title.

2. On or about September 16, 1988, the Defendant, Autism Resources, Inc., acquired a lot with a single-family residence at 22 Redcoat Lane ("Locus" or "Home") in said subdivision.

3. Prior to their acquisition by any of the parties in interest hereto, these lots had been burdened by a duly registered "Scheme of Common Restriction".

4. The Defendant, Amego Inc., contracted with the Defendant, Department of Mental Retardation ("DMR"), to provide for a four level staffed apartment at said 22 Redcoat Lane. The contract is numbered 24709470330, but appears to have expired on June 30, 1989.

5. As of January 17, 1989, no occupancy permit had been issued by the Town nor were any clients of the Defendants' residing at 22 Redcoat Lane.

6. The Defendants intend to operate a group residence at 22 Redcoat Lane, however, none of the Defendants nor their employees intend to occupy or live at said site.

In consideration of the evidence before the Court, in addition to the foregoing, I find that:

7. The specific restriction at issue provides that:

No lot shall be used except for residential purposes. . . .

8. At Locus, the Defendant AMEGO proposes to operate a limited group residence or community residence for up to six autistic and mentally retarded adult males. G.L. c. 123, ยง l defines a mentally retarded person as:

a person who, as a result of inadequately developed or impaired intelligence . . . is substantially limited in his ability to learn or adapt, as judged by established standards available for the evaluation of a person's ability to function in the community.

Autism is a syndrome or development disorder of an anatomical and neurological nature. About 40-50% of all autistic persons have a secondary diagnosis of severe to profound mental retardation. The persons whom AMEGO proposes as residents of the Home will be between 22-35 years old, functioning at the level of a 3-4 year old. While their I.Q.'s cannot be increased, they can learn new skills. These residents will probably not be capable of self preservation nor is it likely that they will be able to understand and participate in fire drills, or be able to contact hospitals, police or other agencies in the event of an emergency.

9. It is proposed that the residents will live communally much like a family. They will prepare and eat meals together, do household chores together and engage in some social activities with each other and with each other's families. In the mornings, they will be transported to Quincy for their day program. Such program will include speech and language therapy, vocational therapy, functional training in daily experiences and adaptive physical education. They will return home in the late afternoon. It is expected that at least some of the residents will eventually find outside employment.

10. As proposed, Locus will be the home of each resident for an indefinite period of time, with a minimum of five years and, thereafter, until the resident is able to move to a more independent and less restricted living situation.

11. AMEGO will staff the Home with two to four persons depending on the time of day and the scheduled activity. Staff persons will not live at the house nor will the office of AMEGO or AUTISM be located there. Services provided residents by the staff will be directed at necessary care and training and assisting the residents in everyday life functions. No services will be offered to anyone other than the residents.

12. AMEGO will rent Locus from AUTISM. Each resident will pay AMEGO up to 75% of his Supplemental Security Income, or other public support, to cover rent and utilities. The cost of the day program is paid by DMR. If handicapped persons, such as the proposed residents, are unable to live at Locus or a similar home, or even if they progress to a less restrictive situation, they will most likely continue to require services from DMR or a similar agency.

The issue in this case is quite simply, whether or not Locus is being used for other than residential purposes. I find and rule that it is not.

The use proposed for Locus is a residential use for persons who require a level and amount of care well above that which is usually considered "normal". While such care is intensive and may even on the surface seem excessive, an examination of the facts and the actual situation clearly demonstrates such care to be reasonable and necessary. It is doubtful that the Plaintiffs would complain of a neighbor so unfortunate as to require 24 hour medical attendance, nor one so fortunate as to be able to afford the services of a housekeeper or groundskeeper.

In this instance, I find the primary use of Locus to be residential and that such services as the Defendant will provide are necessary and co-incidental to such use by the proposed residents.

As Justice Kass recently commented in citing J.T. Hobby & Son v. Family Homes of Walks County, Inc., 302 M.C. 64, 72-74 (1981) (group home for mentally retarded consistent with use limitation in a subdivision for "residential purposes") and Gregory v. State Dept. of Mental Health, Retardation & Hosp., 495 A. 2d 997, 1002 (R.I. 1985) (group home for six mentally retarded persons within scope of "single-family dwelling" and "residential purposes only"), ". . . the cases cited above, it should be observed, involved group homes in which the activity involved was simply residing albeit by denizens whose needs made their living dependent on a degree of supervision." Woodvale Condominium Trust v. Scheff, 27 Mass. App. Ct. 532 , 532 (1989).

The Defendants herein raised the question that the restriction, if applicable in this instance, may violate public policy. In view of the foregoing, I do not reach this issue. The Defendants have requested certain findings of fact and rulings of law which I have considered. Certain of these requests are incorporated herein. I have taken no action with respect to the remainder, as I have made my own findings and rulings as to those facts and rules of law which I deem most pertinent hereto.

Judgment accordingly.