Donohue et al v. City of Methuen, Massachusetts et al
District Judge Leo T. Sorokin: ORDER entered re: 14 Motion for Preliminary Injunction. For the foregoing reasons, the plaintiffs have demonstrated a likelihood of success on the merits and a likelihood of irreparable harm if the injunction is wit hheld. They have also demonstrated that the balance of hardships and the public interest favors the issuance of an injunction. Accordingly, the Court preliminarily ENJOINS the defendants from taking further actions to enforce health or safety laws, i ncluding the state Building Code, against the property at 10 Quincy Street, Methuen, in a way that would not apply to a single-family home with the same number of occupants.The parties shall file a joint status report stating each partys proposal for the schedule for the remainder of this litigation by December 7, 2018. (Garvin, Brendan)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DANIELLE DONOHUE and
CITY OF METHUEN and
JOHN P. GIBNEY,
Civil Action No. 18-10713-LTS
ORDER ON MOTION FOR PRELIMINARY INJUNCTION
November 21, 2018
On August 16, 2018, plaintiffs Danielle Donohue and Lincolnshouse, LLC
(“Lincolnshouse”) moved for a preliminary injunction against defendants City of Methuen (“the
City”) and John. P. Gibney. Doc. No. 14. The defendants opposed, Doc. No. 21, to which the
plaintiffs replied, Doc. No. 23.
In October 2017, Donahue purchased the property at 10 Quincy Street in Methuen. Doc.
No. 5 ¶ 7. In December 2017, Lincolnshouse began operating a sober house at the property. Id.
¶ 8. Shortly thereafter, the City began receiving complaints from the property’s neighbors about
its use as a sober house. Id. ¶ 10. After inspecting the property, on February 21, 2018, city
officials sent Donohue a letter ordering her to cease and desist the operation of the sober house.
Doc. No. 5-1. The letter alleged that the sober house was in violation of the local zoning
ordinance, the state Building Code, and the state Sanitary Code because it lacked fire and smoke
protection features and means of egress sufficient for the number of people occupying the
Lincolnshouse responded to the letter on February 22, stating its position that
Massachusetts law requires that the sober house, because it is a “group of disabled individuals
living together,” must “be treated the same as a single-family for purposes of code, zoning, and
fire safety laws.” Doc. No. 5-2 at 1. On March 23, the City sent Donohue another letter
informing her that it would evaluate her claims only if she applied for a building permit and that
fines of $300 per day would otherwise begin to accrue on March 26. Doc. No. 5-3.
Lincolnshouse timely appealed the second letter to the Building Code Appeals Board
(“the BCAB”), a state agency that hears appeals from Building Code enforcement decisions,
which held a hearing on May 3, 2018. Doc. No. 16 ¶ 14; see Mass. Gen. Laws ch. 143, § 100. On
July 18, the BCAB issued a decision upholding the City’s letter. 1 Doc. No. 16-5. The plaintiffs
appealed that decision into state court on August 20, 2018. Doc. No. 23 at 5.
On April 13, 2018, the plaintiffs brought this suit. Doc. No. 1. Their Amended
Complaint, which states several state law claims and a claim under the federal Fair Housing Act,
42 U.S.C. § 3601 et seq., seeks damages and an injunction against the defendants. Doc. No. 5 at
7–10. The plaintiffs also moved for a preliminary injunction to prevent the defendants from
“taking any action against [plaintiffs’] property . . . that is inconsistent with code, safety or
zoning requirements that would be imposed upon a single-family occupancy with the same
The BCAB decision reports that “testimony described” the property as a “large single-family
home that once housed 34 nuns.” Doc. No. 16-5 at 3. At the November 19, 2018, hearing on this
motion, the Methuen City Solicitor represented that he had no idea whether nuns had previously
used the house. Although the Court need not resolve the property’s prior use, as it is irrelevant to
the questions currently before the Court, the Court notes that a simple Google search for the
address of the property shows “Presentation of Mary Convent” at that address. See Google
(November 21, 2018, 1:52 p.m.), https://google.com/search?q=10+quincy+street+methuen+ma.
number of occupants.” Doc. No. 14 at 1–2. The parties attended a mediation conducted by a
United States Magistrate Judge from this Court in September but did not reach a settlement. Doc.
No. 31. The Court held a hearing on the motion for preliminary injunction on November 19.
“In determining whether to grant a preliminary injunction, the district court must
consider: (i) the movant’s likelihood of success on the merits of its claims; (ii) whether and to
what extent the movant will suffer irreparable harm if the injunction is withheld; (iii) the balance
of hardships as between the parties; and (iv) the effect, if any, that an injunction (or the
withholding of one) may have on the public interest.” Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9
(1st Cir. 2013). “The party seeking the preliminary injunction bears the burden of establishing
that these four factors weigh in its favor.” Esso Standard Oil Co. (P.R.) v. Monroig-Zayas, 445
F.3d 13, 18 (1st Cir. 2006).
The plaintiffs contend that the defendants’ application of the state Building Code to their
property constitutes unlawful discrimination because the City has imposed requirements on their
use of the property that it would not impose on a single-family home. Doc. No. 15 at 8. The
plaintiffs argue that such requirements violate the Massachusetts Zoning Act, Mass. Gen. Laws
ch. 40A, § 3 (“the Zoning Act”), which provides in relevant part that
[n]otwithstanding 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. The
provisions of this paragraph shall apply to every city or town, including, but not
limited to the city of Boston and the city of Cambridge.
The plaintiffs argue that this provision preempts the state Building Code insofar as its application
to the sober house as a “congregate living arrangement among non-related persons with
disabilities” differs from its application to “families and groups of similar size.” Doc. No. 15 at
8. Defendants disagree and argue that this provision of the Zoning Act “has no such universal
preclusive effect.” Doc. No. 22 at 10.
The defendants further argue that this Court may not review the plaintiffs’ claims because
it must give preclusive effect to the earlier BCAB decision. Id. at 7. Federal courts consider the
preclusive effect of state court judgment using the preclusion principles of that state. Goldstein v.
Galvin, 719 F.3d 16, 22–23 (1st Cir. 2013). “Under Massachusetts law, ‘claim preclusion makes
a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all
matters that were or could have been adjudicated in the action.’” Id. at 22–23 (quoting Kobrin v.
Bd. of Regist. in Med., 832 N.E.2d 628, 634 (Mass. 2005)). “It is based on the idea that the party
to be precluded has had the incentive and opportunity to litigate the matter fully in the first
lawsuit.” O’Neill v. City Manager of Cambridge, 700 N.E.2d 530, 532 (Mass. 1998). Issue
preclusion, on the other hand, “prevents relitigation of an issue determined in an earlier action
where the same issue arises in a later action, based on a different claim, between the same parties
or their privies.” Kobrin, 832 N.E.2d at 634. It “can be used only to prevent relitigation of issues
actually litigated in the prior action.” Id.
Neither claim preclusion nor issue preclusion prevents the plaintiffs from bringing their
claims to this Court. Under Massachusetts law claim preclusion bars only claims that “could
have been” litigated in the prior proceeding—here, the adjudicatory hearing before the BCAB.
The Commonwealth established the BCAB to hear appeals regarding “the administration or
enforcement of the state building code.” Mass. Gen. Laws ch. 143, § 100. The Commonwealth
did not vest BCAB with authority to apply the Zoning Act or to resolve civil rights claims or
federal claims. Id. The Massachusetts Appeals Court has determined that BCAB’s “jurisdiction
is limited to issues involving the administration and enforcement of the State building code.” Bd.
of Appeals of Rockport v. DeCarolis, 588 N.E.2d 1378, 1382 (Mass. App. Ct. 1992). The BCAB
itself is well aware of the limits of its jurisdiction. In its decision on the plaintiffs’ appeal, the
BCAB stated that it did “not have the authority to apply G. L. c. 40A, ‘The Zoning Act,’ to
requirements set forth in” the Building Code. Doc. No. 16-5 at 8–9. That the BCAB, after
disclaiming jurisdiction to resolve the Zoning Act issues, proceeded to do just that provides no
basis to bar any of the plaintiffs’ claim under the doctrine of claim preclusion. Notably, the
defendants cite no case or other basis for the propositions that claim preclusion may bar claims
that could not have been brought or that the BCAB could have heard these claims.
Similarly, the extrajurisdictional dicta in the BCAB decision does not give rise to issue
preclusion on the questions of whether the Zoning Act preempts the City’s application of the
state Building Code to the defendants’ property, whether defendants’ actions constitute
discrimination within the meaning of the Zoning Act, or whether the defendants violated the
Federal Fair Housing Act. None of these determinations, even if commented upon by the BCAB,
were “essential” to the BCAB’s final judgment, for the reasons already stated, which is a
requirement for the application of issue preclusion under Massachusetts law. Kobrin, 832 N.E.2d
On the merits of the plaintiffs’ Zoning Act claim, they argue that the statutory language
“notwithstanding any general or special law to the contrary” clearly reaches state statutes and
requires the city to treat their sober house as it would treat a single-family home of the same size.
Doc. No. 15 at 7. The defendants argue that the statute merely “provides a number of restrictions
on local zoning regulations” and does not reach the state Building Code. Doc. No. 22 at 10.
Indeed, as its title suggests, much of the Zoning Act focuses on zoning, a traditionally local
The defendants’ interpretation of the Zoning Act is incorrect. “A fundamental tenet of
statutory interpretation is that statutory language should be given effect consistent with its plain
meaning and in light of the aim of the Legislature unless to do so would achieve an illogical
result.” Sullivan v. Town of Brookline, 758 N.E.2d 110, 115 (Mass. 2001). “[P]lain words in the
text of a statute are not to be cut down by its title.” Attorney Gen. v. Goldberg, 112 N.E.2d 926,
926–27 (Mass. 1953). “The words, ‘Notwithstanding the provisions of any general or special law
to the contrary,’ announce that an indefinite number of unidentified statutory provisions, if
inconsistent, are repealed to the extent necessary to make . . . effective” the statute within which
the phrase appears. Mathewson v. Contributory Ret. Appeal Bd., 141 N.E.2d 522, 525 (Mass.
1957). The Zoning Act’s use of that well-known phrase therefore establishes its effect on other
state statutes regulating health and safety. Moreover, the law’s use of the phrase “any general or
special law” could not refer only to local ordinances and bylaws, which, unlike Massachusetts
state statutes, are not referred to in those terms. Finally, because this provision of the Zoning Act
“is a civil rights statute, we are required to construe its terms broadly.” Thurdin v. SEI Boston,
LLC, 895 N.E.2d 446, 458 (Mass. 2008). This provision of the Zoning Act serves to expand
available housing for persons with disabilities by ensuring that they receive the same treatment
as single families.
While the parties have cited no Supreme Judicial Court decisions 2 resolving the
application of this Zoning Act provision to state health and safety laws, and the Court has found
none, two other sessions of this Court have considered this question. Each determined that the
Zoning Act barred the application of a state health and safety law to the extent the law applied to
congregate living arrangements of non-related disabled persons differently than to single family
residences with the same number of occupants. Brockton Fire Dep’t v. St. Mary Broad St., LLC,
181 F. Supp. 3d 155, 157 (D. Mass. 2016) (holding that Chapter 40A “unequivocally prohibits
the facially disparate imposition of the Sprinkler Law on a group residence sheltering disabled
individuals”); Summers v. City of Fitchburg, No. 15-CV-13358-DJC, 2016 WL 4926415, at *7
(D. Mass. Sept. 15, 2016) (concurring).
This Court concurs with these two decisions and determines that the plain language of the
Zoning Act bars the application of the State Building Code to the plaintiffs. Like the Sprinkler
Law at issue in the cited cases, the state Building Code is, on its face, a “health and safety law”
within the meaning of Mass. Gen. Laws ch. 40A, § 3. See Trustees of Cambridge Point Condo.
Tr. v. Cambridge Point, LLC, 88 N.E.3d 1142, 1152 (Mass. 2018) (“The purpose of the building
code ‘is to establish the minimum requirements to safeguard the public health, safety, and
general welfare.’”) (quoting 780 Code Mass. Regs. § 101.3). The defendants do not dispute this,
nor do they advance any argument that the application of Chapter 40A to the Building Code
would differ from its application to the Sprinkler Law.
The Zoning Act defines discrimination as the “[i]mposition of health and safety laws . . .
on congregate living arrangements among non-related persons with disabilities that are not
The same applies to Massachusetts Appeals Court and Superior Court decisions, to which this
Court looks for persuasive guidance.
imposed on families and groups of similar size or other unrelated persons.” Mass. Gen. Laws ch.
40A, § 3. The City takes the position that the plaintiffs must apply for a building permit and
make safety improvements to their property, although a single family with the same number of
occupants would be able to occupy the property without doing so. This requirement, on its face,
violates the Zoning Act. Plaintiffs have therefore demonstrated a likelihood of success on the
merits. Given this determination, the Court need not address the Fair Housing Act claim at this
stage of the proceedings.
Without a preliminary injunction, the plaintiffs face the risk that they could be forced to
vacate the property or face significant financial penalties imposed by the City. Homelessness is a
possibility for some of the property’s residents if forced to vacate, presenting the possibility of
irreparable harm. The City does not argue that allowing the plaintiffs’ current use of their
property creates a hardship for the City, instead focusing on the hardship to the plaintiffs created
by the property’s lack of safety features. Although the public interest in ensuring the physical
safety of the City’s residents is significant, there is also significant public interest in providing
housing to people with disabilities and treatment for individuals suffering from drug addiction. 3
By determining that unrelated disabled persons are entitled to the benefit of the same rules
applicable to families, the Commonwealth has decidedly tipped this weighing in the plaintiffs’
For the foregoing reasons, the plaintiffs have demonstrated a likelihood of success on the
merits and a likelihood of irreparable harm if the injunction is withheld. They have also
demonstrated that the balance of hardships and the public interest favors the issuance of an
The Court notes that residents of the home are required to submit to random drug tests, which
itself helps many addicts remain sober.
injunction. Accordingly, the Court preliminarily ENJOINS the defendants from taking further
actions to enforce health or safety laws, including the state Building Code, against the property at
10 Quincy Street, Methuen, in a way that would not apply to a single-family home with the same
number of occupants.
The parties shall file a joint status report stating each party’s proposal for the schedule for
the remainder of this litigation by December 7, 2018.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge
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