Zoning - Disability discrimination - Fair Housing Act - ADA.

Byline: Mass. Lawyers Weekly Staff

Where a plaintiff claims unlawful discrimination by the city of Fall River and its building inspector/commissioner in violation of the state Zoning Act, the federal Fair Housing Act and the ADA, the plaintiff's motions for summary judgment are denied insofar as the plaintiff failed to establish each of the essential elements of the claims on which it will bear the burden of proof at trial, but the defendants' cross-motion for summary judgment is granted in part on the claims alleging failure to provide reasonable accommodation.

"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).

"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.

"The City's zoning ordinance requires a special permit for group residences with more than five persons (other than the two excepted categories of related persons and religious groups).

"Count 1 is brought under Section 3 of the Massachusetts Zoning Act. That statute provides in relevant part as follows: '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. The provisions of this paragraph shall apply to every city or...