-: SJC 13639 BAC Realty, LLC, et al.
versus City of Fitchburg Board of Appeals, et al.
-: Okay, Attorney Powers, I see you're ready to go.
-: Good morning, Your Honors.
And may it please the court,
Kevin Powers for the City of Fitchburg with me today
and with me on the brief is attorney Vincent Pusateri,
Your Honors, the cardinal points
in navigating this difficult statutory language.
First, the City of Fitchburg bent over backwards
to accommodate this sober house
as it has for numerous other sober houses.
Second, the remedial purpose
of paragraph four of section three
is to prevent discrimination,
not to thwart the legitimate purposes of local zoning
in a congested city with limited parking.
Third, the only way to read paragraph four
without surplusage is to recognize
what the appeals court recognized in Crossing Over one.
The paragraph four contains multiple comparators
on the basis of a nuanced factual record
and not a per se requirement.
-: Counsel, before you go launching
into all of the roadmap stuff, do you agree,
at least, at least as I could read it, the judge's decision,
that Judge Ken Walker erred, where she added the whichever
is favorable language to the comparators?
-: Whichever is most favorable to the sober house?
Yes, yes, Your Honor.
-: Okay, so when you have these different comparators,
I know that BAK Realty is saying
that you're supplementing an "and" for an "or."
Can you tell me again,
is the court supposed to look at both comparators
or just one?
-: We believe, Your Honor, that the court should look
to the most applicable comparator.
But the phrase that are not imposed on families
and groups of similar size is essentially a logic condition.
And the test with the word "and"
is of the words "not imposed."
In other words, if the zoning condition
is imposed on families,
then the condition not imposed on families
and groups of similar size is not true.
If the condition is imposed on groups of similar size,
then the condition not imposed on families
and groups of similar size is not true.
Georges: Okay.
-: And so perhaps the test
could work either way, potentially.
-: So, I'm sorry, go ahead. -: No, go ahead.
Georges: No, please. Kafker: Go ahead.
-: So I guess one of the questions,
I know that you say that the issue in the appeals court case
where they're saying we're not trying to turn this
into a de facto situation
where they'll never be treated as families,
are you saying essentially
that sober homes can never operate
in single-family residential zoning districts?
-: Oh, no, we're not saying that at all.
What we're saying is that sober homes
can operate in those districts, number one,
if they're able to operate
as another form of permitted housing
that's allowed within that same zone
as another group of similar size.
And we're also saying, as was true here,
that in any event, under the Fair Housing Act,
they're always entitled to seek a reasonable accommodation.
And in this case, that's how everything worked out
because the city of Fitchburg recognizes profoundly
the importance of sober houses
in aiding the recovering population
and ensuring that, as many resources are available,
to help folks as possible.
Wolohojian: So that leads me to ask you,
are you looking to have the decision of the ZBA affirmed?
-: Yes, Your Honor. I believe so.
-: Okay. And may I ask you one other question?
I have a hard time understanding
what relevance the 2020 ordinances have
given that the violation, that's at the root of this case,
was issued in 2019 and therefore it could only be
the 2018 regs, ordinances that we should look at,
am I missing something there?
-: No, Your Honor.
To be absolutely frank, I included those
out of an abundance of caution
because there's a footnote in the Superior Court decision
indicating that the regs in effect
at the time of the building commissioner
and possibly the ZBA decision were not necessarily,
at least in their entirety, in front of the court.
And therefore, I thought at best,
well, might as well include in the addendum
both the regs that were in effect at that time
and the regs that were in effect
at the time of the Superior Court decision
just out of an abundance of-
-: So what are we supposed to do with the definition
of boarding house in the 2018 ordinances?
That seems may be inartfully drafted,
but it seems to say that a boarding house
is only a group of people going up to six,
you know, between three and six people.
So it wouldn't seem to apply to this situation,
which has more than six people.
-: Correct, Your Honor.
But that's where the Fair Housing Act mechanism
for Crossing Over, being able to seek
a reasonable accommodation, kicks in.
-: Okay, so I understand that piece, but does it mean,
are you still pressing the argument
that this was a boarding house under the 2018 regulations?
Powers: Yes, Your Honor.
-: How can that be when the number of people involved
is greater than the number
in the definition of a boarding house under your ordinances?
-: Correct, Your Honor.
But essentially this is,
what's a boarding house by number know?
It was not-
Wolohojian: Boarding house by spirit.
-: I would say it was a boarding house by use.
Wolohojian: Okay. -: And-
-: Why do you need to go there?
Because you told me you're looking to have
the ZBA decision affirmed,
and the ZBA decision deems this a three-family.
And so why are you going down the route of boarding house?
Because, as I said, I don't wanna repeat myself,
but you want to have the ZBA decision affirmed
and the ZBA said this is a three-family home.
-: My recollection, Your Honor, is that the ZBA agreed
under the reasonable accommodation
to treat this as if it were a three-family-
Wolohojian: Oh, I see. -: although it's not.
Kafker: Can I get you back to some basics?
Or you have follow-up question?
Wolohojian: No, that's fine.
-: Is there an error in the statutory language,
the last or that are not imposed
on families and groups of similar size.
Should that be of, of other related persons?
Or is that accurately written?
Is there a plain error in this, just to start out?
Powers: Yes, Your Honor. -: Okay.
And that tracks the federal language which uses of.
Powers: Correct, Your Honor.
-: So that's my first sort of basic question on this thing.
My second basic question.
Okay, families, I have family who have 13 kids,
one of my high school friends, so how does this work,
that a family can be a big family, right?
You can have 12 kids.
If this applies to families and groups of similar size
and a family has the right to be there,
including a big family, I'm just not sure I understand this.
How does this work?
Powers: Because here-
-: We've got 13 people living in a house,
a family can have, I mean, again,
I have a high school friend,
there were 12 kids in the house.
Does that mean you're discriminating against the sober house
because a family can be large?
-: No, Your Honor.
Family, as family is defined in the zoning ordinance,
can be larger if the family members are related
by blood, marriage, or adoption.
If the family members are not related
by blood, marriage or adoption,
they can still qualify as a family
if they're a single housekeeping unit,
but they max out at a total of four members of the family.
-: All right.
One other sort of basic, what are we talking about here?
We have sober homes,
what other types of entities are we dealing with?
A group of disabled veterans are in a house together,
they're the same, right?
Are they in the same category of
as what we're dealing with here, a sober home?
-: For purposes of a comparator?
Kafker: Yeah. -: Yes.
Other possible comparators could be potentially a convent,
a monastery, a parsonage with multiple priests living in it,
a fraternity house.
One could envision a variety of scenarios-
-: House of homeless mentally ill people
if we create such a home.
I'm just trying to get a sense
of what the statute encompasses.
-: Oh, beg your pardon.
I meant to refer to possible comparators
that could arise in a zoning ordinance
as to what the statute is contemplating-
Kafker: Any group of people gathered together
with a handicap or a disability
are what we're talking about here, right?
-: Well, what-
-: We got disabled veterans living in a home,
the city's not gonna allow that either, right?
That's gonna violate this as well?
I'm just trying to get a sense of what's encompassed here.
-: Your Honor, my understanding is that generally,
and admittedly, the definitional section within 40a
does not include a definition
of congregate living arrangement, unfortunately.
But my understanding is that generally
congregate living arrangements,
most often in Massachusetts, arise as a cluster of units
allocated by a local housing authority
or by a contractor who has built affordable housing
under contract with a local housing authority.
This is a more unusual situation where it's being created,
to the best of my knowledge,
not in conjunction with the local housing authority
or via contract therewith.
But that being said, one could envision,
if the definition applies to other circumstances,
one could envision a variety of the scenarios
that Your Honor described disabled veterans,
individuals with rather than in recovery,
individuals with long-term disabilities
or long-term mental conditions-
-: Attorney, can I just ask you to go back to the beginning
when you were giving that sort of logic thing
where the if and or not?
Can you do that again so that I can understand
what the statute's saying?
Powers: Yes, Your Honor. -: Okay.
-: The logic condition is that are not imposed
on families and groups of similar size.
And it's testing not imposed.
The condition is not imposed on families
and groups of similar size.
Therefore, if a condition is imposed on families,
then we answer the question not imposed on families
and groups of similar size, false.
It is imposed on one of those.
If the condition is imposed on groups of similar size,
then we answer the test of not imposed on families
and groups of similar size with false
because it is imposed on groups of similar size
in order for the condition to true.
In other words, in order for there
to be discrimination on the basis of disability,
that condition must be not imposed on families
and not imposed on groups of similar size.
-: That was what my initial question was,
which you answered just now differently than before.
So discrimination under the statute is a term of art,
that means that it has to be both comparators
that you look to,
not just the most appropriate comparator, right?
So if you can impose it on families
and you can also impose it in groups of other size,
by definition, it's not discrimination.
-: Correct, Your Honor.
The question is, is the condition imposed
on either of these other groups?
Georges: Right.
-: And on either of these other groups
if they take the form of,
if they have disabled individuals within them.
And so-
Georges: It wouldn't be discrimination.
-: It wouldn't be discrimination.
Georges: Right. -: On the basis
of disability, yeah.
-: Can you just go back to something
that Justice Wolohojian asked you?
Under the 2018, okay,
if they're not a single housekeeping unit,
how many per floor, under the 2018 regs, were allowed?
Is it the six max?
-: If they are not a single housekeeping unit,
then we turn to boarding house.
And under 2018, that would be at least three,
but not more than six.
So yes, Your Honor, that would be six max.
-: Okay, so under the 28 regs,
they could have had a maximum of 18
spread across the three floors.
Wolohojian: It's a three-unit building, correct?
-: Yes, Your Honor, it is a triple decker.
But as to Your Honor's point, Justice Georges,
Justice: I think counsel's trying to phone a friend,
if you wanna.
(Powers laughs)
(Pusateri speaks faintly)
-: This zone, RB Residential District B,
does not permit boarding houses.
And so therefore, and to go back to the test,
Zone RB does not permit boarding houses
with no disabled individuals
and Zoning District RB does not permit boarding houses
with disabled individuals.
The ban on boarding houses
within that particular zoning district
is applied strictly neutrally
without regard to the presence or the absence of-
-: So even though it would satisfy,
this would be permissible if it were a family
because it's not permissible for a boarding house,
you win, right?
You're interpreting these causes separately.
It's not like you have to,
one way of interpreting the statute
is if you discriminate against families in this way,
I mean, if you allow a family,
if the condition is imposed on a family,
not imposed on a family, I'm getting it backwards.
If it's not imposed on a family, then it's okay
even if it's imposed on a boarding house?
I'm trying to get a sense of is it an and or an or
when we're dealing with boarding houses and families.
Is that clear? I'm not sure that was clear.
Budd: Maybe you should let him say it again-
-: Go ahead.
Budd: Because- -: Try again.
Budd: And apply the condition that we're talking about
in this case.
Do you know what I mean?
Powers: Yes, Your Honor. -: Okay.
-: So not imposed on families and groups of similar size.
Here the question is we have here a group
of more than four individuals per dwelling unit
and that is not permitted within this zoning district.
It is-
-: For boarding houses but not families,
or do both, do both the family analysis
and the boarding house analysis for us.
-: Yes, Your Honor.
The family comparator does not apply.
-: No, you say it doesn't,
but do apply the comparator for us
and then we understand the legal analysis.
In this case, a family could do this, right?
Powers: A family could.
-: 'Cause it's a single-family zone.
Georges: It's a single housekeeping unit.
-: No, it's a triple decker,
but a family can be in this triple decker.
-: But they're related people
by adoption, blood, or something.
-: Or, or if they were unrelated
but in a single housekeeping unit of four or fewer.
Kafker: Mm-hmm.
-: Here we have neither.
Number one, we don't have a single housekeeping unit.
And number two, even if we had a single housekeeping unit
at five per floor where we're in excess
of the cap of four unrelated,
and therefore this is not a family under either definition
in the Fitchburg zoning ordinance.
Therefore, we move to the next comparator,
which is boarding houses.
This might have qualified numerically
and by use as a boarding house,
it doesn't qualify by zone.
Georges: By zone. And that's the three to six?
That's what the three to six number refers to,
is the boarding?
-: Yes. Georges: Okay.
-: Yes, Your Honor.
-: Does the city take the position
that the relevant dwelling unit to look at
is each dwelling unit of the triple decker so it's three?
Powers: Yes, Your Honor. -: Okay.
So on the first floor there was three people,
was that one okay?
Powers: I believe, Your Honor,
that it was five, five, and three.
-: Yeah. Georges: It was.
-: So the three was okay?
-: The three was not okay,
but I believe that that was only
because it was not a single housekeeping unit.
Had it been a single housekeeping unit,
that would've been okay
because it would've qualified as a family of four
or fewer unrelated individuals
maintaining a single housekeeping unit.
-: Can I ask a question? Sorry, chief.
Why does the logic require your result?
That is why can't one read this paragraph
as saying that discrimination is a bylaw
or regulation that is not imposed on families
and also not imposed on groups of similar size.
That is if it's imposed on one but not the other,
it's discrimination.
But if it's imposed on both, then it's not.
So that the treatment of this disabled person group
is the most favorable of families
and groups of unrelated people of similar size.
-: Because, Your Honor, if that were,
then it would essentially override
the proper purposes of local zoning.
And it's our position that that was not the intent
of the legislature.
-: Okay, so you'll allow that the condition,
that this condition is ambiguous
as to which one of the logic units apply, right?
And then the reason you win is because the intent
is really to treat groups of disabled persons
the same as groups of similar size.
-: Well, Your Honor, I should mention,
there's one other profound problem
with making the comparison
in every single instance against families.
And that is that family zoning
is always the most preferential and the most accommodated-
-: Right, but the problem with that argument to me,
and if you could explain this to me, that'd be great,
is that the legislature did include families
in this paragraph form.
If they didn't mean that groups of disabled people
would be treated akin to families,
why wouldn't they have just said discrimination is,
regulation's not imposed on groups
of other unrelated people of similar size?
-: Certainly, Your Honor.
Because when a group of unrelated individuals
qualify as a family,
notwithstanding that they are unrelated, for example,
in this zoning ordinance in this case,
if we were talking about four unrelated disabled individuals
who were maintaining a single housekeeping unit,
they would qualify as a family,
notwithstanding that they happen not to be related
by blood, marriage, or adoption.
And so therefore the statute for seeing those circumstances
included the family comparator.
Because if we have a situation
that that does qualify as a family,
then the local zoning ordinance
had better not discriminate against this family,
notwithstanding that they're unrelated,
simply because they happen to have disabilities.
-: Chief, may I ask a question?
Assume we were to agree with you with respect to count one,
what happens to count three?
Does that go back?
Is that gone out of the case permanently now?
-: I believe, Your Honor,
that all of the counts other than count one in this case
have been resolved between the parties.
Wolohojian: Okay, so we don't need to worry
about that aspect of the judge's decision?
-: Correct, Your Honor. -: Okay, thank you.
Budd: Okay, thank you.
-: With that in mind, Your Honor,
on the basis of those arguments
and the arguments articulated in our brief,
we request that this court reverse
the partial summary judgment on count one
and order that judgment enter on count one for the city.
Thank you, Your Honors.
Budd: Thank you. Okay, Attorney Tine.
-: Good morning, Your Honors.
Andrew Tine for the appellees
BAK Realty and Crossing Over, Inc.
First off, just to respond to Judge Kafker's point,
which I think is, I agree with the appellants on this point,
which is the word or in the statute,
as the statute reads not imposed on families
and groups of similar size or other unrelated persons.
I agree that I believe that should be of.
I believe that is a typo.
If you look at page 26 of the appellant's brief,
he references the language from the House report
regarding the Fair Housing Act
and the reasons behind the Fair Housing Act,
which I believe that House report's very important
to the statute because the language,
it mirrors it in many regards.
And the of is contained within the health report
and somehow didn't translate over to the statute.
-: Is there any other state that's adopted
this similar type of language-
Tine: I haven't looked at that in a long time.
I believe maybe California, Seattle, Oregon is one of those.
-: Do they use or or of?
Tine: I don't recall, Your Honor.
I haven't looked at that in years.
-: So Justice Wendlandt's question
about creating the most favored status,
meaning if you impose, again, I'm gonna get this back.
If you impose a condition that is not imposed on families
and other groups of similar size,
your view is it creates the most favored status.
You have to meet both sides of that equation.
-: Correct, how I read this is that if a family
can locate in a neighborhood,
so can unrelated disabled individuals,
and that's how the statute is written.
Also, if on the other side of the and
is if a boarding house could locate in a neighborhood
and that would allow 12 unrelated people,
then a sober house, a group home
for unrelated disabled individuals
could locate in that neighborhood
where the boarding house could locate.
-: But what does that do with the requirement
of the single housekeeping unit?
What does that do to that?
-: That's not built into the statute,
and I think that's done purposely.
It says that the cities and towns cannot use local laws,
regulations, ordinances to create these definitions
which exclude from their neighborhoods
individuals in recovery,
i.e. disabled individuals who choose to live together
in a congregate living arrangement.
So the cities and towns can't come up
with their own definitions of family,
which say you have to be related.
And therefore, under the statute,
you can only live in this city or town
as a congregate, a disabled group of individuals.
If you are a family, that would make no sense.
-: Well, it could make sense
if the theory was that all of these folks
are related by blood, marriage, or adoption
and there's a three-family house
and it's the Murphy's
and it's of several generations of the same family
versus three families with up to 15 people
who are all individuals,
they're not part of the same family unit,
and essentially we've got 15 different lives
being lived in one home
where we wanted single family zoning.
Why wouldn't that make sense?
-: It wouldn't make sense
because if you go back to the House report,
it says, "Discrimination has been accomplished by such means
as the enactment or in position of health, safety,
and land use requirements on congregate living arrangements
among non-related persons with disabilities."
-: Well, I know what you're saying,
but I'm going back to the issue that the,
not necessarily resolve,
but the issue that the appeals court have.
Because if we take the view that you have,
the family is always going to be the comparator.
It's always going to be the comparator.
And if you can't do it to families,
you can't do it for folks that aren't family either
by blood, marriage, or adoption
or as a single housekeeping unit.
You'll never be able to zone out boarding.
Boarding homes.
-: So families is not always the comparator.
An example is Donohue versus the City of Methuen,
which is one of my cases in federal court,
that was a convent.
And my clients took over that convent
and used it for unrelated disabled people to live together,
and the city challenged it
and said that you couldn't use it this way.
And the federal court agreed that,
because it was previously a convent
with unrelated people living together in equal numbers,
that that was the comparator,
and under the statute that was a group of similar size
of unrelated individuals who could live together
and said that that was okay.
And it's quite often we're-
-: Okay, in a single family residentially zoned area,
families will always be the comparator.
-: Well, this wasn't a single-family neighborhood,
but it was a convent-
-: Right, I'm saying, but this is a single family,
this RB residential zoning
is a single-family residential zoning.
-: Yes, I'd like to agree with you
because I think the intent of the Fair Housing Act,
which this statute is based off of,
is to integrate disabled individuals
into single-family neighborhoods.
That is the whole intent behind the statute,
is to give them access to housing
where typically they weren't allowed
because they'd be pushed into neighborhoods
that are boarding houses or near the train tracks
or where other people don't want these individuals.
And the focus here is, is specific to,
the statute covers disabled individuals in general,
it does cover disabled veterans,
it covers other groups of disabled individuals
and gives them the benefit of being able to choose
as to what neighborhood they want to live in,
but I know sober houses comes up over and over again,
you know, people in recovery
from alcohol and substance abuse,
and the reason being is because people have fear
and prejudice against them.
They're afraid that when they come into the neighborhood,
they're gonna harm their children and distribute drugs.
So, you know, most of the cases that I handle
have to do with not blind people and not veterans
because everyone likes them.
But people generally don't like people in recovery,
because they fear them.
And, you know, if you read the case law
and if you look at the facts
and circumstances of many of these sober houses,
people that enter these types of houses,
they're at the bottom
and they're not there to hurt anyone else.
That's already happened.
They've already gone to jail,
they've already lost everything,
and they're practicing abstinence,
they're being drug tested-
-: So I appreciate all those policy reasons
for allowing groups of disabled persons
into single family zoned places.
Can you, though, address the statutory language
and why your opposing counsel's reading of it,
of the logic of the comparators, does not make sense?
-: Well, he wants to replace
the word "and" with "or" between-
-: Well, no, because he's saying
the bylaw shall not be imposed on families
and groups of similar size, right?
He's acknowledging the and.
So that if there's a, as I understand logic,
if there's a bylaw that is imposed on families,
then it can be imposed on groups of disabled people.
And if there's a bylaw
that's imposed on groups of similar size,
then it can be imposed on disabled people
without it being discrimination.
-: And how I read that in his papers
to mean that if that group of similar size
is, say, a boarding house
and a boarding house is not allowed
in a particular neighborhood,
like it wasn't allowed in the neighborhood
where this house was located,
then the city could say statute doesn't apply,
boarding houses aren't allowed.
So your home for disabled individuals
does not have to be allowed.
-: Right, that's the argument.
My question is why isn't that not a proper reading
of the statute?
-: Because it goes against the whole intent
of the Fair Housing Act, which the statute is based off of,
which is to integrate people in recovery
into single-family neighborhoods particularly
because those are perceived to be the best neighborhoods.
-: So you're basically saying that the statute
requires that the density requirements
of a local zoning code,
it overrides the density requirements
of a local zoning code?
Tine: Well, zoning really doesn't control density
with respect to families.
Zoning- -: Well, the number of people
in a particular dwelling unit,
that's a density requirement.
-: Pretty much every definition of family.
And every city in town that I've looked into Massachusetts
allows any number of family members to live together.
So you can have 13 people, my mother's family had 11,
they can move into a single-family neighborhood
and live there.
What really controls density
are the safety regulations and the state building code,
because the sanitary code,
which I know it's not cited anywhere in the papers,
is 105 CMR 410, is very important
because it requires that each bedroom
have 70 square feet for the first person
and 50 square feet per after for each person in a bedroom.
With respect to a whole house, they require 150 square feet
of habitable floor space for first occupant
and 100 square feet for each additional occupant.
So there's regulations in place
which are not controlled by this statute
because this statute does not apply
to state laws and regulations,
so therefore the sanitary code and the building code,
with those limitations,
require that a house of a certain size
can only have a certain number of people.
So density is controlled by those laws.
-: But if you go back to Justice Wendlandt's question, right,
because I'm really interested in this,
and you're saying it just outlaws it
but that's not what I heard your opposing counsel say.
So why isn't his interpretation of the other comparator,
why is that not consistent with the text of the statute,
not the policy?
Because if they're not family
by blood, adoption, or marriage,
and the definition of the family
is the one that he talked about
of the single housekeeping unit,
and that limits the each floor to four,
that's just telling you that you can do it,
but you can't do the number that you currently have.
Tine: Right, but that doesn't-
-: So why isn't his interpretation
consistent with the text of the statute
and the and comparator?
-: Because the statute says that you can't,
notwithstanding any generalist special law of the contrary,
safety laws, regulations, ordinances.
So the town's ordinances, their definitions cannot be used
to put a limit on the number of unrelated disabled people
that can live together
if a family could live in that same use.
And the family, under the statute, is not defined.
-: But it goes back to my question then.
So family's always gonna be the comparator.
It says family and another group of folks to compare it to.
-: But it isn't always the comparator because-
Georges: In this case.
-: In this case, it's the comparator yes.
But in many other cases, it's not because-
-: Why?
Why wouldn't the comparator be like five students
who rent one of the units in this triple decker?
Tine: I didn't understand that, Your Honor-
-: Why is the family the comparator in this case
as opposed to groups of similar size?
These are unrelated people-
Tine: Because families were allowed
to live in this particular neighborhood
in this three-family, in this triple decker.
-: But so groups of unrelated people.
-: So for this sober home,
for this unrelated group of individuals-
-: Set aside the sober home.
Aren't groups of unrelated people allowed to live together
in each of these dwelling units?
Tine: With limitations, Your Honor.
-: With limitations.
So why wouldn't those same limitations
apply to this particular group of unrelated people?
Tine: Because that's the whole purpose of the statute,
is to provide a preference-
-: And that they be treated the same way.
Tine: No, to provide a preference to people in recovery
so that they can have the same access to housing
as traditional families and other large-
-: No, I thought the purpose was to make sure
that it's applied neutrally
so that there is no discrimination?
And I think the point was there is no discrimination
if this same group is being treated
the same as these other groups.
-: Yes, Your Honor.
But so five unrelated disabled people,
if you say they have to be treated the same
as five people who aren't disabled-
-: And none of 'em can be in this zoning area-
Tine: None of them can be in many zoning areas.
And that's why I think the statute says
if you have five unrelated disabled people,
you have to treat them like a family.
That way they can be everywhere.
-: No, I understand that's how you want it to be interpreted,
but I don't understand how you get there
based on the language of the statute, which I think was-
-: Because if you apply it the way you are suggesting
in this case, it seemingly runs,
it butts up against our statutory construction
where it renders certain parts of this statute superfluous.
Because if you're going to say that family is the comparator
and other groups of people are meaningless,
it's meaningless. -: Well, it isn't, Your Honor.
I didn't get to say it, but most, not most,
a lot of congregate living arrangements
for disabled individuals move into former nursing homes,
convents and large buildings that aren't necessarily used
for single-family housing-
-: And if we have that case in front of us,
it's a different case.
But this case,
this case is a single-family residential zoning district.
Tine: Correct.
And the comparator in this case
is the group of unrelated disabled people
should be treated the same as a family
that could live in each one of these units.
But I have cases where-
-: Well, this is a preexisting triple decker.
Tine: Correct- -: And presumably your convent
would be a preexisting convent hypothetical.
Tine: Yes. -: So we're not talking about
simply whether it's a single,
I don't know if this is single family district,
is RB, which I assume is Residential B.
And I don't understand your hypothetical,
because if the convent exists in a particular zoning area,
it's preexisting, then why wouldn't that
just be the same situation here,
which is you have a preexisting triple decker
that we're gonna treat as a triple decker
and the convent would be treated as a convent?
-: Because for unrelated disabled people
to move into a convent
and be treated the same as the prior occupancy and use,
the statute allows them to do that-
Wolohojian: That would be a reasonable accommodation.
-: Well, to me, it would be just the language of the statute,
A group of similar size of unrelated people-
Wolohojian: Right, they would not need
to be deemed a family,
-: They would not need to be deemed a family,
which is important.
Because if they were deemed a family,
under the building code, they'd have to get a change in use
and have to go through some other requirements.
And I believe in the Donohue case, that the judge,
that's one of the reasons she granted
the preliminary injunction.
The city was arguing that my client
didn't get a new certificate of occupancy.
-: So follow that logic then.
If they're then treated as folks that are not of family
for each individual level of the triple decker,
and under the RB zoning district the max per floor is four,
why, again, I get back to if that's the comparator,
these other groups, and this is how other groups
would be treated, why can't the city say
you're over the number?
-: Because the comparator is a family in each unit.
And a family does not have a limitation
on the number of people. Budd: Okay.