BAK REALTY, LLC, & Another v. CITY OF FITCHBURG & Another

SUPREME JUDICIAL COURT

BAK REALTY, LLC, & another[1] vs. CITY OF FITCHBURG & another[2]

Docket:

SJC-13639

Dates:

December 2, 2024 – March 28, 2025

Present:

Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, & Wolohojian, JJ.

County:

Worcester

Keywords:

Municipal Corporations, By-laws and ordinances. Zoning, Lodging house, Zoning district, Validity of by-law or ordinance, Board of appeals: decision, Appeal. Handicapped Persons. Lodging House. Statute, Construction. Practice, Civil, Zoning appeal, Summary judgment. Words, "Family," "And."

Civil action commenced in the Superior

Court Department on January 31, 2020.

The case was heard by Janet Kenton-Walker,

J., on a motion for summary judgment.

The Supreme Judicial Court on its own

initiative transferred the case from the Appeals Court.

Kevin J. Powers (Vincent P. Pusateri, II,

also present) for the defendants.

Andrew J. Tine for the plaintiffs.

James S. Timmins, City Solicitor, &

Paul Kominers, for Massachusetts Municipal Lawyers Association, amicus curiae,

submitted a brief.

Dana Alan Curhan, for city of Brockton

& others, amici curiae, submitted a brief.

WOLOHOJIAN, J. At issue is whether the city of Fitchburg's

zoning ordinances violate the antidisability discrimination provision of the

Zoning Act, G. L. c. 40A, § 3, fourth par. (§ 3, fourth par.),

as applied to a sober house that is being operated in a three-family house

located in the residential B (RB) district of Fitchburg (city or

Fitchburg). The answer to this question

turns on a matter of statutory interpretation:

namely, whether § 3, fourth par., requires that local ordinances

treat disabled persons living in congregate living arrangements not only as

"groups of similar size o[f[3]] other unrelated persons," but also as

"families" regardless of how that term is defined on the local level

(emphasis added). We conclude that it

does not. Instead, the statute entitles

disabled people to be treated the same as nondisabled people are treated under

local ordinances. Thus, if a group of

disabled people living in a congregate living arrangement meets the definition

of "family" under the local regulations, then it is entitled to be

treated as such. Likewise, it is

entitled to be treated as any similar-sized group of nondisabled unrelated

people is treated under the local regulations.

Because the thirteen sober home residents in this case did not meet the

local definition of "family" and were treated for purposes of the

zoning code the same as any similar group of thirteen unrelated people living

together in a three-unit house in the RB district of Fitchburg, we agree with

the decision of the zoning board of appeals of Fitchburg (board) and

accordingly reverse the judgment of the Superior Court.[4]

1.

Background. a. Statutory and regulatory framework. One year after Congress amended the Fair Housing

Act (FHA) to prohibit housing discrimination against "handicapped"

persons,[5] see Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, 102

Stat. 1619, 1620-1622 (1988) (adding 42 U.S.C. § 3604 [f]); see also

Edmonds v. Oxford House, Inc., 514 U.S. 725 , 728 & n.1 (1995), our

Legislature amended § 3 of the Zoning Act, G. L. c. 40A,

§§ 1 et seq., to do the same,[6] see St. 1989, c. 106, § 1

("An Act prohibiting housing discrimination against disabled

persons"). Section 3, fourth par.,

limits local zoning action by declaring 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." G. L. c. 40A, § 3, fourth

par. Although the statute provides no

definition of "disabled person," the parties do not dispute –- and we

agree with -- the Appeals Court's conclusion that individuals in recovery from

addiction are to be considered "disabled" for purposes of § 3,

fourth par. See Crossing Over, Inc. v.

Fitchburg, 98 Mass. App. Ct. 822 , 825 (2020), and authorities cited. See also Peabody Props., Inc. v. Sherman, 418

Mass. 603, 606 (1994) (under FHA, "drug dependency together with

. . . participation in a drug rehabilitation program" is

"handicap"); 42 U.S.C. § 3602 (h) (excluding "current,

illegal use of or addiction to a controlled substance" from definition of

"handicap"); 24 C.F.R. § 100.201 (a)(2) (including in definition

of "handicap" "drug addiction [other than addiction caused by

current, illegal use of a controlled substance] and alcoholism").

Section 3, fourth par., defines

discrimination as the "[i]mposition 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 o[f]

other unrelated persons" (emphasis added).

G. L. c. 40A, § 3, fourth par.

Fitchburg has adopted a zoning code, and

we deal here with the version in effect as of June 8, 2018 (zoning code).[7] The zoning code applies to all buildings or

structures in Fitchburg, and provides that "[n]o building, structure or

land shall be used for any purpose or in any manner other than is expressly

permitted within the district in which such building, structure or land is

located." Fitchburg Zoning

Ordinance, c. 181, § 181.14 (2018).

The zoning code divides the city into

residential, business, industrial, and institutional districts. Fitchburg Zoning Ordinance, c. 181,

§ 181.21 (2018). There are five

residential districts. Id. at

§ 181.211. At issue here is the RB

district. The RB district allows

single-family dwellings and two-family dwellings as of right. Id. at § 181.313. But three-family dwellings, which are defined

as three attached dwelling units designed as the residences of three families,

require a special permit from the planning board.[8],[9] Id. at §§ 181.10, 181.313. Boarding houses, which are defined as

"[a] dwelling or part thereof in which lodging is provided by the owner or

operator to at least three, but not more than six, boarders," are

prohibited in the RB district.[10] Id.

The zoning code's definition of

"family" turns on whether a group of people are living as a

"single housekeeping unit."

Fitchburg Zoning Ordinance, c. 181, § 181.10 (2018). No more than four unrelated people who are

living as a single housekeeping unit may be considered a "family" for

purposes of the zoning code. Id. However, a group of persons "related by blood,

marriage or adoption, including wards of the state" may be deemed a family

-- regardless of their number -- if they are living as a single housekeeping

unit. Id.

"A person or

number of persons occupying a dwelling unit and living as a single housekeeping

unit, provided that a group of five or more unrelated persons shall not be

deemed a 'family' where not related by blood, marriage or adoption, including

wards of the state."

Id.

b.

Factual background.[11] BAK

Realty, LLC (BAK Realty) leases a three-unit dwelling (which the parties

colloquially refer to as a "triple decker") to Crossing Over, Inc.

(Crossing Over), a nonprofit organization that uses the property to operate a

sober house. Crossing Over provides

all-inclusive housing for a monthly charge, and "residents receive use of

the whole house, shared living arrangements, with all utilities, TV and

amenities included." The residents

are required to participate in random drug tests, and to attend various

meetings to promote and maintain their sobriety.

The property is located in the RB zoning

district of Fitchburg. In June 2019, the

sober house was occupied by thirteen unrelated people -- twelve individuals

recovering from alcohol and drug addiction, as well as one live-in manager --

who lived in a 5-5-3 arrangement across the three units. Residents stay at the sober house for varying

periods of time, and they do not all arrive and leave on the same date.

On June 25, 2019, Crossing Over was

notified by a Fitchburg building inspector that the sober house was functioning

as a boarding house, and that such use was not permitted in the RB district.[12] In response, Crossing Over took the position

that G. L. c. 40A, § 3, fourth par., required the city to treat

the residents of the sober house the same as it would treat a

"family" under the city's zoning code. Crossing Over further requested that the city

provide reasonable accommodations under the FHA "to avoid being subjected to

any code requirements not imposed upon single-family (or three single families

in this case) occupancy of this property."

See 42 U.S.C. § 3604 (f)(3)(B).

For two reasons, the building commissioner

disagreed that the residents of the sober house were a "family" for

purposes of the zoning code. First, he

noted that the group was not living together as a single housekeeping

unit. Second, the commissioner stated

his belief that there were more than four unrelated people per unit. The commissioner reiterated his view that the

sober house was operating as a boarding or lodging house -- a use that was not

permitted in the RB district. The

commissioner further stated that he did not have the authority to provide

reasonable accommodations from health, fire, and license commission codes as

requested by Crossing Over, and he suggested that Crossing Over direct its

request for reasonable accommodations to the board.

Crossing Over and BAK Realty heeded that

suggestion and appealed from the commissioner's decision to the board, where

they also made a request for reasonable accommodation under the FHA. After a hearing, the board found that the

thirteen residents of the sober house were "disabled" for purposes of

§ 3, fourth par., which the board acknowledged required that they be

treated no differently from a family or other group of similar size. But the board concluded that the residents

did not meet the zoning code's definition of "family." The board therefore determined that the sober

house was not being operated as a three-family dwelling but rather as a

boarding house. Because boarding houses

are not permitted in the RB district, the board upheld the commissioner's

decision.

Notwithstanding that conclusion, the board

allowed the request for reasonable accommodation under the FHA. In this regard, the board found that the

irregular distribution of persons across the three living units was necessary

to accommodate housing on the first floor for the live-in manager, who could

not "reasonably be expected to double-bunk with a resident." The board also found that the presence of the

live-in manager was essential, or at least highly beneficial, to the

functioning of the recovery program. The

board also accepted the plaintiffs' contention that the residents of the sober

house benefited from living in a large group setting rather than in divided

smaller groups. The board noted that the

number of residents in the building was only one more than would be permitted

as the aggregate maximum allowed for three families of unrelated people living

in a three-family dwelling.[13] The

board also found that it would be "unjust and counterproductive for the

[b]oard to insist that the thirteenth resident be immediately

evicted." The board determined that

"[a]llowing irregular distribution across floors/units, and allowing a

single additional resident to remain over a short-term period will not

substantially nullify or derogate from the purpose of the [z]oning"

code. Based on these findings and

conclusions, the board unanimously voted to provide a reasonable accommodation

to allow up to a total of twelve residents distributed across floors however

Crossing Over saw fit. In other words,

the residents would not be required to conform strictly to the requirement that

there be no more than four unrelated persons living in a single unit. The board also determined that the residents

"need not function as a 'single housekeeping unit,' in that they may begin

and terminate residency independent of one another, and may circulate freely

across floors as [Crossing Over's] program may permit." The board further allowed the current

thirteen residents to remain in place until such time as one of them left the

program, at which time that resident would not be replaced, and the program would

continue with a maximum of twelve persons.

Provided all its conditions were met, the board ruled that Crossing

Over's "use shall be deemed a compliant three-family dwelling for zoning

purposes."

The plaintiffs then filed the underlying

suit in the Superior Court, seeking to annul the decision of the board because

it "fail[ed] to treat the [sober house] occupants the same as a

family." See G. L.

c. 40A, § 17. In addition, the

plaintiffs sought injunctive relief under G. L. c. 40A, § 3,

damages for discrimination in violation of the FHA, recovery of costs pursuant

to G. L. c. 40A, § 17, and damages for discrimination under

G. L. c. 151B.

The plaintiffs moved for partial summary

judgment on their claim for annulment and on their claim under the FHA. The judge allowed so much of the motion as

sought annulment of the board's decision on the ground that G. L.

c. 40A, § 3, "requires that the disabled residents of the

property not be subject to any local ordinance requirement that would not be

imposed on families -- e.g., a housing unit of four or more related individuals

-- and groups of similar size o[f] other unrelated persons, whichever is more

favorable." On this basis, the

judge concluded that G. L. c. 40A, § 3, barred enforcement of

the zoning code against the residents of the sober house. She accordingly allowed the plaintiffs'

motion for summary judgment in part and annulled the board's decision. The parties then agreed to the dismissal of

the plaintiffs' remaining claims. This

appeal followed, in which the only issue is the judge's ruling annulling the

board's decision that the sober house was not being used as a three-family

dwelling but rather as a boarding house.

2.

Discussion. The root of the

plaintiffs' position on appeal is that § 3, fourth par., requires that disabled

persons living in congregate living arrangements be treated as

"families" regardless of how that term is defined at the local

level. They base this view on their

reading of the statute, which they contend requires that groups of unrelated

disabled people living in a congregate setting be treated as both a

"family" as well as any other similar-sized group of nonrelated

persons. In other words, the plaintiffs

contend that such persons must be given "family" status even if they

do not meet the local definition of that term and even if the local code treats

them like similar-sized groups of nonrelated persons.

We disagree for two reasons. First, § 3, fourth par., does not

preempt municipalities from defining what constitutes a "family" for

purposes of their local zoning codes.

Cf. Roma, III, Ltd. v. Board of Appeals of Rockport, 478 Mass. 580 , 581,

591-592 (2018) (State law did not preclude municipality from prohibiting use of

land for private heliport where there was "no clear legislative intent to

preempt local zoning enactments").

Second, § 3, fourth par., does not require that groups of unrelated

disabled persons living together be treated the same as both families and

similar-sized groups of nondisabled unrelated persons. Instead, they must be treated the same as any

comparable group of unrelated persons, whether that is a "family" as

the term is defined on the local level, or some other similar-sized group of

unrelated persons under the local code.

a.

Local definition of "family."

As we have already noted, § 3, fourth par., does not define

"family" or "families," nor are those terms defined

elsewhere in G. L. c. 40A.

Instead, consonant with its general delegation of zoning authority to

the local level, the Legislature has left it to each municipality to define the

term "family" for purposes of its own zoning code. See Zoning Bd. of Appeals of Wellesley v.

Ardemore Apartments Ltd. Partnership, 436 Mass. 811 , 822 n.22 (2002) (Legislature

has delegated almost all of its constitutional zoning authority to cities and

towns, and "[G. L.] c. 40A, itself expressly recognizes local

autonomy in dealing with land use and zoning issues"). This delegation does not mean that a

municipality is entirely unrestrained in how it may define the term "family." But, as long as the local definition is

constitutionally permissible and does not run afoul of the Zoning Act or other

controlling legislation, a city or town may define "family" in a

manner that will help preserve the residential character of its

neighborhoods. See Styller v. Zoning Bd.

of Appeals of Lynnfield, 487 Mass. 588 , 599 (2021); Zuckerman v. Hadley, 442

Mass. 511, 517 (2004); Sturges v. Chilmark, 380 Mass. 246, 253 (1980).

The plaintiffs do not contend that

Fitchburg's definition of "family" runs afoul of these

constraints. Nor do they argue that the

city could not permissibly draw a distinction between the number of unrelated

people (such as, for example, college students) living together as a single

housekeeping unit who may be deemed a "family" under its zoning code

and the unlimited number of related persons who may be so deemed. Because authority to define the term

"family" has been delegated to the local level, and no argument has

been made that Fitchburg's definition is impermissible, the sober house

residents were required to meet the local definition.

What remains is whether the board

permissibly concluded that the residents of the sober house did not meet the

definition of "family" and that Crossing Over was operating a

boarding house. See Shirley Wayside Ltd.

Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475 (2012) (we

"accord deference to a local board's reasonable interpretation of its own

zoning bylaw"). The residents do

not live as a single housekeeping unit within each unit. Instead, the residents live across the

building as a whole, with Crossing Over providing group services and amenities,

as well as a live-in manager, in exchange for rent. Beyond that -- whether considered on a

unit-by-unit basis or taking the building as a whole -- the residents exceeded

the number of unrelated people who can be deemed a "family" under the

zoning code. Accordingly, the board was

permitted to conclude that the sober house was not being used as a three-family

house, but was instead being used as a boarding house -- a use not permitted in

the RB district.

b.

Meaning of "and" in § 3, fourth par. As we have already noted, § 3, fourth

par., provides that discrimination occurs when local land-use requirements

imposed "on congregate living arrangements among non-related persons with

disabilities" are "not imposed on families and groups of similar size

o[f] other unrelated persons" (emphasis added). G. L. c. 40A, § 3, fourth

par. In other words, the provision tests

for discrimination by comparing the treatment of unrelated disabled persons to

the treatment of two other groups:

families and similar-sized groups of unrelated people. The question here is whether § 3, fourth

par., requires cities and towns to treat unrelated disabled persons the same as

both of those groups, or if it only requires the same treatment as given to one

of those groups -- either families, or groups of similar size of other

unrelated persons -- that is alike but for disability. Both readings are permissible and plausible

as a matter of grammar. However, we

conclude that only the latter interpretation comports with the legislative

purpose of § 3, fourth par., to prohibit discrimination against disabled

persons. See Reade v. Secretary of the

Commonwealth, 472 Mass. 573, 578 (2015), cert. denied, 578 U.S. 946 (2016),

quoting Watros v. Greater Lynn Mental Health & Retardation Ass'n, 421 Mass.

106, 113 (1995) ("reading of a statute should not be adopted if the result

will be to thwart or hamper the accomplishment of the statute's obvious

purpose, and if another construction which would avoid this undesirable result

is possible").

We first set out each of the parties'

textual interpretations. On the one

hand, the plaintiffs contend that the word "and" is used in its joint

sense, and therefore links families and "groups of similar size o[f] other

unrelated persons" so that discrimination occurs when disabled individuals

are not afforded the same treatment as both groups. G. L. c. 40A, § 3, fourth

par. See B.A. Garner, Dictionary of

Legal Usage 639 (3d ed. 2011) (word "and" has "a joint

sense"). On the other hand, the

defendants contend that the word "and" is used in its distributive

sense. See id. ("and has a

distributive [or several] sense").

When used in its distributive sense, the word "and" impliedly

repeats or distributes a preceding word or phrase to each item in a list. See Bradley v. Board of Zoning Adjustment of

Boston, 255 Mass. 160, 173 (1926) (explaining that "seven specified

grounds [for when a board can alter a zoning map]" that are joined by word

"and" were "intended to be used distributively and not

conjunctively"). See also Pulsifer

v. United States, 601 U.S. 124 (2024).

If § 3, fourth par., uses "and" in its distributive

sense, then the phrase "not imposed on" implicitly repeats before

each of the two groups identified in the provision, so that discrimination

occurs when a restriction imposed on nonrelated people with disabilities is

"not imposed on families and [not imposed on] groups of similar size o[f]

other unrelated persons."

G. L. c. 40A, § 3, fourth par. See Pulsifer, 601 U.S. at 136 , citing R.

Huddleston & G.K. Pullum, The Cambridge Grammar of the English Language

1298-1299 (2002). Under this reading,

discrimination does not occur provided the municipality imposes the same

requirements on "congregate living arrangements among non-related persons

with disabilities" as it does on either families or on similar-sized

groups of unrelated persons. G. L.

c. 40A, § 3, fourth par.

We look to the context in which

"and" appears in order to determine whether it is used in its joint

or in its distributive sense. Pulsifer,

601 U.S. at 134-135 . That context is

§ 3, fourth par., which prohibits municipalities from using local

"land use and health and safety laws, regulations, practices, ordinances,

by-laws and decisions" to discriminate against disabled people.[14] G. L. c. 40A, § 3, fourth

par. The plain language of § 3,

fourth par., prohibits discriminatory treatment; it does not mandate

preferential treatment under local zoning regulations. See Automobile Insurers Bur. of Mass. v.

Commissioner of Ins., 425 Mass. 262, 267 (1997), quoting Industrial Fin. Corp.

v. State Tax Comm'n, 367 Mass. 360, 364 (1975) ("Where the [legislative]

intent is clear, the statute, if reasonably possible, must be construed to

carry out that intent").

Nondiscriminatory treatment of disabled persons is consistent with one

of zoning's over-all purposes, which is to "stabilize property uses in [a

municipality's] specified districts."

Moore v. Cataldo, 356 Mass. 325, 327 (1969), quoting Kane v. Board of

Appeals of Medford, 273 Mass. 97, 104 (1930).

Treating groups of disabled people who live in congregate living

arrangements differently from other similar-sized groups of nondisabled persons

in the same type of living arrangement within the same district would run

counter to that stabilizing purpose. It

would also undermine municipalities' ability to use zoning regulations "to

protect communities' 'residential character'" (citation omitted). Styller, 487 Mass. at 599.

Against this context, we conclude that the

word "and" is used in its distributive sense. Thus, local zoning regulations do not run

afoul of § 3, fourth par., unless they impose requirements on groups of

unrelated disabled persons in a congregate living arrangement that are not

imposed on families or on similar-sized groups of nondisabled unrelated

persons. That is not the case here. The residents of the sober house were subject

to the same requirements for "families" as well as for similar-sized

groups of nondisabled unrelated persons (in this case, a "boarding

house").

3.

Conclusion. Because Fitchburg's

zoning code did not impose on the residents of the sober house any requirements

that were neither imposed on "families" nor imposed on similar-sized

groups of unrelated persons, we reverse the judgment of the Superior Court.

So ordered.

footnotes

[1] Crossing

Over, Inc.

[2] Zoning board

of appeals of Fitchburg.

[3] It is

apparent that the word "or" is a clerical or scrivener's error that

should instead read "of."

Congress's report on the Fair Housing Act -- which appears to be the

source from which the language of § 3, fourth par., was drawn -- uses

"of" instead of "or," thus lending credence to the idea of

clerical error. See H.R. Rep. No.

100-711, 100th Cong., 2d Sess., at 24 (1988) ("[Discrimination] 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" [emphasis added]).

[4] We

acknowledge the amicus briefs submitted by the Massachusetts Municipal Lawyers

Association; and the cities of Brockton, New Bedford, Taunton, and Fall River.

[5] As a result

of the amendment, the FHA prohibits discrimination in the sale or rental of

housing against "handicapped" persons, including discrimination by

"a refusal to make reasonable accommodations in rules, policies,

practices, or services, when such accommodations may be necessary to afford

[handicapped] person[s] equal opportunity to use and enjoy a

dwelling." 42 U.S.C.

§ 3604 (f)(3)(B).

[6] "General

Laws c. 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." Crossing Over, Inc.

v. Fitchburg, 98 Mass. App. Ct. 822 , 829 (2020) (citing legislative history).

[7] The 2018

zoning code was "enacted for the purpose of promoting the health, safety,

convenience and general welfare of the present and future inhabitants of the

City of Fitchburg and to:

1. Lessen congestion in the streets.

2. Secure safety from fire, flood, panic and

other dangers.

3. Provide adequate light and air.

4. Prevent overcrowding of land.

5. Avoid undue concentration of population.

6. Encourage housing for persons of all income

levels.

7. Facilitate the

adequate provision of transportation, water, water supply, drainage, sewerage,

schools, parks, open space and other public requirements.

8. Conserve the

value of land and buildings, including the conservation of natural resources

and the prevention of blight and pollution of the environment.

9. Encourage the

most appropriate use of land throughout the city.

10. Preserve and

increase amenities by the promulgation of regulations to fulfill said

objectives.

11. Facilitate

the safe, convenient and meaningful provision of adequate vehicular and utility

access to all lots intended for building purposes in the City."

Fitchburg Zoning

Ordinance, c. 181, § 181.11 (2018).

[8] "Special

permits may be issued only for uses which are in harmony with the general

purpose and intent of the ordinance or by-law, and shall be subject to general

or specific provisions set forth therein; and such permits may also impose

conditions, safeguards and limitations on time or use." G. L. c. 40A, § 9, first par.

[9] Prior to July

7, 2004, the zoning code allowed three-family dwellings as a matter of right in

the RB district. Fitchburg Zoning

Ordinance, c. 181, § 181.313 (2018).

The record is silent as to whether the building in which the sober house

is operated was built before the 2004 amendment. That said, there is no issue raised about the

conformity of the structure itself with the code. The only issue is about the building's use.

[10] The 2020

amended zoning code modified the definition of "boarding house" to

"A building,

structure or a portion thereof where lodgings are let to more than three, [sic]

persons not within the second degree of kindred to the person conducting it and

shall include fraternity houses and dormitories of educational

institutions. The term includes student

housing owned by non-governmental persons or persons or entities. The definition does not include inns, bed and

breakfast establishments, or any hospital, sanitorium, convalescent or nursing

home, infirmary or boarding home for the aged licensed by the Department of

Public Health or any dwelling licensed, authorized or regulated by the

Department of Mental Health or any other agency of the Commonwealth or United

States."

Fitchburg Zoning

Ordinance, c. 181, § 181.10 (2020).

Compare G. L. c. 140, § 22 (definition of "lodging

house"); G. L. c. 148, § 26H (definition of "lodging

or boarding houses").

[11] The facts

are undisputed. We draw our recitation

from the parties' joint appendix submitted in connection with the plaintiffs'

motion for summary judgment, and from the findings of the board.

[12] Crossing

Over was also notified that it needed to obtain a lodging house license from

the board of health, and that an accessible route for the building would need

to be created. These issues are not

implicated in this appeal.

[13] This is

because four unrelated persons could live together as a "family" in

each unit as a matter of right under the code, resulting in a total of twelve

people living in the building. See

Fitchburg Zoning Ordinance, c. 181, §§ 181.10, 181.313 (2018).

[14] The title

and language of St. 1989, c. 106, § 1, which added § 3, fourth

par., to the Zoning Act, make clear that the legislative intent was to target

discrimination based on disability.

Specifically, c. 106 is entitled "An Act prohibiting housing

discrimination against disabled persons," and § 1 only mentions

discrimination against disabled persons.

See Lynn Teachers Union, Local 1037, AFT, AFL-CIO v. Massachusetts

Comm'n Against Discrimination, 406 Mass. 515, 524 (1990), abrogated on other

grounds by Clifton v. Massachusetts Bay Transp. Auth., 445 Mass. 611, 620

(2005) ("title and provisions of [act]" that "refer[] explicitly

only to age discrimination" demonstrate "the intent of the

Legislature to focus exclusively on the problem of age discrimination").