Sober Home Living Arrangment Not Protected by Dover Amendment

Our readers will no doubt be familiar with G.L. c. 40A, § 3, also known as the Dover Amendment, because of its protections for agricultural, religious, and educational uses, and since earlier this year, Accessory Dwelling Units. In a recent case, BAK Realty, LLC v. City of Fitchburg, SJC-13639 (March 28, 2025), the SJC had an opportunity to interpret a less cited portion of the Dover Amendment, the fourth paragraph, which recites that “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. . .. ” 

Before the court was the question of whether the language “requires that local ordinances treat disabled persons living in congregate living arrangements not only as groups of similar size of other unrelated persons, but also as families regardless of how that term is defined on the local level.” The question was asked in the context of a sober house where the local building commissioner found that the housing arrangement in question, thirteen unrelated persons living in a three-unit, triple-decker, were not a family(s) as defined in the local zoning ordinance, and the use was therefore a boarding house, which is not a use allowed in the zoning district. The local ordinance defined family as 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.”  

The operators of the sober house argued that the Dover Amendment afforded them protection from discrimination on the basis of disability, and also treatment as a “family” under the local zoning ordinance regardless of the local definition of that term. The SJC found that “the statute entitles disabled people to be treated the same as nondisabled people are treated under local ordinances” such that “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,” and “[l]ikewise, it is entitled to be treated as any similar-sized group of nondisabled unrelated people is treated under the local regulations.” In short, the Dover Amendment entitles disabled people to be treated like anyone else. Since thirteen non-disabled and unrelated people could not qualify as a family, the non-related residents of the sober home did not qualify. In so ruling against the sober home, the Court upheld the decision of the zoning board of appeals.   

While this decision focused on Massachusetts state zoning law, the Federal Fair Housing Act includes additional anti-discrimination provisions which may provide greater relief to sober houses such as the one in this case. While the plaintiff initially raised a claim under federal law, the claim was not before the SJC. Thus, our office cautions strict reliance on this SJC determination without first consulting with local counsel.