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HomeMy WebLinkAboutPLF TO FLORENCE DOVER AMENDMENT 10-28-25One Adams Place, 859 Willard Street, Suite 440, Quincy, MA 02169 ■ P: 781-817-4900 ■ F:781-817-4910 ■ www.mbmllc.com Peter L. Freeman Direct Dial: 781-854-2430 pfreeman@mbmllc.com Admitted in MA Via email to brian.florence@town.barnstable.ma.us October 28, 2025 Brian Florence Building Commissioner Town of Barnstable – Town Hall 200 Main Street Hyannis, MA 02601 Re: 949 Pitcher’s Way, Hyannis, Assessor’s Map 272, Parcel 143 Homeless Not Hopeless, Inc. Dear Mr. Florence: I represent Homeless Not Hopeless, Inc. (“HNH”) in connection with its purchase of the above- referenced property (the “Property”). HNH is a Massachusetts Chapter 180 non-profit corporation and has a charitable tax exemption from the IRS as a 501(c)(3) organization. As we discussed last week on the phone, HNH intends to use the Property for another group home for men and/or women transitioning from homelessness to independent living. The use will be the same as HNH’s other group homes in Hyannis at 22 Main Street, 119 Baxter Road, 95 Chase Street, and 45 Newton Street. The purpose of this letter is to confirm that the use of the Property qualifies as an educational use under the Massachusetts Dover Amendment. The Property is currently owned by the Roman Catholic Bishop of Fall River. It was used as a group home for women recently out of jail and transitioning to independent living and has 6 bedrooms. It was occupied for the same until June 30th of this year. HNH does not intend to make any renovations (perhaps minor exterior cosmetic things) and will keep it as 6 bedrooms, with a total of no more than 12 occupants. If a fire sprinkler system is required, they are prepared to install one. I do not think the HNH use of the Property would be a change in use, with the building having been used in a very similar manner since, as far as I know, the Roman Catholic Bishop of Fall River purchased it in 1997.1 As to the Dover Amendment and as mentioned above, the use of the Property will be the same as in the other Hyannis properties owned by HNH, including the one at 22 Main Street. In 2012, the Barnstable Zoning Board of Appeals (“ZBA”) affirmed that the use of the Property as a transitional group home was a Dover Amendment educational use. See ZBA Decision in Appeal No. 2012-052 dated 1 For your information, there is a Special Permit for the Property that was granted by the ZBA in 1996, Case No. 1995 -162 wherein the Application sought “a modification of a pre-existing non-conforming use and to legitimize current use of an eight unit lodging house used as a rehabilitation and recovery hours.” The Decision granted a SP to Patricia Flaherty “for the continuation of lodging up to eight single occupancy lodging units within the dwelling provided the use of the structure shall remain as a group home for rehabilitation activities and special needs population and complies with all of the following conditions….” October 15, 2012. The educational use described in that Decision is the same as HNH’s proposed use of the Property. I am attaching hereto as Exhibit A the memorandum (without the exhibits) submitted to the ZBA at that time which analyzes the Dover Amendment and the HNH use. See also the HNC Articles of Amendment stating its purpose attached hereto. As indicated in that memorandum, it is clear that the Massachusetts Supreme Judicial Court has taken a “broad and comprehensive” view of what is “educationally significant” for Dover Amendment purposes for more than 120 years. See the more recent case of McLean Hospital Corporation v. Town of Lincoln, 483 Mass. 215, 220 (2019), citing Regis Coll., 462 Mass. at 285. “Educationally significant” uses are not “limited only to those facilities closely analogous to traditional schools and colleges.” Id., quoting Regis Coll., 462 Mass. at 286. “Rather, the term ‘educational’ encompasses that which is ‘the process of developing and training the powers and capabilities of human beings.’” McLean, 483 Mass. at 220, quoting Mount Hermon Boys' School v. Gill, 145 Mass. 139, 146 (1887). “Thus, the Dover Amendment embraces fully ‘the idea that education is the process of preparing persons for activity and usefulness in life.’” McLean at 220, quoting Fitchburg Hous. Auth., 380 Mass. at 874. Based on the foregoing information, I submit that the HNH proposed use of the Property is an educational use meeting the requirements of the Dover Amendment as interpreted by the courts for many years. On behalf of my client, I would greatly appreciate your reviewing this and confirming to me that you concur. Thank you. Very truly yours, s/s Peter L. Freeman cc: Richard J. Murphy, Sr., Homeless Not Hopeless, Inc. President EXHIBIT A Nonprofit Educational Corporation There is no question as to whether HNH is a nonprofit corporation. It is a Massachusetts Corporation formed under Massachusetts General Law Chapter 180 (see attached Articles of Organization). As an organization organized and operated exclusively for an exempt purpose, it is a charitable organization recognized as tax exempt under section 501(c)3 of the Internal Revenue Code. The requirement that a nonprofit be a “nonprofit educational corporation” (emphasis added) has been examined by the Supreme Judicial Court, and the “proper test in deciding whether a nonprofit corporation is an educational one is whether its articles of organization permit it to engage in educational activities, a question easily answered by a review of the documents filed with the State.” See Gardner-Athol Area Mental Health Association, Inc. v. Zoning Board of Appeals of Gardner, 401 Mass. 12, 15-16 (1978). HNH Articles of Organization, as filed with the Secretary of State, set forth a purpose of assisting the homeless “to attain a sustainable, satisfactory lifestyle . . . . [by providing] access to the most modern technology and methods possible for pursuing employment, networking, obtaining housing and gaining access to any and all resources specific to client needs.” This is corporation that clearly includes education. Educational Purpose The next question is whether the services provided by HNH constitute an educational purpose within the meaning of the Dover Amendment and are therefore not subject to prohibition, regulation or restriction by the Barnstable zoning by-law except for the reasonable regulations as enumerated. Dover Amendment; Definition of Education The standard at hand is not whether an organization is solely educational, but whether the organization has as its dominant purpose “a goal that reasonable could be described as educationally significant.” Whitinsville Retirement Society, Inc. v. Town of Northbridge, 394 Mass 757, 761 n3 (1985) (retirement facility, with merely an element of education that was deemed to be informally gleaned, was did not have an educational). There are thus two connected elements; a finding of an educationally significant goal and a finding that the primary or dominant purpose of the land and/or property use is the attainment of this educationally significant goal. Regis College v. Town of Weston, 462 Mass 280, 285 (2012)(Regis). An often-cited case in Dover Amendment discussion is Mount Hermon Boys’ School v. Gill, 145 Mass. 139, 146 (1887). Here, the Court determined that, for Dover Amendment purposes, “Education is a broad and comprehensive term. It has been defined as ‘the process of developing and training the powers and capabilities of human beings.’ To educate, according to one of Webster's definitions, is ‘to prepare and fit for any calling or business, or for activity and usefulness in life.’ Education may be particularly directed to either the mental, moral, or physical powers and faculties, but in its broadest and best sense it relates to them all.” The teaching of skills for independent living has been determined to be an educational purpose. Fitchburg Housing Authority v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869, 875 (1980) (Fitchburg). Here the Court found that a single-family home residential facility which was intended for chronically disturbed people who had been previously in mental institutions had a dominant purpose of education. The proposed facility would fulfill a significant educational goal in preparing its residents to live by themselves outside the institutional setting. Instruction in the activities of daily living is neither trivial nor unnecessary to these persons. On the contrary, for the prospective residents of the proposed facility to learn or relearn such skills is an important step toward developing their powers and capabilities as human beings. Inculcating a basic understanding of how to cope with everyday problems and to maintain oneself in society is incontestably an educational process. That is the dominant purpose of the proposed facility. The recent case of Regis College v. Town of Weston, 492 Mass. 280, 285-286 (2012) (Regis) centered on whether a proposed development of residential facilities for older adults qualified for protection under the Dover Amendment. The case provides a summary on holdings regarding the educational component of the Dover Amendment. Nontraditional educational goals. A proposed use of land or structures may have an educational purpose notwithstanding that it serves nontraditional communities of learners in a manner tailored to their individual needs and capabilities. Fitchburg, supra at 874-875. Accordingly, we have concluded that the Dover Amendment applied to certain facilities for the disabled or the infirm, notwithstanding that the education afforded by such institutions differed markedly from that offered by "traditional" academic institutions. See id. at 869-870 (residential facility in which "adults, with histories of mental difficulties, will live while being trained in skills for independent living, such as self-care, cooking, job seeking, budgeting, and making use of community resources"); Gardner-Athol Area Mental Health Ass'n v. Zoning Bd. of Appeals of Gardner, 401 Mass. 12, 13-14 (1987) (residential facility where adults with mental disabilities "would be taught daily living, as well as vocational skills"). In John Campbell v. City Council of Lynn, 415 Mass 772, 776 (1993) the Court examined a group residence for fifteen elderly, mentally ill persons. While the Supreme Judicial Court limited review to issues connected with the discretion to apply provisions of the zoning ordinance concerning bulk, dimensional and parking requirements, the Court also noted that “The Appeals Court's affirmance of the Superior Court judgment, see 32 Mass. App. Ct. at 153-155, and our limitation of the issues to be considered by this court, establish that the use of the premises as a group residence for elderly, mentally ill persons is a protected use for an educational purpose within the meaning of § 3 above [Dover Amendment].” Also as noted in the Regis case is a reference to the legislative history of the Dover Amendment: As part of a general revision of the zoning statutes in 1975, the Department of Community Affairs proposed that Dover Amendment protection be limited to "school[s]" or analogous "place[s] or facilit[ies]." See 1972 House Doc. No. 5009 at 84. In rejecting this language, the Legislature chose not to adopt a statutory test that would limit Dover Amendment protection only to projects similar to "schools," a term fairly read as denoting traditional educational institutions. Such a rejection "provides an indication that the Legislature did not want" the protection of the Dover Amendment to be limited only to those facilities closely analogous to traditional schools and colleges. See Regis, supra at 286-28 A brief summary of cases cited in Regis pertaining to education purpose: ▪ Mt. Hermon Boys’ School v. Inhabitatns of Gill, 145 Mass. 139 (1887): Boys School with Farming Component determined to be educational ▪ Kurz v. Board of Appeals of North Reading, 341 Mass. 110 (1960): Dance Studio offering instruction in dance for a fee was found not educational, but a commercial enterprise operated for personal profit ▪ Whitinsville Retirement Society, Inc. v. Northbridge, 394 Mass. 757 (1985): Retirement Facility / Nursing Home found not to have a primary purpose of education ▪ Fitchburg Housing Authority v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869 (1980): Residence for chronically disturbed people who participate in training program aimed at developing life skills found to have an educational purpose ▪ Gardner-Athol Area Mental Health Association v. Zoning Board of Appeals of Gardner, 401 Mass. 12 (1987): Residential care facility for adults with mental disabilities found to have an educational purpose. The Regis judgment remanded the case to Land Court for further proceedings, so did not make a final determination regarding whether residential facilities for older adults did or did not qualify for Dover Amendment protection. The Court suggested examination of issues “such as whether the plaintiff in fact intends to enforce its mandatory course requirements and evict residents who do not comply, and whether residents’ individualized curricular plans will be developed in tandem with professional educators, or will instead consist of recreational activities.” Regis, supra at 294. The fact pattern presented by Fitchburg and determined to be an educational purpose is most similar to fact pattern presented by Homeless not Hopeless. The Court summarized the facts as follows: The proposed facility would be located in a single-family house, formerly occupied by a physician, and would be operated to work with chronically disturbed people who have been in mental institutions. These people would require medical treatment and would participate in a "training program aimed at developing or learning social and interpersonal skills such as learning to keep themselves physically clean, learning to shop and how to use money, [and] learning to cook." The basic purpose would be "to train people to rid themselves of bad habits and teach them habits so that they would be qualified to live independently by themselves in a community." There would be full-time house managers, whose qualifications would include a bachelor's degree in human services. None of the teachers would be certified under G. L. c. 71, Section 38G. In selecting personnel, the emphasis would not be on teaching experience or qualifications, but more on social and psychological training and abilities. Fitchburg, supra at 872. Homeless not Hopeless, Inc. The service provided by Homeless not Hopeless is an affordable, supportive housing environment, educational training and other tools that help the participants, formerly homeless people, become productive members of society. HNH offers a helping hand to those in need of short term and long term assistance. HNH is actively managed by men and women who were formerly homeless themselves. These House Managers are aware of the problems and issues the homeless face and are equipped to help.HNH currently has two homes, one for women and one for men, with a third home recently purchased. Residents of each home pay community fees and contribute financially to food and utilities. This is in keeping with HNH’s goal of helping participants to become self-sufficient and eventually move back into their communities as productive members. Homeless not Hopeless supports program participants by: ▪ Providing clean, safe and affordable housing and helping each person to become self supporting and independent. ▪ Creating a welcoming and inclusive community setting. ▪ Providing support and encouragement that there is hope of a better future. ▪ Allowing our members time to heal from months or years of living on the street. ▪ Teaching basic life skills: personal hygiene, doing laundry and keeping living area neat and clean, sharing in chores and upkeep of home, managing checking/bank accounts and save money, even a few dollars each month. ▪ Each resident is taught to plan menus, shop sale items, determine the nutritional value of food and to cook as ability allows. Sharing meals as a community is encouraged. ▪ Teaching skills that will make them more job ready i.e.; by providing computers and teaching their use to access the internet to search for jobs, housing and support. They learn to fill out on-line job applications and other forms as well as send and receive E-Mail. ▪ Transportation is provided to doctors appointments, support meetings, to and from work and wherever else necessary to help them attain their goals and objectives. ▪ Residents are encouraged to deal with medical problems and obtain psychological counseling if required. ▪ All are encouraged to work in some capacity. If not a paying job then they are shown ways to volunteer around the house or in the community. Working and accomplishing tasks is an important step in rebuilding self worth. The Mission of the organization is to: ▪ Educate and advocate for the needs of the Homeless Community. ▪ Help Homeless Men and Women get off the street by providing food and shelter. ▪ Train them to deal with medical, psychological, spiritual and addiction issues. ▪ Help them to connect with available resources. ▪ Urge those who are capable to find employment or volunteer their time. ▪ Facilitate acquisition of financial assistance for residents. ▪ Teach goal setting, occupational and life skills that will lead to independent living. As Homeless not Hopeless is a program, not simply a residence, there is truly a dominant educational purpose. What HNH offers is undoubtedly more than affordable housing. Homeless not Hopeless offers significant education in life skills and important training in job seeking. While House Managers have no formal education or certification, this be no means precludes them from being educators. Participants must to adhere to program standards. Participants must be drug and alcohol free. If there is drug or alcohol use, a “first slip” requires a “90/90” program (90 Alcoholics Anonymous or Narcotics Anonymous meetings in 90 days). A “second slip” requires admittance into a long-term live-in program while HNH holds a space in the program for the participant upon return. The fact that there is no record of an “eviction” for other types of non-participation is a testament to the success of the program. HNH falls squarely into the ruling and the fact pattern of Fitchburg. It is even more clear, as there are no trained medical personnel on staff, that HNH does not operate a nursing or medical facility. Homeless not Hopeless operates a residential facility that has as a dominant purpose education, offers a much needed services, and does so very successfully. The proposed Homeless not Hopeless facility should be afforded Dover Amendment protection.