HomeMy WebLinkAboutExhibit A- Becker v. First Church of Sommerville et al.1
COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT
MIDDLESEX ss. MISCELLANEOUS CASE
No. 24 MISC 000521 (DRR)
JANE BECKER and MAREN CHIU,
Plaintiffs,
v.
CITY OF SOMERVILLE ZONING BOARD OF
APPEALS; SUSAN FONTANO, ANNE
BROCKELMAN, BRIAN COOK, SISIA DAGLIAN,
ANN FULLERTON and ZACHARY ZAREMBA, as
members of the Somerville Zoning Board of Appeals
and not individually; and FIRST
CONGREGATIONAL CHURCH OF
SOMERVILLE; and SOMERVILLE HOMELESS
COALITION, INC.,
Defendants.
CORRECTED DECISION
Plaintiffs, Jane Becker and Maren Chiu (the “Plaintiffs”), challenge the Somerville
Building Inspector’s issuance of a building permit to First Congregational Church of Somerville
(“First Church”) authorizing the conversion of the ground floor of First Church’s building,
located at 89 College Avenue (the “Church Building”) into an emergency homeless shelter to be
2
operated by the Somerville Homeless Coalition, Inc. (the “Coalition”).1 After the City of
Somerville Zoning Board of Appeals (the “ZBA”) upheld the Building Inspector’s denial of
Plaintiffs’ request for zoning enforcement, Plaintiffs filed this appeal of the ZBA’s decision (the
“Decision”) under Chapter 40A, § 17.
For the reasons discussed below, I find and conclude that Plaintiff Jane Becker has
established standing to challenge the Decision, but uphold the Decision of the ZBA because
conversion of First Church’s ground floor to use as a homeless shelter is a religious use entitled
to the protections of G.L. c. 40A § 3 (the “Dover Amendment”).
PROCEDURAL HISTORY
On September 6, 2024, Plaintiffs filed their initial Complaint seeking annulment of the
building permit in a single count, appealing the ZBA’s Decision pursuant to Chapter 40A, §17.2
On October 17, 2024, Defendants filed a motion to dismiss the Complaint for lack of standing,
contending that the Plaintiffs had failed to allege sufficient aggrievement arising from operation
of the proposed homeless shelter to establish standing. After a hearing held on December 18,
2024, the court denied the motion to dismiss, instead affording Plaintiffs an opportunity to file an
1 First Church, the Coalition, and the ZBA are collectively referred to as “Defendants.”
2 A third plaintiff, Alan Ball, joined the initial Complaint and also the Amended Complaint, but on August 21, 2025,
the parties filed the Stipulation of Dismissal for Plaintiff Alan Ball ONLY, with Maren Chiu and Jane Becker
thereafter remaining as plaintiffs.
3
amended complaint to clarify and expand upon their allegations of harm arising from the
proposed homeless shelter.3 Plaintiffs filed an Amended Complaint on January 15, 2025.
After the close of discovery, an initial pretrial conference was held on June 11, 2025,
where the court set a briefing schedule for the Defendants’ five motions in limine. A hearing on
3 The docket issued following that hearing states, in part: Following hearing, court DENIED First Congregational
Church of Somerville and Somerville Homeless Coalition, Inc.'s Motion to Dismiss for Lack of Standing for the
reasons articulated in the opposition, on the record, and as follows: The Church and Coalitio n contend that the
plaintiffs have failed to sufficiently allege aggrievement, particularly under the heightened standard enacted by the
Affordable Homes Act for challenges to local approval. Section 17 of Chapter 40A now provides: "If the complaint
is filed by someone other than the original applicant, appellant or petitioner, then each plaintiff, whether or not
previously constituting parties in interest for notice purposes, shall also sufficiently allege and must plausibly
demonstrate that measurable injury, which is special and different to such plaintiff, to a private legal interest that
will likely flow from the decision through credible evidence." Abutters and other parties in interest are no longer
entitled to a presumption of aggrievement, but rathe r have the burden to demonstrate by credible evidence
measurable injury distinct from any harm to the broader community. While plaintiffs' counsel acknowledges that the
allegations of aggrievement set forth in Paragraph 28 of the Complaint are somewhat thi n, plaintiffs seek leave to
file an amended complaint to enhance those allegations. In support thereof, plaintiffs have filed the affidavit of Jane
Becker in which she articulates concerns about safety arising from the proposed shelter project, as well as increased
rodents, noise disruption, and loss of property value. Also filed are several police reports regarding incidents in
Davis Square, a report from the University of British Columbia concluding in part that property crime rates increase
in those areas where shelters for people experiencing homelessness are located, and a report from the City of New
York regarding the alleged connection between homeless shelters and a diminution in property values. While these
supplemental materials appear to be hearsay, they are not offered as evidence, but rather in support of plaintiffs'
allegation that there is credible evidence to support their request to file an amended complaint stating allegations
regarding safety and loss of property values arising from the pro posed shelter project. In considering a motion to
dismiss under Mass. R. Civ. P. 12(b)(6), "the allegations of the complaint, as well as such inferences as may be
drawn therefrom in the plaintiff's favor, are to be taken as true." Nader v. Citron, 372 Mass . 96, 98 (1977). The court
then determines "whether the allegations 'plausibly suggest' that the plaintiff is entitled to relief on that legal
claim . . . . The allegations must be more than 'mere labels and conclusions,' and must 'raise a right to relief above
the speculative level.'" Buffalo-Water 1, LLC v. Fidelity Real Estate, LLC, 481 Mass. 13, 17 (2018) (quotations and
citations omitted). I conclude that it is fair and equitable to afford plaintiffs an opportunity to file an amended
complaint to clarify and expand on their claims of aggrievement. I note that neither Alan Ball nor Maren Chiu filed
affidavits and instead appear to rely on Ms. Becker's affidavit and her allegations; they also appear to live quite a
distance from the Church. Because Section 17, as amended, now requires that each plaintiff must independently
satisfy the standard for aggrievement, Mr. Ball and Ms. Chiu will each need to plead their own alleged basis for
aggrievement. The amended complaint must also demonstrate that the harm alleged by each plaintiff is specific to
them and differs from any impact on the community at large and further demonstrate why any harm alleged is not de
minimis or speculative. Murchison v. Zoning Bd. of Appeals of Sherborn, 485 Mass. 209, 214 -215 (2020).
4
those motions was held on July 31, 2025. The motions were allowed in part and denied in part.
The court’s rulings appear in the docket and are summarized below:
First Church and the Coalition’s Motion in Limine No. 1 - Peter Clemons should be
precluded from testifying at trial because Plaintiffs did not disclose him as a possible witness in
response to Private Defendants’ interrogatories. First Church and the Coalition sought to
preclude the testimony of Peter Clemons because he had not been disclosed as a potential
witness in Plaintiffs’ answers to interrogatories. The court denied this motion, noting that Mr.
Clemons did not sell his property at 15 Kidder Avenue to his neighbor (Plaintiff Maren Chiu’s
husband) until April 23, 2025, and concluding that Plaintiffs had reasonably identified Mr.
Clemons as a witness on May 19, 2025, in their draft initial joint pre-trial conference
memorandum, just days after the close of discovery.
First Church and the Coalition’s Motion in Limine No. 2 - Clair Pagnano should be
precluded from testifying at trial because, as a nonparty, “the likely impact of the shelter on
herself and her property” is irrelevant to this proceeding. First Church and the Coalition sought
to preclude testimony from Clair Pagnano, who lives next door to Jane Becker. The court denied
the motion, allowing Ms. Pagnano’s testimony not to show the impact of the proposed shelter on
Ms. Pagnano’s property, but rather to show impacts on Jane Becker’s property.
First Church and the Coalition’s Motion in Limine No. 3 - Plaintiffs’ lay witnesses
should be precluded from testifying about perceived safety, noise, rodent and trash and property
valuation concerns that can only be established through expert testimony. 4 First Church and the
Coalition sought to preclude lay witness testimony about safety, noise, rodent and trash and
property valuation concerns. The court denied that motion, with proposed lay witness testimony
to be heard de bene. As stated in Harris-Lewis v. Mudge, "it is up to the judge's sound discretion
whether evidence should be admitted de bene, subject to later motion to strike. See Ellis v.
Thayer, 183 Mass. 309, 310-311 (1903); R.L. Polk & Co. v. Living Aluminum Corp., 1 Mass.
App. Ct. 170, 172 (1973)." Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 (2004).
4 Counsel argued Motion in Limine No. 3 simultaneously with Motion in Limine No. 5.- First Church and the
Coalition’s Motion in Limine No. 5 - Plaintiffs should be precluded from offering testimony on issues pertaining to
aggrievement that are not within the scope of concern of the Zoning Act or the Somerville Zoning Ordinance . Both
motions were decided together.
5
First Church and the Coalition’s Motion in Limine No. 4 - Plaintiffs should be precluded
from offering into evidence the journal article, out-of-state report, and hearsay contained within
the police reports. This motion was allowed with no objection from Plaintiffs.5
5 The first proposed exhibit was a pre-print of the article titled Effect of Emergency Winter Homeless Shelters on
Property Crime in the Journal of Experimental Criminology (the "Journal Article") and the New York Independent
Budget Office fiscal brief titled Close to Home: Does Proximity to a Homeless Shelter Affect Residential Property
Values in Manhattan? (the "Fiscal Brief"). The Journal Article analyzed the effect of emergency winter homeless
shelters on property crimes in nearby communities every winter between 2009 and 2016 in Vancouver. Journal
articles are hearsay unless accompanied by evidence demonstrating that they are a reliable authority. Kace v . Liang,
472 Mass. 630, 643 (2015); see also Mayer v. Mental Health Ass'n, 29 LCR 519 (2021) (Misc. Case No. 19 MISC
000557) (Roberts, J.) (hundreds of pages of articles inadmissible in absence of exception to hearsay rule). An article
may be established as a reliable authority by testimony or admission of testifying witness, other expert testimony, or
judicial notice. Kace, 472 Mass. at 643; Mass. Guide to Evidence, §803(18)(B). Beyond Plaintiffs' failure to clearly
explain the relevance of a study concerning emergency winter homeless shelters in Vancouver, British Columbia,
Canada relative to the neighborhood and circumstances of the proposed project here at issue . As noted in the docket,
the court concluded that Plaintiffs failed to identify an expert witness, such as an author of the article, to testify as to
the reliability and applicability of the Journal Article. Without evidence supporting the Journal Article's reliability or
providing the defendants with an opportunity for cross-examination, the court concluded the Journal Article may not
be introduced into evidence. As to the second proposed exhibit, a fiscal brief from the New York City Independent
Budget Office, analyzing data collected by municipal departments between 2010 and 2018. The court concluded that
Expert testimony not available to establish the reliability of that analysis. G. L. c. 233, § 78; Kace, 472 Mass. at 643.
Plaintiffs failed to disclose an expert witness who could be available to explain how the data was compiled and
analyzed, or how and why the analysis might be applicable to the neighborhood and proposed project here at issue.
Nor is such an expert available for cross-examination. The court concluded this proposed study was not sufficiently
reliable for admission into evidence. Commonwealth v. Steeves, 490 Mass. 270, 281 (2022).
Defendants sought to exclude three Somerville Police Department reports, arguing the police reports were hearsay
and also irrelevant as to whether there will be similar incidents at or near the proposed homeless shelter at the First
Church reports (prepared by Officer Daniel Haley for an October 10, 2024, arrest, Detective Joseph Moreira for an
October 1, 2024, arrest, and Detective Fernando Cicerone for a September 28, 2024, arrest ). Under Massachusetts
evidentiary standards, "a statement that (1) the declarant does not make while testifying at the current trial or
hearing, and (2) a party offers in evidence to prove the truth of the matter asserted in the statement" constitutes
hearsay. Mass. Guide to Evidence, § 801. Hearsay is inadmissible unless an exception is provided by (a) case law,
(b) a statute, or (c) a rule prescribed by the Supreme Judicial Court. Mass. Guide to Evidence, § 802. The purpose of
the hearsay rule is to prevent evidence by those not present at trial by guarding "against the admission of unsworn
testimony presented without the opportunity for cross-examination of the declarant, wherein the reliability and
accuracy of the statement could be tested." Steeves, 490 Mass. at 281. Accordingly, "exceptions to the rule against
hearsay must be narrowly crafted so as not to frustrate the purpose of the rule itself." Id. Police reports are generally
admissible as a business record hearsay exception. Commonwealth v. Wa lker, 379 Mass. 297, 302 (1979); Carey v.
New Yorker of Worcester, Inc., 355 Mass. 450, 453 (1969). The court denied the motion in limine as to firsthand,
factual observations contained in the police reports. With respect to the Private Defendants' hearsay objection, the
reporting officers' firsthand, factual observations as recorded in their contemporaneous reports are admissible.
Adoption a logical connection between the topic of the Journal Article and the church -operated shelter here, and
without of Paula, 420 Mass. 716, 727 (1995). The foundation for the admissibility of a business record does not
6
On August 20, 2025, the court conducted a view of the Church Building, the Plaintiffs’
properties, the surrounding neighborhood, the nearby site of the Coalition’s existing shelter, and
Davis Square. Trial was held on August 26 and 27, 2025, in person. Court confirmed that there
were no objections to the view and the issues for trial: (1) Whether Plaintiffs are "persons"
aggrieved for purposes of G.L. c 40A § 17, with standing to pursue this appeal; and (2) Whether
the shelter is religiously significant and the primary and dominant purpose of the Church
remains religious to support that religious use and is thus subject to the Dover Amendment. In
their Joint Pre-Trial Conference Memorandum, the parties stipulated to 31 Agreed Upon Facts
in the Pre-Trial Conference Memorandum. Exhibits 1-29 were admitted. See Final Exhibits
Index, filed on September 2, 2025, together with Exhibits 28 and 29.
The court heard testimony from Jane Becker (“Becker”), Maren Chiu (“Chiu”), Peter
Clemons, Clair Pagnano, Michael Libby, Reverand Jenn Macy (“Rev. Macy”), Hannah Ferello,
and Brett Smith. At the close of Plaintiffs’ case-in-chief, Defendants made an oral motion for
directed verdict on the basis of standing. The court concluded that Plaintiffs had introduced
sufficient evidence from which a reasonable inference could be made that at least one of them
was aggrieved by issuance of the building permit.
need to be established through the testimony of the preparer. McLaughlin v. CGU Ins. Co., 445 Mass. 815, 819
(2006). Rather, the absence of testimony from the preparers is a matter which will affect the weight of such records.
Wingate v. Emery Air Freight Corp., 385 Mass. 402, 406 (1982). The court allowed the motion in limine with
respect to the recounted statements of third parties or observations of third parties included within the Police
Reports, which those statements are inadmissible hearsay. The docket further noted that because it is was far from
clear how the three incidents at issue in the police reports was relevant to the proposed project or the Plaintiffs'
aggrievement, the police reports would be admitted conditionally, with a determination as to relevance to be
determined in the context of trial.
7
On October 17, 2025, the parties filed proposed Post-Trial Briefs, with proposed findings
of fact and rulings of law. Closing arguments were held in person on November 17, 2025, after
which time the trial transcripts were delivered and the court took this matter under advisement.
FACTS
Based on my view of the properties, the stipulated facts, the exhibits, the testimony at
trial and my assessment of the credibility of the witnesses at trial, I make the following findings
of fact:
The Parties & Their Properties
1. Plaintiff Becker owns and resides at 7 Francesca Avenue, directly across the street
from First Church’s side entrance on Francesca Avenue. She has lived there since 1989
and now lives there alone. Her property is almost at the corner of College Avenue and a
few blocks from Davis Square. Tr. Vol I., pp. 102-103.
2. Plaintiff Chiu owns and resides in property improved with a two-family house at 17
Kidder Avenue. She lives with her husband and teenage daughter on the second and third
floors. Her adult sons live on the first floor. The Chius purchased this property in 1995. This
property is about three houses away from College Avenue. Kidder Avenue runs parallel
with Francesca Avenue and is the next block further away from Davis Square as one
leaves the Square and passes by First Church. Tr. Vol I., pp. 31-32.
3. Chiu and her husband also own a three-family house located at 24-26 Francesca
Avenue, directly behind 17 Kidder Avenue. 24-26 Francesca Avenue is rented, with three
separate apartments each currently occupied by tenants. The Chius rent one of the units to
8
an Afghan refugee family at substantially below market rent. Tr. Vol I., p. 32-33.
4. The ZBA is a duly authorized municipal body with a principal place of business at
93 Highland Avenue, Somerville. Its members are Susan Fontano, Anne Brockelman, Brian
Cook, Sisia Dagilan, Ann Fullerton, and Zachary Zaremba. Statement of Agreed Facts in Joint
Pre-Trial Conference Memorandum dated June 4, 2025 (“SOF”) ¶ 4.
5. The ZBA is the decision-making authority for administrative appeals from the
issuance of building permits, pursuant to Section 15.5.2 of the Zoning Ordinance (the
“Ordinance”). SOF ¶ 9.
6. First Church is a religious corporation with a principal office at 89 College Avenue.
First Church owns the Church Building located at 89 College Avenue, pursuant to a deed
recorded in the Middlesex (South) Registry of Deeds (the “Registry”) at Book 10529, Page
278. SOF ¶¶ 6, 10.
7. First Church owns a parsonage on College Avenue, adjacent to the Church
Building, pursuant to a deed recorded in Registry at Book 10529, Page 278.
8. The Coalition is a Massachusetts nonprofit corporation with a principal office at 1
Davis Square in Somerville. SOF ¶ 7.
The Church Building and the Neighborhood
9. The Church Building is located on a corner lot with its front door located on
College Avenue and a side entrance on Francesa Avenue. The main entrance faces College
Avenue and is accessed through a yellow door located at the top of a set of stairs. A
separate entrance, also on College Avenue, leads to the second floor Sanctuary. There is a
small front lawn. A third entrance further back from College Avenue with a red door (and
9
further away from Francesca Avenue) leads to utility areas and the ground floor. Tr. Ex. 22A.
10. The side entrance to the Church Building, located on Francesa Avenue, is
accessible to people with disabilities because it is at ground level, opening directly into
Duhamel Hall, a large open finished area where the shelter is proposed to be located and
which First Church now uses for gatherings. Tr. Ex. 22A, Tr. Ex. 22B.
11. A bus stop for routes numbered 89, 94, and 96 is located near the main entrance
to the Church Building on College Avenue. View observations.
12. College Avenue is a busy street with heavy traffic, with one lane of traffic
moving in each direction. View observations.
13. The Church Building is a short walk from Davis Square, which is a busy,
commercial center with restaurants, a movie theater, shops, and the like. Along College
Avenue, there are multi-family residential buildings, small business offices, and several
other churches/places of worship. Tr. Ex. 22F.
14. As one heads out of Davis Square toward Tufts University, the Church Building
is on the right. The quiet neighborhood near the Church Building, leading away from
College Avenue, consists primarily of single, two, and three-family homes. View
observations.
15. Statue Park is located in the center of Davis Square, at the intersection of several
streets, with substantial vehicular and pedestrian traffic. Statue Park is roughly two and a
half blocks from the Church Building. It consists of a brick plaza, surrounded by stores and
restaurants, with statutes of life-sized human figures (hence the name, Statue Park). Public
benches and tables, as well as trees, are located throughout the brick plaza. Tr. Ex. 22F.
10
16. An entrance to the Davis Square MBTA Redline Station is located on College
Avenue, across the street from Statue Park and on the same side of College Avenue as the
Church Building. There is also an adjacent bus stop. View observations.
The Coalition, Its Work in Somerville, & the Existing Shelter
17. Michael Libby (“Libby”) is the Executive Director of the Coalition. He has held
different positions with the Coalition, beginning as a case manager in 2000. In 2002, he
became the direct manager of the Coalition’s existing individual shelter at 64 College
Avenue. Since that time, his responsibilities have grown, but throughout he has continued
his role as the direct manager of the existing shelter. He holds a master’s degree in social
work from Salem State University. He testified as to the Coalition’s work in Somerville
and the existing shelter. Tr. Vol I., pp. 193-194.
18. The Coalition’s mission is to serve unsheltered individuals, those at risk, and
food deprived individuals. The Coalition provides street outreach, physical and mental
health services, support, food, addiction prevention services, and supportive permanent
housing. It has an Engagement Center in Davis Square with computers that individuals can
use to find jobs and housing opportunities.
19. The Coalition currently operates a homeless shelter in another church building at 64
College Avenue, where it has operated for over 40 years. The existing shelter is located in the
basement of the Holy Bible Baptist Church, roughly one block from First Church, on the other
side of College Avenue and closer to Davis Square. The existing shelter has sixteen (16)
beds, housing guests from 4:00 P.M. to 8:00 A.M., seven days a week. Libby testified that
the current shelter does not operate as a so-called night-to-night shelter, because there is a
11
fair amount of consistency in its guests and low turnover from day to day and week to
week. The average stay for a guest is nine (9) months.
20. The existing shelter is not accessible to people with disabilities. Tr. Ex. 22E.
21. Coalition’s outreach teams identify unsheltered individuals who may be
candidates to be guests at the existing shelter. The outreach team does so by becoming
acquainted with unsheltered individuals in Somerville, identifying those who have an
interest in becoming guests, and evaluating those who have an ability to function properly
in a congregate living environment. When an opening occurs at the existing shelter, the
outreach teams assist potential guests with the application process. Tr. Vol I., pp. 203-
204.
22. The Coalition staffs the existing shelter with both full and part-time employees
during operating hours. There are at least two employees on site during operating hours.
Currently, five to six paid staff are assigned to the shelter, including a full -time manager,
with volunteers and interns providing additional assistance. These numbers reflect
increased staffing levels in anticipation of increased capacity at the proposed new shelter
location and are proposed to remain in place at the new shelter location. Tr. Vol I., pp.
252-253.
23. Shelter staff receive training in subjects such as CPR, first aid, de-escalation
(how to intervene in an emotional situation to decrease, rather than increase emotions),
trauma-informed care (care that considers physical and psychological traumas that guests
may have experienced), motivational interviewing (an approach that seeks to elicit a desire
for change by focusing on positive outcomes), harm reduction (an approach that helps
12
people understand the benefits of making a positive change in lifestyle), and ethical
conduct. Tr. Vol I., p. 255.
24. The existing shelter provides guests with a bed, linens, shower facilities,
laundry facilities, bathrooms, a kitchen with food and meals, and a common area with
television. Shelter staff also provide instruction in basic life skills, such as how to set and
stick to a schedule, how to cook safely, and how to navigate personal relationships. Shelter
staff also provide companionship. Tr. Vol I., p. 248-249.
25. The Coalition requires that shelter guests follow their Rules of Conduct. Those
rules require, for example, that: guests must treat other guests and people in the
neighborhood with respect; guests may not loiter on or offsite, nor trespass on
neighborhood property; and guests may not bring illegal drugs or drug paraphernalia to the
shelter. Violation of the Rules of Conduct may result in discharge. Libby estimated that,
on average, the Coalition discharges approximately three (3) guests each year from its
existing shelter. Tr. Vol I., pp. 212-216.
26. The existing shelter has been subject to the entrance requirements of a “low-
barrier” shelter since approximately 2023. “Low-barrier” means that the Coalition cannot
deny entry to a shelter applicant on the basis of a history of drug addiction, mental health
conditions, or prior convictions, in accordance with its contracts with the Commonwealth.
Tr. Vol I., pp. 196-197.
27. Any guest who is required to register as a sex offender must both register and
report that status to the shelter staff.
First Church & the Congregation
13
28. First Church is a member of the United Church of Christ. The United Church of
Christ operates both regionally and nationally, but members of each congregation make
decisions and govern their local churches. As Lead Pastor of First Church, Rev. Macy is the head
of staff, provides spiritual leadership, and assists lay leaders who hold the centralized power. The
highest authority in the United Church of Christ is the local congregation’s decision. The
decision of each local church is final. Tr. Vol II., pp. 35-36.
29. Congregation members elect a leadership team to make decisions in between
meetings of the congregation, as well as a diaconate for spiritual leadership. The diaconate is a
group of lay leaders who assist with worship and help determine the direction of the
congregation when there is a question requiring deep consideration. Tr. Vol II., pp. 36.37.
30. The elected leader of the congregation is called the Moderator, currently Hannah
Ferello (“Ferello”), who has held that position since June 2022. The Moderator is the chair of the
leadership team and serves as a volunteer. The leadership team also includes an elected Treasurer
responsible for finances and bookkeeping, also a volunteer. Brett Smith (“Smith”) is now the
Treasurer. Tr. Vol II., pp. 58, 114.
31. Prior to becoming formal members of the congregation, individuals attend courses
and participate in a formal ceremony. There are approximately two hundred ten (210) official
members of First Church’s congregation. Non-members are welcome to attend services and
participate in the community. Tr. Vol II., p. 43.
First Church’s Discernment Process
32. In the fall of 2023, First Church undertook a discernment process. A discernment
process, as described by Rev. Macy and First Church’s witnesses, means going to God in prayer,
consulting scripture, and gathering in community to determine what God might be calling the
14
congregation to do. This included a so-called visioning process where the membership gathered
to consider questions such as “Who are we now?” and “Who is God calling us to be?” Tr. Vol
II., p. 40.
33. The result of the discernment process was a Vision Statement, which guided First
Church’s decision-making in the years ahead. The Vision Statement is as follows: “First Church
Somerville lives to make God’s expansive love and justice real through radically inclusive
sanctuary, authentic connection, spiritual exploration, and transformative community
engagement.” Tr. Vol II., p. 40.
The Relationship Between First Church & the Coalition
34. The relationship between Coalition and First Church predates the Coalition’s
efforts to find a new shelter location. For more than twenty-five (25) years, First Church
has hosted the Coalition’s Monday night community meal program. In addition, First
Church has hosted an early Thanksgiving dinner for the Coalition’s clients, where First
Church provides a blessing. First Church’s Justice and Outreach Committee has
volunteered in the Coalition’s food pantry, has hosted diaper drives, toiletry drives,
incontinence drives, and donates to the food pantry. Tr. Vol II., pp. 55, 57; Tr. Vol I., p.
269.
35. In the summer of 2022, following First Church’s visioning process, First
Church and the Coalition began discussing additional ways for First Church to further
engage with the Coalition. Initially, Rev. Macy suggested that the Coalition consider the
parsonage building as shelter. After conducting a site visit, however, the Coalition
determined that the parsonage was not suitable for a shelter because it could not easily be
15
made accessible for people with disabilities. Tr. Vol II., pp. 61-62.
36. In August 2023, Libby asked Rev. Macy whether First Church would consider
allowing the Coalition to use the ground floor of the Church Building as a shelter. Rev.
Macy discussed the idea with the leadership team and responded that First Church would be
open to the idea but needed to go through a discernment process to deeply consider scripture
and whether God was calling First Church to this task. Tr. Vol II., p. 63.
37. On September 12, 2023, First Church formed the “Discernment Task Force.” The
Discernment Task Force was charged with leading the Congregation to discern whether hosting a
homeless shelter within the Church Building was God’s work and, if so, whether it was First
Church’s work to do that work. The Discernment Task Force also considered how First Church
and a shelter could share the Church Building. A series of discernment meetings were held for
congregation members. Tr. Vol II., p. 70.
38. On September 20, 2023, via email, First Church informed members of the congregation
of the possible partnership with the Coalition. A meeting for congregation members was held on
September 24, 2023. Those in attendance discussed whether the shelter was something that God
was calling the congregation to do. An informal poll of those in attendance unanimously
answered “Yes.” Tr. Ex. 11.
39. In September 2023, Rev. Macy and Libby asked Somerville’s Inspectional
Services Department (“ISD”) to evaluate whether the ground floor of the Church Building
could serve as a shelter. ISD gave them a green light, so long as the Church Building
remained primarily for religious use and subject to certain life safety work, such as adding
showers. Following this inspection, Libby sent First Church a proposal for First Church to
host the shelter.
16
40. In December 2023, Libby informed First Church that he had become aware of an
opportunity to apply for Commonwealth funding to renovate the Church Building for the
proposed shelter.
41. In January 2024, First Church surveyed its members about hosting a proposed shelter
and received fifty-six (56) responses. Those responses indicated overwhelming support for
hosting the shelter, in furtherance of First Church’s Christian calling and its Vision Statement,
although there were some concerns about change and logistics. Tr. Ex. 10.
42. On January 14, 2024, First Church’s leadership team convened a listening session for
congregation members in advance of an upcoming discernment meeting, which was called for
January 21, 2024. An informal poll of those in attendance at the listening session affirmed First
Church’s calling to host the shelter and partner with the Coalition (by a vote of 37 yes, 0 no, and
2 abstentions). See Meeting Minutes, Tr. Ex. 11.
43. In February 2024, the Coalition received a grant from the Commonwealth to fund
renovations for the shelter in the amount of three hundred thousand dollars ($300,000.00). First
Church sped up its discernment process to try to accommodate the grant. Tr. Vol II., p. 9.
44. On February 13, 2024, First Church formed a Negotiation Task Force to negotiate the
terms of a lease with the Coalition and the logistics of sharing space.
45. On February 25, 2024, First Church’s leadership team hosted an information session
for congregation members where Libby answered questions about the proposed shelter. First
Church also hosted a dinner with its leadership team and the Coalition Board to promote good
will and their shared mission. Tr. Vol II., pp. 131-133.
46. On March 17, 2024, First Church convened an official congregation Meeting to
discuss the proposed shelter. A vote was taken on motion of the leadership team: “The First
17
congregational Church of Somerville enters into a partnership and lease agreement with
Somerville Homeless Coalition to rent portions of our building for use as a shelter for the
unhoused of Somerville.” By a vote of 41 to 0, the congregation voted to host the shelter. As
sincerely described by Rev. Macy, Ferello, and Smith, this unanimous vote was a joyful
moment for the congregation. Tr. Exs. 11, 13.
47. First Church’s decision to host the shelter was grounded in its religious beliefs as
explored during the Discernment Process and guided by encouragement from the national United
Church of Christ to engage in radically inclusive Christianity. Rev. Macy, Ferello, and Smith,
who actively participated in and led the discernment process, provided robust scriptural support
in both the Old and New Testament for housing the unsheltered and caring for strangers. These
scriptural references include, among others:
(a) Isaiah 58:7. Is it not to share your bread with the hungry and bring the homeless poor into
your house; when you see the naked, to cover then and not to hide yourself from your
own kin?
(b) Hebrews 13:2. Do not neglect to show hospitality to strangers, for by doing that some
have entertained angels without knowing it.
(c) Acts 4:34;35. There was not a needy person among them, for as many as owned lands of
houses sold them and brought the proceeds of what was sold. They laid it at the apostles’
feet, and it was distributed to each as any had need.
Tr. Ex. 1.
48. Neither First Church, nor the Coalition informed the neighbors about the proposed
shelter while all the above activities were ongoing.
18
The Lease
49. The Coalition and First Church entered into a five-year lease pursuant to which
the Coalition agreed to pay First Church an initial base rent of six thousand five hundred
dollars ($6,500) per month ($78,000.00/year) in exchange for the use of the majority of the
ground floor of the Church Building. Annual rent increases in ensuing years, rising to
$7,315.81/month for the fifth year. This rent constitutes approximately twenty percent
(20%) of First Church’s annual budget. The lease also provides the Coalition with an
option for an additional five-year term. Tr. Ex. 8.
50. The lease was entered into on June 16, 2024, with rent commencing on July 1, 2024.
The lease includes terms for shared space and expenses. For instance, the Coalition is responsible
for managing trash removal and pest control and First Church and the Coalition share internet
services. Tr. Vol II., pp. 161,166.
51. The Coalition continues to rent pursuant to Article 3 of the lease. However, the
Collation has not paid “additional rent” due under the lease (related to increased utility bills). Tr.
Vol II., pp. 165-167.
52. Although the proposed shelter is not in operation, renovations to the Church Building
have begun. First Church has used the rent payments to fund construction costs associated with
relocating some church functions from the ground floor to the second floor.
53. First Church has assets available in the event its annual operating costs exceed
revenues; however, those assets are limited, consisting of approximately $180,000 in cash
reserves and an endowment of an endowment of $150,000. Tr. Ex. 21; Tr. Vol II., pp. 201-
204.
54. Foregoing the Coalition’s rent would have presented a challenge, requiring the
19
congregation to make some changes. For instance, without the Coalition’s rental income,
First Church might have to consider reducing its annual expenses, including possibly
eliminating its pastoral residency program. Tr. Vol II., pp. 76-77, 201-211.
55. Based on the testimony of Rev. Macy, Ferello, and Smith and the lengthy
discernment process undertaken by the congregation, I find that rent was not the
motivation for First Church’s decision to enter into the lease agreement with the Coalition.
Rather, First Church entered into the lease with the Coalition in order to fulfill the
congregation’s religious mission. See e.g. Tr. Vol II, pp. 72-84, 207-211.
56. The primary focus of the lease negotiations was not on the dollar value of the
rent, but on matters regarding the sharing of space and logistics. Tr. Vol II., pp. 163-164.
57. First Church’s Justice and Outreach Committee, with help from the
congregation, donated ten thousand dollars ($10,000.00) to the Coalition in 2024 and
2025, while the lease was in effect, but the shelter was not in full operation. Tr. Vol II., p.
184.
Proposed Shelter Operations
58. The primary entrance for the proposed shelter is located on College Avenue, with
steps leading down to Duhamel Hall on the ground floor. Tr. Ex. 22B. The side entrance is at
ground level, opening directly into Duhamel Hall. Duhamel Hall will be used by shelter
guests to socialize, eat and relax. Dormitory rooms lead off of Duhamel Hall, as does a kitchen,
bathrooms, laundry area, and office. The side entrance, located on Francesa Avenue, is
accessible to people with disabilities.
59. The proposed shelter will host up to twenty-six (26) individuals. The shelter
20
will operate as a so-called “low-barrier” shelter (like the existing shelter), as required by
the Coalition’s contracts with the Commonwealth. Following meetings with some of the
neighbors, Libby approached the Commonwealth to request some flexibility around the
requirement to admit registered sex offenders, but that request was denied. Libby agreed
that the neighbors’ concerns about the Coalition not being able to deny entrance to those
with criminal records and registered sex offenders were reasonable and also
acknowledged that Becker would be more impacted by shelter operations than those
living farther away. Tr. Vol. I, p. 215-216.
60. Like the existing shelter, guests will be permitted to stay in the shelter between
4:00P.M. and 8:00A.M. the following morning. Guests must leave the shelter between
8:00A.M. and 4:00P.M. Tr. Vol I., p. 214.
61. The proposed shelter will be the only fully accessible shelter in Somerville.
62. At the time of the View, renovations were underway in the Church Building.
Three dormitory rooms had been readied, with mattresses wrapped in plastic along the walls.
See Tr. Ex. 3; Tr. Ex. 22B.
63. The Coalition will ensure that staff are on-site when the shelter is open. The
staffing team includes one Full-Time Manager, one Housing Search Case Manager, and
five (plus or minus) Full-Time Equivalent Direct Care Staff Members, as well as Director
oversight. Tr. Vol I., p. 252-256.
64. The Coalition has developed written procedures for operating the proposed
shelter, entitled Adult Shelter Operations Document (the “Operations Document”). The
Operations Document is twenty-one (21) pages long and includes detailed and
21
comprehensive information about both the Coalition and the proposed new shelter. The
Operations Document addresses why the shelter is moving, the project timeline, client
demographics, and neighborhood safety, client (or guest) conduct, shelter operations, and
building maintenance and management. It also includes a communications plan and phone
tree in the event neighbors have an issue with shelter operations. This Operations
Document reflects thoughtful effort on the part of the Coalition about how to smoothly
operate the shelter to minimize impact on the neighbors. Tr. Ex. 7.
65. The Operations Document includes comprehensive and detailed policies and
procedures about Client Conduct, such as loitering. Tr. Ex. 7, Topics 11-13. For instance:
(a) Loitering is not allowed outside the immediate shelter premises or in any areas not
designated for shelter use;
(b) Guests that loiter outside designated areas will be approached by staff and informed
that this behavior is not allowed. Guests that do not change this behavior may face
discharge from the shelter;
(c) Guests are not allowed to enter unauthorized areas of the shelter property or private
property in the neighborhood; and
(d) Trespassing on neighboring properties or in restricted areas will result in guests
being held accountable, including warnings or discharge from the shelter,
depending upon the severity.
66. The Operations Document details behaviors that may result in restriction from
the shelter, such as threats and threatening behaviors, aggressive and intimidating
behavior, harassment, illegal activity, stealing and damaging property, possession of a
22
weapon or use of an object to do harm, possession or use of drugs/alcohol or related
paraphernalia in the shelter, and trespassing. Tr. Ex. 7.
67. The Operations Document also includes a Communication Plan in the event
neighbors have issues with the shelter, both routine and urgent. This plan includes an
email address for complaints or questions, a telephone number during hours that the
shelter is open (4:00 p.m. to 8:00 a.m.), and a second telephone number when the shelter is
closed. The Coalition encourages neighbors to contact the Somerville Police Department if
there is a significant and imminent safety issue in the neighborhood. Tr. Ex. 7, Topic 17.
68. The shelter will use a warning system to inform guests that they are not
adhering to the rules, policies, and general expectations of the shelter program. Shelter
staff are trained to enforce the policies and procedures. Regular guest meetings are held to
address the guest community collectively about any safety issues or other concerns.
69. Libby acknowledged that in the past there have been instances of guests
engaging in threatening behavior and other behavior that violates the policies and
procedures. In the past few years, Libby testified that approximately three times a year
shelter a guest has been immediately discharged because of a rule violation and about nine
times a year shelter guests have been discharged after receiving a number of warnings. Tr.
Vol I., pp. 209-213.
70. Libby also testified to three incidents where shelter guests caused problems for
area residents. In each of those situations, a guest was speaking loudly outside of the
existing shelter eliciting complaints from neighbors; the guests were instructed not to do
this again. Tr. Vol I., pp. 211-212.
23
71. Libby testified credibly that he is unaware of any incident where a shelter guest
committed a property crime relative to a neighbor. Tr. Vol II., pp. 17-18.
Shared Use of the Church Building & Church Involvement in the Shelter
72. First Church intends to share use of Duhamel Hall, throughout the Coalition’s
lease term. First Church will continue to use the large open space and its tables and chairs
for social events and gatherings. A kitchen, an office, laundry, and bathrooms (three toilets
and three showers in two rooms), are also located on the ground floor and will also be
shared. Both First Church and the Coalition will use the ground floor office equipment,
such as the copier. Tr. Ex. 22B.
73. Some space on the ground floor is allocated exclusively for shelter use,
specifically three dormitory rooms with bunk beds and two non-bunk beds.
74. The dormitory rooms were previously used by First Church as a nursery,
chapel, and an office for Rev. Macy. Renovations to the second floor have been made so
that these functions can move upstairs. See Tr. Ex. 3.
75. The second floor of the Church Building will be used only by First Church.
First Church’s sanctuary is located on the second floor, as is Rev. Macy’s office, the
nursery, and a library/meeting room. A bathroom on the second floor will be renovated for
wheelchair accessibility. Shelter guests will have access to the second floor only if they
are participating in worship services. Tr. Ex. 22C.
76. The Coalition has a contract with a professional trash removal company to
serve the shelter and intends to comply with all City ordinances with respect to trash
removal and management. Coalition staff will be responsible for making sure the Church
24
property remains clean and have committed to regular inspections of the property to find
and remove any cigarette butts, discarded needles, trash, and the like. The Coalition has
also engaged a pest control company. Tr. Ex. 7, Topics 19-22.
77. First Church intends to develop opportunities for its members to volunteer and
engage with shelter guests. First Church envisions that its members will engage with and
support shelter guests and staff. For instance, First Church envisions that its members will
provide spiritual support and companionship, as well as material support such cooking meals.
However, First Church’s does not concern itself with nor require that guests convert or
participate in First Church’s services. Tr. Vol II., pp. 16-17, 53-54.
Davis Square
78. All witnesses agreed that there has been an increase in the number of unhoused
people in Davis Square in the past few years. According to the Coalition’s annual survey
of homelessness, conducted pursuant to federal regulations, the incidence of homelessness
in Somerville as a whole quadrupled from January 2023 to January 2024 (increasing from
nine unsheltered people to approximately 35 to 40 unsheltered people).
79. In the fall of 2024, with the mayor and Chief of Police in attendance, the City of
Somerville held a community meeting to discuss homelessness and crime reports in Davis
Square. Tr. Vol I., p. 112.
80. I credit Libby’s testimony that not all of the unhoused individuals who frequent
Davis Square are guests at the existing shelter. Rather, unhoused individuals come to
Davis Square for a variety of reasons, such as to visit their friends or visit the Coalition’s
Engagement Center. Also, an MBTA Redline station is located in Davis Square, as is a
25
bus station.
The Shelter is Announced to the Neighbors
81. Chiu previously had a relationship with both First Church and the Coalition.
She attended services at First Church beginning in about 2005 or 2006, but stopped
attending services around 2018 when the former pastor departed. Chiu and her mother-in-
law were active with First Church, volunteering in the nursery and with the meals
program. In addition, Chiu and her husband have supported the Coalition since 2013,
helped plan the gala fundraiser, organized hygiene and clothing drives, and made
substantial annual donations to the Coalition (totaling at least $50,000.00). Tr. Vol I., pp.
34-37.
82. Despite her connections to both First Church and the Coalition, Chiu first
learned that the Coalition planned to move into the Church Building on June 14, 2024,
when the Coalition sent a group email stating that construction would begin for a new
shelter at the Church Building on the following Monday. Chiu was upset that both First
Church and the Coalition had chosen not to involve her or the neighborhood in the
decision to relocate the shelter, particularly given her long-standing support for both
organizations. It was particularly upsetting to Chiu that she had attended a Coalition
dinner party with Libby in March where there was no mention of the move. Tr. Vol I., pp.
38-41.
83. Also in June, 2024, First Church and the Coalition sent a letter to area residents
advising that the Coalition’s shelter was relocating to the Church Building and expanding
to address the “growing number” of homeless individuals in Somerville. Tr. Ex. 6.
26
84. Becker learned about the proposed shelter when a letter was slipped through her
door in June 2024. Like Chiu, Becker was surprised that neither the Coalition nor First
Church reached out to inform the neighbors of the new shelter location until a deal had
been consummated and a building permit had been obtained, particularly since other
projects in the neighborhood had been the subject of meetings for community input prior
to decisions being made and because she and her family had a good relationship with prior
pastors at First Church. She has also donated to the Coalition. Tr. Exs. 6, 22D.
85. On June 17, 2024, Chiu responded to the email and asked that the Coalition
speak with the neighbors of First Church. Chiu, Becker, and others, attended three
community meetings to discuss the new shelter. Becker testified that although she
appreciated these meetings, she continued to have concerns about the proximity of the
proposed shelter. Dissatisfied with the level of communication from First Church and the
Coalition, Chiu joined with a group of other neighbors to challenge the building permit.
Tr. Vol I., pp. 45-48.
The Plaintiffs’ Objections to the Shelter
86. Chiu and Becker testified sincerely that the reason they oppose the proposed
shelter at First Church is because of its “low-barrier” status. They would not oppose First
Church’s hosting a shelter for families, elders, or women. Tr. Vol I., p. 50.
87. Based on personal observations, Chiu worries that locating the low-barrier
shelter at First Church will make her neighborhood less safe. Specifically, she credibly
testified about drug paraphernalia in the immediate vicinity of her home and along College
Avenue as it leads to Davis Square. Chiu regularly walks to Davis Square from her home
27
and observes loitering, drug use, and drug paraphernalia outside of the existing shelter at
64 College Avenue. She has also observed needles outside of the Church Building. Libby,
on the other hand, testified credibly that he had never observed drug paraphernalia outside
the existing shelter. Tr. Vol I., p. 265. Given this conflicting testimony, it is unclear
whether the drug paraphernalia occasionally observed by Chiu and the other neighbors
derived from guests of the existing shelter, from other visitors to Davis Square, or from
community members.
88. Chiu’s concern about diminished safety arising from shelter operations at the
Church Building was largely speculative, reflecting an unsupported assumption that
shelter guests were involved in certain unwelcome events in and around Davis Square and
near the existing shelter. For instance, Chiu described one particular person who she
observed to be regularly loitering out front the existing church, but later acknowledged on
cross-examination that she was unaware that this person was not a guest of the shelter
(rather the individual may have had a relationship with the host church). Likewise, while
Chiu credibly testified about an unpleasant experience in Davis Square when an individual
threw a book at her while she was playing with a band, it is unclear whether that
individual had a connection with the existing shelter. Tr. Vol I., p. 67.
89. Chiu also expressed concern that the proposed shelter would generate noise
related to anticipated additional emergency vehicles. At present, Chiu hears emergency
vehicles on College Avenue about three to four times per day. Tr. Vol I., pp. 82-83.
90. Chiu also expressed concern about a diminution of property value related to the
proposed shelter at First Church. This concern was based on her own sense that people do
28
not want to live next door to a homeless shelter. This stated concern, however, is undercut
by the fact that after learning of the proposed shelter, Chiu and her husband agreed to
purchase a third property in the neighborhood.
91. Because Chiu’s observations about loitering on Francesca Avenue associated
with the community meals program were corroborated by both Becker and Pagnano, I
credit her testimony and conclude that such loitering occurred. Although Libby testified
that he has never received a complaint about loitering from neighbors of the existing
shelter, he did receive complaints about noisy telephone calls. I find that it is quite
possible that shelter guests will loiter on Francesca Avenue, near the side entrance to the
Church Building. These instances of loitering, however, will be minimized to the extent
the Coalition abides by its commitment to ensure that guests (other than those with
disabilities) do not use the side entrance.
92. Becker does not have much experience with the existing shelter because she
usually walks to Davis Square on “her” (the other side) of College Avenue. Also, she
doesn’t walk to Davis Square as much anymore because of the changes there and because
she has a bad hip. She has also observed open air drug use on College Avenue outside of
Davis Square, near the library. Tr. Vol I., pp. 127, 137-139,
93. Becker objects to the proposed shelter based in part on her prior years of
experience as a neighbor to First Church. On those days when First Church hosted the
community meals program, Becker would come home from time to time to find people on
her front stoop and trash in her yard and on her driveway (plastic utensils, cans, take out
containers, and cigarettes). Although Becker found this conduct bothersome at the time,
29
she tolerated the situation since it was only once a week and because she wanted to be
charitable. She is concerned that expanding First Church’s charitable work from a once-a-
week meals program to a full-time overnight shelter will increase the impact on her
property. Specifically, as to safety, she is concerned that if the shelter asks a guest to leave
in the middle of the night for infractions of the rules, the guest may settle onto her stoop
like they did in the past.
94. Claire Pagnano (“Pagnano”) has lived next door to Becker since 2012, at 11
Francesca Avenue. She testified credibly that on two or three occasions she came home to
find people sitting on her front stairs and eating food on days when First Church hosted
the community meals program across the street. In one instance, she was frightened by an
angry guest of the meals program whose loud swearing upset her child who was playing
outside. Tr. Vol I., pp. 161-162.
95. Pagnano walks regularly to Davis Square and credibly testified that on the
route to Davis Square, and in the environs of Davis Square, she observed open air drug
use, fighting, and discarded needles. She is unsure if the individuals involved are guests of
the existing shelter or clients of the Coalition. These incidents increased in the twelve-
month (12) period leading up to trial in August 2025. Tr. Vol I., pp. 161-169.
96. Peter Clemons, another neighbor, also testified. Clemons and his wife Marianne
Benson purchased 15 Kidder Avenue in 1975. They had been thinking about selling and
downsizing their lifestyle as they aged. They accelerated their decision to sell their
property when they heard about the proposed shelter. On April 23, 2025, Peter Clemons
and his wife sold their property at 15 Kidder Avenue to Michael and Owen Chiu for one
30
million seven hundred thousand dollars ($1,700,000.00), by deed recorded at the Registry
at Book 84002, Page 261.When asked how the price was determined, Clemons testified
that it was the midpoint of the prices for similar homes at the time. Tr. Ex. 20; Tr. Ex.
22D.
Brett Smith’s Testimony as Neighbor & as Treasurer of First Church
97. Brett Smith, Treasurer for First Church and a member of its leadership team,
has lived at 22 Francesca Avenue for sixteen years. That property is immediately adjacent
to the Chius’ rental property on Francesca Avenue (24-26 Francesca Avenue) and three
doors down from First Church. Smith began attending First Church in May of 2020. He
became a member in 2021. As Treasurer, he is responsible for keeping the books and
finances, generating reports, and has signing authority for financial accounts.
98. Smith testified that he was not aware of the existing shelter until recently, even
though he passes it every now and then while walking his dog. Smith has twice seen used
needles in his walks around the neighborhood, once in Statue Park and once in Seven Hills
Park, behind the MBTA Station. Tr. Vol II., p. 195.
99. When Smith first learned of the proposed shelter, his concerns were much like
those of Becker, Chiu, and Pagnano. For instance, when asked if he had concerns about
Francesca Avenue at the outset of the process, he replied: “I did. It was easy to imagine
that there might be impacts to the immediate neighborhood about the … stemming from
the shelter, depending on like guest behavior or even just like, shelter operations.” On
cross-examination, Smith anticipated that there might be noise intrusions from the shelter,
particularly noise from emergency vehicles with sirens late at night. Smith can hear
31
Sunday worship from his home when he is unable to attend services.
Tr. Vol II., pp. 152-153; pp. 212-216.
100. Unlike Becker, Chiu, and Pagnano, Smith had the benefit of lengthy and
detailed discussions with Libby and the Coalition about proposed shelter operations during
the discernment process and negotiations between First Church and the Coalition. Based
on those lengthy and detailed discussions, Smith was able to better understand how the
proposed shelter would run smoothly so as to minimize impact on the neighbors.
However, he acknowledged a likelihood that incidents will occasionally arise from the
proposed shelter:
Throughout the process of learning more about how the [Coalition] operates its
current shelter. I – all of the concerns that I had at the start of the process, born out
of uncertainty, had been addressed to my complete satisfaction. I heard multiple
neighbors who live adjacent to the current shelter, talk about the fact that they were
completely happy with how the shelter was run. I heard Mike Libby describe the
processes that they use to be proactive to make sure that there are good neighbors,
similar to the testimony he gave earlier today.
And so, given that, I felt confident that it would be a welcome addition or a – like
welcoming change in the neighborhood. Let’s put it that way, right? Like, there will
be problems. I am anticipating there will be a bad night where I have to email Mike
Libbey and be like, “Hey so what was that about?” But it’s clear that [the
Coalition] has so much experience, like managing and mitigating those problems
that I wasn’t concerned about it.
Tr. Vol II., pp. 159-160 (emphasis supplied).
Police Reports
101. Three police reports regarding incidents in Davis Square were admitted into
evidence only with respect to the reporting officers' contemporaneous firsthand, factual
observations, but not as to the recounted statements of third parties or observations of third
32
parties included, which were excluded from evidence as inadmissible hearsay. Adoption of
Paula, 420 Mass. 716, 727 (1995). See discussion above regarding the defendants’ motion in
limine.
(a) Police Report for November 6, 2024, describes an incident in Statue Park. The
police responded to an attempted attack with a hatchet. Tr. Ex. 23.
(b) Police Report for September 28, 2024, describes an incident in Statue Park where
the police took into custody two individuals, one of whom was in possession of a
knife and the other of a white powder believed to be cocaine. Tr. Ex. 24.
(c) Police Report for October 1, 2024, describes an incident in Statue Park and
subsequent arrest of an individual at the Coalition’s Engagement Center in Davis
Square. Tr. Ex. 25.
102. There is no evidence before the court establishing that guests of the existing
shelter were involved in any of these incidents.
The Building Permit Application & Plaintiffs’ Appeal to the ZBA
103. The Church lies in a zoning district designated as Urban Residential (UR) under
the Ordinance. In the UR zoning district, a “Community or Group Residence” is allowed
by right.6 Although Homeless Shelters require a special permit, “Religious & Educational
6 Section 3.2 of the Ordinance describes the Urban Residential District “as characterized by a variety of moderate
FLOOR PLATE, multi-nit buildings where outdoor AMENTIY SPACE is typically shared between the residents of
a BUILDING. The district is almost entirely residential, with occasional neighborhood stress, schools, places of
worship, and arts related USES on advantageous SITES. The district can provide a transition between Neighborhood
Residential and the Mid-Ride [sic], and Commercial Districts when mapped accordingly.
33
Uses Protected by M.G.L. 40A, Sec. 3” are allowed by right. See Ordinance, § 15; Table
3.2.15.
104. On or about May 2, 2004, Velney Construction LLC, filed an application (the
“Application”) on behalf of First Church for a building permit to “renovate [the] ground
floor of [the Church] to serve as [an] emergency homeless shelter” for the Coalition.
105. On or about June 13, 2024, the ISD approved the Application and issued a building
permit to renovate the ground floor of the Church Building to serve as an emergency homeless
shelter. Tr. Ex. 4.
106. On July 3, 2024, Plaintiffs, along with other Somerville residents, filed an
administrative appeal of the building permit, pursuant to §15.5.2 of the Ordinance and G.L. c.
40A, §§ 8 and 15.
107. The ZBA held a duly advertised public hearing on the Plaintiffs’ appeal on July 31,
2024. The hearing was continued on August 14, 2024.
108. By decision filed with the City Clerk on August 20, 2024 (the “Decision”), the
ZBA voted unanimously to deny the Administrative Appeal on the ground that the
building permit was issued for an accessory homeless shelter use in an existing religious
institution and was protected under G.L. c. 40A, § 3 (the “Dover Amendment”). Plaintiffs
timely appealed the Decision to the Land Court. Tr. Ex. 5.
DISCUSSION
I. STANDING
The Defendants contend that Chiu and Becker have failed to establish that they are
aggrieved by the proposed shelter under the heightened standard for appeals of decisions of local
34
zoning boards, as enacted by the Affordable Homes Act on August 6, 2024 (the “Act”). Among
changes to G.L. c. 40A, § 17, the Act removed the presumption of standing for abutters. Van
Reed v. Schultberg, 33 LCR 286, 290 (2025) (Case No. 24 MISC 000604) (Foster, J.); Fabbri v.
Parisi, 33 LCR 323, 325 (2025) (Case No. 24 MISC 000149) (Smith, J.); Byrne v. Zoning Bd. of
Appeals of the Town of Manchester-by-the-Sea, 33 LCR 422, 424 n.6 (2025) (Case No. 23 MISC
000182) (Vhay, J.). As noted by Judge Foster, that change aside, the amended Chapter 40A
“more or less restates the standard for established in previous caselaw.” Van Reed v. Schultberg,
33 LCR 286, 290 (2025) (Case No. 24 MISC 000604) (Foster, J.), citing e.g., Murchison v.
Zoning Board of Appeals of Sherborn, 485 Mass. 209, 215 (2020); Butler v. Waltham, 63 Mass.
App. Ct. 435, 441 (2005).
Section 17 of Chapter 40A now provides:
If the complaint is filed by someone other than the original applicant, appellant or petitioner,
then each plaintiff … must plausibly demonstrate that measurable injury, which is special and
different to such plaintiff, to a private legal interest that will likely flow from the decision
through credible evidence.
Thus, each of Becker and Chiu must show that their claims of aggrievement fall within the
interests protected by Chapter 40A and the Ordinance. Murchison, 485 Mass. at 214;
Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570 (2016). Each must also provide
evidence of injury that is particular to them (as opposed to the neighborhood in general), which
injury must be causally related to a violation of zoning laws and it must be more than de
minimis. Id., See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 117 (2011).
The “credible evidence” standard has both quantitative and qualitative components:
“[q]uantitatively, the evidence must provide specific factual support for each of the claims of
35
particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on
which a reasonable person could rely to conclude that the claimed injury likely will flow from
the board's action.” Butler, 63 Mass. App. Ct. at 441 (citation omitted). Should a plaintiff fail to
meet this credible evidence standard, a defendant need not present their own evidence, and may
instead rely on plaintiff’s lack of evidence in order to defeat standing. See Standerwick v. Zoning
Bd. of Appeals of Andover, 447 Mass. 20, 35 (2006).
“Aggrievement requires a showing of more than minimal or slightly appreciable harm . . .
The adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement
such that there can be no question that the plaintiff should be afforded the opportunity to seek a
remedy . . . . Put slightly differently, the analysis is whether the plaintiffs have put forth credible
evidence to show that they will be injured or harmed by proposed changes to an abutting
property, not whether they simply will be ‘impacted’ by such changes.” Kenner, 459 Mass. at
115, 121-22. “Speculation and conjecture are not evidence, and in any event, more than a
‘minimal or slightly appreciable’ harm is required.” Further, “[n]either conjecture nor
speculative personal opinion substitutes for proof.” Murchison, 485 Mass. at 215.
Here, Plaintiffs’ claim to standing is based on concern about increased crime, loitering,
littering, noise and rodents, and diminution of property values. Accordingly, I examine whether
each area of alleged harm is an interest protected by Chapter 40A and the Ordinance, and
subsequently consider each Plaintiffs’ supporting evidence.
A. Concern About Increased Crime
36
Plaintiffs point to Section 1.1.4.b(ii) of the Ordinance to show that concern about
increased crime is a protected interest under the Ordinance. Section 1.1.4.b(ii) appears in the
Introductory Provisions under a heading entitled “Intent.” It states:
(i) To equitably balance the regulation of real property with interest of the
community as a whole.
(ii) To protect the health, safety, and general welfare.
The difficulty with this argument is that statements of legislative purpose in a local zoning
ordinance do not alone establish a basis for standing, unless the ordinance also contains a
corresponding provision specifically addressed to the claimed basis for standing. Pobeda RT II,
LLC v. Zoning Board of Appeals of Watertown, 104 Mass. App. Ct. 250, 253 (2024) (concluded
that diminution of value was not a protected interest under the Watertown zoning bylaw where
the bylaw did not include any protection for individual property values). The Appeals Court
explained, “Insofar as § 1.00 of the ordinance seeks to conserve property value, it does not do so
to protect individual economic interests, but instead serve to serve the broader objectives of
promoting public safety and health.” Id. This is because legislative statements of purpose
“suggest standards for the exercise of discretion where such discretion is other provided. They
are not themselves a source of discretion.” Id., quoting McCaffrey v. Board of Appeals of
Ipswich, 4 Mass. App. Ct. 109, 112 (1976). But see Mayer v. Mental Health Ass’n, 29 LCR 519,
524 (October 29, 2021) (19 MISC 000557) (Roberts, J.) (“there can be no doubt that safety is an
interest protected by the [zoning ordinance],” where the applicable ordinance stated an intent to
“protect the health and safety of its inhabitants”). Because Plaintiffs do not identify any other
37
Ordinance provision other than the introductory purpose section above, their claim of
aggrievement based on increased criminal activity must fail.
Even if protection from crime was a protected interest under the Ordinance, the Plaintiffs’
evidence was lacking. Plaintiffs introduced no expert testimony even though concerns about
increased crime are beyond the scope of common knowledge, experience, and understanding.
Standerwick, 447 Mass. at 36 (where plaintiffs offered no expert evidence, their concerns that
crime or vandalism would increase as a result of a proposed affordable housing project were
nothing more than unsupported apprehension and speculation). See also DiBona v. City of
Quincy Zoning Bd. of Appeals, 32 LCR 376, 379 n. 4 (2024) (23 MISC 000195) (Rubin, J.).7
Further, to the extent that Plaintiffs’ concern about increased crime derives from the
possibility that certain shelter guests may be registered sex offenders, the Legislature has enacted
a comprehensive statutory scheme precluding local regulation, specifically G. L. c. 6, §§ 178C-
178Q (the Sex Offender Registry Law) and G. L. c. 123A (providing for the “Care, Treatment
and Rehabilitation of Sexually Dangerous Persons”). In Doe v. City of Lynn, 472 Mass. 521, 525
(2015), the Supreme Judicial Court invalidated a local bylaw seeking to restrict where level two
and level threes sex offenders could live. "The totality of the 1999 statutory scheme,
incorporating as it does a series of interdependent policies and practices specifically designed to
protect the public from level two and level three sex offenders by monitoring and notification to
the public, evinces the Legislature's intent to have the first and final word on the subject of
residency of sex offenders.” Id. at 533. Thus, concerns about this type of criminal activity is not
7 Plaintiffs withdrew two expert documents proposed as Trial Exhibits when challenged with a motion in limine
seeking to exclude the documents as hearsay.
38
an interest that Chapter 40A or the Ordinance can protect. See Mayer v. Mental Health Ass'n, 29
LCR at 524 (rejecting safety concerns of neighbors who challenged the proposed location of a
group home that might house level one and level two sex offenders).8
Plaintiffs hypothesized that the “low-barrier” nature of the proposed shelter would result
in crime. As discussed above, a “low-barrier” shelter is one that prohibits the operator from
denying entry to shelter applicants on the basis of a history of drug addiction, mental health
conditions, or prior convictions, in accordance with its contracts with the Commonwealth. Given
this designation, some shelter guests may well have a history of drug addiction, mental health
conditions, or prior convictions (including among others, convictions as sex offenders). It does
not logically follow, however, that these guests will pose an actual safety risk to the Plaintiffs .
Indeed, as was highlighted during Plaintiffs’ cross -examination, people with those histories may
well already reside in the neighborhood surrounding the Church Building. Nor was there any
evidence to support their claim that the proposed shelter would create a safety risk different from
that experienced by the community as a whole. Butler, 63 Mass. App. Ct. at 442.
Plaintiffs also introduced three police reports involving incidents in Davis Square,
Chiu’s testimony about an assault that occurred while she was playing in a band in Davis
Square, and testimony from Becker, Chiu, and Pagnano about discarded needles and open air
drug use. The police reports were admitted into evidence only with respect to the reporting
8 The fourth paragraph of Chapter 40A, § 3 also provides protections for disabled persons, which protections extend
to those shelter guests with substance abuse disorders. See BAK Realty, LLC v. City of Fitchburg, 495 Mass. 587,
588 (2025). See also Granada House, Inc. v. City of Boston, 1997 WL 106688 (Super. Ct. Feb. 28, 1997) at 7
(protections for people recovering from substance abuse disorders under the federal Fair Housing Act, 42 U.S. C. §§
3601, et seq).
39
officers' contemporaneous firsthand, factual observations, but not as to the recounted
statements of third parties or observations of third parties included, which were excluded from
evidence as inadmissible hearsay. Adoption of Paula, 420 Mass. at 727. Those
contemporaneous observations do not link the Davis Square incidents to the Coalition’s
existing shelter.
Rather, the police reports and Plaintiffs’ evidence as a whole establish that Davis
Square – and not the existing shelter – is the focal point for the concerning activity (for
instance, Chiu’s assault in Davis Square, Becker’s observation of open air drug use along
College Avenue, and discarded needles). This may be the case, in part, because the MBTA
Redline station is located in Davis Square, as is a bus station, both providing easy access to
surrounding communities. Indeed, there was robust evidence that the unhoused population in
Somerville – and in Davis Square – has grown exponentially in the past few years. The
evidence, as detailed above, is insufficient to prove that Plaintiffs will experience an increased
criminal activity near their homes in connection with the proposed shelter.9 Further, it would
be speculative to conclude that the Coalition’s activities have increased the unhoused
population in and around Davis Square or the incidence of crime; it is just as likely that the
Coalition is helping to ameliorate the difficulties incident to this growth.
B. Diminution of Property Values.
Preservation of property values is not an interest that Chapter 40A is meant to protect
9 Libby’s testimony that he asked the Commonwealth for flexibility about the low -barrier requirement was not
an admission that shelter guests would create unsafe conditions. Rather I find that he made the request in an
attempt to be responsive to the neighbo rs’ concerns and to be neighborly.
40
unless it is “derivative of or related to cognizable interests protected by the applicable zoning
scheme.” Kenner, 459 Mass. at 123, quoting Standerwick, 447 Mass. at 31–32. Here, the
Ordinance itself does not protect property values. Instead, Plaintiffs attempt to tether their
claim of diminution of property value to the safety concerns above. Since those safety concerns
were speculative, as discussed above, Plaintiffs claim to aggrievement based on diminution in
property values cannot succeed.
In any event, Plaintiffs’ evidence of alleged diminution of property value was sparse.
Here again, Plaintiffs did not present expert testimony, such as that from an appraiser or real
estate broker. Instead, they relied almost exclusively on the testimony of Clemons. While a
nonexpert owner of property may testify to its value based upon their familiarity with the
characteristics of the property, knowledge or acquaintance with its uses, and experiences in
dealing with it, the witness must establish a credible basis for their qualifications on the topic of
property values. Epstein v. Bd. of Appeal of Boston, 77 Mass. App. Ct. 752, 759 (2010);
Bergmann v. Lexington Bd. of Appeals, 25 LCR 154, 161 (2017) (Misc. Case No. 16 MISC
000138) (Speicher, J.). Whether an owner is sufficiently qualified to offer an opinion is a
question committed to the judge’s sound discretion. Epstein, 77 Mass. App. Ct. at 760;
Bergmann, 25 LCR at 161. Additionally, any testimony regarding diminution in property values,
whether from a property owner or a real estate professional, must be based in fact rather than
unsupported assumptions. Murchison, 485 Mass. at 215; Bergmann, 25 LCR at 161.
Clemons testified that he had recently sold his property at 15 Kidder Avenue to Chiu’s
husband and son. That testimony did not support the Plaintiffs’ contention that the proposed
shelter location would cause their properties to suffer a loss of value. While Clemons and his
41
wife accelerated their decision to sell because of the shelter, they were also motivated by a
desire to downsize as they aged (having lived at 15 Kidder Street for fifty years). As to the
sales price, Clemons testified that he sold his property to the Chius for one million seven
hundred thousand dollars ($1,700,000.00). Clemons did not consider this price to be below
fair market value, but rather as the midpoint of the market for similar homes at the time. I
credit that Clemons undertook reasonable due diligence prior to selling his property and
that the sales price did not reflect a depreciated value. There was no expert testimony or
otherwise that this sales price did not reflect fair market value. For these reasons, the
evidence presented by the Plaintiffs was insufficient to establish aggrievement based on
diminution of property values.
C. Concern about Loitering, Trash, and Rodents
The Ordinance states among its objectives, two goals which support Plaintiffs’ claim
that protection from loitering, trash, and rodents are protected interests under the Ordinance.
The first is the goal to “develop and maintain… neighborhoods that foster a strong sense of
community throughout the city.” The second goal is to “preserve and enhance the existing
character of Somerville’s traditional housing and respect existing built form and
development patterns.” I conclude that fostering a strong sense of community and the
preservation of existing character would be undermined by excessive loitering on private
property, unauthorized trash disposal, and rodent infestation.
Becker testified credibly about her many years of experience as a neighbor to First
Church and its community meals program. She described multiple experiences coming
home to find people on her front stoop at the end of the community meals program,
42
sometimes in the evening, and trash in her yard and on her driveway (plastic utensils, cans,
take out containers, and cigarettes). She testified credibly, consistently, and sincerely that
although these intrusions were bothersome, she tolerated the situation since the community
meals program was only once a week and in order to be charitable. Becker explained her
concern that expanded use of First Church from a weekly meals program to a permanent
overnight shelter would heighten the impact on her property. Pagnano likewise testified
credibly that on several occasions she came home to find people sitting on her front stairs
eating food from the community meals program. In one instance, she was frightened by an
angry guest of the meals program whose loud swearing upset her child who was playing
outside. For these reasons, I find and conclude that Becker has reason to be concerned that
shelter guests and trash may find their way to her doorstep and leave discarded items in her
yard. Becker has established her standing to bring this appeal.
However, the frequency of any loitering or trash disposal on Francesca Avenue will
be substantially mitigated by the decision to require most shelter guests, staff, and vendors
to access the shelter by way of the main entrance on College Avenue. The side entrance on
Francesca Avenue will only be available to people with disabilities, because that entrance
is at ground level and opens directly into Duhamel Hall without the need to use the front
stairs. Impacts will also be substantially mitigated by the Coalition’s professional
operations and management. Unlike the community meals program, which was run by
volunteers associated with First Church, the proposed shelter will be operated by a
professional and experienced organization. The Coalition has been operating the existing
shelter for many years, with few complaints from neighbors. The Coalition has
43
professional staff who are trained to work with unhoused individuals and encourage
adherence to the shelter’s rules, as discussed above. In addition, the Coalition has
developed a comprehensive Operations Document with procedures and approaches to
minimize impacts on shelter neighbors. For instance, the Operations Document addresses
standards for guest conduct and includes a communications plan and phone tree in the
event neighbors have an issue with shelter operations. The Coalition will ensure that staff
are on-site when the shelter is open and are tasked with making sure the Church property
remains clean, with regular inspections in order to find and remove any cigarette butts,
discarded needles, trash, and the like. The Coalition also engages a pest control company .
In addition, Libby will provide experienced oversight of these operations. He began
working for the Coalition in 2000 as a case manager, became the direct manager of the
existing individual shelter, and now serves as Executive Director. Libby was thoughtful
and forthright both about the challenges of operating a “low-barrier” shelter and how the
Coalition will manage those challenges. He lucidly explained how First Church and the
Coalition will work to minimize the impact on Becker and other neighbors by directing
shelter guests, staff, and vendors away from the Church Building’s side entrance. These
proposed operations are a far cry from the ad hoc community meals program run by First
Church’s volunteers. Thus, I find and conclude that the Coalition’s operations, staffing,
and facilities plans will substantially temper potential impacts on Becker and the
neighborhood.
D. Concerns About Sirens from Emergency Vehicles.
44
There do not appear to be any provisions in the Ordinance to support Plaintiffs’ claim
that increased noise associated with emergency vehicles is a protected interest. Although the
Ordinance does include a number of provisions regulating noise, those provisions concern
very different types of land uses and do not pertain to emergency vehicles. For instance, the
Ordinance includes noise mitigation requirements for roof-mounted mechanical systems and
noise regulations for animal services, home occupation accessory uses, and manufacturing
use. (Tr. Ex. 2, §§ 4.1.14.c.ii, 4.2.14.c.ii, 4.3.14.c.ii, 9.2.6.a.i.a, 9.2.1.4. b.i.c, and
8.4.12.j.iii.b.) I conclude that protection from the sound of emergency vehicles is not a
protected interest under the Ordinance.
For the sake of completeness, I consider the evidence before the court. Only Chiu’s
claim to standing is at issue in this regard because Becker testified that she was unaware of
noise from emergency vehicles on College Avenue. Plaintiffs introduced no expert
testimony as to noise disruption, relying solely on testimony from Chiu and Smith. Chiu
expressed concern that the new shelter would generate additional emergency response
vehicles with their sirens. She currently hears emergency vehicles on College Avenue about
three to four times per day. Smith is also worried about increased noise from emergency
vehicles with sirens late at night, because he can hear Sunday worship from his home when
he is unable to attend services.
While it is likely that the shelter will generate a few additional visits from emergency
vehicles and while sound does appear to travel in the neighborhood , I conclude the impact
on Chiu and her properties will be de minimis given the proximity of her properties to the
very busy College Avenue and dense urban fabric in and around Davis Square. Further, Chiu
45
failed to provide credible evidence that a slight increase in emergency vehicle sirens would
impact her or her properties in any particular way or degree that differs from the impact on the
community as a whole. The concerns voiced by Chiu were not concerns unique to her but
affected the community at large. See Ricker v. 3253 Washington LLC, 93 Mass. App. Ct. 1121
(2018) (Rule 1:28 Decision) (no standing because plaintiffs did not distinguish their claimed
injuries from those that would be suffered by others in the neighborhood); Butler, 63 Mass. App.
Ct. at 440 (plaintiff's injury flowing from the board’s decision must be “special and different
from the injury the action will cause to the community at large”); Barvenik v. Bd. of Alderman,
33 Mass. App. Ct. 129, 132 (1992) (no standing because plaintiffs had shown “no effect of the
grant [of the special permit] on them different from that of the general populace of Newton.”);
Cross v. Volo, 16 LCR 725, 729 (2008) (Grossman, J.) (finding no aggrievement with respect to
parking/traffic since plaintiffs failed to show that traffic or parking related injuries were
distinguishable from those encountered by the neighborhood or community at large). For these
reasons, I conclude that Chiu failed to establish standing to appeal the ZBA’s Decision.
II. THE DOVER AMENDMENT
Plaintiffs contend that First Church should have applied for a special permit because the
proposed shelter cannot be viewed as a religious use entitled to the protection under the Dover
Amendment, G. L. c. 40A, § 3. The Somerville Ordinance does not permit shelters as an as-of-
right use in the Urban Residential (UR) District where First Church is located. Instead, shelters
and other institutional uses are only permitted by special permit. See Ordinance Table 3.2.15.
However, First Church did not apply for a special permit, which would have required notice to
abutters and a public hearing. Instead, with the support of the Building Inspector, they applied
46
for and received a building permit authorizing conversion of the ground floor of First Church’s
building into shelter. The ZBA then voted unanimously to deny the neighbors’ appeal, having
determined the building permit was issued for an accessory homeless shelter use in an
existing religious institution and was protected by the Dover Amendment.
Thus, the question before the court is whether the proposed shelter is entitled to the
protections of Chapter 40A, § 3. In pertinent part, it states:
No zoning ordinance or by-law shall . . . prohibit, regulate or restrict the use of land or
structures for religious purposes or for educational purposes on land owned or leased
by . . . a religious sect or denomination, or by a nonprofit education corporation; provided,
however, that such land or structures may be subject to reasonable regulations concerning
the bulk and height of structures and determining yard sizes, lot area, setbacks, open
space, parking and building coverage requirements.
By enacting the Dover Amendment, the Legislature limited the restrictions that a municipality is
authorized to place on religious uses in order to ensure that the municipality cannot “exercise its
preferences as to what kind of . . . religious denominations it [would] welcome.” Bible Speaks v.
Bd. of Appeals of Lenox, 8 Mass. App. Ct. 19, 33 (1979). The Dover Amendment seeks to “strike
a balance between preventing local discrimination against [a religious] use . . . and honoring
legitimate municipal concerns that typically find expression in local zoning laws.” Martin v.
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141, 148
(2001) (quoting Trs. Of Tufts Coll. v. City of Medford, 415 Mass. 753, 757 (1993)). This balance
is struck by allowing certain dimensional reasonable regulation but prohibiting local officials
from applying zoning requirements where to do so would “unreasonably impede the protected
use without appreciably advancing critical municipal goals.” Id.
47
What constitutes a “religious use” or “religious purpose” is a matter of interpretation for
the court, with reference to the everyday use of those terms and free from the court’s own
conceptions of expediency. Needham Pastoral Counseling Ctr., Inc. v. Bd. of Appeals of
Needham, 29 Mass. App. Ct. 31, 33 (1990). By its plain language, religious purpose is
“something in aid of a system of faith and worship, usually of a higher unseen power entitled to
reverence,” and “[f]idelity to a set of principles or rituals is a central characteristic.” Id. A two-
part analysis is employed to determine whether a use is entitled to protection under Chapter 40A,
§ 3. The first asks “whether the proposed use has as its “bona fide goal something that can
reasonably be described as” religiously significant.” Hume Lake Christian Camps, Inc. v.
Planning Board of Monterey, 492 Mass. 188, 195 (2023), citing Regis College, 462 Mass. at
285. The second inquiry is “whether the religiously significant goal is the “‘primary or
dominant’ purpose for which the land or structures will be used.” Id., quoting Whitinsville
Retirement Soc'y, Inc. v. Northbridge, 394 Mass. 757, 760, 477 N.E.2d 407 (1985).
A. Religious Significance
The first inquiry is whether use of the ground floor of the Church Building as an
emergency homeless shelter has as its bona fide goal something that can reasonably be described
as religiously significant. Plaintiffs do not dispute that First Church is itself a religious
organization. Nor do they dispute that providing shelter to unhoused individuals “aligns” with
First Church’s Christian values. They argue, however, that use of the ground floor as a shelter
cannot reasonably be described as religiously significant because a shelter use does not involve
religious reflection. They view the shelter not as a religious use, but as housing and a way for
First Church to be charitable and also generate income.
48
I conclude to the contrary. First Church’s witnesses – Rev. Macy, Ferello, and Smith
credibly testified as to the congregation’s sincere and in-depth efforts to reflect upon whether it
was their religious mission to host the shelter. The congregation’s structured and contemplative
process about how to fulfil their religious mission began well before the First Church learned
about the concrete proposal to host the shelter in partnership with the Coalition. As discussed
above, First Church began its discernment process in the fall of 2023, going to God in prayer,
consulting scripture, and gathering in community to determine what God might be calling the
congregation to do. Discernment included a so-called visioning process where the membership
gathered to consider questions such as “Who are we now?” and “Who is God calling us to be?”
The resulting Vision Statement guided First Church’s decision-making. It states: “First Church
Somerville lives to make God’s expansive love and justice real through radically inclusive
sanctuary, authentic connection, spiritual exploration, and transformative community
engagement.”
It was only after this visioning process that First Church and the Coalition began
discussing ways for First Church to further engage with the Coalition. In this context,
Libby asked whether First Church would consider allowing the Coalition to use the ground
floor of the Church Building for a shelter. First Church’s decision to host the shelter came
only after a further discernment process, where the congregation deeply considered
scripture and whether hosting a homeless shelter within the Church Building was God’s work
and, if so, whether it was First Church’s calling to do that work. The Discernment Task Force
also considered how First Church and a shelter could share the Church Building.
49
Throughout the lengthy discernment process, as detailed above, the congregation
supported the idea that it was their religious mission to host the shelter. First Church’s decision-
making process was grounded in spiritual reflection about how to advance the goals of their
Visioning Statement in the real world and how to engage in radically inclusive Christianity. The
process was guided by robust scriptural support for housing the unsheltered and caring for
strangers in both the Old and New Testament. As sincerely described by Rev. Macy, Ferello, and
Smith, the unanimous vote in March 2024 was a joyful moment for the congregation. I am
convinced that the bona fide goal of hosting the proposed shelter under First Church’s own roof
is a religiously significant use.
This conclusion is further supported by First Church’s stated intent to engage with shelter
guests and staff, as well as the congregation’s decision to share space with the shelter. As to the
former, First Church contemplates volunteer opportunities such as providing spiritual support
and companionship to guests and staff, as well as material support such as cooking meals. As to
the latter, the ground floor will include several shared uses. First Church intends to share use of
Duhamel Hall, the large room in the basement of the Church Building, throughout the
Coalition’s lease term, for social events and gatherings. A kitchen, laundry, and bathrooms
located on the ground floor and will also be shared. Both First Church and the Coalition will
have offices on the ground floor and share office equipment, such as the copier. I conclude
this ongoing engagement, shared use of space, and support for unhoused individuals is
religiously significant. This congregation has chosen to host the proposed shelter in order to
“to make God’s expansive love and justice real through radically inclusive sanctuary, authentic
connection, spiritual exploration, and transformative community engagement.”
50
B. Dominant Religious Purpose
The second inquiry is whether First Church’s religious goal is the primary or dominant
purpose for which the Church Building and its ground floor will be used. McLean Hosp. Corp.,
483 Mass. at 220; Fitchburg Hous. Auth. v. Bd. of Zoning Appeals of Fitchburg, 380 Mass. 869,
874 (1980) “The primary or dominant purpose requirement ensures that an ostensibly religious
purpose is not ‘mere window dressing’ for a nonexempt use.” Hume Lake, 492 Mass. at 195. “To
determine whether the plaintiff’s intended use is for religious …. purposes and, hence, within the
protective ambit of § 3, focus must be placed on the use of the structure rather than on the
structure itself.” Worcester Cnty Christian Commc’ns, Inc., v. Board of Appeals, 22 Mass. App.
Ct. 83, 87 (1986). There must be more than merely an element of religious or educational use,
Whitinsville Ret. Soc’y, Inc. v. Town of Northbridge, 394 Mass. 757 (1985).
In Hume Lake, the Supreme Judicial Court considered whether the use of a Christian camp
was primarily religious or whether its purpose was primarily recreational. Courts do not take “a
piecemeal approach” to this question but rather ask “whether the structure as a whole is to be
used for religious purposes.” Hume Lake, 492 Mass. at 196. Thus, in Martin, 434 Mass. at 149-
150, the Supreme Judicial Court cautioned that the court ought not inquire whether each
particular room of a temple independently served a religious purpose, but instead should consider
that structure as a whole. In order to avoid making judgments about whether a proposed use
constitutes a necessary element of a particular religion, the Dover Amendment protections do not
require that a proposed use “be intrinsically religious in order to serve a religious purpose.”
Hume Lake, 492 Mass. at 196. Rather, the Dover Amendment protections encompass accessory
uses that, “while not inherently religious in nature, are components of a broader religious project,
51
and that facilitate the functioning of that project.” Id., citing Needham Pastoral Counseling Ctr.,
Inc. v. Board of Appeals of Needham, 29 Mass. App. Ct. 31, 37 (1990).
Thus, in Hume Lake, the primary or dominant purpose of an RV camp providing
temporary housing for staff and volunteers at a Christian camp was religious, because the RV
camp facilitated the operations of and strengthened attendance at the Christian Camp, whose
mission was to cultivate religious practice and spiritual growth. Hume Lake, 492 Mass. at 196;
See Shrine of Our Lady of La Salette Inc., v. Board of Assessors of Attleboro, 476 Mass. 690,
695 (2017) (dominant purpose of a maintenance building was religious because maintaining the
shrine was connected with religious worship and instruction offered at the property); Bible
Speaks, 8 Mass. App. Ct. at 30, 34 (snack bar on a school's softball field served an educational
purpose). Compare Whitinsville Ret. Soc’y, Inc., 394 Mass. at 761 (nursing home facility with
merely an “element of education” was a retired living community rather than an educational
facility where it lacked a formal program or trained professionals and there was only informally
interplay among residents of the nursing home community).
Guided by these principles, I reject the Plaintiffs’ effort to characterize the dominant and
primary purpose of the ground floor as housing, somehow separate and apart from First Church’s
use of the Church Building as a whole. The Discernment Task Force specifically considered how
First Church and the shelter could share the Church Building. Leading to the structure
encompassing shared spaces, such as shared use of Duhamel Hall and the ground floor kitchen,
office and equipment, laundry, and bathrooms, further supporting a holistic religious purpose.
As discussed above, use of the ground floor to host the shelter is an integral part of First
Church’s religious mission, as developed during the discernment process. Further, First Church’s
52
involvement in the shelter, while not inherently religious in nature, are components of a broader
religious project supported by First Church’s intention to develop opportunities for its
members to volunteer and engage with the shelter guests.
The Plaintiffs’ focus on the revenue that will be generated from its lease with the Coalition
is also misplaced. Hume Lake, 492 Mass. at 200 (rejecting argument that Christian camp was
primarily motivated to house volunteers and seasonal staff at the RV camp in order to defray
costs). The focus of the court's analysis is not on an organization's reason for choosing one
means of pursuing its goals rather than another, but rather on the purpose of the particular use to
which the land or structure is put. Id. Here, the purpose of leasing the ground floor to the
Coalition is to advance the religious mission of First Church and the spiritual growth of the
congregation. For the reasons above, I conclude that the proposed shelter is entitled to protection
under the Dover Amendment.
III. CONCLUSION
For the reasons discussed above, the proposed location of the shelter in a portion of the
ground floor of First Church’s property at 89 College Avenue is a religious use entitled to the
protection of the Dover Amendment, G. L. c. 40A, § 3. The ZBA’s Decision is upheld.
Judgment to issue accordingly.
53
SO ORDERED
By the Court (Rubin, J.)
/s/ Diane R. Rubin
Attest: /s/ Deborah J. Patterson
Deborah J. Patterson
Recorder
Dated: April 8, 2026