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HomeMy WebLinkAboutCCFR Memo to ZBA Valerie A. Moore Direct Line: 617-439-2233 Fax: 617-310-9233 E-mail: vmoore@nutter.com MEMORANDUM June 3, 2026 130450-1 TO: Jacob Dewey, Chair Barnstable Zoning Board of Appeals FROM: Eliza Cox, LaTanzi Spaulding & Landreth LLP Valerie A. Moore, Nutter McClennen & Fish LLP RE: 460 West Main Street Appeal Applicability of the Dover Amendment to St. Joseph’s Shelter LaTanzi Spaulding & Landreth LLP and Nutter McClennen & Fish LLP represent Catholic Charities of the Diocese of Fall River, Asclepius Corporation, and Housing Assistance Corporation with respect to the May 1, 2026 appeal of the Building Commissioner’s determination that the relocation of St. Joseph’s Shelter to 460 W. Main Street is a protected use pursuant to G.L. c. 40A, § 3, known as the Dover Amendment. The purpose of this memorandum is to provide the Board with an overview of the Dover Amendment and the applicable test the Board is to apply in determining whether to uphold the Building Commissioner. Massachusetts law is clear that the proposed use qualifies for protection under the Dover Amendment, as detailed below and as will be discussed at the Board’s hearing on June 10th. We understand that the community has raised many questions about shelter operations and whether 460 W. Main Street is an appropriate location for the shelter. These longstanding local community organizations have taken those questions and concerns seriously. They have met with town officials and with the community and have made adjustments to their operations to respond to those concerns. Shelter operations, its location, and impacts, however, are not Barnstable Zoning Bd. of Appeals June 3, 2026 Page 2 -2- within the scope of the Dover Amendment’s statutory language or case law and are thus not relevant to the Board’s hearing. Accordingly, we will not address these issues at the Board’s hearing and will focus our presentation on the sole question before the Board: whether the proposed use is a religious use within the meaning of the Dover Amendment. I. Background Catholic Charities currently operates St. Joseph’s Shelter at 77 Winter Street. Catholic Charities proposes to relocate St. Joseph’s Shelter from its current location to 460 W Main Street. The total shelter capacity will remain unchanged at fifty (50) beds. Catholic Charities will lease the first floor of 460 West Main Street from Asclepius Corporation. On April 3, 2026, the Building Commissioner issued a detailed, thoughtful and reasoned determination, correctly finding that the proposed use of 460 West Main Street as an emergency overnight homeless shelter constitutes a religious use pursuant to G.L. c. 40A, § 3. On May 1, 2026, Maria R. Walsh, Trustee of the Mias Family Trust, of 15 Aldeas Circle, filed an appeal to the Board from that determination pursuant to G.L. c. 40A, §§ 8 and 15.1 1 G.L. c. 40A, § 15 permits only a “person aggrieved” to file an appeal from the determination of a building inspector. Ms. Walsh’s appeal sets forth no facts whatsoever establishing that she is a person aggrieved. G.L. c. 40A, § 15 contains no presumption of aggrievement and other section of G.L. c. 40A were amended in 2024 to remove any such presumption. Accordingly, Ms. Walsh has failed to establish standing to pursue this appeal. Nonetheless, we have addressed the merits of her specious claim herein and will do so before the Board and reserve all rights to address Ms. Walsh’s lack of standing should she choose to further appeal this matter. Barnstable Zoning Bd. of Appeals June 3, 2026 Page 3 -3- II. The Dover Amendment The Dover Amendment, G.L. c. 40A, § 3, provides, in relevant part, “no zoning ordinance or by-law shall…prohibit, regulate or restrict the use of land or structures for religious purposes … on land owned or leased…by a religious sect or denomination; 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.” Whether a proposed use falls within the protections of the Dover Amendment is determined by a two-prong test. The first prong is whether the “use has as its ‘bona fide goal something that can reasonably be described’ as religiously significant.” Hume Lake Christian Camps Inc. v. Planning Bd. of Monterey, 492 Mass. 188, 195 (2023). The second prong is whether “the religiously significant goal is the “‘primary or dominant’ purpose for which the land or structures will be used.” Id. The focus of the inquiry is on “whether the [land or] structure as a whole is to be used for religious purposes.” Id. at 196. This protection extends to any primary or dominant purpose that is to “aid…a system of faith and worship.” Id. quoting Shrine of Our Lady of La Sallette Inc. v. Assessors of Attleboro, 476 Mass. 690, 697 (2017). It also extends to a “‘variety of accessory uses’ that, while not inherently religious in nature, are components of a broader religious Barnstable Zoning Bd. of Appeals June 3, 2026 Page 4 -4- project.” Id., citing Needham Pastoral Counseling Ctr., Inc. v. Board of Appeals of Needham, 29 Mass. App. Ct. 31, 37 (1990). Despite the Appellant’s claim that the shelter is not ‘expressly religious,’ the Land Court recently affirmed that a homeless shelter is a religious use under the Dover Amendment. In Becker, et al. v. First Congregational Church of Somerville, Case No. 24 MISC 000521 (Decision April 8, 2026)(Rubin, J.), a copy of which is attached as Exhibit A, the Land Court found that the First Congregational Church of Somerville’s proposed use of the ground floor of its church as an emergency overnight homeless shelter is a religious use entitled to protection under the Dover Amendment. As set forth in the Land Court’s decision, First Congregational Church leased portions of its ground floor to the Somerville Homeless Coalition, a nonprofit, which operated an existing state-funded shelter in another church, which it sought to move across the street and expand in First Congregational Church. The Land Court’s decision shares many similar facts to the shelter relocation proposed by Catholic Charities and thus will be referred to throughout this memorandum as the “First Church Decision.” A. The Bona Fide Goal of the Shelter to House and Feed the Homeless is Religiously Significant. The first prong of the two-part Dover Amendment test is whether the “use has as its ‘bona fide goal something that can reasonably be described’ as religiously significant.” Hume Lake Christian Camps Inc., 492 Mass. at 195. The Court may not make judgments about whether “a proposed use constitutes a necessary element of a particular religion, as that would constitute Barnstable Zoning Bd. of Appeals June 3, 2026 Page 5 -5- an area of inquiry that the First Amendment to the United States Constitution prohibits.” Id. at 196. A religious purpose is “something in aid of a system of faith and worship, usually of a higher unseen power entitled to reverence, and fidelity to a set of principles or rituals is a central characteristic.” Needham Pastoral Counseling Ctr., Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31, 33 (1990). In the First Church Decision, the Court found that the Church’s deep consideration of the scriptural basis for sheltering the unhoused and consideration of whether God called them to shelter the unhoused and sincerely held religious belief made it clear that the bona fide goal of hosting the proposed shelter was a religiously significant use. The Court also found it persuasive that the First Church Congregation intended to volunteer in the shelter and interact with shelter guests. Here, the relocated shelter remains a religious use of the Catholic faith. As presented in extensive communications to the Building Commissioner prior to his determination, and as the Board will hear in testimony at its hearing, Catholic Charities Diocese of Fall River operates the St. Joseph’s Shelter in fulfillment of its mission: “Anchored in faith, our mission is to embrace the dignity of every individual by fostering empowerment, resilience, opportunity, and hope.” The Board will hear testimony from a Priest about the scriptural foundations for sheltering the unhoused in the gospel and how it aids in the Catholic Church’s system of worship. The Board will hear testimony that the Gospel of Matthew, Chapter 25, Verses 35-40 recounts Jesus Christ’s instructions to his followers to care for the poor, feed the hungry, and shelter the Barnstable Zoning Bd. of Appeals June 3, 2026 Page 6 -6- homeless and how the shelter is how the Catholic Church follow this mandate to put its faith in action. The roots of sheltering the unhoused in the Catholic faith are extensive and have been repeatedly affirmed by the Pope and the United States Conference of Catholic Bishops. The Board will also hear testimony from parishioners who volunteer at the existing shelter as to how it is an exercise of their faith. Much like in the First Church Decision, the Catholic faith provides a strong scriptural basis for its belief that sheltering the unhoused is a religious exercise and Catholic parishioners actively engage with the shelter. Unlike in the First Church Decision, here, the operator of the shelter is itself a religious organization, thus providing an even stronger basis for the Board to find that this is a religious use entitled to protection under the Dover Amendment. In their appeal brief, the Appellant purports to argue that because the shelter has no religious content, it cannot be a religious exercise. This argument was squarely rejected in the First Church Decision, where the Court found that not only did the faith of First Church dictate that it could not condition its provision of shelter on the faith of the shelter guests but also that it could not seek to convert the shelter guests. Similarly, at the hearing, the Board will hear testimony that the Catholic faith does not require it to condition its provision of shelter to the unhoused on either the faith of the unhoused or on seeking to convert the shelter guests they serve. Accordingly, Dover protection does not depend on whether the beneficiaries are required Barnstable Zoning Bd. of Appeals June 3, 2026 Page 7 -7- to participate in religious activities, nor does it require services to be offered to only those of the same faith. Massachusetts law is clear that the government’s inquiry here is limited. “It is not for judges to determine whether the inclusion of a particular architectural feature is necessary for a particular religion…the judge found, as she was compelled to do in the face of overwhelming and uncontradicted testimony, that temples are the places where Mormons conduct their sacred ceremonies. No further inquiry as to the applicability of the Dover Amendment was warranted.” Martin v. The Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints, 434 Mass. 141, 150 (2001), (emphasis supplied), citing Parish of the Advent v. Protestant Episcopal Diocese of Mass., 426 Mass. 268, 284-285 (1997) (civil tribunals must avoid resolving matters of purely ecclesiastical nature); Employment Div., Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872, 887 (1990) (“repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.”) In Western Presbyterian Church v. Board of Zoning Adjustment of District of Columbia, 862 F.Supp. 538 (1994), the D.C. District Court was faced with the question of whether the District of Columbia’s zoning regulations could preclude a church from serving meals to the homeless. The Court in that case found that feeding the needy was “a form of worship akin to prayer. If the zoning regulations cannot be applied to ban prayer in a church, they cannot be Barnstable Zoning Bd. of Appeals June 3, 2026 Page 8 -8- used to exclude this type of religious activity. The Church may use its building for prayer and other religious services as a matter of right and should be able, as a matter of right, to use the building to minister to the needy.” Id at 547. Similarly, after hearing the testimony at the Board’s hearing on June 10th, the Board should find that sheltering the unhoused is a form of worship akin to prayer that furthers the Catholic faith and which is entitled to the protections of the Dover Amendment. B. The Primary and Dominant Purpose of the Shelter is Religious. The second prong is whether “the religiously significant goal is the ‘primary or dominant’ purpose for which the land or structures will be used.” Hume Lake Christian Camps Inc., 492 Mass. at 195. The focus of the inquiry is on “whether the [land or] structure as a whole is to be used for religious purposes”, it is not a piecemeal inquiry and looking at individualized spaces within a religious structure has been definitively held by Massachusetts courts to be inappropriate. Id. at 196. This protection extends to any primary or dominant purpose that is to “aid…a system of faith and worship.” Id. quoting Shrine of Our Lady of La Sallette Inc., 476 Mass. at 697. It also extends to “‘variety of accessory uses’ that, while not inherently religious in nature, are components of a broader religious project.” Id., citing Needham Pastoral Counseling Ctr., Inc. v. Board of Appeals of Needham, 29 Mass. App. Ct. 31, 37 (1990). The Supreme Judicial Court has repeatedly reminded lower courts that the statute directs the inquiry to the use of “land” or a “structure”, not the use of an element or part of a structure. Martin, 434 Barnstable Zoning Bd. of Appeals June 3, 2026 Page 9 -9- Mass. at 149. “To view each element, each section of a structure as requiring an independent religious use leads to impossible results: Is a church kitchen or a church parking lot a religious use? We have not formulated the test so narrowly.” Id. Here, where the purpose of the shelter is to aid in a system of faith and worship by fulfilling the Church’s teachings and the shelter is the only proposed use of the space at issue, there can be no doubt that the primary and dominant purpose of the shelter is religious. The shelter space will not be used for any purpose other than sheltering the unhoused, consistent with the teachings of the Catholic Church. In the First Church Decision, the Court found that where the use of the space to host the shelter was an integral part of the First Church’s religious mission and where the members of the church were actively involved in volunteering with the shelter, the shelter were components of a broader religious project. Those facts are equally present here, as the Board will hear testimony from members of the Catholic Church regarding how they volunteer with the shelter and how the act of sheltering the homeless is an integral part of the Church’s religious mission and a form or worship. The question is not whether homeless shelters can be operated by secular organizations. Rather, the question is whether Catholic Charities’ operation of the proposed shelter is a genuine expression of its religious mission. Massachusetts case law is abundantly clear that whether the same activity can be undertaken by a secular organization for a secular purpose has no relevance to the Dover Amendment whatsoever. In The Bible Speaks v. Bd. of Appeals of Lenox, 8 Mass. Barnstable Zoning Bd. of Appeals June 3, 2026 Page 10 -10- App. Ct. 19 (1979), the Appeals Court found the lights for a softball field were both a religious and educational use. Clearly, the fact that the same activity is undertaken by numerous non- religious and non-educational organizations is not relevant to the Dover Amendment. III. The Means of Achieving the Religious use are not Relevant. In the First Church Decision, in response to arguments concerning the decision to have a third party operate the shelter through a lease rather than the church operating the shelter itself, the Court found that the focus of the Dover Amendment 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. See also, Hume Lake, 492 Mass. at 200. Here, the use to which the structure will be put is religious, the Catholic Charities’ motives for pursuing the shelter are religious, the means by which they do so, such as the use of state funding and the conditions attendant thereto, are not relevant to the Board’s inquiry. Although Massachusetts has not had many religious use cases arise under the Dover Amendment beyond those discussed above, there are many similar examples from other jurisdictions that make clear that arguments concerning the means of achieving the religious use do not in any way undermine the shelter’s Dover Amendment protection, only the purpose of the activity is relevant, and which provide guidance as to how the Board should think about what constitutes religious use. Barnstable Zoning Bd. of Appeals June 3, 2026 Page 11 -11- In Slevin v. Long Is. Jewish Med. Ctr., 66 Misc.2d 312, 319 N.Y.S. 2d 937 (1971), the New York Supreme Court held that a drug center designed to reach nonaddicted youth in early stages of experimentation was a religious use of a church property and a valid extension of a religious institution for zoning purposes. In that case, the proposed drug center was to be located at the Christ Episcopal Church Parish House in Manhasset by arrangement with Long Island Jewish Hospital. See id. at 312. The entire project was “financed, staffed and supervised by the hospital” and it was not known whether any of the participants in the program were parishioners of the church. See id. at 313. Based upon testimony that “the drug center program seeks to discharge a spiritual duty felt by clergyman and their congregants” and that “the drug center program is a specific effort to be obedient to Christ’s command to heal” and that “few things are more critical to the brotherhood of man and the religious activity of a church than assisting in every way possible to bring community youngsters to maturity as health, responsible, contributing members of the community,” the court in Slevin unequivocally found that the proposed drug center was a religious use exempt from zoning. See also McGann v. Incorporated Village of Westbury, 293 A.D.2d 581, 583, 741 N.Y.S. 2d 937 (2002) (2002 N.Y. Slip OP. 02959) (“Religious use is conduct with a religious purpose, the determination of which focuses on the proposed use itself, not the religious nature of the organization, and in each case ultimately rests upon its own facts.”). Barnstable Zoning Bd. of Appeals June 3, 2026 Page 12 -12- As the Slevin court held: “The Court is not persuaded by the [argument] that the religious uses must be conducted by the church itself for the benefit of its own members. . . . If a use of church property is a religious use, why should it matter that . . . the church engages or contracts or permits specialists or professional people on its premises to execute the religious use?” Slevin, 66 Misc.2d at 318. Similarly, here, although the shelter is funded through state contracts, the Dover Amendment does not direct a Zoning Board to look to funding sources, it directs the Board to look only to the use itself and whether that use is religious. IV. Conclusion The Catholic Charities proposed relocation of its shelter is a religious use which furthers the Catholic faith by putting in to practice Jesus Christ’s mandate to shelter the unhoused as set forth in Matthew 25. That form of prayer in action is entitled to protection under the Dover Amendment, as well as the First Amendment and the Massachusetts Declaration of Rights.