SMOC misleads town in application
Uses wrong use code; may impact proposed shelter
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SMOC's original change
of use application calls for a
change from I-2 to R-2. Click image for the original application
(472k Adobe Acrobat file).
Related Documents
Building Commissioner Michael Foley wrote a January 2007
memo on why SMOC qualifies for an R-2 use, which is based on a flawed
reading of the state building codes and contradicts the town's previous
rulings on the matter. Click the links below for Foley's memo and
our rebuttal.
Michael
Foley's memo on why SMOC qualifies for an R-2 use (52k Adobe
Acrobat file)
STEPPS rebuttal to Foley's
memo (152k Adobe Acrobat file) |
In August 2005, the South Middlesex Opportunity Council (SMOC), through
their subsidiary, the South Middlesex Non-Profit Housing Corporation (SMNPHC),
filed for a change of use for 517 Winter Street from the existing I-2 (the
nursing home) to R-2 for the purpose of locating the Sage House family drug
rehab shelter there. Building Commissioner Joe Mikielian denied the change
of use, in part because SMOC had not undergone site plan review, required
by the recently passed town bylaw. During the subsequent Planning Board hearings,
SMOC stated that the maximum occupancy of the Sage house would be 40 residents.
However, it now appears that SMOC’s original application was flawed. Their
proposed use code, R-2, is for permanent occupancy, not transient occupancy,
and requires separate dwelling units (see below). The property at 517 Winter
Street does not have separate dwelling units, and the residents of the Sage House
are, by definition, transient.
Even though Framingham Building Commissioner Michael Foley has stated that
SMOC does qualify for an R-2 use, his reasoning is flawed and contradicts
previous rulings by the town. (See documents in sidebar.) If he approves
a permanent occupancy permit and change of use for SMOC's
Error on SMOC's application
First, any use which involves sleeping arrangements must be either residential
or institutional. The nursing home that formerly occupied 517 Winter was
zoned I-2.
SMOC’s proposed use does not match any Institutional use (I-1,
I-2, or I-3) because residency in the Sage House is optional and not mandatory.
Therefore, the Sage House must be one of the residential use codes.
780 CMR 310.0 RESIDENTIAL USE GROUPS
http://www.mass.gov/Eeops/docs/dps/BuildingCode/780003.pdf
310.1 General: All structures in which individuals live, or in which sleeping
accommodations are provided (with or without dining facilities), excluding
those that are classified as institutional occupancies, shall be classified
as Use Group R-1, R-2, R-3, R-4 or R-5. The term "Use Group R" shall include
Use Groups R-1, R-2 and R-3, R-4 and R-5.
SMOC
chose R-2, even though section 310.2 (“Definitions”) makes it
clear that the building at 517 Winter does not have separate dwelling units
and cannot therefore be R-2.
Dwelling unit: A single unit providing complete,
independent living facilities for one or more persons, including permanent
provisions for living, sleeping, eating, cooking and sanitation.
310.4 Use Group R-2 structures: This use group shall include all multiple
dwellings having more than two dwelling units, except as provided for
in 780 CMR 310.5 for multiple single dwelling units, and shall also include all
boarding houses and similar buildings arranged for shelter and sleeping accommodations
in which the occupants are primarily not transient in nature.
SMOC and the Building Commissioner obviously believe they can slip in by claiming
the Sage House at 517 Winter will be a "boarding house." However, 780 CMR
3 section 310.2 defines a boarding house as "a building arranged or used
for lodging for compensation [...]." Residents do not pay SMOC compensation
for lodging at the Sage House, and while the state does, they pay SMOC for
the program, not for the housing of individuals; therefore, the boarding
house issue is simply not applicable to the Sage House application.
Boarding house: A building arranged or used for lodging for compensation,
with or without meals, and not occupied as a single unit.
What's more, based on the following definition of transient, SMOC’s
Sage house clients are transient
in nature, since they will stay at the Sage House for a maximum of nine months
for treatment:
521 CMR: ARCHITECTURAL ACCESS
BOARD:
TRANSIENT LODGING: A building, facility, or portion thereof, excluding
inpatient medical care facilities, that contains one or more dwelling
units or sleeping accommodations not intended for permanent residence. Transient
lodging may include but is not limited to resorts, group homes, hotels,
motels, and dormitories.
http://www.mass.gov/Eeops/docs/dps/aab_regs/521008.pdf
521 CMR 8.00: TRANSIENT LODGING FACILITIES
8.1 GENERAL
Transient lodging facilities shall comply with 521 CMR, except as
specified or modified in 521 CMR 8.00. Transient lodging shall include but
not be limited to hotels, motels, bed and breakfasts, inns, boarding houses,
dormitories and resorts. Transient lodging facilities shall also include homeless shelters,
halfway houses, lodging houses and transitional housing, and other
places that provide temporary accommodations. Transient lodging includes
facilities, or portions thereof, used for sleeping accommodations. Sleeping
accommodations in a medical care facility are covered by 521 CMR 13.00:
MEDICAL CARE FACILITIES.
More evidence that Sage House residents are transient is the consistent use
of "housing searches" as part of the so-called "educational" use of 517 Winter.
In the BSAS review of the Sage House under "Program
History," there are several references to clients being transient and even
a reference to clients being "discharged."
This is echoed in SMOC filing with the Planning Board, where they again
cite an "aggressive housing
search for clients" as an integral part of the program. This is not done
in a residence which is "intended for permanent residence"! All of these
documents prove that Sage House clients are homeless, thus transient in nature.
Clearly,
the Sage House is not R-2, and indeed has been operating
since 1999 at 61 Clinton Street not as R-2 but as a “group
residence.” In
addition, acting Building Commissioner Michael Foley reiterated
this in a December
2006 letter and specifically noted the applicability of 780 CMR 4
to the Sage House.
Correct Use Code
Ruling out all
other possible uses, the correct use code for the Sage House would appear
to be R-5, meaning their application to the town for 517 Winter Street was
flawed.
310.7 Use Group R-5 structures: This use group shall include all buildings
arranged for use as limited group residences in accordance with the requirements
of 780 CMR (see 780 CMR 4).
R-5, and indeed the other possible use, “Special
Use and Occupancy” (780
CMR 4) place limits on the number of residents — no more than 25, assuming
no resident is between the ages of 7 and 16. If there are such residents,
the maximum total residents would be even lower. Residents below the age
of seven do not appear to be allowed. (SMOC proposes to house as many as
40 residents, including children under seven.)
Building Code 6th Edition
CHAPTER 4 -- SPECIAL USE AND OCCUPANCY, page 112
780 CMR 423.0 GROUP RESIDENCE
http://www.mass.gov/Eeops/docs/dps/BuildingCode/780004.pdf
So it appears that whether it is determined that the correct use
code is “Special
Use” (780 CMR 4) or R-5, which requires compliance with 780 CMR
4, the maximum total occupancy of the Sage House is (at most) 25, not
40.
What is also clear is that SMOC tried to bypass this regulation by
submitting a flawed application to the town.
Impact of this issue
The "Dover Amendment" (MGL Ch. 40A §3)
states that a nonprofit can bypass local zoning "for educational purposes," without
ever actually defining "educational." After years of judges weighing
in, educational has come to mean pretty much anything. However, no one is
exempt from state zoning, so SMOC must comply with all state building
codes. The only use code appropriate to the Sage House at 517 Winter Street
is R-5, under which SMOC must comply with 780 SMR 4; moreover, they are
licensed by the state as a "group
home." Therefore, according to state law, they are limited to
25 residents with no children under seven. SMOC wants to house up to 40 residents,
with 15 or more children under seven.
The only way SMOC can move in
is by violating their state contract, and the only way they can fulfill the
contract is by filing incorrectly with the town.
Either way, SMOC risks violating either state law or the terms of their contract.
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