THE BIBLE SPEAKS vs. BOARD OF APPEALS OF LENOX (and four companion cases [Note 1]).

GREANEY, J. These appeals raise the question whether a town may require an application for a special permit for all new religious and educational uses, or changes in such uses, in residential districts consistent with the provisions of G. L. c. 40A, Section 3, as appearing in St. 1975, c. 808, Section 3. [Note 2] Specifically, we must decide whether the plaintiff, a sectarian educational institution, should have been granted building permits for certain uses attendant to its softball field, which is utilized by its elementary, high school, and college students, without the necessity of first applying under the local by-law for a special permit. We must also determine whether the Lenox board of appeals (board) could properly have conditioned the grant of permission to change the use of three of the plaintiff's existing buildings into classroom and dormitory space, either upon restrictions that affect the entire educational campus or upon restrictions that concern buildings which are not the subject of the special permit applications. All of these questions require examination of the extent to which a municipality by way of its zoning by-law may regulate sectarian and nonsectarian educational uses, a question that has remained relatively dormant since the decision in Radcliffe College v. Cambridge, 350 Mass. 613 (1966).

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We first summarize the facts and procedural history necessary to an understanding of these issues. The Bible Speaks is a non-profit religious and educational corporation organized under the laws of the State of Maine which has filed a certificate as a foreign corporation doing business in the Commonwealth under the provisions of G. L. c. 181, Section 4. [Note 3] On its campus in Lenox (formerly the property of a private nonsectarian educational institution) it conducts a school for grades kindergarten through twelve (approved by the Lenox School Committee pursuant to the provisions of G. L. c. 76, Section 1) and a three-year college to prepare students for the ministry. [Note 4] On May 7, 1976, the town of Lenox (town) at its annual town meeting accepted the provisions of the new zoning enabling act, St. 1975, c. 808 (hereinafter c. 808). At the same meeting the town amended its zoning by-law to include a section covering "Educational/Religious Use" [Note 5] which imposed a limitation

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that all educational and religious purposes "may be permitted as a special exception only if the [board] so determines." [Note 6] On July 23, 1976, the plaintiff applied to the board for a special permit to change the use of one of its buildings from a gymnasium to two classrooms for its college; on August 3, 1976, it further sought to change the use of two other buildings from classrooms and a chapel to small dormitories. On October 15, 1976, the board granted all three special permits, subject to the conditions

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set out in full in the margin. [Note 7] The board went on to state in its decisions that "[t]he petitioner has complied with the first two paragraphs of section 9.18 by filing" plans and information concerning the total operation of its campus as part of the applications for special permits for changes in use of the three existing buildings. The plaintiff filed a timely action in the Superior Court seeking review of the decisions and specifically objecting to the four general conditions (conditions 4A, B, C & D in the board's decision, note 7, supra) upon which the special

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permits were granted in all three change-of-use cases.

On May 25, 1977, the plaintiff applied to the building inspector for a building permit to erect hooded lights thirty-five feet high [Note 8] on a softball field which is part of its campus. The building inspector refused to grant the permit. On the same date, the plaintiff requested a building permit to convert an existing shed near its ballfield into a snack bar primarily for the benefit of its students and others using the field. This request was also denied. The plaintiff appealed from both actions of the building inspector to the board. On August 29, 1977, the board issued separate decisions on the two appeals which are reproduced, insofar as material, in the margin, [Note 9] upholding the

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building inspector's denial of building permits on the bases that a change in a religious or educational use required application for a special permit and that the operation of the softball field at night was not "reasonably necessary for the functioning of the religious or educational uses." The plaintiff brought separate complaints against the building inspector and the board in both the snack bar and lights cases testing the validity of these actions.

Those actions were consolidated for trial along with the pending complaints involving the three change-of-use cases. A District Court judge sitting in the Superior Court under statutory authority ruled: (1) that the board had no authority to grant or deny the permit for the snack bar (as a consequence he ordered the board to refrain from interfering with the operation of the plaintiff's snack bar); (2) that the denial of a permit to erect the lights was

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within the power of the board (as a result he affirmed the decision of the board); and (3) that the specific conditions imposed on the special permits for change of use of the three existing buildings were valid, as restatements of the substance of the plaintiff's applications, but that the remaining four general restrictions were attempts to impose limitations on the plaintiff's general educational activities and, as such, exceeded the authority of the board (as a result he ordered these conditions annulled). Judgments were entered accordingly. The board and the building inspector took appeals from the judgments in the snack bar cases; the board also appeals from the judgment in the change-of-use cases, and the plaintiff appeals from the judgment in the lights cases.

In substance, we are content with the judge's rulings that the plaintiff may utilize its existing shed as a snack bar and that the board exceeded its authority in imposing general restrictions upon the plaintiff as preconditions to a change of use of its buildings. We disagree with the judge's conclusion that the board's decision as to the softball field lights was proper. Our disposition of the issues follows a different route from that taken by the judge below and is based on the conclusion that the local by-law exceeds tolerably permissible limits in its regulation of educational uses.

1. Applicability of G. L. c. 40A. At the outset we consider the plaintiff's contention that it is entirely exempt from the effect of The Zoning Enabling Act, G. L. c. 40A, as formulated through c. 808, and as a result, that it is also exempt from any local zoning requirements enacted pursuant to c. 40A. It bases this contention in part upon the language which appears in c. 808, Section 6, which provides, insofar as material, that "[t]he provisions of [G. L. c. 40A], as amended . . . shall not be deemed to affect any church or other facilities used for religious purposes in existence or under construction prior to [June 30, 1978]." It claims that the provisions of Section 6 are designed to continue in effect the prior versions of G. L. c. 40A, which exempted

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religious and educational uses from zoning control under local by-laws. [Note 10] In further support of this argument the plaintiff directs our attention to cases elsewhere which it cites as persuasive authority for the proposition that uses analogous to those present on its campus are primarily religious uses, exempt from any form of local zoning control. These decisions are four in number: Bishop v. Ashton,

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92 Idaho 571, 574-575 (1968), which held that a recreational complex built by a religious organization on the same grounds as its church building was within the scope of the term "church" in an ordinance permitting church use in a residential zone; Slevin v. Long Island Jewish Medical Center, 66 Misc. 2d 312, 317-319 (N.Y. Sup. Ct. 1971), which determined that a drug rehabilitation center located in a church parish house was a religious use; Diocese of Rochester v. Planning Bd. of Brighton, 1 N.Y. 2d 508, 522-526 (1956), which concluded that the decision of a local zoning board denying a permit to erect a church and a parochial school in a residential zone was arbitrary and unreasonable, because a church could not be unreasonably excluded from a residential zone, and a parochial school was to be permitted wherever public schools were allowed; and State ex rel. Covenant Harbor Bible Camp v. Steinke, 7 Wis. 2d 275, 281 (1959), which held that a Bible camp constituted a permissible use under an ordinance which authorized "churches . . . boarding-and-lodging parochial schools [and] organized quasi-public recreational . . . buildings and grounds," and became a nonconforming use upon passage of an amendment deleting these provisions.

The plaintiff's argument, reduced to basics, appears to draw on three premises: (1) that it is primarily a religious enterprise because its principal function is to educate and train people for the ministry; (2) that c. 808, Section 6, is the legislative restatement of the Dover Amendment and exempts projects under construction by religious organizations if started prior to June 30, 1978, irrespective of the town's earlier acceptance of c. 808; and (3) that because its oar was in the water on all the proposed activities in issue prior to June 30, 1978, the town could not impose any restrictions on their completion. We are not persuaded by this argument.

The cases relied upon by the plaintiff, read in connection with the provisions of c. 808, Section 6, to establish the proposition that religious uses are generally exempted

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from any zoning regulation, are all inapposite. The Bishop and Slevin decisions concerned themselves with proposed accessory uses to existing church facilities and did not involve sectarian educational facilities such as are in issue here. The Rochester decision is based on the peculiarities of the local by-law involved in that dispute, while the result in the Harbor Bible Camp case turns on the law relating to nonconforming uses.

Moreover, the plaintiff's argument also completely overlooks the presence of G. L. c. 40A, Section 3, appearing in c. 808, Section 3. This section provides, in pertinent part, that "[n]o 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 . . . 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." It is this section, not c. 808, Section 6, that is intended to synthesize the Dover amendment and case law construing it (see note 10, supra). Section 6 must be viewed as a special nonconforming use provision of limited life to accommodate religious uses which were in the planning stage when c. 808 was enacted and which were likely to be built or under way by June 30, 1978.

Reading Sections 3 and 6 together, in the light of case law, and harmonizing the two sections in view of the purposes they seek to accomplish, we conclude that Section 6 was designed to permit exclusively church-like properties to continue projects under construction without encumbrance by local zoning by-laws until June 30, 1978, irrespective of a town's earlier acceptance of c. 808, while Section 3 was intended to authorize a town such as Lenox, upon its acceptance of c. 808, to impose the type of regulations described in that section on sectarian educational uses or other religious uses which were not intrinsically accessory

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to a church. [Note 11] Considering the uses contemplated by the plaintiff against the broad definition of the term "education" fashioned by our case law (see e.g., Radcliffe College v. Cambridge, 350 Mass. at 618, holding that parking, and the feeding and housing of college personnel is "within the broad scope of the educational powers," and Harbor Schs. Inc. v. Board of Appeals of Haverhill, 5 Mass. App. Ct. 600 , 605 [1977], quoting from Mount Hermon Boys' Sch. v. Gill, 145 Mass. 139 , 146 [1887], stating that "[e]ducation may be particularly directed to either the mental, moral, or physical powers and faculties, but in its broadest and best sense it relates to them all"), it is plain to us that all the plaintiff's proposed uses are educational in nature, as purposes directly related to the functioning of the sectarian educational institution maintained on its Lenox campus. It follows, as a consequence, that the plaintiff is not exempt by reason of c. 808, Section 6, from the town's application of restrictions adopted under G. L. c. 40A, Section 3, which permits educational "land or structures [to 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."

2. Validity of the Lenox by-law. By employing the language just quoted, the Legislature set out the scope of permissible regulation of religious and educational land and structures. In the context of this case, Lenox may, through the mechanism of its zoning by-law, consistent with G. L. c. 40A, Section 3, regulate the bulk of buildings on the plaintiff's campus and impose dimensional and parking

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requirements; and the building inspector may properly deny the plaintiff permits for any structure which does not comply with such "reasonable regulations." But the town may not, through the guise of regulating bulk and dimensional requirements under the enabling statute, proceed to "nullify" the use exemption permitted to an educational institution. Sisters of the Holy Cross v. Brookline, 347 Mass. 486 , 494 (1964).

We turn then to the question whether Sections 6 and 9.18 of the town's zoning by-law, when taken together, impose the type of permissible bulk, dimensional, and parking limitations specified in G. L. c. 40A, Section 3, as the defendants claim, or whether they impermissibly regulate the use of a sectarian educational institution, as the plaintiff claims.

The board points out that Section 9.18 of the by-law sets out under a heading of "Regulations," specific limitations of the sort expressly permitted under G. L. c. 40A, Section 3 (see note 5, supra). There would be no difficulty if these constituted the only limitations which the town applied to educational institutions such as the plaintiff's campus. However, the by-law imposes several other requirements which apply to the plaintiff's educational uses within Section 9.18 and Section 6. Section 9.18 also requires every nonmunicipal educational institution planning any change in its buildings and structures to file with the board a site plan and an informational statement designed "to minimize the probable impact of such uses upon the town in general and upon the character of the specific neighborhood." The site plan calls for a delineation of existing buildings, parking areas, sewer and water lines, trees over twelve inches in diameter, "and any other significant existing man-made or natural features"; the informational statement must include "the probable effects of the use on [such factors as] . . . changes in the number of legal residents, . . . increases in municipal service costs, . . . changes in tax revenue, . . . land erosion or loss of tree cover, . . . character of surrounding neighborhood,

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. . . master plan of the town, . . . [or] any pertinent regional plans." [Note 12] The requirement of a site plan and the type of development prospectus required by the informational statement would be perfectly appropriate for consideration of proposed subdivisions under the Subdivision Control Law, G. L. c. 41, Section 81K et seq., or for the evaluation of cluster and planned unit developments under the zoning law, G. L. c. 40A, Section 9, as appearing in c. 808, Section 3. But there is nothing in the language of G. L. c. 40A, Section 3, which contemplates the requirement of site plans and informational statements as monitoring devices for educational uses, and it is quite obvious that an educational campus of the type under consideration in this case is neither a subdivision nor a project in the category of a cluster or planned unit development. Section 9.18 in its entirety goes beyond a collation of all of the reasonable bulk and dimensional requirements which a by-law can legitimately impose on educational buildings and districts.

The full impact of the requirements of Section 9.18 must also be appraised in light of the provisions of Section 6 of the by-law, which makes educational uses, such as the plaintiff's special exceptions dependent on the discretionary grant of a special permit by the board. [Note 13] By reliance on the criteria spelled out in the informational statement, the board is essentially attempting to exercise planning board functions and pursuing its own notions of land use planning, and to the extent that those notions become inconsistent with the presence or expansion of educational

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institutions within the town, the board will be able to fashion restrictions that subordinate the educational use to the board's planning goals. Any such restrictions imposed under the authority of the by-law may well have the effect of nullifying, or seriously diminishing, the educational institution's entitlement to reasonable growth. The by-law also, as a practical matter, would enable the board to exercise its preferences as to what kind of educational or religious denominations it will welcome, the very kind of restrictive attitude which the Dover Amendment was intended to foreclose. The board's decisions in these cases bear out these observations by indicating that the board applied the by-law to make its own determination of what constituted an educational use, and once that determination was made, to impose conditions in areas outside of those specified in the enabling statute.

In our opinion, the provisions of the by-law taken together invest the board with a considerable measure of discretionary authority over an educational institution's use of its facilities and create a scheme of land use regulation for such institutions which is antithetical to the limitations on municipal zoning power in this area prescribed by G. L. c. 40A, Section 3. The Legislature did not intend to impose special permit requirements, designed under c. 40A, Section 9, to accommodate uses not permitted as of right in a particular zoning district, on legitimate educational uses which have been expressly authorized to exist as of right in any zone. [Note 14]

We conclude, therefore, that the provisions of the Lenox by-law go well beyond the scope of bulk, dimensional, and parking regulations permitted to be imposed on educational uses by G. L. c. 40A, Section 3, and place the board in a position to act, as it did in this case, impermissibly

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to "impede the reasonable use of the [institution's] land for its educational purposes." Radcliffe College v. Cambridge, 350 Mass. at 618.

3. Relief. The question of a proper disposition of the cases remains. The plaintiff's multiple actions are susceptible to consideration as requests for declaratory relief (Woods v. Newton, 349 Mass. 373 , 375 [1965]) and, in reaching a disposition, we consider it appropriate to treat them in that posture. Despite the presumption of validity accorded to municipal zoning ordinances (Crall v. Leominster, 362 Mass. 95 , 102 [1972]), we are satisfied that portions of the Lenox by-law are in conflict with The Zoning Enabling Act. It is also clear to us that those portions of Section 9.18 of the by-law which impose bulk, dimensional and parking restrictions on educational uses would be valid as the type of reasonable regulations authorized by G. L. c. 40A, Section 3, if they stood apart from the embroidery contained in the provisions of the by-law requiring site plans, information statements, and special permits for educational uses. We determine, however, that the bulk, dimensional, and parking regulations are severable from the balance of Section 9.18, and from the provisions in Section 6, and are capable of enforcement as if they were limitations applicable to all structures of a particular class, including educational buildings and structures.

The judgments are reversed, and new judgments are to be entered, declaring that Section 6 and those portions of Section 9.18 of the Lenox zoning by-law which impose the requirements of a site plan, informational statement, and special permit before religious and educational institutions can expand their uses are invalid; that the provisions of Section 9.18, imposing bulk, dimensional, and parking requirements are valid; that the plaintiff is not required to apply for a special permit as a condition precedent to obtaining a building permit for the construction of its softball field lights; that the plaintiff is not required to obtain either a special permit or a building permit in order to use its shed as a snack bar; and that the conditions annexed to

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the three change-of-use cases (denominated in the decisions dated October 15, 1976, as 4A, 4B, 4C and 4D) are annulled, with the notation that occupancy of the buildings can be conditioned on compliance with the applicable parking requirements in Section 9.18. [Note 15]

So ordered.