BROCKTON AREA MULTI-SERVICES, INC. v. ROBERT LUNDBERG, IN HIS CAPACITY AS BUILDING INSPECTOR FOR THE TOWN OF EAST BRIDGEWATER

Brockton Area Multi-Services, Inc. (“Plaintiff” or “BAMSI”) filed a verified complaint in this action on October 19, 2006, seeking a declaratory judgment pursuant to G.L. c. 231A, § 1 establishing that Plaintiff’s use and occupancy of its property is afforded protections from zoning regulations as set forth in G.L. c. 40A, § 3, second paragraph (the “Dover Amendment”) because of its non-profit, educational status. Plaintiff is the owner of property located at 450 Pleasant Street, East Bridgewater, Massachusetts (the “property”), and said property is used for educational purposes. This action arises out of the Building Inspector for the Town of East Bridgewater’s (the “Building Inspector” or “Defendant”) refusal to issue Certificates of Inspection and a Certificate of Occupancy to the Plaintiff. Specifically, Plaintiff seeks a Certificate of Inspection for the first and second floors of its three-story building, and a Certificate of Occupancy for its third floor, a floor which was previously used only for storage. The Building Inspector’s refusal to issue said certificates stems from Plaintiff’s periodic use of the third floor of its facility for training purposes, a use which the Building Inspector contends is in violation of the Town of East Bridgewater’s (the “Town”) Zoning Bylaw.

It is undisputed that Plaintiff is a non-profit educational corporation, using the first and second floors of the property at issue for a private school licensed by the Department of Education, known as the Metro South Academy, and for an after school enrichment program. For its continued use, Plaintiff is required to provide the Massachusetts Department of Early Education and Care and the Massachusetts Department of Education with annual Certificates of Inspection, the last of which was issued to the Plaintiff on March 3, 2005.

On or about July 24, 2002, Plaintiff executed an agreement with the Town in which Plaintiff agreed not to use the third floor of the subject property for anything other than storage. Defendant contends that Plaintiff’s occupation of the third floor violates this agreement and is otherwise not allowed under the Town’s Bylaw because it violates the height restrictions set forth in Section 6(A) of the Bylaw. Defendant avers that the height requirement contained in Section 6(A) clearly applies to Plaintiff’s property because Section 6(F), which governs educational uses, is silent as to height restrictions and therefore must be read in conjunction with Section 6(A). Defendant concedes that while Plaintiff’s property is used for educational purposes and is therefore afforded the protections set forth in G.L. c. 40A, § 3, second paragraph, he argues that local zoning ordinances may nevertheless be enforced against educational institutions when they are shown to be “reasonable regulations.”

Plaintiff, on the other hand, concedes to periodic use of its third floor for professional development and training, and argues that such use is permissible under the Bylaw because Section 6(F) does not restrict the height of buildings and that Defendant’s attempt to extract the height requirement from 6(A) and apply it to a use under Section 6(F) is contrary to the basic tenets of statutory construction. Furthermore, Plaintiff contends that applying a general height restriction to its educational use is unreasonable and thus unenforceable.

After several continuances, the parties appeared before the court on May 16, 2007 for a case management conference. On January 11, 2008, Plaintiff filed a Motion for Summary Judgment, along with a brief in support of said motion for summary judgment, and a statement of material facts, and on January 15, 2008, Plaintiff filed an appendix to its statement of material facts. Defendant filed an opposition to Plaintiff’s motion on February 28, 2008, along with a memorandum in support thereof and an affidavit of Robert E. Lundberg. Also on February 28, 2008, the parties argued the motion before the court (Trombly, J.), at which time the matter was taken under advisement. Based on the record before it, the court finds the following facts are not in dispute and are established for the purpose of trial or further proceedings in this matter. Mass. R. Civ. P. 56(d):

1. Plaintiff, Brockton Area Multi-Services, Inc., is a Massachusetts non-profit corporation with a principal address of 10 Christy’s Drive, Brockton, Plymouth County, Massachusetts. Plaintiff owns property located at 450 Pleasant Street, East Bridgewater Massachusetts, which is the subject matter of this action. The subject property is located in the Business 3 (B-3) Zone under the Town’s Zoning Bylaws. The Plaintiff purchased this property in 2001 for the purpose of using it as an educational facility.

2. Defendant, Robert Lundberg, is the duly appointed Building Inspector for the Town of East Bridgewater, with a principal business address of 175 Central Street, East Bridgewater, Plymouth County, Massachusetts.

3. After purchasing the property, Plaintiff sought to obtain from the Defendant an occupancy permit for the first and second floors of the building for educational purposes. Before issuing such a permit, Defendant required Plaintiff to engage in various types of work on the building, including installing a sprinkler system throughout its three floors.

4. On July 24, 2002, the Defendant agreed in writing to permit the Plaintiff’s proposed educational use of the property, in which the Metro South Academy and an after-school enrichment program would be situated. In this same instrument, Plaintiff agreed not to occupy the third floor of the building “unless the use is allowed by law.” On this same day, Defendant issued an Occupancy Permit to Plaintiff for use of the first and second floors for educational purposes. Thereafter, Defendant inspected and issued Certificates of Fitness for the first and second floors.

5. Metro South Academy, a private school licensed by the Department of Education, is located on the first floor of Plaintiff’s building and is a curriculum run school for students whose needs cannot be met by the local school system. It is approved to issue Diplomas to its graduating students. The after-school enrichment program is located on the first floor of this same building and provides services to children with special needs due to mental disability. The program is licensed by the Massachusetts Department of Early Education and Care.

6. In order to continue operating Metro South Academy and its after-school program, Plaintiff must submit to the Massachusetts Department of Early Education and Care and the Massachusetts Department of Education an annual Certificate of Inspection. The last Certificate of Inspection issued to Plaintiff by Defendant was issued on March 3, 2005 and has since lapsed.

7. On or about July, 2004, Plaintiff sought a Certificate of Occupancy from Defendant for the use of the third floor of its building for professional development and training purposes. Shortly thereafter, on August 11, 2004, Plaintiff notified the Defendant of its intention to use the third floor for said purpose.

8. Since that time, Plaintiff has repeatedly requested the issuance of Certificates of Inspection for the first and second floors and a Certificate of Occupancy for the third floor. Defendant has refused to issue a Certificate of Occupancy for the third floor, alleging that Plaintiff’s use of the third floor is in violation of the height restriction contained in Section 6(A) of the Town’s zoning bylaw.

9. Relevant to the court’s inquiry is Section 6(A) of the Town’s zoning bylaw, which sets forth dimensional requirements for zoning districts within the Town. In the Business 3 (B-3) Zoning District, Section 6(A) requires a minimum lot area of 30,000 square feet, minimum lot frontage of 125 feet, minimum side yard setback of 25 feet, minimum rear yard setback of 50 feet, a minimum front yard setback of 50 feet, a minimum open space of 20% of the total lot area, and a maximum height of 2 stories or 40 feet. The property at issue is located in the B-3 zoning district.

10. Section 6(F) of the Town’s bylaw, entitled “Educational Uses,” states:

The land or structures used for educational purposes on land owned or leased by the Commonwealth or any of its agencies, subdivisions or bodies politic or by a religious sect or denomination or by a non-profit educational corporation shall comply, unless otherwise permitted by the Board of Appeals by special permit with the following requirements; set back minimum sixty (60) feet; lot area minimum two (2) acres; side lines minimum one hundred (100) ft.; open space minimum one and a half (1½) acres; two and a half (2 ½) parking spaces shall be provided per occupant and building bulk maximum 15,000 cu. ft., for buildings containing sleeping quarters for two (2) or more individuals, or used as a dwelling unit or units.

11. G.L. c. 40A, § 3, second paragraph, also known as the “Dover Amendment,” states in relevant part:

No zoning ordinance or by law shall regulate or restrict the interior area of a single family residential building nor shall any such ordinance or by law prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politic or by a religious sect or denomination, or by a nonprofit educational 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 (emphasis added).

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“Summary Judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643–44 (2002); Mass. R. Civ. P. 56(c). Whether a fact is material or not is determined by the substantive law, and “[a]n adverse party may not manufacture disputes by conclusory factual assertions.” Ng Bros., 436 Mass. at 648; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case, or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). However, the party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). Summary judgment may be granted to the non-moving party. Mass. R. Civ. P. 56(c).

Plaintiff claims that as a matter of law and pursuant to the Town’s zoning bylaws, it is entitled to use the third floor of the subject property for professional development and training purposes, despite the fact that it previously entered into an agreement with the Town in which it agreed to use the third floor for storage only. Plaintiff frames three arguments in support of its position. First, it contends that its building is in compliance with Section 6(F) of the Town’s bylaw which sets forth dimensional requirements for educational uses and that the height restrictions for the B-3 zoning district set forth in Section 6(A) cannot be applied to Plaintiff’s educational use. Second, it avers that such a height restriction as applied to the educational use of its structure is not a “reasonable regulation” permitted under the Dover Amendment as it serves no municipal purpose. Third, Plaintiff argues that its structure is protected by G.L. c. 40A, § 7, which sets forth a ten year statute of limitations for enforcement of dimensional violations. I will address these issues seriatim.

Is the Structure at Issue Used for Educational Purposes?

While it seems as though both parties agree that Plaintiff’s property is used for educational purposes, the court will briefly explain its reasoning as to why the property does indeed constitute an educational use. G.L. c. 40A, § 3, second paragraph, states in relevant part that “[n]o zoning ordinance or by law shall prohibit…the use of land or structures for…educational purposes…” In determining whether a structure is used for educational purposes, “focus must be placed on the use of the structure rather than on the structure itself.” Worcester County Christian Communications, Inc. v. Bd. of Appeals of Spencer, 22 Mass. App. Ct. 83 , 87 (1986). “[G.L. c. 40A, § 3] directs the inquiry to the use of ‘land’ or a ‘structure,’ not the use of an element or part of a structure.” Martin v. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 149 (2001). "Education has long been recognized in the courts of this Commonwealth as a broad and comprehensive term." Campbell v. City Council of Lynn, 32 Mass. App. Ct. 152 , 154 (1992), aff’d in part, rev in part by Campbell v. City Council of Lynn, 415 Mass. 772 (1993). “Nor does it matter that the educational activities are somewhat outside the realm of a traditional curriculum.” Campbell, 32 Mass. App. Ct. at 155.

In the instant action, the parties seem to be in agreement that the structure at issue is used for educational purposes, and the court agrees that the structure’s use as an educational facility is unquestionable. The first floor of the structure is used for an after-school enrichment program which provides services for children with special needs due to mental disability. The program is licensed by the Massachusetts Department of Early Education and Care and clearly serves an educational purpose despite the fact that such activities may fall “somewhat outside the realm of a traditional curriculum.” Campbell, 32 Mass. App. Ct. at 155. Likewise, Metro South Academy, a school which is licensed by the Department of Education and whose curriculum has been approved by the Town of East Bridgewater School Committee, is situated on the second floor of the structure and constitutes an “educational use” even when the term is interpreted in the very narrowest sense. Any additional use of the third floor for “professional development and training” also constitutes an educational use as such training is essential in ensuring the continued effectiveness of any such institution. Having determined that the subject structure is indeed used for educational purposes, the court will now inquire into whether or not the Defendant may incoroporate the height requirement contained in Section 6(A) of the bylaw into the requirements governing educational uses contained in Section 6(F).

Is the Height Requirement Contained in Section 6(A) Applicable to Section 6(F)?

The dilemma before this court arises out of the fact that Section 6(F) of the Town’s bylaw, governing “educational uses,” while setting forth setback requirements, lot area minimums, open space minimums and other restrictions, is silent on height requirements for such uses. Section 6(A), however, governing lot requirements for principal buildings within all zoning districts of the Town, provides a maximum height requirement of “2 stories or 40 ft.” in the Business 3 district in which Plaintiff’s structure is located. While Plaintiff contends that Section 6(A), being the more “general” section of the bylaw, should yield to the more “specific” requirements of Section 6(F) as per the canons of statutory construction, Defendant avers that such a principle is not applicable where two sections can be read in harmony. Defendant avers that in the case at bar, the height requirement contained in Section 6(A) supplements the restrictions set forth in Section 6(F), arguing that an interpretation to the contrary would allow an educational institution to build a skyscraper anywhere in the Town. This court respectfully disagrees.

“The object of all statutory construction is to ascertain the true intent of the Legislature from the words used.” Champigny v. Commonwealth, 422 Mass. 249 , 251 (1996). A fundamental tenet of statutory interpretation is that a statute’s plain meaning is honored if its language is clear and unambiguous, unless a “literal construction would yield an absurd or unworkable result.” Commonwealth v. Millican, 449 Mass. 298 , 301 (2007); Dept. of Community Affairs v. Massachusetts State College Bldg. Auth., 378 Mass. 418 , 427 (1979). “[W]here a general statute and a specific statute cannot be reconciled, the general statute must yield to the specific statute.” Hennessy v. Berger, 403 Mass. 648 , 651 (1988), quoting Pereira v. New England LNG Co., Inc., 364 Mass. 109 , 118 (1973).

In the instant action, a height restriction is noticeably absent from Section 6(F) of the bylaw, which governs “educational uses” within the Town. Included in this section, however, are dimensional requirements for lot setback, area, sidelines and open space. Such an obvious omission of a height restriction indicates to this court that the Town intended Section 6(F) to remain silent on a height requirement for “educational uses.” The Town’s intent not to impose a height restriction on such uses is further supported by the fact that there exists a fundamental difference between educational uses and other uses within a zoning district which may prompt a town to impose different dimensional requirements, either more or less restrictive, than those applied to other uses. Even if the Town mistakenly failed to include a height requirement in Section 6(F), the Defendant is not permitted to take the height requirement from Section 6(A) and apply it to 6(F) unless the requisite intent on the part of the Town is present. In this case, the court does not find that such an intent exists.

This court also agrees with Plaintiff’s contention that if “a general statute and a specific statute cannot be reconciled, the general statute must yield to the specific statute.” The dimensional requirements contained in Section 6(F) are more restrictive than those set forth for the B-3 district in Section 6(A). For instance, the set back minimum in Section 6(F) is 60 feet whereas the setback for the B-3 district in Section 6(A) is only 50 feet. Section 6(F) contains a 100 foot side yard requirement whereas Section 6(A) contains only a 25 foot side yard requirement for the B-3 district. Additionally, the minimum lot area for Section 6(F) is two acres whereas it is only 30,000 square feet in the same district under Section 6(A). Lastly, the open space minimum under Section 6(F) is 1.5 acres, which equals 75% of the total lot area, while Section 6(A) has an open space minimum of 20% of the total lot area for the B-3 district. A comparison of the two sections, therefore, reveals that they do indeed contain conflicting requirements, those in Section 6(F) being more restrictive, and those contained in Section 6(A) being less restrictive. The court, therefore, agrees with Plaintiff’s argument that such a contrast cannot be reconciled pursuant to the aforementioned principle of statutory construction, and that the requirements of the more general Section 6(A) must yield to the more specific requirements contained in Section 6(F). Furthermore, to import a height restriction from Section 6(A) to the more restrictive requirements of Section 6(F) would be contrary to the contrasting requirements of the two sections and the omission of a height restriction from Section 6(F).

Notwithstanding the foregoing analysis, the height restrictions discussed address the physical height of a structure and not the use of the structure. In the present case, the structure at issue was built in the 1980’s and has existed for well over ten years. Pursuant to G.L. c. 40A, § 7, enforcement actions to compel the “removal, alteration, or relocation of any structure by reason of any alleged violation” are barred if not commenced within ten years after the commencement of the alleged violation. Here, Plaintiff’s structure was built as a three-story building in the 1980’s and the Town is therefore time-barred from bringing an action to compel the removal or alteration of any part of the structure. [Note 1] The question remains, however, whether Plaintiff may use the third floor of its structure for educational purposes instead of for storage purposes.

Is Such a Height Restriction Permitted by the Dover Amendment as a “Reasonable Regulation?”

Defendant contends that, pursuant to language in the Dover Amendment authorizing municipalities to adopt “reasonable regulations” concerning the “bulk and height of structures,” the Town is permitted to impose a height restriction on Plaintiff’s property as it constitutes a “reasonable regulation.” In support thereof, Defendant avers that the height restriction is intended to maintain uniformity in building structures and uses, thus preserving the character of the B-3 zoning district and serving public safety interests. Citing the affidavit of Building Inspector Lundberg, it contends that the structure was intended to be used only for storage when it was built and that such a change in use could present structural integrity issues. Plaintiff, on the other hand, argues that applying such a restriction to an already-existing structure is unreasonable and serves no apparent municipal purpose. Plaintiff points out that while the height restriction itself may relate to a reasonable municipal concern, in this particular situation its application is unreasonable.

While the Dover Amendment prohibits the adoption of a zoning ordinance or bylaw that restricts the use of land for educational purposes, it contains a proviso authorizing a municipality to adopt and apply “reasonable regulations concerning the bulk and height of structures and determining yard sizes, to area, setbacks, open space, parking and building coverage requirements.” G.L. c. 40A, § 3, second paragraph; see Trustees of Tufts College v. Medford, 415 Mass. 753 , 757 (1993). Zoning requirements adopted under said proviso which “serve legitimate municipal purposes sought to be achieved by local zoning, such as promoting public health or safety, preserving the character of an adjacent neighborhood, or one of the other purposes sought to be achieved by local zoning…may be permissibly enforced, consistent with the Dover Amendment, against an educational use.” Id. at 757-758. A local zoning requirement may be applied to an educational use if it is shown to be “related to a legitimate municipal concern,” and its “application bears a rational relationship to the perceived concern.” Radcliffe College v. City of Cambridge, 350 Mass. 613 (1966).

The question of reasonableness of a local zoning ordinance as applied to an educational use is a factual issue to be decided on a case by case basis, Trustees of Tufts College, 415 Mass. at 759, and the educational institution challenging the application of a local zoning requirement bears the burden of proving that such a requirement is unreasonable as applied to its educational use. Id. The institution may carry its burden by showing that compliance with the requirement would “substantially diminish or detract from the usefulness of a proposed structure, or impair the character of the institution’s campus, without appreciably advancing the municipality’s legitimate concerns.” Id.

In the present case, any issues surrounding the physical height of Plaintiff’s structure are moot because, as previously discussed, the structure has been in place for over ten years, and pursuant to 40A, § 7, any enforcement actions to commence the removal or alteration of a structure due to an alleged violation are time-barred if brought more than ten years after the commencement of the alleged violation. Use, however, is another issue. The Dover Amendment protects “use” of structures used for “educational purposes” but allows for “reasonable regulations” concerning “bulk and height of structures.” Here, Defendant is attempting to limit Plaintiff’s use of the third floor of its structure, and not the physical height of the structure itself. Such a restriction on use is prohibited by the Dover Amendment. Defendant’s desire to prohibit Plaintiff’s use of its third floor for educational purposes is not a restriction related to the structure’s “bulk and height,” but rather a restriction related to use, and therefore it does not fall under the proviso concerning “reasonable regulations” provided for in the Dover Amendment.

Even assuming, arguendo, that their attempt to restrict Plaintiff’s use of the structure is considered a regulation relating to “bulk and height,” Plaintiff’s have met their burden in showing that such a regulation is unreasonable. The third floor of Plaintiff’s building has been used for storage since its construction. The fact that Plaintiff now wants to use that storage space for professional development and training bears no relationship to a legitimate municipal concern that could be conceived of by this court. While Defendant contends that the building has never been adequately examined for the structural integrity necessary to sustain such a change in use, this problem can easily be resolved by conducting the appropriate inspections and by making the necessary changes to ensure the soundness of the structure. It is not, however, in the opinion of this court, a legitimate municipal concern.

Conclusion

Based on the foregoing analysis, and after having found that there are no issues of genuine material fact, the court hereby GRANTS Plaintiff’s Motion for Summary Judgment, finding, as a matter of law, that Plaintiff is permitted, under the applicable zoning by-law of the Town of East Bridgewater, to use the entirety of the subject property, including the third floor, for educational purposes. The court further finds that Defendant may not import a height restriction from Section 6(A) of the Town’s bylaw and apply it to a use under Section 6(F), nor does such a restriction constitute a “reasonable regulation” under the Dover Amendment.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: August 28, 2008