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”) [Note 1] commenced this action on October 19, 2006 by filing a verified complaint seeking a declaratory judgment pursuant to G.L. c. 231A, § 1 establishing that Plaintiff’s use and occupancy of the entirety of its property, located at 450 Pleasant Street, East Bridgewater, Massachusetts, 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. Specifically, Plaintiff seeks from the Building Inspector for the Town of East Bridgewater (the “Building Inspector” or “Defendant”), 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 for storage.

The Building Inspector refuses to issue such certificates on the ground that Plaintiff’s use of its third floor for training purposes is in violation of the height requirement of Section 6(A) of the Town’s zoning bylaw and on the grounds that such a height requirement is a “reasonable regulation” pursuant to G.L. c. 40A, § 3, second paragraph.

On January 11, 2008, Plaintiff filed a Motion for Summary Judgment along with a brief in support of said motion and a statement of material facts, and on January 15, 2008, Plaintiff also 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. The motion was argued before the court (Trombly, J.) on February 28, 2008, at which time the matter was taken under advisement.

In a Decision entered today, this court finds and rules that, as a matter of law, Plaintiff is permitted to use the entirety of the subject property, including the third floor, for educational purposes, pursuant to Section 6(F) of the Town’s zoning bylaw and that Defendant may not import a height requirement from Section 6(A) and apply it to Plaintiff’s educational use. The court further finds and rules that Plaintiff’s use of the third floor of its structure for educational purposes is protected by G.L. c. 40A, § 3 and that the height restriction at issue does not constitute a “reasonable regulation” pursuant to G.L. c. 40A, § 3. Furthermore, the structure itself is protected under G.L. c. 40A, § 7.

In accordance with that Decision, it is

ORDERED, ADJUDGED, and DECLARED that Plaintiff’s Motion for Summary Judgment is hereby GRANTED. The requirements set forth in Section 6(F) of the Town’s zoning bylaw, and not the requirements of Section 6(A), are applicable to Plaintiff’s use of its property for educational purposes. Plaintiff’s use of the third floor of its structure for educational purposes is in compliance with Section 6(F) of the bylaw. In addition, Plaintiff’s use of the third floor for educational purposes is protected by G.L. c. 40A, § 3, and the application of a height restriction to such a use is not a “reasonable regulation” under the statute. Finally, the structure itself is protected pursuant to G.L. c. 40A, § 7.

By the Court. (Trombly, J.)