MISC 08-378178

December 17, 2009


Cutler, J.



In this case, the Aquarius Sanctuary Center for Higher Learning and Healing, Inc. (the “Aquarius Corporation”) and the Pamela M. Ross Investment Trust (the “Ross Trust”) (collectively, the “Plaintiffs”) have appealed under G.L. c. 40A, §17 (“§17”) from a decision of the Littleton Zoning Board of Appeals (the “Board”). [Note 1] The Board’s decision upheld the Littleton Building Commissioner’s zoning enforcement order with respect to the use of an accessory building on the Ross Trust property at 3 Baron Way in Littleton (the “Property”), by a business known as the Aquarius Sanctuary. In upholding the enforcement order, the Board agreed with the Building Commissioner that there was insufficient information to support a finding that the primary purpose of the Aquarius Sanctuary facility is educational, such that the use qualifies for an educational use exemption under G.L. c. 40A, §3 (“§3”), the so-called “Dover Amendment.” Defendant Building Commissioner has counterclaimed under G.L. c. 40A, §7, alleging that the use of the Property by the Aquarius Sanctuary violates the Littleton Zoning By-law (the “By-law”) and also violates the conditions of a variance issued in 2002 allowing use of the subject accessory building for a home occupation. The Counterclaim seeks to have the Plaintiffs/Defendants in Counterclaim permanently enjoined from operating the Aquarius Sanctuary on the Property, and from conducting all other activities on the Property which are in violation of the By-law and the 2002 variance.

The Plaintiffs have now moved for summary judgment in their §17 appeal, arguing that the Board erred in determining that the Aquarius Sanctuary is not an exempt educational use under §3, and arguing, in the alternative, that the Aquarius Sanctuary is allowed by right under the By-law as either a school or a religious use. [Note 2] The Board has opposed the Plaintiffs’ motion and has requested the entry of summary judgment against the Plaintiffs, pursuant to Mass. R. Civ. P. 56(c) (“Summary judgment, when appropriate, may be rendered against the moving party.”).

“Summary judgment is appropriate where there is no genuine issue of material fact, and viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law.” Opara v. Massachusetts Mut. Life Ins. Co., 441 Mass. 539 , 544 (2004). The burden of proof is generally on the complainant to show that the use or structure violates the zoning by-law, see Brotherhood of Alpha Epsilon, Inc. v. Zoning Board of Appeals of Bridgewater, 15 Mass. App. Ct. 991 , 992 (1983), but, as here, where the landowner is raising §3 as a defense to a cease and desist order, it is the landowner’s burden to prove entitlement to the statutory protection. See Trustees of Tufts College v. City of Medford, 415 Mass. 753 , 763 (1993); Metrowest YMCA, Inc. v. Town of Hopkinton, 14 LCR 378 , 379 (1994). Therefore, the burden is on the Plaintiffs in this case to prove that the Aquarius Sanctuary use is entitled to the §3 exemption. In moving for summary judgment, the Plaintiffs were required to first demonstrate by reference to the pleadings, depositions, answers to interrogatories, admissions, or affidavits that there are no genuine issues of material fact, and to further demonstrate that they are entitled to judgment on the undisputed facts as a matter of law. See Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997); Ng Brothers Construction, Inc. v. Cranney, 436 Mass. 638 , 633-644 (2002); Mass. R. Civ. P. 56(c).

As discussed below, the Plaintiffs’ claim that Aquarius Sanctuary’s use is entitled to the §3 exemption is premised on a misreading of relevant law. Moreover, the undisputed material facts are insufficient to establish whether the Board’s decision was correct as a matter of law. Accordingly, the Plaintiffs’ Motion for Summary Judgment must be denied, and the Defendants’ request for entry of summary judgment in its favor is also denied.

Undisputed Material Facts

Based upon the pleadings, the parties’ respective statements of material facts, and the admissible materials submitted in support of the parties’ respective summary judgment memoranda, the following material facts are not in dispute:

1. Plaintiff Pamela M. Ross, Trustee of the Pamela M. Ross Investment Trust (the “Ross Trust”) owns the approximately 2.9 acre property at 3 Baron Way in Littleton, Massachusetts (the “Property”). The Property is located in a residential district. The property contains a single-family dwelling, a garage, and a second accessory building.

2. Pamela M. Ross and her husband, Joel Ross, have at all times relevant resided in the dwelling on the Property.

3. In 2001, Pamela Ross sought permission from the Littleton Building Commissioner to allow the use of the accessory building on the Property for the conduct of her occupation as a Reiki practitioner and teacher. In her written request, dated August 15, 2001, Ms. Ross described Reiki as

an ancient non-invasive, hands on healing energy technique that helps reduce stress, relieves or takes away pain, and promotes an overall healing process both on a physical and emotional level.

Ms. Ross further described the practice of Reiki as

connect[ing] a client to their energy source much like an electrical cord being plugged into a wall socket. The energy flows through the practitioner from the source to the areas of the client’s body that are most in need of its healing effect.

4. Ms. Ross described the scope of her proposed home occupation as seeing between four to six clients per day for Reiki sessions, and occasionally teaching Reiki classes. She further represented that she might have one employee, either another practitioner or office help.

5. Pursuant to sections 173-26 and 173-54 of the By-law, “[c]ustomary home occupations, office[s] of professional persons residing on the premises, handicrafts, hobbies or activities of a similar nature” are allowed by right in a residential district, “provided that such activities are carried on by residents of the dwelling, plus not more than one (1) additional employee, and that accessory buildings used for such purposes shall not be placed forward of the rear line of the building.”

6. Because the existing accessory building which Ms. Ross sought to use for her proposed home occupation was located forward of the rear line of the single family dwelling on the Property, she sought a variance to allow the building to be used for her Reiki practice as a home occupation.

7. By deed dated February 25, 2002, Pamela M. Ross and Joel Ross conveyed the Property to the Ross Trust, for nominal consideration.

8. In 2002, the Board granted the variance [Note 3] from the accessory building location requirement in Section 173-54, subject to two conditions. One condition restricted the parking of automobiles along the private way serving the Property. The second condition essentially restated the By-law limit of no more than one employee who is not a resident of the dwelling.

9. At some point after Ms. Ross started to operate her Reiki practice on the Property, she began to allow numerous third parties to use the accessory building to provide similar services, and to offer readings and workshops on a variety of topics. The business became known as the “Aquarius Sanctuary.”

10. In late 2006, following up on a complaint from neighbors to the Property, the Building Commissioner determined that the Aquarius Sanctuary business was not being carried on in compliance with the conditions of the 2002 variance. He issued a zoning enforcement order to the Rosses, who then appealed that order to the Board. When the Board voted to uphold the 2006 enforcement order, the Rosses appealed the Board’s February, 2007 decision to this court under G.L. c. 40A, §17. Joel Ross, et al v. Littleton Board of Appeals, Misc. Case No. 343238. [Note 4]

11. On August 6, 2007, Ms. Ross formed the Aquarius Sanctuary Center for Higher Learning and Healing, Inc. (the “Aquarius Corporation”) as a nonprofit corporation under G.L. c. 180. On August 30, 2007, the Rosses stipulated to a dismissal of their zoning appeal in Misc. Case No. 343238.

12. The Aquarius Corporation Articles of Incorporation state that the purpose of the Aquarius Corporation is to engage in the following activities:

Educating, developing and training powers and capabilities of persons in physical and spiritual healing and contemplation, and to own real and personal property to support such purposes.

13. The Aquarius Corporation Articles of Incorporation list Pamela Ross as President, and Joel Ross as Treasurer and Clerk of the Corporation. The address for the Aquarius Corporation’s principal office is listed as 3 Baron Way, Littleton, Massachusetts. The residential address and postal address listed for Aquarius’ sole two officers are also listed as 3 Baron Way, Littleton, Massachusetts.

14. On August 8, 2007, the Aquarius Corporation began leasing from the Ross Trust a portion of the Property (the “Premises”) described as:

The building known as Aquarius Sanctuary and shown as “1 STORY W/F BLDG” on a plan entitled “As-Built Plan for 3 Baron Way in Littleton, MA 01460, Middlesex County” prepared for Pamela & Joel Ross, 3 Baron Way, Littleton, MA 01460 by Waterman Design Associates, Inc. 31 East Main Street, Westborough, MA 01581 and associated parking spaces and yard areas.

The lease specifies that the Aquarius Corporation shall use the Premises for “education, classes, seminars, workshops and related activities including but not limited to Reiki and other self-empowering techniques.”

15. The Rosses later communicated, via counsel, with the Building Commissioner, claiming that Aquarius was now exempt from zoning regulation under the educational use exemption in G.L. c. 40A, §3. The Building Commissioner disagreed and, on September 28, 2007, issued another zoning enforcement order to the Rosses, once again reciting that the operations conducted on the Premises were not in compliance with the terms of the 2002 variance which had been granted to permit home occupation use of the accessory building. The Rosses appealed the 2007 enforcement order to the Board, contending that the Aquarius Sanctuary is an educational use which is exempt from local zoning regulation under the G.L. c. 40A, §3.

16. Following a public hearing and a view, the Board voted on March 28, 2008 to uphold the 2007 enforcement order, finding that the activities conducted at the Aquarius Sanctuary did not qualify the facility as an educational use under the Dover Amendment, but instead were more similar to counseling or patient services, and that the physical layout of the facility was more conducive to individual treatments than to education. The Board stated in its decision that it did not find education to be the primary or dominant purpose of the Aquarius Sanctuary.


The undisputed facts in this case are insufficient to support summary judgment that the primary or dominant purpose of the Aquarius Sanctuary use is educational. As a threshold matter, the Plaintiffs’ motion for summary judgment is based on a misapprehension of the law interpreting the §3 educational use exemption. The pertinent language in §3 states:

No zoning ordinance or by-law shall … prohibit, regulate or restrict the use of land or structures … 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 …

(Emphasis added.) Under the plain language of §3, there are two requirements which must be met in order to qualify for this statutory zoning exemption. First, the use must be “for educational purposes,” and second, the land and/or structure used for the educational purposes must be owned or leased by a nonprofit educational corporation. [Note 5]

The latter requirement is satisfied if the nonprofit corporation’s “articles of organization permit it to engage in educational activities” and it is in possession of the land in question. See Gardner-Athol Area Mental Health Assoc., Inc., v. Zoning Board of Appeals of Gardner, 401 Mass. 12 , 15-16 (1987). There is no dispute that the Aquarius Sanctuary is operating on premises leased by the Aquarius Corporation and that said Corporation qualifies as a “nonprofit educational corporation” under the Gardner-Athol standard. What is disputed is whether the Aquarius Sanctuary operates on the Premises “for educational purposes,” as that term is used in §3.

The Supreme Judicial Court has interpreted the §3 phrase “for educational purposes” as meaning that the “primary or dominant purpose” of the facility is educational. Whitinsville Retirement Society, Inc. v. Town of Northbridge, 394 Mass. 757 , 759-760 (1985). Therefore, the central issue in this case is whether the Aquarius Sanctuary is operated primarily for an educational purpose. As observed in Whitinsville, merely an “element of education” is insufficient to qualify a use for the §3 exemption. See also Needham Pastoral Counseling Center, Inc., v. Board of Appeals of Needham, 29 Mass. App. Ct. 31 , 36 (1990).

Gardner-Athol is not apposite. The Plaintiffs incorrectly rely upon the Supreme Judicial Court’s holding in that case to argue that the “primary or dominant” educational purpose standard is no longer applicable. The Gardner-Athol decision, however, ruled only that education need not be the primary purpose of the nonprofit corporation in order to qualify the corporation as a nonprofit educational corporation under the Dover Amendment. Gardner-Athol did not alter (as the Plaintiffs vigorously assert) the standard enunciated in Whitinsville that the use itself must have a primary or dominant educational purpose in order to qualify the land or structure for the §3 exemption. Indeed, the Court expressly stated at the outset of its decision in Gardner-Athol that the correctness of the lower court’s finding that the proposed use was for educational purposes needed no further discussion. Gardner-Athol, 403 Mass at 13. The Court then went on to address only the judge’s conclusion that the corporation operating the (indisputably educational) use was not a “nonprofit educational corporation.” [Note 6]

Accordingly, the Plaintiffs are not entitled to summary judgment that the Board applied the wrong legal standard when it upheld the 2007 enforcement order after being unable to conclude on the information before it that the primary or dominant purpose of the Aquarius Sanctuary is educational.

Additionally, the Plaintiffs have not met their burden on summary judgment to establish on the basis of undisputed material facts that the primary or dominant purpose of the Aquarius Sanctuary use is educational. Rather, the nature and scope of activities conducted at the Aquarius Sanctuary remain in dispute. The Plaintiffs rely on the published schedule of activities, programs and workshops offered for a three-month period in 2008, the self-authored biographies of the individuals offering counseling or healing services, workshops, programs, and readings at the Aquarius Sanctuary, and selected deposition testimony of several of the individuals who have conducted workshops and readings at the Aquarius Sanctuary, to establish that a number of these individual workshops and readings have an educational purpose. [Note 7]

The Board, for its part, also relies extensively on deposition testimony and answers to interrogatories, to demonstrate that the dominant purpose for the individual programs and activities is not educational. As a result, the court is being asked to compare, evaluate, and make inferences from numerous discovery documents (including several hundred pages of deposition testimony) regarding the nature and purpose of numerous, individual programs and workshops, in order to determine the primary purpose of the Aquarius Sanctuary use, as a whole. A judge’s role in considering a summary judgment motion, however, is not to pass on the credibility of witness testimony or the weight of the evidence, or, indeed, make her own findings of fact. Beatty v. NP Corp., 31 Mass. App. Ct. 606 , 607 (1991); Attorney Gen. v. Bailey, 386 Mass. 367 , 370 (1982). Rather, the duty of the judge reviewing a summary judgment motion is first to “determine whether there is a substantial issue of fact.” Noyes v. Quincy Mut. Fire Ins. Co., 7 Mass. App. Ct. 723 , 726 (1979), quoting Norwood Morris Plan Co. v. McCarthy, 295 Mass. 597 , 603 (1936). Only if there are no issues of material fact can the judge go on to decide whether the moving party is entitled to judgment as a matter of law on the undisputed facts. Here, the central question concerning the Aquarius Sanctuary’s primary purpose cannot be resolved on the basis of the conflicting summary judgment materials presented.


In conclusion, because there remain substantial and material facts in dispute about the primary or dominant purpose of the Aquarius Sanctuary use, the Plaintiffs’ Motion for Summary Judgment is DENIED.


By the court (Cutler, J.)


Deborah J. Patterson, Recorder

Dated: December 17, 2009


[Note 1] In addition to their zoning appeal under G.L. c. 40A, §17, the Plaintiffs include in their complaint a petition for mandamus, pursuant to G.L. c. 249, §5, ordering the Building Commissioner to issue a Certificate of Occupancy to the Aquarius Corporation, a request for a preliminary injunction, pursuant to G.L. c. 249, §4, preventing the Building Inspector from taking enforcement action against the Aquarius Corporation, and a claim for declaratory judgments that the Aquarius Sanctuary’s use is exempt under G.L. c. 40A, §3 from site plan review, and that no additional Board of Health review of the property is necessary. Notably, the Board of Health is not a party to this case and the complaint sets forth no allegations of controversy with respect to either the site plan review requirements or the Board of Health review.

[Note 2] As this alternative argument was not raised in the pleadings, it will not be considered.

[Note 3] The Rosses originally petitioned for the variance in 2001, but the Board denied the variance at that time. The Rosses appealed the denial to the Land Court. Joel Ross, et al v. Littleton Board of Appeals, Misc. Case No. 277117. The parties jointly sought a remand in that case, and the Board ultimately granted the variance by decision dated April 4, 2002. Subsequently, the parties filed a stipulation of dismissal.

[Note 4] The issue in that appeal was whether several part-time employees working less than 40 hours per week in the aggregate was equivalent to one employee and, therefore, consistent with the one employee limit stated in the By-law and the 2002 variance.

[Note 5] There is no claim here that the Premises are owned or leased by the Commonwealth, or any of its agencies, subdivisions or bodies politic, and no claim that they are owned or leased by a religious sect or denomination.

[Note 6] The Plaintiffs also misread the dissent in Gardner-Athol. Contrary to Plaintiffs’ assertions, Justice Lynch’s dissent does not interpret the majority opinion as eliminating the “primary and dominant” educational purpose standard. Rather, he disagrees with the majority’s interpretation of the term “educational corporation” for the very reason that such interpretation is inconsistent with the Whitinsville conclusion that “educational purpose,” as used in the same sentence of §3, “requires that the primary or dominant purpose of the proposed use be educational.” In the dissenting justice’s opinion, because the word “education” is used twice in the same sentence, it should be given the same meaning in both contexts. None of the other cases cited by the Plaintiffs in their summary judgment memorandum support their novel interpretation of Gardner-Athol.

[Note 7] The Plaintiffs contend that certain of the programs and workshops offered at Aquarius are either educational courses or are supportive services that qualify as educational activities, including: Reiki I, Reiki II, Tai Chi, Monday Night Healing Program, How to Give an Angel Reading, Shamanism, Reiki for Animals, Magnified Healing, Angels Workshop, Animal Communication Workshop, Ascended Masters Workshop, Chi Gong, Medicine Wheel Workshop, Clear Your Clutter Workshop, Sacred Geometry, and Raw Foods Workshop.