REGIS COLLEGE vs. TOWN OF WESTON, and WENDY KAPLAN ARMOUR, PETER C. KNIGHT, MARC MARGULIES, WINIFRED LI, JANE F. CARSON, and ELIZABETH H. MUNROE, as they are members of the ZONING BOARD OF APPEALS of the TOWN OF WESTON, ROBERT HEDGES, JR., CHRISTIE HEDGES, PATRICIA MOHIUDDIN, AHMED MOHIUDDIN, ARNOLD ZENKER and BARBARA ZENKER

On November 25, 2005, Plaintiff Regis College ("Regis") filed an unverified Complaint containing six counts. Counts I-IV were brought pursuant to G. L. c. 40A, § 3 (the "Dover Amendment") and G. L. c. 240, § 14A, seeking a determination that a proposed development of Regis' East Campus (as hereinafter defined) (the "Project") is an educational use protected under the Dover Amendment and, accordingly, that certain dimensional provisions of the Weston Zoning By-law (the "By-law") are invalid as applied to the Project. Count V was brought pursuant to G. L. c. 40A, § 17, appealing the denial of certain variances by the Zoning Board of Appeals of the Town of Weston (the "ZBA"). Count VI was brought pursuant to Const. Pt. 2, c. 5 § 2 of the Massachusetts Declaration of Rights, seeking declaratory judgments relating to the validity of provisions of the By-law, both facially and as-applied to the Project. The Complaint named the Town of Weston (the "Town") and members of the ZBA as defendants (hereinafter collectively, "Defendants").

The Town filed an Answer to Counts I-IV and VI of the Complaint on February 13, 2006. On February 17, 2006, Stop Regis Overdevelopment, Inc. ("SRO"), Robert Hedges, Christie Hedges, Patricia Mohiuddin, Ahmed Mohiuddin, Arnold Zenker, and Barbara Zenker filed a Motion to Intervene as Parties Defendant, an Answer to Regis' Complaint, and supporting affidavits of Robert Hedges, Patricia Mohiuddin, and Arnold Zenker. Regis filed an Opposition to the Motion to Intervene and a Motion to Strike Certain Portions of Affidavits on March 10, 2006. On March 13, 2006, the Motion to Intervene and the Motion to Strike were heard and taken under advisement. An Order Denying in Part and Allowing in Part the Motion to Strike and an Order Denying in Part and Allowing in Part the Motion to Intervene (the "Order") were issued (Lombardi, J.) on March 17, 2006. [Note 1] This court determined that SRO could not intervene since it did not have standing, but that intervention was permissible by Robert Hedges, Christie Hedges, Patricia Mohiuddin, Ahmed Mohiuddin, Arnold Zenker, and Barbara Zenker (the "Intervenors"). On April 3, 2006, the Intervenors filed a Revised Answer. On May 5, 2006, all parties to this action executed a Confidentiality Agreement (the "Confidentiality Agreement") relative to any documents produced and designated as "Confidential."

On November 27, 2006, the Town filed an Amended Answer and Counterclaim, asserting promissory estoppel. In the Counterclaim, the Town argued that it had reasonably relied upon Regis' specific promises that it would not build an assisted living facility on the East Campus (as hereinafter defined) if permitted to connect to the Massachusetts Water Resources Authority ("MWRA") sewer system. Regis filed an Answer and Jury Demand to the Town's Counterclaim on December 5, 2006.

On March 20, 2007, the parties filed a Joint Pre-Trial Memorandum and on March 26, 2007, a Pre-Trial Conference was held. [Note 2] On May 24, 2007, the Intervenors filed a Motion to Impound Appendix of Exhibits, which was allowed on July 24, 2007.

On December 17, 2007, and January 7, 2008, Defendants filed Motions to Dismiss the "As-Applied" Zoning Claims Asserted in Counts I-IV of Regis' Complaint under Mass. R. Civ. P. 12(b)(1) and 12(h)(3) (both involving subject matter jurisdiction), together with a supporting memorandum. On February 4, 2008, Regis filed an Opposition to Defendants' Motion to Dismiss and a supporting Statement of Material Facts, and on March 14, 2008, it filed a Supplement to Opposition to Defendants' Motion to Dismiss.

On March 14, 2008, Regis filed a Motion for Summary Judgment against the Town's Counterclaim for Promissory Estoppel with a supporting memorandum and a Motion for Partial Summary Judgment on the Dover Amendment Issues, Statements of Material Facts, Statement of Legal Elements, a Motion for Reconsideration of Order Allowing Intervenors as Parties Defendant, and an Appendix of Exhibits. On the same date, the Intervenors filed a Motion to Dismiss the "As-Applied" Zoning Claims Asserted in Counts I-IV of Regis' Complaint or, in the alternative, to Bifurcate the Case for Trial and a supporting memorandum.

On April 23, 2008, Regis filed an Opposition to the Intervenor's Motion to Dismiss, and Defendants filed an Opposition to Regis' Motion for Summary Judgment together with a supporting memorandum, an Opposition to Regis' Motion for Partial Summary Judgment, and Cross-Motion for Summary Judgment with a supporting memorandum (relative to the Dover Amendment issues), Responses to the Statements of Material Facts, and an Appendix of Exhibits. On the same date, the Intervenors filed a Motion to Impound the Appendix of Exhibits in Opposition to Regis' Motion for Summary Judgment, in addition to an Opposition to Regis' Motion for Reconsideration, an Opposition to Regis' Motion for Summary Judgment, and an Opposition to Regis' Motion for Partial Summary Judgment, all with supporting memorandum.

On May 19, 2008, Regis filed Replies to Defendants' Oppositions to Regis' Motions for Summary Judgment, a Partial Opposition to Intervenor's Motion to Impound, and a Reply to Intervenors' Opposition to Regis' Motion for Reconsideration. Also on this date, the Intervenors filed a Reply Memorandum in further support of their Motion to Dismiss or Bifurcate the Case for Trial. On June 26, 2008, this court heard all motions and took them under advisement. [Note 3]

A defendant may challenge a complaint based on the court's lack of jurisdiction over the subject matter pursuant to Mass. R. Civ. P. 12(b)(1). Ginther v. Comm'r of Ins., 427 Mass. 319 , 322 (1998). "[T]he question of subject matter jurisdiction goes to the power of the court to hear and decide the matter." Id. at note 6. "In reviewing a dismissal under rule 12(b)(1) . . . we accept the factual allegations in the plaintiffs' complaint, as well as any favorable inferences reasonably drawn from them, as true." Id. at 322.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds the following facts are not in dispute:

1. Regis is a Catholic liberal arts and sciences educational institution located in Weston, Massachusetts. Regis has been and continues to be a "non-profit educational corporation" within the meaning of G. L. c. 40A, § 3.

2. Regis owns approximately 130 acres of land in Weston, Massachusetts (the "Regis Campus"). [Note 4] Wellesley Street runs through the Regis Campus from the northeast to the southwest, dividing it into two parts. Since 1927, Regis has periodically developed the approximately seventy acres located on the northwesterly side of Wellesley Street (the "West Campus"); the approximately sixty acres located on the southeasterly side of Wellesley Street ("East Campus") have remained primarily undeveloped.

3. The Regis Campus is located within a district classified under the By-law as a "Single Family Residence (A)" District.

4. Section V.A. of the By-law governs "Use Regulations" that apply to all zoning districts. This section permits the use of land in any zoning district for educational purposes so long as certain provisions are satisfied. [Note 5]

The Project.

5. Under the Project, Regis proposes to build four main buildings and four other buildings, containing a total of 362 residential units, on the East Campus. The application for the Project (the "Application") stated that the four main buildings will contain auxiliary facilities for the residential units as well as classrooms, laboratories, libraries, and computer areas. Additionally, the Project will contain parking for 616 vehicles. Regis has also proposed to construct a tunnel connecting the Project with the West Campus.

6. In the Application, Regis described the Project as a facility for elderly living where Regis' students could interact with residents. Specifically, the Application stated:

Senior residents, students, faculty, health care providers, and members of the community at large, will interact daily . . . . The emphasis of the senior residential experience is living a full life in one's own home, supported by a wide range of educational, intellectual, social, physical and spiritual activities. It is anticipated the average age of the senior residents will be 75 years old . . . . The College's undergraduate and graduate community . . . will actively participate, as an integral part of their college and work study experiences, in programmatic support, teaching, and learning activities with and among the senior population.

7. Residents of the Project will be required to participate in educational programming as indicated by a personalized plan. The extent of the required participation in education and courses of study is unspecified. However, Regis proposes that the residents will have access to a wide range of the college's academic resources including professors, courses, library, and study space.

8. Regis also proposes that its students will be able to tutor and lecture residents in the Project, work at the facility, and participate in internships offered in the fields of nursing, social work, management, and interdisciplinary gerontology.

9. To obtain admission to the Project, residents will be required to be able to live independently.

10. Regis plans to use revenue generated by the Project to provide financial support for the entire institution.

The Application.

11. In July 2005, Regis filed the Application with the ZBA "For Findings and Variances Under the Weston Zoning Bylaws" relative to the Project. [Note 6]

12. The conceptual plan for the Project violated certain provisions of the By-law. Consequently, Regis sought relief from certain provisions of the By-law as they applied to height limitations, lot area and setback restrictions, and parking requirements, as follows:

(a) Height: Section V.A.1.a.(iv) provides that the maximum height for educational use buildings in the zoning district where Locus is located is thirty-five feet. Regis requested that the ZBA declare that this provision is inconsistent with the Dover Amendment and educational use, and, consequently, invalid. Regis also requested the ZBA to grant variances to allow the construction of buildings ranging from fifty-six to 117 feet in height.

(b) Lot Area: Sections V.A.1.a.(iii) provides that educational use buildings are subject to lot area restrictions. VI.F.2 provides that the minimum lot area for a single family residence in the zoning district is 60,000 square feet. Regis requested that the ZBA declare that this provision is inconsistent with the Dover Amendment and educational use, and, consequently, invalid. Regis also requested the ZBA to grant variances to allow the construction of 362 dwellings.

(c) Setback: Section V.A.1.a.(iii) provides that educational use buildings and structures must comply with setback restrictions in the zoning district where they are located. Regis requested that the ZBA declare that a proposed tunnel under Wellesley Street connecting the East Campus and the West Campus and associated retaining walls (together, the "Tunnel"), are not structures within the terms of the By-law and that uniform setback requirements are inconsistent with the Dover Amendment and educational use. Regis also requested the ZBA to grant variances to allow the construction of the Tunnel.

(d) Parking: Section V.A.1.a.(ii) provides that educational uses must comply with the parking requirements set forth in Section VIII.A. Section VIII.A.1.k states that for "Schools and other uses not specifically mentioned" there must exist "sufficient spaces, in the judgment of the Inspector of Buildings, to ensure that no parking for vehicles for employees or regular attendants will take place on a public way." Regis requested that the ZBA declare that Regis may apply to the Building Inspector for a determination of the number of parking spaces needed for the Project and compliance with this determination be deemed to satisfy the requirements of Section VIII.A. It also asked that the ZBA find that the 616 parking spaces provided for in the plans submitted with the Application satisfy the By-law's parking requirements. Regis further requested a determination that it could rely upon other sections of the By-law to expand parking on the West Campus in order to satisfy the By-law's parking requirements. Finally, Regis asked that in the event that the By-law's parking requirements could not be satisfied, the ZBA grant a variance limiting the required number of spaces to 616.

The ZBA Decision.

13. The ZBA conducted public hearings on September 12, 2005, and October 17, 2005. Following the public hearings, the ZBA voted to deny the Application (the "ZBA Decision"). The ZBA Decision, filed with the Weston Town Clerk on November 8, 2005, stated, in part, that

[t]he Board was unable to make the required statutory findings to support the grant of the requested variances. With respect to all other relief requested in the Petition, the Board determined that it lacks jurisdiction to make "findings" that the Zoning By-Law Section V.A. 1.a requirements are invalid, or invalid as applied. . . . Such findings may only be made by a court of competent jurisdiction in a declaratory judgment action. . . .

The Board further determined that it lacks jurisdiction to hear and decide the petitioner's requests for "findings" either: (1) that the proposed use of the subject property is educational and/or is an exempt educational use under G. L. c. 40A, § 3, or that the By-Law's dimensional and parking requirements are inapplicable to the purported educational use by virtue of the so-called "Dover Amendment" as codified in G.L. c. 40A, § 3. It is the Board's position that it would have jurisdiction over such requests only in the context of an appeal under G. L. c. 40A, § 8 by a person aggrieved by an order or decision of the inspector of buildings. Finally, the Board determined that it has no authority to grant the requested "deviations" from the Zoning By-Law based upon the Petitioner's contention that said By-Law's standard requirements should not be applicable to its proposed East Campus Development because of the Dover Amendment's prohibition against "unreasonable regulation" of exempt educational uses.

For the above reasons, the Board denied all other requests for relief contained in the Petition.

Promissory Estoppel Counterclaim.

14. In 1996, special State legislation was enacted (Chapter 151, Section 620 of the Acts and Resolves of 1996) to permit a town's board of selectmen to grant an easement to a private institution of higher learning to construct a sewer pipe in a public way, for the purpose of connecting to the MWRA public sewer system. The special legislation eliminated the need for town meeting approval of an easement. [Note 7]

15. On February 24, 1998, the Town, acting through its Board of Selectmen ("Selectmen"), executed an easement agreement (the "Easement Agreement") with Regis allowing Regis to build a sewer line, for the benefit of the Regis Campus, along town roads to connect to the MWRA system. The preamble to the Easement Agreement provides, in part:

WHEREAS, Grantee desires, in lieu of upgrading or replacing its WWTF [wastewater treatment facility], to install a sewer line for the sole purpose of establishing one sewer connection of limited capacity (the "Sewer Connection") between the Grantee's Land [the Regis Campus] and the sewer system located in Waltham which connects to the Massachusetts Water Resource Authority sewer system (the "MWRA Sewer System") to provide sewer to Grantee's Use;

WHEREAS, Grantee has entered into an agreement with MWRA to connect Grantee's Land to MWRA's sewer system pursuant to authority set forth in Section 619 of Chapter 151 of the Acts and Resolves of 1996; and WHEREAS, the parties hereto desire to enter into an easement and other agreements for the purpose of installing, operating, maintaining and regulating the use of the Sewer Connection in the Easement Land, as hereinafter defined, for the purpose of serving Grantee's Use.

The Easement is defined as:

[t]he grant of a perpetual non-exclusive right and easement to (a) enter and re-enter the Easement Land [portions of Wellesley Street and Sibley Road] with people and machinery for the purposes of constructing, installing, laying, removing, repairing, replacing, re-laying, inspecting and maintaining the Utility System [Note 8] and (b) use, operate and maintain the Utility System in accordance with the terms of this Agreement.

The Easement Agreement provides that it

sets forth the entire agreement between the parties; and supercedes all prior agreements and memoranda with respect to the subject matter hereof . . . . No provision of this Agreement shall be amended or modified unless set forth in a written document signed by the parties hereto and recorded at the Registry of Deeds.

The Easement Agreement provides that "Grantee hereby agrees that the Easement granted herein shall solely serve Grantee's Use." Grantee's Use is defined as "Grantee's use of Grantee's Land as a private institution of higher learning." The Easement Agreement also provides that Regis shall provide the Selectmen a construction plan for review and approval, which approval shall not be unreasonably withheld.

16. In a letter from Selectman Elizabeth Nichols ("Nichols") to Sister Sheila Megley, the President of Regis ("Megley"), dated November 10, 1998, Nichols stated:

In our conversation last week about the plans which Regis has for the use of the [East Campus], after describing current plans you mentioned, that if you could, you would want to put an assisted living facility for retired faculty and alumnae over there . . . . Nothing could have been further from our minds in granting [the Easement Agreement] than an assisted living complex. Indeed, the easement would never have been granted if that had been contemplated in any way. [Note 9]

17. In a letter from Nichols to Megley, dated November 16, 1998, Nichols stated:

Thank you for our conversation. I was relieved to find that we had had a miscommunication and that while plans for housing for retired nuns and/or alumnae had been considered along with all other possible uses for land at Regis, they were discarded.

18. By letter dated April 13, 1999, the Weston Planning Board wrote to the MWRA Advisory Board relative to "the application to allow Regis College to connect a private sewer line to the MWRA system" and asked for the Board's "consideration of conditions on the application", including "[a]ssurances that connections to the proposed system are, and will continue to be, strictly limited to traditional campus activities on land currently owned by Regis College."

19. On May 18, 1999, the Selectmen held a public hearing about the sewer connection. Megley stated:

There was a rumor that we were going to build apartments for the Sisters; we are not. There was a rumor that we were going to build a whole development area; we are not. And I've said no to that for about eight months now. We are not . . . So it's no, no, no, no, no, no.

The Selectmen voted to support Regis' connection to the MWRA at its May 25, 1999, meeting. At that meeting, Selectman Helm stated that "we are the custodians of a valid contract with Regis College at this point which we are obligated I believe to attempt to honor."

20. On May 26, 1999, the MWRA Advisory Board met and voted to approve the sewer connection for Regis. At that meeting, a member of the MWRA staff reported that

it is the board of selectmen's contention that they have a legally-binding contract with Regis College, that there are no votes taken to rescind that contract, there are no motions or votes being considered to rescind that contract and that the town of Weston is moving forward with that contract and that approval.

21. The plans for the Project call for the construction of an on-site wastewater treatment facility that will wholly service the East Campus development, and no wastewater effluent generated from the Project will flow through the sewer line that is the subject of the Easement Agreement.

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This court must first address Regis' Motion for Reconsideration of Order Allowing Neighbors to Intervene and the Intervenors' Motion to Temporarily Impound Appendix. Regis argues, in part, that the Order allowing intervention is not consistent with applicable case law relative to G. L. c. 240, § 14A. The Intervenors argue that not only is the Order consistent with case law, it is also consistent with Mass. R. Civ. P. 24. For those reasons stated in the Intervenors' Memorandum in Opposition to Regis' Motion for Reconsideration, I DENY Regis' Motion for Reconsideration. [Note 10]

The Intervenors argue that the Appendix of exhibits attached to their opposition to Regis' motion for summary judgment on counterclaim should be only temporarily impounded under the Confidentiality Agreement. They are concerned about their ability to use these exhibits at a trial. Regis argues that these exhibits should be permanently impounded, and state that the burden is on the Intervenors to show why the Appendix should not fall under the Confidentiality Agreement, which burden the Intervenors have not met. This court shall not act on this issue at the present time; for now the documents shall remain impounded (as requested by both parties). The motion can be brought up at a later date based on the direction of the remainder of this case.

Chapter 240, Section 14A Jurisdiction.

The first issue before this court is whether G. L. c. 240, § 14A confers this court with subject matter jurisdiction over Regis' "as-applied" claims.

G. L. c. 240, § 14A states, in part, that

[t]he owner of a freehold estate in possession of land may bring a petition in the land court . . . for determination as to the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of chapter forty A or under any special law relating to zoning, so called, which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land, or any part thereof, or of present or future structures thereon, including alterations or repairs, or for a determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use, enjoyment, improvement or development of such land by the erection, alteration or repair of structures thereon or otherwise as set forth in such petition. The right to file and prosecute such a petition shall not be affected by the fact that no permit or license to erect structures or to alter, improve or repair existing structures on such land has been applied for, nor by the fact that no architects' plans or drawings for such erection, alteration, improvement or repair have been prepared. The court may make binding determinations of right interpreting such ordinances, by-laws or regulations whether any consequential judgment or relief is or could be claimed or not.

"The primary purpose of G. L. c. 240, Section 14A, is to provide a procedure for declaratory judgment that will resolve doubts relating to by-law restrictions or the requirement of a zoning ordinance." Whitinsville Ret. Soc., Inc. v. Town of Northbridge, 394 Mass. 757 , 762-63 (1985). A party may bring an action under Section 14A "to determine how and with what rights and limitations the land of the person seeking an adjudication may be used under the provision of a zoning enactment in terms applicable to it . . . ." Harrison v. Town of Braintree, 355 Mass. 651 , 654 (1969) (emphasis added).

Defendants argue that G. L. c. 240, § 14A is not applicable to this case because Regis is attempting to have the Land Court determine the extent that a section of the state statute (the Dover Amendment) has on the Project, rather than the extent that sections of the By-law have on the Project. Regis argues that G. L. c. 240, § 14A applies to this case, for the issue is the application of the By-law to the Project, and cite several Land Court cases (upheld on appeal) to support its position. To some degree, both parties are accurate in their analysis. The central issue is the effect of the By-law upon the Project as a result of the Dover Amendment. Such a determination falls under the language of G. L. c. 240, § 14A, as Regis attempts to obtain a "determination of the extent to which [the By-law] affects [the Project] by the erection, alteration or repair of structures [on the East Campus]." [Note 11]

Next, Defendants argue that Regis has not exhausted its administrative remedies, for it failed to apply to the Building Inspector for a building permit for construction prior to appealing such determination (of whether the Dover Amendment applies) to the ZBA. [Note 12] Defendants rely upon Worcester County Christian Commc'ns, Inc. v. Bd. of Appeals of Spencer, 22 Mass. App. Ct. 83 (1986), for the proposition that a building inspector must address whether a proposed use is educational prior to an appeal to a zoning board of appeals. Regis contends that an application to the Building Inspector is not required by the terms of G. L. c. 240, § 14A. [Note 13]

The key issue in the case at bar is different from that before the court in Worcester County, which centered on whether, after an applicant for a building permit requested an order directing the building inspector to act on the application, a zoning board of appeals could decide the underlying educational purposes question on the merits. Id. at 89-90. The Appeals Court determined that since the building inspector had not yet reached the Dover Amendment question with regards to the building permit application, that issue was still open and necessarily before the building inspector. [Note 14] Id. The holding of Worcester County does not require that the building inspector determine whether a proposed use is for educational purposes if the initial request were not brought to the building inspector. Finally, there does not appear to be any appellate case law cited by any of the parties for this court to conclude that a ruling on whether the Dover Amendment is applicable to the Project can only be determined by the building inspector. [Note 15]

As a result of the foregoing, I find that the Land Court has jurisdiction in this case under G. L. c. 240, § 14A to address the issue of whether the application of certain provisions of the By-law to the Project is reasonable. However, before that issue is addressed, the applicability of the Dover Amendment to the Project must be reviewed.

The Dover Amendment.

Since this court has jurisdiction to hear the issue of whether the application of certain provisions of the By-law to the Project is reasonable, it is necessary to decide whether the Project is protected from the provisions of the By-law under the Dover Amendment. In order to reach this issue, this court must first determine whether the Project qualifies as an educational use as contemplated by the Dover Amendment. The relevant section of the Dover Amendment states:

No zoning ordinance or by law shall . . . 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, or by a nonprofit educational corporation; provided, however, that land or structures may be subject to reasonable regulations . . . .

The question of whether a proposed use is for religious or educational purposes is typically decided by an authorized municipal body prior to an appeal to the Land Court or Superior Court. [Note 16] However, here, the ZBA determined that it did not have jurisdiction to consider whether the Project constituted an educational use under the Dover Amendment. As such, the ZBA denied the Application without making any official findings as to whether the Project was for educational purposes. The ZBA based its determination that it lacked jurisdiction upon the proposition that it could only hear an appeal from a building inspector's determination of whether the use was exempted from zoning regulations by the Dover Amendment, and cited Worcester County, as discussed, supra, for its rationale.

In this regard, the Intervenors argue that this action is premature because the Town never applied the By-law to the Project, in light of the Dover Amendment, and that Regis is speculating what the effect of such application will be. The Intervenors cite to the rationale of the Dover Amendment as referenced in Tufts, which states: "the Dover Amendment is intended to encourage a degree of accommodation between the protected use . . . and matters of critical municipal concern." Tufts, 415 Mass. at 759 (internal quotations omitted). They argue that the Town has never had a chance to weigh in on the issue and apply the By-law to the Project in the context of the Dover Amendment. The critical issue here is not that the ZBA has not applied the By-law to the Project, but that the ZBA has not made a determination that the Dover Amendment applies to the Project. Once that determination is made, the central issue becomes whether the application of the By-law is reasonable under the circumstances. The ZBA has, in fact, had an opportunity to address the applicability of the Dover Amendment, but they chose not to act on this issue, as specified in their decision.

As previously discussed, it appears that the ZBA, in addition to the building inspector, has jurisdiction to make official findings as to whether the Project constitutes an educational purpose. Nevertheless, the ZBA failed to consider this question before issuing its denial of the Application. A ruling on the Variances is premature prior to a ruling on the Dover Amendment, because a ruling on the Dover Amendment will determine the standards for ruling on the Variances. As a result, it is ORDERED that this case be remanded to the ZBA for a public hearing on the issue of whether the Project is exempt from compliance with the By-law and subject only to reasonable regulations under the Dover Amendment. Notice of said public hearing shall be in accordance with governing law, and notice shall be served on all parties as legally required. [Note 17]

The ZBA shall, upon completion of the public hearing, render and file with the Town Clerk, as required by law, a written decision within sixty days from the date of this decision. The parties shall file with this court, within five days after the ZBA files its decision with the Town Clerk, a joint written status report, giving details of the ZBA's action on remand, accompanied by a true copy of the ZBA decision.

This court shall retain jurisdiction over this matter for such further action as may be required, including any appeals which may be taken from or relating to the ZBA's decision. No party currently a party to this litigation who is aggrieved by the ZBA decision need initiate in this court a new lawsuit appealing the ZBA decision, but any such aggrieved party shall, within twenty days of the filing of the ZBA decision with the Town Clerk, file with this court (and serve on all parties) a proper motion for leave to amend the pleadings to assert a right to judicial review of the decision, with the form of the proposed amendment annexed, and file with the Town Clerk written notice of having filed the motion to amend, accompanied by true copies of the moving papers.

Promissory Estoppel.

Defendants argue that Megley's statement that Regis would not build a housing complex on the East Campus induced the Town and the MWRA to allow the sewer connection, and that Regis should be estopped from building the Project on the theory of promissory estoppel. Regis argues that the promises that the Town relied upon were made after the easement allowing Regis to connect to the MWRA sewer system had been granted and that the Counterclaim also failed under the Statue of Frauds.

Regis first argues that Defendants do not meet the test for promissory estoppel as set forth in Loranger Constr. Corp. v. E. F. Hauserman Co., 6 Mass. App. Ct. 152 ,154 (1978), superseded on other grounds by 376 Mass. 757 (1978), which requires that a plaintiff must allege

(1) a promisor makes a promise which he should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee, (2) the promise does induce such action or forbearance, and (3) injustice can be avoided only by enforcement of the promise.

Regis also cites Zarum v. Brass Mill Materials Corp., 334 Mass. 81 , 85 (1956), where the Supreme Judicial Court states that "the law will not imply a contract where there is an existing express contract covering the same subject matter."

In effect, Regis argues that the Easement Agreement was executed between the Selectmen and Regis in February 1998, before any discussions relative to the Project took place, and the Easement Agreement stands on its own feet relative to the intent of the parties at that time and was not based on any promises or statements relative to the Project. The Easement Agreement contained no conditions regarding the development of the East Campus. [Note 18] In fact, the Easement Agreement contains an integration clause, stating that it sets forth the entire agreement between the parties. Moreover, at a May 1999 Selectmen's meeting, members of the Selectmen stated that the Easement Agreement was a binding contract; in addition, the MWRA approved the sewer connection on May 26, 1999. [Note 19] As such, pursuant to the Loranger test, there could be no detrimental reliance by the Town on any oral statements made by Megley, for the Town was already bound to enforce the terms of the Easement Agreement, which allowed the MWRA sewer connection. [Note 20]

Defendants argue that the Easement Agreement is wholly independent of the MWRA approval, and that although the Town was committed to going forward on its obligations under the Easement Agreement (to allow Regis to construct a sewer connection in the Town roadways), this did not obligate the MWRA to allow the connection to their sewer system. The MWRA did, however, vote to allow the connection without any conditions, even though they had received correspondence from various town boards suggesting that they provide conditions. There is nothing in either the Easement Agreement or the MWRA vote which conditions Regis' expansion plans. Although Defendants argue that representations of Regis induced both the Town and the MWRA to act, there is no evidence that any such non-disputed representations led to reliance by either the Town or the MWRA. To the contrary, given the opportunity to add conditions to their votes, neither entity chose to do so. As a result, I find that because Defendants do not meet the test for promissory estoppel, Regis is not estopped from building the Project under such a theory.

The Intervenors claim that summary judgment is not appropriate due to disputed facts at issue relative to Regis' alleged reliance. None of the disputed facts, however, are material; moreover, Regis does not dispute any representations made by their representatives for summary judgment purposes. The major fact at issue between the parties appears to be whether Regis intended to tie the Project into the MWRA sewer easement, and the Intervenors provide no evidence that Regis promised there would be no tie-in. Furthermore, such fact does not appear to be relevant to the Easement Agreement, which covers all of the Regis Campus. Other alleged disputed facts about representations made by Regis concerning development of the East Campus, even when taken in a light most favorable to the Town, do not rise to the level of proving promissory estoppel arguments. [Note 21]

Regis also contends that the Statute of Frauds controls and will not allow an oral representation concerning an interest in land. G. L. c. 259, § 1 states, in part:

No action shall be brought . . . upon a contract for the sale of lands . . . or of any interest in or concerning them [or] upon a contract for the sale of lands . . . or of any interest in or concerning them . . . [u]nless the promise, contract or agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized.

Regis states that any oral promise relative to development of the East Campus cannot be binding because it is not in writing and, though acknowledging that detrimental reliance on an oral contract could be an exception to the Statute of Frauds, they point out that this concept is not applicable because the Town already had a contractual obligation to approve the sewer connection. Regis also asserts that such promise would be a restrictive covenant relative to the development of the East Campus and must, therefore, be in writing. Finally, it claims that Megley did not have the authority to bind Regis to a development contract. Because this court found, supra, that Defendants do not meet the test for promissory estoppel, there is no need to address these concerns of Regis.

As a result of the foregoing, I ALLOW Regis' Motion for Summary Judgment on the Counterclaim.

Alexander H. Sands, III

Justice

Dated: January 23, 2009