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, Intervenor-Defendants.

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 Town of Weston (the “Town”) 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 in context of the Dover Amendment and as applied to the Project. The Complaint named 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, and an Answer to Regis’ Complaint. Based on an interpretation of G. L. c. 240, § 14A and Mass. R. Civ. P. 24(a), on March 17, 2006, this court (Lombardi, J.) issued an Order Denying in Part and Allowing in Part the Motion to Intervene determining that SRO could not intervene as 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 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). [Note 1] On February 4, 2008, Regis filed an Opposition to Defendants’ Motion to Dismiss, 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 and a Motion for Partial Summary Judgment on the Dover Amendment Issues. 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.

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, an Opposition to Regis’ Motion for Partial Summary Judgment, and Cross-Motion for Summary Judgment (relative to the Dover Amendment issues). On the same date, the Intervenors filed an Opposition to Regis’ Motion for Summary Judgment and an Opposition to Regis’ Motion for Partial Summary Judgment.

On May 19, 2008, Regis filed Replies to Defendants’ Oppositions to Regis’ Motions for Summary Judgment. Also on this date, the Intervenors filed a Reply brief in further support of their Motion to Dismiss or bifurcate the case. On June 26, 2008, this court heard all motions and took them under advisement. By Decision dated January 23, 2009, this court found that the Land Court had jurisdiction under G. L. c. 240, § 14A to address the issue of whether the application of certain provisions of the By-law to the Project was reasonable and that Defendants did not meet the test for promissory estoppel, and, as a result, Regis was not estopped from building the Project under such a theory. This court remanded to the ZBA the issue of whether the Project was exempt from compliance with the By-law subject only to reasonable regulations under the Dover Amendment. By decision dated March 18, 2009, the ZBA voted unanimously to find that the Project did not meet the requirements of the Dover Amendment.

Regis filed its First Amended Complaint on April 13, 2009, adding two new counts relative to the application of the Dover Amendment to the Project. Intervenors filed their Answer on May 12, 2009, and Defendants filed their Answer on May 13, 2009. On May 22, 2009, Defendants filed their Supplementation of Summary Judgment Filings on Dover Amendment Use Issue and Intervenors filed their Supplemental Memorandum in Opposition to Plaintiff’s Motion for Partial Summary Judgment on the “Dover” Issues, together with Supplemental Statement of Disputed and Undisputed Material Facts and Appendix. [Note 2] Regis filed its Supplement to its Motion for Summary Judgment on “Dover” Issues on May 26, 2009, together with Supplemental Statement of Undisputed Material Facts and Appendix. On May 29, 2009, Regis filed its Motion to Dismiss the Town’s Amended Counterclaim, together with supporting memorandum and Appendix. [Note 3] The Intervenors filed their Response to Regis’ Supplemental Statement of Undisputed Material Facts on June 16, 2009. Regis filed its Response to the Supplemental Summary Judgment Briefs of Defendants and Intervenors on June 17, 2009. On July 13, 2009, Regis filed Affidavits of Dr. Mary Jane England, Thomas Pisatorino, Dr. Antoinette Hays, Dr. Paula Harbecke, and Doreen Zankowski. On July 29, 2009, the Intervenors filed their Motion to Strike Five Supplemental Affidavits and their Motion to Strike Regis’ July 13, 2009, Reply to Responses. On August 24, 2009, Regis filed its Opposition to Intervenors’ Motions to Strike. A hearing was held on all motions on September 28, 2009, at which time all motions were taken under advisement.

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. See 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). In this court’s review of the materials accompanying a motion for summary judgment, “the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.” Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982) (quoting Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970)).

This court finds that the following facts are not in dispute: [Note 4]

1. The Project proposes eight buildings. Four main buildings contain classrooms (approximately seven children’s classrooms, five classrooms for lifelong learning and college uses, one computer lab, and at least one clinical teaching room for 100 students), three libraries, approximately twenty-four faculty or administrative offices, dining areas, a physical fitness center, a child care facility, an adult care and training/educational facility, and a woodworking shop. [Note 5] The four other buildings contain 362 living units, which will house the residents of the Project (the “Residents”). [Note 6] Each of the living units will contain approximately 1,300 square feet and consist of one, two, or three bedroom apartments. [Note 7] The Project will also provide parking for 616 vehicles.

2. The Residents, who will average 75 years of age, will be accepted into the Project after an application and interview process; however, there are no minimum academic requirements for acceptance.

3. The Residents will be required to take a minimum of two academic courses per semester totaling four courses per year. Courses range from the traditional such as foreign languages, philosophy, technology, and literature to nature walks and other recreational activities. The Residents may attend classes in person, online, or by private tutoring. The Residents may take classes with undergraduate or graduate students. If the Residents do not “successfully complete” the required four courses a year, they will have to leave the Project. [Note 8], [Note 9]

4. Courses will be offered on either a “pass-excel” grading basis, a traditional letter grade basis, or by audit. [Note 10] The Residents will be eligible, but not required, to obtain certificates and degrees upon completion of the courses.

5. The academic program will be administered by academic professionals, and the individualized course plan for each of the Residents will be subject to approval by the Dean of the East Campus and the Resident’s academic advisor.

6. The Residents will have full access to all Regis facilities. The Project proposes a tunnel beneath Wellesley Street to allow access to the West Campus (the “West Campus”) (the existing campus for the college and graduate students).

7. Each Resident will pay a one-time entrance fee of approximately $700,000 to $1 million. Ninety percent of this entrance fee will be returned to the Resident (or their estate) when the Resident leaves the program. Each Resident will pay a monthly service fee of approximately $4,000. [Note 11], [Note 12]

8. On March 2, 2009, the ZBA held a public hearing, pursuant to this court’s remand order, to determine whether the Project constitutes an exempt educational use under the Dover Amendment. The hearing was continued to March 4, 2009, and March 18, 2009. At the March 18, 2009, hearing, the ZBA voted unanimously (“ZBA Decision 2”) to “find that the Regis East project does not constitute an exempt educational use under M. G. L. c. 40A, § 3. The purpose of the Regis East real estate development is financial, and the predominant use is luxury residential dwellings, not education.” The ZBA made the following findings:

1. The proposed 362 luxury dwelling units are not integral to furthering the College’s goals for intergenerational or life-long learning, as clearly demonstrated by the successful, but non-residential, child care center and LLARC programs presently operated at the College.

2. The Regis East project is fundamentally a residential facility for senior citizens, with physical education, wellness, adult education classes, and cultural/recreational programs being offered as lifestyle amenities for the residents.

3. The primary purpose of the Regis East project is to create a revenue stream for Regis College.

4. The monthly revenue per unit would far exceed the cost of any educational programs provided, and the educational service revenues to be derived from the course registration portion of the monthly maintenance fees are almost insignificant.

5. The proposed luxury residential units are not college dormitories; neither are they comparable to dormitories in size, amenities, tenure or cost.

6. The portion of the Regis East project square footage to be devoted to dwelling units is more than twice the square footage to be devoted to non-residential; moreover, a significant portion of the proposed “educational” space appears to be multi-functional space which could be used for numerous purposes associated with the residential units, but not necessarily restricted to educational purposes alone.

7. The amorphous, flexible and vague nature of the “educational” components makes enforcement of any educational requirements for the residents unlikely.

8. The Regis East project is designed for seniors capable of independent living. There are no medical facilities proposed and therefore, the project would not realistically provide educational/internship opportunities for the nursing students at the College.

9. Any intergenerational learning opportunities derived from the Regis East project would depend entirely on the voluntary participation of both the residents and the college students.

10. The proposed two courses per semester/four courses per year requirement for maintaining residency in the project is not significant, especially given the flexible definition of the “courses” and the lack of any formal standards or requirements for those courses-even to the exclusion of any need to actually be in residence while taking the courses.

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As an initial matter, this court must first address the Intervenors’ Motions to Strike certain Affidavits submitted by Regis and Regis’ July 13, 2009, Reply. In their motion, the Intervenors argue that the five Affidavits and the July 13, 2009, Reply filed by Regis go beyond the scope that this court provided in its June 18, 2009, Post Hearing Order. [Note 13] Regis responds by claiming that such filings do not add any new substantive information and do not prejudice the Intervenors or the Town. Despite the fact that the supplemental submissions by Regis, to a certain extent, further bloat an already voluminous summary judgment record, this court agrees that such filings do not add any new substantive information into the record that unduly prejudices the Intervenors or the Town. To the extent that such Affidavits appear to re-respond to the Intervenors (Regis filed an initial Response to the Intervenors’ Supplemental Summary Judgment briefs) this court reads the Affidavits as simply regurgitating information that was already in the record. As such, the Intervenors’ Motion to Strike Five Supplemental Affidavits Submitted by Regis on July 13, 2009, in their Entirety and the Intervenors’ Motion to Strike Regis’ July 13, 2009 “Reply to Responses to Regis’ Supplemental Statement of Undisputed Facts” Insofar as it Replies to the Intervenors, is DENIED.

The central issue before the court is whether the proposed use of the Project is an educational purpose as contemplated by the Dover Amendment. Regis argues that the Project is compliant with the Dover Amendment and that ZBA Decision 2 is unreasonable. Defendants argue that ZBA Decision 2 is reasonable. The Intervenors argue that there are material facts at issue and a trial is necessary. It appears to this court, however, that the matters at issue between the parties are not material facts, but primarily the interpretation of these facts. [Note 14]

The pertinent provision of the Dover Amendment states:

No zoning ordinance or by law shall . . . regulate or restrict the use of land or structures . . . for educational purposes on land owned or leased . . . by a nonprofit educational corporation; provided, however, that land or structures may be subject to reasonable regulations . . . .

G. L. c. 40A, § 3. [Note 15] Long ago, the Supreme Judicial Court (“SJC”) characterized the term “education” as

a broad and comprehensive term. It has been defined as ‘the process of developing and training the powers and capabilities of human beings.’ . . . Education 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.

Mount Hermon Boys’ Sch. v. Gill, 145 Mass. 139 , 146 (1887). The SJC has since limited the effect of the term “educational” in context of the Dover Amendment, stating that such term is conditioned by its plain meaning. See Whitinsville Retirement Society, Inc. v. Northbridge, 394 Mass. 757 , 760 (1985). Even so, the question of whether a proposed use is educational may be difficult as, “in a broad sense, anything taught might be considered, to a greater or less degree, educational.” Kurz v. Bd. of Appeals of North Reading, 341 Mass. 110 , 113 (1960). As such, “[t]he court must look beyond individual activities, some of which undoubtedly may in isolation constitute educational use, to see whether, in the aggregate, the overall use of the structures in question amount to educational use.” Metrowest YMCA, Inc. v. Hopkinton, 14 LCR 378 , 381 (Misc. Case No. 287240) (2006) (Piper, J.). Whether the Project is protected by the Dover Amendment from the By-law’s zoning restrictions turns on whether the dominant purpose of the Project is educational. See Fitchburg Housing Auth. v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869 , 873-74 (1980); Whitinsville Retirement Society, 394 Mass. at 760 (“The judge’s findings do not support the conclusion that the primary or dominant purpose of the proposed nursing home facility would be educational.”). [Note 16], [Note 17]

Although a proposed use must be primarily educational, courts have applied the Dover Amendment where the proposed purpose of a facility incorporates some non-traditional educational uses as well. See e.g., Watros v. Greater Lynn Mental Health and Retardation Ass’n, 421 Mass. 106 , 112 (1995) (finding that a barn used to provide shelter and education for mentally handicapped adults warrants Dover Amendment protection); Fitchburg Housing Auth., 380 Mass. at 869-70 (finding that the Dover Amendment applies to a residential facility for mentally ill that provides training for residents in skills for independent living). Similarly, just because a proposed facility includes residential accommodations for adults does not necessarily preclude it from protection under the Dover Amendment. See id. 380 Mass. at 874-75 (reasoning that “[i]nculcating a basic understanding of how to cope with everyday problems and to maintain oneself in society is incontestably an educational process.”). [Note 18] However, despite the various facilities that have been given zoning exemptions under the Dover Amendment, an “educational purpose” is not without limits. See e.g., Whitinsville Retirement Society, 394 Mass. at 761 (finding that a nursing home focused on crafts, entertainment, and stimulus is not educational); Kurz, 341 Mass. at 113 (stating that “the teaching of the various types of dances advertised by the plaintiff, with the possible exception of the classical ballet, can hardly be considered educational use in the ordinary sense.”). [Note 19] In order for a facility to be considered an educational use in context of the Dover Amendment, it does not need to fulfill traditional educational goals; it must, however, provide more than “[m]erely an ‘element of education’ . . . .’” Whitinsville Retirement Society, 394 Mass. at 760-61.

In applying these principles to the case at bar, it is necessary to analyze the extent of the educational services that Regis proposes to provide to the Residents through the development of the Project. It is clear that education will play some role in the lifestyle of the Residents. The question then, is whether education is the dominant purpose of the Project as understood in Fitchburg Housing Auth., Whitinsville Retirement Society, and their progeny. As part of a program designed to foster healthy aging, Regis proposes to provide educational programming for the Residents that will be guided by a personalized, individual education plan, which will provide Residents with the opportunity to participate in courses of study and other educational programs and events at Regis. Also, undergraduate and graduate students may be able to use the Project as a resource through tutoring, work, and internship opportunities, although the intricacies of such elements of the Project are not entirely clear.

However, when these components are viewed in scope of the Project as a whole, this court cannot conclude that education is the primary purpose of the Project. To begin, the Residents will be required to pay a one-time entrance fee of $700,000 to $1,000,000–a substantial deposit for any education. [Note 20] In addition, the cost of the monthly service fee of $4,000 is far in excess of the cost of similar classes currently used for the elderly through the LLARC program, and the size of the units for the Residents is far in excess of the size of dormitory rooms for college students housed in the West Campus, where there is a significant vacancy rate in the college dormitories. Furthermore, approximately two-thirds of the square footage in the Project will be dedicated to housing.

Moreover, the Residents will only be required to take four courses a year, and the courses can range from traditional types of courses, such as history and philosophy to more unconventional courses grounded in recreation. However, the courses are not designed to help the Residents attain independent living, as was the case in Fitchburg Housing Auth., 380 Mass. at 872. or Campbell v. City Council of Lynn, 32 Mass. App. Ct. 152 , 153 n.4 (1992), aff’d. in part, rev. in part on other grounds by 415 Mass. 772 (1993). Rather, whereas the goal of most educational institutions is to matriculate, if the Residents cannot maintain independent living, they will be required to leave the Project and go into a nursing home or rehabilitation facility. There are no minimum academic requirements for acceptance into the Project, and no degrees will be required as a part of the program. Finally, grading for the courses can be non-traditional, and the Residents will be required to complete the courses only if they are “physically and intellectually capable of doing so.”

While Regis has set lofty goals of having Residents “age in place” by living independently, with a focus on health, welness, stimulation, and education, that does not mean that the program is primarily an educational facility. In light of the above, the Project’s educational component seems subordinate to Regis’ desire to provide elderly housing and/or a source of revenue for Regis. Thus, it is this court’s conclusion that the dominant purpose of the Project will not be the fulfillment of a significant educational goal. Therefore, I find that the proposed use of the Project is not an educational purpose as contemplated by the Dover Amendment. [Note 21]

Since this court has determined that the Project does not comply with the Dover Amendment, it is not necessary to address the issue of what reasonable requirements of the By-law will be applicable to the Project.

As a result of the foregoing, I DENY Regis’ Motion for Partial Summary Judgment and ALLOW Defendants’ Cross-Motion for Summary Judgment.

Counts V and VI of the Complaint (Counts VII and VIII of the First Amended Complaint) have yet to be addressed. [Note 22] The parties shall attend a status conference on Tuesday, February 9, 2010, at 11:00 A.M. to discuss the status of this case. [Note 23] Judgment shall issue upon resolution of all of the remaining issues.

Alexander H. Sands, III

Justice

Dated: January 4, 2010