MISC 08-382311

July 25, 2011


Long, J.



In this action, brought pursuant to G.L. c. 240 § 14A, plaintiffs Catherine Ellsworth and Brenda Knight seek a determination of the extent to which certain aspects of the Town of Mansfield's zoning by-law affect their ability to construct and operate a private child care center and elementary school (hereafter, the "Montessori School") on the property at 19 Knight Way in Mansfield. [Note 1] The parcel is a large one (over 13 acres), in an R1 Zone (Natural Resource and Scenic Residential), and is currently occupied by a single-family residence built prior to the town's adoption of zoning controls. It has no street frontage, but instead is reached by a 50-foot wide roadway travel easement from Knight Way (a public street), less than 35 feet long on one side and 6 1/4 feet on the other. [Note 2]

Under the proposal, the residential structure would remain unchanged and continue to be a residence. The Montessori School would occupy a new, one-story 17,000 square foot facility built opposite the residence and serve 160 children, 130 under the age of seven and 30 between the ages of seven and twelve. A large, open-air parking lot would also be constructed. The parcel would not formally be divided but instead put into a condominium form of ownership with the residence and school as separate units, each with its own exclusive-use common area.

Both the residence and the proposed Montessori School comply with all dimensional and parking provisions of the zoning bylaw - the height and bulk of structures, yard sizes, lot area, setbacks, open space, parking and building coverage. Both uses are allowed "as of right" in this R1 zone. [Note 3] The lot, however, is non-conforming in that it has no frontage on "a street or public right-of-way" as required by the bylaw. Zoning Bylaw § 1.5.14. Moreover, the addition of the school would put two independent uses (residence and educational/child care center) on the same lot, neither accessory to the other. The issue thus presented is whether a G.L. c. 40A § 6 "finding" is required to add the school to this non-conforming lot, or whether what would otherwise be the need for such a finding is over-ridden by G.L. c. 40A § 3, p.p. 2 & 3 (the so-called "Dover Amendment"). [Note 4] The parties have filed cross-motions for summary judgment on this issue, on which I rule as follows.

The Standard for Summary Judgment

Summary judgment may appropriately be entered if there are no genuine issues of material fact and the moving party is entitled to judgment on these undisputed facts as a matter of law. Mass. R. Civ. P. 56(c). For purposes of these motions, there is no dispute on the relevant facts. The lot has over 13 acres. It has existed in its current configuration since before the town adopted zoning controls. It has no frontage, [Note 5] but does have full vehicular access over a 50-foot wide travel easement. [Note 6] There is currently a residence on the property, which likewise pre-dates zoning and will continue to exist unchanged. The Montessori School will be owned by a non-profit educational corporation and will be used for educational and child care center purposes. The residence does, and the proposed Montessori School will, fully comply with all dimensional and parking provisions of the zoning bylaw - the height and bulk of structures, yard sizes, lot area, setbacks, open space, parking and building coverage. Both uses are allowed "as of right" in this R1 zone.

Other undisputed facts are either set forth or referenced in the analysis section below.


The provisions of G.L. c. 40A § 3 are central to this case and state, in relevant part, as follows: 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 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. G.L. c. 40A § 3 p. 2.

No zoning ordinance or bylaw in any city or town shall prohibit, or require a special permit for, the use of land or structures, or the expansion of existing structures, for the primary, accessory or incidental purpose of operating a child care facility; 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. As used in this paragraph, the term "child care facility" shall mean a child care center or a school-aged child care program, as those terms are defined in section 1A of chapter 15D.

G.L. c. 40A § 3, ¶ 3.

The Montessori School is protected by these provisions. The question thus presented is whether, on the facts of this case, the town's frontage requirement is a "reasonable regulation" and the development thus requires a G.L. 40A § 6 finding to proceed. [Note 7]

A potential preliminary issue can be addressed briefly. Is "frontage" the only non-conformity, or does the fact that two uses will co-exist on the same non-conforming parcel create a second? The bylaw does not contain any prohibition of two uses on a lot so long as both are allowed in the district. Such is the case here. See Bylaw §§ 3.3.1 (single family use allowed in R1 District as of right), § 3.4.2 (educational use allowed in R1 District as of right), § 3.4.5 (child care center use allowed in R1 District as of right) [Note 8] Indeed, the bylaw's provision that "[a] use listed in the Schedule of Principal Use Regulations is permitted as of right in any district under which it is denoted by the letter "Y", Bylaw § 3.1 (emphasis added) is an explicit recognition that two or more "as of right" uses on the same lot are allowed. This is further buttressed by Bylaw § 3.7.2 which addresses "mixed business and residential use in the Business 1 (B1), Business 2 (B2) and Industrial 3 (I3) Districts" and, for only those districts, establishes certain density and dimensional regulations when business and residential uses both occupy the same lot. Bylaw § 4.2.2. The absence of such specific regulations for other districts shows that none are deemed necessary. For the allowed uses in those districts, the general FAR, lot size, open space, building height, frontage and setback requirements are deemed sufficient to allow them to exist in zoning harmony. Bylaw § 4.2.1. In any event, the Dover Amendment overrides any prohibition on "two uses" of the same lot where, as here, "child care facilities" are at issue. Petrucci v. Bd. of Appeals of Westwood, 45 Mass. App. Ct. 818 , 822-23 nn.7-8 (1998).

The fact that the lot is non-conforming does not change this. The lot was created pre-zoning and has remained in the same configuration since that time. Bylaw § 1.3.1 states:

Any lots recorded at the time of the adoption of this by-law may be used for any permitted use in the district in which the lot is located providing that lots which do not conform are used with the minimum nonconformance as to yards as approved by the Board of Appeals, provided there was at the time of the effective date of this by-law no other land under the same ownership available for use, and further provided that any lot on which more than one (1) house existed at the time of the adoption of the by-law may be divided and sold to separate owners.

Bylaw § 1.3.1 (emphasis added). This provision is not a model of clarity but seems, at a minimum, to allow a pre-existing, protected, non-conforming lot to be used for any permitted use so long as there is "minimum" non-conformance with the yard requirements of the bylaw. Here, both the residential and educational/child care center uses are permitted as of right and, pursuant to Bylaw § 1.3.1, no board approval or § 6 "finding" would be necessary because the structures associated with both those uses fully satisfy all of the bylaw's "yard" requirements. [Note 9]

The analysis thus turns to the "reasonableness" of the frontage requirement as applied to educational and day care center uses.

The plaintiffs argue that "frontage" may not be regulated at all for an educational or child care center use because it is not specifically mentioned in G.L. c. 40A § 3. [Note 10] I disagree. The initial, and sometimes the exclusive, focus of statutory interpretation is on the words it uses. But that is so only when those words speak unambiguously, see Pyle v. School Comm. of South Hadley, 423 Mass. 283 , 285 (1996), and I do not find that § 3's words unambiguously exclude the consideration of anything not specifically listed. The goal, as always, is to discern the intent of the legislature, and "[c]ourts must ascertain the intent of the statute from all its parts and from the subject matter to which it relates, and must interpret the statute so as to render the legislation effective, consonant with sound reason and common sense." DiGiancomo v. Metro. Prop. & Cas. Ins. Co., 66 Mass. App. Ct. 343 , 346 (2006). See also Bishop v. TES Realty Trust, 459 Mass. 9 , 12 (2011). Applying those principles leads to two conclusions.

First, the absence of the word "frontage" from G.L. c. 40A § 3's laundry-list of things subject to "reasonable regulation" does not mean that the purposes served by a "frontage" requirement cannot be considered. The intent of the statute is to prevent municipalities from "significantly imped[ing] an educational use...without appreciably advancing municipal goals embodied in the local zoning law," Campbell v. City Council of Lynn, 415 Mass. 772 , 778 (1993), or, put another way, "to strike a balance between preventing local discrimination against an educational use and honoring legitimate municipal concerns that typically find expression in local zoning laws." Trustees of Tufts Coll. v. Medford, 415 Mass. 753 , 757 (1993) (internal citations omitted). Thus, § 3's use of the terms "bulk and height of structures...yard sizes, lot area, setbacks, open space, parking and building coverage requirements," properly viewed, is a reference to matters generally addressed by zoning, not words that exclude the consideration of other zoning concerns. See Trustees of Tufts Coll., 415 Mass. at 757-758 ("Local zoning requirements adopted under the proviso to the Dover Amendment 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 as enunciated in St. 1975, c. 808, § 2A may be permissibly be enforced, consistent with the Dover Amendment, against an educational use.") (internal citations omitted).

Second, however, the absence of the term "frontage" from the statutory recitation does suggest that frontage, per se, cannot be an absolute requirement in a "reasonable regulation." Rather, the purposes behind a frontage requirement can be considered, and reasonably addressed another way.

The § 3 analysis is thus a simple one. What are the purposes of a frontage requirement? One is access. The second is spacing. What does the town itself consider "reasonable" to achieve these purposes in the context of a pre-existing, non-conforming lot? The answer is found in Bylaw § 4.1.2, which states:

A lot or parcel of land having an area or a frontage of less amounts than required by the following schedule may be considered as coming within the area and frontage requirements of this section, provided such lot or parcel of land has an area of not less than 5,000 square feet and a frontage of not less than 50 feet and was shown on a plan or described in a deed duly recorded or registered at the time of adoption of this by-law and did not at the time of such adoption adjoin other land of the same owner available for use in connection with such lot or parcel.

In other words, 50 feet of frontage is considered "reasonable" for allowed uses - 50 feet for access room and spacing. Here, the access easement is 50-feet wide and thus meets the town's "reasonable" concerns, particularly when the easement is only a few feet long. [Note 11]

For these reasons - the breadth of the bylaw's protections of non-conforming lots, the strong protections of the Dover Amendment, and the town's own recognition that a 50 foot wide access suffices to address its legitimate concerns - I find and rule that the frontage requirement is not a "reasonable regulation" on the facts of this case and thus no § 6 "finding" is required. See Petrucci, 45 Mass. App. Ct. at 824.

I would be remiss, however, if I did not address whether this analysis remains correct in light of the recent case of Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 (2011) (application for further appellate review pending), which casts doubt on the ability of a town bylaw to allow construction of entirely new structures on non-conforming lots. See id. 604-605 ("[T]he erection of any new building requires conformity with current zoning regulations.. ..[Al bylaw cannot conflict with the statute.") (internal citations omitted). I find and rule that Schiffenhaus does not change either the analysis or the conclusions I have reached. First, it is not clear how far the Appeals Court will apply Schiffenhaus. The decision was carefully limited to its facts. 79 Mass. App. Ct. at 605 n.7. More importantly, however, and simply put, G.L. c. 40A § 3 makes this a different case. Statutes are to be read as a unified whole, with general provisions yielding to specific ones. See Hennessy v. Berger, 403 Mass. 648 , 651 (1988). G.L. c. 40A § 3 is a specific legislative mandate granting special protections to educational and child care center uses. Depending upon the facts of the case, it can override any seemingly contrary provisions in G.L. c. 40A § 6. See Petrucci, 45 Mass. App. Ct. at 824 (holding that a § 6 finding was not required in the factual circumstances presented). Here, effectively, G.L. c. 40A § 3 removes the non-conformity (the lack of frontage) because it would not be a "reasonable regulation" of the proposed school in these circumstances. Those circumstances include the development's compliance with all other aspects of the zoning bylaw including its use restrictions, and the satisfaction of the purposes of the frontage requirement as discussed above.


For the foregoing reasons, assuming the validity of the 50 foot wide easement in the location and with the dimensions shown on the Zoning Board Plan (Exhibit 1), I find and rule that the addition of the Montessori School to the parcel in accordance with that plan is ALLOWED by G.L. c. 40A § 3 without the need of a G.L. c. 40A § 6 finding on the frontage and access issue. No other aspect of the development's compliance with the town's zoning bylaw is addressed or decided. Judgment shall enter accordingly.


Exhibit 1

Zoning Board Plan 19 Knight Way


[Note 1] Brenda Knight, added to this case in the First Amended Complaint after plaintiff Catherine Ellsworth's standing was challenged (Notice of Docket Entry, 20 Feb. 2009), is the owner of the 19 Knight Way property. Catherine Ellsworth is a principal in Hands-On Montessori Elementary School Inc., which has the property under agreement and proposes to develop and operate the Montessori School. Neither Hands-On nor Ms. Ellsworth is an "owner of a freehold estate in possession in land" sufficient to bring a G.L. c. 240, § 14A action. Ms. Knight, however, has such standing as the property owner. G.L. c. 240 § 14A

[Note 2] See Zoning Board Plan 19 Knight Way (Nov. 7, 2007), a copy of which is attached to this Memorandum and Order as Exhibt 1,which shows the layout of the proposed development and the location and dimensions of the access easement to the parcel. For purposes of this decision I assume, without deciding, that the easement is 50 feet wide and may be used for vehicular access to and from both the residence (as it is presently) and the proposed school. This "fact" was not contested for purposes of this action, although it is in issue in a related one. Perillo v. Knight, Land Court Case No. 09 MISC. 406153. The parties have agreed that this case should be decided based on the easement assumption since a ruling against the plaintiffs in this matter might moot the "easement" case, and the easement issues have been fully preserved (and will be fully addressed) in that case.

[Note 3] Mansfield Zoning Bylaw § 3.1; § 3.3.1 (permitting single family dwellings in R1 zones); § 3.4.2 (permitting educational uses in R1 zones); § 3.4.5 (permitting day care centers in R1 zones).

[Note 4] The case initially sought a further declaration - "which specific zoning regulations of the Town can be applied to the Plaintiffs' proposed facility under M.G.L. c. 40A, § 3, p.p. 2 & 3", Plaintiff's Brief in Support of Her Motion for Partial Summary Judgment at 2 (Dec. 5, 2008) - but this overly broad request was withdrawn at oral argument. The full parameters of the project have not yet been submitted to the Town, and it is inappropriate to speculate (much less rule) upon (1) which zoning provisions potentially may be implicated, and (2) which will actually be in controversy.

[Note 5] The current zoning bylaw requires 200 feet. Bylaw § 4.2.1.

[Note 6] See n. 2.

[Note 7] In relevant part, G.L. c. 40A § 6 provides that "[p)re-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood." If frontage is not a "reasonable regulation" on the facts of this case, the development would not be non-conforming and a "finding" would thus not be required.

[Note 8] Contrast Bylaw s.s. 3.5 & 3.6 (prohibiting nearly all "business" and "industrial" uses in R1 Districts) (the bylaw defines educational and day care center uses as "governmental, institutional and public service uses").

[Note 9] "Yard" is defined in the bylaw as "an open space, other than a court, on the same lot with a building or group of buildings and a lot line and is unoccupied and unobstructed from the ground upward." Bylaw § 1.5.26. See also Bylaw s.s. 1.5.29, 1.5.28 and 1.5.29. It does not include "frontage" which, for non-conforming lots, is addressed elsewhere in the bylaw (s. 4.1.2) and discussed below.

[Note 10] G.L. c. 40A § 3 speaks only of "reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements."

[Note 11] See the Zoning Board Plan referenced in n. 2 which shows the location and dimensions of the easement.