TRUSTEES OF TUFTS COLLEGE v. CITY OF MEDFORD, HORACE WORKS, RUTHMARIE BRADY, DANIEL J. MELICAN, F. FRANCIS BRUNO, ALFRED TIBERI, SHELDON FINE, and KENNETH COLLYER as they constitute the COMMUNITY DEVELOPMENT BOARD OF THE CITY OF MEDFORD. JOHN J. TOOMEY, STEPHEN VERCOLLIONE, HARRY PORTER, JEANNETTE MURPHY, Defendant Intervenors.

This is a complaint for a declaratory judgment under G. L. c. 231A, §1, c. 240, §14A, c. 185, §§ (j 1/2) and (k) as to the validity and applicability, in light of the educational use exemption of c. 40A, §3 [Note 1] of certain zoning ordinances of the City of Medford and of a regulation of the Medford Community Development Board (CDB) to a proposed dormitory complex plaintiff seeks to build.

The parties submitted an agreed statement of facts and twenty-two accompanying exhibits numbered A to V. The Court incorporates the agreed statement of facts into its findings of fact. Trial was held on september 13 and 14, 1978 at which nine witnesses testified and two additional exhibits were introduced into evidence. All exhibits are incorporated herein for the purpose of any appeal. A view with counsel for all parties present was taken on Tuesday, October 3, 1978. Oral arguments were heard on October 17, 1978 and requests for findings of fact and conclusions of law were received from all parties by November 1, 1978.

Drawings of plaintiff's proposed dormitory complex are shown in exhibit R. The complex consists of eight three-story garden apartment style buildings which will house a total of 304 students. Plaintiff seeks a declaration that it is exempt from regulations which 1) require a special permit as a prerequisite to the construction of dormitories, 2) impose height limitations, 3) restrict the width of driveways, and 4) limit the number of buildings upon a single lot. [Note 2] Each of these regulations will be examined separately.

1. The special Permit Requirement

The six acre site of the proposed dormitory is located in a general residence district. Under section 5.3 (20) of the Medford Zoning Ordinance as amended through April 12, 1974 (Exhibit B1) a special permit from the board of appeals is required before a dormitory may be built. This ordinance was amended on June 27, 1978 (Exhibit B2) with a provision that the special permit be obtained from the city council rather than the zoning board of appeals. The parties have stated that the zoning ordinance as amended through April 12, 1974 governs.

In light of plaintiff's position that a declaration of the present validity, not a review of the past action, is being sought, see f.n. 1, the Court believes the present zoning ordinance as amended through June 27, 1978 governs. However, it makes no difference whether the special permit is to be obtained from the board of appeals or the city council in the view the Court takes of the special permit provision.

Plaintiff argues first that the educational use exemption contained in c. 40A, §3 precludes a municipality from requiring an educational institution to obtain a special permit as a condition of constructing an educational facility and secondly that the special permit requirement is not merely a reasonable regulation of dimensional requirements but an appeal to the discretion of the board of appeals or city council and thus outside the scope of regulation allowable under c. 40A; §3.

G. L. c. 40A, §3 provides in material part:

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, [Note 3] 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.

It is clear from the text of c. 40A, §3 and from the case law construing the predecessor statutory provision that educational institutions are not exempt from all municipal regulations which may affect land use or structure. Radcliffe College v. Cambridge, 350 Mass. 613 (1966). Therefore, the task of this Court is to determine whether the challenged portions of the Medford Zoning Ordinance are within the permissible ambit of regulation.

The Court must decide whether or not the conditions imposed by §16 of the Medford Zoning Ordinance before a special permit will issue exceed the scope of reasonable regulation permissible under the proviso contained in G. L. c. 40A, §3.

Section 16.4 of the old ordinance and §16.6 of the new ordinance provide, in part:

Applications for Special Permits shall only be approved if the City Council or Board of Appeals finds that in its judgment all the following general rules are complied with:

(a) The particular site is an appropriate location for such a use, structure, or condition.

(b) The use as developed will not adversely affect the neighborhood.

Under this by-law the city council or the board of appeals will determine that the site is an appropriate location, subsection (a), and that the use will not adversely affect the neighborhood, subsection (b). This contravenes the face of the very language of section 3 of c. 40A providing that no zoning ordinance shall regulate or restrict the use of land for educational purposes. It is not a "reasonable regulation" within the limits of the proviso. To allow a city or town to determine what is an appropriate location for a dormitory is to go far beyond the provisions of §3; to allow the granting of a permit only where the use will not adversely affect the neighborhood is again to exceed the scope of c. 40A, §3. The Legislature, by exempting educational uses from municipal restriction or regulation (except for the manner outlined in c. 40A, §3), has already made the judgment that educational uses are appropriate in residential districts. The decision whether a particular site is appropriate for an educational use has been relegated to the educational institution. The municipality may only condition the use in the manner outlined in the "proviso" found in c.40A, §3; it cannot prohibit development on the site chosen and owned or leased by the institution. By limiting the permissible scope of municipal regulation, the Legislature has sought to balance the general welfare served by educational uses against the possible disadvantages accruing to neighboring property. Municipalities may regulate only in the manner outlined in c. 40A, §3 and if, despite the permissible scope of these regulations, inconveniences cannot be eliminated, these must be tolerated. Section 16 of the Medford Zoning Ordinance exceeds the permissible scope of regulation and is invalid as applied to plaintiff who cannot be required to seek a special permit as a precondition to construction of its dormitory complex. [Note 4]

2. Maximum Height Regulation

G. L. c. 40A, §3 provides that land or structures used for educational purposes may be subject to reasonable regulation concerning the bulk and height of structures. Section 6.3 item 5b of the Medford Zoning By-Law limits the maximum height of the proposed dormitories to 35 feet. Section 3.27 defines height as

The vertical distance between the mean level of the established grade and the mean of the vertical distance between the ceiling joists and ridge of the roof, or the highest point of the roof in the case of a flat roof. The mean level of the established grade is the arithmetic average of the lowest and highest curb grades between the points where the side lot lines extended intersect the line of the nearest curb on streets where the lot has frontage ...

While all of plaintiff's proposed units would be less than 35 feet tall as measured from the mean grade of the structures, they are not when measured from the mean grade at the curb owing to the topography of the lot. This is because the six acre lot on which the units are planned to be constructed rises sharply from College Avenue, the only street on which it fronts, to a maximum elevation of 46 feet near the rear of the lot. (Tr.I-81). Thus the effect of §§6.3 5(b) and 3.27 is to render a substantial portion of the lot unusable for dormitory purposes unless the units are built underground. As applied, such a regulation would effectively nullify the educational exemption and for that reason may not be applied to plaintiff's project. Sisters of the Holy Cross of Massachusetts v. Brookline, 347 Mass. 486 , 494 (1964). Ther is no serious question and defendant intervenors concede that the height regulation as applied to plaintiff's lot is unreasonable within the meaning of c. 40A, §3 and the Court so finds.

However, defendants argue that even though the height regulation may be unreasonable as applied to plaintiff's lot it is not invalid because it is, on its face, a non-discriminatory, reasonable regulation; that it is the topography of plaintiff's lot that causes the hardship; and that the remedy for this is a variance as provided in §15 of the Medford Zoning Ordinance and G. L. c, 40A, §10. With this the Court agrees. Thus, the Court finds that the height regulations, §§6.3 5(b) and 3.27, are not invalid on their face but they may not be applied to prohibit construction on plaintiff's lot.

Plaintiff has requested a ruling that it is entitled to a variance from the provisions of §6.3 item 5(b) and §3.27. See plaintiff's proposed conclusion of law number 7. The Court has concluded that the height regulation, while valid on its face, cannot be applied so as to prohibit construction on the lot in question and thus Tufts is entitled to a variance. However, this Court has no power to grant such a variance as this power is vested in the board of appeals by c. 40A, §10 and by §15 of the Medford Zoning Ordinance. This Court cannot dictate the extent of the variance to be granted. Plaintiff cannot use the declaratory procedure to circumvent the variance procedure or, having sought and obtained a variance as here, to moot the pending appeals from the granting thereof.

3. Width of Drive Regulation

Section 10.26 (b) of the Medford Zoning By-Law provides that "(t)he maximum width of drives at the street line shall be 20 feet in Residential Districts .."

With respect to this section, Tufts claims it has found itself in a "catch 22" situation. The zoning ordinance calls for a maximum width of drives at the street line of twenty feet. In November of 1977 when Tufts representatives met with the Medford Fire Chief, he recommended a thirty foot wide roadway, rather than twenty feet, in order to accommodate fire apparatus in case of fire in the dormitory area. While a twenty foot wide roadway is sufficient clearance for fire trucks, the chief foresaw the eventuality of illegal parking on both sides of the drive which could pose a hazard in the event of a fire. Therefore, the chief recommended a thirty foot drive in order to provide necessary clearance even if vehicles should be illegally parked on both sides of the way. Tufts designed its layout using the thirty foot width to accommodate the fire chief, but under the applicable zoning regulations only a twenty foot width is allowed. Thus, Tufts argues that as a result of these conflicting requirements of city agencies, the mutually exclusive provisions with which Tufts cannot comply, it is prevented from building its dormitories, and hence the operation of the width requirement is to preclude an educational use in violation of c. 40A, §3.

It is not apparent that this Court has jurisdiction to pass on the validity of the fire chief's recommendation; such review is not within the scope of c. 240, §14A. Nor does the Court perceive how the fire chief's recommendation can block Tuft's project. The issue of his authority to contravene a zoning ordinance has not been argued and would not be a proper subject for the Land Court's determination. In this action, all that the Court can do is to pass upon the validity of §10.26(b). The mere fact there is a disagreement between city agencies as to the proper width of drives does not indicate that the regulation is unreasonable and therefore invalid. As twenty feet is sufficient clearance for fire apparatus" the evidence is insufficient to support a conclusion that a twenty foot wide drive is unreasonable within the meaning of c. 40A, §3.

As for Tufts argument that §10.26(b) is not within the scope of permissible municipal regulation under c. 40A, §3 since width of drives at the street line is not one of the specifically enumerated regulations therein, the Court points out that §10.26(b) can be construed as a regulation of "open space" which is specifically set forth in c. 40A, §3. In addition, it seems clear that driveway width requirements are not a restriction on the use of land for educational purposes within the meaning of c. 40A, §3. Providing for access from the street to the educational facilities, here dormitories, is clearly a necessary secondary function of an educational institution and hence within its educational purpose. Thus, the width regulation does not restrict the use of land for an educational purpose. Radcliffe College. v. Cambridge, 350 Mass. 613 , 618 (1966).

4. No-structure-Within-a-Rear-Yard Requirement

Section 7.51 of the Medford Zoning Ordinance provides:

No structure shall be built within the rear yard except for a structure accessory to a one or two family dwelling which may occupy up to 25 percent of the rear yard area (sic).

Plaintiff's proposed dormitory development consists of eight buildings clustered around several courtyards which face in different directions and render identification of a conventional rear yard impossible. Rear yard is defined in §3.76 of the zoning ordinance as

The yard lying between the rear of the principal structure and the rear lot line and bounded by the side lot lines. The minimum rear yard is measured horizontally between the nearest point of the principal structure and the rear lot line.

Under this definition, a condition precedent to the existence of a rear yard is the existence of one principal structure upon the lot. As there is no one principal structure, but rather eight separate buildings, a rear yard as defined in §3.76 cannot be identified. Thus, the Court is of the opinion that while §7.51 may not be invalid, it is not applicable by its very terms to plaintiff's project, and hence plaintiff need not comply with it. If plaintiff's alternative plan is used, see page 15, the rear yard requirement is not breached.

5. No-More-Than-One-Building-On-the-Same-Lot Regulation

In addition to its challenges to provisions of the zoning ordinance, the plaintiff also takes issue with section 6.31 of the Medford Planning Board Rules and Regulations.

Section 6.31 provides:

Not more than one building designed or available for use for dwelling purposes shall be erected or placed or converted to use as such on any lot in a subdivision, or elsewhere in the City without the consent of the Board.

First there is a question whether the Land Court has jurisdiction to pass upon the validity of a planning board regulation. Under c. 240, §14A the Land Court may determine

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...land...or of present or future structures thereon....

Section 6.31 of the Medford Planning Board Rules and Regulations were promulgated under the authority of the subdivision control law, c. 41, §§81K-GG. Thus, the question becomes whether the subdivision control law is a "special law relating to zoning" within the meaning of c. 240, §14A. Whether or not the subdivision control law is a law relating to zoning need not be decided for it is clearly not a "special law", but is a general law, and thus the Court has no jurisdiction under c. 240, §14A.

However, the Court does have jurisdiction under c.231A, §l and c. 185, §l(k). While defendant argues that there is no case or controversy within the meaning of c. 231A, §l, the Court disagrees. Plaintiff alleges in paragraph 26 of its amended complaint that §6.31 as it applies to land outside a subdivision is in excess of the planning board's authority, is therefore invalid, and hence is inapplicable to plaintiff's property which is not located within a subdivision. Defendants answer, paragraph 26, denies this allegation. Hence there is a controversy as to the validity of §6.31 of the regulations as applied to plaintiff's project. Compare Bunker Hill Distributing, Inc. v. District Attorney for Suffolk County, 78 Mass. Adv. Sh. 2248, 2249-50, where defendant took no position relative to the plaintiff's assertion. Therefore, defendants' motion to dismiss for lack of jurisdiction is denied. The Court now turns to the merits.

Chapter 41, §81Q provides that a planning board

shall adopt...reasonable rules and regulations relative to subdivision control not inconsistent with the subdivision control law or with any other provisions of a statute or of any valid ordinance or by-law of the city or town....The rules and regulations may ...provide that not more than one building designed or available for use for dwelling purposes shall be erected...on any lot in a subdivision, or elsewhere in the city or town, without the consent of the planning board, and that such consent may be conditional upon the providing of adequate ways furnishing access to each site for such building, in the same manner as otherwise required for lots within a subdivision. (Emphasis supplied).

Plaintiff argues that the language authorizing a planning board to prohibit more than one building per lot on land outside a subdivision is a legislative anomoly, that a planning board's function is limited to subdivisions, and that §81Q should be limited to that context and not be interpreted to extend planning board authority over non-subdivision land. In light of the somewhat under inclusive definition of subdivision in G. L. c. 41, §81L in relationship to desirable planning objectives of subdivision regulation, see for example 4 Anderson, American Law of Zoning §23.03 (1977), the Court is not convinced by plaintiff's argument that the challenged language is the product of a legislative mistake and does not authorize regulation 6.31. Rather, it would appear that the intent of the Legislature in authorizing the questioned regulation was to grant a planning board authority to determine the adequacy of access to developments which, while not technically subdivisions within the meaning of c. 41, §81L, are similar in their impact upon a community and thus occasion a like need for regulation. The Court is not convinced on the record before it that plaintiff's dormitory project is outside the limit of planning board regulation as authorized by c. 41, §81Q. Thus the Court is not prepared to rule that planning board regulations may never be applied to an educational use or structure. And while c. 40A, §3 must be viewed in its negative impact as demarking the outer limits of municipal regulation of land use for educational purposes, §6.31 on its face does not transgress these limits for the same reasons as stated in part 3, the width of drive regulation. While regulation §6.31 suffers from the omission to set forth standards to guide the exercise of planning board discretion in deciding when to grant permission to construct more than one structure per lot, and while it is a close question whether it is invalid for this reason, the Court concludes the regulation is valid on its face. Butler v. East Bridgewater 330 Mass. 33 , 36-37 (1953); Burnham v. Board of Appeals, 333 Mass. 114 , 118 (1955).

Nor can it be said that the application of the one building per lot requirement to plaintiff's six acre parcel necessarily denies plaintiff the right to use substantial portions of its land for educational purposes and thus is tantamont to a nullification of plaintiff's educational use exemption. Plaintiff's alternative plan for the dormitory project, exhibit V, consisting of one three-story building which will house 312 students, indicates plaintiff's major objective can be accomplished despite the regulation and without wastage of land. In any event, §6.31 is not a flat prohibition of more than one building per lot but a provision for conditioning development.

The Court cannot grant plaintiff's request for ruling number eight that it is entitled to permission from the C.D.B. to construct more than one building per lot because the decision whether or not or on what conditions to permit more than one building per lot is committed in the first instance to the planning board, not to the Land Court. G. L. c. 41, §81Q. It is for the C.D.B., not the Land Court, to determine whether or not the criteria for the granting of permission have been fulfilled. Review of the C.D.B.'s decision rests with the board of appeals and the Superior Court, not the Land Court. G. L. c. 41, §§81Y, 81BB.

6. Sewerage disposal plan

Plaintiff seeks a declaration of the adequacy of its proposed sewerage system. The sewerage testimony was offered by Tufts on the issue of Tufts compliance with the special permit requirements, specifically §16.4 (d) of the Zoning Ordinance. See Tr. 2-100. The Court has concluded plaintiff is not subject to the special permit procedure for the reasons stated in part 1 of this decision, and whether the proposed sewerage system satisfies §16.4 (d) will not be decided for the reasons stated in note 4, page 6.

However, Tufts argues that it is clear from the testimony at trial that Tufts will be opposed when it applies for a sewer connection permit and that this threat that the permit may not be granted creates a controversy within the meaning of c. 231A, §l entitling Tufts to declaratory relief on the issue of the adequacy of its proposed sewerage plan. Whether there is a case or controversy within the meaning of c. 231A, §l (which the Court seriously doubts) need not be decided because the Land Court has no independent subject matter jurisdictional basis on which to enter a declaration of the adequacy of Tufts sewerage proposal. Such a declaration is not within the scope of c. 231A, §1 as limited by c. 185, §1(k), and it would not be appropriate in this case to invoke any concept of pendent jurisdiction on which to base the declaration.

Plaintiff has submitted forty-one requests for findings of fact. Many of these requests are irrelevant to the outcome of the present action; however, the Court will pass upon them. Numbers 1, 2, 3, 4, 5, 7, 10, 16, 17, 18, 21, 28, 41 are granted. Numbers 35, and 39 are denied.

With respect to number six, the court finds Tufts has a need for additional dormitory space and has, in the past, housed a significant number of students in buildings which Tufts considers inadequate from educational and habitability stand points.

With respect to number eight, the court finds Tufts has obtained a loan commitment of $5,307,000.00 from the Department of Housing and Urban Development to finance dormitory construction. The commitment letter, exhibit G, states that construction must begin within eighteen months from the date of the letter (i.e., by February 1979) without specifying the consequences for failure to follow this time schedule.

With respect to numbers 9, 11, 12, 13, 14, the Court finds Tufts has modified its original dormitory plans several times in response to objections and suggestions from residents and officials.

With respect to number 15, the Court finds the Community Development Board denied Tufts permission to erect more than one structure for dwelling purposes upon the proposed site for the dormitory.

Request for finding number 19 is granted as to the first four sentences and denied as to the fifth.

Number 20 is granted with the modification that the $50,000 figure is an estimated cost Tufts received from an engineering firm. Tr. 1-54.

With respect to number 22, the Court finds that the board of appeals' decision reversing the C.D.B.'s decision was appealed to the Superior Court by the C.D.B. The Court has no evidence before it on the status of the appeal.

With respect to number 23, the Court notes that the parties have informed the Court that the board of appeals' grant of the special permit and variances have been appealed to the Superior Court, that this appeal was dismissed, and that the dismissal has been appealed.

With respect to number 24, the Court finds that the board of appeals' decision reversing the decision of the C.D.B. was issued February 22, 1978, the plaintiff's complaint was filed on March 29, 1978 and the board of appeals voted to grant the special permit and variances on April 26, 1978.

Numbers 25, 26, 27, 29, 30, 31, 32, 33 are denied because, in view of the Court's decision that §16 of the Medford Zoning Ordinance exceeds the permissible scope of regulation outlined in c. 40A, §3 and is therefore invalid as applied to plaintiff, the Court need not determine whether or not plaintiff has complied with the special permit requirements. See also note 4, page 6.

Number 34 is denied to the extent it is inconsistent with the Court's findings and rulings contained in part 2 of this decision and is otherwise granted.

With respect to numbers 36, 37, 38 the Court rules that §7.51 of the Medford Zoning Ordinance does not apply to the dormitory complex described in exhibit R for the reasons stated in part four of this decision and that §6.31 of the rules and regulations of the C.D.B. does apply to said dormitory complex for the reasons stated in part five of this decision.

The Court declines to make any findings with respect to number 40, the adequacy of the sewer system, for the reasons stated in part six of this opinion.

Plaintiff has submitted twelve requests for conclusions of law.

Number 1 is denied to the extent it exceeds the Court's rulings in part 1 of this decision and is otherwise granted. The Court's ruling with respect to conclusion number 1 renders it unnecessary to pass upon numbers 2 and 6, but numbers 2 and 6 would otherwise be denied for the reason stated in note 4, page 6.

Numbers 3, 4, 5, 7, 9, 11 are denied. Number 8 is denied for the reason stated on page 15. Number 10 is denied for the reasons stated in part six of this opinion. Number 12 is granted.

Defendants City of Medford and Community Development Board have submitted 11 requests for rulings of law. Numbers 1, 3, 8 and 9 are granted; numbers 2, 4, 5, 7 are denied. The Court's ruling with respect to number 6 is contained in part 2 of this decision. The Court need not pass on number 10 for the reasons stated in part 6 of this opinion.

Defendant intervenors have submitted forty-four requests for findings of fact and rulings of law.

With respect to defendants' requests for findings relative to jurisdiction, numbers 1 through 10, numbers 2 and 3 are granted; numbers 4, 5, 6, 7 are denied. With respect to number 1, the Court assumes for the purpose of this decision that §6.31 of the C.D.B.'s rules was validly enacted under c. 41, §81Q since there has been no challenge in this action to the procedure of its adoption. As for number 8, the Court rules that §6.31 of the C.D.B.'s rules on its face does not necessarily infringe an educational use exemption. Numbers 9 and 10 are granted insofar as they are in conformity with part five of this opinion.

Numbers 11 through 28 dealing with the special permit requirement are ruled upon as follows. Numbers 11 and 12 are granted. The Court, having determined that the special permit requirement, §16 of the Medford Zoning Ordinance, exceeds the scope of regulation permissible under c. 40A, §3 for the reasons stated in part 1 of this decision, declines to make findings with respect to the matters set forth in numbers 13, 15, 16, 17, 18, 19, 20, 21, 23, 24, 26, 27, 28. Numbers 22 and 25 are denied.

Numbers 29 through 40 address the variances. The Court has determined that §7.51 of the ordinance is not applicable by its terms to Tufts' project, and thus the Court need not decide whether or not §7.51 is, in the abstract, a reasonable regulation.

Consequently, number 29 is denied. Likewise, numbers 30 and 31 are denied. Numbers 32, 34, 35 and 36 are granted rendering it unnecessary for the Court to pass upon number 33. Numbers 37 through 40 are granted insofar as they are consistent with part 2 of this decision.

The Court makes no findings on the adequacy of the sewerage system for the reasons stated in part 6 and thus it is unnecessary to more specifically pass upon numbers 41 through 44.

Judgment accordingly.