MISC 99815

December 1, 1980

Middlesex, ss.

Sullivan, J.


The plaintiffs, admittedly all residents of the defendant Town of Acton and owners of residential properties therein situated within three hundred feet of the real property of the Intervenor Ellen W. Ober, Trustee of URSE Realty Company, bring this complaint to contest the proposed use of said real property by the defendant T.O.C. - Task Oriented Communities, Inc. (T.O.C.). The complaint fails to set forth the statutory provisions pursuant to which it was filed, but they appear to be G. L. c. 185 §1 (j 1/2) and c. 240 §14A. See Harrison v. Braintree, 355 Mass. 651 (1969). The ultimate relief sought is a judgment that use of the premises by T.O.C. is in violation of the zoning by-law of the defendant Town and is not exempt from its provisions.

The real properties of the plaintiffs and the intervenor are situated within an R-2 District in said Acton. Section IV A. (3) of the Acton Zoning By-law provides that

Municipal, religious, historical, educational or conservation uses are permitted in R-1, R-2, R-3, B, VCB, I-1, I-2 and ARC districts subject to all other requirements of the Zoning By-Law.

The By-law (Exhibit No. 1) in Section II H. 1. defines Education Use as

"Use for Educational purposes of land or buildings on land owned or leased by the Commonwealth or any of its agencies, subdivisions or bodies politic, or by religious sect or denomination, or by a nonprofit educational corporation."

This language tracks that of G. L. c. 40A §3, as amended by St. 1975, c. 808 §3 which provides that no zoning ordinance or by-law shall

...prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politic or by a religious sect or denomination, or by a non­ profit 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.

The questions raised by the plaintiffs center on their contention that the proposed use by T.O.C. of the property at 27 Concord Road in said Acton is not for educational purposes and that T.O.C. is neither a nonprofit nor educational corporation.

A trial was held at the Land Court on October 7 and 14, 1980 at which a stenographer was appointed to record the evidence. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. T.O.C. - Task Oriented Communities, Inc. was organized in October, 1974 pursuant to Chapter 180 of the General Laws for the purpose as stated in its Articles of Organization (Exhibit No. 2)

"To provide residential facilities for alternative life styles and rehabilitation of cronic (sic) mental patients."

2. The Articles of Organization were amended in April of 1977 by Articles of Amendment (Exhibit No. 2A) which expanded the clause relative to the corporate purposes to read as follows:

To provide residential facilities for alternative life style and rehabilitation of chronic mental patients. Further, to provide for the normalization of personal, social, and vocational skills of chronic mental patients in both work and residential community settings through education and reeducation of unlearned or lost skills.

3. The Internal Revenue Service, by letter dated September 3, 1975, made a preliminary ruling that T.O.C. was exempt from federal income tax under section 501 (c) (3) of the Code as a publicly supported organization, and not as a private foundation, during an advance ruling period. (Exhibit No. 4).

4. T.O.C. intends to use the property in question for ten to twelve persons who have been long term patients in Massachusetts mental hospitals. The former patients will live at 27 Concord Road in Acton and be taught there the basics of daily living such as planning meals, caring for their rooms, driving a car and organizing their free time. The hospitalized patients initially are screened for danger to self and others, active abuse of drugs and alcohol and inability or unwillingness to observe the group's decisions. Subsequently an effort is made to find patients willing to leave the protective mantle of the institution to experience community living. They are not expected to perform beyond their capabilities in the T.O.C. houses nor is eventual capacity for leaving the house to re-enter (or enter) society a criterion. For many, if not all, clients this is not viewed as a possibility.

5. The staff at the property will consist of a house manager and residential coordinators. Initially at least it is planned that there always be two staff persons on duty. There will be four full-time staff members plus "floater" coverages. In addition to Amos Naor, M.D., hereinafter mentioned, T.O.C. has two other consulting psychiatrists as well as a clinical coordinator and a clinical director. If there were a medical emergency, the chain of command would go upward from the house manager to clinical coordinator, clinical director and consulting psychiatrist.

6. While living in a T.O.C. residence the clients spend their days in a sheltered workshop (Exhibit No. 16) operated by T.O.C. in Waltham and are trained and able to make circuit breakers for which they are paid amounts commensurate with federal law.

7. The clients receive additional funds from other sources such as SSI and will pay T.O.C. for room and board. T.O.C. also will receive funds from The Commonwealth of Massachusetts to fund the Acton program. Services presently are furnished by T.O.C. at the Nurses' Dormitory at Metropolitan State Hospital (Exhibit No. 18) where the program envisioned for Acton is currently in progress.

8. Title to 27 Concord Road is in the intervenor. The plaintiffs attempted through the use of discovery to learn the names of the investors in URSE Realty Trust, but the Court had ruled against release of this information.

9. It appears that record title to at least one of the properties used by T.O.C. (although not that in Acton) is in a real estate trust of which the trustee is Dr. Amos Naor, first president and an original director of T.O.C., and the beneficiaries of which include members of his family and his pension trust.

10. Dr. Naor also is repaying to T.O.C., from his salary, advances made to him.

11. The Town of Acton views the proposed use of the premises as within the educational exemption; its counsel was present at the trial but has taken no active part therein.

Earlier in 1980 the Supreme Judicial Court considered the status for zoning purposes of a program very similar to that envisioned here. In Fitchburg Housing Authority v. Board Of Zoning Appeals of Fitchburg, Mass. (1980) [Note 1] it was held that the use was no less educational, because the functions which were being taught were without the orbit of traditional schooling. The facts of the Fitchburg case, as summarized in the decision, were as follows:

The proposed facility would be located in a single­family house ... and would be operated to work with chronically disturbed people who have been in mental institutions. These people would require medical treatment [mostly self-administered] and would participate in a "training program aimed at developing or learning social and interpersonal skills such as learning to keep themselves physically clean, learning to shop and how to use money and learning to cook." The basic purpose would be "to train people to rid themselves of bad habits and to teach them habits so that they would be qualified to live independently by themselves in a community." [Note 2]

Residents to be served in the Fitchburg program were screened so that no one whose primary diagnosis was alcoholism, criminality, drug abuse, organic brain disorder, violent behavior, anti-social sexual behavior, or mental retardation would be admitted to the program. In finding that the proposed facility was educational, the Fitchburg court stated that

The proposed facility would fulfill a significant educational goal in preparing its residents to live by themselves outside the institutional setting. Instruction in the activities of daily living is neither trivial nor unnecessary to these persons. On the contrary, for the prospective residents of the proposed facility to learn or relearn such skills is an important step toward developing their powers and capabilities as human beings. Inculcating a basic understanding of how to cope with everyday problems and to maintain oneself in society is incontestably an educational process. That is the dominant purpose of the proposed facility. [Note 3]

The major factual difference between the Fitchburg facility and the T.O.C. community residence is that residents of the T.O.C. house are not expected to leave and take their place in the outside world. Although some residents do leave to reenter society, that is not the dominant purpose of the community program. Otherwise the goals of the two programs are identical, that is, taking patients out of the institution and teaching them how "to live by themselves outside the institutional setting." The teaching of daily living skills is no less important to one who will live with others in a community residence than to a person who will ultimately live alone.

The only legal difference between the Fitchburg case and the instant case is the change in the wording of the educational exemption provided by statute. The statute in effect at the time of the Fitchburg decision, formerly G. L. c. 40A §2, read as follows:

... no ordinance or by-law which prohibits or limits the use of land for any church or other religious purpose or for any educational purpose which is religious, sectarian, denominational or public shall be valid.

The new statute requires that the land be used for educational purposes but also requires that it be owned or leased by a non­profit educational corporation. This change does add a second step to the process of determining whether a piece of property qualifies for an educational exemption to local zoning ordinances. It does nothing, however, to change the definition of an educational purpose as set forth in Fitchburg. Therefore after finding that the T.O.C. community residence does serve an educational purpose as described in Fitchburg, it is now necessary to determine whether T.O.C. is a non-profit educational corporation.

In order to qualify for the exemption the property must be "owned or leased" by a non-profit educational corporation. The statute, however, does not require that both the owner and lessee be non-profit corporations nor is there any law which prevents a non-profit organization from leasing property from a profit­motivated concern. Therefore it is only the status of T.O.C. that is of importance to this decision. It is true that the original purpose of T.O.C. as set forth in its Articles of Organization did not emphasize the educational aspects of the corporation. The expanded purposes as set forth in the Articles of Amendment underline the dominant educational functions of T.O.C. in the sense in which the Fitchburg court defined educa­ tional as explained in the quotation from Justice Wilkins' decision set forth above. Granted that fewer of T.O.C.'s clients may be able to maintain themselves in society it nonetheless is educational for them to learn to live in the far less structured, but infinitely more promising, world of T.O.C. than in a state hospital. Clearly here, as in Fitchburg, we are not considering a facility whose dominant purpose is medical or custodial.

As to the non-profit status of T.O.C., the corporation's charter is prima facie evidence of its non-profit status. Boxer v. Boston Symphony Orchestra, Inc., 342 Mass. 537 , 538 (1961). The plaintiffs did not introduce any evidence that would rebut the designation of T.O.C. as a non-profit organization by both the Internal Revenue Service (Exhibit No. 4) and the Commonwealth of Massachusetts, as evidenced by the Secretary of State's approval of the incorporation of T.O.C. pursuant to Chapter 180 of the General Laws (Exhibit No. 2) and the Secretary's Certificate showing T.O.C.'s continued existence as a Chapter 180 corporation. (Exhibit No. 5).

The plaintiffs alleged that Dr. Naor, the incorporator of T.O.C., has received income from the corporation and that the real purpose of the corporation is to provide Dr. Naor with a means of operating his psychiatric practice. In support of this the plaintiffs introduced evidence that Dr. Naor works about thirty hours a week for T.O.C.; there was, however, no evidence as to whether the compensation to Dr. Naor for this work was exorbitant. The Naor Realty Trust, of which Dr. Naor is a trustee and members of his family beneficiaries, does lease another piece of property to T.O.C., but there was no evidence that the rental fees charged are unreasonable or excessive.

The plaintiffs, private parties with no official status, seek to restrain T.O.C. from using the URSE premises for its corporate purposes. They therefore bear the burden of establishing that T.O.C.'s corporate purposes and its use of the premises both are not predominantly educational and that T.O.C. is not a true non-profit corporation. Cf. Cumington School of the Arts, Inc. v. Board of Assessors of Cumington, Mass. (1977) [Note 4] where the burden rested on the appellant to establish its entitlement to an exemption from real and personal property taxes pursuant to G. L. c. 59 §5 Third.

On all the evidence I therefore find and rule that T.O.C. is a non-profit educational corporation, that the dominant use to be made of the premises at 27 Concord Road is educational; that T.O.C. may in accordance with the provisions of G. L. c. 40A §3 and the Acton Zoning By-law use said premises for its corporate purposes, and that the plaintiffs are not entitled to the relief which they seek.

Judgment accordingly.


[Note 1] Mass. Adv. Sh. (1980) 1465.

[Note 2] Id. at 1467-68.

[Note 3] Id. at 1471.

[Note 4] Mass. Adv. Sh. (1977) 2283.