MISC 101707

March 30, 1981

Norfolk, ss.

Randall, C. J.


This is a complaint filed under General Laws, Chapter 240, §14A and Chapter 185, §1(J 1/2)for the judicial determination of the permissability of the proposed use of a building located in an area zoned for General Residence under the Zoning By-Laws of the Town of Walpole. The Town in its answer admitted most of plaintiffs' allegations and called for proof of others: it asked that the complaint be dismissed because the "Plaintiff's facility is not an educational purpose." (sic)

The matter was heard on March 16, 1981 at which time the plaintiffs Rivard and Marathon House, Inc. (hereinafter Marathon) and Encounter Foundation, Inc. (hereinafter Encounter) and defendant Town of Walpole submitted the case to the Court for its consideration, in effect, upon an agreed statement of facts - the agreed statement consisting of the plaintiffs' pleadings and the affidavit of one David Mactas, Executive Director of both Marathon and Encounter, together with exhibits attached thereto.

The background of this matter reveals that the plaintiffs sought to obtain a certificate of use and occupancy of the premises as a temporary shelter and group care facility under the provisions of Section 3-B-3(h) of the Town of walpole Zoning By-Laws (Para. 8 of the Mactas affidavit). They were refused by the Town's Building Inspector, who ruled that they must file an acceptable site plan, obtain a special permit from the Board of Appeals for the requested use and a variance from certain buffer zone requirements of Section 4D of the By-Laws. The site plan, special permit and variance were granted by the Board of Appeals. However, certain abutters filed an appeal in the Norfolk Superior Court seeking a review of the opinion of the Board of Appeals and this matter is still waiting to be heard. The abutters who appealed, were named by the plaintiffs in the present action, being Ruth E. Smith, Marion Cole, Harold M. Smith, William E. Smith, Jr., Kenneth A. Smith and Mildred E. Lockwood. Service was made on these individuals in a very inartistic manner, to say the least. However, before the hearing on March 16, 1981 at the Land Court, the clerk notified these persons by telephone of the hearing. At the hearing itself, the plaintiffs filed a motion, allowed by the Court, to dismiss their claim against these abutters whom the plaintiffs considered not to be necessary parties in the present action.

The plaintiffs, being under time constraints, then brought this action under Chapter 240, §14A. The pertinent provisions of this section allow such a petition

"for 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 the petition"

This may be done whether or not a "permit or license to erect structures or to alter, improve or repair existing structures on such land has been applied for." In addition, such an action may be brought even though an appeal has been taken on another petition based upon a different interpretation of the local zoning by-laws.

The issue to be determined in the present case is whether or not the proposed use of the premises is educational within the purview of G. L. c. 40A, §3. This section provides in part that 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 non-profit educational corporation."

The Court finds the following facts:

1. Plaintiffs Rivard own a parcel of land with a house thereon situated at 28 School Street, in a general residence district as defined by the Town of Walpole Zoning By-Laws, Sections 2 and 2A. This parcel is the subject of an agreement of sale to Encounter.

2. Plaintiff Encounter is a Connecticut corporation properly registered to do business in the Commonwealth of Massachusetts under G. L. c. 181. It seeks to purchase the premises owned by plaintiffs Rivard at 28 School Street in Walpole for the purpose of leasing the same to plaintiff Marathon for the uses as set forth in paragraph 5 herein. Under paragraph 3 of Encounter's Certificate of Incorporation issued by the State of Connecticut (Exhibit B - Mactas Affidavit) it is stated that the corporation is non-profit, shall not issue shares of stock or pay dividends.

3. Plaintiff Marathon is a Rhode Island corporation also registered in Massachusetts under G. L. c. 181, which seeks to lease the said premises at 28 School Street from Encounter for the uses set forth in Paragraph 5 herein. Exhibit C attached to the Mactas Affidavit contains a copy of the By-Laws of this corporation which proclaims that it will be operated exclusively for charitable purposes. In addition, it includes a copy of a Certificate of Exemption from the State of Rhode Island stating that it is a "religious, educational or charitable" institution and a like determination by the Internal Revenue Service granting it tax exemption.

4. Encounter was incorporated for the sole purpose of holding title to property, collecting income therefrom and turning over such amounts to Marathon. The latter has as one of its principal goals the providing of education and treatment services for troubled youths.

5. Marathon intends to use the property in question as a temporary shelter/group care facility for up to six non-delinquent adolescents who are experiencing family difficulties, abuse or neglect. It expects referrals from various state and private agencies among others for emergency and temporary adolescent care. Each child may stay at the facility for no longer than 45 days. The facility will be staffed by a Director and four full-time counsellors each of whom will have, at a minimum, a bachelor's degree in education, psychology or social work.

6. While resident at Marathon the children will receive instruction as to how they might best be re-integrated into their families and communities. Each child must attend public school but if unable to do so because of the distance or otherwise from Marathon to his or her school, the child will receive tutoring from the staff in accordance with an educational program in which the youngster's school will cooperate. After-school study periods are planned and school assignments are to be monitored by Marathon staff. Reading and aptitude tests may be administered as well.

Under the provisions of General Laws, Chapter 40A, Section 3 two questions must be answered: (1) Are the uses sought to be made of the premises for educational purposes? and (2) Are plaintiffs Marathon and Encounter non-profit educational corporations?

The answer to the first question must be "yes." Education was defined in the case of Mount Hermon Boys' School v. Gill, 145 Mass. 139 , 146 (1887) as follows:

"'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."

This definition was adopted in Harbor Schools, Inc. v. Board of Appeals of Haverhill, 5 Mass. App. Ct. 600 , 605 (1977) and in Fitchburg Housing Authority v. Board of Zoning Appeal of Fitchburg, Mass. (1980). [Note 1] The facility in Harbor Schools provided for the education of emotionally disturbed children who lived at the school, receiving instruction there. The Fitchburg case involved "formerly institutionalized but educable adults with histories of mental difficulties." These persons were to be trained in "living" skills - how to cook, take care of themselves, seek employment and the like. Both Harbor Schools and Fitchburg defined "educational" in broad terms. Certainly in the instant case the housing to be provided, the care to be offered, the training to be received, even though temporarily, the actual schooling (if the children to be helped cannot attend public schools), fit within the broad definition of "educational" set forth in the above cited cases.

The Court makes note of the decision in the case of Harbinger House, Inc. v. Garino et als., No. 78-6438, in which the Superior Court made a similar decision upon a set of facts almost identical to those in the present case. It was almost as though the complaint in the present case was taken verbatim from Harbinger. Likewise, there has been a recent case in the Land Court, Bateman v. Town of Acton, et al, being Miscellaneous Case No. 99815, in which a similar decision was reached. Both of these cases depend to a large extent on the rulings in the Fitchburg case.

The Court thus rules that the use proposed by Marathon is "educational" and not subject to restriction by a city or town zoning ordinance under the prohibition of G. L. c. 40A, Section 3. Of course, any buildings or structures may still be subject to reasonable regulations of an ancillary nature as set forth therein.

The second question raised is whether or not Marathon and Encounter are non-profit educational corporations. The Court answers this in the affirmative. In fact, the defendants agreed that this is so. Although incorporated in Rhode Island and Connecticut, respectively, they are registered to operate in Massachusetts as foreign corporations in accordance with Chapter 181. They will thus have the same powers as were granted under their Connecticut and Rhode Island charters and being non-profit corporations they will have to operate as such in Massachusetts and the Court so rules.

The findings and rulings of the Court as to the effect of the provision of G. L. c. 40A, Section 3 preclude any further discussion of the claims of the Town of Walpole that the use sought is covered by the Town Zoning By-Law Section 3-B-3(h) which provides for shelters and under which the plaintiffs originally applied for permits of use and occupancy.

Judgment accordingly.


[Note 1] Mass. Adv. Sh. (1980) 1465, 1470-71.