GELMONT ENTERPRISES, INC. and NORTH SUFFOLK MENTAL HEALTH ASSOCIATION, INC. vs. CITY OF CHELSEA.

Plaintiffs bring this action seeking 1) a determination that the North Suffolk Mental Health Association, Inc. is a non- profit educational corporation and that its use of the property on Washington Avenue, Chelsea is for educational purposes within the meaning of G. L. c. 40A, §3, and that it receive all permits, certificates, approvals, etc. which may be lawfully required in order for North Suffolk to use and occupy the property for its proposed purposes; and 2) a determination that North Suffolk's proposed use and occupancy of the property is exempt from the off-street parking requirements under Article 8 of the Chelsea Zoning Ordinance.

By way of answer Defendant denies that North Suffolk's proposed use is for educational purposes and further answers that this Court lacks jurisdiction over the subject matter of the complaint.

A trial was held on July 28, 1982. A stenographer was sworn to record and transcribe the testimony in the case. One witness testified and 16 exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal. A stipulation of facts was submitted to the Court and signed by the Attorneys for both parties.

Based on all the evidence the Court finds the facts to be as stipulated with minor corrections made therein by the Court:

1. Plaintiff North Suffolk Mental Health Association, Inc. (North Suffolk) is a non-profit corporation organized in 1959 pursuant to Chapter 180 of the General Laws for the purposes as stated in its Articles of Organization (Exhibit No. 1),

"To provide an association for voluntary action to work for the conservation and advancement of mental health in children of all ages, and their families, the prevention of mental maladjustments and disorders, restoration of mental health and rehabilitation of the mentally handicapped; and all matters incidental thereto. In the carrying out of said purposes this corporation shall work to develop programs for education and mental health; promote community clinics; establish local mental health branches; develop and broaden the training facilities for mental health personnel, assist in working for constantly improved treatment and prevention of mental disorders; to promote mental health, and, in this way, prevent the development of emotional disorders, to provide clinical services, mental health consultation and mental health education; and raise funds to carry out these purposes."

2. By letter dated January 31, 1966, the Internal Revenue Service, concluded that North Suffolk was exempt from Federal income tax as an organization described in section 50l (c) (3) of the Internal Revenue Code. (Exhibit No. 2).

3. Plaintiff Gelmont Enterprises, Inc. (Gelmont) is a corporation organized under Chapter 156B of the General Laws and is the owner of the property at 141-145 Washington Avenue, Chelsea, (property), which is situated in an "R3" (Residence) District under the Chelsea Zoning Ordinance. (Exhibit No. 3). Plaintiffs' continued use of the area as a mental health facility is not allowable as a matter of right under this R3 designation. Business uses are not allowed. The property consists of a three story service station garage, which is a non-conforming building and use under Article 6 of the Chelsea Zoning Ordinance.

4. On March 1, 1982, North Suffolk and Gelmont executed a purchase and sale agreement for the property. (Exhibit No. 4).

5. North Suffolk operates four similar community counseling centers in Suffolk County. The Chelsea Community Counseling Center (Center), which is one of the four similar centers of North Suffolk, is the center which intends to use and occupy the property in question. The Center is currently operating at another location in Chelsea and needs to move because of space limitations.

6. The Center has the equivalent of fifteen full time staff. Four are licensed psychologists who have Doctor of Education (Ed. D.) degrees. Nine are licensed social workers and some have Master of Education (M.Ed.) degrees. One is a psychiatric nurse. Two are psychiatrists, one of whom is part­time. Three are mental health paraprofessionals.

7. The main objective of the Center is to counsel people with problems hopefully helping these people to learn to overcome their difficulties. Approximately 30% of the persons using the Center are school age children. Many of these children are doing poorly in school due to psychological and learning disabilities. The Center, among other things, helps these children learn study skills. Parenting skills are taught to a weekly mothers' group and the personnel at a local day care center are taught how to manage children. Elderly individuals are taught to cope with loneliness. The Center, for local nursing homes, teaches staff members about the emotional issues affecting the elderly and also instructs community agencies about mental health issues and problems. The staff also gives lectures and workshops for interested groups within the community. The Center also has a day care program for educable adults with histories of mental difficulties, teaching this group vocational skills, domestic skills, social and interpersonal skills. The Center also trains psychology students. There are no inpatient facilities at the Center.

8. The Center is funded by Federal grants, State (Department of Mental Health) contracts, City (Chelsea Public School) contracts, and fees for services paid by the individuals utilizing the Center.

9. On September 10, 1981, the former attorney for plaintiff North Suffolk applied to the Inspector of Buildings of Defendant for a building permit for the property at 141-145 Washington Avenue, Chelsea to convert an existing masonry building presently used as a garage to a counseling center and administrative offices (Exhibit No. 5).

10. On November 13, 1981, the Building Inspector of Defendant in a letter to the former attorney for plaintiff North Suffolk denied the application for a building permit (Exhibit No. 6). In the Letter the Building Inspector of Defendant said that the proposed use was a non-conforming use and thus a Special Permit would have to be granted by the Zoning Board of Appeals of Defendant for the proposed use. In addition, the Building Inspector of Defendant stated that pursuant to Article 8.2 of the Chelsea Zoning Ordinance under Business Uses, 26 off­street parking spaces were required and thus a variance would have to be granted by the Zoning Board of Appeals of Defendant as the proposal in the building permit application was for 9 parking spaces.

11. On November 16, 1981, the former attorney for plaintiff North Suffolk appealed the Building Inspector's denial to the Zoning' Board of Appeals of Defendant and requested a special permit for the proposed use and a variance from the off­street parking requirements (Exhibit No. 7).

12. The Zoning Board of Appeals of Defendant properly advertised the notice of public hearing (Exhibit No. 8) and held a public hearing on December 3, 1981 (Exhibit No. 9).

13. On December 21, 1981, upon information from the Chairman of the Zoning Board of Appeals of Defendant that the Board was not going to approve the request for a special permit and a variance, plaintiff North Suffolk requested permission of the Zoning Board of Appeals to withdraw its petition for a special permit and a variance without prejudice (Exhibit No. 10).

14. On December 24, 1981, the Zoning Board of Appeals approved plaintiff North Suffolk's request to withdraw its petition for a special permit and a variance without prejudice (Exhibit No. 11).

15. The Center proposes to use and occupy 8000 square feet of floor space in the building at the property at 141-145 Washington Avenue, Chelsea, consisting of three floors. Four parking spaces will be available on the first floor of the building. The dimensions of the floor in the building do not allow for any additional parking spaces in the building. Five parking spaces will be available on the remainder of the property not occupied by the building.

16. Under Article 8.2 and 4.1.2(5) of the Chelsea Zoning Ordinance, the Center would be required to provide 13 off-street parking spaces if it were considered a "charitable institution". Under Article 8.2 and 4.1.3 of the Chelsea Zoning Ordinance, the Center would be required to provide 26 off-street parking spaces if it were considered a "retail business or personal service and office establishment" as claimed by the Building Inspector of Defendant.

I. Jurisdiction of the Land Court

A. Does the Land Court have jurisdiction under G. L. c. 185, §1 (j 1/2) and c. 240, §14A to hear this matter?

Plaintiffs have brought this complaint under G. L. c. 240, §14A and Chapter 185, §1 (j 1/2) for a determination of whether Plaintiffs' proposed use of the land as a mental health facility is exempt from the provisions of the Chelsea Zoning Ordinance which would prohibit Plaintiffs' proposed use of land.

Chapter 240, §14A provides in part:

"the owner of a freehold estate in possession of land may bring a petition in the Land Court against a city...wherein such land is situated...as to the validity of a municipal ordinance....which purports to restrict or limit the present or future use...of land...or 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" (emphasis added).

The jurisdictional counter part of this provision is Chapter 185, §1 (j 1/2) which confers jurisdiction on this Court over:

"Petitions under section 14A of Chapter 240 to determine the validity and extent of municipal zoning ordinances, by-laws and regulations." [Note 1] (Emphasis added)

Defendant alleges that the Court lacks jurisdiction to hear this case. Although the Defendant has made no specific allegations as to why the Court lacks jurisdiction it is presumedly because of either the language of c. 240, §14A or the recent cases of Neuhaus v. Building Inspector of Marlborough, Mass. App. Ct. (1981), [Note 2] and McDonald's Corporation v. Town of Seekonk, Mass. App. Ct. (1981). [Note 3] The Court will examine each of these theories.

a. General Laws, Chapter 240, §14A

Chapter 240, §14A is written in the alternative. A landowner may bring a petition in the Land Court for a determination of the validity of a municipal ordinance or for a determination of the extent to which a municipal ordinance affects a proposed use. Plaintiffs are not seeking a determination as to the validity of the Chelsea Zoning Ordinance which will effectively prohibit their use of it as a mental health facility. Rather, they are seeking a determination from this Court as to whether their proposed use is exempt from the Chelsea Zoning Ordinance because it is for educational purposes pursuant to General Laws, Chapter 40A, section 3. In other words, they are seeking a determination as to whether the zoning ordinance, valid on its face, was improperly applied to the proposed use. This goes to the alternative provision of the statute which deals with the extent to which a municipal ordinance affects a proposed use and the Court has jurisdiction to determine this.

B. Do the cases of Neuhaus and McDonald's affect the jurisdiction of the Land Court in this matter?

Neuhaus v. Building Inspector of Marlborough, supra was an action brought in the nature of mandamus presumedly under G. L. c. 231A, in which Plaintiff sought to compel the Building Inspector to revoke a building permit, before appealing to the Zoning Board of Appeals. The Court ruled that G. L. c. 40A, passed as St. 1975, c. 808, meant exactly what was said in section 7 thereof, "No action ...shall be maintained in any court...except in accordance with the provisions of this section, section eight and section seventeen. Section 8 provides for an appeal to the Board of Appeals and section 17 provides for an appeal from the Board of Appeals to a court. The Court, in footnote five, leaves to another day the question of whether the statutory provisions...must be followed in a case in which a contention is raised that a zoning ordinance or by-law, or some amendment thereof, is invalid. See G. L. c. 185, §1 (j 1/2)."

The Neuhaus theory, that one had to exhaust its administrative remedies before bringing an action in the Superior Court, was reinforced by the case of McDonald's Corporation v. Town of Seekonk, supra. This case involved an action in the Superior Courtunder c. 231A for a building permit which had been denied by the Building Inspector because the Planning Board rejected a parking proposal. The Court ruled that the Superior Court lacked jurisdiction over the matter without it first being heard by the Board of Appeals.

Thus, Neuhaus and McDonald's have affectively limited the Court's jurisdiction under G. L. c. 231A when a petitioner has not first exhausted his administrative remedies. The Court rules, however, that these cases do not impose the same limits on actions broughtunder G. L. c. 185, §1 (j 1/2).

In footnote 5 in Neuhaus the Court expressly stated that the Court leaves questions about whether this process must be followed in cases involving the validity of the ordinance under c. 240, §14A and c. 185, §1 (j 1/2). As this case is brought under c. 185, §1 (j 1/2) and unlike Neuhaus and McDonald's does not involve a proceeding in the nature of mandamus, this Court has jurisdiction to hear the matter. In other words, the Plaintiffs are not asking the Court to compel the Building Inspector to issue a building permit under c. 231. They are asking whether, under c. 240, §14A and c. 185, §1 (j 1/2) they are exempt under c. 40A, §3 from the Chelsea Zoning Ordinance and this the Court has jurisdiction to decide.

II. Does Plaintiff's proposed use of the premises come under c. 40A §3 exempting it from the Chelsea Zoning Ordinance?

G. L. c. 40A, §3 provides in 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, provided, however, that such land or structures may be subject to reasonable regulations concerning...open space, parking and building requirements."

There is no question that North Suffolk is a non-profit corporation, (See paragraph 1 herein). The question to be decided herein is whether plaintiff North Suffolk is an educational corporation and whether its proposed use is for educational purposes.

The definition of "education" is well settled in Massachusetts. It is 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 facilities..." Harbor Schools Inc. v. Board of Appeals of Haverhill, 5 Mass. App. Ct. 600 , 605 (1977), citing Mount Hermon Boys' School v. Gill, 145 Mass. 139 (1887). Thus, the term education is broad and comprehensive and has been so applied.

In the case of Fitchburg Housing Authority v. Board of Zoning Appeals of Fitchburg, Mass. (1980) [Note 4] the Supreme Judicial Court found that the proposed facility would be operated to work with chronically disturbed individuals who had been institutionalized and that the Center would teach them living skills as well as social and interpersonal skills.

The Court found that the proposed use was educational stating that:

"The fact that the residents will be adults does not deprive the use of its educational character. (Citations omitted) Nor is it controlling that the nature of what is taught is not within traditional areas of academic instruction or that the instructors will not be certified by the Commonwealth ... For the prospective residents of the proposed facility to learn or relearn such [daily living] 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. Fitchburg, supra at 1469, 1471.

Like Fitchburg, plaintiff North Suffolk actively helps its patients cope with the everyday problems of living. Part of North Suffolk's curricular involves teaching basic living skills to educable adults with mental difficulties like those in Fitchburg. The other concerns of the Center are varied but no less "educational". (See paragraph 7 herein). The Center does much work counselling parents, children, the elderly, and others, who are having problems psychologically coping with their lives. Teaching people with psychological difficulties to cope with everyday problems is as much an "educational purpose" as teaching mentally deficient people to cope with everyday problems. The outcome is the same, learning to function within society. Thus, the Court finds and rules that the plaintiff North Suffolk is a non-profit educational corporation and that its proposed use is for an educational purpose. It thus comes within the c. 40A §3 exemption.

III. Are off-street parking regulations of the Chelsea Zoning Ordinance applicable to the proposed use of the property for educational purposes?

Defendant claims that under Article 8.2 and 4.1.3 of the Chelsea Zoning Ordinance the Center would have to provide 26 off-street parking spaces as it is a business use. The Center claims that it is a charitable institution and thus, under Article 8.2 and 4.1.2(5) of the Chelsea Zoning Ordinance they are only required to provide 13 off-street parking spaces. The parties hereto have stipulated and agreed that the 26 and 13 off-street parking spaces respectively are necessary under the Chelsea Zoning Ordinance. The Court has no evidence before it to the contrary and must perforce accept this determination. The Court has found and ruled above that the Center's proposed use is educational under G. L. c. 40A, §3 and not business. Since the parties have stipulated that plaintiff North Suffolk Mental Health Association is a non-profit corporation under the provisions of G. L. c. 180 it qualifies as a charitable institution under the Chelsea Zoning Ordinance. Thus, as it is a nonprofit educational use the most parking which could be imposed under the Chelsea Zoning Ordinance is thirteen spaces.

G. L. c. 40A, §3 states in part, "such land or structure [educational] may be subject to reasonable regulations concerning ...parking..."

The Court has heard testimony about the planned building renovations from Michael Interbartolo, a registered architect who has redesigned the building on the proposed site to meet the Center's needs. The Court has also reviewed the architect's plans. Besides offering an important community service, the Center will also be an attractive asset to the community.

The building located at 141 - 145 Washington Avenue, is a rundown, three story brick Gulf Service Station. Presently, the top two floors are deserted with the ground floor being used as a gas station and automotive repair shop. The use of the premises as a service station is a non-conforming use. The land adjacent to the building is used for storage of vehicles before, during and after repairs. The area surrounding the service station is an R-3 zone which allows 1 through 6 family dwellings as well as apartment houses. An interior ground floor elevator was used to lift automobiles up to the second and third floors of the building which is being redesigned to be a passenger elevator for the staff and people utilizing the Center. Mr. Interbartolo testified that the cost of using this elevator to park cars on the second and third floors of the building would be prohibitive as significant structural changes would have to be made and the Center needs the space. He further testified that the maximum amount of parking spaces the site will accomodate is 9, including 4 interior spaces. Thus the Court must decide whether 13 off-street spaces is a reasonable regulation under c. 40A, §3.

What constitutes a "reasonable" regulation is not set out in the statute. In the case of Sisters of the Holy Cross of Massachusetts v. Brookline, 347 Mass. 486 (1964) dimensional requirements of a zoning by-law that affected the use of the land for educational purposes were invalid where these requirements, if imposed, would virtually nullify the use exception. See Radcliffe College v. Cambridge, 350 Mass. 613 (1966); The Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19 , (1979). Section 8.2 of the Chelsea Zoning Ordinance is not invalid per se. However, in the instant case a literal application of this article would amount to a prohibition of the use as the Center cannot accomodate more than 9 parking spaces. The Court believes that in view of the area involved and the proposed new use of the premises such a restriction on parking is unreasonable. Thus, the Court rules that Article 8.2 and 4.1.2 (5) as applied to the Center's proposed use is an unreasonable parking regulation under c. 40A, §3 and that 9 off-street parking spaces on the property is an adequate number under the circumstances.

Judgment Accordingly.