TRUSTEES OF TUFTS COLLEGE vs. CITY OF MEDFORD and CITY OF SOMERVILLE.

On September 18, 1989, the Trustees of Tufts College ("Tufts" or "Plaintiff") filed this action, pursuant to G.L. c. 240, §14A, seeking a declaration that certain provisions of the City of Medford Zoning Ordinance ("Medford Ordinance" or "Ordinance") (Exhibit No. 24), specifically those purporting to require "special permit-site plan review" for many of Tufts' proposed development projects, and those requiring Tufts, in certain instances, to comply with parking, loading space and dimensional requirements, violate Tufts' rights as a nonprofit educational corporation under G.L. c. 40A, §3 (at times, the pertinent language of this section is referred to herein as "the Dover Amendment"). As filed, the action sets forth eleven counts for relief. Counts I, III, VI and IX are asserted against the City of Medford ("Medford"), Counts II, dimensional requirements are not apt thereto nor reasonable in relation thereto.

Counts V, VIII, X and XI

By Count V, Tufts alleges that certain provisions of the Medford Ordinance violate its right under the Dover Amendment to construct, at a future date, an addition to its Wessell Library ("Wessell Library Addition"), which building lies partly in Medford's "Apartment 2" zone. Specifically, Tufts contends that its rights have been violated, insofar as, a.) no special permit or site plan review may be required for an educational library use; b.) the use of the proposed addition will not generate the need for additional off-street parking or loading spaces, and it is unreasonable to require the same; and c.) other dimensional requirements applicable to the proposed addition are not apt thereto nor reasonable in relation thereto.

Count VIII sets forth Tufts' allegation that the Medford Ordinance violates its right under the Dover Amendment to provide parking facilities for all of the parking vehicles reasonably required for, and in relation to, its educational functions and activities. Count X sets forth Tufts' allegation that the Ordinance violates its right under the Dover Amendment to, at a future date, remodel the interior of its Bromfield Pearson Building and Count XI sets forth allegations that the Ordinance violates its rights under the Dover Amendment to, in the future, construct, expand, relocate and further develop other and additional buildings and facilities for its educational purposes. Specifically, Tufts asserts that such provisions prohibit, limit or require special permit or site plan approval for such uses, and that such provisions purport to impose requirements concerning the bulk and height of structures, yard sizes, lot areas, setbacks, open space, parking and building coverage, all of which are inapt and unreasonable in relation to Tufts' educational uses, structures and facilities, or in relation to the situation, conditions and development of the Campus.

On November 15, 1989, the Court allowed Somerville's Motion for a Separate Trial. Thereafter, on December 1, 1989, Medford brought a Motion to Dismiss Counts I and III of the Complaint, with an accompanying memorandum of law.

The matter proceeded to trial on December 4, 5, and 6 of 1989 and continued to January 16 and 18 of 1990, at which times the Court appointed a stenographer to record and transcribe the testimony. At the close of the Plaintiff's evidence on December 6, 1989, Medford renewed its Motion to Dismiss Counts I and III of the Complaint and also brought a Motion for a Directed Finding as to the remaining Counts. On December 20, 1989, Tufts filed its respective oppositions to both Motions. Medford's memorandum in support of its Motion for a Directed Finding was filed on December 21, 1989 and thereafter, on January 9, 1990, this Motion was denied. Seven (7) witnesses testified, fifty-five (55) exhibits were admitted into evidence and two (2) chalks were presented to assist the Court. All of these exhibits and chalks are incorporated herein for purposes of any appeal. The Court viewed the Tufts Campus on March 14, 1990, all counsel then being present.

On all of the evidence before the Court, I find the following facts to be most pertinent hereto:

1. Tufts University is a nonprofit educational corporation, with a total student population of approximately 7,000. As shown on a map entitled, "Tufts University, Medford and Somerville Campus, Building Use and Green Space" ("Building Use Map") (Exhibit No. 1), Tufts' main campus spans across certain portions of Medford and Somerville. Most, if not all, of the land neighboring the Campus is moderately to heavily developed, with very little external area remaining available for future expansion.

2. In accordance with its needs and desires as an educational institution, Tufts has present and future plans to construct new buildings, and to make additions to certain existing buildings, located throughout its Campus.

The science and Technology Center

3. As shown on the southeasterly side of the Building Use Map, Tufts presently proposes to establish a Science and Technology Center in an existing vacant building owned by it, located at 4 Colby Street. This site lies on that portion of the Campus located in Medford's "Industrial" zoning district, in which district, school, college and university uses, not conducted as gainful businesses, are prohibited. (See Ordinance, Section 5.3 (10)).

4. As described in a booklet entitled, "The Science and Technology Center" (Exhibit No. l4), Tufts intends to use the Center for "teaching and research labs, classrooms, faculty offices, and specialized uses". The Center is not proposed to support new academic programs for additional students.

5. The slte proposed for the Science and Technology Center consists of approximately 86,785 square feet of land, with the building presently situated on such property having a total floor area of about 89,000 square feet. In addition, the site offers approximately seventy-two (72) parking spaces and two (2) loading docks. Tufts proposes to make no changes in the external dimensions or configurations of the existing structure situated on the site.

6. In April of 1988, Tufts obtained a Traffic and Parking Impact Study (Exhibit No. 46) relative to the 4 Colby Street project. On or about September 28, 1988, Tufts applied for a building permit to renovate the property (See Exhibit No. 20). The Medford Building Commissioner ("Building Commissioner") issued the permit on October 26, 1988 (See Exhibit No. 21) and, shortly thereafter, Tufts commenced work on the premises.

7. By letter dated December 9, 1988 (Exhibit No. 22), the Building Commissioner informed Tufts that he had found the 4 Colby Street project to be subject to site plan review under Chapter 29, Section 16A of the Medford Ordinance, and that, accordingly, all work being performed thereupon, with the exception of interior demolition work, must cease forthwith until site plan review is performed and approved (See Exhibit No. 22). Thereafter, on December 13, 1988, the Medford Building Dpartment issued Tufts a building permit, limited in scope to interior demolition work, consistent with the Cease and Desist Order (See Exhibit No. 23).

8. Sections 16A.1, 16A.2 and 16A.3 of the Medford Ordinance provide in relevant part as follows:

16A Site Plan Review

16A.1 Purpose

The purpose of this section is to provide a comprehensive review procedure for construction projects which will have significant impacts on the City, herein defined, to ensure compliance with the goals and objectives of the City, and the provisions of the Zoning Ordinance, to minimize adverse impacts of such development, and to promote development which is harmonious with surrounding areas; in particular to assure proper drainage, safe access, adequate parking and loading spaces, public convenience and safety and adequate consideration of abutting land owners.

16A.2 Definitions

[This section applies to the following projects:]

. . . non-residential projects which involve new construction of 10,000 square feet or more of floor area, or the addition of 10,000 square feet or more of gross floor area;

. . . projects which involve a change in principal use of an existing building containing 10,000 square feet or more of floor area . . .

16A.3 Requirements

. . . MAJOR PROJECTS WHICH REQUIRE A SPECIAL PERMIT FROM THE BOARD OF APPEALS, THE CITY COUNCIL . . . In the case of a major project which requires a special permit from the Board of Appeals or City Council, as identified in Section 5.2. Table of Use Regulations, the Community Development Board shall perform a Site Plan Review and submit its recommendations to the City Council or Board of Appeals within forty-five (45) days of the date of filing with the Community Development Board . . .

. . . MAJOR PROJECTS NOT REQUIRING A SPECIAL PERMIT - In the case of major projects not requiring a special permit under Section 5.2, a special permit shall nevertheless be required from the Community Development Board (emphasis supplied) . . .

16A.4 Procedures

. . . The application for Site Plan Review shall be accompanied by written statements, site plans, maps, showing scale and north point, and supporting documentation . . .

9. As set forth in Section 16A.4 of the Ordinance, the Site Plan must include, among other things, the total land area of the site and its boundaries; the present and proposed use of the land and existing buildings, if any; the locations and use of structures within 100 feet of the property line; the locations, elevations and dimensions of existing and proposed buildings or other structures, showing setbacks from property lines; location and dimensions of easements; wetlands, ponds and surface water bodies; proposed surfacing; parking and loading areas; driveways and access to the site, and evidence of the ability of the site to handle emergency vehicles; facilities for vehicular and pedestrian circulation; locations of existing and proposed on-site public utilities and facilities (i.e., water, sewerage and drainage) ; and landscaping and screening.

The Written Statement must include such information as a description of the proposed uses to be located on the site; the total land area of the site and the floor area and ground coverage of each proposed building and structure; a general summary of existing and proposed easements; the method for handling solid waste disposal; estimates and calculations regarding the demand for water, sewage flow requirements and drainage facilities requirements; the applicant's evaluation of the availability of off-site public facilities; a description of problems of drainage or topography; measures taken to preserve and protect natural resources and the estimated peak hour traffic volumes generated by the proposed use.

10. By letter dated December 21, 1988, Tufts informed the Building Commissioner of its objections to the imposition of site plan review on the 4 Colby Street project (See Exhibit No. 29). Thereafter, however, in early 1989, Tufts filed an application for site plan review with the Medford Community Development Board ("Development Board") (See Exhibit No. 43).

11. The Development Board viewed the 4 Colby Street property on January 3, 1989. Thereafter, on January 10, 1989, the Development Board held a public hearing on Tufts' application for site plan review (See Exhibit No. 25).

12. On January 17, 1989, the Development Board voted to approve Tufts' site plan for the Science and Technology Center, imposing the following conditions on the issuance of an occupancy permit:

1) That a neighborhood traffic study be conducted for the purposes of assessing vehicular and pedestrian traffic volumes and flows in the adjoining area and developing an improvement plan. The Office of Community Development will advise on the Scope of Services and study area. The final plan will be reviewed by the Office of Community Development and approved by the Traffic Commission;

2) Due to pedestrian traffic from the main campus to the project site having to cross the Boston Avenue/College Avenue intersection . . . and in the interest of the safety of the students, short term intersection improvements as proposed by Storch Engineers will be implemented prior to the occupancy of the building;

3) Due to the projected volume of traffic using Colby Street, the length of Colby Street be reconstructed; and

4) That wooden fencing be installed on the northern side of Harvard Terrace with openings as exist to maintain access to residential properties. The fencing material shall be approved by the Director of the Office of Community Development.

13. By letter dated January 25, 1989 (Exhibit No. 26), the Building Commissioner informed Tufts that the Cease and Desist Order was revoked and that work at 4 Colby Street could be resumed in accordance with the building permit previously issued on October 26, 1988.

14. On February 1, 1989, Tufts informed the Director of the Office of Community Development that it opposed the conditions of site plan approval imposed upon the 4 Colby Street project (See Exhibit No. 7). As of the date of this litigation, Tufts has neither complied with these conditions nor sought an occupancy permit for the 4 Colby Street property.

The Olin center for Language and Culture Studies

15. As shown on the Building Use Map, Tufts presently proposes to construct a new buiding, intended for use as a language and culture studies center, on the westerly side of Packard Avenue ("Olin Center"). This site is located on that portion of the Campus lying in Medford's "Apartment-2 Residential" zoning district, in which district school, college and university uses, not conducted as gainful businesses, are allowed as of right. (See Ordinance, Section 5.3 (10)).

16. As described in a study entitled, "Olin Center for Language and Culture studies" ("Olin Center") (Exhibit No. 17), this proposed facility will consist of three stories, containing approximately 35,000 square feet of floor space (See Exhibit No. 30). Its intended purpose is to provide classroom and office space for Tufts students and faculty engaged in the study and teaching of languages and cultures. Tufts does not anticipate any need for additional parking spaces, nor any loading docks, in conjunction with the Olin center.

17. On March 10, 1989, Tufts applied for a building permit for the construction of the Olin Center (See Exhibit No. 31). This permit request was denied by the Building Commissioner on May 12, 1989, for the following reasons:

[Tufts]proposes to construct a three story classroom and office building in an Apt-2 District with insufficient:

Minimum distance between structures - Section 6.24a

Off-street parking - Section 10.21

Off-street loading requirements - Section 10.41

Also requires site plan review - Section 16A . . .

18. Despite the fact that Tufts' owns all of the structures which will abut the proposed Olin Center, the center, according to Medford, must comply with Sections 6.3 (5) (c) and 6.24 (a) of the Ordinance. Section 6.3 (5) (c) requires the Center to have a minimum distance from its lot lne of its height plus its length, divided by six (H + L/6). Despite the absence of a lot line between the center and any abutting structures, Section 6.24 (a) requires the distance between such buildings to be as follows:

In any District, the minimum distance between any point of any structures on the same lot shall be as follows:

(a) Principal structures shall not be less than the same distance from one another as if they were on separate lots.

19. In accordance with Sections 10.21 and 5.3 (10) of the Ordinance, the Olin center must have one parking space for every 750 square feet of gross floor area. The parking spaces must be provided on the same lot or within 200 feet of the lot. (See Ordinance, Sections 10.23 and 10.24).

20. Pursuant to Section 5.3 (10) of the Ordinance, the Olin Center must have one loading space for every 50,000 square feet of gross floor area.

21. On or about September 21, 1989, Tufts appealed the decision of the Building Commissioner by filing an application for a finding, an application for a special permit, and site plan review in connection therewith, as well as an application for variances (See Exhibit No. 33).

22. By memorandum to the Medford Zoning Board of Appeals ("ZBA") dated October 4, 1989 (Exhibit No. 34), the Development Board issued its statement of findings. Specifically, the Development Board found that approval of Tufts' application for site plan review should be made contingent on its resolution of fire safety and access concerns, as well as questions regarding water connection.

23. On October 31, 1989, the ZBA held a public hearing on Tufts' application for variances from Sections 6.24 (a), 10.21 and 10.41 of the Ordinance (See Exhibit No. 35). This meeting was adjourned until November 8, 1989, with the ZBA leaving open the issues of fire vehicle access and sewer connection, until such time as Tufts secured evidence that these issues had been reviewed by pertinent authorities.

24. On November 8, 1989, the ZBA reconvened and voted unanimously to grant Tufts' requested variances. This grant, however, was subject to conditions, some of which are set forth in the aforesaid letters (See Exhibits No. 12, 36 and 37) and certain others of which pertain to Campus parking and shuttle bus issues (See Exhibit No. 13).

25. As evidenced by a letter dated September 20, 1989 (Exhibit No. 42), Tufts challenges Medford's requirement of site plan review for the Olin Center project, as well as the conditions (i.e., parking conditions) imposed thereupon in conjunction with the ZBA's grant of variances.

The Boston Avenue Garage

26. Tufts proposes to construct a multi-level parking garage ("Boston Avenue Garage") on the southern side of Boston Avenue, at the site of its existing Sweet Hall building. Insofar as this property is located in Medford's "Apartment-2 Residential" zone, it is subject to the same minimum distance between structures requirement as the Olin Center. As reflected by a model marked as Exhibit No. 39 at trial, the proposed Boston Avenue Garage will consist of five stories, with six levels of parking spaces sufficient to accommodate an excess of 500 automobiles.

27. On March 10, 1989, Tufts applied for a building permit to construct the proposed Boston Avenue Garage (See Exhibit No. 40). Thereafter, on March 12, 1989, the Building Commissioner denied the permit due to violations in front yard setback requirements, as provided in Section 6.3 (5) (c) of the Medford Ordinance, [Note 1] and the aforementioned minimum distance between structures requirement of Section 6.24 (a). The Building Commissioner also noted that the project was subject to site plan review under Section 16A (See Exhibit No. 41).

The Wessell Library Addition

28. At some future date, Tufts proposes to expand its Wessell Library, said addition to measure appoximately 96,000 square feet in size ("Wessell Library Addition") (See Exhibit No. 53). The Addition is intended to provide more adequate space in which to house the Library's existing volumes and to provide extra study areas for students. Tufts has not yet applied for a building permit for this proposed expansion.

29. Like the proposed Olin Center and Boston Avenue Garage, the Library is located in Medford's "Apartment-2 Residential" zone. Accordingly, it too is subject to the minimum distance between structures requirement of Sections 6.3 and 6.24 (a) of the Ordinance. Further, even though Tufts does not anticipate the need for any additional Campus parking in conjunction with the Library Addition, Sections 5.3, 10.23 and 10.24 of the Ordinance require Tufts to provide one parking space for every 750 feet of new construction, which spaces are required, under the Ordinance, to be situated on the same lot as the Library, or within 200 feet thereof. Additionally, Sections 5.3 and 10.41 of the Ordinance require that the Library, as proposed, include two loading spaces, in addition to the two spaces presently existing. Finally, the proposed Library expansion will require "special permit-site plan review" under Section 16A of the Ordinance.

Cousens Gymnasium/Hamilton Pool Expansion

30. Although no building permit has yet been applied for, Tufts has future plans to expand its Cousens Gymnasium and Hamilton Pool ("Cousens Gymnasium Addition") (See Exhibit No. 52), which facilities are located in Medford's "General Residence" zoning district. Pursuant to Section 5.3 (10) of the Ordinance, school, college and university uses, not conducted as gainful businesses, are allowed as of right in this zone. The proposed expansion is, however, subject to certain provisions governing height and front and rear yard setbacks, which provisions clash with Tufts' proposed design plans. [Note 2] In addition, this facility must comply with applicable parking space regulations under Sections 5.3, 10.23 and 10.24 of the Ordinance, as set forth above, as well as the provisions thereof relative to "special permit-site plan review".

Miscellaneous Future construction and Expansion

31. Tufts also contemplates the future remodeling of the interior of the existing Bromfield-Pearson Building, as well the construction, expansion and relocation of existing and/or additional buildings and parking facilities on the Campus.

The primary issue before the Court is whether the aforementioned provisions of the Medford Zoning Ordinance constitute the reasonable and permissible bulk, height, dimensional and parking regulations contemplated by the so-called Dover Amendment, or whether such provisions rise to the level of impermissible regulations applied to a nonprofit educational corporation.

The pertinent language of G.L. c. 40A, §3 ("the Dover Amendment"), reads as follows:

No zoning ordinance . . . 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 . . .

Generally speaking, this portion of the statute permits formerly exempt land or structures devoted to educational purposes to be subjected to reasonable municipal zoning dimensional requirements, but not use requirements. County Commissioners of Bristol v. Conservation Commission of Dartmouth, 380 Mass. 706 , 713 (1980). This use exemption may not be nullified by a municipality acting under the guise of regulating bulk, height and dimensional requirements. The Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19 , 31 (1979) citing Sisters of the Holy Cross v. Town of Brookline, 347 Mass. 486 , 494 (1964). Accordingly, as applied to the instant matter, the Amendment permits the City of Medford, through its Zoning Ordinance, to regulate, through reasonable regulations, the bulk and height of buildings and structures on the Tufts Campus, to impose dimensional and parking requirements, and to vest in the Building Commissioner the authority to deny Tufts a building and/or occupancy permit for any building or structure which runs afoul of such reasonable regulations.

In order to qualify as a nonprofit educational corporation under the Dover Amendment, "education" need not be the dominant purpose or primary activity of the corporation. Gardner-Athol Area Mental Health Association v. Zoning Board of Appeals of Gardner, 401 Mass. 12 , 15 (1987). The proper test in deciding whether the nonprofit corporation is an educational one is whether its articles of organization permit it to engage in educational activities and whether its activities are primarily in the field of education. Id. at 15-16. The term "education" is broad and comprehensive. Commissioner of Code of Inspection of Worcester v. Worcester Dynamy, Inc., 11 Mass. App. Ct. 97 , 99 (1980); Fitchburg Housing Authority v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869 , 874 (1980); Whitinsville Retirement Society, Inc. v. Town of Northbridge, 394 Mass. 757 , 759-780 (1985) citing Mount Hermon Boys' School v. Inhabitants of Gill, 145 Mass. 139 , 146 (1887). It has been defined as "the process of developing and training the powers and capabilities of human beings" and the process of preparing and fitting persons "for any calling or business, or for activity and usefulness in life". Mount Hermon at 146; Worcester Dynamy at 99; Fitchburg Housing Authority at 874. See also Harbor Schools, Inc. v. Board of Appeals of Haverhill, 5 Mass. App. Ct. 600 , 605 (1977). Education may be particularly directed to the mental, moral or physical powers, but in its broadest and best sense, it relates to them all. The Bible Speaks at 30 citing Harbor Schools at 605 and Mount Hermon at 146. Measuring the uses contemplate and/or proposed by Tufts against this expansive definition of "education", I find that such uses are clearly educational in nature.

A. Site Plan Review Requirement

Tufts challenges Medford's imposition of a form of "special permit-site plan review" on its proposed construction of the Science and Technology Center, Olin center, Boston Avenue Garage, Wessell Library Addition and Cousens Gymnasium Addition.

Alttough the Science and Technology Center is an educational use which appears to be prohibited in Medford's "Industrial" zoning district, Medford apparently recognizes the statutory exemption for educational uses and seeks to regulate the Center's construction by making it subject to the aforesaid "special permit-site plan review" process. As provided in the Ordinance, this required site plan must also be accompanied by a written statement describing the impacts of the proposed project (See Finding No. 10). In this instance, I find that such site plan review must be limited to the specific items of regulation noted in the Dover Amendment.

The site plan and written statement requirements appear to be similar to those at issue in The Bible Speaks, supra. There, the Appeals Court reasoned as follows:

The requirement of a site plan and the type of development prospectus required by the informational statement would be perfectly appropriate for consideration of proposed subdivisions under the Subdivision Control Law . . . or for the evaluation of cluster and planned unit developments under the zoning law . . . But there is nothing in the language of G.L. c. 40A, §3, which contemplates the requirement of site plans and informational statements as monitoring devices for educational uses . . . Id. at 32.

Applying this reasoning hereto, I find it obvious that the educational uses proposed by Tufts in connection with the Science and Technology Center, Olin Center, Boston Avenue Garage, Wessell Library Addition and Cousens Gymnasium Addition do not constitute subdivisions, cluster developments or planned unit developments. Moreover, it is a well-settled law of this Commonwealth that uses allowed as of right in a zoning district may not be made the subject of a special permit, inasmuch as the concepts of uses as of right and uses dependent on discretion are mutually exclusive. Prudential Insurance Co. of America v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 281 (1986) citing SCIT, Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 , 110 (1984). It is clear that G.L. c. 40A, §3 was not intended to enable cities or towns to impose special permit requirements of any kind on legitimate educational uses which have been authorized to exist as of right in any zone. Worcester Dynamy at 100 citing The Bible Speaks at 33. I thus find that the "special permit-site plan review" process of Section 16A of the Medford Ordinance vests undue discretion in the Medford Community Development Board with respect to Tufts' right, as a nonprofit educational corporation within the meaning of G.L. c. 40A, §3, to carry out its plans for reasonable growth and expansion of its facilities dedicated to educational purposes. Clearly, by allowing the members of the Development Board to exercise their subjective preferences and opinions as to which educational uses they will permit in the community, Medford digresses dramatically from the aforesaid statutory parameters. Accordingly, I rule that that portion of the Ordinance which requires site plan review/special permit-site plan review, accompanied by a written statement, is an unreasonable intrusion on the educational pursuits of Tufts and therefore exceeds the scope of "reasonable regulations" which an ordinance may lawfully impose, specifically, those concerning "bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements". In so ruling, I also find that those conditions which the Development Board attached to its grant of site plan approval for the Science and Technology Center (i.e., that Tufts submit traffic studies, make short term intersection improvements, reconstruct roads and install fencing) also exceed the Board's authority under "reasonable regulations".

B. Minimum Distance Between Structures Requirement

With respect to its proposed Olin Center, Boston Avenue Garage and Wessell Library Addition, Tufts challenges that portion of the Medford Ordinance which requires a certain "minimum distance between structures" (See Ordinance, Section 6.24 (a)).

The Dover Amendment specifically permits cities or towns to impose reasonable bulk, height, dimensional and parking regulations on educational uses. Such regulations, may not, however, impede the reasonable use of the institution's land for educational purposes. Radcliffe College v. City of Cambridge, 350 Mass. 613 , 618 (1966). Sections 6.3 (5) (c) and 6.24 (a) of the Ordinance require the Olin Center, Boston Avenue Garage and Wessell Library Addition to have a minimum distance from their lot line of their height plus their length, divided by six (H + L/6). Although the ends which Medford seeks to achieve by this dimensional regulation, specifically the protection of the public safety, is a reasonable exercise of its police power, See Everpure Ice Manufacturing Co., Inc. v. Board of Appeals of Lawrence, 324 Mass. 433 , 438-439 (1949), I decline to find that this regulation serves its intended public purpose as applied to Tufts under the instant circumstances. In adopting this dimensional regulation, and in applying it to the Olin Center, Boston Avenue Garage and Wessell Library Addition, Medford overlooks the fact that, insofar as Tufts is the owner of all of the land immediately surrounding the sites proposed for these building/facilities, there are no "lot lines" from which to measure this minimum required distance between structures. For the same reasons, I find equally unreasonable that related portion of the Ordinance which requires the distance between such structures to be no less than the same distance from one another as if they were on separate lots. Requiring Tufts to set down imaginary lot lines, which may or may not satisfy the then incumbent permitting and enforcement officials, is both impractical and imprecise, offering Tufts little guidance as to what it must do to achieve compliance with this regulation. Accordingly, I find that in imposing such a requirement upon Tufts, Medford effectively impedes Tufts' entitlement to make reasonable use of its limited land area for educational purposes and hence contravenes G.L. c. 40A, §3. In so finding, however, I do not foreclose the possibility that Medford may draft an alternative dimensional regulation, written so as to achieve the specific end of promoting public safety, without unreasonably interfering with Tufts' use of its land for education (i.e., a regulation which would be reasonably applicable to the land, buildings and facilities of Tufts, and to the educational activities conducted therein, as determined on a campus-wide basis and, preferably, disregarding municipal boundaries).

C. Parking Space Requirement

As to its proposed construction of the Olin Center and the Wessell Library Addition, Tufts also contests Sections 5.3 (10) and 10.21, 10.23 and 10.24 of the Ordinance, which require the Center and Library Addition to have one parking space for every 750 square feet of gross floor area, said spaces being located on the same lot or within 200 feet thereof. Although, when read literally, these regulations may reasonably apply to the construction of new residences or businesses in this zoning district, I find that, as applied hereto, these provisions require Tufts to provide parking, or additional parking, for each and every construction project it proposes on the area of the Campus lying in this zoning district. These parking regulations disregard the fact that all of the buildings situated on the Tufts Campus serve the same student body, the majority of whom are not commuter students and who are, for the vast majority, physically capable of traversing the entire area of the Campus on foot. In any event, it is highly unlikely that those students who have automobiles on the Campus, either for commuting purposes or for their own personal convenience, will do their intra-campus travel by means of such vehicles. For the most part then, one parking space will adequately serve multiple buildings. Moreover, a practical and reasonable solution to the parking problem appears to be Tufts' proposed Boston Avenue Garage, which as discussed in this section and as further discussed with respect to dimensional regulations, is intended to comprise a central parking area for students, faculty and visitors. I further note that imposing the aforesaid parking requirements on Tufts would require the University to make unreasonable, and even detrimental, use of its land. For example, it would be necessary to pave or blacktop over areas reserved as open or green space in order to create this additional, albeit unnecessary, parking. Certainly this loss of land would not only detract from the attractiveness of the Tufts Campus (i.e., portions of the lawn in front of the President's House would need to be paved/blacktopped to comply with the Ordinance), but it would also deprive those students who rely on the benefits of a "suburban" college of outdoor areas suitable for both study and reqreational purposes. While the law is clear that a municipality may impose reasonable parking requirements, it may not require an amount of spaces in excess of the reasonable foreseeable needs of the institution, in a number which will interfere with the primary educational purposes of the University. Such regulations would be more aptly based upon the Campus population and its actual needs, rather than upon the floor areas of its buildings. In this instance, I find that the reasonable parking needs of Tufts will be adequately provided for by the Boston Avenue Garage which, in addition thereto, will serve to reduce intra-campus automobile traffic.

For all of these reasons, I find that, by applying Medford's parking regulations, as written, to Tufts, Medford exceeds its authority.

D. Loading Space Requirement

Tufts also challenges Sections 5.3 (10) and 10.41 of the Medford Zoning Ordinance, which Sections require that the proposed Olin Center have one loading space for every 50,000 square feet of gross floor area. Inasmuch as the Center is primarily intended to house classrooms and faculty offices, there is little, if any, need for a loading dock. Unlike a warehouse, factory or retail establishment, deliveries to the Olin Center are most likely to be intermittent and irregular. Further, the size and volume of such deliveries is more likely than not to be insufficient to warrant the need for a loading space. Additionally, I note that, in this instance, any potential problems of congestion or traffic will be confined to the Tufts Campus and not the adjacent ways in the City of Medford. Accordingly, I find that this loading space requirement serves no legitimate public purpose and is unreasonable as applied to the Olin Center.

With respect to the proposed Wessell Library Addition, Tufts attacks those sections of the Ordinance which would require two new loading spaces in conjunction therewith. (See Sections 5.3 and 10.41). A view of the premises revealed that two loading docks presently exist to accommodate the Library's needs. Insofar as Tufts proposes the Addition to provide more adequate space in which to house its existing volumes and to create additional study area for students, I decline to find that the quantity and frequency of present deliveries thereto will increase. Therefore, in requiring Tufts to add two new loading spaces to the Wessell Library, Medford again exercises an unreasonable "taking" of Tufts' land, in contravention of the Dover Amendment.

E. Setback Requirement

In addition to Tufts' contention that the minimum distance between structures requirement is unreasonable as applied to the Boston Avenue Garage (see discussion above), Tufts challenges Medford's application of front yard setback requirements to this proposed structure. Section 6.3 (5) (c) of the Ordinance requires the Garage to have a front yard setback of at least fifty (50) feet. This requirement appears to be lawful, provided it is reasonable under all of the pertinent circumstances. Insofar as the proposed setback for the Boston Avenue Garage is thirty (30) feet, its design does not comply with this section of'the Ordinance. However, as confirmed by a view of the Campus, it appears that the topography of the site proposed for this structure contains a steep grade, thus rendering further setback impractical. While this unique topography may well justify a zoning variance, I do not find a variance to be necessary under the instant circumstances. Here, the Medford Zoning Ordinance was admittedly drafted with an object, among others, of having Tufts comply with the character of the general surrounding neighborhoods, with little or no regard for the existence of a large, educational institution within the bounds of the City and with little consideration to the unique circumstances of such institution. In view of the overall parking situation discussed above, with due consideration being given to Tufts' proposed solutions thereto, and further considering Medford's proper concerns and general requirements as to parking, as well as Tufts' increasing need therefor and its limited geographical space for parking facilities, I find that, in this instance, the application of the setback requirement to the Garage would serve no legitimate, rational purpose and would, in fact, unreasonably interfere with, and reduce the availability of, Tufts' land for educational purposes.

F. Requirements Applicable to the Cousens Gymnasium Addition

Tufts challenges the Medford Ordinance as it applies to Tufts' future plans to expand the Cousens Gymnasium/Hamilton Pool. Specifically, Tufts contests those provisions of the Ordinance which purport to regulate the height and front and rear yard setbacks of the structure, as well as those sections governing parking space requirements and site plan review. This "special permit-site plan review" requirement is discussed supra. As to Tufts' remaining grounds of contention, I find that, unlike the other buildings addressed herein, the Cousens Gymnasium/Hamilton Pool facility constitutes a single building on a single lot. Further, the Gymnasium/Pool is distinguishable from the buildings discussed above, inasmuch as the immediate area surrounding it is comprised chiefly of privately owned buildings and residences, and not buildings owned by Tufts. Moreover, I find that Tufts has shown no justification for a finding that any of these height, setback or parking requirements are unreasonable as applied to this site. In fact, the record before the Court is devoid of any evidence as to why the proposed Addition cannot be reasonably designed in accordance therewith. Similarly, I find insufficient evidence in the record to support Tufts' claims pursuant to Counts VIII, X and XI of the Complaint.

In consideration of the foregoing, I rule in summary that, as applied under the circumstances presented herein, the following provisions of the Medford Zoning Ordinance, except as noted, do not constitute "reasonable regulations" within the language of G.L. c. 40A, §3, and are hence inapplicable to Tufts' use of its land in the City of Medford for educational purposes:

1. Section 16, requiring site plan review for Tufts' plans to construct or expand any of its educational buildings or facilities, now or in the future.

2. Section 6.24 (a), requiring minimum distances between structures for the proposed Olin Center, Boston Avenue Garage and Wessell Library Addition and any other future structures or additions which may be similarly situated. For the reasons stated herein; however, this dimensional regulation may be reasonably applied to Tufts' proposed expansion of the Cousens Gymnasium/Hamilton Pool.

3. Section 10.21, requiring off-street parking for those proposed buildings or additions located in the core of Tufts' Campus (i.e., the Olin center and the Wessell Library Addition), the parking needs of said buildings or additions being adequately addressed by Tufts' proposed construction of the Boston Avenue Garage. For the reasons stated herein, however, this parking space requirement is applicable to Tufts' proposed expansion of the Cousens Gymnasium.

4. Section 10.41, requiring off-street loading spaces for the proposed Olin center and the Wessell Library Addition, as well as such other proposed buildings or additions which may be similarly situated.

5. Section 6.3 (5) (c), insofar as it requires the Boston Avenue Garage to have a minimum front yard setback of fifty (50) feet.

Accordingly, Medford's Motion to Dismiss Counts I and III of the Complaint is denied and, except as to the findings and rulings made herein, Counts VI, VIII, X and XI of the Complaint are dismissed due to a lack of sufficient evidence before the Court in support thereof.

The Plaintiff Tufts and the Defendant City of Medford have filed requests for rulings of law and for findings of fact, all of which I have reviewed and considered. Certain of these requests are incorporated herein. I have taken no action with respect to the remainder, as I have made my own findings as to those facts and rules of law which I deem most pertinent hereto.

Judgment accordingly.