THE MALDEN HOSPITAL v. LEONARD G. DUNN, JAMES A. McDONALD, JR., FRANK W. FITZGERALD, JOSEPH R. CIMINO and CLAIRE CROKEN, as they are members of the MALDEN BOARD OF APPEAL.

The plaintiff Malden Hospital (the "Hospital") has appealed pursuant to the provisions of G.L. c. 40A, §17 from the denial by the defendant Board of Appeal of the city of Malden (the "ZBA") of its petition to use two existing structures situated on land owned by it and known as Lots 501 and 516 respectively for hospital purposes. The plaintiff pursued this avenue of relief on the suggestion of the Building Inspector when applications for occupancy permits were filed, and the relief was denied on grounds not sharply defined but discussed in this decision.

A trial was held at the Land Court on April 15, 21 and 22, 1992 at which a stenographer was appointed to record and transcribe the testimony. Thereafter a view was taken by the Court in the presence of counsel. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. Witnesses for the plaintiff were Stanley W. Krygowski, President of the Hospital, Dr. Robert E. Singer, Head of the Hospital's Department of Family Medicine, Gary Shaw, the Hospital's architect, Dr. Peter Shaw, Associate Director of the Boston Area Health Education Center and Assistant Professor at the Boston University Medical School, Mark Moulaison, the Hospital's Director of Security and head of its Parking Task Force and Robert Vanasse, a recognized authority in the field of traffic engineering. The ZBA called only Edmund Tarallo, the Malden Planning Director, Frank Fitzgerald, the Malden Fire Chief, and William McNaught, a retired Malden Police Officer and an abutter to the main Hospital campus west of Savin Street. Over the plaintiff's objections pursuant to Mass. R. Civ. P. 30 (a) and 30 (b) (2), the Court allowed introduction into evidence of the video testimony of Paul Harvey, president of the Fellsmere Pond Neighborhood Association since the deponent Paul Harvey has been transferred by his employer Apple Computer to California where (or in other western states) he works for three out of every four weeks. The remaining week of the month he may be in Massachusetts, but his schedule was ample justification for the short circuiting of the normal routine for taking video testimony. Much of the testimony of Mr. Harvey was framed in terms of "we", however, and it was unclear whether he was using the editorial "we" or reciting the views of unidentified members of the association, his own or his counsel's. Accordingly I have sustained the plaintiff's objections which appear on pages 13, 14, 17 to 18, 19 to 20, 20-22, 23 and 24 of the stenographic transcript of the video testimony.

On all the evidence I find and rule as follows:

1. Malden Hospital was founded in the late nineteenth century (1890), well before the adoption of zoning in Malden in 1926. It was a pastoral scene with residential neighbors to come later. As was the practice at the time of the Hospital's creation the hospital sits on the top of a hill overlooking Boston and its adjacent communities. A similar pattern is found in Quincy and Parker Hill in Boston.

2. The Hospital's campus is situated on the west side of Hospital Road and Savin Street, both public ways, which appear however to the casual observer to be private drives leading to the Hospital. There is an attractive island in part of the main hospital entrance. Abutting the west campus on the north is Girard Road and on the west, Grover Road a public way in Medford. The city line between Malden and Medford runs through the site with the building comprising Glen Ridge Nursing Home situated entirely in Medford as are certain of the Hospital's parking spaces. The total area on the west side of Hospital Road and Savin Street is 548,100 square feet (12.58 acres) of which 417,783 square feet (9.59 acres) is in Malden.

3. The remaining campus of the Hospital is situated on the east side of said public ways and also is bounded on the east as well as by West Border Road. The Assessors' records show the property as two lots: the larger is Lot 501 containing about 211,542 square feet and Lot 516 containing about 53,214 square feet.

4. Situated on the former lot is the building formerly used for the School of Nursing and on the latter, the former dormitory for the nursing school when the students lived on campus. Also on Lot 501 is the Hospital's powerhouse. It is the proposed use of the former school and its dormitory which has precipitated this litigation.

5. The building which formerly housed the School of Nursing was built and then enlarged in 1920 and 1950. It presently is used as a classroom for continuing education of hospital personnel and for offices on the second floor and meeting space made available to community groups on the third floor. At present the basement and first floor are not used. Under its application for an occupancy permit the Hospital proposes to use the first floor for Healthcorp Occupational Health Center presently occupying space in the former dormitory (Exhibit No. 5). The structure of the nursing school is such with half floors that its accessibility militates against its use for the family medicine center. The Nursing School has become affiliated with Endicott Junior College, is now degree granting and moved off campus.

6. The former dormitory built in 1971 presently houses a conference room on the first floor, the Healthcorp Occupational Health Center and administrative offices for processing patient accounts and data processing on the second floor, the Office of Patient Accounts on the third floor, the Office of Patient Billing on the fourth floor and Hospital administrative offices on the fifth floor including those of the President and Treasurer. The only change contemplated by the application is use of the second floor as a family medicine center to train graduates of Boston University Medical School as residents in family medicine (Exhibit No. 4) with the Occupational Health Center moving to the other building. Space in the dormitory previously was occupied by the Women, Children and Infants ("WIC") program which has moved to another location.

7. The zoning ordinance as originally enacted in Malden included the Hospital properties in a residential zone where a hospital was a permitted use. It was not until 1978 that the ordinance was amended to require a special permit for a hospital in a residential zone (See Exhibit No. 13, Section 300.3.3.3).

8. Section 300.7 now provides as follows :

300.7 Hospitals and Clinics erected, constructed, placed, altered, converted, or otherwise changed may be allowed in Residence A, Residence B, and Residence C Districts only by special permit granted by the Board of Appeal in conformance with the following requirements:

.1 The parking, loading, and dimensional control requirements of this ordinance shall be in full compliance.

.2 The hospital or clinic shall provide medical or surgical analysis or treatment for people.

.3 The Board of Appeal must find that the hospital or clinic will not unduly impinge upon the character of the neighborhood.

.4 The Board of Appeal must find that the hospital or clinic is in the interest of the common good.

9. The zoning ordinance also provides in Section 700.l for the protection afforded to nonconforming uses by G.L. c. 40A, §6 although the standard for reconstruction, extension, structural change or occupation for a different use by a special permit granted by the Planning Board does not track the enabling act precisely and to that extent is invalid. G.L. c. 40A, §6 requires a finding that such changes are not substantially more detrimental rather than the ordinance's "more detrimental." The former, of course, is the standard to be applied. Shrewsbury Edgemere Associates Ltd. Partnership v. Board of Appeals of Shrewsbury, 409 Mass. 317 (1991).

10. In 1982 when the main hospital building was downsized and the number of beds reduced the Planning Board made the requisite section 6 finding (Exhibit No. 7) and the ZBA granted a dimensional variance (Exhibit No. 8), none of which affected Lots 501 and 516. As far as the nursing home is concerned the Medford City Council granted a special permit (Exhibit No. 10) and the Malden ZBA a variance (Exhibit No. 11).

11. The Hospital has joined with Boston University in creating a residency in family medicine. The administrator, the faculty members, the residents and other employees all will be paid by the hospital. The only other program in the Commonwealth, at least in the eastern part, is at the University of Massachusetts Medical Center in Worcester. Boston and its suburbs are plentifully supplied with medical specialists, but doctors trained to treat the entire family are in short supply. Thus this three year program is being sponsored by the Hospital and Medical Center. One of the essentials is sufficiently close proximity to the primary hospital to allow for efficient functioning of the program and the conservation of residents' time (Exhibit No. 25). It is preferable that it not be located within a hospital (Exhibit No. 26). The American Academy of Family Practice requires for accreditation: 1) a separate entrance from the main Hospital entrance; 2) a separate waiting room; 3) examination rooms; 4) conference and library space. Other optional criteria exist as well, including that it be located in a separate building that is close to the main hospital.

12. The Hospital wishes to use the second floor of the former dormitory for faculty offices and rooms for medical examinations by the faculty and residents. The anticipated number of visits per year when the Family Center is operational will be approximately 15,000, the same number as generated by the WIC program. The facility is not designed for either an AIDS or alcoholic rehabilitation center although legally this would have no bearing. It is anticipated that there will be services specifically provided for those suffering from either disease.

13. Although there are ample parking spaces on the Hospital's property, the neighborhood perceives parking as a problem. There are five hundred twenty-eight marked parking spaces and thirty-five unmarked spaces (Chalk P) on the Hospital's land. The Hospital also has entered into a Parking Agreement with the Malden Redevelopment Authority dated April 1, 1991 (Exhibit No. 6) making available seventy-five spaces in increments of ten in the MRA's garage in downtown Malden. The Hospital has provided incentives for its employees to use the garage including grants of vacation days and loss thereof for parking abuses. The Hospital also provides a shuttle service from the garage to the Hospital, tickets on-site violators and has installed parking gates. The problem has been cut to a minimum. The fire chief testified that while there may be parking violations in the neighborhood, it usually is all right. He must evaluate the safety and accessibility of the Hospital for the renewal of its license each year which was last done in April 1992. There was general agreement that parking problems now are negligible with stringent Hospital enforcement of its policies.

14. Much of the traffic in the area of the Hospital is attributable to third parties cutting across the Hospital campus. The program addition may result in an additional one hundred eighty-four daily trips, an infinitesimal number as measured by traffic engineers. The present flow is about 7,300 trips a day so the projected increase is only 2.3%.

15. The building on Lot 501 is at a considerable distance from any abutter. Lot 516 is closer to the neighbors, but at an altitude well above them. In addition, the terrain is rocky and construction of new buildings would be difficult.

16. The improvements which the Hospital intends to make total approximately $800,000.

This litigation was precipitated by the Hospital's application for certificates of occupancy for the two buildings in question; it was advised by city administrators to apply to the ZBA for special permits to use the buildings for the purposes set forth in this decision. The ZBA combined the two applications and after notice and hearing denied the relief sought on the grounds that the proposed use of neither building would be a hospital, that in fact, the current use of the building was not a hospital, that granting such special permits would impinge on the character of the neighborhood, and that such a center was not for the public good.

I find and rule that the use of the two buildings now and in the past is for hospital purposes protected as a nonconforming use under the first sentence of section 6 of Chapter 40A. Bridgewater v. Chuckran, 351 Mass. 20 (1966). I further find and rule that as defined in the case law the Hospital's programs are not such a change, extension or alteration as to require a finding by the Planning Board, an administrative route not followed by the parties. Finally I find and rule that if Section 300.3.3.3 is applicable, the decision of the ZBA in denying the special permits is legally untenable and arbitrary, capricious and whimsical. MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 (1976).

The present controversy is governed by Derby Refining Co. v. City of Chelsea, 407 Mass. 703 (1990). There, as here, it was argued that the nonconforming use had been abandoned, and I reject that position. The nursing school and dormitory admittedly were hospital uses permitted as of right. When the use became subject to the granting of a special permit, it became nonconforming, Shrewsbury Edgemere Associates Ltd. Partnership v. Board of Appeals of Shrewsbury, 409 Mass. 317 (1991), and therefore protected by G.L. c. 40A, §6. Said section provides "[e]xcept as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent . . . ." The nonconforming use was for a hospital of which offices, an occupational health center, a family medicine residency program, patient billing, data processing and the like are integral parts. See Boston Edison Co. v. Boston Redevelopment Authority, 374 Mass. 37 , 66 (1977) as was the nursing school and dormitory in an earlier era. Accounts and billing are to a hospital what its stomach is to an army. If the structure in question had been built by Blue Cross-Blue Shield to process medical insurance claims, then they might be considered office buildings. Rather the Hospital is doing in these structures a sine qua non of its existence. As in Derby at page 712, the test to be applied here is ". . .the familiar three-part test enunciated in Bridgewater v. Chuckran, 351 Mass. 20 (1966). Under that test, we inquire: (1) 'Whether the [current] use reflects the 'nature and purpose' of the [prior] use,' (2) 'Whether there is a difference in the quality or character, as well as the degree, of use,' and (3) 'Whether the current use is 'different in kind in its effect on the neighborhood.''"

The use by the Hospital of the two buildings is clearly for Hospital purposes as set forth above. All hospitals have both administrative functions including the processing of endless paper. Additionally teaching hospitals have training programs for residents and clinics to serve those in need of occupational or other care. This controversy is governed by Pellegrino v. City Council of Springfield, 22 Mass. App. Ct. 459 (1986) rather than Melrose-Wakefield Hospital Association v. Board of Appeals of Melrose, 31 Mass. App. Ct. 923 (1991) where the doctors were not paid by the Hospital. The usual rule as stated in the latter case at page 923 is that "medical office facilities are generally now considered integral to the operation of a hospital." This case is within the usual rule. It is distinguished from both the earlier fact scenarios in that the buildings have long existed and have not been abandoned; and the Hospital merely is locating or relocating certain of its facilities therein. The first test of Chuckran, the nature and purpose of the use is clearly met.

The second test is the quality, character and degree of use. The Hospital plans fall within the holding of Cape Resorts Hotels, Inc. v. Alcohol Licensing Board of Falmouth, 385 Mass. 205 , 220-221 (1982), where, as quoted in Derby at page 714, it was said, "'a valid nonconfarming use does not lose that status merely because it is improved and made more efficient,' provided, however, that the changes are 'ordinarily and reasonably adapted to the original use and do not constitute a change in the original nature and purpose of the undertaking.' Id. at 215, quoting Berliner v. Feldman, 363 Mass. 767 , 775 (1973)."

I find and rule that the proposed use of the buildings has the same quality, character and degree as has been evident over the many years of the Hospital' s presence.

The third prong of the Chuckran test, neighborhood impact, is far less of a problem than in Derby. There are adequate parking places on the Hospital's property. Moreover, there is an intensive program of enforcement in place. Finally, off-site parking has been provided in Malden Center for employees with suitable incentives to convince them to avail themselves of the Hospital's programs. Many of the neighborhood objections seem to be related to a "right to know" philosophy and an ungrounded fear of the unknown not justified here. Finally, the distance of the homes in the neighborhood occupied in some instances by present or former city officials and the considerable drop in altitude between the buildings and the abutters belay any adverse effect on the neighborhood.

I therefore find and rule that the Hospital's plans are protected by section 6 of Chapter 40A and do not find it necessary under these circumstances to discuss the question of a finding by the Planning Board. See Goldhirsh v. McNear, 32 Mass. App. Ct. 455 (1992).

The city, however, directed the Hospital to apply for a special permit from the ZBA under Section 300.3.3.3 of the Zoning Ordinance. The ZBA found that the uses failed to meet the criterion of § 300.7. The parties have presented their case framed in the context of § 300.7. One of the principal disputes has been as to the definition of "hospital" as used in the ordinance since it is not there defined. The definition section of the Code, § 800.6, refers to the Massachusetts State Building Code for the definition of terms defined therein but not in the Zoning Ordinance and otherwise the Random House Unabridged Dictionary of the English Language, 1967 Copyright. An analysis of the definitions is singularly unhelpful.

According to the Hospital, the definition "Hospital" lies within the Ordinance itself, among the requirements for a special permit. These requirements include providing "medical or surgical analysis or treatment of people." Malden Zoning Ordinance § 300.7. The city conversely finds the true definition within the letter of the Massachusetts State Building Code, which includes hospitals on a list of buildings or parts thereof used for medical . . . care on a 24 hour basis of six or more persons who are not capable of self-preservation. Mass. State Building Code, § 307.3. A third possible definition is found in the Random House Unabridged Dictionary of the English Language to which the Zoning Ordinance refers, which states that a hospital is "an institution in which sick or injured people are given medical or surgical treatment." Random House Unabridged Dictionary of the English Language, 1967 Copyright.

All these definitions seem divorced from reality and do not fulfill the Random House definition of a "definition," i.e., the act of making clear and definite, or the formal statement of the meaning of the word. I find and rule that the Hospital as used in the Malden Ordinance means an institution providing medical and surgical services to the public on both an inpatient and increasingly on an outpatient basis. There can be no doubt that this criterion is met here. This in fact is what subparagraph 2 of Section 300.7 says.

My discussion of Chuckran essentially deals with subparagraphs 1, 2 and 3 of § 300.7. The fourth criterion is that the hospital must be in the interest of the common good. There can be no doubt that the training of residents in family medicine is a desirable social goal in view of the overemphasis in eastern Massachusetts on specialization.

I therefore find and rule that the decision of the ZBA was legally untenable and arbitrary, unreasonable, capricious and whimsical, and it is hereby annulled. I further find and rule that the Hospital is entitled to the Certificates of occupancy for which it applied and the necessary building permits so long as its plans meet the requirements of the State Building Code. In addition, if the Hospital so elects, the ZBA is to issue the special permits which it heretofore denied in its decision filed May 16, 1991.

The Hospital voluntarily had proposed conditions to be affixed to the grant of the special permits (Exhibit Nos. 4 and 5). These conditions were not accepted. Since I have held that the Hospital was entitled to the issuance thereof without regard to the conditions, the Hospital is not obligated thereby, and no conditions are to be imposed unless the Hospital specifically agrees in writing.

Judgment accordingly.