DZOG CHEN COMMUNITY OF AMERICA, INC. vs. TOWN OF BUCKLAND ZONING BOARD OF APPEALS, and LINDA PUTNAM.

The plaintiff, Dzog Chen Community of America, Inc. [Note 1] is a non-profit Buddhist religious and educational corporation organized pursuant to the provisions of Massachusetts General Laws Chapter 180. (Exhibit No. 1) The Franklin County Building Commissioner, acting as Buckland Building Inspector issued the plaintiff a building permit to construct three small structures on its property in Buckland in the County of Franklin. The issuance of the permit was appealed by one Linda Putnam, a person who was neither an abutter nor an abutter to an abutter to the Zoning Board of Appeals of the Town of Buckland, (the "ZBA") and the ZBA reversed the Building Commissioner's decision issuing the permit for a meditation center and ordered him to revoke it. This appeal followed.

A trial was held at the Land Court on May 22, 1982 at which a stenographer was appointed to record and transcribe the testimony.

All exhibits introduced at the trial are incorporated herein for the purpose of any appeal. Dzog Chen called as witnesses Lori Marder, a member of the community, Bernard Harrington, its general contractor and also a member, Ernest Pike, a knowledgeable resident and caretaker of the Mary Lyons birthplace which abuts locus, Russell Scott the Shelburne Falls Fire District Ambulance director and David Allen, an employee of a surveying firm. The ZBA called as witnesses Corwin Rose, a land surveyor, Ronald Shippee, a resident of the adjoining town of Ashfield and Susan Schunan, also an Ashfield resident and a friend of the plaintiff whose land crosses the line into Buckland. The Court and counsel reviewed videos of Mary Lyons Road at a date subsequent to the trial. I tentatively ruled at the trial that the plaintiff was not a party in interest and therefore had no standing to appeal the Building Commissioner's decision to the ZBA. Ms. Putnam does not fall within any of the narrow categories defined by G.L. c.40A §s 8 and 17. The plaintiff had the right to seek enforcement of her view of the by-law by a written request to the Building Commissioner pursuant to section 7 of c.40A, but that is the extent of her right. Green v. Board of Appeals of Provincetown, 404 Man. 571 (1989) Absent some showing of a definite violation of a private right, a private property interest or a private legal interest of which there was none, Harvard Square Defense Fund, Inc. v. Planning Board of Cambridge, 27 Mass. App. Court 491 (1989) I find and rule that the ZBA was without jurisdiction to hear the Putnam appeal. Accordingly its decision is annulled and the matter remanded to it to dismiss the appeal and order the Buckland Building Inspector to reinstate the building permit. See also Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 (1992).

After I made my initial ruling as to standing at the commencement of the trial the parties requested that I hear the evidence and rule on the legal questions presented since they were certain to arise again. This decision therefore sets forth my interpretation of the so-called Dover Amendment and on all the evidence I find and rule as follows:

1. Dzog Chen is a Massachusetts religious and educational corporation with an Internal Revenue exempt status.

2. Dzog Chen acquired title to two adjoining parcels of land situated on the west side of the road leading to the Mary Lyons birthplace and containing about 165 acres by deed from Homer E. Smith and Helene A. Smith dated November 7, 1988 and recorded with Franklin Deeds (to which all recording references refer), Book 2279, Page 339.

3. The deed description bounds by the road leading to the Mary Lyon's birthplace and is subject to an easement granted by the plaintiffs' grantors to Mount Holyoke College [Note 2] to be recorded in the Franklin County Registry of Deeds.

4. The latter easement was not introduced into evidence, but a deed from Percy G. Pike et al to the Trustees of Mount Holyoke College dated November 5, 1964 and duly recorded in Book 1174, Page 345, does convey a right of way for all purposes southerly to the intersection of the old town road with East Buckland Road, so far, the deed recites, as the grantors have the right to grant the same.

5. In 1830 the General Court adopted chapter 50 of the Resolves requiring each city or town to make a plan including therein roads, public and private. (Exhibit No. 16) Pursuant thereto Exhibits Nos. 15 and 16A were prepared, the former of which in particular depicts town roads in Buckland in the early years of the Commonwealth. No evidence of discontinuance has been shown. See also Exhibit No. 14.

6. While documentation is scarce in view of the age of the area, there is some evidence that the public way ends some twenty-one (21) feet southerly of locus.

7. The remaining portion of the road to the Mary Lyons birthplace is at least a private way which the abutters including Dzog Chen and Mount Holyoke College have the right to use, but the preponderance of the evidence is that it is public in nature by virtue both of prescription and dedication.

8. Visitors to the birthplace are numerous in the summer, and over the years the Mount Holyoke authorities have run excursions to the founder's birthplace. There are signs on the State Highway directing tourists to Mary Lyons Road.

9. The Mary Lyons [Note 3] birth site, presently owned and maintained by Mount Holyoke College, lies at the terminus of a gravel one-lane road which stretches about three-fifths of a mile through the woods. A schematic map (Hereinafter. "Map," See appendix 1) of sites pertinent to this case is included herein. Along this road, known to most Buckland residents as the "Mary Lyons Road," lie the dwellings of at least three permanent residents. Lyons Road is passable year round if plowed, and is normally plowed over about two-thirds of its length, to the Provost driveway. The Road is hilly, rugged, and narrow, but it is nonetheless negotiable in two­wheel drive vehicles. Residents use it year 'round; others use it more seasonally although there is steady hiker traffic thereover throughout the year.

10. This road has been improved several times by the several residents who use it as the only means of access to their dwellings. Repairs have included importation, smoothing and flattening of gravel by heavy equipment. Several other repairs, including filling up gullies and installing culverts have been undertaken by residents. All snow plowing is now done privately; the Town of Buckland suspended all plowing of Mary Lyons Road in 1988. It has, however, over the years made repairs to the road.

11. Dzog Chen conducts monthly prayer sessions for approximately ten to thirty local worshippers in a small 500 square foot cabin on the locus. The plaintiff also runs an annual or bi­annual gathering for about 200 to 400 members from widely dispersed areas. The latter meeting scheduled and held this past August precipitated this dispute.

12. The locus has on it a single-lane gravel road (Hereinafter "Drive") roughly 1000 feet long beginning at Mary Lyons Road and running westerly to the approximate center of the locus. In the northwest corner of the intersection of the Drive and Lyons Road, and located entirely on the locus, is a 70-foot by 100-foot gravel parking lot. This lot was built in response to complaints by visitors to the Birth site whose access thereto was often blocked by parked cars of Dzog worshippers. Near the end of the drive lies the cabin, built in 1990, in which the Dzog members conduct their monthly activities.

13. In February, 1991, Dzog applied to the Franklin County Building Commissioner, who was acting as the Buckland Building Inspector for a building permit. Dzog's plans were to construct a 22-foot by 18-foot 'daytime meditation structure', a 10-foot by 16-foot 'storage shed' for tools, and a 'new gate' to be installed at the end of the drive. The Building Inspector issued the permit, #13431, on April 12, 1991.

14. On May 9, 1991, Defendant Linda Putnam appealed the Inspector's decision to her co-Defendant the ZBA. In her appeal, Ms Putnam cited a list of complaints. The ZBA followed the proper notice and open meeting requirements to conduct its hearings on July 8 and September 16, 1991. In its decision, the ZBA stated that the third and fourth complaint made by Putnam were beyond the scope of the Board. However, based on the remaining complaints, the Board voted unanimously on October 8, 1991 to overturn the Building Inspector's decision.

The Board's grounds were that, 1) The locus had no frontage on a public way, which is required by Article VIII, § 8-1 of the Buckland Zoning by-law (any building in a residential zone requires 2 acres and 200 feet of frontage) , and 2) the Board was "guided by the Town Counsel's well-reasoned and sensible opinion that the building permit should be overturned." The Buckland Zoning By-law has existed since May 13, 1980.

15. Any questions concerning waste disposal on the locus are outside the slope of these proceedings as the ZBA recognized. The Board of Health has authorized the use of temporary sanitary facilities on the locus.

16. The Buckland Zoning by-law, while requiring a minimum lot size of 2 acres and a frontage of 200 feet in a district without public water or sewer, as locus is, has no real definition of "frontage" but merely refers to line (front lot). The definition of street, in the by-law also is not linked to that of frontage but it is more enlightening as it is defined as "a way providing legally sufficient frontage for subdivision of land under the requirements of ch.41 Sec. 81A (sic) G.L." The parties agree that "A" is a typographical error and "L" is intended. The Land Court Engineers have determined that locus in fact, has frontage in excess of 200 feet on Mary Lyons Road.

17. In an effort to balance the equities of the parties for the short term and with this summer's convocation imminent I granted a preliminary injunction, which allowed the services to proceed under certain safeguards.

G. L. c. 40A §3 provides "no zoning ordinance or by-law ... shall ... prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes... on land owned by a religious sect or denomination ..., provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements."

The plaintiff's use admittedly is religious so the question confronting the Court in Needham Pastoral Counseling Center. Inc. v. Board of Appeals of Needham, 29 Mass. App. Ct. 31 (1990) is not present here. The sole question presented by this dispute, as framed by the parties, is whether said section 3 permits the imposition of reasonable regulations as to frontage since it is not specifically mentioned in the statute. However, the facts which I have found establish that the minimum by-law requirement of two hundred (200) feet is met. Therefore it must be the nature of the access road which the town questions.

The determination of the question before me requires a consideration of the so-called Dover amendment and its ramifications. Justice Rudolph Kass of the Appeals Court has deftly summarized the basic tenets in Inspector of Buildings of Salem v. Salem State College, 28 Mass. App. Ct. 92 , 97 (1989) as follows:

That exemption is the descendent of the Dover Amendment, the origins and development of which are discussed in The Bible Speaks v. Board of Appeals of Lenox. 8 Mass. App. Ct. 19 , 27 n.l0 (1979), and Newbury Junior College v. Brookline, 19 Mass. App. Ct. 197 , 198-199 nn. 3 & 4 (1985). Prior to the 1975 recodification of the Zoning Act, the religious and educational use exemption had been subjected to a certain gloss through case decision that permitted limited application of dimensional and parking requirements, if reasonable and not masquerading a design to exclude the protected use. See sisters of the Holy Cross of Massachusetts v. Brookline, 347 Mass. 486 , 492-494 (1964); Radcliffe College v. Cambridge, 350 Mass. 613 , 618 (1966). As recodified in 1975, the Dover Amendment permits municipalities to subject religious and educational institutions to "reasonable regulations" concerning dimensional requirements and parking. See n. 5, supra and Newbury Junior College v. Brookline, 19 Mass. App. Ct. at 198-199 nn. 3 & 4.

None of the dimensional requirements set forth in section 3 relate to frontage, and it is only by a strained interpretation that the ZBA argues this was intended by the General Court. However, section 6 adopted as part of the new enabling act, St. 1975, c. 808 at the same time perfectly illustrates the legislative ability to refer to frontage when that was its intention. Moreover, more recent amendments of the enabling act, as in section 8, for example, list categories but specify they are not inclusive. Accordingly I find and rule that dimensional requirements as set forth in section 3 do not encompass frontage. No municipality can limit the use of the land for exempt purposes other than for reasonable regulations of the matters specified by the General Court, i.e. bulk and height of structures, yard size, lot area, set backs, open space, parking and building coverage; the town's position clearly violates the statutory mandate. Sisters of the Holy Cross of Massachusetts v. Brookline 347 Mass. 486 , 494 (1964) Radcliffe College v. Cambridge, 350 Mass. 613 (1966). In addition, the plaintiff has the linear footage to comply with the frontage requirements. The real problem which the ZBA has raised only obscurely is the adequacy of the road to serve the site. G. L. c. 41, § 81L provides the standard by which Buckland measures the nature of the way in which a land owner must have frontage:

"(a) a public way or a way which the Clerk of the city or town certifies is maintained and used as a public way, or (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies, having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon.

There is no dispute that the southerly portion of what I call Mary Lyons Road for ease of understanding is a public way, and I have so found. The question really relates only to that part of the road commencing twenty-one (21) feet southerly of the plaintiff's land and running to that of Mount Holyoke College. Both by dedication and prescription, see Fenn v. Middleborough, 7 Mass. App. Ct. 80 (1979), this portion also is a public way. It appears that this was a route shown the 1830 map as a town road and it has never been discontinued. Its reputation for many years has been as a town road. Moreover, the public has been invited to use it by signs posted on the public highway to reach the birthplace and the public has done so. Repairs have been made by the town as well as by private citizens.

In any event if we assume the General Court intended frontage to be subject to local regulations, the regulations must be reasonable. Sisters of the Holy cross of Massachusetts v. Brookline, 347 Mass. 486 (1964). The regulations sought to be imposed here areunreasonable in light of the less than intense use proposed by the plaintiff in the hills of Western Massachusetts. See Jenckes v. Building Commissioners of Brookline, 341 Mass. 161 (1960). The imposition suggests the unhappy conclusion that opponents were motivated by religious discrimination.

I find and rule that based on the experience of Mt. Holyoke and the visitors to the birthplace the access to the site, if inquiry is permitted under said section 3, is adequate. The parties have not raised the question of Article 2 of the Massachusetts Declaration of Rights, and accordingly I have not discussed it.

Judgment accordingly.

exhibit 1