TIMOTHY HILL CHILDREN'S RANCH, INC. and TIMOTHY HILL CHRISTIAN CAMP, INC. vs. GEORGE WEBB, DONALD BARTLEY, PHYLLIS KELSO, and STEPHEN HAMLIN

Plaintiffs Timothy Hill Children's Ranch, Inc. ("THCR") and Timothy Hill Christian Camp, Inc. ("THCC") (together, "Plaintiffs") filed their unverified Complaint (No. HSCV 200800096-A) with the Hampshire Superior Court on May 7, 2008, seeking a declaratory judgment pursuant to G. L. c. 231A, relative to the status of a Cease and Desist Order (the "Cease and Desist Order") issued by the Huntington Zoning Enforcement Officer (the "ZEO") on April 8, 2008, alleging a violation of their civil rights; and appealing, pursuant to G. L. c. 40A, § 17, the reinstatement of the Cease and Desist Order by Defendant Zoning Board of Appeals of the Town of Huntington (the "ZBA") (together with the ZEO, the "Town")

Plaintiffs Paul Saner, Sandra Saner, Julia Saner and Christopher Saner (the "Intervenors") filed their unverified Complaint (No. HSCV 2008-00091-A) with the Hampshire Superior Court on May 2, 2008, appealing, pursuant to G. L. c. 40A, § 17, the purported constructive approval by the ZBA of a finding (the "Finding") that the use of THCR's property located at 128 Norwich Lake, Huntington, MA ("Locus") as a camp is protected as a pre-existing nonconforming use, and seeking a declaratory judgment, pursuant to G. L. c. 231 A, relative to the Finding.

Plaintiffs (not Intervenors) filed their unverified Complaint (08 MISC 382531) with the Land Court on August 11, 2008, alleging seven counts, consisting of: (1) declaratory relief pursuant to G. L. c. 231 A, relative to the status of the Cease and Desist Order; (2) appealing, pursuant to G. L. c. 40A, § 17, the reinstatement of the Cease and Desist Order by the ZBA; (3) appealing, pursuant to G. L. c. 40A, s.17 the ZBA's denial of a special permit (the "Special Permit") requested by Plaintiffs; (4) appealing, pursuant to G. L. c. 40A, § 17 the ZBA's denial of Plaintiffs' application for the Finding; (5) appealing, pursuant to G. L. c. 40A, § 17, the denial by the ZBA of Plaintiffs' appeal of the Cease and Desist Order; (6) appealing, pursuant to G. L. c. 40A, § 17, the ZBA's denial of Plaintiffs' appeal of the ZEO's failure to act upon a request for zoning status; and (7) appealing, pursuant to G. L. c. 240, § 14A and G. L. c. 40A, s.3, a section of the Huntington Zoning By-law (the "Bylaw") which requires a special permit for camp use. The ZBA filed its Answer on September 10, 2008. A telephonic case management conference was held on October 21, 2008.

By letter dated December 30, 2008, Plaintiffs filed a request for an interdepartmental transfer of the two Superior Court cases to the Land Court. By letter dated January 14, 2009, the Land Court requested that the Land Court case be transferred to the Hampshire Superior Court, and on January 21, 2009, the Chief Justice for Administration and Management (the "CJAM") transferred the Land Court case to the Hampshire Superior Court. On March 18, 2009, the CJAM revoked his prior order, and on June 18, 2009, transferred the two Superior Court cases to the Land Court. Hampshire Superior Court Case No. 08-00096 was entered on June 25, 2009, as 09 MISC 404144. Hampshire Superior Court Case No. 08-00091 was entered on June 25, 2009, as 09 MISC 404850. [Note 1] A case management conference was held on October 13, 2009, for the two transferred Superior Court cases.

On June 1, 2009, Plaintiffs filed a Motion for Preliminary Injunction seeking to prevent the Town from interfering with Plaintiffs' operation of their camp at Locus. A hearing on the motions was held on June 16, 2009, and this court issued its Order Allowing Plaintiffs' Motion for Preliminary Injunction (the "Order") on June 26, 2009. [Note 2] The Order stated that "[the Town] allow [Plaintiffs] to use Locus as a summer camp for the uses described in this decision. [Note 3] Only [Plaintiffs] will be allowed to operate the camp." On July 2, 2009, the Town filed its Motion to Allow Proposed Order on Preliminary Injunction, which asked the court to alter the Order in ways that further restricted Plaintiffs' use of Locus. On July 14, 2009, this court issued a Revised Order on Preliminary Injunction. [Note 4]

The parties filed a Joint Pre-Trial Memorandum on December 18, 2009, which contained certain agreed upon facts. Additions to the pre-trial memorandum were filed on December 23, 2009. A Pre-Trial Conference was held on December 23, 2009. A site view and the first day of trial at the Northampton District Court were held on April 21, 2010. The second day of trial was held on April 22, 2010, at the Land Court in Boston. The Intervenors filed their Post-Trial Brief on July 30, 2010. Plaintiffs filed their Post-Trial Brief on August 2, 2010. On August 12, 2010, Plaintiffs filed their Motion to Strike portions of the Intervenors' Post-Trial Brief, and on August 23, 2010, the Intervenors filed their Opposition. [Note 5] At a status conference held on September 23, 2010, this court allowed the Town to file a Post-Trial Brief on limited issues, which the Town filed on September 23, 2010. Plaintiffs filed their Reply to the Town's filing on October 12, 2010. At that time, the case was taken under advisement.

At trial, testimony for Plaintiffs was given by: Suzanne Smiley (Executive Director of Girl Scouts of Western Massachusetts), Wayne McKinney (owner of Searle Avenue), Paul Tacy (Huntington ZEO), Thaddaeus Hill (Executive Director of THCR) ("Hill"), Steven Schneider (director of Tidal River), and Chris Johner (director of THCC). Testimony for the Intervenors was given by: Julia Jones (an abutter to Locus), Christopher Saner (Intervener), Sandra Saner (Intervener), Julia Saner (Intervener), Cynthia Gales (controller of THCR), and Paul Saner (Intervener). Fifty-three exhibits were submitted into evidence.

Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. The Bylaw was adopted on October 15, 1985. Locus is located in a "Residence 45" zoning district which permits single family residences as of right, but also permits other residential and some commercial based upon the granting of a special permit, such as:

Section IV D: NON-RESIDENTIAL USES ON LOTS NOT ALSO USED FOR RESIDENCE

For the four following categories... A special permit is required in all districts if there are four (4) or more full-time (or equivalent part time) employees.

IV D 1a - Any office, retail business, trade, bank, or non-professional service establishment...

IV D 2a - Restaurant, motel, inn, resort, hotel, cafe, bar, boarding house...

IV D 2d - Camp for children or adults, camping area, cemetery, marina, zoo, any outdoor recreational or amusement facility which charges a fee for admission or use.

2. THCR filed its Certificate of Incorporation in New York State under Section 402 of the Not-for-Profit Corporation Law on April 30, 1976, and was incorporated in New York as a not-for-profit corporation on May 13, 1976. Pursuant to Article 3 of the Certificate of Incorporation, the purposes for which the corporation was formed were:

(a) To plan for and raise funds for the eventual establishment and operation of a group home for dependent, neglected, pre-delinquent children, who have an unstable family situation.

(b) To provide a limited amount of vocational training for the purpose of teaching the children responsibility and respect for the dignity of labor.

(c) To provide each child with religious training and with a consciousness of religious development.

3. By amendment dated November 6, 1985, and filed June 30, 1986, Article 3(a) of THCR's Certificate of Incorporation was amended to read:

(a) The establishment, operation and maintenance of residences for dependent, neglected, abandoned, abused, pre-delinquent children and persons in need of supervision, provided, however, that before each such facility shall be established the prior written approval of the New York State Department of Social Services shall be obtained.

4. By lease dated September 20, 1994, the Western Massachusetts Girl Scout Council, Inc., (the "Girl Scouts") owner of Locus since 1964, leased Locus to New York-New England Jurisdictional Family Camp of Woodmen of the World Fraternal Benefit Society, Inc. ("Woodmen") for a forty year term, which was abbreviated when Woodman terminated the lease in 2002. Prior to the Woodmen lease period, the Girl Scouts had used Locus as an educational and recreational camp since 1964 with a focus on waterfront activities. During the period of the Woodmen lease, the Girl Scouts' troops continued to use Locus for camping.

5. By a Facility Rental Agreement dated June 27, 2006, the Girl Scouts leased Locus to Wilderness Experiences Unlimited ("Wilderness") for a term June 1, 2006 to September 15, 2006. Wilderness ran a recreational camp which offered training, canoeing, kayaking; they also planned trips and were heavily involved in youth programming. Wilderness obtained Board of Health permits to operate a recreational camp for children in 2003, 2004, 2005, and 2006.

6. By letter to THCR dated April 2, 2007, the Internal Revenue Service ("IRS") confirmed that THCR was exempt under 501(c)(3) of the Internal Revenue Code and that THCR was classified as a public charity under 509(a)(1) and 170(b)(1)(A)(vi) of the Internal Revenue Code.

7. By letter to the ZEO dated August 10, 2007, THCR filed a Zoning Permit Application, stating that it proposed to purchase Locus "subject to approval of the use of the property" as a seasonal camp.

8. By letter dated October 10, 2007, the ZEO declined to act on the request for a zoning permit (the "Declination"), stating:

On the advice of Town Counsel, I will not render an opinion on the zoning status of the parcel in question. I have been advised that to do so would not be within my authority as Building Commissioner or Zoning Enforcement Officer.

9. The Girl Scouts conveyed Locus, containing approximately ninety-six acres of land on Norwich Lake, to THCR by deed dated October 15, 2007, and recorded with the Hampshire Registry of Deeds (the "Registry") at Book 9299, Page 229.

10. By applications dated December 4, 2007, and filed with the ZBA on December 13, 2007, THCR requested the ZBA to render:

a) a finding as follows:

[THCR] is entitled to a finding that it is entitled to continue to operate as a pre-existing non-conforming use; as an extension of the use of the previous owners, the Girl Scouts of America camp ... The Girl Scouts had been operating as a camp, and had owned the property, since at least 1949, prior to the Town of Huntington's adoption of zoning use districts. [THCR] will continue the prior use, and operate as a camp and public-service agency for children and their families.

b) a special permit as follows:

[THCR] is eligible for a special permit as a non-profit camp for children... Since the land has been used as a camp for children in the past (by the previous owners, Girl Scouts of America, since at least 1949), there will not be any significant changes in terms of the environmental impact (there is no adverse impact now nor will there be), and the general characteristics of the neighborhood, as well as the parking and traffic of the neighborhood, will be unchanged.

c) an appeal from the Declination of the ZEO.

The applications were not accepted for filing and were returned to THCR by letter of the ZBA dated January 12, 2008, which stated, "the applications, as submitted, are incomplete and not acceptable for filing ... In addition to the correct fees three (3) Site plans must be included with the application."

11. By Articles of Organization dated January 23, 2008, and filed with the Commonwealth of Massachusetts on January 31, 2008, THCC was incorporated under G. L. c. 180 (Corporations for Charitable and Certain Other Purposes). The stated purpose was as follows:

To operate an educational outdoor camp to teach children and families leadership skills and life skills with a spiritual foundation which includes bible studies and church services. The program includes outdoor and wilderness activities to teach team building and independent living skills. The camp will provide a seasonal outdoor educational program for both the children and the families that the program serves. To provide educational and life skills counseling to children and families and to do such other activities as are appropriate to the mission and permitted to not-for-profit educational programs under G. L. c. 180, including owning, operating and leasing real estate.

12. The ZEO issued a building permit for Locus to THCR on January 28, 2008, for "Dormitory Renovations."

13. THCR submitted an application for a license to conduct a recreational camp for children to the Town of Huntington Board of Health (the "Board of Health"), which was received on March 12, 2008. The Board of Health responded by letter dated April 30, 2008, that THCR's application had not been acted upon because it was incomplete.

14. On April 8, 2008, the ZEO issued the Cease and Desist Order, which stated:

You are therefore ordered to CEASE AND DESIST from all activity which constitutes this violation. This shall include operation of a camp, a retreat center or any other similar use. Further use of this property for anything other than uses allowed by right in the R-45 district may only be allowed by special permit or variance. Failure to comply with this order shall be cause for legal action against Timothy Hill Children's Ranch, Inc.

15. By application dated April 7, 2008, and filed with the ZBA on April 14, 2008, THCC filed for a special permit, stating that they were entitled to the special permit because they were:

a non-profit camp for children ... Since the land has been used as a camp for children in the past (by the previous owners, Girl Scouts of America, since at least 1949), there will not be any significant changes in terms of the environmental impact (there is no adverse impact now nor will there be), and the general characteristics of the neighborhood, as well as the parking and traffic of the neighborhood, will be unchanged.

16. By application dated April 14, 2008, and filed with the ZBA on April 15, 2008, THCR filed an appeal of the Declination. Public hearings were held on June 11 and June 18, 2008. [Note 6]

17. By letter dated May 6, 2008, Huntington Town Counsel advised THCR:

...it is my opinion that Timothy Hill would qualify as a `nonprofit educational corporation' under G. L. c. 40A, § 3. I am therefore recommending that Building Commissioner lift the Cease and Desist Order issued on April 8, 2008 to the extent that the Cease and Desist Order would apply to the use of the Property by Timothy Hill for its exempt activities.

18. By letter dated May 7, 2008, the ZEO informed THCR that he would be rescinding the Cease and Desist Order (the "Rescission"):

I am rescinding the Cease and Desist order on activity by Timothy Hill Children's Ranch, issued on April 8 of this year. This is done on the advice of Huntington town counsel, Kopelman and Paige, P.C. Briefly, this decision is based on the exempt status enjoyed by Timothy Hill as a nonprofit educational corporation.

19. The ZEO issued two building permits for Locus to THCR on May 27, 2008, one for "Cabin Renovations" and one for "Repair Trusses."

20. By lease dated July 1, 2008, THCR leased Locus to THCC to be used as "a Christian camp for children and families" for a term of July 1, 2008 to December 31, 2010. [Note 7] The annual rental was $30,000, payable $2,500 per month.

21. With respect to the Declination, on July 9, 2008, the ZBA voted: a) 3-0, to deny the petition for a "Finding," stating:

that the pre-existing lawful non-conforming summer children's camp use had been discontinued for approximately eight years, which exceeds the limits imposed for continuation of a pre-existing non-conforming use established in Huntington's Zoning By-law, Section VI.A.3.

b) 2-1 to approve the special permit, with conditions. [Note 8] The decision stated:

The ZBA determined that a special permit would be required to operate a camp on this site at Norwich Lake. It was determined that the property in question is a non-conforming lot due to lack of road frontage. The proposed change from an 8-10 week summer camp to a "Camp Season" limited to ten (10) weeks with no programs that include adults or "exempt use" activities shall overlap or run concurrently with any of the "Camp" programs. To allow the "Camp Season" with unspecified or articulated adult programs would create a difference in the character and effect upon the neighborhood. Additionally, the THCR website clearly shows that the property is being marketed as a rental property for, "...businesses, organizations and secular groups." If THCR were allowed to proceed as marketed, it would create an increase in population and traffic that would dramatically affect the character of the neighborhood. The camp for children applied for on their application had been reduced to more of an accessory use rather than the principal use asked for on their application.

22. The Saners appealed the Rescission to the ZBA, and a public hearing was held on July 17, 2008. On that date, the ZBA voted, 3-0, to "roll-back" the Rescission and "reinstate" the Cease and Desist Order. A decision stating the same was issued on July 23, 2008.

23. THCR was informed by letter that the Board of Health voted to cease issuing permits to THCR after August 15, 2008; that Locus shall only be used by Hill's immediate family; that Locus cannot be used by "childen, teens, employees, residents or affiliates of THCR; and that Locus "cannot be used by individuals, friends, religious groups or any other individuals as a whole."

24. By letter to THCC dated November 21, 2008, the IRS determined that THCC was exempt from federal income tax under 501(c)(3) of the Internal Revenue Code. The letter also determined that THCC was a public charity under 170(b)(1)(A)(vi). The letter was effective January 31, 2008.

25. Tidal River Christian Camp ("Tidal River") has operated a Christian camp in Bethel, Connecticut for the past thirty-five years. In the summer of 2009, Tidal River operated a summer camp at Locus under the auspices of THCR. 26. The current Board of Directors of THCC is comprised of local ministers, board members of Tidal River, and board members of THCR. For the 2009 season, Hill and Aaron Allen were the camp directors. Allen has a "missions degree, a Bible degree," and Hill holds a bachelor's degree in business administration, a master's degree in business (MBA), and a master's degree in social work (MSW).

27. With respect to the use of Locus as a camp by THCR, Hill testified "We've just tried to kind of build, not from the secular sense, but from a spiritual sense what it means to be strong and courageous. And that's been the core of the curriculum every year." As to the activities at the camp, he testified "And then we do recreational activities. We do Bible studies. We do devotionals. We do other team building exercises that are all kind of encompassed with this idea `be strong and courageous' and what that means."

28. The 2009 curriculum for both THCC and Tidal River is focused on Christian education and Bible studies. When questioned about how much time is devoted to religious as opposed to recreational activities, Hill testified "Well, the programs were all incorporated together. So the umbrella of what we do from a spiritual standpoint is weaved throughout all the programs." The curriculum included a theme for each week that was "focused on the Bible."

29. The trial record indicates that the THCC campers' typical daily schedule consisted of breakfast at 8:00 AM, followed by Bible study and team building activities until mail call around 11:30 AM which was then followed by lunch; the afternoon consisted of various activities, including fishing, volleyball, capture the flag, etc. until mail call around 5:00 PM, after which the campers had dinner. After dinner, there was a recreational period until about 7:30 PM, at which time there would be devotional at a bonfire and in the campers' cabins until the campers went to bed.

30. The curriculum of THCC was developed by Connecticut Valley Church of Christ under Hill's supervision; it was influenced by collaboration with Tidal River, which has experience running religious and educational camps.

31. THCC counselors were selected based on whether candidates had past experience incorporating religious and educational principles into camp activities. Relative to this matter, Hill testified that "[w]e look for people who have a 4-year degree specifically related to Bible and/or missions and [who have] done work with a lot of Bible schools camps....vacation Bible schools..."

32. The Chamber of Commerce publication and the website stated that uses allowed at Locus would include the following: corporate retreats, womens' retreats, mens' retreats, youth retreats, family weekends, and cabin rentals for family and group use.

33. According to the testimony of Hill, preliminary arrangements were made, as a result of increased traffic, to have a shuttle bus or vans available for transport of the campers to Locus. Testimony also indicated that, in response to a concern about traffic by neighbors, THCC was willing to contribute if improvements to the access road were deemed necessary. Wayne McKinney, who is the highway superintendent for the Town and maintains the access road during the summer, testified that the access road to Locus does not comply with the Town's subdivision laws and that the road was inadequate for heavy use since it is not wider than twenty-two feet at some locations. Despite this testimony, he indicated that traffic was not an issue since the THCC campers carpooled, unlike the Girl Scouts who were often dropped off individually.

34. Wayne McKinney also testified that there was "very little activity" at Locus in 1988.

35. Julia Jones, an abutter who was familiar with the typical activities associated with camping because she had attended the camp as a child and who regularly visited her property each summer from 1986 until 1994, indicated that it was obvious to her when the Girl Scouts were on Locus due to the singing and activity on the water. She testified that she did not observe the usual camping activities at Locus between 1988 and 1994.

36. Testimony indicates that use of Locus by Plaintiffs prompted complaints in response to the noise created by campers when they engaged in activities near and on Lake Norwich.

*********************

The central issues before this court is whether Plaintiffs' camp use of Locus is a use protected by the Dover Amendment, found in G. L. c. 40A § 3, and/or the statutory grandfather protections, found in G. L. c. 40A § 6. Plaintiffs allege that, although Locus is situated in a Residence 45 zoning district (which restricts most uses other than single family residential), their camp use of Locus is a use protected by the Dover Amendment, and therefore they are not required to meet any additional permitting criteria. They also allege that their camp use is an extension of a pre-existing, nonconforming use by the Girl Scouts, which also would preclude the need for additional permits. Finally, in the alternative, they allege that the decision of the ZBA not to grant the Special Permit for their camp use is arbitrary, capricious and unreasonable. The Interveners allege that the camp use is not a Dover Amendment use, that the pre-existing nonconforming use was abandoned, and that the ZBA was within its discretion to deny the Special Permit. I shall examine each of these issues in turn.

Dover Amendment Protection

The first issue that this court must address is whether the operation of a summer camp at Locus is a use that is protected by the Dover Amendment. Plaintiffs argue that the operation of their camp is protected by the Dover Amendment as it is both an educational and religious use of the property, and because they are a nonprofit educational and religious corporation. G. L. c. 40A, § 3, in relevant part, provides:

No zoning ordinance or by-law shall ... prohibit, regulate or restrict the use of land or structures for religious purposes or educational purposes on land owned or leased ... by a religious sect or denomination, or 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.

Whether land or structures are exempt from zoning regulation for educational and/or religious purposes turns on the dominant or primary purposes of such land or structure. Fitchburg Housing Auth'y v. Bd. of Zoning Appeals of Fitchburg, 380 Mass. 869 , 874 (1980); Whitinsville Ret. Soc'y, Inc. v. Town of Northbridge, 394 Mass. 757 , 760 (1985). Religious and/or educational purposes are not mutually exclusive, and therefore, religious and educational elements may be considered together to determine whether the dominant purpose is religious and/or educational.

"The proper test in deciding whether a nonprofit corporation is an educational one is whether its articles of organization permit it to engage in educational activities." Gardner-Athol Area Mental Health Ass'n, Inc. v. Zoning Bd. of Appeals of Gardner, 401 Mass. 12 , 15 (1987). As THCR's original Certificate of Incorporation (filed with New York on June 22, 1976) states, the purpose of THCR is "to provide a limited amount of vocational training for the purpose of teaching the children responsibility and respect for the dignity of labor" and "to provide each child with religious training and with a consciousness of religious development." [Note 9] The Articles of Organization for THCC (filed with the Commonwealth of Massachusetts on January 23, 2008) provides that the purposes of the corporation were"[t]o operate an educational outdoor camp to teach children and families leadership skills and life skills with a spiritual foundation which includes bible studies and church services.... [t]o provide educational and life skills counseling to children and families...." The Affidavit of Thaddaeus Hill (the "Affidavit") [Note 10] provides that THCR is a not-for-profit educational corporation, that THCC is a 501 (c)(3) exempt organization, and that the purpose of both corporations, at Locus, is:

to provide children and families with educational and religious programming in the outdoors at Norwich Lake. This has been and continues to be the only use that the Children's Ranch and the Christian Camp have or envision for the Huntington property on Norwich Lake.

...

The Children's Ranch and the Christian Camp's use of its Huntington property for children and families include programming for children, adults, and families. The programming planned includes religious instruction, spiritual instruction, wilderness training, religious and spiritual counseling, vocational training, living skills instruction, bible studies, church services, leadership activities and skill-building, and team building education. [Note 11]

According to the Affidavit, the mission of Plaintiffs is "to provide a safe haven for children, families, and individuals in crisis with educational counseling, training, and ministry upon Christian teachings and principles." [Note 12]

Testimony indicates that the ZEO, relative to the Cease and Desist Order, also felt that THCR qualified as a "nonprofit educational corporation" under G. L. c. 40A, § 3, because the Cease and Deist Order was rescinded after he communicated with Town Counsel. The ZEO also testified that he has maintained his original position that the use of Locus as a camp qualifies as an exempt use as a "nonprofit educational corporation." Thus, I find that the articles of organization of THCR and THCC, combined with the Affidavit, tax treatment and testimony at trial, prove that Plaintiffs qualify as non-profit educational and religious corporations whose use may be protected under the Dover Amendment.

Now that we know that Plaintiffs are qualified for Dover protection, the essential question in this case is whether the use of Locus as a camp by Plaintiffs is a religious and/or educational use protected by the Dover Amendment. Case law illustrates that there are a broad range of educational and religious uses that are considered protected under the Dover Amendment and a strict reading of the words "education" or "religion" is not a proper interpretation of the statute. See generally Worcester County Christian Commc'ns, Inc. v. Bd. of Appeals of Spencer, 22 Mass. App. Ct. 83 , 87 (1986) ("It may be that the formal trappings of religious and educational institutions assist the determination that the intended use is for the appropriate limited purposes, but, as we read [the Dover Amendment], the exemption is not restricted to religious sects and educational institutions."); Cummington Sch. for the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597 , 603-05 (1977) ("Our cases have recognized an institution's entitlement to exemption even where its educational goals were not within traditional areas of education.... The fact that participants spent part of their time in recreational activities would not undermine a use which is otherwise educational."); Martin v. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 150-152 (2001) (stating that "religious purpose' means something in the aid of a system of faith and worship" and it is impermissible for a judge to determine what is or is not a matter of religious doctrine); and Needham Pastoral Counseling Center, Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31 , 37 (1990) (protected religious activity may involve more than prayer and worship).

In Fitchburg Housing, 380 Mass. at 869-70, the Supreme Judicial Court (the "SJC") found an educational use under the Dover Amendment where the use was "a residential facility in which formerly institutionalized but educable adults, with histories of mental difficulties, will live while being trained in skills for independent living, such as self-care, cooking, job seeking, budgeting, and making use of community resources." [Note 13]

As part of their summary of the facts the SJC described the program at issue as one in which participants "would require medical treatment and would participate in a training program aimed at developing or learning social and interpersonal skills such as learning to keep themselves physically clean, learning to shop and how to use money, [and] learning to cook." Id. at 871-72 (internal quotations omitted). Plaintiffs claim that uses at Locus are similar to the uses at issue in Fitchburg Housing, where such uses would be, "vocational training, living skills instruction, bible studies, church services, leadership activities and skill-building, and team building education" for children and families at risk or in crisis. [Note 14]

The Town argues that Plaintiffs' use of Locus is recreational rather than educational or religious, citing Whitinsville, 394 Mass. at 761. [Note 15]

In Whitinsville, the SJC did not find a Dover use where the corporation was using the property for a retirement home. The claimed "educational" use involved aiding elderly residents "psychologically and physically by teaching them crafts and providing entertainment and stimulus for them." Id. at 758-59. The court stated, "Merely an `element of education,' however, provided not by a formal program or trained professionals, but only informally gleaned from the interplay among residents of the nursing home community, is not within the meaning of "educational purpose" pursuant to G. L. c. 40A § 3. Id. at 761. The Town asserts that Plaintiffs' use of Locus is analogous to the recreational activities cited in Whitinsville-that education is not the primary focus but just one of the elements of use, and therefore does not qualify for Dover protection. In addition, it contends that Plaintiffs' claimed religious use is not adequate either, but instead such use should be considered "pastoral counseling" [Note 16] controlled by Needham Pastoral, 29 Mass. App. Ct. at 38. In Needham Pastoral, the Appeals Court stated that "[a]n element of religion subsidiary to the dominant secular use does not convert that use to one which is for religious purposes any more than an element of education converts a residential facility for elderly persons to a use for educational purposes." Id. at 31-32, 36, referencing, Whitinsville, 394 Mass. at 761. The Appeals Court then held that general pastoral counseling, for any and all persons choosing to avail themselves of the service, was not a protected religious use even though it was performed inside a church. Id. at 37. The Town argues that Plaintiffs do not give any specific facts of religious use at Locus, but instead give broad generalized and conclusory statements referencing religion generally, not in a manner that would indicate specific religious practices.

Like Fitchburg Housing, the use at Locus is focused on educating participants in vocational and religious subject matters for short, definite, periods of time, by trained professionals, with the intention that they will emerge as more productive and useful members of society. This is a clear and traditional illustration of education and religious teaching. Unlike the use in Whitinsville, where the participants were elderly residents with no intention of ever residing outside of the property, or using their new found craft skills for greater societal purposes, the use at Locus is not primarily residential, and the educational opportunities are found and exploited in both specific instructional activities (such as hands on vocational training) and in mundane activities such as hiking or fishing, during which times Plaintiffs exploit such experiences to educate on the importance of self-worth, community, and relation to God. The primary counselors at Locus, Thomas Hill and Aaron Allen were also the camp directors for the 2009 camp season. Aaron Allen has a "missions degree, a Bible degree," while Hill holds a bachelor's degree in business administration, a master's degree in business (MBA), and a master's degree in social work (MSW). The curriculum for the camp was also developed with the assistance of counselors, who were selected based, at least in part, on their experience integrating educational and religious components into a camp curriculum. Hill testified that "[w]e look for people who have a 4-year degree specifically related to Bible and/or missions and [who have] done work with a lot of Bible school camps....vacation Bible schools...," - these religious credentials distinguish the counselors at Locus from the untrained caretakers in Whitinsville. Hill also testified that all the camp activities incorporated religious and educational components, even though such activities might appear to be solely recreational to outside observers. [Note 17]

Moreover, the trial record indicates that a significant. segment of each THCC camper's daily schedule was devoted exclusively to team building and religious instruction, and the curriculum included a theme for each week that was "based on the Bible." This type of educational and religious preparation and instruction is far more recognizable as pure and traditional educational use than is basic craft and hobby activities, supervised by untrained caretakers, intended to enhance daily activities of elderly residents of a nursing home, as seen in Whitinsville.

Unlike Needham Pastoral, where the judge stated,"[s]ome theological, inspirational, or spiritual content does not automatically imbue an activity with religious purpose," Needham Pastoral, 29 Mass. App. Ct. at 36, the religious and educational uses at Locus build the foundation of the camp programs offered by Plaintiffs. In Needham Pastoral the counseling that was provided, though it had undertones of a religious nature, was directed at participants of all faiths, any faith, or no faith, and the judge noted, "that the services of NPCC and its methods of delivering them are not significantly different from what a neutral observer coming upon the scene would size up as a mental health center applying standard psychological and psychiatric techniques." Id. In contrast, Plaintiffs' curriculum and purpose at Locus could not be described in any other way than as a purely Christian in nature, directed at Christian participants, even though secular education (such as vocational training) is also present, because religious education is the motivating factor for all activities. A typical camp day begins and ends with Bible study and religious instruction. The curriculum, which was developed by a church, has a religious base and includes a theme for each week that is "focused on the Bible." The Board of Directors and the camp directors are primarily ministers and have degrees in Bible studies and social work, and camp counselors are selected based on prior experience incorporating religious principles into camp activities. Hence, it is clear from the evidence and testimony presented to this court that Plaintiffs take specific care to educate participants, in both religious and educational areas, at all times while at Locus. [Note 18] As a result, I find that the primary use of Locus as a summer camp is educational and religious in nature and, therefore, protected under the Dover Amendment.

The Intervenors argue that Plaintiffs intend to use Locus not only for their own religious and educational purposes (which have been declared protected Dover uses), but that Plaintiffs also intend to use Locus for commercial recreational activities that are not related to educational or religious purposes and therefore not subject to Dover protection. There was evidence presented in the form of THCC website pages which indicate that Plaintiffs have openly advertized and permit secular, non-educational entities to use Locus for purposes other than those protected under the Dover Amendment. The evidence shows that this secular, non-educational use of Locus would not be undertaken by Plaintiffs or their agents, but rather by lessees of the camp acting as independent third parties.

An activity at Locus that, in and of itself, would not be considered educational or religious in nature may still be protected if it is an accessory use. Henry v. Bd. of Appeals of Dunstable, 418 Mass. 841 , 844 (1994). An accessory use is a use "incidental" to a permissible activity that is "necessary, expected or convenient in conjunction with the principle use of land." Id. (citing 6 P.J. Rohan, Zoning and Land Use Controls, § 40A.01 at 40 A-3 (1994)). Renting Locus to secular entities for recreation is in no way incidental to the primary religious and educational purposes of the property which are protected, because such secular use is not related to the educational or religious uses of Plaintiffs. As a result, I find that if Plaintiffs permit secular, non-educational or non-religious use of Locus, for example, for a corporate retreat or a family reunion, they must follow all applicable Bylaw regulations and such use is not protected by the Dover Amendment.

Pre-Existing Nonconforming Use.

The next issue for this court to address is whether the use of Locus as a camp can be considered a pre-existing nonconforming use. [Note 19] G. L. c. 40A § 6, states, in part, as follows: "A zoning ordinance or by-law may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more." Section VI A 3 of the Bylaw states, "Exemption under G. L. c. 40A § 6 shall lapse if a nonconforming use or structure is abandoned or discontinued for two years or more."

Both parties agree that the Girl Scout camp operation was a pre-existing nonconforming use under the Bylaw. The trial record, however, indicates that the Girl Scout camp use ceased for a six year period from 1988 to 1994. Wayne McKinney, who was the highway superintendent for the Town during that time period, testified that there was "very little activity" at Locus starting in 1988. One abutter, Julia Jones, who was familiar with the typical activities associated with the Girl Scouts, because she had attended the camp as a child and who regularly visited her property each summer from 1986 until 1994, indicated that it was obvious to her when the Girls Scouts were on Locus due to the singing and activity near or on the water, making it unlikely that the campers visited Locus unnoticed. She testified that she did not hear the Girl Scouts from 1988 to 1994, at which time the lease with Woodmen was executed and camping activity resumed. No evidence to the contrary has been presented to the court. The Bylaw makes it clear that abandonment or discontinuance for a two year period disqualifies the use. As a result of the foregoing, I find that the pre-existing nonconforming camp use of Locus by the Girl Scouts lapsed because the use was discontinued for a period of more than two years. [Note 20]

Reasonable Regulations and Special Permits

G. L. c. 40A § 3 makes clear that certain uses and structures will be protected from zoning regulations and restrictions generally, however, such uses or structures may still 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." (Emphasis added). Whether a particular zoning requirement will be considered reasonable, as applied to an educational or religious use, will depend on the specific facts and circumstances of each case. Trustees of Boston College v. Bd. of Aldermen of Newton, 58 Mass. App. Ct. 794 , 800 (2003); Trustees of Tufts College v. Medford, 415 Mass. 753 , 759 (1993). Since Plaintiffs' use of Locus is protected under the Dover Amendment, the only aspects of use or structures which may be regulated are those enumerated in the statute, supra. No such regulations of use or structure, however, are presently at issue in the controversy surrounding Locus. The Town is not seeking to impose generally applicable regulations pursuant to those permitted by the statute, which would be acceptable as long as they could be classified as reasonable, but instead it is seeking to restrict use and structures at Locus through the imposition of special permit restrictions, many of which fall outside the scope of permitted classes of regulation. [Note 21]

Bylaw § IV D, titled "Non-Residential Uses on Lots Not Also Used for Residence," requires in section 2d, without exemption, that a special permit be obtained for a "Camp for children or adults, camping... which charges a fee for admissions or use." This provision prompted Plaintiffs to apply for a special permit even though they believed that the use of Locus was allowed under the Dover Amendment. The special permit requirement may well be acceptable for uses which are not protected, however, such a requirement imposed upon a protected use is antithetical to the purposes of the Dover Amendment and does not reflect the "reasonable regulation" contemplated by the statute. See Trustees of Tufts College, 415 Mass. at 765 (special permit process is an invalid means which improperly restricts a protected Dover use and may be challenged as invalid in all circumstances); The Bible Speaks v. Bd. of Appeals of Lenox, 8 Mass. App. Ct. 19 , 33 (1979) (no legislative intention to impose special permit requirements on expressly authorized as of right educational uses). Bylaw § V B [Note 22] enumerates the criteria required for issuance of a special permit and, although some of the considerations fall within the scope of permissible regulation under the statute, a majority of the requirements are improper considerations for protected Dover uses, especially when considered under the special permit process. For example, Bylaw § V B 4 requires the special permit granting authority to find that "the proposed use shall be in substantial harmony with the uses prevailing in the neighborhood and for which the site is zoned." This consideration, regardless of its placement within the statute (i.e. whether it is a condition found in other provisions, outside of the special permit process) is outside the classes of restrictions permitted by the Dover Amendment and therefore it cannot properly be imposed upon Plaintiffs' protected use of Locus. On the other hand, Bylaw § V B 8 requires the permit granting authority to condition issuance of a special permit upon a requirement of providing for adequate off-street parking. This class of regulation is enumerated in the statute and, therefore, could be properly applied to Plaintiffs' use at Locus as long as the specific requirement could be deemed a reasonable regulation. However, its character as a proper class of regulation does not allow its imposition under a special permitting process. Instead, the regulation must be conditioned independently from the special permitting criteria if it is to be properly imposed upon the use at Locus. Therefore, I find that Plaintiffs are not required to receive a special permit for their protected Dover uses and structures at Locus.

Conclusion

As a result of the foregoing I rescind the Cease and Desist Order and its reinstatement issued by the ZBA relative to the protected Dover uses as defined in this Decision, and find that no special permit is required for such use at Locus.

Judgment to Issue Accordingly.