PRIMROSE SCHOOL FRANCHISING COMPANY and JOYCE WENDLER, as EXECUTRIX OF THE ESTATE OF HELEN L. NAYLOR AND HEIR UNDER THE WILL OF HELEN L. NAYLOR vs. TOWN OF NATICK and MICHAEL J. HICKEY, JR., SCOTT W. LANDGREN, ROBERT E. HAVENER, PAUL T. MULKERRON and KATHRYN M. COUGHLIN, as they are members of and constitute the ZONING BOARD OF APPEALS OF THE TOWN OF NATICK

Plaintiffs Primrose School Franchising Company (“Primrose”) and Joyce Wendler, as executrix of the estate of Helen L. Naylor and sole surviving legatee under the will of Helen L. Naylor (“Wendler”)(together, with Primrose, “Plaintiffs”) filed their unverified Complaint on February 10, 2012, pursuant to G. L. c. 240, § 14A and c. 40A, § 17, seeking a determination of the validity of certain provisions of the Town of Natick (the “Town”)’s Zoning Bylaws (the “Bylaws”) and the extent to which such provisions affect the construction of a child care facility (the “Facility”) in Natick (the “Project”), and appealing a decision (the “ZBA Decision”) of Defendant Zoning Board of Appeals of the Town of Natick (the “ZBA”, and together with the Town, “Defendants”) which denied Plaintiffs’ application for three special permits and a finding pursuant to G.L. c. 40A, § 6 second sentence, par. 1(the “Section 6 Finding”) for the Project. [Note 1] A case management conference was held on March 5, 2012. A Motion to Intervene brought by the North Natick Neighbors was denied on August 31, 2012.

Plaintiffs filed their Motion for Summary Judgment on October 1, 2012, together with supporting memorandum and Affidavit of Curt Van Emon (business consultant). Defendants filed their Opposition on November 1, 2012, together with supporting memorandum, Affidavit of Patrick Reffett (Natick Community Development Director) (“Reffett”), and letters and emails from Natick residents (the “Communications”). On November 13, 2012, Plaintiffs filed their Reply memorandum, and on November 20, 2012, Defendants filed their Supplement to Opposition. Plaintiffs filed their Motion to Strike Part of Affidavit of Reffett [Note 2] and the Communications on December 3, 2012, and Defendants filed their Opposition to Motion to Strike on January 25, 2013. A hearing on all motions was held on January 30, 2013, and at that time the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

I find that the following material facts are not in dispute:

1. Wendler is the owner of the property known and numbered as 294-296 North Main Street, Natick, MA (“Locus”). Primrose is a corporation organized under the laws of Georgia, and is in the business of educational child care. Primrose has entered into a purchase and sale agreement with Wendler to purchase Locus, and it plans to merge Lot 1 and Lot 2 (as defined, infra).

2. Locus is situated on the westerly side of North Main Street (“Route 27”), a two-lane roadway (i.e., single lane in each direction). Locus is located on a portion of Route 27 approximately .6 miles to the south of Route 30 in Wayland and approximately .8 miles to the north of Route 9. There are two schools located .40 and .66 miles from Locus, respectively, and Route 27 is a primary route for parents picking up and dropping off their children and attending events at these schools. [Note 3] There is a marked paved shoulder of approximately three to four feet in width along both sides of Route 27.

3. Locus consists of two lots (“Lot 1” & “Lot 2”), each containing a one-story single family residence and accessory structures. Together, Lot 1 and Lot 2 consist of 3.04 acres (Lot 1 consists of 2.278 acres and Lot 2 consists of .762 acres). Lot 1 fronts on Route 27, and has 83.4 feet of frontage. [Note 4] Lot 2 abuts Lot 1 on a portion of the south side of Lot 1. Lot 1 has a lot width of 71.9 feet at its narrowest point, on the portion of the lot leading to the frontage. Locus is located in the Residence Single A zoning district (“RS”) and within the overlay of the Aquifer Protection District (the “APD”). For lots within RS, the Bylaw requires frontage of 110 feet and lot width of 82.5 feet. [Note 5] Locus is therefore nonconforming with respect to frontage and lot width. [Note 6]

4. Primrose proposes to raze the existing structures and construct the Facility on Locus to accommodate 189 school-aged children and forty employees. The Facility, i.e. the structure on Locus, will be a one and one-half story building with approximately 12,000 square feet of gross floor area. The Facility will comply with all dimensional requirements of the Bylaw (height, setbacks, building coverage). Primrose intends to provide day care to infants and children and an instructional after-school program for school-aged children. Access to the Facility will be through an un-signaled driveway from Route 27.

5. Use number 49 within the table of uses in the Bylaw (the “Table of Uses”) is a “Licensed nursery school or other use for the day care of children, but not including day or summer private camps operated for profit.” Use 49 is permitted within RS pursuant to a special permit granted by the ZBA.

6. Section V-A, paragraph 2 of the Bylaw provides:

[P]re-existing nonconforming structures or uses may be extended or altered, provided, no such extension or alteration shall be permitted unless there is a finding by the Board of Appeals that such change, extension or alteration is not substantially more detrimental than the existing nonconforming use to the neighborhood. [Note 7]

7. Section III-A.5 (1) of the Bylaw states the purpose and intent of the APD: To protect, preserve and maintain the existing and potential ground water supply and recharge areas in the town; and to promote the health, safety and general welfare of the community. To create an overlay district which circumscribes aquifers and aquifer recharge areas and imposes conditions, where such are necessary to accomplish the purpose of the APD, for enjoying uses of the underlying land.

Section III-A.5 (7)(d) of the Bylaw states, “In addition to any other requirements and conditions for granting a special permit, the [ZBA], with respect to any application for a special permit in the APD, shall make a finding that:

1) The proposed use is consistent with the purpose and intent of the APD

2) The proposed use is a appropriate to the natural topography, soils, and other characteristics of the site to be developed

3) The proposed use will not, during construction or thereafter, have an adverse environmental impact on the aquifer water supply

4) The proposed use will not adversely affect an existing or potential water supply

5) In addition to any other considerations for the grant of a special permit in the underlying zoning district, the [ZBA] shall, in the case of commercial and industrial uses impose appropriate conditions which prevent compaction of soil, loss or recharge, exfiltration from sewer pipes and contamination of the soil or groundwater by oil chemicals, and nutrients.”

8. Primrose proposes to construct a standing sign accessory to the Facility (the “Sign”), which would be larger than one square foot. [Note 8] Section V-H D. 1(a) 1 of the Bylaw limits the size of accessory signs in the RS Zoning District to one square foot. Under Section V-H E. 4, the ZBA

[M]ay grant a special permit for a sign not complying with the provisions of [the Bylaw,] if it determines that the particular sign will be in harmony with the general purpose and intent of this section[,] will not be injurious to the neighborhood in which such sign or signs are to be located nor to traffic and safety conditions therein, nor otherwise detrimental to the public safety and welfare...

9. On April 7, 2011, Primrose filed with the ZBA an application for (a) a special permit to construct and use the Facility within RS; (b) a special permit to construct and use the facility in the APD; (c) a special permit for the Sign; and (d) a Section 6 Finding to construct the dimensionally conforming Facility on a nonconforming lot. The ZBA held a five-session public hearing on Primrose’s application commencing on May 9, 2011, which was continued to June 20, September 12, September 19, and November 7, 2011, when the ZBA closed the hearing.

10. Weekday average vehicle volume along Route 27 is 16,272 vehicles, including 1,222 vehicles per hour during the weekday morning peak hour (8:00 a.m. to 9:00 a.m.) and 1,314 vehicles during the weekday evening peak hour (4:00 p.m. to 5:00 p.m.). Primrose conducted a traffic study (the “Traffic Study”) to determine the traffic impact caused by the Facility. During the morning peak hour (8:00 a.m. to 9:00 a.m.), the Traffic Study predicted that the Facility would generate 151 new trips per hour, based on 80 vehicles entering Locus and 71 vehicles exiting Locus. During the weekday evening peak hour (4:00 p.m. to 5:00 p.m.), the Traffic Study predicted that the Facility would generate 155 new trips per hour, based on 73 vehicles entering Locus and 82 vehicles exiting Locus.

11. Over the course of seven months and more than a half dozen public meetings on this matter, the ZBA heard testimony from Primrose, its attorney, dozens of members of the community, and attorney Caren Schindel, who represented a large group of opposed parties. The ZBA received and reviewed plans, reports, memoranda, evidence, and heard testimony for a total of sixteen hours. As a result of these hearings, Primrose submitted revised lighting and landscaping plans; however, Primrose did not scale down the size of the Facility and it did not agree to install a traffic signal (or to discuss such matters with the Massachusetts Department of Transportation).

12. On December 12, 2011, the ZBA voted unanimously (5-0) to deny Primrose’s application to operate the Facility on Locus. The ZBA filed its decision (the “ZBA Decision”) with the Town Clerk on January 26, 2012. At the hearing on December 12, 2011, Robert Havener (“Havener”) (member of the ZBA) first made an unsuccessful motion to approve the application “subject to all crafted conditions, and find that the proposal, as conditioned, would not be substantially more detrimental to the neighborhood than what is existing.” The ZBA Decision listed eight “principal conditions” to be imposed if the motion to approve had been successful. This first motion was not seconded by any member of the ZBA. Havener then made a second motion, which gave rise to the unanimous vote of the ZBA, that the “[Facility] to serve 189 children and accommodate 40 staff persons, with all of its related adverse traffic, safety, aesthetic, and other impacts, will be substantially more detrimental to the neighborhood.”

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Plaintiffs argue that the requirements to (1) obtain a special permit in order to use the Facility within RS, (2) to obtain a special permit for the Facility within the APD, (3) to obtain a special permit for the Sign, and (4) to obtain a Section 6 Finding, are all invalid facially, and as applied, under the Dover Amendment. Defendants argue that all three requirements for special permits and the requirement for a Section 6 Finding are valid and were applied correctly to deny Primrose the right to proceed with the Project.

I. Motion to Strike

Plaintiffs filed their Motion to Strike Part of Affidavit of Reffett (“Part of Affidavit”) and the Communications on December 3, 2012, based on Part of Affidavit stating opinion and not personal knowledge, and the Communications being hearsay and not signed under the penalties of perjury, and therefore, both inadmissible in a motion for summary judgment under Mass. R. Civ. P. 56(e). Defendants filed their Opposition to Motion to Strike on January 25, 2013.

Part of Affidavit includes paragraphs 6-17. Paragraphs 6-11 state facts in relation to Reffett’s personal knowledge of the location of Locus and current traffic conditions on Route 27. Paragraph 12 states the “likely” effect that the Project will have on traffic conditions. Paragraphs 13-16 describe the Route 27 redesign project of which Reffett is the project manager. Paragraph 16 also states “[un]likely” availability of highway funds in one of the sentences therein. Paragraph 17 states the “likely” schedule for Primrose’s development and occupancy of Locus.

Paragraphs 6-11 and 13-15 should not be stricken from the record because Reffett has personal knowledge of the assertions made. Reffett is the Community Development Director of the Town, the Town’s representative regarding traffic/transportation matters, project manager to coordinate the redesign of Route 27, familiar with the Project, and knows about the traffic conditions he is reporting on.

Paragraphs 12, 16, and 17 should be struck because they are a matter of opinion. The word “likely” clearly indicates that Reffett does not have personal knowledge of the assertions; therefore, those paragraphs are inadmissible as evidence under Mass. R. Civ. P. 56(e).

Plaintiffs second argument is that Part of the Affidavit of Reffett is not relevant nor material to this action because off-site traffic concerns, which these exhibits attempt to evidence, are not the type of reasonable regulations permitted by the Dover Amendment. As discussed, infra, the ZBA is entitled to make a Section 6 Finding if such finding is reasonably applied to the Project. In this regard, off-site traffic concerns may be relevant.

The Communications are letters and emails to the ZBA expressing opposition to the Project for various reasons. The Communications are hearsay because they are intended to prove the matter asserted. Defendants contend that the Communications are merely being presented as supplemental material to the ZBA Decision to prove that there was a dispute, and not to prove the assertions therein. That interpretation would render the Communications irrelevant and immaterial because the ZBA Decision already references the Communications and provides sufficient evidence of the dispute; and therefore, there is no need to include these unsworn hearsay statements.

As a result of the foregoing, I DENY Plaintiffs’ Motion to Strike Paragraphs 6-11 and 13-15 of the Affidavit of Reffett, and ALLOW Plaintiffs’ Motion to Strike Paragraphs 12, 16, and 17 of the Affidavit of Reffett, as well as the Communications.

II. Validity of Special Permit Requirements:

A. Special Permit Within RS:

The Table of Uses provides that a building or structure to be used as a licensed nursery school or other use for the day care of children (Use 49) is permitted within RS by special permit. The Facility falls within Use 49 as it will be used as a day care/after-school program. Section III-A.7(d) of the Bylaw requires additional findings for the issuance of a special permit within the APD. Section V-H.E.4 of the Bylaw requires a special permit for accessory signs larger than one square foot. Plaintiffs argue that the special permit requirements and findings pursuant to sections III.A.1, III-A.7(d), V-H.E.4 of the Bylaw, and G.L. c. 40A, § 6 are facially invalid and invalid as applied to the Project because the Project and the Facility are protected under G.L c. 40A, § 3 (the “Dover Amendment”). Defendants contend that the Dover Amendment does not extend to construction of a new structure or reconstruction of an existing structure for a day care or child care use. The third paragraph of G.L. c. 40A, § 3 (“P3 ”) states in relevant part:

No zoning ordinance or by-law in any city or town shall prohibit, or require a special permit for, the use of land or structures, or the expansion of existing structures, for the primary, accessory or incidental purpose of operating a child care facility; 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. (Emphasis supplied).

“As a general rule, a municipality cannot condition the use of property for an educational purpose on the grant of a special permit.” Campbell v. City Council of Lynn, 415 Mass. 772 , 778 (1993) at n. 5, citing Trustees of Tufts College v. Medford, 415 Mass. 753 , 757 (1993). A local zoning law that improperly restricts an educational use by invalid means, such as by special permit process, may be challenged as invalid in all circumstances. Id. at 765. If a structure will be used for the sole purpose of “housing a child care facility operation...it cannot be prohibited or subject to special permit requirements.” Petrucci v. Bd. of Appeals of Westwood, 45 Mass. App. Ct. 818 , 822 (1998); see also The Bible Speaks v. Bd. of Appeals of Lenox, 8 Mass. App. Ct. 19 , 33 (1979) (special permit for religious use was precisely the type of discretion that was to be eliminated by the Dover Amendment).

Defendants concede that the Dover Amendment protects use of land and existing structures for child care facilities from special permit requirements; however, they argue that such protections are not afforded to new construction or reconstruction of structures to be used as a child care facility. Defendants cite Prime v. Zoning Bd. of Appeals of Norwell, 42 Mass. App. Ct. 796 (1997) and Campbell v. Town of Weymouth, 6 LCR 276 (1998) to support this theory. Prime analyzed the issue of a special permit for construction of a new structure in the context of an agricultural use, pursuant to the first paragraph of the Dover Amendment (“P1”). At the time Prime was decided by the Appeals Court, P1 provided in material part: “no ‘ordinance or bylaw shall...prohibit, unreasonably regulate or require a special permit for the use of land for the primary purpose of agriculture...nor prohibit, or unreasonably regulate, or require a special permit for the use, expansion or reconstruction of existing structures thereon for the primary purpose of agriculture...’” Prime, supra, at 799 (n.8). Relying on the fact that P1 referred only to expansion or reconstruction of existing structures, the court in Prime held that a bylaw could impose a special permit requirement for construction of an entirely new agricultural structure. The court stated, however, “the special permit may not be imposed unreasonably and in a manner designed to prohibit the [protected use,] nor may the permit be denied merely because the board would prefer a different use of the locus, or no use.” Id.

Campbell presents a very similar factual scenario to the case at bar. In Campbell, a land owner sought to build a new structure within a flood plain district (which required a special permit) to be used as a child care facility. The court in Campbell looked to Prime for guidance, but it also noted that the language in P1 and P3 is not identical. The first clause of P3 prohibits requiring a special permit for “the use of land or structures, or the expansion of existing structures” for a child care facility (emphasis supplied). On the other hand, P1 first states that no bylaw shall “require a special permit for the use of land for the primary purpose of agriculture...” (emphasis supplied). [Note 9] Plaintiffs in Campbell and the case at bar argue that the phrase “the use of land or structures” in P3 is more protective than the language in P1, which simply protects the use of land. In this regard, Plaintiffs argue that the language “the use of land or structures” prohibits requiring a special permit for (1) existing structures, (2) construction of new structures, and (3) reconstruction of existing structures, all to be used as a child care facility. For the same reasons as stated in Campbell, this court disagrees with such interpretation.

The court in Campbell reasoned that if the phrase “the use of land or structures” prohibited a special permit requirement for new construction, then the second phrase, “or expansion of existing structures” would be superfluous. To wit, if new construction and reconstruction were protected by the phrase “use of land or structures”, then surely expansion of an existing structure would also be protected and encompassed within the language “use of land or structures.” If that were indeed the proper interpretation, then the next clause, “expansion of existing structures”, would be superfluous. “A statute must be interpreted to give effect to all its provisions, so that no part will be inoperative or superfluous.” Lowery v. Klemm, 446 Mass. 572 , 577 (2006) (internal citations omitted).

It should also be noted that subsequent to the decision in Prime, P1 of the Dover Amendment was amended and now states, “no zoning ordinance or bylaw shall...unreasonably regulate or require a special permit for the use, expansion, reconstruction or construction of structures thereon for the primary purpose of commercial agriculture.” The language “construction of structures” would seem to supercede the holding in Prime that a bylaw can require a special permit for new construction of an agricultural structure. No such amendment was made to P3 to add language protecting either new construction or reconstruction for a child care facility. [Note 10]

This case, however, can be factually distinguished from Campbell. It may be credibly argued that Plaintiffs intend to reconstruct an existing structure (the two existing houses on Locus) rather than construct a new structure (whereas in Campbell, it appears that the developer intended to construct an entirely new structure on vacant land). In Campbell, the Land Court stated in a footnote that its decision could be distinguished from another land court case (and subsequently Appeals Court case) that analyzed P3, Petrucci v. Bd. of Appeals of Westwood, 4 LCR 167 (1996), aff’d by Petrucci v. Bd. of Appeals of Westwood, 45 Mass. App. Ct. 818 (1998). In Petrucci, the Appeals Court held that a bylaw could not impose a special permit requirement for the renovation of an existing structure to be used as a child care facility. In Petrucci, the land owner did not intend to either (1) construct a new building or (2) raze and reconstruct an existing structure. As such, the proposed improvements to the existing structure were protected by the language in P3 prohibiting requiring a special permit for “the use of land or structures” as a child care facility.

The Campbell court stated, “Petrucci proposed renovation of an existing barn for use as a child care facility rather than construction of a new building as proposed by plaintiffs...the distinction makes a difference.” Campbell, supra, at 277, n. 8 In the case at bar, it seems that Plaintiffs intend to reconstruct the existing structures on Locus. Unlike in Petrucci, however, Plaintiffs do not intend to utilize the existing structures for the child care facility. Although the razing and reconstruction in the case at bar can be factually distinguished from the construction of a new structure in Campbell, the two cases cannot be legally distinguished based on the express [missing] language of P3. P3 protects only existing structures and expansions thereto but does not protect either (1) construction of a new structure or (2) reconstruction of existing structures. Cf. P1 (no bylaw shall require a special permit for “use, expansion, reconstruction or construction of structures...”) (emphasis supplied).

Based on the foregoing, I find that the Bylaw may require a special permit for construction of a new structure to be used as a child care facility within RS. [Note 11]

B. Special Permit Within the APD

The Bylaw requires a special permit within the APD regardless of the proposed use. In Prime, the land owner was required to obtain a special permit for a new structure within a similar aquifer protection district. In finding that new construction of a structure to be used for agriculture required a special permit, the Appeals Court in Prime also found that there was no Dover Amendment Protection for construction of the new structure in an aquifer protection district. This court is bound by the holding in Prime relating to a special permit for new construction within an aquifer protection district. Because the razing and reconstruction of the Facility to be used for child care is not protected by the Dover Amendment, such reconstruction in the APD is also not protected by the Dover Amendment. As such, I find that the Bylaw may require a special permit for construction of the Facility within the APD. [Note 12]

C. Special Permit for the Sign:

The Bylaw requires a special permit for a sign that will be greater than one square foot. The Bylaw defines a “structure” as “[a] combination of materials assembled at a fixed location to give support or shelter, such as a building framework...sign...” A sign is therefore considered a structure under the Bylaw. There is no doubt that the Sign will be used to advertise the use of Locus as a day care facility. The Sign is therefore an accessory structure to be used in conjunction with the day care use on Locus. “No distinction is made by [the Dover Amendment] regarding its applicability to ‘principal’ or ‘accessory’ buildings...” Watros v. Greater Lynn Mental Health & Retardation Ass’n., 421 Mass. 106 , 113 (1995). As discussed in detail, supra, the Dover Amendment does not exempt construction of a new structure from a special permit requirement in the Bylaw. There is no exception in this regard for an accessory structure in either the Dover Amendment or the Bylaw. Based on the foregoing, I find that the Bylaw may require a special permit for construction of the Sign.

D. Reasonable Conditions:

Even with the foregoing conclusions, however, it is abundantly clear that ‘the special permit may not be imposed unreasonably and in a manner designed to prohibit the operation of [the Facility,] nor may the permit be denied merely because the board would prefer a different use of the locus, or no use.” Prime, supra, at 802. The ZBA may impose conditions; however, such conditions would be subject to a de novo review. Id. Such conditions “must bear a reasonably direct relation to significant considerations of public health, safety, and welfare based on findings justified by substantial evidence.” Id, quoting Cumberland Farms of Conn., Inc. v. Zoning Bd. of Appeals of N. Attleborough, 359 Mass. 68 , 75 (1971). “[L]and or structures [to be used as a child care facility] 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.” G.L. c. 40A, §3 (P3).

In this regard, I remand the three special permits back to the ZBA for a new hearing consistent with this Decision. As discussed, supra, the ZBA may not deny the Dover Amendment use that will be housed within the new structure, but it may apply reasonable conditions to such structure and use.

III. Section 6 Finding Issues:

G.L. c. 40A, § 6 (“Section 6”) states:

Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

The Facility will comply with all dimensional requirements of the Bylaw for any structure within RS. Locus, however, is non-conforming with respect to frontage and lot width. “An otherwise conforming structure on a nonconforming lot is treated as a nonconforming structure.” Dugas v. Burman, 7 LCR 39 (1999); see also Bjorklund v. Zoning Bd. of Appeals, 450 Mass. 357 , 362 (2008) (dimensionally conforming structure on undersized lot is nonconforming structure). As a result, the Facility will be a nonconforming structure.

In the case at bar, Locus is nonconforming with respect to lot width and frontage. Regardless of its size and dimensions, the Facility is structurally nonconforming. Therefore, this case involves the relationship between G.L. c. 40A, § 6, G.L. c. 40A, § 3, and Section V-A.2 of the Bylaw. Section V-A.2 of the Bylaw reiterates Section 6 in full and designates the Board of Appeals as the permit granting authority. Plaintiffs contend that the protections afforded the use of Locus as a child care facility pursuant to G.L. c. 40A, § 3 trump the requirements of both G.L. c. 40A, § 6, and Section V-A.2 of the Bylaw.

Pursuant to G. L. c. 40A, § 3, a local board cannot deny the right to use a pre-existing nonconforming structure as a child care facility. Petrucci, supra, at 824. “Accordingly, analysis pursuant to § 6 would not turn on any impact of the use of the [structure] as a child care facility but on whether the [structure], as altered, would be substantially more detrimental to the neighborhood than the existing nonconforming structure.” Id (emphasis supplied). However, procedures for reviewing changes to legal, nonconforming structures that appear in a local bylaw and in c. 40A, §§ 6 and 9 do not necessarily violate the Dover Amendment. See Trustees of Boston College v. Bd. of Alderman of Newton, 58 Mass. App. Ct. 794 , 799 (2003). In that case, the Appeals Court held that:

[t]he ordinance’s provisions may be reviewed for validity as applied to BC under both the Dover Amendment and G. L. c. 240, § 14A. If they survive this challenge, the applicant may still proceed, as would any other property owner, by seeking a determination under § 6 and section 3021(b) of the zoning ordinance that the proposed reconstruction or alteration is not substantially more detrimental to the neighborhood than the existing structure. See Campbell v. City Council of Lynn, 415 Mass. 772 , 777 n.6 (1993). Thus, there is that additional opportunity to secure a permit. Id.

The Appeals Court went on to state that if the Section 6 finding procedure in a local bylaw is applied reasonably, then “the applicant may still proceed, as would any other property owner, by seeking a determination under § 6 and section 3021(b) of the zoning ordinance that the proposed reconstruction or alteration is not substantially more detrimental to the neighborhood than the existing structure.” Id.

The Appeals Court in Trustees of Boston College, made clear that the Dover Amendment does not trump the requirement of a Section 6 Finding for the reconstruction or alteration of a nonconforming structure. The inquiry is thus: whether the Section 6 Finding procedure contained within Section V-A.2 of the Bylaw is a reasonable regulation as applied to the Project. Section V-A.2, mirroring Section 6, requires a finding by the ZBA that the Project will not be substantially more detrimental to the neighborhood than the existing structure or use. In this regard, a municipality may not, however, “through the guise of regulating bulk and dimensional requirements under the enabling statute, proceed to ‘nullify’ the use exemption permitted to an educational institute.” The Bible Speaks v. Bd. of Appeals of Lenox, 8 Mass. App. Ct. 19 , 31 (1979).

Plaintiffs argue that in reference to reasonable regulations, the Dover Amendment specifically lists certain dimensional requirements that may be applied to a child care structure: bulk and height of structures, yard sizes, lot areas, setbacks, open space, parking, and building coverage requirement. Plaintiffs argue that this specifically enumerated list does not include either frontage or lot width. Defendants take a less narrow view of the “reasonable regulations” and argue that any regulations related to public health and safety may be imposed in a reasonable manner. Local zoning requirements adopted under the proviso...to the Dover Amendment which serve legitimate municipal purposes sought to be achieved by local zoning, such as promoting public health or safety, persevering the character of an adjacent neighborhood, or one of the other purposes sought to be achieved by local zoning...may be permissibly enforced, consistent with the Dover Amendment, against a protected use...so long as the provision is shown to be related to a legitimate municipal concern, and its application bears a rational relationship to the perceived concern. Rogers v. Town of Norfolk, 432 Mass. 374 (2000), citing Trustees of Tufts College v. City of Medford, 415 Mass. 753 , 757-758 (1993)

Frontage and lot width requirements both address the issue of access to a site. Hobbs Brook Farm Prop. Co. Ltd. P’ship v. Planning Bd. of Lincoln, 48 Mass. App. Ct. 403 , 408 (2000). Frontage requirements are also one means for ensuring adequate vehicular access. See Gifford v. Planning Bd. of Nantucket, 376 Mass. 801 , 807 (1978) (“in the ordinary case, lots having such frontage are fully accessible”). “Reasonable frontage requirements may materially promote the objectives of zoning...and therefore, may substantially relate to public health, safety, and welfare.” MacNeil v. Town of Avon, 386 Mass. 339 , 342 (1982).

This court first observes that P3 of the Dover Amendment specifically lists “yard sizes” as a regulation that may be applied to a child care facility. Frontage, i.e. how much “yard” fronts upon a street, clearly relates to yard size. Moreover, lot width also relates to yard size as a less wide lot will inherently result in a smaller lot and a smaller yard. Next, both access and traffic issues relate to the public health, safety, and welfare. It is also quite clear that frontage and lot width requirements are accepted means for mitigating traffic and access issues. This court refuses to adopt Plaintiffs’ narrow reading of acceptable regulations. As such, I find that frontage and lot width requirements, as they relate to traffic and access concerns, are reasonable regulations as applied to the Facility.

Similar to the action of the special permit granting authority in Campbell, it appears that instead of imposing reasonable conditions on the Project, the ZBA summarily denied the special permit application and made a section 6 finding against the Project. In the ZBA Decision, the ZBA recognized that it could impose “a host of conditions on a favorable decision.” It is also apparent, though, that upon request by the ZBA, Primrose refused to amend its plans or to agree to install any traffic mitigation measures. To remedy its concerns, the ZBA initially drafted eight proposed conditions that might be imposed upon the Project, but in the end the ZBA decided to deny the special permits and refused to make a favorable section 6 finding. The ZBA Decision steps beyond the authority of the ZBA because it cannot use either the special permit procedure or the section 6 finding requirement to deny a use of land and structure thereon that is protected by the Dover Amendment. As in Campbell, the ZBA in the case at bar denied the three requested special permits and failed to grant a favorable section 6 finding. The ZBA essentially nullified the protections afforded a child care facility under G.L. c. 40A, § 6.

Based on the foregoing, I find that the new structure (the Facility) may be subject to a finding that it will not be substantially more detrimental than the existing structure, pursuant to G.L. c. 40A, § 6 and section V.2 of the Bylaw, but such a finding must be applied reasonably. At this juncture, however, this court cannot opine as to the reasonableness of potential conditions or regulations relating to traffic and safety that may or may not be imposed on the Project.

Based on the foregoing discussion, I remand this matter to the ZBA to hold a public hearing within thirty days of the date of this decision. The ZBA, upon remand, may impose reasonable conditions upon the Project. Such concerns, however, cannot override the protections afforded the Facility pursuant to the Dover Amendment. This court shall retain jurisdiction for purposes of any necessary review of the board’s further proceedings. Judgment shall issue after all remaining issues have been resolved.