WHITINSVILLE RETIREMENT SOCIETY, INC. VS. TOWN OF NORTHBRIDGE.

ABRAMS, J. The defendant, the town of Northbridge, appeals from a judgment that determined that the proposed use of land owned by the plaintiff, the Whitinsville Retirement Society, Inc., constituted and educational purpose within the meaning of G. L. c. 40A, Section 3, and is not subject to any prohibition or limitation imposed by the Northbridge zoning by-law. The town asserts that a judge of the Land Court erred in finding that the plaintiff operated a nursing home facility for educational purposes and in ruling that he had subject matter jurisdiction

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under G. L. c. 185, Section 1 (j 1/2), to determine whether the plaintiff's special permit exempted it from the Northbridge zoning by-law. We agree with the town on both grounds. We reverse.

We summarize the facts as found by the judge. The plaintiff, a nonprofit corporation, received a special permit in 1975 to use the existing premises, a 9.05-acre lot, for the housing, shelter, and care of retired persons and to allow for the eventual construction of additional buildings for such use. By 1977, a "Congregate Living" facility in the original building accommodated nine to ten ambulatory elderly persons with individual bedrooms and a shared dining room and living room.

In 1979, the plaintiff requested a building permit for an "Independent Living" facility to be located on a portion of the 9.05 acres that would contain twenty-four efficiency apartments for the elderly. The building inspector refused to issue a permit unless the plaintiff obtained a variance or special permit. The Northbridge board of appeals (board) refused the plaintiff a variance that year, but the next year the Department of Community Affairs granted a building permit for the "Independent Living" facility to the plaintiff. In July, 1981, the building inspector denied the plaintiff building permits to construct a nine-room addition to its "Congregate Living" facility and a forty-one bed nursing home on the ground that a special permit was needed.

The plaintiff brought an action in the Superior Court in December, 1981, which was dismissed, evidently because of failure to exhaust administrative remedies. The plaintiff filed an appeal from the building permit denials to the board in May, 1982, which was denied on the ground that the appeal period had expired ten months earlier. The plaintiff then filed a second complaint in the Superior Court, which also was dismissed. In December, 1982, the plaintiff filed an action in the Land Court under G. L. c. 240, Section 14A, and G. L. c. 185, Section 1 (j 1/2).

The plaintiff's plan, as found by the judge, envisages using those elderly persons within the complex who are in good physical and mental condition to help others living there who are not so well off. The plaintiff planned to have others within

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and outside the complex aid the elderly residents psychologically and physically by teaching them crafts and providing entertainment and stimulus for them.

The plaintiff sought two determinations in the Land Court: first, that it was a nonprofit corporation using its land as a public or community facility for an educational purpose within the meaning of G. L. c. 40A, Section 3, and therefore not subject to any prohibition or limitation imposed by the Northbridge zoning by-law; and second, that its land was exempt from the provisions of the Northbridge zoning by-law by virtue of its 1975 special permit. In response to the two issues that are the subject of this appeal, the defendant argued that the plaintiff is not operating a facility for educational purposes and that the Land Court lacked subject matter jurisdiction. The judge entered a judgment for the plaintiff, ruling that the plaintiff's proposed use of its land constituted an educational purpose and is not subject to prohibition or limitation by the Northbridge zoning by-law.

1. Educational purpose. The plaintiff argues that the judge correctly defined the proposed project as having an "educational purpose" within the meaning of G. L. c. 40A, Section 3, [Note 1] and is therefore not subject to prohibition or limitation by the Northbridge zoning by-law. We agree with the judge that "[e]ducation is a broad and comprehensive term. It has been defined as `the process of developing and training the powers and capabilities of human beings.' To educate, according to one of Webster's definitions, is `to prepare and fit for any calling or business, or for activity and usefulness in life.' Education may be particularly directed to either the mental, moral, or physical powers and faculties, but in its broadest and best sense it relates to them all." Mount Hermon Boys' School v. Gill, 145 Mass. 139, 146 (1887).

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Nevertheless the words "educational purpose" are "everyday words and should be interpreted `according to the common and approved usages of the language . . . without enlargement or restriction and without regard to . . . [the court's] own conceptions of expediency.'" Moulton v. Building Inspector of Milton, 312 Mass. 145, 148 (1942), quoting Commonwealth v. S.S. Kresge Co., 267 Mass. 145, 148 (1929). The issue is whether the plaintiff's project "is operated primarily for an educational purpose." Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 603 (1977).

The judge found that the plaintiff's plan would entail care for approximately 100 elderly persons -- some in efficiency apartments, some in a "Congregate Living" facility, and forty one in the "Nursing Home." He found that when the nursing home was built it would "be staffed by professional nursing personnel and have medical attendants on call."

The judge further found that the plaintiff's plan "is to provide psychological help. . . . The plan envisages the use of the elderly persons within the complex in good physical and mental condition to help others living there [who are] not so well off. It is planned to have others in the complex itself and from the outside work with these depressed and elderly to aid them psychologically as well as physically." Persons from outside the complex would come in "to teach crafts, to provide entertainment and stimulus to the persons confined in the complex." The judge concluded that there was "an element of education" in these plans and that the assistance being given by those who are better off physically and mentally to others who are less fortunate is in part an educational project.

The judge's findings do not support the conclusion that the primary or dominant purpose of the proposed nursing home facility would be educational. Cummington School of the Arts, Inc. v. Assessors of Cummington, supra at 603. The judge found, "While the campus concept as a whole is scheme primarily to care for the physical needs of persons in their later years, there is an element of education therein." "Of course, in a broad sense, anything taught might be considered, to a

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greater or less degree, educational." See Kurz v. Board of Appeals of N. Reading, 341 Mass. 110, 113 (1960). 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, Section 3. [Note 2] Such an interpretation of the words "educational purpose" is not within the plain meaning of G. L. c. 40A, Section 3. See Bronstein v. Prudential Ins. Co., 390 Mass. 701, 704 (1984); Commonwealth v. Vickey, 381 Mass. 762, 767 (1980). We conclude that there was error in the judge's determination that the purpose of the nursing home was "educational." [Note 3]

2. Subject matter jurisdiction. In its complaint the plaintiff requested a declaration that if the purpose of the nursing home were not "educational," the plaintiff's land is still exempt from the provisions of the Northbridge zoning by-law by virtue of its 1975 special permit. The plaintiff rested its request for relief on G. L. c. 240, Section 14A, [Note 4] and G. L. c. 185, Section 1

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(j 1/2). [Note 5] The town filed a motion to dismiss because it contended that the Land Court had no "jurisdiction over the subject matter" and because the "complaint fail[ed] to state a justiciable controversy."

The judge found "that the premises [of the plaintiff were] exempt from the provisions of the Zoning By-law by virtue of the 1975 Special Permit." There was no discussion in that section of the judge's rulings relating to a determination of the validity or extent of any municipal zoning ordinance, by-law, or regulation. Merely because the judge found that, based on the special permit, the Northbridge zoning by-law could not be enforced does not change the fact that the determination made was the effect of the 1975 special permit and not the validity of the Northbridge zoning by-law or the application of the by-law to the plaintiff's land. The plaintiff's claim therefore does not fall within the language of G. L. c. 240, Section 14A, and G. L. c. 185, Section 1 (j 1/2).

The primary purpose of G. L. c. 240, Section 14A, is to provide a procedure for a declaratory judgment that will resolve doubts

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relating to by-law restrictions or the requirements of a zoning ordinance. Addison-Wesley Publishing Co. v. Reading, 354 Mass. 181, 184-185 (1968). That statute provides in pertinent part: "The court may make binding determinations of right interpreting such ordinances, by-laws or regulations whether any consequential judgment or relief is or could be claimed or not." G. L. c. 240, Section 14A. The evil to be remedied is a situation where someone may be forced to invest in land before being able to find out whether there are restrictions. See Harrison v. Braintree, 355 Mass. 651, 654 (1969). No such situation exists here. Rather, the plaintiff here is seeking to sidestep an appeal to the Northbridge board of appeal, and, if need be, then to the Superior Court. See G. L. c. 40A, Sections 8, 14, 17. General Laws c. 185, Section 1 (j 1/2), may not be used to avoid the normal appellate route required in zoning disputes. [Note 6]

Relying on Banquer Realty Co. v. Acting Bldg. Comm'r of Boston, 389 Mass. 565, 570 (1983), the judge concluded that he had jurisdiction to determine the force and effect of the plaintiff's special permit. In Banquer we held that the Land Court had jurisdiction under G. L. c. 240, Section 14A, if the case concerned the validity of or the extent to which a zoning code affected a proposed use of property. Here, the plaintiff has not sought a determination as to the validity of the Northbridge zoning by-law or the extent to which the zoning by-law affects its proposed use of the premises, but rather a determination of the extent of its 1975 special permit. Banquer Realty Co. v. Acting Bldg. Comm'r of Boston, supra, therefore does not support a claim of jurisdiction in the Land Court in the instant case. See Pitman v. Medford, 312 Mass. 618, 620 (1942). The judge should have granted the town's motion to dismiss for lack of subject matter jurisdiction.

In summary, we hold that the plaintiff's proposed project is not exempt from the operation of the Northbridge zoning by-law under G. L. c. 40A, Section 3, as a nonprofit organization

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using its premises for "educational purposes," and that the Land Court lacked jurisdiction to determine the validity and effect of the plaintiff's special permit pursuant to G. L. c. 240, Section 14A, and G. L. c. 185, Section 1 (j 1/2).

Judgment reversed.