Bible Speaks v. Board of Appeals of Lenox

• Decision Date: 03 July 1979
• Citation: 8 Mass.App.Ct. 19,391 N.E.2d 279
• Parties: The BIBLE SPEAKS v. BOARD OF APPEALS OF LENOX (and four companion cases) 1
• Court: Appeals Court of Massachusetts

Page 279

391 N.E.2d 279

8 Mass.App.Ct. 19

The BIBLE SPEAKS v. BOARD OF APPEALS OF LENOX (and four companion cases)¹

Appeals Court of Massachusetts, Berkshire.

Argued April 25, 1979.

Decided July 3, 1979.

[8 Mass.App.Ct. 20] Hugh C. Cowhig, Town Counsel, Lee (David O. Burbank, Pittsfield, with him), for defendants.

Andrew T. Campoli, Pittsfield, for plaintiff, submitted a brief.

Before ARMSTRONG, GREANEY and KASS, JJ.

GREANEY, Justice.

These appeals raise the question whether a town may require an application for a special permit for all new religious and educational uses, or changes in such uses, in residential districts consistent with the provisions of G.L. c. 40A, § 3, as appearing in St.1975, c. 808, § 3. ² Specifically, we must decide whether the plaintiff, a sectarian educational institution, should have been granted building permits for certain uses attendant to its softball field, which is utilized by its elementary, high school, and college students, without the necessity of first applying under the local by-law for a We first summarize the facts and procedural history necessary to an understanding of these issues. The Bible Speaks is a nonprofit religious and educational corporation organized under the laws of the State of Maine which has filed a certificate as a foreign corporation doing business in the Commonwealth under the provisions of G.L. c. 181, § 4. ³ On its campus in Lenox (formerly the property of a private nonsectarian educational institution) it conducts a school for grades kindergarten through twelve (approved by the Lenox School Committee pursuant to the provisions of G.L. c. 76, § 1) and a three-year college to prepare students for the ministry. ⁴ On May 7, 1976, the town of Lenox (town) at its annual town meeting accepted the provisions of the new zoning enabling act, St.1975, c. 808 (hereinafter c. 808). At the same meeting the town amended its zoning by-law to include a section covering "Educational/Religious Use" ⁵ which imposed a limitation On May 25, 1977, the plaintiff applied to the building inspector for a building permit to erect hooded lights thirty-five feet high ⁸ on a softball field which is part of its campus.

special permit. We must also determine whether the Lenox board of appeals (board) could properly have conditioned the grant of permission to change the use of three of the plaintiff's existing buildings into classroom and dormitory space, either upon restrictions that affect the entire educational campus or upon restrictions that concern buildings which are not the subject of the special permit applications. All of these questions require examination of the extent to which a municipality by way of its zoning by-law may regulate sectarian and nonsectarian educational uses, a question that has remained relatively dormant since the decision in Radcliffe College v. Cambridge, 350 Mass. 613, 215 N.E.2d 892 (1966) that all educational and religious purposes "may be permitted as a special exception only if the (board) so determines." ⁶ On July 23, 1976, the plaintiff applied to the board for a special permit to change the use of one of its buildings from a gymnasium to two classrooms for its college; on August 3, 1976, it further sought to change the use of two other buildings from classrooms and a chapel to small dormitories. On October 15, 1976, the board granted all three special permits, subject to the conditions[8 Mass.App.Ct. 23] set out in full in the margin. ⁷ The board went on to state in its decisions that "(t)he petitioner has complied with the first two paragraphs of section 9.18 by filing" plans and information concerning the total operation of its campus as part of the applications for special permits for changes in use of the three existing buildings. The plaintiff filed a timely action in the Superior Court seeking review of the decisions and specifically objecting to the four general conditions (conditions 4A, B, C & D in the board's decision, note 7, Supra ) upon which the special [8 Mass.App.Ct. 24] permits were granted in all three change-of-use cases. The building inspector refused to grant the permit. On the same date, the plaintiff requested a building permit to convert an existing shed near its ballfield into a snack bar primarily for the benefit of its students and others using the field. This request was also denied. The plaintiff appealed from both actions of the building inspector to the board. On August 29, 1977, the board issued separate decisions on the two appeals which are reproduced, insofar as material, in the margin, ⁹ upholding the [8 Mass.App.Ct. 25] building inspector's denial of building permits on the bases that a change in a religious or educational use required application for a special permit and that the operation of the softball field at night was not "reasonably necessary for the functioning of the religious or educational uses." The plaintiff brought separate complaints against the building inspector and the board in both the snack bar and lights cases testing the validity of these actions.

Those actions were consolidated for trial along with the pending complaints involving the three change-of-use cases. A district court judge sitting in the Superior Court under statutory authority ruled: (1) that the board had no authority to grant or deny the permit for the snack bar (as a consequence he ordered the board to refrain from interfering with the operation of the plaintiff's snack bar); (2) that the denial of a permit to erect the lights was within the power of the board (as a result he affirmed the decision of the board); and (3) that the specific conditions imposed on the special permits for change of use of the three existing buildings were valid, as restatements of the substance of the plaintiff's applications, but that the remaining four general restrictions were attempts to impose limitations on the plaintiff's general educational activities and, as such, exceeded the authority of the board (as a result he ordered these conditions annulled). Judgments were entered accordingly. The board and the building inspector took appeals from the judgments in the snack bar cases; the board also appeals from the judgment in the change-of-use cases, and the plaintiff appeals from the judgment in the lights cases.

In substance, we are content with the judge's rulings that the plaintiff may utilize its existing shed as a snack bar and that the board exceeded its authority in imposing general restrictions upon the plaintiff as preconditions to a change of use of its 1. Applicability of G.L. c. 40A. At the outset we consider the plaintiff's contention that it is entirely exempt from the effect of the zoning enabling act, G.L. c. 40A, as formulated through c. 808, and as a result, that it is also exempt from any local zoning requirements enacted pursuant to c. 40A. It bases this contention in part upon the language which appears in c. 808, § 6, which provides, insofar as material, that "(t)he provisions of (G.L. c. 40A), as amended . . . shall not be deemed to affect any church or other facilities used for religious purposes in existence or under construction prior to (June 30, 1978)." It claims that the provisions of § 6 are designed to continue in effect the prior versions of G.L. c. 40A, which exempted religious and educational uses from zoning control under local by-laws. ¹⁰ In further support of this argument the plaintiff directs our attention to cases elsewhere which it cites as persuasive authority for the proposition that uses analogous to those present on its campus are primarily religious uses, exempt from any form of local zoning control. These decisions are four in number: Bishop v. Ashton, 92 Idaho 571, 574-575, 448 P.2d 185 (1968), which held that a recreational complex built by a religious organization on the same grounds as its church building was within the scope of the term "church" in an ordinance permitting church use in a residential zone; Slevin v. Long Island Jewish Medical Center, 66 Misc.2d 312, 317-319, 319 N.Y.S.2d 937 (Sup.Ct.1971), which determined that a drug rehabilitation center located in a church parish house was a religious use; Diocese of Rochester v. Planning Bd. of Brighton, 1 N.Y.2d 508, 522-526, 154 N.Y.S.2d 849, 136 N.E.2d 827 (1956), which concluded that the decision of a local zoning board denying a permit to erect a church and a parochial school in a residential zone was arbitrary and unreasonable, because a church could not be unreasonably excluded from a residential zone, and a parochial The plaintiff's argument, reduced to basics, appears to draw on three premises: (1) that it is primarily a religious enterprise because its principal function is to educate and train people for the ministry; (2) that c. 808, § 6, is the legislative restatement of the Dover Amendment and exempts projects under construction by religious organizations if started prior to June 30, 1978, irrespective of the town's earlier acceptance of c. 808; and (3) that because its oar was in the water on all the proposed activities in issue prior to June 30, 1978, the town could not impose any restrictions on their completion. We are not persuaded by this argument.

buildings. We disagree with the judge's conclusion that the board's decision as to the softball field lights was proper. Our disposition of the issues follows a different route from that taken by the judge below and is based on the conclusion that the local by-law exceeds tolerably permissible limits in its regulation of educational uses school was to be permitted wherever public schools were allowed; and State ex rel. Covenant Harbor Bible Camp v. Steinke, 7 Wis.2d 275, 281, 96 N.W.2d 356, 361 (1959), which held that a bible camp constituted a permissible use under an ordinance which authorized "churches . . . 'boarding-and-lodging parochial schools' (and) 'organized quasi-public recreational * * * buildings and grounds'," and became a...