Fitchburg Housing Authority v. Board of Zoning Appeals of Fitchburg

• Decision Date: 12 June 1980
• Citation: 380 Mass. 869,406 N.E.2d 1006
• Parties: FITCHBURG HOUSING AUTHORITY et al. 1 v. BOARD OF ZONING APPEALS OF FITCHBURG et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1006

406 N.E.2d 1006

380 Mass. 869

FITCHBURG HOUSING AUTHORITY et al. ¹ v. BOARD OF ZONING APPEALS OF FITCHBURG et al. ²

Supreme Judicial Court of Massachusetts, Worcester.

Argued April 9, 1980.

Decided June 12, 1980.

William Link, III, Fitchburg (Charles E. Cashman, Fitchburg, with him), for plaintiffs.

Timothy S. Hillman, Fitchburg, for defendants.

Francis X. Bellotti, Atty. Gen., Carl Valvo, Asst. Atty. Gen., and Ann Futter, legal intern. to the Atty. Gen., for the Department of Mental Health, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and ABRAMS, JJ.

WILKINS, Justice.

The dispositive issue in this case is whether a facility, proposed to be operated by the North Central Massachusetts Mental Health Association, Inc. (Association), on premises owned by the Fitchburg Housing Authority (Housing Authority), is a public educational use which the Fitchburg zoning ordinance may not forbid. The Association proposes to operate 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. The Association relies on that provision in G.L. c. 40A, § 2, as amended through St.1959, c. 607, § 1, that provides that no zoning ordinance "which prohibits or limits the use of land . . . for any educational purpose which is . . . public shall be valid." ³ See Attorney Gen. v. Dover, 327 Mass. 601, 603, 100 N.E.2d 1 (1951). We conclude that the use that the Association intends to make of the premises is a use for a public educational purpose that cannot be prohibited or limited by the provisions of the Fitchburg zoning ordinance.

On May 8, 1978, the Housing Authority applied for a permit to convert a residential building on Prospect Street for use as a community residence. The superintendent of buildings ruled that a community residence was not permitted in the Residence B zoning district in which the premises lay. On May 10, 1978, the Association and the Housing Authority appealed to the city's board of zoning appeals seeking "authorization to operate a residential educational and rehabilitation facility for adults with histories of psychiatric difficulties." The appeal was not founded on a claim that a variance should be granted from the provisions of the zoning ordinance but rather on the theory that the proposed use was permitted as a matter of law. The appeal relied on (1) the language of the zoning ordinance that permitted "Private and Public Schools" in a Residence B zoning district and (2) the provisions of § 2 of The Zoning Enabling Act.

The board of zoning appeals heard the matter on June 5, 1978, and rendered a decision denying the application on August 2, 1978 (eighty-four days after the appeal was filed). The board concluded that the proposed use was not a school but did not explicitly pass on the question whether the statutory protection provided by § 2 was applicable to the Association's proposed use. The Association and the Housing Authority appealed to the Superior Court, combining reliance on § 2 with a claim that, because the board of zoning appeals did not act on the application within seventy-five days of the filing of the appeal, the application must be deemed to have been granted pursuant to § 15 of The Zoning Act. ⁴

The issues for decision in the Superior Court were questions of law on the facts found by the judge. No deference to the judgment or discretion of the local zoning board was required. Opinions relied on by the zoning board, defining the role of a Superior Court judge on an appeal from the granting of a variance or a special permit, are inapplicable.

We summarize the basic facts found by the judge. The proposed facility would be located in a single-family house, formerly occupied by a physician, and would be operated to work with chronically disturbed people who have been in mental institutions. These people would require medical treatment ⁵ 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." The basic purpose would be "to train people to rid themselves of bad habits and teach them habits so that they would be qualified to live independently by themselves in a community." There would be full-time house managers, whose qualifications would include a bachelor's degree in human services. None of the teachers would be certified under G.L. c. 71, § 38G. In selecting personnel, the emphasis would not be on teaching experience or qualifications, but more on social and psychological training and abilities.

The judge concluded that the proposed facility would not be a school "but a medical facility." ⁶ He acknowledged the claim that the use was an exempt educational use but did not discuss the question in determining that the facility would not be a school. Judgment was entered that no modification of the decision of the board of zoning appeals was required. We transferred here on our own motion the appeal of the Association and the Housing Authority.

The central issue in this case is one of law, not of fact. The judge's findings are based on the Association's representations at trial concerning its planned use of the premises. The crucial question is whether the proposed use is a use for an "educational purpose," as that term is used in G.L. c. 40A, § 2. ⁷ If the judge's characterization of the proposed facility as a "medical facility" is a conclusion that, as a matter of law, the proposed use would not be "educational," it must be reversed as an error of law. See New Eng. Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 674, 363 N.E.2d 526 (1977). To the extent that it is a finding of fact, it must be set aside as "clearly erroneous." Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). See Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 161, 360 N.E.2d 1051 (1977). The fact that many of the residents of the facility will have been residents of mental institutions and will be taking prescription drugs does not negate its educational purpose or make its dominant purpose medical. There will be no nurses or doctors regularly in attendance at the facility. There is no indication that the residents will be a threat to themselves or to the public. ⁸

The fact that the residents will be adults does not deprive the use of its educational character. See Cummington School of Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 604, 369 N.E.2d 457 (1977) (tax case) (school of the arts largely for adults); Assessors of Lancaster v. Perkins School, 323 Mass. 418, 422, 82 N.E.2d 883 (1948) (tax case) (some adults received the benefits of the school). Nor is it controlling that the nature of what is taught is not within traditional areas of academic instruction or that the instructors will not be certified by the Commonwealth. See Cummington School of Arts, Inc. v. Assessors of Cummington, supra, 373 Mass. at 603, 369 N.E.2d 457, and cases cited. See also Harbor Schools, Inc. v. Board of Appeals of Haverhill, 5 Mass.App. 600, 603, 366 N.E.2d 764 (1977), discussed infra. The fact that the facility will provide residential accommodations does not interfere with its educational use. President & Fellows of Harvard College v. Assessors of Cambridge, 175 Mass. 145, 146-147, 55 N.E. 844 (1900). Trustees of Phillips Academy v. Andover, 175 Mass. 118, 125, 55 N.E. 841 (1900). The question remains whether the dominant activity will be educational.

There is respectable authority that a residential facility for the education of emotionally disturbed children is an educational use. Our Appeals Court so held in Harbor Schools, Inc. v. Board of Appeals of Haverhill, supra, dealing with § 2 of The Zoning Enabling Act. In that case, the educational program offered by the facility involved indoctrination in traditional academic subjects and fulfilled the public policy expressed in c. 766 of the Acts of 1972 concerning the education of children with special needs. Id. 5 Mass.App. at 606, 366 N.E.2d 764. State certification of its teachers apparently was not required. Id. at 603, 366 N.E.2d 764. A residential facility approved by a State department of education for the education of children with mild emotional disturbances, offering a curriculum comparable to that afforded in the public schools, has been held to be a "school" within the meaning of the word in the local zoning regulations. Armstrong v. Zoning Bd. of Appeals of Washington, 158 Conn. 158, 257 A.2d 799 (1969). The circumstances were substantially similar and the result was the same in Wiltwyck School for Boys, Inc. v. Hill, 11 N.Y.2d 182, 227 N.Y.S.2d 655, 182 N.E.2d 268 (1962). In Areba School Corp. v. Mayor & Council of Randolph, 151 N.J.Super. 336, 341, 376 A.2d 1273 (1977), and the court rejected as clearly erroneous a finding that a residential school for emotionally disturbed children, designed to meet the educational obligations of local school boards, was a therapeutic community with merely an ancillary educational component.

The present case concerns the issue of what is an educational use in circumstances not as closely related to the fulfillment of traditional educational goals as were the circumstances in the Harbor Schools case. This court, however, has long recognized "education" as "a...