Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; QUIRICO
• Citation: 382 Mass. 283,415 N.E.2d 840
• Parties: The FRAMINGHAM CLINIC, INC. et al. v. ZONING BOARD OF APPEALS OF FRAMINGHAM et al. 1
• Decision Date: 09 January 1981

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415 N.E.2d 840 382 Mass. 283 The FRAMINGHAM CLINIC, INC. et al.
v.
ZONING BOARD OF APPEALS OF FRAMINGHAM et al. ¹ Supreme Judicial Court of Massachusetts, Middlesex. Argued Oct. 6, 1980.
Decided Jan. 9, 1981.

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Aaron K. Bikofsky, Town Counsel, Framingham (Thomas A. Grady, Framingham, with him), for defendants.

[382 Mass. 284] Thomas H. Martin, Boston (Philip A. Mason & Clair A. Carlson, Jr., Boston, with him), for plaintiffs.

Before [382 Mass. 283] HENNESSEY, C. J., and QUIRICO, KAPLAN, LIACOS and ABRAMS, JJ.

[382 Mass. 284] QUIRICO, Justice.

The defendants, who consist of the three members of the zoning board of appeals of the town of Framingham (board of appeals) and that town's building commissioner (building commissioner), appeal from the decision of a Superior Court judge, rendered on the plaintiffs' motion for summary judgment, which annulled a decision of the board of appeals and ordered that a building permit for alterations to premises located at 1319 Worcester Road, Framingham (locus), be issued to The Framingham Clinic, Inc. (Clinic). The plaintiffs consist of a trustee of the S.M.I. Coach Trust, a Massachusetts trust which owns the locus, and the Clinic, which leases it. We granted the plaintiffs' application for direct appellate review. The sole issue presented is whether, on the basis of the materials submitted ² to him pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974), the judge correctly determined that no genuine issue of material fact was presented under the zoning by-law of Framingham (by-law) as to the Clinic's right to use the locus for its contemplated purposes. We hold that he did, and we affirm the judgment.

The facility proposed by the Clinic would provide gynecological services, including first trimester abortions. It would be staffed by nurses and trained counselors as well as medical doctors. Although a final floor plan does not appear on the record, the facility evidently would consist of about six rooms, including office space, a laboratory, a "treatment room" where abortions could be performed, and "recovery rooms" for immediate postoperative care. We assume, in the absence of any sworn statement or allegation to the contrary, that this facility would in all respects satisfy applicable State licensing and regulatory requirements.

[382 Mass. 285] The Clinic has for some time sought a suitable location for such a facility in the suburbs west of Boston. ³ At some time prior to November, 1978, the officers of the Clinic became interested in the suite of offices here in question. It is undisputed that these offices lie in an area of Framingham classified by the town's zoning by-law as a "business district." The Clinic's president accordingly sought from the building commissioner a preliminary determination as to whether the proposed facility would be a use allowable in such a district. With its request for this determination, the Clinic submitted a copy of each of the following documents: (a) its 1976 "Determination of Need Application" which was required to be filed for licensing by the Department of Public Health pursuant to G.L. c. 111, §§ 25B-25H, and (b) a copy of "Proposed Clinic Policies and Procedures," which summarized the Clinic's program, focusing particularly on abortion services. By letter dated November 20, 1978, the building commissioner stated that based upon the materials

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submitted, as well as his conversation with the Clinic's president, he considered the Clinic's proposed use to be a "(b)usiness or professional office," a use permitted as of right by the applicable provisions of the by-law. His opinion was conditioned on the Clinic's "assurance that there will be no significant difference in staffing or operational format in any current application which you may submit." The building commissioner further emphasized the necessity of submitting a formal application for a building permit, as well as an off-street parking plan, and of obtaining certificates of inspection and use prior to occupation of the building.

[382 Mass. 286] On the strength of the building commissioner's preliminary opinion, the plaintiffs proceeded with the purchase and lease of the locus, applied to the commissioner for a building permit, and sought approval of a parking plan by the town's planning board. On December 18, 1978, the Clinic submitted a preliminary floor plan of the proposed facility. The building commissioner requested revisions to bring the plans into compliance with the building code and altered plans were submitted on January 26, 1979. Further revisions were requested on February 20, 1979.

During this interim, the Clinic's plans became known to the public, and opposition to the proposed facility became apparent. On February 27, 1979, a special town meeting was convened to consider an amendment to the by-law, one effect of which would have been to require a special permit from the board of appeals prior to locating any clinic in a business district. See G.L. c. 40A, §§ 9 and 14. This change was rejected.

Following this town meeting, and before the Clinic had submitted final floor plans, the building commissioner indicated that he had reconsidered his initial opinion as to the appropriate classification of the Clinic's proposed use. On March 5, 1979, he wrote to the board of selectmen of Framingham stating the view that "further investigation" would be required prior to taking final action on the Clinic's application for a building permit. This letter noted the inclusion in the Clinic's floor plans of "functional areas not normal to a (p)hysician's (o)ffice," and queried whether the facility would be consistent with the purposes of the by-law, stated in § I B as "to establish such regulations for the uses of premises, as will protect and promote life, health, safety, morals, convenience and general welfare of the Townspeople." For the first time, the building commissioner raised the question whether the Clinic's use would require the granting of a special permit by the board of appeals. On March 12, 1979, the building commissioner notified the board of selectmen of his determination that such a permit would be required. The following day, he informed the [382 Mass. 287] plaintiffs that they would have to obtain the special approval of the board of appeals before a building permit could be issued. In support of his ultimate conclusion that the clinic was not a "professional office" within the meaning of the by-law, he noted the "close 'kinship' ... between hospitals and health care clinics" under certain state regulatory statutes, the proposed new by-law (rejected at the town meeting of February 27) distinguishing "clinics" from "professional offices," and his view that an abortion could not "promote life," an express purpose of the by-law as a whole. ⁴

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[382 Mass. 288] Pursuant to § V D 3 of the by-law and G.L. c. 40A, §§ 8 and 15, the Clinic sought an order from the board of appeals reversing the decision of the building commissioner. On June 22, 1979, after a hearing, the board of appeals voted two-to-one "to support the interpretation of the by-law given by the Building Official." ⁵ As allowed by G.L. c. 40A, § 17, the plaintiffs appealed the board's decision to the Superior Court. In their complaint the plaintiffs requested various forms of relief, including the following: (a) that the decision of the board of appeals be annulled; (b) that the proposed use be declared permissible; (c) that the building commissioner be ordered "to issue a building permit to the Plaintiffs subject to the approval of the Plaintiff's parking plan and subject to a determination by the Building Commissioner that the Plaintiff's proposed modifications comply with the State Building Code"; and (d) that the Superior Court "retain jurisdiction over this matter to ensure that the relief granted herein is not frustrated by further arbitrary, capricious and discriminatory conduct on the part of the defendants." After filing affidavits attesting to the existence of other similar uses in Framingham's business districts, the plaintiffs moved, pursuant to Mass.R.Civ.P. 56, for summary judgment. The defendants submitted counter affidavits. On September 25, 1979, the motion was granted, the judge ruling as follows: "In this case the scope and extent of this proposed abortion clinic's business is set forth in Exhibit 'B'. The proposed locus is within an area zoned as 'Business District'. The intended use is a permitted use within Section III F of the Framingham Zoning By-Law. The contention of the defendants that the plaintiff must apply for a special permit is invalid." [382 Mass. 289] Judgment was entered accordingly on November 29, 1979, granting the four measures of relief requested by the plaintiffs and specified above, and the defendants seasonably appealed therefrom. ⁶

It is useful at this point to review briefly the provisions of the by-law in so far as they may be applicable to the locus. As originally adopted in 1939 and as amended from time to time thereafter, under the authority of the Zoning Act, G.L. c. 40A, §§ 1-17, and its predecessor statutes, the Framingham by-law comprehensively regulates the use of land within the town. The by-law divides the town into six classes of districts, the first two of which are "residence districts" and "business districts." § II A (1) and (2). Uses permitted in a residence district include, among others, a "(p)rofessional office ... within the principal residence of a physician ... provided

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that not more than two other persons are regularly employed therein," and subject to certain space restrictions, § III A (1)(c), and "private and public hospitals and dormitories accessory thereto," § III A (1)(d). Section III F of the by-law sets forth the uses permitted in business districts. Section III F (1)(a) permits "(a)ll uses that are permitted in General Residence Districts but subject to any of...