Needham Pastoral Counseling Center, Inc. v. Board of Appeals of Needham

• Decision Date: 19 September 1990
• Docket Number: No. 89-P-244,89-P-244
• Citation: 29 Mass.App.Ct. 31,557 N.E.2d 43
• Parties: NEEDHAM PASTORAL COUNSELING CENTER, INC. v. BOARD OF APPEALS OF NEEDHAM.
• Court: Appeals Court of Massachusetts

Page 43

557 N.E.2d 43

29 Mass.App.Ct. 31

NEEDHAM PASTORAL COUNSELING CENTER, INC. v. BOARD OF APPEALS OF NEEDHAM.

No. 89-P-244.

Appeals Court of Massachusetts,

Norfolk.

Argued March 15, 1990.

Decided July 19, 1990.

Further Appellate Review Denied Sept. 19, 1990.

Thomas F. O'Hare, Wellesley, for plaintiff.

Deirdre D. Donohue, Boston, for defendant.

Earl W. Trent, Jr., Valley Forge, Pa., of Pennsylvania, for The American Baptist Churches in the U.S.A., amicus curiae, submitted a brief.

Before WARNER, C.J., and KASS and JACOBS, JJ.

KASS, Justice.

Needham Pastoral Counseling Center, Inc. (NPCC), proposes to remodel 864 square feet of space in a church building as offices and counseling rooms for a psychological counseling center with a spiritual component. The question is whether the proposed use is for "religious purposes" within the meaning of G.L. c. 40A, § 3, as inserted by St.1975, c. 808, § 3, which exempts from zoning regulation "the use of land or structures for religious purposes or for educational purposes...." ¹ We conclude that what NPCC plans to offer resembles a mental health clinic more than religious activity. A building permit was, therefore, rightly denied.

NPCC claims entitlement to a building permit as matter of right on the basis of the religious purposes exemption. ² The church structure in which NPCC wishes to locate is in a single residence B district which excludes business. When the inspector of buildings of Needham denied a building permit (he withheld his approval because he thought "the proposed use is not unlike any other business use"), NPCC took an appeal under G.L. c. 40A, § 13, to the board of appeals. That body, after hearing, determined that the NPCC proposal was essentially a professional service establishment and, thus, not permitted at the locus. Judicial review pursuant to G.L. c. 40A, § 17, followed. A judge of the Superior Court ruled that the board's decision did not exceed its authority.

Before examining the facts, in which the answer to the question presented lies, it will be useful to state the principles of law which apply to those facts.

No special weight attaches to either the conclusions of law or findings of fact of a board of appeals on judicial review under G.L. c. 40A, § 17. The trial judge hears the matter de novo and "determine[s] the legal validity of the decision of the board upon the facts" which the judge finds. Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295, 285 N.E.2d 436 (1972). DiGiovanni v. Board of Appeals of Rockport, 19 Mass.App.Ct. 339, 348, 474 N.E.2d 198 (1985). This is not a case where the judge owes deference to the discretion exercised by the board. See Fitchburg Hous. Authy. v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869, 871, 406 N.E.2d 1006 (1980). Compare Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass.App.Ct. 483, 487-488, 395 N.E.2d 880 (1979).

By limiting the restrictions which municipalities may place on use for religious purposes, the Legislature sought to insure that a city or town could not "exercise its preferences as to what kind of ... religious denominations it will welcome...." The Bible Speaks v. Board of Appeals of Lenox, 8 Mass.App.Ct. 19, 33, 391 N.E.2d 279 (1979). Southern N.E. Conference Assn. of Seventh-Day Adventists v. Burlington, 21 Mass.App.Ct. 701, 705-706, 490 N.E.2d 451 (1986).

What the phrase "religious purposes" means is a question of law for the court, Kurz v. Board of Appeals of N. Reading, 341 Mass. 110, 112, 167 N.E.2d 627 (1960), "to be determined by the ordinary principles of statutory construction." Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283, 290, 415 N.E.2d 840 (1981). As was the case with "educational use" in the Kurz case and "agricultural use" in Moulton v. Building Inspector of Canton, 312 Mass. 195, 198, 43 N.E.2d 662 (1942), the words to be construed are everyday ones and should be interpreted in accordance with common usage, without artificial enlargement or contraction, and free from the court's "own conceptions of expediency." Commonwealth v. S.S. Kresge Co., 267 Mass. 145, 148, 166 N.E. 558 (1929). Worcester County Christian Communications, Inc. v. Board of Appeals of Spencer, 22 Mass.App.Ct. 83, 89, 491 N.E.2d 634 (1986). Other legal contexts and dictionary definitions are helpful. Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. at 290, 415 N.E.2d 840. Building Inspector of Mansfield v. Curvin, 22 Mass.App.Ct. 401, 402-403, 494 N.E.2d 42 (1976).

Religious purpose, in a dictionary sense and without judicial gloss, means something in aid of a system of faith and worship, usually of a higher unseen power entitled to reverence. See the discussion of the noun "religion" and the adjective "religious" in The Oxford English Dict. 2481 (compact ed. 1971) and Webster's Third New Intl. Dict. 1918 (1968). Fidelity to a set of principles or rituals is a central characteristic.

In the judicial universe, attempts at definition of "religion," as one might expect, have been concentrated in cases involving that portion of the First Amendment to the United States Constitution which provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Early decisions resembled the dictionary approach. See, e.g., Davis v. Beason, 133 U.S. 333, 342, 10 S.Ct. 299, 300, 33 L.Ed. 637 (1890), and the dissent of Chief Justice Hughes in United States v. Macintosh, 283 U.S. 605, 633-634, 51 S.Ct. 570, 578-79, 75 L.Ed. 1302 (1931) ³: "The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation." Later efforts have been more expansive. A deity was no longer of the essence. Torcaso v. Watkins, 367 U.S. 488, 495 n. 11, 81 S.Ct. 1680, 1684 n. 11, 6 L.Ed.2d 982 (1961). In United States v. Seeger, 380 U.S. 163, 166, 176, 85 S.Ct. 850, 854, 859, 13 L.Ed.2d 733 (1965), the court described religion as a "belief that is sincere and meaningful [and] occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God" of conventional religious systems. Ultimate concern about life, death, and relation to the universe are among the ingredients. Malnak v. Yogi, 592 F.2d 197,208 (3d Cir.1979). The leading cases are discussed and a synthesis assayed in Note, Toward A Constitutional Definition of Religion, 91 Harv.L.Rev. 1056 (1978). See also Tribe, American Constitutional Law § 14-6 (2d ed. 1988).

It is all very heady business and defies precision, but we emerge with the understanding that what is religious requires a system of belief, concerning more than the earthly and temporal, to which the adherent is faithful. Fortunately, the subject at hand is land use, not philosophy, and, in the more prosaic context of the former, the puzzle begins to unravel.

We may now turn to the facts. ⁴

NPCC had its genesis in 1976 with the wish of ministers of the Congregational Church of Needham to make pastoral counseling available at their church. To extend its reach beyond that parish to the wider Needham community, the pastoral counseling practice ⁵ transformed itself into an ecumenical center, moved from the Congregational Church, and affiliated with the Andover-Newton Theological School, where it is currently housed.

By way of underscoring the continuity between pastoral counseling and church activity, NPCC undertook to relocate in a church and made arrangements to that end with the First Baptist Church in Needham ("the church"). The legal relationship worked out between the church and NPCC was that of landlord and tenant. NPCC would lease the 864 square-foot locus, so far as appears at a fair market rent, for ten years and remodel it into a counseling room, a director's office, and a waiting room. There would be six counselors and a director. Those six counselors would see--as they did at the time of trial--approximately 120 clients per week. Counseling sessions last about fifty minutes, for which NPCC charges fees from $35 to $50 per session. ⁶ After deducting overhead costs (e.g., rent, the salary of the director), and, in the case of interns from Andover-Newton, tuition costs, NPCC turns over fees collected to the individual counselors, who are independent contractors, not employees.

Among the life problems which pastoral counselors treat are depression, grief, marital difficulties, substance abuse, job stress, loneliness, and absence of meaning, purpose, or direction in life. To those ills they bring to bear psychological training in such therapeutic techniques as dream interpretation, interpretation of intrapsychic conflict, transference interpretation, clarification, and confrontation. The counselors see themselves as "doing primarily long-term insight-oriented psychotherapy and shorter-term systems therapy." Folded into these secular psychological techniques, there is a layer of theological content. The counselors, who are ordained clergy or similarly trained in theology, believe that reconciliation with God, a minimum of separation from God, and a maximum of devotion to God's will are the means to alleviation of anxiety and internal conflict. As healing, guiding, and reconciling souls with God are significant components of pastoral counseling, major faiths recognize pastoral counseling as a form of ministry--much as service as a chaplain.

In the spirit of ecumenicism, NPCC is open to the general public; its clientele is not limited to Baptists, Christians, or even believers in God. By design, clients are not necessarily paired with counselors of their own religious persuasion. Counselors do not espouse to their clients any particular religious doctrine, and, in accordance with the code of ethics of the American Association of Pastoral Counselors, they do not proselytize. Atheists or people with no religious beliefs may be...