Trustees of Tufts College v. City of Medford

(concurring in part and dissenting in part). Statute 1950, c. 325, § 1, entitled “An Act prohibiting discriminatory zoning by-laws and ordinances,” amended G. L. c. 40, § 25, a predecessor of G. L. c. 40A, § 3, by adding the following words: “No by-law or ordinance which prohibits or limits the use of land for any church or other religious purpose or which prohibits or limits the use of land for any religious, sectarian or denominational educational purpose shall be valid.” In Attorney Gen. v. Dover, 327 Mass. 601 (1951), the court held that a town of Dover zoning by-law prohibiting the erection, alteration, or use of a building in a residential district for a sectarian educational use was invalid under St. 1950, c. 325, § 1. That act subsequently became known as the Dover Amendment. The Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19 , 27 n.10 (1979). Statute 1950, c. 325, § 1, was susceptible of an interpretation that would invalidate any zoning ordinance or by-law (regulation) that would have imposed on a sectarian, educational use any requirement concerning bulk and height of structures, yard size, lot area, setback, open space, building coverage or parking area. Indeed, that construction appears to have been urged by the plaintiff, and accepted by the Land Court judge, in Radcliffe College v. Cambridge, 350 Mass. 613, 614 (1966) (“The college claims to be exempt from art. VII, § 2 [an ordinance requiring off-street parking], by reason of G. L. c. 40A, § 2, as amended through St. 1959, c. 607, § 1, which provides ‘that no ordinance or by-law which prohibits or limits the use of land for any church or other religious purpose or for any educational purpose which is religious, sectarian, denominational or public shall be valid”).

By St. 1975, c. 808, § 3, the Legislature struck out G. L. c. 40A and inserted a new chapter 40A in its place. The new c. 40A provides in relevant part, “No zoning ordinance or by-law shall . . . prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politic or by a religious *768 sect or denomination, or by a nonprofit educational corporation; provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements.” That provision, were it to be construed without reference to the proviso, would present the same ambiguity that was present in the Dover Amendment, St. 1950, c. 325, § 1. Absent the proviso, the language of the statute could fairly be construed to mean that any requirement as to bulk and height of structures, yard size, lot area, setback, open space, building coverage or parking area, imposed on parcels of land devoted to religious or educational uses, is unauthorized. The obvious purpose of the proviso is to make clear that such requirements, if not intentionally or in practical effect discriminatory against the protected uses, and if rationally related to the purposes of zoning regulations enumerated in St. 1975, c. 808, § 2A, are authorized, valid, and enforceable without reference to the use to which a particular parcel is put. 1 - 2

*769 Nothing in G. L. c. 40A suggests that the Legislature intended to discriminate in favor of religious and educational uses. Yet, if the court is right in concluding that, in certain circumstances, a trial judge or appellate court must exempt a parcel, which is devoted to a protected use, from zoning regulations that are binding on parcels devoted to all other uses, such discrimination results. Surely, if parcels not committed to protected uses must comply with zoning regulations concerning off-street parking, setback of buildings, lot area and the like, regardless of the difficulty of compliance, but an educational institution is exempt if it demonstrates that “compliance would substantially diminish or detract from the usefulness of a proposed structure, or impair the character of the institution’s campus, without appreciably advancing the municipality’s legitimate concerns,” or that compliance would result in “excessive cost . . . without significant gain in terms of municipal concerns,” as the court states, ante at 759-760, discrimination occurs of a type that is the reverse of the discrimination targeted by the Dover Amendment.

General Laws c. 40A, § 3, is clear. No zoning ordinance or by-law may “prohibit, regulate or restrict the use of land or structures for . . . educational purposes on land owned or leased by . . . a nonprofit educational corporation” like Tufts College, but “such land or structures may be subject to reasonable regulations [that is, reasonable regulations, although not mandated, are authorized, and such land or structures are subject to them] concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements.” Nothing in chapter 40A authorizes a judge or a court to declare facially reasonable non-discriminatory regulations inapplicable to a particular parcel, or to exempt a particular parcel from them, whenever the judge or court, acting as a master planner, decides that the “application of the requirements to a specific project in a particular setting *770 [would not] further [] legitimate municipal concerns to a sufficient extent to warrant” application and enforcement of the regulations. Ante at 764.

The challenged requirements of the ordinance in this case are reasonable. They do not discriminate against statutorily protected land uses either by expressed intention or in practical operation. The ordinance is use-neutral. Furthermore, the ordinance is rationally related to legitimate municipal zoning objectives. No one appears to contend otherwise. In my view, contrary to the thrust of the court’s opinion, the court would have no right to declare the challenged requirements inapplicable to the Tufts College property. For that reason, and not for the reasons articulated by the court, I am satisfied that the challenged requirements apply in this case. Accordingly, to the extent that the court orders numbered paragraphs 3, 4 and 5 struck from the judgment, thereby achieving that result, I concur with the order. However, because the order striking language from paragraph 2 of the judgment is premised incorrectly, I believe, on the idea that future applicability of the challenged regulations must depend on facts yet to be developed and on a “balancing” of the extent of the imposition on the use represented thereby compared to municipal concerns, I dissent from the court’s order insofar as it strikes language from paragraph 2 of the judgment.

Appendix.

HOUSE - No. 5009

“1. Dover Amendment. It is unfortunate that the present state of the law is such that some communities may have legitimate doubts about the validity of regulations which would impose reasonable controls on institutions presently covered by the Dover amendment. The Department would encourage the use of such control where essential to the well-being of the adjacent neighborhood, and where the regulation will not seriously jeopardize the mission of the protected institutions. Thus, the Department proposes to clarify the present language so as to achieve the aims of the general court in passing the original amendment while at the same time precluding unwise restrictions on the power of the communities to regulate the land use activities of churches and educational institutions. The pro *771 posed language, for example, would specifically authorize the imposition of reasonable regulations concerning density or intensity of occupancy, bulk and height [of] structures, yards and setbacks, as well as limitations upon the location of assessory uses which traditionally have tended to be detrimental to adjacent property. Ideally, this should be accomplished by adopting regulations specifically designed to apply to uses protected by the Dover Amendment located in otherwise restricted zones, thus avoiding the problem of attempting to apply the same bulk regulations to the protected uses as ordinarily apply to other permitted uses in the zone. For example, instead of attempting to apply residential dimensional regulations to churches or schools located in a residential zone (See, Sisters of the Holy Cross v. Town of Brookline, 347 Mass. 486 [1964]) the by-law or ordinance should establish dimensional regulations specifically applicable to churches or schools located in such zones.”

The court incorrectly states, ante at 758 n.6, that “[¡]f the approach suggested by the dissent is followed, a set of facially neutral zoning requirements could be adopted that would, in practice, prevent almost any educational use of land.” To the contrary, if the approach suggested by the dissent were to be followed, zoning regulations, such as those at issue in Sisters of the Holy Cross of Massachusetts v. Brookline, 347 Mass. 486 (1964), that would “in practice, prevent almost any educational use of land” would, for that very reason, be discriminatory against a protected use, and would therefore be unauthorized (invalid).

The court also states, ante at 758 n.6, that “[i]n maintaining that facially neutral zoning requirements automatically can be applied to an educational use, the dissent fails to take into account” Report, 1972 House Doc. No. 5009. It is true that I do not consider that piece of legislative history significant. “Only if the statute is ambiguous, or couched in terms that suggests that [the court] do so, [does the court] look beyond the express statutory language.” Pobieglo v. Monsanto Co., 402 Mass. 112, 116 (1988). Neither condition for looking beyond the express statutory language is present here. However, even if one were to consider Report, 1972 House Doc. No. 5009, it would not suggest that the Legislature intended by St. 1975, c. 808, § 3, to discriminate in favor of protected uses with respect to parking and setback and similar restrictions. The relevant rec *769 ommendation contained in the Report at page 26 may be found in the appendix to this opinion.