# Petition for Writ of Certiorari — Boyajian v. Gatzunis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1610%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 531 U.S. 1070 ## Text ( LJ ree L E D : 00 459 SEP 2 9 ong No. 00-__ has? In The Supreme Court of the United States ¢ MARGARET BOYAJIAN, CHARLES COUNSELMAN, AND JEAN DICKINSON, Petitioners, versus THOMAS GATZUNIS, BUILDING INSPECTOR OF THE TOWN OF BELMONT, ET AL., Respondents. ¢ On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The First Circuit ¢ PETITION FOR A WRIT OF CERTIORARI 4 Mark A. Wutrtez, Esa. *Marci A. HamItton, Esq. O’Brien & Wuite, P.C. 40 Washington Square 50 Congress Street South Boston, Massachusetts 02109 New York, New York (617) 248-2345 10012 (212) 992-8824 G. MIcHAEL Peirce, Esa. (212) 995-4659 (fax) MoFENSON & NICOLETTI Three Newton Executive Park Newton, Massachusetts 02162 *Counsel of Record (617) 964-4900 hamilton02@aol.com COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 pe QUESTIONS PRESENTED 1. Whether the Massachusetts Dover Amendment, Mass. Gen. Laws ch. 40A § 3 (1997), which forbids local communities from applying zoning ordinances or by-laws that “prohibit, regulate, or restrict the use of land or structures for religious purposes,” is not a permissible accommodation of religion, but rather a direct benefit for religion that violates the Establishment Clause of the First Amendment. 2. Whether the Belmont Zoning By-Law, which car- - ries out the mandate of the Dover Amendment, violates the Establishment Clause. ii TABLE OF CONTENTS Page COURS UAIUD PIRMOOGINEME? 0 osciecccccesenseseaensvn i re IIs xs cawankesaskentdanapeawaadances 1 JURISDICTION ..... (andes PROBS ARS RENO TS Oe a ee 1 STATUTES AND CONSTITUTIONAL PROVISIONS ey | Ber riper som pr cere Ae ey 1 SEATEOAEINE GOP THEE GIGI displacement of animals, shadow studies, traffic analysis, and eccle- siastical architecture. Ultimately, the only issue to be decided by the Board relative to the Original Application was whether to allow the Church relief to permit the Church to build the Tem- ple with six steeples, the heights of which would exceed 72 feet. Necessary to the Board’s consideration were the extent of the Town’s reasonable regulation under G.L. c. 5 The question of who owns the access road (Frontage Road) abutting the Church property was linked to the question of a curb cut permit. If the Commonwealth owns the fee, the curb cut permit would be issued by the state and the provisions of MEPA might apply. The material submitted to the Board by the Church suggests that the Town owns the access road. Historically, the Town has disputed that conclusion and the Neighbors raised the issue of ownership at the public hearings. . The Board is not a Land Court and is not empowered to decide issues of ownership or boundary disputes. However, based on the materials in the record of this proceeding, the Board has determined that the Church is entitled to the relief it has applied for and should be permitted to build the temple according to the plans submitted to the Board. Provided the final plans submitted to other Town officials with respect to access to the Property are in accordance with the plans reviewed and approved by the Board and in all other respects in compliance with other municipal regulations, the Board sees no reason that other Town permits, including curb cut permits, shall not be issued. Someone wishing to challenge the Church’s right to access its Property in the manner presented to the Board must do so in another forum. 57a 40A, §3, which, as explained below, deals with the appli- cation of zoning laws to religious uses, the interplay of G.L. c. 40A, §3 with Section 7.4.2 of the Bylaw which allows the Board to grant special permits for height of projections like steeples, and the extent and exercise of the Board’s authority to approve a specific steeple height greater than the Bylaw dimensional norm. On December 3, 1996, following the submission of detailed memoranda from the LDS Church and the Oppo- sition, the Board conducted its public deliberations. All five members of the Board decided that limiting steeple height to twelve feet above building height (the by-right limit imposed by the Bylaw) would be unreasonable and therefore that the LDS Church was entitled to relief from the Bylaw. However, one member of the Board felt that the specific relief sought in the Church’s Original Appli- cation was excessive and voted against the specific relief sought in the Church’s Original Application was exces- sive and voted against the specific relief sought in the Original Application. The remaining four members, a sufficient number to grant relief, voted to approve the Original Application with conditions. What follows sets forth the Board’s findings and reasoning with respect to the Original Application. Much of the board’s reasoning applies to the Amended Applica- tion as well as to the Original Application. The substance of the Amended Application and the Board’s vote thereon are set forth at pages 21 through 27. 58a THE RELIEF REQUESTED In both the Original and the Amended Applications, the LDS Church has asked for two types of zoning relief: (1) a special permit under Section 4.2.2 of the Bylaw to permit the height of the uninhabited steeples to be in excess of that permitted by right under the Bylaw and (2) a determination that the height restriction in the Bylaw should not be applied to the Temple under G.L. c. 40A, §3. The Church and the Neighbors addressed both issues at the public hearings. For reasons set forth below, the Board feels the seminal issue involves G.L. c. 40A, §3 and that this issue should be addressed first. HEIGHT REGULATION UNDER THE BYLAW The height of structures in Belmont is addressed in the Intensity Regulations and the Schedule of Dimensional Regulations (Section 4.2) (the “Schedule”) contained in the Bylaw. Reference to the Schedule shows that the “Maxi- mum Building Height” varies, both in feet and number of stories, according to the district and is also affected by the ability to set buildings farther back from street and lot lines than the required minimums. Section 4.2 of the Bylaw provides that, in an SR-A district, building height is limited to 36 feet and 2 1/2 stories. Footnote 5 to the Schedule allows greater build- ing height if a structure is set back from lot and street lines more than ten (10) feet in excess of the Bylaw’s setback requirements. However, Footnote 5 of the Sched- ule also states that, even with greater setbacks, building 59a height cannot exceed 60 feet or 4 stories.© The Church has set its Temple back sufficiently on an unusually large (for the district) lot so as to make 60 feet the allowable build- ing height for its building. Simply put, the Church needs no zoning relief to build to a building height of 60 feet. Footnote 1 to the Schedule says Chimneys, towers and other projections not used for human occupation may exceed the height limitations herein provided that, . . . any such projection above the building height exceeding 10 feet or 20 percent of the building height, whichever is greater, shall be allowed by special permit only.” © Footnote 5 to the Schedule says: “Greater height is permitted provided the building setback from each street and lot line exceeds otherwise applicable requirements by 10 feet plus one foot for each foot of excess height, but in no case shall building height exceed 60 feet.” 7 The 10 feet or 20% limitation is the amount ABOVE THE ACTUAL BUILDING HEIGHT (not above the maximum permissible building height). Prior to 1982, the Bylaw contained a specific exemption for the height of spires and other projections; there was no 10 feet or 20% provision and there was no regulation whatsoever of the height of steeples. The Board has found no evidence whatsoever that, at the time of the change in the bylaw, there was any public debate about regulating the height of religious structures and in the absence of such, we will not assume a specific intent to regulate steeple height. In fact, since the ward “spires” was included in the specific exemption but not included in the amendment which sought to regulate height of uninhabited projections, one could conclude that there was no desire to regulate the height of spires at all. Debate about the intent of Town Meeting may be interesting; it is not critical to the Board’s decision given the Board’s findings and conclusions. 60a The steeples proposed by the Church are towers or other projections not used for human occupation. The Church would need no relief if it limited the height of the stee- ples to 20% of the building height. With respect to the Original Application, the projection height allowed by right was 12 feet; in the Amended Application, because building height had been reduced to 56 feet, the projec- tion maximum was 11.2 feet. Height regulations in Belmont are keyed to zoning districts and use.§ The Bylaw does not mandate an abso- lute maximum height (building plus uninhabitated pro- jection thereon) which cannot be exceeded.? THE DOVER AMENDMENT In pertinent part. G.L. c. 40A, §3, second paragraph States: No zoning . . . by-law shall . . . prohibit, regulate or restrict the use of land or structures for reli- gious purposes or for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies poli- tic or by a religious sect or denomination, or by a nonprofit educational corporation; provided, 8 Height regulations in Belmont presumably were determined in part by consideration of the allowable uses in a district. For example, heights of buildings in business districts are lower than in residential districts; heights in apartment house districts are higher, reflecting the reality that apartment houses are generally several stories tall. ° Even if the Bylaw did establish an absolute maximum, G.L. c. 40A, § 3 would require a determination of the reasonableness of a proposed height. 6la 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, park- ing and building coverage requirements. The purpose of this statute, especially the “reasonable regulations” language, is to prohibit unreasonable regula- tion of religion and education while, at the same time, “honoring legitimate municipal concerns that typically find expression in local zoning laws.” Trustees of Tufts College v. Medford, 415 Mass. 753, 757 (1993). As stated in Tufts, the key is to strike a “balance.” Commonly known as the Dover Amendment (and in this decision referred to as the “Dover Amendment” or simply “Dover”), the cited sentence stands for two over- arching principles. First, Towns may not prohibit or restrict the use of land or structures for religious or educational purposes. For example, a local bylaw cannot say there shall be no churches or schools in a residential zone. Second, municipalities are empowered to regulate certain specified subjects. Implicit in the itemization of what may be regulated is that other subjects may not be regulated. Most of the case law interpreting the Dover Amend- ment focuses on the interplay between absolute zoning requirements and the concept of reasonable regulation. From an analysis of the case law, several points become clear: 1. Facially neutral zoning laws do not automat- ically survive examination; 2. Reasonable regulations can survive chal- lenge; 62a 3. Questions of reasonableness are fact speci- fic; 4. One challenging the reasonableness of a reg- ulation, facially neutral, bears the burden of proving the unreasonableness; 5. One challenging a regulation should be required to show that the regulation as applied would substantially diminish the religious purpose of a proposal while at the Same time not advancing in an appreciable manner the legitimate municipal concerns in regulating a particular subject. The Church has requested relief pursuant to G.L. c. 40A, §3, seeking a determination that the Bylaw’s height limitations are an unreasonable infringement and the Board should not impose the Town’s Bylaw limitation on the Church. UNDER DOVER, THE BOARD MAY DO THE REGULAT- ING Dover does not say who should regulate or decide “reasonableness”; the statute merely says municipalities may regulate. Regulation in the zoning area is usually done by 4 zoning bylaw, which establishes a standard, by a building inspector who enforces the bylaw and by a permit granting authority which reviews decisions and/ or grant exceptions or relief. The long, standing practice in Belmont has led educational and religious institutions to have their proposals, if not fully compliant with the Bylaw, reviewed by the Board of Appeals. Churches and Us APSO RGIAST RG IAS ele tad 2 \ Fas it SP ar Wi eric ae ia if le 63a schools both have come to the Board for relief.!° Since the Church submitted the matter to the Board, it is proper that the Board decide the issue of reasonableness.1! THE DOVER INQUIRY STARTS WITH THE BYLAW The question of whether a Board should start its inquiry as to reasonableness by looking to its general regulations is a subject of prior court comment.!2 In an 10 In Belmont, issues arising under G.L. 40A, § 3 traditionally have been reviewed by the Board of Appeals, as the building inspector, the enforcement officer under the Bylaw, has referred the matters to the Board rather than making the decision as to reasonableness himself. 1) Campbell v. City Council of Lynn, 415 Mass. 772, decided the same day as Tufts, addressed the issue of whether the statute “conferred on the Lynn zoning officials discretion not to apply provisions of (the local ordinance) concerning bulk, dimensional and parking requirements that might otherwise pertain.” The court concluded that some requirements could not be applied and others “should be reconsidered by the board.” Thus, in Campbell, the Supreme Judicial Court endorsed the concept that the local board could be the arbiter of “reasonableness” and, in its order of remand, sent the case back to the local zoning board to determine if the building commissioner’s decision was correct. ‘2 The problem of applying facially neutral regulations to exempt use was one recognized when G.L. c. 40A, § 3 was being amended. Report, 1972 House Doc. No. 5009 stated “The proposed language (on reasonable regulations) would specifically authorize the imposition of reasonable regulations . . . Ideally, this should be accomplished by adopting regulations specifically designed to apply to uses protected by the Dover amendment . . . thus avoiding the problem of attempting to apply the same regulations to the protected uses as ordinarily apply to other permitted uses in the zone. For 64a early case, decided under the law in effect before the Dover proviso was added, the Supreme Judicial Court (the “SJC”) stated “ ... it is unlikely that the Legislature would exempt religious institutions from local regula- tions of use and at the same time (require) that such institutions construct their buildings on dimensions applicable to single family houses.” Sisters of the Holy Cross of Massachusetts v. Brookline, 347 Mass. 486, 494 (1964). Later, after the pr. viso was added, a trial court judge quoted in Campbell v. City Council of Lynn, 415 Mass. 772 (1993) said to apply general regulations “is permis- sive at best and suspect at worst.” The Appeals Court in Campbell had said that a local board has the absolute right to ignore the rules of general applicability. 32 Mass. App. Ct. at 156-157. That statement went too far and the SJC reversed, saying “local officials may not grant blanket exemptions. .. . ” Campbell, 415 Mass. 772, 778. From the Tufts and Campbell decisions, it is clear that, although municipalities may establish separate regulations for exempt users, they are not required to do so.}% Nonetheless, the Board believes that, as it tries to accomplish the balance cited in Tufts, a good place to start is with the local bylaw. A town “may, through the mecha- nism of its zoning bylaw, consistent with G.L. c. 40A, example, instead of attempting to apply residential dimensional regulations to churches or schools located in a residential zone, the bylaw or ordinance should establish dimensional regulations specifically applicable to churches or schools located in such zones.” 13 “We reject the suggestion that only local zoning requirements drafted specifically for application to (religious) uses are reasonable with the Dover amendment.” Tufts, p. 760. 65a §3 ... impose dimensional requirements.” The Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19, 30 (1979) (upholding dimensional regulations of the bylaw, while invalidating the requirement that the applicant receive a special permit for its use). Before an applicant seeking relief under Dover can be faced with the burden suggested in Tufts College v. Med- ford, it must be faced with a regulation, a standard, an obstacle where a Church’s plans for use of its property run afoul of a local rule. The “rule” in Belmont which is implicated in the case of the Mormon Temple is that all uninhabited appendages on top of a building which extend ten (10) feet or 20% of building height above the actual building height, must go to the Board of Appeals, regardless of the user, regardless of the use or purpose and regardless of the total height achieved. The rule applies equally to chimneys on single family residences and steeples on churches. The Church’s desire to have steeples higher than 12 feet above the building height is what brings Dover and Section 7.4.2 of the Bylaw into play. THE APPLICATION OF DOVER “The reasonableness of a local zoning requirement, as applied to a proposed (religious) use, will depend on the particular facts of each case.” Tufts, p. 759. So “a local zoning provision . . . may be enforced, so long as the provision is shown to be related to a legitimate municipal 66a concern, and its application bears a reasonable relation- ship to the perceived concern.”'4 How a municipality chooses to regulate is in some sense a reflection of the degree of local interest in a particular subject. Building height is a legitimate municipal concern and a proper subject of zoning regulation. The Bylaw reflects that concern by establishing a maximum building height of 60 feet. The Church does not ask to exceed that limit. Footnote 1 of the Schedule suggests some municipal con- cern with respect to projections above building height but contemplates exceeding of the height and reflects a desire that the board decide what height may be appropriate on a case by case basis under the special permit sections of that Bylaw. The Board questions, however, whether there is any legitimate municipal concern involved in regulat- ing the height of steeples on churches. The Neighbors have repeatedly framed the question they feel is the appropriate one: is it unreasonable for the LDS Church to adhere to the Bylaw limitation on height? Put differently, does adherence to the Bylaw height lim- itation unreasonably impact the religious use of the struc- ture by the Church? Most of the objections have been to the total height, i.e., the building height plus the steeple height. The building height is allowed by right. The Board concludes that the focus must be on steeple height. '4“Facially neutral requirements cannot be applied to (religious) uses without further inquiry into the outcome produced by such an application.” Tufts, p. 759, n. 6. 67a IS THERE RELIGIOUS PURPOSE ATTENDANT TO THE STEEPLES? The first test under the Dover Amendment is whether the land or structure is being used for a religious purpose. Not all uses of land or structures by a religious group have a religious purpose. If there is no use of land or structure for religious purpose, the protection of Dover disappears and, with respect to this proposal, the Church would be, like any other property owner in Town, subject to zoning relief only by special permit granted in accor- dance with Section 7.4.2 of the Bylaw. During the hearings the Board asked whether, as part of core Mormon religious principles, an LDS temple must include steeples or spires of a specified height. The answer rather obvious in light of the varied dimensions of LDS temples worldwide, was “No.” Thereafter, at every turn, the Opposition hastened to emphasize that the steeples, their number and their height, were not essential to the practice of the LDS religion and thus the specific proposal in Belmont as it related to height was not entitled to protection under Dover. Therefore they7 conclude that limiting the spire height would not nullify the ability of Mormons to practice their religion and hence the limit should be upheld. The law, however, does not view religious purpose quite so narrowly. Clearly, the specific height of the highest steeple is not a matter of religious principle. This does not, how- ever, mean there is no religious “use” or “purpose” atten- dant to a steeple. The lack of human occupation in a spire may mean no activity is conducted in the steeple itself; but it cannot be said that no religious use is made thereof. 68a G.L. c. 40A. § 3. after all, talks of the “use of structures for ea religious purposes (emphasis supplied).” “Religious pur- pose . .. means something in aid of a system of faith and worship ...” “Religious activity . . . involve(s) more than prayer and worship.” Needham Pastoral Counseling Cen- ter, Inc. v. Board of Appeals of Needham, 29 Mass. App. Ct. 31, 33, 37 (1990). Mormons believe that the design of a temple is revealed to those in Priesthood administration at a point in time. The specific design of Morman temples varies according to the influence and direction of the Presi- dency. Revelation from their God to the earthly messen- gers (the Mormon Priesthood) is a fundamental tenet of the Mormon religion.!> To be sure, one need not elevate the Mormons’ belief in revelation to the level of a direct heavenly message of specific height. But neither may the Board ignore the fact that the Mormons believe that their Priesthood must decide what to build. Temples, to Mormons, are very different from parish churches, in structure as well as religious purpose, and the function of a Temple is not fulfilled in a Mormon meetinghouse. Temples are rarer than meetinghouses; there are fewer than 100 temples worldwide, contrasted with over 11,000 meetinghouses. Temples are buildings specifically constructed for and limited to the practice of the most sacred of Mormon ceremonies. Temples are built because the Mormons have been instructed to do so. 15 The House of the Lord, p. 92, by James E. Talmage, published by Deseret Book Company, Salt Lake City, Utah, 1969. 69a It is clearly part of Mormon theology to reflect, in their buildings, the belief of an ascension towards heaven. In Mormon faith, temples are built vertically, with ascending levels bringing the faithful practitioners closer to their God. Baptism, in traditional Christian reli- gions a rite of originating belief, occurs on a lower level. The Celestial Room, representing heaven, is on the high- est level. In the Amended Application, the assembly Room which in the Original Application had been on the same level as the Celestial Room has been moved below grade; the Celestial Room remains the highest inhabited area of the temple. Steeples and spires point towards heaven; they raise our eyes upward and, in most religions, looking upward is looking towards God. Even if not all Belmontians believe this, the important point is that members of the Latter-day Saints Church do. _ The spires serve the purpose of lifting Mormons’ eyes and thoughts towards heaven. In the Mormon faith, the Angel Moroni, a heraldic figure whose likeness would be atop the highest spire calls upon Mormon practitioners to listen to the Gospel.!© The Angel situated between the heavens and the ground, where worshippers gather, reminds Mormons that, as they look upward toward their God, there will be a succession of God’s clarions calling 1¢ “The restoration of the Gospel is symbolized by the Angel Moroni set atop the spire of the center tower of the cast facade.” The Salt Lake Temple, A Monument To A People, published by Deseret Book Company, Salt Lake City, p. 144. Appendix B submitted to the Board by the Applicant on November 15, 1996. 70a them forward. The Angel is one. The six spires represent the LDS Priesthoods, who are the human messengers of God. The spires are emblematic of the Priesthood’s authority on earth. Temple building reflects a then current Priesthood’s thinking as to how best to incorporate the principles of their faith in a building to honor their God. With regard to the six steeple Temple presented in the Original Appli- cation, it was Brigham Young who said that there should be six spires and further described their east/west orien- tation and relative height. The law suggests that there needs to be “a degree of accommodation between the protected uses . . . and mat- ters of critical municipal concern...” Trustees of Tufts, 33 Mass. App. Ct. 580 (1992) (cited with approval in Tufts, 415 Mass. 753 (emphasis supplied)). However, the Board finds no critical municipal concern with steeple height.!7 It is hardly accommodating to a protected use to limit the Church to a 12 foot projection. In the Board’s judgment, steeples serve a religious purpose, whether or not specific activities associated with 17 Until 1982, the Bylaw exempted spires (and other projections) from the height limitations affixed to buildings. When the Bylaw changed, there is no recorded indication that the change resulted from a municipal concern with steeple height. Indeed, the fact that the ward “spire” was eliminated in 1982 from the list of projections limited to 10 feet suggests, if anything, that Town Meeting intended spires to be treated differently from other projections. If the reason the Bylaw was changed was in response to a new perceived municipal concern with steeple height, it is quite doubtful that the word “spire” would have been dropped from the text. 7la religion are practiced therein. While the “use” may be more symbolic than functional the symbolism is nonethe- less real and, in the Board’s view, worthy of consideration as part of a religion.'® That LDS temples exist without spires does not mean the spires are superfluous or devoid of religious meaning. Nor can the Board ignore the religious symbolism of spires just because temples exist without them. Can the Mormon religion be practiced in a temple with fewer than six spires, with steeple heights of less than 140 feet? Yes. But that is not the question. The Board finds that Steeples and spires, and the religious symbols that adorn many of them, have reli- gious purpose, whether or not specific activities associ- ated with religion are practiced therein. That purpose may be more symbolic than functional but symbolism is part of religion and therefore worthy. of protection. Therefore, the Board concludes that there is religious significance and purpose in the design of the Temple and that the specific design selected for Belmont is consistent 18 The symbolism attendant to high projections is not limited to churches, Daniel Webster once said of the Bunker Hill Monument, “We wish that this column rising towards heaven among the pointed spires of so many temples dedicated to God, may contribute also to produce in all minds a pious feeling of dependence and gratitude. We wish finally that the last object to the sight of him who leaves his native shore and the first to gladden his who revisits it, may be something which shall remind him of the liberty and the glory of his country.” 72a with Mormon tradition and theology. This finding applies equally to the Original Application as well as to the Amended Application. HEIGHT AND THE EFFECTS OF HEIGHT Height is a matter of allowable, reasonable regulation under Dover. Height is also a subject regulated by the town’s Bylaw, thereby evidencing a municipal concern relative to the consequences of unrestrained height. Finally, the height of uninhabited projections above a building is a matter regulated by special permit in Bel- mont, evidencing a perceived need to control on a case by case basis but not necessarily to prohibit on an absolute basis. : As one matter of municipal concern, boards should be concerned with safety. Cited throughout the hearing process as a safety concern was the question of whether fire fighting equipment could reach the height of the proposed steeple. No ladder in Belmont could, but the area of the temple above 60 feet is uninhabited so there would not be a life safety issue. The Town’s Fire Depart- ment confirmed that all habitable portions of the Temple are accessible to life safety equipment. Questions were also raised as to the effect of the Temple’s height on air traffic in the vicinity of the Temple. The Church submit- ted, and the Board accepts, a letter from the Federal Aviation Administration that even at a height of 156 feet (the original highest point of the spire) there was no hazard to air navigation nor was there any need for warning lights. ee I SR Wi Bee Oe ED BIOTA ASA CASES ot eee 73a Height also relates to visibility and to a lesser extent aesthetics. The greater the height, the greater the visi- bility. At night time, it is the lighting imposed by the Church itself and other ambient light (cars passing on Route 2, moonlight, etc.) which makes the Temple and particularly its spire(s), visible. Churches should be visi- ble and the identification of a structure as a church result- ing from the adornment of the structure with a cross or an angel is part of the religious belief which the Board finds has religious purpose, protected under Dover. The principle objections by the Neighbors with regard to the steeples were visual consequences; lighting and shadow effects. Much information was presented on the visual consequences of the Temple and the steeples, ranging from shadow studies to detailed analysis of light- ing. The by-right building has visual consequences, many of which Neighbors object to, and which could only be “ameliorated” by the Church not building what it has an absolute right to build, a massive sixty foot edifice atop a hill with additional projections of some height. It is not the spires, but the building, which is the root of most of the Neighbors’ objections, but it is the height of the spires not the building which is the only subject of the Board’s jurisdiction. Lighting on the Temple will comply with Town stan- dards and the board cannot and will not require more of this church than it requires of other churches in Town. All nonsecurity lights will be turned off at 11:00 p.m., just like other Belmont churches. Other churches are lighted after dark, including ones in residential zones and includ- ing ones which tower over their very close residential neighbors. This church will be treated no differently. The 74a Church is more than 300 feet from its closest residential neighbor. Spillover lighting is not an issue — there will be none or, if there is, the Bylaw limitation will be enforced. As to surface brightness, the Church has said it will be “like other Belmont churches.” A public safety issue was raised as to “black ice” on Route 2 by those who speculated that shadows cast by the Church would promote more black ice on the hills of Route 2 and lead to more accidents. The Board finds such argument purely speculative and not supported by cred- ible evidence of a scientific nature. STEEPLE HEIGHT The Board was presented with much detail compar- ing the height, mass and lighting of the proposed Temple to those of other religious structures, both in Belmont and surrounding communities. Certain comparisons made by the parties at the hearings were irrelevant. For example, both parties focused on the LDS Temple in Washington, D.C. It is taller than the proposed Temple by more than 100 feet, it is lighted at night, it has a visitor’s center, it attracts tourists — it is exactly what the Neighbors’ Oppo- sition do not want to see on Belmont Hill. On the other hand, the Washington temple is much more visible from the highway than it is from abutters’ properties. There has been no discernible drop in property values in the area around that temple and the traffic (much more than is predicted for Belmont) does not create gridlock in the abutting residential neighborhoods. But Washington D.C. is not Belmont and the Church did not ask to replicate that temple and place it on Belmont Hill. 75a There was also a plethora of information submitted, again by both sides, as to other Morman temples built in the United States. LDS temples exist with no spires; many have but a single spire. Temples built in the last twenty- five years have had steeple height ranging from 90 feet to nearly 300 feet, according to information supplied by the church. Ten temples have been built in the United States since 1983. The temple in San Diego has ten spires and is in a commercial district. Five temples have six spires, with average steeple height (we assume of the tallest steeple) of 120 feet, ranging from 95 feet to 169 feet. Four temples have one spire, ranging from 90 feet to 176 feet and averaging 130+ feet. The parties also compared the Temple to other churches in Belmont and in the surrounding area. The Mormons focused attention on churches built a long time age which have building height and spire height in excess of those proposed by the LDS. The Opposition focused attention on the mass of the proposed Temple and on the fact that, in their view, the Temple would be out of scale with its surroundings. While comparisons are often misleading, the Board did find two comparisons helpful: steeple height relative to occupied building height or “proportionality” and dis- tance from abutters. In Belmont (as well as in many surrounding communities), the heights of spires on churches relative to the height of the occupied building were in a broad range but it was not uncommon to find ratios of 1:1. in other words, the height of the spire is the same as the height of the building, thereby doubling the total height of the structure measured from the ground to its highest point. It is not unusual nor in the Board’s 76a judgment unreasonable, for spire height to in effect dou- bles the total height of the structure. This is true of some Belmont churches which (a) abut residential property and (b) have ground elevation higher than their residential neighbors. These other Belmont churches generally are not considered out of place, and the proportionality of their steeple height to building height appears proper. The conclusion drawn by the Board is that propor- tionality of building height and steeple height should be a factor to consider when deciding what is a reasonable height regulation. With respect to proportionality, other Belmont churches have steeple height greater than build- ing height, and at least one has a steeple height 1.5 times the building height. While this is not the case with all Belmont churches, it does suggest to the Board that archi- tectural considerations when combined with the religious purpose served by Church steeples, could support a stee- ple height in the range of 60 to 90 feet above the top of the building. How “big” something is often relates to perspective: how it relates to other items near it or how far away it is. The proposed Temple structure is large when compared to other nearby buildings but is made less imposing by its relative distance from abutters. Most churches in Belmont like most buildings in Belmont sit on small lots close to neighbors. The proposed Temple sits on a nine-acre site and is set back from its neighbors’ property by considera- bly more land than are most buildings in Town. The Bylaw recognizes the relationship of height and distance in allowing greater building height to be achieved through greater setbacks. The conclusion reached by the Board is that because the spire will be set back so far from 77a abutting property (over a football field away from the nearest residential property), greater steeple height is more reasonable. A LIMITATION OF STEEPLE HEIGHT TO 12 FEET IS UNREASONABLE The Bylaw “limitation” would affect all spires of more than 12 feet (and some spires of less than that) because the Bylaw requires a special permit for projec- tions of greater than 20% of building height (60 feet is the maximum building height) or ten feet. Therefore, any Proposed steeple on any church which steeple is 12 feet one inch or higher would run afoul of the Bylaw and in the absence of Dover, would require a special permit. Imposing a twelve foot steeple height on a 60 foot church, or a ten foot limit on a 36 foot high church, seems unreasonable to this Board among other reasons because it ignores the concept of proportionality. Unanimously, the Board concluded in the Original Application that requiring the Temple to be constructed with spires no higher than 12 feet was unreasonable. Similarly, when considering the Amended Application the Board unanimously concluded that adherence to a 11.2 foot height on the single spire was also unreason- able. While it is relatively easy to determine that applying a 12-foot limit to a church steeple is unreasonable, it is more difficult to determine where to go from there. Once the Bylaw’s facially neutral “limit” is found to be unrea- sonable as applied to churches, does that mean (a) there is no limit, that the authority of a municipality to regulate 78a disappears totally or (b) the proposal advanced by a church must be accepted without modification or at least must be accepted unless the Board finds it unreasonable? __The Board eschews the conclusion that it has no authority to establish a reasonable height limitation. If a municipality had no zoning regulation which applied to steeple height (and for many years Belmont had no regu- lation of spire height), the Dover Amendment still allows regulation of height. That specific authority to regulate reasonably should not disappear just because the Board finds that adherence to a limitation designed for resi- dences should not apply to churches. In deciding on the Original Application the Board determined it should not be the developer of property in the Town. This is especially so when the use is one protected by statute. Even in the arena of dimensional (as opposed to use) regulation, if there is an issue of religious purpose involved the Board should exercise caution in deciding what is best for the Church especially if what is being debated is architectural features or aesthetics. An example of this is the Board’s action on the Origi- nal Application. The church requested relief to have six spires each exceeding the height limitation. The Church builds temples with one spire; the Church builds temples with six spires. While many might prefer that the number of spires, at whatever height, be limited to one, the Board declined to say six spires is inappropriate in light of the teachings of the Church. The use of six spires is sup- ported by Mormon theology, serves a religious purpose and is therefore protected. 79a When the Amended Application was submitted, some sought to read into the redesign proof that, ipso facto, there had not been religious purpose in the six steeple design (because if there had been, the six steeple design would not have been abandoned) and that the single spire design still failed to show religious purpose associated with the specific height presented. The Board disagrees. The purpose attendant to spires is served by Tempies with six spires and Temples with but one spire. To reiterate, the Board easily concludes that a spire on a church serves a religious purpose and that purpose is unreasonably limited if the height cannot exceed 10-12 feet. Less clear is how the Board should regulate. The Board has considered all of the information submitted to it comparing the proposed temple to other temples, to other religious structures and to other Belmont struc- tures. It has also considered that many of the evils associ- ated with the Temple by the Neighbors have to do with use of the Temple (e.g. a visitor’s center, traffic, types of functions, noise), the construction activities which are attendant to a by-right building (e.g. blasting, dust pollu- tion, animal displacement) or the mass of a by-right building. The issue is not whether a different height than that which is proposed could be found to be reasonable. In the Board’s view, the proper process to follow is one which says that once the Bylaw limitation designed for resi- dences is found to be an unreasonable limitation on a church, the board should next determine whether the proposal advanced by the Church is reasonable. - 80a SPECIAL PERMITS UNDER THE BYLAW Section 7.4.2 is the Bylaw’s special permit section.!9 Under Footnote 1 to the Schedule in Section 4.2.2, special permits may be granted, which allow the exceeding of the limitation on steeple height. Section 7.4.2 provides, in applicable part, as follows: Special Permits shall be granted only if the . . . [Board] determines that the proposal’s benefits to the Town will outweigh ny adverse effects for the Town or the vicinity, after consid- eration of the following preferred qualities among other things: c) Visual Consequences: 1) Views from public ways and developed properties should be considerately treated in the site arrangement and building design. 3) Departure from the architectural scale of buildings on abutting and nearby premises should be minimized, except where the depar- ture would serve some townscape purpose. 19 G.L. c. 40A treats variances very differently from special permits. Variances, covered by G.L. c. 40A. § 10, require a showing of hardship on the part of the applicant. Special permits are covered by Gen. Laws, c. 40A. § 9 and are controlled by a different legal standard. Special permit relief often involves use and dimensional review by the permitting granting authority and establishing conditions on which relief is appropriate. To the extent the LDS Church proposal needs relief beyond that available under the Dover Amendment, the Church needs a special permit, not a variance. 8la e) Process. 1) Where possible, the proposal should have been developed in consultation with those likely to be substantially impacted by it. 2) Mitigation or, where that is inadequate, offsetting compensatory actions, should be used to ameliorate negative consequences for other parties or the Town. Section 7.4.2 directs the Board to analyze a proposal according to a test of benefits and burdens. The Board is to conduct the analysis after consideration of a number of “preferred qualities.” Section 7.4.2 does not limit the Board’s consideration to only the preferred qualities. It Says “among other things.” In its deliberations, among the other things the Board felt were important were con- sideration of the purpose of G.L. c. 40A. § 3 (limiting the authority of municipalities to restrict religious use of property) and the deference the Board felt should be given to religious institutions in their use of architecture for religious purposes. This deference has been consid- ered by the Board and is reasonable in light of the values expressed by the Dover Amendment. THE GRANTING OF SPECIAL PERMITS IS NOT INCONSISTENT WITH TOWN MEETING’S WILL Many opponents of the LDS proposal argued vigor- ously in favor of their “right” to have by Bylaw provi- sions strictly enforced by the Board. They suggested that, in the establishing of dimensional regulations. Town Meeting desired to establish an immutable limit which 82a could not be exceeded and that the Board was ignoring Town Meeting’s will and their rights if the board allowed any relief. This argument reflects a misunderstanding of the special permit process and the rule of the Board in enforcing or granting relief from the Bylaw. While Town Meeting establishes the norms, both the Bylaw and the General Laws provide for variances and special permits to be granted by the permit granting authority (in Belmont, the Board) in cases where an appli- cant seeks to do something prohibited on its face by the Bylaw. If, as some of the Opposition alleges, the will of the Town Meeting must be followed as expressed in the dimensional tables, there would be no need for a special permit granting authority and no need for Town Meeting to say that the Board can grant relief in steeple height.?° In any event, the Board is not willing, without speci- fic evidence of specific intent on the subject, to infer that Town Meeting intended its dimensional guidelines set forth in the Schedule to be the specific limits of “reason- able regulation” which Dover permits. More to the point, as to steeple height. Town Meeting did not set an absolute limit for anyone. By allowing for special permit relief, in the Board’s view, Town Meeting implicitly acknowledged 20 The fact that the Bylaw allows a particular use only upon issuance of a special permit does not indicate a desire to prohibit such a use. In Belmont, special permits are required in all cases where a property owner wants to operate a restaurant or a family day care home not because Town Meeting wants to bar restaurants or day care centers, but rather because Town Meeting has decided such uses ought to be reviewed and regulated. | 83a that the subject of the height of projections atop a build- ing needs to be reviewed, regulated and possibly condi- tioned on an application-by-application basis. It does not make sense to suggest that allowing a height above the Bylaw threshold for needing a special permit creates a bad precedent. The Bylaw already pro- vides every property owner, not just churches, with the right to seek a special permit. The Board already has the authority, case by case, to allow dimensional relief. Finally, the Board has already granted relief under the Bylaw and under Dover to the Holy Cross Armenian Church for steeple height and to the Building Committee for the Chenery Middle School in several areas controlled by the Dover Amendment. DOES THE LDS CHURCH NEED SPECIAL PERMIT RELIEF? A question exists as to whether the Church even needs special permit relief. Because the Dover Amend- ment would require examination of steeple height any- way, arguably all the relief the Church needs is available to it without regard to the Town’s special permit lan- guage. There have been a number of cases decided by Mas- sachusetts courts under the Dover Amendment. A com- mon thread has been that municipalities cannot condition relief to exempt institutions on the obtaining of a special 84a permit or a variance. If one accepts that tenet, then it is not illogical to ask whether a municipality can insist upon satisfaction of special permit criteria or variance stan- dards as part of reasonable regulation of the exempt user. Cases suggest that employment of the process used in site plan reviews or special permits may not be used to achieve an end run around the protection the statute affords and should not be countenanced because the amount of discretion that a permit granting authority can exercise when it invokes special permit criteria could “enable the board to exercise its preferences as to what kind of . . . religious denominations it will welcome, the very kind of restrictive attitude which the Dover Amend- ment was intended to foreclose.”22 Just because the Bylaw provides a mechanism for the granting of special permit height relief to every property owner does not mean the Church can obtain relief only under that section. Were there no provision for a special permit in the Bylaw, the Church would still be able to 21 “A local zoning law that improperly restricts (a religious) use by invalid means, such as by special permit process, may be challenged as invalid in all circumstances.” Tufts, p. 765. 22 “The Legislature did not intend to impose special permit requirements, designed under G.L. c. 40A § 9, to accommodate uses not permitted as of right . . . , on legitimate (religious) uses which have been expressly authorized to exist as of right in any zone.” The Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19, 33 (1979). While the cases have dealt with use permits, the principle that zoning relief cannot be conditioned on the issuance of a special permit (which, by implication, subsumes the need to satisfy special permit provisions of a local bylaw) may be equally valid when applied to dimensional regulation. 85a seek relief under Dover and if the Church successfully presented its case that the dimensional limitation set forth in the Bylaw as applied to the religious use was unreasonable, relief would be granted. A special permit is not the sole vehicle for relief. The Legislature did not ordain that the “reasonable regulation” by the municipality allowed under G.L. c. 40A, § 3 must be a matter of a special permit inquiry or determination. If that' were the intent, the Dover proviso might say “provided the special permit granting author- ity may grant special permits from requirements with respect to... . “3 In sum, therefore, while a special permit is not required for a church to obtain relief from a bylaw provi- sion, special permit considerations may be appropriate in determining reasonable regulations under Dover. These considerations come into play only after the Board deter- mines, as the Board has done here, that the bylaw limita- tion is unreasonable when applied to the Church and that relief is therefore necessary. 23 It should also be noted that, in another section of G.L. c. 40A, where municipalities are prohibited from barring particular uses, the law is clear that the allowable regulation is by special permit. See G.L. c. 40A, § 9. While it may not be correct to read too much into a comparison of the various sections of c. 40A, it is not unfair to emphasize that exempt users need not rely on variances or special permits as their only source of relief. 86a SPECIAL PERMIT CONSIDERATIONS?4 Once the Board has determined that the limitation on the height of the steeples specified by the Bylaw is unrea- sonable, it makes sense for the Board to consider the height requested by the Church in the context of the applicable special permit considerations. Among other reasons, this is so because the Bylaw allows any property owner to seek special permit relief from the height of projections. : Among the preferred qualities to be considered by the Board in reviewing special permit applications is whether an application has been made in consultation with those expected to be most affected. The Church certainly made efforts to satisfy this consideration. Before the application was filed, the Church visited neighbors and presented its plans. During the public hearing pro- cess, negotiations took place between the Church and the 24 At the outset of the hearings, the question was raised whether an inquiry under Section 7.4.2 should be directed at the Temple proposal as a whole or whether the inquiry should be narrower, looking only to that part of the Temple proposal, steeple height, which implicated the special permit process. Both sides ultimately focused on steeple height. The Neighbors felt there were no benefits to the Town attendant to the proposed steeples, other than possible aesthetic considerations, which were tenuous grounds for relief. While the Neighbors might concede that there were some benefits to the “conditions” offered by the Church, those conditions, save one, did not relate to the steeples. Citing visual impairments, the issue of lighting on the Church and the possibility of adverse effects caused by shadows cast by the proposed Temple, the Opposition felt the benefit vs. burden test favored their position and that the relief sought by the Church should be denied. - 87a Opposition. After several nights of hearings, and after the public had availed itself of the opportunity to ask ques- tions and express concerns about the specifics of he proposal, the Church “downsized” the height of the stee- ples.25 The conduct of the Church during the hearings satis- fied the Board that the “process” encouraged in the Bylaw, of developing plans after consideration of the views of those affected and offering mitigation or offset- ting benefits, was followed. Information on matters not subject to regulation by the Board under Dover or indeed under any regulation was proffered by the Church. The presentation of voluntary restrictions or condi- tions which the Church would allow to be imposed on its use also reflects the Church’s adherence to process con- siderations. Many of the items offered represent self- regulation. Many extend the territorial dictates of the other Bylaw subjects (like parking lot setbacks) or of state regulations (e.g., blasting mitigation measures). Others, like extensive landscaping, benefit both the Church and the Neighbors. The agreement to abandon an existing easement onto Crestview Road seeks to ensure that all 2° Height was reduced from 156 feet to 139 feet (a 10.9% reduction in total height and a 17.7% reduction in steeple height) on the east central spire. The reduction in the amount by which the reduced spire would exceed the by right height is 20%. The four lowest steeples were reduced from a height including building and steeple of 82 feet to 76 feet (7.32%) with steeple height reduced from 22 feet to 16 feet (27.3%). The reductions in height, accompanied by reductions in mass, were done with an eye towards reducing adverse affects perceived by the Neighbors. 88a traffic to the Temple will be routed to the access road, rather than through the residential neighborhood. Other specific concerns expressed by the public (e.g., the pres- ence of visitor’s centers) have been allayed by the Church’s agreement as to how the Temple will be made open to non Mormons and the Church’s agreement to limit certain large gatheirngs. A number of the offers made by the Church cost substantial money (for example, the looping of water and electric utility connections); the Town could not have required that these items be done for the “by right” building. All represent an attempt to mitigate or amelio- rate adverse consequences of the project.2 The Temple - proposal is better with the conditions proposed by the Church than without and the complete proposal is what the Board is to consider.?” With respect to traffic, the Temple itself will generate traffic. The Board doubts that the spires themselves will generate any. A traffic study was presented to and reviewed by the Board. The study was also reviewed by a town hired traffic expect, who asked for and received 26 It is not reasonable to suggest that the Board not consider these measures because they do not relate to the effects caused by the spires, as was suggested by the Opposition. They relate to concerns of the Neighbors, as expressed by the Neighbors. The efforts of the Church to reduce traffic effects are meaningful to the quality of life in the area. 27 Even the Board member who voted to deny the Original Application because he felt the tallest steeple was too tall considered that the Church had satisfied its “process” burden. 89a additional information. The Board has experience review- ing traffic studies and is satisfied with the key conclu- sions: the LOS (Levels of Service) of Surrounding key intersections will not be worsened and site generated traffic can be safely and efficiently accommodated on existing roadways without significant negative impact on traffic flow. In the Board’s judgment, the burdens ascribed to the additional spire height do not justify the denial of relief to the Church. One could logically infer from G.L. c. 40A, §3, second paragraph, that churches and educational institutions are accorded their special status because of a presumption that the benefits of having churches and schools, in every town and allowable in any zoning district, always out- weigh the perceived burdens, whatever they may be. The Board concludes that, by adopting the Dover Amend- ment, the Legislature intended to favor religions and educational institutions and enshroud their protected activity with a conclusive presumption of “benefit” regardless of the perceived burden. The “special permit considerations” under the Bylaw are important because their satisfaction gives the Church an independent avenue for relief from the limitation on steeple height. The specific height requested by the Church can be justified by finding the proposal reason- able, after consideration of all the standards, because the Board finds the benefits (including the benefit that Dover implies for all churches) outweigh the burdens. The Board felt the specific height asked for by the Church in the Original Application was warranted. 90a THE RELIEF GRANTED ON THE ORIGINAL APPLICATION Unanimously, with respect to the Original Applica- tion, the Board found that applying the Bylaw to restrict the height of the steeples on the Temple to twelve (12) feet was unreasonable. That determination, decided under a Dover inquiry, means that some zoning relief must be granted and greater height must be permitted. The Board, by vote of 4 in favor, 1 opposed,?® voted to restrict the height of the steeples to a total height of 139 feet for the east central spire (79 feet above the building), 92 feet for the west central spire (32 feet above the building), and 76 feet each for the four remaining steeples (16 feet above the building). In approving these specific heights, the Board considered the purpose of steeples in Mormon theology, the proportionality of the Steeple height to building height and to the mass of the structure, the shape of the steeple above 92 feet, the deference appropriate to a church’s design, as well as the general special permit considerations. After such consid- eration, the Board found the specific height of the spires in the Original Application was not unreasonable, i.e., the height was reasonable. (a) as a Dover type regulation of 28 The one dissenting member on the Original Application opposed the height of the east central spire as proposed by the Church, although he did not think that the 12:foot steeple limitation was reasonable. He favored allowance of the 76 foot height on the four corner steeples. He concurred with other Board members in concluding that, while some relief should be granted, the Board should not be the architect for the Temple. 9la height, (b) as a special permit matter or (c) a combination of the two. In deciding on the Original Application and in exer- cising its right to regulate, the Board found that the self- imposed “conditions” or mitigation measures offered by the Church benefit the Town and should be incorporated into any approval so that they can be enforced in the same manner that special permit conditions are enforced. Indeed, while the Board has found no grave municipal concern in controlling steeple height on churches, a number of other municipal concerns (which do not relate to steeple height), are addressed by the offers made by the Church, and the offers represent something akin to ‘ - compensating actions used to ameliorate negative consequences for other parties or the Town.” Section 7.4.2. of the Bylaw. AMENDED APPLICATION In presenting the Amended Application, the Church once again complied with all dimensional requirements of the Bylaw except for the height of the single spire.29 29 At the public hearing, a question was raised as to whether a portion of the west wing exceeded the Bylaw height requirements. The Church, in amending its plan, made clear that above a certain height the area in question was not habitable space. The Building Inspector has ruled that since that are is closed to habitation, the applicable portion of the Bylaw is the footnote relative to projections and that the total height of 64 feet is within the allowance permitted by the Bylaw (56 feet plus 20% of 56 feet = 56 feet plus 11.2 feet = 67.2 feet) The Board accepts the Building Inspector’s determination. 92a The Amended Application presents a number of dimen- sional reductions from the originally approved design, and it should be emphasized that in some respects the church has modified its proposal by reducing what the Church had an absolute right to build. The total gross area of the Temple was reduced from 94,100 square feet to 69,000+ square feet, with most of the reduction coming in the area above grade which would be visible. The length and width of the Temple building were both reduced, although the Temple is designed to be built within the same footprint. The above grade building height has been reduced marginally from 60 feet to 56 feet. This reduction means that the maximum projection height allowed by right is 67.2 feet and the relief the Church seeks is to have the single spire exceed that height. The surface area of the Temple has been reduced by over 30%. This is an important reduction in mass but also the reduced surface area means there is considerably less area to be illuminated. The total wattage used to illumi- nate the Temple has been reduced by over 30%. The distance between the Temple and neighboring residential properties has been increased (except to the south where there has been no change) and the parking areas have also been moved further from residential properties. In addition, the Temple is now set back more from the Route 2 access roads and the Church’s neighbors in Arlington. In many respects, the modified design retains the characteristics of the original design. Site access and internal circulation remain the same; interior building materials, landscaping design and building orientation 93a are unchanged. All of the conditions proposed by the Applicant remain. The Church does not consider the Amended Applica- tion a substitution for the Original Application. It does not consider what it has presented a nullification of the prior Board vote. The Neighbors predictably consider that the Amended Application must be considered on its own merits and must satisfy the same test the Board applied to the Original Application. The Board agrees to some extent with each side. The Board does not feel its prior decision is a nullity and it believes the Amended Application should be tested in the same manner as the Original Application.3! The Board has determined that the Church has satisfied the legal standards for obtaining relief and should be allowed to proceed with the Amended Application. In approving the Amended Application, however, the Board has deter- mined that the Temple shall be built in accordance with revised plans submitted with the Amended Application as amended through March 13, 1997 and not in accor- dance with the original design. 30 At the close of the March 13th hearing, the Neighbors presented a proposed set of conditions. The Church submitted a response. The Board, in approving the Amended Application, imposes conditions which take into consideration both the Church’s and the neighbors’ proposals. 31 The Board ruled at its March 10th hearing that the public hearings would not start anew as if there had never been eight hearings on the Original Application and all testimony from the prior hearings would be accepted to the extent relevant to the Amended Application. 94a In modifying the original design, the Church had as its goals a simplification of the design and a lessening of the impacts on the Neighbors. While some of the Neigh- bors still feel the Temple is too big and too intrusive, the Board concludes that the Church has lessened some of the more objectionable effects and has done so through a process which complies with both the letter and spirit of the Bylaw. Without waiving their position that relief should not be granted at all because the Church has failed to satisfy the legal standards on which it has the burden, the Neighbors concede that the Amended Application is “better.” The Board agrees. Much time has been spent debating the lighting plan of the Church. Fears abound that the Temple will look like the Washington, D.C. temple or at least will not look like other Belmont churches. As to the latter comparison, there is no solution except a reduction in size/mass to levels less than the by right building. The Board seriously questions its authority to regu- late the surface brightness of the Temple. First, the Bylaw does not regulate surface brightness for any property owner. Second, lighting is not a subject specified in the Dover Amendment and the Board doubts there is any legal authority for it to conclude there are other matters not enumerated by the Legislature in the Dover Amend- ment which a municipality can regulate. The Bylaw does however regulate overspill lighting which regulation the Church has agreed to satisfy. On the basis that the Church, in wishing to be a good neighbor, presented lighting information in order to allay i / 95a Suspicions, the Board has examined surface brightness and has accepted the Church’s information in the nature of representations which should bind the Church as vol- untary conditions. The lighting involved in the amended design is less than what was presented in the Original Application mainly because the surface to which light is applied or the surface from which light is reflected is so much less. While “bright spots” on less mass increase the average brightness of the total surface, that does not make the surface “brighter” in an absolute sense. Regardless of actual brightness measured on the sur- face in foot lamberts, the farther one moves from a sur- face, the less bright the lit surface appears to the naked eye because the surface is smaller (is reduced by dis- tance). Given that no part of the Temple is closer to a residential property than 165 feet and most properties are over a football field away from the Temple (considerably more setback than most Belmont churches used for com- parison by the Neighbors), it is the Board’s opinion that the lighting plan presented by the Church is reasonable and should be accepted, subject to general conditions. On March 24, 1997, the Board deliberated on the Amended Application. Unanimously, the Board found that (i) imposing an 11.2 foot limitation on the height of the single spire was unreasonable and relief should be granted to the Church, and (ii) the Church’s proposal, as reflected in the Amended Application, considered as a whole, was reasonable. The church is hereby ranted relief by the Board and shall be permitted to build the Temple in accordance with the Amended Application. No other permit or regulation by the Town under its Bylaw is necessary provided that the final plans presented are 96a consistent with the plans submitted to the Board, and provided further that the following Conditions are satis- fied and adhered to.52 CONDITIONS Before the close of the public hearings on the Amended Application, the Neighbors submitted a list of proposed conditions. The Church responded by stating its position with respect to the Neighbors’ list. The Board has carefully considered the conditions offered by the Church and the protections sought by the Neighbors. It is not fair to have material information intended to allay fears or suspicions presented by an applicant an public hearings and not hold the applicant for zoning relief to compliance with the information presented. On the other hand, churches are to be exempt from the traditional use restrictions imposed by zoning bylaws, and other churches in Belmont are not regulated by the Board or by any group of neighbors as to hours of operation, types of services, etc. On balance, the Board determined that including as “conditions” matters which reflect accu- rately statements made by the Church should not trouble the Church from a substantive point of view, should be readily accepted by the Neighbors who raised the con- cerns which gave rise to the “conditions” and are further evidence of the Board’s opinion that, by compromise, the result may provide more protection for the Neighbors 32 The Temple is subject to the requirements of any other applicable state or local code such as (without limitation) health and sanitary codes, fire codes and regulations, and the State Building Code. See The Bible Speaks, p. 35. footnote 15. 97a than a strict construction of the Dover Amendment's prohibition on use regulation would permit. The Board concluded that the following conditions (“Conditions”) are to be imposed on its grant of relief: 1. The Temple, the associated amenities and the related site conditions on the church’s property shall all be constructed and developed in sub- stantial accordance with the Church’s Site Plan dated February 14, 1997, submitted to the Town with the Amended Application or through the public hearings thereon (collectively, the “Approved Site Plan”). Included within the term Approved Site Plan is the Building Exterior Ilu- mination Report prepared by LHM Partners Inc. dated February 28, 1997 (the “Lighting Plan”) as Same was modified through March 17, 1997. Substantial changes, alterations, substitutions, replace- ments or amendments to the Approved Site Plan shall require the approval of the Board. Nothing herein shall limit the right of the Applicant to make nonsubstantial changes and where necessary to have such changes approved by the Building Inspector. Without limiting the foregoing, the Board states that the following are deemed to be “substantial”. 1. Changes to the site access; 2. Changes in the parking configuration or the number of spaces; 3. Changes which decrease the amount of land- scaping; 4. Changes in the Lighting Plan to the Extent the same result in a variance of more than 20% provided that any variance which 98a results in violation of the overspill regula- tions in the Bylaw shall be prohibited; 5. Changes relating to the time construction activities are to occur. All vehicular access to the Property shall be exclusively from the Route 2 access road/Fron- tage Road and as shown on the Approved Site Plan. Any change in access from that approved by the Board shall require the Church to present the proposed change and the reasons therefor to the Board and shall require Board approval thereof. The entire perimeter of the portion of the Church’s Property being used for any activity related to site development or construction of the Temple and associated amenities shall be fenced to prevent entry or egress except through the designated construction gates. Except for activities conducted on non-Church property which are allowed by easement, contract, law or with the consent of the affected property owner, no construction related activities will be allowed on properties not owned by the Church pro- vided nothing in this Condition 3 shall be deemed to prohibit construction equipment and supply vehicles from parking on Ledgewood Place in connection with the construction of the retaining wall and related site work on the southerly side of the Church’s Property if it becomes necessary to do so. The Church agrees to use its best efforts to use only its own prop- erty to do such work in the area of the southerly boundary near the parking lot but if safety con- siderations make it advisable to use Ledgewood Place, upon approval by the Town Engineer, the Church may do so. 99a The forty (40) foot easement leading to Crest- view Road which is set forth in a document registered with the Land Court as Document No. 380415, and noted on the Church’s Certifi- cate of Title (No. 157366) shall be used solely for utilities, including the right to install, maintain, repair and replace utilities. The easement shall not be used for vehicular or pedestrian access to the Site. All work done in the area of the ease- ment shall be performed in a manner so as to minimize the disturbance to neighboring prop- erties. Upon completion of any work, the area of the easement and construction shall be land- scaped and returned to as near the condition it was prior to the work as possible. At such time as the construction of the Temple and related site amenities has been completed and prior to the issuance of a certificate of occu- pancy, the Building Inspector of the Town shall certify to the Board of Appeals that all condi- tions set forth herein which relate to construc- tion have been satisfied. Thereupon, unless the Board within fifteen (15) days requests a meet- ing with the Building Inspector, the Applicant or parties at interest (as defined in G.L. c. 40A, §11) who have in writing set forth facts from which one could conclude. that conditions established by the Board have not been satisfied, or unless prohibited by law, the Building Inspector shall, consistent with his duties, issue a certificate of occupancy. Upon the issuance of notice by the Building Inspector to the Board and prior to the expiration of the aforesaid fifteen (15) day period, the Church shall execute and deliver to the Town counsel an instrument, in form and content acceptable to the Board and Town coun- sel and suitable for recording in the Middlesex 100a South Registry District of the Land Court, restricting the aforesaid forty (40) foot easemert to utilities only and specifically relinquishing in perpetuity, the right to use said easement for vehicular and pedestrian traffic access to the Church’s Property. Nothing herein contained relating to the time by which the permanent restriction shall be recorded is intended to imply that the Church may access its site by use of the easement for construction related activities, all of which is intended to be controlled by Condi- tion No. 2 hereof. Should the Applicant be barred from using Frontage Road as its access, the Applicant may return to the Board to modify the conditions relating to access. The site shall be landscaped in substantial accor- dance with the Approved Site Plan dated Febru- ary 14, 1997, including the planting of at least the number of trees shown on said plan. The parking lot design, setback and landscaping shall be as set forth on the aforesaid Site Plan. To the extent reasonably possible, the parking area shall be landscaped so as to minimize its visi- bility from abutters’ property. All exterior lighting, whether on the Temple building itself or the spire or the Angel Moroni, shall be extinguished no later than 11:00 p.m. (or at whatever earlier hour all other churches in Belmont turn off all exterior lights), provided that reasonable lighting required for security and safety shall be excepted from this condition. Spillover lighting shall be controlled by the applicable provisions of the Bylaw. There shall be no lighting emanating from any window located above 56 feet. No lights shall shine away from the Temple. Lights in parking 101la areas will be directed away from abutting resi- dences. While specifically acknowledging that neither the Dover Amendment nor the Town’s Bylaw addresses the subject of exterior lighting /sur- face brightness, based on the Applicant's testi- mony at hearings as to the amount of surface brightness the Temple will have, the Board’s review of materials relative to other churches, and the Neighbors’ concerns in this regard, the Board requires that surface brightness son the Temple, the spire and the Angel Moroni be in substantial accordance with the Lighting Plan as presented to the Board. No blasting activities shall take place except in strict accordance with applicable laws and regu- lations and the following additional conditions. No blasting or drilling or rock crushing shall occur earlier than 9:00 a.m. or later than 4:00 p-m. Monday through Friday and no blasting or drilling or rock processing shall occur at all on either Saturdays or Sundays. To the extent rock crushing activities occur on the Site, all state or Town requirements shall be complied with. All blasting shall be supervised and monitored by a full time professional engineer, who must be on site during all times blasting occurs. Such ser- vices shall be substantially as set forth in a letter dated June 26, 1996 from Haley & Aldrich to Tsoi/Kobus Associates. Blasting mats will be used for all blasting rounds even if not required by law or code. The preblast survey required by law and the protections afforded those covered by the survey shall be extended to include all property owners whose property line is within 300 feet of the Church’s property line. 10. 5B 12. 102a All other construction activities shall take place between the hours of 7:30 a.m. and 5:00 p.m., Monday through Friday provided that the Church, or its project manager, may be allowed occasionally to have activities when reasonably necessary scheduled for weekday overtime and Saturdays (such hours limited to the minimum reasonably necessary) provided suitable advance arrangements are made through the Town Engineer’s Office. Ledgewood Place, Crestview Road and Birch Hill Road may not be used for the parking of vehicles or the Storage of materials during construction. All noise regulations of the Town shall be com- plied with. Consistent with the Applicant’s representations to the Board, there shall be no Visitor’s Center or other tourist type accomodation at the Temple or on the Site. Nothing herein is intended or shall be construed to prohibit the Temple from having an “Arrival Center” within the Temple Building, providing coat racks, restrooms, cleri- cal area, seats or benches and similar amenities. The Arrival Center shall not contain exhibits or displays and no items will be sold at the Arrival Center, except nothing in this Condition 11 shall be deemed to prohibit food and beverage vend- ing machines in the Arrival Center and the sale or rental or religious vestments. Consistent with the Church’s representations to the Board and to the Neighbors and fully acknowledging that in the absence of such state- ments or voluntary conditions the Board’s authority under Dover to regulate the use of the Temple building would be drastically limited, if not nonexistent, the Board nonetheless includes 13. 14. 15. 16. 103a within its conditions the following, all of which are consistent with statements made by the Church and many of which were contained in the Neighbors’ presentation of proposed condi- tions. No wedding receptions, dances, pageants, parties or funerals are to be conducted in the Temple. The Temple will not be used as a day care center or nursery school or rented to out- side organizations or used for fund raising activities or social events. There will be no chimes, bells or loudspeakers at the Temple. There will be no Christmas/holiday pagents at the Temple. All other Christmas/holiday light- ing or displays are to be consistent with what other Belmont churches do except that there will be no holiday lighting above 56 feet and no additional lighting on the Temple building itself. At the Church’s sole expense, the Church will prove a water loop connection between Ledgewood Place and Crestview Road and an electric loop connection from Crestview Road to Frontage Road. Drainage plans and facilities will be subject to the approval of the Town Engineer. Any buses coming to the Site shall park only in specifically designated spaces. Buses shall be prohibited from idling their engines at any time for more than ten (10) minutes. The Applicant shall conduct construction activ- ities in a manner designed to minimize dust pollution. The Church has agreed to cause to be cleaned the windows of any home that is soiled by dust associated with blasting/construction activities and the Church shall arrange for such window cleaning through an independent con- tractor selected and paid by the Church. Such 104a commitment does not require the Church to pay for costs of cleaning done by property owners themselves. Cleaning shall be done as reason- ably necessary and shall be limited to homes within 300 feet of the Church’s Property. The commitment of the Church under this condition 16 shall cease on the date the certificate of occu- pancy issues. 17. Deliveries to the Site shall be made during the Temple’s normal hours and in any event no earlier than 8:00 a.m. Monday through Saturday and no later than 4:00 p.m., Monday through Friday and noon Saturday. No deliveries shall be made to the Site on Sundays. As so conditioned and based on the foregoing, relief is granted consistent with this decision. For the Board, John W. Gahan III, Chairman Dated: April 28, 1997 As so conditioned and based on the foregoing, relief is granted consistent with this decision. For The Board, /s/ John W. Gahan III John W. Gahan III, Chairman Dated: April 28, 1997 /s/ Mlegible /s/ legible /s/ Ilegible /s/ Illegible 105a A TRUE COPY ATTEST: / s/ Catherine T. Stafford Catherine T. Stafford Town Clerk of Belmont May 19, 1997 106a APPENDIX E CONSTITUTION OF THE UNITED STATES OF AMERICA FIRST AMENDMENT Congress shall make no law respecting an estab- lishment of religion . . . 107a APPENDIX F MASSACHUSETTS GENERAL LAWS Chapter 40, § 25 (1950). 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. Chapter 40A, § 3 (1997). The Zoning Act. No zoning ordinance or by-law shall regulate or restrict the interior area of a single family resi- dential building nor shall any such ordinance or by-law 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 sect or denomination, or by a nonprofit educa- tional 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 cov- erage requirements. 108a APPENDIX G TOWN OF BELMONT ZONING BY-LAW As amended through April 22, 1996 Approved August 6, 1996 109a SECTION 1. GENERAL 1.1 Title and Authority This Bylaw shall be known and may be cited as the “Zoning Bylaw of the Town of Belmont, Massachusetts” and is adopted, in accordance with and pursuant to the provisions of General Laws, Chapter 40A, as amended by Chapter 808 of the Acts of 1975 as amended. 1.2 Purposes The purposes of this Bylaw include, but are not limited to, the following: to lessen congestion in the streets; to conserve health; to secure safety from fire, flood, panic and other dangers; to provide adequate light and air; to prevent overcrowding of land; to avoid undue concentra- tion of population; to encourage water supply, drainage, sewerage, schools, parks, open space and other public requirements; to conserve the value of land and build- ings, including the conservation of natural resources and the prevention of blight and pollution of the environ- ment; to encourage the most appropriate use of land throughout the Town, including consideration of the rec- ommendations of the comprehensive plan, if any, adopted by the Planning Board and the comprehensive plan, if any, of the regional planning agency; and to preserve and increase amenities by the promulgation of regulations to fulfill these purposes under the provisions of General Laws, Chapter 40A. Regulations adopted pursuant to these purposes may include, but are not limited to, restricting, prohibiting, permitting or regulating the use, alteration, height, area. \ 110a and location of buildings and structures and the use of premises in the Town of Belmont. 1.3 Basic Requirements Any building or structure hereinafter erected, recon- structed, altered, enlarged, or moved or any use of prem- ises hereinafter established, altered or expanded in the Town of Belmont shall be in conformity with the provi- sions of this Bylaw, with the following exceptions: - certain nonconforming buildings, as provided at Sec- tion 1.5; — certain aspects of agricultural, educational, and reli- gious uses, as provided at Section 3 of Chapter 40A, G.L. Any use not specifically or generically enumerated in a district herein shall be deemed prohibited. SECTION 4. INTENSITY REGULATIONS 4.1 General Requirements The erection, extension, alteration, or moving of a struc- ture, and the creation or change in size or shape of a lot shall be permitted only in compliance with the intensity and dimensional requirements set forth herein, except as provided at Section 1.5 Nonconformance and at Section 6, Chapter 40A, G.L., and except for lot line changes which create neither additional lots nor increase in nonconfor- mity. llla 4.2 Schedule of Dimensional Regulations 4.2.1 Area Requirements MINIMUM MINIMUM MINIMUM MAXIMUM MINIMUM LOT AREA LOT FLOOR AREA LOT OPEN SPACE FRONTAGE RATIO COVERAGE DISTRICTS SQ. FT FEET % OF LOT % OF LOT SR-A 25,000 125 - 20% 50% SR-B 12,000 90 - 25% 50% SR-C 9,000 75 - 25% 50% SR-D 25,000 125 - 20% 50% GR 70002 70 - 30% | 40% AH 85,0002 100 ~ 30% 40% LB I ~ 20 1.251 - - LB - 20 1.05 35% ~ LB I — 20 1.05 35% - GB ~ 20 - - = PL - ~ - ~ ~ (1) In an LBI District, a floor area ratio up to a maximum of 1.5 may be allowed by special permit from the Board of Appeals (see § 4.4). (2) But not less than 1,000 sq. ft. per dwelling unit for multi-family dwellings in a GR District, 1,200 sq. ft. per dwelling unit in an AH District. 112a 4.2 Schedule of Dimensional Regulations (continued) 4.2.2 Linear Requirements MINIMUM MAXIMUM SETBACK BUILDING DIMENSIONS HEIGHT FEET DISTRICTS Front Side Rear Feet Stories SR-A and SR-D Dwelling 302 15 402,4 365 21/25 Other 302 156 256 365 21/25 SR-B and SR-C Dwelling 252 10 303-4 365 21/25 Other 252 106 256 365 21/25 GR Dwelling 202 107 208 36 21/2 Other 202 107 126 365 21/25 AH 30 30 30 60 ~ LB I? 5 6 or 6 or 28 210,11 none? none? LB I? 10 209 _ 209 32 7 210 LB Il? 10 209 20? 28 210 GB 5 6 or 6 or 36 _ none? none? "1 - ~ ~ - ~ - 4.2.2 Schedule Footnotes: (1) Chimney, towers and other projections not used for human occupation may exceed the height limitations herein provided that, except for single vertical freestanding tubular antennae; any such projection above the building exceeding 10 feet or 20% of the building height, whichever is greater, shall be allowed by special permit only. (2) No building need be set back more than 30% of the depth of the lot in a Single Residence A or D District, 25% of the lot depth in a Single Residence B or C District, nor 20% of the lot depth in a General Residence GR District, nor more than the average of the setbacks of the buildings on the lots contiguous thereto on either side, a vacant lot, a lot occupied by a building set back more than the required minimum, or an intersecting street being counted as | 7.4 113a (5) Greater height is permitted provided the build- ing setback from each street and lot line exceeds otherwise applicable requirements by 10 feet plus one foot for each foot of excess height, but in no case shall building height exceed 60 feet or 4 stories in height. Special Permits 7.4.1 Special Permit Granting Authority At various places in this Bylaw, authority for acting on particular special permits is assigned to the Board of Selectmen, the Planning Board, or the Board of Appeals. Where no agency is specifically designated, the Board of Appeals shall act as the Special Permit Granting Authority (SPGA). 7.4.2 Special Permit Criteria The following shall be the basis for decisions on special permits, except as may be more specifically provided elsewhere in this Bylaw. Special Permits shall be granted only if the Special Permit Granting Authority determines that the proposal’s benefits to the Town will outweigh any adverse effects for the Town or the vicinity, after consideration of the fol- lowing preferred qualities, among other things: a) Location. 1) Providing adequate water, sewerage, drain- age for this location should pose no special pub- lic problems. 2) The site should be able to accommodate the proposal without substantial environmental damage due to wetland loss, habitat disturbance, or damage to valuable trees or other natural assets. b) c) d) 114a Activity Type and Mix. 1) Residential proposals should serve housing needs of local residents, or broaden the diversity of housing within the Town. Visual Consequences. 1) Views from public ways and developed properties should be considerately treated in the site arrangement and building design. 2) Visibility of parking and service areas from public streets should be minimized through site arrangement, and such areas should be screened from abutting premises. 3) Departure from the architectural scale of buildings on abutting and nearby premises should be minimized, except where the depar- ture would serve some townscape purpose. Access. 1) Access to the location should increase exis- ting traffic (average daily, unless the Board of Appeals specifies + * * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1610%3A1. Public record. Not legal advice.