NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
SJC-12675
THE McLEAN HOSPITAL CORPORATION vs. TOWN OF LINCOLN & others.1
Suffolk. April 2, 2019. - September 23, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Zoning, Educational use. Education, Zoning. Words, "Educational purpose."
Civil action commenced in the Land Court Department on November 15, 2016.
The case was heard by Karyn F. Scheier, J.
The Supreme Judicial Court granted an application for direct appellate review.
Diane C. Tillotson (M. Patrick Moore, Jr., also present) for the plaintiff. Jason R. Talerman for town of Lincoln & others. Michael C. Fee, for Arthur Anthony & others, was present but did not argue.
1 Building commissioner of Lincoln, zoning board of appeals of Lincoln, Arthur Anthony, Lara Anthony, Edwin David, Nandini David, Douglas Elder, Lisa Elder, Jay Gregory, Lisa Gurrie, Michael Gurrie, Beverly Peirce, and Daniel Peirce; and Linda Kanner, Steven Kanner, Robyn Laukien, Daniel McCarthy, and Donald McCarthy, interveners. 2
Benjamin Fierro, III, for Association for Behavioral Healthcare, Inc., & others, amici curiae, submitted a brief. Felicia H. Ellsworth & Julia Prochazka, for Disability Law Center & another, amici curiae, submitted a brief.
LENK, J. The question before us is whether the plaintiff's
proposed residential program for adolescent males falls within
the meaning of the Dover Amendment, G. L. c. 40A, § 3, second
par. If so, it is exempt from certain zoning restrictions
because the land and buildings would be used for "educational
purposes." The plaintiff, The McLean Hospital Corporation
(McLean), purchased 5.5 acres of land in the town of Lincoln
(town), intending to develop a residential life skills program
for fifteen to twenty-one year old males who exhibit extreme
"emotional dysregulation." The program would allow these
adolescents to develop the emotional and social skills necessary
to return to their communities to lead useful, productive lives.
Before purchasing the property, McLean, a nonprofit
institution, wrote to the town's building commissioner
explaining the proposed use, and seeking a determination whether
the project could proceed as of right, pursuant to the Dover
Amendment, see G. L. c. 40A, § 3, second par., and its local
analog, section 6.1(i) of the town's bylaw. The building
commissioner replied in writing that the proposed use was
educational, and that McLean could proceed under the Dover
Amendment and the bylaw. After the purchase, however, a number 3
of nearby residents challenged the decision before the town's
zoning board of appeals (board). The board decided that the
program was medical or therapeutic, as opposed to educational,
and reversed the building commissioner's determination. McLean
initiated an action in the Land Court challenging the board's
decision. After a four-day trial, a Land Court judge determined
that the proposed use was not primarily "for educational
purposes," under a novel theory that attempted to distinguish
between life skills that are "focused outward" and those that
"look inward." McLean appealed, and we allowed McLean's
petition for direct appellate review.
We conclude that, although not a conventional educational
curriculum offered to high school or college students, the
proposed facility and its skills-based curriculum fall well
within the "broad and comprehensive" meaning of "educational
purposes" under the Dover Amendment. See Regis College v.
Weston, 462 Mass. 280, 286, 291 (2012). Accordingly, the
decision of the Land Court judge must be vacated, and the matter
remanded for entry of a judgment in favor of McLean.2
2 We acknowledge the amicus briefs submitted by the Disability Law Center and the Mental Health Legal Advisors Committee; and by the Association for Behavioral Healthcare, Inc., the Association of Developmental Disabilities Providers, Inc., the Massachusetts Association of 766 Approved Private Schools, Inc., and the Massachusetts Council of Human Service Providers, Inc. 4
1. Background. We recite the essentially undisputed facts
found by the trial judge, supplemented occasionally with
uncontroverted facts in the record. See Vaiarella v. Hanover
Ins. Co., 409 Mass. 523, 524 (1991).
a. Other programs. The plaintiff currently operates a
smaller version of the planned program, known as the "3East
program," at its campus in Belmont, as well as a similar program
for girls. McLean also operates a program for adults with
emotional disorders, who are transitioning back into the
community from a hospital setting, at another location in the
town; that facility is a protected educational facility under
the Dover Amendment, G. L. c. 40A, § 3, second par. McLean
wants to move the 3East program from its already cramped
quarters in Belmont to the newly purchased land in Lincoln so
that it can increase the number of adolescents that the program
serves, from six to twelve at any given time.
b. 3East program. The 3East program's curriculum is
designed to instill fundamental life, social, and emotional
skills in adolescent males who are deficient in these skills,
who experience severe emotional dysregulation, and who have been
unable to succeed in a traditional academic setting. Many of
the residents have been diagnosed with borderline personality
disorder; all have varying degrees of emotional dysregulation.
Some have a co-occurring condition such as attention deficit 5
disorder, anxiety, or depression, and some have no official
diagnosis.
Regardless of their diagnosis, all of the residents at
McLean share difficulties in identifying and regulating their
emotions, and therefore may react to ordinary, day-to-day
events, which they perceive as stressful situations, with
outbursts of fear, anger, or self-loathing. Overwhelmed by
emotions they cannot identify or control, these individuals have
difficulty concentrating in school, following directions,
responding appropriately to others, and maintaining
interpersonal relationships. They tend to view situations as
juxtapositions of diametrically opposite positions (from
"opposite sides of the Grand Canyon"), with no middle ground.
Slight disappointments (i.e., "can we meet at 5:15 rather than
5:00?") may be viewed as negative statements about themselves,
and can lead to increased feelings of abandonment, shame,
"emptiness," anger, and resentment.
The 3East program uses a highly structured, nationally
recognized, dialectical behavior therapy (DBT) approach to
attempt to develop social and emotional skills in students with
severe deficits in these skills. To do so, the program teaches
students to notice and identify their emotions, to slow down and
consider alternatives rather than simply reacting, and to
interact constructively with other people. It teaches 6
fundamental behavioral skills so that the students, whose
difficulties in emotional regulation interfere with an ability
to learn in a more traditional setting, may acquire skills to
respond more productively to the challenges that confront them
in their day-to-day lives. The goal of the program is to enable
the students to return to their communities and their families,
to succeed in traditional educational programs, and to become
able to lead productive lives.
Entrance to the 3East program is selective. The admissions
process screens out any individual who is unstable or requires
hospitalization. Prospective residents also must demonstrate
that they are ready and willing to devote themselves to learning
these behavioral and cognitive skills, with the expectation that
they will be able to function in their respective communities in
the future. Once selected, participation in the immersive
residential program generally lasts for sixty to 120 days;
residents who complete the program successfully receive a
graduation certificate.
During their time at the 3East program, residents receive
approximately eleven hours per day of instruction and practice
in social and emotional skills, focused in five well-established
areas where prior research has shown that training can be very
effective: mindfulness and ability to pay attention; emotional 7
regulation; development and maintenance of interpersonal
relationships; distress tolerance; and validation.
According to Alan Fruzzetti, the director of the program
and the only individual explicitly credited by the judge,
mindfulness "in DBT is defined as being able to pay attention on
purpose in the present moment and without being judgmental." It
is considered the "core skill in DBT," and involves emotional
control and focus, which, the director pointed out, are
essential "for learning anything." Emotional regulation teaches
individuals how to identify the specific emotion "they are
feeling, so as to enjoy positive emotions and 'reduce their
reactivity to a whole host of different stimuli in the world.'"
Distress tolerance is "a set of skills" that helps people "get[]
through an apparent crisis" without making it "worse."
Validation skills allow individuals to recognize and accept
their own feelings and those of others without "judgments [that]
tend to fuel negative emotion" toward oneself and others.
A typical day at the 3East program begins at 8:30 A.M.,
with group mindfulness exercises, followed by classroom
instruction from 9 A.M until 4 P.M.3 After classroom work is
over, there are one and one-half hours for structured athletic
time or family therapy, followed by dinner and a final group
3 The students have a forty-five minute break for lunch, and fifteen minutes of group mindfulness exercises. 8
mindfulness exercise. After a forty-five minute period of
skills practice and homework worksheets, the students have a
period of free time until lights out at 10 P.M.
The curriculum is taught in an experiential manner by
specialists in clinical education. Each day, the students learn
multiple skills in forty-five minute classroom sessions, as well
as how to apply them to the complex problems in life that they
may encounter at home, school, or work. The process involves
formal training sessions, demonstrations and examples by the
instructors, group practice, and individualized practice
sessions for each student, as well as daily worksheets and
homework. Although a part-time registered nurse is available to
treat any medical issues that arise for staff or students, no
medical interventions are included as part of the program.
2. Discussion. The parties generally accept the judge's
findings of fact; they dispute only her determination that the
primary purpose of the proposed facility cannot be characterized
as "educational" under G. L. c. 40A, § 3, second par. "The
central issue in this case," then, "is one of law, not of fact."4
4 In Fitchburg Hous. Auth. v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869, 873 (1980), the court concluded: "If the judge's characterization of the proposed facility as a 'medical facility' is a conclusion that, as a matter of law, the proposed use would not be 'educational,' it must be reversed as an error of law." See id., citing New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 674 (1977). "To the extent that it is a finding of fact, it must be set aside as 'clearly 9
See Fitchburg Hous. Auth. v. Board of Zoning Appeals of
Fitchburg, 380 Mass. 869, 872 (1980). We must ascertain, based
upon the facts found by the trial judge, to which we afford
appropriate deference absent clear error, whether McLean's
proposed use of the property qualifies as having "educational
purposes" within the meaning of the Dover Amendment. See id. at
872-873. See also Kurz v. Board of Appeals of N. Reading, 341
Mass. 110, 112 (1960) (meaning of "educational use" in local
bylaw "is a question of law for the court").
a. Dover Amendment. The Dover Amendment exempts from
local zoning laws those uses of land and structures that are for
"educational purposes." See G. L. c. 40A, § 3, second par. The
Dover Amendment 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 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" (emphasis added).
In Regis College, 462 Mass. at 285-291, we articulated a
two-pronged test to determine whether a proposed use falls
erroneous.'" Fitchburg Hous. Auth., supra, quoting Mass. Civ. P. 52 (a), 365 Mass. 816 (1974). 10
within the protections of the Dover Amendment. First, the use
must have as its "bona fide goal something that can reasonably
be described as 'educationally significant.'" Id. at 285,
quoting Whitinsville Retirement Soc'y, Inc. v. Northbridge, 394
Mass. 757, 761 n.3 (1985). Second, the educationally
significant goal must be the "'primary or dominant' purpose for
which the land or structures will be used." Regis College,
supra, quoting Whitinsville Retirement Soc'y, Inc., supra at
760. The primary or dominant purpose requirement "helps ensure
that a party invoking Dover Amendment protection does so without
engrafting an educational component onto a project in order to
obtain favorable treatment under the statute." Regis College,
supra at 290.
b. Whether the proposed 3East program has an educationally
significant goal. The word "educational," as used in the Dover
Amendment, has been construed on numerous occasions, for more
than 120 years, as a "broad and comprehensive" term. See Regis
College, 462 Mass. at 285, quoting Mount Hermon Boys' Sch. v.
Gill, 145 Mass. 139, 146 (1887). Over time, we have made clear
that the protections of the Dover Amendment are not to be
"limited only to those facilities closely analogous to
traditional schools and colleges." See Regis College, supra at
286. Rather, the term "educational" encompasses that which is
"the process of developing and training the powers and 11
capabilities of human beings." Mount Hermon Boys' Sch., supra.
Thus, the Dover Amendment embraces fully "the idea that
education is the process of preparing persons for activity and
usefulness in life" (quotation and citation omitted). See
Fitchburg Hous. Auth., 380 Mass. at 875.
Based on our long-standing jurisprudence, it appears
relatively undisputed that the 3East program includes an
educationally significant component. Indeed, we repeatedly have
held that a program that instills "a basic understanding of how
to cope with everyday problems and to maintain oneself in
society is incontestably an educational process" within the
meaning of the Dover Amendment (emphasis added). See Fitchburg
Hous. Auth., 380 Mass. at 875. See also Gardner-Athol Area
Mental Health Ass'n, Inc. v. Zoning Bd. of Appeals of Gardner,
401 Mass. 12, 14 (1987) (proposed use educational where program
taught "daily living, as well as vocational skills, with the
goal of preparing [its residents] for more independent living").
That the 3East program encompasses an educationally
significant component, however, is not sufficient for the
program to fall within the ambit of the Dover Amendment. To do
so, the educationally significant goal of the program also must
be the predominant purpose for which the land and structures
will be used. See Regis College, 462 Mass. at 285. 12
c. Whether the primary or dominant purpose is educational.
The defendants contend that any educational components of the
3East program merely are ancillary to the predominant purpose
for which the facility would be established, that is, to provide
medical treatment for a particular psychological condition.
McLean responds that the educationally significant goal of the
3East program is also its dominant or primary purpose, and that
the Land Court judge erred in determining that the purpose is
predominantly "therapeutic."
This court has not held, as the defendants ask us to do,
that a skills development program loses its primary educational
purpose when the particular competencies taught also may be
therapeutic, rehabilitative, or remedial of an underlying
condition. To the contrary, courts in the Commonwealth have
concluded that "'education' and 'rehabilitation' do not denote
functions so distinct that [a local zoning authority or a court]
could be required to quantify them relative to each other."
Harbor Sch., Inc. v. Board of Appeals of Haverhill, 5 Mass. App.
Ct. 600, 604 (1977). See Gardner-Athol Area Mental Health
Ass'n, Inc., 401 Mass. at 15 ("Rehabilitation surely falls
within the meaning of education"). Indeed, those concepts "are
not mutually exclusive." See Harbor Sch., Inc., supra. Rather,
education encompasses that which is "particularly directed to
either the mental, moral, or physical powers and faculties, but 13
in its broadest and best sense it relates to them all."
Whitinsville Retirement Soc'y, Inc., 394 Mass. at 759.
A determination whether the land and structures at issue
here would be used for a predominantly educational purpose also
does not, and should not, turn on an assessment of the
population it serves. Although "emotional or psychiatric
programs may determine the character of the training furnished
to residents of the proposed facility," they certainly "do not
mark the facility as 'medical' or render it any less
educational." See Fitchburg Hous. Auth., 380 Mass. at 873, 875
("The fact that many of the residents of the facility . . . will
be taking prescription drugs does not negate its educational
purpose or make its dominant purpose medical"). Such
programming, rather, exists to "serve[] nontraditional
communities of learners in a manner tailored to their individual
needs and capabilities." See Regis College, 462 Mass. at 285-
286 (Dover Amendment applies to "facilities for the disabled or
the infirm"); Watros v. Greater Lynn Mental Health & Retardation
Ass'n, Inc., 421 Mass. 106, 108, 115-116 (1995) (Dover Amendment
applies to residential education facility for adults with mental
disability).
Thus, although the 3East program's facility and its
curriculum will be tailored to serve participants who previously
may have been inpatients at a psychiatric facility, that fact 14
alone does not serve to brand the 3East program as a medical
program. Nor does having been a patient at a psychiatric
facility in the past preclude an individual from participating
in a specialized form of education to learn the complex
emotional, social, and daily living skills necessary to
participate actively and succeed in life.
Indeed, the emotional and behavioral skills that would be
taught at the 3East program increasingly are becoming a
component of the educational curriculum in many traditional
public school settings across the Commonwealth. See, e.g.,
G. L. c. 69, § 1P (enacting framework for schools to help
students "regulate their emotions and behavior" and to integrate
"social and emotional learning," "children's mental health," and
"positive behavioral approaches"); Department of Elementary and
Secondary Education, Strategic Plan, at 1, 9 (rev. Feb. 2019)
(core strategy of public schools is "supporting the social,
emotional, and health needs" of students). See also J.J. Mazza,
E.T. Dexter-Mazza, A.L. Miller, J.H. Rathus, & H.E. Murphy, DBT
Skills in Schools: Skills Training for Emotional Problem
Solving for Adolescents, at 3-4, 26-33 (2016) (noting use of DBT
curriculum in both traditional and nontraditional academic
settings).
The defendants contend that the 3East program is
distinguishable from the facility in Fitchburg Hous. Auth., 15
because the 3East program has a psychiatrist on staff, and the
participants may be a threat to themselves or others, in light
of some of their histories of thoughts of suicide or self-
injurious behaviors. Cf. Fitchburg Hous. Auth., 380 Mass. at
873, 875. Should we conclude that the 3East program has a
predominantly educational purpose, the defendants caution
against a slippery slope in which every therapist's or doctor's
office or hospital could become a facility afforded protection
under the Dover Amendment. This, of course, is not the case.
While the presence or absence of medical personnel on staff
may be one factor in the calculus, it certainly does not alone
create the bright-line rule that the defendants suggest and,
without more, render a program medical and not educational. As
McLean points out, ordinary public schools often have registered
nurses or other medical personnel on staff. Nor does the
involvement of an individual therapist assigned to each
adolescent, for twice-weekly sessions throughout the course of
the program, transform the program into a medical treatment
plan. The students engage in what might equate to an
individualized therapy appointment for two hours of the roughly
seventy-hour week of structured skills training and group and
individual practice.
Moreover, the structure of the 3East program is distinct
from a medical appointment or an inpatient placement at a 16
psychiatric hospital. As stated, the full-time program includes
an admissions process, instruction on social and emotional
skills development, group and individual sessions, exercises to
practice the skills learned, structured social and athletic time
with classmates and peers, and homework and worksheets to
complete each evening. Compare Harbor Schools, Inc., 5 Mass.
App. Ct. at 600, 605 (residential facility for children with
emotional regulation issues was educational and not medical).
The teachers and therapists who form the staff at the 3East
program are not doctors. They are required to have a Bachelor's
degree, not unlike the teachers in schools across the
Commonwealth. They also have specialized training in areas such
as education theory, coaching, and DBT. Notably, the trial
judge explicitly found that no medical interventions are used in
the 3East program.
The defendants' argument that the 3East program exemplifies
our previously expressed concern that a purely residential
facility may not add an informal educational component merely as
a smokescreen in order to obtain favorable protections under the
Dover Amendment also is unavailing. See Regis College, 462
Mass. at 287 (optional coursework cannot be mere "window
dressing" for luxury condominium complex); Whitinsville
Retirement Soc'y, Inc., 394 Mass. at 760 (informal arts and
crafts program did not render nursing home educational). The 17
3East program includes a full-time, highly structured, mandatory
curriculum taught by formally and specially trained staff, upon
graduation from which the students ideally will return to their
respective high schools, colleges, and communities.
Finally, in an effort to distinguish the 3East program from
the programs at issue in Gardner-Athol Area Mental Health Ass'n,
Inc., 401 Mass. at 14, and Fitchburg Hous. Auth., 380 Mass. at
871-872, the defendants and the Land Court judge rely on a
purported dichotomy between "outward"-facing skills (i.e., those
that help assimilate individuals into their respective
communities) and "inward"-facing skills (i.e., those that help
address any internal manifestations or symptoms of a mental
disorder). We have not previously endorsed such a distinction,
nor do the parties identify any case law or scientific research
that would support such a concept. As the plaintiff indicates,
inward-facing skills, which presumably would encompass the
mindfulness, emotional regulation, distress tolerance, and
validation components of the program, also have an enormous
impact on an individual's ability to engage in work or study,
and to interact outwardly with others. See Fitchburg Hous.
Auth., supra at 875 (baseline skills to "cope with everyday
problems and to maintain oneself in society" deemed
educational). Moreover, the "development and maintenance of
interpersonal relationships," one of the five core program 18
components, is explicitly limited to outward-facing skills. The
gym activities and group mindfulness activities also incorporate
mandatory group and interpersonal components.
Both inward-facing and outward-facing types of skills, even
assuming they can be meaningfully parsed in this manner, are
part of "the idea that education is the process of preparing
persons 'for activity and usefulness in life'" (citation
omitted), Fitchburg Hous. Auth., 380 Mass. at 875, and thus
protected as a significant educational purpose under the Dover
Amendment. While we have made clear that "a basic understanding
of how to cope with everyday problems and to maintain oneself in
ambit of the Dover Amendment, id., it also would be impossible
to exclude the acquisition of these skills from serving a
"therapeutic" purpose.
We accordingly agree with McLean that, in situations of
this type, an attempt to sever that which is educational from
that which is therapeutic is ordinarily a rather futile
exercise. Focusing on the "therapeutic" aspects of a program
such as the one at issue shifts the analysis from the program's
educational purposes, and whether education is a significant
part of the program, to the type of student who is participating
in the program, which is precisely what, as we have said, should
not be the foundation of an analysis under the Dover Amendment. 19
We decline once again to adopt as dispositive a distinction
between education with a therapeutic purpose -- to teach how to
live in society, cope with daily tasks, and interact with
others -- and education with a traditional academic purpose.
See Regis College, 462 Mass. at 285-286, 291. We also decline
to adopt the judge's parsing of distinctions between a
"therapeutic" program to teach inward-facing life skills and an
"educational" program to teach outward-facing life skills. See
Mount Hermon Boys' Sch., 145 Mass. at 146 ("educational" purpose
encompasses "the process of developing and training the powers
and capabilities of human beings").
In sum, that the curriculum of the 3East program may
encompass elements of teaching emotional regulation, and allows
two percent of the weekly program hours to be devoted to
individual therapy, or that some of the skills are taught by
clinical professionals, does not negate the fact that the
predominant purpose of the 3East program is educational. Cf.
Watros, 421 Mass. at 108, 115-116 (residential facility for
adults with mental disability was educational within meaning of
Dover Amendment notwithstanding therapeutic aspect). To the
contrary, these features indicate that the 3East program is a
specialized form of education, with therapeutic aspects, that
ultimately teaches its participants the skills necessary for 20
their success, "activity and usefulness in life" (citation
omitted).5 See Mount Hermon Boys' Sch., 145 Mass. at 146.
3. Conclusion. The judgment is vacated and set aside, and
the case is remanded to the Land Court for entry of judgment in
favor of McLean.
So ordered.
5 Our conclusion in this regard comports with the legislative history of the Dover Amendment, which we have had considerable occasion to examine in the context of educational programs. See, e.g., Regis College v. Weston, 462 Mass. 280, 286 (2012); Trustees of Tufts College v. Medford, 415 Mass. 753, 757-758 (1993). In so doing, we have noted that, although the Department of Community Affairs had proposed "that Dover Amendment protection be limited to 'school[s]' or analogous 'place[s] or facilit[ies],'" see 1972 House Doc. No. 5009, at 84, the Legislature rejected this language. See Regis College, supra. It thus opted not to adopt "a statutory test that would limit Dover Amendment protection only to projects similar to 'schools.'" See id. The Dover Amendment also exists, in part, to protect educational institutions from a municipality's exercise of preferences as to what kind of educational facilities it will welcome, "the very kind of restrictive attitude which the Dover Amendment was intended to foreclose." See The Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19, 33 (1979). The use of land for nontraditional educational accordingly was anticipated by the drafters of the Dover Amendment.