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Pierce & Mandell’s Recent Land Court Victory Regarding Scope of the Dover Amendment Now Heading to the Appeals Court

Wednesday, November 21, 2018

By: Michael C. Fee

Pierce and Mandell - Michael C. FeeThe ruling in The McLean Hospital Corporation v. The Town of Lincoln and others et al., concerns an appeal from a Lincoln ZBA determination that McLean’s proposed use of residential property is not exempt from zoning under the Dover Amendment, G.L. c. 40A, § 3. Pierce & Mandell shareholder Michael C. Fee represented a group of abutters who opposed the project.

The Lincoln Proceedings

Throughout the case McLean described its intended use as "a residential program implementing a highly structured model of learning behavior through a specialized curriculum known as Dialectical Behavior Therapy (“DBT”).” The program is currently one of two residential programs located on the grounds of McLean in Belmont and is referred to as the 3East Boys Program. It is designed principally to serve persons suffering from symptoms associated with Borderline Personality Disorder (“BPD”).

The Lincoln Building Commissioner initially determined that the proposed use was in fact educational and therefore zoning exempt. The abutters appealed to the ZBA who overturned the Commissioner’s determination. In that decision, the ZBA recognized that while there "are aspects of the methodology used by DBT that look similar to the standard methods of education," they are "not being utilized for the purpose of education, in either the traditional or non-traditional sense. Rather, they are being used as a therapeutic technique (and a recognized and effective one) to address and treat a psychological condition, to cure or ease the effects of BPD on young males." The ZBA concluded that "the objective of the program is treatment of a mental disease or disorder; the curative aspects of the program predominate.” McLean appealed to the Land Court.

The Land Court Trial

By agreement, the parties framed the sole issue for trial as "whether the proposed use of [the Property] is educational as that term is used in G. L. c. 40A, § 3, Lincoln By-law § 6.1(g), and case law interpreting the so-called Dover Amendment." Throughout the course of the trial, McLean characterized the proposed treatment program as a learning based, educational model, whose primary emphasis was to teach adaptive skills to help patients manage their BPD symptoms and improve their quality of life. McLean emphasized the acquisition of “skills” and downplayed the fact that the teaching, generalization and validation of skills was also a component of a broader, comprehensive therapeutic program.

The Town and abutters countered that while McLean’s program provides an effective and beneficial treatment to adolescent boys with an acute mental illness, the services could not be fairly characterized as predominantly educational. Instead, the program delivers a complex and coordinated treatment regimen, implemented by highly trained teams of medical professionals, led by licensed psychologists, psychiatrists and social workers. The “skills training” offered by McLean is not primarily for the purpose of educating an individual, but rather to treat an illness in a manner that will simply allow the typical patient to function without resorting to the suicidal and self-harm tendencies that are a component of the illness.

The facts required analysis of nuanced intersection between developing concepts of education, and traditional constructs that frame treatment of mental illness. While the case law establishes broad parameters for what may be considered a protected educational use under the statute, at the same time courts have recognized that there are limits, and just by virtue of the fact that something is taught, does not inherently render the activity a protected educational activity under the Dover Amendment. Kurz v. Board of Appeals of North Reading, 341 Mass. 110, 113 (1960.)

Dover’s Historical Treatment of Educational Uses

G.L. c. 40A, § 3 “preempt[s] the uniform application of zoning laws only where those laws impede the use of land for educational activities, and not where their primary effect is on noneducational uses... [I]n order to claim the protection of the Dover Amendment's ‘educational purposes’ clause, a landowner must demonstrate that its use of land will have as its primary purpose a goal that can reasonably be described as educationally significant.” Regis Coll. v. Town of Weston, 462 Mass. at 291. “In employing the phrase ‘educational purposes,’ the Legislature used ‘everyday words’ that must be interpreted in view of common usage . . . [I]n a broad sense, anything taught might be considered, to a greater or less degree, educational.’ Kurz v. Board of Appeals of N. Reading, 341 Mass. 110, 113 . . . however, the Dover Amendment is a statute regulating ‘land use, not philosophy,’ See Needham Pastoral Counseling Ctr. v. Board of Appeals of Needham, 29 Mass. App. Ct. 31, 34, (1990), and a facility would only be described as ‘educational’ in common usage if it served primarily educational purposes.” Regis Coll. v. Town of Weston, 462 Mass. at 288-289.

In order to be a qualified educational use under the statute, a program must have as its “bona fide goal something that can be reasonably described as ‘educationally significant’.” Regis College v. Town of Weston, 462 Mass. 280, 285 (2012). Moreover, such “educationally significant goal must be the primary or dominant purpose for which the land or structures will be used.” Id. (internal citations omitted).

Numerous courts have considered whether similar types of programs have educationally significant goals which are the primary and dominant purpose of the project. In rejecting or approving these requested exemptions, courts have focused on the specific attributes of the proposed programs , including who is teaching , who is being taught , the content of the material conveyed , and the overall purpose or goal of the activity. Finally, and critically, courts have sought to look beyond the individual activities or components of a program in an effort to determine whether, in the aggregate, the proposed use is educational.

Historically Massachusetts courts have held that residential programs providing a traditional education to individuals with special needs, like the program described in Harbor Sch., Inc. v. Bd. of Appeals of Haverhill were educational. In that case, the program at issue involved “periodic diagnostic reading tests which consist of word recognition, word analysis, [and] various achievement tests which involve world [sic] . . . knowledge, reading comprehension, spelling, language, simple mathematical computation, (and) mathematical problems”. Id. Harbor Sch., Inc. clarified that a program, including a residency program, which adapts traditional educational instruction in reading, writing, and mathematics to meet the needs of a particular population of individuals is “educational” under G.L. c. 40A, § 3. Id. at 605.

The principle has endured. In Fitchburg Hous. Auth., the SJC considered whether a facility for “chronically disturbed people who have been in mental institutions” was eligible for exemptions as an educational use. In that case, the use was a “training program aimed at developing or learning social and interpersonal skills such as learning to keep themselves physically clean, learning to shop and how to use money, [and] learning to cook.” Id. at 871-872. Based upon those facts, the SJC determined that the program in Fitchburg was educational and described it as “[i]nstruction in the activities of daily living.” 380 Mass. at 875. See also Gardner-Athol Area Mental Health Ass'n, Inc., 401 Mass. at 14, (“The residents would be taught daily living, as well as vocational skills, with the goal of preparing them for more independent living.”).

While the definition of “educational” is expansive, it is not all-inclusive. As was particularly relevant in this case, the court in Fitchburg distinguished an “educational” program from what the lower court deemed to be the operation of “a medical facility” based on the fact that the program in Fitchburg did not include doctors, and that the program participants were unlikely to harm themselves or others. 380 Mass. at 873. (“There will be no nurses or doctors regularly in attendance at the facility. There is no indication that the residents will be a threat to themselves or to the public.”).

Other courts have found this distinction significant. For example, in a 1988 ruling, the Land Court determined that a facility offering education intended to prevent the onset of mental illness was “educational” under G.L. c. 40A, § 3 because “common indicia of a doctor-patient relationship such as the formation of a contract or alliance, individualized diagnosis and treatment, the payment of fees, and the keeping of progress notes and other records, were not present. [The organization] does not purport to treat mentally ill persons, and in fact attempts to screen such persons from its programs.” Life Studies Found., Inc. v. City of Newton, No. 117068, 1987 WL 966066, at *6 (Mass. Land Ct. Nov. 19, 1987), aff'd, 26 Mass. App. Ct. 1111, 527 N.E.2d 752 (1988).

Similarly, in a 2004 case, the Land Court found that a program involving “weekly workshops (minimum three hours) focusing on skills such as functional resume writing, interviewing for a job, cooking and healthful food shopping, home maintenance and house cleaning, car repair and maintenance, rejoining the work world, creating satisfactory relationships with co-workers and supervisors, parenting skills, conflict resolution, balancing a checkbook, creating a monthly budget, and dealing with the stigma of mental illness” fell within the parameters of education, and expressly noted that “[t]he lack of medical personnel onsite is identical” to the Fitchburg case.” Austen Riggs Ctr., Inc. v. Considine, No. 288451, 2004 WL 1392279, at *2 (Mass. Land Ct. June 22, 2004).

Applying the case law to the facts in Lincoln, the Town and abutters argued that the serious psychological conditions afflicting the patients McLean proposed to treat were markedly distinguishable from individuals receiving educationally significant services in the context of residential group home care. In fact, all cases in which courts have found educationally significant uses in the group home context involve individuals lacking in life or interpersonal skills that interfere with their ability to function independently in society, and detract from their quality of life. Typically, such programs serve as an immediate bridge to employment or education. Courts have drawn a bright line, however, when such programs approach active medical treatment, nursing home equivalence, or adult day care. In fact, no case law supports the contention that active psychiatric treatment of persons suffering from mental illness is “educationally significant” as that term is utilized in the context of the Dover Amendment.

The Land Court’s Ruling

The Court ultimately found that “the expansive case law interpretation of education does not reach the use proposed in this case for two reasons: First, to the extent the cases have broadened the traditional definition of education (i.e. coursework in school settings), the cases have embraced teaching in non-traditional settings, or to non-traditional learners, or both. The nature of the curriculum has been what the courts have characterized as 'core life skills' such as cooking, shopping, job-seeking, or other skills people need on a daily basis to function in society. Programs more medical in nature have been excluded from the broad definition.”

More specifically, the Court noted that “[u]nlike the programs described in Fitchburg Hous. and Gardner-Athol, McLean's proposed program does not teach such core life skills. Instead, the skills training offered by the 3East Boys Program targets the "emotional dysregulation" caused by Borderline Personality Disorder and related mental health diagnoses. The goal is self-management of the disorder so the participants can rejoin their families, return to school, or, in some cases, return to residential treatment centers.

Rather than educating the participants in daily living skills focused outward - toward assimilation into the community - and which are distinct from the participants' mental illness - the 3East Boys Program focuses on developing skills which look inward and pointedly address the manifestations of the individual's diagnosis.”

Finally, the Court concluded that “to the extent one could characterize the curriculum of the 3East Boys Program as educational due to the manner of teaching or the structure of the program itself, those components are secondary to the dominant and primary purpose. This court is persuaded that the purposes that are primary and dominant are therapeutic and curative, providing individuals who need significant intervention and tools at their disposal to help them deal with the inability to regulate their emotions due to their mental illness. The skills offer a chance to get beyond crisis points in their lives and have a method to call on in the future when needed.” McLean has filed a Notice of Appeal and may seek direct appellate review to Supreme Judicial Court. We will offer further commentary and analysis as the case progresses.

You can read the Land Court’s Decision in its entirety here:

https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3A164a39a2-0bbf-4e50-98b5-e2469568797d

Michael C. Fee is Pierce & Mandell shareholder with extensive experience in zoning and land use litigation. He can be reached at mfee@piercemandell.com.

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1See Harbor Sch., Inc. v. Bd. of Appeals of Haverhill, 5 Mass. App. Ct. 600, 603 (1977) (Reviewing details of program to determine whether or not it is educational); Whitinsville Ret. Soc., Inc. v. Town of Northbridge, 394 Mass. 757, 760 (1985) (same); Fitchburg Housing Authority v. Board of Appeals of Fitchburg, 380 Mass. 869, 870-871 (1980) (same); Gardner-Athol Area Mental Health Ass’n v. Zoning Bd. of Appeals of Gardner, 401 Mass. 12, 16 (1987) (same).

2Whitinsville Ret. Soc., Inc. v. Town of Northbridge, 394 Mass. 757, 761 n. 3 (1985) (finding no “trained professionals” would be educating the residents).

3See Comm'r of Code Inspection of Worcester v. Worcester Dynamy, Inc., 11 Mass. App. Ct. 97, 99 (1980) (“high school seniors of the city of Worcester may enroll in the program for credit as a substitute for the senior year.”); Metrowest YMCA, Inc. v. Town of Hopkinton, No. 287240, 2006 WL 1881885, at *7 (Mass. Land Ct. July 10, 2006) (“The YMCA members and others who participate in programs there are not ‘students’”).

4See Fitchburg Hous. Auth., 380 Mass. at 872 (“interpersonal skills such as learning to keep [. . .] physically clean, learning to shop and how to use money, (and) learning to cook” deemed educational); Harbor Schools, Inc. v. Board of Appeals of Haverhill, 5 Mass. App. Ct. 600, 603 (1977) (each of these children admitted needs emotional psychiatric adjustment as well as daily educational indoctrination in the basic studies such as English, mathematics, science, etc.”); compare Kurz, 341 Mass. at 113 (“teaching of the various types of dances advertised by the plaintiff, with the possible exception of the classical ballet, can hardly be considered educational use in the ordinary sense.”)

5See Whitinsville Ret. Soc., Inc., 394 Mass. at 760 (“The issue is whether the plaintiff's project ‘is operated primarily for an educational purpose.’”) (quoting Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 603 (1977)).

6See Fitchburg Hous. Auth., 380 Mass. at 873 (“The fact that many of the residents of the facility will have been residents of mental institutions and will be taking prescription drugs does not negate its educational purpose or make its dominant purpose medical. There will be no nurses or doctors regularly in attendance at the facility. There is no indication that the residents will be a threat to themselves or to the public.”); Austen Riggs Ctr., Inc. v. Considine, No. 288451, 2004 WL 1392279, at *3 (Mass. Land Ct. June 22, 2004) judgment entered, No. 288451, 2004 WL 1392281 (Mass. Land Ct. June 22, 2004) (“[T]he facts of this case make it clear that there will be minimal medical treatment at the Property, and the predominant use is educational in nature.”); Life Studies Found., Inc. v. City of Newton, No. 117068, 1987 WL 966066, at *6 (Mass. Land Ct. Nov. 19, 1987), aff'd, 26 Mass. App. Ct. 1111, 527 N.E.2d 752 (1988) (“[C]ommon indicia of a doctor-patient relationship such as the formation of a contract or alliance, individualized diagnosis and treatment, the payment of fees, and the keeping of progress notes and other records, are not present. Life Studies does not purport to treat mentally ill persons, and in fact attempts to screen such persons from its programs.”); see also Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 37 Mass. App. Ct. 657, 658 (1994), aff’d, 421 Mass. 106 (1995) (no active medical treatment on site).

7Whitinsville Ret. Soc., Inc., supra at 760-761 (Finding that an “element of education” was insufficient to render a nursing home educational).

8Regis Coll. v. Town of Weston, 462 Mass. at 291 (“[T]o qualify for Dover Amendment protection, the plaintiff must establish that the residential and recreational aspects of Regis East do not constitute its primary purpose but instead support the project's dominant educational purpose of providing academic and health-related instruction to older adults.”).

Bill Mandell was Quoted in the April 2017 Emergency Department Legal Letter Article

Thursday, April 06, 2017

Pierce & Mandell, Curtis DoolingBill Mandell was quoted in the April 2017 Emergency Department Legal Letter article on visitors and guns in hospital emergency departments and suggested a useful policies for hospitals to consider.



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