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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

society is incontestably an educational process" within the

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.
