17C-220 (25) institution, it is my opinion that, given the preliminary plans
shown us by Valley Programs, the proposed use for Building Code
purposes is not that of an educational institution but that of a
lodging house.
The foregoing opinion is based on the representations made and
plans shown at our meeting with the representatives of Valley
Programs. Naturally, if Valley Programs substantially alters its
intentions as to the use and physical setup of the site, my opinion
may change as a result of such alterations.
However, unless it can be shown that the failure to comply will
seriously compromise the health and/or safety of persons or create
a risk of substantial property damage, the use cannot be barred for
failure to provide all ten (10) required spaces.
It is important to differentiate between an educational use for
zoning purposes and an educational use for building code purposes.
"Educational use" in a zoning context is a very broad term. In an
effort to counteract the NIMBY factor and facilitate the
establishment of group homes, halfway houses, and similar
facilities, the courts have required only a very tenuous connection
to educational activities to support an educational use
designation. If a use teaches "life skills" (i.e. social
interaction, hygiene, housekeeping, independent living techniques,
etc. ) , it qualifies as an educational use for zoning purposes. No
fixed classes, textbooks, or any of the usual trappings of
educational activities are necessary.
Therefore, since Valley Programs represented that it will be
teaching "life skills" to residents of the North Maple Street
property as part of its operation at the former Cottage Kitchen
property, the use will qualify as "educational" . The Inspection
Department can require Valley Programs to maximize parking spaces,
but, if the site cannot support the total number required for the
residential and commercial uses, the use cannot be barred for that
reason.
However, a use that qualifies as "educational" for zoning purposes
may be something quite different for Building Code purposes. In
the Building Code context, it is necessary to look at what
activities are really occurring at the site because of the use.
The standard of review is the "duck" test. (If it looks like a
duck, walks like a duck, quacks like a duck, it's a duck, even if
for zoning purposes you called it an elephant! )
In the case of the North Maple Street property, Valley Programs
indicated that it intends to have commercial uses in the front of
the first floor along with a handicapped residential unit, a common
kitchen, and a common living room. The two upper floors will
contain single rooms without individual kitchen facilities or
baths. Given the preliminary plans submitted, the use looks like
a lodging house with a commercial component. Therefore, the
standards applicable to lodging houses/commercial space under the
Building Code should be used.
Even if Valley Programs conducts some type of formal educational
activities in the building (such as a GED class or vocational
training) , that will not automatically convert the use into an
educational one (i.e. classrooms, dormitories) for purposes of the
Building Code. An educational institution usually has an admission
policy for admittance, charges tuition, establishes a set
curriculum, requires attendance at classes, and awards a
degree/certificate upon completion. Unless the activities at North
Maple Street closely approximate those of an educational
?�4To
City of Northampton
Law Department
MEMORANDUM
TO:
Anthony Patillo, Asst. Building Commissioner
FROM:
Kathleen G. Fallon, City Solicitorl(�(.k
SUBJECT:
Former Cottage Kitchen property
DATE:
January 26, 1995
I understand that there may be some confusion over defining the use
of the above property for purposes of determining the applicable
sections of the Building Code. You have, therefore, requested an
opinion on this matter. First, it is necessary to differentiate
between the "use" for zoning purposes and the "use" for Building
Code purposes.
M.G.L. Chapter 40A, Section 3, exempts structures used for
"educational purposes" by non-profit (i.e. organized under M.G.L.
Chapter 180) "educational" corporations from the use provisions of
local zoning regulations. The courts have interpreted
"educational" in this context very broadly. Basically, any non-
profit corporation which provides direct services to persons with
mental, physical, social, economic, or substance abuse problems
will qualify as an "educational" corporation. Half-way houses,
group homes, shelters, and lodging houses run by such corporations
have all been ruled by the courts to be "educational" uses which
are exempt from the use provisions of local zoning.
However, Section 3 does allow a local community to apply reasonable
regulations related to "bulk and height. . .yard sizes, lot area,
setbacks, open space, parking and building coverage. . . " The key
word here is "reasonable" . The courts have ruled that a community
cannot use local density and dimensional regulations to frustrate
the use protection provision of Section 3 . Unless the community
can show that the violation of a density or dimensional regulation
by the use creates a clear and present danger to persons or
property, the use cannot be barred for failure to comply. The
community can require compliance to the extent that is feasible.
For example, the lot on which an educational use is to be located
currently has five (5) parking spaces and the use requires ten (10)
under local zoning regulations. The lot has room for only eight
(8) spaces. The community can require that the non-profit
corporation conducting the use construct the extra three (3) spaces
so that it may come as close to compliance as is feasible.