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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.