MetroWest YMCA vs Town of HopkintonMassachusetts Land Court.
Department of the Trial Court, Middlesex County.
METROWEST YMCA, INC., Plaintiff,
v.
TOWN OF HOPKINTON; Robert W. Foster, Ross D. Ginsberg, Russell H. Ellsworth, Thomas J. Garabedian, and Sarah L. Shepard as they are members of the Hopkinton Zoning Board of Appeals;
The Hopkinton Zoning Board of Appeals; and Michael Shepard, Director of Municipal Inspections, Defendants.
David Fabian, Leslie Fabian, James Stewart, Susan Stewart, Pamela Van Sipe, Sean O'Connor, Betty Eng and Norman Horton, Plaintiffs,
v.
Town of Hopkinton; Robert Foster, Mary Harrington, Ross Ginsberg, Russell Ellsworth, Thomas Garabedian, Robert Firnstein, Henry Kunicki, Wayne Davies, and Sarah Shepard as they are members
of the Hopkinton Zoning Board of Appeals, The Hopkinton Zoning Board of Appeals, and Metrowest YMCA, Inc., Defendants.
Nos. 287240, CIV.A. 03-0467.
July 10, 2006.
DECISION
GORDON H. PIPER, Justice.
*1 In these consolidated cases, I must decide whether the project proposed by MetroWest YMCA, Inc. to be constructed and carried out on its land in the Town of Hopkinton (“Town”) is
entitled to the benefits and protections afforded by the “Dover Amendment” provisions of G.L. c. 40A, § 3. After trial, on all the evidence, I conclude that MetroWest and its proposed
construction and activities do not qualify for the benefits and protections available under the Dover Amendment.
This decision is in two separate cases, one filed in the Superior Court Department and one in this court, which have been consolidated for trial.
MetroWest YMCA, Inc. (“MetroWest” or “YMCA”) filed its complaint in the Land Court Department on January 31, 2003, appealing from a decision (“Decision”) of the Town of Hopkinton Board
of Appeals (“Board”), and naming its members as defendants. The Decision was voted by the Board on January 8, 2003, and filed with the Clerk of the Town on January 14, 2003. As plaintiff
in the Land Court case, MetroWest requested declaratory and injunctive relief, a judicial determination that MetroWest and its proposed project meet the requirements of the Dover Amendment,
judgment that the decision of the Board was arbitrary and capricious, and an injunction compelling the Town's building inspector to issue plaintiff a building permit as a matter of
right.
The plaintiffs (“neighbors”) in the Superior Court suit are neighbors who own homes and live near MetroWest's land and project site. These neighbors filed suit on February 3, 2003 in
the Superior Court Department, Middlesex County, appealing, among other things, the Board's determination in the Decision that the YMCA's proposed use of its land in Hopkinton is a
public recreational or educational use within the meaning of § 210-12(E) of Hopkinton's zoning by-laws (“bylaws”). In April of 2003, the Chief Justice for Administration and Management
entered an order that a justice of the Land Court be assigned to preside over this Superior Court action (and another pending one, see note 1).
The court held an ADR conference August 27, 2003; no referral issued. On October 9, 2003, I allowed a motion to consolidate the Land Court and Superior Court cases.FN1 I held a pre-trial
conference February 10, 2004, and at the court's direction the parties filed a revised joint pre-trial memorandum on
May 10, 2004. In the presence of counsel and the parties, I took a view of the MetroWest land, and its surroundings, including the homes of the neighbors, on June 8, 2004. The trial
was conducted in Boston on three consecutive days from June 9 to June 11, 2004. Karen Smith was sworn to transcribe the testimony. Sixty-six exhibits were introduced in evidence. The
following witnesses testified: Scott Lindgren, Elaine Lazarus, John Sheskey, Jeanne McAllister, Lisa Mandozzi, Sandra Livis, Jill Bartlett, Suzanne Odell, and Pamela Van Sipe.
FN1. In November of 2003, I allowed the voluntary dismissal of an earlier Superior Court action filed by the neighbors, C.A. 02-3111. This case concerned a preliminary permit issued
with respect to the MetroWest project, but not pursued by MetroWest, and the parties did not dispute that this first lawsuit had become moot.
YMCA filed its post-trial brief on November 4, 2004. The neighbors filed their post-trial brief on the same day, along with their proposed findings of fact and rulings of law, and the
Town of Hopkinton submitted its request for findings of fact and conclusions of law at that time as well. The parties requested the opportunity to offer post-briefing argument to the
court, which I heard on January 13, 2005.
*2 On all of the testimony, exhibits, stipulations, and other evidence introduced at trial or otherwise before me, and all the reasonable inferences I draw therefrom, and taking into
account the pleadings, and the memoranda and argument of the parties, I find the following facts and rule as follows:
1. MetroWest is a Massachusetts non-profit corporation organized under G.L. c. 180, with its principal place of business at 280 Old Connecticut Path, Framingham.
2. MetroWest owns a 116-acre facility located at 45 East Street, Hopkinton, as well as an additional 3.1 acres directly across the street from this facility. These parcels (together
the “Site”) are the location of the project which has given rise to this litigation.
3. The Site is located in an area zoned, under the Town's zoning by-laws, as an “A” or Agricultural District. A residential lot in this district must contain 60,000 square feet. The
area on East Street and generally around the MetroWest project site is suburban, residential, and somewhat rural in character, with well-spaced houses on large lots (including those
of the neighbors who are parties) constituting the predominant use in the area other than MetroWest's current use of its land. East Street in this vicinity is relatively narrow, with
moderate curves, paved, and lacks sidewalks. It has been designated a scenic road by the Town.
4. The neighbors are the owners of single-family residential properties either abutting or in close proximity to the Site.FN2
FN2. For purposes at least of the issues tried to the court in this phase of these cases, the parties have stipulated that the neighbors have standing to sue under the statute, and there
is nothing in the evidence adduced at trial or otherwise known to me which would lead me to doubt their standing.
5. MetroWest proposes to build and use on this Site a project (“project”) which would include: a 25,190 sq. ft. building designed to contain new structures and spaces, including for
an indoor pool, 3 locker rooms, 2 movement studios, multipurpose rooms, administrative offices, and a wellness center. The substantial majority of the project's building square footage
(leaving aside mechanical, maintenance, entry, corridor, and other non-programmatic spaces) are devoted to the indoor pool, pool viewing area, locker rooms, the movement studio, and
wellness area. The proposed new youth/senior multi-purpose and meeting areas constitute less than 2,000 square feet of the total project space. The project would
renovate and expand the YMCA's existing presence on the site, which comprises three buildings, an outdoor pool and related facilities. MetroWest has conducted programs on the site since
the early 1960's. MetroWest's project would add 151 parking spaces. There is no serious dispute that the project, if completed according to plan, would comply with the basic dimensional
requirements applicable in the A district, including for minimum lot area, lot frontage, setback from street lines, side yard, rear yard depth, maximum lot coverage, and maximum height.
6. On July 12, 2001, MetroWest filed a building permit application for the project. MetroWest filed a second application for plan review and a building permit in two submissions, the
first made on July 25, 2002, and the second on August 12, 2002.
*3 7. In response, on September 17, 2002, the Town's Director of Municipal Inspections (the “building inspector”) informed MetroWest's representatives by letter that he believed that
the facility was to be used for “educational” purposes pursuant to the Dover Amendment, G.L. c. 40A § 3. He determined that MetroWest's proposed use would constitute a public educational
and recreational use within the meaning of bylaws sections 210-15.C and 210-12.E (a use permitted of right in the A District), and he requested that the project be submitted by MetroWest
for site plan and design review by the Planning Board, see bylaws sections 210-133 et seq and 210-141 et seq., which apply to construction in excess of 1,500 square feet of gross floor
area. The building inspector did assure MetroWest that, in his view, the Project would not require the issuance of a special permit to proceed. Because he determined that he lacked
sufficient information to issue the requested building permit, he declined to do so.
8. On October 3, 2002, MetroWest responded to the building inspector, declining to apply for site plan review on the grounds that the Project's proposed use was exempt pursuant to the
Dover Amendment provisions of G.L. c. 40A, § 3. MetroWest offered instead to meet with the Planning Board voluntarily.
9. On October 15, 2002, nearby residents, who are some of the neighbors involved as parties in this litigation (James and Susan Stewart, David and Leslie Fabian, Pamela Van Sipe, and
Sean O'Connor) appealed the building inspector's decision to the Board on the grounds that the Project did not constitute an “educational” use under the Dover Amendment.
10. On November 1, 2002, MetroWest notified the building inspector that due to this appeal by these neighbors to the Board, MetroWest declined to meet informally with the Planning Board.
11. In response, on November 8, 2002, the building inspector sent a letter to MetroWest denying the requested building permit, on the grounds that he did not have sufficient information
upon which to determine the reasonableness of the application of the Town's bylaws to the Project.
12. The Board held a hearing November 13, 2002, and voted on its decision on January 8, 2003, partially overturning the decision of the building inspector. The board determined, inter
alia, that MetroWest qualified as a nonprofit educational corporation under the Dover Amendment; that the primary purpose of the Project was not educational for purposes of the Dover
Amendment; and that even though some educational activities would take place at the Project site, MetroWest had not satisfied its burden to show that these uses would predominate. The
Board also concluded that the facilities MetroWest intended to build as part of the Project would be primarily non-educational in purpose and use, and that MetroWest had not shown that
those new non-educational facilities would be secondary to the existing and proposed educational facilities at the site. The Board came to the decision that MetroWest had not sufficiently
demonstrated that its Project qualified to enjoy the benefits afforded under the Dover Amendment, including any exemption from site plan review requirements. The Board did agree with
the
building inspector that the proposed use of the Site by MetroWest was as a public recreational and educational use, as set out in section 210-12.E of the bylaws. The Board decided, as
well, that the project was subject to major site plan review under bylaws sections 210-133 et seq. and design review under 210-141 et seq.
Dover Amendment Standard
*4 The Dover Amendment provides, in relevant part, that
No zoning ordinance or bylaw 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.
G.L. c. 40A § 3.
Statutory qualification for protection under the Dover Amendment involves both the type of entity that owns the land involved (“land owned ... by a religious sect or denomination, or
by a nonprofit educational corporation ...”) and the use made of that land (“the use of land or structures for religious purposes or for educational purposes ...”). The statute requires
both tests to be met. The neighbors who challenge MetroWest's claim to Dover Amendment status say that MetroWest and its project do not meet either of these conjunctive requirements.
Qualification as a nonprofit educational corporation.
MetroWest is a corporation organized under G.L. c. 180, § 3. While MetroWest's nonprofit status is not genuinely in dispute in this litigation, its classification as an educational corporation
is. MetroWest's articles of organization, first filed (under its original name, the Regional Young Men's Christian Association) with the Secretary of the Commonwealth in 1960, described
its purposes in words that do not evince a plainly educational mission: “The Regional Young Men's Christian Association, Inc. is a fellowship of members, primarily young people, whose
purpose is to develop character and leadership in accordance with Christian principles.” These are words which bespeak a mission fostering fellowship among young members, a devotion
to improvement of character, and promotion of leadership, but not education in the ordinary use of the term.
Just days before trial, however, MetroWest amended its articles of incorporation. On June 2, 2004, the articles changed to alter the corporation's stated purposes, for the first time
since 1960: “The MetroWest YMCA is organized, and shall be operated exclusively, for charitable, educational and recreational purposes within the meaning of section 501(c)(3) of the
Internal Revenue Code of 1986 and shall conduct such other activities as are permitted for a charitable corporation under Massachusetts law. In furtherance of these purposes the corporation
shall develop, establish and administer a Young Men's Christian Association.” For the first time in roughly forty-four years, MetroWest's articles set out education as one of the corporation's
explicit chartered purposes.
The decisional law has come to place great weight on the corporate purposes laid out in the articles of organization in determining whether or not the entity qualifies, under the Dover
Amendment, as a nonprofit educational corporation. See, eg., Gardner-Athol Area Mental Health Assoc., Inc. v. Zoning Bd. of Appeals of Gardner, 401 Mass. 12, 15-16 (1987): “The proper
test in deciding whether a nonprofit corporation is an educational one is whether its articles of organization permit it to engage in
educational activities, a question easily answered by a review of documents filed with the State.” The court has required only that educational activities “be within the corporate purposes
of the nonprofit corporation ...,” not that the educational purpose be the corporation's primary one. Id., at 16. The court's opinion clarifies that the inquiry is an obvious one-to
determine whether, in carrying out the contemplated educational activities, the nonprofit corporation will be acting ultra vires. Id.
*5 The neighbors put great weight on the last minute amendment of MetroWest's articles. The neighbors contend this change was opportunistic, and shows that education was not part of
the traditional, long-standing mission of MetroWest. They say that MetroWest only inserted the purpose of education into its articles when it faced municipal skepticism about whether
its project qualified under the Dover Amendment. They also say that the amended MetroWest articles were sprung on them (and the court) at the last minute, not having been even adverted
to in extensive discovery pre-trial. As a result, the neighbors argue that the amended articles should not have been admitted into evidence or given consideration by the court in deciding
the Dover Amendment question. MetroWest claims that it did not provide advance information about the impending change in the articles because the change was under discussion until shortly
before its adoption. MetroWest also characterizes the amendment as a “clarification” rather than a full-scale change in the corporate purpose.
The failure of MetroWest to give any advance warning of its corporate charter change is troubling. The neighbors are right to be unhappy about this last-minute surprise concerning a
elemental issue in determining Dover Amendment qualification. However, given the decision I make about the nature of the use MetroWest intends to make of the project, the change in
the corporate articles is not of any great moment in the outcome of the case.
MetroWest must prove itself to be a nonprofit educational corporation. Without the 2004 change to its articles, its status might be somewhat more in doubt. The 1960 formulation of the
articles was not explicit or conclusive on the educational purpose of the entity. The unamended articles may well have been sufficient, even though not explicit on the point; the Board
decided that they were adequate. If I had decided that the nature of intended use of the project passed muster under the Dover Amendment, then MetroWest's entitlement to that provision's
protection would turn on whether the corporation was, according to its articles, permitted to act for educational purposes. But because I decide that the intended use is not entitled
to Dover Amendment protection, the status of the corporation is not critical to the result in this case.
MetroWest certainly has the authority to clarify and even change its corporate purposes, and to do so by proper amendment to its articles. They could have amended the articles early
enough to put the new corporate purpose in front of the building inspector and the Board in the first instance. In this case, however, the inspector and the Board could only have had
knowledge of the unamended articles, because the amendment of the articles was made after the inspector and the Board's decisions, on the eve of trial in this court. I need not decide
whether the Board correctly determined that the 1960 rendition of MetroWest's corporate purposes were sufficient to meet this aspect of the Dover Amendment test, although that decision
does not seem overtly wrong. The Board drew its ultimate conclusion-that the Dover Amendment was not available to protect the project-based on the failure of the intended uses to be
made of the site to qualify under the Dover Amendment. The Board's decision on this point was right. The uses MetroWest sought to make of the facilities it sought to build were not
entitled to Dover Amendment protection for the reasons I now discuss.
Qualification is sought as an educational, not a religious use.
*6 Whether or not land is used for “religious purposes” and “educational purposes” is a matter of law to be determined by the court. Needham Pastoral Counseling Center, Inc. v. Bd. of
Appeals of Needham, 29 Mass. App Ct. 31, 33 (1990); see also Fitchburg Housing Auth'y v. Bd. of Zoning Appeals of Fitchburg, 380 Mass. 869, 872-873 (1980).
MetroWest contends that if the project goes forward, MetroWest will use the site primarily for educational purposes, a use protected under the Dover Amendment. MetroWest does not attempt
to argue that its use will be for religious purposes. To the extent MetroWest's argument has any religious dimension to it at all, it is just that MetroWest suggests that religious
tenets may form part of the values and principles which MetroWest teaches and incorporates into its programming. But MetroWest's position is that the use it proposes for the Site is
an educational, rather than a religious, use. MetroWest's decision not to insist on status based on any religious purpose is a proper one, given the facts in this case. Despite the
mention of “Christian principles” in its 1960 articles of organization, MetroWest is not, by the admission of its president, Jeanne McAllister, a religious organization, nor is there
anything in the record to suggest that religious services or activities are or will be conducted at the Site. There also is nothing in the evidence to suggest that only members of a
particular religion or denomination may participate in the activities provided by MetroWest, or become a member of the organization. If anything, the evidence supports the contrary
conclusion. MetroWest's entitlement to Dover Amendment protection for the project must stand or fall on the educational activities and uses to be carried out at the Site.
Educational exemption under the Dover Amendment
The question whether under the Dover Amendment a property is exempt from zoning restrictions for educational purposes turns on whether or not the dominant purpose of the structure is
educational. See Fitchburg Housing Auth'y, 380 Mass. at 869; Whitinsville Retirement Society, Inc. v. Town of Northbridge, 394 Mass. 757, 760 (1985). Educational activity has been defined
fairly broadly by the courts in Massachusetts, and in several cases, the Supreme Judicial Court has cited to Mount Hermon Boys School v. Gill, 145 Mass. 139, 146 (1887), where the court
took the view that “[e]ducation may be particularly directed to either the mental, moral, or physical powers and faculties, but in its broadest and best sense it relates to them all....”
However, in Whitinsville Retirement Society, Inc., the Supreme Judicial Court added the caveat that “educational purposes” ought to be interpreted with an eye on the “plain meaning”
of the statutory term. Whitinsville Retirement Society, Inc., 394 Mass. 757 at 760. In Whitinsville, a nursing home without any formal instructional program was found not to be “educational”
for the purposes of the Dover Amendment. The education which might have been acquired by the nursing home residents informally amongst themselves, and without any set instruction, was
insufficient to qualify. On the other hand, a school for emotionally disturbed children which included residential facilities was entitled to Dover Amendment protection. Harbor Schools,
Inc. v. Bd. of Appeals of Haverhill, 5 Mass.App.Ct. 600 (1977). Likewise, the halfway house for mentally disturbed adults at issue in Fitchburg Housing Auth'y was found to be educational,
while a commercial school of dance was not. See Kurz v. Bd. of Appeals of North Reading, 341 Mass. 110, 113 (1960) (the Supreme Judicial Court held that “the 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.”).
*7 The difficulty for a court called upon to determine this question is that “in a broad sense, anything taught might be considered, to a greater or less degree, educational.” Id. The
court must look beyond individual activities, some of which undoubtedly may in isolation constitute educational use, to see whether, in the aggregate, the overall use of the structures
in question amount to educational use. The
educational use must be the “primary or dominant purpose” of the facility to qualify under the Dover Amendment. Whitinsville Retirement Society, Inc., 394 Mass. 757, 760. “The question
remains whether the dominant activity will be educational.” Fitchburg Housing Auth'y, 380 Mass. 869, 874.
MetroWest offers a mix of activities. Some of them could probably be considered “educational” in the “common usage” of the word. Others would be difficult if not impossible to classify
as educational. In her testimony, Ms. McAllister mentioned that MetroWest offers an number of health and fitness-related programs which may involve some instructional dimension, including
classes in dance, movement, yoga, nutrition, exercise, swimming, and martial arts; health education classes for senior citizens; outdoor programs; pre-school enrichment; family-oriented
programs; as well as various clubs for youth including a Spanish club, training for the SAT, and a youth-in-government program. MetroWest also runs a recreational day camp (during the
summer months), a childcare service, and a program for at-risk youth called High Flight, which Ms. McAllister described as an “adventure-based counseling program” which includes outdoor-based
activities and community service. MetroWest also has a program which allows high school students to make up credits for physical education classes they have missed in school, to complete
their graduation requirements.
On cross-examination, Ms. McAllister said that these programs and classes have, for the most part, both a recreational and educational component to them. She acknowledged that there
is no need or requirement for anyone who becomes a member of MetroWest to take any instructional courses whatsoever. Once a person pays his or her membership fee, he or she is free
simply to enter the facility for any purpose, whether to participate in an activity which is in some way instructional, or not. Members may join just to use the pool and fitness equipment
independently, and very many of them do.
The YMCA confers no diplomas or degrees on anyone using the Hopkinton site. Nor is there a real possibility of failing any instructional program offered at MetroWest. No formal education
of the sort required to be regulated by the Commonwealth takes place there. The Hopkinton facility is not a “campus” in any academic sense. The YMCA members and others who participate
in programs there are not “students.” The most common name the YMCA has given to the Site over the years has been the “Hopkinton Outdoor Center.” The overwhelming majority of those
who use the Hopkinton site receive no instruction, and those that do, mostly receive it in connection with sports and exercise activities.
*8 Without in any manner dismissing the fact that some instruction and educational activities do form part of the programming at the MetroWest Site, and will continue to do so if the
project proceeds, I find and rule that the predominant use of the existing facility and of the new ones proposed for the Site is for recreational and exercise purposes. The primary
and driving intended use of MetroWest's land will continue to be for swimming and for exercise and fitness center activities. These are the uses which predominate, and they do not fall
within the educational purposes over which the Dover Amendment extends its protective umbrella. Much of the “instruction” the YMCA offers (and will offer if the project proceeds) concerns
activities which are primarily recreational and athletic, such as dance, movement, exercise, karate, yoga, aerobics, jazzercise, swimming, tennis, and soccer. These do not fall within
the accepted understanding of what constitute educational purposes under the Dover Amendment, even if some training, coaching, or demonstrative instruction is involved.
There was considerable evidence offered at trial, which I credit, that MetroWest embarked on the project now under review because of a felt need to increase and enhance the gym, health
club, and swimming facilities at the Site. The project was the outgrowth of considerable study by MetroWest,
including surveys of its membership and the population in the area, and those studies and surveys called upon MetroWest to expand its structures and its offerings primarily to accommodate
rising demand for health club, gym and swimming pool activities and facilities. The amount of new space, and the design of the new project buildings emphasize these kinds of uses over
all others. And while there undoubtedly will be some demand for formal instruction in these areas, which MetroWest will offer, the primary and dominant use sought by members and the
public, which MetroWest also will provide, is non-instructional individual and family use of the gym, health club and swimming facilities the renovated Y campus will have. There will
be much time when the pools and fitness equipment will be available for use by individuals on their own-swimming laps in the pool, jogging on the treadmills, or lifting weights. The
amount of time these facilities will be used independently, rather than in a classroom setting, will predominate. I do not consider that the kind of brief instruction needed simply
to demonstrate, on a non-recurring basis, the safe use of this equipment and these facilities constitutes “education” for the purposes of G.L. c. 40A, § 3. Even if more regular, organized,
classroom type instruction in these areas would qualify under the Dover Amendment, a proposition which I do not accept, I nevertheless find that that type of learning will be a small
part of the overall use of the Site. The studies and surveys showed least demand for formal instruction programs, and the design of the project thus does not emphasize the facilities
needed for these purposes.
*9 The neighbors assert that the current and proposed predominant uses by MetroWest of its Site more closely resemble those of a private health club than of an educational use; the neighbors
offered persuasive evidence to this effect. First, they have offered into evidence pages from the 1998 and 2003 Verizon Yellow Pages telephone directories, showing that MetroWest advertised
itself along with other commercial health clubs and wellness centers. I accept the inference that MetroWest has held itself out as offering health club type services and facilities.
I draw the further inference that the project, if it proceeds, will expand MetroWest's ability to offer even more of these services and facilities to an even larger membership.
More directly, the neighbors demonstrated that the primary activities and facilities at the Site contemplated by MetroWest are very close in kind to those at a conventional health and
swim club facility. The neighbors called a witness, Jill Bartlett, aquatic director for Healthtrax Wellness Facility, which, according to Ms. Bartlett's testimony (which I find credible),
offers many activities and programs which are very similar to MetroWest's activities and programs. Ms. Bartlett, who had worked at several health club facilities, testified that the
programming and activities at Healthtrax, were she currently is employed, are typical of those at many such facilities in the Commonwealth.
Ms. Bartlett testified that like MetroWest, Healthtrax works with people of varying levels of fitness and ability, and also provides daycare and programs for youth, such as an overnight
program for schools and religious organizations, as well as hosting training for the Special Olympics. Healthtrax offers classes in exercise, various athletic pursuits, including swimming
and self-defense. Healthtrax does not offer all the non-exercise activities that MetroWest does, but many of the programs and facilities offered at Healthtrax are very similar to those
at the YMCA. The two have much the same exercise equipment, swimming pools and gym rooms. Members of both places can enroll in instructional sessions about how to use particular equipment
or engage in particular exercise or physical activities, but in both facilities, the predominant use is by individuals and families engaging in these activities independently and without
organized instruction.
MetroWest attempts to distinguish its uses and activities from those of Healthtrax and other health club and wellness facilities by pointing to the emphasis on morals and values MetroWest
instills in all of its
programming. It is certainly true that those who work at the YMCA facility are expected to impart-to members and other users-worthwhile values. These include good sportsmanship, perseverance,
tolerance, respect, safety, politeness, and pleasant demeanor. It is questionable, however, whether MetroWest employees do so any more or less than Healthtrax employees or those of
other private health and wellness clubs. Both types of facilities promote similar good values by example, and by setting requirements for the staff they employ. Both Ms. McAllister
and Ms. Bartlett testified as to the level of respect staff must show patrons, and the level of decorum expected of all in their respective facilities. Ms. McAllister was rather vague
in her testimony, but she stressed that YMCA personnel are trained to spend as much time helping novice exercisers as they do with the more advanced users of the facilities, and to
be sensitive to the needs of all. Ms. Bartlett gave a similar explanation about her organization. On direct examination, she testified about disabled people, young children, and others
who required and received special attention at her facility. Ms. Bartlett and Lisa Mandozzi of MetroWest both gave testimony regarding situations in which staff needed to correct disruptive
behavior by patrons.
*10 The general impression the evidence generates is that good manners, good sportsmanship, and similar good values all around, are part of a well-run and successful health club, wellness,
swimming, and similar facility. It is distressing to think of an athletic facility or organization-particularly those used by families, children, and amateurs-in which these kinds of
values were not an important part of what takes place. Every Little League and Pop Warner team, every neighborhood karate class, ought to have a similar devotion to good values and
sportsmanship. Every coach who models these values for his or her players is carrying on an important role. But the YMCA does not enjoy a monopoly on these values, and their centrality
in the programming of the YMCA does not, without more, make its uses predominantly educational for Dover Amendment purposes.
Given the evidence I heard, I cannot agree that the project the YMCA proposes to build will be predominantly used for educational purposes of the type protected by the Dover Amendment.
The educational purpose required by the statute will not be the primary or dominant use of the proposed facility. I decide that the Dover Amendment's provisions do not apply to MetroWest's
project.FN3,FN4
FN3. In reaching this decision, I give little if any weight to another argument the neighbors advance: that the prior behavior of the YMCA, in its dealings with the Town on MetroWest's
building projects in the past, proves that MetroWest is not entitled to Dover Amendment protection in the case now before the court. Much of the evidence about this dealt with earlier
projects, most different in kind, scope, and purpose, some of which were never pursued. While the YMCA may have submitted itself to site plan and design review in the past, something
that MetroWest now says it need not do, that does not prevent it from now asserting its rights under the Dover Amendment. Even were I to accept the proposition that the YMCA only seized
upon that statute to respond to obstacles in the Town which MetroWest never faced before-obstacles which arose only for the project involved in this litigation-that does not prove that
the statute is not now available. The test is whether or not the use of the structures that MetroWest will occupy as a result of the current project is predominantly educational. I
have analyzed the evidence in this way only, and not based on what happened in the past with respect to other projects.
FN4. The parties presented to me for decision the question whether MetroWest's project qualifies for the protections of the Dover Amendment, which I now have answered in the negative.
Based on my colloquy with counsel, I understand that they are to advise the court, given my decision of that question that way, how the parties intend to proceed in the Town and in
this litigation. MetroWest will decide whether or not it will submit to site plan and design review, and the parties will advise whether they
expect further resolution by the court of any other matter, and, if not, whether judgment ought now enter consistent with this decision. There does not appear to be any significant basis
for disagreement that the project will comply with applicable dimensional requirements of the bylaws, and the evidence supports the Board's determination that MetroWest's proposed use
would constitute a public educational and recreational use within the meaning of bylaws sections 210-15.C and 210-12.E (a use permitted of right in the A District), all of which indicates
that the Board's decision was not arbitrary, capricious, legally untenable, or otherwise entitled to be annulled or modified by the court. The parties are to submit to the court, within
thirty days, a joint written report setting out their respective positions on whether there is any reason the court ought not now enter judgment, disposing of these cases.
Mass.Land Ct.,2006.
Metrowest YMCA, Inc. v. Town of Hopkinton
Not Reported in N.E.2d, 2006 WL 1881885 (Mass.Land Ct.)
________________________________________
Judges and Attorneys (Back to top)
Judges
Judges
• Piper, Hon. Gordon H.
Commonwealth of Massachusetts Land Court Department
Boston, Massachusetts 02108
Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler
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