Bimt4N, BoBRowslu & HAVERTY, LLC - Town of Northborough

Bimt4N, BoBRowslu & HAVERTY, LLCATTORNEYS AT LAW

9 DAMONMILL SQUARE, SUITE 4A4CONCORD, MA 01742PHONE 978.371.3930

FAX 978.371.3928MARK BoBRowsKIMark@bbhlaw.net

December 9, 2019

Robert fredericoBuilding CommissionerTown Hall63 Main StreetNorthborough, MA 01532

RE: Request for Relief under the Dover AmendmentNew England futbol Club, Inc.400 Cedar Hill Street, Northborough, MA

Dear Mr. frederico:

Please be informed that I represent the New England Futbol Club, Inc. (the “Club”) withregard to an application to construct and operate an indoor football (soccer) facility at 400 CedarHill Street (the ccSubject Property”). The Subject Property is located in the Industrial District.“Commercial recreation, indoor” is not an allowed use in the Industrial District. Nor is a “nonprofit club or membership organization.”

However, I submit that the Club’s proposed facility is protected as an educational useunder G.L. c. 40A, s. 3, the Dover Amendment. The statute states the following:

No zoning ordinance or by-law shall ... prohibit, regulate or restrict the use of land orstructures for educational purposes on land owned or leased by the commonwealth or anyof its agencies, subdivisions or bodies politic or by a religious sect or denomination, or bya nonprofit educational corporation...

Education has been held to constitute cthe process of developing and training the powers andcapabilities of human beings” and preparing persons “for activity and usefulness in life.”Comm ‘r ofCode Inspection of Worcester v. Worcester Dynamy, 11 Mass. App. Ct. 97, 99 (1980)The Court has also relied on dictionary definitions where appropriate.’

‘See Harbor $chs. v. 3d ofAppeals ofHaverhilt, 5 Mass. App. Ct. 600 (1977). The AppealsCourt noted that Webster’s Dictionary defined “education” as “the act or process of providingwith knowledge skill, competence, or usu[ally] desirable qualities of behavior or character or ofbeing so provided esp[ecially] by a formal course of study, instruction or training.” Id at 605(quoting Webster’s Third New Int’l Dictionary 723 (1971)).

A “nonprofit educational corporation,” as that term is used in §3, is a corporation whose“articles of organization permit it to engage in educational activities, a question easily answeredby a review of documents filed with the state.” Educational activities must be stated as acorporate purpose of the nonprofit, but they need not be the primary purpose. Gardner-AtholArea Mental Health Ass ‘n v. Zoning 3d ofAppeals ofGardner, 401 Mass. 12, 15-16 (1987).

Our courts have held that the protection afforded by the Dover Amendment does not dependon whether traditional subjects are taught. The statute protects “education” even when thesubject matter taught is not within a traditional notion of academic instruction, and even whenthe institutions instructors are not certified by the state. Fitchburg Hous. Auth. v. 3d. ofZoningAppeals of Fitchburg, 380 Mass. 869, 873 (1980). Thus, the range of protected activities isbroad and deep, including:

• a special needs school with live-in accommodations;• a residential facility for formerly institutionalized but educable adults;• a residential facility for 15 elderly, mentally ill individuals;• a residential facility for interns in professional, business, and other fields;• a residential community for the elderly with a curriculum designed to develop and train

the powers and capabilities of its residents for further activities and usefulness in life;• a residential facility with educational programs for homeless families, single mothers,

persons with AIDS, and other physical disabilities, and persons recovering from addictivehabits;

• a residential facility for adolescents who have been victims of sexual andlor physicalabuse;

• a YMCA;• a methadone clinic with counseling facilities;• a residence for developmentally disabled adults; and• a summer camp providing “educational and life skills.”

Citations for the cases in support of this list are available upon request.

In the case of the Club, the proposed indoor soccer facility qualifies for protection underthe Dover Amendment. First, the Club is a nonprofit. See Exhibit 1. Second, the Club’sArticles of Organization state that the corporation has been organized for charitable, educational,and scientific purposes. See Exhibit 1. Third, the activities sponsored by the Club areeducational in nature. It is undisputed that adolescents develop physically, mentally, andemotionally through participation in sports. Physically, students learn about and develop theircardiovascular endurance, muscular strength muscular endurance, flexibility, and bodycomposition. They also develop agility, balance, coordination, power, reaction time, and speedas they learn sport-specific skills. Mentally, students are taught and learn sport rules andstrategies along with leadership, respect for teammates and opponents, and responsibility.Socially and emotionally, students learn loyalty, self-confidence, self-discipline, sportsmanship,and teamwork while developing their character. The National Federation of State High SchoolAssociations states, “Participation in high school activities is a valuable part of the overall highschool experience” and describes many of the positive outcomes from activity participation in awide variety of extracurricular activities.” The Casefor High School Activities, available from

http://www.nths.org/content.aspx?id=3262. I have attached a Sample Month as Exhibit 2 toshow you how the educational activities will unfold week to week. Exhibit 3 shows thecredentials of some of the coaches working with the Club. I have also included a copy ofTimothy Hill v. Webb, a recent Land Court decision that supports the Club’s Dover Amendmentclaims.

When an educational institution qualifies for protection under the Dover Amendment, itmay seek relief from dimensional standards otherwise imposed under the local zoning by-law.Exhibit 4 shows the proposed building footprint. In this case, the new structure will confonnwith all dimensional requirements. See Exhibit 4. Accordingly, the only relief the Club seeks isauthorization to proceed under the Dover Amendment. We respectfully request your writtenaffirmation that a building permit will be issued for the proposed building, subject to compliancewith the State Building Code.

Thank you for your consideration.

Sincerel

Mark Bobrowskicc: K. Joubert /

New England futbol Club, Inc.

EXHIBIT 1

EXHIBIT 1A

@2121/ Sc87 Filln Llk 200769778800 PMPAGE @2

li- nrn.oiUva1tfj RtTacbuztts’William Francis Galvin

Secretary of the CotornonwecithOne Ashburton Place, loston, Massachusetts 02108-1512

ARTICLES OF ORGAMZATION(General Laws, Chapter 180)

itmcApp roved

jclCLE ITh enc.t ntme of the corporation is:

New England Eagles Futbol Club, tnc.

ARflCLEIIThe purpose of the corporation is to engage in the following activities:

The purpose of the corporation shall be the provision of training, education andcompetition in soccer to youth players in the Commonwealth of Maesachvaetts anti adjacentstates. The corporation shall have and may exercise all powers necessary or convenient toeffect any or all of the purposes for which tie corporation is formed; provided that no suchpower shall be exercised in a manner Inconsistent with Massachusetts General Laws,Chapter 180, or any other chapter of the General Laws of the Commonwealth ofMassachusetts; and provided further that the corporation shall not engage in any activity orexercise any power which would deprive ft of any exemption from federal income tax whichthe corporation may receive under Section 501fc)(3) of the Internal Revenue Code.

NotwIthstanding anything else herein provided, the corporation is organized and shall beoperated exclusively for charitable, eduostlonel and cintiflc purposes, as said terms havebeen and shall be defined in and pursuant to Sections 170(o) and 501(c)(3) of tie InternalRevenue Code of 1986, as amended and as said sections may from time to time beamended or added to, or under any successor sections thereto. Powers of this corporationshall be exercised only in such manner as to assure charitable, educational and scientificpurposes, as so defined, it being the intention that this corporation shall be exempt fromFecleral income taxes and that contributions o it shall be deductIble pursuant to saidsections of said Code, and all purposes and powers herein shall be Interpreted andexercised consistent with this intentIon.

C I•IP I

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@2/21/21357 12:57 6173671265 THE COLONY GROUP PAGE 133

ARTrCLE UIA eoqoretot7 may have one or morc classes of members. If it docs, the clesignatiozi of such classes, the manner of electionor appointments, the duration f membership and the quaiificatioii and ri ht, including voting rights, of thc mcmbcrs oteach class, may he set forth in the by-laws of the corporation or may be set forth below:

ARTICLE IV*OtheI lawful provisions, if any. for the conduct and regulation of the business and affairs of the corporation, for itsvohintai-v dissolution, or for limiting, defining, or regulating the l)OWCtS of the corporation, or of its directors or mcmhcrs,or otnoy class of members, are as follows:

The Corporation may do business, carry on Its operation, and have offices and exercise the powers granted by MassachusettsGeneral Laws, Chapter 180, in any jurisdiction within or without the United States, although the corporation shall not be operatedfor the primary purpose of carrying on for profit a trade or business unrelsted to its tax exempt purposes.

The corporation may make donations In such amounts as the membera or airectors shall determine, irrespective of cotporatebenefit, for the public welfare or for community fund, hospital, charitable, religious, educational, scientific. civic, or similarpurposes, arid in time of war or other national emergency In aid thereof provided that, as long as the corporation is entitled toexemption tar Federal Income tax tinder Section 501(c)(3) of the Internal Reventre Code, it shall make no contribution other thenfor a purpose conteniplated by said section.

No part of the assets of the corporation and no part of any net earnings of the corporation shall be divided among or inure tothe benefit of any officer or director of the corporation or any private individual r be appropriated for any purposes other than thepurposes of the corporation as herein set forth; and no substantial part of the activities of the corporation shall be the etteaptlngto Influence Tegislation except iri accordance with Section 501(h) of the said Code, and the corporation shall not participate in anypolitical campaign in any way. The corporation Is Intended to be exempt from Federal income tax under Section 501 fc)(3) of thosaid Coda, arid shell riot be a private foundation under Section 500(a) of the said Code.

Upon the liquidation or dissolution of the corporation, after payment of all its liabilities or provision therefor, all of the assets ofthe corporation shall be disposed of to one or more organizations that are exempt for Federal income tax tinder theaforementioned Seclion 501(c)f3).

AR’flCLE VI’he by-laws of the cofporntinh have been duly adopted and the initial directors, prciderit, treauret’ and clerk or etherpresiding, ffnancl:mt or recording oJ1ccrs. whc,se nnmes are set out on the ftllowing page, have been duly elected,

*Ifthc.rc. I???! no p,vi’l.civns $(rltc? ‘,V0aieNote: 7iej;rit:r!tfin Thur (4) artfcfr.c etrc conylder€tI (C’ tie prnnanrnl and may t,’ hi? clrnnccd tyflUng appro;n*iLa Arlfctcx ofA2nefldrncnr.

02/21/2007 12:07 6173671260 THE COLONY GROUP PAGE 04

ARTICLE VIThe cffcctivc dare of organization of the corporation shall be the date approved and filcd by the Secretary of the CommoowealiftIf a later effeetivc datc Is desired, specify such date which shall not he more than thirty dcys after thc dare of filing.

ARTICLE VUThe Information contained in Article VU Is not a permanent part of the Articles of Organization.

n. The street address (post office boxes arc not acceptable) of the principal office of the corpornUon in Massachusetts is:50 Pleasant Street Mendon, MA 01757

I,. the name, residential address and post olflcc address of each director: and officer of the corporation is ‘s follows:NAME RESIDENTJAL ADDRESS POST OFFICE ADDRESS

Preslctetn: Ben MIele 275 Willow Sate Rise, Holliston, MA 01748 Same

Treasurer: Mary PartrIdge 275 Purgatory Rd, WhIUnovIlle, MA 01588 Same

Clerk: Tim Somadalis 34 Falcon Ridge Rd, Hoplcinton, MA 01748 Same

Directors: Ed Kelly 68 Andrew Lana, Holliston, MA 01748 Same(or officers Ed Melz 2 SlIva Street Milford, MA 01757 Samehaving the Brian Ainscough 16 Sumner Street, Canton, MA 02021 Samepowers of Tom Teager 190 Rolling Meadow Dr, Holllston, MA 01746 Samedirectors) Diane Slander-Keys 15 Stilwell Aye, Norfolk, MA 02056 Same

Slave Arnold 24 Townllne Rd. Franklin, MA 02038 SamePatti Walkover 306 Underwood SI, Holliston. MA 01746 SameCharlie Caloagnl 1 Overlook Circle, Millard, MA 01757 Same

e. The fiscal year of the corporation shalt end on the last clay of the month of:December

d. The name and business address of the resident agent, if any, of the corporation is:None

tAttc, the below signed incorporator(s), do hereby certify under the pains and penalties of perjury that I/we have not beenconvicted of any crimes relating to alcohol or gaming within the past teo. years. IAVC do hereby further certify that to thehest of my/our knowledge the above-named offlcets bave not been similarly convicted. If so convicted, explain.

rf Wjfl’1555 WREREOP AND UNDER THE PAINS biND PENALTIES OP PERJURY, 3/we, whose signature(s) appear below asiocorpomtnrfs and whose name(s) and business or residential address(es) are cieary typed orprinted beneath each signature,do hereby associate with the intention of forming this corporation under the provisions of General Laws, Chapter 180 anddo hereby sign these Articles of Organization as incorporator(s) this

-day of

. , 20

Brian Mazar, SO Pleasant Street, Mendon, MA 01757

Note; ryan crtsflny corporal ton Is ndtn as teens poraros) type bt the enact Caine of the enporatiott, the State QC oilier jurtcdtctton sehereIt was tncnrporarerL the flcssszc of the person stygi/ny on babe(7qf saM corporation’ and the title he/cite hold.c or other anthorhy by whichweb act/ott Is taken.

MA SOC Filing Number: 200769778800 Date: 02/2112007 12:10 PM

THE COMMONWEALTH OF MASSACHUSETTS

I hereby certify that, upon examination of this document, duly submitted to me, it appears

that the provisions of the General Laws relative to corporations have been complied with,

and I hereby approve said articles; and the filing fee having been paid, said articles are

deemed to have been filed with me on:February 21, 2007 12:10 PM

WILLIAM FRANCIS GALVIN

Secretary ofthe Commonwealth

203854-1-0

EXHIBIT lB

MA SOC Filing Number: 200976052700 Date: 10/02/2009 1:17 PM

The Commonwealth of MassachusettsWilliam Francis Galvin

Secretary of the Commonwealth, Corporations DivisionOne Ashburton Place, 17th floor

Boston, MA 02108-1512Telephone: (617) 727-9640

of the Articles of Organization were duly adopted at a meeting held on 5/11/2009 , by vote of: 0 members, Ndirectors, or 0 shareholders,

being at least two-thirds of its members/directors legally qualified to vote in meetings of the corporation for, in the caseof a corporation having capital stock, by the holders of at least two thirds of the capital stock having the right to votetherein):

. ARTICLE I

, The exact name of the corporation, as amended, is:(Do not state Article I if it has not been amended.)

NEW ENGLAND FUTBOL CLUB. INC.

ARTICLE II

The purpose of the corporation, as amended, is to engage in the following business activities:(Do not state Article II if ft has not been amended.)

A corporation may have one or more classes of members. As amended, the designation of such classes, the mannerof election or appointments, the duration of membership and the qualifications and rights, including voting rights, of themembers of each class, may be set forth in the by-laws of the corporation or may be set forth below:

Minimum Fcc: £15.00

Federal Employer Identification Number: 208286741 (must be 9 digits)

Snccinl nlinc Instructions

We, BRIAN MAZAR X President — Vice President,

and DIANE ELANDER-KEYS .. Clerk — Assistant Clerk,

of NEW ENGLAND EAGLES FUTBOL CLUB. INC.located at: 50 PLEASANT ST. MENDON, MA 01757 USA

do hereby certify that these Articles of Amendment affecting articles numbered:

X Article I — Article 2 — Article 3 — Article 4

(Select those articles 1, 2, 3, and/or 4 that are being amended)

ARTICLE Ill

ARTICLE IV

As amended, other lawful provisions, if any, for the conduct and regulation of the business and affairs of thecorporation, for its voluntary dissolution, or for limiting, defining, or regulating the powers of the business entity, or of itsdirectors or members, or of any class of members, are as follows:(If there are no provisions state “NONE’9

The foregoing amendment(s) will become effective when these Articles of Amendment are filed in accordance withGeneral Laws, Chapter 180, Section 7 unless these articles specify, in accordance with the vote adopting theamendment, a later effective date not more than thirty days after such filing, in which event the amendment will becomeeffective on such later date.

Later Effective Date:

Signed under the penalties of perjury, this 2 Day of October, 2009, BRIAN MAZAR , its , President /Vice President,DIANE ELANDER-KEYS , Clerk / Assistant Clerk.

MA SOC Filing Number: 200976052700 Date: 10/02/2009 1:17 PM

THE COMMONWEALTH Of MASSACHUSETTS

I hereby certify that, upon examination of this document, duly submitted to me, it appears

that the provisions of the General Laws relative to corporations have been complied with,

and I hereby approve said articles; and the filing fee having been paid, said articles are

deemed to have been filed with me on:

October 02, 2009 1:17 PM

WILLIAM FRANCIS GALVIN

Seci-etaiy ofthe Commonwealth

0-5126-0

EXHIBIT 2

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EXHIBIT 4

TJMOTHY HILL CHILDREN’S RANCH, INC. vs. WEBB, MISC 08-38253 1 Page 1 of 8

fflL TIMOTHY HILL CHILDREN’S RANCH, INC. and TIMOTHY HILL CHRISTIAN CAMP,INC. vs. GEORGE WEBB, DONALD BARTLEY, PHYLLIS KELSO, and STEPHEN HAM LINMISC 08-382531

February 10, 2012

Sands, J.

DECISIONWith:

MISC 09-404144 : TIMOTHY HtLL CHILDREN’S RANCH, INC. and TIMOTHY HILL CHRISTIAN CAMP, INC. vs. PAUL TACEY in his capacity as ZONING ENFORCEMENT OFFICER andBUILDING COMMISSIONER of the TOWN OF HUNTINGTON, and GEORGE WEBB, DONALD BARTLEY, PHYLLIS KELSO and STEPHEN HAMLIN, as they are the ZONING BOARD OFAPPEALS OF THE TOWN OF HUNTINGTON, and MARGE CRAVEN, DENNIS MURPHY and DIANNE LAFOND, as they are the BOARD OF HEALTH OF THE TOWN OF HUNTINGTONMISC 09-404850 : PAUL SANER, SANDRA SANER, JULIA SANER, and CHRISTOPHER SANER vs. TIMOTHY HILL CHILDREN’S RANCH, INC. and GEORGE WEBB, DONALD BARTLEY,ELLEN DAVIS and PHYLLIS KELSO, as they are the ZONING BOARD OF APPEALS OF THE TOWN OF HUNTINGTON

Plaintiffs Timothy Hill Children’s Ranch, Inc. (“THCR”) and Timothy Hill Christian Camp, Inc. (“THCC”) (together, “Plaintiffs”) filed their unverified Complaint (No. HSCV200800096-A) with the Hampshire Superior Court on May 7, 2008, seeking a declaratory judgment pursuant to G. L. C. 231A, relative to the statss of a Cease andDesist Order (the “Cease and Desist Order”) Issued by.the Huntington Zoning Enforcement Officer (the “ZEO”) on April 8, 2008, allegIng a violation of their civil rights;and appealing, pursuant to G. L. C. 40A, § 17, the reinstatement of the Cease and Desist Order by Defendant Zoning Board of Appeals of the Town of Huntington (the“ZBA”) (together with the ZEO, the “Town”)

Plaintiffs Paul Saner, Sandra Saner, Julia Saner and Christopher Saner (the “Intervenors”) filed their unverified Complaint (No. HSCV 2008-00091-A) with theHampshire Superior Court on May 2, 2008, appealIng, pursuant to G. L. C. 40A, 5 17, the purported constructive approval by the ZBA of a finding (the “Finding”) thatthe use of THCR’s property located at 128 NorwIch Lake, Huntington, MA (“Locus”) as a camp Is protected as a pre-existing nonconforming use, and seeking adeclaratory judgment, pursuant to G. L. C. 231 A, relative to the Finding.

Plaintiffs (not Intervanors) filed their unverified Complaint (08 MISC 382531) wIth the Land Court on August 11, 2008, allegIng seven counts, consisting of: (1)declaratory relief pursuant to G. L. c. 231 A, relative to the status of the Cease and Desist Order; (2) appealing, pursuant to G. L. c. 40A, 5 17, the reinstatement ofthe Cease and Desist Order by the ZBA; (3) appealing, pursuant to G. L. c. 4DA, s.17 the ZBA’s denial of a special permit (the “Special Permit”) requested by Plaintiffs;(4) appealing, pursuant to G. L. c. 40A, 5 17 the Z8A’s denial of Plaintiffs’ application for the Finding; (5) appealing, pursuant to G. L. C. 4OA, 5 17, the denial by theZBA of Plaintiffs’ appeal of the Cease and Desist Order; (6) appealing, pursuant to G. C. C. 40A, 5 17, the ZBA’s denial of Plaintiffs’ appeal of the ZEO’s failure to actupon a request for zoning status; and (7) appealing, pursuant to G. L. c. 240, 5 14A and G. C. C. 4DA, s.3, a section of the Huntington Zoning By-law (the ‘Bylaw”)which requires a special permit for camp use. The ZBA filed its Answer on September 10, 2008. A telephonic case management conference was held on October 21,2008.

By letter dated December 30, 2008, PlaintIffs filed a request for en Interdepartmental transfer of the two Superior Court cases to the Land Court. By letter datedJanuary 14, 2009, the Land Court requested that the Land Court case be transferred to the Hampshire Superior Court, and on January 21, 2009, the Chief Justice forAdministration and Management (the “CJAN”) transferred the Land Court case to the Hampshire Superior Court. On March 18, 2009, the CAM revoked his prior order,and on June 18, 2009, transferred the two Superior Court cases to the Land Court. Hampshire Superior Court Case No, 08-00096 was entered on June 25, 2009, as 09MISC 404144. HampshIre Superior Court Case No. 08-00091 was entered on June 25, 2009, as 09 MISC 404850. tNote 11 A case management conference was heldon October 13, 2009, for the two transferred Superior Court cases,

On June 1, 2009, PlaintIffs filed a Motion for Preliminary Injunction seeking to prevent the Town from interfering with Plaintiffs’ operation of their camp at Locus. Ahearing on the motions was held on June 16, 2009, and this court issued its Order Allowing Plaintiffs’ Motion for Preliminary Injunction (the “Order’) on June 26, 2009.tNote 21 The Order stated that “[the Town] allow [Plaintiffs] to use Locus as a summer camp for the uses described In this decision. IMote 31 Only [Plaintiffs] will beallowed to operate the camp.” On July 2, 2009, the Town filed its Motion to Allow Proposed Order on Preliminary Injunction, which asked the court to alter the Order inways that further restricted Plaintiffs’ use of Locus. On July 14, 2009, this court issued a Revised Order on Preliminary Injunction. rNote 41

The parties filed a Joint Pre-Trial Memorandum on December 18, 2009, whIch contained certain agreed upon facts. Additions to the pre-trial memorandum were filedon December 23, 2009. A Pre-Trial Conference was held on December 23, 2009. A site view and the first day of trial at the Northampton District Csurt were held onApril 21, 2010. The second day of trial was held on April 22, 2010, at the Land Court in Boston. The Intervenors flied their Post-Trial Brief on July 30, 2010, PlaintIffsfiled their Post-Trial Brief on August 2, 2010. On August 12, 2010, Pialntlffs filed their Notion to Strike portions of the Intervenors’ Post-Trial Brief and on August 23,2010, the Intervenors filed their Opposition. fNote 51 At a status conference held on September 23, 2010, this court allowed the Town to file a Post-Trial Brief onlimited issues, which the Town filed on September 23, 2010. PlaintIffs filed their Reply to the Town’s filing on October 12, 2010. At that time, the case was taken underadvisement.

At trial, testimony for Plaintiffs was given by: Suzanne Smiley (Executive Director of Girl Scouts of Western Massachusetts), Wayne McKlnney (Owner of SearieAvenue), Paul Tacy (Huntington ZEO), Thaddaeus Hiii (Executive Director of THCR) (“Hill”), Steven Schneider (director of Tidal River), and Chris Johner (director ofTHCC). Testimony for the Intervenors was given by: Julia Jones (an abutter to Locus), Christopher Saner (Intervener), Sandra Saner (Intervener), Julia Saner(Intervener), Cynthia Gales (controller of THCR), and Paul Saner (Intervener). Fifty-three exhibits were submitted Into evidence.

Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

L.,-._. IL,. I Il - - i I’- r ,‘ r ,--

TIMOTHY HILL CHILDREN’S RANCH, INC. vs. WEBB, MISC 08-38253 1 Page 2 of 8

1. The Bylaw was adopted on October 15, 1985. Locus Is located In a “Residence 45” zoning district which permits single family residences as of right, but also permitsother residential and some commercial based upon the granting of a special permit, such as:

Section IV D: NON-RESIDENTIAL USES ON LOTS NOT ALSO USED FOR RESIDENCE

For the four following categories... A special permit Is required In all districts if there are four (4) or more full-time (or equivalent part time) employees.

IV D la — Any office, retail business, trade, bank, or non-professional service establishment...

IV 0 2a - Restaurant, motel, inn, resort, hotel, cafe, bar, boarding house.,.

IV D 2d - Camp for chIldren or adults, camping area, cemetery, marina, zoo, any outdoor recreational or amusement facility which charges a fee for admission or use.

2. THCR filed its Certificate of Incorporation in New York State under Section 402 of the Not-for-Profit Corporation Law on April 30, 1976, and was Incorporated In NewYork as a not-for-profit corporation on May 13, 1976. Pursuant to Article 3 of the Certificate of Incorporation, the purposes for which the corporation was formed were:

(a) To plan for and raise funds for the eventual establishment and operation of a group home for dependent, neglected, pre-delinquent children, who have an unstablefamily situation.

(b) To provide a limited amount of vocational training for the purpose of teaching the children responsibility and respect for the dignity of labor.

Cc) To provide each child with religious training and with a consciousness of religious development.

3. By amendment dated November 6, 1985, and filed June 30, 1986, ArtIcle 3(a) of THCRs Certificate of Incorporation was amended to read:

(a) The establishment, operation and maintenance of residences for dependent, neglected, abandoned. abused, pre-delinquent children and persons in need ofsupervision, provided, however, that before each such facility shall be established the prior written approval of the New York State Department of Social Services shallbe obtained.

4. By lease dated September 20, 1994, the Western Massachusetts Girl Scout Council, Inc., (the “Girl Scouts”) owner of Locus since 1964, leased Locus to New York-New England Jurisdictional Family Camp of Woodmen of the World Fraternal Benefit Society, Inc. (“Woodmen”) for a forty year term, which was abbreviated whenWoodman terminated the lease In 2002. PrIor to the Woodmen lease period, the Girl Scouts had used Locus as an educational and recreational camp sInce 1964 with afocus on waterfront activities. During the period of the Woodmen lease, the Girl Scouts’ troops continued to use Locus for camping.

5. By a Facility Rental Agreement dated June 27, 2006, the Girl Scouts leased Locus to Wilderness Experiences Unlimited (“Wilderness”) for a term June 1, 2006 toSeptember 15, 2006. Wilderness ran a recreational camp which offered training, canoeing, kayaklng; they also planned trips and were heavily Involved in youthprogramming. Wilderness obtained Board of Health permits to operate a recreational camp for children In 2003, 2004, 2005, and 2006.

6. By letter to THCR dated April 2, 2007, the Internal Revenue Service (“IRS”) confirmed that THCR was exempt under 501(c)(3) of the Internal Revenue Code andthat THCR was classified as a public charity under 509(a)f 1) and 170(b)(1)(A)(vl) of the Internal Revenue Code.

7. By letter to the ZEO dated August 10, 2007, THCR filed a Zoning Permit Application, stating that It proposed to purchase Locus “subject to approval of the use of theproperty” as a seasonal camp.

8. By letter dated October 10, 2007, the ZEO declined to act on the request for a zoning permit (the “Declination”), stating:

On the advice of Town Counsel, I will not render an opinion on the zoning status of the parcel in question. I have bean advised that to do so would not be within myauthority as Building Commissioner or Zoning Enforcement Officer.

9. The Girl Scouts conveyed Locus, containing approximately ninety-six acres of land on Norwich Lake, to THCR by deed dated October 15, 2007, and recorded withthe Hampshire Registry of Deeds (the “Registry”) at Book 9299, Page 229.

10. By applications dated December 4, 2007, and filed with the ZBA on December 13, 2007, THCR requested the ZBA to render:

a) a finding as follows:

[THCR] is entitled to a finding that it is entitled to continue to operate as a pre-exlsting non-Conforming use; as an extension of the use of the previous owners, theGirl Scouts of America camp ... The Girl Scouts had been operating as a camp, and had owned the property, since at least 1949, prior to the Town of Huntington’sadoption of zoning use districts. [THCRJ will continue the prior use, and operate as a camp and public-service agency for children and their families.

b) a special permit as follows:

[THCR) Is eligible for a special permit as a non-profit camp for children... Since the land has been used as a camp for children in the past (by the previous owners, GirlScouts of America, since at least 1949), there will not be any significant changes In terms of the environmental Impact (there Is no adverse impact now nor will therebe), and the general characteristics of the neighborhood, as well as the parking and trafflc of the neighborhood, will be unchanged.

c) an appeal from the Declination of the ZEO.

The applications were not accepted for filing end were returned to THCR by letter of the ZBA dated January 12, 2008, which stated, “the applications, as submitted,are incomplete and not acceptable for filing ... In addition to the correct fees three (3) Site plans must be included with the application.”

11. By Articles of Organization dated January 23, 2008, and filed with the Commonwealth of Massachusetts on January 31, 2008, THCC was incorporated under G. L.C. 180 (Corporations for Charitable and Certain Other Purposes). The stated purpose was as follows:

To operate an educational outdoor camp to teach children and families leadership skills and life skills with a spiritual foundation which includes bible studies and churchservices. The program includes outdoor and wilderness activities to teach team building and Independent living skills. The camp will provide a seasonal outdoor

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educational program for both the children end the families that the program serves. To provide educational and life skills counseling to children and families and to dosuch other activities as are appropriate to the mission and permitted to not-for-profit educational programs under G. C. c. 180, Including owning, operating and leasingreal estate.

12. The ZEO Issued a buIlding permit for Locus to THCR on January 28, 2008, for Dormitory Renovations.’

13. THCR submitted an aDpllcation for a license to conduct a recreational camp for children to the Town of Huntington Board of Health (the “Board of Health’), whichwas received on March 12, 2008. The Board of Health responded by letter dated April 30, 2008, that THCR’s application had not been acted upon because it wasincomplete.

14. On April 8, 2008, the ZEO Issued the Cease and Desist Order, which stated:

You are therefore ordered to CEASE AND DESIST from all activity which constitutes this violation. This shall include operation of a camp, a retreat center or any othersimilar use. Further use of this property for anything other than uses allowed by right in the R-45 district may only be allowed by special permit or variance. Failure tocomply with this order shall be cause for legal action agaInst Timothy Hill Children’s Ranch, Inc.

15. By application dated April 7, 2008, and filed with the ZBA on April 14, 2008, THCC filed for a special permit, stating that they were entitled to the special permitbecause they were:

a non-profit camp for children ... Since the land has been used as a camp for children in the past (by the previous owners, Girl Scouts of America, since at least 1949),there will not be any significant changes In terms of the environmental Impact (there is no adverse impact now nor will there be), and the general characteristics of theneighborhood, as well as the parking and traffic of the neighborhood, will be unchanged.

16. By application dated April 14, 2008, and filed with the ZBA on April 15, 2008, THCR filed an appeal of the Declination, Public hearings were held on June 11 andJune 18, 2008. tNote 61

17. By letter dated May 6, 2008, Huntington Town Counsel advIsed THCR:

...it is my opinion that Timothy Hill would qualify as a nonprofit educational corporation’ under G. C. C. 40A, § 3. t am therefore recommending that BuildingCommissioner lift the Cease and Desist Order issued on April 8, 2008 to the extent that the Cease and Desist Order would apply to the use of the Property by TimothyHill for Its exempt activities.

18. By letter dated May 7, 2008, the ZEO Informed THCR that he would be rescinding the Cease and Desist Order (the “Rescission”):

I am rescinding the Cease and Desist order on activity by Timothy Hill Children’s Ranch, issued on April 8 of this year. This is done on the advice of Huntington towncounsel, Kopelmsn and Paige, P.C. Briefly, this decision is based on the exempt status enjoyed by Timothy Hill as a nonprofit educational corporation.

19. The ZEO issued two building permits for Locus to THCR on May 27, 2008, one for “Cabin Renovations” and one for “Repair Trusses.”

20. By lease dated July 1, 2008, THCR leased Locus to THCC to be used as “a Christian camp for children and families” for a term of July 1, 2008 to December 31,2010. tNote 71 The annual rental was $30,000, payable $2,500 per month.

21. With respect to the Declination, on July 9, 2008, the ZBA voted: a) 3-0, to deny the petition for a “Finding,” stating:

that the pre-existing lawful non-conforming summer children’s camp use had been discontinued for approximately eight years, which exceeds the limits imposed forcontinuation of a pre-existing non-conforming use established In Huntington’s Zoning By-law, Section VI.A.3.

b) 2-1 to approve the special permit, with conditions. fNote 81 The decision stated:

The ZBA determined that a special permit would be required to operate a camp on this site at Norwich Lake. It was determined that the property in question is a nonconforming lot due to lack of road frontage. The proposed change from an 8-10 week summer camp to a “Camp Season’ limited to ten (10) weeks with no programsthat include adults or “exempt use” activities shall overlap or run concurrently with any of the “Camp” programs. To allow the “Camp Season” with unspecified orarticulated adult programs would create a difference in the character and effect upon the neighborhood. Additionally, the THCR website clearly shows that the propertyis being marketed as a rental property for, “...buslnesses, organizations and secular groups.” If THCR were allowed to proceed as marketed, it would create anincrease in population and traffic that would dramatically affect the character of the neighborhood. The camp for children applied for on their application had beenreduced to more of an accessory use rather than the principal use asked for on their application.

22. The Saners appealed the Rescission to the ZBA, and a public hearing was held on July 17, 2008. On that date, the Z8A voted, 3-0, to “roll-back’ the Rescissionand “reinstate” the Cease and Desist Order. A decision stating the same was Issued on July 23, 2008.

23. THCR was intormed by letter that the Board of Health voted to cease Issuing permits to THCR after August 15, 2008; that Locus shall only be used by Hill’simmediate family; that Locus cannot be used by “childen, teens, employees, residents or affiliates of THCR; and that Locus “cannot be used by individuals, friends,religious groups or any other individuals as a whole.”

24. By letter to THCC dated November 21, 2008, the IRS determined that THCC was exempt from federal income tax under 501(c)(3) of the Internal Revenue Code.The letter also determined that THCC was a public charity under 170fb)(1)(A)(vl). The letter was effective January 31, 2008.

25. Tidal River Christian Camp (“Tidal River”) has operated a Christian camp In Bethel, Connecticut for the past thirty-five years. In the summer of 2009, Tidal Riveroperated a summer camp at Locus under the auspices of THCR. 26. The current Board of Directors of THCC is comprised of local ministers, board members of TidalRiver, and board members of THCR. For the 2009 season, Hill and Aaron Alien were the camp directors. Allen has a “missions degree, a Bible degree,’ and Hill holds abachelor’s degree in business administration, a master’s degree in business (MBA), and a master’s degree in social work C MSW).

27. With respect to the use of Locus as a camp by THCR, Hill testified “We’ve just tried to kind of build, not from the secular sense, but from a spiritual sense what itmeans to be strong and courageous. And that’s been the core of the curriculum every year.” As to the activities at the camp, he testified “And then we do recreational

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activities. We do Bible studies. We do devotionals. We do other team building exercises that are all kind or encompassed with this Idea be stroeg and courageous’ endwhet that means.’

28. The 2009 currIculum ror both THCC end Tidal River Is rocused on Christian education end Bible studies. When questioned about how much time is devoted toreligious as opposed to recreational activities, Hill testified ‘Well, the programs were all Incorporated together. So the umbrella or what we do rrem a spiritualstandpoint Is weaved throughout all the programs.” The curriculum Included a theme ror each week that was “rocused on the Bible.”

29. The trial record indicates that the THCC campers’ typical daily schedule consisted or breakrast at 8:00 AM, rollowed by Bible study end team building activities untilmall cell around 11:30 AM which was then rollowed by lunch; the arternoon consisted or various activities, including rishing, volleyball, capture the flag, etc. until mallcall around 5:00 PM, arter which the campers had dinner. Arter dinner, there was a recreational period until about 7:30 PM, at whIch time there weuld be devotional ata bonfire and In the campers’ cabins until the campars went to bed.

30. The curriculum or THCC was developed by Connecticut Valley Church or Christ under Hill’s supervisIon; it was influenced by collaboration with Tidal River, whichhas experience running religious and educational camps.

31. THCC counselors were selected based on whether candidates had pest experience Incorporating religious and educational principles Into camp activities. Relative tothis matter, Hill testified that “[wje look ror people who have a 4-year degree specifically related to Bible and/or missIons and [who have) done werk with a lot or Bibleschools camps....vacation Bible schools...”

32. The Chamber or Commerce publication and the website stated that uses allowed at Locus would include the rollowing: corporate retreats, womsns’ retreats, mens’retreats, youth retreats, ramily weekends, and cabin rentals ror ramily and group use.

33. According to the testimony of Hill, preliminary arrangements were made, as a resuit or increased trarfic, to have a shuttle bus or vans avallabis ror transport or thecampers to Locus. Testimony also indicated that, In response to a concern about trarfic by neighbors, THCC was willing to contribute if improvements to the accessroad were deemed necessary. Wayne McKlnney, who is the highway superintendent for the Town snd maIntains the access road during the summer, testified that theaccess road to Locus does not comply with the Town’s subdivision laws and that the road wee inadequate ror heavy use since It Is not wider than twenty-two feet atsome locations. Despite this testimony, he Indicated that trarfic was not an issue since the THCC campers carpooled, unlike the Girl Scouts who were often dropped errIndividually.

34. Wayne McKlnney also testified thet there was ‘very little activity” at Locus In 1988.

35. Julia Jones, an abutter v:ho was familiar with the typical activities associated with camping because she had attended the camp an a child and who regularly visitedher property each summer rrom 1986 until 1994, indicated that It wee obvious to her when the Girl Scouts were on Locus due to the singing and activity on the water.She testified that she did not observe the usual camping activities at Locue between 1988 and 1994.

36. TestImony indicates that use of Locus by Plalntirfe prompted complaints in response to the noise created by campers when they engaged In activities near and onLake Norwich.

***** * ** ** ** ******* **

The central Issues before this court is whether Plaintlrfs’ camp use or Locue Is a use protected by the Dover Amendment, found In G. L. c. 40A § 3, and/or the statutorygrandfather protections, found in G. L. c. 40A § 6. Plaintiffs allege that, although Locus Is situated in a Residence 45 zonIng district (which restricts most uses otherthan single family residential), their camp use of Locus is a use protected by the Dover Amendment, and therefore they are not required to meet any additionalpermitting criteria. They also allege that their camp usa is sn extension of a pre-exieting, nonconforming use by the Girl Scouts, which also would preclude the needfor additional permits. Finally, In the alternative, they allege that the decision of the ZBA not to grant the Special Permit for their camp use is arbitrary, capricious andunreasonable. The Interveners allege that the camp use is not a Dover Amendment use, that the pre-existing nonconforming use was abandoned, and that the ZBAwas within its diecretion to deny the Special Permit. I shall examine each of these issues in turn.

Dover Amendment Protection

The first issue that this court must address is whether the operation of a summer camp at Locus is a use that is protected by the Dover Amendment. Plaintiffs arguethat the operation of their camp is protected by the Dover Amendment as it Is both an educational and religious use of the property, and because they era a nonprofiteducational and religious corporation. G. L. c. 40A, § 3, In relevant part, provides:

No zoning ordinance or by-law shall ... prohibit, regulate or restrict the use of lend or structures for religious purposes or educational purposes on land owned orleased ... by a religIous sect or denomination, or by a nonprofit educational corporation; provided, however, that such land or structures may be subject to reasonablereguletione concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking, and building coverage requirements.

Whether land or structures are exempt from zoning regulation for educational and/or religious purposes turns on the dominant or primary purposes of such land orstructure. Fitchburg Housing Auth’y v. ad. of Zoning Appeals of Fitchburg, 380 Mass. 869 , 874 (lgBO); Whitinsville Ret. Soc’y, Inc. v. Town of Morlhbridge, 394 Mane.ZZ, 760 (1985). ReligIous and/or educational purposes are not mutually exclueive, and therefore, religious and educational elemente may be considered together todetermine whether the domInant purpose is religious and/or educational.

“The proper test in deciding whether a nonprofit corporation is en educational one is whether its articles of organization permit it to engage in educational activities.”Gardner-Athol Area Mental Health Ass’n, Inc. v. Zoning Bd. of Appeals of Gardner, 401 Mass. 12 , 15 (1987). As THCR’s original Certificate of Incorporation (filed withMew York on June 22, 1976) states, the purpose of THCR is “to provide a limited amount of vocational training for the purpose of teaching the children responsibilityand respect for the dignity of labor” and “to provide each child with religious training and with a coneciousnese of religious development.” rMote 91 The Articles ofDrganization for THCC (filed with the Commonwealth of Massachusetts on January 23, 2008) provides that the purposes of the corporation were”[t)e operate aneducational outdoor camp to teach children and families leadership skills and life skills with a spiritual foundation which includes bible studies and church services....[tb provide educational and life skills counseling to children and families.,..” The Affidavit of Thaddneus Hill (the “Affidavit”) fMote 101 provides that THCR is a not-forprofit educational corporation, that THCC Is a 501 (c)(3) exempt organization, and that the purpose of both corporatione, at Locus, is:

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to provide children and families with educational and religious programming In the outdoors at Norwich Lake. This has been and continues to be the only use that theChildren’s Ranch and the Christian Camp have or envision for the Huntington property on Norwich Lake.

The Children’s Ranch and the Christian Camp’s use of its Huntington property for children and families Include programming for children, adults, and families. Theprogramming planned Includes religious instruction, spiritual instruction, wilderness training, religious and spiritual counseling, vocational trainlnQ, living skillsinstruction, bible studies, church services, leadership activities and skill-building, and team building education. (Note ill

According to the Affidavit, the mIssIon of Plaintiffs Is “to provide a safe haven for children, families, and Individuals in crisis with educational counseling, training, andmInistry upon Christian teachings and principles.” (Note 121

Testimony Indicates that the ZEO, relative to the Cease and Desist Order, also felt that THCR qualified as a “nonprofit educational corporation” under G. L. C. 40A, 5 3,because the Cease and Delst Order was rescinded after he communicated with Town Counsel. The ZEO also testified that he has maintained his srlglnal position thatthe use of Locus as a camp qualifies as an exempt use as a “nonprofit educational corporation.” Thus, I find that the articles of organization of THCR and THCC,combined with the Affidavit, tax treatment and testimony at trial, prove that Plaintiffs qualify as non-profit educational and religious corporations whose use may beprotected under the Dover Amendment.

Now that we know that Plaintiffs are qualified for Dover protection, the essential question In this case is whether the use of Locus as a camp by Plaintiffs Is a religiousand/or educational use protected by the Dover Amendment. Case law illustrates that there are a broad range of educational and religious uses that are consideredprotected under the Dover Amendment and a strict reading of the words “education” or “religion” is not a proper interpretation of the statute. See generally WorcesterCounty ChristIan Commc’ns, Inc. v. Bd. of Appeals of Spencer, 22 Mass. Ago. Ct. 83 , 87 (1986) (“It may be that the formal trappings of religious and educationalinstitutions assist the determination that the intended use is for the appropriate limited purposes, but, as we read [the Dover Amendment), the exemption is notrestricted to religious sects and educational institutions.”); Cummington Sch. for the Arts, Inc. v. Assessors of Cummlngton, 373 Mass, 597 , 603’05 (1977) (“Ourcases have recognized an InstitutIon’s entitlement to exemption even where Its educational goals were not within traditional areas of education.... The fact thatparticipants spent part of their time in recreational activities would not undermine a use whIch is otherwise educational.”); Martin v. Corp. of the Presiding Bishop ofthe Church of.]esus Christ of Latter-Day Saints, 434 Mass. 14; , 150-152 (2001) (stating that “religious purpose’ means something In the aid of a system of faith andworship” and It Is Impermissible for a judge to determine what Is or Is not a matter of religious doctrine); and Needham Pastoral Counseling Center, Inc. v. Bd. ofAppeals of Needham, 29 Mass, Ago. Ct. 3 , 37 (1990) (protected religious activity may Involve more than prayer end worship).

In Fitchburg HousIng, 380 Mass, at 869-70, the Supreme Judicial Court (the “SJC”) found an educational use under the Dover Amendment where the use was “aresidential facility In which formerly institutionalized but educable adults, with histories of mental difficulties, will live while being trained in skills for independent living,such as self-care, cooking, job seeking, budgeting, and making use of community resources.” (Note 131

As part of their summary of the facts the SJC described the program at Issue as one in which participants “would require medical treatment and would participate in atraining program aimed at developing or learning social and interpersonal skills such as learning to keep themselves physically clean, learning to shop and how to usemoney, [and) learning to cook.” Id. at 871-72 (internal quotations omitted). Plaintiffs claim that uses at Locus are similar to the uses at issue in Fitchburg Housing,where such uses would be, “vocational traIning, living skills instruction, bible studies, church services, leadership activities and skIll-building, and team buildingeducation” for children and families at risk or In crisis. (Note 141

The Town argues that Plaintiffs’ use of Locus Is recreatIonal rather than educational or religious, citing Whitinsvllle, 394 Mass, at 761. (Note 151

In Whltlnsville, the SJC did not find a Dover use where the corporation was using the property for a retirement home. The claimed “educational” use involved aidingelderly residents “psychologically and physically by teaching them crafts and providing entertainment and stimulus for them.” Id. at 758-59. The court stated, “Merelyan ‘element of education,’ however, provided not by a formal program or trained professionals, but only Informally gleaned from the Interplay among residents of thenursing home community, is not within the meaning of “educational purpose’ pursuant to G. L. c. 40A 5 3. Id. at 761. The Town asserts that Plaintiffs’ use of Locus isanalogous to the recreational activities cited In Whitinsvllle-that education Is not the primary focus but just one of the elements of use, and therefare does not qualifyfor Dover protection. In addition, it contends that Plaintiffs’ claimed religIous use Is not adequate either, but instead such use should be considered ‘pastoralcounseling” (Note 161 controlled by Needham Pastoral, 29 Mass. App. Ct. at 38. In Needham Pastoral, the Appeals Court stated that “[a]n element of religionsubsidiary to the dominant secular use does not convert that use to one which is for religious purposes any more than an element of education converts a residentialfacility for elderly persons to a use for educational purposes.” Id. at 31-32, 36, referencIng, Whitinsville, 394 Mass, at 761. The Appeals Court then held that generalpastoral counseling, for any and all persons choosing to avail themselves of the service, was not a protected religious use even though it was performed inside achurch. Id. at 37. The Town argues that Plaintiffs do not give any specific facts of religious use at Locus, but instead give broad generalized and conclusory statementsreferencing religion generally, not in a manner that would Indicate specific religious practices.

Like Fitchburg Housing, the use at Locus is focused on educating participants In vocational and religious subject matters for short, definite, periods of time, by trainedprofessionals, with the intention that they will emerge as more productive and useful members of society. This is a clear and traditional illustration of education andreligious teaching. Unlike the use In Whltinsville, where the participants were elderly residents with no intention of ever residing outside of the property, or using theirnew found craft skills for greater societal purposes, the use at Locus Is not primarily residential, and the educational opportunities are found and exploited in bothspecific instructional activities (such as hands on vocational training) and in mundane activities such as hiking or fishing, during which times PlaIntiIfs exploit suchexperiences to educate on the importance of self-worth, community, and relation to God. The primary counselors at Locus, Thomas Hill and Aaron Allen were also thecamp directors for the 2009 camp season. Aaron Allen has a “missions degree, a Bible degree,” while Hill holds a bachelor’s degree in business administration, amaster’s degree in business (MBA), and a master’s degree in social work (MSW). The curriculum for the camp was also developed with the assistance of counselors,who were selected based, at least In part, on their experience integrating educational and religious components into a camp curriculum. Hill testified that “[wJe look forpeople who have a 4-year degree specifically related to Bible and/or missIons and [who have] done work with a lot of Bible school camps....vacatlxn Bible schools...,” -

these religious credentials distinguish the counselors at Locus from the untrained caretakers in Whitinsvilla. Hill also testified that all the camp activities incorporatedreligious and educational components, even though such activities might appear to be solely recreational to outside observers. (Note 171

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Moreover, the trial record indicates that a significant. segment of each THCC camper’s daily schedule was devoted exclusively to team building and religiousInstruction, and the curriculum Included a theme for each week that was “based on the Bible.” This type of educational and religious preparation and instruction is farmore recognizable as pure and traditional educational use than Is basic craft and hobby activities, supervised by untrained caretakers, Intended to enhance dailyactivities of elderly residents of a nursing home, as seen in Whltinsville.

Unlike Needhem Pastoral, where the judge stated,”[s]ome theological, Inspirational, or spiritual content does not automatically Imbue an activity with religiouspurpose,” Needham pastoral, 29 Mass. App. Ct. at 36, the religious and educational uses at Locus build the foundation of the camp programs offered by Plaintiffs. InNeedham Pastoral the counseling that was provided, though It had undertones of a religious nature, was directed at participants of all faiths, any faith, or no faith, andthe judge noted, “that the services of NPCC and its methods of delivering them are not significantly different from what a neutral observer coming upon the scenewould size up as a mental health center applying standard psychological and psychiatric techniques.” Id. In contrast, Plaintiffs’ curriculum and purpose at Locus couldnot be described in any other way than as a purely Christian in nature, directed at Christian participants, even though secular education (such as vocational training) isalso present, because religious education Is the motivating factor for all activities. A typical camp day begins and ends with Bible study and religious instruction. Thecurriculum, which was developed by a church, has a religious base and Includes a theme for each week that is “focused on the Bible.” The Board of Directors end thecamp directors are primarily ministers and have degrees In Bible studies and social work, and camp counselors are selected based on prior experience incorporatingreligious principles into camp activities. Hence, it Is clear from the evidence and testimony presented to this court that Plaintiffs take specific care to educateparticipants, In both religious and educational areas, at all times while at Locus. INote 181 As a result, I find that the primary use of Locus as a summer camp Iseducational and religious in nature and, therefore, protected under the Dover Amendment.

The Intervenors argue that Plaintiffs Intend to use Locus not only for their own religious and educational purposes (which have been declared protected Dover uses),but that Plaintiffs also intend to use Locus for commercial recreational activities that are not related to educational or religious purposes and therefore not subject toDover protection. There was evidence presented In the form of THCC website pages which indicate that Plaintiffs have openly advertized and permit secular, non-educational entities to use Locus for purposes other than those protected under the Dover Amendment. The evidence shows that this secular, non-educational use ofLocus would not be undertaken by Plaintiffs or their agents, but rather by lessees of the camp acting as independent third partIes.

An activity at Locus that, in and of itself, would not be considered educational or religious in nature may still be protected if it is an accessory use. Henry v. Ed. ofAppeals of Dunstabte, 418 Mass. 841 , 844 (1994). An accessory use is a use “incidental” to a permissible activity that is “necessary, expected or convenient Inconjunction with the principle use of lend.” Id. (citing 6 P.J. Rohan, Zoning and Land Use Controls, § 40A,01 at 40 A-3 (1994)). Renting Locus to secular entitles forrecreation is In no way incidental to the primary religious and educational purposes of the property which are protected, because such secular use Is not related to theeducational or religious uses of Pleintiffs. As a result, I find that If Plaintiffs permit secular, non-educational or non-religious use of Locus, for example, for a corporateretreat or a family reunion, they must follow all applicable Bylaw regulations and such use is not protected by the Dover Amendment.

Pre-Existing Nonconforming Use.

The next issue for this court to address is whether the use of Locus as a camp cen be considered a pre-existing nonconforming use. [Note 191 G. L. c. 40A § 6, states,in pert, as follows: “A zoning ordinance or by-law may define and regulate nonconforming uses and structures abandoned or not used for a period of two years ormore.” Section VI A 3 of the Bylaw states, “Exemption under G. L. c. 40A § 6 shall lapse if a nonconforming use or structure is abandoned or discontinued for twoyears or more.”

Both parties agree that the Girl Scout camp operation was a pre-existing nonconforming use under the Bylaw. The trial record, however, Indicates that the Girl Scoutcamp use ceased for a six year period from 1988 to 1994. Wayne McKinney, who was the hIghway superintendent for the Town during that time period, testified thatthere was “very little activity” at Locus starting in 1988. One abutter, Julia Jones, who was familiar with the typical activities associated with the Girl Scouts, becauseshe had attended the camp as a child end who regularly visited her property each summer from 1986 untIl 1994, indIcated that it was obvious to her when the GirlsScouts were on Locus due to the singing and activity near or on the water, making it unlikely that the campers visited Locus unnoticed. She testiflud that she dId nothear the Girl Scouts from 1988 to 1994, at which time the lease with Woodmen was executed and camping activity resumed. No evidence to the contrary has beenpresented to the court. The Bylaw makes It clear that abandonment or discontinuance for a two year period disqualifies the use. As a result of the foregoing, I find thatthe pre-existing nonconforming camp use of Locus by the Girl Scouts lapsed because the use was discontinued for a period of more than two years. INote 201

Reasonable Regulations and Special Permits

G, C. c. 40A § 3 makes clear that certain uses and structures will be protected from zoning regulations and restrictions generally, however, such uses or structuresmay still be subject to “...reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking andbuilding coverage requirements.” (Emphasis added). Whether a particular zoning requirement will be considered reasonable, as applied to an educational or religioususe, will depend on the specific facts and circumstances of each case. Trustees of Boston College v. Ed. of Aldermen of Newton, 58 Mass. App. Ct. 794 , 800 (2003);Trustees of Tufts College v. Medford, 415 Mass. 753 , 759 (1993). Since Plaintilts’ use of Locus is protected under the Dover Amendment, the only aspects of use orstructures which may be regulated are those enumerated in the statute, supra. No such regulations of use or Structure, however, ate presently at issue In thecontroversy surrounding Locus. The Town is not seeking to impose generally applicable regulations pursuant to those permitted by the statute, which would beacceptable as tong as they could be classified as reasonable, but instead it is seeking to restrict use and structures at Locus through the Imposition of special permitrestrictions, many of which fail outside the scope of permitted classes of regulation. INote 211

Bylaw 5 IV 0, titled “Non-Residential Uses on Lots Not Also Used for Residence,” requires In section 2d, without exemption, that a special permit be obtained for a“Camp for children or adults, camping.., which charges a fee for admissions or use.” This provision prompted Plaintiffs to apply for a special permit even though theybelieved that the use of Locus was allowed under the Dover Amendment. The special permit requirement may well be acceptable for uses which are not protected,however, such a requirement imposed upon a protected use Is antithetical to the purposes of the Dover Amendment and does not reflect the “reasonable regulation”contemplated by the statute. See Trustees of Tufts College, 415 MaSs, at 765 (special permit process is an invalid means which improperly restricts a protected Doveruse and may be challenged as invalid in all circumstances); The Bible Speaks v. Ed. of Appeals of Lenox, B Mass. App. Ct. 19 , 33 (1979) (no legislative intention toimpose special permit requirements on expressly authorized as of right educational uses). Bylaw § V B tNote 221 enumerates the criteria required for issuance of aspecial permit and, although some of the considerations fail within the scope of permissible regulation under the statute, a majority of the requirements are improperconsiderations for protected Dover uses, especially when considered under the special permit process. For example, Bylaw § V B 4 requires the special permit granting

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authority to find that ‘the propoaed use shall be In substantial harmony with the uses prevailing in the neighborhood end for which the site Is zoned.’ Thisconsideration, regardless of its placement within the statute (i.e. whether it is a condition found In other provisions, outside of the special permit process) Is outsidethe classes of restrictions permitted by the Dover Amendment and therefore It cannot properly be Imposed upon Plaintiffs’ protected use of Locus. On the other hand,Bylaw § V B 8 requires the permit granting authority to condition Issuance of a special permit upon a requirement of providing for adequate off-slreet parking. Thisclass of regulation Is enumerated In the statute and, therefore, could be properly applied to PlaintIffs’ use at Locus as long as the specific requirement could be deemeda reasonable regulation. However, its character as a proper class of regulation does not allow Its Imposition under a special permitting process. Issteed, the regulationmust be conditioned independently from the special permitting criteria if It Is to be properly imposed upon the use at Locus. Therefore, I find that Plaintiffs are notrequired to receive a special permit for their protected Dover uses and structures at Locus.

Conclusion

As a result of the foregoing I rescind the Cease and Desist Order and Its reinstatement issued by the ZEA relative to the protected Dover uses as defined In thisDecision, and find that no special permit is required for such use at Locus.

Judgment to Issue Accordingly.

FOOTNOTES

INote 11 Ate telephone conference call held on May 21, 2009, this court Indicated that It would consolidate the three cases once the transfer had been completed. The docket does notreflect that thin has happened. As a result of the foregoing, this court hereby consolidates the three cases.

(Note 21 GIven that the Superior Court Cases were not transferred to this court until June 19, 200g, the Intervenors were not technically parties In this matter at the time of the preliminaryinjunction oral argument. However, in light of the unique posture of this case with regard to venue, this court considered the tntervenors’ oral argument end suppsfting memorandum In itspreliminary Injunction analysis.

(Note 31 The uses described In the decision Include “religious Instruction, spiritual Instruction, wilderness training, religious and spiritual counseling, vocational training, living skillslsntruction, bible studies, church services, leadership activities and skill-building, and team building education.”

fNote 41 The Revised Order limited the uses of the camp solely for uses exempt under 0. L. c. 40A, § 3, as follows:

a. Locus shall only be used for programs directly operated by [Plaintiffs).

b. [Pisintiffs) may not offer Locus for use by, and shall not rent to, any othnr group or entity.

c. At all times, [Plaintiffs) shell maintain adequate professionally-qualified staff on Locus to supervise the residents; [Plaintiffs) shall in writing Inform the Town of Huntington as to the semenend professional qualificstlons of all staff working on Locus.

d. Locus may not be occupied by more than 115 persons, Including resident campers and staff, at any one time.

(Note 51 This court shall sot strike the Intervenors’ Poet-trial Brief, but shall give such arguments such weight an It deems appropriate.

(Note 6] At the June 15, 2008, hearing, THCR withdrew the December 13, 2007, appeal of the Declination, and the April 25, 2008, appeal of the Cease and Desist Order.(Note 71 The 2009 Staff Orientation Manual for the camp states as Its Mission Statement, ‘The THCC family Is committed to modeling the life of Jesus Christ by loving, nurturing end servingchildren and families, while providing safety and hope with a natural camp setting. The Philosophy states, ‘We as an organization will promote Jesus Christ at every opportunity we aregiven. The primary way we will accomplish this is by providing a place of retreat where people can connect with their Creator In a peaceful, natural surrounding.’

(Note El The ZEA voted 2-1 to approve the Special Permit, but 0. L. c. 4OA § 9 requIres a unanimous vote of a three member board, so the Special Permit seas deemed denied.(Note 91 A third original stated purpose of THCR Is to ‘plan for and raise funds for the eventual establishment and operation of a group home for dependent neglecled, pre-delinquentchildren, who have an unstable family situation.” TMCR’s Certificate of IncorporatIon wee amended on January 15, 2888. This amendment expanded the organizatles’s purpose to alsoindude: (1) providing children with ‘educational training”; and (2) acting as a general renource for members of the community in need or assistance, which itself includes two sub-parte, (a)to plan for and raise funds for the eventual entabilshment and operation of a commsnlty recreation facility, and (b) to provIde members of the community with counseling and vocationaltraining.

[NoteAOJ The ZEA filed a Motion to Strike Affidavit of Thaddaeus Hill, based on allegations of hearsay, conciusory assertions, and uneworn evidence. Based on selecled paragraphs, the ZEAmoves to etrike the Affidavit In Its entirety; however, not all of the Affidavit includes inadmissible evidence. The ZEA’s Motion to Strike the Affidavit Is ALLOWED IN PART, as follows: basedon hearsay or conciusory antertions, this court shall not rely on the following statements In the Affidavit, including p.p. 15, 23, 27 (the first sentence), 29, 40-42, aed 44. Mass. R. Clv. P. 56(a) provides that ‘affidavits shall be made on personal knowledge, shall set forth such facte as would be admissible In evidence, and shall show affirmauvely that the affiant Is competent totestify to the matters stated therein.” The Affidavit states that the affiant Is the Executive Director of Plaintiffs, and that the Affidavit was made on personal knowledge. As a result this courtshall rely on portions of the Affidavit which relate to the eftiant’s personal knowledge and with respect to facts to which he is competent to testify,

(Note 151 Plaintiffs cite Gardner-Athol, 401 Mass. at 15-16, which states,The proper tent in deciding whether a nonprofit corporation is en educational one is whether its articles oforganization permit It to engage in educational activities, a question easily answered by a review of documente filed with the State.”

(Note 121 Plalntilfs also point out that counsel for the Town, In a letter to Plaintiffs dated May 6, 2008, stated, ‘It Is my opinion that Timothy Hill would qualify as a ‘eenprofit educationalcorporation’ under G. L. c. 40A, § 3. 1 am therefore recommending that Building Commissioner lift the Cease end Desist order Issued on April 5, 2008 to the extent that the Cease andDesist order would apply to the use of the Property by Timothy Hill for Its exempt activities.’

[Nnte tJl See alto Ed. of Ansesnors of Hamilton v. Iron Rail Fund of Olri Clubs of America, Inc., 376 Mess. 301, 304-04 (1975) where the SJC states ‘Where there Is some relief of poverty,assistance or benefit to the lens privileged, promotion of the health or the general welfare of a group, or some other similar special advancement of deserving persest, gifte for theassistance of a described Indefinite class have been said to be charitable, even where the benefits may have been in part recreation.’

(Note 141 These purposes can be found both In the Articien of Organization for THCC and the Affidavit.

(Note 151 See also Metroseest yMCA, Inc. v. Town of Hopklnton, 14 LCR 378 (2006) (Misc. Case No. 287240) (Piper, J.) (holding that YMCA’s activities, in aggregate, were recreational innature, not educational. The court focused on the lack of any formal campus or student environment as well as the facilities primary use as a work-out center.); Julia Ruth Heuse, Inc. v. Ed.of Appeals of Westwood, 8 LCR 451 (2000) (MIsc. Case No. 262911) (Kilborn, C.J.) (an adult social daycare center did not fall under the Dover Amendment as an edacatlonal use. Theactivitlen in that case Included painting, letter writing, music, literature and high tea, resulting In “day care for adults with Incidental educational components.”)

lNote t61 Pastoral counseling in a method of psychological couneellng administered by trained religious persons, such as prients or rabble, with a focus on using spiritual healing forpsychological problems.

lNote 171 The THCC Staff Orientation Manual provides ‘We as an organization will promote Jesus Christ at every opportunity we are given. The primary way we will accomplish this In byproviding a place of retreat where people can connect with their Creator In a peaceful, natural surrounding.’

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TIMOTHY HILL CHILDREN’S RANCH, INC. vs. WEBB, MISC 08-382531 Page 8 of 8

INote 181 The evidence illuetrates thet all camp programs were developed to Incorporate significant educational end rellgloue elements. The curriculum of THCC was developed byConnecticut Valley Church of Christ under Hill’s supervIsion, with significant collaboration with Tidal River, which had run a camp that similarly incorporated religious and educationalelements Into recreational activities. The collaboratIon began because Tidal River and THCC believed that they might each benefit from the synergy of their faith traditions, and ultimatelyTidsi River’s teacher curriculum was uasd for the 2008 camp season. This curriculum provides that the overall objective for one weak was ‘campara will learn the greatest commandmentand understand how It can ba lived out In our lives.’ This objective wan accomplished by creating a theme for each weak that was ‘baaad on the Bible. They wars based on stories of theBible, different figures In the Bible and things that would have application for their lives In the hers and now.” This language supports the testimony given by Hifi asplalning that thecurriculum was dasignad to Incorporate religious Instruction Into recreational activities.

fNote 191 SInce the use of Locus as a camp was found to be a protected Dover usa, the Issue whether the uaa as a camp is an axtansion of the pra-axiating nonconforming use of a GirlScouts camp, appears to be moot. However, because both parties addressed this Issue, I shall also address it briefly.

INote 201 PlaIntiffs argue and Intarvanors concede that the camp usa was resumed in jgg4 and han bean consistent since that time. Evan if this ware trse the usa had bean discontinuedslnca 1g88, therafora, a pariod axcasdlng the two yasra permitted undar the Bylaw had elapsad. Moraover, the Intant of the Girls Scouts to bsgin the protactad usa again, at someunidantlfiad point In the future, in not ralevant when considering whether the uaa wan discontinued.

INota 211 In this regard, Plaintiffs cita Sisters of the Holy Cross v. BrooklIne, 347 Mass. 486, 4g4 (tgB4), which statan “The town may not, through the guise of regulating bulk anddimensional ragulatlons undar the enabling statute, procaad to ‘nullify’ the usa exemption permitted to an aducatlonal Institution.”

fNota 221 ThIs provision Is titled “General Provisions for Special Permit.” Thara ara alsvan provisions that must ha satisfied before a special permit may be issued, thay era:

1. The proposad structures and uses shall be in harmony with tha general purposa and Intant of this By-Law and tha public Intarant and shall conform to the provisians of this By-Law and allother applicable laws and legally binding regulations.

2. No substantial griavanca, nuisance, or hazard shall be created for any parson owning or residing on an abutting lot or an abutting-to-abutting lot within 300 fast of the lot-site of thespecial permit.

3. The appearance of tha proposed structures shall be In substantial harmony with the general character of the neighborhood.

4. The proposed usa shall ha In substantial harmony with the uses prevailing in the naighborhood and for which the site in zoned.

S. Existing public facilities shall be adequate for the proposed use.

6. ExistIng streets shall be adequate In width and daslgn for the traffic which would ba crestad by the proposed usa. 7. The proposad usa shall not be such an to cwuta traffic on accessstreets to the site which would ha a hazard or substantial nuisance to those owning property on or using such streets.

8. Provisions shall be made for adequate off-street parking, an provided In Sec. IV H.

9. The proposed structures and uses shall not involve a density of population or intensity of use substantially bayond what is generally characteristic of and spproprista to Usa nalghborhood.10. Tha proposed structures, facilities, and uses shall not hays a significant adverse anvironmental Impact.

11. SpecIal permit shall not be issued for a lot on which there is an existing violation.

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