No. 2001-1499A.Commonwealth of Massachusetts Superior Court. WORCESTER, SS.
October 11, 2005
MEMORANDUM OF DECISION AND ORDER
AGNES, JR., J.
This is an appeal by the plaintiffs pursuant to G.L. c. 40A, § 17 from two decisions by the defendant Zoning Board of Appeals of the Town of West Boylston (hereafter, “ZBA”) which had the effect of authorizing the issuance of building permits to permit the defendant Woodhaven Camp Ground Association, Inc. (Hereafter, “Woodhaven”) to renovate and winterize four cottages located on their campground. The plaintiffs are abutters to a camp site in the Town of West Boylston that is owned by the defendant Woodhaven. The Court’s role in such cases is to “hear all evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or . . . make such other decree as justice and equity may require.” G.L.c. 40A, § 17. The case was tried on the basis of live testimony, documentary evidence in the form of numerous exhibits, and certain stipulations of fact. Based on the credible evidence presented at the trial, the court makes the following findings of fact and rulings of law.
FINDINGS OF FACT A. Background
Woodhaven operates as a Christian, non-profit camp on about 65 acres of land at 55 Campground Road in West Boylston. Its stated purpose is to provide “Christian training and recreational activities for all peoples of all faiths with special emphasis on strengthening, encouraging, and fostering the moral principles and character of youth; and to hold religious meetings. . . .” It was organized as a non-profit corporation under the laws of the Commonwealth of Massachusetts in 1956. It has been recognized by the federal government as tax exempt, charitable, educational or religious organization since 1968. It is exempt from taxation under local law.
Mr. George Detellis, Jr., one of the witnesses at trial, is the Executive Director of Woodhaven and a member of its board of directors. Mr. Detellis resides in Winter Springs Florida about ten months of the year and two months in Massachusetts. Title to the property is in the name of Woodhaven Camp Ground Association, Inc. With an address in Orlando, Florida. See exhibit 8. Woodhaven was founded by Mr. Detellis’s grandfather on what at the time was Mr. Detellis’s great grandfather’s farm. Mr. Detellis lived at Woodhaven for ten years while his father was the Director and his mother was the President.
Woodhaven consists of a chapel, dormitory, dining hall, kitchen, bath houses, cabins, and recreational facilities which include an Olympic-size swimming pool, bath house, basketball court and sports field. This case concerns a portion of Woodhaven which contains four cabins (see exhibit 12) fronting on Campground Road . The portion of the property containing the cabins was acquired by Woodhaven in 1959. Exhibit 4. The plaintiffs reside at 62 Campground Road and are abutters to Woodhaven. See exhibit 20 (photo of home).
B. The Erection of Cabins
Woodhaven is located in a Single Residence Zoning District (SR District) under the zoning bylaws of the Town of West Boylston. Sometime in 1966, Woodhaven had a plan prepared which divided a portion of the land it had acquired in 1959 (exhibit 4) into five lots, one of which contained an existing stone house (lot 1). Woodhaven then erected four cabins each of which was shown as a separate lot on the plan. The cabins are located on lots 2-5 of this plan. Each cabin has a single toilet and its own septic system. The Planning Board of the Town of West Boylston endorsed the Woodhaven plan (“approval not required”) on April 17, 1966. See exhibit 5. At the time of their construction, the cabin lots conformed to the dimensional requirements applicable in the SR District (15,600 square feet of area and 120 feet of frontage). See exhibit 6.
Under the current bylaws, lots in the SR District require a minimum of 40,00 square feet. Only one of the four lots meets this current requirement. See exhibit 10 (Lot 2 is 19,200 square feet; lot 3 is 25,630 square feet; lot 4 is 31,700 square feet and lot 5 is 64,530 square feet).
C. Proposals to Alter the Four Cabins.
As of 2001, however, due to changes in the applicable zoning laws, 3 of the 4 cabin lots no longer conform to the dimensional requirements of the zoning bylaw. See exhibit 7. In early 2001, Woodhaven applied for building permits to make certain alternations to the 4 cabins to consist of (a) new windows, (b) sliding doors, (c) the addition of insulation, (d) new 10′ x 14′ pressure-treated wooden decks, and (e) the installation of kitchenettes which would consist of cabinets, a stove, a sink and a small refrigerator. See exhibit 8. The cabins were in need of repair at the time. The only external feature that would change as a result of the proposed alterations was the addition of the deck in the rear away from the side facing the abutters.
D. Decisions made by Building Inspector and ZBA
On March 2, 2001, the Building Inspector denied Woodhaven’s application indicating that the applicant would require a variance from the Board of Appeals (Board). The Building Inspector reasoned that he had not been asked to issue permits on grounds that Woodhaven was an exempt religious use and that therefore it would have to obtain relief from the Zoning Board of Appeals (ZBA). See exhibit 8 (Interoffice memo dated March 2, 2001). Woodhaven, in turn, appealed this denial to the Board. See exhibit 8 (Petition dated May 8, 2001). In its petition, it stated that “[t]he four cabins located on campground Road will continue to be used as temporary seasonable housing for camp visitors and staff, including the corporation’s Executive Director . . . . . The proposed improvements will not constitute any change or substantial extension of the use as accessory facilities for camp staff and visitors.” Exhibit 8 (Petition dated May 8, 2001). On June 21, 2001, The Board conducted a public hearing on the matter. On June 26, 2001, the Board voted unanimously to grant the application by Woodhaven. See exhibit 10-11. Thereafter, on August 16, 2001, after the abutters appealed that determination to the Superior Court, the Board acted on a second petition filed by Woodhaven in which a Special Permit was sought and allowed that relief as well. See exhibit 12. The plaintiffs amended their complaint to include an appeal of this decision to the Superior Court as well.
On September 4, 2001, Woodhaven asked the Building Inspector to take formal action on its application to renovate the 4 cabins. See Exhibit 14. The Building Inspector responded in writing on September 13, 2001 by stating that he would not approve the applications by Woodhaven until the Board of Health determined that the septic systems were adequate. See Exhibit 15. Thereafter, Woodhaven applied for a building permit to construct a portion of what they requested in their original application, namely the addition of a deck and a sliding glass door for each cabin. In its application dated October 15, 2001, the cabins were described as “housing for summer camp.” See exhibit 16. In issuing the permits on November 21, 2001, the Building Inspector described the changes as “deck and interior alterations — summer cottage.” Woodhaven has completed the exterior alterations, but has not made any of the alterations to the interior of the cabins.
E. Past, Present and Proposed Uses of the Camp and the Cabins
Since 1968, Woodhaven has been used primarily as a summer camp. The principal purpose of the property has been and continues to be to provide children with safe and fun day camp activities. In recent years, the cabins have been used intermittently but principally during the summer months.[2] However, there have been winter activities on the property including church meetings at the winterized chapel for many years. Woodhaven did have its own congregation at the site from 1991-95. More recently, however, the chapel has been leased for use by a nearby congregation. The goal of the Woodhaven is to operate a day camp facility that will be enjoyable and safe for local youths both during the summer months and for winter weeks when school children are on vacation. The camp employs specialists in the areas of sports, drama, adventure etc. In addition to recreational activities, Woodhaven’s day camp includes a weekly chapel session[3] and patriotic observances at the beginning and the end of each day. There was no other evidence presented that the Camp has used the cabins for religious or educational activities.
From time to time, the Board of Directors has rented the camp to other Christian, non-profit groups. Woodhaven has approval from the Board of Health authorizing it to host over 100 children. Woodhaven has about 30 staff personnel in total with at least 6 on site at all times the Camp is operating. Although Woodhaven represented to the ZBA that it did not have any plans to expand the use of the camp or to use the cabins in the winter, Mr. DeTellis testified that he wants to expand operations to the entire 12 months of the year including rentals to other qualifying organizations. If the Woodhaven expanded to year-round operations, the cabins would be used to house staff on a year-round basis. However, it is the intention of Woodhaven not to lease the cabins to persons other than staff or family, and not to operate on other than a day camp basis. There is no evidence that the proposed alterations will have any appreciable effect on the aesthetics or the environment of the neighborhood in terms of visible changes in the structures or adverse impacts associated with increased traffic etc.[4]
RULINGS OF LAW 1. Timeliness of the administrative appeal. The first question raised by the plaintiffs is whether the defendant Woodhaven acted in a timely manner in appealing the Building Inspector’s denial of its application for a building permit on March 2, 2001. The appeal was not filed with the town’s ZBA until May 9, 2001 which was 68 days later. General Laws c. 40A, § 15
requires that, in order to be timely filed, an appeal under G.L. c. 40A, § 8 from a denial of a building permit must be filed with the city or town clerk within 30 days of the order or decision which is being filed. This requirement is applied strictly to annul action by the board in cases in which an appeal is not filed in a timely manner unless there are extraordinary circumstances which prevent a party from acting within 30 days. See Elio v. Zoning Bd. Of Appeal of Barnstable, 55 Mass. App. Ct. 424, 429, further app. rev. den. 437 Mass. 1109 (2002). See also Carstensen v. Cambridge Zoning Bd. Of Appeals, 11 Mass. App. Ct. 348 (1981) (“Normally, strict compliance with the rules for taking appeals is necessary and the failure to pursue such a statutory remedy within the time frame set forth deprives the appeals board of jurisdiction to review actions concerning permits.”). Therefore, the defendant ZBA had no authority to act on the defendant Woodhaven’s administrative appeal. See exhibit 9.
2. Issuance of Special Permit by the ZBA. Despite the lack of jurisdiction over Woodhaven’s administrative appeal, the question remains whether the defendant ZBA acted properly in granting Woodhaven a building permit. The first question is whether it the ZBA had authority to grant a Special Permit to Woodhaven. Under the zoning by-law of the Town of West Boylston in effect at the time of the proceedings in this case, see exhibit 7, the ZBA is authorized to grant a Special Permit to permit an applicant to alter a non-conforming use “in those cases where a finding is made that such a change, extension, or alteration shall not be substantially more detriment (sic) to the neighborhood than the existing use.” See exhibit 7, section 1.4(B). See also exhibit 7, section 6.2(E). The court found that at the time the cabins were constructed they conformed to the existing zoning by-law. However, at some point thereafter the town amended in zoning by-law and increased the minimum lot size required in an SR District such that 3 of the 4 lots on which the cabins are located became non-conforming.
The West Boylston by-law specifically recognizes that both religious and educational uses are allowed as a matter of right in an SR District. See Section 3.2(D)(2) (Religious Use) and Section 3.2(D)(3) (Educational Use “exempted by G.L. c. 40A, § 3″). The reference to G.L. c. 40A § 3 does not serve to restrict the scope of the by-law in terms of making religious or educational uses permissible as a matter of right, but merely incorporates by reference decisional law construing the phrases “religious sect or denomination” and “educational purposes” as they appear in the statute.
On the record before the court, the evidence does not permit a finding that the Woodhaven camp is operated by a “religious sect or denomination” as that phrase is used in G.L. c. 40A, § 3 or that it is operated for “religious purposes.” See Needham Pastoral Counseling Center, Inc. V. Board of Appeals of Needham, 29 Mass. App. Ct. 31, further app. rev. den. 408 Mass. 1103
(1990) (“An element of religion subsidiary 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 residential facility for elderly persons to a use for educational purposes.”). A day camp described as one with a Christian focus but which is not affiliated with a religious organization or congregation, which does not have a curriculum which includes any religious instruction, and in which the campers are not supervised or guided by persons affiliated with a religious organization or congregation is not a camp that is operated by a “religious sect or denomination” as that phrase is used in G.L. c. 40A, § 3 or operated for “religious purposes.” It’s certainly possible that the owners and operators of Woodhaven have that purpose in mind, but they did not meet their burden of proof on that issue in this case.
The phrase “educational purposes” in the context of G.L. c. 40A, § 3 has been given a broad compass by our appellate courts. For example, in Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19 (1979), the Appeals Court described it as a broad definition that includes uses and activities that are “directed to either the mental, moral, or physical powers and faculties, but in its broadest and best sense it relates to them all. . . .” Id. at 29 (citations omitted). “The definition is echoed in Webster’s Third New International Dictionary (1971) which gives as one of the definitions of `education: `the act or process of providing with knowledge, skill, competence, or usu(ally) desirable qualities of behavior or character or of being so provided esp(ecially) by a formal course of study, instruction, or training.'” Harbor Schools, Inc. v. Board of Appeals of Haverhill, 5 Mass. App. Ct. 600, 605 (1977).
A day camp for young people that provides recreational activities, and teaches crafts, games, and other skills certainly qualifies as an educational purpose, activity or use. Since the parties do not dispute that Woodhaven meets the definition of a “nonprofit educational corporation” within the meaning of G.L. c. 40A, § 3, see Stipulation of Facts paragraphs 1,2 and 3, it is beyond question that Woodhaven has a right to carry on a day camp program in an SR District under the West Boylston by-law.
The defendant Woodhaven maintains that under the facts involved in this case the ZBA was not required to make a finding that the proposed alterations to the cabins were permissible expansions of a nonconforming use. Relying on Watros v. Greater Lynn Mental Health and Retardation Association, Inc., 421 Mass. 106 (1995), it argues that when the historical use of a structure on property is a permitted use under G.L. c. 40A, § 3 and the organization in question intends to continue to use it for that purpose in the future, the ZBA has no choice but to grant a special permit. I Watros, however, the court did not face the question of whether the particular renovations to be made in the structure (a barn that was to be converted for use as a residence) were lawful, but rather whether the barn could be used as a residence. Here, the issue is not wintertime use as opposed to summertime use of the cabins, but rather whether specific alterations in the structure itself are permissible. While G.L. c. 40A, § 3 forbids the Town from imposing unreasonable restrictions against protected uses, it does not suspend the zoning laws in their entirety. See, e.g. Martin v. Corporation of the Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 434 Mass. 141 (2001); Rogers v. Norfolk, 432 Mass. 374 (2000); Trustees of Tufts College v. Medford, 415 Mass. 753 (1993).
Assuming that the Watros case is not applicable, the question remains whether the proposed alterations to the cabins will constitute changes which are substantially more detrimental to the neighborhood than the existing use. The cabins in question have been in place since 1966. Each cabin already has its own septic system. The addition of new windows, a sliding door, insulation, a 10 foot by 14 foot deck and an interior kitchenette is not detrimental to the neighborhood. It will not enlarge the living area of the cabins or affect the set back from Campground Road. It will not change or alter in any significant way the appearance of the cabins from the vantage point of the abutters, other than to make them more visually attractive. The new decks are in the rear and will have no significant impact on the use of the cabins. The changes will not alter the purpose for which the cabins have been and are being used. I agree with the determination made by the ZBA that “[t]he renovations will improve the appearance of the cabins which have become worn and in need of roofing and siding. The addition of small decks on the rear of each cabin will cause no undue detriment to the neighborhood in that they are not facing any residential abutters.” Exhibit 10 at 4.
The plaintiffs principal complaint is with the plans to operate the day camp on a year round basis. This may or may not come about, but in any case it is not an issue that implicates the Town’s zoning laws.
ORDER
The court takes the following actions on the plaintiff’s request for rulings of law: numbers 1, 2, 3, 4, 5,6, 7, and 11 are allowed; numbers 8, 9, 12, 13, and 14 are denied. For the above reasons, the decision of the defendant ZBA granting the defendant Woodhaven a Special Permit under Section 1.4(b) of the by-laws of the Town of West Boylston to obtain building permits to winterize, renovate and improve four cabins as provided in their application is AFFIRMED.