Campbell v. City Council of Lynn

Wilkins, J.

(dissenting in part, with whom Lynch, J., joins). In joining in the court’s opinion in Trustees of Tufts College v. Medford, ante 753 (1993), I have agreed that a user of property for educational purposes may do so in contravention of an area, setback, parking, or similar local zoning requirement only if it proves that the local zoning regulation is unreasonable in its specific application to the proposed use. Thus I applaud the court’s decision to send the matter of off-street parking back for a determination whether it would be unreasonable to require the educational user to adhere to off-street parking requirements. The failure of the court to do the same as to the Lynn ordinance’s bulk and dimensional requirements is an unfortunate inconsistency.1

Despite the court’s assertion that the local zoning officials have already decided in substance that application of the bulk and dimension requirements is unreasonable (Campbell v. City Council of Lynn, ante at 778), they have done no *782such thing.2 The test of reasonableness in this situation requires attention to factors not yet considered by any fact finder. Setback requirements and limits on the bulk of a structure on a lot have valid and reasonable municipal purposes. There is no demonstration in this case that the educational lessee could not reasonably find some conforming premises in Lynn for its purposes. If there are other premises reasonably available, it would be consistent with the object of § 3 to apply the Lynn bulk and dimensional requirements to the premises. The court’s view that it is obvious that, as applied in this case, the bulk and dimensional requirements are unreasonable on their face ignores the balancing of interests that the Tufts College case calls for.

If, as the court strives to explain in note 9, ante at 779, the rule it adopts does not grant a roving license to protected religious and educational users to ignore bulk and dimension requirements, that right to rove is hedged by the necessity of determining reasonableness “on the particular facts of each case.” Id., citing Trustees of Tufts College v. Medford, supra. The particular facts in this case are that the protected user is only a prospective lessee, that there has been no fact determination whether “local zoning requirements raised safety concerns” (Campbell v. City Council of Lynn, supra at 779), that there has been no attention given to alternate sites, and that the need to rely on § 3 may be obviated by the fact that the proposed use may not even be a change in the nonconforming use (id. at 777 n.6).

The court rightly perceives that Lynn’s off-street parking requirements have not been subject to appropriate analysis *783on the particular facts of this case. The same analysis is needed of the bulk and dimensional requirements.

^he court seems to endorse the idea that a municipal permit grantor, without a hearing and without any written findings of fact, could grant a building permit to use or erect a structure in violation of the provisions of a local zoning regulation by simply concluding that application of the local zoning regulation to a proposed educational use was unreasonable. I think, on the contrary, that a local official should have no such authority and should deny such a permit application, thereby requiring the applicant to seek relief from the local board of appeals or to commence an action under G. L. c. 240, § 14A (1990 ed.), as Tufts College did in the related case decided today.

This case is relatively rare in the courts’ experience with G. L. c. 40A, § 3 (1990 ed.). It does not concern land already owned by a religious or educational entity that wants to use it in a way inconsistent with local zoning requirements. It concerns a proposed new use by a tenant educational user on premises not owned or to be owned by an educational entity.

“The findings of fact of the Lynn zoning board of appeals consist of one sentence that rejects the challenge to the building permit on the basis that a Superior Court judge “has held that the subject premises enjoys the exemption set forth in [G. L. c. 40A, § 3] because of its educational purposes.” The words “reasonable” and “unreasonable” are not mentioned.

The Land Court’s order allowing summary judgment was not based on a determination that there was no dispute of material fact on the unreasonableness of the bulk and dimension requirements, an issue on which the landowner had the burden of proof.