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August 19, 1977


Essex. Two civil actions commenced in the Superior Court on June 13, 1974, and August 22, 1974, respectively. The cases were heard by Linscott, J., on reports of a master.

Keville, Goodman, & Armstrong, JJ.


Zoning, Educational use. Education. Words, "Education."

The opinion of the court was delivered by: Goodman

In an appeal from a decision of a board of appeals under G. L. c. 40A, § 21, and a related action for declaratory and injunctive relief, findings in a master's report were an adequate basis for judgments to the effect that a facility for the care and education of emotionally disturbed children was exempt from the local zoning ordinance under the provisions of c. 40A, § 2, as amended through St. 1959, c. 607, § 1. [602-608]

These are appeals from two judgments, each in an action in the Superior Court, both of which upheld a claim made under G. L. c. 40A, § 2, *fn3 by Harbor Schools, Inc. (Harbor Schools), that it is entitled to operate a facility on the premises without regard to the use restrictions of the Haverhill zoning ordinance. One of the actions (see fn.1) is an appeal under G. L. c. 40A, § 21, from the decision of the board of appeals of Haverhill (board), revoking a building permit (G. L. c. 40A, § 13) to make repairs and changes in the building on the premises in contemplation of its use by Harbor Schools. The only reason given by the board for its decision was that "he Board of Appeals feels that this type of facility is not exempt from the zoning ordinance under the provisions of Massachusetts General Laws, Chapter 40A, Section 2." The judgment entered in that action determined that the "laintiff, Harbor Schools, Inc., conducts facilities of an educational nature which serve a public purpose and, in accordance with [G. L. c. 40A, § 2], is exempt from the operation of the zoning by-laws of the City of Haverhill and is entitled to a building permit at 475 Main Street, Haverhill." The board and one of the individual residents, Dorothy Tye, who owns property at 681 Main Street in the vicinity of the premises, appealed (see fn.1).

The second judgment was entered in a companion case for declaratory and injunctive relief (see fn.2). It raised the same issue as did the appeal from the decision of the board under G. L. c. 40A, § 21, and the judgment entered was to the same effect as the judgment in that case; Dorothy Tye appealed.

Both cases had been referred to a master who had heard them together and had filed two separate reports which were confirmed and in which the findings of substantive facts are identical. (References hereafter to the master's report, in the singular, are intended to include both reports.) The only question before us is whether the master's report yields an adequate basis for the judgments. Whaler Motor Inn, Inc. v. Parsons, 3 Mass. App. Ct. 662, 666 (1975), and cases cited; *fn4 S.C. 372 Mass. 620, 621, fn.4 (1977). We hold that it does.

The master found that Harbor Schools was a corporation organized under G. L. c. 180 and that it operated three facilities, two in Maine and one in Amesbury, Massachusetts, "which are devoted to the education and improvement of emotionally disturbed children"; the premises in Haverhill are proposed as the site of a fourth such facility. Harbor Schools admits children from the ages of five to eighteen years. It is anticipated that admissions to the Haverhill facility will be confined to girls from the ages of thirteen to eighteen. The master further found that Harbor Schools had fifty-one "students" referred through agencies of the Commonwealth -- primarily by the Department of Public Welfare. However, individual private admissions are possible.

The master viewed the facility in Amesbury, which the parties agreed "was typical of the other units operated by The Harbor Schools, Inc. and would, in a great measure, be similar to the facility intended to be operated in Haverhill." He found that "he facility lacks some of the sophisticated and modern equipment found in some public schools, but in its simple state, it offers an atmosphere of calm, home life, coupled with educational indoctrination in each case suitable and essential for the individual involved. In the educational process the facility attempts to tune in the wave length of the particular student's intellectual capacity and to keep up with his learning ability and achievements. It constantly attempts to keep up with the student and develops his abilities. Correction for character weaknesses is also handled on an individual basis."

He further found, with reference to Harbor Schools generally, that each facility had two teachers who "are college graduates -- all with Bachelors degrees, some of them have Masters degrees. Most of them, if not all, have had specialized training in dealing with children having unusual emotional problems of psychiatric nature, requiring special knowledge and experience." *fn5 He also found that the executive director of the facilities was a "well educated man of vast experience in special education" and was amply qualified "to administer the program of these facilities which are devoted to the education and improvement of emotionally disturbed children."

The master found that "he children The Harbor Schools, Inc. works with are basically emotionally disturbed children with educational and in most instances psychological problems . . . . In every case, each of these children admitted needs emotional psychiatric adjustment as well as daily educational indoctrination in the basic studies such as English, mathematics, science, etc. Most of these children are so emotionally maladjusted that it is impossible to keep them in any public school facility and they need special attention and individual care . . . . s each child is admitted, each child is given various tests to determine his intellectual capacity, any social problems which he may have, his spirit of cooperation, and his ability to become involved and socialize with his fellow students . . . . ll of the children are given periodic diagnostic reading tests which consist of word recognition, word analysis, various achievement tests which involve world [word?] knowledge, reading comprehension, spelling, language, simple mathematical computation, mathematical problems. arious standard tests which are employed in the public school system are also used at this facility. Each is given standard achievement tests which are used and recognized for public schools." *fn6

The master's findings find support in the purposes of Harbor Schools set out in its articles of incorporation which, as listed by the master, indicate an emphasis on education and instruction. Further, the master found that Harbor Schools was given a tax exemption "under Chapter 32 of the Internal Revenue Code, as a non-profit educational institution permitting it to purchase gas and lubricating oil tax free" (presumably under I.R.C. § 4221[5] and § 4221[5]).

In view of the master's report the board (see fn.4) has properly abandoned the contention apparently made to the master that (as stated in the master's report), "the use to which the building is to be put is merely a care facility for children, with underlying medical facilities and with minimal educational aspects . . . ." The board now argues that (as stated in its brief) "at the very most the education supplied to them is an equal objective with their rehabilitation." But "education" and "rehabilitation" do not denote functions so distinct that the master could be required to quantify them relative to each other. They are not mutually exclusive. Almost one hundred years ago the Supreme Judicial Court characterized "education" as "a broad and comprehensive term. It has been defined as 'the process of developing and training the powers and capabilities of human beings.' . . . Education may be particularly directed to either the mental, moral, or physical powers and faculties, but in its broadest ...

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