Opinion
19-P-275
03-26-2020
NORTH CHARLES MENTAL HEALTH RESEARCH AND TRAINING FOUNDATION, INC., & another v. CITY OF CAMBRIDGE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a judgment of the Land Court, declaring that their use of certain property located in a "Residential B" zoning district for behavioral healthcare services, counseling services, or talk therapy sessions does not constitute a "General Office" use under the Cambridge zoning ordinance (ordinance). We discern no error, and affirm.
"General Office" use is not among the uses permitted in the "Residential B" zoning district. However, the subject property enjoys grandfather protection for certain uses falling within the "General Office" use classification, based on the conduct of such uses prior to the enactment of the Cambridge zoning ordinance and continuing to the present.
Background. We incorporate by reference the summary of undisputed facts set forth in the written memorandum of decision entered by the Land Court judge, drawn from the parties' joint statement. Of particular pertinence to our analysis are the following. The ordinance does not define "General Office" use. The ordinance sets out a variety of specific use regulations governing various institutional uses in residential zones, including health care facilities and social service or community centers. In particular, a clinic affiliated with a hospital or accredited medical school is prohibited, while a clinic connected to a community center or standing alone must obtain a special permit. A "social service center" may be located in a residential zone upon obtaining a special permit, while a "community center" is prohibited.
A "social service center" is a "facility where counseling, limited short-term custodial care or similar special services are provided to persons on a walk-in or appointment basis under the aegis of a nonprofit agency."
A "community center" is "a multipurpose family center, community facility or other social service establishment not elsewhere classified in this Ordinance where a variety of recreational, educational, social, health care or counseling services are provided under the aegis of a non-profit agency."
Before plaintiff North Charles Mental Health Research and Training Foundation, Inc. (North Charles), leased the property and began its use at that location, prior uses of the property from 2008-2014 included toy design, offices for a "cloud" telecommunications service provider, and a contracting firm engaged in HVAC and sheet metal design and servicing.
After entering into a lease for the property, but before commencing occupancy and operations there, North Charles applied for and obtained a building permit to construct a medical examination room, a medical records room, two doctors' offices, seven offices, twenty-three consultation rooms, and a waiting area, all at a cost exceeding $100,000. After North Charles commenced operations, however, the Cambridge building commissioner issued a cease and desist order, and the Cambridge board of zoning appeal (BZA) affirmed that denial. Following that denial, North Charles sought relief through several avenues, including the present action seeking a determination under G. L. c. 240, § 14A, and a declaratory judgment under G. L. c. 231A.
North Charles also commenced an appeal of the BZA decision in the Middlesex Superior Court, pursuant to G. L. c. 40A, § 17, but that action was dismissed on procedural grounds. The memorandum of decision by the Land Court judge observes that North Charles also sought unsuccessfully to obtain a special permit to authorize its operations at the property; a separate action appealing the BZA's denial of its special permit application apparently remains pending.
North Charles is an independent nonprofit partner of the Department of Psychiatry at the Cambridge Health Alliance, providing behavioral healthcare services. North Charles provides behavioral health care for people suffering from mental illness, including depression and anxiety, as well as addiction. North Charles's operations are licensed by the Department of Public Health (DPH) and the Department of Mental Health (DMH) as a mental health clinic. North Charles does not dispense or administer medications at the property. It does, however, administer noninvasive physical examinations of each of its clients once a year at the property. North Charles employs two medical doctors, each of whom works at the property approximately six hours per week, providing psychopharmacological services by writing prescriptions for anti-depressants.
North Charles also is a licensed provider of methadone services as a component of its opioid treatment program, pursuant to a license issued by DPH. All methadone dosing for individuals in the opioid treatment program occurs at Cambridge City Hospital. The vast majority of the services provided at the property are individual and group talk therapy sessions. The counselors who conduct these sessions are social workers, licensed mental health professionals, and non-licensed individuals with college degrees.
Discussion. The present appeal comes before us on an agreed statement of facts, and frames a pure question of law. We accordingly review the analysis of the Land Court judge without deference. See All Am. Ins. Co. v. Lampasona Concrete Corp., 95 Mass. App. Ct. 79, 80 (2019). Like the Land Court judge, however, we extend deference to the reasonable interpretation of local zoning regulations by the officials charged with their administration and enforcement. See Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381 (2009) ; APT Asset Mgt., Inc. v. Board of Appeals of Melrose, 50 Mass. App. Ct. 133, 138 (2000).
Though the evidence is undisputed, we consider it in the light most favorable to the party (in this case North Charles) against which judgment entered. See Miramar Park Ass'n v. Dennis, 480 Mass. 366, 377 (2018).
As a threshold matter, we observe that the parties and the Land Court judge framed the question of the case as whether North Charles's use fits within those recognized as "General Office" uses under the ordinance. Strictly speaking, however, that question misses the mark, since "General Office" use is not permitted in the Residential B district, and North Charles's use is permissible only if it constitutes a lawfully commenced preexisting nonconforming use. More particularly, since North Charles commenced its use long after the ordinance limited use within the district to residential uses, the question is whether its use is simply a continuation of the previous commercial uses that enjoyed grandfather protection, or instead is a change or extension of the prior uses, outside the protection provided by G. L. c. 40A, § 6. See Powers v. Building Inspector of Barnstable, 363 Mass. 648, 653 (1973) ; Bridgewater v. Chuckran, 351 Mass. 20, 23 (1966). "Our case law has applied a three-pronged test ... to make the requisite determination. ‘Under that test, we inquire: (1) "Whether the [current] use reflects the ‘nature and purpose’ of the [prior] use," (2) "Whether there is a difference in the quality or character, as well as the degree, of use," and (3) "Whether the current use is ‘different in kind in its effect on the neighborhood.’ " ’ " Orange v. Shay, 68 Mass. App. Ct. 358, 361 n.10 (2007), quoting Derby Ref. Co. v. Chelsea, 407 Mass. 703, 712 (1990).
The framework employed by the parties is nonetheless informative, since in assessing the extent to which the present use merely continues, or conversely departs from, the previously grandfathered uses, it is helpful to consider the extent to which the characteristics of each use fall within the various use classifications created by the ordinance, and how the ordinance treats those various classifications (e.g., as permitted by right or only by special permit in the districts in which they are allowed at all).
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As the Land Court judge observed, the description of its use by North Charles itself, that the vast majority of the services provided at the property are individual and group talk therapy sessions, reveals that it fits the definition of a "social service center" as that use is defined in the ordinance. See note 3, supra. But use as a "social service center" is treated as an "institutional use," and regulated as such, distinct from a general office use and -- even in those districts in which it is allowed at all -- allowed only by special permit. "It is a basic canon of statutory interpretation that ‘general language must yield to that which is more specific.’ " TBI Inc. v. Board of Health of N. Andover, 431 Mass. 9, 18 (2000), quoting Risk Mgt. Found. of Harvard Med. Insts., Inc. v. Commissioner of Ins., 407 Mass. 498, 505 (1990). Moreover, as the Land Court judge also observed, the purposes of the regulations applicable to institutional uses (of which a social service center is one) include "to minimize the development of activities which are different from and incompatible with activity patterns customarily found in lower density residential neighborhoods." Because North Charles's use fits precisely within a specifically defined use category under the ordinance, distinct from the general commercial uses on which prior use of the property was protected as a lawfully commenced preexisting nonconforming use, and because the regulatory framework applicable to that (institutional) use category is based on its identifiably different impacts on the surrounding area, the BZA and the Land Court judge correctly recognized that it is not exempt from current zoning as a lawfully commenced preexisting nonconforming use.
Conclusion. The judgment shall be modified to declare that the use of the property for behavioral healthcare services, counseling services, or talk therapy sessions is not a lawfully commenced preexisting nonconforming use exempting the property from applicable provisions of the current Cambridge zoning ordinance. As so modified, the judgment is affirmed.
So ordered.
Affirmed as modified.