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SJC-12675

THE McLEAN HOSPITAL CORPORATION vs. TOWN OF LINCOLN & others.1

Suffolk. April 2, 2019. - September 23, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,

& Kafker, JJ.

Zoning, Educational use. Education, Zoning. Words, 

"Educational purpose."

Civil action commenced in the Land Court Department on 

November 15, 2016.

The case was heard by Karyn F. Scheier, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Diane C. Tillotson (M. Patrick Moore, Jr., also present) 

for the plaintiff.

Jason R. Talerman for town of Lincoln & others.

Michael C. Fee, for Arthur Anthony & others, was present 

but did not argue.

 

1 Building commissioner of Lincoln, zoning board of appeals

of Lincoln, Arthur Anthony, Lara Anthony, Edwin David, Nandini 

David, Douglas Elder, Lisa Elder, Jay Gregory, Lisa Gurrie, 

Michael Gurrie, Beverly Peirce, and Daniel Peirce; and Linda 

Kanner, Steven Kanner, Robyn Laukien, Daniel McCarthy, and 

Donald McCarthy, interveners.
2

Benjamin Fierro, III, for Association for Behavioral 

Healthcare, Inc., & others, amici curiae, submitted a brief.

Felicia H. Ellsworth & Julia Prochazka, for Disability Law 

Center & another, amici curiae, submitted a brief.

LENK, J. The question before us is whether the plaintiff's 

proposed residential program for adolescent males falls within 

the meaning of the Dover Amendment, G. L. c. 40A, § 3, second 

par. If so, it is exempt from certain zoning restrictions 

because the land and buildings would be used for "educational 

purposes." The plaintiff, The McLean Hospital Corporation 

(McLean), purchased 5.5 acres of land in the town of Lincoln

(town), intending to develop a residential life skills program 

for fifteen to twenty-one year old males who exhibit extreme 

"emotional dysregulation." The program would allow these 

adolescents to develop the emotional and social skills necessary 

to return to their communities to lead useful, productive lives.

Before purchasing the property, McLean, a nonprofit 

institution, wrote to the town's building commissioner 

explaining the proposed use, and seeking a determination whether 

the project could proceed as of right, pursuant to the Dover 

Amendment, see G. L. c. 40A, § 3, second par., and its local 

analog, section 6.1(i) of the town's bylaw. The building 

commissioner replied in writing that the proposed use was 

educational, and that McLean could proceed under the Dover 

Amendment and the bylaw. After the purchase, however, a number 
3

of nearby residents challenged the decision before the town's 

zoning board of appeals (board). The board decided that the

program was medical or therapeutic, as opposed to educational,

and reversed the building commissioner's determination. McLean

initiated an action in the Land Court challenging the board's 

decision. After a four-day trial, a Land Court judge determined 

that the proposed use was not primarily "for educational 

purposes," under a novel theory that attempted to distinguish 

between life skills that are "focused outward" and those that 

"look inward." McLean appealed, and we allowed McLean's 

petition for direct appellate review.

We conclude that, although not a conventional educational 

curriculum offered to high school or college students, the 

proposed facility and its skills-based curriculum fall well 

within the "broad and comprehensive" meaning of "educational

purposes" under the Dover Amendment. See Regis College v. 

Weston, 462 Mass. 280, 286, 291 (2012). Accordingly, the 

decision of the Land Court judge must be vacated, and the matter 

remanded for entry of a judgment in favor of McLean.2

 

2 We acknowledge the amicus briefs submitted by the 

Disability Law Center and the Mental Health Legal Advisors 

Committee; and by the Association for Behavioral Healthcare, 

Inc., the Association of Developmental Disabilities Providers, 

Inc., the Massachusetts Association of 766 Approved Private 

Schools, Inc., and the Massachusetts Council of Human Service 

Providers, Inc.
4

1. Background. We recite the essentially undisputed facts 

found by the trial judge, supplemented occasionally with

uncontroverted facts in the record. See Vaiarella v. Hanover 

Ins. Co., 409 Mass. 523, 524 (1991).

a. Other programs. The plaintiff currently operates a 

smaller version of the planned program, known as the "3East 

program," at its campus in Belmont, as well as a similar program 

for girls. McLean also operates a program for adults with 

emotional disorders, who are transitioning back into the 

community from a hospital setting, at another location in the 

town; that facility is a protected educational facility under 

the Dover Amendment, G. L. c. 40A, § 3, second par. McLean 

wants to move the 3East program from its already cramped 

quarters in Belmont to the newly purchased land in Lincoln so 

that it can increase the number of adolescents that the program 

serves, from six to twelve at any given time.

b. 3East program. The 3East program's curriculum is 

designed to instill fundamental life, social, and emotional

skills in adolescent males who are deficient in these skills, 

who experience severe emotional dysregulation, and who have been 

unable to succeed in a traditional academic setting. Many of 

the residents have been diagnosed with borderline personality 

disorder; all have varying degrees of emotional dysregulation. 

Some have a co-occurring condition such as attention deficit 
5

disorder, anxiety, or depression, and some have no official 

diagnosis.

Regardless of their diagnosis, all of the residents at 

McLean share difficulties in identifying and regulating their 

emotions, and therefore may react to ordinary, day-to-day 

events, which they perceive as stressful situations, with 

outbursts of fear, anger, or self-loathing. Overwhelmed by 

emotions they cannot identify or control, these individuals have 

difficulty concentrating in school, following directions, 

responding appropriately to others, and maintaining 

interpersonal relationships. They tend to view situations as 

juxtapositions of diametrically opposite positions (from 

"opposite sides of the Grand Canyon"), with no middle ground. 

Slight disappointments (i.e., "can we meet at 5:15 rather than 

5:00?") may be viewed as negative statements about themselves, 

and can lead to increased feelings of abandonment, shame, 

"emptiness," anger, and resentment.

The 3East program uses a highly structured, nationally

recognized, dialectical behavior therapy (DBT) approach to 

attempt to develop social and emotional skills in students with 

severe deficits in these skills. To do so, the program teaches

students to notice and identify their emotions, to slow down and 

consider alternatives rather than simply reacting, and to 

interact constructively with other people. It teaches 
6

fundamental behavioral skills so that the students, whose 

difficulties in emotional regulation interfere with an ability 

to learn in a more traditional setting, may acquire skills to 

respond more productively to the challenges that confront them 

in their day-to-day lives. The goal of the program is to enable 

the students to return to their communities and their families, 

to succeed in traditional educational programs, and to become 

able to lead productive lives.

Entrance to the 3East program is selective. The admissions 

process screens out any individual who is unstable or requires 

hospitalization. Prospective residents also must demonstrate

that they are ready and willing to devote themselves to learning 

these behavioral and cognitive skills, with the expectation that 

they will be able to function in their respective communities in

the future. Once selected, participation in the immersive

residential program generally lasts for sixty to 120 days;

residents who complete the program successfully receive a 

graduation certificate.

During their time at the 3East program, residents receive 

approximately eleven hours per day of instruction and practice 

in social and emotional skills, focused in five well-established 

areas where prior research has shown that training can be very 

effective: mindfulness and ability to pay attention; emotional 
7

regulation; development and maintenance of interpersonal 

relationships; distress tolerance; and validation.

According to Alan Fruzzetti, the director of the program

and the only individual explicitly credited by the judge, 

mindfulness "in DBT is defined as being able to pay attention on 

purpose in the present moment and without being judgmental." It 

is considered the "core skill in DBT," and involves emotional 

control and focus, which, the director pointed out, are

essential "for learning anything." Emotional regulation teaches 

individuals how to identify the specific emotion "they are 

feeling, so as to enjoy positive emotions and 'reduce their 

reactivity to a whole host of different stimuli in the world.'" 

Distress tolerance is "a set of skills" that helps people "get[]

through an apparent crisis" without making it "worse." 

Validation skills allow individuals to recognize and accept 

their own feelings and those of others without "judgments [that] 

tend to fuel negative emotion" toward oneself and others.

A typical day at the 3East program begins at 8:30 A.M., 

with group mindfulness exercises, followed by classroom 

instruction from 9 A.M until 4 P.M.3 After classroom work is 

over, there are one and one-half hours for structured athletic 

time or family therapy, followed by dinner and a final group 

 

3 The students have a forty-five minute break for lunch, and 

fifteen minutes of group mindfulness exercises.
8

mindfulness exercise. After a forty-five minute period of

skills practice and homework worksheets, the students have a 

period of free time until lights out at 10 P.M.

The curriculum is taught in an experiential manner by 

specialists in clinical education. Each day, the students learn 

multiple skills in forty-five minute classroom sessions, as well 

as how to apply them to the complex problems in life that they

may encounter at home, school, or work. The process involves 

formal training sessions, demonstrations and examples by the 

instructors, group practice, and individualized practice 

sessions for each student, as well as daily worksheets and 

homework. Although a part-time registered nurse is available to 

treat any medical issues that arise for staff or students, no 

medical interventions are included as part of the program.

2. Discussion. The parties generally accept the judge's 

findings of fact; they dispute only her determination that the 

primary purpose of the proposed facility cannot be characterized 

as "educational" under G. L. c. 40A, § 3, second par. "The 

central issue in this case," then, "is one of law, not of fact."4

 

4 In Fitchburg Hous. Auth. v. Board of Zoning Appeals of 

Fitchburg, 380 Mass. 869, 873 (1980), the court concluded: "If 

the judge's characterization of the proposed facility as a 

'medical facility' is a conclusion that, as a matter of law, the 

proposed use would not be 'educational,' it must be reversed as 

an error of law." See id., citing New England Canteen Serv., 

Inc. v. Ashley, 372 Mass. 671, 674 (1977). "To the extent that 

it is a finding of fact, it must be set aside as 'clearly 
9

See Fitchburg Hous. Auth. v. Board of Zoning Appeals of 

Fitchburg, 380 Mass. 869, 872 (1980). We must ascertain, based 

upon the facts found by the trial judge, to which we afford 

appropriate deference absent clear error, whether McLean's 

proposed use of the property qualifies as having "educational 

purposes" within the meaning of the Dover Amendment. See id. at 

872-873. See also Kurz v. Board of Appeals of N. Reading, 341 

Mass. 110, 112 (1960) (meaning of "educational use" in local 

bylaw "is a question of law for the court").

a. Dover Amendment. The Dover Amendment exempts from 

local zoning laws those uses of land and structures that are for 

"educational purposes." See G. L. c. 40A, § 3, second par. The 

Dover Amendment provides, in relevant part,

"No zoning ordinance or by-law shall . . . prohibit, 

regulate or restrict the use of land or structures for 

religious purposes or for educational purposes on land 

owned or leased by the commonwealth or any of its 

agencies, subdivisions or bodies politic or by a 

religious sect or denomination, or by a nonprofit 

educational corporation; provided, however, that such 

land or structures may be subject to reasonable 

regulations concerning the bulk and height of 

structures and determining yard sizes, lot area, 

setbacks, open space, parking and building coverage 

requirements" (emphasis added).

In Regis College, 462 Mass. at 285-291, we articulated a 

two-pronged test to determine whether a proposed use falls 

 

erroneous.'" Fitchburg Hous. Auth., supra, quoting Mass. Civ. 

P. 52 (a), 365 Mass. 816 (1974).
10

within the protections of the Dover Amendment. First, the use 

must have as its "bona fide goal something that can reasonably 

be described as 'educationally significant.'" Id. at 285, 

quoting Whitinsville Retirement Soc'y, Inc. v. Northbridge, 394 

Mass. 757, 761 n.3 (1985). Second, the educationally 

significant goal must be the "'primary or dominant' purpose for 

which the land or structures will be used." Regis College, 

supra, quoting Whitinsville Retirement Soc'y, Inc., supra at 

760. The primary or dominant purpose requirement "helps ensure 

that a party invoking Dover Amendment protection does so without 

engrafting an educational component onto a project in order to 

obtain favorable treatment under the statute." Regis College, 

supra at 290.

b. Whether the proposed 3East program has an educationally 

significant goal. The word "educational," as used in the Dover 

Amendment, has been construed on numerous occasions, for more 

than 120 years, as a "broad and comprehensive" term. See Regis 

College, 462 Mass. at 285, quoting Mount Hermon Boys' Sch. v. 

Gill, 145 Mass. 139, 146 (1887). Over time, we have made clear 

that the protections of the Dover Amendment are not to be 

"limited only to those facilities closely analogous to 

traditional schools and colleges." See Regis College, supra at 

286. Rather, the term "educational" encompasses that which is 

"the process of developing and training the powers and 
11

capabilities of human beings." Mount Hermon Boys' Sch., supra. 

Thus, the Dover Amendment embraces fully "the idea that 

education is the process of preparing persons for activity and 

usefulness in life" (quotation and citation omitted). See

Fitchburg Hous. Auth., 380 Mass. at 875.

Based on our long-standing jurisprudence, it appears 

relatively undisputed that the 3East program includes an

educationally significant component. Indeed, we repeatedly have

held that a program that instills "a basic understanding of how 

to cope with everyday problems and to maintain oneself in 

society is incontestably an educational process" within the 

meaning of the Dover Amendment (emphasis added). See Fitchburg 

Hous. Auth., 380 Mass. at 875. See also Gardner-Athol Area 

Mental Health Ass'n, Inc. v. Zoning Bd. of Appeals of Gardner, 

401 Mass. 12, 14 (1987) (proposed use educational where program

taught "daily living, as well as vocational skills, with the 

goal of preparing [its residents] for more independent living").

That the 3East program encompasses an educationally 

significant component, however, is not sufficient for the 

program to fall within the ambit of the Dover Amendment. To do 

so, the educationally significant goal of the program also must 

be the predominant purpose for which the land and structures

will be used. See Regis College, 462 Mass. at 285.
12

c. Whether the primary or dominant purpose is educational. 

The defendants contend that any educational components of the

3East program merely are ancillary to the predominant purpose 

for which the facility would be established, that is, to provide

medical treatment for a particular psychological condition. 

McLean responds that the educationally significant goal of the 

3East program is also its dominant or primary purpose, and that 

the Land Court judge erred in determining that the purpose is

predominantly "therapeutic."

This court has not held, as the defendants ask us to do,

that a skills development program loses its primary educational 

purpose when the particular competencies taught also may be

therapeutic, rehabilitative, or remedial of an underlying 

condition. To the contrary, courts in the Commonwealth have 

concluded that "'education' and 'rehabilitation' do not denote 

functions so distinct that [a local zoning authority or a court] 

could be required to quantify them relative to each other." 

Harbor Sch., Inc. v. Board of Appeals of Haverhill, 5 Mass. App. 

Ct. 600, 604 (1977). See Gardner-Athol Area Mental Health 

Ass'n, Inc., 401 Mass. at 15 ("Rehabilitation surely falls 

within the meaning of education"). Indeed, those concepts "are 

not mutually exclusive." See Harbor Sch., Inc., supra. Rather, 

education encompasses that which is "particularly directed to 

either the mental, moral, or physical powers and faculties, but 
13

in its broadest and best sense it relates to them all." 

Whitinsville Retirement Soc'y, Inc., 394 Mass. at 759.

A determination whether the land and structures at issue 

here would be used for a predominantly educational purpose also

does not, and should not, turn on an assessment of the 

population it serves. Although "emotional or psychiatric 

programs may determine the character of the training furnished 

to residents of the proposed facility," they certainly "do not 

mark the facility as 'medical' or render it any less 

educational." See Fitchburg Hous. Auth., 380 Mass. at 873, 875 

("The fact that many of the residents of the facility . . . will 

be taking prescription drugs does not negate its educational 

purpose or make its dominant purpose medical"). Such 

programming, rather, exists to "serve[] nontraditional 

communities of learners in a manner tailored to their individual 

needs and capabilities." See Regis College, 462 Mass. at 285-

286 (Dover Amendment applies to "facilities for the disabled or 

the infirm"); Watros v. Greater Lynn Mental Health & Retardation

Ass'n, Inc., 421 Mass. 106, 108, 115-116 (1995) (Dover Amendment 

applies to residential education facility for adults with mental 

disability).

Thus, although the 3East program's facility and its 

curriculum will be tailored to serve participants who previously 

may have been inpatients at a psychiatric facility, that fact 
14

alone does not serve to brand the 3East program as a medical 

program. Nor does having been a patient at a psychiatric 

facility in the past preclude an individual from participating 

in a specialized form of education to learn the complex 

emotional, social, and daily living skills necessary to

participate actively and succeed in life.

Indeed, the emotional and behavioral skills that would be 

taught at the 3East program increasingly are becoming a 

component of the educational curriculum in many traditional 

public school settings across the Commonwealth. See, e.g., 

G. L. c. 69, § 1P (enacting framework for schools to help 

students "regulate their emotions and behavior" and to integrate 

"social and emotional learning," "children's mental health," and 

"positive behavioral approaches"); Department of Elementary and 

Secondary Education, Strategic Plan, at 1, 9 (rev. Feb. 2019) 

(core strategy of public schools is "supporting the social, 

emotional, and health needs" of students). See also J.J. Mazza, 

E.T. Dexter-Mazza, A.L. Miller, J.H. Rathus, & H.E. Murphy, DBT 

Skills in Schools: Skills Training for Emotional Problem 

Solving for Adolescents, at 3-4, 26-33 (2016) (noting use of DBT 

curriculum in both traditional and nontraditional academic 

settings).

The defendants contend that the 3East program is 

distinguishable from the facility in Fitchburg Hous. Auth., 
15

because the 3East program has a psychiatrist on staff, and the 

participants may be a threat to themselves or others, in light 

of some of their histories of thoughts of suicide or selfinjurious behaviors. Cf. Fitchburg Hous. Auth., 380 Mass. at 

873, 875. Should we conclude that the 3East program has a 

predominantly educational purpose, the defendants caution 

against a slippery slope in which every therapist's or doctor's 

office or hospital could become a facility afforded protection 

under the Dover Amendment. This, of course, is not the case.

While the presence or absence of medical personnel on staff

may be one factor in the calculus, it certainly does not alone 

create the bright-line rule that the defendants suggest and, 

without more, render a program medical and not educational. As 

McLean points out, ordinary public schools often have registered 

nurses or other medical personnel on staff. Nor does the

involvement of an individual therapist assigned to each 

adolescent, for twice-weekly sessions throughout the course of 

the program, transform the program into a medical treatment 

plan. The students engage in what might equate to an 

individualized therapy appointment for two hours of the roughly 

seventy-hour week of structured skills training and group and 

individual practice.

Moreover, the structure of the 3East program is distinct 

from a medical appointment or an inpatient placement at a 
16

psychiatric hospital. As stated, the full-time program includes

an admissions process, instruction on social and emotional

skills development, group and individual sessions, exercises to 

practice the skills learned, structured social and athletic time 

with classmates and peers, and homework and worksheets to 

complete each evening. Compare Harbor Schools, Inc., 5 Mass. 

App. Ct. at 600, 605 (residential facility for children with 

emotional regulation issues was educational and not medical).

The teachers and therapists who form the staff at the 3East

program are not doctors. They are required to have a Bachelor's 

degree, not unlike the teachers in schools across the 

Commonwealth. They also have specialized training in areas such 

as education theory, coaching, and DBT. Notably, the trial 

judge explicitly found that no medical interventions are used in 

the 3East program.

The defendants' argument that the 3East program exemplifies 

our previously expressed concern that a purely residential 

facility may not add an informal educational component merely as 

a smokescreen in order to obtain favorable protections under the 

Dover Amendment also is unavailing. See Regis College, 462 

Mass. at 287 (optional coursework cannot be mere "window 

dressing" for luxury condominium complex); Whitinsville

Retirement Soc'y, Inc., 394 Mass. at 760 (informal arts and 

crafts program did not render nursing home educational). The 
17

3East program includes a full-time, highly structured, mandatory

curriculum taught by formally and specially trained staff, upon 

graduation from which the students ideally will return to their 

respective high schools, colleges, and communities.

Finally, in an effort to distinguish the 3East program from

the programs at issue in Gardner-Athol Area Mental Health Ass'n, 

Inc., 401 Mass. at 14, and Fitchburg Hous. Auth., 380 Mass. at 

871-872, the defendants and the Land Court judge rely on a 

purported dichotomy between "outward"-facing skills (i.e., those 

that help assimilate individuals into their respective 

communities) and "inward"-facing skills (i.e., those that help 

address any internal manifestations or symptoms of a mental 

disorder). We have not previously endorsed such a distinction, 

nor do the parties identify any case law or scientific research 

that would support such a concept. As the plaintiff indicates,

inward-facing skills, which presumably would encompass the 

mindfulness, emotional regulation, distress tolerance, and 

validation components of the program, also have an enormous 

impact on an individual's ability to engage in work or study, 

and to interact outwardly with others. See Fitchburg Hous. 

Auth., supra at 875 (baseline skills to "cope with everyday 

problems and to maintain oneself in society" deemed 

educational). Moreover, the "development and maintenance of 

interpersonal relationships," one of the five core program 
18

components, is explicitly limited to outward-facing skills. The 

gym activities and group mindfulness activities also incorporate 

mandatory group and interpersonal components.

Both inward-facing and outward-facing types of skills, even 

assuming they can be meaningfully parsed in this manner, are 

part of "the idea that education is the process of preparing 

persons 'for activity and usefulness in life'" (citation 

omitted), Fitchburg Hous. Auth., 380 Mass. at 875, and thus 

protected as a significant educational purpose under the Dover 

Amendment. While we have made clear that "a basic understanding 

of how to cope with everyday problems and to maintain oneself in 

society is incontestably an educational process" within the

ambit of the Dover Amendment, id., it also would be impossible 

to exclude the acquisition of these skills from serving a 

"therapeutic" purpose.

We accordingly agree with McLean that, in situations of 

this type, an attempt to sever that which is educational from 

that which is therapeutic is ordinarily a rather futile 

exercise. Focusing on the "therapeutic" aspects of a program

such as the one at issue shifts the analysis from the program's 

educational purposes, and whether education is a significant 

part of the program, to the type of student who is participating 

in the program, which is precisely what, as we have said, should 

not be the foundation of an analysis under the Dover Amendment. 
19

We decline once again to adopt as dispositive a distinction 

between education with a therapeutic purpose -- to teach how to 

live in society, cope with daily tasks, and interact with 

others -- and education with a traditional academic purpose. 

See Regis College, 462 Mass. at 285-286, 291. We also decline 

to adopt the judge's parsing of distinctions between a 

"therapeutic" program to teach inward-facing life skills and an 

"educational" program to teach outward-facing life skills. See 

Mount Hermon Boys' Sch., 145 Mass. at 146 ("educational" purpose 

encompasses "the process of developing and training the powers 

and capabilities of human beings").

In sum, that the curriculum of the 3East program may 

encompass elements of teaching emotional regulation, and allows 

two percent of the weekly program hours to be devoted to 

individual therapy, or that some of the skills are taught by 

clinical professionals, does not negate the fact that the 

predominant purpose of the 3East program is educational. Cf.

Watros, 421 Mass. at 108, 115-116 (residential facility for 

adults with mental disability was educational within meaning of 

Dover Amendment notwithstanding therapeutic aspect). To the 

contrary, these features indicate that the 3East program is a

specialized form of education, with therapeutic aspects, that

ultimately teaches its participants the skills necessary for
20

their success, "activity and usefulness in life" (citation 

omitted).5 See Mount Hermon Boys' Sch., 145 Mass. at 146.

3. Conclusion. The judgment is vacated and set aside, and 

the case is remanded to the Land Court for entry of judgment in

favor of McLean.

So ordered.

 

5 Our conclusion in this regard comports with the 

legislative history of the Dover Amendment, which we have had 

considerable occasion to examine in the context of educational 

programs. See, e.g., Regis College v. Weston, 462 Mass. 280, 

286 (2012); Trustees of Tufts College v. Medford, 415 Mass. 753, 

757-758 (1993). In so doing, we have noted that, although the 

Department of Community Affairs had proposed "that Dover 

Amendment protection be limited to 'school[s]' or analogous 

'place[s] or facilit[ies],'" see 1972 House Doc. No. 5009, at 

84, the Legislature rejected this language. See Regis College, 

supra. It thus opted not to adopt "a statutory test that would 

limit Dover Amendment protection only to projects similar to 

'schools.'" See id. The Dover Amendment also exists, in part, 

to protect educational institutions from a municipality's 

exercise of preferences as to what kind of educational 

facilities it will welcome, "the very kind of restrictive 

attitude which the Dover Amendment was intended to foreclose." 

See The Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. 

Ct. 19, 33 (1979). The use of land for nontraditional 

educational accordingly was anticipated by the drafters of the 

Dover Amendment.