TO:                  Mayor William F. Martin, Jr.

                                    And

                        Members of the Lowell City Council

FROM:            Bernard F. Lynch, City Manager

DATE:             September 28, 2007

SUBJECT:        VERBAL COUNCIL MOTION OF 09/25/07 BY COUNCILLOR CAULFIELD

 “REQUEST THE APPROPRIATE DEPARTMENT REPORT ON THE TREATMENT FACILITY ON ROCK STREET“

___________________________________________________________________________

Regarding the above mentioned matter, the following is a summary and current status of the Rock Street facility:

Middlesex North Resource Center (“Middlesex North”), a subsidiary of Bridgewell, Inc., a non-profit educational corporation serving disabled individuals, currently operates a 12-bedroom facility at 94-106 Rock Street. Middlesex North sought Site Plan Approval from the Planning Board in November 2006 for renovation of the existing facility and construction of a new 6,900 square foot building with 12 efficiency units, classroom and office space, 15 parking spaces, and associated landscaping. Notice of the hearing was published in the newspaper and sent to abutters and a copy of the application was forwarded to numerous City departments for review and comment. On January 11, 2007 the Planning Board voted to deny Site Plan Approval finding that the use is not a protected use under G. L. c. 40A, s. 3 and finding that the expanded use would among other things “pose great safety concerns for the neighborhood.”

Middlesex North filed an appeal of the Planning Board’s decision in Lowell Superior Court. Prior to the Court’s ruling on summary judgment, the Board agreed to a remand of the project and held a new public hearing on September 6, 2007. Notice of the hearing was published in the newspaper and sent to abutters and a copy of the application was forwarded to numerous City departments for review and comment. On September 19, 2007, the Board filed a decision granting Site Plan Approval subject to 9 conditions. Two days later, on September 21, 2007, Superior Court ruled in Middlesex North’s favor, finding that the Planning Board’s January 11, 2007 decision to deny Site plan Approval was beyond the scope of its authority under G. L. c. 40A, s. 3.  The appeal period of the September 19, 2007 Site Plan permit has not yet expired and the Court retains jurisdiction in the matter.

Massachusetts G. L. 40A, s. 3 deals with exempt uses, specifically agricultural, religious, and educational uses. In short, s. 3 prohibits a community from regulating the locations where the exempt uses may locate and exempt uses may locate in any zoning district.  Consistent with the exemptions under s. 3, the City cannot prohibit an existing exempt facility from expanding so long as it meets the dimensional requirements of the zoning district (building height, setbacks, parking requirements, etc.). It is apparent from the Planning Board decisions that dimensional requirements were not an issue.

The statute is fairly sparse, but case law has established the broad scope of the educational exemption under s. 3. Numerous cases have established that facilities like the Rock Street facility are entitled to the s. 3 exemption.

We will continue to follow this project. Please contact me if I can provide further information in this regard. Thank you.