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Christopher R. Vaccaro
McLean Hospital is a nonprofit psychiatric hospital and research facility based in Belmont with a stellar reputation in the mental health industry. In addition to medical treatments, McLean offers educational programs on managing psychiatric disorders for patients and their families. McLean’s corporate charter specifically authorizes it to operate educational programs and facilities.
McLean’s various mental health programs include dialectical behavior therapy (DBT) for individuals suffering from borderline personality disorder (BPD). BPD patients have severe difficulty controlling their emotions. This can cause low self-esteem, depression, drug abuse, self-harm and sometimes suicide. DBT programs educate patients on improving mindfulness, interpersonal effectiveness, emotion regulation and distress tolerance.
McLean operates a residential DBT program for adolescent BPD patients and their parents known as 3East. This intensive program requires patients to spend four hours daily in classroom training, with coaching, homework assignments, and mindfulness exercises. Patients also meet with therapists twice a week.
McLean sought to relocate its 3East Boys Program from the Belmont campus to a 5.56-acre site in Lincoln in 2016, hoping to accommodate up to 12 young men with enrollments lasting from 60 to 120 days.
Before purchasing the site, McLean obtained written confirmation from the Lincoln building commissioner that the 3East Boys Program was permitted as of right under the Dover Amendment of the Massachusetts Zoning Act.
The Dover Amendment prohibits municipalities from adopting zoning laws that restrict religious uses and nonprofit educational uses, but allows reasonable dimensional limits on religious and educational buildings. The Lincoln building commissioner confirmed that the 3East Boys Program was a protected educational use under the Dover Amendment, and the Lincoln planning board approved McLean’s site plan.
Various appellate court decisions in Massachusetts during the 1970s and 1980s supported the building commissioner’s decision. For example, in Harbor Schools Inc. v. Haverhill Board of Appeals, the Appeals Court ruled that the Dover Amendment allowed a residential school for emotionally disturbed children.
The Supreme Judicial Court ruled in Gardner-Athol Area Mental Health Ass’n v. Gardner Board of Appeals and in Fitchburg Housing Authority v. Fitchburg Board of Appeals that residential facilities for mentally disabled adults and former mental patients have Dover Amendment protection, if they include significant educational components.
Abutters Object
Several abutters appealed the building commissioner’s decision. The Lincoln board of appeals agreed with the abutters and overruled the building commissioner. The board determined that although the 3East Boys Program employed methods that appeared educational, it was essentially therapeutic in nature and was not entitled to Dover Amendment protection.
McLean appealed to the Land Court, arguing that the board of appeals’ decision was “arbitrary, unreasonable, untenable and incorrect as a matter of law.” The court held a four-day trial in 2017, where McLean called mental health and educational professionals as witnesses. Last month the Land Court rendered judgment for the board of appeals and the abutters, affirming the board’s decision.
The Land Court judge noted that education must be the “primary or dominant purpose” for the 3East Boys Program to enjoy Dover Amendment protection. The court cited the 1985 Supreme Judicial Court decision in Whitinsville Retirement Society Inc. v. Northbridge, where the SJC ruled that a nursing home was not an educational facility. The judge considered the appellate court decisions confirming Dover Amendment protection for residential psychiatric programs with educational components, but was unwilling to allow such protection for the 3East Boys Program for two reasons.
First, the judge distinguished McLean’s case from the earlier cases, noting that those cases involved residential programs that educated patients on “core life skills,” such as cooking, job-hunting and shopping. The judge determined that the 3East Boys Program is mostly medical, not educational, in nature, because it teaches coping skills for emotional regulation and self-management of BPD, instead of life skills.
Second, the court found the purpose of the 3East Boys Program to be primarily therapeutic and curative, not educational. Accordingly, the judge upheld the board of appeals’ decision against McLean.
McLean is appealing this judgment. Given the need for mental health treatment services and earlier appellate court decisions supporting residential programs with educational components, McLean may ultimately prevail. For the sake of those served by the 3East Boys Program, one can hope that McLean, the town of Lincoln and the abutters can find a way to coexist.
Christopher R. Vaccaro is a partner at Dalton & Finegold in Andover. His email address is cvaccaro@dfllp.com.
