From 1966 to 1972, Cardinal Cushing College (Cushing) used the buildings involved in this controversy as dormitories. 2 Newbury Junior College (Newbury), a new owner of a portion of the former Cushing campus, applied on October 28, 1982, to the selectmen of Brookline for a lodging house license under G. L. c. 140, § 23, as appearing in St. 1981, c. 351, § 73, so that it might use the buildings as dormitories to accommodate 167 students, two fewer than the town had allowed to Cushing. The selectmen, claiming untrammeled discretion to grant or deny such an application, denied it.
Upon a complaint in the nature of certiorari and, alternatively, for declaratory relief, the judge of the Land Court, sitting by statutory designation in the Superior Court, determined that the denial of the licenses applied for was arbitrary and capricious and ordered issuance of the licenses. He did so on two grounds, both of which the selectmen attack on appeal: first, that a town is to grant lodging house licenses on the basis of the physical suitability of the buildings concerned and the moral character of the licensee, not on the basis of whether dormitory occupancy strikes the town as wise land use; second, that a town may not, through exercise of the licensing power, achieve by the back door a land use limitation which G. L. c. 40A, § 3, as appearing in St. 1975, c. 808, § 3, expressly forbids as a zoning option. That statutory provision, known as the Dover Amendment, provides that no zoning by-law may “prohibit, regulate or restrict the use of land or structures for . . . educational purposes on land owned ... by a nonprofit educational corporation.” 3
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The very locus involved in this case has previously been the target of two attempts to turn the flank of the Dover Amendment. Both were repulsed. In
Sisters of the Holy Cross
v.
Brookline,
Subsequently the town again revised its by-law in a fashion which, in effect, allowed it to restrict schools in the use of their real estate, largely through the mechanism of a master development plan approval procedure. See Brookline Zoning By-Law § 4.30, use item 10(b) (February 3, 1982). That procedure, upon review by the Land Court, was also held subversive of the Dover Amendment. See
Newbury Junior College
v.
Brookline,
Since 1965, dormitories of educational institutions have been subject to the laws regulating lodging houses. See St. 1965, c. 171, about which we shall have more to say in this opinion. Accordingly, Newbury’s next step was to apply for a lodging house license. Its first application was for a license to accommodate 200 students, a number consistent with the number of students that had resided at Cushing, but greater than the number - 169 - that had occupied the dormitory buildings concerned, 129 and 135 Fisher Avenue. Neighborhood opposition was intense, and the selectmen denied the application without explanation, other than to say that the board’s vote “reflected a judgment that the lodging house license for 200 lodgers at 117, 129 and 135 Fisher Avenue would adversely impact the neighborhood.” The chairman of the board held out the hope that resumption of dialogue between Newbury and the neighborhood might “work out something that would be mutually satisfactory.” The trial judge found that a main reason for denial was the increase in students from 169 to 200.
Thus rejected and advised, Newbury filed new applications, one for 127 students in 129 Fisher Avenue, and another for 40 students in 135 Fisher Avenue, a total of 167. There was a new hearing at which there was again vociferous neighborhood opposition. Again, the selectmen denied the applications. One selectman offered as a reason that use of Newbury’s dormitory buildings as dormitories would exacerbate parking problems in the Fisher Hill area. 6 The chairman expressed his opinion that a lodging facility for students would have a negative impact on the area. Fundamentally, it was the view of the board, as stated by its chairman, “that the [bjoard has total discretion in this matter and can make their judgment based *201 upon the merits and the beliefs of what the [b]card has heard, and our judgment.”
At that juncture, Newbury had obtained occupancy permits from the building commissioner of Brookline, which attested to Newbury’s right, under building and zoning law, to use the two buildings as dormitories for 170 students. Presumptively, at least, the dormitory use sought complied with the parking requirements in art. 6 of the zoning by-law, requirements which, if reasonable, the town could enforce. See notes 3 & 4, supra. The building commissioner further notified the selectmen in writing that the buildings complied with the State Sanitary Code and Brookline’s Lodging House Rules and Regulations. Reports from fire, police, and health officials were equally positive. The trial judge took a view of the property and found that it “would be difficult to find better appointed and cleaner dormitories in Boston or elsewhere. The court finds that the same are fit for habitation by at least 167 students.”
1.
Procedural matters.
The appellants essay a procedural attack on the trial judge’s decision on the ground that he purported to act under G. L. c. 231A and G. L. c. 185, § 1(k). The appropriate review of licensing proceedings is in the nature of certiorari.
Johnson Prod., Inc.
v.
City Council of Medford,
The appellants make a further argument that the judge erroneously relied upon evidence outside of the town’s return of the record of the municipal proceedings. They do not identify what that evidence was, but, in any event, the assertion is an academic one because the record furnishes all the factual premises necessary for decision. Parenthetically, we do not regard the judge’s viewing the premises as going beyond the return. The selectmen, in their minutes, stated that they had viewed the dormitory buildings, and it was appropriate for the judge to see what the selectmen had seen.
2.
Criteria for granting lodging house licenses.
The breadth of discretion which local authorities enjoy in granting or denying licenses varies. In the case of common victualler licenses and licenses to dispense liquor, for example, town and city boards may exercise judgment about public convenience and public good that is very broad indeed.
Liggett Drug Co.
v.
License Commrs. of N. Adams,
Nothing in the text of G. L. c. 140, § 23, offers guidance as to where on the spectrum of discretion the licensure of lodging houses is located. In the circumstances it is appropriate to look to legislative history for instruction.
Liggett Drug Co.
v.
License Commrs. of N. Adams,
As originally enacted, the definition of lodging house which appears in G. L. c. 140, § 22, excluded “dormitories of charitable, educational or philanthropic institutions.” Statute 1918, c. 259, § 1. In 1965, two petitions were filed in the Legislature to place off-campus dormitories within the coverage of lodging house licensing. A third petition filed at the behest of the health commissioner of Boston, which ultimately won legislative favor, covered all dormitories and fraternity houses of educational institutions. The mid-1960’s was a period of student radicalism, and it is not unreasonable to infer, given the historic purpose of the lodging house laws, that the legislative concern dwelt on what was going on inside college dormitories and who was supervising them. There is, thus, some support for the ruling of the trial judge that the purpose of the lodging house laws is to assure that the facilities defined in G. L. c. 140, § 22, will be orderly, law abiding operations, responsibly managed by appropriate persons, and that the facilities are safe, sanitary, and suitable for human habitation. Further confirmation for this view of the scope of the statute appears in G. L. c. 140, § 30, which authorizes revocation of a lodging house license if the licensing authorities “are satisfied that the licensee is unfit to hold the license” and authorizes suspension “for any cause deemed satisfactory to them.” Compare the “revocation at pleasure” provision considered in
Saxon Coffee Shop, Inc.
v.
Boston Licensing Bd.,
*205
We do not think persuasive the argument made by the town that if lodging house licensure is limited to considerations of the physical adequacy of facilities and whether they are responsibly run, the power duplicates that which authorities may exercise under building laws and those enabling them to abate a nuisance. Cf.
Gillam
v.
Board of Health of Saugus,
If the criteria for licensing lodging houses are not more limited and specific than a general view of community interest (the standard the selectmen appear to have applied), the licensure statutes run on a collision course with the Dover Amendment. Cases under the Dover Amendment have established that municipalities may not, by regulatory pretext under G. L. c. 40A,
11
nullify the special protection accorded to religious or educational purposes.
Sisters of the Holy Cross v. Brookline,
All the cases in the preceding paragraph deal with application of the zoning power. The town and the interveners are quick to urge that licensing is parallel regulatory machinery, which, like municipal regulation of wetlands under G. L. c. 131, § 40, may operate independently of zoning.
See Lovequist
v.
Conservation Commn. of Dennis,
To some extent those cases involve parallel but distinct public issues: drainage and water supply questions in the case of wetlands, police questions in the case of public amusements, and safety questions in the case of inflammables. In none of the cases does the licensing process work, as here, at cross purposes with an activity protected by the Legislature. We are of opinion that a municipality may not, through the exercise of its power under G. L. c. 140, § 23, undo the Dover Amendment by forbidding the use of land for educational purposes on
*207
general grounds of adverse impact on the neighborhood or similar land use consideration. A dormitory license may be denied because the facilities are physically inadequate, because the applicant institution has a bad record in running dormitories, or because supervisors are unqualified, or of bad character. A dormitory license may not be denied merely because the licensing body thinks that the educational use would not be good for the neighborhood. A municipality “cannot achieve indirectly that which it is forbidden to achieve directly.”
Rogers
v.
Provincetown,
With limitations on the selectmen’s power to deny a license thus established, we harbor no doubt that the selectmen acted unlawfully in this case. There is a substantial history of use of the buildings in question as dormitories, and while so used they have given no occasion for distress to the community that appears on the record. The proposed number of inhabitants is the same as that lawfully occupying the buildings in the past. Newbury is an accredited degree granting institution. No unfavorable evidence about its capacity to operate the dormitories or about the character of its officers appears in the record. What does appear on those subjects is favorable. The judge found the persons who operate Newbury to be “of excellent character and ability, well qualified to operate a college.” The dormitory building complied with building law and Brook- *208 line’s own lodging house regulations. It requires no reading between the lines of the record of the proceedings before the selectmen to discern that the selectmen were obliged to confront pervasive neighborhood hostility to the operation of a college campus by Newbury on the locus. In that respect the neighborhood acted consistently with a twenty-year posture of opposition to use of the locus for educational purposes.
3.
Remedy.
Customarily in cases where the judge has properly concluded on the record created at trial that the licensing body acted on unlawful grounds, and, hence, arbitrarily and capriciously, the remedy is to remand the matter to the local board for further proceedings.
McDonald’s Corp.
v.
Selectmen of Randolph, 9
Mass. App. Ct. at 832. When, as here, there is a record of consistent obstruction of lawful use (it will be recalled that Newbury has already been obliged to make one trip to an appellate level, has twice been before the selectmen, and that the history of the conflict between the neighborhood and institutions goes back over two decades), it is appropriate to invoke that portion of the last sentence of G. L. c. 249, § 4, as appearing in St. 1973, c. 1114, § 289, which empowers the court, upon review in the nature of certiorari, to make “such other judgment as justice may require.” In closely analogous circumstances, the court has ordered the relief denied below. See
Lapenas
v.
Zoning Bd. of Appeals of Brockton,
Judgment affirmed.
Notes
129 and 135 Fisher Avenue. Cushing had begun using buildings at 117 and 135 Fisher Avenue in 1955. The accommodation at 129 Fisher Avenue was built following a failed attempt by the town to prevent dormitory use through zoning restrictions. That episode is memorialized in
Sisters of the Holy Cross
v.
Brookline,
The sobriquet Dover Amendment has its origins in a zoning by-law provision adopted by Dover in 1946, which purported to exclude sectarian educational use in the residence districts of that town. That by-law was nullified by St. 1950, c. 325, § 1, an amendment to The Zoning Enabling Act which proscribed such an exclusion. See
Attorney Gen.
v.
Dover,
*199
See, however, the later case of
Radcliffe College
v.
Cambridge,
The Land Court case bears case no. 105589 and the case title, Sisters of the Holy Cross v. Brookline.
On the basis of the record, this was a puzzling conclusion. Newbury had adopted regulations which forbade resident students to have cars on the premises. If the property were confined to nonresident use, it seems inevitable that there would be more coming and going by car and more use of parking space.
We need not decide whether the licensing procedure involved in this case should be reviewed under the somewhat broader “substantial evidence” test, rather than the “arbitrary and capricious” test. Which test is to be applied when a court reviews under certiorari principles shall be adjusted to the substance of the complaint.
Boston Edison Co.
v.
Boston Redevelopment Authy.,
Section 22A, relating to cooking facilities in lodging houses, was inserted by St. 1970, c. 859, § 1.
World War I.
Legislative repairs followed at once. By St. 1960, c. 740, convalescent and nursing homes were expressly excluded from the definition of lodging house in G. L. c. 140, § 22.
For example, unreasonable dimensional requirements, bulk restrictions or parking requirements.