The Massachusetts Supreme Judicial Court (SJC) recently issued a ruling in Regis College v. Town of Weston that may result in significant expansion of projects protected under the Dover Amendment.
In light of the SJC’s actual holding, however, this case may ultimately be much ado about nothing. At a minimum, further trips up and down the judicial ladder are required before it becomes clear whether this case represents an enlargement of the class of developments that colleges can attempt that would otherwise violate zoning restrictions.
The Dover Amendment exempts nonprofit educational institutions and religious organizations from zoning restrictions applicable to developments used for “educational” or “religious” purposes.
In this case, Regis College owns land in Weston that is zoned for single-family homes. Regis proposed a residential development, “Regis East,” that would provide senior housing with an educational component which Regis argued qualified the project for Dover Amendment protection.
Regis East was to be comprised of eight buildings, totaling 766,600 square feet, containing more than 350 apartment units and amenities typical of senior housing facilities – a very large project for a residential area.
The college estimated the average resident would be aged 75. Monthly rent would be approximately $4,000, plus a substantial entrance fee (in excess of $700,000), in large part returnable to residents, or their estates, should they leave.
Various aspects of programs available to residents would involve educational components. Residents would be assigned academic advisors and required to enroll in two courses per semester, as well as fitness classes. Educational requirements could be satisfied through courses at Regis College or its continuing education program, or through approved self-directed study. Residents could also enroll in additional classes and pursue degrees.
Regis College students could utilize Regis East’s nursing and social work opportunities, including clinical placements applicable to degree programs.
In 2005, Regis petitioned the Weston Zoning Board for relief under the Dover Amendment from zoning restrictions that would otherwise preclude the proposed development.
The Weston Zoning Board denied the petition, and Regis appealed.
SJC Details ‘Educational Purposes’
On appeal, the Land Court reviewed affidavits Regis submitted regarding operation of Regis East, and concluded that the proposal reflected a desire to “provide elderly housing and/or a source of revenue,” while its educational purpose remained subordinate. The court expressed skepticism that the project would actually operate as claimed, noting it was unclear how Regis would enforce its educational requirements and whether, realistically, it would evict residents who failed to comply. Regis appealed to the SJC, which ruled that the Land Court had inappropriately evaluated the adequacy of the proposed educational program as a component of the overall development without a full trial, and directed that the lower court hold further proceedings to assess whether the project’s purpose was “primarily educational.”
However, the SJC did offer an extensive analysis of what would be required to demonstrate that such a project satisfied the Dover Amendment’s “educational purposes” standard.
While only proposed uses serving “primarily educational purposes” are protected, what is considered “educational” includes a broad range of “non-traditional” educational purposes not limited to traditional academic institutions.
The SJC then concluded: “[W]e reaffirm that in order to claim the protection of the Dover Amendment’s ‘educational purposes’ clause, a landowner must demonstrate that its use of land will have as its primary purpose a goal that can reasonably be described as educationally significant.”
Broad Impact Unclear
Thus, while the SJC decision merely remands the case for further evidentiary hearings, it sets a high bar for establishing a project as “primarily educational.”
Questions remain about how this case will impact future similar proposals. Presumably, the Land Court will now hold a trial to determine whether Regis East’s primary purpose is “educationally significant,” and whether Regis will be able to operate the facility in accordance with its educational proposals.
No doubt, any determination made at the Land Court will be appealed, and the SJC will again have to determine whether the primary purpose is “educationally significant” and protected by the Dover Amendment.
For now, educational and religious institutions may be able to push the limits of what can be constructed despite zoning restrictions (similar to affordable housing under 40B). But the bar set is high. “The plaintiff must show not only that Regis East will serve educational purposes, but that such purposes predominate over Regis East’s residential and recreational components,” the SJC said.
It is possible that the same evidence will be presented at trial and the same decision reached, and the SJC may decline to overrule that determination. The next proposal to come along would then need to be tailored to more fit the standards of this case, and the limits would be tested again.
John Wadsworth is a partner at the Boston law firm of Brown Rudnick.
