The Dover Amendment to the Massachusetts Zoning Act is named after a Boston suburb known for impressive estates, bridle paths and a shortage of affordable housing and public transit. The amendment seeks to balance the rights of nonprofit educational and religious institutions with the zoning powers of municipalities.
The Dover Amendment was originally enacted in 1950, in reaction to the town of Dover’s adoption of a zoning bylaw forbidding sectarian schools in residential districts. The 1950 version prohibited zoning bylaws that restrict the use of land for religious purposes, including religious education, thus invalidating the Dover bylaw. The current version of the Dover Amendment, enacted in 1975, prohibits zoning restrictions on nonprofit educational uses, whether religious or secular, while allowing municipalities to impose reasonable parking requirements and dimensional limitations on educational buildings. As an aside, the Dover Amendment does not apply in Boston, where zoning is governed by a special act of the legislature instead of the Zoning Act.
The Supreme Judicial Court provided valuable guidance on municipalities’ rights to impose dimensional and parking requirements on colleges in Trustees of Tufts College v. City of Medford, decided in 1993. When Tufts sought to expand its main library and build a multi-level parking garage, the city of Medford objected because the garage would be too near a busy street, and the library expansion lacked parking and loading spaces. The Land Court ruled that Medford’s setback, parking, and loading requirements were unreasonable, and therefore unenforceable against Tufts. On appeal, the SJC saw things differently. The SJC noted that while the Dover Amendment should foster accommodation between municipalities and educational institutions, educational institutions have the burden of proving that local dimensional and parking requirements are unreasonable. The SJC ruled that Tufts failed to carry this burden, and entered judgment in Medford’s favor.
Regis College recently tested the limits of the Dover Amendment in Regis College v. Town of Weston. The college planned to build Regis East, a 362-unit elder housing project. Residents would pay a refundable entrance fee of $700,000 to $1 million, and then a $4,000 per month occupancy fee. Regis would assign academic advisors to residents, and require them to enroll in courses at Regis. Regis asked Weston’s zoning board of appeals to find that Regis East was allowed under the Dover Amendment, but the board denied Regis’s petition. The Land Court upheld the zoning board’s decision without a trial, observing that Regis East’s educational purposes seemed subordinate to the goals of developing elder housing and generating revenue. According to the Land Court, the Dover Amendment did not protect Regis East.
Regis appealed to the SJC in 2011, claiming that Regis East had sufficient educational purposes to qualify for Dover Amendment protection. The SJC recognized that the Dover Amendment covers nontraditional forms of education, such as programs assisting the mentally disabled, but stated that a project’s dominant purpose must be education in order for a proponent to successfully invoke the Dover Amendment. After reviewing the record, the SJC held that the Land Court lacked sufficient facts supporting its judgment in favor of Weston, vacated the judgment, and returned the case to the Land Court for further proceedings on the sufficiency of Regis East’s educational program. The SJC did not hand Regis an outright victory, but gave it a second chance to prove that education was Regis East’s dominant purpose.
Instead of further litigation in the Land Court, Regis negotiated a settlement with Weston. In July 2013, Regis announced that it was abandoning Regis East, in favor of working with Weston in pursuing a master plan on the college’s main campus. Thus the Dover Amendment served its purpose of encouraging accommodation between town and gown in Weston. n
Christopher R. Vaccaro is a partner at Looney & Grossman LLP in Boston. His email address is cvaccaro@lgllp.com.
