By Attorney Robert Pellegrini
If you wanted to build a neighborhood church or school in mid-20th century Massachusetts, town officials would likely reject your application and refer to the local zoning bylaws. Back then, projects involving charitable, non-profit and/or other uses that enhanced societal causes (by providing necessary education and services) took a back seat to traditional options such as residential housing developments.
“This little known exemption can make or break your non-profit’s strategic vision,” said Robert R. Pellegrini, Jr. Esq.
The legislature recognized the benefits that local educational champions would eventually bestow on communities – and that traditional land use regulations had left them out of the community building equation.
In 1950, the Dover Amendment was born.
Since then, the broad use of the word “educational” has come to mean different things in a modern era of virtual classrooms, coaching and distance learning – and these non-traditional forms have gradually stirred more controversy in town square.
The Dover Amendment has been considered a “loophole” that has occasionally triggered local Mass municipality leaders to make attempts in tightening restrictions on qualified exemption holders – that they were not lawful to make. However, the case law shows that the Dover Amendment has become a necessary component if you’re facing a NIMBY (Not In My Back Yard) way of thinking.
“It is never too late to invoke the protections of the statute.”
Some examples of project enhancements that have been challenged by planning and zoning boards and neighbors where the applicant has a good chance of winning:
- Nonconforming accessory structures (shelter, dorms)
- Parking lots and garages
- Yard size, lot areas and other dimensional requirements
- Lighting
A Non-profit Successfully Cites The Dover Amendment In a Neighborhood Dispute
In the recent case of McLean Hosp. Corp. v Town of Lincoln, a non-profit proposed its educational facility in a residential neighborhood. The building inspector had agreed the use would be protected by the Dover Amendment but the neighbors challenged it and brought it before the Zoning Board of Appeals, which ultimately agreed with the neighbors.
These cases arise regularly because a non-profit’s location options tend to be limited when proposed in a residential or other zoning district where they would not typically be allowed.
The case ended up in the Supreme Judicial Court, where the justices naturally recognized the “broad and comprehensive” interpretation of the definition of “educational use” in the interpretation of the statute and therefore upheld the building inspector’s original determination that the non-profit could keep its exemption status.
These cases arise regularly because a non-profit’s location options tend to be limited when proposed in a residential or other zoning district where they would not typically be allowed.
NIMBYs Do Have Rights
Not all is lost for the NIMBY neighbor: the courts have recognized the right of a municipality to reasonably restrict such design elements as parking, bulk and height restrictions, yard sizes, lot area, open space requirements and setbacks, with the important caveat that these restrictions can never limit the ability of the applicant to conduct its protected purpose or impact the character of the institution’s campus without appreciably advancing the municipality’s legitimate concerns.
There are also cases that suggest that these restrictions would not be allowed when the applicant is proposing to repurpose an existing structure. Fortunately, however, the courts have created a significant hurdle for abutters to overcome in order to challenge a Dover approval.
In order to have legal standing to bring a lawsuit, the neighbor should identify (allege an “aggrievement” in) one or more of the areas that the statute specifically protects and where the court determines the specific area may be reasonably regulated.
The court has therefore essentially limited a municipality’s ability to regulate an educational institution using its by-law’s dimensional requirements.
Organizations do not need to own or lease the entire lot.
What You Need to Know About the Dover Amendment
There are two limits on the Dover Amendment:
- It protects only those uses of land and structures that have (as their bona fide goal) something that can reasonably be described as “educationally significant.”
- The educationally significant goal must be the “primary or dominant” purpose for which the land or structures will be used.
The Statute
The statute states that, “No zoning ordinance or by-law shall regulate or restrict the interior area of a single family residential building nor shall any such ordinance or by-law prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politic or by a religious sect or denomination, or by a nonprofit educational corporation; provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements.”
In most cases, all developments start with a trip from the landowner or potential buyer to town hall. Unaccompanied by their attorney, it is often the case that the application of the Dover Amendment never enters the conversation. So, it is not unusual for the applicant to lose interest and move on.
This situation can be remedied by calling a law firm like PK Boston early enough in the process where value can be added before the client is ready to ask questions at town hall. It is never too late to invoke the protections of the statute.
The above information is designed to provide a helpful overview of a relevant topic. It does not constitute legal advice nor should it be construed as such. Please do not take action based on the above information without seeking formal legal advice. If you would like additional information, please contact Attorney Robert Pellegrini, Jr. at (508) 807-1131 or email us at info@pkboston.com