Dover Amendment can present challenges for cities, towns

The number of activities exempt from zoning regulation in Massachusetts cities and towns may surprise many. These can include uses such as farming, education, child care and religious worship. One statute to pay particular attention to is the Dover Amendment, the common name for Massachusetts General Laws Chapter 40A, Section 3.

The Dover Amendment was drafted to help protect religious and nonprofit educational agencies from being discriminated against. The Dover Amendment’s religion-focused component was enacted in response to local zoning bylaws passed to prohibit religious schools within a town’s residential neighborhoods. The protections for other types of uses were added to the statute in later years. It was amended several times, and then enacted into Massachusetts General Laws in 1950 as part of the Massachusetts Zoning Act.

The Dover Amendment was based on the Massachusetts Legislature’s determination that uses such as education, child care, religion and farming, in particular, be given more favorable treatment under local zoning ordinances and bylaws than other proposed uses, such as residential, commercial or industrial projects.

In particular the statute states, “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.”

Vague language
A troubling challenge posed by the Dover Amendment is that this statute in no way identifies what is meant by “educational.” Because there is no clear definition of “educational purpose,” it is left open to very broad interpretation.

Applicants in any Massachusetts community must demonstrate that the proposed use of the property for ‘religious’ or ‘educational’ purposes is the dominant and primary use. In some instances, these uses can be fairly obvious such as classrooms or houses of worship. When it comes to a parking garage or half-way house, however, the purpose of the proposed use may not be so easily perceived.

It may seem that “educational” is a clear and straightforward concept, but today, nearly 70 years after the Dover Amendment was enacted, this is no longer the case. Proponents of the Dover Amendment have interpreted it to mean that any nonprofit organization that provides any type of education to individuals is protected under this law.

Zoning exemptions
“An important factor to keep in mind regarding the Dover Amendment is that activities associated with ‘religious’ and ‘educational’ purposes, while supported in theory, are not always embraced in communities,” said Stan Corcoran, Executive Vice President of MIIA.

Dover Amendment exemptions can quickly become “hot-button” issues that trigger intense debate that is not always grounded by understanding or respect for legal requirements.

For example, the Dover Amendment may allow developers to build facilities that are substantially larger than zoning laws would ordinarily allow, thereby potentially changing the character of some neighborhoods and towns.

In addition, the exemption for educational purposes encompasses not only traditional schools, as adult learning facilities and mental health transitional housing may also qualify.

Even traditional educational institutions can cause discord as schools expand or renovate outdated facilities and concerns over traffic or the visual appeal of tall new buildings arise. When these issues have been litigated, the courts have typically sided with the need for up-to-date and larger educational facilities over density and other local issues.

It is worth noting that while opposition to many religious or educational use proposals will likely fail, cities and towns may still apply non-zoning requirements that are related to legitimate municipal concerns, such as public health, safety or the environment. Also, the exemption from zoning is not absolute. Local officials may still enforce zoning ordinances or bylaws that concern the seven subjects listed in the statute (e.g., building height, yard size, lot area, etc.), provided any such regulations are reasonable. The burden remains with the applicant to prove that such regulation of its proposed religious or educational use is unreasonable.

Important measures for maintaining compliance
The following are some best practices for communities to follow to avoid litigation related to Dover Amendment-protected projects:

1. Ensure relevant board and municipal leaders, including building inspectors, are aware of the Dover Amendment and what it requires.
2. Enlist town counsel input once a filing from a nonprofit or educational institution that may fall under the Dover Amendment is received.
3. Encourage active dialogue between the town, community members and the applicant.
4. Recognize that litigation under the Dover Amendment is extremely expensive and can lead to real and substantial civil exposure to both towns and individuals involved.
5. Contact your risk management advisor for additional guidance and best practices.

Additional resource
For more information on the Dover Amendment, the full statute can be found on the Legislature’s website: malegislature.gov/Laws/GeneralLaws/PartI/TitleVII/Chapter40A/Section3

Written by Stephen Batchelder, Director of Claims Operations, Massachusetts Interlocal Insurance Association.