Dover Amendment can present challenges for cities, towns

Education, child care, religious worship and farming are among the land uses exempted from local zoning regulations under what’s known as the Dover Amendment. How far those exemptions extend, however, is a matter of debate.

Massachusetts enacted the Dover Amendment (M.G.L. Ch. 40A, Sec. 3) in 1950 in response to local zoning bylaws that prohibited religious schools within a town’s residential neighborhoods. The law was intended to protect religious and nonprofit educational agencies from discrimination. Protections for other types of uses, such as agriculture, were added to the statute in later years.

The Legislature sought to give particular land uses more favorable treatment under local zoning ordinances and bylaws than other uses, such as residential, commercial or industrial projects.

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.” [Full statute available at tinyurl.com/DoverAmendment.]

Michael Cusack, vice president of MIIA Claim Operations, said the Dover Amendment presents “a troubling challenge,” however, “because there is no clear definition of ‘educational purpose,’ leaving it open to very broad interpretation.”

Applicants in any Massachusetts community must demonstrate that the “religious” or “educational” purpose is the dominant and primary use of the property. In some instances, these uses can be fairly obvious, such as with classrooms or houses of worship. When it comes to a parking garage or a halfway house, however, the purpose of the proposed use may not be so clear.

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 MIIA Executive Vice President Stan Corcoran.

Dover Amendment exemptions can quickly trigger intense debate that is not always grounded in an understanding of 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, but possibly adult learning facilities and mental health transitional housing.

Even traditional educational institutions can cause discord as schools expand or renovate outdated facilities, raising concerns about traffic or the visual appeal of new, larger buildings. 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.

While opposition to many religious or educational use proposals are unlikely to prevail, it is worth noting that cities and towns may still apply non-zoning requirements that are related to legitimate municipal concerns, such as public health, safety or the environment.

In addition, the specific exemptions from zoning are 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 that 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.

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

1. Ensure that relevant board and municipal leaders, including building inspectors, are aware of the Dover Amendment and what it requires.
2. Enlist municipal counsel input once a filing is received from a nonprofit or educational institution that may fall under the Dover Amendment.
3. Encourage active dialogue between the city or 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 for municipalities and the individuals involved.
5. Contact your risk management advisor for additional guidance and best practices.

Click here for MIIA’s legal alert on the Dover Amendment.

Written by MIIA Director of Claims Operations Stephen Batchelder.