Dover Amendment Argument Meets Roadblock
A recent Land Court case, Regis College v. Town of Weston (Jan. 4, 2010) suggests that the reach of the Dover Amendment, M.G.L. chapter 40A, §3, is not limitless. As many readers of this piece know, the Dover Amendment protects educational programs operated by non-profit corporations from zoning exclusion. Protected uses may be subject to certain reasonable dimensional and parking requirements. Traditional college and university programs have long been protected by the Dover Amendment. The fight with those programs are generally over the reasonableness of parking or dimensional regulations that would exclude or limit the educational program. Since the mid-1970s, the Dover Amendment has protected the rights of people with a wide range of disabilities to live in staffed community group homes.
One of the first cases to hit the limit of what had been a consistently expansive judicial view of the Dover Amendment was the Whitinsville Retirement Society's case against the Town of Northbridge. Whitinsville planned a large retirement and assisted living facility on a 9+ acre parcel. When the Building Inspector denied a building permit under the local zoning bylaw, Whitinsville proceeded to court, arguing that the complex was educational and protected by the Dover Amendment because people from outside the complex would aid the residents by teaching them crafts and other skills. The Supreme Judicial Court ruled that the Dover Amendment did not apply because the educational elements of the program were too peripheral to the main purpose of housing. Whitinsville Retirement Society, Inc. v. Town of Northbridge, 394 Mass. 757 (1985). Whitinsville's plan was defeated.
Eight years later, Lasell College in Newton, had better luck. Lasell, in order to sustain itself economically, proposed a sprawling retirement housing complex that would include assisted living and nursing home services so that residents could remain in the community as they aged. In order to gain the protection of the Dover Amendment, residents in the complex, known as Lasell Village, would be required to take a minimum number of courses offered at Lasell College. Lasell overcame the opposition of its opponents, winning its case in the Land Court. Judge Cauchon ruled that the educational requirements were sufficiently integrated into the primary purpose of Lasell Village, to qualify for Dover Amendment protection. Lasell College v. City of Newton (April 12, 1993). The Appeals Court affirmed the decision, but with an unpublished order of little precedential value.
Regis College failed in its attempt to emulate the Lasell College project. Regis, also struggling financially, proposed a 362 unit retirement complex. The average age of residents was expected to be 75 years old. No nursing home or medical services were contemplated. The complex would include administrative offices, a physical fitness center, classrooms and other facilities. Borrowing from the Lasell Village model, Regis would require residents to take at lest four academic courses per year, at the college, online, or by private tutoring. A Regis College Dean would have to approve the academic program for each resident.
Despite Regis College's attempt to highlight the educational nature of its complex, the Land Court (Sands, J.) ruled that the Dover Amendment did not apply. Judge Sands concluded that the primary purpose of the proposed complex was to create a revenue stream for Regis College, and that the educational component was amorphous and peripheral. Judge Sands may have been influenced by the high cost of the program. The entry fee was $700,000 to $1 million, and rents would begin at $4,000 per month. Unless Regis College appeals its case, the application of the Dover Amendment to retirement complexes with educational components is doubt. While the Land Court declined to extend Dover Amendment protection to the Regis College proposal, the law's protection for most client-programs operated by human service non-profit corporations, remains solid.
To read the case, click on this link: Regis College v. Town of Weston
One of the first cases to hit the limit of what had been a consistently expansive judicial view of the Dover Amendment was the Whitinsville Retirement Society's case against the Town of Northbridge. Whitinsville planned a large retirement and assisted living facility on a 9+ acre parcel. When the Building Inspector denied a building permit under the local zoning bylaw, Whitinsville proceeded to court, arguing that the complex was educational and protected by the Dover Amendment because people from outside the complex would aid the residents by teaching them crafts and other skills. The Supreme Judicial Court ruled that the Dover Amendment did not apply because the educational elements of the program were too peripheral to the main purpose of housing. Whitinsville Retirement Society, Inc. v. Town of Northbridge, 394 Mass. 757 (1985). Whitinsville's plan was defeated.
Eight years later, Lasell College in Newton, had better luck. Lasell, in order to sustain itself economically, proposed a sprawling retirement housing complex that would include assisted living and nursing home services so that residents could remain in the community as they aged. In order to gain the protection of the Dover Amendment, residents in the complex, known as Lasell Village, would be required to take a minimum number of courses offered at Lasell College. Lasell overcame the opposition of its opponents, winning its case in the Land Court. Judge Cauchon ruled that the educational requirements were sufficiently integrated into the primary purpose of Lasell Village, to qualify for Dover Amendment protection. Lasell College v. City of Newton (April 12, 1993). The Appeals Court affirmed the decision, but with an unpublished order of little precedential value.
Regis College failed in its attempt to emulate the Lasell College project. Regis, also struggling financially, proposed a 362 unit retirement complex. The average age of residents was expected to be 75 years old. No nursing home or medical services were contemplated. The complex would include administrative offices, a physical fitness center, classrooms and other facilities. Borrowing from the Lasell Village model, Regis would require residents to take at lest four academic courses per year, at the college, online, or by private tutoring. A Regis College Dean would have to approve the academic program for each resident.
Despite Regis College's attempt to highlight the educational nature of its complex, the Land Court (Sands, J.) ruled that the Dover Amendment did not apply. Judge Sands concluded that the primary purpose of the proposed complex was to create a revenue stream for Regis College, and that the educational component was amorphous and peripheral. Judge Sands may have been influenced by the high cost of the program. The entry fee was $700,000 to $1 million, and rents would begin at $4,000 per month. Unless Regis College appeals its case, the application of the Dover Amendment to retirement complexes with educational components is doubt. While the Land Court declined to extend Dover Amendment protection to the Regis College proposal, the law's protection for most client-programs operated by human service non-profit corporations, remains solid.
To read the case, click on this link: Regis College v. Town of Weston