Posted by: Patricia Salkin | August 7, 2012

MA Supreme Court Holds that Whether or not an Establishment is Exempt from Local Zoning Laws Where it is Alleged that Dominant Use of Proposed Project is for Senior Housing and Not Education Depends on Factual Questions

Plaintiff is a not for profit educational corporation that is seeking to build a residential facility for senior citizens that would include apartments, classrooms and other buildings. The seniors would be required to put down a deposit and would pay a 4,000 monthly fee and would be assigned academic advisors and required to enroll in a minimum of 2 courses per semester in conjunction with the plaintiff’s more traditional college campus.

The Plaintiff sought relief from certain of the town’s municipal zoning regulations that would otherwise preclude construction of the facility. The zoning board denied that the project was protected by the Dover Amendment and the Land Court upheld their determination, granting the Zoning Board summary judgment, holding that the educational purpose of the facility seemed subordinate to the desire to provide housing to the elderly or create a stream of revenue.

The plaintiff appealed. The Supreme Court first analyzed the scope of the Dover Amendment and the meaning of “education” as used in the statute. While usually the courts have viewed the term “education” as broad and comprehensive, it is subject to two limits. First, the Amendment protects only those uses of land and those structures that have as their bona fide goal something that can reasonably be described as educationally significant. Second, the educationally significant goal must be the primary or dominant purpose for which the land or structures will be used.

Next, the court acknowledged that a proposed use of land or structures may have a valid educational purpose notwithstanding that it serves nontraditional communities of learners in a manner tailored to their individual needs and capabilities. To verify this, the court looked at the legislative intent of the Amendment, finding that the legislature chose not to adopt language that would have limited the Amendment’s application to “schools or analogous places or facilities”. This provided an indication that the legislature did not want the Amendment’s protections to be so limited. This being said, there was no reason why the promotion of the cognitive and physical well-being of elderly people through academic interaction couldn’t be an educational purpose under the Dover Amendment.

This was not dispositive, however, as the Zoning Board and the trial judge felt that the project may not in fact operate as the plaintiff claims it will. Therefore, the plaintiff has to show not only that the facility will serve educational purposes, but that such purposes must predominate over the residential and recreational components of the facility. The plaintiff contended that, because the words “primary” and “dominant didn’t appear in the statute, that it a facility with only incidental educational purposes would be covered by the Amendment. However, the Court found that the legislature, in drafting the Amendment, used every day words that must be interpreted in view of common sense. Therefore, a facility would only be classified as educational if it served primarily educational purposes. Without this requirement, parties might be inclined to invoke Dover Amendment protection by grating an educational component onto a project in order to obtain favorable treatment.

In determining whether summary judgment was appropriate, the court acknowledged that in order to prevail, the Zoning Board had to show that the plaintiff had no reasonable expectation of making a showing that the residential and recreational aspects do not constitute a primary purpose and that the primary purpose is instead to support a dominant educational purpose. The court found that, viewed in the light most favorable to the plaintiff, the evidence outlined multiple aspects of the facility that could reasonably be considered educational. Also notable, was that a central point of contention between the parties was whether the facility will be operated in line with its declared purposes. Because it had yet to open, there was no way the court could have made a factual determination in this regard. The Supreme Court vacated the ruling of the Land Use Court and remanded the case.

Regis Coll. v. Town of Weston, 462 Mass. 280, 968 N.E.2d 347 (2012)

The opinion can be accessed at:

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