United States: Litigation Advisory: Breaking New Ground In Dover Amendment Law

Last Updated: April 30 2009
Article by Mintz Levin Litigation Group

Last month Mintz Levin won a victory in Massachusetts Superior Court that promises to have positive repercussions for all academic and religious institutions in Massachusetts who seek to benefit from the land use protections of state law commonly known as the Dover Amendment. The Dover Amendment is the 1950 Massachusetts statute that requires local permitting authorities to give more favorable treatment than what is conventionally required to the land use and zoning applications of, among others, nonprofit educational institutions and religious organizations.

Specifically, the Dover Amendment states that "[n]o zoning ordinance or by-law shall prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the [state], or by a religious sect or denomination, or by a nonprofit educational corporation" — except that reasonable restrictions in eight specified areas may be imposed so long as these restrictions do not unduly hinder the religious or educational use. Those eight areas of permissible zoning restriction are: bulk of structures, height of structures, yard sizes, lot area, setbacks, open space, parking and building footprints.1

The court decision, Murdoch v. Zoning Bd. of Appeals of Wenham et al.,2 significantly limits the bases for appeal by plaintiffs seeking to overturn a local zoning board's approval of a use authorized by the Dover Amendment. Under the 14-page opinion, a plaintiff challenging a local Dover Amendment approval, in order to have legal standing to sue, must credibly allege that he is aggrieved in one or more of the areas in which the statute specifies the protected educational or religious use may be reasonably regulated. If the only credible evidence a plaintiff can bring forward relates to impacts the Dover Amendment was not designed to protect, the court held, he is without legal standing and his appeal therefore must be dismissed.

In this Superior Court case, Mintz Levin's client, Gordon College, located in Wenham, Massachusetts, sought to erect eight light towers at its new state-of-the-art athletic field, in order to support night games for its inter-collegiate sports teams and its intramural program. To be effective, the light towers needed to be at heights ranging from 60 to 85 feet. But the Town of Wenham Zoning By-law limits the height of towers to 30 feet as of right, or, with a special permit, to a maximum of 55 feet. Gordon College asked the Wenham Zoning Board of Appeals (ZBA) to allow the light towers at the 60- to 85-foot heights, notwithstanding the town by-law, on the grounds that the Dover Amendment authorized the towers to be used at the heights needed to effectively undertake the College's athletic program (an educational use encompassed by the Dover Amendment, according to prior court decisions). After a multi-session public hearing involving expert testimony and other evidence, as well as robust public participation, the Wenham ZBA agreed, granting approval for the light towers at the requested heights, pursuant to the Dover Amendment.

Neighbors to the athletic field appealed the Wenham ZBA decision to Superior Court, alleging they were adversely affected by the towers. Among their claims was the contention that the lights on the towers were too bright. At a minimum, they argued, this allegation of excessive illumination gave them legal standing to survive a motion to dismiss and bring their case to trial.

On behalf of Gordon College, Mintz Levin argued that the Dover Amendment lists the eight specific and limited areas in which a local permitting authority may impose reasonable restrictions on a proposed educational use — and level of illumination is not among those permissible restrictions. Therefore, even if the plaintiffs were correct that the brightness of the lights adversely affected them (a contention the College also refuted factually with an expert lighting report), the Dover Amendment does not allow a plaintiff to move forward with an appeal on this ground or other grounds not specifically listed among the eight areas a local board is allowed to regulate under the Amendment.

The Superior Court agreed, holding that in order to bring a valid appeal of a local Dover Amendment decision a plaintiff must allege that he is aggrieved by "one of the enumerated cognizable interests that the Dover Amendment is designed to protect." The neighbors thus did not have standing to proceed with their appeal based on their excessive illumination claim and, for this and other reasons, the court granted the College's motion and dismissed the neighbors' appeal.

While this Superior Court opinion does not bind the decisions of other Massachusetts courts in future cases, it nonetheless bolsters the ability of academic institutions and religious organizations to utilize the Dover Amendment to fend off appeals of the often controversial and hard-won land use permits they have secured in order to advance their educational or religious missions.

* * *

Mintz Levin's Benjamin Tymann and Peter McCarthy represented Gordon College at the Wenham ZBA and in Superior Court.

Footnotes

1. See Mass. Gen. L. ch. 40A, § 3, para. 2.

2. Essex Superior Court Docket No. 2008-00793 (Memorandum and Decision on Defendant Gordon College's Motion to Dismiss Mar. 2, 2009).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions