Amend Dover Advocate100
Lawyers now weighing in on H.1765
Dover Amendment Clarification, or More Confusion?
A second bill to amend the Zoning Act, House Bill No. 1765 (pdf), would implement a change sought not by developers but by municipalities and their residents. This bill concerns Chapter 40A, Section 3, often referred to as the Dover Amendment. This section of the Zoning Act limits the ability of municipalities to regulate certain uses of property through zoning. Relevant here, Section 3 broadly protects the use of land for “educational purposes.”
H. 1765 would write into Chapter 40A, Section 3 the Appeals Court’s holding in The Southern New England Conference Association of Seventh-Day Adventists v. Town of Burlington (pdf), that the “Legislature did not intend that § 3 of c. 40A exempt a religious use from lawful wetlands control under a local zoning by-law.” That holding has been assumed to cover not only religious but also educational uses, which are listed in the same paragraph of Section 3.
Under H. 1765, Section 3 would explicitly state that “nonprofit educational corporations” are subject to local “wetlands or natural resource area protections.” One problem with this language is that, while “wetlands” is a well-defined term, the broader term “natural resource area” is not. This term should be better defined before the bill is finalized to avoid introducing any more confusion into Chapter 40A