The "Dover Amendment" is the common name for Massachusetts General Law (MGL) Chapter 40A, Section 3, which exempts agricultural, religious, and educational corporations from many zoning restrictions. It allows a facility that provides certain services, educational chief among them, to ignore local zoning laws and build the facility it needs to provide those services. The Dover Amendment has allowed many developers to build facilities that were substantially larger than zoning laws would ordinarily allow or which were inappropriate for the neighborhood. Here is the most eggregious section of the law:
No zoning ordinance or by-law shall 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.
Furthermore, the ability of local officials to challenge such a facility is very limited. The courts have generally bent over backwards to give more power to developers at the expense of cities and towns. For instance, the methadone clinic in Framingham did not have enough parking spaces, but the court allowed them to open in parking-challenged downtown Boston because they decided that handing out methadone was "educational." In addition to this, several other factors have led to the Dover Amendment being one of Massachusetts' broadest, vagues, and most overused laws:
You can read the Dover Amendment online.
Learn more about how to help change the Dover Amendment below.
This is somewhat vague as well, but Framingham gives the sole responsibility for making this determinaton to the Building Commissioner based on this provision in MGL Ch. 40A Sec. 7:
The inspector of buildings, building commissioner or local inspector, or if there are none, in a town, the board of selectmen, or person or board designated by local ordinance or by-law, shall be charged with the enforcement of the zoning ordinance or by-law
What's worse, there appear to be no real standards for granting this protection.
This is unclear. It's certainly not in the Dover Amendment itself, though the Boston Globe has referred to an exemption for the City of Boston on a couple of occasions. Cambridge does have an exemption passed in 1981 removing Harvard University's Dover protection. This was considered necessary since Harvard was Cambridge's largest land owner.
The two zoning terms that everyone discusses are 40A (including the Dover Amendment) and 40B (the affordable housing amendment).
40B (MGL Chapter 40B) is sometimes called the "anti-snob" law. The intent is to guarantee that there is affordable housing in every town in Massachusetts.
"Affordable Housing" is housing where the monthly payment (rent or purchase payments -- principal, interest, taxes, and insurance, or PITI) total no more than a certain amount based on the area's median income (AMI). This is based on a threshold income of 80% of AMI and a target payment of 30% of income on housing. For a family of four, the current AMI is about $80,000. 80% of that is $64,000. So a family of four earning $64,000, paying 30% of their income on housing, would have "affordable housing" cost $19,200 per year, or $1,600 per month in rent or PITI. Assuming an interest rate of 5.5% and tax and insurance of $360 per month, that would result in mortgage of $218,000. Paying full market value in Framingham, this might buy a two bedroom condo, but not much else. Hence the need for affordable housing.
The law sets as a goal that 10% of all housing in a community will be affordable. If a community falls below that level, the amendment kicks in and a developer may create a development that ignores local zoning by-laws in exchange for making 25% of the units affordable. This is currently happening in Natick, Southboro, Marlboro, Northboro, and Acton, much to the dismay of many residents in each municipality. 40B is another example of the legislature's poor work in writing laws: is 25% of the units in a complex are affordable, all the units count towards making a town's 10% goal, and what's worse, subsidized housing (HUD vouchers, e.g.), shelters, and other forms of social service residential services, do not count! If these inequities were removed from the equation, Framingham would have the equivalent of 40-50% affordable housing!
Framingham's affordable housing count is currently over 10%, so a developer cannot force the town to accept a 40B development. (They can, however, request a "friendly" 40B that would allow them to use the same process -- in that case, the local Zoning Board of Appeals would adjudicate whether the project is desirable in the community and whether to allow it or not. This what happened with the Jewish Community Housing for the Elderly: they want to build Shillman House, a 150 unit apartment complex on nine acres of land on Edmands Road in which 50% of the units will be affordable. It is currently under appeal.)
The Dover Amendment is very different in that there is no threshold above which the law does not apply -- institutions are free to go wherever they want, as often as they want, regardless of how many Dover properties are in the town. Consequently, they congregate where property values are (relatively) low, like Framingham, which is far cheaper than most surrounding towns like Sudbury. This keeps the property values low, so the nonprofits keep congregating. If the institution is a nonprofit and removes a property from the tax rolls, that means they pay less (but the town doesn't lose, because you will make up the difference in the form of higher property taxes). In the meantime, their use of town services remains the same -- or goes up, in the case of a homeless or substance abuse shelter. Many people fear that unchecked growth of nonprofits in a town could result in a downward spiral leading to receivership. There is no evidence that Framingham is in such dire straits, but we are under severe budget constraints and have had to close a school and lay off dispatchers from the police force.
This is why groups like STEPPS are pushing so hard for the legislature to reform the Dover Amendment.
That's the idea, but it doesn't work. Think about it — ch. 40A §3 is called the Dover Amendment, but how many non-profit "educational" facilities are there in Dover? In fact, because of the Dover Amendment and the policies of the Executive Office of Health and Human Services (EOHHS), facilities are less equitably sited than they were before the Dover Amendment.
40B is little better. Despite having mandated that all cities and towns have 10% affordable housing for many years, Framingham is one of only about 20% of all the cities and towns in Massachusetts to achieve this goal.
The plain fact is that neither 40A nor 40B have achieved their goals, and in many ways have made matters worse by herding affordable housing and social services into clusters (or "hubs") where many similar facilities already exist.
The only way to fix this is by reforming the Dover Amendment and EOHHS procedures.
Perhaps, but it has been used to justify many projects other than schools simply because they claim to be educational in some way. (The Dover Amendment isn't just about schools, but the "educational" clause is the most vague and abused.)
Apparently, anything with an educational component or even the potential for one. The law's failure to define "educational" has led to what most people would consider abuses. For instance, who but a zoning law specialist would consider a methadone clinic educational? It may have an educational component, but what doesn't? Dunkin Donuts trains employees to make doughnuts; does that mean they should be allowed to place a store anywhere they want, without oversight? One of the most controversial projects in Massachusetts today is the Cape Wind proposal to build a wind farm off Cape Cod. In theory, Cape Wind could use their proposed facility for educational field trips and force the project through under the Dover Amendment! (OK, that's a bit far fetched, but you get the idea.)
How about an apartment complex? Bethany Convent converted the nun's dormitory into an apartment complex for women with problems and justified it under the Dover Amendment because they teach "life skills."
A gun club? The Maynard Rod and Gun Club reorganized as an educational corporation in order to gain Dover Amendmant protection. At least they offer classes.
A methadone clinic? The methadone clinic case in Framingham was considered an "educational use" because they taught "life lessons" -- this despite the fact that they offer no counseling of the addicts.
Medford was forced to accept a residential treatment facility for adults with eating disorders because group homes for the mentally ill are considered educational facilities and therefore eligible for the Dover Amendment exemption.
Very little. There are some restrictions on use, for instance:
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.
However, Massachusetts courtshave consistently ruled in favor of nonprofits over municipalities.
And the law says nothing about the appropriateness of a project, only its bulk and height, etc. There is also no ability of a municipality to regulate traffic, lighting, public safety, or other factors.
Absolutely not! Any reading of the FHA and the ADA make it clear that they are designed to level the playing field and put the disabled on an equal footing with everyone else. They are designed to prevent discrimination. The Dover Amendment encourages discrimination by giving greater rights to some than to others — for instance, a non-profit "educational" corporation like a methadone clinic has greater rights than a private school or any other taxpaying business.
Despite the claims of many social service industry proponents, eliminating the Dover Amendment would do nothing to harm the disabled, because they are well protected by other laws. Today the main purpose of the Dover Amendment is to give recovering addicts more rights than law abiding citizens and to prevent cities and towns from planning for the future by taking away their ability to control their own planning and zoning. Read them yourself and see:
In fact, the existence of the Fair Housing Act and the Americans with Disabilities Acts makes the Dover Amendment obsolete!
Call or write to your state senator and representative and let them know how you feel about this issue. Urge them so support Dover Amendment reform, including — at a minimum — an definition of "educational."
The Mass Land Use Reform Act (MLURA), which is still worthwhile reform of some of Massachusetts' bizarre zoning laws, had all changes to the Dover Amendmane stripped out by the powerful human services lobby.
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