Peter Adams
October 25, 2005
The South Middlesex Non-Profit Housing Corporation writes in its appeal that the Building Commissioner’s denial of their change of use violates the Dover Amendment "because it purports to apply site plan review ... to [the] proposed educational use at 517 Winter Street, which is exempted from such regulation under the Dover Amendment."
First, the applicant has not even shown that they are covered by the Dover Amendment, other than offering facile, self-serving statements. Where are the curriculum guides? The instructional schedules and performance review guidelines? The job descriptions of the instructors?
Assuming the applicant produces these materials, however, their appeal is still based on the assertion that state law exempts them from regulation. That is wrong. Here is the relevant section from the Dover Amendment:
No zoning ordinance or by-law shall ... prohibit, regulate or restrict the use of land or structures ... 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.
By comparison, the article which passed at Town Meeting on August 3 allows use
by a nonprofit educational corporation; provided, however, that such land or structure shall be subject to regulations concerning the bulk and height of structures, yard size, lot area, open space, parking, building coverage, and site plan review requirements in accordance with the provisions of this By-Law.
In other words, the Dover Amendment does allow the town to apply reasonable regulations and the town bylaw covers those areas allowed by the Dover Amendment. Most cities and towns in Massachusetts have language requiring Dover applicants to undergo site plan review and routinely exercise this authority, often denying applications entirely. As an example, the Town of Concord bylaws specifically require educational and religious uses to undergo site plan review. Only Framingham's law is being challenged.
SMOC has already declared its intention to challenge the Town's new bylaw in court before even appearing before this board, yet has asked you to reverse the Building Commissioner's decision by, in essence, declaring the Town's bylaws illegal. It is the Attorney General's job to rule on the legality of this bylaw.
I ask the Board to deny the applicant's appeal.
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