The “Dover Amendment” is under examination, and parties affected by that statute—including educational and religious institutions, contractors and developers, and local zoning boards—have been invited to help the Court interpret its scope.

The Supreme Judicial Court (the SJC) is soliciting amicus curiae (friend of the court) briefs in Regis College v. Town of Weston & another, the SJC’s latest analysis of the Dover Amendment, Mass. Gen. Law c. 40A, § 3. The SJC will decide whether the state’s Land Court correctly ruled that a development proposal by Regis College failed to qualify as an “educational use” within the meaning of the Dover Amendment. Amicus submissions are due on or before September 19, 2011. Oral arguments are currently scheduled for October 2011.

The Dover Amendment requires cities and towns to give preferential zoning treatment—though not mandatory approval—to nonprofit educational and religious institutions, among other permit applicants (such as child care providers). The Dover Amendment states, in relevant part, “No zoning ordinance or by-law shall … regulate or restrict the use of land or structures … for educational purposes on land owned or leased … by a nonprofit educational corporation; provided, however, that land or structures may be subject to reasonable regulations” concerning, where applicable, the bulk and height of structures, yard sizes, lot area, setbacks, open space, parking, and building coverage requirements. Mass. Gen. Law. c. 40A, § 3.

Regis College is a private, Catholic, nonprofit liberal arts college that qualifies as a “nonprofit educational corporation” within the meaning of the Dover Amendment. Regis College proposed to build eight buildings containing a total of 362 residential units on its relatively undeveloped East Campus, a 60-acre portion of the college’s 130-acre site in a single-family residential zone in Weston, Massachusetts. The proposed project includes a facility for senior citizen living, where Regis College intended “to provide educational programming for the [senior] Residents that will be guided by a personalized, individual educational plan” that is mandatory and would require the senior residents to participate in courses of study and other educational programs and events at the college. Regis College’s plan also intended to facilitate interaction between the future senior citizen residents and the College’s full-time undergraduate and graduate students through tutoring work and internship opportunities. It was these educational features that Regis College highlighted as the reasons its proposed development should be considered an educational use under the Dover Amendment.

By a decision dated March 18, 2009, the Zoning Board of Appeals of the Town of Weston (ZBA) voted unanimously to find that Regis College’s proposed project did not meet the requirements of the Dover Amendment. The Massachusetts Land Court affirmed the ZBA decision because, the court concluded, “the dominant purpose of the Project will not be the fulfillment of a significant educational goal.” The Land Court noted that senior residents’ one-time entrance fee of at least $700,000 and monthly $4,000 service fee far exceeded other senior educational programs; there were no minimum academic requirements or degrees required for acceptance; the residents were only required to take four courses per year; and the requirement to complete courses depended on the residents’ physical and intellectual capability. In its entirety, the project’s “educational component seems subordinate to Regis’ desire to provide elderly housing and/or a source of revenue for Regis.” Accordingly, the Land Court held that the proposed project was not an educational purpose as contemplated by the Dover Amendment.

Regis College appealed the decision, arguing that the Land Court’s “narrow definition of ‘educational purpose’ excludes a campus designed for seniors and conflicts with the intent” of the Dover Amendment. Regis also petitioned the SJC to hear the appeal directly from the Land Court, bypassing the state’s intermediate appellate court, the Appeals Court. The SJC, signaling the importance it places on interpreting the proper legal scope of the Dover Amendment, allowed Regis’ petition for direct appellate review. The SJC now seeks amicus briefs on the Land Court’s ruling. Specifically, the SJC requests briefings concerning whether Regis’ proposed project qualifies as an “educational use” within the meaning of the Dover Amendment.

The SJC’s decision in Regis College v. Town of Weston & another is pivotal because it is likely to either expand or restrict educational and religious institutions’ ability to pursue building projects on their properties. A decision upholding the Land Court’s interpretation of the Dover Amendment’s scope may encourage city and town permitting authorities to resist expansion and development plans proposed by religious or educational institutions by attempting to characterize the dominant purpose behind the applicant’s proposal as something other than educational or religious. But a reversal of the Land Court may spur colleges, universities, and religious institutions to seek Dover Amendment protection for a wider range of development projects.