The Superior Court of Massachusetts recently annulled the decision of a local zoning board that had permitted construction of an outdoor aerial adventure park pursuant to what is commonly referred to as the “Dover Amendment” – i.e., G.L. c. 40A, § 3. In Sullivan v. Heritage Plantation of Sandwich, Inc., 35 Mass. L. Rptr. 281 (2018) (“Heritage Plantation”), the Court found that the particular outdoor adventure park at issue did not have a primary goal of educational significance and did not involve a nonprofit organization using its land for educational purposes, and, therefore, could not take advantage of the significant zoning exemptions offered by the Dover Amendment.
The Dover Amendment seeks to prevent local discrimination against educational uses while honoring legitimate municipal zoning concerns. It provides, in part:
[N]or shall an [zoning] ordinance or by-law prohibit, regulate or restrict the use of land or structures…for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politic 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.
G.L. c. 40A, § 3. In short, the Dover Amendment can be used to exempt educational uses from local zoning by-laws. In Heritage Plantation, the Court held, “The Dover Amendment protects only those uses of land that have as their bona fide goal something that can reasonably described as educationally significant…In addition, the educationally significant goal must be the primary or dominant purpose for the use of the land.
The landowner in Heritage Plantation had simply tried to “engraft educational content” onto the outdoor adventure park in order to bring the project within the protections offered by the Dover Amendment, according to the Court’s decision. To determine the primary goal of the project, the Court examined how the adventure park was marketed, what types of customers it attracted, and its programming. Ultimately, because “[a] use that contains merely an element of education is insufficient to qualify for protection under the Dover Amendment,” the town board’s decision upholding the grant of a building permit was annulled and the landowner was permanently enjoined from the continued operation of the outdoor adventure park.