MISC 15-000373

June 23, 2017

Barnstable, ss.



What is commonly referred to as the "Dover Amendment," G.L. c. 40A, § 3, second par., bars local zoning bylaws from prohibiting, regulating, or restricting "the use of land or structures for religious purposes or for educational purposes," but does allow "such land or structures [to] 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." Id. This case concerns whether a regulation in the Town of Brewster's Zoning Bylaw (Bylaw) allowing only one principal structure on a lot is a restriction on plaintiff's educational use that is barred by the Dover Amendment or is a reasonable dimensional regulation that can be applied to the plaintiff's proposed building. Plaintiff Arts Empowering Life, Inc. (AEL), formerly known as the Gloriae Dei Artes Foundation, Inc. (Gloriae Dei), is a nonprofit educational foundation dedicated to the teaching, training, and production of musical performances. AEL filed a complaint pursuant to G.L. c. 40A, § 17, appealing a decision of the defendant Planning Board of the Town of Brewster (Board) denying AEL a special permit to remove existing structures and replace those structures with a new building to be used for teaching and training facility for a percussion ensemble. AEL contends that the Board incorrectly denied its special permit because it failed to consider and apply the Dover Amendment. The Board asserts that it properly took the Dover Amendment into consideration and denied AEL's special permit applications after reasonably applying the relevant dimensional requirements in the Bylaw to AEL's Dover-protected use. Both parties filed cross-motions for summary judgment. As discussed further below, the Bylaw provision is either a use restriction or an unreasonable dimensional restriction; either way, its application to AEL's proposed building is barred by the Dover Amendment. AEL's Motion for Summary Judgment is allowed and the Board's Motion for Summary Judgment is denied.

Procedural History

Plaintiff Gloriae Dei filed its initial complaint on September 18, 2015, naming as defendants the members of the Board. On October 28, 2015, the Parties filed a Joint Case Management Statement. A case management conference was held on November 4, 2015. On January 12, 2016, the parties filed a Joint Motion to Remand. The court issued an Order of Remand on January 13, 2016, remanding the case to the Board.

On June 3, 2016, Plaintiff filed Plaintiff's Motion to Amend and Supplement Complaint and First Amended and Supplemental Complaint. With Defendants stating they did not oppose Plaintiff's Motion to Amend and Supplement Complaint, the court allowed the motion and reopened the case on June 10, 2016. On July 5, 2016, Defendants filed a Notice of Appearance in Lieu of Answer to First Amended and Supplemental Complaint Pursuant to G.L. C. 40A, Section 17.

Plaintiff filed Plaintiff's Motion for Summary Judgment, Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment (Mem.), and Statement of Undisputed Facts (SOF) on November 7, 2016. On December 9, 2016, the Board filed Defendants' Opposition to Plaintiff's Motion for Summary Judgment and Cross-Motion for Summary Judgment, Memorandum in Support of Defendants' Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendants' Cross-Motion for Summary Judgment (Opp.), and Appendix to Statement of Undisputed Facts (App.). Plaintiff's Reply Memorandum in Support of its Motion for Summary Judgment and in Opposition to Defendants' Cross-Motion for Summary Judgment and Plaintiff's Motion to Amend Complaint to correct the legal name of the plaintiff from Gloriae Dei to AEL were filed on December 16, 2016. On January 4, 2017, the court allowed Plaintiff's Motion to Amend Complaint, held a hearing on the Cross-Motions for Summary Judgment, and took the motions under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

Undisputed Facts

The court finds that the following facts are undisputed:

1. Gloriae Dei, since renamed AEL, was established in 1988. SOF ¶ 1; App. Exh. A.

2. AEL is an educational organization engaged in the teaching, training, and production of musical performances. AEL supports and operates the Spirit of America Marching Band, the Gloriae Dei Cantores, a choral ensemble, and the Spirit of America Winter Percussion ensemble. This ensemble is an award-winning musical organization comprised of children between the ages of 9 and 22. The ensemble performs and competes nationally with children from 17 different towns. The ensemble does not currently have its own practice and educational facility. SOF ¶ 2, 5, 8; App. Exh. B.

3. AEL is a tenant at the property located at 36 Southern Eagle Cartway in Brewster, along the Brewster/Orleans town property line (Property). The Property is within the Residential Medium (RM) Zoning District and the Route 6A Corridor Overlay Protection District under the Bylaw. According to § 179-63 of the Bylaw, Brewster's road corridors, including Route 6A, contain valuable historic, environmental, cultural, and scenic resources, while also serving as major transportation routes through Town. Surrounding properties are residential, commercial, and industrial. SOF ¶¶ 3, 6; App. Exhs. P, R, DD.

4. The Property is a panhandle-shaped lot, with a driveway extending up from Southern Eagle Cartway to the main upland portion of the lot. The total lot area of the Property is 657,531 square feet, approximately 15 acres, and approximately 254,200 square feet of the Property is upland area. The Property surrounded on all sides by wetlands. In particular, a Coastal Bank to the Namskaket Creek tidal estuary extends extensively onto the Property from the east and a Bordering Vegetated Wetland extends onto the Property from the west. The Property abuts the Cape Cod Rail Trail to the north, directly on the other side of which is a significant Namskaket Marsh system extending towards Cape Cod Bay. SOF ¶ 4; App. Exhs. P, Q, R, DD.

5. The Property presently contains multiple structures used for distinct purposes. The Property contains a two story steel building (10,005 square feet) housing a print shop operated by Paraclete Press, a publishing company owned by the Community of Jesus, Inc., a non-profit religious organization affiliated, through common management, with AEL, and involved in the publishing and distribution of religious publications. At the rear of the Property there are two storage buildings (3,085 square feet and 2,450 square feet, respectively) and a garage (3,900 square feet) rented by AEL for educational related purposes. AEL stores equipment, vehicles, and other items related to the Spirit of America Marching Band. In addition, the Property contains two greenhouses (5,390 square feet) and associated vineyards that are used to grow grapes that are made into wine for use by the Community of Jesus. The existing building coverage is 24,830 square feet, approximately 3.8% of the total lot area. SOF ¶¶ 3, 4, 8; App. Exh. P.

6. The Property is owned by HKN Trust, a Massachusetts business trust. The Property was purchased in 1979 by HKN by virtue of a deed recorded in the Barnstable County Registry of Deeds (registry) in Book 2921, Page 254. The panhandle lot was created by an ANR Plan dated March 1979. Under the Bylaw §179-16, Table 2, panhandle lots may only be utilized for single-family residential purposes. In 1984 HKN sought a variance to allow 1/3 of a storage building on the Property to be converted to a print shop. At the time, the Property was improved with seven greenhouse structures that housed an orchid business operated by HKN. The Board granted the 1984 variance on the condition that the variance be "granted for a period of three years only and must be renewed at the end of the three years." SOF ¶ 7; App. Exhs. C, X, AA, DD.

7. In 1985, HKN applied for a further variance, asking to extend the print shop to the entire building. The application for HKN's variance was denied. The decision noted: "This year, the request to use the whole building for the print shop seemed to turn a large piece of property into two rather large commercial activities in an RM district. This was deemed to be a circumvention of the Zoning Bylaws." SOF ¶ 7; App. Exhs. D, DD.

8. In 1989, HKN again sought to extend the print shop use on the Property. This time HKN sought to construct a new, two story 60 by 75 foot building to house the print shop operations. HKN sought a special permit instead of a variance or the renewal of the prior granted variance for the extension of the nonconforming commercial use in the RM district. HKN also requested two variances to reduce the number of required parking spaces and to provide an unpaved driveway and parking area. The Board granted a special permit and variances. SOF ¶ 7; App. Exhs. E, AA, DD.

9. In 1993, HKN again sought to expand the print shop use, this time to an existing 33 by 39 foot building. HKN applied for a special permit, not a variance, to extend the nonconforming commercial use. The Board granted the special permit based on findings largely similar to those in issuing the 1989 special permit. SOF ¶ 7; App. Exhs. F, AA, DD.

10. In 2008, Gloriae Dei applied for a special permit to use another existing 78 by 50 foot agricultural building on the Property for "storage of educational equipment and materials (Spirit of America Band)." On the application, Gloriae Dei identified itself as a nonprofit educational corporation. At the time of the application, the Property was improved with the building proposed to be repurposed for educational related storage, another agricultural building with two attached greenhouses at the rear, a separate building in the middle of the Property used for commercial purposes, and cultivated fields. In October of 2008, the Board granted the special permit to allow the conversion of the existing agricultural building into educational related storage use. SOF ¶ 7; App. Exhs. G, AA, DD.

11. On November 25, 2014, AEL filed a special permit application with the Board to replace two greenhouses and one of the storage buildings that total about 7,200 square feet, are all located at the rear of the Property, and are used by AEL for storage. AEL proposes to replace them with a new engineered steel building, of approximately 8,000 square feet with a basement, in the same approximate location. AEL seeks to undertake this development on the site to provide a teaching and training facility for the Spirit of America Winter Percussion ensemble. The new structure is intended to provide a needed heated, air conditioned, and sound-protected space for practice, training, rehearsal, and musical education as well as for additional storage, repair, and maintenance of sensitive musical instruments. The building is also proposed to be used for set construction for the ensemble shows. A new 32-space parking area will be constructed, as well as a new gravel driveway to service the new building and the truck loading bay to the rear. SOF ¶¶ 5, 9; App. Exhs. H, Q.

12. The proposal was subsequently revised to propose a new 15,500 square foot building (a total of 17,710 square feet on two floors) without a basement located more towards the center of the Property. Following demolition and construction, the total proposed building coverage would be approximately 33,067 square feet, including the existing buildings. The proposed building for the ensemble would meet height, setback, and lot coverage requirements of the Bylaw. It would not comply with Table 2 in § 179-16 of the Bylaw, which authorizes only one principal structure per lot. SOF ¶¶ 5, 9; App. Exhs. H-O, Q-S, DD.

13. The closest residential home is more than 500 feet at its closest point from the proposed location of the new structure. AEL proposes to install a vegetated barrier of trees and bushes between that residence and the proposed new structure. SOF ¶ 6; App. Exhs. Q, R, DD.

14. Section 179-16, Table 2, Note 1 of the Bylaw provides that "only one principal structure shall be permitted on one lot" (Structure Regulation). The full Structure Regulation states:

In general, only one principal structure shall be permitted on one lot. The exceptions are planned residential developments, row commercial development, subsidized elderly housing, planned business developments, community facilities and public utilities. Also, residential lots may contain two single-family units, if the lot is twice that required by the Table of Area Regulations for single-family residences in that district and if each unit is provided proper street access.

App. Exh. DD.

15. Because the proposal to construct the new 15,500 square foot building would alter the preexisting nonconformity under § 179-16, Table 2, Note 1 of the Bylaw, AEL applied for a dimensional special permit pursuant to §§ 179-25B and 179-51 of the Bylaw and G.L. c. 40A, § 6. In addition, because the Property is located in the Corridor Overlay Protection District, AEL sought a site plan review special permit in accordance with Article XII, § 179-66B(1) of the Bylaw, which requires Board approval for increases in floor area by more than 500 square feet in that district. App. Exhs. H-S, CC, DD.

16. The Board held a public hearing on January 14, 2015. On August 26, 2015, the Board denied the special permit application. The Board's decision was filed with the Town Clerk on September 3, 2015. AEL appealed the Board's decision to this court on September 18, 2015. By the agreement of the Parties, the matter was remanded to the Board for a new hearing on January 13, 2016. SOF ¶ 10; App. Exh. H.

17. On remand, the Board considered the evidence submitted at the original hearing. On April 13 and April 27, 2016, the Board held public hearings regarding the applications. The Board heard testimony regarding the number of buildings on site, parking, hours for rehearsal, soundproofing, proposed size and height of structure, permitting history of the site, the fire suppression system, and proposed landscape screening. The Board heard further testimony from the applicants, Attorney David Reid on behalf of Paul Lucier, and several citizens. In addition, the Board sought and obtained a further legal opinion from Town Counsel Sarah Turano-Flores, dated April 19, 2016. SOF ¶ 12; App. Exhs. H-S, V, X, Z, AA, BB, CC.

18. On May 11, 2016, the Board voted unanimously to deny the site plan special permit and the dimensional special permit sought by AEL. On May 18, 2016, the Board's Decision denying AEL the special permits was filed with the Town Clerk. AEL subsequently appealed that denial to this court. SOF ¶ 13; App. Exh. CC.


The issue in this case is whether AEL can build a second principal structure on the Property when the Bylaw authorizes only one principal structure per lot (Structure Regulation). Because the proposed building would serve an educational purpose, it falls under the protection of the Dover Amendment, which invalidates zoning by-laws that prohibit or unreasonably limit certain protected uses, including religious and educational uses. AEL argues that the Structure Regulation is a use restriction that unreasonably restricts its intended educational use of the Property. The Board responds that the Structure Regulation is a reasonable dimensional requirement that protects the character of the neighborhood. These arguments are addressed below.

I. Dover Amendment

The parties agree that the proposed building falls under the protection of G.L. c. 40A, § 3, second par., commonly referred to as the "Dover Amendment." Facts ¶ 2, 5. The Dover Amendment states: No zoning ordinance or by-law shall . . . prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased 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.

G.L. c. 40A, § 3, second par.

The Dover Amendment aims to strike a balance between legitimate municipal goals advanced by reasonable zoning regulations and protected uses such as religious or educational uses. Trustees of Tufts College. v. City of Medford, 415 Mass. 753 , 757 (1993); see also Campbell v. City Council of Lynn, 415 Mass. 772 , 778 (1993). Under this framework, zoning regulations containing use restrictions that "facially discriminate against the use of land for educational purposes" are obvious violations of the Dover Amendment and will not be applied to protected uses. Trustees of Tufts College v. City of Medford, 33 Mass. App. Ct. 580 , 581 (1992). Reasonable dimensional requirements still apply to Dover protected uses so long as the zoning restrictions do not "have the practical effect of nullifying the use exemption" contained in the Dover Amendment. Id. at 582. When an institution considers a dimensional requirement unreasonable as applied to its project, it bears the burden of "demonstrating that compliance [with the zoning regulation] would substantially diminish or detract from the usefulness of a proposed structure . . . without appreciably advancing the municipality's legitimate concerns." Tufts, 415 Mass. at 759. This demonstration is heavily fact-specific, depending on the context of each case.


For the reasons stated below, the Court finds that the Structure Regulation violates the Dover Amendment because (1) it functions as a use restriction that effectively denies AEL the right to use the Property for its educational purposes, and (2) even if the regulation is interpreted as a dimensional requirement, it unreasonably impedes on AEL's proposed educational use without advancing a valid municipal concern.

II. The Structure Regulation as a Use Restriction

The Town contends that the Structure Regulation is a dimensional requirement that is applied indiscriminately based on use. See Tufts, 415 Mass. at 759. To advance this argument, the Town repeatedly focuses on the fact that the limitation on principal structures and the surrounding text of Table 2 regulate the structures on property and not a property's use. Opp. at 10–13. AEL responds by claiming that the use of the word "principal" and the list of exceptions to the Structure Regulation show that the rule is a use regulation. Because AEL's arguments are supported by the language of the Bylaw and relevant case law, the court finds that the Structure Regulation functions as a use restriction.

The Town presses that Table 2 is primarily concerned with structural limitations, so the Structure Regulation should be interpreted as a dimensional restriction. This argument falls short on two fronts. First, Table 2 contains a number of other footnotes that deal explicitly with permitted uses on properties within the RM district. See App. Exh. DD. In particular, Note 11 addresses Cottage colony conversion, Note 12 addresses subsidized elderly housing, and Note 13 addresses the definition of an "owner-occupied" dwelling. The presence of these footnotes suggests that Table 2 is concerned with more than just dimensional requirements. Second, the dimensionally focused footnotes that the Town relies on express height, setback, or other obvious dimensional requirements, which are not addressed in the Structure Regulation. For instance, the Town points to § 179-16, Table 2, Note 6, which regulates area, setback, and height requirements. Section 179-16, Table 2, Note 6 of the Bylaw states:

Accessory buildings and structures. Any permitted accessory building in any R District shall conform to the following provisions:

It shall not occupy more than 40% of the required rear yard. It shall be not less than 40 feet for R-R and R-L Districts and 30 feet for an R-M District from any street lot line and shall be not less than 25 feet in any R-R or R-L District or 20 feet in the R-M District from any lot line. It shall not exceed 30 feet in height.

A temporary stand for retail sale of agricultural or farm products, where permitted. May be six feet from the front lot line.

Any permitted barn shall be at least 50 feet from any street lot line or side or rear property line and at least 100 feet from any abutter's dwelling.

App. Exh. DD. No similar measurements are introduced as part of the Structure Regulation. The Structure Regulation is different from the clear dimensional requirements introduced in other footnotes within Table 2 of § 179-16 of the Bylaw, and those footnotes are not evidence that the Structure Regulation is dimensional.

AEL argues that the word "principal structure" in the Structure Regulation indicates that the regulation is a use restriction. The definition section of the Bylaw supports this position. Article I, § 179-2 (B) of the Bylaw defines "principal building" as "[t]he structure in which the primary use of the lot is conducted." App. Exh. DD. Moreover, the Structure Regulation includes a list of exceptions which allow more than one principal structure on lots devoted to certain uses. The excepted uses for multiple principal structures include "planned residential developments, row commercial development, subsidized elderly housing, planned business developments, community facilities and public utilities." App. Exh. DD. [Note 1] These exceptions indicate that the Structure Regulation is applied based on the use of the primary structure. The term "principal structure" essentially regulates a structure based on its use, allowing only one such structure on one lot for particular uses, while creating exceptions for other uses.

Similar attempts by municipalities to regulate the number of uses on a particular lot have been held to be contrary to purpose of G.L. c. 40A, § 3, and therefore inapplicable to religious or educational uses. See Watros v. Greater Lynn Mental Health & Retardation Ass'n, Inc., 421 Mass. 106 , 115 (1995); Ellsworth v. Town of Marshfield, 19 LCR 376 , 377 (2011). In Watros, a mental health association sought a special permit to convert and use a barn on property it leased to provide shelter and education to mentally handicapped adults. Watros, 421 Mass. at 107. The barn was a preexisting nonconforming structure because it failed to meet the bylaw's minimum setback requirement. The association's leased property was part of a larger parcel that also contained a two-family residential dwelling that was a preexisting nonconforming use. Id. at 109. The local zoning board granted a special permit to the mental health association. Id. at 110. The abutters to the property appealed the decision, arguing that because the barn was a preexisting nonconforming accessory structure primarily used for storage, the proposed use under the special permit converted the structure into another dwelling unit. The Superior Court agreed with the abutters and held that "[t]his conversion would greatly intensify the nonconforming use which presently exists on the locus and essentially allows three residential dwellings on a piece of property which is zoned for only one residence. Section 3 of chapter 40A, was never intended to provide such a result." Id. at 112. The Superior Court noted that the outcome would have been different if the association was leasing the entire parcel. Id. at 113.

Upon further appellate review, the Supreme Judicial Court (SJC) reversed the Superior Court's decision, finding that G.L. c. 40A, § 3, made no distinction between its applicability to principal or accessory buildings and did not limit its application to circumstances where the nonprofit organization leased or owned the entire parcel. Id. at 113-114. The SJC stated that "it is clear that the over-all intent of the Legislature was to prevent local interference with the use of real property for educational purposes." Id. at 113. The SJC concluded that permitting the association's use of the barn for an educational purposes neither permits nor expands a nonconforming use. Id. at 115. Since the proposed use of the barn was for a residence of mentally handicapped adults, it was a protected use for an educational purpose within the meaning of G.L. c. 40A, § 3. The court found that "[t]he proposed use does not violate any restriction of the local zoning laws, because, by virtue of § 3, local officials cannot apply a local zoning law to deny [the mental health association] the right to use the property for its educational purpose." Id. at 115, citing Campbell, 415 Mass. at 777 n. 6; see also Ellsworth, 19 LCR at 377 (reiterating that "the Dover Amendment overrides any prohibition on ‘two uses' of the same lot" where the uses are Dover-protected uses).

Further supporting the contention that the Structure Regulation is a use restriction is the fact that it applies without regard to the dimensions of the principal structure. The total upland coverage of the Property after AEL's proposed building is constructed would consist of 33,067 square feet, or 13% of the buildable upland area. Opp. at 7; App. Exh. Q. According to Table 3 of the Bylaw, the maximum building lot coverage for the RM district is 25% of the total lot area. There is no maximum building coverage of buildable uplands within the lot area for the RM district. App. Exh. DD. Conceivably, a single structure almost double the size of both the existing printing press building and the new AEL building could be constructed on the Property without violating the district's lot coverage requirement. The Structure Regulation appears to discriminate against uses that would require multiple structures, while allowing uses, such as residences, that would only require a single principal structure. This regulation differs from the "bulk[,] . . . height[,] . . . yard sizes, lot area, setbacks, open space, parking and building coverage requirements" permitted to be imposed by municipalities under the Dover Amendment. G.L. c. 40A, § 3. While dimensional zoning requirements may concern the details and measurements of a structure, zoning regulations no longer function as dimensional requirements when they concern whether or not the structure can be built at all by factoring the use of the structure into the analysis.

III. The Structure Regulation as a Dimensional Restriction

Even assuming the Town is correct and the Structure Regulation is "wholly unrelated to [the] proposed use," Opp. at 13, the Structure Regulation would still be inapplicable to the proposed structure as an unreasonable dimensional requirement that is barred by G.L. c. 40A, § 3. Zoning restrictions cannot "have the practical effect of nullifying the use exemption" contained in the Dover Amendment. Tufts, 33 Mass. App. Ct. at 582. Rather than merely imposing reasonable dimensional limitations, in its application the Structure Regulation functions as a bar to the educational use of the Property. While the Town asserts that the application of the Bylaw will "not preclude the proposed educational use at this site," this argument is unsupported by the evidence and the plain language of the Bylaw. "The new structure is intended to provide a needed heated, air conditioned, and sound-protected space for practice, training, rehearsal, and musical education." SOF ¶ 5. Without the proposed structure, AEL will have no indoor, heated space to practice on the Property. Though the sheds on the Property are currently used for storing the ensemble's instruments, this limited educational use does not compensate for a sound-proofed practice space. The Structure Regulation, if applied, would entirely eliminate the purpose of the proposed structure, making it an unreasonable dimensional requirement that would nullify AEL's intended educational use of the Property for the ensemble's practice and equipment maintenance space. See Tufts, 415 Mass. at 759.

The Town responds to this nullification argument by arguing that the requirement is reasonable because AEL could simply propose a smaller structure that would meet its needs while alleviating Brewster's legitimate zoning concerns. Opp. at 16. While it is true that in Dover Amendment cases courts often balance the cost to the education institution of complying with the regulation against the municipal concern protected by the regulation, see Trustees of Boston College v. Board of Aldermen of Newton, 58 Mass. App. Ct. 794 , 802 (2003), no such balancing can be done here for two reasons. First, the Structure Regulation includes no discussion of how large or small a building must be to constitute a second principle structure. This ambiguity vests the Board with wide discretion in determining what constitutes a principal structure and leaves AEL with no guidelines as to how large its building can be without violating the Structure Regulation. Second, the Town advances no convincing argument as to how the proposed building would violate its municipal concerns. Though the Town cites concern for the character of the neighborhood and the public's health and safety, it provides no evidence to substantiate these claims. Opp. at 14, citing Tufts, 415 Mass. at 757–758. Given the near complete restriction of educational activity on the Property because of the Structure Regulation, the Town would need to provide a much more compelling account of its municipal interest to justify restricting AEL's Dover-protected use.

The Town also raises the argument that the Property has reached its saturation point with protected uses, so this nullification does not violate the Dover Amendment. The term "saturation point" was first introduced in Boston College, where the Appeals Court explained that there may be a point at which "a Dover user's right to reasonable growth may be limited or even capped pursuant to reasonable municipal regulations without offending the Dover Amendment." Boston College, 58 Mass. App. Ct. at 801, quoting Trustees of Boston College v. Board of Aldermen of Newton, 9 LCR 1 (2001). [Note 2] Even though Boston College's floor area ratio had grown to nearly three times the permitted value, the Land Court and the Appeals Court concluded that the saturation point had not been reached. Id. at 801-802. AEL's proposed building does not present the same concerns as the proposed development in Boston College. The total combined lot coverage after AEL's proposed building is constructed would be 5%. In the RM district where the maximum building coverage permitted is 25% of total lot area, the proposed building places it far below any perceivable saturation point. The Structure Regulation, even when considered a dimensional requirement and not a use restriction, places an unreasonable burden on AEL's educational use of the Property, making it inapplicable to AEL's proposal under the Dover Amendment. Therefore, the Board incorrectly denied AEL's site plan and dimensional special permit applications for the proposed building.


For the foregoing reasons, AEL's Motion for Summary Judgment is allowed and the Board's Cross-Motion for Summary Judgment is denied. The Board's Decision is hereby annulled and the Board is ordered to grant AEL's special permits in accordance with the requirements of the Dover Amendment.



[Note 1] Each of these uses is further defined in "Table 1: Use Regulations" of the by-laws. App. Exh. DD. A look into the further subcategories of the excepted uses in Table 1 raises a question unaddressed by either party. One of the excepted categories, "community facilities," includes within its definition educational uses based on the Dover Amendment. App. Exh. DD. It is unclear why the exception for community facilities should not exempt the Structure Regulation from applying to the Property in this case.

[Note 2] Judge Scheier's description of a "saturation point" offers a helpful response to the Town's concern about the number of Dover-protected uses on a single plot becoming unreasonable. Though the saturation point has not been clearly defined, it can serve a useful function in close cases that may trigger worries similar to the Town's. As discussed, this is not such a case where the saturation point analysis need be applied.