School Zone(ing): The SJC Reaffirms the Zoning Standard for Educational Institutions

The Supreme Judicial Court’s (SJC) Regis College v. Town of Weston opinion from earlier this year addresses a key land use question in Massachusetts: the extent to which educational institutions must comply with local zoning bylaws. However, the Regis College decision is perhaps more important — to educational institutions, developers, and local governments — because of what it was expected to say, but doesn’t .

At issue in Regis College was whether Regis’s proposed new senior living facility — to be built adjacent to Regis’s existing undergraduate campus in Weston — constituted an “educational purpose.” If so, it would be entitled to the protection of the so-called “Dover Amendment” provisions of G.L. c. 40A, § 3 (prohibiting local zoning ordinances from over-regulating land that is owned by educational nonprofits and used for “educational purposes”).

Regis claimed that its proposed senior living facility did qualify as a Dover-protected educational purpose, noting that among other things, residents will be required to enroll in at least two courses (broadly defined) per semester. In contrast, Weston contended that the facility was simply a zoning-noncompliant housing project intended to generate revenue for Regis, and that the nominal educational element was not substantial enough to afford the entire project Dover protection.

The Land Court agreed with Weston, but the SJC granted direct appellate review — a comparatively rare procedure used only to review “novel questions of law” or where there is “such public interest that justice requires a final determination by the full [SJC].” Many observers felt that by granting direct appellate review, the SJC was sending a strong signal that it was open to overruling earlier appellate precedents — most notably, the precedent that a project was entitled to Dover protection only when its primary purpose was educational. Regis argued, in contrast, that Dover protection should extend to projects so long as they contain more than an “incidental” educational component.

When the SJC’s opinion was handed down, it was nominally a victory for Regis. The SJC remanded the case to the Land Court for further factual determinations (mostly involving whether the senior living facility’s academic aspects would actually operate in practice as Regis claimed they would).

However, on the major underlying legal issue, the SJC did not overrule earlier precedents, but instead reaffirmed the high legal threshold that educational institutions must meet to obtain Dover protection. In particular, the SJC rejected outright Regis’s claim that Dover applied whenever a project had more than an “incidental” educational purpose. Instead, the SJC held that “in order to claim the protection of the Dover Amendment’s ‘educational purposes’ clause, a landowner must demonstrate that its use of land will have as its primary purpose a goal that can reasonably be described as educationally significant.”

In short, after Regis College, municipalities seeking to limit the availability of Dover may be breathing a sigh of relief — and educational institutions seeking to expand may be heading back to the drawing board — largely because of the SJC didn’t say what many were expecting.