NAHANT — The Attorney General’s Office announced its decision regarding Nahant’s proposed amendment to a zoning bylaw, rejecting two changes determined to be violations of the Dover Amendment.
In her ruling, Assistant Attorney General Chief Margaret Hurley rejected Item 2 of article four, which sought to change the use of “non-profit religious or educational purposes” from “P” (permitted) to “N” (not permitted).
“This proposed change violates the Dover Amendment because it would prohibit a protected educational use in one of the town’s zoning districts,” the April 9 ruling read. “This by-law amendment, if allowed to stand, would ”nullify’ the use exemption permitted to an educational use.'”
For Item 3, which sought to add a footnote to Item 2 stating “structures for Nonprofit Religious or Educational purposes are allowed in a Natural Resource District to the extent provided in section 4.10 of the by-law or to the extent of the Dover Amendment,” the Attorney General rejected “to the extent provided in Section 4.10 of this bylaw.”
The ruling determined that the wording appeared to provide enforcing entities with a choice to follow either section 4.10 of the by-law or the Dover Amendment, which is not the case.
“It is the statute, not Section 4.10 of the Town’s by-laws, that dictates the answer, and the statute establishes religious and educational uses as allowed by right in all districts,” the decision said.
The Dover Amendment has played a considerable role in Nahant’s fight to prevent Northeastern University from expanding on its 21-acre research site, which was granted to the school by the federal government in 1966. It prevents any zoning by-law from prohibiting or restricting the use of land owned by a non-profit educational corporation, and also states the land may be subject to reasonable regulations concerning the size of structures, lot areas, parking, and other requirements.
Nahant’s proposal, first adopted by the town at a Special Meeting November 23, argued there was an ambiguity in the original zoning by-law when it came to non-profit religious or educational purposes in areas deemed to be natural resource districts.
Jeffrey Musman, an attorney and member of Nahant Preservation Trust, said the amendment submitted by his organization looked to clarify the by-law’s intent.
“We were doing three things, really,” he said. “One was to change the definition of nonprofit religious or educational uses to add in the words ‘only to the extent required by the Dover amendment.’
“Two was to change the Table of Uses from what was listed under Natural Resource District for Nonprofit Religious or Educational Purposes from ‘permitted’ to ‘not permitted.’
“Three was to add a footnote next to that, which effectively repeated ‘to the extent required by the government.'”
The ruling approved Item 1, but did not address whether the Dover Amendment would allow Northeastern University to build at East Point.
In a statement provided to the Item, Northeastern Spokesman Michael Ferrari said of the decision:
“This is the third consecutive legal ruling upholding Northeastern’s property rights. Rather than expending time and limited taxpayer resources on further litigation, we hope Nahant Preservation Trust and town officials will instead work in good faith toward an agreement all sides can support. This would allow the university to enhance its research capabilities while preserving the open space on its East Point property.”
Musman later said NPT supports Hurley’s ruling.
“(Nahant Preservation Trust) is totally accepting of the decision,” he said. “We worked with Margaret and wrote a memorandum supporting her approval of the adoption of the amendment, so her change was fine with us.”
