ShareI write in response to the article that appeared in The Daily Item, April 23, under the headline, “Attorney General rejects Nahant zoning amendment changes.”
Both the article and the headline are, at best, misleading. The Attorney General did not reject the zoning amendment, but rather approved the gist of the amendment, an amendment that had been overwhelmingly approved by 87 percent of Town Meeting voters.
The amendment that was approved by the Attorney General makes clear that non-passive recreational uses and building cannot take place in a Natural Resource District without resort to the so-called “Dover Amendment.”
Massachusetts adopted the Dover Amendment in 1950 in response to local zoning bylaws that prohibited religious schools within a town’s residential neighborhoods. It provides that municipalities cannot enact zoning bylaws that discriminate against non-profit religious or educational users by prohibiting or restricting the use of land by such users except for reasonable regulations that serve legitimate municipal purposes sought to be achieved by local zoning.
Before the passage of the bylaw amendment, Northeastern University claimed that it could build a 55,000 square foot building as of right at East Point in a Natural Resource Zoning District under the Town’s then- existing Zoning Bylaw (enacted thirty years earlier, even though no one else would be allowed to build in a Natural Resource District) without having to resort to the Dover Amendment. The bylaw amendment makes clear, however, that the only way Northeastern University may be able to proceed is through reliance on the Dover Amendment.
The sole purpose in enacting the amendment was to clarify that in Nahant the only right Northeastern University or any other religious or educational non-profit could have to build in a Natural Resource Zoning District would be through a right that existed under the Dover Amendment. The Attorney General did not reject the bylaw amendment; rather, she approved it while eliminating certain language to improve clarity. The language she eliminated did not detract from the primary purpose; Nahant’s local zoning protections remain enforceable unless they are trumped by the Dover Amendment.
Importantly, the Attorney General did not address anywhere in her decision whether Northeastern University would, in fact, be able to move forward with their proposed project in the face of the town’s clear opposition and legitimate interests in preserving its open space and natural resources.
She left that issue for the courts to decide. This was no victory for Northeastern University, nor a loss for the Town of Nahant. To the contrary, Northeastern University, through letters and conversations with the Attorney General’s office, urged the Attorney General to reject the bylaw amendment. This she did not do.
It is beyond dispute that passage of the bylaw amendment and the Attorney General’s approval of it mean that in the future Northeastern University can only build if it demonstrates to a court that the Dover Amendment overrides the environmental protections afforded by Section 4.10 of the Town’s Zoning Bylaw.
Again, the Attorney General rendered no opinion on Northeastern’s proposed project. While the Attorney General was silent on the subject, we are confident that the courts ultimately will conclude that municipalities may properly protect unique natural resources, wetlands, and conservancy areas such as East Point from mega-building projects that would destroy them.
Thank you.
Jeffrey M. Musman is a Board member of the Nahant Preservation Trust, Inc., a nonprofit corporation dedicated to historical and environmental preservation. The views expressed here are his own and do not represent the position of the Nahant Preservation Trust or the Town of Nahant.
