Zoning in, zoning out:
the impact of use exemptions
on residential communities
Homeownership in any neighborhood has its bright spots and challenges, and the Massachusetts
residential market is no place for the faint of heart. Prices surged amid pent-up demand and limited
inventory while low interest rates have inspired contentious bidding wars among eager prospective
owners for more desirable homes. Buyers, sellers, and those staying put emphasize “location, location,
location,” as distinguishing features of specific neighborhoods are highlighted and scrutinized.
A quiet home in a sought-after community will always have appeal – but owners and buyers should also
be aware of the range of uses permitted by right in residential neighborhoods. Indeed, the breadth of
activities exempt from zoning regulation in Massachusetts may surprise many.
Uses such as farming, education, childcare, and religious worship, for example, while endorsed in the
abstract, are not always welcome next door. These types of uses can impact traffic and aesthetics, in some
cases adversely affecting the culture of the neighborhood. The commonly cited Dover Amendment,
however, is based on the Massachusetts Legislature’s determination that these uses (education, childcare,
religion and farming in particular) are inherently compatible with residential areas and strengthen the
fabric of society.
A few common zoning exemptions that can lead to friction in a neighborhood:
1. Educational facilities: learning to live with learning
The exemption for educational uses encompasses more than traditional schools. Uses that qualify as
educational range from schools for children to private colleges, adult learning facilities, occupational
training locations, and mental health transitional housing.
Given the current debate in Massachusetts about the mental health care system and widespread
recognition of its inadequacies, cities and towns may see more applications for supportive transitional
housing that teach residents skills for daily living in the community. These proposals are often met
with resistance from abutters, but the Dover Amendment makes them a permitted use.
In Framingham, for example, the site of a former religious retreat was on the cusp of being
purchased and repurposed as an inpatient psychiatric treatment center by Walden Behavioral
Care.[i] While the use was allowable under the Dover Amendment, the sale was stalled by
opposition from neighbors. The delay eventually resulted in the seller abandoning its purchaseand-sale agreement, but the issue has and will continue to arise in more communities across
the state.
Traditional educational institutions are at the heart of more common clashes, which emerge as
schools expand to accommodate growth or refurbish outdated facilities to provide modern library,
laboratory and athletic facilities to their students. Concerns over traffic, parking, and the
aesthetics of new and larger buildings frequently emerge, as typified by a dispute between Boston
College and the City of Newton.[ii]
When BC sought to construct three connected buildings at its Chestnut Hill campus as part of its
Middle Campus Project, the City’s Board of Aldermen by a narrow vote denied special permits
based on concerns that the density of the three new buildings and limited parking, among others,
might negatively impact the adjacent Chestnut Hill neighborhood. BC appealed, contending that
the Dover Amendment protected its right to provide its students and faculty with more and
improved space to serve its current needs.
The court considered the square footage of the projects, perceived parking issues, height of the
buildings, and corresponding shadows before deciding that while some municipal concerns could
be accommodated, the educational use exempted the Project from most of the zoning regulations
and strict application of those requirements would be unreasonable. Essentially, the need for the
institution to replace “outdated and cramped” educational facilities outweighed density and other
concerns raised by the City.
2. “Religious Freedom” extends to architecture
The Dover Amendment also protects the right of religious landowners to build and use houses
of worship that not only provide a place of prayer for a congregation, but reflect its beliefs as
well. This can generate neighborhood objections based on traffic during peak times, light and
sound during certain events, and how the architecture of the structure fits – or doesn’t – with
its surroundings.
Such a scenario is typified by Belmont’s experience with the Mormon Church’s construction of a
new temple in a residential neighborhood off Route 2.[iii] The Church of Jesus Christ of Latter-Day
Saints significantly exceeded the height restriction in the zoning bylaw where the height of its
steeple, which featured a statue of the Angel Moroni, extended to eighty-three feet above the roof
line on a parcel surrounded on three sides by single family residences. Abutters complained that
the steeple’s height would cause shadows and negatively impact their property values.
The trial court judge agreed, ruling that the steeple was not “a necessary element of the Mormon
religion” and therefore not protected by the Dover Amendment. Furthermore, the court noted,
even if the Dover Amendment did apply, the church had not proved that requiring it to comply
with the height restrictions was unreasonable.
The Supreme Judicial Court, however, overturned that ruling based on its conclusion that the
court does not have the authority to qualify the steeple’s importance. Courts must focus on the
structure as a whole, not on whether a particular feature furthers the religious use. As the decision
queried: “A rose window at Notre Dame Cathedral, a balcony at St. Peters Basilica – are judges to
decide whether these architectural elements are “necessary” to the faith served by those buildings?”
3. Agricultural use: “keeping the pig out of the parlor”
Rural and suburban communities draw homeowners seeking quiet roads and a peaceful setting.
The idyllic picture of the red silo rising above a pasture of golden wheat, dairy cows and sheep is
the dream of many who seek to escape crowds, noise and smells of city living. Those in search of
the rural ideal, however, should be prepared for some of the realities necessary to productive
agricultural uses: early morning tractors, even earlier crowing roosters, odors from organic
fertilizers and pigs, and other impacts.
As there is more and more consumer demand for locally grown and locally sourced vegetables,
fruits and meat products, small local cooperative farms are multiplying in the once suburban
landscape. Legislative protection of agricultural uses arises from a recognition that farmland is a
valuable resource and must be preserved. Farm use, however, is not always easily compatible with
the Martha Stewart model of country living.
In Carlisle, the agricultural/residential conflict led to a homeowner poisoning his neighbors’
roosters and chickens after two years of battling over nighttime noise. “Neighbors did not have to
be told that there was a rooster in the backyard. The sound, they say, filled the air… a lot of noise
came from the coop, [sometimes earlier than 3:30] in the morning.” [iv]
While even the United States Supreme Court has recognized that a goal of zoning bylaws is to
“keep the pig out of the parlor,” the Massachusetts agricultural exemption has been interpreted to
allow a host of not entirely welcome uses that may disrupt an afternoon tea. Included among the
activities that have been held by Massachusetts courts to fall within the agricultural exemption are
a slaughterhouse at the historic Lookout Farm in Natick, an ice cream stand serving homemade ice
cream, farm stands with entertainment and music for families, horse riding stables, nurseries and
greenhouses, and, of course, piggeries.
Communities and neighborhoods are built around a mix of land uses and the courts have consistently
recognized that legislatively created zoning exemptions reflect community needs. Residents concerned
with plans for these proposed uses have a right to voice their objections and may in fact contribute to
such uses being conditioned in ways that make them less intrusive, but they should also be aware that
the law protects these uses because of the valued role they play in our communities.
Endnotes
[i] What are Marist site prospects after foiled Walden project?, Emily Micucci, Worcester Business Journal, October 16, 2014
[ii] Trustees of Boston College v. Board of Aldermen of Newton, 58 Mass .App. Ct. 794, August 8, 2003
[iii] Martin v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141, May 16, 2001
[iv] Rooster rage may have led to chicken deaths in Carlisle, Billy Baker, Boston Globe, August 6, 2014
Copyright © 2014 Hemenway & Barnes LLP
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