HomeMy WebLinkAbout2012-05-01 Planning Board Supplemental Materials (44)Memorandum
To: North Andover Planning Board
From: MetroPCS
Re: Dover Amendment and 70 Elm Street
Date: April 24, 2012
At the April 3, 2012 public hearing on MetroPCS’s application for renewal of its
special permit at 70 Elm Street, abuttor Thea Fournier requested that the Board
delay a vote on its decision until the Massachusetts Supreme Judicial Court rendered
its decision in the matter of Regis College v. Town of Weston Zoning Board of
Appeals. This brief memorandum is to provide information with regard to that
appeal and specifically as it may or may not apply to Metro PCS’s application.1
Regis College v. Weston ZBA involves an appeal by Regis College of the ZBA’s
denial of its variance application to develop a significant portion of its college
campus into a luxury assisted living facility that also contains an educational
component. The Project is described in the Land Court’s decision upholding
the ZBA as follows:
1. The Project proposes eight buildings. Four main buildings contain classrooms
(approximately seven children's classrooms, five classrooms for lifelong learning
and college uses, one computer lab, and at least one clinical teaching room for
100 students), three libraries, approximately twenty-four faculty or
administrative offices, dining areas, a physical fitness center, a child care facility,
an adult care and training/educational facility, and a woodworking shop. 5 The
four other buildings contain 362 living units, which will house the residents of
the Project (the "Residents"). 6 Each of the living units will contain
approximately 1,300 square feet and consist of one, two, or three bedroom
apartments. 7 The Project will also provide parking for 616 vehicles…
fn. 6 Of the 766,000 total square feet of building area proposed, living units will
comprise approximately 470,000 square feet (as estimated by this court based on
the total number of living units and the average square footage per unit).
Regis College v. Town of Weston Zoning Board of Appeals, 18 LCR 8 (2010) at *8‐9.2
1 The SJC heard oral argument in December, 2011. As of this date, the case is still
under advisement.
2 The Court’s full description of the Project takes up several pages of the decision.
For the purposes of this memorandum, it is sufficient to establish that the Project is
a mixed‐use facility including luxury residences and an educational component.
The Weston ZBA denied the variance application, and Regis appealed, arguing that
the ZBA’s denial violated the segment of G.L. c.40A §3 known as “the Dover
Amendment.”
The Dover Amendment, so‐called, provides (in pertinent part):
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
… 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.
The Land Court determined that the dominant purpose of the Project is not educational in
nature and therefore, the ZBA’s denial did not run afoul of the Dover Amendment. Id. at
12-13.
______________________
MetroPCS submits that the Regis College case is entirely irrelevant to the North
Andover Planning Board’s examination of its renewal application.
1. The Dover Amendment is a proscription of municipal zoning power as
applied to religious/educational uses. It offers the zoning authority no
greater power to regulate church property than any other type of property.
The religious use of 70 Elm Street is irrelevant to the application. It is simply
a pre‐existing non‐conforming structure.
2. Even if the Dover Amendment did confer some greater authority on
municipal zoning boards to regulate a church’s ability to sublease steeple
space for telecommunications use, that authority would be superseded by
the limitations placed upon it by the Telecommunications Act of 1996 under
the Supremacy Clause of the United States Constitution.
3. In addition, the recent enactment of §6409 of the “Middle Class Tax Relief
and Job Creation Act of 2012” unequivocally mandates that the Board “may
not deny, and shall approve, any eligible facilities request for a
modification of an existing wireless tower or base station that does not
substantially change the physical dimensions of such tower or base station.”
MetroPCS’s application requests nothing more than the renewal of the existing
permit with no changes whatsoever. The Dover Amendment does not apply to this
application. Federal law supersedes any consideration of the religious exemption of
Chapter 40A.
Peter B. Morin, Esq.
McDermott Quilty & Miller LLP