Massachusetts General Laws Chapter 40A, Section 3, commonly known as the Dover Amendment, places limitations on what municipalities may regulate under their local zoning ordinances or by-laws. Initially established to prevent the restriction of educational and religious uses of land, the Dover Amendment has been amended to protect additional land uses. See, Crossing Over, Inc. v. Fitchburg, 161 N.E.3d 432, 439 (Mass. App. Ct. 2020), rev. denied, 165 N.E.3d 157 (Mass. 2021) (citations omitted). Most recently, the Dover Amendment was amended by “An Act Relative to the Affordable Homes Act” to include protections for accessory dwelling units (“ADUs”). See, An Act Relative to the Affordable Homes Act, ch. 150, § 8, 2024 Mass. Acts (codified as MASS. GEN. LAWS ch. 40A, § 3, eleventh par.). Uses afforded protection under the Dover Amendment include certain agricultural uses (first paragraph), public service corporation use (second paragraph), child care facility use (third paragraph), family child care home use (fifth paragraph), and solar energy uses (ninth paragraph). MASS. GEN. LAWS ch. 40A, § 3.

The extent of protection from local regulations granted a Dover Amendment use varies with each use. For example, a locality may not prohibit, regulate or restrict land used for religious or educational purposes, but may establish “reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements.” MASS. GEN. LAWS ch. 40A, § 3, second par. For child care facilities, a locality may not “prohibit, or require a special permit for, the use of land or structures, or expansion of existing structures, for the primary, accessory, or incidental purpose of operating a childcare facility” but 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, like religious and education uses. MASS. GEN. LAWS ch. 40A, § 3, third par. As a result, religious and education uses and child care facilities may only be subject to reasonable regulations related to dimensions. In contrast, protections for solar energy systems and structures that facilitate the collection of solar energy have been recognized to provide municipalities with more flexibility than other Dover Amendment uses. Tracer Lane II Realty, LLC v. Waltham, 187 N.E.3d 1007, 1012 (Mass. 2022). Such solar uses cannot be prohibited or unreasonably regulated except where necessary to protect the public health, safety or welfare. MASS. GEN. LAWS ch. 40A, § 3, ninth par. While the degree of protection varies, at a minimum the Dover Amendment places parameters on permissible regulation of such uses.

The Dover Amendment is a significant statutory provision in the municipal zoning landscape. It sets the ground rules for local regulation of its protected uses, limiting the zoning powers of localities. D’Ambrosio LLP provides expert assistance and early planning to real estate developers, municipalities, corporations, and nonprofit institutions to facilitate and quicken the resolution of complex permitting and review processes. Please contact D’Ambrosio LLP to find out more about the Dover laws.