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2016 Attorney General Approval Letter (PDF) pdf file
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~, THE CONI~TONWEALTH OF MASSACHUSETTS
r~i,
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'~ ~~"~ = OFFICE OF THE ATTORNEY GENERAL
`;~ ~ CENTRAL MASSACHUSETTS DIVISION
`-, ~~'~ lO MECHANIC STREET, SUITE 3O1
WORCESTER,MA 01608
MAURA HEALEY
(508)792-7600
ATTORNEY GENERAL (508)795-1991 fax
www.mass.gov/ago
August 23,2016
CE~V
Tracy K. Kenney, Town Clei•lc ~~
Town of Canton AUG 2 3 2016
801 Washington Street
Canton, MA 02021 T~~ ALE
CANTON,ly~q
Re: Canton Annual Town Meeting of May 9,2016 —Case # 8036
Warrant Articles # 33,35,36,37,38, and 39(Zoning)
Warrant Article # 32(General)
Dear Ms. Kenney:
Articles 32, 33, 35, 36, 37, 38, and 39 - We approve Articles 32, 33, 35, 36, 37, 38, and
39 from the Canton May 9, 2016, Annual Town Meeting. Our comments on Article 36 are
provided below.
Article 36 - Article 36 deletes the existing text of Section 10.5.1 and inserts new text.
Section 10.5.1, "Applicability," lists the structures and uses subject to Section 10.5's site plan
requirements. The new Section 10.5.1 provides as follows:
No building, structure or additional impervious surface exceeding 3,000 square feet,
except a residential structure for single or two (2) family use, shall be constructed or
externally enlarged, and no non-residential use, including any charitable or philanthropic,
religious or educational use or purpose, shall be expanded in ground area, or established
in an existing building not previously used for non-residential purposes, except in
conformity with a site plan bearing an endorsement of approval by the Board of Appeals.
Section 10.5 requires site plan review for religious and educational uses that enjoy certain
protections from local zoning pursuant to G.L, c. 40A,§ 3.
General Laws Chapter 40A, Section 3, protects various uses from a town's zoning
power, including educational use and religious uses to which Section 10.5 applies and
provides as follows:
No zoning ... by-law shall...prohibit, regulate or restrict the use of land or structures for
religious purposes or for educational purposes...; provided, however, that such land or
structures may be subject to reasonable regulations concerning the bulk and height ofSource page 2
structures and determining yard sizes, lot area, setbacks, open space, parking and
building coverage requirements.
General Laws Chapter 40A, Section 3, provides that a Town by-law may not prohibit,
or require a special permit for educational and religious uses, but may impose reasonable
regulations in eight areas: the bulk and height of structures, yard sizes, lot area, setbacks, open
space, parking and building coverage requirements. See The Bible Speaks v. Bd. of Appeals
of Lenox, 8 Mass. App. Ct. 19, 33 (1979)("The Legislature did not intend to impose special
permit requirements, designed under [G.L. c. 40A, § 9], to accommodate uses not permitted as
of right in a pa~~ticular zoning district, on legitimate educational uses which have been
expressly authorized to exist as ofright in any zone.")
The Supreme Judicial Count has indicated that local zoning requirements serving
"legitimate municipal purposes" may be applied to Dover Amendment uses. Trustees of
Tufts Coll. v. City of Medford, 415 Mass. 753, 757-758 (1993)(citing MacNeil v. Town of
Avon, 386 Mass. 339, 341 (1982). In addition, the Appeals Court recently upheld a site plan
review requirement for Dover Amendment uses, limited (as here) to the application of
reasonable regulations as set forth in G.L. c. 40A, § 3, as "consistent with a reasonable reading
of the Dover Amendment, G.L. c. 40A, § 3, and The Bible Speaks v. Board of Appeals of
Lenox, 8 Mass. App. Ct. 19, 31 91978)." Jewish Cemetery Assoc. of Mass., Inc. v. Bd. of
Appeals of Wayland, 85 Mass. App. Ct. 1105, *2(2014).
As in Jewish Cemetery Assoc., it appears reasonable for the Town to use a limited site
plan review as the process by which it regulates the bulk and height of structures, yard sizes,
lot area, setbacks, open space, parking and building coverage requirements for such statutorily
protected uses. On this basis, we approve the new Section 10.5.1.
Note: Pursuant to G.L. c. 40, § 32, neither general nor zoning by-laws take effect unless the town
has first satisfied the posting/publishing requirements of that statute. Once this statutory duty is
fulfilled, (1) ~eneral by-laws and amendments take effect on the date that these posting and
publishing requirements are satisfied unless a later effective date is prescribed in the by-law, and
(2)zonin by-laws and amendments are deemed to have taken effect from the date they were voted
by Town Meeting, unless a later effective date is prescribed in the by-law.
Very truly yours,
MAURA HEALEY
ATTORNEY GENERAL
_ ~*~~
by: Kelli E. Gunagan, Assistant Attorney General
Municipal Law Unit
Ten Mechanic Street, Suite 301
Worcester, MA 01608
(508)792-7600
cc: Town Counsel Paul R. DeRensis
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