Massachusetts Law Review

Zoning: The Dover Amendment

Martin v. The Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints

In Martin v. The Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints1 the Massachusetts Supreme Judicial Court again weighed in on the scope and applicability of the Dover Amendment, which exempts religious uses and structures from certain local zoning restrictions.2 While this decision in itself may not be surprising or groundbreaking, the decision rearticulated with vigor the judiciary's role in religious matters, and rekindled the long-standing debate in Massachusetts over whether the Dover Amendment is an accommodation to the First Amendment's right of free exercise of religion or a breach of its establishment clause.


In 1996, the Church of Jesus Christ of Latter-Day Saints proposed to build a 94,000-square-foot temple, having a roof height of 58 feet, and six spires and towers on top of temple, ranging in height from 24 feet to 98 feet.3 The proposed temple, which was to be constructed on a 9-acre parcel of land in Belmont, fully complied with the town of Belmont zoning bylaw (the "bylaw") except with regard to the height of the proposed spires. Under the bylaw, the church had the right by special permit to construct spires on top of the temple with a height of only 11 feet, 2 inches.4 The church applied to the town of Belmont Zoning Board of Appeals (the "board") for a determination that (i) the height requirements contained in the bylaw did not apply to the spires pursuant to the Dover Amendment, and, in the alternative, (ii) to obtain a special permit, as permitted under the bylaw, for the construction of the spires.5 While the church's application was pending before the board, but before the board issued its decision, the church submitted a revised proposal, reducing the area of the temple to 68,000 square feet, with a roof height of 56 feet and containing only one 83-foot-high steeple on top of the roof.6

After numerous public hearings, the board decided in 1997 that the proposed spire was reasonable "as a Dover type regulation of height," and, therefore, exempt from the relevant height regulations.7 The board at the same time also granted the church a special permit, based on the board's determination that the spire's benefits to the town outweighed any adverse effects on the town.8

Four neighbors of the proposed temple challenged the board's decision by appeal to the Superior Court. While the church contested the standing of the neighbors to bring their appeal, both the Superior Court, and ultimately the Supreme Judicial Court, determined that at least one of the plaintiff-neighbors had standing because of the extreme "visual impact" of the proposed steeple, a concern which the bylaw required be taken into consideration by the board.9

In a lengthy and sometimes shockingly blunt decision, the Superior Court stated that the Dover Amendment did not apply to the construction of the proposed spire because it was not a "necessary element of the Mormon religion" and did not aid in the Mormon's system of faith because (i) the presence or height of the temple spire was not a matter of religious principle or doctrine; (ii) religious activities would not take place in the spire; and (iii) the church members' ability to practice their religion did not depend on the height or presence of the spire.10 The Superior Court further found that even if the Dover Amendment was applicable, the church had failed to meet its burden to show that the height restriction was unreasonable as applied to the proposed steeple.11


On appeal to the Supreme Judicial Court (SJC), the court found significant flaws in the Superior Court's determination as to the applicability of the Dover Amendment in general, as well as its application of the Dover Amendment to the specific facts presented.

The Dover Amendment states, in relevant part,

No zoning ordinance or By-law shall . . . prohibit, regulate or restrict the use of land or structures for religious purposes . . . 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.12

The SJC began its dissection of the Superior Court's decision by reiterating its opinion in Trustees of Tufts College v. Medford13 that the Dover Amendment applies to religious use of land or structures as a whole, and not to religious use of an element or part of a structure.14 The Court found that "[t]o view each element, each section of a 'structure,' as requiring an independent 'religious' use leads to impossible results: Is a church kitchen or a church parking lot a 'religious' use ?"15 The religious use of the proposed spire, therefore, should not be viewed separately from the proposed use of the temple, even though the temple, save for the proposed steeple, had been fully constructed by the time of the Superior Court's decision.16

Second, the SJC noted that the Superior Court erred in determining that the structure did not serve a "necessary element of the Mormon religion,"17 because the Superior Court could not, according to the SJC, enquire beyond whether the structure served a religious purpose, necessary or otherwise.18 The court's determination that temples "are places where Mormons conduct their sacred ceremonies" was the correct and only inquiry that should have been made by the Superior Court.19 To do otherwise, according to the SJC, would impede upon the church's First Amendment protections.20

Next, the SJC rejected the Superior Court's determination that the bylaw's height requirements were not unreasonable with regard to the proposed use and concluded that the Superior Court erred in considering only "whether the height restriction prevented or diminished the temple's religious usefulness."21 The SJC stated that a requirement could be deemed unreasonable if it (i) detracted from the usefulness of a structure; (ii) imposed excessive costs; or (iii) impaired the character of the proposed structure.22 Focusing on whether the height restriction impaired the character of the structure, the SJC stated that the trial judge was required to take into consideration the "special characteristics" of the use and confirmed that aesthetics and architectural beauty, attributes mistakenly dismissed as irrelevant by the Superior Court, are appropriate factors to be considered in determining whether restrictions would impair the character of the proposed exempt use.23 The Dover Amendment, according to the SJC, prohibits the application of a zoning requirement that would "'disturb the sense of a building's continuity' and ruin its 'architectural integrity.'"24 The SJC further stated that while religious doctrine and symbolism may be relevant in determining the special character of a use, it is not the central test, and it is not appropriate for the judiciary to determine what is or is not religious doctrine.25 The SJC found ample evidence within the record, which was uncontroverted at the trial, that the temple was constructed on a prototypical architectural design used throughout the country by the church. The design used by the church, in addition to other attributes, includes one or more steeples incorporating the church's regard for the "ascendancy of space" for religious ceremonies performed in temples.26 Based on these facts, the SJC found that the steeple was clearly "integral to the specific character of the contemplated use."27

The SJC concluded its discussion by agreeing with the local zoning board that the application of the bylaw's height restriction to the proposed steeple served no municipal concern, and that the exemption sought by the church was reasonable in light of the significance of the steeple itself and in conjunction with the temple as a whole.28

Religious Land Use and Institutionalized Persons Act of 2000

As important as what the SJC decided in Martin, is what it did not decide. Specifically, because the SJC found in favor of the church and ruled that the Dover Amendment precluded the application of the height regulation, it deferred consideration of the church's contention that the height restriction as applied to the steeple violated the uncharted waters of the federal Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).29

RLUIPA, which was enacted in response to the United States Supreme Court's decisions declaring unconstitutional the Religious Freedom Restoration Act (RFRA), prohibits government from imposing or implementing "a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest."30 To avoid questions regarding Congress' authority to pass laws such as RLUIPA, a problem that contributed to the quick demise of RFRA, Congress limited the scope of RLUIPA to situations where the substantial burden "(A) . . . is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability; (B) . . . affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian Tribes, even if the burden results from a rule of general applicability; or (C) . . . in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved."31

RLUIPA also expressly prohibits the implementation of any land use regulation that (i) "treats a religious assembly or institution on less than equal terms with a non-religious assembly or institution;" (ii) "discriminates against any assembly or institution on the basis of religion or religious denomination;" (iii) "totally excludes religious assemblies from a jurisdiction;" or (iv) "unreasonably limits religious assemblies, institutions, or structures within a jurisdiction."32

Although the federal courts have not yet either embraced or given last rites to RLUIPA, its potential to wreak havoc with zoning and land use regulations is clear and has the potential to quickly overshadow the conventional Dover Amendment debate in Massachusetts. Land-use laws, especially historic-preservation laws, which appear to fall within the jurisdiction of RLUIPA, are not often found by the courts to serve a compelling governmental interest.


Peter A. Spellios

1. 434 Mass. 141 (2001).[back]

2. Mass. Gen. Laws ch. 40A § 3 (second paragraph) (2003).[back]

3. Martin v. Board of Appeals of the Town of Belmont, No. 97-2596, Slip op. at 8 (Mass. Sup. Ct. Feb. 22, 2000).[back]

4. See id. at 9.[back]

5. See id. at 7-8.[back]

6. Id. at 8.[back]

7. Martin v. The Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 144, 144 (2001).[back]

8. See id. The board relied on § 7.4.2 of the Town of Belmont Zoning bylaw in making this determination. Id. at 144 n.9.[back]

9. Id. at 146.[back]

10. Martin v. Board of Appeals of the Town of Belmont, No. 97-2596, slip op. at 29 (Mass. Sup. Ct. Feb 22, 2000).[back]

11. Id. (citing Trustees of Tufts College v. Medford, 415 Mass. 753, 757 (1993)).[back]

12 Mass. Gen. Laws ch. 40A, §3, para. 2.[back]

13 415 Mass. 755, 755 (1993) (holding that a parking garage was for educational use because it was located in the "core area" of the campus).[back]

14. See Martin, 434 Mass. at 149.[back]

15. Id. at 150.[back]

16. Id. at 149 n.18 Only the proposed steeple was pending before the board and the Superior Court. Id. at 149.[back]

17. Id.[back]

18. Id. (citing to Employment Div., Department of Human Resources of Oregon v. Smith, 494 US 872, 887 (1990) ("we have warned that courts must not presume to determine the place of particular belief in a religion or the plausibility of a religious claim.")).[back]

19. Martin, 434 Mass. at 150.[back]

20. Id.[back]

21. Id. at 151.[back]

22. Id. (citing Trustees of Tufts College v. Medford, 415 Mass. 753, 759-60 (1993)).[back]

23. Id. (citing Tufts, at 758-59, and Campbell v. City of Lynn, 415 Mass. 772, 778 (1993)).[back]

24. Id. at 152 (citing Petrucci v. Board of Appeals of Westwood, 45 Mass. App. Ct. 818, 826-27 (1998)).[back]

25. Id. at 152-53.[back]

26. Id. at 152.[back]

27. Id.[back]

28. Id. at 153.[back]

29. 42 U.S.C. 2000cc (2003).[back]

30. 42 U.S.C. 2000cc(a)(1). See City of Boerne v. Flores, 521 U.S. 507 (1997) (declaring RFRA unconstitutional).[back]

31. 42 U.S.C. 2000cc(a)(2) (emphasis added). See Boerne, 521 U.S. at 532 (holding RFRA was improper under §5 of the Fourteenth Amendment to the United States Constitution, the jurisdictional basis on which Congress passed RFRA, because it was "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections.").[back]

32. 42 U.S.C. 2000cc(b).[back]

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