In his Sept. 5 decision, Land Court Judge Kevin T. Smith interpreted the so-called Dover Amendment (G.L. c. 40A, § 3) to reject the town of Oak Bluffs’ attempt to protect the sole-source aquifer serving the Island. At issue before Judge Smith was whether the town’s water-protections bylaw required a special zoning permit before the high school could replace natural grass on the playing fields with artificial turf.
The Dover Amendment has a long history in Massachusetts law. Its origins lie in a 1933 dispute in Dover, when that town limited the construction in a residential district to a single-family dwelling, a church, or an educational facility. In 1950, the commonwealth adopted the language of this zoning law for the entire state.
The amendment reads “no zoning ordinance” may “restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions, or bodies politic, or 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” (emphases added).
After 73 years, the law is long past its time for a major overhaul. The Oak Bluffs planning board sought to ensure the purity of the Island aquifer when it cited the potential threat to Vineyard residents and visitors alike should per- and polyfluoroalkyl substances (PFAS) toxic chemicals seep into it through artificial turf. As written, the Dover Amendment fails to address a serious threat to human health and the environment. It is unremarkable to note that the Island needs special protection when its sole source of groundwater is imperiled.
In court, the town claimed that the use of synthetic materials on the fields presented a hazard to the entire Island, because scientific studies show PFAS to be dangerous to human health. The Environmental Protection Agency notes that some of these chemicals “do not break down in the environment, can build up in living things, and can adversely impact human health and the environment.” Oak Bluffs argued that the requirement of a special permit was based on the amendment’s citation of the terms “reasonable regulations” and “open space.” An open space defines a playing field, and the danger to the water source was a reasonable regulation.
The high school committee objected on two grounds. The first was that synthetic turf will have a de minimis effect on the environment and human health. The proposed builder of the field would “make sure the materials are safe and of the highest quality.” Second, the committee contended the town lacked authority under the Dover Amendment to require it to seek a special permit. After the high school submitted an application for a permit, the planning board rejected it this past May. The high school appealed to the Massachusetts Land Court.
In rejecting the town’s position, Judge Smith explained that the “reasonable regulations” affect only those “that control the size, shape, and location of buildings that may be part of an educational use.” This includes “open space,” which includes only “a dimensional limitation on an educational use.” Those who wrote the law did not intend to implicate the substantive dangers of PFAS chemicals, which were found to be toxic only in the 1970s.
Many Vineyard residents have followed this saga since 2021, when the Martha’s Vineyard Commission, by a 10 to 6 vote, approved the request by the Martha’s Vineyard Regional High School Committee to place synthetic materials on athletic fields. The commission gave the high school a two-year window to begin construction. With time running out, the high school committee requested an extension, which the commission approved in August.
Judge Smith looked to the legislative intent of the statute’s words, and ruled against the town. He ordered the parties to work together to devise a joint status report, due to his court within 30 days of his decision (Oct. 4). He interpreted the words of the statute narrowly by determining the meaning of the words at the time the law was enacted, and no further. This is certainly a legitimate way to undertake statutory interpretation.
But not the only way.
The judge might have come to a different conclusion had he studied the legislative history of the Dover Amendment. How and why did it come about in the 1930s? How and why was it amended in 1946? What changes, if any, were made in its final issuance, four years later? What did the legislators in the Massachusetts assembly argue about the amendment? What testimony did they hear from witnesses? What documents were available from experts? Perhaps someone raised issues concerning human health. We don’t know from Judge Smith’s opinion.
It is not the duty of the judiciary to update legislation from 73 years ago, even if PFAS chemicals were unknown, and their impact on human life and public health were unknowable in 1950. But Judge Smith made no attempt to determine what legislators, their witnesses, and documents concluded from so long ago. It might have been a worthwhile endeavor before he made his decision.
As others have suggested, it is time for the Massachusetts legislature to update the Dover Amendment. A revised law will better protect Martha’s Vineyard’s sole-source aquifer for the safety and health of residents and visitors alike.
Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for more than 40 years.
