Two city councilors are revisiting the call to seek an exemption to a state mandate that eases restrictions on certain nonprofit organizations, allowing them to avoid many local zoning laws and set up shop in what some consider mismatched residential neighborhoods.
Councilor at-large Morris A. Bergman and District 1 Councilor Anthony J. Economou sponsored a request that was adopted at the March 15 City Council meeting, according to the official minutes, for the city to provide further legal opinion “as to regulating non-profit social service agency day uses in a proposed Dover Exclusion Home Rule Petition.”
In an effort that began a year ago, Bergman and Economou want Worcester to adopt a home-rule petition similar to the one Cambridge enacted in 1981 to address concerns surrounding Harvard University, which would give the city more control over the siting of certain kinds of nonprofits.
The Dover Amendment is a Massachusetts General Law allowing religious and educational institutions to site facilities without adhering to certain zoning laws. Zoning restrictions, in fact, may be imposed so long as the restrictions do not unduly hinder the religious or educational use. The eight possible restrictions cover: bulk of structures, height of structures, yard sizes, lot area, setbacks, open space, parking and building footprints.
“When you buy a house in a residential neighborhood you have an expectation that the houses to the right and left of you and across the street from you will remain residential,” Bergman said. “And if not you will be notified that someone is applying to the zoning board for a special permit to open a business. That allows you to go to the zoning board meeting and make your objection.”
The home-rule petition, which would eventually have to be approved by the state legislature, is a pending item for the council’s Rules and Legislative Affairs Committee. It was originally filed in March 2015 and held for consideration last July.
City Solicitor David M. Moore expressed concerns then that the city would be on shaky legal ground and may see little tangible benefit to neighborhoods with a Dover exemption.
In a communication from Moore to City Manager Edward M. Augustus Jr. in March 2015, Moore said that even if Worcester were to be granted the home rule petition, or if the Dover Amendment was ever repealed statewide, Worcester likely would leave itself vulnerable to discrimination violations and “… there would be little if any impact on the location of educational, social service facilities in residential areas of the city of Worcester.”
For now, finding a sweet spot for the restrictions, so to speak, is the goal.
“What we’re asking for is if we’re still able to restrict social service agencies from moving into a neighborhood where people with disabilities are only in a day program and not sleeping there,” Bergman said. “We’re trying to maximize as many restrictions as we can so that people have to go through zoning without running afoul of federal law.”
“We want to know what we’re allowed to do and what we can do to [make] the process more public so people know what’s going on,” Economou said. “Right now, the city has no oversight whatsoever.”
Councilor at-large Khrystian E. King is chairman of the rules committee and did not respond to multiple phone and email messages. The three-councilor panel has no scheduled meetings, per the city website; met only twice last year and once each of the two years prior; and has 60 other items pending on its docket.
New council rules of order allow the full council to vote to move an item out of committee due to inaction and put it back on the agenda of the full body. There was no such vote at the last council meeting.
“That’s one of those frustrating situations that should be rectified by our new council rules, which say that if an item is held for 90 days or longer, a council by majority can vote to take it out of committee if the committee chairperson doesn’t do so themselves,” Bergman said.
“I’m confident and optimistic it will be voted out of committee. I’m hopeful my colleagues will be supportive of it. The stronger the vote, the more likely our state delegation will be successful pushing it through the state legislature.”
State Sen. Michael O. Moore, D-Worcester, sponsored a petition that was referred to committee last April to establish a commission to study the Dover Amendment. He was joined by Reps. Mary S. Keefe, D-Worcester, Kate D. Campanale, R-Worcester, and Daniel M. Donahue, D-Worcester, among others.
The measure was originally scheduled for a July 2015 hearing but has been on the back burner since.
According to Moore’s spokesman Zachary Tsetsos late last week, “We checked directly with the Joint Committee on Economic Development and Emerging Technologies and were advised that the bill was sent to a study.”
The senator said he has spoken with Bergman but wants to wait and see how the city would implement its home-rule petition before deciding whether to support the councilors’ efforts.
“Depending on how strict the city gets with the implementation of their home rule will determine on whether or not I’m in favor of it,” Moore said.
Moore said the impetus behind his support of the proposed commission is, indeed, concern that the amendment is being taken advantage of by nonprofits that fit the letter but not the spirit of the law.
“I don’t think it’s ever actually been studied to see how the Dover Amendment has impacted our communities. That’s the importance of the bill — to come in and see how the communities have dealt with its impact and what other institutions besides colleges and universities,” Moore said.
To quell rampant real estate acquisition and expansion by Harvard University in the late 1970s, Cambridge designated certain locations where Dover protection could be superseded by the local zoning board.
Bergman said: “The current law basically says nonprofits can set up anywhere in any municipality. Cambridge said we don’t like the city laws as they apply to the state, and we want to make our own law and make these agencies have to go through zoning.”
Due to federal law, there are certain limitations to the proposed home rule petition, including that the city can’t place zoning restrictions on housing for individuals with disabilities.
“There’s legalities around this not just at the state, but at the federal level. We want to see what Cambridge has done and what we can do here to mimic what they’ve done,” Economou said.
“Anyone can start a nonprofit organization and say they want to buy a house and start a program. When asked what the education proponent of the program is, they could say, ‘We’re teaching them how to brush their hair or how to brush their teeth,’ and that’s all they need to do.”
According to a fiscal 2015 summary of the state’s gateway cities, 31 percent of Worcester property is tax-exempt and 48 percent of that is owned by nonprofit organizations (leaving most of the rest for the government). That gives Worcester the highest rate of tax-exempt land of any gateway city in Massachusetts, and a rate higher than Boston’s.
According to the state Department of Revenue, the value of Worcester’s tax-exempt land in 2014 was $4.92 billion. City Assessor William J. Ford said if that property were taxed the city would theoretically collect an additional $121 million annually.
While the proliferation of nonprofit agencies clearly impacts the tax rolls, the city attempts to offset such financial concerns with its PILOT, or payment-in-lieu-of-taxes, program. Several of the city’s colleges, like UMass Medical School, WPI and Clark University, have signed long-term voluntary agreements to make earmarked payments to support city services, such as the library, public safety or items specific to their neighborhoods.
Though Bergman said he supports any PILOT agreement that results in money coming back to the city, he said the purpose of his and Economou’s proposal is to help residential areas in Worcester to stay residential, and also to prevent universities and social services agencies from purchasing homes in neighborhoods which the city then can’t tax.
“When a nonprofit moves into a neighborhood, just because something can be described as a nonprofit doesn’t change the outlook of the neighbors. It changes the character of the neighborhood,” Bergman said.
“It’s our position that we need to move forward on this before a nonprofit gets into a dicey situation in a neighborhood. Then we bring the amendment up again and the nonprofit’s argument is going to be that we’re only looking to stop them.”
Bergman points to a protracted battle in Framingham, where beginning in 2013 Walden Behavioral Care planned to purchase an existing building and locate an 80-bed eating disorder treatment center in a residential neighborhood. Residents, with multiple court actions pending, prevailed in their opposition in October 2014 when the nonprofit scrapped its plans
“We’ve got to advance this before any particular nonprofit waiting in the wings is ready to establish themselves in a residential neighborhood. Otherwise, we’re going to have a big problem,” Bergman said.