The Marion Zoning Board of Appeals postponed taking a final vote on the Tabor Academy light tower proposal in order to seek advice from town counsel regarding the Dover Amendment.
Under Massachusetts General Law, the Dover Amendment exempts agricultural, religious, and educational institutions from certain zoning restrictions.
The board took up the proposal by Tabor Academy to install five 90-foot high light towers at their athletics field on the village campus. After Chairman Marc Leblanc acknowledged that he and board member Betsy Dunn could not vote that evening, he opened up the discussion to the full board.
Member Tad Wollenhaupt led the methodical review of the six criteria the board uses when contemplating a Special Permit: considering if the proposal fulfilled any social, economic, or community needs – the board agreed it did not.
There was more discussion with regard to the question of traffic flow and safety. ZBA member Michelle Smith appeared to believe that traffic would be increased by night games, remarking, “I feel, having games that are lit, more people are going to show up. … I don’t have a magic ball [but] it’s more inviting.”
Leblanc supported Smith’s idea that there was potential for increased safety issues with increased parking and loading.
“If there’s an apartment building we can gauge the number of cars,” said LeBlanc. “This is wide open.”
The rest of the board felt it was not an issue, observing that the use of the field would be similar to what it already has been.
Everyone agreed to the adequacy of utilities and services, but hit a snag on the question of neighborhood character and social structures. Leblanc noted that the school is located in a neighborhood, affecting the feel of the area, and the larger the school becomes, the more it impacts the character of the neighborhood.
Remarking on the effect of the brilliant lights, member Kate Mahoney said, “You’re going to see these lights from a far distance, lit up or not. [They] don’t fit into the character and social environment. Residentially, there is nothing like it.”
ZBA member Bob Alves observed that these events have been going on for years, to which Mahoney replied, “Yes, without lights!”
Wollenhaupt pointed out that the lights are designed to have minimum light creep, but acknowledged that the towers are still 90 feet tall. Mahoney described the towers as “trying to hide an elephant in a corner.”
The board dispensed quickly with the last two questions of impacts on the natural environment and fiscal impacts to the town, citing little to no impact on either.
Leblanc expressed the overarching concern that the way Tabor describes the use of the towers now does not accurately reflect how they may be used in the future. Mahoney added that if the towers are built, all the restrictions imposed by the board will then need to be enforced, and the approval would be a slippery slope leading to other requests.
Wollenhaupt noted that Tabor could, by right, build 35-foot poles, which he surmised would be far worse, shining into neighbors’ homes and creating glare. ZBA member David Bramley remarked there would be many more 35-foot poles than the five 90-foot towers proposed. Mahoney countered that the 35-foot poles would be more in keeping with the scale of the village. Leblanc commented, “[I’d] hate to take a vote on something so [Tabor doesn’t] do something else.”
Smith reminded the board, with support from Mahoney, that in the past, if an application did not meet all the criteria, it did not get a Special Permit. Mahoney then asked the board to clarify its position on the Dover Amendment, which states in part that no zoning ordinance or bylaw … “prohibit, regulate or restrict the use of land or structures … for educational purposes … 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.”
Mahoney suggested that the educational status of Tabor gives this request “a special twist.” And while Leblanc remarked that he thought the board was done with this particular issue, Wollenhaupt stated that Town Counsel Jon Witten had advised that the question to consider was, did the athletic fields fulfill an educational purpose?
Mahoney made a motion that the Dover Amendment did not apply to this proposal, but it failed with a vote of 3-2, with Wollenhaupt, Alves, and Bramley voting no. Mahoney then sought to clarify the vote.
Wollenhaupt stated he believed the towers provide an educational opportunity.
Mahoney, who appeared frustrated and uncomfortable with the decision, predicted, “This changes everything. I think they just got their lights. I don’t know what to do next. I need legal guidance.”
Leblanc said he didn’t think this meant they had carte blanche on everything, but Mahoney disagreed, saying, “I think it’s a slippery slope – potential extensions are enormous.”
Smith appeared to agree, saying, “[This] changes how they can approach things. … Once we say this and use this for this [it] allows it for the next thing they present.”
After an extended silence, Leblanc expressed a concern about moving forward without legal counsel, saying, “My gut is that we don’t decide if the Dover Amendment applies. We discuss it. It would come into play if we decide against [the proposal]. The Dover Amendment would come into play in court.”
Mahoney made a motion to nullify the previous vote on the Dover Amendment so legal questions could be asked, to be voted on at a later date, which passed unanimously.
Mahoney lamented, “The problem is we look indecisive.”
The next meeting of the Marion Zoning Board of Appeals is scheduled for October 4 at 7:30 pm at the Marion Town House.
Marion Zoning Board of Appeals
By Sarah French Storer