Litigation brought by Fruitlands Museum against Harvard’s Zoning Board of Appeals (ZBA) prompted Town Counsel Mark Lanza to offer a possible solution to the dispute by proposing new museum provisions to Harvard’s zoning regulations. “If this passes [at Town Meeting], litigation is likely to be moot,” Lanza said when he unveiled the first draft of the bylaw amendments at the January 8 meeting of the Planning Board. Fruitlands Museum attorney Robert D. Cox, speaking the next day from the Worcester office of Bowditch and Dewey, characterized the proposal as “an avenue toward resolving the conflict.”
The heart of the dispute
Lanza summarized the differing stances of Harvard’s ZBA and the museum, which first surfaced during special permit hearings for Fruitlands’s right to host special functions where food and liquor are available. Litigation pivots on the question of the property’s use. Lanza remarked, “We’re saying [the museum as it exists today] is a prior nonconforming use that has expanded by special permits. Fruitlands’s position is that it is an exempt use, because it is educational.” The status, nonconforming or exempt, determines whether Fruitlands Museum must apply to the ZBA for special permits to continue or expand its current use, or whether it can instead be governed under rules applying to so-called exempt uses of the land.
—Mark Lanza,
Town Counsel
By local and state zoning law, educational entities are “institutional uses,” exempt from many zoning regulations. Parks, churches, charities, and cemeteries are some of the entities on Harvard’s exempt list. Exempt, though, does not mean unregulated. By state law, the uses are subject to “reasonable regulation” concerning bulk and height of structures, lot area, setbacks, open space, parking, and wetlands. With an educational status, the museum would be regulated according to these more flexible regulations that apply to all exempt uses, rather than by locally granted special permits. Harvard’s ZBA, however, denies the museum’s educational status, either by Harvard’s definition, or by the definition supplied by the state zoning law, Chapter 40A, Section 3.
A proposed solution
The best way to resolve the “significant difference” between Fruitlands and Harvard’s ZBA, Lanza said, is to add provisions to Harvard’s zoning bylaw that would “make Fruitlands Museum a conforming use,” rendering the litigation “moot.” To go forward, the provisions must be accepted as warrant articles by the Planning Board and Board of Selectmen, aired at a Planning Board hearing, and approved by the Annual Town Meeting March 31.
In addition to a hoped-for end to the lawsuit, the provisions would fill gaps in current bylaws, which neither include a definition of a museum, nor specify a museum as an allowable, institutional use of a property. For the definition, Lanza turned to Webster’s dictionary—standard practice in the absence of case-law definition, he explained—and offered this: “Museum: a building or institution owned and operated by an educational, literary, and benevolent organization where objects of artistic, historical, or scientific importance and value are kept, studied, and put on display.”
According to Lanza, language in the provisions focuses narrowly on Fruitlands Museum, referring to an “on-site eating establishment with a capacity of not more than 100 and/or an on-site social function facility with a seating capacity of not more than 180.” In addition, alcoholic beverages cannot be served within 1,000 feet of any residential building.
Planners and audience react
Responding to a query from planner Joseph Sudol, Lanza stated that, under the new bylaw provisions, “the eating establishment would not be an accessory use, but one fundamental to operating the museum.” When planner Kara Minar asked about the effect on future or existing museums, Lanza responded, “This is meant to apply to Fruitlands only.” From the audience, Tim Clark, a resident of Bolton Road and a member of the Town Center Planning and Master Plan Implementation committees, asked, “If the old library became a museum and had a function hall, would it be an allowable use, by right?” “That’s not allowed,” Lanza replied.
Interviewed the day after the hearing, Planning Board Chairwoman Mary Essary said that her first impression of the bylaw was that it could be useful now and in the future. “Because museums aren’t significantly mentioned in Harvard’s bylaw, it’s hard to say how they’re regulated. You’re in a gray area. If we introduced language governing museums, at least we’d have a reference point. Harvard could deal more easily with variances and special requests that might come up in the future for museums.”
ZBA Chairman Chris Tracey and officials at Fruitlands declined comment for this article.
Proposed provisions for a museum bylaw will be discussed beginning at 8 p.m. at the Planning Board’s January 22 meeting, at the library.
