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Rogers v. Town Of Norfolk8/29/2000
Norfolk.
February 7, 2000.
Child Care Facility. Zoning, By-law, Validity of by-law or ordinance, Child care facility. Municipal Corporations, By-laws and ordinances. Statute, Construction.
Civil action commenced in the Superior Court Department on September 25, 1995.
The case was heard by Paul A. Chernoff, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
The case was submitted on briefs.
We transferred this case to this court on our own motion to decide whether a provision of the zoning bylaw of the town of Norfolk that restricts the so-called footprint of a child care facility to 2,500 square feet is valid in light of G. L. c. 40A, Sect. 3, third par., which limits a municipality's ability to subject child care operations to requirements contained in zoning ordinances and bylaws. The plaintiff proposed to convert her single-family residence in Norfolk, which has a "footprint" of approximately 3,200 square feet, into a child care facility. We conclude that the questioned provision is valid on its face, but that, as applied to the child care facility that the plaintiff intends to set up, the provision presents problems that should be resolved in her favor to allow the use.
The background of the case is as follows.
The plaintiff is a well-credentialed early childhood educator, who has owned and operated two group child care centers, one in Millis (licensed for thirty-nine children) since 1986, and one in Medway (licensed for sixty-nine children) since 1990. After receiving requests to consider opening a child care center in Norfolk, the plaintiff began looking for a possible site in the town.
The plaintiff selected (and jointly purchased with her husband) property at 197 Seekonk Street, in Norfolk, with the intention of operating a child care facility on the premises. The plaintiff's property is located in the R-3 district of the residential zone, and contains 58,791 square feet, which exceeds the minimum R-3 lot size of 55,000 square feet. The structures on the property include a one-story residence that has an attached garage and sunroom. The total footprint of the residence, including the attached garage and sunroom, is 3,169 square feet. The property also contains a two-story garage and a two-story barn, both of which are detached.
The residence is located in the rear portion of the property, with the barn and detached garage on the right. The principal entrance faces the rear of the lot. A U-shaped drive circles the residence, and there is a curb cut at each end of the drive. With the exception of the back of the premises, the residence is screened by trees, by the other structures on the land, and, to some extent, by existing topography. The closest neighboring residences are 140 feet, 155 feet, and 170 feet away. The residence was originally built as a dog kennel, and later was converted into a single-family residence. Due to the original design of the residence, the rooms are unusually large.
The plaintiff indicated that she and her husband purchased the property because many of its features, including its circular drive, large rooms in a single-story residence, and exterior buffers, provided a good setting for child care. In the residence, only about 1,700 square feet can qualify as usable child care space under the office of child care services licensing guidelines, which is enough to serve approximately forty-five children at a time.
Norfolk's schedule of uses allows child care facilities in all of the town's districts. The zoning bylaw defines a "child care facility" as " day
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