Rogers v. Town Of Norfolk8/29/2000
care center or school age child care program as those terms are defined in G. L. c. 28A, Section 9[ ]; provided that the ground area covered by the BUILDING in which such business is located does not exceed 2,500 square feet." The term "ground area" is synonymous with footprint. Members of the planning board of Norfolk, who were on the board at the time that the zoning bylaw was amended to include this definition, testified (and the judge accepted their testimony) that the purpose of the footprint limitation was to allow child care facilities, but to regulate their size to ensure consistency with the size of residential structures. (It is important to state here that ninety-five per cent of the town is residentially zoned, and, of the approximate 2,300 houses in Norfolk, the "footprint" of the average sized house is a little under 1,700 square feet.) Because the footprint of the plaintiff's residence (3,169 square feet) exceeded the footprint permitted for child care facilities in the zoning bylaw (2,500 square feet), the plaintiff was informed by the building commissioner, and, subsequently, the zoning board of appeals, that she could not obtain a building permit, or other zoning approval, to use her residence as a child care facility.
The plaintiff commenced an action in the Superior Court, which, as far as now relevant, sought a declaratory judgment that the provision of the zoning bylaw imposing a footprint limitation on a child care facility was unlawful. After a bench trial, a judge in the Superior Court concluded that the provision was facially valid, but invalid as applied to the plaintiff's proposed use. This appeal followed. The sole issue concerns the validity of the footprint provision in the bylaw in light of G. L. c. 40A, Sect. 3, third par.
1. Although we have never examined G. L. c. 40A, Sect. 3, third par., we have had occasion to interpret analogous language, set forth in G. L. c. 40A, Sect. 3, second par., inserted by St. 1975, c. 808, Sect. 3 (Dover Amendment), affording educational and religious institutions protection from local zoning regulation. See Campbell v. City Council of Lynn, 415 Mass. 772 (1993); Trustees of Tufts College v. Medford, 415 Mass. 753 (1993). In Trustees of Tufts College v. Medford, supra at 757-758, we held that " ocal zoning requirements adopted under the proviso [amendment allowing 'reasonable regulations'] to the Dover Amendment which serve legitimate municipal purposes sought to be achieved by local zoning, such as promoting public health or safety, preserving the character of an adjacent neighborhood, or one of the other purposes sought to be achieved by local zoning as enunciated in St. 1975, c. 808, Sect. 2A, see MacNeil v. Avon, 386 Mass. 339, 341 (1982), may be permissibly enforced, consistent with the Dover Amendment, against [a protected] use . . . so long as the provision is shown to be related to a legitimate municipal concern, and its application bears a rational relationship to the perceived concern. On the other hand, a zoning requirement that results in something less than nullification of a proposed educational use may be unreasonable within the meaning of the Dover Amendment." (Citations omitted.) A Dover Amendment type analysis, like that used in the Tufts decision and related cases, as encapsulated in the quotation from Tufts, formed the basis of the judge's decision. We agree that such an analysis is appropriate here.
The plaintiff argues that the footprint limitation is facially invalid, because the limitation unlawfully discriminates against child care facilities, in contradiction of the language and purpose of G. L. c. 40A, Sect. 3, third par. She may prove this claim by showing that the provision either prohibits, o
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