 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Rogers v. Town Of Norfolk8/29/2000
r requires a special permit (or other local approval) for, child care facilities, a matter not in issue, or that the provision acts in such a way as to nullify the protection granted by G. L. c. 40A, Sect. 3, third par., to child care facilities, the precise matter in issue. See Trustees of Tufts College v. Medford, supra at 758, 765; The Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19, 32-33 (1979).
The plaintiff's contention is based on the principle that a court may strike down Norfolk's "use specific" provision as facially invalid, if, after some showing by her that the provision imposes a greater restriction on child care facilities than on other uses, Norfolk fails to offer a reason for the disparate treatment satisfactory to the court, even though the reason is well established as a justification for the exercise of local zoning regulation. This approach is wrong. A challenged provision in a zoning bylaw is presumptively valid, and a challenger bears the burden to prove otherwise. See Johnson v. Edgartown, 425 Mass. 117, 121 (1997). There is no basis to assume that G. L. c. 40A, Sect. 3, third par., was intended to grant child care facilities such a measure of heightened protection that Norfolk is required to prove that the footprint provision was not intended to be discriminatory. Nothing in the language of G. L. c. 40A, Sect. 3, third par., requires local officials to treat a child care facility the same as a residential use, or makes unlawful the adoption of a provision in a zoning bylaw that differentiates between building coverage requirements applicable to child care facilities and other uses. Indeed, there is indication that the Legislature, in enacting G. L. c. 40A, Sect. 3, second par., authorized municipalities to impose regulatory measures on educational and religious uses, in order to protect the character and well-being of established neighborhoods, as long as "the regulation will not seriously jeopardize the mission of the protected institutions." 1972 House Doc. No. 5009. See Trustees of Tufts College v. Medford, supra at 770 (Appendix). Further, the Legislature contemplated that a municipality could permissibly adopt zoning restrictions specifically tailored to the protected use. As is stated in the legislative report that gave rise to the power of a municipality to regulate a use protected by the Dover Amendment: "Ideally, [municipal restriction] should be accomplished by adopting regulations specifically designed to apply to uses protected by the Dover Amendment located in otherwise restricted zones, thus avoiding the problem of attempting to apply the same bulk regulations to the protected uses as ordinarily apply to other permitted uses in the zone" (emphasis original). Id. at 771. In the absence of clear legislative directive to the contrary, a court should not stray from the mandates of settled law and strip a zoning provision of its presumption of validity because the provision imposes greater restrictions on child care facilities than on other uses.
The proper test for determining whether the provision in issue contradicts the purpose of G. L. c. 40A, Sect. 3, third par., is to ask whether the footprint restriction furthers a legitimate municipal interest, and its application rationally relates to that interest, or whether it acts impermissibly to restrict the establishment of child care facilities in the town, and so is unreasonable. The provision is facially valid under this test. The judge properly concluded, on the only evidence before him, that the purpose of the provision was to ensure that the size of child care facilities did not detract from Norfolk's predominantly residential character by inserting in residential zones particularly large structur
Page 1 2 3 4 5 6 7 8 9 Massachusetts Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|