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Rogers v. Town Of Norfolk8/29/2000
es. As both parties acknowledge preservation of the residential character of neighborhoods is a legitimate municipal purpose to be achieved by local zoning control. See Trustees of Tufts College v. Medford, supra at 757-758. In view of the fact that ninety-five per cent of the land in Norfolk is residentially zoned, the provision clearly is a reasonable accommodation between the need to establish child care facilities and the need to preserve the predominant nature of Norfolk's residential zones, a matter of serious concern to the town. See id. at 760. The provision focuses on the fact that child care facilities are commercial enterprises, and thereby have a greater potential than residential uses to disrupt, or detract from, the town's tranquility. A child care facility of larger dimensions will likely generate more traffic and create more noise, all of which may have greater impact on a town composed mainly of single-family homes.
We reject the plaintiff's assertion that restricting a child care facility to a structure with a footprint equal to, or less than, 2,500 square feet, unreasonably prohibits the use of buildings in Norfolk for child care facilities, and so nullifies the protection granted by G. L. c. 40A, Sect. 3, third par. There are two principal reasons why this claim is rejected. First, ninety per cent of the 2,300 residences in Norfolk fit within the footprint restriction (the footprint of the average sized property is a little under 1,700 square feet) and, as has been indicated, ninety-five per cent of the town's land is residentially zoned. Second, in the zones other than residential (business, commercial, and "health maintenance and professional office"), which comprise the remaining five per cent of the land in Norfolk, the provision in issue does not prohibit the operation of a child care facility in a building having a footprint equal to, or less than, 2,500 square feet. Moreover, the uses allowed by Norfolk's zoning bylaw in the town's nonresidential zones are of a type that would ordinarily not be expected to contain, or be suitable for, a child care facility. Included among these uses are bus or railway stations; restaurants; retail stores; office buildings; manufacturing facilities; and service establishments like beauty salons, dry cleaners, and various kinds of repair shops. The provision does not prohibit new construction of a child care facility in any zone. Thus, the factual, on the ground, character of Norfolk's residences and structures allows for child care facilities in virtually all of the town's buildings where a child care use would be expected or feasible. Because child care facilities by their nature are different from churches or educational institutions, and may tend to be more ubiquitously located, it cannot be persuasively argued that a regulation that permits such facilities in all but a small fraction of the town's buildings, is unlawful. Finally, the provision could not be enforced to prevent a child care facility in a church or educational institution, which are separately protected by the provisions of G. L. c. 40A, Sect. 3, second par., for all uses related to their primary missions.
We reject the contention in the dissent that there is no reasonable justification for the footprint restriction, because it does not serve the stated purpose of preserving the rural character of residential neighborhoods. The dissent reasons, in effect, that the provision is invalid because it is both over, and under, inclusive. First, the dissent objects to the fact that the provision applies to all of Norfolk's use districts, and concludes that the goal of preservation of residential zones is not served by applying a dimensional regulation to commercial or business zones
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