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Rogers v. Town Of Norfolk8/29/2000
. The dissent also finds fault with the provision because it does not apply to other uses in the residential zone. It proceeds on the assumption that the goal of preserving the rural character of residential zones is not met by restricting the footprint of only child care facilities while at the same time allowing structures not used for child care purposes to exceed the footprint restriction imposed on child care facilities.
Both generalizations are inaccurate. Large structures on land zoned for commercial or business uses might very well have a negative impact on an adjacent residential neighborhood, especially if the neighborhood were physically surrounded by commercial or business districts. In addition, there are valid aesthetic reasons why the town might desire to restrict the size of a child care facility, but not other uses, within its residential districts. A child care facility is, after all, a commercial use, and the only commercial use allowed within the town's residential districts.
Further, the hypothetical problems envisioned by the dissent raise only chimerical situations. Our holding will have no effect on the status and rights of churches or educational institutions that, as we have indicated, are separately protected by legislation and established case law. Thus, it makes no sense to suggest that the town might impose small footprint requirements on churches or schools just to keep residential neighborhoods "rural." Of equally dubious relevance are the following statements in the dissent: "whether the size or style of a structure conforms to the aesthetics of the neighborhood is unrelated to the use of that structure. If indeed footprint limitations equal 'ruralness,' then all structures in the neighborhood that is sought to be preserved should be similarly limited." Post at . Ignoring the nonsequiturs implicit in the statements, we emphasize that the whole point of Norfolk's provision is to allow the presence of a single type of commercial use in residential neighborhoods, where the footprints of virtually all existing structures are 2,500 square feet or less, thus tending to mitigate the effects that the commercial use will have on the neighborhoods by reason of size, traffic, signage, noise, outside activities and the like (all these considerations being common to child care facilities). The plaintiff has made no showing that child care facilities cannot be established in buildings in Norfolk within the footprint requirement, and what may go on in other buildings in other zones is beside the point. The dissent overlooks the fact that the exercise of zoning authority calls for balancing rights or privileges of use with the character of neighborhoods, a task which necessarily calls into play issues of size, location, setback, traffic, and the sundry other matters addressed in local land use and zoning bylaws and ordinances. The fact that, in the dissent's opinion, Norfolk could have enacted a provision that would have better served the town's interests, has no place in an analysis, under G. L. c. 40A, Sect. 3, third par., of the validity of the provision that Norfolk chose to adopt. See Trustees of Tufts College v. Medford, 415 Mass. 753, 760 (1993).
In sum, the provision is presumed to be valid, and the plaintiff must demonstrate that it is not.The test is not the other way around. The provision is within the authority granted to a municipality by the Legislature in G. L. c. 40A, Sect. 3, third par., and in conformance with the legislative suggestion that municipalities design regulations that specifically apply to Dover Amendment uses as distinguished from more general restrictions that apply to all uses including Dover Amendment uses. We conclude that the provisio
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