Rogers v. Town Of Norfolk8/29/2000
zed proof" as to cost of compliance is not required in every case. As we made clear in the language of the Tufts decision, id. at 759-760, set forth above, proof of cost of compliance is only one way to show the unreasonableness of applying an otherwise valid regulation to a particular property. See Campbell v. City Council of Lynn, 415 Mass. 772, 778 (1993). When the record satisfactorily demonstrates, as it does here, that the application of the footprint requirement to the plaintiff's property would significantly impede the use of the premises as a child care facility, while not substantially advancing a valid goal of Norfolk's zoning regulation, the provision is unreasonable as applied. See id. at 779.
Judgment affirmed.
IRELAND, J. (dissenting, with whom Spina, J., joins). Because Norfolk's bylaw subjects child care uses to a more restrictive footprint limitation than other uses, and because Norfolk does so in the absence of any reasonable basis for such discriminatory treatment, the bylaw "nullif the protection granted by G. L. c. 40A, Sect. 3, third par., to child care facilities," ante at , and is therefore facially invalid. I therefore respectfully dissent.
The court states that the appropriate test to determine the facial validity of Norfolk's bylaw is "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." Ante at . In light of the purpose of G. L. c. 40A, Sect. 3, third par., which was to encourage the availability of child care facilities, see Petrucci v. Board of Appeals of Westwood, 45 Mass. App. Ct. 818, 822-823 n.7 (1998), I believe that test is incomplete. In keeping with the purpose of the statute, a municipality should not be able to discriminate against child care uses of property unless there is a reasonable basis for the discriminatory treatment. Thus, a bylaw that is specific to child care uses and subjects the use to more restrictive regulation than other uses permitted in the zone, without a reasonable justification for that discriminatory treatment, should be invalidated. Cf. Trustees of Tufts College v. Medford, 415 Mass. 753, 757 (1993) (Dover Amendment intended to "strike a balance between preventing local discrimination against an educational use . . . and honoring legitimate municipal concerns"); The Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19, 30-31 (1979) (consistent with G. L. c. 40A, Sect. 3, town may regulate bulk of buildings and impose dimensional and parking requirements, but may not "through the guise of regulating bulk and dimensional requirements under the enabling statute, proceed to 'nullify' the use exemption").
Applying the above analysis, I conclude that the Norfolk bylaw discriminates against child care uses and that Norfolk has not offered a reasoned basis for that discriminatory treatment. First, as Norfolk's 2,500 square foot limitation applies only to child care uses, Norfolk's bylaw is use specific. Second, the bylaw subjects child care uses to discriminatory treatment. Norfolk limits child care facilities to buildings with footprints of 2,500 square feet or less, and this limitation applies across all of Norfolk's use districts. No other use is subjected to such a universal and uniform limitation. Of the thirteen various residential, business, commercial, and health maintenance and professional office use districts in Norfolk, only districts B-1, C-1, and C-4, have any footprint restrictions. These restrictions are substantially larger and most are subject to override by a special permit process.
Page 1 2 3 4 5 6 7 8 9 Massachusetts Employee Leasing Services
Employee Leasing Services
|