 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Rogers v. Town Of Norfolk8/29/2000
As far as the justification for the bylaw, the trial judge found, and Norfolk does not dispute, that the purpose of the bylaw was to "protect and preserv the rural character and aesthetics of Norfolk's residential zones."
I agree that the preservation of the aesthetic qualities of a residential neighborhood is not, by itself, an unreasonable basis for a discriminatory bylaw. However, Norfolk should be required to offer some reasonable basis for restricting the footprint of only child care facilities. Norfolk should be required to offer some rational reason why limiting the size of only structures used for child care facilities will preserve the rural character of its residential neighborhoods, while at the same time allowing larger structures used for other purposes. In my view, only if there is some rational reason why limiting the size of only child care facilities, and not other buildings, preserves the rural character and aesthetics of the town can the bylaw survive.
I conclude that Norfolk has not offered a rational reason for its discriminatory treatment of child care facilities. First, the goal of preservation of the rural character of the residential zones is generally not served by applying a dimensional regulation to commercial or business zones. Second, 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.
The court states that child care facilities would conceivably generate more traffic and more noise, thus disrupting residential neighborhoods. However, the Legislature was presumably aware of this when it enacted the law permitting child care facilities to operate as of right in every zone. Furthermore, if limiting traffic and noise by limiting the size of a structure is a reasonable basis for discriminating against the protected use, then what is to prevent a community from enacting an even smaller footprint restriction. Under the court's reasoning, as long as one or more structures in the community is not excluded from use by the bylaw, or as long as there is one or more buildable lots in the community, see ante at , then the bylaw would be facially valid. Although property owners may always challenge the validity of a bylaw as applied to their particular proposed facility, I cannot agree that requiring them to resort to the courts in almost every instance accords with the intent of the Legislature in enacting G. L. c. 40A, Sect. 3, third par.
Furthermore, under the court's logic, churches and schools, which are at least as disruptive to a residential zone as a child care facility, may similarly be limited and for the same reason. This, I believe, is directly contrary to our case law. In Sisters of the Holy Cross of Mass. v. Brookline, 347 Mass. 486, 494 (1964), interpreting the precursor to G. L. c. 40A, Sect. 3, second par., we stated that we thought "it unlikely that the Legislature would exempt religious and educational institutions from local regulations of use and at the same time permit this exemption to be virtually nullified by a requirement that such institutions construct their buildings on dimensions applicable to single family houses." If a community may not impose the same residential dimensional regulations to educational and religious uses, which are protected to the same extent as child care uses, why should a community be permitted to impose more restrictive dimensional regulations?
Because Norfolk has not offered a reasonable justification for a bylaw that discriminates against child care uses of
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.
|
|