Rogers v. Town of Norfolk

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 “nullifies] the protection granted by G. L. c. 40A, § 3, third par., to child care facilities,” ante at 378, and is therefore facially invalid. I therefore respectfully dissent.

*386The 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 379. In light of the purpose of G. L. c. 40A, § 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, § 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-l, C-l, and C-4 have any footprint restrictions. These restrictions are substantially larger and most are subject to override by a *387special permit process.1 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[e] 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 neighbor*388hood 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 380 n.ll, 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, § 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, § 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?2

Because Norfolk has not offered a reasonable justification for *389a bylaw that discriminates against child care uses of property, I would hold the bylaw facially invalid.

The bylaws provide for the following footprint size limitation in the B-l district:

“No Building FOOTPRINT, other than a GROCERY STORE, Municipal BUILDING, or VARIETY STORE, shall exceed 8,000 square feet except by Special Permit. No GROCERY STORE or VARIETY STORE FOOTPRINT shall exceed 45,000 square feet except by Special Permit. No municipal BUILDING FOOTPRINT shall exceed 20,000 square feet except by Special Permit. Upon issuance of a Special Permit from the Zoning Board of Appeals, no building FOOTPRINT other than a GROCERY STORE, Municipal BUILDING or VARIETY STORE shall exceed 15,000 square feet, no Municipal BUILDING FOOTPRINT shall exceed 30,000 square feet, and no GROCERY STORE OR VARIETY STORE FOOTPRINT shall exceed 50,000 square feet.”

The bylaws provide for the following footprint size limitation in the C-l and C-4 districts:

“No BUILDING FOOTPRINT, other than MANUFACTURING or Offices, shall exceed 50,000 square feet except by Special Permit by the Zoning Board of Appeals.”

I recognize that communities may, and are encouraged to, enact bylaws that apply specifically to child care, or other protected uses. I do not think, however, that communities may discriminate against a protected use in the absence of a reasonable basis for the discrimination. See 1972 House Doc. No. 5009; Trustees of Tufts College v. Medford, 415 Mass. 753, 771 (1993) *389(Appendix) (stating that municipalities should adopt 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 used as ordinarily apply to other permitted uses in the zone” [emphasis original]).