PS 09-402299

July 27, 2010


Long, J.



At issue in this case is a desire by the plaintiff, O’Brien Homes Inc., to subdivide and develop 189 acres of land in an Outlying District off Howard Street in Lunenburg. O’Brien submitted a definitive subdivision plan to the town’s planning board proposing 135 single-family residential building lots on the 189 acres, each approximately 40,000 square feet in size. The board rejected the plan, citing, among other reasons, its failure to comply with section 5.6 of the town’s zoning bylaws. That section (entitled “cluster development”), in relevant part, requires that any proposed development of single family homes in a subdivision of 25 acres or more in an Outlying, Residence A or Residence B District designate at least 50% of its land as permanent open space (in which case, in an Outlying District, a minimum lot size of 30,000 square feet is permitted) [Note 1] or, in lieu of such development, use lots of at least five acres with no more that one dwelling per lot. Protective Bylaw of the Town of Lunenburg, § 5.6.3.

O’Brien appeals the rejection of its definitive subdivision plan under two theories. The first (count one) is an appeal under G.L. c. 41 § 81BB, contending that the board’s disapproval was arbitrary, capricious, and exceeded the board’s authority. The second (count two) is a G.L. c. 240 § 14A challenge to the validity of § 5.6, contending that it violates the zoning act (G.L. c. 40A) in several ways, is arbitrary and unreasonable both on its face and as applied in this case, and creates an unconstitutional taking of land under both the Massachusetts and United States Constitutions. [Note 2]

The town and the planning board disagree. In their view, O’Brien’s subdivision plan violated multiple provisions of the town’s zoning bylaws and subdivision rules and regulations and thus was properly rejected. With regard to count two, they contend that § 5.6 of the bylaw is valid under both the zoning act and the Constitution and its application in this situation does not constitute a “taking.”

O’Brien (for its part), and the town and board (for theirs), have now filed cross motions for partial summary judgment as to count two, the validity of § 5.6. For the reasons that follow, the defendants’ motion for partial summary judgment on that count is ALLOWED and the plaintiff’s DENIED. Section 5.6 is a reasonable provision that serves a legitimate government purpose, does not conflict with any statute or law, is not a “taking,” and is therefore valid both on its face and as applied.

The Summary Judgment Standard

Summary judgment, governed by Mass. R. Civ. P. 56(c), is appropriately entered, and may only be entered, when there are no genuine issues of material fact on the claims put in issue by the motion and the moving party is entitled to judgment on those claims as a matter of law. Mass. R. Civ. P. 56(c); Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002). A fact is genuinely in dispute only if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). [Note 3] Material facts are those that might affect the outcome of the case under the governing law. Id. at 248. [Note 4] Here, with respect to count two, there are no material factual issues in dispute between the parties and the validity of § 5.6 of Lunenburg’s zoning bylaw may be decided as a matter of law.


The following facts, as well as those additional ones set forth in the analysis section, are not in genuine dispute.

On or about April 3, 2008, plaintiff O’Brien Homes Inc. filed an application for approval of a preliminary subdivision plan with the Town of Lunenburg’s planning board. That plan showed a conventional (non-cluster) subdivision of 135 house lots on 189 acres of land on the north side of Howard Street in an area located in the town’s Outlying Zoning District. [Note 5] O’Brien proposed to construct a four-bedroom home on each of those lots, with appurtenant on-site private water and septic systems. The area is not served by municipal water or sewer and there are no plans to extend such services to that area.

On August 11, 2008, the board voted to approve the preliminary plan. It noted, however, that “the preliminary submittal does not reflect Protective Bylaw of the Town of Lunenburg, Section 5.6 Cluster Development” and stated that the plan “in the definitive stage” would be reviewed under that section. Preliminary Plan Approval, Findings at 1, ¶ 6, Directives for Preparation of a Definitive Plan at 1, ¶ 1 (Aug. 11, 2008).

On February 25, 2009 O’Brien filed a definitive subdivision plan for the same project, again showing a conventional subdivision in substantially the same form and layout as its preliminary plan. Each of the 135 lots shown on the plan is at least 40,000 square feet in size, which O’Brien says is necessary for a four-bedroom house to comply with Title V requirements for septic systems. After holding a public hearing, the planning board denied approval of the definitive plan in a written decision filed on May 19, 2009. The board’s reasons for disapproval included, among others, the plan’s failure to comply with § 5.6 of the zoning bylaws. That section provides, in relevant part: In a Residence A, Residence B, or Outlying District, where Subdivisions, Planned Residential and Mixed Residential lots or exclusive use areas proposed to be developed with single family dwellings consist of twenty-five (25) acres or more, the following conditions must be met, pursuant to approval of a Definitive Plan in accordance with the Rules and Regulations Governing the Subdivision of Land, adopted by the Lunenburg Planning Board.

5.6.3 a) Dwelling units shall be developed on a maximum of fifty percent (50%) of the land within the development, with the remaining fifty percent (50%) of the land being designated as permanent open space. Not more than ten percent (10%) of the open space shall consist of wetlands or land under water or land with a slope in excess of fifteen percent (15%).

b) In lieu of Cluster Development as shown above (5.6.3.a), a site can be developed in lots with a minimum of five (5) acres each, each lot may have no more than one (1) dwelling.

5.6.4 a) The minimum dimensional area for each dwelling shall be as follows:

1. Residence A and Outlying Districts: 30,000 square feet [Note 6]

2. Residence B: 60,000 square feet

b) All other Dimensional Regulations for the District in which the land is located shall apply.

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b) Land designated as open space shall be limited to the following uses:

1. Agriculture, farming, and/or the keeping of horses and grazing of animals as permitted by this Bylaw.

2. Passive or active recreation.

Section 5.6 — an outgrowth of the town’s 1989 Growth Management Plan — was proposed by the planning board in 1997, adopted at the annual town meeting that same year, and subsequently reviewed and approved by the Attorney General. Vote of Annual Town Meeting on Article 19, certified May 10, 1997; September 5, 1997 Letter to Town Clerk from the Office of the Attorney General. Its goal, as reflected in its heading, is to encourage cluster development. The purpose of cluster development, as stated in the bylaw, is “to encourage the preservation of useable open space, agricultural lands, and forested lands in the Town of Lunenburg and assist in preserving the Rural Residential Character of the Town.” Bylaw, §

Since 1998, the town has had approximately 17 traditional subdivisions, Planned Residential Area subdivisions, or condominium unit developments proposed (not including the development at issue in this lawsuit), the largest being approximately 58 single-family units. Approximately 719 single family and condominium units were permitted in those developments between 1998 and 2009. In each of the 23 developments since 1986, the single-family homes proposed to be developed were no larger than three bedrooms and the condominium units predominately one and two bedrooms. According to census data cited in the town’s Strategic Planning Grant Report (1989), the average household size in Lunenburg declined from 3.52 in 1960, to 3.37 in 1970, and 2.97 in 1987, tracking a national trend toward smaller households.


Standard of Review

G.L. c. 240, § 14A allows challenges to both the facial validity of a bylaw and to its validity and interpretation as applied to a proposed use of a particular parcel of land. Banquer Realty Co. v. Acting Bldg. Comm’r, 389 Mass. 565 , 570 (1983). “Every presumption is to be afforded in favor of the validity of an ordinance and if its reasonableness is fairly debatable the judgment of the local authorities who gave it its being will prevail. It will be sustained unless there exists no substantial relation between it and the expressed purposes of the statute. Conversely, it will be held invalid if it be arbitrary or unreasonable, or substantially unrelated to the public health, safety, convenience, morals or welfare. The burden is on the petitioner to show that the by-law is in conflict with the enabling act or with applicable statutory provisions.” Anderson v. Wilmington, 347 Mass. 302 , 303 (1964) (internal citations and quotations omitted). “From the wide scope of the purposes of the Zoning Act (G.L. c. 40A), it is apparent that the Legislature intended to permit cities and towns to adopt any and all zoning provisions which are constitutionally permissible, subject only to limitations expressly stated in that act or in other controlling legislation.” Zuckerman v. Town of Hadley, 442 Mass. 511 , 515 (2004) (internal citations and quotations omitted). The analysis is thus two-tiered and on each level is deferential to the bylaw in question.

First, is the bylaw inconsistent with state law? “As a general proposition the cases dealing with the repugnancy or inconsistency of local regulations with State statutes have given considerable latitude to municipalities, requiring a sharp conflict between the local and State provisions before the local regulation has been held invalid. The sharp conflict necessary to repugnancy appears when either the legislative intent to preclude local action is clear, or, absent plain expression of such intent, the purpose of the statute cannot be achieved in the face of the local by-law.” Rogers v. Provincetown, 384 Mass. 179 , 181 (1981) (internal citations and quotations omitted).

Second, is the bylaw constitutionally permissible? As noted above, the test for this is whether the bylaw is “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. More specifically, due process requires that a zoning bylaw bear a rational relation to a legitimate zoning purpose. In our review, we make every presumption in favor of a zoning bylaw, and we measure its constitutional validity against any permissible public objective that the legislative body may plausibly be said to have been pursuing. If its reasonableness is fairly debatable, a zoning bylaw will be sustained.” Zuckerman, 442 Mass. at 516 (internal citations and quotations omitted).

Conflict with State Law

O’Brien contends that § 5.6 is in conflict with three sections of the Zoning Act (G.L. c. 40A), first, as a regulation of the interior area of a single family residential building in violation of G.L. c. 40A § 3, second, as contrary to the uniformity within zoning districts requirement of G.L. c. 40A § 4, and third, as a violation of G.L. c. 40A § 9 because it effectively makes clustering mandatory rather than simply an alternative to conventional subdivision. I disagree. As explained more fully below, I find no “sharp conflict” between these, or any other, sections of the Zoning Act that would invalidate § 5.6.

O’Brien’s argument that § 5.6 impermissibly regulates the interior of single-family residential dwellings in violation of G.L. c. 40A § 3 goes as follows. O’Brien wants to build 135 four-bedroom homes. Since the property will not be serviced by municipal water or sewer, on-site wells and septic systems are necessary. Constructing central facilities capable of serving the entire subdivision is considered (by O’Brien) too expensive. Thus, each lot will have its own septic system, and perhaps its own well. Title V requires at least 40,000 square feet for a septic system serving a four bedroom house. Thus, if four bedroom houses are built, the reduced lot size of 30,000 square feet (what O’Brien characterizes as the quid pro quo for the bylaw’s open space requirement) cannot be used. This inability to take advantage of the smaller lot size, concludes O’Brien, amounts to an impermissible regulation of the interior area of his intended homes. But the flaw in this argument is obvious. There is no prohibition on four bedroom homes in the bylaw, either express or by unavoidable effect. O’Brien may build four bedroom homes. But it now has a choice — actually, three choices. It can develop the 189 acres in separate subdivisions, each of less than twenty-five acres (avoiding § 5.6 entirely). It can build central water and sewer facilities, eliminating the need for 40,000 square foot lots. Or it can put its four bedroom homes on 40,000 square foot lots. If this last is the option chosen, there will be fewer than the 135 homes O’Brien wants, of course, but this does not make § 5.6 invalid. “It may well be that the zoning bylaw does not permit the petitioners to realize maximum profits from the use of their land, but this is not sufficient cause to invalidate it.” Anderson, 347 Mass. at 304.

O’Brien next contends that § 5.6 conflicts with G.L. c. 40A § 4 because it only applies to subdivisions twenty-five acres or larger. This argument fails for two reasons. First, it misconceives G.L. c. 40A § 4, which only requires that “[a]ny zoning ordinance or bylaw which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted.” G.L. c. 40A § 4. This uniformity requirement “is based upon principles of equal treatment: all land in similar circumstances should be treated alike” and is primarily meant to prevent “conferral on local zoning boards of a roving and virtually unlimited power to discriminate as to uses between landowners similarly situated.” SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 107-08 (1984). Here, § 5.6 applies uniformly throughout Outlying, Residence A and Residence B Districts to all subdivisions larger than twenty-five acres to be developed with single family homes. Second, it misconstrues the power of localities to create distinctions. Here, the distinction is between subdivisions larger, and subdivisions smaller, than twenty-five acres. The test for the validity of this distinction is whether it serves a legitimate zoning purpose and is rationally based. Zuckerman, 442 Mass. at 516. In light of the town’s objective to preserve open space and rural character, both of which are legitimate zoning goals, that test is clearly met. See id. at 517 n. 14. Section 5.6 represents the town’s judgment that, in this context, the size of a subdivision matters; more particularly, that the development of large areas is of such significance to the town that it requires specific provision for the preservation of open space, and that smaller subdivisions — proposed, reviewed and developed one by one — are less likely (1) to need or consume as much open space, and (2) to impact the overall character of the town. [Note 7] Whether this is true in actual practice may be debatable, but the debate is a fair one and the town wins those debates. Zuckerman, 442 Mass. at 516. Moreover, the town’s clustering incentive (allowing 30,000 square foot lots if clustering is used) is a fair response to the loss of buildable land, particularly when 30,000 square foot lots will allow the construction of three bedroom homes on each, the census data shows an average household size in Lunenburg of only 2.97 persons, and none of the twenty-three single-family home subdivision developments since 1986 has proposed or built a home larger than three bedrooms.

Finally, O’Brien contends that § 5.6 is inconsistent with G.L. c. 40A, § 9 because it effectively requires cluster development rather than permitting it. But this argument fails, for two reasons. First, § 5.6 does not require clustering. It is simply an alternative to a minimum lot size of five acres. [Note 8] Second, G.L. c. 40A gives broad powers to municipalities to adopt “any and all zoning provisions which are constitutionally permissible,” subject only to limitations expressly stated in that Act. Sturges v. Chilmark, 380 Mass. 246 , 253 (1980). There is nothing in the language of G.L. c. 40A, § 9 that makes its clustering provisions exclusive, nor is the purpose of allowing cluster developments impeded by § 5.6 (the test for pre-emption).

Constitutional Validity

O’Brien contends that § 5.6 is arbitrary, unreasonable, and does not further a legitimate zoning purpose. Again, this is incorrect. The stated purpose of § 5.6 is to “encourage the preservation of useable open space, agricultural lands, and forested lands…and assist in preserving the rural residential character of the town.” Lunenburg Bylaw § “A municipality may enact zoning provisions to deal with a variety of matters, including…density of population and intensity of use; the adequate provision of water, water supply, and sewerage; the conservation of natural resources; and the prevention of pollution of the environment.” Sturges, 380 Mass. at 253. Lunenburg has a long history of planning to promote these legitimate zoning purposes, including growth management plans, that culminated in the approval of § 5.6.

The court in Zuckerman recognized the pressures faced by rural towns confronted with development and ruled that a zoning bylaw adopted for the purpose of limiting the rate of growth for an indefinite or unlimited time period is “inherently and unavoidably detrimental to the public welfare, and therefore not a legitimate zoning purpose.” Zuckerman, 442 Mass. at 518. In so ruling the court struck down a Rate of Development Amendment to Hadley’s zoning bylaw restricting the number of building permits issued each year to a developer of lots held in common ownership, requiring development to be spread over a period of up to ten years. Id. at 512. In striking down Hadley’s bylaw, however, the court explicitly recognized the town’s right to preserve its character by adopting bylaws that “limit growth by physically limiting the amount of land available for development” by adopting cluster zoning “or any other measure permitted by statute.” Id. at 517-18 (emphasis added).

Because § 5.6 is reasonable, within the very broad test used to judge the reasonableness of a bylaw, the fact that, as O’Brien suggests, there may be better means of achieving Lunenburg’s goals does not prevent the town from using this one. A bylaw is not unconstitutional “merely because the evidence of record suggests…that the means to achieve the statutory end is rough, illogical, or not the best available.” Shell Oil Co. v. City of Revere, 383 Mass. 682 , 687 (1981). Moreover, O’Brien’s contention that the cluster requirement of § 5.6 does not effectively encourage cluster development fails to recognize that three-bedroom homes are the norm in Lunenburg.

Fundamentally, O’Brien objects to § 5.6 because it will not permit him to build 135 four bedroom homes on this property in a single subdivision. But this does not make the bylaw unreasonable as applied. See Anderson, 347 Mass. at 304. O’Brien has no as-of-right entitlement to the most economically beneficial use of its land. See Penn. Cent. Transp. Co. v. New York City, 438 U.S. 104, 125 (1978). It can still be subdivided and developed by meeting the requirements of § 5.6 (resulting in either smaller or fewer homes), or by re-planning its development into separate subdivisions of less than twenty-five acres.

Taking of the Plaintiff’s Property

O’Brien contends that because a four bedroom home without access to the town’s water and sewers requires a minimum of 40,000 square feet to support an adequate well and septic system, § 5.6 is not an exchange of open space requirements for lot size reductions but instead effectively a taking of land by regulation. Again, this is incorrect. O’Brien is merely prevented from developing the land into 135 40,000 square foot lots. “A reduction in the number of houses that an owner may build is a diminution in value and not a taking.” FIC Homes of Blackstone, Inc. v. Conservation Comm’n of Blackston, 41 Mass. App. Ct. 681 , 694 (1996); see also Leonard v. Brimfield, 423 Mass. 152 , 156 (1996) (economic loss not severe where owner prevented from constructing houses on more than half her acreage). Regulations may “deprive an owner of a beneficial property use – even the most beneficial such use – without rendering the regulation an unconstitutional taking.” Lovequist v. Conservation Comm’n of Dennis, 279 Mass. 7 , 19 (1979) (citing Penn Cent. Transp. Co., 438 U.S. at 123-28). Moreover, none of the land required to be left undeveloped as open space must be transferred to the town. O’Brien continues to own it, and the bylaw permits him to use it for “agriculture, farming, and/or the keeping of horses and grazing of animals” or, in the alternative, for “passive or active recreation.” Bylaw, § 5.6.5 (b). These are neither illusory nor unreasonable; the land is currently used as an egg farm, and there is nothing to prevent a continuation of that use in the open space required.


For the forgoing reasons, § 5.6 of the Lunenburg bylaw is valid on its face and as applied. Accordingly, the plaintiff’s motion for summary judgment on count two of its complaint is DENIED and the defendant’s motion for summary judgment on that count is ALLOWED. SO ORDERED.

By the court (Long, J.)


Deborah J. Patterson, Recorder

Dated: 27 July 2010


[Note 1] If the clustering option is used in Residence A Districts, lots may be as small as 30,000 square feet; if in Residence B Districts, the minimum lot size is 60,000 square feet.

[Note 2] The complaint also contains a third count, alleging that certain actions of the town’s planning board director “limited plaintiff’s access to various town boards, deprived plaintiff of due process and were otherwise conducted in bad faith” (Joint Case Management Statement at 1-2 (Jul. 22, 2009)), but O’Brien subsequently stipulated that that count was not intended to be a separate cause of action. Rather, it was intended only to assert “bad faith” in the context necessary to recover costs against the town pursuant to G.L. c. 41, § 81BB. Notice of Docket Entry (Oct. 1, 2009).

[Note 3] See also Reardon v. Parisi, 63 Mass. App. Ct. 39 , 40 (2005) (factual disputes must be based on a “rational view of the evidence”); Goulart v. Canton Housing Auth., 57 Mass. App. Ct. 440 , 441 (2003) and cases cited therein (same).

[Note 4] See also Hogan v. Riemer, 35 Mass. App. Ct. 360 , 364 (1993) (“For purposes of judging whether summary judgment ought to have been granted, the existence of disputed facts is consequential.only if those facts have a material bearing on disposition of the case. The substantive law will identify whether a fact, in the context of the case, is material.”) (internal citations omitted).

[Note 5] The land is currently an egg farm.

[Note 6] The zoning bylaw in effect at the time of the plan submissions generally required a lot size of 40,000 square feet per dwelling in the Residence A and Outlying Districts and 80,000 square feet in the Residence B Districts. Bylaw §

[Note 7] The differences between several smaller and one large subdivision were highlighted at oral argument. Because of Lunenburg’s subdivision rules and regulations applicable to subdivision roads (particularly their restrictions on cul-de-sacs), less open space is likely to be built open if development occurs in the context of smaller subdivisions. Also, separate, self-contained subdivisions are considered to have a more village-like feel than a massive subdivision, and thus more in keeping with the town’s rural character.

[Note 8] I recognize that five acre zoning goes beyond the largest minimum lot size currently upheld by the appellate courts. See Johnson v. Edgartown, 425 Mass. 117 (1997) (three acres). But, as in Johnson, in the “special circumstances” of this case (see discussion above), the five acre zoning provision “has not been shown to be arbitrary and unreasonable or substantially unrelated to the public health, safety and general welfare.” Id. at 125.