MISC 73276

June 9, 1978

Middlesex, ss.

Fenton, J.


This is a complaint brought under the provisions of G. L. c. 240, § 14A and c. 185, § 1(j 1/2) by the owner of a freehold estate in possession in land to determine the validity of a provision of the zoning by-law of the Town of North Reading, as it affects said land.

Plaintiff alleges that it is a corporation duly established under Massachusetts law; that it is the owner of land in North Reading described in a deed from Irene A. Pistone, dated January 3, 1972, recorded in Middlesex South District Registry of Deeds, Book 12137, Page 19, and in a deed from Adrian C. Nelson, dated January 7, 1972, and recorded in said Registry in Book 12139, Page 409; and that the total area of the two parcels is approximately 73 acres. Plaintiff contends that, at the time of purchase, its land was located in a Residence R district, except for a small portion in an adjoining Residence A district, and that the minimum area requirements for both districts was 40,000 square feet with a minimum lot frontage of 160 feet. Plaintiff further alleges that, under Articles 4 and 5 for the warrant of the town meeting of the defendant and at the adjourned sessions thereof, defendant voted to amend its existing zoning by-law and map by revising and adding to existing classifications and by altering district boundary lines; [Note 1] that these changes were approved by the Attorney General, with a minor deletion, on or about April 5, 1973, and became effective May 8, 1973; and that as a result of these changes approximately 60 acres of plaintiff's land is designated Residence D, which mandates a minimum lot area of 120,000 square feet and a minimum lot frontage of 160 feet, and the remainder is in a Residence A district, which allows a minimum lot area of 40,000 square feet and a frontage of 160 feet.

Plaintiff contends that as a result of these changes its land has substantially diminished in value, and that its land and other land in the new Residence D district is indistinguishable from other land in North Reading, particularly land allowed by the town to remain in a Residence R district. Finally, plaintiff asserts that the minimum lot area requirement is invalid because it violates the Zoning Enabling Act's requirement of uniform classification; has no real or substantial relation to the public safety, health or welfare; is arbitrary and unreasonable; and deprives plaintiff of its property without due process of law.

Plaintiff prays that the court declare the minimum lot requirement of 120,000 square feet in a Residence D district invalid as it relates to plaintiff's land. Plaintiff also prays that the court ascertain which minimum lot area requirement, if any, applies to plaintiff's land under defendant's zoning by-law. In addition, plaintiff asks the court to interpret and determine the effect upon its land of two other provisions of defendant's zoning by-law: Sections 11.2C, allowing so-called cluster residential development on 60,000 square foot lots in a Residence D district, and 11.2J, which regulates development in wetland areas. [Note 2] Plaintiff also disputed the validity of the latter sections generally. It subsequently withdrew its challenge to those provisions in the abstract, but maintains its objection to the cluster zoning provision as applied to its own land.

In its answer, defendant admits most of the allegations of plaintiff's complaint, but denies that the Residence D district was arbitrarily drawn, or that its area requirements are unreasonable, lacking a relation to the public safety, health or welfare, or violates either the Zoning Enabling Act or the principle of due process of law.

The court in the presence of counsel viewed the rezoned land and its surrounding areas in North Reading.

On all the evidence, the court finds the following facts. Plaintiff corporation DiCenzo and Sons is a family business engaged in general contracting. In 1972, in an unusual venture for this business, plaintiff decided that it would be a wise investment to purchase two contiguous parcels of land located in the east central part of North Reading. On January 3, 1972, plaintiff purchased 65.3 acres of land from Irene A. Pistone for $48,000.00. Four days later, plaintiff purchased an adjoining 7.5 acre parcel of land from Adrian C. Nelson for $1,500.00. Plaintiff had planned to subdivide the land and, if economic conditions were favorable, to construct houses on the lots. Soon after its purchase of the land, plaintiff engaged the Somerville Engineering Corporation to prepare a feasibility study of the land. This study was completed on July 12, 1972, and advised that 41 houses could be constructed on plaintiff's land under the 40,000 square foot minimum area lot requirement in effect at that time. The plan was taken by the engineering firm to the North Reading Community Planning Commission, [Note 3] which suggested that percolation tests be performed on the land to determine its suitability for on-site sewerage systems. Several tests were done on the narrow strip of land north of Pleasant Street, but the results of those tests were not reported at trial. Subsequently, the Board of Health advised plaintiff to perform more extensive testing throughout its property but, since this would have necessitated crossing a 10 foot wide brook that was flowing freely at that time, plaintiff decided to postpone the tests until late fall, when the crossing would have been more practical. These tests were never performed for, in November, 1972, the Tryder Real Estate Agency notified plaintiff that the town had voted to rezone an area of land that included approximately 80% of plaintiff's property. The result of this rezoning was that plaintiff would be forced to subdivide its land into lots of at least 120,000 square feet.

Approximately one year after learning of the rezoning, an officer of the plaintiff met with representatives of the United States Soil Conservation Service, which had prepared and submitted to the town maps that described the soil conditions in North Reading and the resulting problems and limitations to be encountered in the construction of homes. The Service explained the interpretation of the maps and the basis for the various soil classifications. Plaintiff then applied to the town for a zoning variance and abatement of taxes, both of which were denied. After deciding to forego an attempt to persuade the town to amend the zoning by-law, plaintiff brought this suit on August 30, 1974, challenging the validity of the by-law. In 1975, several overtures were made by the town to purchase the land but, on June 16, 1975, the North Reading Conservation Commission wrote plaintiff that the citizens had voted negatively on that issue at a town meeting.

Creation of the Residence D district in October, 1972, was actually one part of a comprehensive rezoning of North Reading begun in 1970. The task of proposing revisions of the zoning by-law and map was delegated to the five member North Reading Community Planning Commission, two of whose members were engineers. The Commission revised old provisions of the zoning by-law and created several new classifications, its stated purpose being to remedy problems that had arisen with land under the old system and to allow the town more flexibility in assigning classifications to particular areas in the future. The Commission relied upon a variety of written material, including a flood plain analysis, natural resources inventory, sanitary land fill study, and a series of maps prepared by the Soil Conservation Service. A consulting engineering firm was retained. In addition, the Commission accepted recommendations by several citizen subcommittees, and held at least one public hearing prior to the town meeting. Several members also toured various areas of the town, including the present Residence D district. There was an attempt made by the Commission to apprise residents of its progress in advance of the town meeting. This was done by placing ads in local newspapers and encouraging the newspapers' coverage of deliberations, and by distributing literature to citizens at polling places.

When the Commission had completed work on its proposals, it presented them to citizens at four sessions of the town meeting. The changes were adopted in essentially two stages. First, voters approved the zoning classifications of Article 4. Next, under Article 5, these new classifications were applied to particular sections of town. For each proposed change, the Commission showed two slides simultaneously: one showed the area as then zoned, the other the area as it would appear if reclassified. Each voter was also given an outline containing identification of the parcels of land to be rezoned, the change proposed for each parcel, and a brief summary of the drafters' reasoning. The outline contained the following rationale for reclassification of the proposed Residence D district: "Soils: 73%-#3R-severe bedrock; 25%-#3W-severe wetness. In addition, 80% of the land has a slope gradient of 15% to 35% or greater, and the entire area is classed by the Soil Conservation Service as having severe limitations for the installation of water lines and utilities." During the meeting, Commission members gave additional oral explanations of each of the proposed reclassifications. With respect to the proposed Residence D district, residents were informed that one purpose of the 120,000 square foot requirement was to facilitate sewage disposal. It is less clear whether they were apprised of the land’s alleged surface drainage problem. Plaintiff presented a witness who had attended each session of the town meeting and who testified that the issue of surface drainage was never discussed. A member of the Commission testified that “statements were made” that the area was “wet,” and that “wet lands did have a vital function to flood control,” but there is nothing in the record to indicate that the Commission’s comments concerning drainage went beyond these general statements. Accordingly, the court finds that citizens were not told at the town meeting that one of the Commission's justifications for the Residence D district was a potential problem with surface water run-off.

Commission members testified and the court finds that, in classifying the plaintiff's land as Residence D, they were concerned basically with two problems. First, they feared that if a concentrated housing pattern were allowed, the amount of soil available to absorb water would be severely diminished, surface water run-off would be increased and flooding would result both in the present Residence D district and areas that lay in the path of the run-off. The construction of houses, driveways, and roads will always increase surface run-off, but the drafters felt the problem was particularly acute in this acreage because of its peculiar combination of characteristics: shallow bedrock, high water table, moderate slope, and channelling of a large quantity of water through a relatively narrow and very flat strip of land. It was also feared that many of these same factors would combine to create a second problem: inadequate sewage disposal. Commission members believed that the narrow layer of land overlying the bedrock would provide insufficient soil through which septic tank sewage could percolate. They feared that the unpurified sewage would become caught in crevices in the bedrock and, as it drained toward the Ipswich River, would contaminate land through which it travelled and perhaps pollute the river itself. To test the validity of these assertions, it is necessary to examine in more detail the land in North Reading generally, the new Residence D district, and plaintiff’s land.

North Reading is a town thirteen square miles in area located seventeen miles north of Boston. It is bordered by Reading, Lynnfield, Middleton, Andover and Wilmington. The population had increased very little in the five years prior to trial, having stabilized at about twelve thousand people, and it had recently decreased slightly. There is no community sewerage system in North Reading, so sewage is disposed of by means of on-site septic tanks. The town draws its water from three well fields; a fourth was being planned at the time of trial. Also under consideration was a plan to expand the town's water supply either by drawing water from the Ipswich River and pumping it into a holding reservoir, or by constructing a reservoir jointly with the Town of Lynnfield on the latter's land. The existing well fields are sufficiently distant from the Residence D district to be unaffected by that area's alleged sewage problem. Finally, it is pertinent to observe that substantially all of North Reading drains southward into the Ipswich River.

The Residence D district is 590.8 acres in size, excluding the approximately 45 acres occupied by Swan Pond. From about 1963 until its reclassification in 1972, the entire area had been zoned as a Residence R district. The district is undeveloped, except for some houses and summer camps near Swan Pond. There are three main brooks, which flow from the north, northeast, and east, and converge at the southwest corner of the district. A long segment of the southern boundary is marked by the course of the east-west brook. Approximately 640 acres are drained by this system, although this estimate includes land outside the Residence D district and excludes portions of land within it. A substantial part of the district including some water from Swan Pond, drains into these brooks; smaller portions of the land, primarily to the north and east, drain elsewhere. All three brooks pass at some point through plaintiff's property. After these brooks converge, the stream flows in a southwesterly direction, channelled under Lindor Road by culverts and merging with smaller tributaries until it ultimately reaches the Ipswich River. The strip of land across which the stream flows, particularly that critical drainage area lying south of the confluence and north of Swan Drive, is quite flat.

Plaintiff's property comprises 73 acres of land located at the western end of the Residence D zone. The property begins with a narrow, rectangular strip of land extending northward from the end of Pleasant Street, and then assumes a bulky, irregular shape. Approximately 80% of plaintiff's land is situated in the Residence D district; the remainder overlaps the zoning boundary into the surrounding Residence R district. Topographically, the land is composed of dense wood, rolling hills, and many surface boulders and outcrops of ledge. This composition is similar to that of the entire Residence D area. Plaintiff's land is almost entirely surrounded by swamp. The highest elevation on the land is 120 feet; the lowest, 80 feet.

In ascertaining the structure of the land, it is clear that the town relied in large measure on a series of maps produced by the Soil Conservation Service. Most of the maps used were submitted into evidence by the town in support of its by-law; one of the maps was submitted by the plaintiff. These maps and their accompanying narrative material describe the characteristics of the land and relate them to several aspects of home construction, including sewage disposal and surface water run-off. In the narrative material the Service cautions that the maps do not "eliminate the need for on-site investigations to determine conditions at a specific site." Furthermore, with respect to soil ratings for septic tank sewage disposal, the Service emphasizes that "it is assumed that house lots will be about one-half acre in size."

Exhibit No. 10, entitled "Soil Limitations for Home Sites," is particularly useful because it places the Residence D district in the context of the entire town. This map, when used with the zoning map, shows and the court finds that the Residence D district is strikingly uniform in composition; the whole area is severely limited by shallow bedrock and severe wetness. There are pockets of bedrock and wetness throughout the town, but these usually occur within areas of lesser limitation. Exhibits No. 29 and 32 focus on plaintiff's property and the court finds that all of its land within the Residence D district is characterized by either shallow bedrock or a high water table.

There appears to be nothing in the maps submitted by plaintiff to contradict these conclusions. Exhibit No. 26, a surficial geology plan, indicates and the court finds that plaintiff's land is composed almost entirely of glacial till and swamp, and the map's legend states that the till overlaps "relatively shallow bedrock." These findings essentially correspond to those of the Soil Conservation Service. Exhibit No. 25, another surficial geology map, discloses that much of North Reading is covered by a layer of glacial till. However, an area covered by glacial till is not necessarily homogeneous in composition. The phrase "glacial till" refers primarily to the soil's manner of formation, not its substance; Exhibit No. 25 itself notes that till "varies from a loose sandy mixture of clay, silt, sand, and gravel containing numerous boulders to a dense, compact clay-silt mass containing numerous boulders." More to the point is Exhibit No. 28, another Soil Conservation Service map, which reveals that the soil that has developed in the till on plaintiff's land is a "Hollis" type. The interpretive material state that the texture of Hollis is "usually a fine sandy loam," and that "bedrock is generally within 2 to 2 1/2 feet from the surface." The remainder of plaintiff's land within the Residence D district is classified as "muck," a soil that is saturated with water. Therefore, the conclusion is inescapable and the court finds that plaintiff's land is in fact burdened by shallow bedrock and a high water table.

The final feature of plaintiff's land analyzed by the Soil Conservation Service is slope. Exhibit No. 30 indicates that, except for swampy areas, plaintiff's land has a "moderate" slope of 8 - 15%. This is consistent both with Exhibit No. 28, which assigns the Hollis soil a 3 - 15% slope, and with other testimony in the case. This court finds that plaintiff's land has a slope of between 5 and 15%. The 15 - 35% slope figure cited by the Community Planning Commission at the town meeting is therefore somewhat exaggerated.

The conclusions of the Soil Conservation Service with respect to the capacity of plaintiff's land to dispose of sewage and surface water are essentially derived from the factual premises discussed above. Exhibit No. 31 rates plaintiff's land as severely limited for the efficient operation of septic tank sewage disposal systems and the court so finds. Furthermore, although no map was submitted into evidence that rated the land for drainage, the Soil Conservation Service cites several factors it normally relies upon in making its rating, including "natural soil drainage" and "depth to hardpan, bedrock, or clayey (sic) layer." Muck, which is located on plaintiff's land, is known to have poor drainage, and the depth to bedrock is clearly shallow. Therefore, the court finds that plaintiff's land does in fact have potentially serious drainage and sewage problems.

Certain well-established principles have evolved in the adjudication of zoning challenges. A zoning ordinance enjoys a presumption of validity, and where its reasonableness is fairly debatable, the judgment of the local authorities will be sustained. Turnpike Realty Co. v. Dedham, 362 Mass. 221 (1972), cert. den., 409 U.S. 1108 (1973); Lanner v. Board of Appeals of Tewksbury, 348 Mass. 220 (1964); Burnham v. Board of Appeals of Gloucester, 333 Mass. 114 (1955); Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542 (1949). To overcome this heavy presumption, the complaining party must show beyond a reasonable doubt that the ordinance conflicts with the enabling act or Constitution. Crall v. Leominster, 362 Mass. 95 (1972); Addison-Wesley Publishing Co., Inc. v. Reading, 354 Mass. 181 (1968); Caires v. Building Commissioner of Hingham, 323 Mass. 589 . A court will validate a zoning ordinance unless it is shown that the ordinance is arbitrary and unreasonable, or substantially unrelated to the public health, safety, morals, or general welfare. Nectow v. Cambridge, 277 U.S. 183 (1928); Broken Stone Co. v. Weston, 346 Mass. 657 (1964 ).

Massachusetts courts have adjudicated the validity of minimum lot area requirements in only three cases. In Simon v. Needham, 311 Mass. 560 (1942), the Court held that a minimum lot area requirement of one acre was permissible to promote "[t]he establishment of homes in such a way as to avoid congestion in the streets, to secure safety from fire and other danger, to prevent overcrowding of land, to obtain adequate light, air and sunshine, and to enable it to be furnished with transportation, water, light, sewer, and other public necessities, which when established would tend to improve and beautify the town and would harmonize with the natural characteristics of the locality..." Id. at 563. The Court also allowed the town to attempt to preserve its quiet, rural atmosphere: "The advantages enjoyed by those living in one-family dwellings located upon an acre lot might be thought to exceed those possessed by persons living upon a lot of ten thousand square feet. More freedom from noise and traffic might result. The danger from fire from outside sources might be reduced. A better opportunity for rest and relaxation might be afforded, greater facilities for children to play on the premises and not in the streets would be available. There may perhaps be more inducement for one to attempt something in the way of the cultivation of flowers, shrubs, and vegetables." Ibid. However, the Court cautioned that "[a] zoning by-law cannot be adopted for the purpose of setting up a barrier against the influx of thrifty and respectable citizens who desire to live there and who are able and willing to erect houses upon lots upon which fair and reasonable restrictions have been imposed nor for the purpose of protecting the large estates that are already located in the district. The strictly local interests of the town must yield if it appears that they are plainly in conflict with the general interests of the public at large ..." 311 Mass. at 565-66.

In Aronson v. Sharon, 346 Mass. 598 (1964), the Court struck down a zoning by-law requiring a minimum lot area of 100,000 square feet. The town had attempted to justify its by-law by citing the same sort of general considerations as were raised in Needham. The Court ruled: "In Simon v. Needham ... are enumerated certain possible advantages of living upon an acre lot as compared with one of 10,000 square feet. While initially an increase in lot size might have the effects there noted, the law of diminishing returns will set in at some point." Id. at 604. However, in Wilson v. Sherborn, 3 Mass. App. Ct. 237 , 1975 Mass. App. Ct. Adv. Sh. 643 (1975), the Court validated a two-acre requirement of a town that had been able to bring forward "advantages" that were "tangible" and not "nebulous." Id. at 647, citing 122 Main St. Corp. v. Brockton, 323 Mass. 646 , 651 (1949). The Court held that, given the type of soil present in the rezoned land, the danger posed by septic tanks to on-site wells was sufficient to justify the two-acre provision as "an appropriate health protection measure." Ibid.

The Town of North Reading has alleged particular problems to be inherent in the rezoned land and surrounding area. What convinces this court of the truth of the allegations is that the factual premises upon which they rest were either confirmed or uncontradicted at trial. For example, the town expressed concern that construction of homes on the land would create a serious drainage problem. The court finds that three streams traverse the Residence D district and converge near Lindor Road; that these streams do drain a substantial portion of the district; and, most importantly, that the shallow bedrock and high water table render the land ill-suited to absorb excess surface water. The evidence discloses and the court finds that the Residence D district has at least a moderate slope and that the land across which much of the district's surface water subsequently travels is relatively flat. Therefore, the town was reasonable in concluding that water prevented from entering the soil by a great number of concentrated paved and roofed surfaces would collect atop the land, flow into the Lindor Road area, and, due to that area's lack of slope and resulting inability to carry surface water quickly to the river, would create a stoppage that would cause flooding to both the Lindor Road and Residence D regions. The proven bedrock and water table conditions also verify the alleged sewage problem. Furthermore, it should be noted that the land through which much of the unpurified sewage from the Residence D district would travel is zoned for residential construction on 40,000 square foot lots. That land would thus be forced to dispose of sewage discharged not only from its own houses, but also from houses located in the Residence D district. Therefore, the town was reasonable in predicting that the overburdened land would become contaminated and emit unpurified sewage into the Ipswich River.

This court finds no merit in plaintiff's contention that the by-law violates the Zoning Enabling Act's requirement of uniform classification. The town rezoned not only plaintiff's land, but also a contiguous tract of similarly structured land. This change was part of a comprehensive rezoning effort, during which zoning modifications were made in several parts of the town. Furthermore, the rezoned land can hardly be considered indistinguishable from other land in North Reading. As already noted, the pervasive bedrock and water in the Residence D district is unusual, and the drainage pattern is particularly extraordinary. It is unnecessary for this court to reevaluate the precise boundary lines drawn by the town for the district. Land often does not change character abruptly enough to allow one to select boundaries with utter exactness, and courts generally do not undertake that task. Rosko v. Marlborough, 355 Mass. 51 (1968); Muto v. Springfield, 349 Mass. 479 (1965); Schertzer v. Somerville, 345 Mass. 747 (1963).

Perhaps the most difficult aspect of this case is evaluating the particular minimum lot area figure selected by the town to remedy the deficiencies it correctly perceived in the land. Massachusetts has yet to endorse a minimum lot area requirement exceeding two acres, although other jurisdictions have validated minimum areas considerably larger than 120,000 square feet. [Note 4] However, a court must not judge a zoning restriction in the abstract; the by-law should be considered in the context of the circumstances in which it is to operate. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). Plaintiff points out that the Soil Conservation Service, in rating the land's suitability for home construction, assumed that homes would be constructed on one-half acre lots. Plaintiff then argues that a minimum requirement of 40,000 square feet would be sufficient to cure the defects the Service found. The Community Planning Commission had originally contemplated a five acre minimum for the Residence D classification before recommending the 120,000 square foot requirement. Although the classification was not intended exclusively for the land to which it was ultimately assigned, it was not applied elsewhere and was apparently fashioned primarily with that land in mind. Members of the Commission gave no specific reason for choosing a minimum lot area requirement of 120,000 square feet, stating only in conclusory terms that that was the minimum lot area the land could support. However, the evidence clearly indicates that the condition of the land warranted at least some limitation on home construction. The town had witnessed the problems encountered by developers constructing houses on somewhat similar, nearby 40,000 square foot lots. By devising a new minimum area requirement of 120,000 square feet for the rezoned district, it evidently concluded from its analysis of the Swan Pond area and its experience with other land that that district could safely accommodate only one-third the usual number of houses. Furthermore, though the maps' predictions of difficulties were premised on lots one-half acre in size, no single map reflected the particular coincidence of circumstances present here. In view of the rather complex interrelationship of factors and the potential severity of the hazards, this court will not attempt to substitute its own judgment for that of the town. Town of Concord v. Attorney General, 336 Mass. 17 (1957); Van Sant v. Building Inspector of Dennis, 352 Mass. 289 (1967). The town's judgment was not in any way unreasonable.

This minimum area zoning by-law does in fact have a rational relationship to the public health and welfare and to the specific problems alleged here. The by-law will clearly limit the number of houses on the land and quite likely the amount of paved roadway, and consequently will increase the amount of open space available to absorb surface water. Fewer houses will also lessen the amount of sewage discharged into the land, and so diminish the likelihood of both contamination and pollution. The alternatives suggested by the plaintiff merely render the town's remedy fairly debatable. When plaintiff suggested the possibility of constructing a more sophisticated drainage system in the Lindor Road neighborhood, a witness for the town countered that the location of houses along Lindor Road made such construction impossible. Diverting the water to the southeast across the so-called McGill property was also rejected because it had been determined that a hill on the land would obstruct the flow of water. The existence of both the houses and the hill is undisputed. Furthermore, the specific subdivision and sanitation rules do not necessarily preclude the town from utilizing the more sweeping remedy of zoning. Wilson v. Sherborn, 3 Mass. App. Ct. 237 , 1975 Mass. App. Ct. Adv. Sh. 643, 650-51 (1975). The town might reasonably have decided that the subdivision and health regulations alone could not adequately deal with this unusual situation, and that the added protection of a zoning by-law was required. This court finds that the alternatives proferred by plaintiff do not show that the action of the town was arbitrary or irrational. Cf. Nectow v. Cambridge, 277 U.S. 183 (1928 ).

Finally, plaintiff stresses that the drainage problem was not made clear to voters at the town meeting when the zoning by-law was passed, although plaintiff does not specify the legal consequence intended to follow from that fact. This court finds no support for plaintiff's implied principle that a town is estopped from raising justifications at trial not mentioned at the town meeting. When faced with an analogous problem, the Court has held that a town is not bound exclusively by constitutionally invalid jusitifications suggested by an ordinance's sponsors at a town meeting. Simon v. Needham, 311 Mass. 560 , 566 (1942). In the present case, voters were apprised of the unfavorable condition of the land, and there appears to be no reason why this group of lay people had to be informed in detail of the physical dangers the condition posed.

The evidence in this case indicates and the court finds that neither the intent nor likely effect of this zoning by-law is to exclude potential residents from North Reading. [Note 5] No influx in population was threatened, nor was one feared by the town. Less than ten percent of the town was rezoned as Residence D; other areas remain available for residential development on smaller lots. The drainage and sewage problems exist not because the town is unwilling to expend tax dollars to expand municipal services, but rather because the unusual structure of the land in question makes the engineering solution to the problems technologically impracticable. The by-law is designed to remedy specific inadequacies inherent in a particular area of land, and its validity must be judged on that basis.

In sum, this court rules that the 120,000 square foot minimum lot area requirement does not violate the Zoning Enabling Act's requirement of uniform classification; is not arbitrary or unreasonable; does not deprive plaintiff of its property without due process of law; and bears a rational relationship to factually demonstrable and unusual problems existing in and around the Residence D district. The cluster zoning provision, requiring a minimum of 60,000 square feet in a Residence D district, ignored by both parties at trial and lacking independent evidentiary support, is nevertheless supportable by the same facts found by this court with respect to the 120,000 square foot minimum, and this court therefore rules it to be similarly valid.

Judgment accordingly.


[Note 1] Plaintiff stipulated that the procedure by which the zoning by-laws were adopted met all of the requirements of G. L. c. 40A, § 6.

[Note 2] On the evidence presented, there is little this court can add by way of interpretation to the wording of these provisions. Cluster zoning permits development on smaller-sized lots (60,000 square feet in a Residence D district), provided "housing density (does) not exceed the density that would have resulted if the tract were developed under the conventional full-size lot pattern..." The short answer to the first part of plaintiff's request for interpretation is that the cluster zoning provisions has no effect on its land unless it specifically wishes to develop an area in a cluster pattern and submits to the town for approval a plan in accordance with the regulations under 11.2C. The wetland area provision restricts development in areas "shown on the United States Department of Interior Geological Survey Map, Wilmington-Reading quadrangles, Massachusetts, 7.5 Minute Series (topographic), 1966: Swamp, water bodies and rivers, land within fifty (50) feet of the bank of rivers and streams: also, land designated on the United States Soil Conservation Map, October 1970, as muck or peat." Several exhibits submitted by plaintiff were based on the 1970 Soil Conservation map and, as will be developed later, clearly designate certain portions of plaintiff's land as muck or peat. This court, therefore, finds that development in those areas is subject to the restrictions detailed under 11.2J. However, this court does not now have before it the 1966 Geological Survey Map, and the other evidence presented is insufficient to permit us to determine with certainty whether the brooks traversing plaintiff's land are "streams" within the meaning of the section.

[Note 3] The Community Planning Commission of North Reading functions as the town's planning board within the meaning of G. L. c. 40A, § 6.

[Note 4] See e.g. Steel Hill Dev. Inc. v. Sanbornton, 469 F. 2d 956 (1st Cir. 1972) (3 acres); DeCaro v. Washington Township, Berks County, 21 Comm. Ct. 252, 344 A. 2d 725 (1975) (3 acres); County Commissioners of Queen Anne's County v. Miles, 246 Md. 355, 228 A. 2d 450 (1967) (5 acres); Zygmont v. Planning and Zoning Commn. of Greenwich, 152 Conn. 550, 210 A. 2d 172 (1905) (4 acres); Honeck v. County of Cook, 12 Ill. 2d 257, 146 N.E. 2d 35 (1957) (5 acres).

[Note 5] Some courts have held that towns must recognize regional housing requirements, and may not limit their populations merely to avoid burdening municipal services or impairing their aesthetic quality. South Burlington Count, NAACP v. Mt. Laurel, 67 N.J. 151, 336 A. 2d 713 (1975); Oakwood at Madison, Inc. v. Madison, 117 N.J. Super 11, 283 A. 2d 353 (1971); National Land and Investment Co. v. Kohn, 419 Pa. 504, 215 A. 2d 597 (1965); Board of County Supervisors of Fairfax County v. Carper, 200 Va. 653, 107 S.E. 2d 390 (1959). However, courts do acknowledge the right of towns to provide for a slow and orderly population growth. Construction Industry Ass'n. v. Petaluma, 522 F. 2d 897 (9th Cir. 1975) cert. den., 424 U.S. 934 (1976); Steel Hill Dev. Inc. v. Sanbornton, 469 F. 2d 956 (1st Cir. 1972). Some commentators have suggested a balancing test to reconcile conflicting municipal and regional needs. See Note, Aesthetic Zoning, The Right to Travel, and Growth Restrictive Ordinances: Construction Industry Association of Sonoma County v. Petaluma, 61 Iowa L. Rev. 602 (1975); 58 Cornell L. Rev. 1035 (1973).