RESIDENTIAL HOMES CORP. vs. TOWN OF BLACKSTONE.

This is an action brought by the plaintiff, Residential Homes Corp., pursuant to G.L. c.240, § 14A seeking a declaration that the Town of Blackstone zoning by-law section 2700 (section 2700) is invalid because the Town had no authority to enact section 2700 under G.L. c. 40A. The plaintiff also seeks a declaration that the by-law is unconstitutional both on its face and as applied to the plaintiff.

The plaintiff's motion for summary judgment was denied by this Court and three days of trial were held at which a stenographer was appointed to record and transcribe the testimony. Two witnesses testified, eight exhibits were introduced into evidence and are incorporated herein for the purposes of any appeal. At the close of the plaintiff's case, the defendant moved that the Court dismiss the plaintiff's complaint pursuant to Mass. R. Civ. P. 41(b) (2) or, in the alternative, that the Court enter judgment it its favor. The defendant rested after arguing this motion without offering any evidence.

Based on all the evidence, I find the following to be the material facts:

1. By deed dated December 5, 1985, and recorded in the Worcester District Registry of Deeds at Book 9107, Page 41, the plaintiff, Residential Homes Corp., took title to 25.298 acres, more or less, of land (the locus) on Lincoln Street in the Town of Blackstone (the Town).

2. On November 7, 1985, the Town Planning Board approved a definitive plan for a subdivision of the locus entitled "Lincolnwood Estates." This subdivision plan was modified in May of 1986 and on November 6, 1986, the Town Planning Board endorsed the modified plan as "Approval Under the Subdivision Control Law Not Required." The modified plan depicts twenty-one lots, on which the plaintiff intends to build nineteen duplexes and two single family units, for a total of forty dwelling units.

3. On or about April 7, 1980, The Town adopted a rate of development by-law, section 2700 of the Town zoning by-law, which provides as follows:

The Building Inspector shall not issue building permits authorizing more than ten (10) dwelling units (exclusive of unused authorizations which have lapsed or have been withdrawn) during any twelve (12) month period within property which, as of July 1, 1979, was contiguous and in the same ownership (or in different ownerships each involving one or more of the same principals) or to any one applicant (or set of applicants involving one or more of the same principals) unless the Planning Board has granted a Special Permit for Rapid Development. Such Special Permit shall be granted only upon Planning Board determination that in addition to the Special Permit Criteria of Section 1430 such development also would serve a salient housing need, would be infeasible if limited to ten (10) units over twelve months, and would not overburden public services.

4. In April of 1986, the Building Inspector issued the plaintiff ten duplex building permits for a total of twenty units to be built on the locus. A few days after the issuance of the ten duplex building permits, the president of Residential Homes Corp., Robert Ballarino, received a telephone call from the Building Inspector asking for the return of the ten duplex building permits which the Building Inspector told Ballarino he had issued illegally. Ballarino returned the ten permits and was then issued five duplex building permits for a total of ten units.

5. In July or August of 1986, the plaintiff applied to the Planning Board for a Special Permit for Rapid Development. The plaintiff's application was denied by decision dated December 9, 1986.

6. In May of 1987, the plaintiff applied for and was issued five additional duplex building permits for the locus.

7. Brian Barber, a city planning consultant, testified at trial as an expert witness for the plaintiff. When the plaintiff applied for a Special Permit for Rapid Development in 1986, Barber appeared before the Planning Board and opined that the plaintiff's proposed development would increase both traffic and the school population in the Town.

Before the trial, Barber reviewed the text of section 2700 as well as the minutes of the Planning Board meetings prior to the enactment of section 2700. Based upon this review, Barber testified that he found no relationship between section 2700 and the regulation of the use of land to maintain public health, welfare and safety. Further, he found nothing in section 2700 which indicated that it was directed at one of the permissible objectives for zoning regulations enumerated in St.1975, c.808, §2A. [Note 1]

However, Barber also testified that from a planning standpoint, the objective of a rate of development by-law is to keep development from outpacing the ability of a town to provide the services a town normally provides its residents, such as roads, schools, water and sewerage and that this is a nationally recognized exercise of a town's power to enact zoning regulations. He had no knowledge of whether, prior to enacting section 2700, the Town had engaged in an analysis of the existing capacity of any of these services.

8. In its answer, the Town admitted that no comprehensive plan for development in the Town had been adopted, but denied that no such plan had been studied.

The plaintiff first seeks a declaration that section 2700 is invalid because the adoption of the Town by-law was not authorized under G.L. c.40A. In Massachusetts, a municipality has the authority to adopt zoning measures which control orderly growth. Sturges v. Chilmark, 380 Mass. 246 , 252 (1980). In Sturges, the Supreme Judicial Court held that "a municipality may impose reasonable time limitations on development, at least where those restrictions are temporary and adopted to provide controlled development while the municipality engages in comprehensive planning studies." Id. at 252-3. The plaintiff maintains that this holding imposes a requirement that in order to be a "temporary" restriction on development within the ambit of the holding in Sturges, the by-law in question must contain a time period during which the restrictions are effective. However, a careful analysis of the Court's reasoning and holding in Sturges belies this contention.

In Sturges, the Court upheld a rate of development by-law which provided that the owner of a tract of land, containing sufficient area to provide for more than ten dwelling units at the maximum density permitted for the District in which the tract was located, could be issued building permits for no more than one tenth of the maximum number of permitted dwellings, thereby creating a ten year period over which the tract could be developed. Id. at 250, n.6. This ten year period did not commence, however, until the tract was subdivided. Id.

Although the by-law imposed a ten year period for development on the individual owners of large tracts of land once a tract was subdivided, overall, the by-law had "the potential of limiting construction in the town over an indeterminate period," Id. at 251, n.7, because the ten year period did not begin until the tract was subdivided. In addition, the by-law did not expressly provide that the restrictions on development contained therein were to be in effect only for a limited period of time. Therefore, the by-law upheld in Sturges was temporary only as it applied to a particular developer and not as it applied to development in the town as a whole.

Section 2700 is similar to the by-law upheld in Sturges in that it does not expressly provide that it is to be in effect for a limited period of time and it too has "the potential of limiting construction in the town over an indeterminate period." Furthermore, as in Sturges, the effect of the by-law is temporary as applied to the plaintiff because at the rate of ten building permits a year, it will take four years for the plaintiff to receive the building permits for the forty dwellings units which it intends to build.

The plaintiff also contends that the Town was not statutorily authorized to adopt section 2700 because the Town was not engaged in the process of reviewing its comprehensive plan nor has it adopted a comprehensive growth plan since the enactment of section 2700 in 1980. Although a zoning by-law's main defense against a claim that it is arbitrary may be its conformity to a comprehensive plan, such conformity is not the sole basis upon which a by-law can be sustained. See generally Haar, In Accordance with a comprehensive Plan, 68 Harv. L. Rev. 1154 (1955). In addition, Sturges does not impose a requirement that a comprehensive plan be adopted following the enactment of a rate of development by-law. Rather, the Court in Sturges held that a municipality may adopt reasonable time limitations on development where the restrictions are adopted "to provide controlled development while the municipality engages in comprehensive planning studies." Id. at 252-3.

The plaintiff has the burden of proving that the Town lacked the authority to enact section 2700. See Collura v. Arlington, 367 Mass. 881 , 885-7 (1975). In its answer, the Town denied that a comprehensive plan for development had not been studied. The plaintiff has offered no evidence to prove that the Town has not engaged in any comprehensive planning studies since the adoption of section 2700 and therefore, the plaintiff has not proved that section 2700 was not adopted to "provide controlled development while the [town] engages in comprehensive planning studies." Id. at 253. Because the effect of section 2700 is temporary as applied to the plaintiff and because the plaintiff has not met its burden of showing that the Town is not conducting comprehensive planning studies, I rule that the Town had the statutory authority to adopt section 2700.

The plaintiff next seeks a declaration that section 2700 is unconstitutional on its face. [Note 2] The test for the constitutionality of a by-law is "whether the by-law is 'clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare'." Id. at 256, quoting from Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926). The court's role in reviewing zoning enactments is limited. "Every presumption is made in favor of the by-law, and if its reasonableness is fairly debatable, it will be sustained." Id. The plaintiff has the heavy burden of showing that the by-law is in conflict with G.L. c.40A or applicable constitutional provisions. Turnpike Realty Co. v. Dedham, 362 Mass. 221 , 233 (1972), cert. denied, 409 U.S. 1108 (1973), citing Pierce v. Wellesley, 336 Mass. 517 , 521 (1957). The plaintiff must prove "the absence of any conceivable grounds which would support the [town's regulation]." Barlow v. Wareham, 401 Mass. 408 , 416 (1988), quoting from Zeller v. Cantu, 395 Mass. 76 , 84 (1985) (alteration in original).

The plaintiff has not met this heavy burden. "[A]ny possible permissible legislative goal which may rationally be furthered by the regulation will support a measure's constitutionality." Sturges, 380 Mass. at 256-257. The plaintiff's expert, Barber, testified that he believed that the plaintiff's proposed development would increase both traffic and the school population in the Town. In addition, Barber testified that the objective of a rate of development by-law is to keep development from outpacing the ability of a town to provide the services a town normally provides its residents, such as roads, schools, water and sewerage. Lessening traffic congestion or facilitating the adequate provision of town services such as schools, water or sewerage are unquestionably permissible objectives under G.L. c.40A. In adopting its rate of development by-law, the Town may well have intended to address these concerns. This conclusion is buttressed by the language of section 2700 which provides that one of the criteria for the grant of a Special Permit for Rapid Development is a Planning Board determination that the development will not overburden public services.

The plaintiff presented no evidence that section 2700 lacked a rational relationship to any one of these or any other permissible purposes of zoning. The only "evidence" on this issue was Barber's testimony that he could find no relationship between section 2700 and the protection of public health, welfare and safety and that he found nothing in section 2700 which indicated that it was directed at one of the permissible objectives for zoning regulations. That Barber could find no such relationship does not prove that section 2700 was not directed at a permissible zoning objective, particularly in light of his testimony regarding the objective of a rate of development by-law. Therefore, because the plaintiff has not established the absence of any conceivable grounds which would support section 2700, I rule that section 2700 is constitutional on its face.

The plaintiff's final argument is that section 2700 is unconstitutional as applied to its property. The plaintiff argues that section 2700, by limiting the plaintiff to the construction of ten dwelling units per year, deprives the plaintiff of the use of its land and therefore constitutes a taking in violation of its due process rights. The plaintiff also maintains that the application of section 2700 has caused the plaintiff's property to suffer a diminution in value and therefore, section 2700 is unconstitutional as applied.

These arguments are without merit. First, the plaintiff is not deprived of all use of its land, only development at a rate which exceeds ten dwelling units per year. Obviously, the application of section 2700 has not rendered the plaintiff's property unusable "for any reasonable purpose" and therefore, section 2700's limitation on the rate of development does not constitute a taking. Wilson v. Sherborn, 3 Mass. App. Ct. 237 , 245 (1975), quoting from Commissioner of Natural Resources v. S. Volpe and Co. Inc., 349 Mass. 104 , 111 (1965). Secondly, the plaintiff has produced no evidence showing that its property has suffered a diminution in value as a result of the limitation on development. Even if the plaintiff had shown that its property had decreased in value, a by-law is "not unconstitutional as applied because it prevents the land from being put to its most profitable use or because the value of the land is substantially diminished." MacNeil v. Avon, 386 Mass. 339 , 343 (1982) (citations omitted). Accordingly, I rule that section 2700 is constitutional as applied to the plaintiff.

In summary, I rule that the Town had the statutory authority to enact section 2700 and that section 2700 is constitutional both on its face and as applied to the plaintiff.

Judgment accordingly.