MISC 19-000273

June 8, 2020

Worcester, ss.



On June 4, 2019, plaintiff Brice Estates, Inc. filed a complaint under G.L. c. 240A, §14A against the defendant, the Town of Rutland. Brice Estates asserts in Count I of its Complaint that Rutland's Development Rate Limitation Bylaw (the "Bylaw") is invalid and unenforceable pursuant to the "Constitution and Law and Statutes of the Commonwealth of Massachusetts." Embedded in Count I (which the parties agree constitutes a Count II) is a second claim by Brice Estates that it's exempt from the Bylaw under G.L. c. 40A, §6. The parties stipulated to the dismissal of Count II on August 15, 2019. They agreed that land owned by Brice Estates in Rutland is not subject to the Bylaw under §6's eight-year zoning freeze until December 9, 2022.

Brice Estates now moves for summary judgment on the rest of Count I. The Court heard oral arguments from the parties on February 13, 2020. The undisputed facts are as follows: Rutland adopted a Sewer and Water Connection Moratorium Regulation on June 6, 2018 that expires in 2020. The purpose of the Moratorium is to prohibit "new connections, system expansions and increases in flow for a temporary period of time to allow [Rutland] to study system-wide capacity issues."

Rutland thereafter conducted two studies. The first was the Growth Management Study Phase I ("Phase I Study") and the second was the Residential Development Impact Analysis ("Phase II Study"). These studies assessed the potential impact of future growth within Rutland and provided recommendations for a comprehensive growth management strategy. Based on the studies' findings and recommendations, Rutland's town meeting voted by a two-thirds majority to approve the Bylaw on May 11, 2019. The text of the approved Bylaw states (emphasis in original):

Article XIII Development Rate Limitation Bylaw

§91. Purpose and Intent

The purpose and intent of this bylaw is to ensure the issuance of building permits for the construction of new dwelling units will be consistent with the town's capacity to accommodate the new development and provide the services needed to support that development. This development limitation is intended to ensure that the Town, with prudent reliance on local and other financial sources, and in compliance with the revenue generating limitations of Proposition 2½, can and will provide infrastructure and operate in a manner that provides an adequate and responsible level of municipal services. It has been demonstrated through the Town of Rutland's Growth Management Study Phase I and Phase II and the New England School Development Council Enrollment Data [sic] that the town's present infrastructure and services (e.g. roads, schools, police and fire protection, water supply, wastewater treatment facilities, affordable housing supply) cannot sustain projected growth rates without detrimental impacts on the environment and to needed Town services. Therefore, the rate of new development shall be limited as stipulated below.

§92. Applicability

The bylaw applies to the issuance of building permits for all new residential dwelling units.

§93. Residential Development Limitation

The Building Commissioner shall issue permits for construction of new residential dwelling units only if such permit issuance will not result in authorizing construction of a total of more than thirty-six (36) dwelling units in a single calendar year. If this bylaw is enacted during the calendar year, the total eligible permits for the partial calendar year shall be prorated according to the number of remaining months in the partial calendar year and allocated in accordance with §94, below.

§94. Issuance of Building Permits

The Building Inspector shall issue building permits in accordance with the following:

A. Building permits, based on applications that the Building commissioner deems complete, shall be issued on a first in time basis, subject to Sections B and C below.

B. Within any calendar month, no more than three (3) building permits per month shall be issued. Unused permits are to be carried forward for issuance in the next month until the permits authorized by §93, above, have been issued. No unused building permits shall be carried forward from one calendar year to the next.

C. No more than twenty-five (25) percent of the building permits authorized by §93 for the new dwelling units shall be issued to any one applicant or set of applicants involving one or more of the same principals, including in one single subdivision, within a calendar year.

§95. Exemptions

The following shall be exempt from provisions of this bylaw. Units exempted under C, E, and G below, [sic] shall nevertheless be counted toward the permit total established in §93, above:

A. Dwelling units to be built under any Commonwealth program or statute categorizing said units as low or moderate income housing, or otherwise defined as affordable housing units provided that such housing units have deed restrictions to ensure that they remain affordable for no less than the time period specified by the program or statute.

B. Dwelling units that are age-restricted to resident owners 55 years and older.

C. Single approval not required under the Subdivision Control Act (ANR) lots granted to an individual property owner who has not already been granted a building permit during the calendar year. This exemption does not apply to the division of more than two (in total) ANR Lots which were under common ownership or common control. Property under common ownership or common control shall not be segmented to avoid compliance with this section. Segmentation shall mean one or more divisions of land that cumulatively result in a net increase of two or more lots above the number existing three years (36 months) prior to the application of a building permit for any lot held in common ownership or under common control on or after the effective date of this Section.

D. Enlargement, restoration, replacement, or reconstruction of existing dwelling units located on lots as of the date of passage of this bylaw, providing that such construction does not result in an increase in the number of dwelling units.

E. Any proposed development that would result in new dwelling units located within the zoning district known as Heights Planned Development District.

F. Replacement of any existing dwelling units which have been destroyed by catastrophe.

G. Unissued permits as of the last business day of the calendar year where the annual cap has not been reached. Permits shall be issued on a prorated basis to each applicant, with the number of permits issued based on an equal percentage of each applicant's outstanding requests, calculated as the total number of permits remaining divided by the told number of permits requests.

Example: Applicants A, B, and C have outstanding requests for 5, 10, and 15 building permits, respectively. There are only 6 available permits before the annual cap is reached.

Therefore, the 6 permits would be distributed as a percentage (6/30=20%) to each of the three applicants – A would get 1 permit (5*0.2), B would get 2 permits (10*0.2), C would get 3 permits (15*0.2), in accordance with their proportionate share of the remaining permits.

§96. Special Permit

The Planning Board may grant a special permit to allow construction of more dwelling units than allowed by §93 or §94 C. Such special permit shall be granted in accordance with the special permit requirements of the Town of Rutland Zoning Bylaw, as amended and based upon a written determination by the Board that the adverse effects of the proposed development will not outweigh its beneficial impacts to the community. In making such a determination, the Board shall consider whether the applicant has offered one or more of the following improvements or amenities which will have a positive impact upon:

A. Schools and other public facilities;

B. Traffic and pedestrian safety;

C. Recreational facilities, open spaces, agricultural resources, and unique natural features;

D. People of low or moderate income; conformance with Master Plan or Growth Management Plans prepared by the Planning Board pursuant to G.L. c. 41, s. 81 D;

E. Reduction in otherwise allowable residential density. Particular consideration shall be given to special permit applications that demonstrate a reduction in allowable density of twenty-five (25) percent or more, pursuant to the Town's Zoning Bylaw.

§97. Zoning Change Protection

Where the development rate limitation would cause a particular lot to lose rights vested in Mass. Gen. Law[s] Chapter 40A, Section 6 the protections granted therein shall be extended until the building permit is granted.

§98. Term of Bylaw

This bylaw shall be effective through May 11, 2024. The Town Administrator or his designee shall review the bylaw for effectiveness prior to the request of Town Meeting to extend the bylaw. The bylaw may be extended for up to five (5) years, to achieve its purpose without lapse of its provisions, conditions and limitations by an affirmative vote of a Town Meeting on or prior to May 11, 2024.

§99. Severability

If any provision of this bylaw is held invalid by a court of competent jurisdiction, the remainder of the bylaw shall not be affected thereby. The invalidity of any section or sections or parts of any section or sections of this bylaw shall not affect the validity of the remainder of the Town of Rutland Zoning Bylaw.

In its motion, Brice Estates challenges Rutland's Bylaw as a "violation of due process, equal protection and protection against taking of property." At oral argument, Brice Estates dropped its contentions that the Bylaw violated equal protection and that it resulted in an unconstitutional taking, but Brice Estates maintained that the Bylaw's adoption was otherwise unconstitutional. Additionally, Brice Estates argues that particular sections of the Bylaw are invalid under G.L. c. 40A.

The Court will first determine if Rutland's adoption of the Bylaw is constitutional. Article 89 of the Amendments to the Massachusetts Constitution (the "Home Rule Amendment") gives municipalities the power to adopt, amend, and repeal local ordinances or bylaws. Evaluating any bylaw's constitutionality requires the Court to consider: (a) whether the bylaw's enactment violates any constitutional limitation or Massachusetts law; and (b) whether the bylaw is an "arbitrary or unreasonable exercise of police power having no substantial relationship to the public health, safety, or general welfare." Durand v. IDC Bellingham, L.L.C., 440 Mass. 45 , 52 (2003).

Chief among Brice Estates's constitutional challenges is that Rutland's Bylaw is not "temporary," citing to Zuckerman v. Town of Hadley, 442 Mass. 511 (2004), and Sturges v. Town of Chilmark, 380 Mass. 246 (1980). Both Zuckerman and Sturges address the constitutionality of municipal bylaws restraining growth for a period of ten or more years. See Zuckerman, 442 Mass. at 512; Sturges, 320 Mass. at 259 n.16. In Zuckerman, the Supreme Judicial Court invalidated such a bylaw on constitutional grounds, holding that "bylaws restraining growth pass constitutional muster only where they specifically contain time limitations or where it is abundantly clear that they are temporary." Zuckerman, 442 Mass. at 518 n. 16, citing Sturges, 380 Mass. at 252-253. The Supreme Judicial Court reasoned that "restrictions of unlimited duration on a municipality's rate of development are in derogation of the general welfare and thus are unconstitutional." Zuckerman, 442 Mass. at 512. In Sturges, the Supreme Judicial Court upheld a bylaw restraining growth for a period of ten years on the basis that a "municipality may impose reasonable time limitations on development" so long as "restrictions were temporary." Sturges, 380 Mass. at 252-253. The Sturges Court expressly noted, "in the absence of a contrary showing, . . . a period of ten years is reasonably necessary to complete all necessary studies and implement recommendations." Id. at 259 n.16.

Brice Estates raises three challenges to the length of the Bylaw's restrictions. Brice Estates asserts first that Zuckerman requires that the Bylaw be "abundantly clear" that it is temporary. Second, citing to the companion cases of Lorden v. Town of Templeton, 13 LCR 319 (2005) (Trombly, J.), and Fitzgerald v. Town of Templeton, 15 LCR 426 (2007) (Trombly, J.), Brice Estates argues the Bylaw is not temporary because it contemplates a five-year extension. Third, relying on Lorden, Brice Estates claims that Zuckerman requires any municipality that adopts or allows extension of a rate-of-development bylaw to create an accompanying planning process. The Court does not agree with any of these arguments.

First, the Bylaw is sufficiently clear, within the meaning of Zuckerman, that it is temporary. Unlike the bylaw at issue in Zuckerman, Rutland's Bylaw has a sunset date. Section 98 of the Bylaw states the Bylaw "shall be in effect through May 11, 2024." According to §98, any extension beyond May 11, 2024 requires additional legislative (that is, town meeting) action.

Section 98's extension provision gives rise to Brice Estates's second "timing" argument. Brice Estates argues that Lorden and Fitzgerald hold that a rate-of-development bylaw that contains an extension provision is never "clearly temporary" under Zuckerman. At a high level, Brice Estates's argument makes sense. In Lorden, the court held unconstitutional a bylaw that allowed for an indefinite extension. See Lorden, 13 LCR at 321. Two years later, in Fitzgerald, the same court upheld an amended version of the same bylaw because the town had eliminated the extension provision. See Fitzgerald, 15 LCR at 429. Brice Estates asserts that Lorden and Fitzgerald, read together, teach that extension provisions prevent rate-of-development bylaws from being temporary.

Brice Estates's argument overlooks an important textual difference between Rutland's Bylaw and the original bylaw in Lorden. The latter stated that it could "be extended without lapse of its provisions and limitations, by a vote of the Town Meeting." Lorden, 13 LCR at 320. The Lorden court held that, as written, the bylaw did not prevent the municipality from "extending its terms indefinitely," in violation of Zuckerman. Id. at 321. Rutland's Bylaw on the other hand states in §98 (emphasis added): "The [B]ylaw may be extended for up to five (5) years." Were Rutland's town meeting to vote to extend the Bylaw, Rutland would have limited the issuance of building permits for only ten years from the time it first adopted the Bylaw. A ten-year building permit limitation is constitutionally temporary under Zuckerman and Sturges.

Brice Estates's third timing argument fares no better. Zuckerman does not require a municipality that adopts or contemplates extension of a rate-of-development bylaw to create an accompanying planning process. Lorden does quote language from Zuckerman that states that the bylaw at issue in Zuckerman was defective "because it fails to lay out any standards ensuring that an extension will only be enacted if 'reasonably necessary.'" Lorden, 13 LCR at 321, quoting Zuckerman, 442 Mass. at 517-519. But Brice Estates takes Lorden's statement out of context. In Lorden, the court invalidated a bylaw because it was both indefinite and lacked a "comprehensive plan or process . . . that would justify the potentially unlimited duration." Lorden, 13 LCR at 321. Lorden relied on language in Zuckerman that states, "[w]here the needs of a town to plan for an aspect of growth prove to exceed the time limits of a bylaw, the town may extend the restriction for such limited time as is reasonably necessary to effect its specific purpose." Zuckerman, 442 Mass. at 518 n.16. The Lorden court held an extension cannot be in the furtherance of a "specific purpose" if the extension is unlimited and has no comprehensive plan to guide it. Viewed in this context, neither Zuckerman nor Lorden requires a municipality to create a planning process for rate-of-development bylaws if those bylaws have other provisions that make them constitutionally temporary, such as a firm sunset date or time-limited extension provisions. Rutland's Bylaw has both: it expires on May 11, 2024, and its extension provision allows for a single, five-year extension. Both provisions ensure that the Bylaw won't be in force for more than the ten years allowed under Zuckerman and Sturges.

At oral argument, Brice Estates lodged another argument as to why Rutland's Bylaw fails to be "temporary" within the meaning of Zuckerman. Brice Estates contended that the Bylaw was a continuation of a 50-year effort by Rutland to restrict development in the town. It is conceivable that a town could adopt a series of "definite" moratoriums to restrict development, one after the other for an extended period, and thereby violate Zuckerman's requirement that such restrictions be temporary. But Brice Estates has not proven that pattern here. Its evidence of the start of the alleged 50-year period is Gallo v. Division of Water Pollution Control, 374 Mass. 278 (1978), a case involving limits imposed on sewer connections in Rutland in 1976. A closer look at Gallo reveals, however, that the Town of Rutland did not choose on its own accord to limit sewer connections in 1976: rather, the Commonwealth ordered Rutland to stop all connections that did not have the state's authorization. See id. at 280.

There's a further problem with Brice Estates's argument: even if the Court accepted that Rutland was responsible for the Gallo moratorium, Brice Estates has not shown how long that moratorium lasted. That leaves Brice Estates with only one other Rutland moratorium after 1976, the 2018 Sewer and Water Connection Moratorium Regulation. If one joined the Regulation's moratorium with the Bylaw's limits on building permits (which runs, at the moment, until 2024), the resulting restriction on development in Rutland is a mere six years. That is within the ten-year period allowed, as previously mentioned, in both Zuckerman and Sturges. (The Court leaves to another day the question of whether Rutland would violate Zuckerman and Sturges were Rutland's town meeting to adopt a five-year extension of the Bylaw on top of the 2018 Moratorium.)

Brice Estates puts forward another due process challenge to Rutland's Bylaw. It argues that the Bylaw is not the least restrictive means possible for Rutland to accomplish what Brice Estates admits is the constitutionally permissive objective of alleviating municipal infrastructure problems. Brice Estates cites to Q.C. Constr. Co. v. Gallo, 649 F. Supp. 1331 (D.R.I. 1986), and Goldblatt v. Hempstead, 369 U.S. 590 (1962), to support its argument. In Q.C. Constr. Co., the court held a sewer moratorium unconstitutional as a deprivation of property without due process. Q.C. Constr. Co., 649 F. Supp. at 1336-1337. The court did not hold, however, that a municipality must adopt the least restrictive way to remedy infrastructure issues. Rather, the court merely considered the possibility of less restrictive alternatives when applying Goldblatt's multi-factor evaluation of a moratorium's reasonableness. See id. at 1335-1337.

There are two other problems with Brice Estates's Q.C. Constr. Co. argument. First, the argument runs counter to the holding of Fragopoulos v. Rent Control Bd., 408 Mass. 302 (1990). In Fragopoulos, the Supreme Judicial Court held that a municipality need not choose the least restrictive way of achieving constitutionally permissible goals unless the municipality's regulation infringes upon a suspect class or a fundamental right. See id. at 306. The court further observed that "the right to use lawfully regulated property as one wishes has never been classified as a fundamental right." Id. Thus, under Fragopoulos, Rutland has no duty to choose the least restrictive means of addressing its infrastructure and growth concerns.

Second, even if this Court had to apply Goldblatt's multi-factor test for evaluating the constitutionality of Rutland's Bylaw (as opposed to the constitutional test articulated by our own Supreme Judicial Court in Durand), the Bylaw would survive on account of two important differences from the moratorium in Q.C. Constr. Co. The first is apparent from Q.C. Constr. Co.'s analysis of Goldblatt's third factor, which requires an examination of the plaintiff's loss and whether the moratorium is "unduly oppressive." The Q.C. Constr. Co. court held that a plaintiff who seeks to have a regulation declared unconstitutional "must show that the regulation interferes so severely with [plaintiff's] use of the property as to render the property worthless or useless." Q.C. Constr. Co., 649 F. Supp. at 1337. Nothing in the record before this Court shows such an effect here, at least at the present. (Recall that Rutland has stipulated it may not enforce the Bylaw against Brice Estates's land until December 9, 2022.) The second difference in the enactments is that the moratorium in Q.C. Constr. Co. was permanent until the municipality rectified its sewer problems. The Q.C. Constr. Co. court held (as Zuckerman and Sturges hold) that to be constitutional, a moratorium "must be reasonably limited as to time." Id., citing Smoke Rise, Inc. v. Washington Suburban Sanitary Comm'n, 400 F.Supp. 1369, 1383 (D.Md. 1975). As noted earlier, Rutland's Bylaw is reasonably limited as to time.

This disposes of Brice Estates's constitutional arguments. Brice Estates also argues that Rutland's Bylaw violates Massachusetts statutes. Citing to M.G.L. c. 40A (the "Zoning Act"), Brice Estates asserts that the Bylaw does not bear a rational relation to a legitimate zoning purpose because it does not deal with land, or with uses of land. As stated previously, municipalities have the independent constitutional power to adopt bylaws, but to be valid under Durand, bylaws cannot be an "arbitrary or unreasonable exercise of police power having no substantial relationship to the public health, safety, or general welfare." Durand, 440 Mass. at 53.

Brice Estates's Zoning Act argument faces a large obstacle: Zuckerman and Sturges recognize that municipalities may adopt temporary moratoriums that restrain growth. Municipalities can do so to achieve constitutionally legitimate purposes ranging from protecting water supply and ensuring proper sewage disposal (as in Sturges) to managing fiscal resources and preserving agricultural character (as in Zuckerman). See Zuckerman, 442 Mass. at 516. Section 91 of the Bylaw states that its purpose and intent is to allow the town to "provide infrastructure and operate in a manner that provides an adequate and responsible level of municipal services." The Bylaw fits well within Zuckerman and Sturges's limits on the exercise of municipal power.

Along with its "illegitimate zoning purpose" argument, Brice Estates further alleges that Phase I and II Studies don't furnish a statutorily sufficient basis for Rutland's adoption of the Bylaw. In support of this argument, Brice Estates cites to a footnote in Sturges where the Supreme Judicial Court states, "[a] very different case would be present if it were determined that the town was not proceeding with the necessary studies which are said to be the basis for the enactment of the rate of development by-law." Sturges, 380 Mass. at 159 n.16. It's true that the municipal defendant in Sturges put forth evidence of governmental studies and proposals, and that the court found that evidence to be "reasonable as a basis for town meeting action." Id. at 258. The court did not require, however, all municipalities to undertake studies before adopting rate-of-development bylaws. The court was merely commenting that "the need for time for study provides a rational basis for [a] bylaw's sequential restrictions, at least during the years immediately following its adoption." Id. at 259. The Home Rule Amendment affords broad powers to municipalities in the Commonwealth to adopt zoning bylaws. The Zoning Act sets forth the procedures municipalities must follow to adopt those bylaws; those procedures do not include one that requires municipalities to conduct studies prior to adopting or amending their bylaws.

While Rutland's Bylaw survives Brice Estates's general Zoning Act-based challenges, it does not fare as well against specific provisions of the Act. Brice Estates first argues that §98 of the Bylaw, which contemplates that Rutland's town meeting may extend the Bylaw by "affirmative vote," ignores c. 40A, §5, which states that "[n]o zoning ordinance or by-law or amendment thereto shall be adopted or change except by a two-thirds vote." Brice Estates is correct that approval of zoning bylaws requires a two-thirds vote. See, for example, Selectmen of Sudbury v. Garden City Gravel Corp., 300 Mass. 41 , 42-43 (1938) (holding that several zoning amendments adopted by a majority vote "did not become effective because they were not adopted by a two-thirds vote of a town meeting"). Rutland concedes in its opposition to Brice Estates's motion that "affirmative vote" in §98 means a two-thirds vote. Where a phrase is ambiguous, as the case is here, a court interprets the ambiguity "in a manner which sustains its validity." Trustees of Tufts Coll. v. Medford, 514 Mass. 753 , 762 (1993), quoting Doliner v. Town Clerk of Millis, 343 Mass. 10 , 15 (1961). Thus, this Court holds that "affirmative vote" in §98 of Rutland's Bylaw means a two-thirds vote.

Brice Estates's second statutory attack on Rutland's Bylaw is against §94.C, which limits 25% of the building permits authorized under §93 of the Bylaw to "any one applicant or set of applicants" per year. Brice Estates claims that §94.C violates c. 40A, §4. Section 4 states that any zoning ordinance or bylaw "shall be uniform within the district for each class or kind of structures or uses permitted." This "uniformity" requirement is based upon the principle that land in similar circumstances should be treated alike, so that "if anyone can go ahead with a certain development [in a district], then so can everyone else." SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 107 (1984), quoting Norman Williams, 1 American Land Planning Law §16.06 (1974).

In CHR General, Inc. v. Newton, 387 Mass. 351 (1982), a city passed an ordinance requiring property owners to apply for a zoning permit before converting occupied rental housing units to condominiums. The Supreme Judicial Court held the ordinance invalid under c. 40A, §4. The court reasoned that the ordinance regulated the form of ownership of properties in the city, but that "a building composed [of] condominium units does not 'use' the land it sits upon any differently than in identical building containing rental units." CHR General, 387 Mass. at 356-357. The court ruled that, under §4, any regulation of an as-of-right use must be "without regard to the ownership" of the use or "who may be the operator of the use." Id. (citation omitted).

Section 94.C of Rutland's Bylaw violates c. 40A, §4 because it makes the issuance of building permits turn, in part, on the identity of the property's owner, and whether he, she, or related applicants have received other as-of right permits within a calendar year. There's no evidence in the record before this Court that an applicant who'd like to pull, say, ten permits within a calendar year for construction of residential housing would use his or her ten lots any differently from ten unrelated individuals, each owning one lot, who wouldn't be subject to §94.C. While the Court understands that it might be politically wise to have a bylaw like §94.C – it may be easier to say "no" to one developer of ten lots than it is to disappoint ten separate, unrelated permit applicants – the stated purpose of the Bylaw is to limit development, across the board. Section 94.C's implicit preference for single-lot developers doesn't advance the Bylaw's stated purpose, and violates §4's uniformity principle.

Section §95.C of Rutland's Bylaw, as Brice Estate argues, also violates uniformity. Section 95.C provides an exemption to the Bylaw for "[s]ingle approval not required under the Subdivision Control Act (ANR) lots granted to an individual property owner who has not already been granted a building permit during the calendar year." CHR General requires the Court to ask: is there a difference between how lots in a subdivision and ANR lots use their land or municipal services? A subdivision under the Subdivision Control Act, c. 41, §81K et seq., is merely the division of land not served by existing ways into two or more lots. See id. at §81M (defining "subdivision"). An ANR lot typically is one resulting from the division of land that has frontage on existing roads. See id. at §81P. The only difference between subdivision and ANR lots is how they come into being.

Rutland argues in its opposition that ANR lots presumptively "already have frontage and access for public services, whereas a subdivision [lot] would require the creation of appropriate frontage and access for public services and emergency vehicles." Rutland is correct that whether a land has legal frontage, or whether that frontage needs to be created, typically distinguishes ANR lots from subdivision lots. But CHR General directs the analysis to the uses of both lot types. That's where Rutland's argument falls short. Take a property with an abutting road that has sufficient size and frontage to allow the creation of a new ANR lot. That lot would be exempt under §95.C from the Bylaw's building permit cap. Take a different property, one that's the same size as the first property, but lacking existing frontage for a second lot. If the owner of that property obtains subdivision approval (which typically would force the owner to create frontage for his or her second lot, at the owner's expense), the resulting second lot would nevertheless be subject to the Bylaw's building permit cap. Yet each scenario results in creation of one new lot, one new home (once a permit's obtained), and one new family, with its attendant demands on Rutland's infrastructure. Each lot's burden on municipal resources is the same. Section 95.C thus violates uniformity by providing ANR lots an exemption from the Bylaw, while denying subdivision lots the same privilege.

Having held that Rutland's Bylaw is constitutional, but that certain sections violate the Zoning Act, the Court turns to whether it should invalidate the Bylaw. The general rule is this: if an offending portion of a bylaw has independent force, one that justifies the inference that the municipality would have passed the bylaw without that portion, the court "will uphold the remainder of the enactment after the offending portion [is] struck." Del Duca v. Town Adm'r of Methuen, 368 Mass. 1 , 13 (1975), citing In re Opinion of Justices, 330 Mass. 713 , 726 (1953). Section 99 of Rutland's Bylaw states, "[t]he invalidity of any section or sections or parts of any sections or sections of this bylaw shall not affect the validity of the remainder." This shows that Rutland's town meeting intended each part of the Bylaw to have independent force, and thus this Court lawfully may strike the offending portions of the Bylaw (§§94.C and 95.C) while leaving the remainder.

The Court thus GRANTS in part and DENIES in part Brice Estates's motion for summary judgment on Count I of its complaint. The Court will DECLARE that (1) the term "affirmative vote" in §98 of the Bylaw means a two-thirds vote; (2) §94.C of the Bylaw violates c. 40A, §4, and thus must be stricken from the Bylaw (as well as the references to §94.C that appear in §94.A and §96 of the Bylaw); and (3) §95.C of the Bylaw also violates c. 40A, §4, and thus must be stricken from the Bylaw (as well as the reference to §95.C that appears in the first sentence of §95 of the Bylaw). The Court will DECLARE that all other sections of the Bylaw remain in effect in accordance with §99 of the Bylaw.

Judgment to enter accordingly.