DiRico v. Town of Kingston

934 N.E.2d 208, 458 Mass. 83
CourtMassachusetts Supreme Judicial Court
DecidedSeptember 21, 2010
DocketSJC-10628
StatusPublished
Cited by1 cases

This text of 934 N.E.2d 208 (DiRico v. Town of Kingston) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiRico v. Town of Kingston, 934 N.E.2d 208, 458 Mass. 83 (Mass. 2010).

Opinion

Ireland, J.

We transferred this case here on our own motion *84 to determine the validity of an amendment to the defendant town of Kingston’s (town’s) zoning bylaw that created a “smart growth” zoning overlay district (zoning amendment) pursuant to G. L. c. 40R and its enabling regulations, 760 Code Mass. Regs. §§ 59.00 (2005). The plaintiffs, who own and reside on land abutting or near the smart growth zoning district, 3 contend that the zoning amendment is an arbitrary or unreasonable exercise of the town meeting’s zoning power because the town “failed to analyze and consider adequately relevant land use planning considerations.” The plaintiffs focus on a decrease in the amount of developable land comprising the smart growth zoning district on account of a change in designation of a portion of that land as a “priority habitat” (see note 11, infra) for rare species protected under the Massachusetts Endangered Species Act (MESA), G. L. c. 131 A, and its implementing regulations, 321 Code Mass. Regs. §§ 10.00 (2005). Although the town should have revised its figures concerning the amount of developable land comprising the smart growth zoning district, we conclude that its failure to do so did not invalidate the zoning amendment. We therefore affirm the Land Court judge’s grant of summary judgment in favor of the defendants and the judgment dismissing the complaint.

1. Statutory and regulatory framework. In 2004, the Legislature enacted legislation entitled “Smart Growth Zoning and Housing Production,” which is codified at G. L. c. 40R. See St. 2004, c. 149, § 92. The stated purpose of the statute is “to encourage smart growth and increased housing production in Massachusetts.” G. L. c. 40R, § 1. The statute defines “[sjmart growth” as follows:

“Smart growth is a principle of land development that emphasizes mixing land uses, increases the availability of affordable housing by creating a range of housing opportunities in neighborhoods, takes advantage of compact design, fosters distinctive and attractive communities, preserves open space, farmland, natural beauty and critical environmental areas, strengthens existing communities, provides a variety of transportation choices, makes develop *85 ment decisions predictable, fair and cost effective and encourages community and stakeholder collaboration in development decisions.”

Id. The Legislature has designated the Department of Housing and Community Development (department) as the regulatory agency charged with administering smart growth development. Id. at § 12. The department has implemented regulations concerning the smart growth program and its operation. 760 Code Mass. Regs. §§ 59.00.

To effectuate smart growth, municipalities are authorized to create so-called “smart growth zoning districts” in “eligible location[s].” 4 G. L. c. 40R, § 3. A smart growth zoning district may be adopted by any city or town as part of its zoning ordinance or bylaw in accordance with the standards set forth in G. L. c. 40A, § 5 (setting forth procedure for adoption or amendment to municipal zoning ordinance or bylaw). G. L. c. 40R, § 3. The smart growth statute requires, among other mandates, that primary residential use be allowed “as of right” in a smart growth zoning district. Id. In addition, a municipality may permit “business, commercial or other uses consistent with primary residential use” in a smart growth zoning district. Id. A comprehensive list of the minimum requirements for a smart growth zoning district appears at G. L. c. 40R, § 6 (a).

It should be understood that a smart growth zoning district is an overlay district that is “superimposed over [one] or more zoning districts in an eligible location, within which a developer may elect to either develop a project in accordance with requirements of the smart growth zoning ordinance or by-law, or develop a project in accordance with requirements of the underlying zoning district.” Id. at § 2. Projects developed in accordance with the requirements of a smart growth zoning ordinance or bylaw are to be governed solely by those provisions and “without any reference to the standards or procedures of the [underlying [z]oning that would otherwise be applicable to developments *86 within the same geographic area as the [district.” 760 Code Mass. Regs. § 59.04(1)(1). “Without limitation,” the smart growth zoning district ordinance or bylaw “shall set out the dimensional, use, parking, and other standards applicable to [projects within the [smart growth zoning district] including but not limited to height limits, setbacks, lot areas, lot dimensions, unit to lot ratios, floor area ratios, lot coverage ratios, open space ratios, parking ratios, parking locations, and roadway design standards.” Id. “Such provisions may change the dimensional and other standards contained in the [underlying [z]oning in order to allow the densities, [a]ffordability,[ 5 ] mix of uses, and physical character of [projects which are permitted [a]s-of-right . . . .” Id. The ordinance or bylaw “may allow the [approving [a]uthority,[ 6 ] through the [p]lan [r]eview process, to waive specific dimensional and other standards (other than [a]ffordability requirements) otherwise applicable to a [p]roject.” Id.

In providing for smart growth zoning, G. L. c. 40R and 760 Code Mass. Regs. § 59.05 set forth a detailed procedural framework for municipalities and the department to follow. As relevant here, a municipality must first hold a public hearing on whether the provisions of a smart growth zoning ordinance or bylaw shall be adopted by the municipality. 760 Code Mass. Regs. § 59.05 (1). Thereafter, a municipality submits its completed application to the department for a preliminary determination of eligibility. Id. at § 59.05 (2). The information in the application shall:

“(a) identify and describe the boundaries of the proposed smart growth zoning district;
“(b) identify and describe the developable land area within the proposed smart growth zoning district;
*87 “(c) identify and describe other residential development opportunities for infill housing and the residential re-use of existing buildings and underutilized buildings within already developed areas;
“(d) include a comprehensive housing plan, as set forth in section 8;
“(e) include a copy of the proposed smart growth district ordinance or by-law;
“(f) by narrative and exhibits, establish the elements set forth in section 6 [minimum requirements for smart growth zoning district].”

G. L. c. 40R, § 5. See 760 Code Mass. Regs. § 59.03.

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Bluebook (online)
934 N.E.2d 208, 458 Mass. 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dirico-v-town-of-kingston-mass-2010.