Home Builders Ass'n of Cape Cod, Inc. v. Cape Cod Commission

441 Mass. 724
CourtMassachusetts Supreme Judicial Court
DecidedMay 19, 2004
StatusPublished
Cited by7 cases

This text of 441 Mass. 724 (Home Builders Ass'n of Cape Cod, Inc. v. Cape Cod Commission) 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
Home Builders Ass'n of Cape Cod, Inc. v. Cape Cod Commission, 441 Mass. 724 (Mass. 2004).

Opinion

Greaney, J.

We transferred this case here on our own motion to decide whether a district of critical planning concern (DCPC), comprising the entire town of Barnstable (Barnstable DCPC), is valid under St. 1989, c. 716, “An Act establishing the Cape Cod commission” (Act). A DCPC is, essentially, a land use planning device that in this case was used to establish a rate of development in a Cape Cod municipality in order to preserve certain resources pursuant to a complex legislatively authorized regulatory scheme that we shall describe shortly. A judge in the Superior Court concluded that the Barnstable DCPC was invalid under the Act, ordered the entry of a declaration so stating, and allowed summary judgment in favor of the plaintiffs. The judge simultaneously denied the defendants’ motions for summary judgment. We conclude that the plaintiffs did not establish that the Barnstable DCPC is invalid under the Act and direct entry of a judgment for the defendants.

1. Background. The background of the case is drawn from the parties’ statement of agreed facts and evidence. On February 22, 2001, the Barnstable town council (town council) voted nine to one to adopt a resolution supporting the town manager’s nomination of the town as a DCPC under the Act. The nomination was made “to address the rate of residential development” in the town, which, if continued at its present growth rate “would have serious consequences for municipal infrastructure” and would “move the town further away from its goal of [providing] [ten per cent] affordable housing stock.” The nomination proposed an “[ajffordable [hjousing [implementation and [g]rowth [m]anagement [district” to “schedule” the rate of development in the town. Suggested guidelines for development in the proposed district included an annual residential building permit cap ordinance with a preference for [726]*726affordable housing, and a general ordinance and board of health regulation “limiting nitrogen discharged from new residential subdivisions (e.g. shared denitrifying system requirements).” The nomination was submitted with the following supporting documents: the Barnstable zoning map; the Barnstable local comprehensive plan (LCP) which was adopted by the town council in October, 1997, and approved by the defendant Cape Cod commission (commission) in February, 1998; the Barnstable zoning ordinance; the Barnstable general ordinance; the Barnstable affordable housing plan; the Barnstable capital improvements plan; town wide build-out calculations (updated from the 1996 LCP); and a “section 7 smart growth committee report.”3

The nomination was forwarded to the commission, and the commission voted to accept the nomination for consideration. On April 26, following a public hearing on the proposed Barn-stable DCPC, the commission voted to forward the designation, together with a proposed county ordinance, to the Barnstable county assembly of delegates (assembly)* **4 for approval. In its decision to recommend designation, the commission published, as required by the Act, guidelines for development in the Barn-stable DCPC (guidelines). The assembly referred the proposed Barnstable DCPC and ordinance back to the commission for restudy, and requested answers to five questions concerning the [727]*727proposed DCPC. On July 18, the commission forwarded an amendment to the proposed ordinance and responses to the assembly’s questions.

On July 19, the town council voted to amend its zoning ordinance to include a building cap mechanism. The amendment was proposed as implementing regulations in the event that the proposed Barnstable DCPC was adopted by the assembly. On September 5, the assembly voted to adopt the ordinance designating the Barnstable DCPC (ordinance 01-19). The ordinance then was approved by the board of county commissioners* ***5 and, on September 13, was recorded at the Barn-stable county registry of deeds.

On September 7, the town submitted to the commission its amendment to its zoning ordinance as its proposed regulations implementing the Barnstable DCPC. Following a public hearing, the commission, on September 20, voted to approve the implementing regulations as consistent with the guidelines, and issued a certificate of consistency to that effect. The town’s implementing regulations became effective the following day.6

The plaintiffs are the Home Builders Association of Cape [728]*728Cod, Inc. (Home Builders), a nonprofit association of Cape Cod home builders whose members are actively involved in the construction trade throughout Barnstable County, and Mogan and Company, Incorporated (Mogan), a home builder doing business on Cape Cod. The plaintiffs commenced suit in the Superior Court seeking injunctive and declaratory relief. The plaintiffs initially sought a preliminary injunction, which was denied. The order denying that relief has not been appealed. This proceeding concerns the parties’ cross motions for summary judgment in connection with the plaintiffs’ prayer for two declarations: (1) that the Barnstable DCPC is unlawful, under the Act; and (2) that “no entire [tjown within Barnstable County may be considered appropriate for nomination and/or designation as a DCPC under the terms of the Act.”

Noting that there is “no precedent for a town-wide DCPC under [the Act],” the judge concluded that a DCPC could not be town wide. He also concluded that the Barnstable DCPC did not maintain or preserve a resource or value protected under § 10 (a) of the Act. The judge', interpreting the history of this DCPC, understood it to be designed to protect only economic resources, and he decided that the Act requires the existence of a specific economic resource of critical value to the region. He explained, in support of his decision, that the Barnstable DCPC’s “generalized concerns about affordable housing and phased development,” concerns shared by most of the towns on Cape Cod, did not satisfy the requirement. The judge allowed the plaintiffs’ motion for summary judgment, and ordered that a declaration enter stating that the Barnstable DCPC “is void as being an act in excess of the authority of the [Act].” He simultaneously denied the defendants’ cross motions for summary judgment.

2. The statutory and regulatory framework. The Act, amended in ways not relevant here, see St. 1990, c. 2, was enacted as a local option law that was approved at a special county election [729]*729held by all fifteen municipalities of Barnstable county.7 See St. 1989, c. 716, §§ 18, 21. The Act created the commission, the “regional planning and land use commission for Cape Cod.” Id. at § 3(a). The commission is denominated “an agency within the structure of Barnstable county government.” Id. It consists of nineteen members, including a representative from each of the county’s fifteen municipalities, who are appointed by each municipality’s board of selectmen;8 one county commissioner for Barnstable County, who is appointed by the board of county commissioners; one Native American and one minority, each appointed by the board of county commissioners; and one minority who is appointed by the Governor. Id. at § 3(h). Each member must be a resident and a registered voter of one of the towns of Barnstable County. Id. Each member has one vote, except the Governor’s appointee, who votes only in the case of a tie vote. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
441 Mass. 724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/home-builders-assn-of-cape-cod-inc-v-cape-cod-commission-mass-2004.