Posted by: Patricia Salkin | October 29, 2010

MA Supreme Court Upholds Smart Growth Zoning District

In 2004, the Massachusetts Legislature enacted legislation entitled “Smart Growth Zoning and Housing Protection” with the purpose to “encourage smart growth and increased housing production in Massachusetts.” This legislation further authorized municipalities to create “smart growth zoning districts” in eligible locations. The Town of Kingston, which has been experiencing rapid growth, was approached by defendant Thorndike Development Corporation (Thorndike) about the possibility of adopting a zoning amendment that would create a smart growth zoning district in the town. Shortly after, the town requested and received a preliminary determination from the Department of Housing and Community Development (the department designated as the regulatory agency charged with administering smart growth development) that the property would be in an “eligible location” for smart growth development. Shortly after the town, as required, applied for its proposed smart growth project which included certification of the amount of developable land and environmentally constrained land, none of which, at the time, included rare species habitat designation. A few months after the application, the Natural Heritage and Endangered Species Program issued its Natural Heritage Atlas that included a substantial portion of the land comprising the proposed development. Subsequently, the town did not revise its figures contained in its application to the department concerning the environmentally constrained land nor did they amend their application which they were required to do under the smart growth legislation. The department later issued a letter of eligibility approving the town’s application for the creation of the smart growth zoning district which was soon adopted by the Kingston Town Board at which point plaintiffs filed their original complaint seeking to have the zoning amendment invalidated.

The plaintiffs alleged that the zoning amendment is invalid as an arbitrary and unreasonable exercise of zoning power because the town failed to analyze and consider adequately relevant land use planning considerations, namely the failure to change in habitat designation to the land. The Land Court judge, while acknowledging that the town’s calculation of the amount of developable land was incorrect, found that the error did not invalidate the zoning amendment. The plaintiff’s then appealed to Massachusetts Supreme Court.

The Supreme Court found that while the regulatory mandate obligated the town to revise its figures concerning the project’s developable land in its submission seeking the department’s final approval, these omissions are not a basis to invalidate the zoning amendment itself. Instead, the court found, the consequences is one of a financial nature which triggers the suspension or repayment of financial incentives awarded to a municipality. The court further looked at the public policy involved and the fact that the town faced unprecedented development and had a pressing need for additional housing.  As a result of this, the zoning amendment, regardless of how the exact development turned out, served a valid public purpose as well as one of the purposes of the smart growth zoning statute.  Also, a designation of land as a priority habitat for a rare species does not preclude development but instead serves to impose an additional layer of permitting on the ultimate development in the smart growth zoning district.

DiRico v. Town of Kingston, 458 Mass. 83 (MA. 9/21/2010).

The opinion can be accessed at:

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