Smart Growth Land Development

02/17/2011- Robinson Donovan Case Digest

A recent decision by the Massachusetts Supreme Judicial Court in the matter of DiRico v. Town of Kingston, SJC-10628 held that a town's failure to revise its figures regarding environmentally constrained land within a smart growth zoning district did not invalidate an amendment to the town's zoning bylaw that created the district. In 2004, the Massachusetts Legislature passed legislation to encourage smart growth and increased housing production in the Commonwealth. "Smart growth" is a land development principle that focuses, in part, on mixing land uses, increasing the availability of affordable housing, preserving open space and critical environmental areas, and encouraging community and stakeholder collaboration in development decisions. To implement smart growth, the legislation authorizes municipalities to create smart growth zoning districts in eligible locations and also provides financial incentives for them to do so.

The Town of Kingston faced development pressures as the town's population grew by sixty per cent between 1980 and 2000, and in 2007 it adopted an amendment to its zoning bylaw creating a smart growth zoning district. As part of this process, the town needed the approval of the Massachusetts Department of Housing and Community Development (the "Department"). The Department required the town to provide annual updates regarding, in part, the developable land area in the smart growth zoning district. In November of 2006, the town became aware of the fact that possibly as much as fifty per cent of the smart growth zoning district was designated as a priority habitat of State-listed rare species. The town failed to revise its figures relating to the developable land area in its update to the Department. In challenging the validity of the zoning amendment, the plaintiffs claimed that the town should have informed the Department of the effect of the change in the developable land based on the information it received in 2006 regarding habitats of endangered species.

While the Supreme Judicial Court concluded that the town failed to revise its figures concerning the developable land area in the smart growth zoning district in accordance with state law, it held that this failure was not sufficient to invalidate the zoning amendment. The Court explained that the actual consequence is the triggering of a suspension or repayment of financial incentives awarded to the town by the State. The Court also stated that the town had a pressing need for more housing and the zoning amendment served a valid public purpose by creating additional housing. The Court reasoned that a designation of land as a priority habitat for rare species does not halt development, but instead creates an additional layer of permitting on the final development in the smart growth zoning district.

This article is a general summary only and does not constitute legal advice.

Benjamin S. Klein is an attorney at Robinson Donovan, P.C. For questions about zoning litigation or any other litigation matters, please contact your RD attorney or Attorney Klein at (413) 732-2301.