2002-TOWN MEETING RECORDS - Laserfiche WebLink

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T Kelli Lawrence, Esquire October 29, 2002 DAvis MALm cy Page 3 DAGOS TINE PSC. a Amusements, Inc. v. City of Boston, 29 Mass. App. Ct. 305, 309 (1990) (a zoning amendment is invalid if no substantial relation between the amendment and Zoning Act can be shown). This Section as currently written impermissibly bears no rational relationship to its intended purpose and should be disapproved. Prohibiting Use of Forty Percent (40%) of a Site Constitutes a Regulatory Taking Section 174-25.1(1) of the Amendment states, "A minimum of forty percent (40%) of the site shall be left in its undisturbed natural state". This Section forbids owners of land in a C-3 District from using almost half of their land for any purpose. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415- 416 (1922) ("[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking [and a] strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change"). Prohibiting use of such a substantial portion of land clearly constitutes a taking and is more properly administered by the town using its powers of eminent domain. Furthermore, the Supreme Judicial Court has expressly held that the Zoning Act does not authorize municipalities to require landowners to maintain land in it undisturbed, natural state unless there is a compelling reason to so, such as public safety. MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635, 640-41 (1970) ("The preservation of privately owned land in its natural, unspoiled state for the enjoyment and benefit of the public by preventing the owner from using it for any practical purpose is not within the scope and limits of any power of authority delegated to municipalities under the Zoning Enabling Act"); Barney & Carey v. Town of Milton, 324 Mass. 440, 448 (1949) ("Aesthetic considerations ... do not alone justify restrictions upon private property merely for.the purpose of preserving the beauty of a neighborhood or town"); see also Aronson v. Town of Sharon, 346 Mass. 598, 604 (1964) (the burden of providing recreational and undisturbed areas "should not be borne by the individual property owner unless he is compensated"). No proper public purpose has been set forth to justify such an intrusive regulation. Accordingly, this provision is facially invalid and should be invalidated by your office. The Amendment Permits No Uses as of Right in C-3 Districts Under the Amendment, landowners must obtain a special permit for all uses in C-3 Districts. Not only does the Amendment prohibit the use of property for all uses traditionally associated with a commercial district unless first obtaining a special permit, it also fails to provide landowners a