Litigating land use in Massachusetts: defining municipalities' legitimate use of rate of development restrictions.

AuthorAustin, Janelle M.

A developer whose project is delayed for months or years--or stopped altogether--by obstreperous abutters sometimes decides not to suffer alone. He tells his lawyer to sue those pesky neighbors. Unfortunately, his attorney reminds him, it is much easier for the developer to be sued than to sue. His neighbors, after all, are simply exercising their constitutional and statutory rights to petition the government for redress of their grievances, springing from their unwillingness to have the developer's office building or shopping center in their backyards. (1)

The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities. (2)


Land use litigation is one of the most hotly contested areas of Massachusetts law. With scarce land left to develop, Massachusetts municipalities, developers, and property owners consistently clash over the proper use of land in the Commonwealth's communities.3 Rate of development restrictions are one of several land management tools that curb new development.

(4) A rate of development restriction, or rate cap, imposes limits on the amount of new units a developer can build during a specified period; the restrictions limit the volume of new development in a community. (5) Such restrictions, enacted by a municipal ordinance or bylaw, limit the growth of housing development within a community. (6) Although the immediate results of rate caps often please community protectionists and municipalities, they can equally create controversy among property owners seeking to subdivide and developers. (7)

Generally, land use litigation forces the judiciary to delicately balance the competing interests of landowners, developers, and the community. However, "too often, land use law resembles a legal war, rather than a set of laws designed to foster the livability of American communities." (8) Communities' rate of development restrictions, imposed with the aim of protecting municipal character and resources, can nevertheless affect and limit the alienability of landowners' property, posing a constitutional dilemma. (9) This legal obstacle forces landowners seeking development to sue for redress from the municipality's law and municipalities to defend the suit. (10) In 2004, the Massachusetts Supreme Judicial Court, (hereinafter "SJC"), in Zuckerman v. Hadley, (11) ruled that a town's zoning bylaw implementing rate of development restrictions on landowners was unconstitutional under the Due Process Clause of the U.S. Constitution. (12) The SJC held that the development restriction served no legitimate zoning purpose. (13) The court reasoned that a town could temporarily enact zoning restrictions while planning growth, but a "choke hold against future growth" is barred by the U.S. Constitution. (14) Therefore, following Zuckerman, Commonwealth municipalities, developers, and landowners must examine the purpose and duration of community rate of development restrictions with considerably more scrutiny than before.

This note will provide guidance to municipalities, developers, and property owners in Massachusetts in light of the SJC's decision in Zuckerman v. Hadley in which the court held that rate of development restrictions must serve a legitimate public purpose and must have a limited duration. (15) The note analyzes the permissible uses and scope of growth rate restrictions throughout the Commonwealth's zoning ordinances and bylaws.

Towns and cities impose rate of development restrictions on new housing development to curb the amount of new growth within a specified period. (16) Pursuant to Mass. Gen. Laws ch. 40A, Massachusetts cities and towns individually regulate land use throughout the Commonwealth. (17) This vast home-rule power often forces municipalities and landowners into litigation to protect their property interests. (18) The note fully considers what constitutes a legitimate development restriction and makes recommendations for municipalities and landowners to decrease overall land use litigation.

Section I of this note explores the historical and constitutional context of land use litigation in the United States and Massachusetts. This section also explains the issues of duration and purpose that courts traditionally examine to uphold rate restrictions with a focus on landowner relief. Section II provides a detailed analysis of the Zuckerman v. Hadley holding. Section III analyzes the judiciary's ability to balance competing land use interests through litigation post-Zuckerman.

The note emphasizes municipal interests in implementing rate of development restrictions with respect to a landowner's bundle of property rights. Moreover, this note examines the legal hurdles of land use and explains

why litigation is often a necessity for municipalities, landowners, and developers to protect their varied and vital property interests.


    1. Constitutional Test

      Land use restrictions delicately balance the landowner's interest in development against a municipality's concern for the rate and nature of development within a community. (19) Under the Due Process Clause of the 14th Amendment, a municipal zoning bylaw or ordinance must be rationally related to the community's land use goals. (20) In the landmark case of Village of Euclid v. Ambler Realty Co., (21) the United States Supreme Court held that a municipal's zoning purpose must be reasonably and substantially related to the community's goals. (22) A zoning bylaw cannot be "clearly arbitrary and unreasonable, having no substantial relation to public health, safety, morals, or general welfare." (23) This landmark decision established the judicial review standard to evaluate zoning conflicts between a municipality and a landowner. (24) To determine whether a zoning ordinance is valid, it is necessary to evaluate the specific ordinance in its particular context; a generalized determination of the provision's validity based on other cities or towns is insufficient. (25) Further, a court must assess the provision's validity by considering the totality of the circumstances surrounding the particular restriction, including the geography of the location and its particular characteristics. (26) Under the standard of review set forth in Village of Euclid, plaintiffs must first seek redress pursuant to the zoning ordinance or bylaw, and if that action fails, then make a claim that the zoning regulation is unconstitutional under the terms of the Due Process

      Clause. (27) The expansive standards of Village of Euclid remain the primary constitutional guidelines for community land use and development restrictions today. (28)

    2. Issues of Duration and Purpose

      Developers, landowners, and municipalities often rely on the requirements set forth in Village of Euclid to promote their claim in land use litigation. (29) More specifically, state and federal courts have held that the duration and purpose of a zoning provision are primary considerations when evaluating whether to uphold rate of development restrictions. (30) Courts justify sustaining municipal development restrictions based on the overriding public policy that municipalities are often challenged to maintain equilibrium within a community's housing market. (31) Thus, courts allow cities and towns to enact restrictions on housing development, so long as the restriction serves a reasonable purpose under the Village of Euclid guidelines. (32) C. Litigating Against Zoning Ordinances- The Evolution of Landowner Relief

      Since Village of Euclid, landowners have consistently petitioned the courts for relief from zoning ordinances and bylaws that restrict housing development. (33) As land becomes more expensive, land use litigation has steadily increased and judicial interpretation has played an increasing role in determining whether a zoning provision is arbitrary or constitutionally viable. (34) In Berman v. Parker, (35) the Court held that "the definition of the state's police power to regulate land use is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition." (36) Further, the Court reasoned, "subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive." (37) Courts often must interpret municipalities' land use intentions by examining bylaws and ordinances through the litigation process. (38) State and federal courts therefore are in the precarious position of examining zoning restrictions in search of a rational purpose to meet due process requirements against the backdrop of the state's illdefined, but undeniably broad, police powers. (39) Landowners currently seek redress in the courts after exhausting their statutory remedies provided in the zoning bylaw. (40) Although municipalities assure landowners, developers, and the courts that they are using rate of development restrictions to combat rapidly changing community character, courts sometimes view such provisions as contrary to the "general welfare" of the public. (41) D. Current Massachusetts Law: Limited Duration and Purpose

      The Massachusetts rule on upholding rate of development restrictions steadily evolved in the decades leading up to Zuckerman v. Hadley. (42) In 1980, the SJC held in Sturges v. Chilmark (43) that a "municipality may impose reasonable time limitations on development, at least where those restrictions are temporary and adopted to provide controlled development while the...

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