SOUP TO NUTS: AMENDING ZONING BY-LAWS AND ORDINANCES CPTC ANNUAL MEETING 2012

Transcription

1 SOUP TO NUTS: AMENDING ZONING BY-LAWS AND ORDINANCES CPTC ANNUAL MEETING 2012 By BARBARA J. SAINT ANDRE, ESQ. PETRINI & ASSOCIATES, P.C. 372 Union Avenue Framingham, MA (508) I. ADOPTION AND AMENDMENT OF ZONING ORDINANCES AND BY-LAWS The Zoning Act provides a specific procedure that a municipality must follow when adopting or amending its zoning ordinance or by-law. For detailed information regarding this procedure, please refer to Chapter 40A, Section 5. A. Initiation The process of adopting or changing a zoning by-law or ordinance begins with the filing of the proposal with the city council or board of selectmen. A proposal may be initiated by: city council, board of selectmen, zoning board of appeals, an individual owning land to be affected by the change or adoption of zoning, request of ten registered voters of a town or city (100 for a special town meeting warrant), a planning board, a regional planning agency, or other methods provided by the city or town charter. Within fourteen days of receipt, the city council or board of selectmen must submit the zoning proposal to the planning board for its review. The statute is silent as to the failure of either the board of selectmen or city council to submit the proposal to the planning board within the required fourteen-day period. However, in considering the court's rationale in Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471 (1984), the fourteen-day period may only be directory and not mandatory. B. Public Hearing No zoning proposal may be adopted without a public hearing. The purpose of the public hearing is to give interested persons a chance to express their views and opinions. Woods v. Newton, 351 Mass. 98 (1966) (purpose of public hearing is to enable planning board to be informed of zoning proposal and of citizens' views and report its 2012 Petrini & Associates, P.C. All Rights Reserved

2 recommendations if it wishes to do so). In towns, the planning board must hold a public hearing within sixty-five days after the zoning proposal has been submitted to the planning board by the board of selectmen. If there is no planning board, the board of selectmen must hold the public hearing within sixty-five days after the zoning proposal has been submitted to them by one of the parties authorized to initiate a proposal. In cities, the planning board, and the city council or committee designated or appointed by the city council for such purpose, must hold a public hearing within 65 days after the zoning proposal has been submitted to the planning board by the city council. If there is no planning board, the city council or committee designated or appointed for such purpose, must hold a public hearing within sixty-five days after the zoning proposal has been submitted to the city council by one of the parties authorized to initiate a proposal. The required public hearings by the planning board and city council may be held together or separately. The hearing authority must give notice of the public hearing. Notice of the public hearing must be published in a newspaper of general circulation in the municipality once in each of two successive weeks. The first publication cannot be less than fourteen days before the day of the hearing. (Do not count the day of the hearing in the fourteen days.) Notices of the public hearing do not have to be published in a newspaper a full week apart, but must be published in separate calendar weeks which are successive. In addition to newspaper publication, the same notice must be posted in a conspicuous place in the city or town hall for a period of not less than fourteen days before the day of the public hearing. Copies of the notice must also be sent by mail, postage prepaid, to: a. the state Department of Housing and Community Development (DHCD); b. the regional planning agency for the area, if any; c. the planning boards of all abutting cities and towns; and d. if the zoning ordinance or by-law provides for notification of nonresident property owners when there is a change within a district, then notice must be sent to any such property owner who files an annual request for notice with the municipal clerk no later than January first each year and pays any required fees. DHCD, regional planning agencies, planning boards of abutting municipalities and certain nonresident property owners may waive rights to notice prior to legislative action on a zoning proposal. 2

3 The public hearing notice must contain the following information: a. the time, date and place of the public hearing; b. the subject matter of the public hearing sufficient for identification; and c. the place where the text and maps may be inspected. See Crall v. Leominster, 362 Mass. 95 (1972) (description in planning board notice giving general location of the parcel to be rezoned and referring to a petition and plan containing a detailed description on file in the planning board office satisfied requirement that notice was "sufficient for identification"). Following the public hearing, the planning board is allowed the opportunity to submit a report with recommendations to the city council or town meeting. If the planning board fails to do so within twenty-one days after the hearing, the legislative body may proceed in the absence of such a report. The vote of the planning board is advisory and not binding on voters, so that planning board opposition to a zoning amendment is not grounds for invalidating a town meeting vote. Noonan v. Moulton, 348 Mass. 633 (1965). See Daly Dry Wall, Inc. v. Board of Appeals of Easton, 3 Mass. App. Ct. 706 (1975)(rescript) (a planning board may finalize text after a hearing provided the board does not change the substantial character of the original proposal). What constitutes an adequate planning board report has been the source of some controversy and case law. Much of the case law was decided under the old Zoning Enabling Act, but it is still valid. In Whittemore v. Town Clerk of Falmouth, 299 Mass. 64 (1937) a statement by the planning board that after a tie vote it was "unable at this time to make any recommendations" was ruled not a "report with recommendations". However, where the planning board reported to the city council recommending passage of a proposed zoning amendment, and subsequently, before the public hearing by the council, submitted to the council detailed reasons for such recommendations, this was deemed sufficient to comply with requirements of the Zoning Enabling Act. Shannon v. Building Inspector of Woburn, 328 Mass. 633 (1952). See also Doliner v. Town Clerk of Millis, 343 Mass. 10 (1961) (the requirement that a final report with recommendations be submitted to the town meeting was satisfied when the planning board recorded its written approval of the zoning proposal and its chairman explained them at town meeting). Often, the recommendation of the planning board, even if not specifically stated, can be inferred from the board s vote. In Caputo v. Board of Appeals of Somerville, 330 Mass. 107 (1953), an opinion of the planning board sent to the aldermen stating that the planning board considered it inadvisable to recommend a zoning change was regarded as a final report with negative recommendations. Similarly, a report that the planning board had voted unanimously to ask town meeting to refer an article back to the planning board for further study because of general study being undertaken by the board was a "final report" with negative recommendations. Rousseau v. Building Inspector of Framingham, 349 Mass. 31 (1965). 3

4 C. Changes to Zoning Proposals After a planning board has held a public hearing on a proposed zoning proposal, how much can it change the original proposal, when making a recommendation to the town meeting or city council, without holding a new hearing with a new publication of notice? How far can a town meeting or council go in amending the original proposal? The answers to these two questions revolve around the statutory requirements found in Chapter 39 of the General Laws, which deals with the issuance and contents of a town meeting warrant, and Chapter 40A, which requires notice and a public hearing by the planning board prior to legislative action on a zoning proposal. Town meeting does have the flexibility to make amendments to a zoning proposal. Obviously, if the identity of the zoning proposal is utterly changed then the planning board must hold a new public hearing. As has been noted by the courts, a new notice, hearing and opportunity to report by the planning board will be required if the amendment to the zoning proposal: a. changes the identity or substantial character of the original zoning proposal; b. fundamentally departs from the original proposal; or c. radically differs from the original proposal. Perhaps a good rule of thumb to remember is whether a reasonable person could have foreseen the final action from reading the initial notice. In the leading case of Fish v. Canton, 322 Mass. 219 (1948), an amendment to the zoning by-law reducing minimum lot area and lot frontage in certain districts and changing one zoning district to another was invalid where the original proposal was to see if the town would repeal in its entirety the existing zoning by-law. Similarly, in Nelson v. Belmont, 274 Mass. 35 (1931), where a proposed zoning district boundary line described in the town meeting warrant kept the front part of a certain tract of land in a business zone, and the remainder of the tract would be changed from business to residential, an amendment which changed the zone line so that the entire tract would fall within a general residence district was invalid. On the other hand, changes to a zoning proposal that do not fundamentally alter its character have been upheld against challenges. In Sullivan v. Board of Selectmen of Canton, 346 Mass. 784 (1964) (rescript), the original proposal was to amend the zoning map by changing an area of land from single residence to a general residence district along a certain street for feet. When an amendment was made which extended the general residence zone feet along the same street, the court ruled this was valid. In Morgan v. Banas, 331 Mass. 694 (1954), a proposal to zone a 28 acre parcel from residential to business was altered to rezone only 17 acres to business. Again, the court upheld this as within the scope of the original proposal. See also Johnson v. Framingham, 354 Mass. 750 (1968) (where original proposal was to see if the town would amend the zoning by-law to permit golf clubs and tennis courts, court held valid an amendment to zoning by-law to permit golf clubs by 4

5 special permit and requiring a minimum parcel area for golf clubs of 50 acres); Dunn v. Burlington, 318 Mass. 216 (1945) (where five map amendments to a comprehensive zoning proposal were valid); Doliner v. Town Clerk of Millis, 343 Mass. 10 (1961) (where 13 perfecting amendments to a comprehensive zoning proposal were held valid). D. Approval of Amendment After receipt of the planning board's report or after the lapse of the twenty-one day period without such report, the legislative body may adopt, amend and adopt, or reject the zoning proposal. The required votes to adopt or change a zoning ordinance or by-law are as follows: a. a two-thirds vote of a town meeting; b. a two-thirds vote of all members of a town council; c. a two-thirds vote of all members of a city council; d. a two-thirds votes of all members of each branch where there is a two branch form of government; or, e. for councils with less than twenty-five members, a three-fourths vote of all members when there is a written protest filed against the zoning change by the owners of twenty percent or more of the area to be included in such change or of the area of land immediately adjacent extending three-hundred feet from the boundary of the area affected by the proposal. If the town meeting fails to vote to adopt the zoning proposal within six months after the hearing by the planning board, no action can be taken on that proposal until after a subsequent notice, another public hearing and report by the planning board. If a city or town council fails to vote to adopt the zoning proposal within ninety days after the hearing by the city or town council, no action can be taken on that proposal until after a subsequent notice, public hearings or joint hearing and report by the planning board. With respect to city or town councils, there can be no doubt that "all the members of the council" means the full membership. Kubik v. Chicopee, 353 Mass. 514 (1968). However, the members of the council do not necessarily have to have attended the public hearing. Morgan v. Banas, 331 Mass. 694 (1954) (an amendment to a zoning ordinance was not invalid where there was a substantial change in the membership of the city council, through an election, between the time the council held a public hearing and voted to adopt). If a city or town acts unfavorably on a zoning proposal, such zoning proposal can not be considered by the council or town meeting within two years from the date of the unfavorable action unless the adoption of the zoning proposal is recommended in the 5

6 final report of the planning board. An unfavorable vote includes a town meeting vote to indefinitely postpone action on a proposal. Wood v. Milton, 197 Mass. 531 (1908) (a vote at town meeting to "indefinitely postpone" action on an article is the equivalent of complete disapproval). There are, however, votes that are not considered unfavorable action, such as referral to a committee, that can save a zoning proposal from the ban on repetitive petitions. In towns only, zoning amendments must be approved by the Attorney General after the conclusion of the town meeting vote. G.L. Chapter 40, Section 32. A statement must be sent to the Attorney General which explains the amendment. This statement may be prepared by the planning board. After the Attorney General approves the amendment, the town must publish the amendment in a bulletin or pamphlet and post it, or publish the amendment in a newspaper pursuant to G.L. Chapter 40, Section 32. If the town clerk fails to submit the zoning amendment to the Attorney General within 30 days after the final adjournment of town meeting, the board of selectmen may submit it within 15 days thereafter. Chapter 40, Section 32 also authorizes the Attorney General to waive defects in the procedure of adoption or amendment of any zoning by-law relating to the form or content of the notice of the planning board hearing or to the manner or dates that the notice is mailed, posted or published. Section 32 establishes the requirements that must be followed when the Attorney General elects to grant a waiver and the specific duties that must be performed by the town clerk. Legal action arising out of any possible procedural defect in the adoption or amendment process must be commenced within the time period specified in Chapter 40, Sections 32 and 32A, which provide that such legal action must be commenced within 90 days of posting or of the second publication of the by-law or ordinance. The publication of a zoning by-law or ordinance must include a statement that claims of invalidity by reason of any defect in the procedure of adoption must be made within 90 days of posting or of the second publication. The statement must also indicate where copies of the by-law or ordinance may be examined or obtained. If an action is commenced, a copy of the petition submitted to the court must be filed with the city or town clerk within seven days after the court action is commenced. A true copy of the latest effective zoning ordinance or by-law must be kept on file and available for inspection in the office of the municipal clerk. A copy of all zoning ordinances adopted by a city council must be forwarded by the city clerk to the Attorney General. II. VALIDITY OF ZONING BY-LAWS AND ORDINANCES Although a complete treatise on the validity of zoning by-laws and ordinances is beyond the scope of this seminar, the following provides a review of some of the issues that should be kept in mind when adopting and revising zoning by-laws and ordinances. 6

7 A. General Considerations By-laws enacted by town meeting must be submitted to the Attorney General s office for approval; this does not apply to cities. G.L. c. 40, 32. The Town Clerk will submit all by-law amendments within 30 days after town meeting, with a checklist developed by the Attorney General s office and back-up material. The Attorney General has 90 days to review (this can be extended by mutual consent). If approved, the by-law then has to be published by posting or publication in a town bulletin or pamphlet. Minor procedural defects can be waived by following a procedure in the statute that includes posting a notice and publication of the defect. If any person claims the defect was misleading or prejudicial, they can file a statement that is forwarded to the Attorney General. G.L. c. 40, 32. Review of by-laws under section 32 is somewhat limited; the Attorney General reviews whether the by-law is valid on its face. If a proposed by-law is capable of any interpretation or application that would make it legal, then the by-law must be approved. Concord v. Attorney General, 336 Mass. 17, (1957). Thus, approval by the Attorney General s office is no guarantee that a particular by-law will be upheld if challenged in court by an aggrieved party. As noted above, Massachusetts is a Home Rule state with regard to the authority of cities and towns to adopt zoning provisions. A zoning ordinance or by-law, or amendment to a zoning ordinance or by-law, will be valid unless it conflicts with the enabling statute, Chapter 40A, or some other statutory or constitutional provision. See Baldiga v. Board of Appeals of Uxbridge, 395 Mass. 829 (1985). Every presumption is to be made in favor of a zoning ordinance or by-law enacted by a city or town. Sturges v. Chilmark, 380 Mass. 246, 256 (1980). A person challenging a zoning provision has a heavy burden to show that it conflicts with the Constitution or the Zoning Act. Caires v. Building Commissioner of Hingham, 323 Mass. 589 (1949). Where a zoning provision does impinge on a Constitutionally protected interest, however, it will be invalid. Framingham Clinic, Inc. v. Board of Selectmen of Southborough, 373 Mass. 279 (1977) (zoning by-law invalid because it infringed on constitutionally protected right of a woman to terminate her pregnancy). In addition, a zoning provision cannot be so vague that it allows untrammeled discretion on the part of the enforcing authority, or does not provide clear guidance as to what is allowed or not allowed. See Commonwealth v. Jaffe, 398 Mass. 50 (1986). An example of a zoning provision that was struck down as inconsistent with the Zoning Act is CHR General, Inc. v. Newton, 387 Mass. 351 (1982). The zoning ordinance in question regulated the conversion of rental units to condominiums. The court ruled that the ordinance was invalid, because a building of condominiums units does not use the land any differently than an identical building containing rental units. A fundamental principle of zoning is that it deals basically with the use, without regard to the ownership of the property involved or who may be the operator of the use. Id. at

8 B. Regulatory takings Where a zoning provision does not constitute a physical invasion of private property, but nevertheless imposes restrictions on its use, land owners sometimes claim that the zoning constitutes a so-called regulatory taking, also known as inverse condemnation. A regulatory taking occurs only when a regulatory scheme is so restrictive as to deprive the property owner of all use of his land. Under both the federal and Massachusetts constitutions, the regulatory takings analysis focuses on whether the regulatory action substantially advances a legitimate governmental interest, and whether it denies all economically beneficial or productive use of the land. Lucas v. South Carolina Coastal Council, 505 U.S (1992). With respect to the first component of the taking analysis, the regulation of private property development in the public interest typically satisfies this requirement. See Nollan v. California Coastal Commission, 483 U.S. 825, (1987) (noting the broad range of governmental purposes and regulations that are legitimate); Lovequist v. Conservation Commission of Dennis, 379 Mass. 7, 19 (1979). With regard to the second component of the takings analysis, a landowner is not entitled to develop his land in whatever manner he chooses, without reasonable governmental restriction. Lucas, supra. To the contrary, governmental restriction upon the ability to conduct specific activity on property, such as construction of a particular structure, even a single-family dwelling, does not deprive the property of all economically beneficial use, and therefore is not a taking. See Lopes v. Peabody, 417 Mass. 299 (1994). Only those governmental actions which strip private property of all practical value to them or anyone acquiring it, leaving them only with the burden of paying taxes on it, may be properly characterized as a taking. Lovequist, supra. Further, courts consistently hold that, where development is restricted on a portion of a parcel of land, the court must look at the parcel as a whole, not just those portions for which development is restricted. Moskow v. Commissioner of Department of Environmental Management, 384 Mass. 530, 534 (1981). C. Uniformity Requirement and Spot Zoning Section 4 of the Zoning Act provides: Any zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures permitted. This Section prohibits what is referred to as spot zoning. Spot zoning occurs when a particular parcel of land is arbitrarily singled out for special zoning treatment without any apparent circumstances warranting such treatment. E.g. Rosko v. Marlborough, 355 Mass. 51 (1968). Courts will invalidate a zoning classification as spot zoning if: 1. land has been singled out for treatment different from that accorded to similar, surrounding land, and 8

9 2. The zoning classification is for the benefit of the individual owner and not for any public purpose. Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542 (1949). The size of the spot is not the determining factor. The zoning will not be spot zoning if there is a valid public purpose for it. Raymond v. Building Inspector of Brimfield, 3 Mass. App. Ct. 38 (1975). Spot zoning allegations may be defeated by demonstrating that the rezoning serves a valid public purpose. National Amusements, Inc. v. Boston, 29 Mass. App. Ct. 305, 309 (1990). For example, in Durand v. IDC Bellingham, LLC, 440 Mass. 45 (2003), land was re-zoned to industrial after the utility offered to donate $8 million to the town if re-zoning was approved. The Supreme Judicial Court, in upholding the re-zoning, noted that the passage of the Home Rule Amendment has accorded municipalities broad authority in adopting ordinances and by-laws. An agreement between the town and a property owner to rezone a parcel of land may violate the process mandated by Section 15, but there was no such agreement here. The re-zoning served a valid public purpose. The locus abutted other industrial land and a town appointed task force recommended the re-zoning after studying the town s economic development needs. The court does not try to ascertain motives of the members of the town s legislative body as to whether the promised gift of money was a motivating factor. Allegations of spot zoning usually occur when the re-zoning benefits the owner of the land being re-zoned. However, reverse spot zoning occurs when the land is singled out for different treatment, but the zoning is detrimental to the individual land owner, rather than beneficial. Andrews v. Amherst, 68 Mass. App. Ct. 365 (2007). In the Andrews case, land was re-zoned to flood plain against the wishes of the land owner. The owner challenged the re-zoning as in violation of the uniformity clause, but the court upheld the town. The motive of the citizen petitioners was deemed irrelevant by the court, so long as the re-zoning was supported by rational reasons. The court determined that the re-zoning was not over-inclusive, simply because this was the only land that was zoned flood plain that was located further than feet from a watercourse (the minimum provided in the by-law). The town was not required to show that every square inch of the re-zoned parcels were subject to flooding, where it was established that a large portion of the land had been flooded. The court also ruled that the re-zoning was not under-inclusive, since the surrounding land not in the flood plain zone was already subject to restrictions and zoning that were similar to the flood plain restrictions. A proposed re-zoning should be analyzed in terms of the physical characteristics of the land, its location, size, and the nature of adjoining land uses and development, as well as the public purposes served by the re-zoning. Barney & Casey Co. v. Milton, 324 Mass. 440, 449 (1949). The rezoning should be reviewed prior to the vote of the legislative body to determine if it serves a public purpose. Those valid public purposes should be reflected in the record, such as planning board public hearing minutes, town meeting reports, recommendations, and debate. 9

10 D. Vagueness A zoning ordinance or by-law may be found unconstitutionally void for vagueness if it is so vague that it allows untrammeled discretion on the part of the enforcing authority, or does not provide clear guidance as to what is allowed or not allowed. See Commonwealth v. Jaffe, 398 Mass. 50 (1986). In other words, the zoning must be clear enough so that persons of common intelligence will be on notice as to what is allowed or not allowed. Commonwealth v. Jaffe, 398 Mass. 50, 54 (1986). The classic case where the courts found a zoning ordinance void for vagueness is O Connell v. Brockton, 344 Mass. 208 (1962). The ordinance in question provided: Where in a residence district at least one-half of the buildings situated on either side of a street between two intersecting streets conform to a minimum setback line, no new building shall be erected to project beyond such setback line. The Court found that the ordinance left several questions unanswered. First, does the setback provision contemplate considering only the side of the street on which the new building is to be erected, or both sides? The word either is ambiguous in this setting. The plaintiffs urge the court to consider only one side. Their argument is that, if we were to look at the setbacks on both sides of the street, situations could arise where a new building would have to be placed way out of line with houses on its side of the street. For an example, the plaintiffs suggest that we assume that the north side of a street has ten houses, each set back seventy-five feet, and the south side has nine houses, each of which is set back fifteen feet, and a vacant lot. An application of the both sides' construction would allow the neighbors to force a new house built on the south-side vacant lot to be set back seventy-five feet. The defendants argue that the both sides' construction of the ordinance is more reasonable in that zoning ordinances should be construed to apply uniformly. We assume that the plaintiffs' one-side construction is correct, but it would not change the result. An even more perplexing problem arises when one tries to ascertain what is intended by the fifty per cent minimum setback line contemplated by the ordinance. This problem arises whether one looks to one side or both sides of the street in question. Suppose a row of houses set back from the street eighteen feet (house A), twenty feet (house B), twenty-two feet (house C), twenty-four feet (house D), and twenty-six feet (house E). In determining the minimum setback contemplated by the ordinance, there are various possibilities. (1) Eighteen feet is one possibility, on the ground that all five houses conform to this setback. This appears to be the construction placed upon the ordinance by the parties, the only difference between them being whether either means one side of the street or both sides. (2) Twenty feet is a possibility, since over fifty per cent of the houses (B, C, D, and E) conform to a setback of twenty feet. (3) Twenty-two feet is a possible construction since over fifty per cent of the houses (C, D, and E) conform 10

11 to a setback of this footage. (4) Twenty-four feet is a fourth possibility if we average over fifty per cent of the houses (C, D, and E). This averaging technique can be repeated with any combination of at least fifty per cent of the houses. The preceding alternatives all assume that the ordinance looks to the fifty per cent or more farthest from the street. However, it may well have been intended to look to the fifty per cent or more of the houses nearest to the street in which event a quite different result is reached. Id. at The court concluded that an ordinance or by-law imposing such restrictions on the use of property ought not to stand when it is so vague and ambiguous that its meaning can only be guessed at. Id. at 212. III. ADULT USES So-called adult uses, which include adult bookstores, adult motion picture theaters, adult paraphernalia stores, and adult video stores, are defined by General Laws chapter 40A, section 9. Cities and towns are specifically allowed to adopt zoning ordinances and by-laws requiring special permits for adult uses. While adopting zoning provisions for these types of uses may not be popular, these provisions can be essential to minimizing the negative impacts that adult uses can have on a municipality. Without zoning that provides specific zones for adult uses, an adult motion picture theater can be installed in any area zoned for motion picture theaters, or an adult bookstore or video store in any area where conventional bookstores or video stores are allowed. First, some basics. Chapter 40A, 9A provides that zoning ordinances and bylaws may provide for special permits for adult uses, and may state the specific improvements, amenities or locations of proposed uses. Zoning may also provide that the adult uses be a specific distance from any district designated by the ordinance or by-law for any residential use or from any other adult use (to avoid the combat zone syndrome). A by-law or ordinance must prohibit the issuance of special permits for adult uses to persons convicted of certain crimes. Before enacting zoning to regulate adult uses, you must be familiar with the First Amendment protections that are provided to such uses. The exercise of free speech through so-called adult entertainment uses is protected by the First Amendment to the United States Constitution. Renton v. Playtime Theatres, Inc., 476 U.S. 41 (1986). It is also protected under Article 16 of the Massachusetts Declaration of Rights. D.H.L. Associates, Inc. v. Board of Selectmen of Tyngsborough, 64 Mass. App. Ct. 254 (2005). As a result, zoning restrictions on adult uses are permissible only where (1) the town promulgated the adult entertainment zoning ordinance based on legitimate concerns about the secondary effects of adult entertainment, not to regulate the content of that form of expression; (2) the enactment was narrowly tailored to serve a substantial governmental interest; and (3) reasonable alternatives existed. Id. at

12 With regard to the first of these criteria, the city or town must show that the secondary effects of adult entertainment were a motivating factor in enacting the zoning provisions. T & D Video, Inc. v. Revere, 423 Mass. 577 (1996). The municipality cannot rely solely on after the fact justification to support restrictions on adult uses. Id. A statement setting forth the intent of the adult use zoning provisions should be included, and should emphasize that the adult use provisions were enacted to combat the secondary effects of adult entertainment. If an adult use provision is challenged, the municipality should be prepared to show that the motivating factor for the provision was the deleterious secondary effects that adult entertainment can have on communities. While a zoning amendment aimed at the secondary effects of such uses on the surrounding community may place reasonable time, place, and manner restrictions on adult entertainment uses, it must be narrowly tailored to address a substantial government interest, such as to protect the municipality from those deleterious secondary effects. In addition, the zoning may not effectively deny a reasonable opportunity to open and operate an adult entertainment use within the municipality. T & D Video, Inc. v. Revere, 423 Mass. 577 (1996). For example, the zoning may provide that adult uses not be located within 500 feet of another adult use, or within 500 feet of certain other uses such as playgrounds, residences, and day care centers. Although these types of separation requirements are facially valid, and indeed are supported by G.L. c. 40A 9A, the municipality should verify that the restrictions allow for a reasonable opportunity to open and operate adult uses. There is no specific rule as to the amount of land that must be available for adult uses in a municipality. In the Renton case, 520 acres of land, or 5% of the land area of the city, was available for adult uses, and the Supreme Court upheld the ordinance. On the other hand, a federal court invalidated an ordinance which allowed only 23/100 of one percent of the land in a city to be used for adult uses. Christy v. Ann Arbor, 824 F. 2d 489 (6 th Cir. 1987). If the zoning ordinance or by-law is so restrictive that there is no reasonable opportunity to operate an adult use in the municipality, it will be vulnerable to a constitutional challenge. Keep in mind that if such a constitutional challenge is successful, it could result in the court invalidating all or a portion of the zoning provisions governing adult uses. Moreover, such constitutional challenges, which are often brought as civil rights actions, can result in an award of attorneys fees to the prevailing party, which can be a substantial expense. In the T & D Video case, plaintiff was awarded close to one million dollars in attorneys fees against the city. 12

13 Sample Adult Use Zoning Provisions Adult Uses Dispersal, Separation and Design Standards. 1. An Adult Use shall not be located within 500 ft. in any direction from other establishments of such Adult Uses, as measured along the shortest line between any buildings housing such an adult establishment. 2. An Adult Use shall not be located within 250 ft. in any direction from residential zoned land, as measured along the shortest line between the residential zoning district boundary and any buildings housing such an adult establishment. A solid fence and 50- foot heavily vegetated buffer appropriate to the character of the area shall be provided along any residential zoning district. 3. An Adult Use shall not be located within 500 ft. in any direction from a residence, school, place of worship, day care center, or playground, as measured along the shortest line between these buildings or structures and any building housing such an adult establishment. A 50-foot heavily vegetated buffer appropriate to the character of the area shall be provided along any residential zoning district. 4. An adult establishment may be located a minimum of 200 ft. away from residential zoned land and 250 ft. away from a residence, school, place of worship, day care center or playground provided that a 100-foot heavily vegetated buffer and solid fence along the property line with any such use is provided and maintained. 5. No adult use shall be allowed to display for advertisement or other purpose any signs, placards or other like materials to the general public on the exterior of the building or on the interior where the same may be seen through glass or other like transparent material any sexually explicit figures or words as defined in G. L. c. 272; 6. Building designs shall be consistent in architectural style and color with other buildings in the district; 7. Windows shall be screened to prevent public view of the interior of the premises from any public or private right-of-way or abutting property; and 8. Adult uses shall not be allowed within a building containing any other uses. Barbara J. Saint André is a principal with the law firm of Petrini & Associates in Framingham. She over 25 years of experience representing cities and towns across the state as town and special counsel, with particular emphasis on land use (including zoning, subdivision, Chapter 40R, planning, health, zoning enforcement, and wetlands), comprehensive permits and housing, and general municipal law. Petrini & Associates is a law firm concentrating in the practice of municipal law, public construction, labor, and land use. The firm is town counsel to Framingham, Medway, Sherborn and West Brookfield and special counsel to numerous other communities CPTC adopting zoning bylaws ( ) 13