Berlin Landing Realty Trust v. Zoning Board Of Appeals Of Northorough


On June 14, 2022, Ben Robbins, Senior Staff Attorney for the New England Legal Foundation, filed an amicus brief for NELF in the Massachusetts Supreme Judicial Court (SJC) in Berlin Landing Realty Trust v. Zoning Board of Appeals of Northborough, responding to the Court’s request for amicus briefs on issues concerning the statutory protections afforded child care facilities against local zoning regulations, under the Massachusetts Zoning Act, G. L. c. 40A.  When, as in this case, a local government’s zoning setback requirement applies to structures in the municipality’s industrial zone that border a residential zone, is the application of that setback requirement to a proposed child care facility in the industrial zone unreasonable, and therefore a violation of the Zoning Act, where (1) the proposed structure is a protected land use, and not an industrial use; and (2) the enforcement of the setback requirement would substantially diminish the usefulness of the proposed structure as a child care facility?  The property owner in this case, Berlin Landing Realty Trust (the Trust), wishes to build a child care facility on its plot of land located in the town of Northborough’s industrial district, in an area that borders a residentially zoned district.  The town has a zoning bylaw that requires a 100-foot setback for any industrial use that borders a residential district.  Enforcement of the setback requirement would reduce to a mere 50 square feet the northeast corner of the proposed child care facility, due to the presence of wetlands on the Trust’s property.


Applying clear SJC precedent, the Land Court held that the town’s application of this setback requirement to the Trust’s proposed child care facility was an “unreasonable regulation” and therefore violated the Act.  In particular, the Zoning Act permits the placement of a child care facility in any zoned district, residential or otherwise, subject only to reasonable regulations concerning certain statutorily enumerated dimensional requirements, including the setback restriction at issue in this case.  Moreover, the SJC has explained that, to constitute a “reasonable regulation” under this statutory provision, the local zoning bylaw must “be related to a legitimate municipal concern, and its application [must] bear[] a rational relationship to the perceived concern.”  Rogers v. Town of Norfolk, 432 Mass. 374, 378 (2000) (cleaned up).


In his amicus brief for NELF, Ben argued that the Land Court was correct in ruling against the city.  It should be noted from the outset that the Trust does not challenge the facial validity of the setback requirement. To be sure, the setback requirement, on its face, is related to the legitimate municipal concern of creating a buffer between industrial uses and nearby residential properties.  However, the application of the setback requirement to the proposed child care facility does not “bear[] a rational relationship to th[is] perceived [local] concern.”  Rogers, 432 Mass. at 378 (cleaned up).  This is because the child care facility is a protected land use, and not an industrial use. As such, the child care facility would have been permitted as of right in the residential zone that is adjacent to the town’s industrial zone, if the Trust’s property had been located in that residential zone.


Put differently, the purpose of the setback requirement is to prevent the intrusion of industrial uses into a bordering residential neighborhood, where such industrial uses are not allowed.  The setback requirement is intended to shield the residential neighborhood from any potential disturbances created by those outside industrial uses.  However, the Legislature has decided that a child care facility, though a commercial use, is permitted in residential neighborhoods as of right, despite the differences between that facility and surrounding residential properties.  Therefore, enforcing the setback requirement in this case is not rationally related to the local interest in shielding the bordering residential neighborhood from outside industrial uses.  Indeed, the application of the setback requirement under these circumstances would suggest a forbidden local animus to discriminate against this protected land use.


In his brief for NELF, Ben also argued that the application of the zoning setback requirement is an “unreasonable regulation” under the Zoning Act for the additional reason that the restriction “would substantially diminish or detract from the usefulness of [the] proposed structure . . . without appreciably advancing the municipality’s legitimate concerns.”  Rogers, 432 Mass. at 383 (cleaned up).  (Indeed, enforcing the setback requirement would not advance any legitimate local concern, as discussed above.)  As noted above, enforcement of the 100-foot setback would reduce to a mere 50 square feet a corner of the proposed child care facility, due to the presence of wetlands on the Trust’s property.  However, to serve its protected purpose, the proposed child care facility would require large, spacious rooms to accommodate the movement of several energetic young children.  See Rogers, 432 Mass. at 384 (observing that “large rooms for functional utility,” among other features, “make [a structure] ideal for child care use.”).  As a result, enforcement of the setback requirement would virtually nullify the use of the proposed structure as a child care facility, while failing to serve any countervailing legitimate local interest.  This extreme imbalance of interests, in turn, would constitute an “unreasonable regulation” in violation of the Zoning Act.


On October 26, 2022, the parties voluntarily stipulated to the dismissal of this case, just days before oral argument was to take place.




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