Whether a Town of Kingston zoning amendment should be invalidated if the town failed to comply with the procedure for creating a “smart growth” zoning overlay district pursuant to G.L. c. 40R.

At the request of a developer, the Town of Kingston submitted an application to the Department of Housing and Community Development (“DHCD”) for approval of a smart growth overlay district.  “Smart growth” is “a principle of land development” that emphasizes mixing uses, affordable housing, compact design, distinctive communities, preservation of open space and critical environmental areas, public transportation, and collaboration in development decisions.  G.L. c. 40R, § 1.  Once approved by DHCD, smart growth zoning districts qualify for a variety of state incentives.

The proposed Kingston district would modify a commercial/industrial area to permit development of mixed residences, retail, and commercial space. After some interaction between DHCD and the town, DHCD granted initial approval of the district. There followed a great deal of public debate and negotiation between the town and the developer, and the town voted to enact the zoning amendment.

The application certified that some 64% of the district constituted “developable land.” At some point after the town’s application, but prior to initial approval by DHCD, the Division of Fisheries and Wildlife issued a survey of rare species that may have pushed the percentage of developable land down to as low as 50%.  The town did not notify DHCD of the change, either when it learned about it or in an annual report it was required to file some months after it voted to approve the zoning amendment.

A group of citizens living near the new district filed suit, claiming that the town’s zoning amendment constituted arbitrary and unreasonable exercise of zoning power.  A land court judge granted summary judgment for the defendants, and the SJC pulled the case sua sponte from the Appeals Court.

The broad issue in this case is how courts should review chapter 40R smart growth zoning amendments. The narrow issue is whether DHCD approval was improperly obtained, and if so what effect that should have on the zoning amendment.

The general rule of zoning review is that zoning should stand unless it is arbitrary and unreasonable or substantially unrelated to the public health, safety, or general welfare. Durand v. IDC Bellingham, LLC, 440 Mass. 45, 50 (2003). Because zoning is a legislative process, the amendment should be upheld if its reasonableness “is even fairly debatable.” Id.

The plaintiffs argue, essentially, that c. 40R zoning must also be reviewed for substantial relation to the goals of “smart growth.” Here, the town had a duty to update its application prior to final DHCD approval, and failed to do so.  That failure demonstrates an arbitrary or unreasonable process, and the amendment must be undone.

The defendants argue that c. 40R zoning should be reviewed under a more, not less, deferential standard, because the chapter represents a legislative declaration that such zoning is per se related to the public welfare. The town’s process was eminently reasonable, and any duty to update the application arose only after enactment of the zoning amendment.

As the defendants observe, the plaintiffs suffer here because their complaint began as a garden-variety challenge to the zoning process; their theory regarding the inaccurate DHCD application was apparently developed only later, when it became clear the process itself was reasonable. The plaintiffs therefore attempt to fit a challenge of the DHCD approval into a challenge of the town’s zoning process, which does not lead to a useful analysis. Because it seems any duty the town owed to update its application arose only after the enactment, and the zoning amendment process itself was reasonable, the plaintiffs are unlikely to succeed.

The more interesting question is what effect it should have if the DHCD’s initial approval — which is a necessary prerequisite to the zoning amendment — was itself invalid (due, perhaps, to deliberate fraud on the part of a town combined with dereliction of duty on the part of DHCD). The Court is unlikely to reach that hypothetical situation in this case.