State Ruling Backs DCPCs

Barnstable Process Is Upheld; a Town-Wide District There Parallels Those on Vineyard; Vote for Planning Homework

Gazette Senior Writer

In a key environmental protection decision for both the Vineyard and Cape Cod, the Massachusetts Supreme Judicial Court (SJC) this week threw out a lower court ruling and upheld a townwide district of critical planning concern (DCPC) for the town of Barnstable.

The Barnstable DCPC was enacted through the Cape Cod Commission. The central purpose of the DCPC was to adopt a townwide building cap. The case has direct relevance on the Vineyard, where the towns of Chilmark and Aquinnah both have townwide DCPCs, created through the Martha's Vineyard Commission. The Aquinnah DCPC is currently the subject of a superior court challenge from James Decoulos, a developer who is suing the town on a variety of fronts.

The decision issued Wednesday by the SJC overturns a superior court decision that struck down the Barnstable townwide DCPC in June 2002. The Hon. Gary Nickerson, an associate justice of the superior court, found that the Cape Cod Commission had overstepped its statutory authority.

This week the state's highest court took another view.

"The judge's conclusion that a DCPC, as a matter of law, cannot be townwide, is erroneous," wrote Justice John Greaney. "The plaintiffs have not satisfied their burden. A principal purpose supporting the designation of the Barnstable DCPC is the preservation and maintenance of significant water resources . . . . this finding is entitled to deference," he also wrote in part.

Plaintiffs in the case were the Homebuilders Association of Cape Cod. The town and the Cape Cod Commission were defendants.

The town of Aquinnah and the Martha's Vineyard Commission both filed amicus briefs in the case supporting the defendants.

Eric Wodlinger, a partner at Choate Hall & Stewart in Boston who represented the Cape Cod Commission, called the case an important win for both the Cape Cod and the Vineyard

"Yes, it's very important," said Mr. Wodlinger, who also is counsel to the MVC.

"This is an excellent decision for the Martha's Vineyard Commission and for the towns of Aquinnah and Chilmark which have adopted townwide DCPCs," agreed Ronald H. Rappaport, who is counsel to both towns and wrote the Aquinnah amicus brief. He added:

"Aquinnah is currently the subject of a legal challenge to its ability to adopt a townwide DCPC, and in my view this decision answers that issue. It answers it to the extent that it says that the town and the commission have the power to adopt townwide DCPCs to protect groundwater, soils, water supply, coastal areas, population density, growth and existing and potential residential development in the town - and that is almost a direct quote from the decision."

Special overlay planning districts accompanied by special regulations, DCPCs are created through the enabling legislation for both commissions. DCPCs cover a wide range of places, from coastal areas to rural roads to places with special archeological and historical significance.

The townwide DCPC in Aquinnah was adopted four years ago and includes a wide array of land use regulations. In Chilmark a townwide DCPC was used to enact a building cap, also known as a rate of growth bylaw.

The nine-page supreme court decision, written in plain language and marked by considerable detail, takes special note of the planning process that went into the Barnstable DCPC.

"What is key, and what the plaintiffs overlook, is that there was substantial planning and study behind the nomination of the Barnstable DCPC, and that its purpose of protecting a natural resource, water resources, of town and regional significance is supported in the record," Justice Greaney wrote. "The fact that the DCPC, in its efforts to preserve water quality, also justifiably preserves some land for affordable housing does not negate its validity. Summary judgment in favor of the plaintiffs was inappropriate," he also wrote.

The decision underscores numerous issues associated with protecting water resources from the effects of development, including ground and surface water, and it quotes heavily from the Barnstable long-range community plan that was used as a foundation for the DCPC.

It also cites three Vineyard cases for support, including the landmark three-acre zoning case in Edgartown and the historic Island Properties Case, which found that MVC regulations were not subject to grandfathering like ordinary zoning rules.

"The decision makes it explicitly clear that DCPC regulations are not subject to grandfathering," Mr. Wodlinger said. "It also says that if you do your planning homework, the courts will uphold you on it."

In a press statement issued Wednesday afternoon, Mr. Wodlinger said: "Both the Cape Cod Commission and the town of Barnstable are highly gratified that the SJC approved this important planning and regulatory tool (the rate of development bylaw) so that improvements to municipal infrastructure will have a chance to catch up with the demand for residential development in the town of Barnstable."

Mr. Rappaport said the court decision can be construed as praise for the only three towns in the state that have adopted townwide DCPCs.

"The three towns of Barnstable, Chilmark and Aquinnah are the only towns that have had townwide DCPCs - this decision says in effect that they were far sighted in doing so and townwide DCPCs are a reasonable and valid planning mechanism to address issues relating to reasonable limits on growth," he concluded.