"The bylaw does not simply focus on individual applications for activities in which a landowner wishes to engage but instead regulates parking on all land in single-family residence zones. Finally, although the town claims that the ordinance was enacted as a health measure pursuant to the town's general police power, there is on this record no nexus between public health and overnight off-street parking. Indeed, it is difficult to conjure a menace to public health that arises as the sun sets over unoccupied vehicles parked on the grounds of the house where their owners reside."
Friday, August 19, 2011
When is a General Ordinance Really a Zoning Ordinance?
When it limits off-street parking on private property of single-family residences, according to the Appeals Court in Spenlinhauer v. Town of Barnstable, decided yesterday. The ordinance in question was a general ordinance that limited the number of motor vehicles that could be parked "overnight, offstreet and in the open outside a single family dwelling." The court ruled that "the town's attempt to use its general ordinance power to regulate off-street parking undercuts "the assorted protections contained in" c. 40A, in the process frustrating the purposes for which c. 40A was enacted." In conclusion, the court (McHugh, J.) stated:
Posted by Meg at 10:28 AM