Perisho v. Bd. of Health of Stow

225 N.E.3d 308

Michael J. PERISHO & others¹

v.BOARD OF HEALTH OF STOW & others.²

No. 22-P-908

Appeals Court of Massachusetts, Middlesex.

Argued September 11, 2023

Decided December 13, 2023

Practice, Civil, Action in nature of certiorari, Standing, Judgment on the pleadings, Motion to dismiss. Municipal Corporations, Board of health. Department of Environmental Protection. Administrative Law, Regulations. Real Property, Water, Nuisance, Trespass. Nuisance. Trespass. Sewage Disposal.

Civil action commenced in the Superior Court Department on July 10, 2020.

A motion to dismiss was heard by Joshua I. Wall, J., and the remaining claim also was heard by him on motions for judgment on the pleadings.

Daniel C. Hill, for the plaintiffs.

Amy E. Kwesell, for town of Stow.

David Y. Bannard, for Habitat for Humanity, North Central Massachusetts, Inc.

Present: Milkey, Blake, & Sacks, JJ.

SACKS, J.

The plaintiffs, who are abutters or near neighbors to a proposed two-family affordable housing development in Stow, brought this action in the Superior Court seeking certiorari review of a decision of the board of health of Stow (board) granting a septic system construction permit (permit) to the developer, Habitat for Humanity of North Central Massachusetts, Inc. (Habitat). The plaintiffs, to whom we will refer as abutters,³ allege that pollution from the septic system would cause nitrogen levels at the private wells serving their homes to exceed the level set by State drinking water regulations. They allege that "[t]he presence of elevated levels of [n]itrogen in wells is an established indicator of the presence of other contaminants commonly associated with domestic wastewater, including viruses and pharmaceuticals." The abutters also assert claims for private nuisance and trespass against Habitat, seeking injunctive relief.

After agreeing that the abutters had standing to challenge the board’s decision, a judge affirmed that decision on the merits, thereby upholding the permit. In a separate ruling, the judge dismissed the nuisance and trespass claims without prejudice for failure to state, a claim, because the abutters had not pleaded an actual or inevitable invasion of or entry on their land. On the abutters’ appeal, we affirm so much of the judgment as upheld the board’s decision issuing the permit; we reverse the dismissal of the nuisance and trespass claims and remand for further proceedings.

Background. Under the Title 5 regulations issued by the state Department of Environmental Protection (DEP), 310 Code Mass. Regs. §§ 15.001 (2014), construction of a septic system generally requires a permit from a local board of health. See 310 Code Mass. Regs, § 15.020 (2014). In 2017, Habitat applied to the board for such a permit for the locus, a 1.26 acre parcel on a hillside in Stow. Habitat’s septic system plans called for wastewater from the two new homes to flow into the system’s pump chamber and septic tank and then be pumped uphill to a leaching field on a slope behind the homes. The abutters’ wells are located downhill from the proposed leaching field, at distances of approximately 120-150 feet. The abutters claim that wastewater discharged from the leaching field will mix with groundwater and then flow downhill toward their wells.

The board chose James Garreffi of the Nashoba Associated Boards of Health to review the permit application. Over the course of a more than two-year review process, the board received and considered comments from the abutters’, hydrologist, Scott Horsley,⁴ and the abutters’ counsel, opposing issuance of the permit. The abutters argued, among other things, that (1) based on a "mass balance analysis" performed by Horsley, the system would cause excessive nitrogen levels at the abutters’ wells; and (2) the plans did not show compliance with Title 5 regulations that require a four-foot vertical separation between the bottom of the soil absorption system and existing groundwater levels.

The board received substantial input from Habitat’s engineering firm, Stamski and McNary, Inc. (Stamski), addressing the abutters’ concerns and responding to some of them by making changes to the plans. In addition, the board obtained a review of the plans from the engineering firm of David E. Ross Associates, Inc. (Ross). Ross’s review also found "no issues relative to compliance with Title 5." Garreffi ultimately concluded that the plans met "the requirements of Title 5." The board issued the permit in March of 2020.

The abutters then commenced this action seeking certiorari review of the board’s permit decision and separately asserting nuisance and trespass claims against Habitat. On Habitat’s motion to dismiss the latter claims for failure to state a claim on which relief could be granted,⁵ the judge ruled, as noted supra, that the abutters had not pleaded any actual or inevitable invasion of or entry on their land. He dismissed the claims without prejudice.⁶

Subsequently, on the certiorari claim, the judge first rejected the board’s and Habitat’s argument that the abutters lacked standing to challenge the board’s decision. On the merits, however, the judge ruled that Title 5 regulations did not require the board to apply the mass balance analysis underlying Horsley’s nitrogen level predictions, and that sufficient evidence supported the board’s conclusion that the four-foot vertical separation requirement was met. This appeal followed.

Discussion. We first address the certiorari claim, as that discussion will inform our review of the nuisance and trespass claims.

[1, 2] 1. Certiorari, "To obtain certiorari review of an administrative decision, the following three elements must be present: (1) a judicial or quasi judicial proceeding, (2) from which there is no other reasonably adequate remedy, and (3) a substantial injury or injustice arising from the proceeding under review." Indeck v. Clients’ Sec. Bd., 450 Mass. 379, 385, 879 N.E.2d 57 (2008). Certiorari review "is calibrated to the nature of the action for which review is sought," Revere v. Massachusetts Gaming Comm’n, 476 Mass. 591, 604, 71 N.E.3d 457 (2017), and thus may involve either the substantial evidence standard or the arbitrary and capricious standard. See id. at 604-605, 71 N.E.3d 457. The abutters assert that both standards apply. Ultimately we need not decide which standard applies, because we conclude the board’s decision is neither unsupported by substantial evidence nor arbitrary and capricious.

[3, 4] a. Standing. To have standing to seek certiorari review, the abutters must show "a reasonable likelihood that [they have] suffered injury to a protected legal right." Higby/Fulton Vineyard, LLC. v. Board of Health of Tisbury. 70 Mass. App. Gt. 848, 850, 877 N.E.2d 955 (2007). See Hickey v. Conservation Comm’n of Dennis, 93 Mass. App. Ct. 655, 657, 107N.E.3d 510 (2018). Here, the board contends that the abutters’ allegations of future harm are too speculative and theoretical to support standing. See Higby/Fulton Vineyard, LLC, supra at 851-852, 877 N.E.2d 955 (speculation is insufficient). See also Hickey, supra at 658, 107 N.E.3d 510 (same). We are not persuaded.

The abutters’ complaint alleges, based on the mass balance analysis furnished to the board by the abutters’ hydrologist, Horsley, that the proposed septic system would cause predicted nitrogen levels at two of the abutters’ wells to reach 27.3 milligrams per liter (mg/l) and 29.0 mg/l, in excess of State drinking water standards of 10 mg/liter. Horsley stated that his "analysis is conservative in that [he had] not added fertilizer applications. Actual nitrate-nitrogen concentrations will be higher." Although, as discussed infra, the board was not obligated to give any particular weight to Horsley’s analysis, and had reason to question it, this is not fatal to the abutters’ standing.

[5] Standing "does not require that the factfinder ultimately find a plaintiff’s allegations meritorious. To do so would be to deny standing, after the fact, to any unsuccessful plaintiff. Rather, the plaintiff must put forth credible evidence to substantiate his allegations." Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721, 660 N.E.2d 369 (1996). Where a plaintiff has "presented credible evidence of injury to legal rights of the type intended to be protected by the [governing regulatory scheme], that [a] judge ultimately found that the elevated nitrogen would not reach the plaintiff’s well goes to his success on the merits and not his ability to challenge the acts of the board." Reynolds v. Zoning Bd. of Appeals of Stow, 88 Mass. App. Ct. 339, 346, 37 N.E.3d 656 (2015).⁷

[6] This is not a case where plaintiffs’ claims of injury are raised "in a conclusory fashion, and [are unsupported by] expert evidence, technical analysis, or particular facts in the record that establish [the purported risks]." Hickey, 93 Mass. App. Ct. at 658, 107 N.E.3d 510. Nor is this a case where "the expert, having done no calculations or testing, was unable to express any opinion more specific or definitive than … references to potential, likelihood, and possibility." Higby/Fulton Vineyard, LLC, 70 Mass. App. Ct. at 851, 877 N.E.2d 955. Finally, it is not a case where the plaintiffs have failed to credibly allege "an injury different in nature or magnitude from that of the general public." Friedman v. Conservation Comm’n of Edgartown. 62 Mass. App. Ct. 539, 543 818 N.E.2d 208 (2004). The abutters’ specific allegations of likely pollution of their private wells, supported by technical evidence from a qualified hydrologist, are sufficient to establish stand- ing to challenge the, board's decision.⁸ We therefore proceed to the merits.

[7] b. Well pollution. The abutters’ first challenge to the permit is that, based on Horsley’s mass balance analysis, the septic system will increase nitrogen in their wells to levels above the 10 mg/l State drinking water standard. As the abutters recognized both in the board...