Reynolds v. Zoning Bd. of Appeals of Stow

88 Mass.App.Ct. 339

37 N.E.3d 656

Gregory REYNOLDS

v.ZONING BOARD OF APPEALS OF STOW & another.¹

No. 14–P–663.

Appeals Court of Massachusetts, Middlesex.

Argued Jan. 13, 2015.

Decided Sept. 15, 2015.

Dennis A. Murphy (Daniel C. Hill with him) for the plaintiff.

David S. Weiss (Elizabeth Levine with him), Boston, for Stow Elderly Housing Corporation.

Barbara Huggins, Duxbury, for zoning board of appeals of Stow.

Present: TRAINOR, VUONO, HANLON, JJ.

Opinion

TRAINOR, J.

The plaintiff appeals from a Superior Court judgment affirming a comprehensive permit issued pursuant to the Comprehensive Permit Act, G.L. c.40B, §§ 20 –23 (Act), by the

zoning board of appeals (board) of Stow (town) to the Stow Elderly Housing Corporation (SEHC) for the construction of a low and moderate income elderly housing project. The plaintiff, a southeast abutter of the locus, contended, among other things, that the private wells on his and his neighbors' properties will have elevated nitrogen levels due to the discharge into the waste disposal system designed for the locus and, therefore, it was unreasonable for the board to waive certain waste disposal limitations contained in the town bylaw. Stow, Mass., Zoning Bylaw (including amendments through May 3, 2010) (bylaw). For the reasons set forth below, we reverse.

1. Background. a. Stow Elderly Housing Corporation and Plantation I. SEHC is a nonprofit corporation founded in 1981 for the primary purpose of developing, owning, and operating affordable housing. In 1983, SEHC obtained a comprehensive permit under the Act to construct Plantation Apartments I (Plantation I), a fifty-unit low-income senior apartment complex on a lot that is adjacent to the locus. Plantation I is served by a private well and a private septic system on the property. Although SEHC was the original owner and developer of Plantation I, in 2004, it transferred ownership of the buildings and granted a long-term lease of the land to Plantation Apartments Limited Partnership, while retaining the fee in the land. SEHC owns and controls the limited partnership's general partner, and was the initial limited partner.²

b. Plan for the locus. SEHC is under agreement to purchase an approximately two and one-half acre lot (locus) improved by a single-family home and barn located adjacent to Plantation I. SEHC plans to subdivide the property creating an approximately one-half acre parcel including the existing single-family home and barn (lot 1), an approximately two acre lot on which it proposes to construct “Plantation II,” consisting of one three-story building containing thirty-seven one-bedroom units of elderly housing, a fifty-seat function hall, and administrative offices (lot 2). The application for the comprehensive permit requested numerous waivers of the bylaw along with amendments to the comprehensive permit for Plantation I.

The locus is situated in the town's residential district and eighty percent of the locus is also situated in the town's water resource protection district (WRPD), an overlay district. A multi-unit dwelling containing thirty-seven units is not permitted in the residential

district.³ Following the subdivision of the locus, lot 2 will have no frontage on a public way. SEHC proposes to access the property over an undersized driveway located on Plantation I. The board granted bylaw waivers including, for example, as to use, lot size, frontage, and access requirements.

Notwithstanding that regulations require preliminary plans submitted with a comprehensive permit application to identify the water supply that will serve the project, SEHC has not identified its water source. Its application suggests several possibilities, including private wells from other nearby developments or a private water company. The comprehensive permit issued by the board includes condition 4.4, which provides that “[p]rior to the issuance of a building permit for the Elderly Housing, Applicant shall have obtained a permit or approval(s) to connect the Elderly Housing to a public water supply approved in accordance with then effective regulations promulgated by the Massachusetts Department of Environmental Protection [ (DEP) ].”

The record reflects that there is no public water or sewer system that serves the locus or its neighboring properties. The locus will be serviced by a private, on-site sewage disposal system. The sewage disposal system will be located in the WRPD. Indeed, the project's engineer testified at trial that all of the areas to be developed are located in the WRPD. The intent of the WRPD is “to protect, preserve and maintain the existing and potential GROUND WATER supply and GROUND WATER RECHARGE AREAS within the town; to preserve and protect present and potential sources of GROUND WATER supply for the public health and safety; and to conserve the natural resources of the town.” Bylaw § 5.2.

The town adopted sewage disposal system regulations for the

WRPD that are more protective than State standards.⁴ In addition to dimensional zoning waivers, SEHC sought and was granted waivers from the WRPD regulations, including the prohibition of uses generating “on-site sewage disposal exceeding 110 gallons per day per 10,000 square feet of LOT area.”⁵ Bylaw § 5.2.1.1(2). The judge found that the proposed project will generate approximately 5,500 gallons of sewage and other wastewater per day. According to the judge, that translates to approximately 700 gallons per day per 10,000 square feet of lot area, which exceeds WRPD's restriction by over six times.

The plaintiff introduced evidence that his well and those of his neighbors would have elevated nitrogen levels due to the proposed development. The judge rejected the evidence that elevated nitrogen would reach the plaintiff's well, but specifically found “it is more likely than not that the Project will cause nitrogen levels to exceed 10 [parts per million] at the drinking water well serving 37 DeVincent Drive [the plaintiff's neighbor].”⁶ The groundwater quality standard is 10mg/l total nitrogen and 10mg/l nitrate-nitrogen at the boundary or nearest downgradient sensitive receptor.⁷ The board's consultant recommended that “the applicant provide documentation that the groundwater will meet drinking water standards at the property lines as the abutters are served by on-site wells unless it is the intent to tie them into a public drinking water supply.” This recommendation was not adopted by the board. The judge concluded, however, that the comprehensive permit properly was granted because the sewage disposal system, as designed, will meet all applicable State regulations, which do not, in these circumstances, require proof that adjacent wells will not have elevated nitrogen levels as a result.

The board also waived that section of the bylaw that prohibits development in the WRPD that renders more than ten percent of

a site impervious. Bylaw § 5.2.1.1(8). As proposed and approved, the project will render impervious approximately forty-two percent of the property located in the WRPD. The judge found, however, that the stormwater management system will direct precipitation falling on impervious areas to underground infiltration beds from which it will percolate into the ground and be available to recharge the groundwater. In fact, the judge found that there will be a slight increase of groundwater recharge compared to predevelopment conditions and concluded that the local concern underlying § 5.2.1.1(8) will be met. Although the board's consultant recommended pretreatment for the reduction of total suspended solids prior to discharge into the recharge area and an oil and grease separator chamber, these recommendations were not adopted by the board.⁸

Finally, the board waived the board of health regulation requiring septic systems to be designed to handle 150 percent of the estimated daily flow. As designed, the system serving Plantation II can handle only 100 percent of the estimated daily flow.

c. Need for low income elderly housing. One hundred percent of the proposed units will qualify as “low or moderate income housing.” There is no doubt that the town and the region in general have a need for affordable elderly housing. Indeed, the application suggests the town's subsidized housing stock comprises only six and one-half percent of its total housing stock, and the parties stipulated that at the time of the application, the town's G.L. c.40B subsidized housing inventory was less than ten percent. In appeals before the Housing Appeals Committee, there exists a rebuttable presumption that there is a substantial housing need that outweighs local concerns upon proof that a municipality has failed to satisfy affordable housing goals. 760 Code Mass. Regs. § 56.07(3)(a) (2008).

d. Neighborhood properties. The plaintiff's home abuts the locus to the southeast. His property and those of his neighbors are served by private wells and private septic systems located on their properties. As the plaintiff and his neighbors rely on these wells for their drinking water, the record supports the inference that the area at issue, including the locus and the neighboring residential homes, is dependent on clean groundwater.

2. Discussion. a. The Comprehensive Permit Act and standing. Several cases have described the provisions of the Act, G.L. c.40B, §§ 20 –23, sometimes referred to as the anti-snob zoning act. See Zoning Bd. of Appeals of Lunenburg v. Housing Appeals Comm., 464 Mass. 38, 39–40, 981 N.E.2d 157 (2013). See also Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 345–355, 294 N.E.2d 393 (1973) ; Zoning Bd. of Appeals of Greenfield v. Housing Appeals Comm., 15 Mass.App.Ct. 553, 555–557, 446 N.E.2d 748 (1983). For present purposes, we note that “[w]e have long recognized that the Legislature's intent in enacting [the act] is ‘to provide relief from exclusionary zoning practices which prevented the construction of badly needed low and moderate income housing’ in the...