Zoning Bd. of Appeals of Holliston v. Hous. Appeals Comm. & Another.1

80 Mass.App.Ct. 406

953 N.E.2d 721

ZONING BOARD OF APPEALS OF HOLLISTON

v.HOUSING APPEALS COMMITTEE & another.1

No. 10–P–1964.

Appeals Court of Massachusetts, Suffolk.

Argued May 9, 2011.Decided Sept. 16, 2011.

Mark Bobrowski for the plaintiff.Robert A. Fasanella, Boston, for Green View Realty, LLC.David A. Guberman, Assistant Attorney General, for Housing Appeals Committee.Present: KANTROWITZ, KAFKER, & GRAHAM, JJ.KAFKER, J.

The zoning board of appeals of Holliston (board) denied Green View Realty, LLC's (GVR), application for a comprehensive permit pursuant to G.L. c. 40B, §§ 20–23, to develop a nearly fifty-three acre parcel of land (locus or site) in the town of Holliston (town) into residential condominium units that include affordable housing. The locus served as an illegal disposal site for hazardous materials in the 1970s and 1980s and despite substantial cleanup efforts, portions of the locus remain contaminated, including the groundwater in some areas. GVR proposes to clean up the locus such that it poses no significant risk to residents. The locus also contains some sixteen acres of wetlands and presents challenges for storm water management and waste disposal as well.

The board denied GVR's application, identifying what it concluded were overriding local concerns relative to health, wetlands preservation, storm water management, traffic, and waste disposal.² On appeal to the Housing Appeals Committee (HAC), the HAC ordered the board to issue a comprehensive permit. A Land Court judge affirmed the HAC's decision and the board now appeals. We affirm.

Background. 1. Environmental history of the locus. Beginning in the 1960s, long before GVR developed any interest in the locus, construction materials, tar, tires, and other hazardous materials were dumped on the locus. Because the prior owner did not respond to notices of response action issued pursuant to G.L. c. 21E by the Department of Environmental Protection (DEP), between 1987 and 2002, the DEP and the Environmental Protection Agency (EPA) directed the removal of some 340 drums of tar and other contaminants, 210,000 tires, construction debris, and over seventy tons of contaminated soil. The DEP incurred response action costs amounting to $1.75 million. Nonetheless, the cleanup is not complete and in addition to remaining hazardous materials, some of the groundwater contains trychloroethylene (TCE), a known carcinogen. TCE has also migrated to abutters' wells.³

2. GVR's proposal. In 2002, in an effort to recoup the cleanup costs they had incurred, the DEP and the town solicited proposals to attract a developer to purchase and develop the site. In response to the solicitation, GVR, a limited dividend organization,⁴ proposes to construct 200 condominium units, twenty-five percent of which will be “affordably priced housing units enabling families with a gross annual income of 80% of the area median income to qualify to purchase [a] unit under generally accepted mortgage loan underwriting standards.” GVR has in place purchase and sale agreements to purchase the locus and has negotiated with the DEP an amount to compensate it for its costs.⁵

On August 27, 2004, the Massachusetts Housing Finance Agency (MassHousing) issued GVR a project eligibility (site approval) letter with certain conditions, including that any comprehensive permit ultimately issued by the board include a condition that GVR provide evidence of “[c]ompliance with all statutory and regulatory restrictions and conditions relating to protection of drainage, wetlands, vernal pools and wildlife habitats and nearby conservation areas,” as well as Title V regulations, prior to issuance of a building permit for the project.

a. Environmental cleanup. As part of a settlement agreement ⁶ with DEP, GVR is obligated to sign and comply with an administrative consent order (ACO) which will set forth deadlines for response actions required pursuant to G.L. c. 21E and the Massachusetts Contingency Plan (MCP). “Simply put, G.L. c. 21E was drafted in a comprehensive fashion to compel the prompt and efficient cleanup of hazardous material and to ensure that costs and damages are borne by the appropriate responsible parties. To that end, the department has promulgated extensive regulations, known collectively as the [MCP] ... for purposes of implementing, administering, and enforcing G.L. c. 21E.” Bank v. Thermo Elemental, Inc., 451 Mass. 638, 653, 888 N.E.2d 897 (2008), quoting from Taygeta Corp. v. Varian Assocs., 436 Mass. 217, 223, 763 N.E.2d 1053 (2002). “The purpose of the MCP is, among other things, to ‘provide for the protection of health, safety, public welfare and the environment’ by encouraging ‘persons responsible for releases ... of ... hazardous material to undertake necessary and appropriate response actions in a timely way.’ ” Ibid., quoting from 310 Code Mass. Regs. § 40.0002 (1995).

The specifics of GVR's obligations, including the extent to which the property must be remediated, however, are not contained in the settlement agreement. Nonetheless, the conceptual plan submitted with GVR's application for the comprehensive permit was created by a licensed site professional (LSP) and proposes to clean the property, prior to development, to a condition of “no significant risk” as that term is used in the MCP. The phrase, no significant risk “means a level of control of each identified substance of concern at a site or in the surrounding environment such that no such substance of concern shall present a significant risk of harm to health, safety, public welfare or the environment during any foreseeable period of time.” 310 Code Mass. Regs. § 40.0006 (2006).

More specifically, GVR's conceptual plan proposes to transport the remaining hazardous materials and any recyclables off site; consolidate nonhazardous materials into a smaller sealed and capped area on the western portion of the site; and treat and monitor the groundwater as necessary. Current plans call for treating the contaminated groundwater with hydrogen release compound (HRC), which facilitates degradation of TCE. GVR concedes, however, that additional testing is necessary, and remediation plans may change depending on the outcome of the testing. In addition, GVR concedes that treatment of TCE with HRC can sometimes produce vinyl chloride (VC), a compound that is even more toxic than TCE. GVR proposes to monitor the remediation efforts for that contingency, however, and use alternative methods should pilot testing indicate they are warranted. GVR points out that HRC has been used successfully in many locations, including another location in town. Moreover, the record supports the judge's conclusion that long-term testing will be conducted to monitor soil, gas, and groundwater to ensure continuous compliance.

Based on our review of the testimony and documentary evidence, it is our understanding that GVR's plan is to do whatever it takes to achieve a condition of “no significant risk.” GVR accepts that this status must be achieved in order to proceed with the project and its experts are confident it can be achieved. Even one of the board's experts concedes that the plan is feasible based on the information that is currently available. All of the parties agree, however, that additional testing is necessary, which may result in different approaches to remediating the locus. While it is our understanding that GVR is committed to making any necessary changes, the additional testing necessary to create a final remediation plan is quite costly. Until GVR completes the purchase of the locus, it has no obligation to clean up the property. As explained by GVR's principal, although GVR is prepared to accept responsibility for the cleanup and bring the property into compliance with the MCP, GVR “cannot and will not enter into [a] binding ACO without first knowing that development at the property can go forward.”

The HAC concluded with regard to environmental considerations that consolidation of the onsite landfill, remediation, and the related issue of groundwater protection were not regulated under the town's zoning by-law and, therefore, were not properly before the HAC. The HAC further concluded that because environmental authorities will review these issues, there was no reason for the HAC to make an exception to its general rule of not considering unregulated matters. The Land Court judge concluded that the DEP will oversee the remediation process and will ensure compliance with all applicable environmental statutes and regulations. As such, the judge concluded that the board had not shown that local environmental concerns outweigh the regional need for housing.

b. The wetlands. The site contains five separate wetland areas. In the northeastern corner of the locus is a man-made pond with a narrow wetland area along its banks. GVR proposes to construct a large storm water basin adjacent to this wetland and to revegetate the basin with indigenous hydric species, which will increase the over-all wetland area of the locus. The existing wetland will not be disturbed, but much of the fifty-foot “do not disturb” zone contained in the local by-law will be incorporated into the storm water basin.

The two largest wetland areas are located on the western one-third of the locus, and are referred to as “Wetland Series A/D” and include a vernal pool. The two wetland areas are separated from one another by an existing roadway and are part of an extensive swamp area that extends well beyond the borders of the locus. The one hundred foot buffer zone surrounding the locus consists largely of a forested area and a denuded former landfill slope leading to an old, disturbed field and shrub habitat. GVR proposes to leave the forested wetland areas intact and to excavate the denuded slope to create a very large storm water basin, “basin 7P.” Again, basin 7P will be revegetated with indigenous species and will become a wetland...