THOMAS ROBINSON & others [Note 1] vs. BOARD OF HEALTH OF CHATHAM & another. [Note 2]

FOOTNOTES

[Note 1] Joan Robinson, Robert Kolb, Rita Kolb, and Eugene A. Beliveau.

[Note 2] John J. Heavey, Jr., also known as Jack Heavey.

[Note 3] The board's variance decision also allowed Heavey to place the distribution box and leaching field on a lot owned by him that was not contiguous to the lot containing the house to be served and the septic tank to be built; and to place the edge of the system's "reserve discharge area" closer to the property line than otherwise permitted. The plaintiffs generally challenged all of the variances on procedural grounds but focused their principal attack on the authorization of the placement of sewer piping under the private way.

[Note 4] The State Administrative Procedure Act (Act), G. L. c. 30A, does not apply to municipal and other local bodies such as a board of health, which are not "agencies" within the scope of the Act. G. L. c. 30A, § 1(2). See Danusis v. Longo, 48 Mass. App. Ct. 254, 260 (1999). Further, review of the decisions of a local authority, such as a board of health, which possesses "broad discretion . . . based on the strong public interest in protecting health and the environment" when it determines applications for variances for private sewage disposal systems under Title 5 of the State Environmental Code, 310 Code Mass. Regs. § 15.410 (1995), or under its own stricter sewage regulations, Rosenfeld v. Board of Health of Chilmark, 27 Mass. App. Ct. 621, 627 (1989), as here occurred, is not properly by means of a claim for declaratory relief, but rather by either an appeal pursuant to 310 Code Mass. Regs. § 15.420 (2003), id. at 624-626; or an action in the nature of certiorari. See Johnson Prods., Inc. v. City Council of Medford, 353 Mass. 540, 545, cert. denied, 392 U.S. 296 (1968); Bermant v. Selectmen of Belchertown, 425 Mass. 400, 402-404 (1997). The existence of the available remedy of appeal under the provisions of Title 5 should have made certiorari inapplicable, see Rosenfeld, 27 Mass. App. Ct. at 626, but neither the parties nor the judge invoked or mentioned that avenue of relief.

[Note 5] General Laws c. 187, § 5, provides: "The owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appurtenances necessary for the transmission of gas, electricity, telephone, water and sewer service, provided such facilities do not unreasonably obstruct said private way or other private ways, and provided that such use of the private way or other private ways does not interfere with or be inconsistent with the existing use by others of such way or other private ways; and, provided further, that such placement, installation, or construction is done in accordance with regulations, plans and practices of the utility company which is to provide the gas, electricity, or telephone service, and the appropriate cities, towns, districts, or water companies which provide the water service. Said agencies, which provide such service, shall comply with the rules and regulations of the division of water supply and the department of telecommunications and energy. Any such owner or owners may grant permission to a public utility company or water company to enter upon said way or other private ways to place, install, repair, or relocate pipes, conduits, manholes, and other necessary appurtenances for the transmission of gas, electricity, telephone or water service in accordance with such company or companies regulations, practices and tariffs filed with the department of telecommunications and energy or the division of water supply; provided, however, that no charge or added assessment shall be levied by such public utility company or companies against any such owner or owners not connected to such service or services. Neither the person installing or repairing public utility facilities, nor such facilities, nor the gas, electricity, telephone or water service transmitted shall be deemed to constitute a trespass upon said way or ways." (Emphasis added.) See note 9, infra, for a brief legislative history of this statute.

The plaintiffs neither contest Heavey's status as an eligible "owner" under the statute, nor argue that his proposed sewer/septic system does not, except for its private rather than public nature, qualify as a "sewer service" covered by the statute. They also do not contend that Heavey fails to satisfy the statutory requirements that "such facilities do not unreasonably obstruct such private way . . . [or] interfere with or be inconsistent with the existing use by others of such way"; and do not challenge the judge's findings that, since the sewer piping will be completely underground, it will not (except briefly during construction) unreasonably obstruct the way or interfere with its use as a way by the plaintiffs.

[Note 6] Only one of the alleged procedural defects raised by the plaintiffs merits even brief attention. The rest -- the judge's denial of their motions for additional testimony and evidence; the supposed procedural irregularities by or before the board not apparent on the face of the administrative record; the alleged existence of disputed material facts arising from the denials of many complaint allegations in Heavey's answer; and the purported necessity for Heavey to have obtained additional variances that were never subject to application or decision -- suffer from two defects. First, they are unsupported by coherent appellate argument buttressed by applicable legal authorities (see Mass.R.A.P. 16[a][4], as amended, 367 Mass. 921 [1975]; Lolos v. Berlin, 338 Mass. 10, 13-14 [1958]; McCone v. New England Tel. & Tel. Co., 393 Mass. 231, 236 [1984]); and they are further inappropriate in a certiorari proceeding, which is decided solely on whether substantial errors of law or the absence of substantial evidence clearly appears on the face of the record and which does not admit of the presentation of additional evidence. See Goldie's Salvage, Inc. v. Selectmen of Walpole, 31 Mass. App. Ct. 726, 731, 733-734 (1992); Police Commr. of Boston v. Robinson, 47 Mass. App. Ct. 767, 770 (1999). The plaintiffs' assertion that the board's grant of the variances was arbitrary and capricious merely because it had earlier denied them (on the basis of a substantially different application) reflects the same defects. Their only procedural argument relying on cited case authority -- that the board vote was invalid because one member in the majority had not attended all meetings -- fails factually (on the record, the majority had been at every public hearing at which Heavey's application was discussed) as well as legally (the sole authority cited in support, Mullin v. Planning Bd. of Brewster, 17 Mass. App. Ct. 139, 141-143 [1983], being distinguishable, because in that case a sufficient number of voting members required to comply with the applicable statutory provisions had not attended any public hearings on the special permit).

[Note 7] The plaintiffs' position that the board "lacks jurisdiction" to approve the Heavey plan to the extent it infringes on private property is an unsupported, conclusory assertion that they fail to develop; as is their argument that Heavey may not lawfully place a private sewer within a private way without securing an easement therefor from all the abutters of the way (the plaintiffs failing in particular to establish that they are entitled to the benefit of G. L. c. 183, § 58, which recognizes a fee interest to the center line of a private way in certain grantees of real estate abutting the way, depending on the language of the instrument passing title; see generally Rowley v. Massachusetts Elec. Co., 438 Mass. 798 [2003]). See note 6, supra. The plaintiffs' contention that the board's authorization in reliance on Heavey's right under G. L. c. 187, § 5, was not supported by substantial evidence is belied by the record of the December 6, 1999, hearing before the board, at which relevant data sufficient to satisfy health-related issues and standards were presented. See the minutes of the board meeting of September 27, 1999, and note 5, supra.

[Note 8] Before the Superior Court (though not here), the plaintiffs added an argument that the restriction of the statute to public utility services was manifest from its title, which reads, "Installation of public utility services for abutting owners on private ways authorized." The judge properly rejected that argument as inconsistent with the plain words of the statute (as discussed infra). See Cumberland Farms, Inc. v. Milk Control Commn., 340 Mass. 672, 678 (1960). See also Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 7 Pick. 344, 454 (1829), aff'd, 36 U.S. 420 (1837) ("There is no rule in construing statutes better settled than that the title of an act does not constitute a part of the act"). To the extent the plaintiffs also rely on the preapproval hearsay opinion of the manager of the Chatham water and sewer departments (an engineer, not a lawyer) that he "believe[d]" that G. L. c. 187, § 5, pertained only to the installation of public utilities, their reliance is manifestly misplaced and unavailing.

[Note 9] The original legislation (St. 1973, c. 918) created an implied easement in the private way only for gas lines. It was amended two years later to add electrical and telephone service (St. 1975, c. 610), in 1980 to add water service (St. 1980, c. 251), and in 1988 to add sewer service (St. 1988, c. 334). The legislation created an implied easement in the abutting owner for such purposes because at common law the grant of a right of way without more created only a right of ingress and egress and did not include the right to lay pipes or erect structures in, upon or under the way. See Nantucket Conservation Found., Inc. v. Russell Mgmt., Inc., 380 Mass. 212, 216 (1980).

[Note 10] See Note, Flushing Money Down the Drain: Environmental Regulatory Takings and Title 5 of the Massachusetts State Environmental Code, 32 Suffolk U. L. Rev. 663 (1999).