CAROLYN PADDEN & others [Note 1] vs. WEST BOYLSTON & others. [Note 2]

LENK, J. Carolyn Padden and other individuals who own

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residences serviced by subsurface wastewater disposal systems (septic systems) in the town of West Boylston (town) brought suit against the town to challenge a mandatory sewer connection regulation that had been promulgated by the West Boylston board of health (board of health). The plaintiffs sought declaratory and injunctive relief on a preliminary and permanent basis. Their request for preliminary injunctive relief was consolidated with a jury-waived trial on the merits; the trial judge declared the regulation invalid and, in essence, permanently enjoined the town from enforcing the regulation. The town now appeals, claiming that the judge erred in declaring the regulation invalid because it is rationally related to the protection of public health and safety. We agree and vacate the judgment.

Background. The town is located on the western side of the Wachusett Reservoir, which supplies water to the greater Boston area through the Massachusetts Water Resource Authority (MWRA) and is managed and maintained by the Metropolitan District Commission (MDC). [Note 3]

In the early 1990's, the MDC conducted and commissioned several studies of the watershed area, revealing significant water quality problems in the brook tributary to the reservoir. The studies recommended the development of a sewer system that would service certain areas of West Boylston generating wastewater that was not adequately serviced by septic systems. Additional studies of the watershed and of groundwater pollution were conducted through the late 1990's and into 2002, assessing whether property in certain areas of the town could be brought into compliance with Title 5 septic system regulations [Note 4] or would require connection to the sewer system.

At town meetings in October, 1995; May, 1997; and October, 1997, town residents voted to borrow money, assess betterments, establish a mechanism for collecting unpaid sewer fees, establish a board of sewer commissioners, and offer low interest

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loans for the upgrade of septic systems and sewer connections. By 2001, however, the nascent sewer system was encountering considerable financial difficulty.

Although the town's sewer system had initially been intended for use in areas where Title 5 compliance could not be achieved, the town, in May of 2002, sought to cast a wider net by adopting a by-law, pursuant to G. L. c. 40, § 21, requiring the owners of abutting properties generating wastewater to connect to the public sewer. Town residents, however, voted not to adopt the by-law at the May 20, 2002, annual town meeting. Two weeks later, the board of selectmen met to discuss the situation and, at that June 1, 2002, meeting, decided to meet with the board of health and draft for it a mandatory sewer connection regulation. Several such meetings thereafter took place.

A public hearing on the proposed board of health regulation took place on August 28, 2002, in which town residents voiced their concerns. Nonetheless, the board of health adopted the mandatory sewer connection regulation on September 25, 2002, to take effect on January 2, 2003. [Note 5]

The plaintiff homeowners then brought this action seeking declaratory and injunctive relief. More specifically, they sought (1) an order that the town and the board of health cease enforcing the mandatory sewer connection regulation; (2) a declaration that the board of health had adopted the regulation based on impermissible criteria and without authority; (3) an order enjoining the town's selectmen from unlawfully interfering with the board of health in the future; and (4) a preliminary injunction enjoining enforcement of the regulation during the course of the litigation. Since the parties appeared to be in agreement on the essential facts, the judge ordered the trial of the action on the merits to be advanced and consolidated with the hearing

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of the application for preliminary injunctive relief pursuant to the provisions of Mass.R.Civ.P. 65(b)(2), 365 Mass. 833 (1974). After a jury-waived trial, the judge concluded that the challenged mandatory sewer connection regulation was unrelated to public health and safety; he accordingly declared it invalid and, in essence, permanently enjoined the board of health from enforcing it.

The town filed a notice of appeal on November 26, 2003. On December 18, 2003, it filed a motion to alter or amend, pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 828 (1974), and a motion to stay the judgment pending appeal, pursuant to Mass.R.Civ.P. 62(c), 365 Mass. 830 (1974). Both motions were denied on March 8, 2004. On April 8, 2004, an "amended notice of appeal" was entered on the docket stating that the town was amending "the Notice of Appeals to the Appeals Court from the judgment of [the Superior Court] dated October 31, 2003 . . . to also include appeal of [the Superior Court's] March 8, 2004, denial of defendant's Motion to Alter or Amend and Motion for Stay Pending Appeal."

Compliance with Mass.R.A.P. 4(a). The plaintiffs contend that this appeal should be dismissed for failure to comply with Mass.R.A.P. 4(a), [Note 6] asserting that the April 8, 2004, amended notice of appeal was a nullity, as the underlying November 26, 2003, notice of appeal was extinguished when the town filed its December 18, 2003, motions. They argue that the town should have filed a new notice of appeal subsequent to the denial of its December 18, 2003, motions, but did not do so. [Note 7]

Case law is clear that rule 4(a) "meant what it said viz., a

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premature notice of appeal 'shall have no effect.' " Blackburn v. Blackburn, 22 Mass. App. Ct. 633, 634 (1986), quoting from Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982). Appellate courts must "give unqualified effect to the language" of rule 4(a), which instructs that "an appeal founded on a notice of appeal filed prior to disposition of a postjudgment motion under Mass.R.Civ.P. 50(b), 52(b) or 59 is a nullity and shall be dismissed." Anthony v. Anthony, 21 Mass. App. Ct. 299, 302 (1985). The rule is premised on the "undesirability of having a case proceed along the appellate path on the basis of a judgment that might be modified. Such a state of affairs was, at best, disorderly, and at worst, it was likely to provoke mischief if a trial court and an appellate court possessed power to modify the same judgment." Finn v. McNeil, 23 Mass. App. Ct. 367, 369 (1987).

We are persuaded that the April 8, 2004, notice filed by the town was a new notice of appeal that satisfied the requirements of rule 4(a). Although the town might well have been more clear in the language it used (describing it as an "amended notice of appeal" rather than as a new notice of appeal), this linguistic shortcoming is not dispositive in the circumstances. See Lewis v. Emerson, 391 Mass. 517, 520 (1984) ("it is not fair to prevent the parties' exercise of . . . appellate rights on the basis of clerical niceties"). The town's April 8, 2004, notice clearly and expressly referenced the final judgments from which appeal was being taken, thereby putting the parties and the court on notice of the judgments from which the town appealed. We think it of particular importance that the April 8, 2004, notice was filed subsequent to the filing and denial of the December 18, 2003, motions. Contrast Blackburn v. Blackburn, supra at 634-635; Baxter v. Board of Appeals of Barnstable, 29 Mass. App. Ct. 993, 994 (1990); West Springfield v. Olympic Lounge, Inc., 45 Mass. App. Ct. 923, 923 (1998).

Analysis. The mandatory sewer connection regulation adopted by the board of health "stands on the same footing as would a

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statute," and the reviewing court must make all rational presumptions in favor of its validity. Druzik v. Board of Health of Haverhill, 324 Mass. 129, 138 (1949). A party challenging such a regulation must prove that it "is illegal, arbitrary, or capricious," and must establish the "absence of any conceivable grounds upon which the [regulation] may be upheld." Massachusetts Fedn. of Teachers v. Board of Educ., 436 Mass. 763, 771 (2002), quoting from Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 722, cert. denied sub nom. Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936 (1983). The plaintiffs cannot meet this burden by "arguing [, as they do,] that the record does not affirmatively show facts that support the regulation." Ibid., quoting from Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 776 (1980). "Rather, 'we must apply all rational presumptions in favor of the validity of the administrative action and not declare it void unless its provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate.' " Ibid., quoting from Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 855 (1977).

In reviewing the regulation, we are "not concerned whether there was substantial evidence in a record before the agency, but rather . . . whether, based solely on the record made in court, the adoption of the agency regulation was illegal, arbitrary, or capricious" (emphasis original). Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219-220 (2001), quoting from Massachusetts State Pharmaceutical Assn. v. Rate Setting Commn., 387 Mass. 122, 126 (1982). We may consider "relevant information, including that provided in the briefs in determining whether there was a rational basis" for the regulation. Borden, Inc. v. Commissioner of Pub. Health, supra at 725 n.13.

Our review of a regulation, then, is not like our review of the outcome of an administrative hearing, and we may not "check back on the agency's 'reasons' and 'determination[s]' of fact and law[, as it] would have an unhealthy tendency to substitute the court for the agency as a policymaker." Cambridge Elec. Light Co. v. Department of Pub. Util., 363 Mass. 474, 491 (1973). "[A] regulation that is irreconcilable with an agency's

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enabling legislation," however, may not stand. Massachusetts Fedn. of Teachers v. Board of Educ., supra at 771-772, quoting from Quincy v. Massachusetts Water Resources Auth., 421 Mass. 463, 468 (1995).

The board of health adopted the present regulation under the authority of G. L. c. 83, §§ 3 [Note 8] and 11, [Note 9] and G. L. c. 111, §§ 31, [Note 10] 122, [Note 11] and 127. [Note 12] Chapter 111, § 31, alone "confers plenary power [upon local boards of health] to promulgate health regulations --

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reasonable ones -- that are general in application." Hamel v. Board of Health of Edgartown, 40 Mass. App. Ct. 420, 423 (1996). "Health regulations have a strong presumption of validity . . . . A court may invalidate the regulation only when there is no rational relation between [it] and its stated public health purpose." Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, supra at 220.

The stated health purpose of the challenged regulation is "the protection of the public health, safety, welfare and environment and for the further purpose of ensuring the protection of the Wachusett Reservoir, a public water supply." To prevail in their challenge, the plaintiffs must prove that the sewer regulation lacks any nexus with public health and safety. They contend in this regard that Title 5 compliant septic systems, such as the ones servicing their property, pose no danger to the public health or safety. Even if they were to have established that presently compliant systems pose no such danger, however, the regulation will not be invalidated if there is a "conceivable ground" upon which the board could rationally have concluded that Title 5 compliant systems may nonetheless represent a danger to public health and safety.

In his affidavit, Robert Barrell, chairman of the board of health, stated that "[a]ccording to John Scannell and Patricia Austin of the MDC, who met with the board of health on April 9, 2003, even an on-site septic system that passes a Title 5 inspection can contribute pollution to the groundwater due to a hidden failure when the soil below the system stops providing appropriate treatment for septage." We note that Title 5 requires that septic systems be evaluated only in connection with the transfer of a property serviced by such a system. See 310 Code Mass. Regs. § 15.301(1) (1995). [Note 13] Further, Joseph M. McGinn, director of the division of watershed management of the MDC,

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stated in a letter to the board of health that "[t]he second major reason for compelling the earliest connection of other properties to the sewer is to reverse as quickly as possible the continuing degradation and pollution of the ground and surface waters of the Wachusett Reservoir watershed by inadequate septic systems . . . ." Given this, the board of health could plausibly have adopted the challenged mandatory sewer connection regulation based on the logic that, over time, a once compliant system could become a noncompliant, failing system, that the failure might well remain undetected for some period of time, and that the undetected failing system would, until detected and brought back into compliance, contribute to pollution. This constitutes a "conceivable ground" upon which the board of health could properly have based its adoption of the mandatory sewer connection regulation.

Relying on Home Builders Assn. of Cape Cod, Inc. v. Cape Cod Commn., 441 Mass. 724 (2004), and Hamel v. Board of Health of Edgartown, supra, the plaintiffs contend that the MDC studies did not provide the board of health with sufficient scientific basis upon which to base the mandatory sewer regulation. To be sure, the two cases upon which the plaintiffs rely do draw more precise connections between the scientific studies conducted and the challenged regulations than are present here. [Note 14] Such level of precision is not, however, the prerequisite for promulgation of a regulation that the plaintiffs

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appear to suggest. A board of health is permitted to take preventative action in order to preserve the public health and safety; it is not required to "wait until the danger materializes" before taking action. Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. at 727 n.19. Nor is it incumbent upon a board of health before taking such action to demand unqualified scientific proof as to its efficiency. Ibid. ("Some doubts [about] whether [a particular type of insulation] properly installed in houses will cause the symptoms characteristic of exposure to formaldehyde will not stay the commissioner's hand"). Lack of such level of scientific proof does not prevent regulatory action. See Commonwealth v. Leis, 355 Mass. 189, 195 (1969). Moreover, as previously discussed, the board of health was required only to have a "conceivable basis" for its action; this it had. The plaintiffs had the burden of showing the absence of a rational relationship between the regulation and public health and safety; this they did not do. Their reliance on Home Builders and Hamel is unavailing.

The plaintiffs also contend that the subjective motivations of the members of the board of health should be taken into account in determining whether the reasons that the board of health supplied for adopting the mandatory sewer connection regulation were only a pretext. They argue that the real reason for the regulation is the financial difficulties that the town faced in connection with the new sewer system and not genuine public health concerns. Be this as it may, because we have concluded that a nexus between the regulation and public health existed, we need not consider the motives of the board of health. See Massachusetts Fedn. of Teachers v. Board of Educ., 436 Mass.

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at 776-777 ("Where statutory language clearly authorizes actions taken by an agency, the actions are wholly lawful, and we need not look behind them to determine the agency's motives"). Moreover, we are unaware of any controlling precedent in which a regulation was invalidated by virtue of the improper motivation of the agency that adopted it. [Note 15]

Given our conclusion that the challenged regulation is valid, it is unnecessary for us to address the remaining issues raised by the town. [Note 16]

Conclusion. The judgment is vacated and a new judgment shall enter declaring that the mandatory sewer connection regulation promulgated by the town's board of health is rationally related to the protection of public health and safety and is, therefore, valid.

So ordered.