HIGBY/FULTON VINEYARD, LLC vs. BOARD OF HEALTH OF TISBURY & another. [Note 1]

MILLS, J. The plaintiff's action is in the nature of certiorari, G. L. c. 249, § 4, seeking review of a decision of the board of health (board) of the town of Tisbury to issue a septic disposal system construction permit to Hubert E. Knipmeyer, who proposed to build a three-bedroom home on a parcel of land in Tisbury. A judge of the Superior Court dismissed the complaint for lack of the plaintiff's standing. We affirm.

1. Background. Knipmeyer's lot and the plaintiff's lot have

Page 849

frontage on Mink Meadows Pond and are part of the same subdivision. A professional land surveyor filed Knipmeyer's permit application, which included multiple pages of submissions, technical data, and other documents and plans with the board. The record shows (and the parties are in general agreement) that the board considered the Knipmeyer application and subsequent submissions at public meetings or hearings, that the Department of Environmental Protection (department) reviewed the application and various documents and essentially approved the proposed septic system, and that Knipmeyer, through professionals, furnished satisfactory supplemental information that the department, the board, and the board's health agent deemed necessary or appropriate. The application was filed on May 10, 2005, and the board's review process continued for more than six months, to November 15, 2005, when the board voted to approve the application.

The plaintiff's lot directly abuts the lot owned by Knipmeyer. The plaintiff alleges in the complaint that its owners and their families "use and enjoy the beaches, ponds, open spaces and other common areas in the [subdivision], including the beach on the Vineyard Sound and [the pond]." When asked in interrogatories to detail the ways in which the plaintiff expected to be harmed by the board's decision, the plaintiff responded by referring to the opinion of its expert, Arlene Wilson, a land use planner and abutment specialist. The plaintiff summarized Wilson's views by stating, in its answers to interrogatories, that the proposed septic system raises "four principal areas of concern," which we set forth in the margin. [Note 2]

The judge noted that Wilson elaborated on her views during a

Page 850

deposition, where she testified that the proposed septic system "has the potential to increase nitrogen loading to the adjacent pond," and that it "has the likelihood to increase phosphorous loads." The judge further observed that while Wilson explained that increased nitrogen would promote the growth of phragmites, she was unable to state by how much the proposed septic system would increase this growth, testifying that she had not "done any calculations within that." In addition, the judge noted that Wilson testified that if someone in Knipmeyer's proposed home were ill with an enteric virus, "there's a possibility for transmission of disease" through viral cysts transmitted from the septic system to the groundwater and then to the pond. Finally, she testified to the possibility of pollution of groundwater and adjacent surface water if users of the proposed home were to put deleterious materials into the septic system. On appeal, the plaintiff argues that as an abutter it is entitled to presumptive standing, and that, regardless, it has made a sufficient showing of injury to survive the motion to dismiss.

2. Discussion. We hold that the plaintiff's status as a direct abutter does not create a rebuttable presumption of standing, relying upon the authorities and reasoning in Friedman v. Conservation Commn. of Edgartown, 62 Mass. App. Ct. 539, 542-545 (2004). Compare Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996); Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 27-28 (2006); Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81, 87-89 (2007). Certiorari review of this board decision may only be available if the plaintiff makes a requisite showing of a reasonable likelihood that it has suffered injury to a protected legal right. See Friedman v. Conservation Commn. of Edgartown, supra at 543.

In Enos v. Secretary of Envtl. Affairs, 432 Mass. 132, 134-135 (2000), the dispositive question was whether the plaintiffs had demonstrated that they had standing to maintain an action under G. L. c. 231A. After iterating certain "terms used to define a plaintiff's standing -- [e.g.,] 'injury within the area of

Page 851

concern'; 'definite interest in the matters in contention'; 'violation of duty owed,' " -- the court noted them as "elastic concepts that have different meanings for different parties." Id. at 135. The court then instructed that,

"[i]n the final analysis, we must decide whether standing exists by examining several considerations, including the language of the statute in issue; the Legislature's intent and purpose in enacting the statute; the nature of the administrative scheme; decisions on standing; any adverse effects that might occur, if standing is recognized; and the availability of other, more definite, remedies to the plaintiffs. In making our inquiry, we pay special attention to the requirement that standing usually is not present unless the governmental official or agency can be found to owe a duty directly to the plaintiffs."

Id. at 135-136. We read Enos in combination with "the general rule that resort cannot be had to certiorari unless the action of the tribunal of which a review is sought has resulted in substantial injury or manifest injustice to the petitioner." Fiske v. Selectmen of Hopkinton, 354 Mass. 269, 271 (1968), quoting from North Shore Corp. v. Selectmen of Topsfield, 322 Mass. 413, 418 (1948).

The judge properly noted that the plaintiff, as an abutter to the pond, has interests in the quality of its water that are private and specific to it, going beyond the interest of the general public. But the judge also correctly focused on the question whether the plaintiff had put forward evidence to show actual, substantial injury to the quality of the water in the pond. The judge then carefully examined the evidence offered by the plaintiff, principally the expert opinion of Arlene Wilson. The judge noted that the opinion was stated in terms of "potential," "likelihood . . . over time," and "possibility." The judge noted that the expert, having done no calculations or testing, was unable to express any opinion more specific or definitive than these references to potential, likelihood, and possibility. The judge concluded that on the basis of the plaintiff's allegations, and with due regard for Wilson's expert opinion, the plaintiff's claims of injury with respect to the interests that the board's regulations protect rested, in substance, on speculation and that such claims

Page 852

did not provide standing to petition for certiorari review. See Butler v. Waltham, 63 Mass. App. Ct. 435, 440-442 (2005).

There was no error. The judge's analysis of the evidence, and her order of dismissal, were made with the backdrop of the fundamental principles of certiorari review, including its purpose "to correct substantial errors of law apparent on the record adversely affecting material rights." Police Commr. of Boston v. Robinson, 47 Mass. App. Ct. 767, 770 (1999), quoting from MacHenry v. Civil Serv. Commn., 40 Mass. App. Ct. 632, 634 (1996). The words "substantial error of law . . . which adversely affects a material right" are frequently repeated and emphasized in our cases. See, e.g., Massachusetts Bay Transp. Authy. v. Auditor of the Commonwealth, 430 Mass. 783, 790 (2000); Teamsters Joint Council No. 10 v. Director of the Dept. of Labor & Workforce Dev., 447 Mass. 100, 106 (2006); Durbin v. Selectmen of Kingston, 62 Mass. App. Ct. 1, 5 (2004).

In addition to the speculative nature of the plaintiff's showing, we are also mindful of the substantial study and review undertaken by the board in this matter prior to its vote, as reflected in the various components of the administrative record.

The judge properly dismissed the plaintiff's complaint. [Note 3]

Judgment affirmed.

Order denying motion for reconsideration affirmed.