This action, in the nature of certiorari, is the plaintiffs, Cohasset Realty Trust and Donald E. Staszko, appeal of the defendant Board of Healths (the Board) decision granting the defendant Abbott Homes Cohasset, LLC (Abbott) four disposal system construction permits for Abbotts proposed residential cluster development located at 230 Sohier Street in Cohasset. The proposed development will contain twenty-seven, single-family homes on approximately nineteen acres (four acres of the twenty-three-acre property will remain undeveloped). The twenty-seven homes are served by four septic systems. Each system has a design flow of 1,870 gallons per day (gpd) and will serve six to seven homes.
After reviewing Abbotts initial and supplemental submissions (including revisions to the plans) and after three public hearings over a two-and-a-half month period, [Note 1] the Board granted the four permits. The plaintiffs contend that this decision was in violation of law, arbitrary, capricious, . . . not based on substantial facts, and . . . plainly wrong. Complaint at ¶ 10 (filed Sept. 21, 2007). The defendants claim that the decision was supported by substantial evidence and that there was no substantial error in law in granting the permits. Abbott also contended in its answer that the plaintiffs lacked standing. The plaintiffs filed a motion for judgment on the pleadings and a hearing was held.
Based upon the certified record of the proceedings, the parties submissions, and the testimony at the hearing, I find and rule that the plaintiffs do not have standing and, therefore, certiorari review of the Boards decision is not available. [Note 2] The plaintiffs motion is thus DENIED and all of their claims are dismissed, with prejudice.
Abbott owns twenty-three acres at 230 Sohier Street in Cohasset. The plaintiffs are abutters to the Abbott property and own property located on the Northeasterly side of Chief Justice Cushing Highway and the Easterly side of Sohier Street in Cohasset. Revised Memorandum in Support of Plaintiffs Motion for Judgment on the Pleadings at 2 (filed April 16, 2008). The plaintiffs property is adjacent to and immediately down gradient from the defendant Abbotts land. Id.
Abbott proposes to construct twenty-seven, single-family homes in a cluster development on nineteen of its twenty-three acres. Abbott applied for, and received, a special permit from the Planning Board of Cohasset for the cluster development. [Note 3] On May 22, 2007, Abbott filed four applications with the Board for disposal system construction permits. These permits would enable Abbott to construct four septic systems, each with a design flow of 1,870 gpd. Each system will serve six to seven homes. With its submission, Abbott filed numerous plans, including topographical maps, existing conditions plans, a grading and sewer layout plan, several sewer plans, soil logs (with the corresponding data included), and septic system plans. See Ex. 11.
The Board held three public hearings, [Note 4] at which the plaintiffs and their engineers (Merrill Associates, Inc.) actively participated. Based upon these hearings and the plaintiffs concerns, the Board requested additional information and revised plans. In addition, the Department of Environmental Protection (DEP), pursuant to 310 CMR 15.412, completed a [s]upplemental review of the . . . application for a pump system prior to the septic tank. Letter from Jeffrey E. Gould, Bureau of Resource Protection to Tara Tradd, Health Inspector of the Board of Health and Robert Durant, Abbott Homes Cohasset, LLC at 1 (Aug. 23, 2007). After such review, the DEP approve[d] the system in accordance with 310 CMR 15.229(3), subject to certain conditions. [Note 5] Id. at 3. Abbotts application to the DEP and the DEPs decision also was before the Board. The Board and its Health Agent, Dr. Joseph R. Godzik, reviewed all of the submissions and based upon that review, the Board granted the four permits on August 13, 2007.
Other pertinent facts are included in the analysis section below.
Review under Certiorari
G.L. c. 249, § 4 provides, in relevant part, [a] civil action in the nature of certiorari to correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal, may be brought . . . [Note 6] Its appropriate function is to relieve aggrieved parties from the injustice arising from errors of law committed in proceedings affecting their justiciable rights when no other means of relief are open. Boston Edison Co. v. Bd. of Selectmen of Concord, 355 Mass. 79 , 83 (1968). The writ [of certiorari] does not issue as matter of right but rests in sound judicial discretion. Chicks Constr. Co., Inc. v. Wachusett Regional High Sch. District School Comm., 343 Mass. 38 , 41 (1961). Therefore, the requisite elements for availability of certiorari are (1) a judicial or quasi judicial proceeding; (2) a lack of all other reasonably adequate remedies; and (3) substantial injury or injustice arising from the proceeding under review. Boston Edison Co., 355 Mass. at 83; see also Fiske v. Bd. of Selectmen of Hopkinton, 354 Mass. 269 , 271 (1968) (It is 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.); Cumberland Farms, Inc. v. Planning Bd. of Bourne, 56 Mass. App. Ct. 605 , 607 (2002) (The courts power on certiorari is not exercised to remedy mere technical errors that have not resulted in manifest injustice. (quoting Massachusetts Prisoners Assn. Political Action Comm. v. Acting Governor, 435 Mass. 811 , 824 (2002)).
Once the petitioner shows that these requisite elements are met, the court will review the record only [for] errors of law. Id. at 87. The standard of review varies according to the nature of the action for which review is sought. FIC Homes of Blackstone v. Cons. Comm., 41 Mass. App. Ct. 681 , 684 (1996) (internal quotations and citations omitted). A court should overrule the original decision-making body (here the Board of Health) only if there is a lack of substantial evidence to support [the] finding. . . It should not be overruled unless it has behaved arbitrarily or unreasonably. Boston Edison Co., 355 Mass. at 91; see also Durbin v. Bd. of Selectmen of Kingston, 62 Mass. App. Ct. 1 , 5 (2004). Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Boston Edison Co., 355 Mass. at 91 (citing G.L. c. 30A, § 1). To determine whether the decision was arbitrary or capricious, the court examines the agency action to determine whether it was authorized by the governing statute . . . in light of the facts. Fafard v. Conservation Comm. of Reading, 41 Mass. App. Ct. 565 , 568 (1996). A decision is not arbitrary and capricious unless there is no ground which reasonable [persons] might deem proper to support it. FIC Homes, 41 Mass. App. Ct. at 685 (quoting T.D.J. Dev. Corp. v. Conservation Comm. of N. Andover, 36 Mass. App. Ct. 124 , 128 (1994)) (alteration in original). In applying this test, the reviewing court is not empowered to make a de novo determination of the facts, to make different judgments as to the credibility of witnesses, or to draw different inferences from the facts; it cannot disturb a choice made below between two fairly conflicting inferences or views of the facts, even if it might justifiably make a different choice were the case before it de novo. Durbin, 62 Mass. App. Ct. at 6.
As stated above, the requisite elements for availability of certiorari are (1) a judicial or quasi judicial proceeding; (2) a lack of all other reasonably adequate remedies; and (3) substantial injury or injustice arising from the proceeding under review. Boston Edison Co., 355 Mass. at 83. Here, it is undisputed that the first two elements are satisfied. However, the defendants contend that the plaintiffs have failed to show substantial injury or injustice arising from the Boards decision granting four permits for the septic systems. I agree.
Although the plaintiffs contend in their complaint that the [Board] has failed to protect their property from contamination created by the inadequately designed sewer disposal system of ABBOTT and that their property will suffer contamination, degradation of groundwater and wetlands on the Plaintiffs property, and damage the lawfully permitted septic systems on the Plaintiffs property, all to the Plaintiffs financial loss and damage, Complaint at ¶ 9 (filed Sept. 21, 2007), the plaintiffs motion for judgment on the pleadings fails to substantiate these contentions. Rather, it simply states that [t]he plaintiffs genuinely believe that the design of the system is inadequate and will result in the contamination of groundwater flowing directly to the plaintiffs property and will result in the surface breakout of sewage which will flow to the plaintiffs property. Revised Memorandum in Support of Plaintiffs Motion for Judgment on the Pleadings at 16. Indeed, at the hearing, plaintiffs counsel stated that the plaintiffs are abutters, their property is down gradient, water and effluent flows downhill, and if there is a surface breakout, effluent will wind up on the plaintiffs property and will putrify the wetlands, detention basin, and potentially contaminate groundwater. Plaintiffs counsel conceded that there is nothing in the record to show such injuries, but that the court can reasonabl[y] infer that such injuries will occur if the septic systems fail.
A review of the record confirms the counsels statement that there is nothing in the record to show that the plaintiffs will suffer substantial injury or injustice from the Board granting Abbotts permits. The only statements that even somewhat address this issue are from the plaintiffs engineer in letters to the Board. In these letters, Thomas Pozerski, Senior Project Engineer at Merrill Associates Inc., states that Cohasset Realtys main concern in having us complete this review is to ensure the Cook Estates proposal is designed and constructed properly so as not to have an adverse impact on public health, the environment or their property. Upon completing our review we offer the following key items of concern for your review. Letter from Thomas Pozerski to the Cohasset Board of Health at 1 (Aug. 13, 2007) (the key items describe concerns with deep hole observation logs, percolation tests and general requirements); see also Letter from Thomas Pozerski to the Cohasset Board of Health at 1 (July 23, 2007) (stating the same almost verbatim); Letter from Thomas Pozerski to the Cohasset Board of Health at 1 (June 18, 2007) (same); Letter from Thomas Pozerski to the Cohasset Board of Health at 1 (May 29, 2007) (same).
These statements (at the hearing and in the record) are insufficient to show that the plaintiffs will suffer any injury from the Boards decision. Indeed, no reasonable person could conclude the plaintiffs will suffer any injury on the basis of these statements. The plaintiffs contention that the court nonetheless should infer such injury is contrary to the law. In a certiorari review, the plaintiff[s] status as a direct abutter does not create a rebuttable presumption of standing. Higby/Fullon Vineyard, LLC v. Bd. of Health of Tisbury, 70 Mass. App. Ct. 848 , 850 (2007); see also Friedman v. Conservation Comm. of Edgartown, 62 Mass. App. Ct. 539 , 543-44 (2004) (We disagree with the plaintiffs that standing is to be conferred solely by virtue of their assumed status as abutters . . . Our conclusion rests in part on our observation that, in comparable settings, requirements for abutters seeking to establish and retain standing are formidable.). Therefore, the plaintiffs must put forward evidence to show actual, substantial injury to the wetlands, detention basins, and groundwater on their property. Id. at 851 (emphasis added). However, the plaintiffs have completely failed to put forward any evidence showing that Abbotts septic systems will likely harm the plaintiffs property. The plaintiffs allege that the Boards decision violates both Title V and the towns rules and regulations, which, if true, is a general injury to all citizens in Cohasset, does not (on its own) evidence or suggest any resulting harm to the plaintiffs, and is thus insufficient for standing. Fiske, 354 Mass. at 271; see also Friedman, 62 Mass. App. Ct. at 545 (allegations that were speculative and damage that was generalized were insufficient to confer standing). The plaintiffs contention that the court can infer, due to the topography of the area, that the plaintiffs will receive effluent from Abbotts project if the septic systems fail is likewise speculative and, in the absence that is likely to do so, is insufficient to confer standing. Higby/Fulton Vineyard, LLC, 70 Mass. App. Ct. at 849-51 (where, as here, the plaintiffs identified principal areas of concern, and testified that the proposed septic system might pollute groundwater and surface water). As a result, the plaintiffs do not have standing and certiorari review is not available in this case.
For the foregoing reasons, I find and rule that the plaintiffs do not have standing. The plaintiffs motion is thus DENIED and all of their claims are dismissed, with prejudice. Judgment shall issue accordingly. SO ORDERED.
Keith C. Long, Justice
Dated: 7 August 2008
[Note 1] Although it is not entirely clear, it appears from the record that there were three public hearings that took place (May 29, 2007, June 18, 2007, and August 13, 2007). See Ex. 6 (Copy of Notice), Ex. 10 (handwritten notes regarding the 8/13/07 meeting), Ex. 18 (hand written notes, stating Meeting 6/18/07 . . . This is more of a discussion meeting.). In addition, Abbott stated that there were three public hearings, a statement that was not disputed.
[Note 2] Similar to the decision in Friedman v. Conservation Comm. of Edgartown, while the merits are intertwined to some degree with the standing question, [I] do not reach the substantive issues presented since the plaintiffs do not have standing. 62 Mass. App. Ct. 539 , 543, n.6 (2004). However, as in Friedman, if I were to reach the substantive issues, I would affirm the decision of the Board because it was supported by substantial evidence and was neither arbitrary nor capricious. Id. Further, as the court in Higby/Fullon v. Bd. of Health of Tisbury noted, I am also mindful of the substantial study and review undertaken by the board in this matter prior to its [decision], as reflected in the various components of the administrative record. 70 Mass. App. Ct. 848 , 852 (2007).
The plaintiffs counsel identified at the hearing that the most important issue with regard to the Boards decision was the lack of groundwater mounding analysis. All parties concede that this analysis was not conducted as part of Abbotts application. However, Abbott and the Board both contend that the law does not require such analysis in this case. Title V of the State Environmental Code (310 CMR 15.000) and the Boards Supplemental Rules and Regulations govern this issue. Specifically, 310 CMR 15.212(2) states that [f]or systems with a design flow of 2,000 gpd or greater, the separation to high groundwater . . . shall be calculated after adding the effect of groundwater mounding to the high groundwater elevation. . . The Boards Rules and Regulations similarly require groundwater mounding analysis for shared systems or a system with a flow greater than 2,000 GPD. Board Rules and Regulations at § 15.0220(3). The plaintiffs contends that since the four septic systems have a design flow of greater than 2,000 gpd when combined, that groundwater mounding should have been calculated and added to the high groundwater elevation as required by this provision. Abbott and the Board argue that since the septic systems are four independent systems, this provision does not apply. I find that the Boards interpretation of Title V and its own Rules and Regulations and its finding that groundwater mounding analysis was not required is reasonable, and it is one with which I agree.
The plaintiffs point to 310 CMR 15.011 to argue that since the four septic systems are in single ownership, they should be considered one system. However, this provision specifically states that it applies only when assessing whether facilities are in single ownership for purposes of determining whether the total design flow exceeds the 2,000 gpd threshold of 310 CMR 15.202 (recirculating sand filters) or the permitting, treatment and effluent standard requirements of 314 CMR 5.00 and 314 CMR 6.00. 310 CMR 15.011. If the DEP intended this provision to apply to 310 CMR 15.212, it would have specifically said so in the provision itself (as it did with the three other provisions). In addition, 310 CMR 15.002 defines a system (or on-site system) as [a] system or series of systems for the treatment and disposal of sanitary sewage below the ground surface on a facility. . . The standard components of a system are: a building sewer; a septic tank to retain solids and scum; a distribution system; a soil absorption system containing effluent distribution lines to distribute and treat septic tank effluent prior to discharge to appropriate subsurface soils; and a reserve area. As shown on the plans for the project, the four septic systems and their individual components are all independent of one another. The Board was therefore reasonable in its conclusion that each system did not exceed the 2,000 gpd threshold and thus Abbott did not need to calculate groundwater mounding.
The plaintiffs also contend that the Boards decision was in violation of the law because the Board did not require the minimum testing set forth in Title V and the Boards Rules and Regulations for deep hole and percolation tests. Both sets of regulations require percolation tests and deep observation holes, which, according to the Boards Rules and Regulations, must be witnessed by [t]he Health Agent or another approved Board of Health representative. Cohasset Board of Health Supplemental Rules and Regulations to Title V of the State Environmental Code § 15.100 (hereinafter, the Board Rules and Regulations). There must be two deep observation holes in both the primary and reserve areas to present a reasonable representation of the soils in the entire soil absorption system. Id. at § 15.102; 310 CMR 15.102. Additional testing shall be required if, in the opinion of the Soil Evaluator or the [Board], there is evidence of inconsistent soil characteristics, the presence of ledge or additional testing is necessary to properly assess site conditions . . . 310 CMR 15.102(2). Based on the data from these observation holes, [t]he Soil Evaluator shall indicate on the soil log whether four feet of naturally occurring pervious materials exist in all areas observed throughout the area proposed for the soil absorption system. Id. at § 15.103(4). There also must be [t]wo percolation tests in the primary area and one in the reserve area . . . for all new construction. Board Rules and Regulations at § 15.104 (this requirement is greater than Title V, which only requires one percolation test in the primary area and one in the reserve area). Additional tests shall be required where soil conditions vary or as determined by the [Board] or where system design exceeds 2,000 gpd. 310 CMR 15.104(4).
The record indicates that the Title V requirements were all met. See Ex. 10, 11, 13, 14, 51. In addition, handwritten notes from the August 13, 2007 Board meeting indicate that [a]ll the systems (4) meet the requirements of Title 5 for observation holes and percs. . . . The holes that were not witnessed by the Board are not included. Ex. 10 (notes from Meeting 8/13/07) (emphasis in original). Although it is unclear from some of the percolation tests whether they were conducted in the most restrictive layer, the statement in the handwritten notes that all of the percolation tests met Title V requirements would necessarily mean that they were conducted in the most restrictive layer. Therefore, the Boards determination is entitled to deference. See Tehranian v. Bd. of Health of Cohasset, Case No. 06-P-265, Memorandum and Order Pursuant to Rule 1:28, 68 Mass. App. Ct. 1105 , 2007 WL 283747, at *3 (2007) (The boards expertise can be presumed to have played a role in its conclusion that the percolation tests were performed in the correct layer of soil. We will not substitute our judgment on this matter for that of the board). The plaintiffs also, in their initial memorandum, take issue with the fact that some of the percolation tests were completed several years ago. However, 310 CMR 15.104(1) clearly states that data may be deemed valid for an indefinite period provided the soils within the site evaluated remain undisturbed and unaltered. Again, the Boards determination that these tests met the Title V requirements is entitled to deference.
It also appears from the record that the Boards Rules and Regulations were met for the deep observation holes. See Ex. 10, 11, 13, 14, 51 (indicating at least two observation holes were located in both the primary and reserve areas for each of the four systems). Although the plaintiffs contend that certain test holes were not witnessed by the Board (the OH test pits and Test Pit TIP [sic] D), the record indicates that any test holes not witnessed were not considered by the Board (the OH test pits) and the TTP test pits were conducted by Joseph R. Godzik, the Boards Health Agent. Ex. 10, 20. In the plaintiffs first memorandum, they also stated that test pit JCC1 was not witnessed, but this assertion was not included in their revised memorandum. I take from this that they are no longer asserting that JCC1 was not witnessed. In addition, Abbott stated that JCC1 was witnessed by Mr. Godzik. Since the other JCC tests indicate that Mr. Godzik witnessed them on the same date that JCC1 occurred, I find that Mr. Godzik did witness JCC1. Durbin v. Bd. of Selectmen of Kingston, 62 Mass. App. Ct. 1 , 5 (2004) (the court cannot disturb a choice made below between two fairly conflicting inferences or views of the facts, even if it might justifiably make a different choice were the case before it de novo). In any event, there is no suggestion that this issue was a substantial error of law apparent on the record adversely affecting the material rights of the plaintiffs. Id. Indeed, as I find herein, there is no evidence that the Boards decision adversely affects the rights of the plaintiffs at all.
It does appear, however, that the Boards Rules and Regulations were not met for the percolation tests (the requirement that there be two percolation tests in each primary area). So far as I can tell from the record, there was only one percolation test conducted in the primary area for systems 1, 2, and 3. The handwritten notes regarding the August 13, 2007 meeting acknowledges this fact and indicated that the Board was comfortable with the plans since they showed full compliance with Title V (only one percolation test). Ex. 10. Considering the lengthy review process with input from the plaintiffs and the number of percolation tests that were conducted, the Board was well within its discretion in finding that the septic systems were adequately designed so that it was permitted to waive the requirement. I also note that there are several percolation tests identified in the record that were witnessed by a representation of the Board, but whose location are not precisely identified. See Ex. 13, 14. Perhaps some of these tests would result in the three systems meeting the requirements of the Rules and Regulations; however, I need not and do not make that finding. It is enough to simply note that this issue does not arise to the level of a substantial error since the systems meet the requirements of Title V and since the plaintiffs have failed to show that they will suffer any injury from the Boards decision. Durbin, 62 Mass. App. Ct. at 5; see also Chicks Constr. Co., Inc. v. Wachusett Regional High School District Sch. Comm., 343 Mass. 38 , 41 (1961) (certiorari will not be granted unless the petitioner demonstrates that substantial justice requires it even though defects of some comparatively inconsequential nature may appear on record).
Overall, the certified record shows that there is such evidence as a reasonable mind might accept as adequate to support the Boards decision granting the disposal system construction permits. Id.; Boston Edison Co., 355 Mass. 79 , 92 (1968). Were I to reach the merits of the case, I would therefore uphold the Boards decision.
[Note 3] This decision has also been appealed to the Land Court in a separate case, Miscellaneous Case No. 359528.
[Note 4] See note 1, supra.
[Note 5] The conditions included the following: 1. A Disposal System Construction Permit must be obtained from the Cohasset Board of Health prior to the start of any construction. 2. There is to be no increase in sewage flow to the subsurface sewage disposal system and no increase in square footage to the proposed structures that results in an increase in design flow to the sewage disposal system. 3. Prior to the Board of Health issuing a Certificate of Compliance[,] the Applicant shall file a notice in the appropriate Registry of Deeds. The notice shall include that each unit must have a backup generator for emergency use for the 2010 IDU pump. 4. Please submit a copy of the As-Built plans to this office within 15 days upon completion of construction. 5. An operation and maintenance plan, acceptable to the Board of Health, shall be implemented that requires monitoring of the system at a minimum frequency of twice a year to ensure proper operation and maintenance. Letter at 3.
[Note 6] An action in the nature of a certiorari is reviewed by the court on a motion for judgment on the pleadings. Drayton v. Commr of Correction, 52 Mass. App. Ct. 135 , 136, n.4 (2001) (citing Black Rose v. City of Boston, 433 Mass. 501 , 503, n.1 (2001)); see also Land Court Standing Order 2-06(4) (A claim for judicial review on the administrative record shall be resolved through a motion for judgment on the pleadings, Mass. R. Civ. P. 12(c) . . .).