COHASSET REALTY TRUST and DONALD E. STASZKO, individually and as trustee v. STEPHEN N. BOBO, ROBIN M. LAWRENCE, and MARGARET S. CHAPMAN, as they are MEMBERS OF TOWN OF COHASSET BOARD OF HEALTH; TOWN OF COHASSET; and ABBOTT HOMES COHASSET LLC

Introduction

This action, in the nature of certiorari, is the plaintiffs’, Cohasset Realty Trust and Donald E. Staszko, appeal of the defendant Board of Health’s (the “Board”) decision granting the defendant Abbott Homes Cohasset, LLC (“Abbott”) four disposal system construction permits for Abbott’s 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 Abbott’s 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 Board’s decision is not available. [Note 2] The plaintiffs’ motion is thus DENIED and all of their claims are dismissed, with prejudice.

Facts

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 Abbott’s 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. Abbott’s application to the DEP and the DEP’s 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.” Chick’s 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 court’s power on certiorari is not exercised to remedy mere technical errors that have not resulted in manifest injustice.” (quoting Massachusetts Prisoners Ass’n. 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.

Analysis

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 Board’s 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 counsel’s statement that there is nothing in the record to show that the plaintiffs will suffer substantial injury or injustice from the Board granting Abbott’s 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 Realty’s 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 Board’s 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 Abbott’s septic systems will likely harm the plaintiffs’ property. The plaintiffs allege that the Board’s decision violates both Title V and the town’s 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 Abbott’s 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.

Conclusion

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