E. PETER MULLANE, as TRUSTEE OF BOULEVARD REALTY TRUST vs. HAROLD T ZADEH, KATHIE N. CASE and KEVIN L. SEARLE, as they are members of the TOWN OF EDGARTOWN BOARD OF HEALTH

Plaintiff E. Peter Mullane, Trustee of Boulevard Realty Trust, (“Mullane”) filed his unverified complaint on September 11, 2006, pursuant to G. L. c. 249, § 4, seeking relief from Defendant Town of Edgartown Board of Health’s (the “Board of Health”) denial of an application for certain variances from: (1) Title 5 of the State Environmental Code, 310 CMR, § 15.00 (“Title 5”); (2) the Town of Edgartown Board of Health Rules & Regulations (the “BOH Regulations”); and (3) the Edgartown Zoning Bylaw (the “Bylaw”) necessary to construct a septic system for a single family house on property located at 189 The Boulevard, Edgartown, MA (“Locus”). A case management conference was held on November 21, 2006, and a status conference was held on March 1, 2007. On April 27, 2007, Mullane filed his Motion for Judgment on the Pleadings, together with a supporting memorandum. On June 29, 2007, the Board of Health filed a memorandum in opposition to Mullane’s Motion for Judgment on the Pleadings. Mullane filed a reply memorandum on October 19, 2007. A hearing was held on the motion on October 31, 2007, and the matter was taken under advisement.

The purpose of a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c) is “to challenge the legal sufficiency of the complaint.” Bd. of Selectmen of Hanson v. Lindsay, 444 Mass. 502 , 509 (2005) (citations omitted). It is appropriate “only when the text of the pleadings produces no dispute over material facts.” Tanner v. Bd. of Appeals of Belmont, 27 Mass. App. Ct. 1181 , 1182 (1989) (citing Clarke v. Metro. Dist. Comm’n, 11 Mass. App. Ct. 955 (1981)). When a defendant’s pleading places the material allegations in question, a motion for judgment on the pleadings cannot lie. Id. Since the parties in the case at bar agree upon the record, judgment on the pleadings is permissible.

The following facts are not in dispute:

1. Mullane is the record owner of Locus, a vacant lot. Locus is bounded on northwest and southeast by abutting lots, on the northeast by Sengekontacket Pond, and on the southwest by The Boulevard. Locus is comprised of approximately 4.8 acres; 1.4 acres consist of upland and freshwater wetland, and the remaining 3.4 acres are salt marsh and open water. Of the 1.4 acres of upland and freshwater wetland, only 1.2 acres are suitable for construction of a septic system.

2. Locus is shown as Lot 7 on an Approval Not Required plan titled “Plan of Land in Edgartown, Mass., Property of John L. LaCroix, Scale 1" = 100'” dated April 22, 1976, prepared by Schoefield Brothers Incorporated (the “ANR Plan”). Prior to this date, Locus was part of a larger parcel owned by John L. LaCroix (“LaCroix”). By deed dated September 29, 1976, LaCroix conveyed Locus to Ann Marie LaCroix Tingle. [Note 1] On December 21, 1976, in preparation for an approval of the ANR Plan and development of the land by LaCroix, the Martha’s Vineyard Commission (the “MVC”) issued a decision that permitted the Town of Edgartown Planning Board (the “Planning Board”) “to grant the necessary development permits for the proposed division of land . . . .” On April 7, 1977 the Planning Board approved the ANR Plan, and such plan was recorded in the Dukes County Registry of Deeds on September 23, 1977.

3. Ann Marie LaCroix Tingle conveyed Locus to W. Duncan Tingle and Nancy Tingle as tenants by the entirety by a quitclaim deed dated December 12, 1991. W. Duncan Tingle and Nancy Tingle conveyed Locus to Donna Brouchard, as Trustee of the Boulevard Realty Trust, by a quitclaim deed dated March 19, 1998. The record does not indicate when Mullane became Trustee of the Boulevard Realty Trust.

4. Locus is located within an area designated by the MVC as a Coastal District within a District of Critical Planning Concern (“DCPC”). [Note 2]

5. On March 12, 2005, Mullane filed an application (the “Application”) with the Board of Health for a permit for a septic system to support a four-bedroom dwelling on Locus. Mullane appended the Application with a plan of the proposed dwelling and septic system prepared by David E. Taylor Surveying dated March 12, 2005 (the “2005 Plan”). The 2005 Plan was revised on October 3, 2005 and May 31, 2006.

6. In connection with the Application, Arlene M. Wilson (“Wilson”), an environmental planner and Professional Wetlands Scientist representing Mullane, sent a letter dated November 28, 2005, to the Board of Health requesting variances (the “Variances”) from Title 5, the BOH Regulations, and the Bylaw necessary for construction of the septic system on Locus, which are summarized as follows:

a. Title 5

310 CMR 15.255(2)(e) in relation to Title 5 provides that “the recommended distance from the impervious barrier to the edge of the soil absorption system closest to the barrier should be at least ten feet.” Wilson requested a five foot variance, which would result in a distance of five feet between the soil absorption system and a concrete retaining wall.

310 CMR 15.410(2) in relation to Title 5 provides that “[w]ith regard to variances for new construction, enforcement of the provision from which a variance is sought must be shown to deprive the applicant of substantially all beneficial use of the subject property in order to be manifestly unjust.”

b. BOH Regulations

BOH Regulations § 2.1.401 requires a distance of 200 feet between any well and all subsurface sewage disposal facilities, including reserve areas. [Note 3] Wilson requested a seventy foot variance, which would result in a distance of 130 feet between the proposed leaching area and a well on an abutting lot to the southwest, as well as a 100 foot variance, which would result in a 100 foot distance between the reserve area and the same well.

c. Bylaw

Bylaw § 14.1.e.4 provides that “[a]ny ground water well should require a permit from the BOH before installation, and shall be located at least two hundred (200) feet from any sanitary disposal facility, and two hundred (200) feet from any salt water body.” Therefore the variances requested under this Bylaw were identical to the variances requested from the BOH Regulations.

Bylaw § 14.1.e.5 provides that “[a]ny sanitary disposal facility shall be located a minimum of two hundred (200) feet from any salt water body.” Wilson requested a variance of forty feet, which would result in a distance of 160 feet between the leaching facility and the closest body of salt water.

Bylaw § 14.1.e.6 provides that “[t]here shall be a minimum separation of two hundred (200) feet between sanitary disposal facilities.” Wilson requested a variance of 165 feet, which would result in a distance of thirty-five feet between the septic system and an existing leaching facility on the abutting lot to the south-east, as well as a variance of 140 feet, which would result in a distance of sixty feet between the septic system and an existing leaching pit on an abutting lot to the southwest.

7. In addition to requesting approval of the Variances, Wilson’s letter also stated that “the proposed project provides an equivalent or better degree of environmental protection than would a system which met all relevant design criteria of the state and local requirements.” In support of this contention, Wilson provided calculations which indicated that the nitrogen loading on Locus resulting from construction of the septic system with the Variances would fall within permissible levels.

8. In January 2006, the Board of Health received three letters from abutters opposing approval of the Variances.

9. A letter dated January 26, 2006, to Matt Poole (“Poole”), the Board of Health Agent, from William Wilcox (“Wilcox”), the water resources planner for the MVC, reviewed the calculations prepared by Wilson. Wilcox indicated he believed that Wilson made mistaken assumptions in her nitrogen loading methodology. He expressed doubts as to the appropriateness of using “salt marsh as a source of recharge to dilute nitrogen loading from a project situated in an upland area.” Furthermore, he believed Locus contained characteristics associated with “high velocity seeps,” which can “carry nitrogen-enriched groundwater directly into Sengekontacket with the ebb tide.”

10. A public hearing before the Board of Health was held on the Application on January 26, 2006.

11. On February 9, 2006, the Board of Health authorized Poole to hire Norfolk Ram Group, LLC (“Norfolk Ram”), a private environmental engineering firm, to conduct an independent analysis of the 2005 Plan. Poole requested Norfolk Ram to specifically analyze the 2005 Plan for “Title 5 compliance and good engineering principle(s).” Additionally, Poole asked that Norfolk Ram review the Application’s nitrogen loading calculations and analysis.

12. In a letter to the Board of Health dated February 22, 2006, Wilson responded to Wilcox’s letter and further explained her calculations. Wilson explained that

[t]he use of total land area in nitrogen loading calculation is not an assumption created by A. M. Wilson Associates, Inc. to benefit our clients. Rather, it is an assumption developed after long and broad study by the staff of the Cape Cod Commission; sister agency to the MVC. Nitrogen loading calculations utilize a mass balance where total infiltration/recharge is assumed to dilute total nitrate/nitrogen.

13. On April 19, 2006, a Professional Engineer from Norfolk Ram, Michael Clark (“Clark”), submitted a report to the Board of Health (the “Norfolk Ram Report”). The analysis was based on a February 15, 2006, site visit as well as a review of Title 5, a soil evaluation form for Locus, the 2005 Plan, the two letters from Wilson to the Board of Health dated November 28, 2005, and February 22, 2006, and Wilcox’s letter of January 26, 2006. In addition to the Variances, Clark noted a number of further violations of Title 5. Clark also questioned the adequacy of the 2005 Plan and some of its specifications. Additionally, Clark conducted a nitrogen loading analysis and determined that Wilson’s February 22 letter had underestimated the nitrogen concentration that would result from construction of the septic system with the Variances. [Note 4] Furthermore, he stated that construction of the septic system with the Variances could increase the nitrogen concentration and the “increased nutrient level is likely to impact the flora of these areas and increase the potential for invasive species . . . to colonize the area.” Clark concluded by suggesting that “a less aggressive development proposal for the lot could result in a proposal that does not contain any Title 5 variance requests at all . . . the Application has not demonstrated that granting [sic] of the requested variance would deprive the Applicant of substantially all beneficial use of the subject property.”

14. The Board of Health continued the public hearing on the Application on April 27, 2006.

15. In a letter to Poole dated May 16, 2006, Wilson responded to the Norfolk Ram Report. She argued that, contrary to Clark’s findings, the only Title 5 variance required by the 2005 Plan was the requested 5 foot variance from 310 CMR 15.255(2)(e). She also disagreed with certain contentions that Clark made with regard to the adequacy of the 2005 Plan and its specifications. Finally, Wilson argued that Clark’s nitrogen loading calculation methodology was incorrect and that the calculated nitrate concentration could not be relied upon since it did not provide the variables used.

16. The Board of Health continued the public hearing on the Application on June 1, 2006, during which the Board of Health voted 2-0 to close the record on the Application.

17. The Board of Health continued the public hearing on the Application on June 22, 2006. At this hearing, Wilson requested that the Board of Health re-open the record to consider a second plan (the “Second Plan”) which reduced the total number of bedrooms from four to three. The Second Plan located the septic system in the same place, and therefore, required the same variances as originally requested. The Board of Health voted to keep the record closed, noting that a re-opening might require public hearing notices, but gave Wilson the opportunity to withdraw the Application, which she did not do. Also at this hearing, the Board of Health voted to deny the Application.

18. The Board of Health sent written notification of the Application denial to Mullane by a letter dated July 13, 2006 (the “Decision”). The Decision stated that the reasons for denial included:

[a] The applicant failed to illustrate that adequate environmental protection would be provided by the system, as proposed, to warrant an approval.

[b] Horizontal separation distances between the leaching facility and a saltwater body (less than 200 ft.) and location of system components within the 100 year flood elevation illustrate that the system fails to provide adequate environmental protection to support an approval for construction of a septic system to serve a new dwelling.

[c] Some of the site constraints were self-imposed by the applicant as a result of the land area occupied by other site improvements such as:

1. Essentially un-buildable reserve area, due to shape and configuration, necessitated primarily by house footprint.

2. Horizontal setbacks to saltwater body that could be improved by smaller and reconfigured primary and reserve leaching areas. This improvement could be accomplished by fewer bedrooms and smaller septic system.

[d] Nitrogen loading calculations provided with the application are significantly different than calculations prepared by Norfold [sic] Ram Group . . . . As such, the Board of Health is not convinced that this project will not have a significant direct negative impact on Sengekontacket Pond.

[e] The applicant has not taken significant measures in the project design to maximize protection of the environment to the point where an approval will not be detrimental to the environment.

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Mullane seeks review of the Decision in accordance with G. L. c. 249, § 4, which states,

A civil action in the nature of certiorari to correct errors in proceedings which are not according to the course of common law, which proceedings are not otherwise reviewable by motion or by appeal, may be brought in the supreme judicial or superior court or, if the matter involves any right, title or interest in land, or arises under or involves the subdivision control law, the zoning act or municipal zoning, or subdivision ordinances, by-law or regulations, in the land court . . . . [Note 5]

At the threshold, it is necessary to determine the appropriate standard of review in this case. In an action pursuant to G. L. c. 249, § 4, review “is limited to correcting ‘substantial errors of law that affect material rights and are apparent on the record.’” Northboro Inn, LLC v. Treatment Plant Bd. of Westborough, 58 Mass. App. Ct. 670 , 673 (2003) (citations omitted).

Furthermore, the review is not de novo and “[t]he reviewing judge is limited to what is contained in the record of proceedings below . . . .” Police Comm’r of Boston v. Robinson, 47 Mass. App. Ct. 767 , 770 (1999) (citations omitted). Moreover, the party challenging an administrative decision carries the burden of proving its invalidity. Merisme v. Bd. of Appeals on Motor Vehicle Liability Policies, 27 Mass. App. Ct. 470 , 474 (1989).

The nature of the action for which review is sought is determinative of the proper standard of review. Forsyth Sch. for Dental Hygienists v. Bd. of Registration in Dentistry, 404 Mass. 211 , 217 (1989). The appropriate standard of review is not determined by the type of administrative decision being challenged, but rather is tailored to the specific allegations brought for review.

The “arbitrary and capricious” test is appropriate when the decision is analyzed “to determine whether it was authorized by the governing statute . . . in light of the facts.” Fafard v. Conservation Comm’n of Reading, 41 Mass. App. Ct. 565 , 568 (1996); T.D.J. Dev. Corp. v Conservation Comm’n of N. Andover, 36 Mass. App. Ct. 124 , 128 (1994). Furthermore, this standard is used when the action alleges that the commission applied “improper criteria” in reaching its decision. FIC Homes of Blackstone, Inc., v. Conservation Comm’n of Blackstone, 41 Mass. App. Ct. 681 , 684 (1996); cf Beale v. Planning Bd. of Rockland, 423 Mass. 690 , 696 (1996) (“A planning board exceeds its authority if requirements are imposed beyond those established by the rules and regulations.”). Courts have also applied the arbitrary and capricious test in a review analyzing whether an agency has abused its discretion when the governing regulatory scheme provides a “broad grant of discretionary authority.” Mayor of Revere v. Civil Service Comm’n, 31 Mass. App. Ct. 315 , 322 (1991); see Caswell v. Licensing Comm’n for Brockton, 387 Mass. 864 , 878 (1983).

The “substantial evidence” test is applicable “where the question [is] not the criteria to be applied but whether, within announced criteria, the determination that there would be injury to the land in question [is] supported by substantial evidence.” Fafard, 41 Mass. App. Ct. at 568. This standard is appropriate when the action alleges that the evidence presented cannot support a stated decision. Id.; Lovequist v. Conservation Comm’n of Dennis, 379 Mass. 7 , 17 (1979).

In the case at bar, review is sought both as to whether the Decision applied improper criteria or is legally tenable as well as whether substantial evidence supports the findings of the Board of Health. Mullane argues that the Board of Health assessed the Application under a standard that is stricter than the state and local regulations, thereby making an arbitrary and capricious decision. He further argues the Decision is not tenable based on the application of an inappropriate standard to the facts. Additionally, he contends that the Board of Health’s conclusion is not supported by substantial evidence and that it abused its discretion by denying the Variances. The Board of Health responds that review is only appropriate under the arbitrary and capricious test and under this standard it has broad discretion which it did not abuse. The Board of Health further argues that even if the substantial evidence test is used, the evidence in the record supports the Decision.

In an action pursuant to G. L. c. 249, § 4 that challenges the basis of a decision and alleges the use of improper criteria in a board’s analysis, a court must utilize the arbitrary and capricious test. Fafard, 41 Mass. App. Ct. at 568. Furthermore, when the action challenges the underlying evidentiary support for a board’s decision, the appropriate review is under the substantial evidence test. Lovequist, 379 Mass. at 17. Under G. L. c. 249, § 4, “[i]n order to overturn [an agency’s decision], the applicants must establish that it was arbitrary and capricious or unsupported by substantial evidence.” Rodgers v. Conservation Comm’n of Barnstable, 67 Mass. App. Ct. 200 , 204 (2006) (quoting Dubuque v. Conservation Comm’n of Barnstable, 58 Mass. App. Ct. 824 , 828-29 (2003)). Where allegations concern both whether a decision is arbitrary and capricious and also whether the decision is supported by substantial evidence, then it is appropriate for the court to examine the record under both standards. See Rogers, 67 Mass. App. Ct. at 206-07. The case at bar raises the questions both of whether the Board of Health used the proper criteria and also challenges the underlying evidentiary support of the Decision. Therefore, I find that it is necessary to review the Decision under both the arbitrary and capricious test and the substantial evidence test.

Arbitrary and Capricious Test

The first issue is whether the Board of Health’s reasons for denial were arbitrary and capricious in that they were based on improper criteria. A court may disturb a decision “if it is based on ‘a legally untenable ground’ . . . or is ‘unreasonable, whimsical, capricious, or arbitrary’ . . . .” Forsyth, 404 Mass. at 218 (citing Gulf Oil Corp. v. Bd. of Appeals of Framingham, 355 Mass. 275 , 277 (1969)). Furthermore, when the factors supporting a commission’s decision are “extraneous to the prescriptions of the regulatory scheme, but are related, rather, to an ad hoc agenda, then that agency has acted arbitrarily . . . .” Fafard, 41 Mass. App. Ct. at 568.

Mullane first argues that the Board of Health analyzed the Variances from Title 5 and the BOH Regulations under a stricter standard than required. Under Title 5, a board of health

may vary the application of any provisions of 310 CMR 15.000 . . . when enforcement . . . would be manifestly unjust, considering all relevant facts and circumstances of the individual case; and . . . that a level of environmental protection that is at least equivalent to that provided under 310 CMR 15.000 can be achieved . . . .

310 CMR 15.410(1) (emphasis added). Section 8.1.10 of the BOH Regulations [Note 6] states that,

[t]he Board of Health may vary the application of any of its rules and regulations . . . when, in its opinion, A) the enforcement thereof would do manifest injustice and B) the applicant has proven that the same degree of environmental protection can be achieved without strict application of the particular provision.

The arbitrary and capricious test requires that the Board of Health use the appropriate criteria in its analysis of the Application. Mullane argues that the Board of Health required that the Application provide maximum protection of the environment rather than the equal environmental protection as required by Title 5 and the BOH Regulations. He bases this contention on a single phrase in the Decision: “[t]he applicant has not taken significant measures in the project design to maximize protection of the environment to the point where an approval will not be detrimental to the environment.” However, the Decision begins by stating that Mullane failed to show the septic system would provide “adequate environmental protection.” The Decision cites the “adequate environmental protection” standard several times in its reasons for denial. Moreover, the Decision states that maximizing the protection of the environment shall be only to the point “where an approval will not be detrimental to the environment.”

Furthermore, the burden of proof is on Mullane to show that the enforcement of Title 5 and the BOH Regulations would result in “manifest injustice” and that his alternative proposal offered equal environmental protection. Mullane did not give evidence that enforcement of the regulations would be manifestly unjust and he relied on the evidence submitted by Wilson to show equal environmental protection. [Note 7] As discussed throughout this decision, the Board of Health relied on evidence submitted by both the MVC and Norfolk Ram to counter the Wilson evidence and show that Mullane did not comply with the regulations or show equal environmental protection. Even though Mullane argues that Wilson replied to every comment made by both MVC and Norfolk Ram, and thus evidenced an equal environmental standard, such argument does not indicate that Wilson’s evidence was better or more persuasive, or that the Board of Health used improper criteria when it cited as a reason for denial that Wilson’s nitrogen loading calculations were significantly different from those prepared by Norfolk Ram. Mullane argues that since the BOH Regulations do not place a limit on nitrogen loading or require the use of a particular formula to calculate nitrogen loading, the Board of Health incorrectly used this discrepancy as a partial basis for the Decision. However, the BOH Regulations require that the Board of Health analyze variance requests to determine whether a level of environmental protection can be achieved that is equivalent to strict compliance. The disagreement of experts regarding nitrogen loading calculations is evidence that there is an issue whether an equivalent level of environmental protection could be achieved with the Variances, particularly with one expert determining that approval of the Variances would likely lead to an increase in nitrogen concentration and colonization by invasive species. Therefore, the consideration of the different calculations fell within the framework of the BOH Regulation’s criteria for analyzing variance requests.

Finally, the standards under both Title 5 and the BOH Regulations for variation of the requirements is discretionary with the Board of Health (the Board of Health “may vary the application” of its rules). Title 5 grants the Board of Health with broad discretion in determining when to grant a variance. Tortorella, 39 Mass. App. Ct. at 281 (“Title 5’s variance provision has been said to ‘give [] broad discretion to the board based on the strong public interest in protecting health and the environment.’”) (quoting Rosenfeld v. Bd. of Health of Chilmark, 27 Mass. App. Ct. 621 , 627 (1989). In Tortorella, as in the case at bar, the variances were necessitated by the small buildable portion of the lot. [Note 8] Tortorella, 39 Mass. App. Ct. at 278. Since the BOH Regulations largely echo Title 5’s standard for granting variances, they provide a similarly broad discretionary authority. The Decision cited various reasons, which are supported by substantial evidence, [Note 9] for concluding that approval of the Variances from Title 5 and the BOH Regulations would not provide equivalent environmental protection. These stated reasons are rationally connected to the evidence in the record and the Decision made reasonable findings under the Board of Health’s broad discretion.

As a result, I find that the Decision fails to provide evidence that the Board of Health utilized a general “maximum protection” or otherwise inappropriate standard under either Title 5 or the BOH Regulations in its analysis of the Variances and in the Decision.

With respect to the Bylaw, Mullane also contends that the Board of Health analyzed the Variances from the Bylaw under a stricter standard than required. The Bylaw states that “[w]here compliance with these regulations is not possible due to the dimensions of a lot existing in separate ownership from adjoining lots before December 22, 1976, the requirements (4-8) may be modified by the Board of Health.” Bylaw § 14.1.e.9. Even though the Board of Health does not dispute the date of separate ownership of Locus, this court has concerns. The deed to Locus, though dated September 29, 1976, was not recorded until September 1977 and relied on the ANR Plan approved by the Planning Board in April 1977. Consequently, Locus did not validly exist as a separate lot until April 1977 and was not deeded out to a separate owner until September 1977. As a result, the modification of the standard under the Bylaw may not have been applicable. [Note 10] Even if the Bylaw modification were applicable, however, nothing in the Bylaw mandates that the Board of Health grant a variance whenever “compliance with these regulations is not possible.” In fact, the approval of proposed variances when the Board of Health has doubts as to a project’s level of environmental protection would run counter to one of the Bylaw’s asserted purposes, “to provide for the reasonable protection and conservation of certain irreplaceable natural features, resources, and amenities in all zoning districts of thSeptember 8, 2008e Town for the benefit and welfare of the present and future inhabitants of the Town.” Bylaw § 13.1. Here, the Bylaw provides the Board of Health with discretionary authority, rather than narrow and objective criteria, since it only states that the regulations “may be modified.” Therefore, the Bylaw provides broad discretion as to when variances are granted. I find that the Decision provides sufficient reasons, supported by evidence in the record, [Note 11] for the denial of the Variances under the Bylaw and to conclude that a tenable connection existed between the criteria used by the Board of Health and the Decision. [Note 12]

Thus, I find that the reasons for denial stated in the Decision were not arbitrary and capricious in that they were not based on improper criteria. [Note 13]

Substantial Evidence Test

The next issue is whether the Decision was supported by substantial evidence. Mullane argues that the record does not support three conclusions that the Board of Health cited in the Decision: (1) that septic system components are located within the 100 year flood zone; (2) that site constraints are self-imposed; and (3) that the system may have a “significant direct negative effect” on Sengekontacket Pond.

A board’s decision is deemed unsupported by substantial evidence only when “the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability of the contrary.” Boston Garden Corp. v. Bd. of Assessors of Boston, 383 Mass. 456 , 466 (1981) (citing Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79 , 92 (1968)). Furthermore, the substantial evidence test is satisfied when the record contains “such evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.

With regard to the Board of Health’s determination that the proposed septic system contained components in the 100 year flood zone, the record contains a map prepared by the Federal Emergency Management Agency (FEMA) that designates the areas on Locus and surrounding plots that fall within the flood zone. The location of the septic system, as illustrated by the 2005 Plan, does not overlap with the 100 year flood zone shown on the FEMA map. Thus, evidence points to a conclusion that system components are outside this flood zone. [Note 14] However, in this context the position of the septic system is beyond the scope of this court’s certiorari review, which is limited by G. L. c. 249, § 4 to “substantial errors of law.” Northboro Inn, LLC, 58 Mass. App. Ct. at 673 (emphasis added). See also Johnson Products, Inc. v. City Council of Medford, 353 Mass. 540 , 541 n.2 (1968) (“The function of a writ of certiorari is not to reverse or revise findings of fact but to correct errors of law . . . .”) (citing J. Ronan). As such, because this determination is a factual error, it need not be addressed. Even if this finding is construed as an error of law, it is best described as a “mere technical error[] that ha[s] not resulted in manifest injustice.” Cumberland Farms, Inc. V. Planning Bd. of Bourne, 56 Mass. App. Ct. 605 , 607 (2002) (citations omitted). Given that the Board of Health relied upon numerous factors in its denial of the Application (see supra pp. 8-9), this mistaken finding fails to result in a substantial error of law by the Board of Health. Therefore, regardless of whether the Board of Health’s septic finding is viewed as an error of law or fact, I find that the Board of Health’s statement that the proposed septic system is partially within the 100 year flood zone is insufficient to invalidate the Decision.

Mullane next argues that the record does not support the conclusion that site constraints preventing permit approval are “self-imposed.” Under Title 5, a variance for new construction may only be granted if strict application of the standard is “shown to deprive the applicant of substantially all beneficial use of the subject property.” 310 CMR 15.410(2). Furthermore, the Norfolk Ram Report states that all Title 5 variance requests could be avoided through a “less aggressive development proposal.” The Decision echoed this position by stating that the Variances could “be improved by smaller and reconfigured primary and reserve leaching areas . . . accomplished by fewer bedrooms and a smaller septic system.” [Note 15] Mullane argues that the Second Plan, with a reduction from four to three bedrooms, shows that even if Locus were developed to a lesser degree, it would still require the same variance requests. However, the Board of Health reasonably relied upon the Norfolk Ram Report’s statement that a smaller development could necessitate less onerous variance requests or no variance requests. [Note 16] Furthermore, this court cannot disturb the Board of Health’s finding that a smaller house might justify some type of variances, thus indicating the denial of the Application would not represent a deprivation of “substantially all beneficial use” of Locus. The Decision does not state that the Board of Health opposed granting any variances, but rather states that the Variances “could be improved” through a smaller plan. Therefore, the Decision does not appear to preclude the construction of a residence on Locus. [Note 17] Therefore, I find that the Board of Health’s determination that some site constraints are self-imposed is supported by substantial evidence.

Finally, Mullane argues that the record does not support the Board of Health’s conclusion that the septic system may negatively impact Sengekontacket Pond. The basis of Mullane’s contention is that the Board of Health should not have relied on Norfolk Ram’s nitrogen loading calculations, and instead should have used Wilson’s calculations. However, as discussed, supra, the fact that the Board of Health relied on one expert rather than another is not grounds for overturning the Decision, absent evidence that one of the experts was not reliable. Medi-Cab of Mass. Bay, Inc. v. Rate Setting Comm’n, 401 Mass. 357 , 369 (1987); Labor Relations Comm’n v. Univ. Hosp., Inc., 359 Mass. 516 , 521 (1971) (“A court may not displace an administrative board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.”); Dubuque, 58 Mass. App. Ct. at 829 (2003). The Board of Health could reasonably have relied upon either one of the conflicting expert reports regarding the effect of the proposed septic system upon nitrogen loading and Sengekontacket Pond. Although the Norfolk Ram Report failed to include the data used for the variables in its nitrogen loading formula, it nonetheless provided an explanation of its methodology and the calculated nitrate concentration. Despite the fact that Wilson provided more extensive support for her calculations, I find that the Norfolk Ram Report acts as sufficient evidence to support the conclusion that the proposed septic system would have a negative impact upon Sengekontacket Pond.

The Board of Health’s determination that the Application did not warrant approval is supported by ample evidence. Although the record does not support the Decision’s statement that the Plan located septic system components within the 100 year flood zone, the Board of Health based its denial upon other factors which the record did substantiate. Since the Decision provided reasons for denial that were supported by substantial evidence, the statement that components were located in the 100 year flood zone does not represent a substantial error affecting material rights. Therefore, I find that the Decision was supported by substantial evidence.

As a result of the foregoing, I DENY Mullane’s Motion for Judgment on the Pleadings.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: September 11, 2008