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 (the “Decision”) of an application for certain variances (the “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. A decision of today’s date has been rendered.

In accordance with the Land Court decision it is:

ORDERED and ADJUDGED that it is necessary to review the Decision under both the arbitrary and capricious test and the substantial evidence test.

ORDERED and ADJUDGED 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.

ORDERED and ADJUDGED that the Decision provides sufficient reasons, supported by evidence in the record, 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.

ORDERED and ADJUDGED that the reasons for denial stated in the Decision were not arbitrary and capricious in that they were not based on improper criteria.

ORDERED and ADJUDGED 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.

ORDERED and ADJUDGED that the Board of Health’s determination that some site constraints are self-imposed is supported by substantial evidence.

ORDERED and ADJUDGED that the Norfolk Ram Report submitted to the Board of Health on April 19, 2006, acts as sufficient evidence to support the conclusion that the proposed septic system would have a negative impact upon Sengekontacket Pond.

ORDERED and ADJUDGED that the Decision was supported by substantial evidence.

ORDERED and ADJUDGED that Mullane’s Motion for Judgment on the Pleadings is DENIED.

By the court. (Sands, J.)

Attest:

Deborah J. Patterson

Recorder

Dated: September 11, 2008