In these consolidated cases, plaintiffs Indian Brook Cranberry Bogs, Inc. (Indian Brook) and Wanda Jane Warmack (Warmack) (collectively, Plaintiffs) seek to overturn a decision of the Board of Appeals for the Town of Plymouth (Board), whose members are defendants, to grant a comprehensive permit pursuant to G. L. c. 40B to Sawmill Development Corp. (Sawmill). The Board filed its decision with the Town Clerk on April 10, 2006 and the Plaintiffs timely appealed pursuant to G. L. c. 40A, §17 and G. L. c. 40B, §21, by filing a complaint in this court on April 24, 2006. Sawmill, at the time, took an administrative appeal to the Massachusetts Housing Appeals Committee (HAC). On June 20, 2007, the parties to this action came before the court for hearing on Sawmills motion for summary judgment on the standing of the plaintiffs. The court (Piper, J.) granted in part and denied in part the motion, ruling that the only areas of potential aggrievement of the plaintiffs which would be reserved for trial were claimed adverse effects on Plaintiffs from the projects stormwater and groundwater, including surface water runoff and the effects of the planned wastewater treatment facility. As to these two grounds, the court ruled on summary judgment that a dispute of material fact existed, necessitating trial. The court ruled that all remaining grounds of aggrievement, as a matter of law, were insufficiently shown on the summary judgment record, or were not legally valid bases for aggrievement.
In a decision dated June 25, 2008 and filed with the town clerk on June 27, 2008, the Board modified the comprehensive permit by deleting Condition B.10. This modification preceded Sawmills withdrawal of its appeal to the HAC. On July 14, 2008, the Plaintiffs filed a complaint in this court which appealed from the June 25 decision of the Board, and the two appeals were consolidated on July 28, 2008.
On September 15, 2008, I took a view of the locus. Following the view, the first day of trial was held at the courthouse in Plymouth. Trial resumed at the Land Court in Boston on September 16, 2008, and again on September 26, 2008. A court reporter, Karen Smith, was present for all days of trial and was sworn to transcribe the testimony and proceedings. Over the course of three days of trial, seven witnesses testified: John E. Pomeroy, John Churchill, Jr., Bruce M. Arons, Bruce L. Jacobs, Wanda Jane Warmack, Peter B. Stearns, Thomas C. Houston, and Neal M. Price. Forty-three exhibits were received in evidence. At the close of the taking of evidence, I postponed closing arguments to await receipt of the trial transcripts, and to allow counsel to prepare and file posttrial memoranda and proposed findings of fact and rulings of law. On November 26, 2008, trial resumed for closing arguments; I also heard argument on Sawmills motion to strike portions of Plaintiffs posttrial submissions. I denied the motion, but allowed Sawmill to file a supplemental brief. Upon receipt of Sawmills final posttrial submission I took the case under advisement, and I now decide this case as tried and submitted to me.
On all of the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda, and argument of the parties, I find and rule as follows:
1. Sawmill is the purchaser under a purchase and sale agreement (P&S) of a 58.39 acre parcel of land off Kathleen Drive in Plymouth, Plymouth County, Massachusetts (Locus).
2. The P&S is dated July 10, 2004, and is between Sawmill and the current owners of the Locus. The P&S has been extended four times: three times as reflected in admitted exhibits memorializing those extensions, on April 9, 2005 (Ex. 15), July 5, 2006 (Ex. 16), July 1, 2008 (Ex. 17); I also credit Mr. Pomeroys testimony that although only three extensions are in evidence, a fourth extension was executed that covered the approximately one-year-long gap (July 2007 to July 2008) between Exhibit 16 and Exhibit 17. There was no evidenceother than the absence of the physical documentto suggest the parties did not extend the P&S, and Mr. Pomeroy testified to the contrary, that there was an extension, though he did not have it right in front of [him]. I find that at all times starting on July 10, 2004, the P&S remained in effect.
3. Locus is identified as Lots 4, 5, and 6 on Assessors Map 73.
4. Low or moderate income housing existing in the Town of Plymouth does not exceed ten percent of the total housing units reported in the last U.S. census.
5. Sawmill applied for, and received, a Project Eligibility Letter from MassHousing, dated January 19, 2005. The original Project Eligibility Letter has been extended by subsequent letters from MassHousing, dated October 4, 2006 and June 12, 2008, respectively.
6. Sawmill was not a limited dividend organization at the time it applied for a comprehensive permit; however, I find, as evidenced by the Project Eligibility Letter, and the testimony of Mr. Pomeroy, that Sawmill intended to become a limited dividend organization, and intended to execute an agreement limiting their profits to not more than twenty percent of the projects total development costs.
7. On or about February 23, 2005, Sawmill submitted an application (Application) to the Board for a comprehensive permit for a 260 unit residential development pursuant to G. L. c. 40B, §§ 20-23. The Application later was amended to seek a comprehensive permit for 200 units.
8. On or about April 10, 2006, the Board recorded with the Town Clerk a decision (Decision) granting a comprehensive permit (together with its later modification, see below, Comprehensive Permit) to Sawmill to construct 200 residential units on the Locus.
9. Before the Board when the Board made its decision was the Preliminary Site Plan, dated January 2, 2006, and prepared by Seguin Associates (Seguin Plan).
10. The Comprehensive Permit contains numerous conditions and recites representations made by Sawmill to the Board.
11. Condition A.3 requires Sawmill to deliver a Definitive Site Plan Submission to the Board not less than ninety days prior to starting construction. Various conditions require Sawmill to engage with the Towns consulting engineer, Earth Tech, on revisions to various aspects of the plan.
12. Condition D.1, states that the final design of the stormwater management system, whether or not subject to the Department of Environmental Protection stormwater management policy, shall conform at a minimum to the standards described in said policy[.]
13. On page nine of the Decision, under the section heading of Findings is the language:
As conditioned by this Decision, the Development Project: (1) will not be rendered uneconomic, (2) represents an acceptable balance between the need for low and moderate income housing and local planning and environmental concerns, and (3) is inconsistent with local needs within the meaning of G.L. c. 40B, §20.
On May 4, 2006, the Board sent a letter to the Town Clerk that purported to correct an inadvertent typographical error on Page 9 of the Zoning Boards Decision (Correction Letter).
14. The Comprehensive Permit was modified to eliminate Condition B.10, which contained language relating to the calculation of profits. The plaintiffs maintain in this court their appeal from the Comprehensive Permit as originally granted, and as modified.
15. The stormwater management system depicted in the Seguin Plan contains numerous detention ponds. Pond 1 and Pond 2, as designed in the Seguin Plan, would potentially overflow during a 100-year storm event.
16. Sawmill retained a second engineering firm, JC Engineering, to obtain the groundwater discharge permit for the project, and to review certain aspects of the Seguin Plan in anticipation of review by Earth Tech.
17. After review by JC Engineering, to address the issue of ponding during a 100-year storm event, Sawmill increased the size of Pond 1 and Pond 2.
18. The Comprehensive Permit states that [t]he dwelling units will be served by a private wastewater treatment plant, the design and operation of which will be subject to Department of Environmental Protection (DEP) review and approval.
19. The wastewater treatment system for the Project is a system that collects wastewater from the individual buildings, a pump station, a package sewage treatment facility (PSTF) and a leaching field or soil absorption system.
20. The PSTF will use an Amphidrome Plus system, which microfilters effluent to reduce nitrogen levels to below five parts per million.
21. The wastewater system is designed for a daily flow of 66,000 gallons.
22. Plaintiff Warmack owns and resides at property located at 134 Kathleen Drive in Plymouth. Her property is identified as lot 7-71 on the Town of Plymouth Assessors Map 73 (Warmack Lot). The Warmack Lot abuts the Locus.
23. Warmacks residence is served by a septic system. Warmacks septic system, as currently configured, has a vertical separation distance of four feet from the groundwater elevation, which complied with the requirements of Title 5, 310 Code Mass. Regs. § 15 et seq., at the time Warmacks system was constructed. Title 5 now requires a minimum vertical separation distance of five feet.
24. Indian Brook is the owner of real property located on Indian Brook Road in the Town of Plymouth. Indian Brooks approximately 237 acre parcel abuts the Locus to the northwest, and abuts the southern shoreline of Shallow Pond to the north. The southern bounds of the Indian Brook parcel extend to Briggs Reservoir and Morey Hole.
25. Indian Brook produces cranberries grown in bogs on its property; ninety-four acres are dedicated to use as bogs. Indian Brook uses Shallow Pond, Indian Brook, Briggs Reservoir, and Morey Hole for agricultural irrigation and to flood its bogs seasonally.
26. Water drawn by Indian Brook from Shallow Pond irrigates about twenty-five of Indian Brooks ninety-four acres of bogs.
27. Indian Brook applies approximately 300 pounds of fertilizer per acre, per year to its cranberry bogs. The fertilizer Indian Brook currently deploys is a 10/12/24 mix, that is, ten parts nitrogen, twelve parts phosphorus, and twenty-four parts potassium.
Under G. L. c. 40B, § 21, any person aggrieved by the issuance of a comprehensive permit may appeal to the courts as provided in G. L. c. 40A, § 17. In both G. L. c. 40A and G. L. c. 40B, the term person aggrieved is interpreted in the same way. Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 27 (2006). Only persons aggrieved have standing to appeal a decision of a zoning board of appeals. Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 542 n. 9 (2008). If a plaintiffs legal or property rights will (or likely will) be infringed by a boards action, then he or she qualifies as a person aggrieved. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Circle Lounge & Grill, Inc. v. Bd. of Appeal of Boston, 324 Mass. 427 , 430 (1949). While the term person aggrieved is not to be narrowly construed, the plaintiffs injury must be more than speculative, and must be particularized, distinct from general community interests. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (stating that the violation must be special and different from the concerns of the rest of the community); Marashlian, 421 Mass. at 721; Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682 (2003); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989) (requiring that plaintiff show a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest). In addition, the injury claimed by the plaintiff also must be to a specific interest that the applicable zoning statute, ordinance, or by-law at issues is intended to protect. Standerwick, 447 Mass. at 30. The interests protected by G. L. c. 40B are not the same as those protected by G. L. c. 40A. Id. at 28.
There is an initial presumption that an individual who is entitled to notice of board hearings is a person aggrieved, [Note 1] although that presumption will fall away if adequately challenged, the question then to be decided on all the evidence. See Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32-33 (2006); Marashlian, 421 Mass. at 721; Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 203-4 (1957). The plaintiff in such a circumstance must provide facts from which the court may find the aggrievement necessary to constitute standing. Standerwick, 447 Mass. at 33-35; Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). To establish standing a plaintiff must put forth credible evidence to substantiate his allegations. Marashlian, 421 Mass. at 721. While a plaintiff does not need to provide a preponderance of evidence at the trial of the case, the evidence provided must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the boards action. Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). To meet the standard of credible evidence, the evidence offered must provide specific factual support for each claimed injury (quantitative), and must be of a type on which a reasonable person could rely (qualitative). Butler, supra, at 441. Conjecture, personal opinion, and hypothesis are insufficient. Butler, supra, at 441.
The Plaintiffs base their claims of standing on alleged deficiencies in both the stormwater and wastewater management plans. Specifically, the Plaintiffs allege (1) that the proposed development will divert stormwater to their properties, and (2) that discharge from the on-site, so-called package sewage treatment facility (PSTF) will flow onto their properties and cause harm by raising the water table, and discharging nutrients and contaminants into the watershed. To support these claims, the Plaintiffs have offered evidence in the form of expert testimony.
Thomas C. Houston testified about weaknesses in Sawmills stormwater management plan. [Note 2] Specifically, Mr. Houston testified that the stormwater management systems depicted in the Seguin Plan contained detention basins that would overtop during a 100-year storm event, and send stormwater runoff onto the properties of Warmack or Indian Brook.
Neal M. Price gave opinion testimony on the subject of hydrogeology. Mr. Price stated that, in his opinion, groundwater would flow in the direction of Shallow Pond. Mr. Price also testified that the addition of water into the watershed from both the wastewater soil absorption system, and the stormwater systems would result in what is called mounding of the groundwater elevation. Mr. Price testified that mounding was likely to increase the groundwater elevation in excess of one foot in an area that included the Warmack Parcel. Warmacks septic system as currently configured has a vertical separation distance of four feet. This supports the inference that, as a result of the rise in groundwater elevation, when Warmack needs to replace her system, she would need to raise it above groundwater level by two feet one foot owing to the change in Title 5 since her current system went in, and the second foot owing to the groundwater mounding effect attributable to the Sawmill project.
Mr. Price depicted two different flowpaths emanating from Sawmills proposed PSTF under existing conditions (Existing Conditions Comparison). One flowpath was based on the USGS mapped groundwater contours, and one based on the USGS model-simulated contours. The flowpath based on the USGS model-simulated contours flows directly from the PSTF onto the Warmack parcel, and into Shallow Pond. The flowpath based on the mapped groundwater contours flows to the northeast, away from Shallow Pond and the Warmack parcel.
Mr. Price depicted another comparison of flowpaths, this one taking into account the proposed 66,000 gallons per day that the Sawmill PSTF would contribute should it become operational (Proposed Conditions Comparison). Again, this comparison was between flowpaths according to mapped groundwater contours, and model-simulated groundwater contours. The Proposed Conditions Comparison depicts both flowpaths as having larger radial flows because the influence of the mounding at the wastewater treatment plant caus[es] water to flow out laterally[.] Other than the larger radial flow, the direction of the flows depicted on the Proposed Conditions Comparison is consistent with the direction of the flows depicted on the Existing Conditions Comparison.
Based on all the evidence, it is at least plausible that the Plaintiffs will suffer some harm to a legally cognizable interest under chapter 40B. Specifically, Mr. Price testified that in his opinion groundwater from the PSTF would flow in the direction of Shallow Pond, and once that happens, there is the potential that increased nutrients would have an adverse impact on Indian Brooks cranberry bogs. Similarly, Mr. Price testified that mounding as a result of the PSTF could raise the groundwater elevation on Warmacks parcel, causing complications with her septic system, including the possibility of her needing a more complicated, more expensive, or less than adequate replacement system if and when the current system cannot continue to operate. [Note 3] This line of testimony by this expert is of the sort which a reasonable person might believe. In addition, based on the testimony of Mr. Houston, there is at least plausible evidence, which a reasonable person might accept, that in the event of a one-hundred year storm event, surface water from Pond 2 could reach Warmacks land.
Environmental impacts are legally cognizable injuries under chapter 40B. See Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81 , 59 (2007) ([U]nder Standerwick, flooding constitutes an injury to an interest that G. L. c. 40B was intended to protect.). Applying the standard under Standerwick, I find that the Plaintiffs have standing to bring this challenge. To prevail, however, they have a much higher burden. As the finder of fact in a trial at which standing and the merits were tried together, I must apply two different burdens to the same evidence. A ruling that the Plaintiffs have introduced evidence to support a plausible claim of injury does not require me to find, and does not even suggest, that Plaintiffs have shown by a preponderance of the evidence, after trial, that the Board issued the Comprehensive Permit in an abuse of its discretion.
In this appeal of the grant of a comprehensive permit, taken by aggreived abutters pursuant to G. L. c. 40B, § 21 and G. L. c. 40A, § 17, the permit holder carries the initial burden of demonstrating to the court that it was entitled to the comprehensive permit. Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112 , 118 (1981). I conduct this review de novo, giving no weight to the facts the Board found. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003). The Boards decision, however, cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001) (and cases cited). The Board receives little deference on this initial inquiry because it is essentially a legal analysis. Britton, 59 Mass. App. Ct. at 73. Once the developer demonstrates its entitlement to the comprehensive permit, the burden shifts to the abutters to show that the grant of the permit was either unreasonable under the relatively constrained factors to be considered by a local board when a comprehensive permit under 40B is sought, or inconsistent with local needs. See Board of Appeals of Hanover v. Mass. Housing Appeals Comm., 363 Mass. 339 , 364 (1973) (standard to be applied . . . [is] whether the grant of the permit is reasonable and consistent with local needs).
1. Eligibility Under 760 CMR 56.04 (1) (a)-(c)
Sawmill applied for, and received, a Project Eligibility Letter from MassHousing. The Project Eligibility Letter was validly extended, and remained in force at all relevant times. Issuance of a determination of Project Eligibility shall be considered by the Board or the Committee to be conclusive evidence that the Project and the Applicant have satisfied the project eligibility requirements of 760 CMR 56.04 (1). 760 Code Mass. Regs. 56.04 (6). It would have been sufficient for the Board to rest on the conclusive nature of the determination of MassHousing. As additional grounds for the sufficiency of the Boards decision, I find and rule that Sawmill met the three requirements for project eligibility. [Note 4]
a. Limited Dividend Organization, 760 Code Mass. Regs. 56.04 (1) (a)
Sawmill was not a limited dividend organization at the time it applied for a comprehensive permit; however, I find, as evidenced by the Project Eligibility Letter, and the testimony of Mr. Pomeroy, that Sawmill intended to become a limited dividend organization, and intended to execute an agreement limiting their profits to not more than twenty percent of the projects total development costs. [T]he final structure of the entities that enter the arrangement is of little consequence as long as the ultimately responsible party is one authorized under G. L. c. 40B, s. 21, to obtain a comprehensive permit. Marlborough v. Housing Appeals Comm., 66 Mass. App. Ct. 39 , 51 (2006) affd, 449 Mass. 514 (2007).
b. Fundability, 760 Code Mass. Regs. 56.04 (1) (b)
The Project Eligibility Letter from MassHousing, a subsidizing agency, is enough to warrant a finding that Sawmill has met the fundability requirement.
c. Site Control, 760 Code Mass. Regs. 56.04 (1) (c)
Sawmill is the purchaser under a purchase and sale agreement (P&S) of a 58.39 acre parcel of land off Kathleen Drive in Plymouth, Plymouth County, Massachusetts (Locus). The P&S is dated July 10, 2004, and is between Sawmill and the current owners of the Locus. The P&S has been extended four times: on April 9, 2005 (Ex. 15), July 5, 2006 (Ex. 16), July 1, 2008 (Ex. 17), and although only three extensions are in evidence, I credit Mr. Pomeroys testimony that a fourth extension was executed that covered the approximately one-year-long gap (July 2007 to July 2008) between Exhibit 16 and Exhibit 17. There was no evidenceother than the absence of the physical documentto suggest the parties did not extend the P&S, and Mr. Pomeroy testified to the contrary, that there was an extension, and that he did not have it right in front of [him]. I find that at all times starting on July 10, 2004, the P&S remained in effect, and that the developers site control is established by the evidence.
2. Regional Need
The purpose of the availability of a comprehensive permit is to provide relief from exclusionary zoning practices which prevent the construction of badly needed low and moderate income housing. Woburn Bd. of Appeals v. Mass. Housing Appeals Comm., 451 Mass. 581 , 582-83 (2008). Where a town has not met its minimum housing obligations, the board shall grant a comprehensive permit if the need for low and moderate income housing outweighs the otherwise valid planning concerns about health, site design, and open space. See Hanover, 363 Mass. at 367. The towns failure to meet its minimum housing obligations is compelling evidence that the need for housing outweighs the planning concerns. Id.
I find that Sawmill introduced sufficient evidence at trial to support the Boards finding of a need for affordable housing. Plymouths subsidized housing stock is below ten percent total housing units as reported in the last U.S. census, as are the surrounding municipalities that could constitute the region. The Town of Plymouths Affordable Housing Plan (Housing Plan) candidly admits that [t]he probability of Plymouth being able to shrink its affordability gap by creating new low-income units at a rate of .75 of 1% per year may sound good, but the probability of this being accomplished is highly unlikely. See Ex. 32 at 59. The Plaintiffs offered no evidence to support the inference that despite the assessment of the Town of Plymouth in its Housing Plan creating new low-income units at a rate of three-quarters of one percent per year is even remotely probable. Finally, I credit generally the testimony of Bruce Arons, the director of Plymouths Office of Community Development, that despite the creation and approval by DHCH of the Housing Plan, Plymouth has not met its production goals, and has not earned a reprieve from the comprehensive permit provisions of chapter 40B. 3. The Findings
The Plaintiffs claim that the Board made a finding in its Decision that the proposed development was inconsistent with local needs, and that this was more than a typographical error, that this amounted to a finding legally at odds with the grant of a comprehensive permit. The Plaintiffs essentially ask the court to read the Decision as intentionally doing that which the Board may not do, namely, granting a comprehensive permit upon an express finding that the project is inconsistent with local needs. I will not read the Decision that way. See Potter v. Board of Appeals of Mansfield, 1 Mass. App. Ct. 89 , 95 (1973) (refusing to read decision of board as committing intentional error). Instead, I find the Decision contained only a typographical or clerical error. The Board intended to issue the comprehensive permit, and that intent would not be reflected in a finding that the project was inconsistent with local needs. I find and rule that the Decision of the Board made a finding that the project is consistent with local needs within the meaning of G. L. c. 40B, § 20, and the permit is facially valid. [Note 5]
4. Consistent with Local Needs
Sawmill having met its initial burden of showing that it was entitled to receive a comprehensive permit, and that the permit was at least facially valid, I now consider whether the Board abused its discretion in finding that the need for affordable housing outweighed the legitimate planning concerns to health, safety, and the environment that have been raised by the Plaintiffs. This second analysis is highly deferential to the Board. Britton, 59 Mass. App. Ct. at 73. In deciding this question, I may not substitute [my] judgment for that of the board. Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 , 856 (1980) (citing Burnham v. Board of Appeals of Gloucester, 333 Mass. 114 , 120 (1955)). I must determine, on the basis of the facts I have found myself, whether any rational board could have granted the comprehensive permit. Britton, 59 Mass. App. Ct. at 74. Only upon a determination of unreasonableness, arbitrariness, or caprice by the Board in light of the facts I find, may I overturn the decision of the Board. Id. at 74-75; see also Davis v. Zoning Bd. of Appeals of Chatham, 52 Mass. App. Ct. 349 , 356 (2001) (Judicial deference appears especially appropriate as to decisions . . . which reflect the intimate knowledge, experience, and judgment of local officials.).
The Plaintiffs claim that the plan as approved does not comply with DEP Stormwater Management Policy, and argue that it therefore was unreasonable for the Board to have approved the plan. This is not so. It is largely uncontroverted that, as Mr. Houston testified, the stormwater management in the Seguin Plan would result in high-ponding in two catch basins during a 100-year storm event, causing the basins to overflow, and sending stormwater in the direction of the Warmack parcel. Mr. Churchill testified that DEP stormwater policies dont necessarily require one to design for a 100-year storm event.
I find that the potential harm to the Warmack parcel as a result of stormwater runoff in the Seguin Plan is relatively minor. There is no allegation that the catch basins would overflow every time it rained, or even once a year. The allegation was that certain detention basins were undersized to deal with the 100-year storm event, a significantly rare event, as the evidence, and not just the name alone, suggests. Accordingly, it was not arbitrary or capricious for the Board to have weighed the relatively small probability of harm to the Warmack parcel against the need for affordable housing, and determined that the Project was consistent with local needs. It was perhaps not the only outcome the Board could have arrived at, but in determining that the Project was consistent with local needs despite this shortcoming is in no way an abuse of discretion.
My determination is bolstered by the fact that Condition D.1 of the Comprehensive Permit requires the final design of the stormwater system to meet or exceed DEP stormwater management standards. To the extent that the stormwater management systems depicted in the Seguin Plan did not comply with DEP standards, or were considered by the Board to be troubling, the Board secured assurance that, in the end, the system would be brought into compliance with the standards the Board required. [Note 6] The Comprehensive Permit requires that Earth Tech review the stormwater management plan, and Mr. Churchill testified that he increased the initially-proposed size of the catch basins specifically with the Earth Tech review in mind. I find it was reasonable, given the presence of the conditions requiring compliance with DEP standards, and requiring review by the consulting engineer, for the Board to have approved the plans before it.
The Plaintiffs offer four reasons why the Boards approval cannot be sustained with regard to the wastewater management systems: (1) the approved plans are sized at 66,000 gallons per day, which does not comply with local Board of Health regulations; (2) effluent released from the wastewater systems into the watershed will harm Indian Brooks cranberry growing operations; (3) the groundwater elevation rise will result in complications should the septic system on the Warmack parcel fail and need to be replaced; and (4) no waiver was granted from the Towns Aquifer Protection overlay district.
Gallons Per Day
Plaintiffs argue that the wastewater management system is undersized because the Town Board of Health regulations result in the requirement of a system designed for 88,000 gallons per day. Sawmill argues that DEP standards require only 66,000 gallons per day. Condition A.1 says that The Applicant shall comply with all local by-laws, rules and regulations of the Town of Plymouth and its boards and commissions unless expressly waived herein under Section IV of this Comprehensive Permit Decision, or as may be otherwise addressed in these Conditions. (Emphasis supplied). Condition A.8 requires Sawmill to obtain all DEP permits and approvals that may be required prior to starting construction. The Decision notes in a section titled Representations By or On Behalf Of Applicant that The dwelling units will be served by a private wastewater treatment plant, the design and operation of which will be subject to Department of Environmental Protection (DEP) review and approval. Other than that, the Board itself made no conditions that specifically referenced the design wastewater treatment system. On all the evidence, it is clear from the context that the Board intended to have the regulation of the design specifications of the wastewater treatment plant fall to DEP. This is not an impermissible delegation, see Hanover, 363 Mass. at 375. To the extent that the Town has a higher gallon-per-day requirement than DEP, the issue was waived under A.1 as being otherwise addressed in these Conditions.
Indian Brook claims that effluent from the wastewater system will enter the groundwater and flow into Shallow Pond, and from there into Indian Brooks cranberry bogs. This effluent, Indian Brook claims, will contain levels of nitrogen and phosphorus harmful to the water quality, that will contaminate Indian Brooks crop and render it unsaleable. I rule that the Board reasonably could have concluded that the Project is consistent with local needs despite these concerns based on the evidence that: (1) groundwater will not flow in the direction of Shallow Pond, and (2) the effluent will be relatively harmless, even given the cranberry farming Indian Brook undertakes on its land.
The Board reasonably could have concluded that groundwater will not flow in the direction of Shallow Pond. (Although I have found plausible the showing by Indian Brook that water might reach its bogs, and thus conclude that Indian Brook has shown aggrievement, at the end of the day it is the Boards evaluation of this risk to which I must defer, so long as the facts support that evaluation, when considering the same claim of harm on the merits.) I credit Mr. Churchills analysis of where the groundwater will flow. Mr. Churchill measured groundwater elevations around the Locus. His analysis largely comports with the USGS data, which professionals consider highly reliable and use regularly in their work. Mr. Churchills analysis shows groundwater flowing in a north-northeasterly direction to the west of Shallow Pond, avoiding it.
The model that shows groundwater flowing in the direction of Shallow Pond is based on model-simulated groundwater elevation contours, not measured contours. When measured contours are used, even the Plaintiffs models show groundwater flowing in a direction entirely consistent with Mr. Churchills analysis. The Plaintiffs expert, Mr. Price, agreed that if the surface elevation of Shallow Pond was thirty-one feet (an elevation that he disputed), the groundwater flow as depicted by Mr. Churchill would be accurate.
There is great evidence in the record that the surface elevation of Shallow Pond is in fact about thirty-one feet. Sawmills engineer, Mr. Jacobs, testified that he measured Shallow Pond to be 31.24 feet, and I accept this evidence. Moreover, I find that the USGS has a measured value of 31.2 for Shallow Pond in its 1992 report (based on 1984 measurements). The Plaintiffs engineers, in creating their modeling, ignored that data point. Although there certainly is contrary evidence in the record, I do not credit it, and instead find as a fact that the elevation of Shallow Pond is thirty-one feet. As a result, I do not find the opinion of Mr. Price as to where the groundwater will flow to be persuasive or credible. The evidence of Sawmill clearly convinces me that the groundwater flow is more likely to take the northerly route than the northeasterly one suggested by the Plaintiffs.
Even if I did believe that the groundwater would flow where Mr. Price testified it would (which I do not) the Plaintiffs have not made out a case that they would be harmed by that. The weight of the evidence supports the conclusion that Sawmill will meet or exceed all standards for nitrogen and phosphorus. [Note 7] Based on the representations that the Amphidrome Plus System is capable of reducing nitrogen in effluent to below five parts per million, it would have been reasonable for the Board to conclude that effluent would be entirely safe by the time it reached Shallow Pond, particularly given the distance the effluent would have to travel to reach the pond. Moreover, Indian Brook admits that it makes yearly applications of nitrogen and phosphorus to its bogs, and never has tested the water quality of Shallow Pond. Indian Brook historically has used water from a number of sources, and Shallow Pond represents only a small percentage of the total water Indian Brook draws on a yearly basis. Based on all the evidence, I find it was reasonable for the Board to conclude that the potential harm to Indian Brook was outweighed by the need for affordable housing.
For substantially the same reasons as stated above, I find that groundwater from the project will not move in the direction of the Warmack parcel, and thus will not bring about the untoward consequences about which she is concerned, particularly those which might affect her septic system and make its eventual replacement problematic. Even were I to find otherwise, and conclude that there might, as a result of the Sawmill project, be some elevation of the water level at Warmacks system which would complicate its current operation or its replacement in the future, there is no evidence which I credit that shows that those harms would be insurmountable or difficult to address. Instead, the evidence shows me that Warmacks septic system already is complicated to a degree by its location close to a body of water and in an area of higher groundwater elevation, and I draw the inference that those circumstances, unrelated to the proposed residential project, contribute materially to whatever complications attend her septic system. In any event, the potential that Warmack will encounter complications when and if she is required to replace her septic system is a relatively small risk when compared to the need for affordable housing throughout the region, which the permitted project will materially address. It was certainly rational, and not in any way capricious, for the Board to have balanced the potential harm to Warmacks septic system against the need for affordable housing, and to have concluded, as I do, that the Project is consistent with local needs.
Aquifer Protection District
Plaintiffs allege that Sawmill did not receive an express waiver from the Towns density requirements in an Aquifer Protection District relative to the DEP Zone II recharge area of the Wannos Pond Well. It is undisputed that the issue of the Zone II was raised before the Board when Sawmill was applying for its Permit, and that at least some portion of the Locus lies within the Zone II. These issues were not disclosed in the pretrial memorandum, they were raised by the Plaintiffs for the first time in their posttrial briefs. Sawmill offered no evidence on this issue at trial. After trial, Sawmill filed motion to strike those portions of the plaintiffs posttrial brief that dealt with these arguments. I denied the motion. Sawmill was allowed to file a supplementary memorandum on the issue, which was received by the court on December 1, 2008.
I conclude that the Plaintiffs had the burden of proving that Sawmill needed, but did not receive, an additional waiver from the Board. As a result of the Plaintiffs failure to disclose the issue before trial, and failure to introduce sufficient evidence at trial to carry their burden, I am convinced that this issue does not cause me to overturn the Boards decision.
Delegation by the Board
Finally, Plaintiffs argue that the Comprehensive Permit leaves too many details undecided, and that the Permit is either invalid as an advisory opinion, or impermissibly reserved matters of substance for later determination, and so requires remand so the Board can consider recent changes to the Seguin Plan. The question is whether the Boards deference to DEP standards or permits, some to be later secured, as well as the Boards insistence that, as to some issues, final approval was required, implicate the rule that the Board cannot withhold decision on matters of substance relating to critical components of the permit. See Weld v. Board of Appeals of Gloucester, 345 Mass. 376 (1963) (The requirement that the water situation must be arranged to the satisfaction of all concerned necessarily implies that the board must make a further determination of substance before the permit can issue.); Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 (1986). The rule is that a decision of the Board is not an unlawful deferral on a matter of substance when it require[s] and compel[s] the applicants therefor to comply with specified lawful conditions and safeguards, but a decision will be invalid if it is merely an expression of an intent to issue the . . . permits at some future date on the occurrence of some contingency. Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 159 (1976).
It cannot be said that the matters in question stormwater and groundwater were not matters of substance; these issues were central to the matter before the permit granting authority. See Tebo, 22 Mass. App. Ct. at 624. This takes them out of the arena of cases like Planning Bd. of Falmouth v. Board of Appeals of Falmouth, 5 Mass. App. Ct. 324 (1977) where the conditions upon which the relief (in that case, a variance) was granted were truly collateral, like a requirement that the applicant plant a staggered line of trees along the applicants side of a fence. 5 Mass. App. Ct. at 326.
Here, the Board did not withhold decision on anything. Every aspect of the plan that required further attention was to be governed by specified standards. The Board required the stormwater management plan either to receive a permit from DEP, or to comply with DEP standards. Likewise, the Board required [Note 8] Sawmill to obtain a groundwater discharge permit from DEP for its PSTF. This amounts to a condition imposed by the Board that Sawmill, prior to commencing the project, obtain a state-mandated approval and comply with the requirements necessary to do so. This approach is not in any substantive way different from that upheld in Hanover, where the challenged permit contained two conditions which the court concluded set forth clear and certain standards by referring to appropriate state authorities including one with respect to the approval of the drainage and sewer systems.... Hanover, 636 Mass. at 375. This condition which the Plaintiffs challenge in the case now before me similarly is set forth in precise terms, with definite standards, and in no way constitute[s] an advisory opinion. Id.
Moreover, as Sawmill contends, the comprehensive permit process is by its nature necessarily a dynamic one. Nothing in the legislative scheme of chapter 40B evinces a policy that every detail of every plan be cast firmly in place before a comprehensive permit can issue. The project cannot, of course, be submitted for approval when key components are still on the drawing board, but, given the breadth of the regulations subsumed in a comprehensive permit, their interrelationship, and the timelines involved in getting and carrying out all the necessary approvals, there undoubtedly is some flexibility in the joints contemplated. A sequential and somewhat more open time frame, with some reviews, carefully delineated, to be completed at an appropriate later time, is not inconsistent with the legislative purpose. See, Hanover, 363 Mass. at 375: The completion of the project necessarily depends upon numerous factors, including the outcome of this litigation. In the circumstances of this case it is within the committees discretion to refuse to set final dates for the completion of the project. Compare Efekta Schools v. Cambridge Planning Bd., 13 LCR 106 , 119 (Misc. Case No. 290637) (Piper, J.) (March 16, 2005) (upholding special permit for overall development with later permits to be obtained for individual improvements within the locus) (That the [p]roject necessarily will require further reviews and approvals beyond the special permits already granted, does not make them improper where [t]he [b]oard did not purport to approve a final version of the [p]roject with each improvement within it fully designed, located, and shown on submitted plans with every dimension given.).
The evidence proves to me that the Board, in granting the Comprehensive Permit under G.L. c. 40B, did not impermissibly withhold or delegate decision on matters of substance.
I find and rule that the Board did not exceed its authority in granting the Comprehensive Permit to Sawmill pursuant to G. L. c. 40B. The Decision is upheld.
Gordon H. Piper
Dated: October 9, 2009.
[Note 1] The rebuttable presumption of standing is provided to parties in interest, which include the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to abutters within 300 feet of the property of the petitioner as they appear on the most recent applicable tax list. See G. L. c. 40A, § 11.
[Note 2] Mr. Houston is a professional engineer, licensed in Massachusetts, with degrees in civil engineering, urban affairs and transportation planning. Mr. Houston is not a groundwater hydrologist. Sawmill objected at trial to his opinion testimony regarding groundwater and subsurface conditions, and ultimately I ruled at the time that I would not accept opinion testimony from Mr. Houston on the subject of groundwater hydrology, particularly the subsurface movement of water and how it would or would not be affected by the proposed PSTF. To the extent this testimony was given and not stricken, I do not rely on it in making my decision today.
[Note 3] That the harm to Warmacks septic system is potentially increased replacement costs does not bring it into the category of economic harm precluded by Standerwick.
[Note 4] The Plaintiffs raised for the first time at trial objections as to whether Sawmill is a limited dividend organization, and whether Sawmill has site control over the locus. Sawmill has requested these issues be deemed waived as a result of their failure to appear in the pretrial memorandum, filed jointly with the court on April 22, 2008. The Plaintiffs do not object to the determination by the Board that Sawmill met the second requirement, 56.04(1)(b), which requires the project be fundable by a Subsidizing Agency.
[Note 5] Even were I unable to reach this conclusion from the plain language of the decision, [t]he board had the power, without holding a further public hearing, to correct an inadvertent (and essentially clerical) error in the form of decision signed on May 9, 1973, so that the record would reflect the true intention of the board. See Burwick v. Zoning Bd. of Appeals of Worcester, 1 Mass. App. Ct. 739 , 742 (1974) and cases cited. The error in Burwick was substantially more material than the error in this case. There, every member of the zoning board signed a decision granting a special permit that contained objectionable conditions which differed materially from those [conditions] orally agreed upon by the board, because the board was under the mistaken and erroneous belief that they were signing a different decision altogether. The well-settled rule is that, where the correction, made within a reasonable amount of time, is not a reversal of a conscious decision, does not change the result of the original decision, and does not prejudice anyone relying on the decision, the amendment will stand despite not holding a public hearing. See Board of Selectmen of Stockbridge v. Monument Inn, 8 Mass. App. Ct. 158 , 164 (1979) (Monument Inn) and cases cited. Accordingly, the May 4, 2006 Correction Letter from the Board to the Town Clerk to correct an inadvertent typographical error on Page 9 of the Zoning Boards Decision was an effective correction, applying the law as set forth in Burwick, and Monument Inn, supra. Even were it not for the appellate case law that specifically, and with great clarity, answers the precise question before the court, where there is no change in the result of the boards decision, it is within the boards inherent administrative power . . . to amend its decision within a reasonable period without convening further public hearing. See Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 553 (1962). The Correction Letter was sent to the Town Clerk less than thirty days after the Decision was rendered, which I rule was a reasonable amount of time. At that time, Indian Brook and Warmack had already filed their appeal with the Land Court, which indicates that the plaintiffs knew the Decision did in fact grant the comprehensive permit, were not confused by the Boards Decision, and were not prejudiced by the Correction Letter.
[Note 6] This does make the Decision an advisory opinion, or one unpardonably tentative or incomplete. See discussion of Weld v. Board of Appeals of Gloucester, 345 Mass. 376 (1963) and Tebo v. Board of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 (1986), infra.
[Note 7] I credit the testimony of Mr. Price on cross-examination that the DEP placed limits on phosphorus in the groundwater discharge permit granted to Pine Hills, the large nearby residential project, and this testimony is enough to support the inference, which I do draw, that DEP very likely will place a similar limitation on the groundwater discharge permit that Sawmill seeks, further bolstering the Boards conclusion that any water which might emanate from the project will pose no harm as to phosphorus content.
[Note 8] Required is not the right word. It is the Code of Massachusetts Regulations which requires that a system discharging the amount of water involved here obtain a groundwater discharge permit. This regulation is not a local zoning bylaw, or other local law, and chapter 40B does not give the Board authority to waive its application. That is reserved for matters committed to the authority of a local board or authority. G.L. c. 40B, §§20, 21. Chapter 40B lets a comprehensive permit issue in place of an approval mandated only by local bylaws, not statewide regulations.