MISC 16-000214

July 27, 2017

Middlesex, ss.



This dispute over the denial of a septic system permit is part of a larger legal dispute concerning a so-called affordable housing development proposed to be built in Sherborn. The present action, initiated by the plaintiff Benjamin Stevens, as Manager of The Fields at Sherborn, LLC (the "Developer") on April 15, 2016, and later transferred to the Permit Session of the Land Court, is an appeal in the nature of certiorari, pursuant to G. L. c. 249, § 4, from a decision of the defendant Sherborn Board of Health (the "Board"), dated March 4, 2016, denying the Developer's application for a Disposal Works Construction Permit under Title 5 of the State Sanitary Code, 310 C.M.R. § 15.000 et seq. ("Title 5"). The Developer sought the Title 5 permit for the construction of a septic system necessary to the development of a thirty-two unit condominium project proposed pursuant to G. L. c. 40B, §§ 20-23 (the "Project") on property located between 247 and 257 Washington Street in Sherborn, consisting of approximately 17.55 acres of land (the "Property"). Pursuant to Land Court Standing Order 2-06(2), the Board filed the Administrative Record ("A.R.") of its proceedings in four volumes, consisting of 145 exhibits filed by the parties or considered by the Board. The Developer moved for leave to present additional evidence within fourteen days after the A.R. was filed, on August 9, 2016, and the motion was granted after a hearing on October 13, 2016. The court remanded the matter to the Board for consideration of the additional evidence, and following a hearing before the Board on November 17, 2016, the Board issued a new decision dated December 7, 2016, in which the Board, after consideration of the additional evidence, upheld the original denial as "still applicable and appropriate." An amended complaint was filed on December 22, 2016, with the Supplemental Administrative Record ("S.A.R.").

After the S.A.R. of the remand proceedings was filed, the Developer moved for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c) and Land Court Standing Order 2-06(4) on March 10, 2017. The Developer argues in its motion that the Board's denial was arbitrary, capricious, constituted legal error, and was not supported by substantial evidence, and therefore should be overturned. The Board, opposing the motion, requested that the court affirm the denial of the Title 5 permit. A hearing was held on the motion for judgment on the pleadings on May 3, 2017, following which the court took the matter under advisement.

For the reasons that follow, the Developer's motion for judgment on the pleadings is ALLOWED, and judgment will enter annulling the Board's decision denying the Developer's application for a Title 5 permit, and ordering the issuance of the requested permit.


Accepting, for the purposes of the Mass. R. Civ. P. 12(c) motion for judgment on the pleadings, the well-pleaded facts in the amended complaint, along with the documents referred to in the amended complaint, and the facts shown in the Administrative Record and Supplemental Administrative Record filed by the parties, the court finds the following facts:

1. On February 16, 2015, The Fields at Sherborn LLC filed a comprehensive permit application pursuant to G. L. c. 40B, §§ 20-23, for the Project to be constructed at the Property, between 247 and 257 Washington Street in Sherborn, with the Sherborn Zoning Board of Appeals (the "ZBA") AR-1, KP01176.

2. The Developer originally proposed to build 36 townhouse condominium units, with 9 affordable units and 27 market rate units, housed in 4 buildings with 3 units each, and 6 buildings with 4 units each. AR-1, KP01183, KP01229.

3. In conjunction with its obligation to comment on the comprehensive permit application pending before the ZBA, the Board held preliminary discussions at its public meeting and prepared recommendations to the ZBA regarding environmental regulations applicable to the Project on March 4, 2015. The ZBA started its review process on March 12, 2015. AR-2, KP02518.

4. In a letter dated March 11, 2015, the Board notified the ZBA of the size and complexity of the Project, therefore requesting additional time for a thorough review, as well as help from experts to analyze technical details of the Project. Id. The Developer and the Board later sought and were granted further extensions of the review process. AR-86. AR-114.

5. In conjunction with the comprehensive permit application pending before the ZBA, the Developer also filed, on July 28, 2015, an application for a Disposal Works Construction Permit to facilitate the construction of a septic system with an estimated flow of 9,240 gallons per day ("GPD"). AR-13.

6. The permit application submitted to the Board sought approval for construction of a septic system to service 24 two-bedroom units and 12 three-bedroom units, for a total of 84 bedrooms. AR-1, KP01183.

7. During the course of the public hearings before the Board, the Developer revised its application and proposed to limit the number of units to 32 condominium units in 9 structures, with a total of 76 bedrooms, as evidenced by revised plans submitted to the Board that were to be incorporated into the condominium master deed and site plans to be recorded in accordance with G. L. c. 183A upon completion of the Project. SAR-2; AR- 132, PK000945. The Developer specifically proposed that the number of bedrooms shown for each unit on the revised plans "can be deeded into the final master deed," and offered a deed restriction barring any modification of unit interiors that would alter the bedroom count, so that the total bedroom count in the Project would be strictly limited to the 76 bedrooms shown on the revised plans. AR-132, KP00929.

8. The Developer also included in its submissions to the Board a portion of a draft master deed providing that no unit owner may convert a room so as to add a bedroom to his or her unit. Hence, the total number of bedrooms in the Project was proposed to be fixed at a maximum of 76 by the master deed and other deed restrictions, as well as by the Developer's agreement that the approved plans, showing the number of bedrooms at 76, would be part of the approved comprehensive permit, and therefore would be further enforceable as a condition of the comprehensive permit approval. AR-58, KP01853.

9. The revised plan submitted to the Board proposed changes to the wells and septic system accordingly. The new septic system would consist of one septic tank, with a separate pump chamber, and two enlarged leaching fields replacing three smaller fields in the original design, to accommodate a design flow of 8,360 GPD, or 110 GPD per each of the 76 bedrooms. Each building would be served by a dedicated well, which would serve no more than 9 bedrooms, with a daily flow of 990 GPD. AR-73. AR-74, KP01474.

10. The Property consists of 19.11 "Title 5 acres". [Note 1] Under 310 C.M.R. § 15.214, no areas of new construction containing both an on-site well and septic system shall receive more than 440 GPD per acre, except those that satisfy the conditions for aggregation of nitrogen loading through the use of credit land as set forth in 310 C.M.R. § 15.216 and the Department of Environmental Protection's ("DEP") "Guidelines for Title 5 Aggregation of Flows and Nitrogen Loading," referenced therein. See 310 C.M.R. §§ 15.214, 15.216; Massachusetts Department of Environmental Protection, Guidelines for Title 5 Aggregation of Flows and Nitrogen Loading (revised Feb. 22, 2016), available at http://www.mass.gov/eea/docs/dep/water/wastewater/a-thru-n/nagg95p.pdf. These Guidelines include a 10 mg/L limit on nitrate loading for systems that exceed the 440 GPD per acre limit. Therefore, the maximum design flow allowed in the Property's septic system without becoming subject to the aggregation standards of 310 C.M.R. § 15.216 and the Guidelines, is 8,409 GPD (440 GPD x 19.11 acres). Pursuant to the revised plans submitted to the Board, the design flow of the Project, with 76 bedrooms, is 8,360 GPD (110 GPD x 76 bedrooms). The proposed septic system thus falls within the requirements of 310 C.M.R. § 15.214. AR-13, KP01497.

11. The peer review consultants hired by the Board, the engineering firm BETA Group Inc., did not agree with the Developer's characterizations upon which it based its bedroom count. In a letter dated December 28, 2015, BETA suggested that the Board could rely on the language of 310 C.M.R. § 15.002, which states that "the number of bedrooms presumed shall be calculated by dividing the total number of rooms by two then rounding down to the next lowest whole number." By relying on this calculation, the number of bedrooms in the Project could potentially be as high as 131. However, this language in Section 15.002 is applicable only in determining the number of bedrooms "[w]here the total number of rooms for single family dwellings exceeds eight…" AR-76, KP02136. The court finds that this definition is not applicable to the Project, for reasons stated below.

12. The Board retained Nobis Engineering to conduct a hydrogeological study, a nitrate dispersion analysis, and a mass balance analysis to establish the area of influence ("AOI") of the septic system pursuant to DEP Title 5 Guidelines under 310 C.M.R. § 15.216. Dr. Vernon at Nobis Engineering concluded that the nitrate level for the proposed system could be over 20 mg/L in some areas, and overburdened groundwater might flow towards the nearby wetlands or through fractured bedrock to reach the wells. SAR-23-27.

13. The Developer retained hydrogeologist Dr. Desheng Wang to assess the issues related to the environmental impact of the Project and to address the Board's concerns. Dr. Wang concluded that the groundwater flow would not impact the two drinking water wells located at the neighboring properties. Furthermore, based on Dr. Wang's recommendation, the Developer moved the water wells on the Property (Wells H, I, J) outside of the septic plume AOI. AR-73, KP01499.

14. The Board closed the hearing on March 2, 2016, and voted to deny the Title 5 permit without receiving or discussing Dr. Vernon's hydrogeologic analysis report. A written decision was issued on March 4, 2016. AR-142; AR-145, KP02822.

15. In denying the Title 5 permit, the Board concluded that the units in the Project are "comparable to other homes in town (free-standing residences)," and therefore voted to treat each unit as having at least 3 bedrooms pursuant to the presumption to that effect for single-family dwellings in 310 C.M.R. § 15.203. Hence, the denial was dependent on the Board's determination that the Project included at least 96 bedrooms in total. AR-145, KP02810-12. For the reasons stated below, the court finds that this determination was legally untenable.

16. In light of this higher bedroom count, the Board decided that the design flow of the Project's septic system would exceed 10,000 GPD, thereby justifying a requirement that the Developer obtain a Groundwater Discharge Permit pursuant to 310 C.M.R. § 15.006 and DEP guidelines. AR-145, KP02824.

17. The Board also decided that even assuming the bedroom count of 76, and hence the estimated design flow of 8,360 GPD, to be correct, the permit would still be denied because the Property was in a nitrogen sensitive area due to the presence of both an on- site well and septic system, and because the analyses conducted pursuant to 310 C.M.R. § 15.214 through 310 C.M.R. § 15.216 showed that there is a likelihood of greater than 10 mg/L nitrate impact to drinking water supplies or to property boundaries. AR-145, KP02824. Again, for reasons discussed below, the court finds that this determination by the Board was legally untenable.

18. Dr. Vernon's hydrogeological report was received by the Board on March 4, 2016, after the close of the public hearing, following which the Developer's expert, Dr. Wang, submitted a letter on March 7, 2016 to the Board and the ZBA highlighting errors in calculations in Dr. Vernon's report. SAR-30.

19. Dr. Vernon acknowledged the errors in his nitrate dispersion analysis. However, he maintained that the overall results did not change in the revised version of his Title 5 analysis, dated March 22, 2016. SAR-40.

20. On April 15, 2016, the Developer filed this action seeking to annul the Board's decision.

21. Following a remand by this court to consider Dr. Vernon's report, Dr. Wang's response, and other additional evidence, the Board issued a revised decision in which it reiterated and affirmed its earlier denial of the requested permit.


An action seeking judicial review in the nature of certiorari can be brought to "correct errors in proceedings which are not according to the course of common law, and which proceedings are not otherwise reviewable by motion or by appeal." G. L. c. 249, § 4. In a certiorari review, the court is limited to correcting "substantial errors of law apparent on the record adversely affecting material rights." FIC Homes of Blackstone, Inc. v. Conservation Comm'n of Blackstone, 41 Mass. App. Ct. 681 , 684 (1996). Therefore, the review is not de novo, but instead is "limited to what is contained in the record of the proceedings below." Police Comm'r of Boston v. Robinson, 47 Mass. App. Ct. 767 , 770 (1999). Furthermore, the standard of review is based on the "nature of the action sought to be reviewed." Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37 , 49 (1977).

For parties seeking to overturn an agency decision, "the applicants must establish that it was arbitrary and capricious or unsupported by substantial evidence." Dubuque v. Conservation Comm'n. of Barnstable, 58 Mass. App. Ct. 824 , 828-829 (2003). The "arbitrary and capricious" test is appropriate when the reviewing court is asked to determine whether the administrative agency "was authorized by the governing statute" to make the decision in light of the facts, or it "acted for reasons that are extraneous to the prescriptions of the regulatory scheme, but are related, rather, to an ad hoc agenda." Fafard v. Conservation Comm'n. of Reading, 41 Mass. App. Ct. 565 , 568 (1996). On the other hand, the "substantial evidence" test applies when the question is "not the criteria to be applied but whether, within the announced criteria, the determination that there would be injury to the land in question was supported by substantial evidence." Id.

The reviewing court "may not substitute its judgment for that of the agency," but instead "must show a great degree of deference to administrative decisions, particularly those that reflect the intimate knowledge, experience, and judgment of local officials." Johnson Prod., Inc. v. City Council of Medford, 353 Mass. 540 , 541 n.2 (1968); Davis v. Zoning Bd. Of Chatham, 52 Mass. App. Ct. 349 , 356 n.11 (2001). However, notwithstanding the considerable deference owed to an administrative agency, the court must disturb an agency decision if "it is based on 'a legally untenable ground' … or is 'unreasonable, whimsical, capricious, or arbitrary'…." Forsyth Sch. for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211 , 218 (1989). The reviewing court must not confuse "judicial deference and restraint [with] abdication." Nat'l Amusements, Inc. v. City of Boston, 29 Mass. App. Ct. 305 , 310 (1990). The Board's finding "must be set aside if 'the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability to the contrary.'" Rogers v. Conservation Comm'n of Barnstable, 67 Mass. App. Ct. 200 , 205 (2006), quoting New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456 , 466 (1981); Zoning Bd. of Appeals of Canton v. Hous. App. Comm., 76 Mass. App. Ct. 467 , 473 (2010) (holding that an agency decision will not be upheld if it is "based on an error of law, unsupported by substantial evidence, unwarranted by facts found on the record as submitted, arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law"), quoting DSCI Corp. v. Dep't of Telecomm. & Energy, 449 Mass. 597 , 603 (2007).


It is the plaintiff's "formidable burden of proving the absence of any conceivable ground upon which the regulations can be upheld." Worcester Sand & Gravel Co. v. Board of Fire Prevention Regulations, 400 Mass. 464 , 466 (1987). In the present case, the Developer seeks review on three issues: (1) whether it was legally tenable for the Board to treat the Project as having more than 76 bedrooms, thus enabling the Board to conclude that the Project exceeded the allowed design flow and that it needed to acquire a groundwater discharge permit pursuant to 310 C.M.R. § 15.006; (2) whether, if the Project is properly assessed as containing no more than 76 bedrooms and thus as being compliant with design flow requirements, it was legally tenable for the Board to impose the more stringent 10 mg/L limit pursuant to 310 C.M.R. § 15.216, and (3) whether, if the Board could properly impose the requirements of 310 C.M.R. § 15.216, there was substantial evidence to support the Board's decision. The "arbitrary and capricious" standard applies to the first two of these issues, whereas the more stringent "substantial evidence" standard applies to the third. Each of these arguments is considered below.

1. Bedroom Count

The Developer first argues that the Board committed legal error in the manner in which it counted the number of bedrooms proposed for the Project, thus allowing the Board to conclude, impermissibly, that the Project would exceed the maximum design flow allowed per Title 5 acre, and further allowing the Board to conclude that the design flow would exceed 10,000 gallons per day, thus also requiring a groundwater discharge permit pursuant to 310 C.M.R. § 15.006. The Board reached these conclusions based on its determination that the Project's total bedroom count was actually significantly higher than the 76 bedrooms claimed by the Developer. The Board purported to base its determination that the number of bedrooms exceeded 76 on the definition of "bedroom" found in 310 C.M.R. § 15.002 and on the design criteria found in 310 C.M.R. § 15.203.

Section 15.002 of Title 5 (310 C.M.R. § 15.002) defines "bedroom" as "a room providing privacy, intended primarily for sleeping…", with additional criteria including a minimum square footage requirement, minimum ceiling height, and a requirement for at least one window. Further, living rooms, dining rooms and other designated rooms may not be treated as bedrooms, but the section also imposes a presumption that a single-family dwelling has at least three bedrooms. While "single family dwellings shall be presumed to have at least three bedrooms," an applicant may calculate design flows of a septic system based on "a smaller number of bedrooms than are presumed in this definition by granting to the Approving Authority a deed restriction limiting the number of bedrooms to the smaller number." 310 C.M.R. § 15.002.

The table in 310 C.M.R. § 15.203, "System Sewage Flow Design Criteria," establishes the basic design flow requirements for different uses. Implementing the three-bedroom presumption in Section 15.002, this table requires that "Family Dwelling Single, including, but not limited to single family condominiums & cooperatives" [Note 2] shall have a design flow of 330 GPD, or 110 GPD for each of the three presumptive bedrooms. The Section 15.203 table goes on to require 110 GPD per bedroom for "Family Dwelling, Multiple," with the following proviso in a footnote: "The number of bedrooms in a condominium shall be as specified in the Master Deed."

Notwithstanding the Developer's representation that the number of bedrooms would be limited to 76, as provided in the draft provisions of the master deed and plans submitted to the Board, and notwithstanding the Developer's agreement to further enforce the limitation by condition in the comprehensive permit and by other restrictions, the Board concluded that the number of bedrooms, and thus the design flow, was higher than 76, based on the Board's conclusion that the proposed condominium units, although located in buildings with at least three dwelling units in each, were more akin to single-family dwellings than to units in a multi-family dwelling. The Board relied on its observation that the units "have separate entrances, separate driveways, garages, and exclusive use yard areas. There are no interior common areas within the interior of the building that exist in most condominium complexes."

The Board's conclusion that the proposed units are properly characterized as single-family dwellings instead of as units in a multi-family dwelling, as well as the Board's reasoning in reaching that conclusion, was legally untenable. By December 11, 2015, the Developer had submitted revised plans to the Board reducing the size of the proposed project to 32 units in 9 buildings, with a total of 76 bedrooms. The units were town house-style dwellings, with at least three units in each building, each unit with its own entrance, and, as noted by the Board, no interior common area. The Board points to no definition of "single-family dwelling" or corresponding alternative definition of "multi-family dwelling" in the Title 5 regulations, in its own local regulations, or from any other source that justifies its conclusion that dwelling units in buildings each containing at least three dwelling units are properly classified as single-family dwellings as if they were detached single-family houses.

Where the meaning of a term in a regulation or statute is undefined, the meaning should be determined by ordinary principles of statutory construction. See Framingham Clinic, Inc. v. Zoning Bd. Of Appeals, 382 Mass. 283 , 290 (1981). Where language is clear and unambiguous, it is "conclusive as to legislative intent," and the courts "are constrained to follow so long as its application would not lead to an absurd result." Martha's Vineyard Land Bank Comm'n v. Bd. Of Assessors, 62 Mass. App. Ct. 25 , 27-28 (2004). "When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose." Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977). The meaning of the term "single-family dwelling" and the corresponding meaning of the term "multi-family dwelling," although undefined in the Title 5 regulations, are ordinary terms with usual and accepted meanings in related contexts. One logical place to look for the usual and accepted meaning is in the town's own bylaws. The Town of Sherborn Zoning Bylaw does not define "single-family dwelling," but does define "multidwelling" as "[a] building containing two or more dwelling units. A multidwelling may be a series of attached or semi-detached town houses or row houses (dwelling units sharing one or more party wall and each having at least one floor at ground level with direct access to outside on two or more sides) or a garden apartment dwelling unit sharing a common entry hall or stairway." Bylaw, § 1.5.

The "multidwelling" referred to in the Sherborn Zoning Bylaw as a "town house" describes accurately and unambiguously the buildings proposed in the Project. Each dwelling unit is in a building containing "two or more units"; each shares one or more party walls; and each has at least one floor at ground level with direct access to the outside on two or more sides. The lack of an entrance common to more than one unit or other interior common area does not turn a building with three or four units into three or four "single-family" dwellings. Thus, the Board's conclusion that the dwelling units comprising the Project each should be classified as "single-family dwellings" is not only not based on any established definition in the Title 5 regulations, or on any other relevant and applicable source, but it also contradicts the easily understood and well-defined definitions found in the zoning bylaw governing land use in the Town of Sherborn. The Board's determination also ignores the logical distinction made by the town's zoning bylaw between "town houses" as distinguished from detached single-family dwellings. Town houses tend to be narrower, and thus contain less square footage than detached single-family dwellings because they can only have windows on two sides of the building, or three for end units. This common sense limitation, recognized in the zoning bylaw and in Title 5, is ignored by the Board. Where the Board's conclusion was thus based on a determination not founded on any rule subject to a requirement of uniform application, it "was improperly based on a policy existing outside of the regulatory framework." Fieldstone Meadows Corp. v. Conservation Com'n of Andover, 62 Mass. App. Ct. 265 , 267 (2004). "The decision to deny the permit on the basis of such a policy was therefore arbitrary." Id. at 268.

The Board also seeks to justify its determination that the Project exceeds a design flow of 10,000 GPD, thus triggering a requirement for a groundwater treatment permit under 310 C.M.R. § 15.006 and the imposition of more stringent requirements under 310 C.M.R. § 15.216, on its assertion that the Project, even without being classified as "single-family dwellings," contains more than 76 bedrooms based on a review of the plans submitted by the Developer. The Board argues that rooms designated as "lofts," "studies," as well as finished basements, could be used as bedrooms, thus leading to a significant increase in the estimated flow of the septic system. The Board's concern about the future use of other rooms in the Project as bedrooms ignores the leeway given by Title 5 to a project proponent to restrict the use of rooms in a multi-family condominium by master deed, if it is in the condominium form of ownership, and otherwise by restrictive covenant. The Developer submitted to the Board proposed master deed restrictions, as well as agreed restrictions to be imposed in the comprehensive permit to be issued pursuant to G. L. c. 40B, that would limit the number of bedrooms in the Project to the two- and three-bedroom units as shown on the revised plans. Title 5 explicitly permits the Developer to do this, as it provides, "The number of bedrooms in a condominium shall be as specified in the Master Deed." 310 C.M.R. § 15.203. Even the three-bedroom presumption for single-family homes can be overcome by a deed restriction providing for two bedrooms, thus allowing a lower design flow.

Id. Thus, it was impermissible for the Board to attempt to overcome the Developer's proposed master deed restrictions concerning the number of bedrooms by concluding that other rooms in each unit could potentially serve as additional bedrooms. To the extent the Board claims that it relied on "guidance" from the Department of Environmental Protection (see SAR-6), such guidance, informing the Board that it had the discretion to make its own determination of the number of bedrooms, notwithstanding the limitations proposed to be placed in the master deed, was not based on any published regulations, and did not make the Board's decision any less arbitrary.

2. Groundwater Discharge and Nitrogen Loading

The fulcrum of the Board's decision, whether based on the presumption of three bedrooms per unit in single-family dwelling units, or on its physical count of what it believes to be the number of bedrooms, is its conclusion that the number of bedrooms in the Project exceeds 76. The Board's subsidiary findings that the Project requires the issuance of a groundwater discharge permit pursuant to 310 C.M.R. § 15.006, and that the Board may impose the more stringent nitrogen loading requirements of 10 mg/L found in the "Guidelines for Title 5 Aggregation" referenced by 310 C.M.R. § 15.216, fail as well when the bedroom count is correctly limited to 76. A groundwater discharge permit is only required when the design flow of the system exceeds 10,000 GPD (310 C.M.R. § 15.006). The more stringent nitrogen loading requirements of the "Guidelines" may only be imposed when an applicant seeks to aggregate flows pursuant to § 15.216 using other credit land, and such aggregation is only necessary when the design flow of the system exceeds 440 gallons per day per acre. 310 C.M.R. §§ 15.214-15.216. The 10 mg/L limit provided by the Guidelines, and applied by the Board, is thus not applicable to projects that meet the 440 GPD per acre standard without aggregation. Here, the flow does not exceed 440 GPD per acre, and the Developer neither did nor was required to aggregate the nitrogen load with credit land as provided in § 15.216; accordingly, the Project is not subject to the more stringent requirements of the "Guidelines" applicable to that section.

The Board also relies on Tortorella v. Bd. of Health of Bourne, to support its argument that even if the number of bedrooms was properly limited to a count of 76, the Board retained the discretion to impose additional requirements on the Project, despite its compliance with the design flow and other requirements of Title 5. See Tortorella v. Bd. of Health of Bourne, 39 Mass. 277 (1995). The Board's reliance on Tortorella is misplaced, as the board of health in that case permissibly went beyond the "bedroom count" because the applicant sought setback variances for the placement of the septic system on a lot with restricted suitable area for the placement of a system. The discretion afforded a board of health in determining whether to issue Title 5 variances exceeds the authority it may exercise in assessing a compliant system. See id. Also unavailing is the Board's reliance on Reynolds v. Zoning Bd. of Appeals of Stow, 88 Mass. App. Ct. 339 , 347-350 (2015). In that case the Appeals Court ordered the annulment of the issuance of a comprehensive permit under G. L. c. 40B, where a proposed sewage disposal system arguably complied with Title 5 but did not comply with the more stringent local requirements imposed by an overlay water resource protection district provision of the local zoning bylaw. See id. Unlike a zoning board of appeals acting on a comprehensive permit application, the Board here has no authority to base its decision on regulations other than those found in Title 5, and unlike the zoning board in Reynolds, the Board here does not point to or rely on any published local regulations or bylaw that imposes more stringent requirements than those imposed by Title 5.

Finally, the Board here emphasized that because of the unusual characteristics of the town, such as the large proportion of its land covered in wetlands, the court should give great latitude to the Board to impose more stringent requirements in light of local particularities. The Board relies on 310 C.M.R § 15.003(1), which provides that "specific site or design conditions, however, may require that additional criteria be met in order to achieve the purpose or intent of 310 C.M.R 15.000." The town-wide conditions alleged by the Board in support of its argument (which are not apparent in the record in any case) are not "specific site or design conditions." Even if there were such specific site or design conditions applicable to the Property, local authorities may not make up more stringent regulations on the fly, but instead they must properly enact such regulations in accordance with G. L. c. 111, § 31, so that there can be uniformity of standards and enforcement. See 310 C.M.R. § 15.003(3). See also Fieldstone Meadows Corp. v. Conservation Com'n of Andover, supra, 62 Mass. App. Ct. at 267. In the present case, the Board is asking the court to give deference to the imposition of "additional criteria" not found in statute, regulation, or local bylaw, but which are instead essentially "devised for the occasion." Fafard v. Conservation Comm'n. of Reading, supra, 41 Mass. App. Ct. at 568. Therefore, the Board's imposition of additional nitrogen loading requirements is not authorized by 310 C.M.R § 15.003(1).

Having found that the Board arbitrarily and capriciously determined that the Project incorporated more than 76 bedrooms, and having concluded that the Project complies with the design flow requirements of Title 5, I have, as a result, also concluded, and so find, that it was arbitrary and capricious for the Board to impose a requirement that the Project obtain a groundwater discharge permit and that it be subject to the more stringent nitrogen loading requirements that otherwise could be imposed only if the Project required aggregation under 310 C.M.R. § 15.216 due to noncompliance with the Title 5 design flow requirements.

Given the conclusion that there was no proper occasion for the Board to impose the more stringent requirements of 310 C.M.R. § 15.216, or to impose more stringent requirements under any other theory, there is also no need or occasion to address whether there was substantial evidence to support the Board's determination that the septic system proposed for the Project did not meet the requirements of 310 C.M.R. § 15.216 or other more stringent requirements sought to be imposed by the Board. Accordingly, I do not reach that issue.


For the reasons stated above, the decision of the Board denying a Disposal Works Construction Permit under 310 C.M.R. 15.000 et seq. is ANNULLED.

Judgment will enter ordering the Board to issue the requested permit.


[Note 1] A "Title 5 acre" equals 40,000 square feet, instead of the dimensions of an actual acre, which is 43,560 square feet. See 310 C.M.R. § 15.002.

[Note 2] Whether a single family dwelling is in the form of traditional fee ownership, or is in condominium or cooperative ownership, is actually irrelevant to a determination whether it is a single-family or a multi-family dwelling, as the condominium (or cooperative) form of ownership does not change the use from single-family to something else. See CHR General, Inc. v. City of Newton, 387 Mass. 351 (1982) (holding that City could not regulate, through its zoning ordinance, change to condominium form of ownership, because regulation of form of ownership not a proper subject of land use regulations).