July 3, 2019

Dukes, ss.



Procedural History

Robert M. Dias, Alec Gale, and Charles Christopher Crawford (the Abutters) filed the Complaint in this action on August 11, 2017, naming as defendants the Tisbury Board of Health (Board) and Island Housing Trust Corp. (Developer). By an Order dated October 27, 2017, Justice Robert B. Foster of the Land Court Department was authorized and assigned to sit as a Justice of the Superior Court Department in this action. Volume I of the Administrative Record (A.R.) was filed on November 9, 2017. The Joint Motion to Amend Administrative Record was filed on December 6, 2018, and allowed on December 10, 2018. The Plaintiffs' Motion for Judgment on the Pleadings, Plaintiffs' Memorandum in Support of Motion for Judgment on the Pleadings, and Volume II of the Administrative Record were filed on January 22, 2019. The Brief of Defendants Island Housing Trust Corporation in Opposition to Plaintiffs' Motion for Judgment on the Pleadings was filed on February 19, 2019. The Plaintiffs' Reply in Support of Motion for Judgment on the Pleadings was filed on March 1, 2019. The court heard the Plaintiffs' Motion for Judgment on the Pleadings on March 14, 2019, and took the matter under advisement. This Memorandum and Order follows.

Standard for Motion for Judgment on the Pleadings

Pursuant to Superior Court Standing Order 1-96, "[a] claim for judicial review on the administrative record shall be resolved through a motion for judgment on the pleadings, Mass. R. Civ. P. 12(c)." Id. at ¶ 4. A motion for judgment on the pleadings under Mass. R. Civ. P. 12(c) is actually a motion to dismiss for failure to state a claim upon which relief can be granted, and is analyzed under the standard for motions to dismiss. Jarosz v. Palmer, 436 Mass. 526 , 529-530 (2002). The court accepts as true well-pleaded factual allegations and reasonable inferences drawn therefrom, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004), but does not accept "legal conclusions cast in the form of factual allegations." Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000); see Jarosz, 436 Mass. at 529-530. Generally, if matters outside the pleadings are presented to and not excluded by the court, the motion will be treated as a motion for summary judgment. Mass. R. Civ. P. 12(b), 12(c). The court may, however, take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, without converting the motion to a motion for summary judgment. Marram, 442 Mass. at 45 n. 4; Schaer, 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550 , 555 (2008); Shuel v. DeIeso, 16 LCR 329 , 329 n.2 (2008). As the parties agree upon the contents of the Administrative Record judgment on the pleadings is appropriate.

Undisputed Facts

The following facts from the Administrative Record are not in dispute:

1. On October 27, 2016, the Developer received a Comprehensive Permit to construct a 20-unit affordable housing project (Project) on land it owns situated on State Road in Tisbury, Massachusetts (Property). A.R. p. 372. The Property Consists of 14.8 acres, of which approximately 8.91 acres is burdened by a conservation easement granted to the Martha's Vineyard Land Bank Commission, dated September 23, 2015, and recorded with the Dukes County Registry of Deeds at Book 1386, Page 546 (Conservation Easement). A.R. p. 32.

2. The Conservation Easement provides:


The purpose of this Exclusive Easement is to assure that the Premises will be maintained in perpetuity for conservation and passive recreational purposes, predominantly in a natural, scenic and undeveloped condition, and to prevent any use or change that would impair or interfere with its conservation and preservation values…


A. Prohibited Acts and Uses by Grantor

1. The grantor shall not enter or use the Premises, other than as guests of the Grantee, in the same manner and subject to the same constraints as other members of the public;

2. The Grantor shall not offer third parties interests in or the right to enter or use the Premises for any purpose;

3. The Grantor shall not interfere with the Grantee's activities within the Premises, or its use by members of the public for passive recreation.

Notwithstanding the foregoing, in the event that a well or septic disposal system cannot be located on the portion of Grantor's Property not subject to this Exclusive Easement, then, such well or septic system may be located, relocated and/or maintained on the Premises, provided that it is located as close as possible to such portion of Grantor's Property, and in a location deemed most appropriate by both grantor and grantee…

A.R. pp. 32-22.

3. In connection with the Comprehensive Permit the Developer applied for a Disposal System Construction Permit from the Board to build a septic system to handle the wastewater from the Project. A.R. p. 24. The Board held a public hearing on the application on April 11, 2017, and the application was further discussed at meetings of the Board held on May 4 and 16, 2017, and June 13, 2017. A.R. pp. 13-23. At the meeting on June 13, 2017, the Board approved the Disposal System Construction Permit (Permit) subject to a list of conditions. A.R. pp. 9-12, 22-24.

4. The proposed septic system (System) is designed to accommodate 4,400 gallons of wastewater per day. It consists of (1) a 9,000 gallon septic tank; (2) a 5,000 gallon equalization tank; (3) two Bioclere units; (4) a 5,000 gallon denitrification tank; (5) a 7,000 gallon pump chamber; and (6) two Bottomless GPC filters. A.R. pp. 2-8, 243-245.

5. At the April, 11, 2017, hearing, the Board heard from Michael McGrath (McGrath), the Developer's engineer, who stated that the Bioclere system is designed to produce a release of 15 milligrams per liter (mg/L) of nitrogen which is below the local regulations limit of 19 mg/L. He stated that the next stage of treatment, the System's denitrification tank, would reduce the nitrogen content of the effluent to 7-8 mg/L. McGrath further stated that last stage of treatment, the Bottomless GPC filters, will reduce the final nitrogen content of the effluent from the System to below 5 mg/L. A.R. pp. 13, 243-245.

6. At the April 11, 2017, hearing, engineer Stephen W. Smith (Smith) of GeoHydroCycle, Inc., presented a groundwater mounding analysis and a mass balance nitrate loading analysis. The mass balance analysis reflects that an effluent discharge with a nitrogen concentration of 5mg/L will result in groundwater concentrations of nitrogen in defined areas of impact—two areas identified as encompassing the down gradient effluent plumes from the point of discharge to their intersection with the Property boundary—of 4.1 mg/L and 3.9 mg/L. The analysis further modeled a discharge concentration of 10 mg/L which would result in groundwater concentrations of nitrogen in the areas of impact of 8.2 mg/L and 7.8 mg/L. A.R. pp. 13, 487-501.

7. At the April 11, 2017, hearing Scott W. Horsley (Horsley), a water resources consultant for the Abutters, presented a competing mass balance analysis which modeled an effluent discharge with a nitrogen concentration of 19 mg/L and a recharge rate of 20.28 inches per year. The analysis concluded that a under such conditions the groundwater concentrations of nitrogen at the Abutters' wells would be 11.7 mg/L and 13.0 mg/L. A.R. pp. 13, 442-447.

8. In support of the System's anticipated performance the Board was provided with a report by McGrath on the laboratory testing results for the performance of Bottomless GPC filters, dated April 24, 2017, and an opinion by Douglas Cooper, an environmental consultant, on the design on the System, dated May 2, 2017. A.R. pp. 39-48, 256-257. The McGrath report on the Bottomless GPC filters indicated that the filter technology was capable of treating wastewater with nitrogen concentrations of 18.2, 14.1, 11.3, and 8.0 mg/L such that the nitrogen concentration in the effluent was reduced to 6.0, 4.2, 4.0, and 3.6 mg/L respectively. A.R. pp. 39. The opinion by Douglas Cooper provided a favorable review of the system design and suggested that "the inclusion of the bottomless sand filter…will provide a very high quality effluent," provided that that System is properly maintained. A.R. pp. 256-257.

9. At the May 4, 2017, meeting Derrill Bazzy, project manager for the Developer, described changes to the design of the System, explaining that it had been reshaped and reoriented with the groundwater flow to provide less concentrated dispersal rates. The Board also received additional reports from Smith and Horsley. A.R. pp. 16-17. Smith's report incorporated the changes to the System and enlarged the areas of impact so that they would coincide with the nearest of the Abutters' wells. A.R. p. 246. Smith's report modeled a wastewater nitrogen concentration of 19 mg/L with a recharge rate of 24 inches per year and calculated that the nitrogen in the areas of impact would be diluted to 9.9 mg/L and that groundwater concentrations of nitrogen at the two closest Abutters' wells would be 6mg/L and 5 mg/L. A.R. pp. 246-247. Horsley's report modeled a wastewater nitrogen concentration of 25 mg/L with a recharge rate 20.28 inches per year and calculated that nitrogen concentrations at the downgradient property line would be 18.5 and 18.6 mg/L and would be 15.4 mg/L and 17.1 mg/L at two of the Abutters' wells. A.R. pp. 451-455. The May 4, 2017, meeting ended with the Board agreeing to deliberate further on the Developer's application. A.R. p. 18.

10. At the Board meeting held on June 13, 2017, the Developer's application was unanimously approved subject to a list of five conditions regarding groundwater monitoring and mitigation and incorporating conditions separately imposed by the Martha's Vineyard Commission. A.R. pp. 9-12, 22-24.

11. The Board's regulations on "Deployment of Enhanced De-Nitrification Technologies within the Lake Tashmoo and Lagoon Pond Watershed Nitrogen Management Districts" require that new wastewater treatment systems must employ "de-nitrification wastewater disposal technology that is intended to meet a nitrogen groundwater discharge standard of not more than 19mg/liter." A.R. pp. 481-483.


The Abutters are concerned that the System will result in increased nitrogen levels in their neighboring drinking wells. They seek certiorari review of the Board's grant of the Permit pursuant to G.L. c. 249, § 4, which provides:

A civil action in the nature of certiorari to correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal, may be brought 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, bylaws or regulations, in the land court…

Id. This action was properly brought in the Superior Court for the County of Dukes County. It is before Justice Robert B. Foster of the Land Court Department who has been specially assigned to sit as a Justice of the Superior Court Department in this case.

"In a review under certiorari, 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 (1997), quoting Commissioner of Rev. v. Lawrence, 379 Mass. 205 , 208 (1988). Such review is not de novo. Rather, it "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). "Under G.L. c. 249, § 4, the standard of review may vary according to the nature of the action for which review is sought." Forsyth Sch. for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211 , 219 (1989). To have the Permit annulled the Abutters "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 , 829 (2013). In applying the arbitrary and capricious test "the reviewing court examines the agency action to determine whether it was authorized by the governing statute." Fafard v. Conservation Comm'n of Reading, 41 Mass. App. Ct. 565 , 567-568 (1996). A decision is arbitrary if "the agency has acted for reasons that are extraneous to the prescriptions of the regulatory scheme, but are related, rather, to an ad hoc agenda." Id. at 568. "A decision is not arbitrary and capricious unless there is no ground which reasonable men might deem proper to support it." T.D.J Dev. Corp. v. Conservation Comm'n of N. Andover, 36 Mass. App. Ct. 124 , 128 (1994) (internal quotation omitted). Alternatively, the substantial evidence test applies "where the question [is] not the criteria to be applied but whether, within announced criteria, the determination…was supported by substantial evidence." Fafard, 41 Mass. App. Ct. at 568. "[S]ubstantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" New Boston Garden Corp. v. Board of Assessors of Boston, 383 Mass. 456 , 466 (1981), quoting Boston Edison Co. v. Board of Selectmen of Concord, 355 Mass. 79 , 92 (1968) (applying the definition of substantial evidence found in G.L. c. 30A, § 1, to an action brought pursuant to G.L. c. 249, § 4). "A finding of the board must be set aside if 'the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability of the contrary.'" Id., quoting Boston Edison Co., 355 Mass. at 92.

As a preliminary matter, the Developer challenges the Abutters' standing to seek review of the Board's grant of the Permit. To demonstrate standing to bring a certiorari action the Abutters must show that there is a "reasonable likelihood that [they have] suffered an injury to a protected legal right." Higby/Fulton Vineyard, LLC v. Board of Health of Tisbury, 70 Mass. App. Ct. 848 , 850 (2007). "Unlike in the zoning context, the [Abutters] do not enjoy presumptive standing based on their status as abutters." Hickey v. Conservation Comm'n of Dennis, 93 Mass. App. Ct. 655 , 657 (2018). The Abutters, through the reports submitted to the Board by Horsley, have raised a sufficient claim that the System approved by the Permit could result in harm to their well water. As groundwater contamination from septic systems is within the scope of harms under the purview of the Board, the Abutters have shown a reasonable likelihood that they have suffered an injury to their protected legal right to safe groundwater, giving them standing to bring this certiorari action to review the Board's grant of the Permit.

The Abutters articulate three challenges to the Board's grant of the Permit which they describe as errors of law. A legal error by the Board in granting the Permit would be arbitrary and capricious and would justify annulling the Permit. The Abutters further challenge the grant of the Permit on the grounds that substantial evidence in the record does not support the conclusion that the System will be able to maintain nitrogen concentrations at the levels required at the boundary of the Property and at least two of the Abutter's wells.

I. Legal Challenges to the Board's Grant of the Permit

Title 310 Code Mass. Regs § 15.214 (section 15.214) provides that "[n]o system serving new construction in Nitrogen Sensitive Areas designated in 310 CMR 15.215 shall be designed to receive or shall receive more than 440 gallons of design flow per day per acre except as set forth in 310 CMR 15.216 (aggregate flows) or 15.217 (enhanced nitrogen removal)." Id. The System is designed to receive 4,400 gallons of wastewater flow per day (gpd). The Property on which the System is to be sited contains 14.8 acres. It would appear, therefore, that the system meets the 440 gpd per acre limitation set forth in § 15.216. The Abutters argue that the System's design flow exceeds 440 gpd per acre because the 8.91-acre portion of the Property burdened by the Conservation Easement is improperly being used as credit land for nitrogen loading because it does not lie downgradient from the System, is prohibited by the easement instrument from serving as such credit land, and lies in a Zone I restricted area for the Project's wells.

To meet the 440 gpd per acre requirement, 310 Code Mass. Regs. § 15.216 (section 15.216) allows land in the area of a proposed septic system that is not owned by the developer to be used as "credit land," provided that the land to be credited towards the calculations meets certain requirements. Id. In other words, § 15.216 provides that, where the proposed system is to be situated on an undersized lot, a neighbor's land can, by agreement, be incorporated into the design for a proposed septic system to bring the aggregate design flow into conformity with the 440 gpd per acre requirement. The Massachusetts Department of Environmental Protection's (DEP) "Guidelines for Title 5 Aggregation of Flows and Nitrogen Loading 310 CMR 15.216" (Title 5 Guidelines) explain that "[c]redit land is land that is set-aside under a nitrogen loading restriction to compensate for septic system density greater than 440 gpd per acre where required. Credit land may be a whole parcel, a defined portion of a parcel or several parcels. Both facility and nonfacility land are factored into the calculation for the overall land area in meeting the 440 gpd per acre equivalency limitation." A.R. pp. 384-391.

The Abutters cite to language in the Title 5 Guideline which states that "[i]f the facility is in a private well area, nonfacility credit land must be…adjacent and downgradient of the impacted area of the discharge for a facility where the design flow is 2000 gpd or greater," and that "[g]enerally, land within a Zone I may be used for credit land…unless the water quality in the public water supply is 5 mg/l nitrate-nitrogen or greater." A.R. p. 390 (emphasis in original). The Abutters argue that the System does not meet the 440 gpd per acre standard because the land subject to the Conservation Easement is not downgradient of the System and therefore cannot be credit land. Further, they argue, some land on the Property not subject to the Conservation Easement is within a Zone I and may presently exceed 5 mg/L nitrogen in the groundwater, thereby disqualifying its use as credit land. A.R. pp. 23, 390, 650.

This argument misses the mark because neither the Conservation Easement land nor the other land described above is in fact credit land. It is therefore not subject to the limitations on nonfacility credit land described in the Title 5 Guidelines. Title 310 Code Mass. Regs. § 15.002 defines "facility" as "[a]ny real property (including abutting real property) and any buildings thereon, which is served, is proposed to be served, or could in the future be served, by a system or systems where: (a) legal title is held or controlled by the same owner or owners; or (b) the local Approving Authority of the Department otherwise determines such real property is in single ownership or control pursuant to 310 CMR 15.011 (aggregation)." Id. The entire 14.8 acres of the Property is owned and controlled by the Developer and is therefore facility land, not nonfacility credit land, and is therefore not subject to the limitations on nonfacility credit land cited to by the Abutters.

The Abutters also argue that the land subject to the Conservation Easement cannot be used as credit land because of the restrictions placed on it by the Exclusive Easement instrument. This argument is to no avail, again because the Developer is not seeking to classify the land in question as credit land, and further because the Exclusive Easement agreement expressly allows for the location of a septic system within the easement area. A.R. p. 33. The System is sited on 14.8 acres and therefore has a design flow of less than 440 gpd per acre as required by § 15.214. The Board's grant of the Permit was not arbitrary and capricious on the ground that the System violates § 15.214.

The Abutters next argue that the Board erred by permitting a system which is rated to release effluent with a nitrogen concentration of 25 mg/L where the Board's regulations require that such effluent have a nitrogen concentration of no more than 19 mg/L. In support of this position the Abutters point to the DEP's Provisional Use Renewal Approval (provisional approval) of the Bioclere wastewater treatment technology. A.R. 458-472. In the provisional approval, DEP states that "[t]he specific goal of the Performance Evaluation is to determine if the Technology is capable of consistently meeting the concentration limits for total nitrogen (TN) of 25 milligrams per liter (mg/L) for installations with design flows 2,000 gpd or greater but less than 10,000 gpd, in the effluent discharged to the soil absorption system (SAS)." A.R. p. 459. The DEP's provisional approval of the Bioclere technology is subject to the condition that "[t]he System shall not exceed a TN concentration of 25 mg/l in the System effluent." A.R. p. 461. The Abutters mischaracterize the DEP approval as a performance limit which the DEP has not rated the Bioclere to surpass. In the context of the approval, the DEP used 25 mg/L as the minimum performance standard for effluent nitrogen concentration which was to be tested. It mandates that the Bioclere system could not allow a concentration greater than 25 mg/L. There is nothing in the record which suggests that the Board could not permit a septic system which includes Bioclere technology where the design intended the effluent nitrogen concentration to be lower than the 25 mg/L goal set by the DEP. The question, then, is whether or not the System will actually perform as designed—that is, whether it will meet the Board's requirement of 19 mg/L. The Board's conclusion that the System will meet this standard is not subject to review under the arbitrary and capricious test but is rather reviewed for substantial evidence, as discussed below. Therefore, on its face, the Board's grant of the Permit including the application of Bioclere technology in a system rated to produce effluent nitrogen concentrations lower than 19 mg/L, as required by the Board's regulations, was not arbitrary and capricious.

The Abutters argue that the Board erred by failing to require the System to employ the best available de-nitrification technology as required by the Board's regulations. The Board's regulations require that "new on-site waste treatment systems and system upgrades which are deployed in Watershed Districts (as defined in Section 4) employ 'best available de-nitrification technology', removing significantly more wastewater nitrogen than standard Title 5 septic systems. Suitable technologies include those approved for pilot program use by the Massachusetts Department of Environmental Protection, thus enabling the Board of Health to partner with property owners and septic engineers in the in-field testing of innovative de-nitrification technologies." A.R. p. 482. The System employs both Bioclere units and Bottomless GPC filters, each of which are de-nitrification technologies that are provisionally approved by the DEP to be used in such contemplated pilot programs. A.R. pp. 61-79, 458-472. It is evident from the meeting minutes that the Board was aware of the technology being proposed for the System and that if the Permit was granted the Developer would still have to go to DEP for a pilot application for the System. A.R. p. 22. The Abutters argue that the Developer considered two different options for the System, one that would produce an effluent with a nitrogen concentration of 15 mg/L and another producing an effluent nitrogen concentration of 10 mg/L, and that the Developers chose the former, at a cost savings of $28,000. A.R. pp. 49-55. The Abutters argue that the Board erred in violation of its regulations by not requiring the more expensive system which would release an effluent with a lower nitrogen concentration.

A review of the record belies this position. As an initial matter, it is clear that the systems proposed in the budget proposal cited by the Abutters do not reflect the entire System as permitted by the Board. Included in the permitted System, but not included in the systems described in the budget proposal, are the Bottomless GPC filters which McGrath represented to the Board would result in a nitrogen concentration in the System's effluent of below 5 mg/L. It appears that the System, as designed, employs a variety of innovative wastewater treatment technologies and is congruent with the language of the Board's regulations. That another system may have been designed which releases an effluent with an even lower nitrogen concentration does not mean that the System permitted by the Board does not "employ 'best available de-nitrification technology.'" A.R. p. 482. Moreover, having considered the details of the technologies to be employed in the System, the Board granted the Permit. A "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.'" Stevens v. Sherborn Bd. of Health, 25 LCR 506 , 508 (2017), quoting Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 n.11 (2001). The Board's grant of the Permit was a reasonable interpretation and application of its regulations. It should not be disturbed for being arbitrary and capricious "unless there is no ground which reasonable men might deem proper to support it," which is not the case here. T.D.J. Dev. Corp., 36 Mass. App. Ct. at 128.

II. Substantial Evidence Challenges to the Board's Grant of the Permit

The Abutters argue that the permit must be annulled because substantial evidence in the record shows that nitrogen levels will exceed maximum contaminant levels for drinking water at the Property boundary and in at least two of the Abutters' wells. Title 310 Code Mass. Regs. § 22.06 (section 22.06) defines the maximum contaminant level for nitrogen in drinking water to be 10 mg/L. Id. The Abutters challenge the reliability and performance of the Bioclere technology and argue that the System will result in levels of nitrogen in at least two of the Abutters' wells that exceed 10 mg/L. The Board heard several times from McGrath, Smith, and Horsley, each of whom provided analysis on this issue. Smith's initial analysis modeled the downgradient nitrogen concentrations resulting if the System were to release effluent with nitrogen concentrations of 5 or 10 mg/L. In either scenario, the downgradient measurements were below 10 mg/L. Horsley's initial analysis modeled a system with an effluent nitrogen concentration of 19 mg/L—almost four times the concentration McGrath anticipates the System will release—and calculated downgradient nitrogen concentrations of 11.7 and 13 mg/L. After reconfiguring the System, Smith performed a second analysis modeling an effluent nitrogen concentration of 19 mg/L and calculated a downgradient nitrogen concentration of 9.9 mg/L with groundwater nitrogen concentrations of 5 and 6 mg/L at the Abutters' wells. Horsley's final analysis modeled an effluent nitrogen concentration of 25 mg/L—more than 5 times the level anticipate by McGrath—and calculated groundwater nitrogen concentrations at two of the Abutters' wells of 15.4 and 17.1 mg/L.

The Board was presented with one analysis depicting the anticipated performance of the System which showed that it would meet the 10 mg/L limit required by § 22.06. The Board was also presented with three analyses modeling scenarios where the effluent nitrogen concentrations released by the System were four to five times in excess of the System's anticipated performance. Smith's model showed that the Abutter's well water would still be below the maximum contaminant level set by § 22.06, if the effluent nitrogen concentration from the System was 19 mg/L. Each of Horsley's models showed that the nitrogen concentrations in the Abutters' well water would exceed 10 mg/L.

The Abutters do not contend that if the System operates as designed their well water will be contaminated. Rather, they argue that if the effluent nitrogen concentrations from the System are in excess of 19 mg/L their well water may be compromised. To this end the Abutters provided the Board with reports on the performance of septic systems which use Bioclere technology. A.R. pp. 335-371, 423-432. The documentation shows that in a variety of applications Bioclere systems have had mixed success over the past ten years. In the reports presented to the Board, no more than 77% of Bioclere systems met the 25 mg/L target for the provisional permitting of the technology by the DEP. A.R. pp. 335-371, 432-432.

While the System incorporates the disputed Bioclere technology, it also relies on several additional stages of nitrogen removal technology which are expected to reduce the nitrogen concentration in the System's effluent to levels far below those contemplated by the DEP's provisional approval of the Bioclere technology. A.R. pp. 13, 39-48, 243-245, 256-257. There is substantial evidence in the record to support a finding that the particular application of various technologies used in the System will maintain the anticipated level of nitrogen in the System's effluent. A.R. pp. 13, 39-48, 243-245, 256-257. That the System will be able to operate without harming the Abutter's well water is supported by the evidence in the Administrative Record. A reasonable mind might review the mass balance analyses and accept their findings as adequate to support the conclusion that the System will not cause nitrogen concentrations in the Abutters' wells to exceed 10 mg/L—even in a situation where the System is failing to operate as designed. The Board's grant of the Permit was not arbitrary and capricious, is supported by substantial evidence in the Administrative Record, and must be affirmed.

The Abutters advance another argument which is seemingly at odds with their position that the Permit should be annulled. The Abutters argue that the Developer has failed to comply with the conditions of the Permit because it has not installed or tested two additional monitoring wells. The Abutters ask the court to compel the Developer to install the wells and to remand this matter to the Board so that it may consider the results of the groundwater testing. This certiorari action only seeks review of the Board's grant of the Permit. Any questions relating to the Developer's compliance with the Permit are not properly before this court. Moreover, the conditions in question require the installation of three groundwater monitoring wells and further that "[p]rior to the startup of the wastewater disposal system…IHT shall cause (a) all monitoring wells located on IHT's property and (b) all private wells on adjacent lots within 500' of IHT's eastern property line to be sampled twice…If the sampling demonstrates nitrogen levels in excess of 5 mg/L in any well sampled pursuant to Condition 2, the Board of health shall take appropriate action with respect to any existing conditions at the sampled private wells." A.R. p. 9. There is no time requirement for compliance with the condition requiring the installation of additional monitoring wells other than that they must be able to be tested prior to the startup of the System. There is no basis for requiring the Developer to comply with the conditions of the Permit prior to a final adjudication of its validity.


For the foregoing reasons, the decision of the Board granting the Permit was not arbitrary and capricious and is supported by substantial evidence in the Administrative Record. The Plaintiffs' Motion for Judgment on the Pleadings is DENIED. Judgment shall enter dismissing the Complaint and affirming the Permit.