Local Regulation Improperly Waived in the Face of Evidence of Threat to Public Health

In a recent ruling sure to embolden municipalities seeking to block affordable housing projects, the Massachusetts Appeals Court revoked the approval of a Comprehensive Permit issued under the Anti-Snob Zoning Act, G.L. c.40B, §§ 20–23(Act) on the grounds that the local board of appeals erred in waiving certain waste disposal limitations in a local bylaw where there was evidence that the proposed project’s waste disposal system would  have caused elevated nitrogen levels in the private wells on the abutting properties. Reynolds v. Zoning Board of Appeals of Stow, 88 Mass. App. Ct. 339 (2015).

Affordable Housing in Stow

The Town of Stow and the region in general have a need for affordable elderly housing. Stow’s subsidized housing stock is roughly six percent of its total housing stock. Stow Elderly Housing Corporation (SEHC) is a nonprofit owner, operator and developer of affordable housing. In 1983, SEHC obtained a Comprehensive Permit from the Stow Zoning Board of Appeals (Board) to construct Plantation Apartments I (Plantation I), a 55-unit low-income senior apartment complex. More recently, SEHC sought and received a Comprehensive Permit for “Plantation II,” 37 units of low and moderate income elderly housing on a two-acre parcel (locus) in a residential zoning district. Eighty percent of the locus is also situated in the local water resource overlay protection district (WRPD) intended “to protect, preserve and maintain the existing and potential ground water supply and ground water recharge areas within the town…”

The plaintiff, whose home abuts the locus, appealed the Board’s Plantation II decision to the Superior Court (Trial Court). His property and those of his neighbors are served by private drinking water wells and private septic systems located on their properties.

Comprehensive Permit for the Project

The Board, in granting the Comprehensive Permit, approved of the project being serviced by a private, on-site sewage disposal system located in the WRPD. This was made possible by the grant of waivers by the Board from local regulations governing sewage disposal in the WRPD.  Stow’s regulations, which are more stringent than those of the Massachusetts Department of Environmental Protection’s (DEP), prohibit uses generating “on-site sewage disposal exceeding 110 gallons per day per 10,000 square feet of lot area.”

On appeal from the Board’s decision, the Trial Court found that the proposed project will generate, on a daily basis, six times the level of sewage and other wastewater allowed in the WRPD under the local regulation. On the strength of plaintiff’s evidence, the Trial Court also found it “more likely than not” that the project will cause excessive nitrogen levels at the neighboring drinking water wells. Nonetheless, the Trial Court concluded, the Comprehensive Permit was properly granted since the sewage disposal system will meet all applicable State regulations, which do not, in these circumstances, require proof that adjacent wells will not have elevated nitrogen levels as a result.

Noncompliance with State Regulation Dooms Waiver of Local Regulation

Turning to the Board's decision to waive the local regulation, the Appeals Court assumed for purposes of its decision that the DEP’s more restrictive limitations on discharges for septic systems in nitrogen sensitive areas did not apply to the locus and went on to address the question whether it was reasonable for the Board to waive the local bylaw provision.

As is often the case under c. 40B, the Board relied on the proposition that because the waste disposal system will comply with DEP regulations, it was lawful to issue the Comprehensive Permit. The Trial Court agreed. After acknowledging that “in many instances, a condition that requires the developer to meet State waste removal system standards is sufficient to protect local concerns,” the Reynolds Court cautioned that this “is not necessarily the end of the inquiry.” Citing earlier c. 40B case law, the Court “made clear that it was open to the board to justify denying an application for a comprehensive permit by identifying a health or other local concern that (i) supports the denial, (ii) is not adequately addressed by compliance with State standards, and (iii) outweighs the regional housing need.”

In Reynolds, the plaintiff not only demonstrated that the project violated the local bylaw, but also presented evidence and persuaded the Trial Court that “it is more likely than not” that the project will cause excessive nitrogen levels at the plaintiff's neighbor's well. For his part, SEHC's expert testified that he did not investigate whether the proposed system would result in elevated nitrogen in the groundwater reaching abutting wells. Instead, he relied on the presumption that if a septic system is designed in conformance with State standards, the facility is presumed to protect public health.

The Court found this argument fatally flawed where the plaintiff had presented evidence rebutting any such presumption. In other words, “The judge's finding that the system would contaminate the groundwater such that unacceptable levels of nitrogen would reach an abutter's well demonstrates that compliance with the State standards… are insufficient to protect the groundwater from being contaminated by the proposed project.” Thus, the plaintiff has identified a local health issue – maintenance of clean groundwater servicing local private wells – not adequately protected by compliance with a State standard.

Weighing the local concern of elevated nitrogen levels in the groundwater reaching an abutter's well, against the local need for affordable housing, the Court noted it was unaware of any instance of a project approval that would cause nitrogen levels or other contaminants in a neighboring private well to exceed DEP recommendations. The Court concluded that, “When faced with evidence that one or more adjacent private wells will have elevated nitrogen levels and there is no public water source in the area and no proposal to provide the abutter with clean water, it is unreasonable to conclude that the local need for affordable housing outweighs the health concerns of existing abutters. In these circumstances, the board's waiver of the bylaw provision limiting the flow into waste disposal systems within the WRPD was unreasonable.”

The Comprehensive Permit was revoked and, as of this writing, an application for further appellate review is pending before the Massachusetts Supreme Judicial Court.