From Casetext: Smarter Legal Research

Adler v. Bd. of Health of Westport

Appeals Court of Massachusetts.
Jun 21, 2012
969 N.E.2d 748 (Mass. App. Ct. 2012)

Opinion

No. 11–P–1441.

2012-06-21

Paul D. ADLER, trustee v. BOARD OF HEALTH OF WESTPORT.


By the Court (MILLS, BROWN & SIKORA, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff owns coastal property and has plans to erect a single-family dwelling there. He seeks an exception from all the septic system requirements of Title V of the State Environmental Code, 310 Code Mass. Regs. §§ 15.00 et seq. (2006) (Title V). He contends that he is merely replacing a prior structure on the locus. The Westport board of health (board) denied the plaintiff the right to the “local upgrade” exception under Title V.

On appeal, the plaintiff challenges a Superior Court judgment upholding the board's denial of his application to upgrade his septic system. The plaintiff argues that the trial judge (1) erred in finding that his proposal was “new construction” under 310 Code Mass. Regs. § 15.002 (2006) and (2) erred in his interpretation of abandonment under 310 Code Mass. Regs. § 15.354(1) (2006). We affirm. This was an action in the nature of certiorari. The scope of judicial review of an action in the nature of certiorari under G.L.c. 249, § 4, is to “correct only a substantial error of law, evidenced by the record, which adversely affects a material right of the plaintiff.” Massachusetts Bay Transp. Authy. v. Auditor of the Commonwealth, 430 Mass. 783, 790 (2000) (citation omitted). We are “not authorized ‘to make a de novo determination of the facts, to make different credibility choices, or to draw different inferences from the facts found by the [board].’ “ Doherty v. Retirement Bd. of Medford, 425 Mass. 130, 141 (1997), quoting from Pyramid Co. v. Architectural Barriers Bd., 403 Mass. 126, 130 (1988).

Deciding as we do, we need not discuss the additional two claims, as they are based on the premise that the plaintiff's proposal qualifies as a local upgrade.

Upon review of the record on appeal, we conclude that the Superior Court judge could correctly conclude that there is sufficient evidence to support the board's decision. “[I]f the agency has, in the discretionary exercise of its expertise, made a choice between two fairly conflicting views, and its selection reflects reasonable evidence, a court may not displace [the agency's] choice.” Conservation Commn. of Falmouth v. Pacheco, 49 Mass.App.Ct. 737, 739–740 n. 3 (2000) (internal quotation marks and citation omitted).

The question presented is whether, in light of the evidence before the board, the board erred in finding that the plaintiff's proposal entailed new construction and thus was subject to all the requirements of Title V. Title V requires specific compliance for any new construction, upgrade, or expansion of septic systems. If the nonconforming system was built before March 31, 1995, it is not considered new construction “provided there is no increase in design flow [and] no increase in the number of dwellings.” 310 Code Mass. Regs. § 15.002. Eligible nonconforming systems must receive local upgrade approval by the approval authority, in this case, the board. 310 Code Mass. Regs. §§ 15.401— 15.405 (2006).

New construction is defined, in part, as
“construction of a new building for which an occupancy permit is required or an increase in the actual or design flow to any ... nonconforming system or an increase in the design flow to any system above the existing approved capacity. New construction shall not include replacement or repair of a building in existence as of March 31, 1995.”

310 Code Mass. Regs. § 15.002.

Upon remand, the board was required to make findings as to whether a building existed on the property on March 31, 1995. At the rehearing, the board did not dispute the presence of a building before and after the date of March 31, 1995. However, the board then made a series of findings, concluding that there was no residential use of the property. Specifically, the board found that (1) seasonal trailers were permitted on the property; (2) the seasonal trailers were not serviced by the existing cesspool; (3) no permanent water supply to the property has existed since 1981; and (4) the building destroyed in 1991 by Hurricane Bob was a drive-in restaurant with no public restrooms. The board reasoned that the issuance of numerous seasonal trailer permits for the property supported the board's finding that the restaurant contained no residential component. The board relied on the seasonal trailer permits, tax cards, letters, and minutes from prior meetings for evidentiary support. The board then concluded that the plaintiff's proposal to construct a one-bedroom house would increase the number of dwelling units from zero to one. As a result, the board determined that the plaintiff's proposal was new construction and thus ineligible for the “local upgrade” exception.

The plaintiff provided an aerial photograph taken on September 11, 1995, showing a substantially damaged building on the property.

The board found that the prior structure on the locus was a restaurant (or clam shack), not a dwelling; that the structure had for its septic system a cesspool that had been abandoned in 1985, with no alternative system installed (i.e., there is no existing system to upgrade); and that the building on the locus was virtually destroyed in 1991 by Hurricane Bob, was not occupied after that, and was demolished in 2000. Applying the pertinent regulations, the judge ruled the board was reasonable in deciding that the locus did not qualify for the “local upgrade” exception given, among other reasons, that the plaintiff would be adding a dwelling unit. The plaintiff's proposed building for the locus would be, therefore, new construction, and subject to all the requirements of Title V for new construction.

The plaintiff's contention that there is other evidence to dispute the board's findings is unavailing. Accordingly, we are not persuaded that the board committed error in concluding that the plaintiff's proposal would increase the design flow.

Notwithstanding, we would be remiss not to acknowledge inappropriate behavior as demonstrated by the board vice chairman, who made several statements that lacked support and appeared to indicate bias. Compare American Employers' Ins. Co. v. Commissioner of Ins., 335 Mass. 748, 753 (1957) (“[A] public officer does not become disqualified to act merely because he preferred the charges, or has personal knowledge of them”).

The plaintiff also argues that both the board and the Superior Court judge incorrectly interpreted abandonment pursuant to 310 Code Mass. Regs. § 15.354(1). The board found that the plaintiff's system was no longer in use, as the building became uninhabitable in 1991 and was removed in 2000. The board thus concluded that the system had been abandoned. See Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 618 (1997) (“In general, we grant substantial deference to an interpretation of a [regulation] by the administrative agency charged with its administration”).

“Whenever the use of a system is discontinued following connection to a municipal or private sanitary sewer or shared on-site system or following condemnation or demolition of a building served by the system, the system shall be considered abandoned and any further use of the system for any purpose shall be prohibited unless, after inspection, the Approving Authority determines the system is in compliance or can be brought into compliance with 310 CMR 15.000.” 310 Code Mass. Regs. § 15.354(1).

However, in 2005, the Westport zoning board of appeals (ZBA) found that the property had not been abandoned. The board correctly argues that the ZBA did not have the authority to decide abandonment as it relates to septic systems. Additionally, the ZBA applies standards that differ from Title V requirements. Under the Zoning Act, G.L.c. 40A, § 6, mere nonuse of a prior nonconforming use does not establish abandonment. See Derby Ref. Co. v. Chelsea, 407 Mass. 703, 708–709 (1990). Rather, abandonment is established where there was the “intent to abandon and ... voluntary conduct which carries the implication of abandonment.” Cape Resort Hotels, Inc. v. Alcoholic Lic. Bd. of Falmouth, 385 Mass. 205, 221 (1982). In contrast, Title V explicitly refers to the use of the septic system to determine whether it has been abandoned.

The plaintiff also argues that his proposal seeks to replace and not further use the original septic system. However, the board concluded that based on the evidence before it, the system was not entitled to protection under any of the Title V exceptions.

Judgment affirmed.


Summaries of

Adler v. Bd. of Health of Westport

Appeals Court of Massachusetts.
Jun 21, 2012
969 N.E.2d 748 (Mass. App. Ct. 2012)
Case details for

Adler v. Bd. of Health of Westport

Case Details

Full title:Paul D. ADLER, trustee v. BOARD OF HEALTH OF WESTPORT.

Court:Appeals Court of Massachusetts.

Date published: Jun 21, 2012

Citations

969 N.E.2d 748 (Mass. App. Ct. 2012)
82 Mass. App. Ct. 1102