The opinion
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14-P-663 Appeals Court
GREGORY REYNOLDS vs. ZONING BOARD OF APPEALS OF STOW &
another.1
No. 14-P-663.
Middlesex. January 13, 2015. - September 15, 2015.
Present: Trainor, Vuono, Hanlon, JJ.
Housing. Zoning, Board of appeals: decision; Low and moderate
income housing; Comprehensive permit. Practice, Civil,
Standing.
Civil action commenced in the Superior Court Department on
November 23, 2010.
The case was heard by Kenneth W. Salinger, J.
Dennis A. Murphy (Daniel C. Hill with him) for the
plaintiff.
David S. Weiss (Elizabeth Levine with him) for Stow Elderly
Housing Corporation.
Barbara Huggins for zoning board of appeals of Stow.
TRAINOR, J. The plaintiff appeals from a Superior Court
judgment affirming a comprehensive permit issued pursuant to the
Comprehensive Permit Act, G. L. c. 40B, §§ 20-23 (Act), by the
1
Stow Elderly Housing Corporation.
2
zoning board of appeals (board) of Stow (town) to the Stow
Elderly Housing Corporation (SEHC) for the construction of a low
and moderate income elderly housing project. The plaintiff, a
southeast abutter of the locus, contended, among other things,
that the private wells on his and his neighbors' properties will
have elevated nitrogen levels due to the discharge into the
waste disposal system designed for the locus and, therefore, it
was unreasonable for the board to waive certain waste disposal
limitations contained in the town bylaw. Stow, Mass., Zoning
Bylaw (including amendments through May 3, 2010) (bylaw). For
the reasons set forth below, we reverse.
1. Background. a. Stow Elderly Housing Corporation and
Plantation I. SEHC is a nonprofit corporation founded in 1981
for the primary purpose of developing, owning, and operating
affordable housing. In 1983, SEHC obtained a comprehensive
permit under the Act to construct Plantation Apartments I
(Plantation I), a fifty-unit low-income senior apartment complex
on a lot that is adjacent to the locus. Plantation I is served
by a private well and a private septic system on the property.
Although SEHC was the original owner and developer of Plantation
I, in 2004, it transferred ownership of the buildings and
granted a long-term lease of the land to Plantation Apartments
Limited Partnership, while retaining the fee in the land. SEHC
3
owns and controls the limited partnership's general partner, and
was the initial limited partner.2
b. Plan for the locus. SEHC is under agreement to
purchase an approximately two and one-half acre lot (locus)
improved by a single-family home and barn located adjacent to
Plantation I. SEHC plans to subdivide the property creating an
approximately one-half acre parcel including the existing
single-family home and barn (lot 1), an approximately two acre
lot on which it proposes to construct "Plantation II,"
consisting of one three-story building containing thirty-seven
one-bedroom units of elderly housing, a fifty-seat function
hall, and administrative offices (lot 2). The application for
the comprehensive permit requested numerous waivers of the bylaw
along with amendments to the comprehensive permit for Plantation
I.
The locus is situated in the town's residential district
and eighty percent of the locus is also situated in the town's
water resource protection district (WRPD), an overlay district.
A multi-unit dwelling containing thirty-seven units is not
permitted in the residential district.3 Following the
2
Shortly after creation of the limited partnership,
Massachusetts Housing Equity Fund XLLC was substituted as
limited partner.
3
Single-family residences are allowed as of right in the
residential district. Multi-family dwellings are permitted in
4
subdivision of the locus, lot 2 will have no frontage on a
public way. SEHC proposes to access the property over an
undersized driveway located on Plantation I. The board granted
bylaw waivers including, for example, as to use, lot size,
frontage, and access requirements.
Notwithstanding that regulations require preliminary plans
submitted with a comprehensive permit application to identify
the water supply that will serve the project, SEHC has not
identified its water source. Its application suggests several
possibilities, including private wells from other nearby
developments or a private water company. The comprehensive
permit issued by the board includes condition 4.4, which
provides that "[p]rior to the issuance of a building permit for
the Elderly Housing, Applicant shall have obtained a permit or
approval(s) to connect the Elderly Housing to a public water
supply approved in accordance with then effective regulations
the residential district with a special permit but, by
definition, they are limited to no more than four units. Bylaw
§ 1.3. "Independent Adult Residences," described in § 8.7 of
the bylaw as "provid[ing] the opportunity for the development of
housing most beneficial for the Senior and Elder population of
Stow at greater density than would normally be allowed," are
allowed only in the business district by special permit. Even
duplexes, which are allowed in the residential district by
special permit, "[u]nder no circumstances" will be permitted for
projects sited in whole or in part in the WRPD. Bylaw § 8.2.2.
As § 3.10.1 of the bylaw excludes any use not expressly
permitted in the table of uses, the proposed development is not
a permitted use in the residential district.
5
promulgated by the Massachusetts Department of Environmental
Protection [(DEP)]."
The record reflects that there is no public water or sewer
system that serves the locus or its neighboring properties. The
locus will be serviced by a private, on-site sewage disposal
system. The sewage disposal system will be located in the WRPD.
Indeed, the project's engineer testified at trial that all of
the areas to be developed are located in the WRPD. The intent
of the WRPD is "to protect, preserve and maintain the existing
and potential GROUND WATER supply and GROUND WATER RECHARGE
AREAS within the town; to preserve and protect present and
potential sources of GROUND WATER supply for the public health
and safety; and to conserve the natural resources of the town."
Bylaw § 5.2.
The town adopted sewage disposal system regulations for the
WRPD that are more protective than State standards.4 In addition
to dimensional zoning waivers, SEHC sought and was granted
waivers from the WRPD regulations, including the prohibition of
uses generating "on-site sewage disposal exceeding 110 gallons
4
There is an argument to be made that certain Department of
Environmental Protection regulations are equivalent to the
bylaw, but as discussed below, the judge found that those
particular regulations do not apply to the locus.
6
per day per 10,000 square feet of LOT area."5 Bylaw
§ 5.2.1.1(2). The judge found that the proposed project will
generate approximately 5,500 gallons of sewage and other
wastewater per day. According to the judge, that translates to
approximately 700 gallons per day per 10,000 square feet of lot
area, which exceeds WRPD's restriction by over six times.
The plaintiff introduced evidence that his well and those
of his neighbors would have elevated nitrogen levels due to the
proposed development. The judge rejected the evidence that
elevated nitrogen would reach the plaintiff's well, but
specifically found "it is more likely than not that the Project
will cause nitrogen levels to exceed 10 [parts per million] at
the drinking water well serving 37 DeVincent Drive [the
plaintiff's neighbor]."6 The groundwater quality standard is
10mg/l total nitrogen and 10mg/l nitrate-nitrogen at the
boundary or nearest downgradient sensitive receptor.7 The
board's consultant recommended that "the applicant provide
5
Additional amounts may be permitted by special permit for
uses permitted in the underlying district. Bylaw § 5.2.2.3.
6
The judge's findings do not address the harm arising from
elevated nitrogen levels. There was uncontroverted evidence,
however, that elevated levels of nitrogen in the water, alone,
are a public health threat and possibly indicative of other
pollutants.
7
See 310 Code Mass. Regs. § 22.06(2)(h), (i) (2008);
Guidelines for Title 5, Aggregation of Flows and Nitrogen
Loading, Department of Environmental Protection (revised
6/3/09).
7
documentation that the groundwater will meet drinking water
standards at the property lines as the abutters are served by
on-site wells unless it is the intent to tie them into a public
drinking water supply." This recommendation was not adopted by
the board. The judge concluded, however, that the comprehensive
permit properly was granted because the sewage disposal system,
as designed, 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.
The board also waived that section of the bylaw that
prohibits development in the WRPD that renders more than ten
percent of a site impervious. Bylaw § 5.2.1.1(8). As proposed
and approved, the project will render impervious approximately
forty-two percent of the property located in the WRPD. The
judge found, however, that the stormwater management system will
direct precipitation falling on impervious areas to underground
infiltration beds from which it will percolate into the ground
and be available to recharge the groundwater. In fact, the
judge found that there will be a slight increase of groundwater
recharge compared to predevelopment conditions and concluded
that the local concern underlying § 5.2.1.1(8) will be met.
Although the board's consultant recommended pretreatment for the
reduction of total suspended solids prior to discharge into the
8
recharge area and an oil and grease separator chamber, these
recommendations were not adopted by the board.8
Finally, the board waived the board of health regulation
requiring septic systems to be designed to handle 150 percent of
the estimated daily flow. As designed, the system serving
Plantation II can handle only 100 percent of the estimated daily
flow.
c. Need for low income elderly housing. One hundred
percent of the proposed units will qualify as "low or moderate
income housing." There is no doubt that the town and the region
in general have a need for affordable elderly housing. Indeed,
the application suggests the town's subsidized housing stock
comprises only six and one-half percent of its total housing
stock, and the parties stipulated that at the time of the
application, the town's G. L. c. 40B subsidized housing
8
Condition 4.7 of the comprehensive permit requires
compliance with DEP regulations and standards governing the
management of stormwater runoff. Notwithstanding this express
condition, SEHC's expert took the position at trial that because
there is to be no development within 100 feet of wetlands,
compliance with DEP regulations is not required. The judge
agreed and concluded that whether the project complies with DEP
stormwater rules or polices is not relevant. The plaintiff does
not pursue this argument on appeal. We note, however, that
boards may impose conditions that do not render a project
uneconomic. See G. L. c. 40B, §§ 21-23; Board of Appeals of
Hanover v. Housing Appeals Comm., 363 Mass. 339, 373 (1973).
Particularly where the board is waiving local, more restrictive
components of its bylaw, it may well have concluded that
compliance with DEP stormwater regulations is necessary to
protect the groundwater.
9
inventory was less than ten percent. In appeals before the
Housing Appeals Committee, there exists a rebuttable presumption
that there is a substantial housing need that outweighs local
concerns upon proof that a municipality has failed to satisfy
affordable housing goals. 760 Code Mass. Regs. § 56.07(3)(a)
(2008).
d. Neighborhood properties. The plaintiff's home abuts
the locus to the southeast. His property and those of his
neighbors are served by private wells and private septic systems
located on their properties. As the plaintiff and his neighbors
rely on these wells for their drinking water, the record
supports the inference that the area at issue, including the
locus and the neighboring residential homes, is dependent on
clean groundwater.
2. Discussion. a. The Comprehensive Permit Act and
standing. Several cases have described the provisions of the
Act, G. L. c. 40B, §§ 20-23, sometimes referred to as the anti-
snob zoning act. See Zoning Bd. of Appeals of Lunenburg v.
Housing Appeals Comm., 464 Mass. 38, 39-40 (2013). See also
Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass.
339, 345-355 (1973); Zoning Bd. of Appeals of Greenfield v.
Housing Appeals Comm., 15 Mass. App. Ct. 553, 555-557 (1983).
For present purposes, we note that "[w]e have long recognized
that the Legislature's intent in enacting [the act] is 'to
10
provide relief from exclusionary zoning practices which
prevented the construction of badly needed low and moderate
income housing' in the Commonwealth." Zoning Bd. of Appeals of
Lunenburg v. Housing Appeals Comm., supra at 40, quoting from
Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20,
28-29 (2006). Thus, the Legislature has provided a streamlined
application process to a single local board which is authorized
to waive local requirements and regulations, including zoning
ordinances or by-laws, which are not "consistent with local
needs." Board of Appeals of Hanover v. Housing Appeals Comm.,
supra at 355. "'Consistent with local needs' is a term of art
under G. L. c. 40B, § 20, defined as follows: '[R]equirements
and regulations shall be considered consistent with local needs
if they are reasonable in view of the regional need for low and
moderate income housing with the number of low income persons in
the city or town affected and the need to protect the health or
safety of the occupants of the proposed housing or of the
residents of the city or town, to promote better site and
building design in relation to the surroundings, or to preserve
open spaces, and if such requirements and regulations are
applied as equally as possible to subsidized and unsubsidized
housing.'" Zoning Bd. of Appeals of Lunenburg v. Housing
Appeals Comm., supra at 41. On an abutter's appeal from a local
board's grant of a comprehensive permit, the board's decision
11
"cannot be disturbed unless it is based on a legally untenable
ground, or is unreasonable, whimsical, capricious or arbitrary."
Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81, 96
(2007) (quotation omitted).9
Pursuant to G. L. c. 40B, § 21, a person aggrieved by the
board's decision may appeal pursuant to G. L. c. 40A, § 17, to
the Superior Court.10 Many of the oft-cited parameters for
"aggrieved-person" status applicable in zoning appeals apply to
appeals from a comprehensive permit. Abutters have the benefit
of a presumption of aggrievement, but if challenged by evidence
warranting a contrary finding, the plaintiff must prove standing
by introducing credible evidence of an injury special and
different from the concerns of the rest of the community.
9
Where a local board of appeals denies an application for a
comprehensive permit, the appellate route is to the Housing
Appeals Committee (HAC) for a de novo review to determine
whether the board's decision is "reasonable and consistent with
local needs." G. L. c. 40B, § 23, inserted by St. 1969, c. 774,
§ 1. Even where a municipality, as here, "has not met its
minimum housing obligation, HAC may still uphold denial of the
permit as reasonable and consistent with local needs if the
community's need for low or moderate income housing is
outweighed by valid planning objections to the proposal based on
considerations such as health, site, design, and the need to
preserve open space. However, a municipality's failure to meet
its minimum housing obligation provide[s] compelling evidence
that the regional need for housing does in fact outweigh the
objections to the proposal." Zoning Bd. of Appeals of
Greenfield v. Housing Appeals Comm., supra at 557 (quotations
and citations omitted).
10
Persons aggrieved may also appeal to the Land Court or
the Housing Court. G. L. c. 40A, § 17.
12
Jepson v. Zoning Bd. of Appeals of Ipswich, supra at 88-89.
"Once a defendant challenges the plaintiff's standing and offers
evidence to support the challenge . . . the jurisdictional issue
is to be decided on the basis of the evidence with no benefit to
the plaintiff from the presumption." Id. at 89 (quotations
omitted). "[A] review of standing based on 'all the evidence'
does not require that the factfinder ultimately find a
plaintiff's allegations meritorious. To do so would be to deny
standing, after the fact, to any unsuccessful plaintiff." Id.
at 91, quoting from Marashlian v. Zoning Bd. of Appeals of
Newburyport, 421 Mass. 719, 721 (1996). Thus, "[t]he 'findings
of fact' a judge is required to make when standing is at issue
. . . differ from the 'findings of fact' the judge must make in
connection with a trial on the merits. Standing is the gateway
through which one must pass en route to an inquiry on the
merits. When the factual inquiry focuses on standing,
therefore, a plaintiff is not required to prove by a
preponderance of the evidence that his or her claims of
particularized or special injury are true. 'Rather, the
plaintiff must put forth credible evidence to substantiate his
allegations. [It is] in this context [that] standing [is]
essentially a question of fact for the trial judge.'" Butler v.
Waltham, 63 Mass. App. Ct. 435, 440-441 (2005), quoting from
Marashlian v. Zoning Bd. of Appeals of Newburyport, supra.
13
SEHC argues that although the plaintiff supported his claim
of standing with expert testimony, because the judge ultimately
rejected the evidence that the plaintiff's well would have
elevated nitrogen levels, while adopting evidence that an
abutter's well will have elevated nitrogen levels, the plaintiff
lacks standing to pursue this appeal. The Supreme Judicial
Court has rejected similar arguments in Marashlian v. Board of
Appeals of Newburyport, supra at 721-723, and Jepson v. Zoning
Bd. of Appeals of Ipswich, supra at 89-91. Having presented
credible evidence of injury to legal rights of the type intended
to be protected by the Act, that the judge ultimately found that
the elevated nitrogen would not reach the plaintiff's well goes
to his success on the merits and not his ability to challenge
the acts of the board. See id. at 91. See also Butler v.
Waltham, supra at 440-442.
b. Waste disposal system. On appeal, the plaintiff does
not attack the obvious density issues of the project, which
might readily call into play the anti-snobbery goals of the Act.
Rather, his arguments focus on the impact on the groundwater
serving his and his neighbors' property. Leaving aside the
plaintiff's arguments related to SEHC's failure to identify its
water source,11 we turn directly to the board's decision to waive
11
SEHC contends that its failure to identify its water
source is a minor omission and the board's condition that it
14
its limitation on the amount of sewage that may be introduced
into a waste disposal system in the WRPD.
The gist of the judge's decision is that because the system
is designed to comply with applicable DEP regulations, the board
did not err in granting the comprehensive permit. Generally,
DEP does not limit discharge into waste disposal systems
servicing less than 10,000 gallons per day,12 unless the system
is in certain "nitrogen sensitive" areas. 310 Code Mass. Regs.
§§ 15.214-15.216 (2006). The defendants insist, and the judge
agreed, that the State standard for "nitrogen sensitive areas,"
connect the development to an appropriate public water source
adequately addresses its omission. While we cannot say failing
to identify a project's water source in a comprehensive permit
application may never be a minor omission, we are skeptical that
in the circumstances of this case it constitutes a minor
admission. SEHC could not be unaware that the water supply for
this particular project would be a major concern for the town
and abutters. The appropriate waste disposal requirements in
this case turn, in part, on the source of the project's water
supply. It is difficult to conceive that the town boards are
utterly unconcerned as to the source of the water or the
mechanism of delivery to the locus, which will be accessed by an
undersized driveway. In its brief, SEHC continues to assert
that it may acquire its water from a local private company,
private wells on adjacent property, or private wells some
distance from the locus. It has not eliminated circumstances
where the water source reasonably could be considered to be
drawn from the locus, particularly where SEHC owns the property
on which Plantation I exists. Moreover, the board's condition
that the locus be connected to a "public" water supply does not
appear to have eliminated private wells from consideration.
12
Pursuant to 314 Code Mass. Regs. §§ 5.00 (2009), a
groundwater discharge permit is generally required for a
wastewater disposal system discharging greater than 10,000
gallons per day.
15
which would provide roughly equivalent flow limitations as
provided in the local regulation for the WRPD, does not apply in
these circumstances because SEHC does not propose both an on-
site well and on-site waste disposal system and the locus is not
located in any of the sites identified in the regulations.13 It
is not so clear to us that the stricter DEP requirements do not
apply here where the area abutting the locus has both on-site
wells and on-site waste disposal systems, the actual source of
the locus's water supply has not been identified, and SEHC owns
an abutting property that contains a fifty-unit apartment
complex serviced by an on-site well and on-site waste disposal
system.14 DEP has not yet had the opportunity to weigh in on the
13
The regulation provides that "[n]o system serving new
construction in areas where the use of both on-site systems and
drinking water supply wells is proposed to serve the facility
shall be designed to receive or shall receive more than 440
gallons of design flow per day per acre from residential uses
except as set forth at 310 [Code Mass. Regs. §] 15.216
(aggregate flows) or [§] 15.217 (enhanced nitrogen removal)"
(emphasis supplied). 310 Code Mass. Regs. § 15.214(2) (2006).
The loading restrictions also apply to "Interim Wellhead
Protection Areas and Department approved Zone IIs of public
water supplies" and designated nitrogen-sensitive embayments.
310 Code Mass. Regs. § 15.215 (2006).
14
Under principles of merger existing even prior to our
current zoning enabling act, "[a]djacent lots in common
ownership will normally be treated as a single lot for zoning
purposes so as to minimize nonconformities." Preston v. Board
of Appeals of Hull, 51 Mass. App. Ct. 236, 238 (2001), quoting
from Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct.
521, 522 (1987). Whether the common-law merger doctrine would
apply here has not been raised, but DEP's regulations
incorporate a similar theory. The regulations define "facility"
16
issue, but at least one of the board's consultants, as well as
the plaintiff's expert, opined that the more restrictive,
"nitrogen sensitive," DEP requirements would have to be met.
Nonetheless, for purposes of this appeal, we accept the judge's
conclusion that the more restrictive DEP requirements do not
apply to the locus and the State regulations do not limit
discharge for systems, such as that proposed, that handle less
than 10,000 gallons per day. Thus, the question is whether, in
these circumstances, presuming the system meets other applicable
State standards, it was reasonable for the board to waive the
local, more restrictive, provisions of the bylaw.
The judge relied on Zoning Bd. of Appeals of Holliston v.
Housing Appeals Comm., 80 Mass. App. Ct. 406, 416 & n.9 (2011)
(Holliston), for the proposition that because the waste disposal
as "[a]ny real property (including any 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 or
the Department otherwise determines such real property is in
single ownership or control pursuant to 310 [Code Mass. Regs. §]
15.011 (aggregation)." 310 Code Mass. Regs. § 15.002 (2006).
In addition, 310 Code Mass. Regs. § 15.011 (2006) provides
further guidance for making the determination whether facilities
are in separate ownership or control for purposes of 310 Code
Mass. Regs. §§ 15.000 (2006). That SEHC owns the land on which
Plantation I has been constructed and is under agreement to
purchase the land for Plantation II, may well be enough for DEP
to conclude that Plantation I and Plantation II should be
treated as a single facility for the purposes of §§ 15.000,
notwithstanding that there may be some organizational
differences between the two entities.
17
system will comply with DEP regulations, it was lawful to issue
the comprehensive permit. It is true that our appellate courts
have upheld permits issued where wastewater disposal or
stormwater discharge plans were not finalized but approval was
conditioned on meeting State requirements. See Board of Appeals
of Hanover v. Housing Appeals Comm., 363 Mass. at 381;
Holliston, supra at 416. We have little doubt that, in many
instances, a condition that requires the developer to meet State
waste removal system standards is sufficient to protect local
concerns. Compliance with State standards, however, is not
necessarily the end of the inquiry.
In Holliston, we 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.
See id. at 417-419. In Holliston, we concluded, however, that
with regard to environmental contamination, there was no local
by-law or regulation that was more protective than the State
regulations. See id. at 417. And, although the local by-law
did have a stricter wetlands buffer zone and stricter stormwater
management guidelines, we concluded the board had failed to
identify a local interest protected by the stricter regulations
that outweighed the local need for affordable housing,
18
particularly where the substantial evidence showed that the
proposed project, as designed, would enhance the wetlands at
issue and eliminate existing contamination. Id. at 420-422. We
concluded that the local board did nothing more than point out
that the project violated their more onerous regulations and
failed to show that DEP would "be unable to provide adequate
protection to current and future residents." Id. at 419.
Here, the plaintiff's initial complaints about waiving the
limit of impervious coverage, which he does not pursue on
appeal, are similar to the issues presented in Holliston. The
plaintiff does not refute SEHC's showing that the goals of the
bylaw's restriction would be met by the systems put in place to
direct all runoff into the ground, thereby actually increasing
the level of groundwater recharge from predevelopment levels.
Thus, the plaintiff could not show that the project was
inconsistent with local needs in this regard.
With regard to the proposed waste disposal system, on the
other hand, the plaintiff does more than simply point at the
fact that the proposed development violates the bylaw. He has
presented evidence to support the judge's finding that, as
designed and approved, "it is more likely than not" that the
project will cause excessive nitrogen levels at the plaintiff's
neighbor's well. The calculations introduced, which support the
judge's finding, are in part based on the amount of discharge
19
the project will introduce on the undersized locus. SEHC's
expert testified that he found no fault with the accuracy of the
calculations. Rather, SEHC's expert testified that he simply
made no effort to demonstrate that the system as planned would
not result in elevated nitrogen in the groundwater reaching
abutting wells because the board did not ask him to do so. He
relied on a presumption, which he contends the State applies,
that provides that if a system is designed in conformance with
State standards, the facility is presumed to protect public
health, safety, and the environment.
What SEHC and its expert continue to ignore is that the
plaintiff presented evidence, adopted by the judge, rebutting
any such presumption. 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, which SEHC contends are
applicable and the judge found to be applicable, are
insufficient to protect the groundwater from being contaminated
by the proposed project. We conclude that the plaintiff has
identified an important local health issue, maintaining clean
groundwater servicing local private wells, that is not
adequately protected by compliance with applicable State
standards. Cf. Holliston, supra at 417-419. Enforcement of the
bylaw, however, would restrict the amount of sewage disposal
20
that may be introduced into the WRPD and thereby protect the
adjacent wells.
We next weigh the local concern, the elevated nitrogen
levels in the groundwater at the lot line and, in fact, reaching
an abutter's well, with the local need for affordable housing.
To be sure, the need for affordable elderly housing in the town
is real. In weighing the need for affordable housing against
local health concerns, however, we are aware of no instance
where approval was given to a project that would cause nitrogen
levels or other contaminants in a neighboring private well to
exceed DEP recommendations. The record does not reflect that
the abutters have an alternative water supply. Nor do we mean
to suggest that abutters may be forced to connect to an
alternative water source, if one were available, so that low
income housing may be developed. The Act has no taking
component within it. Cf. Zoning Bd. of Appeals of Groton v.
Housing Appeals Comm., 451 Mass. 35, 40 (2008) ("The Act does
not authorize the committee, directly or indirectly, to order
the conveyance of an easement over land abutting the project
site of a proposed affordable housing development"). 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
21
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.
3. Conclusion. The Superior Court judgment affirming the
comprehensive permit is reversed. The case is remanded for
entry of a judgment revoking the comprehensive permit.
So ordered.