Independence Park, Inc. v. Board of Health of Barnstable

• Citation: 530 N.E.2d 1235,403 Mass. 477
• Parties: INDEPENDENCE PARK, INC. v. BOARD OF HEALTH OF BARNSTABLE et al. 1 (and a companion case 2 ).
• Decision Date: 07 December 1988
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1235

530 N.E.2d 1235

403 Mass. 477

INDEPENDENCE PARK, INC. v. BOARD OF HEALTH OF BARNSTABLE et al. ¹ (and a companion case ²).

Supreme Judicial Court of Massachusetts Barnstable.

Argued Nov. 8, 1988.

Decided December 7, 1988.

Michael D. Ford, Hyannis, (Michael Murphy, Boston, with him), for plaintiff.

John H. Henn, Boston (Robert D. Smith, Town Counsel, with him), for Bd. of Health of Barnstable and another.

James M. Shannon, Atty. Gen. and James R. Milkey, Asst. Atty. Gen., for Com., amicus curiae, submitted a brief.

Janet McGowan, Cambridge, for Conservation Law Foundation of New England, Inc., amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and O'CONNOR, JJ.

NOLAN, Justice.

The plaintiff, Independence Park, Inc. (Park), a developer, appeals from judgments of the Superior Court dismissing its actions against the defendants. Park's complaints charged that the defendant Barnstable board of health had violated G.L. c. 111, § 127P, a so-called grandfathering statute, in recommending that Park construct connectors to the public sewers in its proposed subdivisions. The defendants moved to dismiss the complaints under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). The motions were allowed in the Superior Court. The Appeals Court reversed. 25 Mass.App.Ct. 489 (1988). We allowed the developer's application for further appellate review. We affirm the judgments of the Superior Court.

The complaints alleged that no lot within the subdivisions here involved is within 3,000 feet of a municipal sewer line. The developer argues that it should thus be exempt from a board of health regulation requiring development on land within 3,000 feet of the municipal sewer line to connect to the public sewer. ³ No regulation addressed land located more than 3,000 feet from a municipal sewer line. The board of health, exercising its power under G.L. c. 41, § 81U, ⁴ recommended that Park connect its development to the public sewer. The board noted the subdivisions were located in a critical groundwater zone serving wells of the Barnstable Water Company and the Barnstable fire district, and expressed concern that sewage and industrial waste posed a greater environmental threat than residential waste. After the Barnstable planning board, subject to the board of health's recommendations, approved the subdivisions, Park filed its complaints in Superior Court.

The statute at issue in this case, G.L. c. 111, § 127P (grandfathering statute), seeks to protect developers by requiring that a subdivision be subject only to those State and local regulations in effect when a developer submits a preliminary plan, provided that the developer files a definitive plan within seven months. ⁵ When the Legislature passed this grandfathering statute in 1981, boards of health had long held the power to issue recommendations to the planning board that are tailored to a specific factual situation. G.L. c. 41, § 81U. Boards of health also held, and continue to hold, plenary power to promulgate reasonable health regulations that are general in application and take effect prospectively. G.L. c. 111, § 31. See United Reis Homes, Inc. v. Planning Bd. of Natick, 359 Mass. 621, 623, 270 N.E.2d 402 (1971). The Legislature could have included both the board's power to recommend and its power to regulate in the grandfathering statute when it passed the statute in 1981. It chose, instead, to limit expressly only regulations, not recommendations. A statute that exempts projects from a previously enacted statute must be strictly construed. See Loyal Protective Life Ins. Co. v. Massachusetts Indemnity & Life Ins. Co., 362 Mass. 484, 493, 287 N.E.2d 412 (1972). The Legislature also has stated explicitly that, in the absence of clear language to the contrary, all statutes are to be construed to prevent damage to the environment. G.L. c. 30, § 61.

Further, as we stated in Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 416 N.E.2d 1373 (1981), we are "loath to find that a prior statute has been superseded in whole or in part in the absence of express words to that effect or of clear implication." Id. at 585, 416 N.E.2d 1373. The grandfathering statute does not limit a board of health to review of subdivision plans only on the basis of promulgated regulations, either by its express terms or by implication. In fact, nothing in the grandfathering statute at issue here refers to the board of health's process of recommendation set out in G.L. c. 41, § 81U. Park would have us read the grandfathering statute to eviscerate the power of a board of health by precluding it from imposing any condition on a development that is not already set forth in the State environmental code or local regulation. We do not believe this is what the Legislature intended.

Our goal in interpreting two or more statutes relating to the same subject matter is to construe them so as to constitute an harmonious whole, consistent with the legislative purpose. Registrar of Motor Vehicles, supra at 585, 416 N.E.2d 1373. It is possible to read, as an harmonious whole, the grandfathering statute and the statute empowering boards of health to make recommendations, by distinguishing regulations from recommendations. Courts reviewing a regulation presume rationality and "[will] not declare it void unless its provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate." Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 723, 448 N.E.2d 367 (1983). Recommendations, on the other hand, do not receive such highly deferential review. When a board of health imposes a condition through the recommendation process, that action is subject to full de novo review pursuant to G.L. c. 41, § 81BB. Rettig v. Planning Bd. of Rowley, 332 Mass. 476, 478-479, 126 N.E.2d 104 (1955). See Loring Hills Developers Trust v. Planning Bd. of Salem, 374 Mass. 343, 350, 372 N.E.2d 775 (1978). Through such review, a developer is fully protected from improper board of health action. Under our reading of these statutes, the developer is protected by the grandfathering statute from changed regulations that would be difficult to challenge, while the public is protected because the board of health can issue recommendations covering matters not addressed in existing regulations, so long as these recommendations can withstand a de novo review of the reasonableness of its action.

A recommendation by a board of health may supplement the regulations when they are silent on a given matter, but its recommendation may not contradict an existing regulation. See Restaurant Consultants, Inc. v. Alcoholic Beverages Control Comm'n, 401 Mass. 167, 170 n. 8, 514 N.E.2d 1322 (1987) (a governmental agency is bound by its own regulations). The board of health did not contradict existing regulations because there were none regarding property more than 3,000 feet from a municipal sewer line. Although the maxim "the expression of one thing is an implied exclusion of other things omitted from the statute" has been used appropriately in some contexts, see Glorioso v....