Independence Park, Inc. v. Board of Health of Barnstable, s. 87-234

• Decision Date: 03 June 1988
• Docket Number: 87-235,Nos. 87-234,s. 87-234
• Citation: 520 N.E.2d 157,25 Mass.App.Ct. 489
• Parties: INDEPENDENCE PARK, INC. v. BOARD OF HEALTH OF BARNSTABLE, et al. 1 (and a companion case 2 ).
• Court: Appeals Court of Massachusetts

Page 157

520 N.E.2d 157

25 Mass.App.Ct. 489

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

Nos. 87-234, 87-235.

Appeals Court of Massachusetts Barnstable.

Argued Jan. 13, 1988.

Decided March 18, 1988.

Further Appellate Review Granted June 3, 1988.

Michael D. Ford, Hyannis, for plaintiff.

John H. Henn, Boston (Robert D. Smith, Hyannis, with him), for defendants.

Before DREBEN, KASS and SMITH, JJ.

DREBEN, Justice.

This action, brought under G.L. c. 41, § 81BB, is a sequel to Independence Park, Inc. v. Board of Health of Barnstable, 25 Mass.App. 133, 515 N.E.2d 1202 (1987) (Independence Park I ), and, again, the developer claims protection under G.L. c. 111, § 127P. That statute, the developer asserts, precludes the board of health (board) from making a recommendation under G.L. c. 41, § 81U, which is more onerous than the board's regulations. A judge of the Superior Court allowed the defendants' motions to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), and the developer brings this appeal. We reverse.

1. Board of Health "Ground Water Regulation." The board's recommendation was that the developer connect all buildings to the public sewer. In order to determine the relation of that recommendation to the board's regulation, we turn to the "Ground Water Protection" regulation, promulgated under G.L. c. 111, § 31, which is set forth in full in the Appendix to this opinion.

The regulation's stated purpose is to protect ground water; it also states that "high density housing can ... cause serious deterioration of ... groundwater by nitrate contamination," and that housing units should be on one-acre parcels in order that the maximum recommended nitrate limit not be exceeded. After those introductory comments, the regulation provides that, in "zones of contribution to a public supply well" (the subdivisions here involved are in such a zone), subdivisions "within 3,000 feet" of a municipal sewer line must connect all lots to the town sewer if any lot in the subdivision is less than one acre. In such zones all new multi-family and commercial buildings within 3,000 feet of a municipal sewer line must also connect to the public sewer. Outside such zones, new construction within 3,000 feet of a sewer line may be required to be connected to the town sewer if the board makes certain determinations. Variances to the regulation may be granted by the board.

The complaint alleges that no lot within the subdivisions here involved is within 3,000 feet of a municipal sewer line. If the regulation is dispositive, this allegation, if true, would relieve the developer from a duty to connect. The regulation's tie-in requirement where lots or buildings are within 3,000 feet of a municipal sewer line in zones of contribution implies that where lots or buildings are not within 3,000 feet there is no such obligation. This inference is strengthened by the provision which permits the board in certain cases to order a tie-in outside zones of contribution for new construction, but here, too, only for construction which is within 3,000 feet of a town sewer line. No such discretion to order a tie-in is reserved for lots not within 3,000 feet of a sewer line, whether within or without such zones of contribution.

This reading is the ordinary meaning of the regulation, whether looked at by laymen, see Cochis v. Board of Health of Canton, 332 Mass. 721, 726, 127 N.E.2d 575 (1955) (board of health likely to be composed of laymen), or by lawyers. See Glorioso v. Retirement Bd. of Wellesley, 401 Mass. 648, 650, 518 N.E.2d 851 (1988), and cases cited ("a [regulatory] expression of one thing is an implied exclusion of other things omitted from the [regulation]").

2. Relation of regulation promulgated under G.L. c. 111, § 31, to recommendation under G.L. c. 41, § 81U, and effect of G.L. c. 111, § 127P. The board claims that the regulatory scheme and the recommendation procedure under G.L. c. 41, § 81U, are independent of one another and that, under G.L. c. 41, § 81U, a portion of which is set forth in the margin, ³ the board is authorized to make "narrowly tailored" recommendations to "adjudicate" the health and safety of a particular project without regard to any regulation. The developer, according to the board, is not entitled to protection under G.L. c. 111 § 127P, ⁴ from any such recommendations made by the board during this review process.

Such evisceration of § 127P is not warranted. We stated in Independence Park I, 25 Mass.App. at 134, 515 N.E.2d 1202, that the purpose of § 127P is plain. "The statute is designed to give a developer who has filed a plan the benefit of regulations which were in effect at the time that plan was filed 'during the time such plan is being processed' " (emphasis deleted).

One of the critical concerns of a municipality in approving a subdivision plan is sewage disposal, a subject vested exclusively in the board of health. See Fairbairn v. Planning Bd. of Barnstable, 5 Mass.App.Ct., 171, 176, 360 N.E.2d 668 (1977). While this concern was made more explicit in G.L. c. 41, § 81U, prior to its 1978 amendment, ⁵ the importance of sewage disposal as a matter for the board of health remains evident in the statute. See note 3, supra. See also G.L. c. 83, § 11, giving the board of health the power to require an abutter to a way in which there is a common sewer to tie in to such sewer. Sewage matters are also one of the primary concerns of the State environmental code. See 310 Code Mass.Regs. 15.00 (1986). Because of the importance of sewage disposal, and because that concern applies to almost all construction, the subject is an appropriate one for local and State regulation. If the board may ignore its sewage disposal regulations in its recommendations under G.L. c. 41, § 81U, the protection afforded by G.L. c. 111, § 127P, to developers of subdivisions against changes in the State environmental code or against changes in regulations of local boards of health becomes meaningless.

A more harmonious reading of the two statutes, see Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585-586, 416 N.E.2d 1373 (1981), and one which follows the general principle that an agency must follow its own regulations (see Northbridge v. Natick, 394 Mass. 70, 76, 474 N.E.2d 551 [1985]; Crawford v. Cambridge, 25 Mass.App. 47, 49-50, 514 N.E.2d 1331 [1987] ), is that, when a board regulation covers the subject at issue, the board's recommendation must be consistent with the regulation. In such cases, the board's function under G.L. c. 41, § 81U, is to complement its regulation and fill any interstices which may appear in applying the regulation to a particular subdivision.

While the Legislature has not imposed the same requirements for boards of health as it has for planning boards, and the former, unlike the latter, are not under mandate to adopt regulations, there is no doubt that G.L. c. 111, § 127P, was added by St.1981, c. 750, § 1, because of the same legislative purpose as led to the passage of the strict requirements of G.L. c. 41, § 81Q. See Pieper v. Planning Bd. of Southborough, 340 Mass. 157, 163, 163 N.E.2d 14 (1959). The Legislature wanted "a prospective subdivider [to] know in advance ... what will be required of him" in areas covered by the State environmental code or board of health regulations. See id.; Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329, 334, 182 N.E.2d 540 (1962). See also the discussion in Daley Constr. Co. v. Planning Bd. of Randolph, 340 Mass. 149, 153-154, 163 N.E.2d 27 (1959), showing legislative concern with provisions which seem to authorize arbitrary action by "overzealous city planners."

The judgments of dismissal are reversed, and the matters are remanded to the Superior Court for further proceedings consistent with this decision. If the plaintiff is entitled to judgment, summary or otherwise, the matter should be remanded...