Court Overturns Board’s Decision Allowing Septic System in Coastal Dune

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SandBar 8:1, April, 2009 Court Overturns Board’s Decision Allowing Septic System in Coastal Dune Macero v. Macdonald, 73 N.E.2d 1256 (Mass. App. Ct. 2008). *Terra Bowling, J.D.* The Board of Health in Falmouth, Massachusetts granted variances from the state environmental code and the town’s health regulation to allow the construction of a septic system in a coastal dune. Recently, the Appeals Court of Massachusetts vacated the lower court’s decision affirming the variances. The appellate court found that the Board did not address siting criteria of the state code, the town’s regulation, or the variance test in state law when making its decision. Background The oceanfront lot at issue, which is in an environmentally sensitive area adjacent to Buzzard’s Bay, contained an existing four-bedroom home that included a septic system. Planning to reconstruct the home, the landowner applied to the Board to permit a new, enlarged septic system located in a coastal dune. The town’s health code specifically prohibits septic systems from being located in a coastal dune. However, the code allows the board to grant variances to this and other provisions of the code when “(1) the enforcement thereof would do manifest injustice; and (2) the applicant has proved that the same degree of health and environmental protection required under this title can be achieved without strict application of the particular provision.”1 The state environmental code also prohibits septic systems in coastal dunes, unless an applicant meets seven specific siting criteria.2 In addition to the siting criteria, an applicant must meet a two–part variance test. The test requires the applicant to show that enforcement of the provision “85would be manifestly unjust, considering all the relevant facts and circumstances of the individual case; and [t]he person requesting a variance has established that a level of environmental protection that is at least equivalent . . . can be achieved without strict application of the provisions . . .” and, “with regard to variances for new construction, en forcement of the provision . . . must be shown to deprive the applicant of substantially all beneficial use of the subject property.”3 Adjacent landowners, SPD Investment Trust (SPD), appeared at the Board’s administrative hearings to contest the variances, citing concern that a septic system located in the dune would reduce the ability of the dune to buffer flood waters and increase the potential for storm damage to its property. Despite this, the Board approved the variances without addressing the siting criteria, the variance test, or the town’s health code. SPD filed suit in superior court, which upheld the Board’s decision. SPD appealed. Inadequate Decision On appeal, SPD argued that the judge erred in finding that the Board was not required to make additional findings or explain its reasons for granting the variances. The appellate court agreed. First, the Board failed to find whether the reconstruction was merely a remodeling of the existing home or a demolition and new construction. The court noted that this distinction was important because for new construction, the two-part variance test requires the board to determine whether the enforcement of the provision will “deprive the applicant of substantially all beneficial use of the subject property.”4 Second, the Board failed to consider the siting considerations as required by the state environmental code. For instance, the Board did not investigate whether the new septic system could be located in an area other than the coastal dune. Ultimately, the court found the Board’s findings to be inadequate. “The authority of the [B]oard is broad. However, competent judicial review of such decisions is often, as here, rendered difficult if not impossible by the lack of specific findings and rationale for the agency decision.”5 Conclusion The appellate court vacated the trial court’s judgment. The case was remanded to the Board, with instructions to make specific findings and reasons for granting the variances. Endnotes 1. Falmouth Health Reg. 15.1(3). 2. 310 Mass. Code Regs. A7 15.213(2) (1995). 3. Id. A7 15.410. 4. Id. A7 15.410. 5. Macero v. Macdonald, 73 N.E.2d 1256, 1261 (Mass. App. Ct. 2008).
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SandBar 8:1, April, 2009

Macero v. Macdonald, 73 N.E.2d 1256 (Mass. App. Ct. 2008).

Terra Bowling, J.D.

The Board of Health in Falmouth, Massachusetts granted variances from the state environmental code and the town’s health regulation to allow the construction of a septic system in a coastal dune. Recently, the Appeals Court of Massachusetts vacated the lower court’s decision affirming the variances. The appellate court found that the Board did not address siting criteria of the state code, the town’s regulation, or the variance test in state law when making its decision.

Background
The oceanfront lot at issue, which is in an environmentally sensitive area adjacent to Buzzard’s Bay, contained an existing four-bedroom home that included a septic system. Planning to reconstruct the home, the landowner applied to the Board to permit a new, enlarged septic system located in a coastal dune.
      The town’s health code specifically prohibits septic systems from being located in a coastal dune. However, the code allows the board to grant variances to this and other provisions of the code when “(1) the enforcement thereof would do manifest injustice; and (2) the applicant has proved that the same degree of health and environmental protection required under this title can be achieved without strict application of the particular provision.”1
      The state environmental code also prohibits septic systems in coastal dunes, unless an applicant meets seven specific siting criteria.2 In addition to the siting criteria, an applicant must meet a two–part variance test. The test requires the applicant to show that enforcement of the provision “85would be manifestly unjust, considering all the relevant facts and circumstances of the individual case; and [t]he person requesting a variance has established that a level of environmental protection that is at least equivalent . . . can be achieved without strict application of the provisions . . .” and, “with regard to variances for new construction, en forcement of the provision . . . must be shown to deprive the applicant of substantially all beneficial use of the subject property.”3
      Adjacent landowners, SPD Investment Trust (SPD), appeared at the Board’s administrative hearings to contest the variances, citing concern that a septic system located in the dune would reduce the ability of the dune to buffer flood waters and increase the potential for storm damage to its property. Despite this, the Board approved the variances without addressing the siting criteria, the variance test, or the town’s health code. SPD filed suit in superior court, which upheld the Board’s decision. SPD appealed.

Inadequate Decision
On appeal, SPD argued that the judge erred in finding that the Board was not required to make additional findings or explain its reasons for granting the variances. The appellate court agreed.
      First, the Board failed to find whether the reconstruction was merely a remodeling of the existing home or a demolition and new construction. The court noted that this distinction was important because for new construction, the two-part variance test requires the board to determine whether the enforcement of the provision will “deprive the applicant of substantially all beneficial use of the subject property.”4
     Second, the Board failed to consider the siting considerations as required by the state environmental code. For instance, the Board did not investigate whether the new septic system could be located in an area other than the coastal dune.
     Ultimately, the court found the Board’s findings to be inadequate. “The authority of the [B]oard is broad. However, competent judicial review of such decisions is often, as here, rendered difficult if not impossible by the lack of specific findings and rationale for the agency decision.”5

Conclusion
The appellate court vacated the trial court’s judgment. The case was remanded to the Board, with instructions to make specific findings and reasons for granting the variances.

Endnotes
1. Falmouth Health Reg. 15.1(3).
2. 310 Mass. Code Regs. A7 15.213(2) (1995).
3. Id. A7 15.410.
4. Id. A7 15.410.
5. Macero v. Macdonald, 73 N.E.2d 1256, 1261 (Mass. App. Ct. 2008).