Appeals Court Upholds BOH Authority

MAHB Quarterly vol. 13 #4 1995
By Alexandra D. Dawson Esq.

An interesting decision has come down from the state Appeals court, upholding broad powers of local Boards of Health in denying or granting variances. Tortorella v. Board of Health of Bourne, 39 Mass. Appeals Court 277, was decided in September, 1995. The Tortorellas owned a 12,000 square foot parcel of land with a small cottage up at the front. The lot was only 55′ wide and was all wetland except for the front 60′. It was located in a coastal floodplain and was only used seasonally. It was served by a cesspool behind the house, which was on the verge of failing. The Tortorellas sought variances from both the Board of Health and the town Conservation Commission, to install a new septic system, further from the wetland but not complying with local health regulations, especially one requiring a 150′ setback from wetlands for new systems. The Commission approved its variances, subject to Health Board approval, and the burden of the decision was therefore placed on the Board. The health board was from the onset willing to grant setback variances in order to move the system away from the wetland and make it more environmentally functional. However, the Board was unwilling to accommodate the proposed enlargement of the house (to over twice its original size) and its conversion from seasonal to year-round use. The Board believed that the increase in space and time would increase flows to the system. It therefore denied the variances. Both the trial court and the appeals court upheld the right of the Health Board to deny the variances, in spite of two legal obstacles. First, the Tortorellas argued that enlargement of the house, was, in effect, none of the Board’s business. Second, the Health Board’s regulations about variances seemed to apply to Title 5, rather than to local requirements. The court rejected these arguments, remarking: The proposed system, after all, while an improvement on the existing cesspool, will not be in conformity with Title 5, if only due to major noncompliances with setbacks. The doubling,– almost tripling — of habitable space and the planned conversion to year-round living both suggest the potential for significant expansion of actual use of the system…In exercising its broad discretion, the board may consider any factors bearing rationally on the actual demands that may be put on the system and the environment.. Given its paramount obligation to protect the environment, it was not unreasonable for the board to deny the variances as an adjunct of major residential construction at the wetland’s edge. (P. 281) This language will be helpful to Boards in carrying out their responsibilities under Title 5 and local regulations. Alexandra Dawson teaches at Antioch College, is on the board of directors of the Mass Assoc. Of Conservation Commissions, which she represents on the Title 5 Advisory Committee, and is a member of the MAHB Legal Advisory Council.