THOMAS J. HUTTON & Another v. BOARD OF HEALTH OF NANTUCKET.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-612

THOMAS J. HUTTON & another1

vs.

BOARD OF HEALTH OF NANTUCKET.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, through a trust, own a 16,000 square foot

parcel, including a three-bedroom seasonal dwelling, on Smith

Point, located at the southwest tip of Nantucket. After being

notified that their conventional septic system had failed and

needed to be replaced, the plaintiffs applied to the Nantucket

board of health (board) for approval of an

innovative/alternative (I/A) system that, they asserted,

satisfied the Department of Environmental Protection's (DEP)

Title 5 regulations, 310 Code Mass. Regs. §§ 15.000, as well as

the board's regulations. The board denied the application and

required the plaintiffs to install a more burdensome and

1 Susan Hutton.
expensive "tight tank" system.2 The plaintiffs filed an action

for certiorari review in the Superior Court, arguing that the

board's denial of their application was arbitrary and capricious

and seeking declaratory relief. A Superior Court judge affirmed

the board's decision. We reverse the Superior Court judgment,

vacate the board's decision, and remand for further proceedings.

Background. Smith Point's sole connection with the rest of

the island of Nantucket is a small wooden span known as Millie's

Bridge, which carries Ames Avenue over a portion of Hither

Creek. The Madaket area of Nantucket in which Smith Point is

located lacks a connection to the town's water and sewer

services and instead relies on individual wastewater disposal

systems and public or private wells. Nitrogen runoff from

conventional on-site septic tanks has degraded the water quality

in the Madaket Harbor area. To protect this environmentally

fragile region, the board established the Madaket Harbor

Watershed Protection District (watershed district). Zones A and

B of the watershed district include virtually all of Madaket;

Smith Point is located within Zone A. Board Regulation 51

states that any property owner in Zone A or B whose conventional

septic system requires repairs or upgrades must replace it with

2 A tight tank is a "water tight vessel having an inlet to
receive raw sewage but no outlet and which is designed and used
to collect and store sewage until it is removed for disposal."
310 Code Mass. Regs. § 15.002 (2014).

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either a tight tank or a DEP-approved nitrogen-reducing

wastewater disposal system.

In addition, in local Regulation 49 the board designated

the Smith Point area over Millie's Bridge, where the plaintiffs'

property is located, as the "Madaket Tight Tank District" (tight

tank district). The board found that the tight tank district's

coastal ecosystem is even more sensitive to nitrogen runoff than

the rest of the watershed district and is prone to severe

erosion and high velocity flooding. Regulation 49 was prepared

and submitted to the DEP in 2015 as an addendum to Nantucket's

comprehensive wastewater management plan (CWMP) and was

subsequently adopted following notice and comment.

In November 2020, the town health department informed the

plaintiffs that their septic system was in "technical failure"

and that Regulation 51 required them to install a DEP-approved

I/A septic system "with nitrogen reduction of at least 19 mg/l"

within twelve months. The plaintiffs hired an engineer to

prepare an application for the board's approval of an I/A system

that, the plaintiffs contended, would reduce nitrogen effluent

flows to acceptable levels. Early in the application process,

however, a health department official informed the engineer by

email that the board intended for all properties across Millie's

Bridge to install tight tanks under Regulation 49. In October

2021, the board held a public hearing on the plaintiffs'

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application. The plaintiffs urged the board to approve their

proposed I/A system because it satisfied DEP's requirements, was

"largely compliant" with Regulations 49 and 51 and was similar

to I/A systems installed on the other side of the bridge, also

affecting the watershed district. Considering the plaintiffs'

application as a request for a variance from Regulation 49's

tight tank requirement, the board voted to deny it because the

proposed I/A system would cause more nitrogen runoff than a

tight tank, which would produce none.

The plaintiffs filed a complaint in the Superior Court for

certiorari review of the board's decision and for declarations

that the board's interpretation and application of Regulation 49

was unlawful, invalid, and violated their due process and equal

protection rights. Acting on cross motions for judgment on the

pleadings, the judge affirmed the board's decision. This appeal

followed.

Discussion. The plaintiffs assert several interrelated

reasons why the board's denial of their application was

arbitrary and capricious. They argue that decision violated

their due process rights because the regulation under which the

board acted was void for vagueness; that by interpreting the

regulation to require tight tanks in all instances, the board

impermissibly amended the regulation without following the

procedures required under G. L. c. 111, § 31; and that decision

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was arbitrary and capricious because the board did not consider

the merits of their application.3

Certiorari review under G. L. c. 249, § 4, "is limited to

correcting substantial errors of law that affect material rights

and are apparent on the record" (quotation and citation

omitted). Gloucester v. Civil Serv. Comm'n, 408 Mass. 292, 297

(1990). "Certiorari review is calibrated to the nature of the

action for which review is sought, and thus may involve either

the substantial evidence standard or the arbitrary and

capricious standard" (quotation and citation omitted). Perisho

v. Board of Health of Stow, 103 Mass. App. Ct. 593, 597 (2023).

We review the board's decision de novo. See Fieldstone Meadows

Dev. Corp. v. Conservation Comm'n of Andover, 62 Mass. App. Ct.

265, 267 (2004) ("Our review gives no special weight to the view

of the Superior Court judge").

3 The plaintiffs also argue that Regulation 49 is invalid
because the board failed to file a copy with DEP as required by
G. L. c. 111, § 31. Even if the board neglected to file an
attested copy of the regulation after it was adopted, this
failure does not invalidate the regulation. General Laws
c. 111, § 31, has no language, such as appears in G. L. c. 30,
§ 37, and G. L. c. 30A, § 5, that specifically makes filing a
condition precedent for a regulation to become effective
thereunder. It does not impose a time limit for filing an
attested copy. And the purpose of filing with the department --
after the fact, for maintenance in a central registry for
convenience of the public -- is divorced from any substantive
review or approval process. Moreover, the plaintiffs had actual
notice of the regulation, and its absence from the central
registry caused them no harm.

5
The plaintiffs contend that Regulation 49 is

unconstitutionally vague because it failed to inform them of

what they must do to obtain approval for a septic system and

provided the board with unlimited discretion to arbitrarily deny

all applications for I/A systems in the tight tank district.4 "A

fundamental principle in our legal system is that laws which

regulate persons or entities must give fair notice of conduct

that is forbidden or required." Federal Communications Comm'n

v. Fox Tel. Stations, Inc., 567 U.S. 239, 253 (2012). A statute

or regulation is void for vagueness when people "of common

intelligence must necessarily guess at its meaning and differ as

to its application, thereby allowing untrammeled

[administrative] discretion . . . and arbitrary and capricious

decisions" (quotations and citation omitted). Daddario v. Cape

Cod Comm'n, 56 Mass. App. Ct. 764, 770 (2002), cert. denied, 540

U.S. 1005 (2003). See Caswell v. Licensing Comm'n for Brockton,

387 Mass. 864, 873 (1983) ("Vague laws violate due process

because individuals do not receive fair notice of the conduct

proscribed by a statute . . . and because vague laws that do not

limit the exercise of discretion by officials engender the

4 The plaintiffs raised this claim in opposition to the
board's cross motion for judgment on the pleadings, which is not
the equivalent of raising it for the first time in a reply
memorandum or brief. The claim was adequately raised in the
Superior Court and preserved for appellate review.

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possibility of arbitrary and discriminatory enforcement"). As

this case does not implicate free speech concerns or criminal

conduct, we consider only whether Regulation 49 "is

unconstitutionally vague as applied in this case." Id.

Regulation 49 is not unconstitutionally vague. We read the

regulation against the backdrop of DEP's Title 5 regulations,

which strongly disfavor tight tanks. Putting aside an exception

not here applicable,5 tight tanks are prohibited except where

needed "to eliminate a failed on-site system when no other

feasible alternative to upgrade the system in accordance with

[DEP regulations] exists." 310 Code Mass. Regs. § 15.260(1)

(2014). When the board submitted Regulation 49 for review in

connection with the town's CWMP, DEP commented that the

regulation allowed for "a limited number of tight tanks" in the

"small tightly defined area" of the tight tank district.

Acknowledging that tight tanks are disfavored, Regulation

49 states repeatedly that tight tanks may be required in lieu of

conventional or I/A systems only as a "last resort." For

example, the regulation states that tight tanks will not be

permitted "for new construction or increases in design flow, but

rather only as a last resort." If the board determines that a

septic system "requires an upgrade" under Title 5, it "may"

5 That exception applies to existing seasonal-use
residences. See 310 Code Mass. Regs. § 15.260(8) (2014).

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require the property owner to install a tight tank as "a last

resort alternative." In the case of a "failed" septic system,

the board may require it to be replaced with a tight tank. The

regulation also limits the circumstances under which the board

may exercise its discretion to require a tight tank: when "no

other feasible available alternative for wastewater disposal as

determined by the [b]oard" exists.6 The use of the words

"require" and "requirements" in the regulation -- which are

consistently prefaced with permissive language -- do not

establish an across-the-board tight tank mandate, as the board

contends.

Accordingly, the regulation provides sufficient standards

to guide the board's discretion to determine when a tight tank

might be required. The use of the vagueness doctrine to

invalidate land use decisions is reserved for "truly horrendous

situations" (citation omitted). Daddario, 56 Mass. App. Ct. at

771. This is not one of them.

In the minutes of the public hearing on the adoption of
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Regulation 49, a staff member stated that it "is a set
regulation dependent upon the size of the property and bedroom
count. 90% of the properties north of Millie's Bridge are
extremely small and would automatically require tight tank
installation." The plaintiffs claim that their property is
within the ten percent of larger properties not subject to the
automatic requirement. However, the terms of the regulation do
not include any distinctions based on property size.

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Having set forth standards in Regulation 49 to guide its

discretion, however, the board was obliged to apply those

standards fairly and consistently in its decision-making. It

was not free to act "for reasons that are extraneous to the

prescriptions of the regulatory scheme." Fafard v. Conservation

Comm'n of Reading, 41 Mass. App. Ct. 565, 568 (1996). The

plaintiffs assert that the board instead based its decision on

"an unannounced, de facto amendment." We agree.

The plaintiffs attempted to comply with the board's

regulations by proposing a "feasible" I/A system, given the size

of their property, that would sufficiently reduce nitrogen

levels such that a tight tank was not necessary as a "last

resort." As the minutes of the hearing made clear, however, the

board did not consider the merits of the plaintiffs' proposal.

Rather, the board had adopted an internal interpretation of

Regulation 49 that required all properties in the tight tank

district to upgrade or replace their septic systems with tight

tanks, without exception. The board did not treat the tight

tank requirement as a last resort, and it made no determination

whether an I/A system might be feasible for the plaintiffs'

property. Accordingly, the board's "denial of [the plaintiffs']

application was improperly based on a policy existing outside of

the regulatory framework." Fieldstone Meadows Dev. Corp., 62

Mass. App. Ct. at 267. "The decision to deny the permit on the

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basis of such a policy was therefore arbitrary." Id. at 268.

See also Hercules Chem. Co. v. Department of Envtl. Protection,

76 Mass. App. Ct. 639, 643 (2010), quoting Long v. Commissioner

of Pub. Safety, 26 Mass. App. Ct. 61, 65 (1988) ("Arbitrary and

capricious action is that which is taken 'without consideration

and in disregard of facts and circumstances'").7

Conclusion. The judgment of the Superior Court is

reversed. An order shall enter vacating the board's denial of

the plaintiffs' application and remanding the plaintiffs'

application to the board for further consideration consistent

with this decision.

So ordered.

By the Court (Milkey,
Massing & Neyman, JJ.8),

Assistant Clerk

Entered: April 16, 2024.

7 To the extent the board intended to implement an across-
the-board tight tank policy, it could do so only through the
regulatory process set forth in G. L. c. 111, § 31. Cf. Carey
v. Commissioner of Correction, 479 Mass. 367, 371-372 (2018),
quoting G. L. c. 30A, § 1 (5) (under State Administrative
Procedure Act, rules of "general application and future effect"
must be promulgated as regulations); Water Dep't of Fairhaven v.
Department of Envtl. Protection, 455 Mass. 740, 749 (2010) ("If
the department wishes to require registrants to take specified
conservation measures, it must do so by regulation").

8 The panelists are listed in order of seniority.

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