Chapter 40B Legal Updates

Perisho v. Stow Board of Health

This case originated as an appeal from the issuance of a septic system permit for a small 40B project in Stow, MA.

The Plaintiffs, who are direct abutters to the small 40B project, rely on private wells for their household water needs. Their wells are downhill from, and within the “area of impact” of the 40B septic system. Through our expert hydrologist’s predictions and scientific modeling, we were able to demonstrate that the proposed septic system would discharge effluent into the ground approximately 100-150 feet from the Plaintiffs’ wells. This would increase concentrations of Nitrogen and other pollutants at the Plaintiffs’ wells to levels that exceed the state’s safe drinking water standards.

The Appeals Court reversed the Superior Court’s judgement, which had dismissed nuisance and trespass claims in the appeal from the issuance of the septic system permit.

In the end, the Court agreed that a plaintiff need not wait until an act causing a nuisance or trespass actually occur in order to seek judicial redress.

Hill Law represents the Plaintiffs in the Perisho case.

The Appeals Court decision can be read here.

Nantucket Land & Water Council v. Housing Appeals Committee

The state Housing Appeals Committee (HAC) approved a 156-unit Chapter 40B housing project in a 13-acre forest, habitat to two rare species, on the Massachusetts island of Nantucket. In this case, the Superior Court overturned the HAC decision which approved this project.

When originally proposed in 2018, the 40B project also known as “Surfside,” applied for a mix of single family (38%) and multi-family (62%) units. The local zoning board approval flipped the ratio of housing types, approving 66% single family and 33% multifamily. While on appeal at the HAC, the developer sought to change the project to all multi-family condos (100%) with no single-family units (0%). HAC approved the changes as “insubstantial” and refused to remand the case to the local Zoning Board of Appeal (ZBA). 

The Superior Court ruled that changes made to the project while on appeal at HAC were “substantial” within the meaning of 40B regulations. Those regulations require the ZBA to “have an opportunity to review changes that are substantial.” 760 CMR 56.07(4)(b).

This ruling is another judicial rebuke of the HAC’s exercise of authority, the second one in this case alone.  The ruling will reign in developers’ frequent attempts to evade, usually with the HAC’s blessing, local review of project modifications. 

Hill Law represents the Nantucket Land and Water Council in this matter.

The Superior Court’s decision can be read here.