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14-P-663                                               Appeals Court

    GREGORY REYNOLDS      vs.    ZONING BOARD OF APPEALS OF STOW &
                                  another.1


                                No. 14-P-663.

     Middlesex.        January 13, 2015. - September 15, 2015.

               Present:    Trainor, Vuono, Hanlon, JJ.


Housing. Zoning, Board of appeals: decision; Low and moderate
     income housing; Comprehensive permit. Practice, Civil,
     Standing.


     Civil action commenced in the Superior Court Department on
November 23, 2010.

    The case was heard by Kenneth W. Salinger, J.


     Dennis A. Murphy (Daniel C. Hill with him) for the
plaintiff.
     David S. Weiss (Elizabeth Levine with him) for Stow Elderly
Housing Corporation.
     Barbara Huggins for zoning board of appeals of Stow.


    TRAINOR, J.    The plaintiff appeals from a Superior Court

judgment affirming a comprehensive permit issued pursuant to the

Comprehensive Permit Act, G. L. c. 40B, §§ 20-23 (Act), by the


    1
        Stow Elderly Housing Corporation.
                                                                       2


zoning board of appeals (board) of Stow (town) to the Stow

Elderly Housing Corporation (SEHC) for the construction of a low

and moderate income elderly housing project.    The plaintiff, a

southeast abutter of the locus, contended, among other things,

that the private wells on his and his neighbors' properties will

have elevated nitrogen levels due to the discharge into the

waste disposal system designed for the locus and, therefore, it

was unreasonable for the board to waive certain waste disposal

limitations contained in the town bylaw.    Stow, Mass., Zoning

Bylaw (including amendments through May 3, 2010) (bylaw).    For

the reasons set forth below, we reverse.

    1.   Background.    a.   Stow Elderly Housing Corporation and

Plantation I.   SEHC is a nonprofit corporation founded in 1981

for the primary purpose of developing, owning, and operating

affordable housing.    In 1983, SEHC obtained a comprehensive

permit under the Act to construct Plantation Apartments I

(Plantation I), a fifty-unit low-income senior apartment complex

on a lot that is adjacent to the locus.    Plantation I is served

by a private well and a private septic system on the property.

Although SEHC was the original owner and developer of Plantation

I, in 2004, it transferred ownership of the buildings and

granted a long-term lease of the land to Plantation Apartments

Limited Partnership, while retaining the fee in the land.       SEHC
                                                                   3


owns and controls the limited partnership's general partner, and

was the initial limited partner.2

     b.   Plan for the locus.   SEHC is under agreement to

purchase an approximately two and one-half acre lot (locus)

improved by a single-family home and barn located adjacent to

Plantation I.   SEHC plans to subdivide the property creating an

approximately one-half acre parcel including the existing

single-family home and barn (lot 1), an approximately two acre

lot on which it proposes to construct "Plantation II,"

consisting of one three-story building containing thirty-seven

one-bedroom units of elderly housing, a fifty-seat function

hall, and administrative offices (lot 2).    The application for

the comprehensive permit requested numerous waivers of the bylaw

along with amendments to the comprehensive permit for Plantation

I.

     The locus is situated in the town's residential district

and eighty percent of the locus is also situated in the town's

water resource protection district (WRPD), an overlay district.

A multi-unit dwelling containing thirty-seven units is not

permitted in the residential district.3   Following the


     2
       Shortly after creation of the limited partnership,
Massachusetts Housing Equity Fund XLLC was substituted as
limited partner.
     3
       Single-family residences are allowed as of right in the
residential district. Multi-family dwellings are permitted in
                                                                   4


subdivision of the locus, lot 2 will have no frontage on a

public way.   SEHC proposes to access the property over an

undersized driveway located on Plantation I.   The board granted

bylaw waivers including, for example, as to use, lot size,

frontage, and access requirements.

    Notwithstanding that regulations require preliminary plans

submitted with a comprehensive permit application to identify

the water supply that will serve the project, SEHC has not

identified its water source.   Its application suggests several

possibilities, including private wells from other nearby

developments or a private water company.   The comprehensive

permit issued by the board includes condition 4.4, which

provides that "[p]rior to the issuance of a building permit for

the Elderly Housing, Applicant shall have obtained a permit or

approval(s) to connect the Elderly Housing to a public water

supply approved in accordance with then effective regulations




the residential district with a special permit but, by
definition, they are limited to no more than four units. Bylaw
§ 1.3. "Independent Adult Residences," described in § 8.7 of
the bylaw as "provid[ing] the opportunity for the development of
housing most beneficial for the Senior and Elder population of
Stow at greater density than would normally be allowed," are
allowed only in the business district by special permit. Even
duplexes, which are allowed in the residential district by
special permit, "[u]nder no circumstances" will be permitted for
projects sited in whole or in part in the WRPD. Bylaw § 8.2.2.
As § 3.10.1 of the bylaw excludes any use not expressly
permitted in the table of uses, the proposed development is not
a permitted use in the residential district.
                                                                    5


promulgated by the Massachusetts Department of Environmental

Protection [(DEP)]."

     The record reflects that there is no public water or sewer

system that serves the locus or its neighboring properties.     The

locus will be serviced by a private, on-site sewage disposal

system.   The sewage disposal system will be located in the WRPD.

Indeed, the project's engineer testified at trial that all of

the areas to be developed are located in the WRPD.     The intent

of the WRPD is "to protect, preserve and maintain the existing

and potential GROUND WATER supply and GROUND WATER RECHARGE

AREAS within the town; to preserve and protect present and

potential sources of GROUND WATER supply for the public health

and safety; and to conserve the natural resources of the town."

Bylaw § 5.2.

     The town adopted sewage disposal system regulations for the

WRPD that are more protective than State standards.4    In addition

to dimensional zoning waivers, SEHC sought and was granted

waivers from the WRPD regulations, including the prohibition of

uses generating "on-site sewage disposal exceeding 110 gallons




     4
       There is an argument to be made that certain Department of
Environmental Protection regulations are equivalent to the
bylaw, but as discussed below, the judge found that those
particular regulations do not apply to the locus.
                                                                   6


per day per 10,000 square feet of LOT area."5   Bylaw

§ 5.2.1.1(2).   The judge found that the proposed project will

generate approximately 5,500 gallons of sewage and other

wastewater per day.   According to the judge, that translates to

approximately 700 gallons per day per 10,000 square feet of lot

area, which exceeds WRPD's restriction by over six times.

     The plaintiff introduced evidence that his well and those

of his neighbors would have elevated nitrogen levels due to the

proposed development.   The judge rejected the evidence that

elevated nitrogen would reach the plaintiff's well, but

specifically found "it is more likely than not that the Project

will cause nitrogen levels to exceed 10 [parts per million] at

the drinking water well serving 37 DeVincent Drive [the

plaintiff's neighbor]."6   The groundwater quality standard is

10mg/l total nitrogen and 10mg/l nitrate-nitrogen at the

boundary or nearest downgradient sensitive receptor.7   The

board's consultant recommended that "the applicant provide

     5
       Additional amounts may be permitted by special permit for
uses permitted in the underlying district. Bylaw § 5.2.2.3.
     6
       The judge's findings do not address the harm arising from
elevated nitrogen levels. There was uncontroverted evidence,
however, that elevated levels of nitrogen in the water, alone,
are a public health threat and possibly indicative of other
pollutants.
     7
       See 310 Code Mass. Regs. § 22.06(2)(h), (i) (2008);
Guidelines for Title 5, Aggregation of Flows and Nitrogen
Loading, Department of Environmental Protection (revised
6/3/09).
                                                                    7


documentation that the groundwater will meet drinking water

standards at the property lines as the abutters are served by

on-site wells unless it is the intent to tie them into a public

drinking water supply."   This recommendation was not adopted by

the board.   The judge concluded, however, that the comprehensive

permit properly was granted because the sewage disposal system,

as designed, will meet all applicable State regulations, which

do not, in these circumstances, require proof that adjacent

wells will not have elevated nitrogen levels as a result.

    The board also waived that section of the bylaw that

prohibits development in the WRPD that renders more than ten

percent of a site impervious.   Bylaw § 5.2.1.1(8).   As proposed

and approved, the project will render impervious approximately

forty-two percent of the property located in the WRPD.    The

judge found, however, that the stormwater management system will

direct precipitation falling on impervious areas to underground

infiltration beds from which it will percolate into the ground

and be available to recharge the groundwater.   In fact, the

judge found that there will be a slight increase of groundwater

recharge compared to predevelopment conditions and concluded

that the local concern underlying § 5.2.1.1(8) will be met.

Although the board's consultant recommended pretreatment for the

reduction of total suspended solids prior to discharge into the
                                                                     8


recharge area and an oil and grease separator chamber, these

recommendations were not adopted by the board.8

     Finally, the board waived the board of health regulation

requiring septic systems to be designed to handle 150 percent of

the estimated daily flow.   As designed, the system serving

Plantation II can handle only 100 percent of the estimated daily

flow.

     c.   Need for low income elderly housing.    One hundred

percent of the proposed units will qualify as "low or moderate

income housing."   There is no doubt that the town and the region

in general have a need for affordable elderly housing.     Indeed,

the application suggests the town's subsidized housing stock

comprises only six and one-half percent of its total housing

stock, and the parties stipulated that at the time of the

application, the town's G. L. c. 40B subsidized housing


     8
       Condition 4.7 of the comprehensive permit requires
compliance with DEP regulations and standards governing the
management of stormwater runoff. Notwithstanding this express
condition, SEHC's expert took the position at trial that because
there is to be no development within 100 feet of wetlands,
compliance with DEP regulations is not required. The judge
agreed and concluded that whether the project complies with DEP
stormwater rules or polices is not relevant. The plaintiff does
not pursue this argument on appeal. We note, however, that
boards may impose conditions that do not render a project
uneconomic. See G. L. c. 40B, §§ 21-23; Board of Appeals of
Hanover v. Housing Appeals Comm., 363 Mass. 339, 373 (1973).
Particularly where the board is waiving local, more restrictive
components of its bylaw, it may well have concluded that
compliance with DEP stormwater regulations is necessary to
protect the groundwater.
                                                                       9


inventory was less than ten percent.       In appeals before the

Housing Appeals Committee, there exists a rebuttable presumption

that there is a substantial housing need that outweighs local

concerns upon proof that a municipality has failed to satisfy

affordable housing goals.      760 Code Mass. Regs. § 56.07(3)(a)

(2008).

    d.      Neighborhood properties.   The plaintiff's home abuts

the locus to the southeast.      His property and those of his

neighbors are served by private wells and private septic systems

located on their properties.      As the plaintiff and his neighbors

rely on these wells for their drinking water, the record

supports the inference that the area at issue, including the

locus and the neighboring residential homes, is dependent on

clean groundwater.

    2.      Discussion.   a.   The Comprehensive Permit Act and

standing.    Several cases have described the provisions of the

Act, G. L. c. 40B, §§ 20-23, sometimes referred to as the anti-

snob zoning act.     See Zoning Bd. of Appeals of Lunenburg v.

Housing Appeals Comm., 464 Mass. 38, 39-40 (2013).       See also

Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass.

339, 345-355 (1973); Zoning Bd. of Appeals of Greenfield v.

Housing Appeals Comm., 15 Mass. App. Ct. 553, 555-557 (1983).

For present purposes, we note that "[w]e have long recognized

that the Legislature's intent in enacting [the act] is 'to
                                                                   10


provide relief from exclusionary zoning practices which

prevented the construction of badly needed low and moderate

income housing' in the Commonwealth."   Zoning Bd. of Appeals of

Lunenburg v. Housing Appeals Comm., supra at 40, quoting from

Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20,

28-29 (2006).   Thus, the Legislature has provided a streamlined

application process to a single local board which is authorized

to waive local requirements and regulations, including zoning

ordinances or by-laws, which are not "consistent with local

needs."   Board of Appeals of Hanover v. Housing Appeals Comm.,

supra at 355.   "'Consistent with local needs' is a term of art

under G. L. c. 40B, § 20, defined as follows:   '[R]equirements

and regulations shall be considered consistent with local needs

if they are reasonable in view of the regional need for low and

moderate income housing with the number of low income persons in

the city or town affected and the need to protect the health or

safety of the occupants of the proposed housing or of the

residents of the city or town, to promote better site and

building design in relation to the surroundings, or to preserve

open spaces, and if such requirements and regulations are

applied as equally as possible to subsidized and unsubsidized

housing.'"   Zoning Bd. of Appeals of Lunenburg v. Housing

Appeals Comm., supra at 41.   On an abutter's appeal from a local

board's grant of a comprehensive permit, the board's decision
                                                                   11


"cannot be disturbed unless it is based on a legally untenable

ground, or is unreasonable, whimsical, capricious or arbitrary."

Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81, 96

(2007) (quotation omitted).9

     Pursuant to G. L. c. 40B, § 21, a person aggrieved by the

board's decision may appeal pursuant to G. L. c. 40A, § 17, to

the Superior Court.10   Many of the oft-cited parameters for

"aggrieved-person" status applicable in zoning appeals apply to

appeals from a comprehensive permit.   Abutters have the benefit

of a presumption of aggrievement, but if challenged by evidence

warranting a contrary finding, the plaintiff must prove standing

by introducing credible evidence of an injury special and

different from the concerns of the rest of the community.


     9
       Where a local board of appeals denies an application for a
comprehensive permit, the appellate route is to the Housing
Appeals Committee (HAC) for a de novo review to determine
whether the board's decision is "reasonable and consistent with
local needs." G. L. c. 40B, § 23, inserted by St. 1969, c. 774,
§ 1. Even where a municipality, as here, "has not met its
minimum housing obligation, HAC may still uphold denial of the
permit as reasonable and consistent with local needs if the
community's need for low or moderate income housing is
outweighed by valid planning objections to the proposal based on
considerations such as health, site, design, and the need to
preserve open space. However, a municipality's failure to meet
its minimum housing obligation provide[s] compelling evidence
that the regional need for housing does in fact outweigh the
objections to the proposal." Zoning Bd. of Appeals of
Greenfield v. Housing Appeals Comm., supra at 557 (quotations
and citations omitted).
     10
       Persons aggrieved may also appeal to the Land Court or
the Housing Court. G. L. c. 40A, § 17.
                                                                     12


Jepson v. Zoning Bd. of Appeals of Ipswich, supra at 88-89.

"Once a defendant challenges the plaintiff's standing and offers

evidence to support the challenge . . . the jurisdictional issue

is to be decided on the basis of the evidence with no benefit to

the plaintiff from the presumption."     Id. at 89 (quotations

omitted).    "[A] review of standing based on 'all the evidence'

does not require that the factfinder ultimately find a

plaintiff's allegations meritorious.     To do so would be to deny

standing, after the fact, to any unsuccessful plaintiff."      Id.

at 91, quoting from Marashlian v. Zoning Bd. of Appeals of

Newburyport, 421 Mass. 719, 721 (1996).     Thus, "[t]he 'findings

of fact' a judge is required to make when standing is at issue

. . . differ from the 'findings of fact' the judge must make in

connection with a trial on the merits.     Standing is the gateway

through which one must pass en route to an inquiry on the

merits.     When the factual inquiry focuses on standing,

therefore, a plaintiff is not required to prove by a

preponderance of the evidence that his or her claims of

particularized or special injury are true.     'Rather, the

plaintiff must put forth credible evidence to substantiate his

allegations.    [It is] in this context [that] standing [is]

essentially a question of fact for the trial judge.'"       Butler v.

Waltham, 63 Mass. App. Ct. 435, 440-441 (2005), quoting from

Marashlian v. Zoning Bd. of Appeals of Newburyport, supra.
                                                                   13


     SEHC argues that although the plaintiff supported his claim

of standing with expert testimony, because the judge ultimately

rejected the evidence that the plaintiff's well would have

elevated nitrogen levels, while adopting evidence that an

abutter's well will have elevated nitrogen levels, the plaintiff

lacks standing to pursue this appeal.     The Supreme Judicial

Court has rejected similar arguments in Marashlian v. Board of

Appeals of Newburyport, supra at 721-723, and Jepson v. Zoning

Bd. of Appeals of Ipswich, supra at 89-91.     Having presented

credible evidence of injury to legal rights of the type intended

to be protected by the Act, that the judge ultimately found that

the elevated nitrogen would not reach the plaintiff's well goes

to his success on the merits and not his ability to challenge

the acts of the board.   See id. at 91.    See also Butler v.

Waltham, supra at 440-442.

     b.   Waste disposal system.   On appeal, the plaintiff does

not attack the obvious density issues of the project, which

might readily call into play the anti-snobbery goals of the Act.

Rather, his arguments focus on the impact on the groundwater

serving his and his neighbors' property.     Leaving aside the

plaintiff's arguments related to SEHC's failure to identify its

water source,11 we turn directly to the board's decision to waive


     11
       SEHC contends that its failure to identify its water
source is a minor omission and the board's condition that it
                                                                   14


its limitation on the amount of sewage that may be introduced

into a waste disposal system in the WRPD.

     The gist of the judge's decision is that because the system

is designed to comply with applicable DEP regulations, the board

did not err in granting the comprehensive permit.   Generally,

DEP does not limit discharge into waste disposal systems

servicing less than 10,000 gallons per day,12 unless the system

is in certain "nitrogen sensitive" areas.   310 Code Mass. Regs.

§§ 15.214-15.216 (2006).   The defendants insist, and the judge

agreed, that the State standard for "nitrogen sensitive areas,"



connect the development to an appropriate public water source
adequately addresses its omission. While we cannot say failing
to identify a project's water source in a comprehensive permit
application may never be a minor omission, we are skeptical that
in the circumstances of this case it constitutes a minor
admission. SEHC could not be unaware that the water supply for
this particular project would be a major concern for the town
and abutters. The appropriate waste disposal requirements in
this case turn, in part, on the source of the project's water
supply. It is difficult to conceive that the town boards are
utterly unconcerned as to the source of the water or the
mechanism of delivery to the locus, which will be accessed by an
undersized driveway. In its brief, SEHC continues to assert
that it may acquire its water from a local private company,
private wells on adjacent property, or private wells some
distance from the locus. It has not eliminated circumstances
where the water source reasonably could be considered to be
drawn from the locus, particularly where SEHC owns the property
on which Plantation I exists. Moreover, the board's condition
that the locus be connected to a "public" water supply does not
appear to have eliminated private wells from consideration.
     12
       Pursuant to 314 Code Mass. Regs. §§ 5.00 (2009), a
groundwater discharge permit is generally required for a
wastewater disposal system discharging greater than 10,000
gallons per day.
                                                                  15


which would provide roughly equivalent flow limitations as

provided in the local regulation for the WRPD, does not apply in

these circumstances because SEHC does not propose both an on-

site well and on-site waste disposal system and the locus is not

located in any of the sites identified in the regulations.13    It

is not so clear to us that the stricter DEP requirements do not

apply here where the area abutting the locus has both on-site

wells and on-site waste disposal systems, the actual source of

the locus's water supply has not been identified, and SEHC owns

an abutting property that contains a fifty-unit apartment

complex serviced by an on-site well and on-site waste disposal

system.14   DEP has not yet had the opportunity to weigh in on the


     13
       The regulation provides that "[n]o system serving new
construction in areas where the use of both on-site systems and
drinking water supply wells is proposed to serve the facility
shall be designed to receive or shall receive more than 440
gallons of design flow per day per acre from residential uses
except as set forth at 310 [Code Mass. Regs. §] 15.216
(aggregate flows) or [§] 15.217 (enhanced nitrogen removal)"
(emphasis supplied). 310 Code Mass. Regs. § 15.214(2) (2006).
The loading restrictions also apply to "Interim Wellhead
Protection Areas and Department approved Zone IIs of public
water supplies" and designated nitrogen-sensitive embayments.
310 Code Mass. Regs. § 15.215 (2006).
     14
       Under principles of merger existing even prior to our
current zoning enabling act, "[a]djacent lots in common
ownership will normally be treated as a single lot for zoning
purposes so as to minimize nonconformities." Preston v. Board
of Appeals of Hull, 51 Mass. App. Ct. 236, 238 (2001), quoting
from Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct.
521, 522 (1987). Whether the common-law merger doctrine would
apply here has not been raised, but DEP's regulations
incorporate a similar theory. The regulations define "facility"
                                                                  16


issue, but at least one of the board's consultants, as well as

the plaintiff's expert, opined that the more restrictive,

"nitrogen sensitive," DEP requirements would have to be met.

Nonetheless, for purposes of this appeal, we accept the judge's

conclusion that the more restrictive DEP requirements do not

apply to the locus and the State regulations do not limit

discharge for systems, such as that proposed, that handle less

than 10,000 gallons per day.   Thus, the question is whether, in

these circumstances, presuming the system meets other applicable

State standards, it was reasonable for the board to waive the

local, more restrictive, provisions of the bylaw.

    The judge relied on Zoning Bd. of Appeals of Holliston v.

Housing Appeals Comm., 80 Mass. App. Ct. 406, 416 & n.9 (2011)

(Holliston), for the proposition that because the waste disposal



as "[a]ny real property (including any abutting real property)
and any buildings thereon, which is served, is proposed to be
served, or could in the future be served, by a system or
systems, where: (a) legal title is held or controlled by the
same owner or owners; or (b) the local Approving Authority or
the Department otherwise determines such real property is in
single ownership or control pursuant to 310 [Code Mass. Regs. §]
15.011 (aggregation)." 310 Code Mass. Regs. § 15.002 (2006).
In addition, 310 Code Mass. Regs. § 15.011 (2006) provides
further guidance for making the determination whether facilities
are in separate ownership or control for purposes of 310 Code
Mass. Regs. §§ 15.000 (2006). That SEHC owns the land on which
Plantation I has been constructed and is under agreement to
purchase the land for Plantation II, may well be enough for DEP
to conclude that Plantation I and Plantation II should be
treated as a single facility for the purposes of §§ 15.000,
notwithstanding that there may be some organizational
differences between the two entities.
                                                                   17


system will comply with DEP regulations, it was lawful to issue

the comprehensive permit.   It is true that our appellate courts

have upheld permits issued where wastewater disposal or

stormwater discharge plans were not finalized but approval was

conditioned on meeting State requirements.   See Board of Appeals

of Hanover v. Housing Appeals Comm., 363 Mass. at 381;

Holliston, supra at 416.    We have little doubt that, in many

instances, a condition that requires the developer to meet State

waste removal system standards is sufficient to protect local

concerns.   Compliance with State standards, however, is not

necessarily the end of the inquiry.

    In Holliston, we made clear that it was open to the board

to justify denying an application for a comprehensive permit by

identifying a health or other local concern that (i) supports

the denial, (ii) is not adequately addressed by compliance with

State standards, and (iii) outweighs the regional housing need.

See id. at 417-419.   In Holliston, we concluded, however, that

with regard to environmental contamination, there was no local

by-law or regulation that was more protective than the State

regulations.   See id. at 417.   And, although the local by-law

did have a stricter wetlands buffer zone and stricter stormwater

management guidelines, we concluded the board had failed to

identify a local interest protected by the stricter regulations

that outweighed the local need for affordable housing,
                                                                    18


particularly where the substantial evidence showed that the

proposed project, as designed, would enhance the wetlands at

issue and eliminate existing contamination.     Id. at 420-422.   We

concluded that the local board did nothing more than point out

that the project violated their more onerous regulations and

failed to show that DEP would "be unable to provide adequate

protection to current and future residents."    Id. at 419.

    Here, the plaintiff's initial complaints about waiving the

limit of impervious coverage, which he does not pursue on

appeal, are similar to the issues presented in Holliston.     The

plaintiff does not refute SEHC's showing that the goals of the

bylaw's restriction would be met by the systems put in place to

direct all runoff into the ground, thereby actually increasing

the level of groundwater recharge from predevelopment levels.

Thus, the plaintiff could not show that the project was

inconsistent with local needs in this regard.

    With regard to the proposed waste disposal system, on the

other hand, the plaintiff does more than simply point at the

fact that the proposed development violates the bylaw.     He has

presented evidence to support the judge's finding that, as

designed and approved, "it is more likely than not" that the

project will cause excessive nitrogen levels at the plaintiff's

neighbor's well.   The calculations introduced, which support the

judge's finding, are in part based on the amount of discharge
                                                                     19


the project will introduce on the undersized locus.    SEHC's

expert testified that he found no fault with the accuracy of the

calculations.   Rather, SEHC's expert testified that he simply

made no effort to demonstrate that the system as planned would

not result in elevated nitrogen in the groundwater reaching

abutting wells because the board did not ask him to do so.      He

relied on a presumption, which he contends the State applies,

that provides that if a system is designed in conformance with

State standards, the facility is presumed to protect public

health, safety, and the environment.

    What SEHC and its expert continue to ignore is that the

plaintiff presented evidence, adopted by the judge, rebutting

any such presumption.   The judge's finding that the system would

contaminate the groundwater such that unacceptable levels of

nitrogen would reach an abutter's well demonstrates that

compliance with the State standards, which SEHC contends are

applicable and the judge found to be applicable, are

insufficient to protect the groundwater from being contaminated

by the proposed project.   We conclude that the plaintiff has

identified an important local health issue, maintaining clean

groundwater servicing local private wells, that is not

adequately protected by compliance with applicable State

standards.   Cf. Holliston, supra at 417-419.   Enforcement of the

bylaw, however, would restrict the amount of sewage disposal
                                                                  20


that may be introduced into the WRPD and thereby protect the

adjacent wells.

    We next weigh the local concern, the elevated nitrogen

levels in the groundwater at the lot line and, in fact, reaching

an abutter's well, with the local need for affordable housing.

To be sure, the need for affordable elderly housing in the town

is real.   In weighing the need for affordable housing against

local health concerns, however, we are aware of no instance

where approval was given to a project that would cause nitrogen

levels or other contaminants in a neighboring private well to

exceed DEP recommendations.   The record does not reflect that

the abutters have an alternative water supply.   Nor do we mean

to suggest that abutters may be forced to connect to an

alternative water source, if one were available, so that low

income housing may be developed.   The Act has no taking

component within it.   Cf. Zoning Bd. of Appeals of Groton v.

Housing Appeals Comm., 451 Mass. 35, 40 (2008) ("The Act does

not authorize the committee, directly or indirectly, to order

the conveyance of an easement over land abutting the project

site of a proposed affordable housing development").   When faced

with evidence that one or more adjacent private wells will have

elevated nitrogen levels and there is no public water source in

the area and no proposal to provide the abutter with clean

water, it is unreasonable to conclude that the local need for
                                                                      21


affordable housing outweighs the health concerns of existing

abutters.    In these circumstances, the board's waiver of the

bylaw provision limiting the flow into waste disposal systems

within the WRPD was unreasonable.

    3.      Conclusion.   The Superior Court judgment affirming the

comprehensive permit is reversed.     The case is remanded for

entry of a judgment revoking the comprehensive permit.

                                      So ordered.
