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Hamel v. Board of Health

Appeals Court of Massachusetts

March 28, 1996, Argued ; May 13, 1996, Decided

No. 95-P-776.

Opinion

 [*420]   [**1199]  KASS, J. As part of a plan to protect the drinking water supply of the Katama section of Edgartown from contamination, that town's board of health (board), acting under authority conferred by G. L. c. 111, § 31, adopted a regulation prohibiting the construction of guesthouses in the affected area. Paul G.  [**1200]  Hamel and Carolyn Hamel own a four-bedroom house located on a two-acre lot that is subject to the board's regulation. They wish to construct a two-bedroom guesthouse with its own septic system and brought a complaint in Superior Court for a declaration that the "no guesthouses" regulation was a usurpation by the board of zoning power [*421]  vested by G. L. c. 40A exclusively in the inhabitants of the town. A judge of that court, who heard the question [***2]  on the Hamels' motion for summary judgment, ruled that the "no guesthouses" regulation was related to the health needs of the town and was, therefore, a lawful exercise of the board's authority under G. L. c. 111, § 31. 2 We affirm.

Disquieting levels of nitrates, ammonia, and saltwater had been detected in private drinking water wells in Edgartown,  [***3]  causing the board in December, 1982, to take two steps: first, to impose a moratorium on development in the Katama section 3 of Edgartown 4; and, second, to commission a hydrological study of the Katama aquifer by a firm of consulting engineers and hydrogeologists.

Phase one of the study assessed existing groundwater data for the entire town. A second phase focused on the Katama area. The consultant prepared a groundwater contour map, undertook additional water quality sampling, developed a model of nitrate levels in eastern Katama, and made preliminary recommendations. A final and third phase of the study furnished more detailed data and [***4]  made recommendations for regulations for groundwater protection in Katama, in particular, and in Edgartown more generally. The study included models which predicted nitrate concentrations (this was the pollutant of concern) in groundwater under a) then current development; b) saturation development without regulations in place; and c) saturation development with regulation. Among other factors, the consultant considered the total acreage in the Katama area; the number of lots already built upon; the quantity of buildable land and open space; the  [*422]  number of potential buildable lots, houses, guesthouses, condominiums, hotels and motels permitted by zoning; the nitrate concentrations in rainfall and septic tank effluent; annual recharge capacity of the aquifer; the average daily wastewater flow to each septic tank per person; the State average for the number of people per residence (the number was three); and the degree of nitrate dilution in the total volume of groundwater.

Predictably, the consultant reported a connection between nitrate concentrations in groundwater and development density. In Katama, the report recommended the adoption of a standard of one bedroom per 10,000 [***5]  square feet of lot area; sewage flow not to exceed 110 gallons per day per 10,000 square feet of lot area; a requirement that septic systems not be designed with capacity for more than four bedrooms; a four-bedroom limit for new houses; and a prohibition on guesthouses and multifamily dwellings. Such restrictions, the engineers advised the board, would have an ameliorating effect on groundwater contamination by nitrates.

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40 Mass. App. Ct. 420 *; 664 N.E.2d 1199 **; 1996 Mass. App. LEXIS 165 ***

PAUL G. HAMEL & another 1 vs. BOARD OF HEALTH OF EDGARTOWN.

Prior History:  [***1]  Bristol. Civil action commenced in the Superior Court Department on January 29, 1993. The case was heard by Richard J. Chin, J., on motions for summary judgment.

Disposition: Judgment affirmed.

CORE TERMS

regulation, guesthouses, groundwater, board of health, nitrate, zoning, wastewater, bedrooms, septic

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