Subdivision Plans Review by Board of Health In Massachusetts

Section 81U of G. L. c. 41 ( 81U) provides, in pertinent part, that a board of health, within forty-five days after receiving a definitive plan, shall report in writing to the planning board whether it approves or disapproves of the plan. "In the event of disapproval, the board of health shall make specific findings as to which, if any, areas shown on such plan cannot be used for building sites without injury to the public health, and include such specific findings and the reasons therefor in such report, and where possible, shall make recommendations for the adjustments thereof." 81U, first par. Section 310-02 of the Groton Code is the analogous provision to 81U and provides, in relevant part, as follows: "The BOH shall report to the planning board within forty-five (45) days after the receipt of the definitive plan. the BOH shall indicate on its report approval or disapproval of the subdivision. In the event of disapproval, the BOH shall make specific findings as to which, if any, of the lots shown on the plan are unsuitable for use as building sites because of potential injury to the public health." A planning board may not override an adverse recommendation of a board of health in its report on a proposed subdivision. Loring Hills Developers Trust v. Planning Bd. of Salem, 374 Mass. 343, 345, 372 N.E.2d 775 (1978); K. Hovanian at Taunton, Inc. v. Planning Bd. of Taunton, 32 Mass. App. Ct. 480, 486, 590 N.E.2d 1172 (1992). "The scope of judicial review of the decision of the board of health should be the same as the scope of review of the planning board decision." Loring Hills Developers Trust, 374 Mass. at 350. While recognizing the scope of review stated in Loring Hills, one treatise on Massachusetts land use law has stated there are fundamental differences in the way a planning board and a board of health review subdivision plans. Mark Bobrowski, Handbook of Massachusetts Land Use and Planning Law (1993). While planning boards act pursuant to adopted rules and regulations, "the board of health may or may not have rules governing its review of the plan. If the board of health has adopted regulations, it may not exceed these regulations in fashioning its recommendations. If the board of health does not have regulations, this does not preclude an ad hoc review for health and safety threats.... Under the familiar 'arbitrary and capricious' scope of review, the court is likely to investigate whether the board's recommendations further a legitimate public purpose in the field of health and safety and whether the recommendation is designed to reasonably accomplish these objectives." In the absence of any more specific statutory or regulatory requirement, "the standard to be applied by the board of health in deciding whether to approve or disapprove a plan in whole or in part . . . is that found in 81U, namely, whether 'the lots shown on such plan can be used for building sites without injury to the public health.'" Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171, 182-183, 360 N.E.2d 668 (1977). Prior to reaching such a decision, the BOH had to afford the trust "a measure of procedural due process." Id. 182. I specifically find and rule that the sixteen hearings held by the BOH on the definitive plan fulfilled the due process requirement. In Massachusetts Broken Stone, the board of health approved a proposed subdivision on three conditions. One of those conditions was that "prior to any construction, evidence be submitted demonstrating that neither the ground water nor the soil contained chemical contamination inimical to human health." 45 Mass. App. Ct. at 745. The court held that "while the concern of the board of health may be legitimate, that board has the power to require such testing independent of the subdivision approval process, and the absence of such testing during the subdivision approval process does not constitute a proper basis for disapproving the subdivision plan." Id. at 746-747.