Devine v. Board of Health

845 N.E.2d 444, 66 Mass. App. Ct. 128
CourtMassachusetts Appeals Court
DecidedApril 14, 2006
DocketNo. 05-P-428
StatusPublished
Cited by3 cases

This text of 845 N.E.2d 444 (Devine v. Board of Health) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Devine v. Board of Health, 845 N.E.2d 444, 66 Mass. App. Ct. 128 (Mass. Ct. App. 2006).

Opinion

Katzmann, J.

The defendants, Board of Health of Westport and its agent (collectively board), appeal the allowance of summary judgment by a Superior Court judge, requiring the board to issue a septic system permit to the plaintiff, Theresa L. Devine as trustee of the Atlantic Ave. Realty Trust (trust), based on a constructive grant. Holding that the board had violated G. L. c. Ill, § 3IE, the judge interpreted that statute to require that a board of health not only vote on a permit application within the [129]*129prescribed time period, but if the vote is a disapproval, also record the vote in a written decision, with a statement of reasons, within the same time period. According to the judge, failure to issue such a written decision within the prescribed time period triggers the constructive approval of the permit. We agree with this reading of the statute, and affirm the judgment.

Background. The dispute in this case arises from a proposed septic system upgrade for a residential property in Westport. When the two-bedroom house located on the property was enlarged to four bedrooms, the existing septic system went out of compliance with the requirements of 310 Code Mass. Regs. §§ 15.00 (1995) (more commonly known as Title V). Seeking to obtain Title V certification, the plaintiff submitted to the board a septic system upgrade plan, dated August 31, 2002, and application for a subsurface sewage disposal system construction permit. After the board denied the application on November 19, 2002,3 the plaintiff submitted a revised plan, dated January 14, 2003, and application to the board on or about January 20, 2003.

The board held public hearings on the revised application on May 19, June 16, and June 20, 2003. On June 20, 2003, the board voted to deny the application. As stated at the hearing, the application was denied “[bjased on the risk of flood damage to the environment and also disruption of the system . . . [r]elating both to barrier beach and flood plain.” After the board’s unanimous vote to deny, its chairman stated that the board would “issue a written letter of denial to the applicant . . . [and] recommend[ed] that [the board] probably issue it as soon as possible . . . within ten days.” The letter was never sent.4

Having received no written decision from the board after nine months, the plaintiff sent a written demand to the board on [130]*130March 25, 2004, for issuance of the permit, which the plaintiff claimed had been constructively granted pursuant to G. L. c. Ill, § 32E. The board did not respond. On May 10, 2004, the plaintiff filed a complaint seeking mandamus relief (count I) and a declaratory judgment (count II), resulting ultimately in summary judgment in favor of the plaintiff and a determination of a constructive grant, which are the subject of this appeal.5

Discussion. This case turns on G. L. c. Ill, § 3IE, inserted by St. 1983, c. 536, which establishes procedures under which local boards of health must operate when deciding whether to issue permits for the construction, maintenance, or alteration of residential sewage disposal systems. Section 3 IE provides in relevant part that:

“Any health officer or board of health . . . shall act upon a completed application for such permit to construct, maintain, or alter such system within forty-five days from the date upon which such completed application is filed with said health officer or board of health. If a determination on a completed application is not rendered within forty-five days by the appropriate health officer or board of health, then said permit shall be deemed to have been granted.” (Emphasis added.)

G. L. c. Ill, § 3IE, first par. Section 3IE defines “action on a completed application” as meaning either “approval of said application and issuance of the permit” or “disapproval of said application with a written statement of the reasons for such disapproval . . . sent to the applicant by first class mail.”6 G. L. c. Ill, § 3IE, third par.

[131]*131Interpretation of a statute is a question of law, which we review de nova. Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 618 (1997). We interpret a statute “according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated . . . [and] the statutory language itself is the principal source of insight into the legislative purpose.” Commonwealth v. Smith, 431 Mass. 417, 421 (2000), quoting from Registrar of Motor Vehicles v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981). See Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 622-623 (1983). We attempt to construe the language such that all provisions will be given effect and no part rendered inoperative or superfluous. Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998).

Applying these principles and focusing on the language of § 3 IE, we note that § 3 IE plainly requires the board to act on a completed application within forty-five days and defines precisely what “action on a completed application” the board is to take — namely, “approval of said application and issuance of the permit ... or disapproval . . . with a written statement of the reasons for such disapproval. . . sent to the applicant by first class mail” (emphasis added). G. L. c. Ill, § 3IE, third par. The Legislature defined, using the word “action,” what is meant by the mandate in the first paragraph that “the board of health . . . shall act . . . within forty-five days” (emphasis added). G. L. c. Ill, § 3IE, first par. The board cannot satisfy its duty to “act on a completed application” without issuing a permit or a written decision of its disapproval.

“Where the statute is not ambiguous or couched in terms suggesting that we must look beyond its express language, we construe the statute in accordance with its plain meaning.” [132]*132Marco v. Green, 415 Mass. 732, 739 (1993). Here, the plain meaning in § 3 IE of using the same deadline of “forty-five days” for both the mandate to act and the constructive grant provisions is that these provisions refer to the same time period and the same thing. In short, § 3 IE spells out exactly what is required of the board and prescribes the consequences of a failure to adhere to its timeline.

The plaintiff correctly reads § 3 IE as providing for the constructive grant of a permit when a board fails to act on a completed application, by issuing either a permit or a written statement of the reasons for disapproval, within forty-five days. Under this interpretation, the board constructively approved the plaintiff’s application when it failed to mail a written statement to the plaintiff within the time limit, even though the board had voted to disapprove the application within forty-five days of its filing.

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Bluebook (online)
845 N.E.2d 444, 66 Mass. App. Ct. 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devine-v-board-of-health-massappct-2006.