NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-828
ZONING BOARD OF APPEALS OF HINGHAM & another 1
vs.
HOUSING APPEALS COMMITTEE & another. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The town of Hingham's zoning board of appeals granted a
comprehensive permit pursuant to G. L. c. 40B, §§ 20-23, to the
defendant, River Stone, LLC, allowing, with certain conditions,
construction of a thirty-two unit housing development that
includes affordable housing. On appeal to the Housing Appeals
Committee (HAC), the HAC removed certain conditions that the
town and the board (collectively, the board) contends were
directed toward (1) ensuring safe nitrogen levels in adjacent
private wells and (2) ensuring safe roadways, adequate spacing,
and safe access for fire safety. The board appealed from the
1 Town of Hingham.
2 River Stone, LLC. HAC's decision to the Land Court pursuant to G. L. c. 40B and
G. L. c. 30A, and on cross motions for judgment on the
pleadings, a judge of that court entered judgment affirming the
HAC's decision. The board now appeals therefrom, arguing that:
(1) the HAC abused its discretion in the conclusions it drew
when balancing the health risks from excessive nitrogen loading
in potable water supplies against the likelihood of nitrogen
reaching abutting wells; (2) the HAC violated the board's
substantial rights by ordering the board to waive certain road
width and setback requirements; and (3) the HAC erred in
declining to admit evidence as to the change in percentage of
low income housing in Hingham since River Stone's application
for a comprehensive permit was filed as relevant to balancing
the local concerns raised with the need for affordable housing.
We affirm.
Background. The background facts are largely undisputed,
and we draw them from the HAC's decision and the administrative
record. In March 2016, River Stone applied to the board for a
comprehensive permit. The board granted, with conditions, a
permit for a thirty-two unit condominium development comprised
of twelve separate buildings on a 6.7 acre parcel within the
town's Residence B zoning district. The parcel is surrounded by
mainly residential single-family dwellings and bounded by
wetlands to the east. The units will be connected to a public
2 water supply and will be served by a private wastewater
collection system that will transfer sewage to an on-site
wastewater treatment plant and soil absorption system.
As proposed, four twenty-foot wide internal roadways would
serve the units with a sidewalk on one side. The development
will have 4.5 parking spaces per unit and parking will not be
allowed on the roadways. Condition C.1(c)(i) requires, however,
that the width of traveled roadways be increased from the
proposed twenty feet to twenty-four feet.
The Hingham zoning by-laws require a front yard setback of
thirty-five feet, and all but three of the proposed units will
meet that requirement. Those three units will be within six
feet of the property line; the board declined to grant River
Stone's request for waivers for the three units. Similarly, the
board declined to waive several side and rear setback
requirements. Conditions C.1(a)(i)-(iii) impose a minimum front
yard setback of thirty-five feet for all units; rear and side
setbacks of twenty feet; and twenty feet of separation distance
between all buildings. In addition, River Stone requested
waivers of the setback requirements for two retaining walls:
one wall would be fifteen feet high and five feet from the
property line, and another would be twenty feet high and within
six feet of the building. The board granted a partial waiver,
and imposed condition C.1(e)(ii) requiring an eight-foot setback
3 from the property line and condition C.1(e)(iii) requiring a
ten-foot setback from a structure.
Regarding wastewater disposal, River Stone's application
proposed to comply with the Title 5 regulations issued by the
State Department of Environmental Protection, 310 Code Mass.
Regs. § 15.000 (2014), for non-nitrogen sensitive areas, and
submitted a design for a system with a flow of 426 gallons per
day per 12,500 square feet in lot area. River Stone, through
its expert geologist, Peter Dillon, contended that the project
is not in a nitrogen-sensitive area as defined by Title 5. See
310 Code Mass. Regs. §§ 15.214-15.216 (2014). However, citing
risks to human health such as death, birth defects, miscarriages
and other health concerns from the "introduction of excessive
nitrogen" in nearby private wells; the town's adoption of more
stringent requirements for wastewater treatment plant and soil
absorption systems 3 in order to protect the water supply; and its
decades-long history of consistently enforcing those regulations
and protecting its watershed, the board granted a "partial
waiver" from the local standards, and conditioned approval on
compliance with one of two options. Condition C.5(a) required
River Stone to either (1) reduce the number of proposed bedrooms
3 The local board of health regulations limit sewage flow to 110 gallons per day per 12,500 square feet in lot area.
4 so that the disposal system does not discharge more than 110
gallons of design flow per day per 10,000 square feet in lot
area; or (2) design the onsite wastewater disposal system using
advanced nitrogen reduction technology.
The board imposed additional conditions, but the parties
narrowed the issues before the HAC to the following: setbacks
as they impact safety, density and intensity; the width of the
internal roadways; and the effect of the wastewater disposal
system on wells on neighboring residential properties. The HAC
determined that the conditions imposed by the board rendered the
project uneconomic. Indeed, the HAC found that the "nitrogen
loading" option of reducing bedrooms would limit the project to
between twenty-six and twenty-nine bedrooms -- a two-thirds
reduction from the ninety proposed bedrooms. The nitrogen
treatment facility alternative would cost $250,000 and an
additional $150,000 in site work costs. On appeal, the board
does not challenge the HAC's conclusion that its conditions
cause the project to be uneconomic.
So far as the record reveals, the parties agree that
excessive nitrogen in water wells is a safety hazard and can
lead to serious health issues. The HAC found, in part, that:
"[t]he [b]oard has . . . provided evidence to establish that Hingham has had a long-standing, documented local concern in protecting its already stressed drinking water supply from nitrogen contamination, and that this concern includes the protection of potable residential wells.
5 Hingham has for many years taken steps to attempt to protect its current and future water supplies and the drinking water of its residents, both public and privately sourced, through the BOH [board of health] Rules establishing a town-wide nitrogen loading standard that is 20% higher than the state standard."
The HAC also found that the board presented evidence through its
expert civil engineer, Patrick Brennan, that at least three
nearby wells are downgradient from the project.
The HAC noted that the board agreed that the site is not in
a nitrogen-sensitive location as defined under State
regulations, but that in 1996, the Hingham board of health
regulations identified the Weir River Watershed as a nitrogen
sensitive area, and the board's expert, Brennan, testified that
the designation was necessary to protect nearby wells that are
downgradient from the site. 4 Nonetheless, the HAC credited
Dillon who, based on thirty-five years of studying the geology
in the area, testified that the "geology of the area indicates
bedrock close to or above the surface" and that given the
bedrock in the area, there is insufficient vertical gradient to
4 There was evidence that the local public health concern derives from evaluation of the Weir River Watershed, which was classified as "highly susceptible to cross contamination, including nitrogen," and thus more stringent local regulations were established "due to the stressed watershed, residential growth, protection of the public water supply and serious health effects of nitrogen on potable water supplies and private wells." The HAC also noted Brennan's testimony to the effect that water would flow downgradient, but that bedrock could restrict or block that flow.
6 drive the water down one hundred feet and "there would be no
risk of nitrate in the waste reaching the wells." The HAC found
Dillon's testimony "to be more credible than that of Mr.
Brennan," and concluded that the board had not met its burden to
prove that it is more likely than not that abutting wells would
be contaminated. The HAC rejected the board's argument that
this court's decision in Reynolds v. Zoning Bd. of Appeals of
Stow, 88 Mass. App. Ct. 339 (2015) compelled the HAC to uphold
the board's decision. The HAC noted that in Reynolds, the
Superior Court judge found that it was "more likely than not"
that the proposed development would cause excessive nitrogen
levels at the neighbor's well and, in the context of that case,
we held that the local need for affordable housing did not
outweigh the health concerns of abutters. The HAC reasoned that
"the [b]oard has demonstrated a possibility of serious health risks posed by nitrogen contamination of nearby wells. This likelihood is less than was seen in Reynolds. Here, we are required to balance a much smaller risk of an undoubtedly serious health impact against the affordable housing need. We conclude that the [b]oard has failed to demonstrate that its local concern regarding health risks posed by nitrogen contamination of nearby wells and areas outweighs the need for low or moderate income housing."
Ultimately, the HAC struck condition C.5.
Regarding the road width, the board argued that the
condition was necessary because parked service or delivery
vehicles or snow might obstruct part of the road and interfere
7 with the minimum roadway width needed for safe passage of
emergency vehicles. Although the town fire marshal testified
that the proposed width of twenty feet meets State codes and
town requirements, the board's traffic expert testified that a
twenty-four foot wide roadway is recommended by the Institute of
Transportation Engineers and the American Association of State
Highway and Transportation Officials for medium density
residential developments.
The HAC, noting that the twenty-foot road width complied
with the State fire code; that the board had imposed a condition
prohibiting parking on the roads; that the project will have a
sidewalk for pedestrian access and 144 parking spaces for
thirty-two units, concluded that there was no "greater risk of
obstruction by a parked delivery truck than there would be of
any other random occurrences." The HAC concluded that the board
had "failed to demonstrate that the asserted potential
obstructions on the project roadways represent a valid local
concern that outweighs the regional need for affordable
housing," and removed the twenty-four foot width requirement.
Similarly, the board argued before the HAC that the board's
setback and building separation requirements "seek[] to ensure
the quality of the layout of the site for the residents who will
live within the project by protecting light and air between
buildings and avoid overcrowding." The HAC noted that a privacy
8 fence protects abutters' views and the "New England Village
style buildings emulate single family homes in the surrounding
neighborhood," and the project includes 3.65 acres of open space
and lawn area. The HAC concluded that the board had not proved
a local concern that outweighs the need for affordable housing
with regard to the setback requirements.
As for the retaining wall setback requirements, the board
reasoned that the fire marshal testified that ten feet was the
minimum clearance necessary to set up a ladder to access the
upper floor of one of the units from the side and the
requirement is necessary for the "safety of future residents and
fire fighters." HAC struck the conditions, noting that no fire
safety rules or regulations require such a setback, and
firefighters will be able to access the upper floor from the
front and rear of the unit.
A Land Court judge allowed River Stone's and the HAC's
motions for judgment on the pleadings thereby affirming the
HAC's decision in all aspects, and judgment entered for the
defendants.
Discussion. 1. Standard of review. "There exists a
rebuttable presumption that the regional affordable housing need
outweighs local concerns where the town's stock of low and
moderate income housing is less than ten percent." Zoning Bd.
of Appeals of Holliston v. Housing Appeals Comm., 80 Mass. App.
9 Ct. 406, 414 (2011). Where, as here, the HAC found that the
conditions render the project uneconomic and the board does not
refute that conclusion on appeal, the HAC was still required to
consider whether the conditions or requirements imposed by the
board were consistent with local needs. See 760 Code Mass.
Regs. § 56.07(2)(b)(3) (2008). Thus, the board had the burden
of "proving, first, that there is a valid health, safety,
environmental, design, open space, or other Local Concern which
supports such conditions, and then, that such Local Concern
outweighs the Housing Need." Id.
"Our review is governed by the familiar standards of G. L.
c. 30A, § 14. We may disturb HAC's decision if we conclude it
is, as relevant to the board's arguments, '[i]n excess of the
statutory authority or jurisdiction of the agency,'
'[u]nsupported by substantial evidence,' or '[a]rbitrary or
capricious, an abuse of discretion, or otherwise not in
accordance with law.'" Zoning Bd. of Appeals of Milton v. HD/MW
Randolph Ave., LLC, 490 Mass. 257, 262 (2022), (quoting G. L.
c. 30A, § 14). "Although we review questions of law de novo, we
are required to give due weight to the experience, technical
competence, and specialized knowledge of the agency, as well as
to the discretionary authority conferred upon it, and apply all
rational presumptions in favor of the validity of the
administrative action" (quotations and citations omitted). Id.
10 The agency decision may only "be set aside if the evidence
. . . points to an overwhelming probability of the contrary"
(citation omitted). Pyfrom v. Commissioner of the Dep't of Pub.
Welfare, 39 Mass. App. Ct. 621, 625 (1996). "A court may not
displace an administrative board's choice between two fairly
conflicting views, even though the court would justifiably have
made a different choice had the matter been before it de novo"
(citation omitted). Zoning Bd. of Appeals of Sunderland v.
Sugarbush Meadow, LLC, 464 Mass. 166, 172 (2013). When the HAC
hears from competing experts, "[i]t is for the agency, not the
reviewing court, to weigh credibility of witnesses. Id. at 184.
See Eisai, Inc. v. Housing Appeal Comm., 89 Mass. App. Ct. 604,
611 (2016).
2. Analysis. a. Nitrogen loading conditions. We begin
our analysis by recognizing that the board does not dispute the
HAC's determination that the conditions imposed by the board
render the project uneconomic. Thus, the board has the burden
to prove that "there is a valid health, safety, environmental,
design, open space, or other Local Concern which supports such
conditions, and then, that such Local Concern outweighs the
Housing Need." 760 Code Mass. Regs. § 56.07(2)(b)(3).
Moreover, in the present case, where the town has not met the
statutory minimum regarding affordable housing, there is a
"rebuttable presumption that there is a substantial Housing Need
11 which outweighs Local Concerns." 760 Code Mass. Regs.
§ 56.07(3)(a). See Zoning Bd. of Appeals of Lunenburg v.
Housing Appeals Comm., 464 Mass. 38, 42 (2013).
Here, the board does not contend that the project is within
a nitrogen sensitive area under Title 5. Rather, the core claim
is that the board presented evidence (as the HAC acknowledged in
its written decision) to establish that the town has a "long-
standing documented local concern in protecting its already
stressed drinking water supply from nitrogen contamination, and
that this concern includes the protection of potable residential
wells." Indeed, the board introduced evidence that it "believed
that the private wells down gradient from the proposed soil
absorption system may be adversely impacted by the proposed
system and protection of these wells from contamination should
be afforded." The board argues that the HAC's decision to
strike the entirety of condition C.5 to the comprehensive permit
creates a serious health risk and was arbitrary and capricious,
unsupported by substantial evidence, and an abuse of discretion.
There is a measure of persuasiveness to the board's
thoughtful arguments. We have little doubt that the board
presented substantial and significant evidence of a valid
health, safety, or other local concern. The question, however,
is whether the HAC erred or abused its discretion in concluding
that the board failed to meet its burden to show that this local
12 concern outweighed the housing need, keeping in mind the
rebuttable presumption noted supra.
The HAC concluded that the evidence presented by the board
established only that contamination of one or more wells by
excess nitrogen is a possibility, not a probability. On appeal,
the board does not contend that its evidence met the
preponderance standard applicable to civil cases, see Callahan
v. Fleischman Co., 262 Mass. 437, 437-438 (1928), or otherwise
argue that the evidence of likelihood of unacceptable levels of
nitrogen reaching potable wells was equivalent to the "more
likely than not" standard that we held in Reynolds, 88 Mass.
App. Ct. at 349, was sufficient to outweigh the need for
affordable housing. Rather, the board argues, in essence, that
given the risks associated with excess nitrogen in well water,
we should weigh the harms differently than the HAC did.
River Stone's expert testified that because of the
characteristics of the bedrock, which is where he expected the
wells to be located, the flow of groundwater would not reach the
wells. While he was not certain which direction the groundwater
would flow, he expected that it would travel north toward the
ocean and concluded that there was no risk of nitrate in the
waste reaching the wells. The HAC found that River Stone's
expert "provided a clear, specific explanation of the geology of
the area" as well as the "potential impact of the project," and
13 expressly found his testimony to be more credible than that of
the board's expert. Our cases are clear that we may not
displace the HAC's choice between experts. See, e.g., Sugarbush
Meadow, LLC., 464 Mass. at 184; Zoning Bd. Of Appeals of
Braintree v. 383 Washington St., LLC, 105 Mass. App. Ct. 592,
605 (2025) ("credibility determinations are the province of the
HAC"). Moreover, the record demonstrates that the board was
unable to quantify the risk that nitrogen would contaminate any
local wells. The board bore the burden to prove that the local
concern outweighs the need for affordable housing. The board
simply failed to persuade the HAC that the proposed project
"more probably than not" would contaminate local wells.
Further, we agree with the HAC that Reynolds does not
compel a contrary result. In Reynolds, an abutter of a proposed
affordable housing development introduced evidence supporting a
finding that it was "'more likely than not' that the project
will cause excessive nitrogen levels at the plaintiff's
neighbor's well." Reynolds, 88 Mass. App. Ct. at 349. The
developer in that case did not challenge that evidence and "made
no effort to demonstrate that the system as planned would not
result in elevated nitrogen in the groundwater reaching abutting
wells." Id. That was not the case here. Rather, River Stone
presented evidence through its expert that groundwater with
elevated nitrogen levels would not reach the neighboring wells,
14 which led the HAC to conclude that there was "only a
possibility" of such an occurrence. Based on the evidence
presented, it was not outside the range of reasonable
alternatives for the HAC to conclude that the "possibility" of
nitrogen contamination of nearby wells did not outweigh the need
for low or moderate income housing. We thus discern no error.
We note, however, as the board points out, that the HAC did
express lingering concerns. It said:
The record before us leads to the finding we have made here. Nevertheless, we believe it is important to state that even though we are not mandating mitigation by the developer, we do recommend that it consider and implement some mitigation measures that could benefit neighboring properties with wells and minimize the chances of controversy in the future. In particular, we recommend that River Stone take either of the following actions: (1) install an advanced nitrogen treatment facility as part of its on-site wastewater disposal system; or (2)(A) arrange and pay for annual testing of the neighboring wells for nitrogen contamination (if allowed by the respective property owner) for a period of five years from the start of occupancy of the development and provide the results of such testing to the Hingham Board of Health; and (B) if the results of testing show dangerous levels of nitrate, River Stone offer mitigation to the property owner of the potentially affected well in the form of paying the cost of connecting the property to the municipal water system.
We conclude that these comments by the HAC reflect its
recognition of the serious health risks that excessive nitrogen
causes and its obligation to enforce the burden placed on the
board to prove that such contamination is more probable than not
to occur. Where the board did not meet its burden, the HAC
would have exceeded its authority to compel River Stone to
15 comply with the conditions imposed by the board. Yet the
seriousness of the potential health impacts along with potential
liability the developer might bear should excess nitrogen reach
neighboring wells, an issue that is not before us, may have
prompted the HAC's comments. It's efforts to encourage the
developer to take steps to ensure that excessive nitrogen does
not leave the property are just that -- encouragement. It does
not take away from the HAC's application of the law to the facts
before it.
b. Density and intensity restrictions. We have suggested
that density issues "might readily call into play the anti-
snobbery goals of the [Comprehensive Permit] Act." Reynolds, 88
Mass. App. Ct. at 346. The board's setback and road width
conditions have the effect of decreasing the density of the
project. However, "[i]n cities and towns that have not met the
minimum statutory threshold of affordable housing, a developer
may override bulk, height, dimensional, use, and other
limitations, often invoked as a pretext to exclude affordable
housing." Standerwick v. Zoning Bd. of Appeals of Andover, 447
Mass. 20, 29 (2006).
Here, the HAC struck several density and intensity-related
conditions that imposed various setback and spacing
requirements, finding that the board failed to prove "a valid
local concern that outweighs the need for affordable housing
16 sufficient to support the conditions related to the setbacks and
placement of the buildings." On appeal, much like it did before
the HAC, the board generally argues that its "substantiated
Local Concern is with the siting of the dwellings so close to
abutting property boundaries and so close to each other, that
they will substantially detract from the privacy of the existing
homes and the enjoyment of light and air for the new residents."
The board contends that its siting requirements are still "more
permissive than allowed under existing regulations, are
reasonable and necessary to ameliorate well documented Local
Concerns as to both density and intensity, and are consistent
with standards applied by the HAC in like developments as
necessitated by the site or the surrounding area."
While the board faults the HAC for failing to conduct "a
sophisticated analysis to the Board's evidence," and argues that
the "question of what specific effects" the project will have on
the surrounding neighborhood is important, the board itself
fails to point to specific characteristics of the neighborhood
and the proposed development that would render the proposed
density and intensity unacceptable and cause it to outweigh the
need for affordable housing.
The board claims that the HAC erred when it struck the
conditions establishing setback and road width requirements.
The HAC found that the town's fire marshal testified that ten
17 feet is the minimum clearance necessary to set up a ladder to
reach the upper floor of one of the units, but that he also
admitted that there is no local regulation that requires a ten-
foot setback and that the upper levels of the particular unit
are still accessible from two of the three exterior sides. As
noted by the Land Court judge, imposing a condition "based on a
policy existing outside of the regulatory framework" is
arbitrary. Cf. Fieldstone Meadows Dev. Corp. v. Conservation
Comm'n of Andover, 62 Mass. App. Ct. 265, 267-268 (2004). In
these circumstances, we cannot disagree with the HAC's
determination that the board failed to demonstrate a valid local
concern regarding fire safety that outweighs the need for
affordable housing.
Regarding the width of the internal roads, although the
fire marshal testified that the width meets State codes and
Hingham requirements, the board's traffic expert testified that
a twenty-four foot wide roadway is recommended by the Institute
of Transportation Engineers and the American Association of
State Highway and Transportation Officials for medium density
developments. The board contends that width of twenty-four feet
enables accommodation of snow drifts or banks and unlawfully
parked vehicles.
Once again, the width condition that the board imposed was
not based on a State or local regulation. The HAC found that
18 parking will not be allowed on the roadways and a generous
number of parking spaces is available -- 4.5 parking spaces per
unit. We agree with the HAC that the board has failed to
identify a local concern that outweighs the need for affordable
housing.
c. Excluding evidence of percentage of low income. The
board contends that the HAC erred in allowing River Stone's
motion to strike the board's proposed exhibit 111 -- a table
showing the levels of affordable housing in Hingham as of July
30, 2020. First, as the HAC points out in its brief, it is not
clear to us that the board raised this issue before the Land
Court in its motion for judgment on the pleadings, and it is
therefore waived. See Springfield v. Civil Serv. Comm'n., 469
Mass. 370, 382 (2014). But even if we were to reach the merits,
we are not persuaded.
Although River Stone's application for a comprehensive
permit was submitted on March 29, 2016, the board contends that
the HAC should have admitted and considered evidence of
Hingham's levels of affordable housing in 2020 as relevant to
its obligation to weigh the local interest against the need for
affordable housing in determining whether the conditions imposed
are consistent with local needs. The board points to 760 Code
Mass. Regs. § 56.07(3)(b)(3), which provides that "a stronger
showing shall be required on the Local Concern side of the
19 balance where the Housing Need is relatively great than where
the Housing Need is not as great." The board contends that as
to this provision, it is entitled to submit data collected after
the date of the developer's application even though other
sections of the regulations define "[r]ecent progress toward
housing unit minimum" as "the number of SHI Eligible Housing
units that have been created within the municipality during the
12 months prior to the date of the Comprehensive Permit
application." 760 Code Mass. Regs. § 56.03(5) (2012).
Similarly, by regulation, calculating whether the municipality
has satisfied the ten percent minimum uses the date of the
application as the operative date. See 760 Code. Mass. Regs. §
56.03(1). To the extent the statute and regulations are silent
as to the date to consider the relative need for affordable
housing, it was reasonable for the HAC to apply the date of
application. See Peterborough Oil Co., v. Department of Envtl.
Protection, 474 Mass. 443, 449 (2016) ("Where the [agency's]
statutory interpretation is reasonable . . . the court should
not supplant [the agency's] judgment" [citation omitted]).
Judgment affirmed.
By the Court (Rubin, Neyman & Tan, JJ. 5),
5 The panelists are listed in order of seniority.
20 Clerk
Entered: August 25, 2025.