KENNETH MACDONALD & Another v. KRISTEN KAZOKAS & Another.

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
22-P-656
KENNETH MACDONALD & another1
vs.
KRISTEN KAZOKAS & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Kenneth MacDonald,3 appeals from a decision
of a Superior Court judge affirming a decision of the board of
health of Littleton (board) granting a permit and variance for
construction of a new subsurface disposal system (septic permit)
to the defendant, Kristen Kazokas. We affirm the judgment.
Background. Septic systems in the Commonwealth are
regulated by 310 Code Mass. Regs. § 15.000, known as Title 5,
and local approving authorities are charged with issuing
disposal system construction permits. See 310 Code Mass. Regs.
§ 15.003(2) (2014). "Local approving authorities may enact more
1 Jodi MacDonald.
2 Board of Health of Littleton.
3 Although the notice of appeal identifies both Kenneth and Jodi
MacDonald as appellants, Jodi MacDonald has not entered her
appeal and has not participated in this appeal.
stringent regulations to protect public health, safety, welfare
and the environment." 310 Code. Mass. Regs. § 15.003(3). Here,
regulations adopted by the board in 2013 include regulation 27,
a local, "more stringent" regulation, which provides that "[n]o
portion of a fill requirement for a subsurface sewage disposal
system shall be within 10 feet of a property line." The focus
of this appeal is on whether the board properly granted Kazokas
a variance from regulation 27.
Kazokas's parcel contains six acres and abuts MacDonald's
parcel. The current structure on Kozakas's property is served
by an outhouse. In 2014, the board granted Kazokas a septic
permit and a variance from regulation 27 for a four-bedroom home
on the property; there was no appeal from the board's 2014
decision.
In 2017, Kazokas obtained an order of conditions from the
conservation commission for installation of a septic system, an
upgrade to the existing driveway, and possible further expansion
of the existing cottage, based on a plan dated July 24, 2017.
When the commission's decision was appealed, however, Kazokas
sought and received a one-year extension of the 2014 septic
permit, extending its expiration date to September 16, 2018.4 A
4 Although the local regulations are silent as to the expiration
of a disposal system construction permit, 310 Code Mass. Regs.
§ 15.020(2) (2014), provides that such permits expire if
2
few days before that date, Kazokas sought a "stay" of the septic
permit from the board, at its September 11, 2018, meeting. The
board's chair had notified MacDonald in advance of that meeting
that Kazokas was on the agenda; MacDonald could not attend but
urged the board in writing not to allow the permit extension.5
At the September 11, meeting, after a discussion with Kazokas
and her attorney, the board indicated it had no power to issue a
stay, but suggested Kazokas file a new application for a septic
permit -- relying on the same 2014 plan. Kazokas did so and on
September 25, 2018, there was a public hearing on the request.
Her application requested a variance from regulation 27,
stating:
"[t]he area on my property suitable for a soil absorption
system is constrained by the presence of wetlands and Fort
Pond. The soil absorption system has been located to be
offset from the wetlands which require it to be 17.6' from
the property line. Offsetting the system from the
estimated seasonable high groundwater requires fill and a
wall to be located within 10 feet of the property line."
construction is not completed and a certificate of compliance
obtained within three years of issuance of the final approval.
A single one-year extension may be granted on the applicant's
written request outlining the facts that prevented timely
completion. 310 Code. Mass. Regs. § 15.020(3).
5 MacDonald's written submission urging the board not to allow a
permit extension indicated that due to changes in the wetlands
delineation, Kazokas had submitted a new engineering plan to the
Department of Environmental Protection (DEP), which "alter[ed]
the location of the fill and retaining wall" compared to the
2014 plan.
3
Under local regulations, the board may grant a variance
from its regulations when, in the opinion of the board, "the
enforcement thereof would do manifest injustice, and the
applicant has proven that the same degree of public health and
environmental protection required under these regulations can be
achieved without strict application of a particular
provision(s)."6 The board's agent, whose comments were read
aloud at the September 25, 2018, public hearing on the new
permit application, wrote:
"The permit for the septic system has expired and the
applicant has reapplied to obtain a new permit for the
site. I reviewed the plans and find they are in compliance
with Title 5 and your regulations, except the design
proposes fill within the 10 feet of the lot line and
proposes the use of retaining wall and barrier to contain
the fill.
"I don't have an issue with the request as the use of the
retaining wall will allow the surface runoff from the site
grading to be directed onto the applicant's property."
At the hearing, MacDonald spoke. He contended that the
wetlands survey was off by eight to twelve feet and asked that
the board defer its decision until the hearing at the DEP the
following month. The board responded that the conservation
commission was concerned with the wetlands boundaries, and the
board could only act on the information it had from the
6 The board's regulations require variance requests to be in
writing to the board and provides that the board "shall grant,
modify, or deny a variance in writing."
4
conservation commission -- and the information the board had
received was that the wetlands delineation remained the same.
MacDonald also argued that Kazokas had not shown that
enforcement of regulation 27 "would do manifest injustice to
prevent her from substantially all beneficial use of the subject
property." One board member indicated that the manifest
injustice would be to deny a variance when it had previously
been granted. MacDonald also argued that the limits of work had
not been delineated in accordance with regulation 23B. At the
end of the hearing, the board voted to approve the variance and
the permit.
The MacDonalds sought review in the Superior Court pursuant
to G. L. c. 249, § 4, arguing that the board's decision was not
based on substantial evidence because the applicant did not
present the 2018 plan, and also that the board did not consider
whether enforcement of regulation 27 would cause manifest
injustice or whether the proposed plan achieved the same degree
of public health and environmental protection. The judge
rejected those arguments, denied the MacDonalds' motion for
judgment on the pleadings, and affirmed the variance. This
appeal followed.
Discussion. Appeal from a board of health's decision on a
septic permit application is by certiorari. Robinson v. Board
of Health of Chatham, 58 Mass App. Ct. 394, 395 n.4 (2003).
5
Pursuant to G. L. c. 249, § 4, a Superior Court judge may
"correct only a substantial error of law, evidenced by the
record, which adversely affects a material right of the
plaintiff." Macero v. MacDonald, 73 Mass. App. Ct. 360, 366
(2008), quoting Carney v. Springfield, 403 Mass. 604, 605
(1988). "The judge in this case was to determine if the board
committed error of law that 'resulted in manifest injustice to
the plaintiff.' . . . Our role in this appeal is to decide
whether the judge correctly determined that the administrative
record showed no error of law that adversely affected
[MacDonald's] material rights" (citation omitted). Macero,
supra. We give "no special deference" to the judge's decision.
Id. "[O]ur review is limited at most to whether the [board]'s
decision is supported by substantial evidence in the
administrative record, whether the [board]'s action was
arbitrary and capricious, and whether the [board] committed an
abuse of discretion or other error of law." Delapa v.
Conservation Comm'n of Falmouth, 93 Mass. App. Ct. 729, 733-734
(2018).
On appeal, MacDonald makes three arguments: (1) the judge
disregarded substantial evidence in the record; (2) Kazokas
failed to demonstrate that she met the requirements for a
6
variance under the local regulations;7 and (3) the judge
impermissibly substituted his own reasoning for that of the
board.
MacDonald's first argument centers on what he sets forth as
irregularities in the proceedings. He contends that Kazokas was
allowed unlimited time and access to the board at the September
11, meeting and, in essence, was able to garner the sympathy of
the board -- as evidenced by some members' statements that they
would like to help her out and she should submit a new
application. One member said that because the variance had been
approved before, "it would likely be approved again."8
Nonetheless, the board declined to issue a stay and told Kazokas
that she would have to apply for a new permit. The board
offered no procedural shortcuts and made no promises.
7 Certiorari is "available to persons, including abutters, who
can establish 'injury to a protected legal interest.'" Walpole
Country Club v. Board of Health of Sharon, 72 Mass. App. Ct.
913, 914 (2008), quoting Friedman v. Conservation Comm'n of
Edgartown, 62 Mass. App. Ct. 539, 543 (2004). See Hickey v.
Conservation Comm'n of Dennis, 93 Mass. App. Ct. 655, 657
(2018). Kazokas did not challenge MacDonald's standing;
MacDonald contends in his reply brief that stormwater will be
directed onto his property and ultimately to Fort Pond. Given
the result we reach, we assume without deciding that MacDonald
has standing to challenge the variance. But see Walpole Country
Club, supra (abutters failed to make sufficient showing that
siting of septic system threatened their protected interest or
material rights).
8 We agree that a board member calling Kazokas "honey" was
inappropriate and caution against use of such terms in
governmental proceedings.
7
MacDonald contends that the subsequent public hearing on
the new application was tantamount to a formality and that the
board had already decided to issue the permit as suggested by
the tenor of the September 11, meeting. In our view, it was not
unreasonable for the board to suggest that if the property had
qualified in 2014, it was likely to qualify in 2018.9 Further,
to be sure, the board expressed sympathy for Kazokas because her
2014 sewer permit would expire during the course of a different
administrative appeal. The board's collective instinct that
there was something unfair about Kazokas's predicament finds
some support in the case law where, in certain circumstances,
when "delays clearly attributable to others have hampered the
holder's efforts to obtain a building permit," the expiration
date of a zoning variance has been equitably tolled. Cornell v.
Board of Appeals of Dracut, 453 Mass. 888, 893 (2009). We do
not go so far as to say that equitable tolling could or should
have applied here, particularly where Kazokas did not seek an
order of conditions for over two years after she received the
septic system permit and variance; we simply point out that our
law is not completely insensitive to the difficulties in
obtaining multiple local and State permits, and we cannot expect
9 There is no suggestion that the criteria for a variance had
changed between 2014 and 2018.
8
the board to avoid all expression of sympathy at what can be
lengthy and difficult governmental processes.
Despite statements of sympathy, however, the board declined
to grant a stay and specifically refused to vote on any topic
because its "discussion" did not occur in a public hearing. The
board required Kazokas to submit a new application and go
through the public hearing process at which MacDonald could and
did participate. We agree with the judge that "isolated
comments are not sufficient to rebut the 'presumption in favor
of the honesty and sufficiency of the motives actuating public
officers in actions ostensibly taken for the general welfare,'"
quoting LaPointe v. License Bd. of Worcester, 389 Mass. 454, 459
(1983).
We have reviewed the transcript and notes from the public
hearing closely. Although MacDonald asserted that the 2018 plan
differed from the 2014 plan, he did not offer the 2018 plan to
the board, and it is not in the record before us. And, although
he argued that the wetlands delineation had changed, the board
noted that the "Conservation Commission shared that the wetlands
line on their plan is what had been approved by them . . . and
is the same as . . . the Board of Health plan currently up for
consideration." Perhaps most importantly, it is the 2014 plan
that was approved by the board. To the extent the design or
location of the retaining wall differs significantly between the
9
2014 plan and the 2018 plan or the 2018 plan differs in other
material ways, the board approved the location of components in
the 2014 plan; Kazokas may not relocate septic components or
otherwise deviate materially from the 2014 plan without the
board's approval. See 310 Code Mass. Regs. § 15.020.
MacDonald next asserts that Kazokas did not prove that she
was entitled to a variance; that is, she did not show manifest
injustice from enforcement of regulation 27 and did not show
that the same level of protection has been provided. The
record, however, contains the 2014 discussions of alternative
locations for the septic system, and no feasible location was
identified that would not also require a variance. In addition,
in both 2014 and 2018, the board's agent expressed his
satisfaction with the plan because the retaining wall would keep
surface waters on the Kazokas property. The board's implicit
conclusions that manifest injustice would result from
enforcement of regulation 27 and the system achieves the same
degree of public health and environmental protection was
supported by substantial evidence and not arbitrary or
capricious. See Delapa, 93 Mass. App. Ct. at 733-734.10
10MacDonald has not suggested that Kazokas's septic system would
cause a private nuisance or trespass, though those avenues of
relief potentially would be available should such injuries occur
in the future. See Rattigan v. Wile, 445 Mass. 850, 856 (2006)
(private nuisance); Amaral v. Cuppels, 64 Mass. App. Ct. 85, 91
(2005) (trespass).
10
Finally, MacDonald argues that the judge substituted his
analysis for the board's -- that the board concluded that the
applicant was entitled to a variance simply because she had
qualified for one in 2014. While we agree that a standard that
would allow granting a variance because a variance had been
granted previously is untenable as it would in effect negate the
expiration date mandated by State regulations, in the absence of
material change in facts or law, it is in fact likely the
applicant would again qualify. Acknowledging this reality does
not mean that the board predetermined the outcome. Substantial
evidence existed in the record to support the board's decision.
Judgment affirmed.
By the Court (Massing,
Henry & Brennan, JJ.11),
Clerk
Entered: November 22, 2023.
11 The panelists are listed in order of seniority.
11