🚽 Nantucket Homeowners Win Legal Battle with Health Board Over Septic Tank

In November 2020 the Nantucket health board informed Thomas and Susan Hutton that their septic tank was failing and needed to be replaced.

The Hutton’s owned a three-bedroom seasonal home on Smith Point at the southwest tip of the island.

The homeowners promptly hired an engineer to draw up plans for a new septic tank. 

In an effort to reduce soil and water contamination, Nantucket’s health code (“Regulation 49”) states that residents replacing their waste disposal system may be required to install a tight tank as “a last resort alternative.”

Unlike a septic system, a tight tank has no outlet.  Consequently, tight tanks must be pumped on a regular basis, making them more burdensome and more costly than a septic tank.

In addition to Regulation 49, the health board deemed Smith Point a “tight tank district” where no septic system alternative is permitted.

Despite this, the Hutton’s presented the health board with a plan for a septic system that was compliant with the state’s environmental regulations and, arguably, permissible under Nantucket’s health code.

The board denied the proposal without consideration and insisted that only a tight tank would be acceptable.

In response, the Hutton’s filed suit (pro se) in superior court.  They claimed , among other things, that the health board’s application of Regulation 49 was unlawful and invalid.

A superior court judge dismissed the Hutton’s lawsuit through a summary judgment. 

To read the judge’s ruling, click the document below.

Undeterred, the Hutton’s appealed their case.

The appeals court sided with the Hutton’s and reversed the lower court’s decision.

In their ruling, the justices write,

Having set forth standards in Regulation 49 to guide its discretion, however, the board was obliged to apply those standards fairly and consistently in its decision-making. It was not free to act for reasons that are extraneous to the prescriptions of the regulatory scheme. The plaintiffs assert that the board instead based its decision on an unannounced, de facto amendment. We agree.  (Citations and quotations omitted.)

The justices continue,

The plaintiffs attempted to comply with the board’s regulations by proposing a “feasible” I/A system, given the size of their property, that would sufficiently reduce nitrogen levels such that a tight tank was not necessary as a “last resort.”  As the minutes of the hearing made clear, however, the board did not consider the merits of the plaintiffs’ proposal. Rather, the board had adopted an internal interpretation of Regulation 49 that required all properties in the tight tank district to upgrade or replace their septic systems with tight tanks, without exception. The board did not treat the tight tank requirement as a last resort, and it made no determination whether an I/A system might be feasible for the plaintiffs’ property. Accordingly, the board’s denial of the plaintiffs’ application was improperly based on a policy existing outside of the regulatory framework. The decision to deny the permit on the 10 basis of such a policy was therefore arbitrary.

The justices reversed the superior court’s decision and sent the matter back to the health board for further consideration consistent with their decision.  (Citations and quotations omitted.)

The full text of the opinion is attached below.