ZONING BOARD OF APPEALS OF HINGHAM & Another v. HOUSING APPEALS COMMITTEE & 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

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

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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

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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.

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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.

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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.

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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.

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Clerk

Entered: August 25, 2025.

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