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22-P-908 Appeals Court

MICHAEL J. PERISHO & others1 vs. BOARD OF HEALTH OF STOW & 

others.2

No. 22-P-908.

Middlesex. September 11, 2023. – December 13, 2023.

Present: Milkey, Blake, & Sacks, JJ.

Practice, Civil, Action in nature of certiorari, Standing, 

Judgment on the pleadings, Motion to dismiss. Municipal 

Corporations, Board of health. Department of Environmental 

Protection. Administrative Law, Regulations. Real 

Property, Water, Nuisance, Trespass. Nuisance. Trespass. 

Sewage Disposal.

Civil action commenced in the Superior Court Department on 

July 10, 2020.

A motion to dismiss was heard by Joshua I. Wall, J., and 

the remaining claim also was heard by him on motions for 

judgment on the pleadings.

Daniel C. Hill for the plaintiffs.

Amy E. Kwesell for town of Stow.

1 Jeremy M. Perisho, Huy D. Le, Kelly N. Melcher, and James 

Olsson.

2 Town of Stow and Habitat for Humanity, North Central 

Massachusetts, Inc.
2

David Y. Bannard for Habitat for Humanity, North Central 

Massachusetts, Inc.

SACKS, J. The plaintiffs, who are abutters or near 

neighbors to a proposed two-family affordable housing 

development in Stow, brought this action in the Superior Court 

seeking certiorari review of a decision of the board of health

of Stow (board) granting a septic system construction permit

(permit) to the developer, Habitat for Humanity of North Central 

Massachusetts, Inc. (Habitat). The plaintiffs, to whom we will 

refer as abutters,3 allege that pollution from the septic system 

would cause nitrogen levels at the private wells serving their 

homes to exceed the level set by State drinking water 

regulations. They allege that "[t]he presence of elevated 

levels of [n]itrogen in wells is an established indicator of the 

presence of other contaminants commonly associated with domestic 

wastewater, including viruses and pharmaceuticals." The 

abutters also assert claims for private nuisance and trespass 

against Habitat, seeking injunctive relief.

After agreeing that the abutters had standing to challenge

the board's decision, a judge affirmed that decision on the 

merits, thereby upholding the permit. In a separate ruling, the 

3 The plaintiffs Le and Melcher own and live in a home 

abutting the locus. The Perishos and Olsson own and live in 

homes located across a public way from the locus. Each of the 

three homes is served by its own private well.
3

judge dismissed the nuisance and trespass claims without 

prejudice for failure to state a claim, because the abutters had 

not pleaded an actual or inevitable invasion of or entry on 

their land. On the abutters' appeal, we affirm so much of the 

judgment as upheld the board's decision issuing the permit; we 

reverse the dismissal of the nuisance and trespass claims and 

remand for further proceedings.

Background. Under the Title 5 regulations issued by the 

state Department of Environmental Protection (DEP), 310 Code 

Mass. Regs. §§ 15.001 (2014), construction of a septic system 

generally requires a permit from a local board of health. See 

310 Code Mass. Regs. § 15.020 (2014). In 2017, Habitat applied 

to the board for such a permit for the locus, a 1.26 acre parcel 

on a hillside in Stow. Habitat's septic system plans called for 

wastewater from the two new homes to flow into the system's pump 

chamber and septic tank and then be pumped uphill to a leaching 

field on a slope behind the homes. The abutters' wells are 

located downhill from the proposed leaching field, at distances 

of approximately 120-150 feet. The abutters claim that 

wastewater discharged from the leaching field will mix with 

groundwater and then flow downhill toward their wells.

The board chose James Garreffi of the Nashoba Associated 

Boards of Health to review the permit application. Over the 

course of a more than two-year review process, the board 
4

received and considered comments from the abutters' hydrologist, 

Scott Horsley,4 and the abutters' counsel, opposing issuance of 

the permit. The abutters argued, among other things, that 

(1) based on a "mass balance analysis" performed by Horsley, the 

system would cause excessive nitrogen levels at the abutters' 

wells; and (2) the plans did not show compliance with Title 5 

regulations that require a four-foot vertical separation between 

the bottom of the soil absorption system and existing 

groundwater levels.

The board received substantial input from Habitat's 

engineering firm, Stamski and McNary, Inc. (Stamski), addressing 

the abutters' concerns and responding to some of them by making 

changes to the plans. In addition, the board obtained a review 

of the plans from the engineering firm of David E. Ross 

Associates, Inc. (Ross). Ross's review also found "no issues 

relative to compliance with Title 5." Garreffi ultimately 

concluded that the plans met "the requirements of Title 5." The 

board issued the permit in March of 2020.

4 Although Horsley was not formally qualified as an expert 

in these proceedings, the record includes his affidavit 

attesting to his more than "thirty years of experience in 

evaluating water resources projects, including the interaction 

of groundwater, stormwater runoff and sources of water 

pollution." He asserts that he has "been an expert witness in 

several prior litigation matters in state court as well as 

administrative appeals before the DEP."
5

The abutters then commenced this action seeking certiorari 

review of the board's permit decision and separately asserting 

nuisance and trespass claims against Habitat. On Habitat's 

motion to dismiss the latter claims for failure to state a claim 

on which relief could be granted,5 the judge ruled, as noted 

supra, that the abutters had not pleaded any actual or 

inevitable invasion of or entry on their land. He dismissed the 

claims without prejudice.6 

5 Habitat supported its motion with an affidavit from its 

engineering firm, Stamski, asserting that if the system were 

installed and maintained as designed, "no effluent from the 

sewage disposal system will adversely impact abutting land. The 

system, as designed, is intended and expected to protect 

neighboring properties, including wells located on such land, 

from contamination by effluent leaching from the system." 

Habitat also submitted an affidavit from its executive director, 

recounting the lengthy review and approval process and noting 

that the affordable housing project development itself, first 

proposed in 2016, was being further delayed by the abutters' 

action. The abutters, for their part, submitted affidavits 

contesting Habitat's assertions. Nothing in the judge's 

decision, however, relied on any of these materials in ruling on 

the motion to dismiss the nuisance and trespass claims or in 

resolving the certiorari claim.

6 The abutters then unsuccessfully sought interlocutory 

relief from a single justice under G. L. c. 231, § 118, first 

par. Habitat now argues that the abutters' remedy was to appeal 

the single justice's order and that this appeal from the 

Superior Court's final judgment is foreclosed. The single 

justice's order was not appealable as of right, however, and the 

present appeal is proper. See Brauner v. Valley, 101 Mass. App. 

Ct. 61, 68-69 (2022). Nor, contrary to Habitat's argument, was 

the single justice's order a final judgment giving rise to claim 

or issue preclusion.
6

Subsequently, on the certiorari claim, the judge first 

rejected the board's and Habitat's argument that the abutters 

lacked standing to challenge the board's decision. On the 

merits, however, the judge ruled that Title 5 regulations did 

not require the board to apply the mass balance analysis 

underlying Horsley's nitrogen level predictions, and that 

sufficient evidence supported the board's conclusion that the 

four-foot vertical separation requirement was met. This appeal 

followed.

Discussion. We first address the certiorari claim, as that

discussion will inform our review of the nuisance and trespass 

claims.

1. Certiorari. "To obtain certiorari review of an 

administrative decision, the following three elements must be 

present: (1) a judicial or quasi judicial proceeding, (2) from 

which there is no other reasonably adequate remedy, and (3) a 

substantial injury or injustice arising from the proceeding 

under review." Indeck v. Clients' Sec. Bd., 450 Mass. 379, 385 

(2008). Certiorari review "is calibrated to the nature of the 

action for which review is sought," Revere v. Massachusetts 

Gaming Comm'n, 476 Mass. 591, 604 (2017), and thus may involve 

either the substantial evidence standard or the arbitrary and 

capricious standard. See id. at 604-605. The abutters assert

that both standards apply. Ultimately we need not decide which 
7

standard applies, because we conclude the board's decision is 

neither unsupported by substantial evidence nor arbitrary and 

capricious.

a. Standing. To have standing to seek certiorari review, 

the abutters must show "a reasonable likelihood that [they have] 

suffered injury to a protected legal right." Higby/Fulton 

Vineyard, LLC v. Board of Health of Tisbury, 70 Mass. App. Ct. 

848, 850 (2007). See Hickey v. Conservation Comm'n of Dennis, 

93 Mass. App. Ct. 655, 657 (2018). Here, the board contends

that the abutters' allegations of future harm are too 

speculative and theoretical to support standing. See 

Higby/Fulton Vineyard, LLC, supra at 851-852 (speculation is 

insufficient). See also Hickey, supra at 658 (same). We are 

not persuaded.

The abutters' complaint alleges, based on the mass balance 

analysis furnished to the board by the abutters' hydrologist, 

Horsley, that the proposed septic system would cause predicted 

nitrogen levels at two of the abutters' wells to reach 27.3 

milligrams per liter (mg/l) and 29.0 mg/l, in excess of State 

drinking water standards of 10 mg/liter. Horsley stated that 

his "analysis is conservative in that [he had] not added 

fertilizer applications. Actual nitrate-nitrogen concentrations 

will be higher." Although, as discussed infra, the board was 

not obligated to give any particular weight to Horsley's 
8

analysis, and had reason to question it, this is not fatal to 

the abutters' standing.

Standing "does not require that the factfinder ultimately 

find a plaintiff's allegations meritorious. To do so would be 

to deny standing, after the fact, to any unsuccessful plaintiff. 

Rather, the plaintiff must put forth credible evidence to 

substantiate his allegations." Marashlian v. Zoning Bd. of 

Appeals of Newburyport, 421 Mass. 719, 721 (1996). Where a 

plaintiff has "presented credible evidence of injury to legal 

rights of the type intended to be protected by the [governing 

regulatory scheme], that [a] judge ultimately found that the 

elevated nitrogen would not reach the plaintiff's well goes to

his success on the merits and not his ability to challenge the 

acts of the board." Reynolds v. Zoning Bd. of Appeals of Stow, 

88 Mass. App. Ct. 339, 346 (2015).7

This is not a case where plaintiffs' claims of injury are 

raised "in a conclusory fashion, and [are unsupported by] expert 

7 Marashlian and Reynolds were actions for judicial review 

of zoning board decisions under G. L. c. 40A, § 17 -- a 

proceeding that ordinarily requires fact finding by the court --

and thus are not fully applicable to a certiorari proceeding, 

which ordinarily involves no such fact finding. Nevertheless, 

the point remains that a plaintiff should not be required to 

prove its case on the merits in order to establish standing to 

challenge an administrative decision in the first place. Cf. 

Revere v. Massachusetts Gaming Comm'n, 476 Mass. at 603-604 

(noting that standing to obtain certiorari review depends on 

alleging injury to justiciable right, even if claim of 

constitutional violation ultimately fails on merits).
9

evidence, technical analysis, or particular facts in the record 

that establish [the purported risks]." Hickey, 93 Mass. App. 

Ct. at 658. Nor is this a case where "the expert, having done 

no calculations or testing, was unable to express any opinion 

more specific or definitive than . . . references to potential, 

likelihood, and possibility." Higby/Fulton Vineyard, LLC, 70 

Mass. App. Ct. at 851. Finally, it is not a case where the 

plaintiffs have failed to credibly allege "an injury different 

in nature or magnitude from that of the general public." 

Friedman v. Conservation Comm'n of Edgartown, 62 Mass. App. Ct. 

539, 543 (2004). The abutters' specific allegations of likely 

pollution of their private wells, supported by technical 

evidence from a qualified hydrologist, are sufficient to 

establish standing to challenge the board's decision.8 We

therefore proceed to the merits.

b. Well pollution. The abutters' first challenge to the 

permit is that, based on Horsley's mass balance analysis, the

septic system will increase nitrogen in their wells to levels 

above the 10 mg/l State drinking water standard. As the 

8 Even if we viewed standing as doubtful, there is no 

absolute rule that the question must be resolved in a 

plaintiff's favor before reaching the merits, particularly where 

the result in any event would be to leave an agency's decision 

undisturbed. See Mostyn v. Department of Envtl. Protection, 83 

Mass. App. Ct. 788, 792 & n.12 (2013). See also Green v. Zoning 

Bd. of Appeals of Southborough, 96 Mass. App. Ct. 126, 129 

(2019).
10

abutters recognized both in the board proceedings and on appeal, 

however, Title 5 regulations do not require the board to apply 

the mass balance analysis to Habitat's proposed system. This is 

because the system's design flow of 436 gallons per day per acre

(GPDPA), falls below both the regulatory threshold of 440 GPDPA 

for applying nitrogen loading limitations,9 and the 2,000 GPDPA 

threshold established by DEP's "Guidelines for Title 5 

Aggregation of Flows and Nitrogen Loading" (DEP guidelines) for 

using a mass balance analysis to show that a system meets the 10 

mg/l nitrogen standard.10 Habitat's engineer, Stamski, asserted 

that the mass balance analysis was inapplicable, and the board's 

9 Under 310 Code Mass. Regs. § 15.214 (2014) ("Nitrogen 

Loading Limitations"), as relevant here, no septic system 

serving new construction in either a designated "nitrogen 

sensitive area" or an area where both an on-site system and a 

drinking water supply well will serve the facility shall be 

designed to receive or shall receive more than 440 [GPDPA] 

"except as set forth at 310 [Code Mass. Regs. §] 15.216

(aggregate flows)." In turn, 310 Code Mass. Regs. § 15.216

(2014) ("Aggregate Determinations of Flows and Nitrogen 

Loading") provides, as relevant here, that the 440 GPDPA 

nitrogen loading limitation "may be calculated in the aggregate 

by using nitrogen credit land in accordance with an approved 

Facility Aggregation Plan," to be prepared in accordance with 

DEP's "Guidelines for Title 5 Aggregation of Flows and Nitrogen 

Loading."

10 The DEP guidelines referenced in 310 Code Mass. Regs. 

§ 15.216 provide, as relevant here, that, for septic systems 

with a design flow from 2,000 to 10,000 gallons per day, a board 

of health "may require" the project proponent to "demonstrate, 

through a site-specific mass balance analysis, that the proposed 

discharge will meet the groundwater quality standard of 10 mg/l 

total nitrogen" at the "nearest sensitive receptor," which may 

be a private well.
11

agent, Garreffi, agreed. Even assuming without deciding that

the DEP guidelines leave room for a board to exercise its 

discretion to consider a mass balance analysis where none is 

required, as the abutters argue, the board did not abuse its 

discretion in declining to give the analysis dispositive weight, 

for the following reasons.

Stamski reviewed Horsley's mass balance calculations and 

asserted to the board that they were "grossly flawed." In 

particular, Stamski asserted that the land areas that Horsley 

used to calculate the amount of groundwater recharge available 

to dilute the septic system's nitrogen discharge were

"significantly underestimated and invalid."11 Garreffi also 

noted that Horsley had completed only two of the four components 

of the mass balance analysis set forth in the DEP guidelines. 

Although the abutters argued to the board that the missing 

elements of the analysis did not call Horsley's conclusions into 

question, at oral argument the abutters conceded that whether to 

accept Horsley's analysis required "a credibility judgment." 

And "[i]t is for the agency, not the courts, to weigh the 

11 Under the DEP guidelines, the nitrogen analysis component 

of a mass balance analysis requires calculation of a septic

system's "area of impact" (AOI). The AOI may be described as 

that area of land, down-gradient of the system discharge, that 

is available to absorb precipitation, which recharges the 

groundwater and thereby dilutes the nitrogen in the discharge 

before it reaches a well or other sensitive receptor.
12

credibility of witnesses and to resolve factual disputes. A 

court may not displace an administrative board's choice between 

two fairly conflicting views, even [if] the court would 

justifiably have made a different choice had the matter been 

before it de novo" (quotation and citation omitted). Embers of 

Salisbury, Inc. v. Alcoholic Beverages Control Comm'n, 401 Mass. 

526, 529 (1988). See Dubuque v. Conservation Comm'n of 

Barnstable, 58 Mass. App. Ct. 824, 829 (2003) (same, in 

certiorari case).

Finally, even assuming that Horsley's calculations were 

accurate, the abutters acknowledged at oral argument that 

nothing in Title 5 itself prohibits a septic system from causing 

nitrogen levels to exceed the State drinking water standard at 

an abutter's private well. Nor does Title 5 provide for 

revocation of a system's construction permit on that basis. 

Thus the board was not required to deny Habitat the permit on 

the basis of Horsley's calculations.

There is nothing to the contrary in Reynolds, which arose 

not under Title 5 but instead under G. L. c. 40B, governing

comprehensive permits for affordable housing developments. See

Reynolds, 88 Mass. App. Ct. at 339-340. There, the plaintiff 

challenged a zoning board's issuance of a comprehensive permit,

on the basis, among others, that the proposed sewage disposal 

system would cause nitrogen levels at a neighbor's well to 
13

exceed 10 mg/l, making it unreasonable for the board to have 

waived certain waste disposal limitations contained in a town 

bylaw. Id. at 340, 342. A judge, despite crediting the

evidence of excess nitrogen levels, upheld the permit, ruling it 

sufficient that the system was designed to comply with DEP's 

Title 5 regulations, which did not require proof that 

neighboring wells would not experience elevated nitrogen levels. 

See id. at 342, 347. 

On appeal, this court proceeded on the basis that the 

system complied with Title 5.12 See Reynolds, 88 Mass. App. Ct.

at 348. The court ruled, however, that as a G. L. c. 40B 

matter, it was unreasonable for the board to have waived the 

more health-protective provisions of the town bylaw in order to 

help meet the need for affordable housing. See id. at 350. The 

court therefore invalidated the comprehensive permit. See id.

The present case, in contrast, is a challenge under Title 5 

to a septic system construction permit. Indeed, here, the 

town's zoning board, in issuing a comprehensive permit, denied 

Habitat's request under G. L. c. 40B to waive a local leaching 

area requirement that was more health-protective than Title 5. 

12 The court questioned, but did not resolve, whether Title 

5's nitrogen loading limitations might apply. See Reynolds, 88 

Mass. App. Ct. at 347-348 & nn.13-14. Here, it is undisputed 

that they do not, because the system's design flow of 436 GPDPA, 

is less than the 440 GPDPA threshold of 310 Code Mass. Regs. 

§ 15.214.
14

The G. L. c. 40B ruling in Reynolds does not control here, and 

the board did not abuse its discretion in issuing the permit 

notwithstanding Horsley's mass balance analysis.

c. Vertical separation. The abutters' second challenge to 

the permit concerns Title 5's "vertical separation" requirement:

that the bottom of the "soil absorption system" (SAS) be a 

minimum of four feet above the high ground-water elevation 

(HGWE). 310 Code Mass. Regs. § 15.212(1)(a) (2014).13 According 

to Stamski, test pits in and adjacent to the proposed leaching 

area (the location of the SAS) showed the HGWE "consistently at 

3 [feet] below the surface." The plans included data from seven 

test pits, located in, to either side of, and downhill from the 

SAS. In each of those pits, the HGWE was three feet or more 

below the surface. Garreffi, who had witnessed some of those 

tests, concurred, noting that one of the test pits was only nine 

feet from the uphill corner of the SAS. Stamski stated that the 

bottom of the relevant component of the SAS would be located one 

foot above the existing surface and thus four feet above the 

13 More precisely, that regulation provides: "The minimum 

vertical separation distance between the bottom of the stone 

underlying the soil absorption system above the high groundwater elevation shall be (a) four feet in soils with a recorded 

percolation rate of more than two minutes per inch." 310 Code 

Mass. Regs. § 15.212(1)(a). There is no dispute that the soil 

at issue here meets that percolation rate requirement. A soil 

absorption system is defined in 310 Code Mass. Regs. § 15.002

(2006), and includes a system's leaching area.
15

HGWE. As Garreffi recognized, and as the plans showed, this 

would require the installation of fill material.

To challenge this, the abutters submitted Horsley's 

calculations of the slope of the water table, based on which he 

predicted that the HGWE at the uphill edge of the SAS system 

would be less than three feet below the existing surface, and 

thus less than four feet below the SAS. Horsley also cited data 

from test pits some distance uphill from the SAS, showing the 

HGWE to be from twenty to twenty-five inches (i.e., less than 

three feet) below the existing surface.

Although the abutters characterize this as "uncontroverted 

evidence" that the septic system would violate the vertical 

separation requirement, it was directly controverted by 

Stamski's assertion, supported by data from seven test pits in 

and adjacent to the proposed SAS, that the HGWE was 

"consistently at 3 [feet] below the surface." On this record, 

the board did not abuse its discretion by declining to accept

either Horsley's methodology (extrapolating the slope of the 

water table from a small number of points) or the inferences he 

drew from test pit data gathered some distance uphill from the 

SAS. Substantial evidence from Stamski, with which Garreffi 

concurred, supported the board's conclusion that the vertical 
16

separation requirement would be met.14 As we stated supra, we 

will not displace the board's choice between two fairly 

conflicting views.15 See Embers of Salisbury, Inc., 401 Mass. at 

529. The abutters' certiorari challenge to the board's decision 

was properly rejected.

2. Private nuisance and trespass claims. As stated supra, 

the judge dismissed the nuisance and trespass claims against 

Habitat for failure to state a claim, because the abutters had 

not pleaded an actual or inevitable invasion of or entry on 

their land. We review the sufficiency of the complaint de novo, 

taking as true its factual allegations and drawing all 

reasonable inferences in the abutters' favor. See Curtis v. 

Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "[W]e look 

beyond the conclusory allegations in the complaint and focus on 

14 At oral argument, the board acknowledged that if, during 

construction, the HGWE is found to be higher than expected, 

additional fill in the form of septic sand can be placed 

underneath the relevant component of the SAS so as to elevate it 

four feet above the HGWE.

15 It is of no moment here that the judge, in affirming the 

board's decision on this point, also referred to Title 5's 

separate requirement of "at least a four foot depth of naturally 

occurring pervious soil below the entire area of the soil 

absorption area." 310 Code Mass. Regs. § 15.240(1) (2014). A 

judge's decision on certiorari review is a ruling of law based 

on the record before the board, "not a finding of fact or one 

that in some way involves evidence or credibility 

determinations, [and so] we give it no special deference." 

Macero v. MacDonald, 73 Mass. App. Ct. 360, 366 (2008). "Our 

review is essentially de novo," based on the same administrative 

record that was before the judge. Id.
17

whether the factual allegations plausibly suggest an entitlement 

to relief." Id., citing Iannacchino v. Ford Motor Co., 451 

Mass. 623, 635-636 (2008).

A private nuisance claim requires that a defendant have 

"caused a substantial and unreasonable interference with the use 

and enjoyment of the property of the plaintiff" (quotation and 

citation omitted). Rattigan v. Wile, 445 Mass. 850, 856 (2006). 

And "[a] trespass is an invasion of the interest in the 

exclusive possession of land, as by entry upon it." Amaral v. 

Cuppels, 64 Mass. App. Ct. 85, 91 (2005), quoting Restatement 

(Second) of Torts § 821D comment d (1979).16

Importantly, "[o]ne is not required to wait until he is 

injured before he can apply to a court of equity for relief, but 

he is not entitled to seek relief unless the apprehended danger 

is so near as at least to be reasonably imminent." Shaw v. 

Harding, 306 Mass. 441, 449 (1940). See Sullivan v. Chief 

Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 23 

(2006) (same); City Council of Boston v. Department of Pub. 

Utils., 7 Mass. App. Ct. 379, 380-381 (1979) (same). "A 

permanent injunction should not be granted to prohibit acts that 

16 "The requirement that the interference with the use of 

land be 'unreasonable' and 'substantial' helps to distinguish 

nuisance from trespass, which may be actionable regardless of 

whether the conduct is reasonable or the harm measurable." 

Rattigan, 445 Mass. at 856 n.13.
18

there is no reasonable basis to fear will occur." Lightlab 

Imaging, Inc. v. Axsun Techs., Inc., 469 Mass. 181, 194 (2014).

The complaint here alleged that, based on Horsley's mass 

balance analysis, the nitrogen levels at each of the abutters' 

wells "would exceed" the safe drinking water threshold of 10 

mg/l. It further alleged that once the septic system is 

operational, "pollution will travel through groundwater and into 

the [abutters'] wells," substantially and unreasonably 

interfering with their use and enjoyment, and invading their 

interests in the exclusive possession, of their properties. 

In dismissing the nuisance and trespass claims, the judge

stated that the board's approval of the septic system under 

Title 5, although challenged by the abutters, showed that their 

"claim that invasion and intrusion are undisputedly inevitable 

and certain cannot be credited; invasion and intrusion are hotly 

disputed." But, faced with this dispute, the judge was required 

to take the complaint's factual allegations as true and to draw 

all reasonable inferences in the abutters' favor. See Curtis, 

458 Mass. at 676. That Habitat's design for the system complied 

with Title 5 did not guarantee as a factual matter that the 

system would perform so as not to pollute the abutters' wells. 

Nor have the parties identified any remedy provided by Title 5 

if such pollution occurs. See supra at .
19

Moreover, whether the complaint stated nuisance and 

trespass claims did not depend on whether interference with or 

invasion of the abutters' properties was shown to be 

undisputedly inevitable and certain. Rather, the question is 

whether the complaint sufficiently alleged that the injuries are 

"so near as at least to be reasonably imminent." Shaw, 306 

Mass. at 449. Drawing all reasonable inferences in the 

abutters' favor, the complaint did so.17 Although the septic 

system has not yet been constructed and thus is not yet 

operational, we decline to rule that the abutters must await the 

discharge of effluent from the system before being permitted to 

seek injunctive relief. Whether the abutters will be able to 

prove that the injuries are at least reasonably imminent, so as 

to entitle them not merely to seek but to obtain relief, is to 

be determined after further proceedings.18

17 On appeal the parties have not argued any other issue as 

to whether the complaint stated nuisance and trespass claims. 

Our ruling is limited to whether the conditions and events that 

assertedly would constitute a nuisance or a trespass were

alleged to be sufficiently imminent to state claims for 

injunctive relief.

18 In this connection we note that ordinarily an 

anticipatory injunction against a nuisance "cannot be obtained 

where the nuisance depends upon the way in which an enterprise 

is conducted, rather than upon the essential character of the 

enterprise itself." Dubois v. Board of Selectmen of Dartmouth, 

2 Mass. App. Ct. 674, 679 (1974), quoting R. Powell, Real 

Property § 707, at 344.6 (1971). See 9 R. Powell, Real Property 

§ 64.04[3] (M. Wolf ed. 2023). Whether that principle has any 

application to a septic system is a question for another day.
20

Conclusion. The judgment of dismissal is affirmed as to 

count one (certiorari) and is reversed as to counts two (private 

nuisance) and three (trespass); as to those claims, the case is 

remanded for further proceedings.

So ordered.