NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

14-P-663 Appeals Court

GREGORY REYNOLDS vs. ZONING BOARD OF APPEALS OF STOW & 

another.

1

No. 14-P-663.

Middlesex. January 13, 2015. - September 15, 2015.

Present: Trainor, Vuono, Hanlon, JJ.

Housing. Zoning, Board of appeals: decision; Low and moderate 

income housing; Comprehensive permit. Practice, Civil, 

Standing.

Civil action commenced in the Superior Court Department on 

November 23, 2010. 

The case was heard by Kenneth W. Salinger, J. 

Dennis A. Murphy (Daniel C. Hill with him) for the 

plaintiff.

David S. Weiss (Elizabeth Levine with him) for Stow Elderly 

Housing Corporation.

Barbara Huggins for zoning board of appeals of Stow.

TRAINOR, J. The plaintiff appeals from a Superior Court 

judgment affirming a comprehensive permit issued pursuant to the 

Comprehensive Permit Act, G. L. c. 40B, §§ 20-23 (Act), by the 

 

1 Stow Elderly Housing Corporation.
2

zoning board of appeals (board) of Stow (town) to the Stow 

Elderly Housing Corporation (SEHC) for the construction of a low 

and moderate income elderly housing project. The plaintiff, a

southeast abutter of the locus, contended, among other things, 

that the private wells on his and his neighbors' properties will 

have elevated nitrogen levels due to the discharge into the 

waste disposal system designed for the locus and, therefore, it 

was unreasonable for the board to waive certain waste disposal 

limitations contained in the town bylaw. Stow, Mass., Zoning 

Bylaw (including amendments through May 3, 2010) (bylaw). For 

the reasons set forth below, we reverse.

1. Background. a. Stow Elderly Housing Corporation and 

Plantation I. SEHC is a nonprofit corporation founded in 1981 

for the primary purpose of developing, owning, and operating 

affordable housing. In 1983, SEHC obtained a comprehensive 

permit under the Act to construct Plantation Apartments I 

(Plantation I), a fifty-unit low-income senior apartment complex

on a lot that is adjacent to the locus. Plantation I is served 

by a private well and a private septic system on the property.

Although SEHC was the original owner and developer of Plantation 

I, in 2004, it transferred ownership of the buildings and 

granted a long-term lease of the land to Plantation Apartments 

Limited Partnership, while retaining the fee in the land. SEHC 
3

owns and controls the limited partnership's general partner, and 

was the initial limited partner.2

b. Plan for the locus. SEHC is under agreement to 

purchase an approximately two and one-half acre lot (locus) 

improved by a single-family home and barn located adjacent to 

Plantation I. SEHC plans to subdivide the property creating an 

approximately one-half acre parcel including the existing

single-family home and barn (lot 1), an approximately two acre

lot on which it proposes to construct "Plantation II," 

consisting of one three-story building containing thirty-seven

one-bedroom units of elderly housing, a fifty-seat function 

hall, and administrative offices (lot 2). The application for 

the comprehensive permit requested numerous waivers of the bylaw 

along with amendments to the comprehensive permit for Plantation 

I.

The locus is situated in the town's residential district 

and eighty percent of the locus is also situated in the town's

water resource protection district (WRPD), an overlay district. 

A multi-unit dwelling containing thirty-seven units is not 

permitted in the residential district.3 Following the 

 

2 Shortly after creation of the limited partnership, 

Massachusetts Housing Equity Fund XLLC was substituted as 

limited partner.

3 Single-family residences are allowed as of right in the 

residential district. Multi-family dwellings are permitted in 
4

subdivision of the locus, lot 2 will have no frontage on a 

public way. SEHC proposes to access the property over an 

undersized driveway located on Plantation I. The board granted 

bylaw waivers including, for example, as to use, lot size, 

frontage, and access requirements.

Notwithstanding that regulations require preliminary plans 

submitted with a comprehensive permit application to identify 

the water supply that will serve the project, SEHC has not 

identified its water source. Its application suggests several 

possibilities, including private wells from other nearby 

developments or a private water company. The comprehensive 

permit issued by the board includes condition 4.4, which 

provides that "[p]rior to the issuance of a building permit for 

the Elderly Housing, Applicant shall have obtained a permit or 

approval(s) to connect the Elderly Housing to a public water 

supply approved in accordance with then effective regulations 

 

the residential district with a special permit but, by 

definition, they are limited to no more than four units. Bylaw 

§ 1.3. "Independent Adult Residences," described in § 8.7 of 

the bylaw as "provid[ing] the opportunity for the development of 

housing most beneficial for the Senior and Elder population of 

Stow at greater density than would normally be allowed," are 

allowed only in the business district by special permit. Even 

duplexes, which are allowed in the residential district by 

special permit, "[u]nder no circumstances" will be permitted for 

projects sited in whole or in part in the WRPD. Bylaw § 8.2.2. 

As § 3.10.1 of the bylaw excludes any use not expressly 

permitted in the table of uses, the proposed development is not 

a permitted use in the residential district.
5

promulgated by the Massachusetts Department of Environmental 

Protection [(DEP)]."

The record reflects that there is no public water or sewer 

system that serves the locus or its neighboring properties. The 

locus will be serviced by a private, on-site sewage disposal 

system. The sewage disposal system will be located in the WRPD. 

Indeed, the project's engineer testified at trial that all of 

the areas to be developed are located in the WRPD. The intent 

of the WRPD is "to protect, preserve and maintain the existing 

and potential GROUND WATER supply and GROUND WATER RECHARGE 

AREAS within the town; to preserve and protect present and 

potential sources of GROUND WATER supply for the public health 

and safety; and to conserve the natural resources of the town." 

Bylaw § 5.2.

The town adopted sewage disposal system regulations for the 

WRPD that are more protective than State standards.

4 In addition 

to dimensional zoning waivers, SEHC sought and was granted 

waivers from the WRPD regulations, including the prohibition of 

uses generating "on-site sewage disposal exceeding 110 gallons 

 

4 There is an argument to be made that certain Department of 

Environmental Protection regulations are equivalent to the 

bylaw, but as discussed below, the judge found that those 

particular regulations do not apply to the locus.
6

per day per 10,000 square feet of LOT area."

5 Bylaw 

§ 5.2.1.1(2). The judge found that the proposed project will 

generate approximately 5,500 gallons of sewage and other 

wastewater per day. According to the judge, that translates to 

approximately 700 gallons per day per 10,000 square feet of lot 

area, which exceeds WRPD's restriction by over six times.

The plaintiff introduced evidence that his well and those 

of his neighbors would have elevated nitrogen levels due to the 

proposed development. The judge rejected the evidence that 

elevated nitrogen would reach the plaintiff's well, but 

specifically found "it is more likely than not that the Project 

will cause nitrogen levels to exceed 10 [parts per million] at 

the drinking water well serving 37 DeVincent Drive [the 

plaintiff's neighbor]."

6 The groundwater quality standard is 

10mg/l total nitrogen and 10mg/l nitrate-nitrogen at the 

boundary or nearest downgradient sensitive receptor.7 The 

board's consultant recommended that "the applicant provide 

 

5 Additional amounts may be permitted by special permit for 

uses permitted in the underlying district. Bylaw § 5.2.2.3.

6 The judge's findings do not address the harm arising from 

elevated nitrogen levels. There was uncontroverted evidence, 

however, that elevated levels of nitrogen in the water, alone, 

are a public health threat and possibly indicative of other 

pollutants.

7 See 310 Code Mass. Regs. § 22.06(2)(h), (i) (2008); 

Guidelines for Title 5, Aggregation of Flows and Nitrogen 

Loading, Department of Environmental Protection (revised 

6/3/09).
7

documentation that the groundwater will meet drinking water 

standards at the property lines as the abutters are served by 

on-site wells unless it is the intent to tie them into a public 

drinking water supply." This recommendation was not adopted by 

the board. The judge concluded, however, that the comprehensive 

permit properly was granted because the sewage disposal system,

as designed, will meet all applicable State regulations, which 

do not, in these circumstances, require proof that adjacent 

wells will not have elevated nitrogen levels as a result.

The board also waived that section of the bylaw that

prohibits development in the WRPD that renders more than ten 

percent of a site impervious. Bylaw § 5.2.1.1(8). As proposed 

and approved, the project will render impervious approximately 

forty-two percent of the property located in the WRPD. The 

judge found, however, that the stormwater management system will 

direct precipitation falling on impervious areas to underground 

infiltration beds from which it will percolate into the ground 

and be available to recharge the groundwater. In fact, the 

judge found that there will be a slight increase of groundwater 

recharge compared to predevelopment conditions and concluded 

that the local concern underlying § 5.2.1.1(8) will be met. 

Although the board's consultant recommended pretreatment for the 

reduction of total suspended solids prior to discharge into the 
8

recharge area and an oil and grease separator chamber, these 

recommendations were not adopted by the board.8

Finally, the board waived the board of health regulation 

requiring septic systems to be designed to handle 150 percent of 

the estimated daily flow. As designed, the system serving 

Plantation II can handle only 100 percent of the estimated daily 

flow.

c. Need for low income elderly housing. One hundred 

percent of the proposed units will qualify as "low or moderate 

income housing." There is no doubt that the town and the region 

in general have a need for affordable elderly housing. Indeed, 

the application suggests the town's subsidized housing stock 

comprises only six and one-half percent of its total housing 

stock, and the parties stipulated that at the time of the 

application, the town's G. L. c. 40B subsidized housing 

 

8 Condition 4.7 of the comprehensive permit requires

compliance with DEP regulations and standards governing the 

management of stormwater runoff. Notwithstanding this express 

condition, SEHC's expert took the position at trial that because 

there is to be no development within 100 feet of wetlands, 

compliance with DEP regulations is not required. The judge 

agreed and concluded that whether the project complies with DEP 

stormwater rules or polices is not relevant. The plaintiff does 

not pursue this argument on appeal. We note, however, that 

boards may impose conditions that do not render a project 

uneconomic. See G. L. c. 40B, §§ 21-23; Board of Appeals of 

Hanover v. Housing Appeals Comm., 363 Mass. 339, 373 (1973). 

Particularly where the board is waiving local, more restrictive 

components of its bylaw, it may well have concluded that 

compliance with DEP stormwater regulations is necessary to 

protect the groundwater.
9

inventory was less than ten percent. In appeals before the 

Housing Appeals Committee, there exists a rebuttable presumption 

that there is a substantial housing need that outweighs local 

concerns upon proof that a municipality has failed to satisfy 

affordable housing goals. 760 Code Mass. Regs. § 56.07(3)(a)

(2008).

d. Neighborhood properties. The plaintiff's home abuts 

the locus to the southeast. His property and those of his 

neighbors are served by private wells and private septic systems 

located on their properties. As the plaintiff and his neighbors 

rely on these wells for their drinking water, the record 

supports the inference that the area at issue, including the 

locus and the neighboring residential homes, is dependent on 

clean groundwater.

2. Discussion. a. The Comprehensive Permit Act and 

standing. Several cases have described the provisions of the 

Act, G. L. c. 40B, §§ 20-23, sometimes referred to as the antisnob zoning act. See Zoning Bd. of Appeals of Lunenburg v.

Housing Appeals Comm., 464 Mass. 38, 39-40 (2013). See also 

Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass.

339, 345-355 (1973); Zoning Bd. of Appeals of Greenfield v.

Housing Appeals Comm., 15 Mass. App. Ct. 553, 555-557 (1983).

For present purposes, we note that "[w]e have long recognized 

that the Legislature's intent in enacting [the act] is 'to 
10

provide relief from exclusionary zoning practices which 

prevented the construction of badly needed low and moderate 

income housing' in the Commonwealth." Zoning Bd. of Appeals of 

Lunenburg v. Housing Appeals Comm., supra at 40, quoting from 

Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 

28-29 (2006). Thus, the Legislature has provided a streamlined 

application process to a single local board which is authorized 

to waive local requirements and regulations, including zoning 

ordinances or by-laws, which are not "consistent with local 

needs." Board of Appeals of Hanover v. Housing Appeals Comm.,

supra at 355. "'Consistent with local needs' is a term of art 

under G. L. c. 40B, § 20, defined as follows: '[R]equirements 

and regulations shall be considered consistent with local needs 

if they are reasonable in view of the regional need for low and 

moderate income housing with the number of low income persons in 

the city or town affected and the need to protect the health or 

safety of the occupants of the proposed housing or of the 

residents of the city or town, to promote better site and 

building design in relation to the surroundings, or to preserve 

open spaces, and if such requirements and regulations are 

applied as equally as possible to subsidized and unsubsidized 

housing.'" Zoning Bd. of Appeals of Lunenburg v. Housing 

Appeals Comm., supra at 41. On an abutter's appeal from a local 

board's grant of a comprehensive permit, the board's decision 
11

"cannot be disturbed unless it is based on a legally untenable 

ground, or is unreasonable, whimsical, capricious or arbitrary." 

Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81, 96 

(2007) (quotation omitted).

9

Pursuant to G. L. c. 40B, § 21, a person aggrieved by the 

board's decision may appeal pursuant to G. L. c. 40A, § 17, to 

the Superior Court.

10 Many of the oft-cited parameters for 

"aggrieved-person" status applicable in zoning appeals apply to 

appeals from a comprehensive permit. Abutters have the benefit 

of a presumption of aggrievement, but if challenged by evidence 

warranting a contrary finding, the plaintiff must prove standing

by introducing credible evidence of an injury special and 

different from the concerns of the rest of the community. 

 

9 Where a local board of appeals denies an application for a 

comprehensive permit, the appellate route is to the Housing 

Appeals Committee (HAC) for a de novo review to determine 

whether the board's decision is "reasonable and consistent with 

local needs." G. L. c. 40B, § 23, inserted by St. 1969, c. 774, 

§ 1. Even where a municipality, as here, "has not met its 

minimum housing obligation, HAC may still uphold denial of the 

permit as reasonable and consistent with local needs if the 

community's need for low or moderate income housing is 

outweighed by valid planning objections to the proposal based on 

considerations such as health, site, design, and the need to 

preserve open space. However, a municipality's failure to meet 

its minimum housing obligation provide[s] compelling evidence 

that the regional need for housing does in fact outweigh the 

objections to the proposal." Zoning Bd. of Appeals of 

Greenfield v. Housing Appeals Comm., supra at 557 (quotations 

and citations omitted).

10 Persons aggrieved may also appeal to the Land Court or 

the Housing Court. G. L. c. 40A, § 17.
12

Jepson v. Zoning Bd. of Appeals of Ipswich, supra at 88-89. 

"Once a defendant challenges the plaintiff's standing and offers 

evidence to support the challenge . . . the jurisdictional issue 

is to be decided on the basis of the evidence with no benefit to 

the plaintiff from the presumption." Id. at 89 (quotations 

omitted). "[A] review of standing based on 'all the evidence' 

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." Id. 

at 91, quoting from Marashlian v. Zoning Bd. of Appeals of 

Newburyport, 421 Mass. 719, 721 (1996). Thus, "[t]he 'findings 

of fact' a judge is required to make when standing is at issue 

. . . differ from the 'findings of fact' the judge must make in 

connection with a trial on the merits. Standing is the gateway 

through which one must pass en route to an inquiry on the 

merits. When the factual inquiry focuses on standing, 

therefore, a plaintiff is not required to prove by a 

preponderance of the evidence that his or her claims of 

particularized or special injury are true. 'Rather, the 

plaintiff must put forth credible evidence to substantiate his 

allegations. [It is] in this context [that] standing [is]

essentially a question of fact for the trial judge.'" Butler v. 

Waltham, 63 Mass. App. Ct. 435, 440-441 (2005), quoting from 

Marashlian v. Zoning Bd. of Appeals of Newburyport, supra.
13

SEHC argues that although the plaintiff supported his claim

of standing with expert testimony, because the judge ultimately 

rejected the evidence that the plaintiff's well would have 

elevated nitrogen levels, while adopting evidence that an 

abutter's well will have elevated nitrogen levels, the plaintiff

lacks standing to pursue this appeal. The Supreme Judicial 

Court has rejected similar arguments in Marashlian v. Board of 

Appeals of Newburyport, supra at 721-723, and Jepson v. Zoning 

Bd. of Appeals of Ipswich, supra at 89-91. Having presented 

credible evidence of injury to legal rights of the type intended 

to be protected by the Act, that the 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. See id. at 91. See also Butler v. 

Waltham, supra at 440-442.

b. Waste disposal system. On appeal, the plaintiff does 

not attack the obvious density issues of the project, which 

might readily call into play the anti-snobbery goals of the Act. 

Rather, his arguments focus on the impact on the groundwater 

serving his and his neighbors' property. Leaving aside the 

plaintiff's arguments related to SEHC's failure to identify its 

water source,11 we turn directly to the board's decision to waive 

 

11 SEHC contends that its failure to identify its water 

source is a minor omission and the board's condition that it 
14

its limitation on the amount of sewage that may be introduced 

into a waste disposal system in the WRPD.

The gist of the judge's decision is that because the system 

is designed to comply with applicable DEP regulations, the board 

did not err in granting the comprehensive permit. Generally, 

DEP does not limit discharge into waste disposal systems 

servicing less than 10,000 gallons per day,12 unless the system 

is in certain "nitrogen sensitive" areas. 310 Code Mass. Regs. 

§§ 15.214-15.216 (2006). The defendants insist, and the judge 

agreed, that the State standard for "nitrogen sensitive areas,"

 

connect the development to an appropriate public water source 

adequately addresses its omission. While we cannot say failing 

to identify a project's water source in a comprehensive permit 

application may never be a minor omission, we are skeptical that 

in the circumstances of this case it constitutes a minor 

admission. SEHC could not be unaware that the water supply for 

this particular project would be a major concern for the town 

and abutters. The appropriate waste disposal requirements in 

this case turn, in part, on the source of the project's water 

supply. It is difficult to conceive that the town boards are 

utterly unconcerned as to the source of the water or the 

mechanism of delivery to the locus, which will be accessed by an 

undersized driveway. In its brief, SEHC continues to assert 

that it may acquire its water from a local private company, 

private wells on adjacent property, or private wells some 

distance from the locus. It has not eliminated circumstances 

where the water source reasonably could be considered to be 

drawn from the locus, particularly where SEHC owns the property 

on which Plantation I exists. Moreover, the board's condition 

that the locus be connected to a "public" water supply does not 

appear to have eliminated private wells from consideration.

12 Pursuant to 314 Code Mass. Regs. §§ 5.00 (2009), a 

groundwater discharge permit is generally required for a 

wastewater disposal system discharging greater than 10,000 

gallons per day.
15

which would provide roughly equivalent flow limitations as 

provided in the local regulation for the WRPD, does not apply in 

these circumstances because SEHC does not propose both an onsite well and on-site waste disposal system and the locus is not 

located in any of the sites identified in the regulations.

13 It 

is not so clear to us that the stricter DEP requirements do not 

apply here where the area abutting the locus has both on-site 

wells and on-site waste disposal systems, the actual source of 

the locus's water supply has not been identified, and SEHC owns 

an abutting property that contains a fifty-unit apartment 

complex serviced by an on-site well and on-site waste disposal 

system.

14 DEP has not yet had the opportunity to weigh in on the

 

13 The regulation provides that "[n]o system serving new 

construction in areas where the use of both on-site systems and 

drinking water supply wells is proposed to serve the facility

shall be designed to receive or shall receive more than 440 

gallons of design flow per day per acre from residential uses 

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

(aggregate flows) or [§] 15.217 (enhanced nitrogen removal)"

(emphasis supplied). 310 Code Mass. Regs. § 15.214(2) (2006).

The loading restrictions also apply to "Interim Wellhead 

Protection Areas and Department approved Zone IIs of public 

water supplies" and designated nitrogen-sensitive embayments. 

310 Code Mass. Regs. § 15.215 (2006).

14 Under principles of merger existing even prior to our 

current zoning enabling act, "[a]djacent lots in common 

ownership will normally be treated as a single lot for zoning 

purposes so as to minimize nonconformities." Preston v. Board 

of Appeals of Hull, 51 Mass. App. Ct. 236, 238 (2001), quoting

from Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct. 

521, 522 (1987). Whether the common-law merger doctrine would 

apply here has not been raised, but DEP's regulations 

incorporate a similar theory. The regulations define "facility" 
16

issue, but at least one of the board's consultants, as well as 

the plaintiff's expert, opined that the more restrictive, 

"nitrogen sensitive," DEP requirements would have to be met. 

Nonetheless, for purposes of this appeal, we accept the judge's 

conclusion that the more restrictive DEP requirements do not 

apply to the locus and the State regulations do not limit 

discharge for systems, such as that proposed, that handle less 

than 10,000 gallons per day. Thus, the question is whether, in 

these circumstances, presuming the system meets other applicable 

State standards, it was reasonable for the board to waive the 

local, more restrictive, provisions of the bylaw.

The judge relied on Zoning Bd. of Appeals of Holliston v.

Housing Appeals Comm., 80 Mass. App. Ct. 406, 416 & n.9 (2011) 

(Holliston), for the proposition that because the waste disposal 

 

as "[a]ny real property (including any abutting real property) 

and any buildings thereon, which is served, is proposed to be 

served, or could in the future be served, by a system or 

systems, where: (a) legal title is held or controlled by the 

same owner or owners; or (b) the local Approving Authority or 

the Department otherwise determines such real property is in 

single ownership or control pursuant to 310 [Code Mass. Regs. §]

15.011 (aggregation)." 310 Code Mass. Regs. § 15.002 (2006). 

In addition, 310 Code Mass. Regs. § 15.011 (2006) provides 

further guidance for making the determination whether facilities 

are in separate ownership or control for purposes of 310 Code 

Mass. Regs. §§ 15.000 (2006). That SEHC owns the land on which 

Plantation I has been constructed and is under agreement to 

purchase the land for Plantation II, may well be enough for DEP

to conclude that Plantation I and Plantation II should be 

treated as a single facility for the purposes of §§ 15.000, 

notwithstanding that there may be some organizational 

differences between the two entities.
17

system will comply with DEP regulations, it was lawful to issue 

the comprehensive permit. It is true that our appellate courts 

have upheld permits issued where wastewater disposal or 

stormwater discharge plans were not finalized but approval was 

conditioned on meeting State requirements. See Board of Appeals 

of Hanover v. Housing Appeals Comm., 363 Mass. at 381; 

Holliston, supra at 416. We have little doubt that, in many 

instances, a condition that requires the developer to meet State 

waste removal system standards is sufficient to protect local 

concerns. Compliance with State standards, however, is not 

necessarily the end of the inquiry.

In Holliston, we made clear that it was open to the board 

to justify denying an application for a comprehensive permit by 

identifying a health or other local concern that (i) supports 

the denial, (ii) is not adequately addressed by compliance with 

State standards, and (iii) outweighs the regional housing need. 

See id. at 417-419. In Holliston, we concluded, however, that

with regard to environmental contamination, there was no local 

by-law or regulation that was more protective than the State 

regulations. See id. at 417. And, although the local by-law 

did have a stricter wetlands buffer zone and stricter stormwater 

management guidelines, we concluded the board had failed to 

identify a local interest protected by the stricter regulations 

that outweighed the local need for affordable housing, 
18

particularly where the substantial evidence showed that the 

proposed project, as designed, would enhance the wetlands at 

issue and eliminate existing contamination. Id. at 420-422. We 

concluded that the local board did nothing more than point out 

that the project violated their more onerous regulations and 

failed to show that DEP would "be unable to provide adequate 

protection to current and future residents." Id. at 419.

Here, the plaintiff's initial complaints about waiving the 

limit of impervious coverage, which he does not pursue on 

appeal, are similar to the issues presented in Holliston. The 

plaintiff does not refute SEHC's showing that the goals of the 

bylaw's restriction would be met by the systems put in place to 

direct all runoff into the ground, thereby actually increasing 

the level of groundwater recharge from predevelopment levels. 

Thus, the plaintiff could not show that the project was 

inconsistent with local needs in this regard.

With regard to the proposed waste disposal system, on the 

other hand, the plaintiff does more than simply point at the 

fact that the proposed development violates the bylaw. He has 

presented evidence to support the judge's finding that, as 

designed and approved, "it is more likely than not" that the 

project will cause excessive nitrogen levels at the plaintiff's 

neighbor's well. The calculations introduced, which support the 

judge's finding, are in part based on the amount of discharge 
19

the project will introduce on the undersized locus. SEHC's

expert testified that he found no fault with the accuracy of the 

calculations. Rather, SEHC's expert testified that he simply 

made no effort to demonstrate that the system as planned would 

not result in elevated nitrogen in the groundwater reaching 

abutting wells because the board did not ask him to do so. He 

relied on a presumption, which he contends the State applies, 

that provides that if a system is designed in conformance with 

State standards, the facility is presumed to protect public 

health, safety, and the environment.

What SEHC and its expert continue to ignore is that the 

plaintiff presented evidence, adopted by the judge, rebutting 

any such presumption. The judge's finding that the system would 

contaminate the groundwater such that unacceptable levels of 

nitrogen would reach an abutter's well demonstrates that 

compliance with the State standards, which SEHC contends are 

applicable and the judge found to be applicable, are 

insufficient to protect the groundwater from being contaminated

by the proposed project. We conclude that the plaintiff has 

identified an important local health issue, maintaining clean 

groundwater servicing local private wells, that is not 

adequately protected by compliance with applicable State 

standards. Cf. Holliston, supra at 417-419. Enforcement of the 

bylaw, however, would restrict the amount of sewage disposal 
20

that may be introduced into the WRPD and thereby protect the 

adjacent wells.

We next weigh the local concern, the elevated nitrogen 

levels in the groundwater at the lot line and, in fact, reaching 

an abutter's well, with the local need for affordable housing. 

To be sure, the need for affordable elderly housing in the town

is real. In weighing the need for affordable housing against 

local health concerns, however, we are aware of no instance 

where approval was given to a project that would cause nitrogen 

levels or other contaminants in a neighboring private well to 

exceed DEP recommendations. The record does not reflect that 

the abutters have an alternative water supply. Nor do we mean 

to suggest that abutters may be forced to connect to an 

alternative water source, if one were available, so that low 

income housing may be developed. The Act has no taking 

component within it. Cf. Zoning Bd. of Appeals of Groton v.

Housing Appeals Comm., 451 Mass. 35, 40 (2008) ("The Act does 

not authorize the committee, directly or indirectly, to order 

the conveyance of an easement over land abutting the project 

site of a proposed affordable housing development"). When faced 

with evidence that one or more adjacent private wells will have 

elevated nitrogen levels and there is no public water source in 

the area and no proposal to provide the abutter with clean 

water, it is unreasonable to conclude that the local need for 
21

affordable housing outweighs the health concerns of existing 

abutters. In these circumstances, the board's waiver of the 

bylaw provision limiting the flow into waste disposal systems 

within the WRPD was unreasonable.

3. Conclusion. The Superior Court judgment affirming the 

comprehensive permit is reversed. The case is remanded for 

entry of a judgment revoking the comprehensive permit.

So ordered.