Glen Avenue Realty Corp. v. Director of Public Health of Wilmington
Glen Avenue Realty Corp. v. Director of Public Health of Wilmington
Opinion of the Court
In this petition for a writ of mandamus, the petitioner seeks an order compelling the respondents to grant permits to construct sewage disposal systems on two lots in a subdivision located in Wilmington. Judgment dismissing the petition was ordered by a judge of the Superior Court. The case is brought here by an appeal of Meredith Mortgage Corporation, an intervener and present owner of record of the lots. The judge made findings, which are before us as is a transcript of the evidence. The exhibits introduced at the trial are incorporated in the record by reference.
On February 7, 1968, the respondents, through the respondent Director of Public Health of Wilmington, denied issuance of the permits by reason of failure to comply with art. XI of the State Sanitary Code. The two lots were already subject to restrictions based on their unacceptability for proper sewerage placed on them in 1953 when a plan of the subdivision in which they were located was approved.
We apply the well known standard of review “testing whether the order for dismissal is warranted by the judge’s findings subject to their being supported by the reported evidence.” Mariano v. Building Inspector of Marlborough, 353 Mass. 663, 665. Gordon v. O’Brien, 320 Mass. 739, 740. Schafer v. Zoning Agent of Bellingham, 351 Mass. 651, 653.
Certain percolation and deep pit tests were conducted on the lots pursuant to regulation 14 of the code (art. XI).
The judge, applying the proper standard for review (Cotter v. Chelsea, 329 Mass. 314, 318), concluded that “the Board cannot be said to have acted unreasonably in its denial of the application.” This conclusion seems to us amply supported by the judge’s findings: (1) the respondent
In sum, the interpretation of pertinent provisions of the code as applied to these lots relied on by the respondents and accepted by the judge was reasonable and there was no error.
Order for judgment affirmed.
“14.1a. At least one percolation test shall be performed at the site of each disposal area. More than one test will be required where the soil structure vane» or where large disposal areas are required.”
Regulation. 1.1 defines “impervious material” as “[spoils having a percolation rate greater than 30 minutes per inch drop . . ..”
Reference
- Full Case Name
- Glen Avenue Realty Corp. Inc. v. Director of Public Health of Wilmington & another
- Cited By
- 1 case
- Status
- Published