Perisho v. Board of Health of Stow

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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."

10The 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

11Under 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.

12The 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

More precisely, that regulation provides: "The minimum
13

vertical separation distance between the bottom of the stone
underlying the soil absorption system above the high ground-
water 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

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

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.

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

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

17On 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.

18In 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.