Casner & Edwards

Summary judgment in favor of the Hamilton Board of Health

Donna M. Brewer represented the Hamilton Board of Health against challenges to its authority to order two separate parties to replace a septic system admitted to be in violation of Title 5 of the State Environmental Code, 310 C.M.R. 15.000. The property in question was owned by a corporation that leased land to persons who lived on the land in residences that they owned. The septic systems for the residences is actually on land that is not leased by the tenants. The Board of Health held the corporate landowner and the tenants jointly and severally responsible for compliance with Title 5, relying on the plain language of Title 5 regulations. The landowner claimed that it could not be held responsible because under the landlord-tenant relationship, responsibility for the septic system was on the tenant as the sole user of the system. The tenants claimed that they were not responsible because all of the property owned by the landowner (of which the tenants rented only a small portion) was regulated solely by the Department of Environmental Protection under a Groundwater Discharge Permit. Northeast Housing Court Judge Kerman agreed that the Board of Health had authority to issue its order of compliance with Title 5, agreed that the system was in violation of Title 5, and ordered the tenants and the landowner, jointly and severally, to comply with the Board of Health's order.

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