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The Appeals Court Affirms the Broad, Discretionary Authority of Boards of Health

Local boards of health have broad authority under G. L. c. 111, §§ 122-125 to eliminate nuisances within a municipality. In a recent decision, P.J. Keating v. Acushnet, the Appeals Court affirmed these broad powers and reversed a Superior Court decision that had annulled a local board’s order to halt operations of an asphalt plant. The operator of the plant replaced a plant from the 1950’s with a new asphalt plant that was closer to residential neighborhoods. Once operations at the new plant began, neighbors complained to the board of health of irritation of their eyes, nose and throat, headaches, nausea, and dizziness related to fumes and odors emanating from the plant. 


The board held an evidentiary hearing under G.L. c. 111, § 122 to examine and destroy, remove, or prevent nuisances or causes of sickness. After testimony by residents, the health agent, and representatives for the plant operator, the board decided that the plant was a nuisance and ordered the operator to cease and desist from any operations that caused noxious odors and fumes to spread beyond the boundaries of the property.  


A Superior Court judge reviewed the board’s decision under the certiorari statute, G.L. c. 249, § 4, which requires that a decision be “arbitrary and capricious and unsupported by substantial evidence” in order to overturn a board’s order. The judge rejected the board’s finding that the plant was a nuisance, because “the odor does not occur all of the time” and there was “no credible evidence before the [b]oard that the odor was injurious to the public health,” nor had the board made any such finding. The board appealed.  


For certiorari review, a court does not conduct a de novo review or substitute its own judgment for that of the board, but instead reviews the administrative record to determine whether the board’s order was supported by substantial evidence and is not arbitrary and capricious or based on any error of law. The Appeals Court concluded that the record before the board contained substantial evidence supporting the board’s conclusion that the plant is a public nuisance. The Appeals Court observed that the statutory language “reinforces that we owe deference to the board's view of what constitutes a public nuisance.”  


The Appeals Court held that the board was entitled to determine, based on the evidence before it, that plant operations constituted a significant interference with public health. The judgment of the Superior Court was reversed, the decision of the Board of Health affirmed, and the case was remanded “for such further enforcement proceedings as may prove to be necessary.”  

General Opines that the Tax


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