C h i l m a r k B o a r d o f H e a l t h
M i n u t e s
Wednesday, November 18th 2009
Chilmark Town Hall
5pm
Present: Katie Carroll (Chair), Mike Renahan
Also Present: Chris Alley (Schofield, Barbini & Hoehn), Reid Silva (Vineyard Land Surveying), Kent Healy (Healy Engineering), Lenny Jason (Chilmark Building Inspector), Marina Lent (Administrator-BOH)
Minutes of October 21, 2009 adopted as amended.
Middleton (24-155) A new, four-bedroom house will be built to replace a house destroyed by fire. A six-bedroom capacity septic system construction application was presented by Chris Alley. The proposal will not require a variance, and was approved pending receipt of a well completion report and satisfactory potability test. Chris Alley confirmed that there is no water to the garage.
Harrison (33-114) Chris Alley asked for clarification as to whether a hearing will be required for a proposed septic upgrade which will require a variance of well-to-septic separation in the Inland Zone of the Coastal District. The Board confirmed that a hearing will be required to consider the variance, and set the date for the hearing at the BOH meeting on December 16th at 5:15pm.
Siegel (25-121) Bioclere system: BOH has no recent inspection reports on file (the most recent report is from 2003). Chris Alley will call John Abrahms to follow up.
Quinson (26-133) well completion report received—potability passes
Benson (21-26) At its meeting of November 4th, 2009, the Board had requested that Kent Healy examine the septic system, and determine its location and level of function. A letter was received from Kent Healy on November 9, 2009, which states that “…the pit appears to be working satisfactorily with no indication of recent overflow.”
Roberts (18-75.1) The Board acknowledged receipt of a well design proposed by Reid Silva to replace an existing well whose yield is insufficient. The Board awaits a well permit application once a well driller has been contracted.
Carlin (32-67) septic inspection report received – passes. The Board noted that the number of bedrooms approved for the plan on file with the Board of Health is three, and that the actual number of bedrooms in the dwelling is five. In addition, the Board has required one of two wells on the property to be abandoned, and has so far not been notified as to whether this requirement has been met.
Murphy (11-19) septic inspection report received – conditionally passes Marina Lent was asked to contact Reid Silva to determine to whom to address a letter regarding needed repairs to the septic tank, which, per inspector Doug Cooper, appears to be leaking.
Murphy (30-30) Kent Healy noted that a needed replacement of the leach pit at 10 Rumpus Ridge Road with a new leaching bed on the property will require an out-of-season perc test. The Board agreed that an out-of-season test may be conducted.
Perc Season the Chilmark season for conducting deep observation hole/percolation tests will open on December 1st, 2009.
5:15 pm PUBLIC HEARING: CONSIDERATION OF SEPTIC AND WELL SEPARATIONS IN THE INLAND ZONE OF THE COASTAL DISTRICT
Katie Carroll opened the hearing at 5:17pm, and introduced draft Chilmark Board of Health regulations for septic and well separations in the Inland Zone of the Coastal District.
Mike Renahan stated that the purpose of the draft regulations is simply to clarify and confirm regulations already in use by the Board.
Kent Healy asked whether the Board intends to adopt these draft regulations at tonight’s meeting. Katie Carroll noted that the draft regulations have been reviewed by Town Counsel, and that publication in papers over the past two weeks and holding a public hearing fulfills the requirements of Massachusetts General Law allowing the Board to adopt them. Upon adoption, the regulations will be filed with Mass DEP.
Reid Silva pointed out that regulation 3.21(3), Separation between on-site wells in the Inland Zone of the Coastal District, is in fact an entirely new regulation, not practiced in any other town, which has no bearing on public health. He stated that science does not support any public health benefit from increased separation of on-site drinking water wells. The effect of this regulation is in the area of zoning, not health and environment. He noted that it is theoretically well within the powers of a Board of Health to adopt any regulations, but that regulations that have no foundation in the mandate of the Board to protect public health are subject to challenge in court. He emphasized that, as the Board of Health is responsible for public health, regulations promulgated under
its authority should serve a demonstrable public health purpose, which this well-to-well separation regulation does not. It is purely a zoning tool, not a public health regulation.
Kent Healy noted that, based on the science of sewage treatment in soils, he feels that the same argument also applies to the septic-to-septic separations.
Lenny Jason reminded the board of the history of the development of such regulations in the 1970s, when Martha’s Vineyard was experiencing explosive growth and had no zoning or subdivision rules to address it.
Reid Silva reiterated the history: the MVC originally proposed a 200’ septic-to-septic separation in the Inland Zone of the Coastal District, which Island Towns, including Chilmark, adopted shortly thereafter. Later, a Chilmark Board of Health expanded its septic-to-septic coastal zone separation to 300’, but did not notify the MVC, which then caused Chilmark regulations to be called into question.
Mike Renahan noted that septic-to-septic separations had had the effect of preventing proliferation of guesthouses in the Coastal Zone. Katie Carroll agreed that boundaries between public health and zoning are blurry in such instances; however, she felt that the Board should seek as much consistency as possible with the regulations of other regulatory bodies, such as the Zoning Board of Appeals and the MVC.
Lenny Jason raised the question of exactly what is meant in this regulation by the term “on-site”: different towns have different approaches. This is a crucial question. If it means “on the site of the property in question”, that is a very different regulation than if it means on any site, including abutters.
Mike Renahan pointed out that the Board is able to grant variances to the regulations, and has frequently done so.
Reid Silva reminded the Board that it can vary anything, so long as it meets legally stipulated criteria for the protection of public health and environment. But he reiterated his contention that these regulations are not based on any science. Having regulations such as these has the effect of making properties inaccessible to people who do not have the resources to go through the extra regulatory hurdles required to attain such variances. For the Board of Health, he felt that this poses a liability: if BOH regulations have a clear and solid public health foundation, the board can confidently defend them. If they are manifestly not based on public health considerations, the actions of the board can successfully be challenged.
Mike Renehan agreed that a well-to-well separation is not based on direct health considerations: at worst, he said, overdrawing on wells in the coastal district could lead to salt water intrusion.
Reid Silva then addressed the question of having absolute minimum separations that are binding on the board. He noted that flexibility in the Board’s ability to grant variances exists because no absolute separation distance has general scientific validity; any such absolute separation distance is therefore arbitrary from a health perspective. He felt that, by making itself incapable of granting a reasonable variance, the Board is making itself vulnerable to challenge. How could a one-bedroom house in the coastal district using a composting toilet and greywater system be deemed to constitute a health hazard, simply because the 200’ minimum separation from a neighboring leaching system cannot be achieved? There is no data that would support such a claim.
He noted that land in the coastal district is “where the money is”; it is settled by people who have the resources to freely avail themselves of the legal system. He cautioned that the Board should not give up all flexibility to accept a reasonable variance that is scientifically defensible.
Lenny Jason noted that, in 1976 when the regulations first came into play, the Town had only just formulated its first subdivision regulations. There was no zoning, and the proposed guidelines put forward by the MVC and subsequently adopted by the Towns were very important to guide the rate and nature of development of the coastal zones in that context. But that context no longer obtains. “I thought you guys were going to bring some sanity back to the regulations”, he said.
Reid Silva observed that Boards of Health are frequently pressured to act as a zoning tool. Katie Carroll agreed that it seems to happen often that the Board of Health is called upon to make the hard decisions. She felt it is therefore all the more important to seek the greatest possible consistency with regulations of other bodies.
Kent Healy argued that there are many different regulatory bodies which have many different responsibilities, and that it is therefore not necessary, or even possible, to have consistency. A board must first be true to its own mandate. He noted that, in the end, the applicant has to demonstrate consistency with all the different requirements of all the different regulatory bodies; the Board’s requirements, however, are dictated by its responsibility towards health issues.
Lenny Jason underscored that health effects are the responsibility of this Board, and that the Board of Health does not have to shoulder burdens not rightly attached to a Board of Health.
Mike Renahan stated that the well-to-well separation regulation is not reflected in any way in the Board’s current regulations; it represents a departure.
Katie Carroll suggested that a compromise would be to delete the reference to the minimum 150’ well-to-well separation. Reid Silva asked her on what basis a well-to-well separation could be viewed as a public health concern. He also noted the well-established principal of building wells close together, and septic systems far from them. Having a well-to-well separation would make it impossible to site wells according to most suitable location (where the water is, and where the septic systems aren’t), while not adding any health benefit whatsoever.
Mike Renahan then asked what would be the rationale for having more stringent well separations in the Coastal District as opposed to anywhere else; he did not see a rationale. He asked Marina Lent to review the history of the drafting of these regulations to determine when a well-to-well separation had been introduced, since he had been under the impression that the proposed regulations did not add anything that wasn’t already contained in the BOH regulations. He said that he had been under the impression that the purpose of this hearing was to formally confirm and adopt regulations that have been on the books with the Board of Health for many years, but which had come under scrutiny during a disputed proposal. When its regulations were challenged, the Board had been unable to
demonstrate that the proper procedure, namely, a public hearing, had been held upon adoption of the regulations, and this hearing was intended to make up that deficit. However, he could see no sense in a well-to-well separation. He asked if any of the people present had anything further to add.
Kent Healy noted that a multi-million dollar industry has grown around the health effect of on-site sewage disposal systems, and questioned whether this was an appropriate allocation of society’s resources, given that people are not suffering ill-effects from their backyard septic systems. Separations had continued to grow and grow, and he questioned why.
Katie asked for a sense of the Board: whether to continue the hearing or to seek resolution today. Mike Renahan said he did not feel comfortable adopting regulations without full Board present, especially in light of the substantive discussion that had been held tonight. He suggested that the hearing be continued at the next meeting of the Board on December 2nd. Katie suggested deletion of the well-to-well separation paragraph, and the minimum 150’ separation for well-to-septic. Lenny Jason asked whether this meant the Board feels that 300’ separation between septic systems is generally reasonable? Mike Renahan noted that this MVC-based separation is routinely varied by the Board. Kent Healy pointed out that the variance process does represent
a hardship for the applicant.
Reid Silva stated that the separations had eliminated uncontrolled proliferation of guest houses in the coastal district. The problem is that the Board of Health has been turned into a zoning administrator in the process. If the BOH were now to suggest reverting to purely health-based criteria, there would be a massive hue and cry because it would “open up” many, many areas. And it certainly would. However, the status quo leaves the Board of Health with requirements it would not easily be able to defend in court. He reminded the Board that it has the authority to vary any regulation whatsoever, based on public health considerations.
The Board decided to continue the hearing to its next meeting, December 2nd 2009 at 5:15pm.
Invoices:
The following invoices were approved for payment:
- Liz Gude, Soil Observation at deep observation holes/perc tests: $720.00
- VNA monthly statement October 2009 $800.50
______________________ _______________________ _______________________
Katherine L. Carroll, Chair Michael A. Renahan Janet L. Buhrman
Chilmark Board of Health Chilmark Board of Health Chilmark Board of Health
A recording of this meeting is on file at the Board of Health office and available for on-site review.
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