Wellfleet Board of Health
Meeting of February 26, 2003
Senior Center, Long Pond Room
Present: David Breen, Chair; Lezli Rowell, Betty Kimball, Zel Levin; Emily Beebe, Health Agent, Erik Mitchell, Assistant Health Agent; Citizens of Wellfleet
It was noted that a letter of resignation from the Board of Health had been received from Geoffrey Karlson.
Chair David Breen opened the Public Hearing on Proposed Revisions and Additions to Wellfleet Board of Health Regulations at 7:00 p.m. The audience was provided with copies of the regulations and their proposed revisions. Breen read the Public Notice of the hearing into the record and established the ground rules for the hearing, stating that the Board was there to gather information from the public and not to engage in debate; he invited members of the audience to ask questions of the Board for their better understanding of the items being discussed.
Jerry Houk noted that concerning the Cole's Neck system and BOH Regulation #508, a legal opinion from Town Counsel suggests that the Water Commissioners can decide who hooks up, and that the commissioners have not yet held Public Hearing. He added that he wished to go on record that he intends to abide by the Town Meeting vote, of a providing municipal water system only, with no intention of "circumventing or finessing" that mandate.
Submitted to the Health Department but not read at the meeting were communications from Arlene Kirsch and Richard Lay; these are included as additions at the end of these minutes.
Breen stated that the Board would proceed sequentially through the proposed revisions.
Section 302: Definition of a bedroom--proposed revision to existing definition. Breen read the changes to the definition into the record and turned to the audience for comment:
Eleanor Hazen asked why this bedroom definition was being considered by the BOH, since she felt it was a zoning issue; Health Agent Beebe answered that the definition of a bedroom appears in regulations for Title 5 and Title 2 and that the BOH needs these definitions properly clarified.
Hazen questioned whether grandfathering would be allowed for older buildings. Lezli Rowell replied that this definition should be applied for new construction and noted that she had prepared in an earlier draft language that qualified the difference between old and new construction.
Jean Schaefer presented a question about an owner renovating a 3-bedroom home and finding that bedrooms did not fit the definition.
Bob Costa noted his concern with loss of grandfathering on an existing dwelling. Ms. Beebe explained that this definition is intended for new construction .
Lezli Rowell read aloud her proposed addition to the "not considered bedroom" section. Any extra rooms (such as a finished basement playroom with building code conforming egress) may be considered a bedroom if it meets the definition. For new construction, proposed renovation, alteration or replacement of structure, conformity to definition criteria is expected; for existing developments, criteria will be applied in context of the vintage of construction. Ms. Rowell responded to Bob Costa's question on "building code conforming egress," stating the definition was a window large enough to provide safe exit in the event of fire.
Helen Wilson asked the reason for changing the original description; David Breen replied that the Board was trying to amalgamate the building code definition; Lezli Rowell stated that there should be some mechanism for dealing with additions whereby one could disqualify rooms which should not be bedrooms.
Steve Phillips thanked the Board for removing ambiguity with this definition.
Chair Breen turned to the Board for comment:
Betty Kimball noted that not much discussion was needed, that the definition complied with state code and the egress window provided safety.
Zel Levin felt that a need for this change had been established.
Lezli Rowell moved that the BOH approve the proposed change including her addition; Betty Kimball seconded. Ben Zehnder suggested that for clarification the end of section (c) be amended to read ". . ventilation, and with regard to new construction, at least one building code conforming egress window." Rowell added this wording to her motion; the motion passed, 4-0.
Section 508: Requirement to connect to public water supply clarified. Chair Breen read the amendment into the record and asked for audience comment:
Bob Costa asked if "drinking water wells" applied to wells for car washing and lawns; Beebe replied that these would probably fall under "irrigation well" and would depend upon where such a well was located as to whether it would be permitted.
Jay Horowitz commented that in other towns on public water systems owners are allowed to sink wells for irrigation.
Ashley Fawkes-Sylver stated that she did not use potable water to water the lawn and that she would like to be able to put in a well for watering purposes.
Helen Wilson commented that the "drinking water wells" wording gave the Health Agent discretion to allow other wells; however, she cautioned that some lots in the area were already affected by the plume from the landfill.
Ben Zehnder did not see regulation 508 stating that an irrigation well could not be drilled in Cole's Neck.
Eleanor Hazen asked how the people on Cole's Neck felt about what she termed as the taking away of their property rights.
Dale Donovan suggested that for clarity the final section of the regulation, "as defined in the Cole's Neck Regulations," be followed by "as adopted 11/26/90 and amended 5/7/91 and 9/24/01."
Lezli Rowell stated that for clarity the revision needed to be followed by a BOH policy detailing by assessor's map and parcel the Area To Be Served with the additional, Administrative Consent Order-named Town facilities hinged to Regulation #508, and handed out a sheet including the elements in this discussion. The Health Agent suggested referencing the Water Commissioner's policy, which is very clear.
Bob Costa stated that at the time the regulation was drawn up, all lots to be served were listed.
Jean Schaeffer suggested the use of the past tense in the third "whereas" ("has been installed") and the addition of "Cole's Neck" to "public water supply" in that same section.
Betty Kimball noted that anything else from now on should be referred to as the "municipal water supply." Costa asked if these regulations would be inclusive of the new water system when it went on line.
Helen Wilson suggested the following wording change in the first "whereas": whereas there is evidence in the vicinity of the Wellfleet landfill that the groundwater contains . . .
Chair Breen asked for comment from the Board:
The Health Agent stated that she was comfortable with the language changes and emphasized that the regulation was only about Cole's Neck ATBS and the Cole's Neck Water supply.
Lezli Rowell moved the addition of the proposed language changes to Regulation 508 with the suggested amendments; Betty Kimball seconded; the motion passed, 4-0.
Section 603: Septic Inspection--Clarifications and proposed revisions. Health Agent Beebe explained the existing regulations on inspections, noting the new criteria for separating the bottom of the leaching area from ground water. A definition of a failed system is included in the proposed revisions. Beebe noted a change in the second line of the revision: from "registered sanitarian or professional engineer" to "licensed inspector."
Ben Zehnder asked the reason for dropping the exemption from the regulation, wondering if this would require all new owners, regardless of whether their systems met Title 5 regulations, to upgrade their systems. He suggested a rewording of the exemption statement.
Lezli Rowell moved and Zel Levin seconded the regulation with a change of wording in item (1): substituting the requirement for vertical separation from groundwater to be 4 feet (old code) for existing systems/residential dwelling, 5 feet (new code) for new construction. Ms. Beebe agreed with clarification of the separation, allowing the 4 foot minimum, and addressing the '78 code.
Rowell accepted into her motion the proposed revisions to Regulation 603 with Zehnder's change, addition of licensed inspector, and striking of "by the prospective new owner." Wording for Zehnder's change was difficult to incorporate, however, and after several suggestions had been offered, the Health Agent suggested continuing this revision for later reworking. Rowell's motion was not withdrawn.
Section 607 (b): Use of Nitrogen Reducing systems--proposed revisions and Proposed Section 607 (d): Requirement to record BOH approval of an alternative system on the deed at Barnstable County. Ms. Beebe suggested that 607 (b) (need for a nitrogen reducing system when a soil absorption system is located within the Zone II of a public water supply) be omitted from the regulations. She recommended the addition of 607 (d) regarding recording BOH approval of an alternative system on the deed at the Registry.
Helen Wilson expressed the need for language to protect Zone I; she requested that (b) be retained, perhaps in a qualified form. Beebe explained her recommendation to drop (b) by explaining that it is very difficult to apply, that the initial intentions were excellent but that it requires that an applicant submit a hydro-geological survey at great expense to the homeowner.
Rowell explained the difference between a Zone 1, determined by radius, and a Zone II, the hydro-geologic recharge area, as defined in 310 CMR 22.
Eleanor Hazen stated that she was loath to see Wellfleet become a "snob town" where only people who can afford expensive systems can live. She felt that the Board of Health was formulating regulations that should be passed only in Town Meeting by a 2/3 majority of the voters.
Jean Schaeffer proposed format changes: get rid of (a) (b) and combine the text in the opening sentence, add "drinking" before "water supply well," and make (d) a separate sentence. Ben Zehnder suggested an addition to the variance criteria: "feasible location of structure and septic system."
Helen Wilson proposed a rewording of (b): when a soil absorption system is located within the first 100 feet of the upstream quadrant of the well's greater recharge area of a public water supply.
Lezli Rowell moved and Zel Levin seconded to approve the proposed revisions to Section 607 with amendments: "drinking water supply well" in (a), revised format as suggested by Jean Schaeffer, and addition proposed by Zehnder to the variance criteria. The motion passed, 3-1.
Section 608: Design Flow calculations based on "upland." Health Agent Beebe explained that the Board of Health had adopted Section 608 last year and now wanted to amend it to include order to avoid debate. Discussion ensued:
· Ben Zehnder asked whether the original regulation had been posted for 3/27/02 and suggested that the regulation rather than the amendment should be voted upon; Beebe replied that it was a legally posted and legally adopted regulation. Attorney Zehnder stated that this regulation has a great impact on construction in Wellfleet in that it is more restrictive than Title 5. He added that he was attending this meeting on behalf of clients whose property is impacted, cited George Heufelderscientific fact.
· Eleanor Hazen again challenged the BOH· Steve Phillips stated that he thought the earlier history of Title 5 indicated that the state could not determine upland or lowland.
· Ms. Beebe respectfully disagreed with Zehnder· Zehnder, commenting that this regulation would start lawsuits and become a battle of experts, suggested · Dale Donovan noted that the threat of lawsuit is no reason for not moving forward with this regulation, the purpose of which is to protect the water of the Town.
The Chair called for comment from the Board:
· Betty Kimball stated that she believed that the Board should go forward with 608.
· Zel Levin, replying to an earlier charge that this should go to the Selectmen, noted that the reason that the Board of Health exists is to maintain a healthy standard of life for the Town.
· Lezli Rowell read a prepared statement in which she stated she felt it was an error for the Board to have enacted Section 608 on 3/27/02 and disagreed that it had been legally posted, and felt that upholding this regulation for the purpose of preventing one specific development was spot-zoning. She concluded by moving to strike 608 entirely. The motion died.
· David Breen spoke in reaction to Zehnder· Betty Kimball moved to continue the discussion of Section 608 to the March 26 meeting, before which the Board would have received advice from counsel. Chair Breen seconded; the motion passed, 3-1.
Proposed New Section 609: Nitrogen loading requirements. Preamble to the proposed Section 609 was Ms. Beebe· Eleanor Hazen again contended that the BOH planned to pass a restrictive regulation and that this was a zoning issue.
· Bob Costa asked an explanation of the term · Jay Horowitz contended that where there was no water supply to pollute there was no health issue.
· Ben Zehnder suggested changing the term to · Helen Wilson spoke on nitrogen loading of ground water and the danger of worrying only about drinking water, not ground water; she commended the change Section 609 would bring and stated that every area of the aquifer is affected by what being discharged in it.
· Ashley Fawkes-Sylver passed out a color-coded map of the Cole· Bob LaPointe described his situation: he had purchased his property specifically so that he could construct a 5-bedroom home, put in a 5-bedroom septic and built a 3-bedroom house, and planned at some later time to add an additional 2 bedrooms. He noted that this regulation could · Steve Phillips asserted that the language of proposed 609 was not tied to the Cole· Gerry Parent stated that he believed (because of the position paper introduction) that the intention for 609 was to tie it to Cole· Helen Wilson felt that 609 gives the same protection to a lot served by a municipal system as it would to a lot without it· Eleanor Hazen stated that · Alfred Pickard reminded the Board that the Cole· Ben Zehnder felt that the regulation made no sense in that it protects ground water in areas where there are no public wells.
· Ken Granlund, Jr. looked at the regulation as not just for ColeComment was requested of the Board:
· The Health Agent emphasized that this regulation is already part of Title 5, state law, and that 95% of Wellfleet will not feel any change from this since it already conforms to this requirement. She pointed out as an example, however, the possible danger to groundwater on Whiddah Way, which is on private wells but abuts Oak Ridge Drive, which is on the public well. Stating that a ceiling was needed in the ColeNeck, and suggested that town counsel be asked to read 609 for legality and language.
· Betty Kimball moved to continue Section 609 to the March 26th meeting in order to consider public comment and counsel review; David Breen seconded.
· Zel Levin stated that this had been a productive discussion and that the Board should consider the audience statements.
· Lezli Rowell read a prepared statement on 609 in which she quoted state regulation 310CMR 15.214 Nitrogen Loading Limitations, stating that the this board as a shortcut to achieving zoning control, or diverting water usage rights from Cole's Neck properties to make service allowances for Central District private lots." Noting failure to define a public health validation of imposing the Nitrogen Sensitive Designation, she moved to withdraw consideration of 609.
· Betty Kimball, whose motion to continue 609 until 3/26 was on the table, stated that she would hold by her motion; Mrs. Kimball's motion passed, 3-1. Ms. Rowell's motion died.
Proposed Section 610: Standard for new construction. The section reads: · Ben Zehnder advised sending this regulation to Town Counsel.
· Eleanor Hazen commented that it was a dangerous precedent to say · Health Agent Beebe quoted Dick Lay· Both Betty Kimball and David Breen agreed that Counsel should review 610.
· Lezli Rowell opposed the · Betty Kimball moved to continue 610 to 3/26 for receipt of opinion from Town Counsel; David Breen seconded. The motion passed, 3-1.
Section 8000: Proposed BOH fee schedule. The proposed fee schedule contains increases to some existing fees and addition of new fees for septic reinspections, housing inspections, and stable permit. The Health Agent explained that during the joint (BOS & FinCom) budget hearing for the Health Department, the Selectmen requested that she look into the fee schedule and determine whether some might be raised. She reviewed the schedule, explaining the changes and additions. The Chair called for comment:
· Eleanor Hazen asked where the fees went; Beebe replied they went into the General Fund. Hazen felt that they were excessive, and an unnecessary hidden tax on the people.
· The Chair polled the Board: Betty Kimball, Zel Levin and Breen stated that the schedule was acceptable. Lezli Rowell suggested a continuance, since she had not had the opportunity to study the fees of neighboring communities for comparison, and had only the Health Agent's word that they were reasonable. The Health Agent asked that action be taken at this meeting, since the Selectmen would be holding their hearing on fee increases on March 10.
· Zel Levin moved to accept the proposed fee schedule; Betty Kimball seconded. Lezli Rowell reiterated that she opposed passage because she would have liked to see other towns
The Public Hearing was adjourned at 10:00 p.m. Continued items will be considered on March 26, 2003.
Respectfully submitted,
______________________________
Frances J. Castillo, Assistant to the Committee Secretary
Addenda
Phone Call from Richard Lay of Slade Associates to Health Agent Emily Beebe:
Public Input on #608: question of application in NPS, or in other areas surrounded by undeveloped open space, such as paper roads; consider a variance procedure on mitigating circumstances; include Coastal Bank areas as upland
Re: #610: "Can you get a variance to this?"
Copy of (2/26/03) email from Arlene Kirsch to Emily Beebe:
Hi,
Since the Finance Committee has a public hearing tonight as well, I cannot attend the BoH meeting.
Please read the note below to the Board for me. Thank you.
My opinion is that 508 should be limited very specifically to the original Cole's Neck users. Also, in future, any potential private hookups should only happen if 2 conditions exist: (1) the site's water is polluted, and (2) the property owners prefer the hookups to a point of use system. I would hate for people to be forced to leave Town because they could not pay for the hookup but could pay for a good point of use system. And there would be quite a few people forced to leave Town if they are forced to hook up.
Thank you,
Sincerely,
Arlene Kirsch
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