Wellfleet Board of Health
Minutes of Meeting of March 12, 2003
Senior Center, Long Pond Room
Present: David Breen, Chair; Betty Kimball, Lezli Rowell, Zel Levin; Emily Beebe, Health Agent; Erik Mitchell, Assistant to the Health Agent
Chair Breen called the meeting to order at 7:00 p.m.
From the audience, Ben Zehnder inquired whether Board of Health Regulations 603, 608, 609, and 611were to be discussed, noting that this would be contrary to the Open Meeting Law since the hearing on these regulations had been continued to "a date certain"--March 26, 2003. Health Agent Beebe explained that this was to be a workshop discussion, with no decisions being made, to assimilate comments from the hearing of 2/26.
Zehnder stated that decisions on all regulations would be placed in jeopardy if this discussion should take place before the continued "date certain." Beebe replied that this was a legally posted public meeting and that she had reviewed this procedure with the Town Administrator. The Health Agent asserted that she felt the Board could vote to enact the proposed regulations on this agenda, statutorily.
Jeff Stewart remarked that if a meeting has been continued and the Board wants to discuss elements of that meeting at an intervening one, it was necessary to post the agenda for 48 hours; Beebe replied that she believed it had been legally posted.
Lezli Rowell felt that the discussion of the regulations would be inappropriate and stated that she had been going to propose not considering agenda item for discussion on Regulations 603, 608, 609, and 611, since the topics listed had been continued to public hearing on 3/26.
Betty Kimball stated to Rowell that her statements were "undermining" the agent's efforts.
Kimball noted that because of the preceding discussion the Board was late getting into the Enforcement Hearing which was first on the agenda; she invited Ben Zehnder to remain and listen to the Board discuss agenda item #III after the earlier scheduled hearings had been completed. Zehnder stated that he could not remain but wished the record to reflect that he had attended the meeting and objected to this discussion outside of the 3/26 continuance of the 2/26 public hearing.
Kimball stated that Rowell should have advanced her objection to the agenda item before the meeting began. Chair Breen stated that, since he had not wanted the 2/26 public hearing to be a forum for debate but an information-gathering session, the Board now needed to digest the information gleaned from the audience; this was why item #III appeared on the agenda for this evening's meeting.
Enforcement Hearing: Danforth, 5 Holbrook Avenue, Assessor's Map 21, Parcel 105. Audrey Danforth, the property owner of 5 Holbrook Avenue, had been summoned to this hearing to consider a solution for non-compliance with Local and State regulations for failure to install a Title 5 system pursuant to transfer of deed.
Health Agent Beebe, stating that she needed the BOH to review the project and arrive at a satisfactory time frame for compliance, noted that the process had begun in 1996 when Ms. Lucie Grozier transferred the property to Ms. Danforth; the cesspools there at that time are still there. The project became mired down in the process; the plan is heavily varianced with an Order of Conditions from the ConsCon since a marsh exists nearby; the installation of a system appeared to be problematic. An Orenco Residential Trickling Filter was approved by the Board in 3/97 but installation was several times put off because of the difficulty of getting an installer. A one-year extension was issued in May 2001 with revised plans to be approved by ConsCom; another year passed.
The Health Agent informed the property owner that the dwelling should not be rented during the summer of 2002 because of septic problems; however, it was rented anyway. The Health Agent had requested a letter of commitment from an engineer; this was never received. It became apparent that the previous plan needed to be revised as the Orenco component is no longer approved and the plans would have to come back to the BOH and the ConsCom. Ms. Beebe concluded that she now needed a letter of contract from an engineer and a time frame for the complete installation of the project. She noted that a cease and desist order had been issued on rental of the property; this order can be lifted upon completion of the project.
Ms. Danforth stated that she had money for the septic system but not for a foundation for the cottage. She was not certain that she wanted to put in the extra money for the foundation but would go ahead and lift the foundation or whatever the engineer recommended. She also felt she needed the project re-engineered; she has met with David Lajoie of Felco Engineering, who will help with the foundation. She noted that Lajoie thought it would take 8 weeks to come up with a plan. (At this point, Mr. Lajoie joined the discussion.)
Zel Levin asked what action the Board could take, since nothing that had been required has been done. Ms. Beebe replied that the purpose of tonight's hearing was to try to constrain the project to a time frame that the BOH deemed satisfactory; this should contain both a 48-hour deadline for an engineer's letter of contract and a time frame for the entire project. David Lajoie agreed that he would provide the letter.
Lezli Rowell determined that the existing system was functioning without emergencies such as sewage overflow (Danforth noted that she had had it pumped 2 years ago and that the water had tested for nitrates from 5 to 7 ppm) and that this was a case of non-compliance with current code. Rowell noted that under 105 CMR 400.800 of the Sanitary Code, variance could be granted if the Board found that the spirit of the minimum standards are met, which she felt satisfied as there was not an emergency order to correct. Rowell stated that she wished to see the project through with maximum feasible compliance with Title 5 but was not ready to levy fines or invoke other "Draconian" punishments. She noted that the project might involve technical engineering and expressed
her hope that Ms. Danforth came to the table in good faith. She added that she was sympathetic to Ms. Danforth as a beginning homeowner and felt that the Board should err on the side of caution when naming dates for compliance, feeling that completion of installation would take a year.
Danforth stated her project was not just a "septic thing" and that she would also like to dormer her attic but was afraid of opening problems with Wetlands Protection regulations.
Betty Kimball inquired about the above-mentioned problems, which Danforth stated involved the well. Two wells exist, one, from which drinking water is not taken, is under the house (tested 5 to 7 ppm) and the other, a new well, is 15 feet from the old one. Kimball also inquired about the rental last summer after the Health Agent had noted that there should be no rentals; Beebe reiterated that there was a Cease and Desist order on further rental. Rowell stated support for this order.
Rowell moved that Mrs. Danforth should have 48 hours from this evening to provide an engineer's letter, 3 months to provide plans to the BOH and ConsCom, 2 months to secure permitting, and 1 year from tonight's date for completion of installation. David Breen seconded. Discussion ensued.
Health Agent Beebe emphasized that since 6 years had now passed since the BOH first approved the septic process (for which 6 months for completion had been required), the current process should be expedited for a time frame of less than 12 months.
Kimball agreed that this public health process should be expedited.
Rowell pointed out that the Board had been through enforcement processes in the past in which deadlines had not been met and that she would rather not have this coming back in again and again--that the Board should err on the side of the process being done correctly.
In response to an inquiry from the Health Agent, David Lajoie stated that nothing needed to be done to the building to put the sewerage in (other than the waste line); however, if a new foundation is to go in, a new plan is called for.
Chair Breen agreed that the cesspool upgrade could be done all by itself and since this was the BOH's focus, he was beginning to lean toward it. Kimball agreed with this assessment, if the project could be done without construction problems.
Lezli Rowell asked if the DEP had overruled the plan and the Health Agent agreed that the plan must be updated, adding that the Board might try to separate the septic and foundation issues and focus on the septic system problem.
Kimball suggested a vote on Rowell's motion; Levin asked for a re-reading, which was done. The Health Agent repeated that one more year would drag the process out, suggesting that 2 months for plans and 1 month for permitting would be adequate. The motion was voted upon and defeated by a 3 to1vote.
Kimball moved that installation of the new septic system on the Danforth property at 5 Holbrook Avenue be completed by December 31, 2003; Levin seconded. The motion passed: 3-0-1 (Rowell abstaining).
Variance Requests: All represented by Felco Engineering.
Downs, 15 Briar Lane, Assessor's Map #14, Parcel #27, upgrade pursuant to transfer of deed. Chair Breen read into the record the letter from Felco Engineering (1/28/03) requesting 4 variances, including a variance to a private well, to wetland setbacks, and to the regulation requiring I/A treatment. David Lajoie described the project to the Board: a 4000 square foot office building undergoing septic upgrade because of transfer of deed with an attempt to maximize distance from the wetlands. This project meets requirements for all wells except 2 on Parcel 29. The back of the property is low and a mounded system will be utilized to achieve the proper distance above the groundwater.
Health Agent Beebe commented that this is a challenging site and noted that the only question regards the 2 wells on Parcel 29. She asked why 2 wells existed.
Mr. Rose, the abutter on Parcel 29, stated that there were 2 wells there when he acquired the property, both active. He objected to the proposed nearness of the septic to his wells, requesting that there be the required 100 feet of separation. He added that he had suggested alternatives to the previous owner.
Ms. Beebe stated that local regulation does specify alternative treatment in case of variances to wells and asked why this had not been proposed; Lajoie replied that he was responding to a request by the applicant to determine whether or not the Board would require alternative technology.
Lezli Rowell queried the mitigating factors--groundwater flow, topography, any relevant argument? She noted that this was not residential property and that office use differed from home use in intensity and added that Mr. Rose saw the owner trying to secure 100 foot separation while taking it away from him. She also inquired about the protective well radius of 131 feet, which Lajoie identified as the Flying Fish restaurant, for which the Zone 1 radius had been met.
David Breen questioned the reason for the 3 test holes and 2 percs; Lajoie explained that the soil became worse in the higher elevations of the parcel. The Health Agent added that the location of the leaching area is driven by soil quality, and Breen inquired if the location of the leach field upgradient from plume travel is somewhat mitigating. Ms. Beebe noted that this is difficult to determine.
Ms. Rowell stated, regarding the protective well arc, that she did not see anywhere to go from Parcel 29.
Zel Levin asked Mr. Rose his objection; Rose stated that he wanted 100 feet and that he had offered an option to a previous owner who had asked him to move his well. He said this unnamed concession still exists.
David Lajoie asked the Board to continue the hearing so that he could speak with Mr. Rose and try to satisfy his request. Lezli Rowell moved for a continuance to allow the applicant to secure 100 feet for the well of abutting parcel 29. Betty Kimball seconded. It was determined that the building's use would remain the same. The motion passed, 4-0. The Health Agent suggested the continuance date of 4/23/03.
Karlen, 204 Kendrick Avenue, Assessor's Map #20, Parcel #27, upgrade pursuant to transfer of deed. Chair Breen read the Felco Engineering letter of 2/19/03, requesting 10 variances (including 2 variances to private well setbacks and a variance to the setback from Wellfleet Harbor) into the record. David Lajoie explained that these are 2 buildings of under 2000 square feet on a small lot going through sale. The plan requests variances for a subsurface septic system plus a limit to soil mounding. Lezli Rowell inquired if the proposed FAST system was DEP approved for remedial use.
Health Agent Beebe noted that the cottages would be used seasonally, that pressure dosing does not elicit the best system performance in seasonal dwellings, and that performance monitoring would be important, necessitating a few years of data to determine good results (under 19 ppm). Chair Breen suggested that drinking water quality should be monitored also.
Betty Kimball inquired about the water quality of the locus well. Tom Williams, representing the Karlens, brought the results of water testing to the table for the Board's information, noting that even with the present cesspools, the water quality was pretty good. Kimball stated that with the well variance on Parcel 26, there would be two impacts upon water quality.
The Health Agent inquired concerning the flashing mentioned in the construction notes; Lajoie answered that flashing would be installed around the two leach areas and could be included to the depth of each leaching basin.
Lezli Rowell asked if there would be difficulty having two leaching fields so close together; Lajoie explained that they would operate like one leaching field, since there would be no side walls.
Rowell moved and Breen seconded that the Board of Health approve Felco Engineering Plan #98135, dated 1/27/03, and to grant 10 variances requested in the letter from Felco Engineering, dated 2/19/03, for the upgrade of the septic system on the Karlen property at 204 Kendrick Avenue, subject to the following conditions:
confirmation by the Health Agent that the FAST system has been approved by the DEP for remedial use
that performance monitoring, in accordance with parameters established by the DEP, is to occur quarterly for 3 years and that well monitoring is to occur once a year for 3 years, results to be copied to the Wellfleet Health Department
there is to be no increase in design flow on the property, this restriction to be recorded against the deed to the property at the Registry in Barnstable.
Jeff Stewart from the audience asked about the relationship of properties in the area (possible condominiums) to this property and about increase in use. The Health Agent pointed out that this was a small lot, 4600 square feet, and that a condition of no increase in design flow had been placed on the approval; Rowell reiterated that 2 bedrooms will remain 2 bedrooms.
The Chair called for the vote; the motion passed unanimously, 4-0.
Garrison, 550 Cahoon Hollow Road, Assessor's Map #23, Parcel #601, upgrade to Title 5 system. Chair Breen read the letter from Felco Engineering (1/16/03) requesting 2 variances from Wellfleet BOH regulations. Lajoie described this "minor variance proposal" on a 4-acre property on Duck Pond (with a privy, no running water, and a handwell) which was being transferred in ownership within a family. The plan proposes to get the septic away from the resource area, using a standard Title 5 system.
The Health Agent noted that this site will "enter the electric age" solely to pump waste up the hill and found this a straightforward application.
Lezli Rowell read a letter from Harrison Gruman of the National Seashore Park into the record; Gruman stated that he was pleased with the tight system and did not object to the project.
Rowell moved that the Board of Health approve Felco Engineering Plan #02112, dated 11/12/02, and to grant two variances requested in the letter from Felco Engineering, dated January 16, 2003, for the upgrade of the septic system on the Garrison property at Duck Pond, 550 Cahoon Hollow Road. Betty Kimball seconded the motion, which passed unanimously, 4-0.
Pailler, 10 Bank Street, Assessor's Map #15, Parcel #84, upgrade from cesspools. Chair Breen read the letter from Felco Engineering (1/16/03), requesting one variance, into the record. David Lajoie then presented a letter to the Board (read into the record by Lezli Rowell) explaining the reasons for his request that the BOH not require alternative technology. He noted that this was an upgrade to remodel a whole building on a relatively small property in the center of town with a very limited area in which a system could be placed, adding that topography is not a problem.
Health Agent Beebe stated that Lajoie's letter was what the Board had in mind for presenting mitigating factors and that the soils at the site were difficult. She added that she would support the application as presented but had a question on the floor plan for the proposed renovation, needing to understand the design flow.
Lajoie stated that he suspected there were more bedrooms than were represented and that there was a need to request better plans.
Betty Kimball wondered if there should be periodic testing for the well on Parcel 58. Beebe noted that it might be a worthwhile condition that Mr. Pailler have the abutting well tested; Lezli Rowell disagreed, stating that while one property owner should test his locus well, he should not test other wells in the neighborhood.
David Breen asked a question concerning perched water and deep hole #1; Lajoie explained that the property was sitting on a peat layer, that the adjusted high ground water level was 13.8 feet from the ground water, giving a decent separation.
Lezli Rowell moved that the Board of Health approve Felco Engineering Plan #01246, dated 12/16/02, to grant one variance requested in the letter from Felco Engineering, dated 1/16/03, for the upgrade of the Pailler property at 10 Bank Street, and to grant variance from alternative technology requirements, based upon evidence provided by the engineer regarding site and soil conditions surrounding well and septic. This approval is subject to the following conditions:
remodeling plans are to be submitted to the Health Agent
there is to be no increase in design flow on the property, this restriction to be recorded against the deed to the property at the Registry in Barnstable.
David Breen seconded the motion, which passed unanimously, 4-0.
Discussion of Proposed Regulatory Revisions. The Board returned to the issue raised at the beginning of the meeting by Ben Zehnder. The Health Agent explained that her intention had been to invite comments from the BOH on how they wanted to proceed--either by discussion at this time or by dropping written comments off at the Health Office within the next two weeks. She added that the only information she now wished to announce pertained to the Fee Schedule, stating that two fees adopted at the public hearing of 2/26 had been increased by the Selectmen at their meeting of March 10, 2003 and that she had legally advertised this change to be considered at the 3/26 continuation of the earlier hearing. Also, she stated that she had brought in information on fees levied by other towns and that
none of the information on regulation changes requested from Town Counsel was yet available.
Betty Kimball stated that she had not yet had time to make notes of comments contained in the minutes from the public hearing and would like time to do so. She addressed Eleanor Hazen, who was in the audience, about her calling the fee increases "taxes" at the 2/26 hearing; Kimball then read aloud an explanation differentiating fees from taxes.
Lezli Rowell felt that, whether or not it was legal to discuss the regulation revisions at this time, it was inappropriate to do so; she moved that discussion of sections 603, 608, 609, and 611 should occur in the continued public hearing on 3/26/03; Betty Kimball seconded with the amendment that BOH members submit notes to the Health Agent. Rowell allowed the amendment.
David Breen agreed with the need to assimilate information from the public hearing on 2/26.
Kimball stated that she wanted Town Counsel's opinion on the difference between a public hearing and a public meeting.
Ben Zehnder (who had returned to the meeting) agreed with Kimball that Town Counsel should be consulted and urged the Board to consider that discussion should not be continued on the public hearing items "taken to a date certain."
The vote being called, the motion passed unanimously, 4-0.
Town Counsel's Meeting with Regulatory Boards. Jeff Stewart commented favorably upon the recent joint workshop of the regulatory boards: discussion of issues of private roads and paper roads led by Town Counsel Elizabeth Lane. Steward noted that the boards should meet further on this topic.
Joint Meeting: BOH and Water Commissioners. Health Agent Beebe announced that a joint meeting of the Board and the Selectmen acting as water commissioners would take place at 6:30 p.m. on April 9 in the Senior Center, immediately before the regularly scheduled BOH meeting. Discussion will cover the problem precipitated by the Cacchiotti proposal, in which the DEP denied the original BOH approval because the septic system was in Zone 1 of the Wellfleet Harbor Condominiums. Lezli Rowell stated that she would like to see any correspondence from the applicant to the DEP on the proposal, and to receive correspondences to the BOH, carbon copied to the BOH or of interest to the BOH, provided timely to the Board.
Minutes of 2/12/03. Betty Kimball moved to accept the minutes of 2/12/03 as recorded; David Breen seconded; the motion passed, 3-0-1 (Rowell abstaining). Minutes of 2/26/03 will be considered at the next meeting.
Discussion of Application Received by the Health Agent. Health Agent Beebe described to the Board for discussion purposes an application for a 4 bedroom dwelling proposed for a 27,000 square foot plot with nitrogen credit (a remedial project using a Ruck system for 660 gallons per day); she stated that the piloting project must be approved by the BOH. Ms. Beebe noted that the Ruck system was a fall-back, perhaps the only way the project could conform to Title 5, but that it might not get approval. It was suggested that the BOH could approve conditioned upon DEP approval; however, the Health Agent stated that she was not comfortable with the 660 system for 4 bedrooms on 27,000 feet. The Board decided to consider the application further at the April 9 meeting.
Licenses. The Board signed the following commercial licenses:
John Martin Inc./John D. Martin -- installers
Harborside Village Cooperative Corporation (2)
Pack 81 Cub Scouts -- food
Gary Burgess d/b/a The Dog Pound (2)
Transfer Station Amnesty Day. The Health Agent distributed a draft flier announcing the Town of Wellfleet Transfer Station Amnesty Day to be held on April 5, 2003 from 8:00 a.m. until 2:00 p.m. noting that the DPW had tried to fine-tune it this year and was trying to limit it to residential service. She asked the Board for suggestions on the guidelines in the flier and noted that the gates would be locked at 2:00 p.m. for clean-up.
From the audience, Eleanor Hazen (speaking for the Chamber of Commerce) stated that the rain day would be April 12; she expressed the wish that the hours could go to at least 2:30 p.m., making it possible for people to pick up and recycle.
Betty Kimball requested a list of costs from last year's Amnesty Day.
David Breen inquired if latex and oil-based paints would be accepted and commented that he did not want people to confuse this with hazardous materials day.
Lezli Rowell agreed with Ms. Beebe that the limit on mattresses could be 4 rather than 2 and suggested 4 items of furniture rather than 2, also. She repeated her plea of last year for Wellfleet residents to be able to "pick the dump." Betty Kimball noted the town's liability in allowing dump picking.
Hazen, noting the 1-load limit, stated that a small hatchback could not bring in as much as a truck and suggested that this rule might be relaxed for small vehicles.
Betty Kimball moved approval of the Transfer Station Amnesty Day for April 5, 2003, with flexibility allowed for a second load for cars, limits of 4 mattresses and 4 items of furniture, and a rain date of April 12. Lezli Rowell seconded; the motion passed unanimously, 4-0.
Chair David Breen stated that he might be in Boston on April 9; therefore, there would be neither chair nor vice-chair (due to Geoff Karlson's resignation) at that meeting. Lezli Rowell moved that Betty Kimball act as Chair on April 9 in the event of Breen's absence; Breen seconded; passed unamimously, 4-0. The meeting was adjourned at 9:55 p.m.
Respectfully submitted,
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Frances J. Castillo, Assistant to the Committee Secretary
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