HomeMy WebLinkAbout0221 NYES NECK ROAD - Health 221 Nyes Neck Road, Centerville
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LAW OFFICES OF PAUL REVERE, III
226 River View Lane
Centerville, Massachusetts 02632
(508) 778-7126
December 4, 2000
Robert Smith, Esq. Via Hand Delivery
Town Attorney
Town of Barnstable
New Town Hall
367 Main Street
Hyannis, Massachusetts 02601
RE: Letter of September 19, 2000
Request for Legal Advice to Board of Health
Application for Septic System Disposal Permit
Margaret Menzin --221 Nyes Neck Road, Centerville
Dear Mr. Smith:
On September 19, 2000, 1 wrote a letter to you at the suggestion of the Board of Health
("Board") which requested that your office provide the Board with a legal opinion on
the meaning of a local ordinance and regulation (the "September Letter"). Later, I was
informed by Ruth Weil that the Health Department had told her that no such suggestion
had been made. At the Board's meeting in November, I provided the Board with a
transcript of the relevant portion of the August meeting which provided:
Margaret Menzin (Applicant):
Well, I've been told by my lawyers that they are
grandfathered and so . . . and your saying that may
be their not grandfathered. I'd like, I'd like ... to see it
in writing from the Town's lawyer. Are they or aren't
they, if they aren't then ...
Sumner Kaufman (Board of Health Member):
May I suggest that you request such a letter
from him.
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Margaret Menzin (Applicant):
That would be terrific, but will he, will he, will he
answer me or does that question have to come from
you
Susan Rask (Chairman, Board of Health):
Well, my guess is that he's going to give you the
same answer as he gave us ... that it's up to the
Board of Health to decide since there is . no
grandfathering from Board of Health regulations.
think that's the answer your going to get from
him, but if you want to get it In writing your
welcome to do so . . . but I don't want to speak for
him . . .
322-344 on Tape Counter on Side Three of Tape of 8/14/00 Meeting (Emphasis
Supplied)
Thus, as is clear from the transcript, the Board clearly authorized my client to request
your opinion to clarify the application of certain Board regulations to my client's
property.' Therefore, I again submit the attached September Letter to you for your
consideration and response.
If you have any questions, please feel free to contact me.
Very truly yours,
/!5/
Paul Revere, III
cc: Thomas McKean
' As set forth in the attached letter, the dispute involves whether certain sleeping areas should be
considered in determining the existing sewage flow from the property. The Applicant's position is that the
sleeping areas have existed since the 1950s and result in an existing flow grandfathered under the
express terms of the Town's 330 regulation and ordinance. In contrast, the Board's position seems to be
that the Applicant must build a system smaller than necessary for existing flows because certain of the
sleeping areas do not meet the Title 5 definition of bedroom. The Board's position is particularly
confusing because the proposed system complies with all Title 5 requirements.
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LAW OFFICES OF PAUL REVERE, III
226 River View Lane
Centerville, Massachusetts 02632
(508) 778-7126
September 19, 2000
Robert Smith, Esq. Via Facsimile and
Town Attorney First Class Mail
Town of Barnstable
New Town Hall
367 Main Street
Hyannis, Massachusetts 02601
RE: Request for Legal Advice to Board of Health
Application for Septic System Disposal Permit
Margaret Menzin --221 Nyes Neck Road, Centerville
Dear Mr. Smith:
This letter is written at the suggestion of the Board of Health and requests that you
provide them with your legal opinion. I represent a concerned and upset client who
has been trying since last December' to obtain permission from the Board of Health
("Board") to upgrade an existing cesspool and four bedroom house so that the
property will have a new, conforming septic system.
In particular, the Applicant owns a house which was built in the 1930s and which has
had four rooms used as bedrooms since the 1960s and most likely earlier. She has
been using this house in this configuration for more than 20 years and desires to
upgrade from a cesspool to a septic system and to maintain the use of four bedrooms
at the property. The Board has taken the position that the changes to the building
code and septic system requirements that post-date the four bedroom use of the
property appear to limit their ability to authorize anything other than a three bedroom
use after the upgrade. The Applicant, Margaret Menzin, has paid taxes on the property
for over 20 years and believes that she has the right to maintain her existing four
bedroom use of the property.
Introduction
On August 14, 2000, the Board held a hearing on the above referenced application to
upgrade a sewage disposal system ("septic system"). Since the original filing, the
Applicant has submitted revised plans to meet the Board's concerns. However, the
' The Applicant has agreed to extensions to applicable time limitations to act upon the application.
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Applicant and the Board continue to disagree as to the appropriate capacity of the
upgraded system. In particular, the Applicant believes that the Board has authority to
license construction of a system to serve a four bedroom home because the Property
has an existing four bedroom dwelling. In contrast, the Board's position is that it only
has authority to license a system to serve a three bedroom dwelling. The
disagreement revolves around whether the existing flow must be decreased because
of changes to Board requirements. At the August 14, 2000, hearing, Thomas McKean
stated that your office had verbally informed him in April that Board requirements apply
to existing dwellings. While the Applicant generally agrees with that proposition, the
proposition does not apply when an exemption for existing dwellings is expressly
provided for in applicable regulations. The Applicant's representative explained to the
Board that its position was based upon the express provisions of the Board's
regulations and a local ordinance and, therefore, was not subject to the general rule.
Following this exchange, it was decided by the Board and the Applicant that the
appropriate course of action was for the Applicant to submit an explanation of its
position to the Town Attorney to ensure that your office understood the basis of the
Applicant's position in this matter. The following explains the Applicant's position.
I look forward to your response to this letter so that you can provide guidance to the
Board for its next hearing on this matter and resolve this matter amicably.
Discussion
1. The Board Has Authority to Issue
Permit for a Four Bedroom System
The upgrade of the sewage disposal system on the Property is subject to the
requirements of Title 5 of the State Environmental Code ("Title 5"), 310 C.M.R. 15.000;
the Barnstable 330 gallon regulation ("330 Regulation"), Part VII, Section 8; and the
Barnstable 330 gallon Ordinance (u330 Ordinance"). Under both Title 5 and local
requirements, capacities of sewage disposal systems are based upon gallons of flow
per day and for single family dwellings the flow is calculated based upon the number
of bedrooms. A bedroom is considered to produce 110 gallons of flow per day. Title 5
expressly authorizes issuing a permit for a four bedroom/440 gallon per day system at
the Property. Both the 330 Regulation and the 330 Ordinance authorize the issuance
of a permit for the proposed four bedroom/440 gallon per day system because the
system meets the alternative nitrate limitation of the 330 Regulation and is the upgrade
of an existing system pursuant to the 330 Ordinance.
A. Title 52
The Title 5 regulations expressly authorize flows.of up 440 gallons per day per acre in
2 There does not appear to be any dispute with the Board that the proposed system could be licensed
under Title 5.
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"nitrogen sensitive areas" such as the Property. 310 C.M.R. 15.214 Under Title 5
regulations, an acre is 40,000 square feet. The Property is 40,946 square feet and,
therefore, is consider to be an acre under Title 5. Therefore, the proposed system
meets the 440 gallons per day per acre requirement of Title 5.
B. 330 Regulation
The 330 Regulation limits flows to 330 gallons per day per acre at the Property.
However, the 330 Regulation provides two exceptions. First, an applicant can
demonstrate that the nitrate concentration from a system with a flow greater than 330
gallons per day per acre will not exceed 5 mg/I at the property boundary. Part VII, Sec.
8.00 (Restrictions, para. A.). Here, the Applicant has proposed installation of nitrate
removing sewage disposal system using the FAST technology. The use of the system
will result in a nitrate concentration of approximately 2 mg/I at the property boundary.
Therefore, the Board has authority to issue a permit for a four bedroom system under
the 330 regulation under the first exception. Second, the 330 Regulation does not
apply to "the maintenance, repair or alteration of an existing individual sewage
disposal system." Part VII, Sec. 8.00 (Restrictions, para. B.). Here, the Applicant has
proposed to remove the existing cesspool serving a four bedroom dwelling on the
Property and replace it with a system that meets Title 5 requirements. Under Title 5,
such a replacement is the "maintenance" of a sewage disposal system.3 Therefore, the
second exception to the 330 Ordinance also applies to the proposed system.
C. 330 Ordinance
The 330 Ordinance only applies when a "person install[s] . . . a new individual on-site
sewage disposal system." Section 2-1. The 330 Ordinance provides that "'install a
new individual on-site system shall not include the maintenance, repair, and
upgrading of an existing individual on-site sewage disposal system." Section 3-4.
Here, the Applicant has proposed to "upgrade" the existing system from a cesspool to
a FAST system. Therefore, the 330 Ordinance does not apply.
It may seem some what odd that the nearly complete replacement of the system as
proposed by the Applicant is "upgrade." However, Title 5 regulations expressly define
"upgrade" as "the design and construction of a new on-site system which is intended to
bring a nonconforming system into conformance 310 C.M.R. 15.002.
Furthermore, such a reading of the term "upgrade" encourages cesspools to be
replaced with new Title 5 systems. For example, if the term "upgrade" does not not
include complete system replacements, then the owner of an existing four bedroom
house on a one acre lot would be required to remodel to remove an existing bedroom
if the owner decided to replace a cesspool. Under the circumstances, the owner
3 Under Title 5, "maintenance" is expressly.defined to include the"upgrade" of a sewage disposal system.
310 C.M.R. 15.002
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would be likely to maintain the cesspool rather than remove the bedroom. Such a
result would be contrary to the 330 Ordinance's goal of protecting human health and
the environment because it would discourage replacement of cesspools.
3. Existing Bedrooms
The discussions with the Board also have centered on the number of existing
bedrooms at the Property because the number of "existing" bedrooms will determine
the existing flow to the cesspool. Both the Applicant and the Board agree that their
are four separate areas that are used as "bedrooms" in the existing dwelling and that
these areas have been used as bedrooms by the owners prior to: (i) the adoption of
the building code in Barnstable in the mid 1970s; and (ii) the placement of a definition
of "bedroom" into the Title 5 regulations in 1995. Both the Applicant and the Board
agree that only one of the four areas would meet the definition of "bedroom" in Title 5.
The Board and the Applicant, however, cannot resolve whether the dwelling is
considered to have an existing flow of a four bedroom dwelling. The Applicant's
position is simply that it has been established that the building has been used since at
least the 1960s as a four bedroom dwelling and to conclude that the existing flows
from the building are less than that of a four bedroom dwelling is simply illogical and
contrary to a well established fact.
At the various public hearings on this application, the Applicant presented the Board
with information on the history of the Property. That information demonstrated that the
cabin was constructed in the 1930s, and that the bedrooms have been used as
bedrooms since at least the 1960s and are currently used as bedrooms. As part of this
demonstration, the Applicant requested that the Barnstable Building Department
inspect the cabin and render its opinion as to the number of bedrooms which are
present. In a letter dated March 28, 2000, the Building Department stated that, in its
opinion, the building had at least four bedrooms all of which pre-existed the adoption
of the state building code in Barnstable and all of which would be considered
bedrooms by the Building Department. A copy of that letter is attached as Exhibit One.
The Board has also visited the Property and inspected the dwelling to confirm these
facts.
Applicant's representatives also presented information to the Board which explained
the history of the definition of "bedroom" under Title 5. The investigation showed that
the Title 5 regulations did not contain a definition of "bedroom" prior to 1995. Rather,
the Department of Environmental Protection ("DEP") relied on a policy which defined
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"bedroom" as:
any portion of a dwelling which is so designed as to
furnish the minimum isolation necessary for use as
a sleeping area and includes, but is not limited to,
bedroom, den study, sewing room, sleeping loft, or
enclosed porch, but does = include kitchen, bathroom,
dining halls or unfinished cellar.
See Exhibit Two (bold emphasis supplied).
Thus, prior to 1995, the Board° and DEP would have used this policy and concluded
that the dwelling has at least four bedrooms.' This point is particularly important
because the 330 Regulation and the 330 Ordinance were adopted in the 1980s when
this policy was in effect. Thus, both the Board and Town Meeting would have used the
definition in this policy in defining an existing flows which are exempt from the 330
Regulation's and 330 Ordinance's requirements.
In summary, the cabin has historically generated and presently generates the septage
flows of a four bedroom dwelling. Consequently, a decision by the Board to authorize
the construction of a system capable of serving a four bedroom dwelling does not
result in any increase of the existing flows.
The principal conceptual problem which the Board has with the Applicant's proposed
system is that the dwelling does not have four bedrooms which meet the current Title 5
definition of bedroom. I believe that the Board is misapplying this definition to this
application and that there was never any intention that this definition be used as a
means of reducing existing septic flows. The definition of "bedroom" was introduced
into the Title 5 regulations as a means to ensure that a system of sufficient capacity is
installed to meet existing or newly constructed flows. In other words, the purpose of
the "definition" is to prevent the construction of an undersized system. Use of the
definition of "bedroom" as proposed by the Board would actually result in the
construction of undersized systems. In particular, the implications of applying the
definition as proposed by the Board can be shown by the following example.
Assume that a person with a dwelling like the Applicant applied to upgrade an existing
septic system. Using the definition of "bedroom" to existing construction as proposed
by the Board, the Applicant could apply for and obtain without any Board hearing a
three bedroom septic system even though the Property was used as four bedroom
dwelling.e Thus, rather than prevent the construction of an undersized system, the
The policy has been used by the Board in deciding on sewage disposal system applications.
5 In fact, the dwelling has a sleeping porch and would have been considered to be a five bedroom dwelling
under the policy.
The system would be a three bedrooms because it is the minimum size allowed by Title 5. In fact,the
definition of bedroom would only justify a system with capacity for one bedroom.
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Board's position would result in an undersized system being built.
In contrast, the Applicant simply requests that the Board recognize the reality of
existing flows at the Property. If the Board recognizes such flows it can ensure that a
properly sized system is constructed to meet such flows.'
I believe that the foregoing accurately sets forth the disagreement between the Board
and the Applicant. I look forward to your response to this letter.
Very truly yours,
Paul Revere, III
cc: Thomas McKean
The Applicant is not requesting that the Board recognize flows from non-conforming bedrooms which
post-date(or were otherwise created after)the adoption of the state building code by Barnstable or the
1995 Title 5 code.
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EXHIBIT ONE
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.�. The Town of Barnstable
Departmen! of Health Safety and Environmental Servicf s
' Building Division
367 Main Stret:t,Hyannis MA 02601
Office: 50.8-862-4038 Rail h Crossen
Fax: 508-790-6230 But ling Conunissioner
March 28,2000
BSC
657 Main Street
Unit 6
West Yarmouth,MA 02673
Re: 221 Nye$Neck Road
Centerville,MA
Existing Bedrooms
Dear Mr.Healy,
On March 23.2000 I met you a the above address o i Lake Wequaquet. This house seems to hav, been
built as you stated in the 1930'i sotne time and appears to have never been changed. In the house here are
three areas that are presently u.,ed as four bedrooms. Under present day codes two of thest roams would
not qualify as bedrooms becaux of the size of these areas. However,this house was built before: code was
adapted in this area. A building code was not formally adopted in this Town until the mid 1970's For this
reason these rooms could be crnsidered grand father A- since the use of these rooms has never chi aged.
If we can be of further assistance please don't hesita•.e to call.
Sincerely,
Tom Perry Cr
Building Inspector
TP/sc
g000328
EXHIBIT TWO
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' . ' .--•mil .�.
Ift]
donrrd,df Ilonit;h Gild PYT
Ili;! hA tI_,
e 5 of the gkeke F,ttvirvttlnetttrtl
utltQr ,xntekestod Par . . UCi �y�Z Codo -- Clarifictttiort of '1'otolg,
• pedrvom" and "Reserve Area"
. .. NntttMnhla Centttr Nenith U�n•1
. ')1te Uri►nKt+ttr_nt t3l-F:IlVllCtltUntltitnl,�ttttrtiity rttj;ittnaciuj; Itnn tl�i:r•1.:,•.4
'ltunteroue requeoto for clarif icatiott of 'Title 5 of Alia. State CnvirdutttentIII
Cade Lit eattttmatian with what (conatituten e,';tbedrpgt>s,+ Egtr._ aactn 'f;,�tp�L+
datatV6111ation ttittd Whether a.. "t:aaerve areal', as raquirad by ltagulnt;iatto
13.1), 1410t ttttd, 13.6, atuat be built vt;igittnlly or Suet;
"how much d.atr.il cvnCertting the reeatve area must be provided for th- ori.g--
•ittnl Gottatructiou. '
pince 'Title 5 uag ndallted by titia j)eparttrlett,L such clurilicatiott atld
-• inte><pt et:atiott :ta itt IMCaognry t~ntt and will be provided by thu Uepar Lutrttt
and I hereby provide tits fo.11owiugt • .+ • ~
t'Iledt avtn" means any l/ur t3,att of a dwelling which is go dgaigtted ua to
Jut lt:.ttIt tlta Mitiiatuta lselativtt ttecessnry' for use no tt sleel,lttg ttrau qttl
,dttcludeo, but id not 111mitud to,. badrownp dads ntudy, riewius room, aleeltlllg
loft, ur .aticluacd vorch, but dotty ttut: Include ititt hate, btttlttut;ta, dillitle,, tttttttt,
stalls or Unfinished cellar.'
In Camseetivtt stint the :tt;saet:ve arod" required by tite nbove noted rRj;-
ulativno, it Was the itttotttit+tt of the Department that a perco.tlati.ott test re•-
•quired by Regulativ:t 3* 4 and deep vbservatictt stolen regttired by ltcgiiinti.vu 3.3
be performed :Lit the "preserve 'ages" to datarmine iti, auittibll! ty for sr_tanl;C
dispoeai acid to detszmina tilt' aceG ttecsaen.xy 'to be equal to the oc gIltal
Leaching eyotew capacity, Further, tits nrt±tt Yhould be suitnble far qe itt-
teltde,d purpose by ressoit of. topogrvjtliy,�opd .distattes from caltatl•al its such
its wetlanda, we.11$$. etc, it was eat Lila jtttenh,iatt of file ULjtarc:ngttt filet: � .
THE t The Town of Barnstable
i s Department of Health aft n Environmental B�9T , Safety y and Services
1639 9Public Health Division
ape,s639. `�0
ID NA5
367 Main Street,Hyannis,MA 02601
Office 508-790-6265 Thomas A.McKean
FAX 508-775-3344 Director of Public Health
April 28, 2000
Craig Field
BSC Group, Inc.
657 Route 28
West Yarmouth, MA 02673
RE: 221 Nyes Neck Road, Centerville
Dear Mr. Field:
Your application for a variance regarding 221 Nyes Neck Road, Centerville is
incomplete. The Board strongly suggests that you provide the following
information:
• Official documentation that the Town of Barnstable has approved this
dwelling for four (4) bedrooms as you testified.
• Official documentation that the existing bedrooms meet the State Sanitary
Code Article II Regulations, the Building Code Regulations, and the State
Environmental Code, Title V Regulations.
If you should have any questions, please feel free to telephone me at 862-
4644.
Sincerely yours,
�A�as A. McKean, R.S., C.H.O.
Health Agent
Town of Barnstable
cc: Margaret Menzin
TM/bcs
field
4 ,f•�
DATE: —
Tow f Barnst $Y�
Board of Health D. DATE: Ai?./�.,��G
,
367 Main Street, Hyannis I
ov
Office: M8-190.6265 fE"
FAX: 508-790 f Q•
6304 NO I� ? Susan G.Risk.R.S.
a' J O yCSumner Kaufman.M.c_.P F{.
l ZOO OF 1909h,;Murphy.M.D.
VARIANCE BE O ;F Ham' %
LOCAlmd ;
Property Address: #2 21 Nye s Neck Road -'
Assessor's Map and Parcel Number- M-233 , P-2-2 42 971+ S.F.
Size of Lot: —
Wetlands Within 300 Ft. Yes X Subdivision Name:
No
Business Name:
CGNTT
Name: argaret Menzin Name: A ralg field, The Bsc Group, Inc.
Address: 26 Mason St. Lexington, 0242,iddress; 657 Rt. 28 , West Yarmouth, 02673
Phone: 781-862-5107 Phone: 508-778-8919
FAX: FAX: 508-778-8966
VARIAN F (Us Reg.) REASON FOR VARIAN _F,tylav ittnch ifmcraspaceneeJrdl
Well Protection 3 . 00 Abutting .wells and Wetland buffers
rest.ri r•i-To the area t•,�t—can ,sed
h chi nrT fnr a 1 Par-hi ncr cog{-Pm,__
to P al 1 n W a 1 Pa
PXl C_. }� rr7 wa 11 i n l i eu
-------------
Checkfis (to be completed by oJTIce staff-person receiving variance request applicarion�
Four(a)copies of plan submitted(including septic system plans and?or restaurant tloor plans)
Applicant understands that tha abutters must be notified by certified mai!at least ten days prior to meeting
date at appFcant's expense(for Title V and.-or local sewage regulation variances only)
Full menu submitted (for grease trap variances only)
Variance request application fee collected;ncfee6>rr; ,rd
MN .nali(icauon rviewels,grcxe uap.anaicc rmnvah(same ovnevl.•.ucr:,n ivy.,:nude�
:hnrng venanu renewals flame uWneukmee nnlvt-am vuancu to reoair roiled sawerye disposal srsscros(owy if nn e102n'n 10:11e iciidmg;mposed(j l
V1rIa171CC request submitted at least 15 days prior to meeting date
VARIANCE APPROVED Susan G. Rask, R.S., Chairman
NOT APPROVED Susan
REASON FOR DISAPPROVAL Sumner Kaufman,M.S.P.H.Ralph A. Murphy. M.D.
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BSC
Gpoup TRANS
MITTAL
To: �j4,.�.i�+si79,%Jc-� �D.9 � a� Date:
Proj. No: 'Y-8�iy• 0 a
Project:
We are sending you:
PAttached ❑Under Separate Cover
Via: 657 Main Street
❑Overnight Delivery ❑Taxi ❑Regular Mail Unit 6A, Route 28
❑Messenger ❑Direct from printer Other: 'A JOSZ-4 Uwe West Yarmouth, MA
02673
The following items:
❑ Change Order ❑Drawings ❑Prints ❑Samples Tel: 508-778-8919
Copy of Letter Photocopies Reports Specifications Fax: 508-778-8966
❑Digital Media t9 Plans ❑Other:
No. of Copies Drawings No. Date or Revision Description
Jr to — D Z- /! 2-91Z 49 .EN j7
This information is:
10 For Your Information ❑Approved as submitted ❑Resubmit _copies for approval
❑Unchecked ❑Approved as noted ❑Return _corrected prints
❑Preliminary ❑Disapproved ❑Submit _copies for
❑ Revised Plans ❑Returned for corrections distribution
❑Final Plans ❑Sent for your review&comment
Remarks:
cc: Ott• /LJAr/0 ;a-/ri Signed: '::V7 l'<•.7
Note: If enclosures are
���,✓ ,L/n►�yu�rr not as noted,please
contact us immediately.
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JPORCH
20.4'
L.R.
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HALL BATH M
KIT. B.R�#4
�B R#1, I
BAR._#2
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1 st FLOOR 2nd FLOOR
EXISTING STRUCTURE HAS FOUR
ROOMS."�ONEOF�WHICH IS TO THE BSC GROUP, INC
Al "tl 'HMO P.O. BOX 969 WEST YARMOUTH MA.
c oy. G EXISTING SCALE: 1~= lot
�s HOUSE LAYOUT
7 DATE: 11/29/99
!� � 221 Bs ROAD
t�9 9 C9 NYES N # 5169-03
CRAIG A. FIELD, PLS DATE BARNSTABLE, MASS FOR THE BSC GROUP, INC. SHEET 1 OF 1