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U"SACWJSE-Ts "0 pIMECTIMT � 1 L FROM Paul Revere III Esq PHONE NO. 5087787126 AUG. 09 2002 11:23AM P2 �- 4 WHEREAS, Laurie Warren and Christopher Kuhn, of Barnstable, Barnstable County, Massachusetts ("Grantor") are the owners in fee simple of certain parcels of vacant land located in Barnstable, Barnstable County, Massachusetts, pursuant to a foreclosure deed, dated __ and registered with the Land Registration Office of the Barnstable . County Registry District and pursuant to Certificate of Title No. ____ issued by the Land Registration Office of the Barnstable County Registry District, said parcels of land being being shown as Lots #38 and #39 on a plan registered as Land Court Plan No. 20950-M, on file with the Land Registration Office of the Barnstable County Registry District ("Facility Land"); and WHEREAS, Lot #39 of the Facility Land has the benefit of certain variances from Board of Health regulations which were granted by the Town of Barnstable Board of Health on __ _,,•_ _� and allow the construction of a single family home serviced by an on-site sewage disposal system with a design flow of 440 gallons per day; and WHEREAS, the variances are conditioned upon the agreement by Grantor to prohibit construction of any other subsurface sewage disposal system on the Facility Land; NOW, THEREFORE, Grantor does hereby grant the following restriction on Lot #38 only on said above referenced plan in accordance with the agreement with the Board of Health which restriction shall run with the land and be binding upon all successors in title and shall be enforceable only by the Town of Barnstable acting through its Board of Health or successor agencies to said Board of Health: 1----No --face sewage disposal. system shall be located on Lot #38 on Land Court Plan No. 20950-M in perpetuity in furtherarice-,of the public purposes of protection and preservation of the quality on, quantity of ground water resources in the area of the public and private wells in the Town of Barnstable, Massachusetts in order to ensure a safe and healthy public and private water supply for the present and future inhabitants of the area pursuant to the provisions of Art. 97 of the Massachusetts Constitution and M.G.L. c.184, §26, as amended. • Z. Grantor agrees that this" should be a permanent deed 1 FROM Paul Revere III Esq PHONE NO. 5087787126 AUG. 09 2002 11:24AM P3 restriction affecting Lot #38 of the Facility Land as shown on Land Court Plan No. 20950-M. For title see foreclosure deed, dated __, and registered with the Land Registration Office of the Barnstable County Registry District and pursuant to Certificate of Title No. ____ issued by the Land Registration Office of the Barnstable County Registry District WITNESS the execution hereof under seal this day of _.,.------_._., 20 Laurie Warren Grantor COMMONWEALTH OF MASSACHUSETTS Barnstable,§ ___, 20___ Then personally appeared the above-named Laurie Warren and acknowledged the foregoing instrument to be her free act and deed before me. Notary Public: My commission expires: 3 2 f TUE 17:08 FAX 508 862+4711 TO - DPW - Engineering ( 002/003 TOWN OF BARNSTABLE OFFICE OF TOWN ATTORNEY 367 MAIN STREET HYANNIS, MASSACHUSETTS 02601-3907 ROBEITT D.SMITH,Town Attorney TEL(SM)W2-462A RUTH J.WEIL, 1st Assistant Town Attorney April 30,2002 FAX s(SM)SM 4724 T.DAVID HOUGHTON,ASSlstant Town attorney CLAIRE R.GRIFFE%Legal Assistant CONMRNT1AL Paul Revere, Ill, Esq. 226'Riverview Lane Centerville, MA 02632 Re: Potential Calves Pasture Settlement(Inadmissible as Evidence) Christopher P. Khun, Laurie A. Warren v. Sumner Kaufman, Ralph A. Murphy, Susan G. Rask and Town of Barnstable Board of Health C.A. No. 00-285 Our File Ref.#20000074 Dear Mr. Revere: In an attempt to confirm our several telephone conferences since the Board of Health executive sessions of March 19 and April 16, it is my belief that we have agreed to advance the following as a new application for public hearing. Lots 38 and $9 would be reconfigured as a single lot to be shown on a recorded ANR plan. Your clients would apply for variances from Barnstable health regulations for installation of a septic system of sufficient size and capacity to accommodate a four bedroom house with attached garage to be located on what is presently Lot 39, The following would be among the anticipated conditions. (a) Your clients would provide for the installation at their expense of a water main from Scudder Lane along Calves Pasture Lane of sufficient capacity to provide a public water source for their property and that of the property across Calves Pasture Lane (house number 58). (b) Your clients would comply with any other requirements of the Barnstable Water District for installation of a main along Calves Pasture Lane. Your clients would request in writing that the 20000074 Rcvltr16 .. AkO9/2002 TUE 17:09 FAX 508 862+4711 TQB - DPW - Engineering 1�003/008 District confirm to the Board of Health in writing its approval of the installation and its specifications and requirements. (c) Your clients would either(1) provide for the installation at their expense of a water connection line to the dwelling house or well connection at 58 Calves Pasture Lane or(2)document in writing that they so offered and their offer was refused, in which event they will provide for the installation at their expense of a water connection line to the sideline of 58 Calves Pasture sufficient to enable the present or a future owner to connect: (d) Your clients'application demonstrates that it depends on the minimum number of variances from local health regulations, and requires no variances from Title V. We discussed that the likely preference would be for greater distances (lesser variances) from wetlands than structures. There may be other conditions the Board imposes, but 1 can represent that I have and will communicate to them that this matter is proceeding as litigation settlement and their conditions must be in line with that posture even in the face of objections or concerns voiced at a public hearing. I believe that the next steps are for you on behalf of your clients to (1) present a sketch of your proposal in light of these terms so that I may discuss it once more with either Tom McKeon or Susan Rask or both, (2)continue the summary judgment motion hearings scheduled for May 14, (3) prepare and file a new variance application with the Board once the sketch has been reviewed, and (4) acquaint me with any corrections or additions to the contents of this letter. In connection with item number 3, 1 agreed with you that it may be necessary for you to discuss this proposal with Rob Gatewood and that I had no objection as long as those discussions were confined to wetlands issues. i look forward to hearing from you. Very truly ours, r /tdh T. DAVID HOUGHTON Assistant Town Attorney Cc:Thomas J. McKean, Director, Public Health 20W0074 Ra1trlo i - TOWN OF BARNSTABLE BA ASS.LE.M � OFFICE OF TOWN ATTORNEY MASS. rEo . 14 367 MAIN STREET HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D.SMITH, Town Attorney TEL.(508)862-4620 RUTH J.WEIL, 1st Assistant Town Attorney April 30, 2002 FAX#(508)862-4724 T.DAVID HOUGHTON,Assistant Town Attorney p CLAIRE R.GRIFFEN, Legal Assistant CONFIDENTIAL Paul Revere, III, Esq. 226 Riverview Lane Centerville, MA 02632 Re: Potential Calves Pasture Settlement (Inadmissable as Evidence) Christopher P. Khun, Laurie A. Warren v. Sumner Kaufman, Ralph A. Murphy, Susan G. Rask and Town of Barnstable Board of Health C.A. No. 00-285 Our File Ref. # 20000074 Dear Mr. Revere: In an attempt to confirm our several telephone conferences since the Board of Health executive sessions of March 19 and April 16, it is my belief that we have agreed to advance the following as a new application for public hearing. Lots 38 and 39 would be reconfigured as a single lot to be shown on a recorded ANR plan. Your clients would apply for variances from Barnstable health regulations for installation of a septic system of sufficient size and capacity to accommodate a four bedroom house with attached garage to be located on what is presently Lot 39. The following would be among the anticipated conditions. (a) Your clients would provide for the installation at their expense of a water main from Scudder Lane along Calves Pasture Lane of sufficient capacity to provide a public water source for their property and that of the property across Calves Pasture Lane (house number 58). (b) Your clients would comply with any other requirements of the Barnstable Water District for installation of a main along Calves Pasture Lane. Your clients would request in writing that the 20000074 Rev1trl0 _e v"f District confirm to the Board of Health in writing its approval of the installation and its specifications and requirements. (c) Your clients would either (1) provide for the installation at their expense of a water connection line to the dwelling house or well connection at 58 Calves Pasture Lane or (2) document in writing that they so offered and their offer was refused, in which event they will provide for the installation at their expense of.a water connection line to the sideline of 58 Calves Pasture sufficient to enable the present or a future owner to connect. (d) Your clients' application demonstrates that it depends on the minimum number of variances from local health regulations, and requires no variances from Title V. We discussed that the likely preference would be for greater distances (lesser variances) from wetlands than structures. There may be other conditions the Board imposes, but I can represent that I have and will communicate to them that this matter is proceeding as litigation settlement and their conditions must be in line with that posture even in the face of objections or concerns voiced at a public hearing. I believe that the next steps are for you on behalf of your clients to (1) present a sketch of your proposal in light of these terms so that I may discuss it once more with either Tom McKeon or Susan Rask or both, (2) continue the summary judgment motion hearings scheduled for May 14, (3) prepare and file a new variance application with the Board once the sketch has been reviewed, and (4) acquaint me with any corrections or additions to the contents of this letter. In connection with item number 3, 1 agreed with you that it may be necessary for you to discuss this proposal with Rob Gatewood and that I had no objection as long as those discussions were confined to wetlands issues. I look forward to hearing from you. Ve truly yours, J /tdh T. DAVID HOUGHTON Assistant Town Attorney Cc: Thomas J. McKean, Director, Public Health 20000074 Rev1tr10 �Op1HETp�� Town of Barnstable O� Department of Health, Safety, and Environmental Services HAxxsraecz•:. 9� HASS, Public Health Division ATED 11�0�A P.O.Box 534,Hyannis MA 02601 Office: 508-862-4644 Thomas A.McKean,RS,CHO FAX: 5 8-790-6304 Director of Public Health April 25,2000 Mr. Paul Revere, III, Esquire Law Offices Of Paul Revere, III 226 River View Lane Centerville, MA 02632 Dear Mr. Revere, In response to your letter addressed to me dated April 24, 2000, the Board of Health stands by its previously-issued decisions of February 3, 2000 and March 13, 2000 regarding Lots 38 and 39 Calves Pasture Lane, Barnstable Village. Sincerely Yours, 2- Sincerely A. McKean, R.S., C.H.O. y LAW OFFICES OF PAUL REVERE, III 226 River View Lane Centerville, Massachusetts 02632 (508) 778-7126 April 24, 2000 ,. Tom McKean, RS, CHO ' Health Agent Health Department Town of Barnstable New Town Hall 367 Main Street Hyannis, Massachusetts 02601 RE: Constructive Approval of Applications for Septic System Disposal Permits Lots 38 and 39, Calves Pasture Lane, Barnstable Village And Notice of Claim For Taking of Property Without Compensation Dear Mr. McKean: Massachusetts General Law Chapter 111, Section 31 E ("Section 31 E") provides that an application for a sewage disposal system "shall be deemed to have been granted" if a local board of health fails to provide a written decision to the "applicant" within 45 days of the board's receipt of a completed permit application. The Barnstable Board of Health ("Board") did not issue a written decision to the applicant disapproving the permit applications for Lots 38 and 39, Calves Pasture Lane, Barnstable within the required 45 day period. Therefore, the permits have been granted for both lots and the applicants will be sending a representative to pick up the permits by the end of this week. Additionally, you should be aware that, if the Health Department, refuses to issue these permits as required by Section 31 E for either lot, an appeal will be filed. The appeal will include the following requests: (i) a declaration that the. permits were granted pursuant to Section 31 E; (ii) a declaration that the Town of Barnstable ("Town") unlawfully (or ineffectively) attempted to impose restrictions on the granting of variances for septic systems on the lots and requiring a public water supply for each lot; (iii) a declaration that the Board regulations requiring a 100 foot setback from wetlands and 150 feet from private wells are invalid; (iv) a determination that the Board acted unlawfully when it denied a permit for each lot; and (v) a judgment including an award of damages because the application of the Board's regulations to the lots 1 1 and/or the failure to timely grant a permit constituted a temporary or permanent taking of property in violation of the civil rights of the applicants under the United States and Massachusetts Constitutions., - 1. Grant of Permits by Inaction To ensure protection of investment-based expectations and to prevent- boards of health from rendering the development of property uneconomic through delay, Massachusetts provides a 45 day time period irr which a board of health must act on a permit application. Specifically, Section 31 E provides: Any health officer or board of health for any city, town or district, whose authority includes the issuance of permits for construction, maintenance or alteration of individual sewage disposal systems for residential buildings . . . shall act upon a completed application for such permit to construct, maintain, or alter such system within forty- five days from the date upon which such completed application is filed with said health officer or board of health. If a determination on a completed application is not rendered within forty-five days by the appropriate health officer or board of health, then said permit shall be deemed to have been granted. For the purpose of this section, "action on a completed application" shall mean approval of said application and issuance of the permit to construct, maintain, or alter, or disapproval of said application with a written statement of the reasons for such disapproval. The written statement of reasons, in the case of disapproval shall be sent to the applicant by first class mail, postage prepaid and shall include the information necessary in order to ascertain why the application or the proposed subsurface sewage disposal system or both fail to comply with local or state code requirements. .. . . M.G.L. ch. 111, Sec. 31 E (emphasis supplied). Thus, by its express terms, Section 31 E requires a board of health within 45 days of the submission of a permit application to either issue a permit or a written disapproval to the "applicant." The provisions of Section 31 E apply to applications that include variance requests. 310 C.M.R. 15.411(4).' Here, the Board failed to issue a disapproval for either lot in accordance with the requirements of Section 31 E and, ' 310 C.M.R. 15.411(4) provides: "A request for a variance for a residential facility with four units or less(as described in M.G.L. c. 111, §31 E) shall be deemed constructively approved by the local approving authority if the local approving authority does not act upon it within 45 days of receipt of a complete application. . . . .. 2 therefore, the permits and variance requests have been granted pursuant to Section 31 E. A. Grant of Permit for Lot#38 The applicant for a septic system on Lot #38 is Laurie Warren. Ms. Warren filed her application for a sewage disposal system permit on November 30, ` 1999. The application requested a variance from the Board's 100 foot wetland setback regulation.2 The septic system met all of the requirements of the state environmental code and, therefore, the permit application did not request a variance from state Title 5 requirements. After public hearings on December 14, 1999, and January 18, 2000, a revised plan was submitted on January 27, 2000, to the Board. On February 3, 2000, the Board heard further public comments on the application. Not a single comment from the neighbors or the Board at any of the hearings addressed the environmental impact of the proposed system. Rather, the Board and the neighbors focused exclusively on whether the Board should consider variances for the lot and whether the failure to grant a permit would constitute an injustice. The Board then voted at the February 3, 2000, meeting to deny a permit to the applicant. On March 12, 2000, at the latest, the 45 day time period to mail a written decision provided in Section 31 E expired and, on March 19, 2000, more than 45 days elapsed since the public hearing and the Board's vote to deny the permit application. Thus, by March 12, 2000 (and without question by March 19, 2000), the permit application for Lot #38 Was granted pursuant to Section 31 E. By letter addressed to the applicant (Laurie Warren) dated March 24, 2000,3 the Board finally provided "a written statements of the reasons for such disapproval." This letter was wholly ineffective because it is dated and was mailed after the 45 daytime period expired. Therefore, the septic system permit for Lot #38 has been granted. The applicant, Laurie Warren, will be sending a representative to pick up the permit by the end of this week. B. Grant of Permit for Lot#39 The applicant for a septic system on Lot #39 is Christopher Kuhn. Mr. Kuhn filed his application for a sewage disposal system permit on December 29, 1999. The. application requested a variance from the Board's 100 foot wetland setback 2 On.page 2 of its letter denying the permit application, the Board states that the applicant failed to apply for a variance from the local requirement for a 100 foot setback from wetlands. A review of the original application and the final revised,plan shows that both expressly requested variances for each component of the"sewerage disposal system." In addition, the system and each of its components, and the wetlands on the lot as confirmed by the Conservation Commission are shown on the final revised plan for the Lot #38. Thus, it is ludicrous to assert that the applicant did not request such a variance. 'The letter appears to have been mailed somewhat later as it was received by the applicant's Hyannis office on March 29, 2000. 3 regulation 4and the Board's 150 foot well setback regulation. The septic system met all of the requirements of the state environmental code and, therefore, the permit application did not request a variance from state Title 5 requirements. A revised plan was submitted on February 22, 2000, to the Board. On March 13, 2000, the Board held a public hearing. Not a single comment from the neighbors or the Board at the hearing addressed the environmental impact of the proposed system on.-wetlands. Rather, the Board and the neighbors focused on: (i) whether the applicant had sufficiently demonstrated that the groundwater flow in the vicinity of the septic system was away from a neighbors' well; (ii) whether the Board should even consider variances for the lot; and (iii) whether the failure to grant a permit would constitute an injustice. The Board then voted at the March 13, 2000, meeting to deny a permit to the applicant. On April 7, 2000, at the latest, the 45 day time period to mail a written decision provided in Section 31 E expired. ' Thus, on April 7, 2000, the permit application for Lot #39 was granted pursuant to Section 31 E because, by that date, no "written statement of reasons" had been mailed to the "applicant." The applicant, Christopher Kuhn, will be sending a representative to pick up the permit by the end of this week.' 2. Appeal of Denial and Takings Claim If the Health Department, refuses to issue these permits as required by Section 31 E for either lot, an appeal will be filed. The appeal will include the following requests: (i) a declaration that the permits were granted pursuant to Section 31 E; (ii) a declaration that the Town of Barnstable ("Town") unlawfully (or ineffectively) attempted to impose restrictions on the granting of variances for septic systems on the lots and requiring a public water supply for each lot; (iii) a declaration that the Board's regulations requiring a 100 foot setback from wetlands and 150 feet from private wells are invalid; (iv) a determination that the Board acted unlawfully when it denied a permit for each On page 2 of its letter denying the permit application, the Board states that the applicant failed to apply for a variance from.the local requirement for a 100 foot setback from wetlands. A review of the original application and the final revised plan shows that both expressly requested variances for each component of the"sewerage disposal system." In addition, the system and each of its components, and the wetlands on the lot as confirmed by the Conservation Commission are shown on the final revised plan for the Lot #39. Thus, it is ludicrous to assert that the applicant did not request such a variance. 5 The Board did send a letter to Down Cape Engineering dated March 22, 2000,. purporting to deny the permit and explaining the reasons for the Board's attempted denial of the permit application. The applicant, Christopher Kuhn, first learned of this letter on April 10, 2000, after his attorney reviewed the Board's file for this lot on April 10, 2000, and forwarded a copy of the letter to him. This letter was wholly ineffective in preventing the 45 day time period from expiring. In particular, Section 31 E requires that"the written statement of reasons, in the case of disapproval shall be sent to the applicant by first class mail, postage prepaid." (emphasis supplied). Here, Christopher Kuhn was listed with his address as the "applicant"for the lot in the permit application. The written statement had to be mailed to him, not to Down Cape Engineering, to be effective. Because it was not, the March 22, 2000, letter did not prevent the 45, day time period from expiring. The necessity of mailing the"written statement" to the"applicant is illustrated by this matter wherein the applicant, Mr. Kuhn, was completely unaware of the letter until nearly 20 days after its date. 4 lot; and (v) a judgment including an award of damages because the application of the Board's regulations to the lots and/or the failure to grant a permit constituted a temporary or permanent taking of property in violation of the civil rights of the applicants under the United States and Massachusetts Constitutions. A brief summary of the claims (except for the Section 31 E claim) follows. A. Restrictions on Variances and Public Water Supply As part of the hearing on each lot, there was significant discussion regarding whether the Planning Board and the Board imposed restrictions on the granting of variances for septic systems on the lots and also requiring a public water supply for each lot when the subdivision creating Lots #38 and #39 was approved in 1989. For each lot, the Board concluded that such a restriction had been placed upon the lots by a Board letter dated June 6, 1989. The applicants believe that such a restriction was never placed upon the lots. First, the Planning Board's approval of the subdivision does not reference or incorporate by reference the June 6, 1989, Board letter which purports to impose restrictions on variances and require a public water supply. The Planning Board's approval simply states that the approval is subject to "All requirements of the Board of Health." This language cannot be construed to bind the applicants to meet the requirements of the June 6, 1989 letter. Second, the restrictions attempted to be imposed by the Board were deemed unlawful in Fairbairn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171 (1978). In particular, the Fairbairn case unequivocally states "the board of health [in its letters to the Planning Board] would be acting prematurely and unreasonably if it were to take any action with respect to [Title 5] other than requiring the planning board to endorse a condition on the definitive plan to the effect that no dwelling shall be built on any lot without first securing from the board of health the disposal works construction permit required by the code." Fairbairn, at 185 (citations omitted and emphasis supplied). Here, in direct contravention to the Fairbairn decision, the Board attempted to impose requirements on septic systems and public water supply for these lots through the June 6, 1989 letter. Applicants will request that the court declare these attempted restrictions void. In this regard, you should note that the Board has attempted to incorporate these requirement in virtually every subdivision approval since the early 1980s. The applicants will seek a declaration that this restriction is invalid which will have the affect of removing this impediment to development for numerous subdivisions.' Third, the attempt to impose a. requirement to provide public water exceeded the Board's authority under its regulations. The 1989 Board promulgated a regulation on May 23, 1989, Part XII, Section 3.00, Section 19 (the 1989 Water Regulation"), which e In this regard, applicants may consider requesting that they be considered representatives of the class of land owners to whom the Board has attempted to impose these restrictions and, in that capacity, may request relief for like-situated parties such as notice to all affected property owners. 5 provides that: "The Board of Health may at its discretion require single family, multi- family, or commercial structures located within 360 feet of a municipal water line, to connect to municipal water." Here, Lot #38 and the proposed dwelling are ' located more than 400 and 600 feet, respectively, from Scudder Lane, the near water main.' Lot #39 is located an even greater distance from Scudder Lane. This distance is more than twice the distance specified in the 1989 Water Regulation and-imposing posing this requirement exceeded the Board's authority. B. Invalidity of Board Regulations The Board regulations requiring a 100 foot setback from wetlands and 150 feet from private wells have been in effect since 1973 and 1974, respectively. Since that date, Title 5 regulations have been completely revised at least twice (1978 and 1995). Massachusetts General Law Chapter 111, Section 31 requires that a board of health provide a specific justification based on local conditions for local board requirements that are more stringent than Title 5 requirements. The above regulations have been in effect for nearly 30 years and yet the Board has never justified why local conditions require these more stringent setbacks under the revised Title 5 standards. In this regard, it should be noted that a variance is required for both the lots due to post-1974 changes to the definition of wetlands and Title 5 changes which require that the septic tank flow to a soil absorption system rather than a leaching pit. The applicants will seek a declaration that the Board's setback regulations have been preempted by the amendments to Title 5. If the setback restrictions are declared invalid, it will have the affect of removing this impediment to development on numerous lots throughout the Town. C. Improper Denial of Permits As discussed above, the record does not support the Board's denial of the permits on an environmental/public health basis. To obtain a variance the applicants need only show equivalent environmental protection and manifest injustice. With respect to both lots, the Board made no finding at the hearing (nor could they plausibly) that either system affected the nearby wetlands.' Rather, the Board simply held that they would not allow variances from septic system requirements or the need to provide a public 'The Property is located approximately 400 feet from the water supply line. 9 With respect to Lot#39, some concerns were raised-regarding a well on the corner of an adjacent four acre or more property. While the applicant submitted the opinion of a geologist stating that groundwater flowed away from the well based on the water elevations found in the test holes, the Board expressed concern that the applicant had not adequately demonstrated that the groundwater was not flowing toward the well. While the Board's justification seems to make some sense in the abstract, the well on the neighbors'over 4 acre property is uphill from the septic system and the adjacent salt water marshes of West Barnstable. Thus, the Board seemed to want a detailed scientific study to prove the obvious; namely, fresh groundwater does not percolate from a salt marsh to an adjacent upland area which is greater than 25 feet above sea level. Simply, the position of the Board is unsupportable. Furthermore, the Board essentially has allowed the neighboring property owner to render Lot#39 unbuildable by his placement of his well in the corner of his more than four acre lot. 6 water supply on the lots due to the June 6, 1989 letter and because the applicants had not demonstrated "manifest injustice." As explained to the Board, it is impossible to place a system of any capacity on the greater than one acre lots without a variance. The current septic system regulations require a field type soil absorption. These systems require considerably more area than a leaching pit absorption system which was allowed .r.rior to 1995. Thus, the decision of the Board that no variances will. be granted for the lots rendered them unbuildable and has deprived my clients of any economically beneficial use ofthe lots since they do not own adjacent property nor are they suitable for any use other than a single family home. Such deprivation constitutes "manifest injustice".e Therefore, the applicants were entitled to a variance for both lots. The Board also stated that it would require a public water supply for the lots pursuant to the June 6, 1989 letter, and gave no public health justification. Rather, the Board stated that the applicants had not shown manifest injustice. The applicants presented the following evidence to the Board. A water main runs down Scudder Lane. The Barnstable Fire District Water Department informed the applicants that they would not be allowed to connect at Scudder Lane due to insufficient water pressure. Thus, to connect to public water according to the Fire District, the applicants would need to run a line of at least a half mile to Scudder Lane and reconnect all existing homes to the line. Not only is the cost of such a line economically infeasible for two lots and would benefit numerous other lots, but further the applicants have no right to engage in such work in a public way, namely Scudder Lane. In summary, the applicants adequately demonstrated that it would constitute "manifest injustice" to require than to connect to public water, yet the Board refused to allow a variance. D. Taking of Property The applicants own an interest in two lots which were buildable when they were subdivided. These lots are not postage stamps. Each are approximately 1.5 acres and contain over an acre of upland. The Town has assessed taxes on each lot as if they were buildable. Given their locations and the current real estate market, the retail value of these lots is significant. The actions of the Board have rendered both lots unbuildable. The denial of the permit applications was not based upon any public- health impact. Thus, the Board's decision has taken the applicants' property. The United States and Massachusetts Constitutions prohibit the government from taking private property without compensating the owners." The applicant's appeal will claim that the Board's actions took their property either: (i) on a temporary basis if the Board's decision is reversed; or (ii) on a permanent basis if the Board's decision is upheld. Because this letter addresses numerous legal issues, I have provided a copy to Robert 9 Deprivation of"substantially all beneficial use" constitutes"manifest injustice under Title 5. 310 C.M.R. - 15.410(2). 10 In this regard, the applicants are considering whether to sue the Board members in both their official and individual capacities. 7 Smith for his review. If you have any questions, please feel free to contact me. Very truly yours, - 41 Paul Revere, III cc: Robert Smith, Esq. John Klimm f 8 A oFIMEr�,. Town of Barnstable o Department of Health, Safety, and Environmental Services 9 MASS ' . � Public Health Division 1639. pTEo �s P.O.Box 534,Hyannis MA 02601 Office: 508-862-4644 Thomas A.McKean,RS,CHO FAX: 508-790-6304 Director of Public Health April 25,2000 Mr. Paul Revere,III,Esquire Law Offices Of Paul Revere,III 226 River View Lane Centerville, MA 02632 Dear Mr. Revere, In response to your letter addressed to me dated April 24, 2000, the Board of Health stands by its previously-issued decisions of February 3, 2000 and March 13, 2000 , regarding Lots 38 and 39 Calves Pasture Lane,Barnstable Village. Sincerely Yours, Th as A. McKean,R.S., C.H.O. al C N co O Q Q ?• Z• v } rn N Q O r a -z-A PE MZ 203 499 19❑ y •.� U•. r 2 n ' p US Postal service TV � w °C Receipt for C '. z ° ° ° P Certified Mail �.:; �, z No Insurance Coverage Provided. _ °' i....: > iil �.r N ca .ro Do not use for International Mail See reverse ° 2 o o Sent to / J2 n /�� / `J ro a? . Y(tiGGC�/WL�Pi/rQ i' c a a�i ' Stre Dumb U a, c C a �j A W y � ✓ter P/ �GJ L) ., P Office,State,&ZIP Ced e Q U X o Cr E Ile ��� OZ s1 , Postage $ i I o= ` U Certified Fee ai I m �� E Special Delivery Fee a E 2 j m Restricted Delivery Fee 'rn�� aEi 0 m rn 72 o.t- Q Return Showing to Q m N _ Whom 8 Date Delivered n o � - m Retum Receipt Showing to Whom, H Q Date,&Addressee's Address. c a)20 o \ \ E (d Q i O TOTAL Postage&Fees $ z (� 9 co O q T r a�ic� - N o 0 ch Postmark orDate E� � c-°•— � �3P E mmc a, r° // s • °= mca) LQ E r // J _ � � N O tt E E cL ro o o u E _ _ U t0) C,Q `o a ¢ LL Celebrating 30 Years of Excellence in Environmental Services 95 State Road Buzzards Bay,MA 02532 March 3, 2000 (508)888-3900 FAX(508)888-6689 Mr. Christopher Kuhn web:hgp://www.ensr.com 239 Prince Avenue Marstons Mills, Massachusetts 02648 8726-519 RE: Calves Pasture Lane, Lot 39 Barnstable, Massachusetts Dear Chris: As requested, ENSR has reviewed the site plan entitled Site and Sewage Plan of Lot 39, Calves Pasture Lane (2-27-99) prepared by Down Cape Engineering ("DCE") as well as the observation logs describing percolation test information collected by DCE on this site. We have also reviewed the records of our site observations pertaining to the vegetated wetland resource areas present at the site and pertaining to surface water flow observations. It is our understanding that you have requested that the Town of Barnstable Board of Health grant. variances from certain set back requirements described in the Board of Health regulations, which we have also reviewed. Based upon the percolation test information, the elevations of groundwater at test hole locations TH-2A and TH-213 were approximately 6.5 feet and groundwater elevation at test hole TH-3 on the same day was approximately 5.0 feet. This suggests that groundwater elevation at TH-3 is approximately 1.5 feet below the groundwater elevation at TH-2A and TH- 2B. The site plan illustrates test hole TH-3 to be located approximately 70 feet to the west of test holes TH-2A and TH-213. Based upon this information, we can assume that groundwater in the vicinity of the proposed septic system flows in a westerly direction. The result is a flow of groundwater away from both the location of the proposed drinking water well in the east corner of lot 39 and away from the existing drinking water well located on an abutting property to the north. It is our opinion, based on the above-referenced information, that with regard to the locations of existing and proposed wells the proposed on-site septic system is in an appropriate location since the migration of groundwater would be away from these wells. Since groundwater flow direction would be away from any drinking water well, we believe that the request for a variance from the Board of Health regulations found at Part XII, Section III (12) is reasonable. We also believe that the request for a variance from the Board of Health regulations found at Part VII, Section 1.00 is reasonable. On several occasions ENSR observed conditions on Lot 39 and on adjacent lots in order to delineate vegetated wetlands and to better understand surface water flow patterns. We concluded that the stream flows observed on Lot 39 were intermittent in nature and that these flows originated from a vegetated wetland resource area located to the north of Lot 39. During significant storm events, and primarily during the winter and early spring, several channels directed surface water from this wetland onto Lot 39 and adjacent Lot 38. The water entered onto these properties through cross-culverts installed beneath Calves Pasture Lane. Consulting • Engineering R e m e d i a t i o n �1 Christopher Kuhn 8726-519 March 3, 2000 Page 2 The stream located at the eastern margin of Lot 39 was observed as part of a relatively narrow shrub-dominated wetland plant community. The species most commonly observed in this bordering wetland community was northern arrowwood (Viburnum dentatum), a facultative-wetland indicator plant. Facultative plants have a 34-66 percent frequency of occurrence in wetlands or in upland communities (Wetland Indicators, Tiner, 1999). Species including Morrow's honeysuckle (Lonicera morrowii) and eastern red cedar (Juniperus virginiana) were also observed as part of the bordering wetland and adjacent upland. Both of these species are facultative-upland indicator plants. Facultative-upland plants have a 1-33 percent frequency of occurrence in wetlands (Tiner, 1999). According to the Barnstable County Soil Survey (Soil Conservation Service, 1983)(the "soil survey"), Lot 39 is located within an area mapped as Boxford silt loam (3-8 percent slopes). The Boxford soil series is not listed as a hydric soil series according to Hydric Soils of New England (Tiner and Veneman, 1987). Permeability in the subsoil and substratum of these soils is typically slow or very slow due to the silty and clayey sediments within which these soils formed. ENSR's soil profile observations to depths of approximately 24 inches were consistent with information provided in the soil survey. It is likely that the percolation of surface water into a slope comprised of these soils would be limited. These soil conditions would likely result in a perched water table, which would contribute to the conditions favoring the growth of a community of wetland-indicator plants. It is our opinion that the intermittent stream flow and not the presence of an elevated groundwater water table appears to create the conditions primarily responsible for the growth of wetland-indicator plants. Our opinion is based upon the following observations: • the predominance of facultative and some facultative-upland plants in the wetland community, • the reported groundwater elevations at the percolation test areas on the property, and • the permeability characteristics of the soils on this site resulting in a perched water table. Sincerely, ENSR D. Michael Ball Wetland Scientist Cc: Arne H. Ojala, DCE Laurie A. Warren tel.(508)362-4541 .939 main street rt 6a fax(508)362-9880 yarmouth port mass 02675 down cope en jineefffil civil engineers&.land surveyors structural design Arne H.Ojala P.E., P.L.S. Timothy H.Covell, P.L.S. land court January 26, 2000 Daniel A.Ojala,P.L.S. surveys Thomas McKean,RS site planning Barnstable Health Department 367 Main Street Hyannis,MA 02601 sewage system designs Re: Lot 38, Calves Pasture Lane, Barnstable inspections Dear Tom. Per your request, enclosed is an amended variance request application form for the permits above-referenced lot. The enclosed revised plans reflect the re-positioning of the proposed well to be greater than 100' to the proposed septic tank and pump chamber. Distances to abutting wells are also indicated. Old test hole results and their locations have, as well,been added. Please do not hesitate to call with any questions. Very truly yours, Arne H. Ojala,PE,PLS Down Cape Engineering, Inc. cc: L. Warren P. Revere III LAW OFFICES OF PAUL REVERE , III 226 River View Lane Centerville, Massachusetts 02632 - (508) 778-7126 -.:.... ..�. - January 18, 2000 Board of Health Town of Barnstable New Town Hall 367 Main Street Hyannis, Massachusetts 02601 RE: Application for Septic System Disposal Permit Lot 38, Calves Pasture Lane, Barnstable Village Scheduled for Hearing January 18, 2000 Dear Members of the Board: This letter is submitted on behalf of the Applicant, Laurie Warren, for a septic system permit for Lot #38 on Calves Pasture Lane in the Village of Barnstable (the "Property"). As you may remember, the Board of Health ("Board") held a public hearing on December 14, 1999, in which the Board requested that the Applicant: (i) revise the plans in the application to reflect surrounding geographical features; and (ii) obtain a written statement from the Barnstable Fire Department Water District that public water was unavailable for Lot #38. The Board also decided to schedule a site visit to view the Property. As you may also remember, I spoke on behalf of the Applicant and Charles Sabatt, an attorney, spoke on behalf of alleged abutters to the Property. Since the meeting, Mr. Sabatt has submitted a letter to the Board and the site visit was held on Friday, January 7, 2000. This letter further explains the permit application and respond to the comments of Mr. Sabatt. I apologize for submitting this letter on the day of the hearing as I have just recently learned that the Board would be considering this application at its January meeting. I. Merits of Application The Applicant requests relief from: (i) Part VIII, Section 1.00 ("1973 Setback Regulation") for the septic tank and pump chamber;' and (ii) the 1973 Setback Regulation and Part VIII, Section 10.Q0 ("1992 Leaching Facility Setback Regulation") ' The term "pump chamber" is not used in Section 1.00 and, therefore, an argument can be made that Section 1.00 is inapplicable that unit. For purposes of this proceeding only, the Applicant concedes that Section 1.00 applies to the pump chamber. 1 y for the leaching facility and reserve area_' The application for Lot #38 warrants relief from both these requirements. A. Septic Tank and Pump Chamber ,,-,,,.,,The proposed septic tank and. pump chamber are subject to,the,,; requirements-.Of the 1973 Setback Regulation. These units are located 56 feet from the edge of a vegetated wetland that borders on a drainage ditch.3 The Board should authorize their construction in this location because these units will have no .impact on the wetland. The 1973 Setback Regulation provides: Unless otherwise specified by the Board of Health, all cesspools, septic tanks, disposal fields, or other disposal systems hereafter constructed shall be located such that a distance of not less than one hundred (100) feet shall intervene between any watercourse including brooks, ponds, salt and freshwater marshes, bogs, streams, lakes or extreme high water mark of tidal waters and any portion of any cesspool, septic tank, disposal field or other sewerage disposal systems. . . . Town of Barnstable, Board of Health Regulations, Part VIII, Section 1.00 (emphasis supplied). The septic tank and the pump chamber will be watertight in accordance with Title 5 requirements. No leakage of septage will occur from either of these units and consequently there will be no impact to the wetland. Therefore, the Board should exercise its discretion and allow the septic tank and pump chamber to be located less than 100 feet from the vegetated wetland. To authorize construction in this location, the Board does not need to make a formal "variance" determination and the Applicant does not need to demonstrate that failure to grant the relief would constitute "manifest injustice." The 1973 Setback Regulation uses the phrase "[u]nless otherwise specified by the Board of Health" rather than unless granted a "variance" by the Board. The 1973 Setback Regulation is written in this manner so as to provide discretion for the Board to not only r p y permit systems at distances of less than 100 feet to a wetland, but also to require a setback of greater than 100 feet if necessary to protect the wetland. Put another way, the 1973 Setback Regulation is a precursor to Subsection 1.14 of the 1992 Leaching Facility Setback Regulation. Subsection 1.14 requires a distance of 250 feet from wetlands in areas of 2 No relief from the requirements of Title 5 of the State Environmental Code ("Title 5") is required for the proposed septic system. IV 3 The drainage ditch and bordering wetlands do not appear to be natural geographic features. Rather, adjacent property owners apparently constructed a system of drainage ditches on their properties that causes water to flow from a low-lying/swampy area on their properties to a culvert located under Calves Pasture Lane which then drains onto the Property. 2 S9 high groundwater and high soil permeability, and incorporates express numerical standards for the siting of such systems. The 1973 Setback Regulation provides the Board with discretion to adjust setback requirements as appropriate to protect the . environment and appropriately does not use the term "variance" or explicitly (or even implicitly) incorporate the "manifest injustice" standard for the granting of a variance.' ..:........,Regardless, even..if the "manifest injustice" standard :of the,Board of Hoalth's,:septic system regulations, see Part VII, Section 10.00, Subsection 1.31, applied-it would be "manifestly unjust" prohibit placement of these units in this location when they will have no impact on the adjacent wetland. B. Leaching Facility And Reserve Area The proposed leaching facility and reserve area are subject to the requirements of the 1973 Setback Regulation and the 1992 Leaching Facility Setback Regulation. The leaching facility and reserve area are located 70 and 66 feet, respectively, from the edge of the vegetated wetland. The Board should authorize their construction in this location pursuant to the 1973 Setback Regulation because these units will have no impact on the vegetated wetland. Likewise, the Board should grant a variance from the 100 foot setback requirement of Subsection 1 .13 of the 1992 Leaching Facility Setback Regulations because enforcement of the requirements of that regulation "would do manifest injustice" and the system provides the same degree of environmental protection as a system meeting the setback requirement. With respect to the 1973 Setback Regulation, the location of the leaching facility and reserve will have no impact on the vegetated wetland. As explained in a December 14, 1999, letter by ENSR, Inc., the vegetated wetlands are an area of perched water that results from the surface flow of water onto the Property rather than from elevated groundwater. Attached as Exhibit One. In addition to the evidence cited in that letter, this conclusion is supported by the logs for Test Holes #3 and #4 where the leaching facility and reserve are proposed to be located on the Property which show that groundwater is significantly below the elevation of most of the drainage ditch. In particular, groundwater was not detected in Test Holes #3 and #4 at their maximum depths of elevation 20.0 and 15.4, respectively. The drainage ditch traverses approximately 155 feet from the Property's edge to the flood zone (elevation 11 .0). Of that distance, approximately 75 percent is located at elevation greater than 15 feet. Groundwater in the vicinity of the proposed leaching facility and reserve is not feeding the drainage ditch because it is located at an elevation below the bottom of the ditch. Thus, the construction of the leaching facility and the reserve within 100 feet of this vegetated wetland will have no detrimental impacts on it and the Board should ° Further support for this reading of the 1973 Setback Regulation can be found by comparing the terms of the regulation to other Board regulations adopted in the early 1970s. In particular, the same Board of Health members adopted Part XII, Section 2A of the Board's regulations which specifies minimum lot sizes and well setback requirements. In that regulation, the Board not only used the term "variance" to describe any alteration to its requirements, but also the regulation sets forth specific standards for the granting of variances. Thus, the then existing Board members used the term "variance" and incorporated express decision criteria when they desired to limit their discretion in altering regulatory requirements. 3 Co exercise its discretion under the 1973 Setback Regulation and allow the leaching facility and reserve to be located less than 100 feet from the vegetated wetland. With respect to Subsection 1.13 of the 1992 Leaching Facility Setback Regulation, the Board should grant a variance. A variance from that regulation may be granted if: (i) , ."the enforcement.-[of the regulation] would do manifest injustice' , ,and (ii):.the.,same :,.,a.... degree of environmental protection can be obtained. Subsection 1.31 of 'the 1992 Leaching Facility Regulation. As discussed previously, the Applicant has demonstrated that the construction of the proposed leaching facility and reserve area will have no impact on the vegetated wetlands. Thus, a variance must be granted if the Applicant demonstrates that "the enforcement [of the regulation] would do manifest injustice." The 1992 Leaching Facility Setback Regulation does not define "manifest injustice" or describe the nature of the demonstration required to be made by the applicant. Here, the Applicant purchased an interest in the Property in 1998 with the expectation that a four or more bedroom house could be built on the Property based upon a 1989 subdivision plan which showed limited wetlands and one and one half acres of upland." However, as can be seen by a review of the plan submitted by the Applicant which includes a more recent wetland delineations there is no location on the Property where a septic system and reserve of any size can be built without a variance from the 1992 Leaching Facility Setback Regulation. In particular, no area on the western two thirds of the Property is more than 100 feet from a wetland. The only area on the eastern third of the Property which is more than 100 feet from a wetland*is a small sliver of land which comprises the southern 25 percent of the proposed system. In sum, the Property, which was created by a subdivision approved by the Board slightly more than ten years ago and contains more than one acre of upland is unbuildable without a variance from the 1992 Leaching Facility Setback Regulation. Under the current zoning of the Property, a residence is the only use available use of the Property. Thus, enforcement of the 1992 Leaching Facility Setback Regulation will "deprive the Applicant of substantially all beneficial use of the subject property"' and, therefore, a variance should be granted. II. Objections of Alleged Abutters And Subdivision Approval Without naming his clients,8 Mr. Charles Sabatt attended the Board's December 14, 1999, meeting and objected to the issuance of septic system permit for the Property. Mr. Sabatt objected to the issuance of a permit based upon a June 7, 1989, letter issued by the then sitting Board approving the subdivision that created this lot (the 5 The effect of those wetlands on the construction of a septic system is discussed below. 8 The wetland.delineation shown in the application was obtained by the Applicant and approved by the Barnstable Conservation Commission. 7 The quoted language is from 310 C.M.R. 15.410(2) which addresses variances under Title 5. 8 At a previous Board meeting in August, Mr. Sabatt stated that he represented the Cooks who own property at the end of Calves Pasture Lane which does not abut the Property 4 "June 1989 BOH Letter").' In particular, the June 1989 BOH Letter provided that: (i) variances from Title 5 and the Board's septic system regulations will not be granted; and (ii) a public water supply must be provided for each lot. Noticeably absent from Mr. Sabatt's comments are any allegation that the granting of a variance or construction of a well on the Property will result in any adverse impact on public health or,the..environment...The Board should issue the.septic system permit for the Property and not requireryconnection to public water regardless of Mr. Sabatt's objections., 1. Variances From Title 5 and Board of Health Requirements The primary focus of Mr. Sabatt's arguments was that the Board is prohibited from granting a variance due to the statement in June 1989 BOH Letter approving the subdivision and providing that variances from Title 5 and the Board's septic system regulations will not be granted. The June 1989 BOH Letter: (i) cannot limit the authority of the Board to grant variances as it deems appropriate; (ii) unlawfully imposed a prohibition on variances; and (iii) must be read to address only the applicable 1989 regulatory requirements and conditions at the Property. The 1989 BOH Letter cannot limit the authority of the Board to grant variances as it deems appropriate.'° The Board is a regulatory body created by statute. The Board is empowered to act as it deems appropriate on a septic system permit application subject only to the limitations in state statutes and regulations, and local ordinances and regulations. No prior Board possesses the power to limit the authority of later Board except through the adoption of regulations." Here, Mr. Sabatt's position is that the 1989 Board limited the current board's authority to decide on the issuance of a permit for the Property. Put another way, Mr. Sabatt argues that the 1989 Board had the authority to control the actions of all future Boards.12 No statute or regulation provides such authority or even supports his position. Simply, the 1989 Board had no greater authority than the current Board. Under these circumstances, the Board has the power to decide on the merits of the Applicant's permit application and is not bound to follow the pronouncements of the 1989 Board. In this regard, it should be noted that the attempt limit the discretion of future Boards to grant variances does not appear to be the result of a site-specific determination of the 1989 Board. A review of the letters of the Board of Health for subdivisions approved at that time shows that every Board letter includes the prohibition on variances. Thus, contrary to Mr. Sabatt's comments, the limitation does not derive from concerns of abutters to the Property. 9 Mr. Sabatt's comments also are set forth in letters dated December 14, 1999, and December 23, 1999. 10 It should be noted that the 1989 BOH Letter requires that a deed restriction be recorded imposing a limitation on variances. This restriction was never recorded by the person-who subdivided the Property. " As the Board is well aware, the adoption of regulations addressing septic systems are subject to special requirements including publication, public hecings, and, if more stringent than state requirements, a statement as to the local need for the regulation. It is doubtful that the 1989 BOH Letter would qualify as a valid regulation. 12 An analogy could be made to the Town Council (or any other legislative body) passing an ordinance which states it cannot be repealed by a later Town Council. 5 The limitation on variances in the 1989 BOH Letter also is prohibited by the decision in Fairbairn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171 (1978). In particular, the Fairbairn case unequivocally states "the board of health would be acting r prematurely and unreasonably if it were to take any action with respect to [Title 5] other than requiring the planning board to endorse a condition on the definitive plan to the_weffectAhat:n:o dwelling shall be built on any lot w1tho.u.t. first securing _. from the ,board`of health the disposal works construction permit required by" the code." Fairbairn, at 185 (.citations omitted and emphasis supplied).13 Here, the 1989 Board did more than allowed by Fairbairn in that it set forth specific limitations on the granting of a permit for the Property and, thus, the inclusion of the limitation on variances was unlawful. On December 23, 1999, Mr. Sabatt provided a letter to the Board setting forth his opinion on the meaning of the Fairbairn case. Mr. Sabatt's letter completely ignores the above quoted language which is the most relevant portion of the decision and argues that the Board should impose the limitation on variances because the subdivider did not appeal the 1989 Board's decision.14 Essentially, Mr. Sabatt is telling the Board that it should affirm the unlawful actions of the 1989 Board and that two "wrongs" make a "right." The Applicant's position with respect to this argument is simply that, if the 1989 Board should not have imposed the limitation, the Board can correct that action by making its own independent judgment on the merits of the application. In contrast, Mr. Sabatt's position is that the Board must blindly follow the path of the 1989 Board regardless of the validity or appropriateness of its actions. Lastly, if the Board concludes that the limitation on variances in the 1989 BOH Letter must be enforced, that limitation must be read to apply only to those requirements of the Board which existed in 1989 and remain in effect today. As explained above, the Applicant has requested relief from two requirements of the Board: (i) the 1973 Setback Regulation; and (ii) the 1992 Leaching Facility Setback Regulation. The 1973 Setback Regulation was in effect in 1989; whereas the 1992 Leaching Facility Setback Regulation post-dates the subdivision that created the Property. Therefore, the limitation on variances only is relevant to the request for relief from the 1973 Setback Regulation. As discussed in detail previously, relief from the 1973 Setback Regulation is not a "variance." Rather, the regulation provides authority for the Board to designate a setback as appropriate for the proposed system. Thus, the limitation on variances does not place any restriction on the Board's ability to grant relief from this regulation. 13 Additionally, when considering the meaning of Fairbairn, you should note that the court quoted the variance provision of the Title 5 regulations in effect at that time in a footnote immediately preceding the quoted sentence. 14 Mr. Sabatt's letter does cite part of the sentence, but does so in a deceptive manner by removing the bold language from the sentence as follows:4the board of health would be acting prematurely and unreasonably if it were to take any action with respect to [Title 5] other than requiring the planning board to endorse a condition on the definitive plan to the effect that no dwelling shall be built on any lot without first securing from the board of health the disposal works construction permit required by the code." December 23, 1999, Sabatt Letter, at p. 1. 6 In addition and to fully understand the 1989 BOH Letter, the Board should consider the need for variances in 1989. In 1989, the Property had far less extensive wetlands as is demonstrated by the 1989 subdivision plan. Furthermore, a septic system under the . 1978 Title 5 code could use leaching pits for the leaching facility. Thus, at the time of the 1989 BOH Letter, a septic system which met Title 5 code and local regulations could bepconstructed on the,Property based on the wetlands delineation in the 19.89 subdivision-plan without a variance or other relief. When the'1989 Board imposed the, limitation on variances, it was addressing a property that did not need variances under applicable law. Today, the need for relief from/the 1973 Setback Regulation is driven primarily by the -size of the leaching facility which is mandated by the 1995 Title 5 Code. To use the 1989 BOH Letter to prohibit relief caused by the 1995 revisions of Title 5 would be fundamentally unfair reading of the variance limitation in the 1989 BOH Letter. 2. Public Water Supply The alleged abutters and the Board have also expressed concerns regarding the requirement in the 1989 BOH Letter to provide public water to the Property. The Applicant's position is that issue of water supply for the Property is irrelevant to the determination of whether to issue a septic system permit for the Property. Regardless, to the extent that the Board desires to address this issue, the Applicant believes that the Board should waive this requirement because public water is unavailable for the Property. The proceeding before the Board is an application for septic system construction permit. Neither the applicable regulations nor the permit application requirements impose an obligation that the Applicant demonstrate that it has a water supply for a property. Thus, the issue of whether the Applicant has complied with the requirement to provide public water to the lots is simply irrelevant. That issue can be addressed if and when the Applicant applies for permit for construction of a well pursuant to Part XII, Section 3.00 of the Board's regulations. To the extent that the Board desires to address the issue of supplying public water to the Property, the Applicant's position is that the Board should waive this requirement. Like the limitation on variances, the public water supply requirement derives from the 1989 BOH Letter. As discussed previously, the Board has the power to decide on the merits of this matter and is not bound to blindly follow the pronouncements of the 1989 Board. Here, the Applicant has approached the Barnstable Fire District Water Department ("Water Department") regarding connection of the Property to the water main on Scudder Lane. By letter dated February 5, 1999, and again at their December board meeting, the Water Department has informed the Applicant that they cannot connect to the water main at Scudder Lane unless the Applicant provides funds to upgrade the water main on Scudder Lane all the way to its connection to the main line on Route 6A and also to reconnect all existing customers of the Water 7 Department.t5 While the exact cost of the upgrade of the water main is not known, the cost is likely to exceed $100,000 and the Water Department appears to desire that the Applicant pay a significant portion of those costs in addition to the cost of the water line . from Scudder Lane to the Property which in itself may exceed $30,000. Thus, the cost to supply public water to the Property is excessive. Under the circumstances, it is appropriate to examine the source of the 1989 Board's ~ authority to impose a requirement to connect to public water at the Property. The 1989 Board promulgated a regulation, Part XII, Section 3.00, Section 19 (the 1989 Water Regulation"), which provides that: "The Board of Health may at its discretion require single family, multi-family, or commercial structures located within 300 feet of a municipal water line, to connect to municipal water." The use of a distance limitation in the 1989 Water Regulation demonstrates that the 1989 Board intended that costs be considered in deciding whether to require connection to public water supply lines. Furthermore, .nothing in the regulation requires "structures" which are less than 300 feet to connect to public water and the decision as to whether to require connection of a structure within 300 feet was left completely to the discretion of the Board. Here, the proposed single family home is located approximately 600 feet from Scudder Lane.to This distance is more than twice the distance specified in the 1989 Water Regulation. Thus, it can be surmised that the 1989 Board imposed the water connection requirement in the 1989 BOH Letter because it believed: (i) water was available at Scudder Lane; and (ii) connection to such water could be made at a reasonable cost. As explained above, neither of these circumstances exist. The Water Department will not allow the Applicant to connect to the main at Scudder Lane unless it pays for the upgrade of the line from Route 6A and reconnection of existing users. The costs of such connection are unreasonable not only to connect to Route 6A, but also to run a pipe to Scudder Lane. Under the circumstances, the Board should allow that the Property be developed without a public water supply. 3. Alleged Abutters' Failure to Demonstrate an Adverse Impact on Public Health or the Environment Mr. Sabatt has made numerous comments of behalf of alleged abutters in opposition to the application before the Board. Although the alleged abutters have hired Horsley and Witten and Mr:`Sabatt in their attempts to block the permit and they have submitted letters in opposition, the submissions of the alleged abutters fail to state that the issuance of a septic permit will have any impact adverse impact on public health or the environment. In fact, the record is completely devoid of any evidence of adverse 15 The Applicant has had numerous discussions with the Water Department's superintendent and attorney in her attempts to obtain an additional letter regarding this matter for the Board's review. Additionally, the Applicant has concerns regarding the propriety of the Water District request that she provide-funds which will primarily benefit the private property owners on Scudder Lane. e The Property is located approximately 400 feet from the water supply line. 8 impact. Essentially, the abutters' argument boils down to an opposition to any development of the Property. Put another way, the alleged abutters simply desire that the Applicant be forced to maintain open space in their neighborhood for their benefit. If the alleged abutters desire the Property to remain open space, the alleged abutters should purchase the Property rather than attempt to use this Board's powers to prohibit the Applicant's development.., _. III. Conclusion The Applicant has demonstrated that it should be granted relief from the 1973 Setback Regulation and the 1992 Leaching Facility Setback Regulation. Additionally, if the Board decides to consider water supply issues, the Board should waive any requirement to connect the Property to public water. I will be available at the January 18, 2000, meeting to answer any questions. Very truly yours, Paul Revere, III 9 �b KILROY & WARREN, P.C. ATTORNEYS AT LAW 67 SCHOOL STREET BERNARD T. KILROY P.O. BOX 960 BANKRUPTCY COUNSEL LAURIE A. WARREN HYANNIS, MASSACHUSETTS 02601-0960 WILLIAM G. BILLINGHAM TELEPHONE (508) 771-6900 TELEFAX (508) 775-7526 January 4 , 2000 Board of Water Commissioners Barnstable Fire District Hyannis Road Barnstable, MA 02630 IN RE : PROPERTY ON CALVES PASTURE LANE BARNSTABLE MA 02630 BARNSTABLE ASSESSORS MAP 259/1-2 Dear Commissioners : You will recall that we appeared before you in your November, 1999 Board Meeting to discuss the possibility of tieing the above property into the main now located in Scudder Lane as required by the Board of Health. You indicated to us that because of the current condition of the water line, no additional connections would be allowed at this time . You further indicated that it would be the District' s obligation to upgrade the water line in Scudder Lane and that the owners of the property on Calves Pasture Lane as private citizens would not have any right to upgrade the line in Scudder Lane . As you know, we are attempting to obtain a septic system permit from the Board of Health which was previously indicated that the Board would require a hook-up to the town water before it would issue a septic system permit . Apparently, the Board was under the impression as was the Planning Board, that town water was available by hook-up to the line in Scudder Lane . The Barnstable Board of Health has requested that we obtain a written statement from you to the effect that the District will not allow the property to tie into the Scudder Lane main. Board of Water Commissioners Barnstable Fire District Page 2 January 4 , 2000 If the above statements are accu--ate, I. would appreciate it if you would sign a copy of this letter indicating that this letter accurately represents the current position of the District so that we may file the letter with the Board of Health. Very truly yours, CHRISTOPHER P. KUHN and LAURIE A. LAR By: gernard 'T. kilroy, their Attorney BTK: jz Enclosures k:\realest\kuhn\commissioner EXHIBIT ONE V Test holes performed over previous years in various areas of the lot have indicated the presence of silt loam and sandy loam soils to depths of as much as 14.5'. Due to the impervious nature of the soils present and Zhe fact that there are no man-made drainage structures on Lot 39,the surface waters originating from the swamp to the northeast are not able to percolate downward on Lot 39 (i.e. it is perched water) and,therefore, the surface waters are not hydraulically connected to groundwater on the lot. The discharge point for these surface waters,is the salt marsh to the south of Lot 38 and Lot 39. It is our belief that the subsurface discharge will travel in excess of 100 feet before the possibility of contact with wetland can occur;therefore, the septic system is effectively greater than 100' to the wetlands. The closest point of the primary leaching facility to this perched wetland community is 75'. The base of the primary leaching facility is 15' above the true groundwater level (here, elevation 6Y). The reserve area is shown and the setback variances formally requested as required; however, in reality, should the primary system fail, it is to be replaced in its entirety with all contaminated soils removed for 5' around the facility. There is no other location on the property where a sewerage disposal system could be located that has a greater setback from adjacent wetlands or the abutting/proposed well. Town water is not available to this lot, as per Town of Barnstable Water Department. We meet the Title 5 well/septic setback requirement. In sum, enforcement of full compliance with local setback requirements would be "manifestly unjust" considering that the system is at least as environmentally protective as a system which meets the setback requirements. The DeFeo and Waite study performed as a precursor to th Title 5 `95 regulation changes indicated that the critical "treatment" area for the effluent is at the immediate base of the leaching facility- and that requiring 5' groundwater separation is more effective than maintaining the required [Title 5] setback to wetland areas. I look forward to meeting with the Board to discuss the proposed plan. Very truly yours, A( Arne H. Ojala,PE, PLS Down Cape Engineering, Inc. tel.(508)362-4541 939 main street rt 6a fax(508)362-9880 yarmouth port mass 02675 down cone engineering civil engineers& land surveyors structural design Arne H.Ojala P.E`., P.L.S. Timothy H.Covell, P.L.S. land court December 28, 1999 Daniel A.Ojala,PL.s. surveys A. Barnstable Board of Health site planning 367 Main Street Hyannis,MA 02601 sewage system Re: Lot 39 Calves Pasture Lane, Barnstable Village designs Dear Board Members: inspections On behalf of our client, we are hereby requesting variances under Town of Barnstable Health Regulation Part VIH, Section 1.00 and Part XU, Section III(12). Specifically, permits the variances are as follows: Part VIII, Section 1.00: 1. Proposed primary leaching facility to be 75' from the edge of a bordering vegetated wetland (25' variance requested); septic tank to be 83' to the edge of wetland (17' variance). 2. Proposed reserve leaching facility to be 51' from the edge of a bordering vegetated wetland (49' variance requested) Part XII, Section III(12): 3. Proposed primary leaching facility to be 100' to existing well (50' variance requested); proposed reserve to be 120' to existing well (30' variance) 4. Proposed well to be 106' to proposed primary leaching facility and 101' to reserve ''44 and 49 variances respectively) ( P Y) The resource area delineations shown on the plan have been confirmed by the Conservation Commission under filing SE3-3494. These resource areas include bordering vegetated wetland, intermittent stream, salt marsh, coastal bank, land under waterways, and land subject to coastal storm flowage. According to a report submitted by ENSR to the Conservation Commission as part of the resource area delineation filing, surface waters originating from'a swamp to the northeast of Lot 38 flow intermittently via three culverts under Calves Pasture Lane during storm events. The water is discharged onto Lot 39 and the abutting Lot 38. r• EXHIBIT TWO r No.__ Fee THE COMMONWEALTH OF MASSACHUSETTS PUBLIC HEALTH DIVISION - TOWN OF BARNSTABLE, MASSACHUSEtTS TU g. ZIppIication for Migogar *pgtem Construction ermitn Application is hereby made for a Permit to Construct(k)or Repair( )an On-site Sewage Disposal S�stem at: TCl�rpr�,R,+: Location Address or Lot No. 60T `5 C( Owner's Name,Address and Tel.No. G W E'� Pi4 Sj't 2E_. t—/4 Installer's Name,Address,and Tel.No. Designer's Name,Address and Tel.No. Type of Building: Dwelling No. of Bedrooms Garbage Grinder( ) Other Type of Building No. of Persons Showers ( ) Cafeteria( ) Other Fixtures Design Flow � gallons per day. Calculated daily flow gallons. Plan Date 1 2- — �—� "I Number of sheets I Revision Date Title �. Description of Soil Nature of Repairs or Alterations(Answer when applicable) i Date last inspected: Agreement: The undersigned agrees to ensure the construction and maintenance of the afore described on-site sewage disposal system in accordance with the provisions of Title 5 of the Environmental Code and not to place the system in operation until a Certifi- cate of Compliance has been issued by this Board of Health. Signed Date Application Approved by Application Disapproved for the following reasons Permit No. Date Issued THE COMMONWEALTH OF MASSACHUSETTS ' y PUBLIC HEALTH DIVISION - BARNSTABLE, MASSACHUSETTS Certificate of Compliance THIS IS TO CERTIFY,that the'On-site Sewage Disposal System installed( )or repaired/replaced ( )on ' by for as has been constructed in accordance with the provisions of Title 5 and the for Disposal System Construction Permit No. dated Use of this system is conditioned on compliance with the provisions set forth below: No., Fee t THE COMMONWEALTH OF MASSACHUSETTS PUBLIC HEALTH DIVISION - BARNSTABLE, MASSACHUSETTS wigpo!al *r6tem Construction Permit Permission is hereby granted to to construct( )repair( )an On-site Sewage System located at and as described in the above Application for Disposal System Construction Permit.The applicant recognizes his/her duty to comply with Title 5 and the following local provisions or special conditions. All construction must be completed within two years of the date below. bate: Approved by l�,C�.'^f+.c.'� ��--..r A.:. tt� kaY fir.♦ �l fSu,�.4 x 1-2 939 main street rt 6a a yarmouth port mass 02675 ha ,` down cope T. engineering 4; civil engineers& land surveyors structural design7. land court December 28, 1999 � e ,�✓, \ r t a surveys Barnstable Board of Health site planning 367 Main Street Hyannis, MA 02601 77'1, z sewage system Re: Lot 39 Calves Pasture Lane, Barnstable Village designs Dear Board Members: inspections On behalf of our client, we are hereby requesting variances under Town of Barnstable Health Regulation Part VHI, Section 1.00 and Part XII, Section III(]2). Specifically, permits the variances are as follows: Part VIII, Section 1.00: 1. Proposed primary leaching facility to be 75' from the edge of a bordering vegetated wetland (25' variance requested), septic tank to be 83' to the edge of wetland (17' variance) 2. Proposed reserve leaching facility to be 51' from the edge of a bordering vegetated wetland (49' variance requested) Part XII, Section III(12): 3. Proposed primary leaching facility to be 100' to existing well (50' variance requested); proposed reserve to be 120' to existing well (30' variance) 4. Proposed well to be 106' to proposed primary leaching facility and 101' to reserve (44' and 49' variances respectively) The resource area delineations shown on the plan have been confirmed by the Conservation Commission under filing SE3-3494. These resource areas include bordering vegetated wetland, intermittent stream, salt marsh, coastal bank, land under waterways, and land subject to coastal storm flowage. According to a report submitted by ENSR to the Conservation Commission as part of the resource area delineation tiling, surface waters originating from a swamp to the northeast of Lot 38 flow intermittently via three culverts under Calves Pasture Lane during storm events. The water is discharged onto Lot 39 and the abutting Lot 38. Test holes performed over previous years in various areas of the lot have indicated the presence of silt loam and sandy loam soils to depths of as much as 14.5'. Due to the impervious nature of the soils present and the fact that there are no man-made drainage structures on Lot 39,the surface waters originating from the swamp to the northeast are not able to percolate downward on Lot 39 (i.e. it is perched water) and, therefore, the surface waters are not hydraulically connected to groundwater on the lot. The discharge point for these surface waters is the salt marsh to the south of Lot 38 and Lot 39. It is our belief that the subsurface discharge will travel in excess of 100 feet before. the possibility of contact with wetland can occur;therefore, the septic system is effectively greater than 100' to the wetlands. The closest point of the primary leaching facility to this perched wetland community is 75'. The base of the primary leaching facility is 15' above the true groundwater level (here, elevation 6.3'). The reserve area is shown and the setback variances formally requested as required; however, in reality, should the primary system fail, it is to be replaced in its entirety with all contaminated soils removed for 5' around the facility. There is no other location on the property where a sewerage disposal system could be located that has a greater setback from adjacent wetlands or the abutting/proposed well. Town water is not available to this lot, as per Town of Barnstable Water Department. We meet the Title 5 well/septic setback requirement. In sum, enforcement of full compliance with local setback requirements would be "manifestly unjust" considering that the system is at least as environmentally protective as a system which meets the setback requirements. The DeFeo and Waite study performed as a precursor to th Title 5 `95 regulation changes indicated that the critical treatment area for the effluent is at the immediate base of the leaching facility - and that requiring 5' groundwater separation is more effective than maintaining the required [Title 5] setback to wetland areas. I look forward to meeting with the Board to discuss the proposed plan. Very truly yours, Arne H. Ojala, PE, PLS Down Cape Engineering, Inc. ( i q ! e. 6.77 UPLAND - :i� -K MARSH AD Ism 1 c�wt.nP 1 NL N 19 AC 1 4.01.9 UPLAND 1.lSY3A -S MARSH 4 t .. _ !I 15.40 AC-5 TOTA.. — � ® tee t — •e 1 y0 Jt f L 42-5 MARS oplL3 1:SGS Ar lu—_ dZa V 1.39 AC TOTAL Q ttt i e / -` eJ�Y Le VIM• 1Y __ - ✓1. 1,'/3w5 HARSH la t L �,L + I!s I.CDK ¢,It AC-S TOTAL. ,I J. 1.44'� - , ;• .It "�.—._P1iEP N�: DIRECTX* of E •1 a v� BARNSTABLE BOARD OF AS9E990R (1n•yS•'T l `1 ti••o AVIS AIRMAP INC. J 1 8 Cep IWSACHUSETTS CDNNECTIDIT 4-i; a< CHRONOLOGY OF EVENTS Lot 38 Calves Pasture Lane,Barnstabl November 30, 1999— Health Division received a Variance Request Form from Laurie Warren requesting three variances along with a letter dated November 27, 1999 from Arne Ojala, P.E. December 10, 1999-The septic system plans were revised December 14, 1999-Public hearing held, certified mail green cards for abutter notification received from applicant. After much discussion, the hearing was continued to 1/18/2000 after a site visit is made. Also, the Board required revised floor plans. On or about January 4, 2000-Thomas McKean telephoned Arne Ojala requesting permission to schedule some of the variance requests which were submitted from his Office in mid-February due to the extremely long agendas, consisting of twenty-nine (29) hearings scheduled on January 18th and nineteen (19)hearings scheduled on February 3rd. Mr. Ojala answered that it should be okay to schedule some of the variance requests in mid-February and that he will have someone from his Office FAX Mr. McKean a list of which variance requests could be postponed. January 5, 2000- Sarah Ojala FAXED a letter to Thomas McKean indicating that her Office represents eleven variance applications which include lots 38 and 39 Calves Pasture Lane. The letter indicated that Lot 38 is one of the "preferred filings to be heard on January 18th" January 7, 1999- A site visit was conducted by the Board of Health members January 18, 1999-Public hearing held. The conclusion was to continue the hearing until the February 3, 2000 Board of Health meeting date. Board members requested Mr. McKean to ask Town attorney Robert Smith legal questions concerning the affect of earlier decisions from a previous Board of Health. January 19, 2000- Thomas McKean submitted written questions to Robert Smith,Town Attorney. January 27, 2000- Amended Variance Request Form received at the Health Division Office along with revised plans reflecting the re-positioning of the proposed well to be greater than 100 feet to the septic tank and pump chamber, showing distances to abutting wells , and showing old test hole results and locations. February 2, 2000-Letter received from Paul Revere by FAX regarding ownership of the property. I calvchrori.doc February 3, 2000-The Board voted to deny the variances. The applicants were present at the meeting. March 24, 2000 -Decision letter mailed to applicant. April 24,2000- An eight page letter from Paul Revere dated 4/24/2000 was received indicating that Mr. Revere believed that the Board of Health failed to issue a written decision to the applicant disapproving the permit applications for Lots 38 and 39 Calves Pasture Lane within 45 days. April 25, 2000-Thomas McKean responded to Mr. Revere's letter above (dated 4/24/2000) stating that the Board of Health stands by its previously issued decision dated February 3, 2000. Lot 39 Calves Pasture Lane, Barnstable December 30, 1999- Health Division Office received a variance request form for two variances along with a two page letter from Arne Ojala dated December 28th and an application for a disposal works construction permit. On or about January 4, 2000- Thomas McKean telephoned Arne Ojala requesting permission to schedule some of the variance requests which were submitted from his Office in mid-February due to the extremely long agendas, consisting of twenty-nine (29) hearings scheduled on January 18th and nineteen (19) hearings scheduled on February 3rd. Mr. Ojala answered that it should be okay to schedule some of the variance requests in mid-February and that he will have someone from his Office FAX Mr. McKean a list of which variance requests could be postponed. January 5, 2000- Sarah Ojala FAXED a letter to Thomas McKean indicating that her Office represents eleven variance applications, including lots 38 and 39 Claves Pasture Lane. The letter indicated that the variance application for Lot 39 was not one of the "preferred filings" to be heard on January 18th February 14, 2000, 10:30 a.m.- Board of Health meeting held . However, the applicant failed to notify the abutters. Therefore, a hearing was not held regarding this application. February 16, 2000—Sarah Ojala mailed letters to the abutters notifying them that the Board of Health hearing will be held on March 13, 2000. I calvchron.doc February 22, 2000- Revised engineered plans dated 2/17/200 submitted to the Board of Health, regarding the proposed well. February 28, 2000—Date of letter from Paul Revere discussing the merits of the application. March 13,2000-Board of Health hearing held and the Board voted to deny the variances. The applicants were present at the meeting to hear this decision. March 22, 2000- Written variance decision issued by the Board of Health. April 24, 2000- An eight page letter from Paul Revere dated 4/24/2000 was received indicating that Mr. Revere believed that the Board of Health failed to issue a written decision to the applicant disapproving the permit applications for both Lots 38 and 39 Calves Pasture Lane within 45 days. April 25, 2000-Thomas McKean responded to Mr. Revere's letter above (dated 4/24/2000) stating that the Board of Health stands by its previously issued decision regarding Lot 39 dated March 13, 2000. J:calvchron.doc e August 24, 1999 Ms. Susan G. Rask,R.S. Horsley&Witten,Inc: Chairman, Barnstable Board of Health 376:.Main.Street Sextant Hill Hyannis, MA 02601 90 Raute 6A Sandwich,MA 02,563 RE: Calves.Pasture Lane, Assessors Map 259,Parcels 38 &39 (508)833-6600. Dear Madame Chairman, Fax(508)833-3150 I am writing to you-to present an issue pertaining to,the proposed development of the subject parcels of land on Calves Pasture Lane. We are reviewing this project on behalf of the abutting property,owners. Among the many issues of concern with this project, is.the location of several wetlands and watercourses on, and adjacent to, the.subject parcels. In order to understand the approach the Board will-take with the applicant over a prospective septic system design,we.wish to confirm the Board's.interpretation"of the Board's Onsite Sewage Disposal Regulations. With regard to these Town regulations, Part VIII, Section 10":00, subsection 1,13 (attached), refers to the requirement that "No person,' company, corporation, entity,A.rust or firm shall install an onsite sewage isposal Watercourse, as defined in 310 CMR 15.00: THE STATE ENVIRONMENTAL CODE, TITLE 5: MINIMUM REQUIREMENTS FOR THE SUBSURFACE DISPOSAL OF SANITARY SEWAGE. Section 15.01 Definitions." . After a recent site visit, it was.found that several wetland areas on the site connect to other watercourse/wetlands areas to the,north and east of the parcels via culverts under Calves Pasture Lane. We feel that based on the above and the Town definition of Watercourses, that the wetlands shown on the attached plan dated April 5,1999, prepared by.Down Cape Engineering, Inc., are indeed watercourses: Dr.,Jo Ann Muramoto of our office conducted'a site visit (memo attached) to confirm this position. Dr."1VMuramoto has extensive experience"in this area of wetland and watercourse definition through Boston&Sandwich,MA Ms. Susan G. Rask August 24, 1999 i Page 2 i her:four.years tenure as the Falmouth Conservation Agent.until recently Joining Horsley and Witten, Inc. We respectfully request you review the attached documentation and E provide us a:written response confirming our position in this matter, Thank you for your,assistance with this,project, and please call if you have any questions: Sincerely, E I 4 HORSLEY&WITTEN, INC. Edward L. Pesce, P.E. i Senior Environmental Engineer Enclosures f cc: Mr.Charles.Sabatt i I i 1 Horsley&Witten,Inc: PART VIII: ONSITE SEWAGE DISPOSAL REGULATIONS ' SECTION 10.00 ONSITE SEWAGE DISPOSAL CONSTRUCTION z ADOPTED 6/11/91, BECAME EFFECTIVE 6/11/91, REVISED 2/11/92 f OF TN E TOE y BOARD OF HEALTH i639. 367 MAIN STREET HYANNIS, MASS.02601 i f ON-SITE SEWAGE DISPOSAL CONSTRUCTION The Board of Health, Town of Barnstable, Massachusetts, in accordance with, and under the authority granted by Section 31, of Chapter 111, of the General laws of the Commonwealth of Massachusetts, hereby adopted the following rules and regulations after public hearings of the Board of Health were held on May 14, 1991, June 11, 1991, July 23, 1991 , January 14, 1992, January 28, 1992 , and February 11, 1992: Purpose: On-site sewage disposal systems designed to meet 310 CMR, 15.00: The State Environmental Code Title 5, Minimum Requirements for the Subsurface Disposal of Sanitary Sewage have not proven to be adequate protection from viruses, pathogens, and other contaminants of groundwater and surface water particularly in areas where there is a lack of filtration due to the existence of sandy materials tested to have fast percolation rates. Scientists have observed virus entrainment in groundwater to distances of greater than 200 feet from where they were introduced to the subsurface through a conventional onsite sewage disposal system. In saturated or groundwater flow, viruses can travel unattenuated in medium-to-coarse sands. Human consumption of viruses, pathogens, and other contaminants which enter shellfish resource areas, swimming areas, and/or within zones of contribution to public water supply wells can place the public at risk to disease. SECTION 1.1 General Requirements. 1.11 Application for Disposal Works Construction Permit: An application for a disposal works construction permit shall be submitted to the Board of Health and must be issued subsequent to this application shall be invalidated if conditions different than those set forth in the application are found prior to, during actual construction, or within a reasonable time after construction of the onsite sewage disposal system. 1.12 Plan of Onsite Sewage Disposal System: The submitted plan must show as a minimum: the lot to be served, location and dimensions of the system (including reserve area), design calculations, existing and proposed contours, location and log of deep observation holes, location and results of percolation tests, location of any streams, surface and subsurface drains and wetlands withinA3QQ feet of the sewage disposal system, known sources of water supply within 00 feet of a sewage disposal system, location of any proposed well to serve the lot, location of water lines on the property, maximum ground water elevation in the area of the sewage disposal system, and a profile of the system. The plan must be prepared by a Professional Engineer or other professional authorized by law to prepare such plans. 1.13 No person, company, corporation, entity, trust or firm shall install an onsite sewage disposal system leaching facility within one-hundred 100 fee of a Watercourse as defined in 310 CMR 15.00: THE STATE ENVIRONMENTAL `CODE, TITLE 5:MINIMUM REQUIREMENTS FOR THE SUBSURFACE DISPOSAL OF SANITARY SEWAGE. Section 15.01 Definitions. ":; ;;.•. 310 CMR: DEPARTMENT OF ENVIRONMENTAL QUALITY ENGINEERING 15.01: continued Sanitary Sewa e. Any water-carried putrescible waste resulting from e discharge of water closets, laundry tubs, washing machines, sinks, showers, dishwashers, or any other source. Sani!Aa Sewer. A pipe which carries sewage without storm, surface, or ground waters. Scum. A mass of solids floating at the surface of a septic tank. Se to e. That material removed from any part of an individual sewage disposil system. j Septic Tank: A watertight receptacle which receives the discharge of sewage from a building sewer, and is designed and constructed so as to permit the retention of scum and sludge, digestion of the organic matter, and discharge of the liquid portion to a leaching facility. Sewage. Sewage means sanitary sewage. Sewac le Dfg osal Area. The area used for subsurface dispersion of the i liquig portion o sewage. Subsurface Drain. Any underground conduit used for the conveyance of water�inciun:ng curtain drain. Watercourse. Any natural or man-made stream, pond, lake, wetland, coastal we and, swamp or other body of water and shall include wet meadows,. marshes, . swamps, bogs and areas where ground water, flowing or standing surface water or ice provide a significant part of the supporting substrate for a plant community for at least five months _ of the year. 4 Swamp, shall mean areas where ground water is at or near the surface of the. ground for a significant part of the growing season or where runoff water from surface drainage frequently collects above the soil surface. Coastal Wetland, shall mean any bank, marsh, swamp, flat or other lowland subject to tidal action. 15.02: General Requirementsl (1) Dis sal Works Construction Permit. No individual sewage dis- ,i posal system or other means o sewage disposal shall be located, con- structed, altered, repaired, or installed where a common sanitary sewer is accessible adjoining the property and where permission to enter such sewer can be obtained from the authority having juris- diction over it (310 CMR 15.03(11)) or if a common sanitary sewer is not accessible until a permit for its location, construction, alteration, repair, or installation shall have been issued by the Board of Health. A permit shall not be issued for any system of individual sewage disposal when the total volume of the sewage to be disposed of on any r lot is in excess of 15,000 gallow per day, or where sewage treatment facilities are proposed on the lot to be served, until the plans for such system have been approved by the Massachusetts Department of Environmental Quality Engineering in accordance with G. L. c. 111, S. 17. Where sewage flows on a lot exceed 15,000 gallons per. day, the Department of Environmental Quality Engineering may require additional treatment of the waste prior to its disposal to the ground. 1 The applicant should be aware of his obligation to comply with the requirements established by the Division of Water Pollution Control pursuant to G. 1.. c. 21 s. 43, and the Wetlands Protection Act, G. L. c. 131, s. 40. � MEMORANDUM Horsley&Witten;Inc. TO: Mr.-Edward.Pesce Sextant Hill FROM:. Dr.Jo Ann Muramoto VVII 90 Route 6A Sandwich;MA 02563 DATE: Thursday, August 12, 1999 (508)833-6600 RE: Status of Wetland and..Watercourse located.at Calves Pasture Lane Fax(508)B33-3150 I visited the wetlands at Lots 38 and 39 Calves Pasture.Lane,Barnstable, MA, on July 27, 1999. I can verify that the wetlands are-delineated correctly as depicted on the Site Plan prepared by Down Cape. Engineering. Inc., as revised date on April 5,1999. The Conservation Commission has apparently approved the Resource Area delineation according to this,plan of reference. The Resource Areas present include a:Bordering Vegetated.Wetland, a Coastal Bank, Land Subject to Coastal Storm Flowage.(Flood Zone A3 el. 11% an Area of Critical Environmental Concern or ACEC. Additional areas under wetland jurisdiction include the 100 foot jurisdictional buffer zone to the Bordering Vegetated Wetland and top of Coastal Bank..The B Vegetated Wetland was dominated,by wetland shrubs and.trees and is probably watered by a combination of high groundwater and surface water runoff that enters the area from•the three culverts shown on.the plan. The wetland.type represented by this Bordering Vegetated Wetland is a swamp, according to the definition-in the Wetland Protection Act (M,G.L.s.131, S.40) and Wetland Protection Regulations (310 CMR 10.00). There were slight channels that have been eroded by flowing water originating.from the culverts. The regulations of the Barnstable Board of Health, concerning siting of a sewage disposal system, state that "No person, company, corporation, entity; trust or firm shall install an onsite sewage disposal.system leadiing facility,wthin on re (100) feet of a Watercourse, as defined in 310 CMR 15:00: THE STATE ENVIRONMENTAL CODE, TITLE5: MINIMUM-RE.QUIREMENTS FOR THE SUBSURFACE DISPOSAL OF SANITARY.SEWAGE. Section 15.01 Definitions." • Page 1 of 2. Boston&Sandwich,MA (Section 1.13, Board of Health). These regulations were.adopted on February 11, 1992. I 310 C.MR"15.01 Definitions define watercourse as: "Anynatural or man- made stream, pond; lake,wetland,coastal wetland; swamp,or other body of water and shall include wet meadows, marshes, swamps, bogs ` and areas where ground water, flowing or standing surface water or ice provide a significant part of the substrate for a plant community for at least five months of the year." According to this definition of"watercourse", the Bordering Vegetated Wetland shown on the plan revised 4%5/99 is a.watercourse because it is a wetland,(a swamp).which contains a wetland plant community for at least five months of the year (the growing.season), and is supported by groundwater and flowing surface water: Conclusion: - On the basis of,the definition of watercourse, which is part of the Board of Health's regulations, there is.a significant area of watercourse on Lots 38.and 39 Calves Pasture Lane,Barnstable, MA. ,The boundary of the Bordering Vegetated Wetland is the boundary of the watercourse. The Barnstable Conservation Commission has confirmed via an Order of Resource Area Delineation, that the wetland boundaries are correct.as shown of the Site Plan dated.April 5 1999. Pa e2of2 Horsley.&Witten;Inc. g �� Nov-25--98 09':5'0 BARNSTABLE, HEALTH DEPT 5087906304 P .01 IN A > 9 i gyTMEt 4DATB: tip \anA,srK L ! 177 0 REC 1999 BY % Town of Barnstable r°H�TMB�nNC^�� v SCHED Board of Health 4 ,� ,67 N1z.in Street, Hyannis llv A 02601 ` Office: 5CS•790� Sussn G.RaA.R:S F.4X: iDS•742-ti503 Sunrcr Kaut'man.M.S F Raipt:A.A'urphk,M.D. VARIANCE REQUEST FORM LOCATION' Q P ape.-z �Address._— UvT 3,5 C—A 17 C— Assessor's Ni2p and Parcel Number: ZSq 1—Z Size of Lot: Wetlands Within 330 Ft. Yes X Subdivision`Name: No �+ BLsiness Name APjjCANI CONTACT PERSON 'dame: ys,�kR.t� If`fA�-►2-�� Name:_ Address: Cv"t_��"��o S\ t-4ks Address. — P-one: .1_l, Co�0 ea Phone: FAX: FAX I ARL-yN L !?Nett£ ( L..'T rU` F.::; f.4SOti FOR VARIANCE;itita, u7�ch if more;ps:t: de..i u �li-',,�,�:'�[,S:':'t<.+f3eiulst'�lut:?• il�f. i �'7G!7-i�t'!'`.._.' �r'i.-�-tl1f:'•�Gll�tt;i'ereG?Ii:St[�cr�tcGl7niti ------ _-� .. r• —_ Four(+)copies of plan subir.itted Iinc'ud;n�.`..eD-,'c system 7ians and;4or restaurant floor plans) die P L c l^ n, : v F I � I Applicant::r.d:fs.anti..:ha:f);z aht:n..r.: ,..u..t,;: Sufi d by ceftiti.s mai!at east ten days pnor t{�mtecttn_ k date a:ap:,'.icant's ex„ruse(for Tat,Y an.-!'or 10c31 scwaze reguiat:ur variances only) Fuli rn-,ru >uhmiicd;for crease-a-, va-iances only) ' re;uest s pp',ic-;ujor. P.+':OtleCiCd l,r err Car laryu;rs scif_t!ar. n>.$li'e l'eD>at 8^:L a!b.1.:ISiT.e;'<^.Gae6rf!'•T..:•t,9'YS;C:` I d•rvng•:wuxetn'.rws4lur,er-sae fmn,rn:::;.rK gar.:_maces tr.naw C1l:<s4—sc tothe>i+.dJ:a,,rrcp—dj) Variance request sabr,.tfred s::ea<t d::'s pTiarto mce_;a':�date I RIAN" APPR7VET) _ _ Sasan i.Rask,R.S.,Chain an NOT APPRU"ti ED Sommer Kaufman,M.S.P.EI, REASON FCR DT.SAF?R0%!AL.------_-•'-- _---_ Raiph A.Murph.v,\M.D. F v fTHET TOWN OF BARNSTABLE OFFICE OF = DASi3TJ8fi i 6 L BOAR® OF HEALTH 'O?lr0 MAX367 MAIN STREET y HYANNIS, MASS. 02601 June 7, 1989 Mrs. Susan H. Rohrbach Re: Definitive subdivision plan of land in Barnstable Chairperson, Planning Board Petitioner: Harry and Susan R. Jilson Barnstable Town Hall Date: January 31, 1989 - Revised April 31, 1989 Hyannis, Ma 02601 Revised may 22, 1989 Engineer: Down Cape Engineering, Inca Assessor's map 259, Parcel 1 Dear Mrs. Rohrbach: The Board of Health has reviewed this definitive subdivision plan in Barnstable and makes the following recommendations: The developer must provide public water to each and every lot in this subdivision. Public water lines and all connections must• meet specifications and/or rules and regulations of the local water department. Each septic system shall be located within the prescribed boundaries of each individual lot. ; The developer shall have recorded on the deed that variances from Title 5, Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, or the Town of Barnstable Health Regulations whichever is more stringent, will not be granted on any lot in this subdivision, A percolation test must be made on the lot at leaching site, before a Disposal Works Construction Permit will be issued. Maximum ground water elevations must be determined by using data available from the United States Geological Survey - Probable High Ground Water Levels on Cape Cod, Mass. Each proposed septic system must conform strictly to 310 CMR 15.00, the State Environmental Code, Title 5, and Town of Barnstable Rules and Regulations. All tree stumps, brush and building debris removed when clearing lots or roads must be disposed of at a licensed solid waste disposal facility. Chipping brush and tree stumps is an acceptable alternative. Burial on site is prohibited. The applicant must receive an Order of Conditions from the Conservation Commission, if applicable. It is recommended that each sewage disposal leaching facility be located most distant from wetlands to reduce eutrophication caused by phosphorous and other nutrients. The United States Environmental Protection Agency's National Eutrophication Survey states' that'0.25 '1bs. per"year of total phosphorous enters wetlands from every person served by onsite septic systems within 300 feet wetlands (US EPA 1983). Very truly yours, Grover C. M. Farrish, M.D. Chairman Ann Jane E66baugh �z�Tt� TiK J es H. Crocker, Sr. BOARD OF HEALTH TOWN OF BARNSTABLE TM/bs cc: Harry and Susan Jilson Down Cape Engineering, Inc. Town Clerk Health Department Conservation Commission Barnstable Fire and Water District r y�Py�F7HET���� TOWN OF BARNSTABLE Y OFFICE OF • BAH E, MABEL : BOARD OF HEALTH y ABs. 0 ooAT�raAIAY�►�4 367 MAIN STREET HYANNIS, MASS. 02601 June,.7, 1989 . Mrs. Susan H. Rohrbach Re: Definitive subdivision plan of landin Barnstable Chairperson, Planning Board Petitioner: Harry and Susan R. Jilson Barnstable Town Hall Date: January 31, 1989 - Revised April 31, 1989 Hyannis, Ma 02601 Revised may 22, 1989 Engineer: Down Cape Engineering, Inc. Assessor's map 259, Parcel 1 Dear Mrs. Rohrbach: The Board of Health has reviewed this definitive subdivision plan in Barnstable and makes the following recommendations: The developer must provide public water to each and every lot in this subdivision. Public water lines and all connections must, meet specifications and/or rules and regulations of the local water department. Each septic system shall be located within the prescribed boundaries of each individual lot. The developer shall have recorded on the deed that variances from Title 5, Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, or'the Town of Barnstable Health Regulations whichever is more stringent, will not be granted on any lot in this subdivision, A percolation test must be made on the lot at leaching site, before a Disposal Works Construction Permit will be issued. Maximum ground water elevations must be determined by using data available from the United States Geological Survey - Probable High Ground Water Levels on Cape Cod, Mass. Each proposed septic system must conform strictly to 310 CMR 15.00, the State Environmental Code, Title 5, and Town of Barnstable Rules and Regulations. All tree stumps, brush and building debris removed when clearing lots or roads must be disposed of at a licensed solid waste disposal facility. Chipping brush and tree stumps is an acceptable alternative. Burial on site is prohibited. The applicant must receive an Order of Conditions from the Conservation Commission, if applicable. v It is recommended that each sewage disposal leaching facility be located most distant from wetlands to reduce eutrophication caused by phosphorous and other nutrients. The United States Environmental Protection Agency's National Eutrophication Survey states that 0.25 lbs. per year of total phosphorous enters vvsetlands from every person served by onsite septic systems within 300 feet wetlands (US.-EPA 1983). _ Very truly yours, Grover C. M. Farrish, M.D. Chairman Ann Jane Ehhbaugh GM C C7"3r,tmz 1.4 TiK J&Aies H. Crocker, Sr. BOARD OF HEALTH TOWN OF BARNSTABLE TM/bs cc: Harry and Susan Jilson Down Cape Engineering, Inc. Town Clerk Health Department Conservation Commission Barnstable Fire and Water District v OtHET TOWN OF BARNSTABLE � OFFICE OF = 3esiSTAML MABd BOARD OF HEALTH 9�'� 367 MAIN STREET HYANNIS, MASS. 02601 June 7, 1989 Mrs. Susan H. Rohrbach Re: Definitive subdivision plan of land in Barnstable Chairperson, Planning Board Petitioner: Harry and Susan R. Jilson Barnstable Town Hall Date: January 31, 1989 - Revised April 31, 1989 Hyannis, Ma 02601 Revised may 22, 1989 Engineer: Down Cape Engineering, Inc.- Assessor's map 259, Parcel 1 Dear Mrs. Rohrbach: The Board of Health has reviewed this definitive subdivision plan in Barnstable and makes the following recommendations: The developer must provide public water to each and every lot in this subdivision. Public water lines and all connections must• meet specifications and/or rules and regulations of the local water department. Each septic system shall be located within the prescribed boundaries of each individual lot. The developer shall have recorded on the deed that variances from Title 5, Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, or the Town of Barnstable Health Regulations whichever is more stringent, will not be granted on any lot in this subdivision, A percolation test must be made on the lot at leaching site, before a Disposal Works Construction Permit will be issued. Maximum, ground water elevations must be determined by using data available from the United States Geological Survey - Probable High Ground Water Levels on Cape Cod, Mass. Each proposed septic system must conform strictly to 310 CMR 15.00, the State Environmental Code, Title 5, and Town of Barnstable Rules and Regulations. All tree stumps, brush and building debris removed when clearing lots or roads must be disposed of at a licensed solid waste disposal facility. Chipping brush and tree stumps is an acceptable alternative. Burial on site is prohibited. The applicant must receive an Order of Conditions from the Conservation Commission, if applicable. y .iT•.: ..S It is recommended that each sewage disposal leaching facility be located most distant from wetlands to reduce eutrophication caused by phosphorous and other nutrients. The United States Environmental Protection Agency's National Eutrophication Survey states that`0.25 lbs. per'yedr of total phosphorous enters y wetlands from every person served by onsite septic systems within 300 feet wetlands (US EPA 1983). i Very truly yours, Grover C. M. Farrish, M.D. Chairman Ann Jane E baugh C.zoz� T►t J es H. Crocker, Sr. BOARD OF HEALTH TOWN OF BARNSTABLE TM/bs cc: Harry and Susan Jilson Down Cape Engineering, Inc. Town Clerk Health Department Conservation Commission Barnstable Fire and Water District i McKean Thomas From: Mackey Patty To: McKean Thomas Subject: Jilson Subdivsion Date: Thursday, January 20, 2000 3:29PM From Jackie Etsten, Jilson Subdivsion#713 was approved by the PLanning Board in a decision dated July 11, 1989 subject to all the requirements of the Board of Health. If teh Board of Health decides to change their requirements (recommendations), then the PLanning Board approval may also be required for such grant. Let me know if you need any more information. A copy of the Decision is avaialble here. y Page 1 tel.(508)362-4541 939 main street rt 6a fax(508)362-9880 yarmouth port mass 02675 down cane engineering civil engineers& land surveyors structural design Arne H.Ojala P.E., P.4.S. Timothy H.Covell,P.L.S. land court November 27, 1999 Daniel A.Ojala, P.L.S. surveys Barnstable Board of Health site planning 367 Main Street P 9 Hyannis, MA 02601 / sewage system Re: Lot 38 Calves Pasture Lane, Barnstable Village designs Dear Board Members: inspections On behalf of our client, we are hereby requesting variances under Town of Barnstable Health Regulation Part VHL Section 1.00. Specifically, the variances are as follows: permits 1. Proposed primary leaching facility to be 70' from the edge of a bordering vegetated wetland(30' variance requested); 2. Proposed septic tank to be•51V to the edge of wetland (4 b variance requested); 3. Proposed reserve leaching facility to be 66 to the edge of wetland (34 variance requested). The resource area delineations shown on the plan have been confirmed by the Conservation Commission under filing SE3-3494, These resource areas include bordering vegetated wetland, intermittent stream, salt marsh, coastal bank, land under waterways, and land subject to coastal storm flowage. According to a report submitted by ENSR to the Conservation Commission as part of the resource area delineation filing, surface waters originating from a swamp to the northeast of Lot 38 flow intermittently via three culverts under Calves Pasture Lane during storm events. The water is discharged onto Lot 38 and the abutting Lot 39. Test holes performed over previous years in variousareas of the lot have indicated the presence of silt loam and sandy loam sods to depths of as much as 14.5'. Due to the impervious nature of the soils present and the fact that there are no man-made drainage structures on Lot 38, the surface waters originating from the swamp to the northeast are not able to percolate downward on Lot 38 (i.e. it is perched water) and, therefore, the surface waters are not hydraulically connected to groundwater on the lot. The discharge point for these surface waters is the salt marsh to the south of Lot 38. r The closest point of the primary leaching facility to this perched wetland community is 70'. This distance is perpendicular to the site-specific groundwaterflow in this area, which is from northeastito_.southwest. Thus, any waste residue which reach ��� groundwater will not flow toward the bordering vegetated wetland to the west,but rather will flow in a southwesterly direction, i.e., toward the marsh. The leaching facility is M! directly upgradient from the wetland to the south. The base of the leaching facility is at least 20' above the true groundwater level. The septic tank and pump chamber are both proposed to be factory certified waterproof, as another added level of protection. The two inch pressure line is proposed to be hand-dug under the ditch/channel which transports water intermittently between the culvert under Calves Pasture Lane and the wetland on Lot 38. An extension of this culvert to replace the ditch is proposed, in order to assure a more permanent continuence of this connection to the wetland on Lot 38. This culvert will serve, as well, to protect the 2"pressure line proposed to be installed under the culvert. Lastly, and as can be seen from the plan, there is no other location on the property where a sewerage disposal system could be located that has a greater setback from adjacent wetlands. The only means to obtain a greater setback would be through a waiver of Title 5 property line setback requirements, and to the extent that the Board desires that the system be located closer to the property line to increase the wetland setback, the applicant is willing to consider such an alternative. In sum, enforcement of full compliance with local setback requirements would be "manifestly unjust"considering that the system is at least as environmentally protective as a system which meets the setback requirements because groundwater flows towards a wetland which is greater than 100 feet from the primary leaching facility. I look forward to meeting with the Board to discuss the proposed plan. Very truly yours, Arne H. Ojala, PE, PLS Down Cape Engineering, Inc. oFtr° . Town of Barnstable gips Department of Health, Safety, and Environmental Services 9� "�: r Public Health Division Argo �A P.O.Box 534,Hyannis MA 02601 Office: 508-862-4644 Thomas A.McKean,RS,CHO FAX: 508-790-6304 Director of Public Health January 19,2000 TO: Robert Smith Town Attorney FROM:Thomas McKean,Health Agent RE: Lot 38 CALVES PASTURE LANE/ QUESTION FROM THE BOARD OF HEALTH On November 30, 1999,Laurie Warren submitted a variance request application to the Board of Health requesting variances from Board of Health Regulations VIII and XII regarding separation distances between a proposed leaching facility and vegetated wetlands and concerning separation distance between a proposed septic tank and an onsite well. On June 7, 1989,the Board of Health reviewed a definitive subdivision plan which included the above referenced vacant lot and wrote a letter to the Planning Board which included the following language: • The developer must provide public water to each and every lot in the subdivision. • The developer shall have recorded on the deed that variances from Title 5,Minimum Requirements for the Subsurface Disposal of Sanitary Sewage,or the Town of Barnstable Health Regulations,whichever is more stringent,will not be granted on any lot in this subdivision. I telephoned Jackie Etsten at the Planning Department Office today to inquire whether or not the Planning Board accepted these recommendations. She will call me tomorrow with a reply. LEGAL QUESTIONS 1) Can the Board of Health rescind the public water connection recommendation in this particular case although this recommendation was recorded in 1989 in their letter to the Planning Board by previous Board of Health members(James Crocker and Ann Jane Eshbaugh)? 2) Can the Board of Health rescind the no variance clause in this particular case although this recommendation was recorded in 1989 in their letter to the Planning Board by previous Board of Health members(James Crocker and Ann Jane Eshbaugh)? This matter is scheduled to be continued at Board of Health meeting on February 3,2000. Please advise. J:calves.doc oF�+ET � Town of Barnstable sAxxsTnsiE Department of Health, Safety, and Environmental Services "9: r Public Health Division P.O.Box 534,Hyannis MA 02601 Office: 508-862-4644 Thomas A.McKean,RS,CHO FAX: 508-790-6304 Director of Public Health January 19,2000 TO: Robert Smith Town Attorney FROM:Thomas McKean,Health Agent RE: Lot 38 CALVES PASTURE LANE/ QUESTION FROM THE BOARD OF HEALTH On November 30, 1999,Laurie Warren submitted a variance request application to the Board of Health requesting variances from Board of Health Regulations VIII and XII regarding separation distances between a proposed leaching facility and vegetated wetlands and concerning separation distance between a proposed septic tank and an onsite well. On June 7, 1989,the Board of Health reviewed a definitive subdivision plan which included the above referenced vacant lot and wrote a letter to the Planning Board which included the following language: • The developer must provide public water to each and every lot in the subdivision. • The developer shall have recorded on the deed that variances from Title 5,Minimum Requirements for the Subsurface Disposal of Sanitary Sewage,or the Town of Barnstable Health Regulations,whichever is more stringent,will not be granted on any lot in this subdivision. I telephoned Jackie Etsten at the Planning Department Office today to inquire whether or not the Planning Board accepted these recommendations. She will call me tomorrow with a reply. LEGAL QUESTIONS 1) Can the Board of Health rescind the public water connection recommendation in this particular case although this recommendation was recorded in 1989 in their letter to the Planning Board by previous Board of Health members(James Crocker and Ann Jane Eshbaugh)? 2) Can the Board of Health rescind the no variance clause in this particular case although this recommendation was recorded in 1989 in their letter to the Planning Board by previous Board of Health members(James Crocker and Ann Jane Eshbaugh)? I This matter is scheduled to be continued at Board of Health meeting on February 3,2000. Please advise. f kcalves.doc oFtti Town of Barnstable STAB Department of Health, Safety, and Environmental Services '"�: ��� Public Health Division �Fc �A P.O.Box 534,Hyannis MA 02601 Office: 508-862-4644 Thomas A.McKean,RS,CHO FAX: 508-790-6304 Director of Public Health January 19,2000 TO: Robert Smith Town Attorney FROM:Thomas McKean,Health Agent RE: Lot 38 CALVES PASTURE LANE/ QUESTION FROM THE BOARD OF HEALTH On November 30, 1999,Laurie Warren submitted a variance request application to the Board of Health requesting variances from Board of Health Regulations VIII and XII regarding separation distances between a proposed leaching facility and vegetated wetlands and concerning separation distance between a proposed septic tank and an onsite well. On June 7, 1989,the Board of Health reviewed a defmitive subdivision plan which included the above referenced vacant lot and wrote a letter to the Planning Board which included the following language: • The developer must provide public water to each and every lot in the subdivision. • The developer shall have recorded on the deed that variances from Title 5,Minimum Requirements for the Subsurface Disposal of Sanitary Sewage,or the Town of Barnstable Health Regulations,whichever is more stringent,will not be granted on any lot in this subdivision. I telephoned Jackie Etsten at the Planning Department Office today to inquire whether or not the Planning Board accepted these recommendations. She will call me tomorrow with a reply. LEGAL QUESTIONS 1) Can the Board of Health rescind the public water connection recommendation in this particular case although this recommendation was recorded in 1989 in their letter to the Planning Board by previous Board of Health members(James Crocker and Ann Jane Eshbaugh)? 2) Can the Board of Health rescind the no variance clause in this particular case although this recommendation was recorded in 1989 in their letter to the Planning Board by previous Board of Health members(James Crocker and Ann Jane Eshbaugh)? This matter is scheduled to be continued at Board of Health meeting on February 3,2000. Please advise. J:calves.doc LAW OFFICES OF PAUL REVERE, III 226 River view Lane Centerville, .Massachusetts 02632 (508) 778-7126 January 18, 2000 Board of Health Town of Barnstable New Town Hall 367 Main Street Hyannis, Massachusetts 02601 RE: Application for Septic System Disposal Permit Lot 38, Calves Pasture Lane, Barnstable Village Scheduled for Hearing January 18, 2000 Dear Members of the Board: This letter is submitted on behalf of the Applicant, Laurie Warren, for a septic system permit for Lot#38 on Calves Pasture Lane in the Village of Barnstable (the "Property").. As you may remember, the , Board of Health ("Board") held a public hearing on December 14, 1999, in which the Board requested that the Applicant: (i) revise the plans in the application to reflect surrounding geographical features; and (ii) obtain a written statement from the Barnstable Fire Department Water District that public water was unavailable for Lot #38. The Board also decided to schedule a site visit to view the Property. As you may also remember, I spoke on behalf of the Applicant and Charles Sabatt, an attorney, spoke on behalf of alleged abutters to the Property. Since the meeting, Mr. Sabatt has submitted a letter to the Board and the site visit was held on Friday, January 7, 2000. This letter further explains the permit application and respond to the comments of Mr. Sabatt. I apologize for submitting this letter on the day of the hearing as I have just recently learned that the Board would be considering this application at-its January meeting. I. Merits of Application The Applicant requests relief from: (i) Part .VI11, Section 1.00 ("1973 Setback Regulation") for the septic tank and pump chamber;' and (ii) the 1973 Setback Regulation and Part Vlll,. Section 10.00 ("1992 Leaching Facility Setback Regulation") ' The term "pump chamber is not used in Section 1.00 and, therefore, an argument can be made that Section 1.00 is inapplicable that unit. For purposes of this proceeding only, the Applicant concedes that Section 1.00 applies to the pump chamber. � 1 for the leaching facility and reserve area.2 The application for Lot #38 warrants relief from both these requirements. A. Septic Tank and Pump Chamber The proposed septic tank and pump chamber are subject to the requirements of the 1973 Setback Regulation. These units are located 56 feet from the edge of a vegetated wetland that borders on a drainage ditch.3 The Board should authorize their construction in this location because these units will have no impact on the wetland. The 1973 Setback Regulation provides: Unless otherwise specified by the Board of Health, all cesspools, septic tanks, disposal fields, or other disposal systems hereafter constructed shall be located such that a distance of- not less than one hundred (100) feet shall intervene between any watercourse including brooks, ponds, salt and freshwater marshes, bogs, streams, lakes or extreme high water mark of tidal waters and any portion of any cesspool, septic tank, disposal field or other sewerage disposal systems. . . . Town of Barnstable, Board of Health Regulations, Part VIII, Section 1.00 (emphasis supplied). The septic tank and the pump chamber will be watertight in accordance with Title 5 requirements. No leakage of septage will occur from either of these units and consequently there will be no impact to the wetland. Therefore, the Board should exercise its discretion and allow the septic tank and pump chamber to be located less than 100 feet from the vegetated wetland. To authorize construction in this location, the Board does not need to make a formal "variance" determination and the Applicant does not need to demonstrate that failure to grant the relief would constitute "manifest injustice." The 1973 Setback Regulation uses the phrase "[u]nless otherwise specified by the Board of Health" rather than unless granted a "variance" by the Board. The 1973 Setback Regulation is written in this manner so as to provide discretion for the Board to not only permit systems at distances of less than 100 feet to,a wetland, but also to require a setback of greater than 100 feet if necessary to protect the wetland. Put another way, the 1973 Setback Regulation is a precursor to Subsection 1.14 of the 1992 Leaching Facility Setback Regulation. Subsection 1.14 requires a distance of 250 feet from wetlands in areas of 2 No relief from the requirements of Title 5 of the State Environmental Code("Title 5") is required for the proposed septic system. 3 The drainage ditch and bordering wetlands do not appear to be natural geographic features. Rather, adjacent property owners apparently constructed a system of drainage ditches on their properties that causes water to flow from a low-lying/swampy area on their properties to a culvert located under Calves Pasture Lane which then drains onto the Property. 2 high groundwater and high soil permeability, and incorporates express numerical standards for the siting of such systems.. The 1973 Setback Regulation provides the Board with discretion to adjust setback .requirements as appropriate to protect the environment and appropriately does not use the term "variance" or explicitly (or even . implicitly) incorporate the. "manifest injustice" standard for the granting of a variance.° Regardless, even if the "manifest injustice" standard of the Board of Health's septic system regulations, see Part Vll, Section 10.00, Subsection 1.31, applied it would be "manifestly unjust" prohibit placement of these units in this location when they will have no impact on the adjacent wetland. B. Leaching Facility And Reserve Area The proposed leaching facility and reserve area are subject to the requirements of the 1973 Setback Regulation and the 1992 Leaching Facility Setback. Regulation. The leaching facility and reserve area are located 70 and 66 feet, respectively, from the edge of the vegetated wetland. The Board should authorize their construction in this location pursuant to the 1973 Setback Regulation because these units will have no impact on the vegetated wetland. Likewise, the Board should grant a variance from the 100 foot setback requirement of Subsection 1.13 of the 1992 Leaching Facility Setback Regulations because enforcement of the requirements of that regulation "would do manifest injustice" and the ' system provides the same degree of environmental protection as a system meeting the setback requirement. With respect to the 1973 Setback Regulation, the location of the leaching facility.and reserve will have no impact on the vegetated wetland. As explained in a December 14, 1999, letter by ENSR, Inc., the vegetated wetlands are an area of perched water that results from the surface flow of water .onto the Property rather than from elevated groundwater. Attached as Exhibit One. In addition to the evidence cited in that letter, this conclusion is supported by the logs for Test Holes #3 and #4 where the leaching facility and reserve are proposed to be located on the Property which show that groundwater is significantly below the elevation of most of the drainage ditch. In particular, groundwater was'not detected in Test Holes #3 and #4 at their maximum depths of elevation 20.0 .and 15.4, respectively. The drainage ditch traverses approximately 155 feet from the Property's edge to the flood zone (elevation 11.0): Of that distance, approximately 75 percent is .located at elevation greater than 15 feet. Groundwater in the vicinity of the proposed leaching facility and reserve is not feeding the drainage ditch because it is located at an elevation"below the bottom of the ditch. Thus, the construction of the leaching'facility and the reserve within 100 feet of this vegetated wetland will have no detrimental impacts on it and the Board should 4 Further support for this reading of the 1973 Setback Regulation can be found by comparing the.terms of the regulation to other Board regulations adopted in the early 1970s. In particular, the same Board of i Health members adopted Part XII, Section 2.00 of the Board's regulations which specifies minimum lot sizes and well setback requirements. In that regulation, the Board not only used the term "variance"to describe any alteration to its requirements, but also the regulation sets forth specific standards for the granting of variances. Thus, the then existing Board members used the term "variance" and incorporated express decision criteria when they desired to limit their discretion in altering regulatory requirements. 3 I exercise its discretion under the 1973 Setback Regulation and allow the leaching facility and reserve to be located less than 100 feet from the vegetated wetland. With respect to Subsection 1.13 of the 1992 Leaching Facility Setback Regulation, the Board should grant a variance. A variance from that regulation may be granted if: (i) the enforcement [of the regulation] would do manifest injustice"; and (ii) the same degree of environmental protection can be obtained. Subsection 1.31 of the 1992 Leaching Facility Regulation. As discussed previously, the Applicant has demonstrated that the construction of the proposed leaching,facility and reserve area will have no impact on the vegetated wetlands. Thus, a variance must be granted if _the Applicant demonstrates that "the enforcement [of the regulation] would do manifest injustice." The 1992 Leaching Facility.Setback Regulation does not define "manifest injustice" or describe the nature of the demonstration required to be made by the applicant. Here, the Applicant purchased an interest in the Property in 1998 with the expectation that a four or more bedroom house could be built on the Property based upon a 1989 subdivision plan which showed limited wetlands and one and one half acres of upland.' However, as can be seen by a review of the plan submitted by the Applicant which includes a more recent wetland delineation,e there is no location on the Property where a septic system and reserve of any size can be built without a variance from the 1992 Leaching Facility Setback Regulation. In particular, no area on the western two thirds of the Property is more than 100 feet from a wetland. The only area on the eastern third of the Property which is more than 100 feet from a wetlandis a small sliver of land which comprises the southern 25 percent of the proposed system. In sum, the Property, which was created by a subdivision approved by the Board slightly more than ten years ago and contains more than one acre of upland is unbuildable without a variance from the 1992 Leaching Facility Setback Regulation. Under the current zoning of the Property, a residence is the only use available use of the Property. Thus, enforcement of the 1992 Leaching Facility Setback Regulation will "deprive the Applicant of substantially all beneficial use of the subject property"' and, therefore, a variance should be granted. II. Objections of Alleged Abutters And Subdivision Approval Without naming his clients,' Mr. Charles-Sabatt attended the Board's December 14, 1999, meeting and objected to the issuance of septic.system permit for the Property. Mr. Sabatt objected to the issuance of a permit based upon a June 7, 1989, letter issued by the then sitting Board approving the subdivision that created this lot (the 5 The effect of those wetlands on the construction of a septic system is discussed below. 6 The wetland delineation shown in the application was obtained by the Applicant and approved by the Barnstable Conservation Commission. 'The quoted language is from 310 C.M.R. 15.410(2)which addresses variances under Title 5. e At a previous Board meeting in August, Mr. Sabatt stated that he.represented the Cooks who own property at the end of Calves Pasture Lane which does not abut the Property O 4 "June 1989 BOH Letter").' In particular, the June 1989 BOH Letter provided that: (i) variances from Title 5 and the Board's septic system regulations will not be granted; and (ii) a public water supply must be provided for each lot. Noticeably absent from Mr. Sabatt's comments are any allegation that the granting_ of a variance or construction of a well on the Property will result in any adverse impact on public health or the environment. The Board should.issue the septic system permit for the Property and not require connection to public water regardless of Mr-. Sabatt's objections. 1. Variances From Title 5 and Board of Health Requirements The primary focus of Mr. Sabatt's arguments was, that the Board is prohibited from granting a variance due to the statement in June 1989 BOH Letter approving the subdivision and providing that variances from Title 5 and the Board's septic system regulations will not be granted. The June 1989 BOH Letter: (i) cannot limit the authority of the Board to grant variances as it deems appropriate; (ii) unlawfully imposed a prohibition on variances; and (iii) must be read to address only the applicable 1989 regulatory requirements and conditions at the Property. The 1989 BOH Letter cannot limit the authority of the Board to grant variances as it' deems appropriate.'° The Board is a regulatory body created by statute. The Board is empowered to act as it deems appropriate on a septic system permit application subject only to the limitations in state statutes and regulations, and local ordinances and regulations. No prior Board possesses the power to limit the authority of later Board except through'the adoption of regulations." Here, Mr: Sabatt's position is that the 1989 Board limited the current board's authority to decide on the issuance of a permit for the Property. Put another way, Mr. Sabatt argues that the 1989 Board had the authority to control the actions of all future Boards.12 No statute or regulation provides such authority or even supports his position. Simply, the 1989 Board had no greater authority than the current Board. Under these circumstances, the Board has the power to decide on the merits of the Applicant's permit application and is not bound to follow the pronouncements of the 1989 Board: In this regard, it should be noted that the attempt limit the discretion of future Boards to grant variances does not appear to be the result of a site-specific determination of the 1.989 Board. A review of the letters of the Board of Health for subdivisions approved at that time shows that every Board letter includes the prohibition on variances. Thus, contrary to Mr. Sabatt's comments, the limitation does not derive from concerns of abutters to the Property. s Mr. Sabatt's comments also are set forth in letters dated December 14 1999, and December 23, 1999. 10 It should be noted that the 1989 BOH Letter requires that a deed restriction be recorded imposing a limitation on variances. This restriction was never recorded by the person who subdivided the Property. " As the Board is well aware, the adoption of regulations addressing septic systems are subject to special requirements including publication, public hearings, and, if more stringent than state requirements, a statement as to the local need for the regulation, It is doubtful that the 1989 BOH Letter would qualify as a valid regulation. 12 An analogy could be made to the Town Council(or any other legislative body) passing an ordinance which states it-cannot be repealed by a later Town Council 5 The limitation on variances in the 1989 BOH Letter also is prohibited by the decision in Fairbairn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171 (1978). In particular, the Fairbairn case unequivocally states "the board of health would be acting prematurely and unreasonably if it were to take any action with respect to [Title 5] other than requiring the planning board to endorse a condition on the definitive plan to the effect that no dwelling shall be built on any lot without. first securing from the board of health the disposal works construction permit required by the code." Fairbairn, at 185 (citations omitted and emphasis supplied).13 Here, the 1989 Board did more than allowed by Fairbairn in that it set forth specific limitations on the granting of a permit for the Property and, thus, the inclusion of the limitation on variances was unlawful. On December 23, 1999, Mr. Sabatt provided a letter to the Board setting forth his opinion on the meaning of the Fairbairn case. Mr. Sabatt's letter completely ignores the above quoted language which is the most relevant portion of the decision and argues that the Board should impose..the limitation on variances because the subdivider did not appeal the 1989 Board's decision.14 Essentially, Mr. Sabatt is telling the Board that it should affirm the unlawful actions of the 1989 Board and that. two "wrongs" make a "right." The Applicant's position with respect to this argument is simply that, if the 1989 Board should not have imposed the limitation, the Board can correct that action by making its own independent judgment on the merits of the application. In contrast, Mr. Sabatt's position is that the Board must blindly follow the path of the 1989 Board regardless of the validity or appropriateness of its actions. Lastly, if the Board concludes that the limitation on variances in the 1989 BOH Letter must be enforced, that limitation must be read to apply only to those requirements of the Board which existed in 1989 and remain in effect today. As explained above, the Applicant has requested relief from two. requirements of the Board: (i) the 1973 Setback Regulation; and (ii) the 1992 Leaching Facility Setback Regulation. The 1973 Setback Regulation was in effect in 1989; whereas the 1992 Leaching Facility Setback Regulation post-dates the subdivision that created the Property. Therefore, the limitation on variances only is relevant to the request for relief from the 1973- Setback Regulation. As discussed in detail previously, relief from the 1973 Setback Regulation is not a "variance." Rather, the regulation provides authority for the-Board to designate a setback as appropriate for the proposed system. Thus, the limitation on variances does not place any restriction on the Board's ability to grant relief from this regulation. 13 Additionally, when considering the meaning of Fairbairn, you should note that the court quoted the - - variance provision of the Title 5 regulations in effect at that time in a footnote immediately preceding the , quoted sentence. 14 Mr. Sabatt's letter does cite part of the sentence, but does so in a deceptive manner by removing the bold language from the sentence as follows:"the board of health would be acting prematurely and unreasonably if it were to take any action with respect to [Title 5] other than requiring the planning board to endorse a condition on the definitive plan to the effect that no dwelling shall be built on any lot without first securing from the board of health the disposal works construction permit required by the code." December 23, 1999, Sabatt Letter, at p. 1. 6 I In addition and to fully understand the 1989 BOH Letter, the Board should consider the need for variances in 1989. In 1.989, the Property had far less extensive wetlands as is demonstrated by the 1989 subdivision plan. Furthermore, a septic system under the 1978 Title 5 code could use leaching pits for the leaching facility. Thus, at the time of the 1989 BOH Letter, a septic system which met Title 5 code and local regulations could be constructed on the Property based on the wetlands delineation in the 1989 subdivision plan without a variance or other relief. When the 1989 Board imposed the limitation on variances, it was addressing a property that did not need variances under applicable law. Today, the need for relief-from the 1973 Setback .Regulation is driven primarily by the size of the leaching facility which is mandated by the 1995 Title 5 Code. Ton use the 1989 BOH Letter to prohibit relief caused by the 1995 revisions of Title 5 would be fundamentally unfair reading. of the variance limitation in the 1989 BOH Letter. 2. Public Water Supply The alleged abutters and the Board have also expressed.concerns regarding the requirement in the 1989 BOH Letter to provide public water to the Property. The Applicant's position is that issue of.water supply for the Property is irrelevant to the determination of whether to issue a septic system permit for the Property. Regardless, to the extent that the Board desires to address this issue, the Applicant believes that the Board should waive this requirement because public water is unavailable for the Property. The proceeding before the Board is an application for septic system construction permit. Neither the applicable regulations nor the permit application requirements impose an obligation that the Applicant demonstrate that it has a water supply for a property. Thus, the issue of whether. the Applicant has complied with.the requirement to provide public water to the lots is simply irrelevant. That issue can be addressed if and when the Applicant applies for permit for construction of a well pursuant to Part XII, Section 3.00 of the Board's regulations. To the extent that the Board desires to address the issue of supplying public water to the Property, the Applicant's position is that the Board should waive this requirement. Like the limitation on variances, the public water supply requirement derives from the 1989 BOH Letter. As discussed previously, the Board has the power to decide on the merits of this matter and is not bound to blindly follow the pronouncements of the 1989 Board. Here, the Applicant has approached the Barnstable Fire District Water Department ("Water Department") regarding connection of the Property to the water . main on Scudder Lane. By letter dated February 5, 1999, and again at their December board meeting, the Water Department has informed the Applicant that they cannot connect to the water main at Scudder Lane unless the Applicant provides funds to upgrade the water main on Scudder Lane all the way to its connection to the main line on Route 6A and also to reconnect all existing customers of the Water 7 Department.'-' While the exact cost of the upgrade of the water main is not known, the cost is likely to exceed $100,000 and the Water Department appears to desire that the Applicant pay a significant portion of those costs in addition to the cost of the water Fine from Scudder Lane to the Property which in itself may.exceed $30,000. Thus, the cost to supply public water to the Property is excessive. Under the circumstances, it is appropriate to examine.the source of the 1989 Board's authority to impose a requirement to connect to public water at the Property. The 1989 Board promulgated a regulation, Part XII, Section 3.00, Section 19 (the 1989 Water Regulation"), which provides that: "The Board of Health may at its .discretion require single family, multi-family, or commercial structures located within 300 feet of a municipal water line, to connect to municipal water." The use of a distance limitation in the 1989 Water Regulation demonstrates that the 1989 Board intended that costs be considered in ,deciding whether to require connection to public water supply lines. Furthermore, .nothing in the regulation requires "structures" which are less than 300 feet to connect to public water and the decision as to whether to require connection of a structure within 300 feet was left completely to the discretion of the Board. Here, the. proposed .single family home is located approximately 600 feet from Scudder Lane.18 This distance is more than twice the distance specified in the 1989 Water Regulation. Thus, it can be surmised that the 1989 Board imposed the water connection requirement in the 1989 BOH Letter because it believed: (i) water was available at Scudder Lane;-and (ii) connection to such water could be made at a reasonable cost. As explained above, neither of these circumstances exist. The Water Department will not allow the Applicant to connect to the main at Scudder Lane unless it pays for the upgrade of the Fine from Route 6A and reconnection of existing users. The costs of such connection are unreasonable not only to connect to Route 6A, but also to run a pipe to Scudder Lane. Under the circumstances, the Board should allow that the Property be developed without a public water supply. 3. Alleged Abutters' Failure to Demonstrate an Adverse Impact on Public Health or.the Environment Mr. Sabatt has made numerous comments of behalf of alleged abutters in opposition to the application before the Board. Although the alleged abutters have hired Horsley and Witten and Mr. Sabatt in their attempts to block the permit and they have submitted letters in opposition, the submissions of the alleged abutters fail to state that the issuance of a septic permit will have any impact adverse impact on public health or the environment. In fact, the record is completely devoid of any evidence of adverse t5 The Applicant has had numerous discussions with the Water Department's superintendent and attorney in her attempts to obtain an additional letter regarding this matter for the Board's review. Additionally,the Applicant has concerns regarding the propriety of the Water District request that she provide funds which will primarily benefit the private property owners on Scudder Lane. 18 The Property is located approximately 400 feet from the water supply line. 8 impact. Essentially, the abutters' argument boils down to an opposition to any development of the Property. Put another way; the alleged abutters simply desire that the Applicant be forced to maintain open space in their neighborhood for their benefit. If the alleged abutters desire the Property.to remain open space, the alleged abutters should purchase the Property rather than attempt to use this Board's powers to prohibit the Applicant's development. III. Conclusion The Applicant has demonstrated that it should be granted relief from the 1973 Setback Regulation and the 1992 Leaching Facility Setback Regulation. Additionally, if the Board decides to consider water supply issues, the Board should waive any requirement to connect the Property to public water. I will be available at the January 18, 2000, meeting to answer any questions. Very truly yours, Paul Revere;.I I I 9 r McKean Thomas From: Mackey Patty To: McKean Thomas Subject: Jilson Subdivsion Date: Thursday, January 20, 2000 3:29PM From Jackie Etsten, Jilson Subdivsion#713 was approved by the PLanning Board in a decision dated July 11, 1989 subject to all the requirements of the Board of Health. If teh Board of Health decides to change their requirements(recommendations),then the PLanning Board approval may also be required for such grant. Let me know if you need any more information.-A-copy of the Decision is avaialble here. i Page 1 _r o�"E 1 , Town of Barnstable Department of Health, Safety, and Environmental Services MASS.: ,. Public Health Division �fn MAC s P.O.Box 534,Hyannis MA 02601 Office: 508-862-4644 Thomas A.McKean,RS,CHO FAX: 508-790-6304 Director of Public Health January 19,2000 , W TO: Robert Smith Town Attorney FROM:Thomas McKean,Health Agent RE: Lot 38 CALVES PASTURE LANE/ QUESTION FROM THE BOARD OF HEALTH On November 30, 1999,Laurie Warren submitted a variance request application to the Board of Health requesting variances from Board of Health Regulations VIII and XII regarding separation distances between a proposed leaching facility and vegetated wetlands and concerning separation distance between a proposed septic tank and an onsite well. On June 7, 1989,the Board of Health reviewed a definitive subdivision plan which included the above referenced vacant lot and wrote a letter to the Planning Board which included the following language: • The developer must provide public water to each and every lot in the subdivision. • The developer shall have recorded on the deed that variances from Title 5,Minimum Requirements for the Subsurface Disposal of Sanitary Sewage,or the Town of Barnstable Health Regulations,whichever is more stringent,will not be granted on any lot in this subdivision. I telephoned Jackie Etsten at the Planning Department Office today to inquire whether or not the Planning Board accepted these recommendations. She will call me tomorrow with a reply. LEGAL QUESTIONS 1) Can the Board of Health rescind the public water connection recommendation in this particular case although this recommendation was recorded in 1989 in their letter to the Planning Board by previous Board of Health members(James Crocker and Ann Jane Eshbaugh)? 2) Can the Board of Health rescind the no variance clause in this particular case although this recommendation was recorded in 1989 in their letter to the Planning Board by previous Board of Health members(James Crocker and Ann Jane Eshbaugh)? This matter is scheduled to be continued at Board of Health meeting on February 3,2000. Please advise. J:calves.doc C� lei �5 .3 :�. ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. ATTORNEYS AT LAW MATTACHEESE PROFESSIONAL BUILDING 25 MID-TECH DRIVE,SUITE C WEST YARMOUTH,MASSACHUSETTS 02673 EDWARD J.SWEENEY,JR. TELEPHONE(508)775-3433 RICHARD P.MORSE,JR. MI NA M B.STUSSE FAX(508)790-4778 BETSY NEWELL DONNA M. J.DUP SON PAUL R.TARDIFF' MATTHEW J.OUPUY CHARLES M.SABATT CHARLES J.ARDITO.P.C. 'also admitted in MAINE PLEASE REFER TO FILE NUMBER December 14, 1999 G4427X Barnstable Board of Health 367 Main Street Hyannis, Massachusetts 02601 Re: Lot 38 Calves Pasture Lane, Barnstable Village Dear Board Members: This office represents certain abutters to the above referenced parcel (hereinafter called locus). My clients oppose the issuance of any variances from Town of Barnstable Health Regulations Part VIII Section 1.00 as requested within the November 27, 1999 letter of Down Cape Engineering, Inc. The reasons for my clients' opposition are set forth below. • The Board of Health previously decided that no variances would be granted. Locus was created in 1989 pursuant to a definitive plan approval issued by the Barnstable Planning Board. As a part of that process the Town of Barnstable Board of Health imposed requirements or limitations upon the definitive subdivision plan. Those requirements are set forth within a letter of the Barnstable Board of Health dated June 7, 1989, a copy of which is attached hereto as Exhibit 1. Among the requirements, the Board of Health provided as follows: The developer shall have recorded on the deed that variances from Title 5, Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, or the Town of Barnstable Health Regulations whichever is more stringent will not be granted on any lot in this subdivision. • The Barnstable Planning Board incorporated the Board of Health letter of June 7, 1989 . into its record. (See Exhibit 2 - Planning Board Minutes - June 19, 1989) Later, the Planning Board conditioned its definitive Plan approval upon"all the requirements of the Board of Health..." (See Exhibit 3 - Plan Approval, Condition #3) Accordingly, the Planning Board approval for the subdivision creating lot 38 is predicated upon the Board of Health requirement that no variances would be granted. r.h ` Barnstable Board of Health December 14, 1999 Pa<(e • The proponents of the subdivision plan, namely Harry C. and Susan R. Jilsons are the current record owners of the locus. As is apparent from the Planning Board minutes, the Jilson's accepted the requirements of the Board of Health precluding variances. Furthermore, the abutters to locus relied upon the Board of Health requirements when they agreed to support the Jilsons' request for waiver of the drainage and road construction requirements. Had it not been for the Board of Health requirements imposing a restriction on the granting of variances, my clients would not have supported the Jilsons' subdivision plan. • Denial of a variance will not cause a manifest injustice. Part VIII, Section 1 existed on June 7, 1989 when the Board of Health imposed its requirements ultimately incorporated by the Planning Board. The present applicants had knowledge of the Board of Health requirements contained within its letter of June 7, 1989, since these requirements are a matter of public record and are among the conditions included within the Planning Board approval. Furthermore, it should be noted that the engineer representing the applicants in their current request for variances is the same engineer who prepared the Jilsons' subdivision plan. • The applicants are not record owners of locus, but rather are assignees of a mortgage on locus, having taken the assignment on April 23, 1998. Unlike other applicants who request variances from the Board of Health, the applicants in this case have not recently learned of their inability to construct a subsurface disposal system upon preparation of construction plans. On the contrary, the Board of Health requirements of June 7, 1989 put these applicants on notice as to the limitations to which locus would be subject. • The granting of a variance will result in manifest injustice. The Planning Board approval is predicated upon the Board of Health requirements precluding issuance of a variance. The abutters to locus relied upon that restrictive requirement in withholding opposition to the Jilsons' definitive subdivision plan and in supporting their request for waivers of the drainage and road construction requirements. Thank you for your courtesy in this matter. Respectfully, Charles NI. Sabatt C�'IS:Ics • • t� • � FJ- - rt r� _ � I • • �P�OFTHE T TOWN OF BARNSTABLE OFFICE OF . aeaisT BOAR® OF HEALTH y MAi[ i6.5 367 MAIN STREET Q V !► HYANNIS, MASS. 02601 June 7, 1989 Mrs. Susan H. Rohrbach Re: Definitive subdivision plan of land in Barnstable Chairperson, Planning Board Petitioner: Harry and Susan R. Jilson Barnstable Town Hall Date: January 31, 1989 - Revised April 31, 1989 Hyannis, Ma 02601 Revised may 22, 1989 Engineer: Down Cape Engineering, Inc.- Assessor's map 259, Parcel 1 Dear Mrs. Rohrbach: The Board of Health has reviewed this definitive subdivision plan in Barnstable and makes the following recommendations: The developer must provide public water to each and every lot in this subdivision. Public water lines and all connections must• meet specifications and/or rules and regulations of the local water department. Each septic system shall be located within the prescribed boundaries of each individual lot. The developer shall have recorded on the deed that variances from Title 5, Minimum Requirements for the Subsurface Disposal of Sanitary_Sewage, or the Town of Barnstable Health Regulations whichever is more stringent, will not be granted on any lot in this • subdivision, A percolation test must be made on the lot at leaching site, before a Disposal Works Construction Permit will be issued. Maximum ground water elevations must be determined by using data available from the United States Geological Survey - Probable High Ground Water Levels on Cape Cod, Mass. Each proposed septic system must conform strictly to 310 CMR 15.00, the State Environmental Code, Title 5, and Town of Barnstable Rules and Regulations. All tree stumps, brush and building debris removed when clearing lots or roads must be disposed of at a licensed solid waste disposal facility. Chipping brush and tree stumps is an acceptable alternative. Burial on site is prohibited. The applicant must receive an Order of Conditions from the Conservation Commission, if applicable. I_t t It is recommended that each sewage disposal leaching .facility be located most distant from wetlands to reduce eutrophication caused by phosphorous and other nutrients. The United States Environmental Protection Agency's -National Eutrophication Survey states' that '0.25Abs. per year of total phosphorous enters wetlands from every person served by onsite septic systems within 300..:feet wetlands (US EPA 1983). Very truly yours, _ I Grover C. M. Farrish, M.D. Chairman Ann Jane E baugh L nt Jdnes H. Crocker, Sr. BOARD OF HEALTH TOWN OF BARNSTABLE TM/bs CC: Harry and Susan Jilson Down Cape Engineering, Inc. Town Clerk Health Department Conservation Commission Barnstable Fire and Water District • X N- N rt N t SUBDIVISION HISTORY CHECK LIST SUBDIVISION # 89-713 PLAN ENTITLED Subdivision Plan of Land in Barnstable, Mass . To Be Filed in the Land Court Shown As Lot 20 on Land Court Plan #02950E Scale 1 '=40 ' PLAN DATED 01/31/89 , Revised 04/03/89 & 05/22/89 PLAN ENGINEER Down Cape Engineering Hary C. & Susan R. Jilson PLAN LOCATION south off Calves .Pasture Lane, west of Scudder Lane , Barnstable NEW RDAD NAMES None - using existing road/Calves Pasture Ln MAP/PARCEL # Map 259, Parcel 1 TOTAL ffiffM 6.02 TOTAL # LOTS 3 ZM RF-1 GRID OR CLUSTER Grid PRETHINARY DATE Rt1RMTTTFD WE — tried first with an ANR plan & directed to submit a subdivision approval required plan which would upgrade Calves Pasture Lane DEFINITIVE DATR RLIRMTTTRD 05/23/89 ADVFRTTRFD DATER 06/01/89. & 06/08/89 �11=AR2TN[� DATt= 06/19/89 - AOGRdVAI DATE 07/10/89 NnTTC`F -rn Tt]WN t"I ==se QC^K TN DATE 07/11/89. STt3N D RY T(]WN R4C/DATE 07/31/89 RT[aNt=D RY 17i ANNTNt3 RAARD/DAT 07/31/89 COVENANT WO EST® - YFR _ DATPD SECURITY REQUESTED - Yt-R Covenant =YpE t7F RFCt IRTTY RFCIIop, r T4?1•.11 D RY LOTS RELEASED 01/03/91 - zero released LOTS REMAINING UNDER COVENANT 1 , 2 , 3 FINAL LOTS RELEASED/DATE 4 t SUBDIVISION PLANS DEFINITIVE PLANS - PUBLIC HEARING Subdivision #701 ; "Bavberry Place" MOTION was duly made by B. Wilber and seconded by C. Cooperrider that the Planning Board postpone the public hearing for subdivision ##701 until 8s30 p.m. when there would be the required number of Board members present. So voted unanimously. S. Rohrbach was absent for this vote. mod' Subd fiv i s=i oc�-'#-Tr�� "HSrr*v�`C. g: Susan _R. J:i-;l�son"• C. Cooperrider read the notice of public hearing. C. Cooperrider read the letter from Stephen Seymour, DPW, dated 06/19/89; the letter from the Barnstable Fire. Department,. dated 06/09/89; the letter from abutter. Andrew Keck, dated 06/14/89; the letter from abutter Barbara Moore, . dated 06/07/89; the letter from the Board of Health, dated 06/07/89; and the DPO staff report dated 06/19/89. Attorney Michael Ford was present to represent the applicant. He reviewed the recent history of the property and the Planning-Board minutes which covered prior discussions. He stated that the applicant wished that Calves Pasture Lane remain in its present condition and be granted the requested waivers. He referred ' the Board members to Section I , page 17, of the Subdivision Rules and Regulations which discussed the protection of natural features. Mr.. Ford felt that even though Calves Pasture Lane. did not have official status as a scenic road, it did actually have historic value. Attorney Ford presented a copy of the applicant's certificate of title to the Board stating that he felt Mr. Jilson had the right' to use the whole of the forty- foot way on the said plan, referring to the 1953 Land Court plan , which laid out Calves Pasture . Lane, to pass to and from said land. and Scudder's Lane, for all the usual ) purposes Including installation of public utilities. He added that if the 5 Board required improvements be made to Calves Pasture Lane, Mr. Jilson would comply. J. Bartell asked if the Board members had questions. There were none. J. Bartell asked if there were members of the public who wished to speak. Attorney Ron Jansson was present to represent two abutters, Andrew Keck and the Chase family. He stated that he wished to reiterate what Mr. Ford had said. He described the physical-layout of. the road and some of the road's history. He added that the lots on Calves Pasture Lane were not serviced by Town water, but that they had wells and that he felt the abutters owned to the middle of the road. Mr. Jansson stated further that much of the land was we and that he felt that the property could be further divided into only a possible six or seven additional lots. He added that there was a need for public safety to be provided but that the abutters should not have to pay. ., He asked that if the Board approved the definitive plan that they also grant the requested waivers. Edward Kelley, a land surveyor, explained to the Board that he had previously worked in the abutting .area and that based on the .number of test holes which had been dug,. there would be a limited number of buildable lots. He added that if the road were to be improved, it would disturb the natural swail , telephone poles, and three to four feet of clay. He confirmed that the ditches would have to remain if the land was divided further and that Mr. Keck was in support of the plan if the road was to remain in its present condition. J. Polcaro confirmed that Mr. Kelley's judgement of the number of buildable lots had been based on the determination of which parcels had rights to the road and the perking ability of the lots. Mr. Kelley added that the the topography of the land had also been considered. Abutter Jeff Jonas stated that he was speaking for himself and his neighbor Herb Carver. He explained that he was opposed to the widening of Calves Pasture Lane because it would change the scenic beauty, the old stone walls, would , result An increased parking problems and that an improved road would encourage speeding by enabling vehicles to be able to travel at faster speeds. J.. Bartell asked if there• were any other members of the public who wished to speak. There were none. MOTION was duly made by B. Wilber and seconded by J. Polcaro, that the Planning Board take the definitive subdivision ##713, Harry. C. b Susan R. Jiison, under advisement. So voted unanimously. It was agreed to rescheduled subdivision ##713 for the Planning Board meeting of July loth. In order to give the applicant a sense of what the Board would be willing to accept with the plan, J. Polcaro stated that- he would be in favor of approving- the subdivision, but to waive much of the road construction. He added that he loved the idea of someone thlnking about traffic and parking problems. C. Cooperrider stated that he .was. very concerned by the letter from the fire department and that he felt the applicant should consider alternative options. such as the. c.learing and trimm.ing of brush in order to facilitate access to emergency vehicles. He added that it was important for the Board to consider public safety. S. Rohrbach stated that she was ln -agreement :with C. 'Cooperrider. She added that after making a site visit, she had questioned whether there could be other areas cleared to allow for another pull-off-area. The Board members discussed potential road traffic and road visability with the close foliage. M. Ford confirmed with C. Cooperrider that what was being asked , for from the fire chief, would be recommendations should the Planning Board approve the subdivision keeping Calves Pasture Lane in its present condition. 1 PRELIMINARY PLANS Subdivision 47121 "Robert R. Churchill " Dick Baxter, of Baxter & Nye Engineering, was present to represent the applicant. He explained that the plan represented an open space l4 through four, page two, of the DPD report dated 07/10/89, and that rights of access be provided for the relocated Lothrop's- Lane in subdivision ##603, "West Parrish/Leeward Hills". S. Rohrbach asked if the Board needed to address that section of road which the developer of "West Parrish" was supposed to complete. J. PoIcaro confirmed that Mr. Boghos had requested that they not have to complete the section of road because with the approval of "Berkshire Trail " it would be torn up and changed. Joe Rodricks, of Schofield Brothers, explained the location of the piece of road in question. C. Cooperrider reread the letter from Stephen Seymour. J. Rodricks commented that Stephen Seymour was asking to have Lothrop's Lane reconstructed off the property owned by Cedar Street West Barnstable Realty Trust which they did not, at that point, have the right to do. B. Wilber and the other Board members discussed the issue further with Attorney Princi , Attorney Dunning and Mr. Boghos. B. Wilber marked and initialed on sheet two of five the exact northwest corner portion of road which Mr. Dunning would be responsible for top coating. MOTION was so voted unanimously. 3):�SUbtl 1 v i_e i C. Cooperrider 'read the report from the DPD dated 07/10/89, the letter from the Barnstable Fire Department dated 07/10/89, the Barnstable Fire District letter dated 06/ 15/89, and the letter fro_m 'abutter Dr. Jonas dated 06/20/89. Attorney Michael Ford was present to explain that. the public hearing for the definitive plan had been at the meeting of 06/19/89 and the plan taken under advisement. The direction the applicant had received from the Board had been to address the comments from Fire Chief Jones. He stated that Chief Jones' 07/10/89 letter addressed the safety concerns and that the applicant was asking for approval of the subdivision plan as well as approval of the requested waivers. J. Bartell confirmed that the public hearing had been closed at the 06/19/89 meeting. l5 i S. Rohrbach asked what effect the second request from the Fire Chief would have on how the road currently looked. Ed Kelley, land surveyor, was present to explain that he had made a site visit with the fire chief and that his main concern was with the height of the brush. He added that the fire chief did not have a concern with the water flow because there was not enough water flow on Scudder Lane in order to have water mains in the road. The main concern was access in and out of the area for the fire equipment. B. Wilber commented that In the Barnstable district water had to be applied for availability. . B. Wilber confirmed that the fire chief's recommendation was that the width was all right but to trim branches, not to. cut trees. M. Ford questioned the fire chief's third condition. J. Bartell stated that any further subdivision plans would be considered on their own. S. Rohrbach confirmed through Mr. Kelley that the first recommendation of the fire chief was that the road should .remain in its present repair and also that the property owners on.. the road should pay to have the road plowed. M. Ford clarified that it would mean that the road would be open through all seasons. C. Cooperrider confirmed that the road would be maintained to its current condition. MOTION was duly made by J. Polcaro and seconded by D. Martin that the Planning Board APPROVE the DEFINITIVE subdivision ##713, "Jilson", plan dated O1/31/89 and revised 04/03/89 8 05/22/89, subject to the grade and surface of.-the present road being maintained to be serviceable as a four season road, that the trees and brush be trimmed and maintained to a width of seven (7) feet from the center of the roadway on each side and no less than twelve ( 12) feet in height, all the requirements of the Board of Health, and that the applicant be granted a waiver of the drainage and road construction requirements. , So voted unanimously. 3) Subdivision 9573 ; Ardito Family Trust i J. Polcaro explained that he had been asked to explain in the developer's absence that the eight lot subdivision An question was located between two other subdivisions which contained overhead t�1 X • rt � I w • i • • ! � � � °FZHE t°�y Town of Barnstable, Massachusetts Department of Planning and. Development KA �`E' ` SS Office of The Planning Board t6 0 39• � ArfD MA'S A 367 Main Street,Hyannis,Massachusetts 02601 (508) 775-1120 ext. 190 July 11 , 1989 . r r Aune Cahoon, Town Clerk Town of Barnstable Town Hall -o 367 Main Street is Hyannis, MA 02601 rJ: Re: DEFINITIVE SUBDIVISION 4713 Grid Definitive Subdivision ##713; "Jilson"; Subdivision Plan of Land in Barnstable, Mass.to be Filed in the Land Court Shown As Lot 20 on Land Court Plan ##02950E Scale 1"=40' ; Plan dated 01/31/89, revised 04/03/89 8 05/22/89; Down Cape Engineering; 3 lots; located south off Calves Pasture Lane, west of Scudder Lane, Barnstable; Assessor's Map 259, parcel 1 . a At a duly posted meeting of the Barnstable Planning Board held July 10, 1989, it was voted to APPROVE the above captioned DEFINITIVE . subdivision plan subject to the following: 1 ) That the grade and surface of the present road be maintained to be serviceable as a four season road; 2) That the trees and brush be trimmed and maintained to a width of seven (7) feet from the center of the roadway on each side., and no less than twelveA 12) feet in height; 3) All the requirements of the Board of Health; 4) That the applicant be granted a waiver of the ,drainage and road construction requirements . Respectfully, osep E. Bartell , Chairman ` '' Ba able Planning Board I \\ jt tN 1 5.~p UPLAMp .64 PAttSN koo-s M�wsw boo i ` n• T-2 \ 2 3 � i.at-9 HPL^ND " 6 ""TaTAL t.i3AC,?8. S l7tr-S o i t c At / a a ` pit- a 'o N A cgyVi>; 14 I.66 Ms ROT ' 891C-S i.t2♦C-5 ~ 10 44 �-1+ .� 1 p LS jbpLq►vD j �" I 4, ro Of.WET C. o � - MARSH H �L 0 -1 4 - r 25 uo�AHo I ; t y� � 47 wFT (, �.,j •5 M.al'15M r �ti�l (� ^� � I.00 t.t Cl l 2 AC-S TOTAL - 1.44 mmcnow Of Cl �BARNSTABLE COARO.d� AaSESSOR ("'�6�-�•� n y 2 tea, % A`�I.r, AIRfAAP INC. I ``�. "SSACWJEETT3 CON�ECTIOJT 1 ��l k14 0(�e � --------------------- Celebrating 30 Years of Excellence;n Environmental Services 95 State Road December 14, 1999 Shards Bay,MA 0= (508)OW39M FAX(508)8804M Laurie A. Warren web-httpalwww.enscoom - Kilroy&Warren, P.C. 67 School Street P.O. Box 960 Hyannis, Massachusetts 02801-0960 8726-519 RE. Review of Wetland and Surface Water Flow Information Calves Pasture Lane, Lot 38 Barnstable, Massachusetts Dear Laurie: As requested, ENSR has reviewed the percolation test information provided by Down Cape Engineering, Inc. in addition to the field observations that we collected at the above- referenced site. It is our understanding that you are requesting a variance from the regulations governing required setbacks from jurisdictional wetland resource areas. The Barnstable Conservation Commission ("BCC") determined that the boundaries of the wetland resource areas, which were delineated by ENSR in 1998, were accurate. The BCC approved these boundaries for a three-year y period when they issued an Order of Resource Area Delineation (1NPA Form 413) on April 6, 1999. On several occasions from 1996 to 1999 ENSR observed conditions on Lot 38 and on adjacent lots for the purpose of wetland boundary delineation and to better understand surface water flow patterns. We concluded that the stream flows observed on Lot 38 - were intermittent in nature and that these flows originated from a scrub-shrub swamp located to the north of Lot 38. During significant storm events, and primarily during the winter and early spring, several channels directed surface water from this wetland onto Lot 38 and adjacent Lot 39. The water entered onto these properties through cross- culverts installed beneath Calves Pasture Lane. The stream located on the eastern half of Lot 38 was located within a relatively narrow shrub-dominated wetland plant community. We believe that it is the water from this stream that creates the conditions primarily responsible for the growth of wetland- indicator plants. The species most commonly observed in this bordering wetland community was northern arrowwood (Viburnum dentatum), a facultative-wetland indicator plant. Facultative plants have a 34-66 percent frequency of occurrence in wetlands or in upland communities (Wetland Indicatbrs, liner, 1999). Species including Morrow's honeysuckle (Lonicera morrowil) and eastern red cedar (Juniperus vt'rginiana) were also observed as part of the bordering wetland and adjacent upland. Both of these species are facultative-upland indicator plants. Facultative-upland plants have a 1-33 percent frequency of occurrence in wetlands (liner, 1999). According to the Barnstable County Soil Survey (Soil Conservation Service 198 ( soil survey"), Lot 38 is located within an area mapped'as a Boxford slit loam (3-8 percent ® Consultin 9 Engineering • Remedialion s e Laurie A Warren December 14, 1999 Page 2 slopes). The Boxford soil series is not listed as a hydric soil series according to Hydric Soils of New England (liner and Veneman, 1987). Permeability in the subsoil and substratum of these soils is typically slow or very slow due to the silty and clayey sediments within which these soils formed. ENSR's soil profile observations to depths of approximately 24 inches were consistent with information provided in the soil survey. It is likely that the percolation of surface water flowing down a slope comprised of these soils would be limited. These soil conditions would likely result in a perched water table, which would contribute to the conditions favoring the growth of a community of wetland-indicator plants. Down Cape Engineering reported that on Lot 38 during a percolation test that occurred June 3, 1999 the depth to groundwater observed in test hole 1 was greater than 18 feet. Similarly, in test hole 2 on July 6, 1999 the depth to groundwater was greater than 13 feet. From this information, it appears that groundwater is at a significant depth below the soil surface. ENSR believes that water at this depth would not be responsible for producing aquic conditions near the soil surface (i.e., the root zone) that would result in the growth of a characteristic community of wetland indicator plants. It Is our opinion that the surface water flow and not the presence of an elevated groundwater water table results in the aquic conditions exhibited by the bordering vegetated wetland on Lot 38. This opinion is based upon the following observations: • the predominance of facultative and some facultative-upland plants in the wetland community, • the reported depth to groundwater in the percolation test areas on the property, and • the permeability characteristics of the soils on this site resulting in a perched water table. If ENSR is able to provide you with additional services for this project, please do not hesitate to contact me. Sincerely, E R D. Michael Ba Wetland Scientist Cc: Ame H. Ojala, PE TOTAL P.03 ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. ATTORNEYS AT LAW MATTACHEESE PROFESSIONAL BUILDING 25 MID-TECH DRIVE,SUITE C WEST YARMOUTH,MASSACHUSETTS 02673 EDWA40 J.SWEENEY.JR. TELEPHONE(508)775-3433 RICHARD P.MORSE.JR, MINA M' B.STUSSE FAX(508)790-4778 BETSY NEWELL DONNA M. J.DUP SON PAUL R.TAROIFF' MATTHEW J.DUPUY CHARLES M.SABATT CHARLES J.ARDITO.P.C. 'alto admitted in MAINE PLEASE REFER TO FILE NUMBER December 14, 1999_ G4427X Barnstable Board of Health 367 Main Street Hyannis, Massachusetts 02601 Re: Lot 38 Calves Pasture Lane, Barnstable Village Dear Board Members: This office represents certain abutters to the above referenced parcel (hereinafter called locus). My clients oppose the issuance of any variances from Town of Barnstable Health Regulations Part VIII Section 1.00 as requested within the November 27, 1999 letter of DoNvn Cape Engineering, Inc. The reasons for my clients' opposition are set forth below. • The Board of Health previously decided that no variances would be granted. Locus was created in 1989 pursuant to a definitive plan approval issued by the Barnstable Planning Board. As a part of that process the Town of Barnstable Board of Health imposed requirements or limitations upon the definitive subdivision plan. Those requirements are set forth within a letter of the Barnstable Board of Health dated June 7, 1989, a copy of which is attached hereto as Exhibit 1. Among the requirements, the Board of Health provided as follows: The developer shall have recorded on the deed that variances from Title j, Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, or the Town of Barnstable Health Regulations whichever is more stringent will not be granted on any lot in this subdivision. • The Barnstable Planning Board incorporated the Board of Health letter of June 7, 1989 into its record. (See Exhibit 2 - Planning Board Minutes - June 19, 1989) Later, the Planning Board conditioned its definitive Plan approval upon "all the requirements of the Board of Health..." (See Exhibit 3 - Plan Approval, Condition 93) Accordin<71y, the Planning Board approval for the subdivision creating lot 38 is predicated upon the Board of Health requirement that no variances would be granted. Ir• 13'arnstable Board of Health December 14, 1999 e�)a(-�e 2 The proponents of the subdivision plan, namely Harry C. and Sus-ii.R:-Jilson, are the current record owners of the locus. As is apparent from the Planning Board minutes, the Jilson's accepted the requirements of the Board of Health precluding variances. Furthermore, the abutters to locus relied upon the Board of Health requirements when thev agreed to support the Jilsons' request for waiver of the drainage and road construction requirements. Had it not been for the Board of Health requirements imposing a restriction on the granting of variances, my clients would not have supported the Jilsons' subdivision plan. • Denial of a variance will not cause a manifest injustice. Part VIII, Section 1 existed on June 7, 1989 when the Board of Health imposed its requirements ultimately incorporated by the Planning Board. The present applicants had knowledge of the Board of Health requirements contained within its letter of June 7, 1989, since these requirements are a matter of public record and are among the conditions included within the Planning Board approval. Furthermore, it should be noted that the engineer representing the applicants in their current request for variances is the same engineer who prepared the Jilsons' subdivision plan. • The applicants are not record owners of locus, but rather are assignees of a mortgage on locus, having taken the assignment on April 23, 1998. Unlike other applicants who request variances from the Board of Health, the applicants in this case have not recently learned of their inability to construct a subsurface disposal system upon preparation of construction plans. On the contrary, the Board of Health requirements of June 7, 1989 put these applicants on notice as to the limitations to which locus would be subject. • The ;ranting of a variance will result in manifest injustice. The Planning Board approval is predicated upon the Board of Health requirements precluding issuance of a variance. The abutters to locus relied upon that restrictive requirement in withholding opposition to the Jilsons definitive subdivision plan and in supporting their request for waivers of the drainage and road construction requirements. Thank you for your courtesy in this matter. Respectfully. Charles NV1. Sabatt CtilS:lcs � 1 Nov-25-98 09 : 50 BARNSTABLE HEALTH DEPT 5087906304 P . Ol THE DATE-' I Ira�1 vx BY 1999 : . \�� y Town of Barnstable . TOt4^�rOFBgRNSTggLE e,� SSHEU. DATE-40i PT. Board Urf Heal�� 367 Mein Street, Hyannis NIA 026,01 _ / offiicc: 5C3.790-626: Susan G.qu,%.R.S FAX: 338•7,92.6304 Sunrcr Kauf^an.M S P F.a;pt,A.Murph,:,` -D. V�RfA.NCE RZOITEST FORM LOCATION F:ope,: Address. _— 3 Pj G�v�[f�'S iK 1 11 C_ L—►`I . Assessor's 12ap and Parcel\umber: Z Size of Lot: Wetlands Within 300 Ft. Yes k_ Subdivision`Name: No Business tame —_ --- __ APPLICAN ' CONTACT PERSON 'Jame: ye.��2tac ��-�r"� Name: Address: �o� s"It'D° S t t"I4�ti1ls Address: _. P-one: 0 o Phone: FAX: FAX: — VARIANCE F.OQARF; I A I N!,L;a t::_.` REASON FOR VARIANCE(ktay u-tsch tfmore sp1t: tiled) SQc,�o.F--i t t v J -- _- — �' .arscr rzc,r,.lr.r arrance re! S A� xri u;he;unt. .tr_✓ r a;,,cc tct7- �__ Four t4)topics of plan subrr.iaed:inc:uding Fe;dic system ^la Applicni r,de:s!znds tha:the abcaers mus:be n�6`,.rd hN ce 1- Cate a: ape:scan :Xpensc(for T:tle V a.-Acr 10C.3i s2,Nal..e Full menu submitted;fcr grease trap vsria;i:e. or.k) _ Variance request appk463r feecoliec:.dr e,r,n�•:vrrn: c+•r+e!f�..�:.:r:�r.a:i.srx net.;.cf[v�r::�:e.:o reDrir fr::<c Neu a;c lnx,.a�: � ,^. Variance request ubmitred at !east '5 days prior fo meetin4 IVSY` VAR1AN-1-=1 AI'PRJV;.D NOT APPROVED -- —_ ,SON FCP, D'SA?FROVA` sS/ O TOWN OF BARNSTABLE OFFICE OF asarsT MA/& BOARD OF HEALTH >� 16;q. \ 367 MAIN STREET 'F0 MAX� HYANNIS, MASS. 02601 June 7, 1989 Mrs. Susan H. Rohrbach Re: Definitive subdivision plan of landin Barnstable Chairperson, Planning Board Petitioner: Harry and Susan R. Jilson Barnstable Town Hall Date: January 31, 1989 - Revised April 31, 1989 Hyannis, Ma 02601 Revised may 22, 1989 Engineer: Down Cape Engineering, Inc.- Assessor's map 259, Parcel I ® Dear Mrs. Rohrbach: The Board of Health has reviewed this definitive subdivision plan in Barnstable and makes the following recommendations: The developer must provide public water to each and every lot in this subdivision. Public water lines and all connections must• meet specifications and/or rules and regulations of the local water department. Each septic system shall be located within the prescribed boundaries of each individual lot. The developer shall have recorded on the deed that variances from Title 5, Minimum Requirements for the Subsurface Disposal of Sanitary.Sewage, or the Town of Barnstable Health Regulations whichever is more stringent, will not be granted on any lot in this subdivision, A percolation test must be made on the lot at leaching site, before a Disposal Works Construction Permit will be issued. Maximum ground water elevations must be determined by using data available from the United States Geological Survey - Probable High Ground Water Levels on Cape Cod, Mass. Each proposed septic system must conform strictly to 310 CMR 15.00, the State Environmental Code, Title 5, and Town of Barnstable Rules and Regulations. All tree stumps, brush and building debris removed when clearing lots or roads must be disposed of at a licensed solid waste disposal facility. Chipping brush and tree stumps is an acceptable alternative. Burial on site is prohibited. The applicant must receive an Ordar of Conditions from the Conservation Commission, if applicable. It is recommended that each sewage disposal leaching facility be located most . distant from wetlands to reduce eutrophication caused by phosphorous and other nutrients. The United States Environmental Protection Agency's ..National Eutrophication Survey states' that"0.25 '1bs " per"`;eAr of total phosphorous .enters wetlands from every person served by onsite septic. systems within 300_,feet . wetlands (US EPA 1983). Very truly yours, Grover C. M. Farrish, M.D. Chairman Ann Jane E baugh _M Affies H. Crocker, Sr. BOARD OF HEALTH TOWN OF BARNSTABLE TM/bs cc: Harry and Susan Jilson Down Cape Engineering, Inc. Town Clerk Health Department Conservation Commission Barnstable Fire and Water.District v t ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. ATTORNEYS AT LAW MATTACHEESE PROFESSIONAL BUILDING 25 MID-TECH DRIVE.SUITE C WEST YARMOUTH, MASSACHUSETTS 02673 EDWARD J.SWEENEY.JR. TELEPHONE(508)775-3433 RICHARD P.MORSE.JR. MICHAEL S.STUSSE FAX - DONNA M.ROBERTSON 508( )7904778 BETSY NEWELL MATTHEW J.DUPUY PAUL R.TARDIFF' CHARLES M.SABATT u CHARLES J.ARDITO.P.C. 'also aandied in AnAiPiE PLEASE REFER TO FILE NUMBER December 14, 1999 G4427X Barnstable Board of Health 367 'Main Street Hyannis, 'Massachusetts 02601 Re: Lot 38 Calves Pasture Lane, Barnstable Village Pear Board Members: This office represents certain abutters to the above referenced parcel (hereinafter called !ocus). 'ly clients oppose the issuance of any variances from Town of Barnstable Health Re`,ulations Part VIII Section 1.00 as requested within the November 27, 1999 letter of Down Crape Engineering, Inc. The reasons for my clients' opposition are set forth below. • The Board of Health previously decided that no variances would be granted. Locus was created in 1989 pursuant to a definitive plan approval issued by the Barnstable Planning Board. As a part of that process the Town of Barnstable Board of Health imposed requirements or limitations upon the definitive subdivision plan. Those requirements are set forth within a letter of the Barnstable Board of Health dated June 7, 1989, a copy of which is attached hereto as Exhibit 1. Among the requirements, the Board of Health provided as follows: The developer shall have recorded on the deed that variances from Title j, Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, or the Town of Barnstable Health Regulations whichever is more stringent will not be granted on any lot in this subdivision. v • The Barnstable Planning Board incxirporated the Board of Health letter of June 7, 1989 into its record. (See Exhibit 2 - Planning Board Nfinutes - June 19, 1989) Later, the Planning Board conditioned its definitive Plan approval upon "all the requirements of the Board of Health..." (See Exhibit 3 - Plan Approval, Condition 93) AccordingIv, the Planning) Board approval for the subdivision creating lot 38 is predicated upon the Board of Health requirement that no variances would be granted. s' y` Barnstable Board of Health December 14, 1999 I'a,e 2 The_proponents of the subdivision plan, namely Harry C. and'$u ,:;�.R., Tils0r,-`are`the" current record owners of the locus. As is apparent from the Planning Board minutes, the .. Jilson's accepted the requirements of the Board of Health precluding variances. Furthermore, the abutters ro locus relied upon the Board of Health requirements when they agreed to support the Jilsons' request for waiver of the drainage and road construction requirements. Had it not been for the Board of Health requirements imposing a restriction on the granting of variances, my clients would not have supported the Jilsons` subdivision plan. • Denial of a variance will not cause a manifest injustice. Part VIII, Section 1 existed on June 7, 1989 when the Board of Health imposed its requirements ultimately incorporated by the Planning Board. The present applicants had knowledge of the Board of Health requirements contained within its letter of June 7, 1989, since these requirements are a matter of public record and are among the conditions included within the Planning Board approval. Furthermore, it should be noted that the engineer representing the applicants in their current request for variances is the same engineer who prepared the Jilsons' subdivision plan. • The applicants are not record owners of locus, but rather are assignees of a mortgage on locus, Navin, taken the assignment on April 23, 1998. Unlike other applicants who request variances from the Board of Health, the applicants in this case have not recently learned of their inability to construct a subsurface disposal system upon preparation of construction plans. On the contrary, the Board of Health requirements of June 7, 1989 put these applicants on notice as to the limitations to which locus would be subject. • The <,rantinv of a variance will result in manifest injustice. The Planning Board approval is predicated upon the Board of Health requirements precluding issuance of a variance. The abutters to locus relied upon that restrictive requirement in withholding opposition to the Jilsons definitive subdivision plan and in supporting their request for waivers of the draina�,e and road construction requirements. Thank you for your courtesy in this matter. Respectfully. Charles `1: Sabatt CNIS:Ics LAW OFFICES OF PAUL REVERE , III 226 River view Lane Centerville, Massachusetts 02632 (508) 778-7126 April24,'2000 , Tom McKean, RS, CHO Health Agent Health Department Town of Barnstable New Town Hall 367 Main Street Hyannis, Massachusetts 02601 RE: Constructive Approval of Applications for Septic System Disposal Permits Lots 38 and 39, Calves Pasture Lane, Barnstable Village And Notice of Claim For Taking of Property Without Compensation Dear Mr. McKean: Massachusetts General Law Chapter 111, Section 31 E ("Section 31 E") provides that an application for a sewage disposal system "shall be deemed to have been granted" if a local board of health fails to provide a written decision to the "applicant" within 45 days of the board's receipt of a completed permit application. The Barnstable Board of Health ("Board") did not issue a written decision to the applicant disapproving the ._ permit applications for Lots 38 and 39, Calves Pasture Lane, Barnstable within the required 45 day period. Therefore, the permits have been granted for both lots and the applicants will be sending a representative to pick up the permits by the end of this week. Additionally, you should be aware that, if the Health Department, refuses to issue these permits as required by Section 31 E for either lot, an appeal will be filed. The appeal will include the Jfollowing requests: (i) a declaration that the permits were granted pursuant to Section 31 E; (ii) a declaration that the Town of Barnstable ("Town") unlawfully (or ineffectively) attempted to impose restrictions on the granting of variances for septic systems on the lots and requiring a public water supply for each lot; (iii) a declaration that the Board regulations requiring a 100 foot setback from wetlands and .150 feet from private wells are invalid; (iv) a determination that the Board acted. unlawfully when it denied a permit for each lot; and (v) a judgment including an award of damages because the application of the Board's regulations to the lots 1 and/or the failure to timely grant a permit constituted a temporary or permanent taking of property in violation of the civil rights of the applicants under the United States and Massachusetts Constitutions. 1. Grant of Permits by Inaction Y To ensure protection of investment-based. expectations and to prevent boards of health from rendering the development of property uneconomic through delay, Massachusetts provides a 45 day time period in,which a board of health must act on a permit application. Specifically, Section 31 E provides: Any health officer or board of health for any city, town or district, whose authority includes the issuance of permits for construction, maintenance or alteration of individual sewage disposal systems for residential buildings . . . shall act upon a completed application for such permit to construct, maintain, or alter such system within forty- five days from the date upon which such completed application is filed with said health officer or board of health. If a determination on a completed application is not rendered within forty-five days by the appropriate health officer or board of health, then said permit shall be deemed to have been granted. For the purpose of this section, "action on a completed application" shall mean approval of said application and issuance of the permit to construct, maintain, or alter, or disapproval of said application with a written statement of the reasons for such disapproval. The written statement of reasons, in the case of disapproval shall be sent to the applicant by first class mail, postage prepaid and shall include the information necessary in order to ascertain why the application or the proposed subsurface sewage disposal system or both fail to comply with local or state code requirements. . . . M.G.L. ch. 11-1, Sec. 31 E (emphasis supplied). Thus, by its express terms, Section 31 E requires a board of health within 45 days of the submission of a permit application to either issue a permit or a written disapproval to the "applicant." The provisions of Section 31 E apply to applications that include variance requests. 310 C.M.R. 15.411(4).' Here, the Board failed to issue a disapproval for either lot in accordance with the requirements of Section 31 E and, v ' 310 C.M.R. 15.411(4) provides: "A request for a variance for a residential facility with four units or less(as described in M.G.L. c. 111, §31 E) shall be deemed constructively approved by the local approving authority if the local approving authority does not act upon it within 45 days of receipt of a complete application. . . . .. 2 therefore, the permits and variance requests have been granted pursuant to Section 31 E. A. Grant of Permit for Lot#38 The applicant for a septic system on Lot #38 is Laurie_ Warren. Ms. Warren filed her . T application for a sewage disposal system permit on November 30, 1999. The application requested a variance from the Board's 100 foot wetland setback regulation.Z The septic system met all of the requirements of the state environmental code and, therefore, the permit application did not request a variance from state Title 5 requirements. After public hearings on December 14, 1999, and January 18, 2000, a revised plan was submitted on January 27, 2000, to the Board. On February 3, 2000, the Board heard further public comments on the application. Not a single comment from the neighbors or the Board at any of the hearings addressed the environmental impact of the proposed system. Rather, the Board and the neighbors focused exclusively on whether the Board should consider variances for the lot and whether the failure to grant a permit would constitute an injustice. The Board then voted at the February 3, 2000, meeting to deny a permit to the applicant. On March 12, 2000, at the latest, the 45 day time period to mail a written decision provided in Section 31 E expired and, on March 19, 2000, more than 45 days elapsed since the public hearing and the Board's vote to deny the permit application. Thus, by March 12, 2000 (and without question by March 19, 2000), the permit application for Lot #38 was granted pursuant to Section 31 E. By letter addressed to the applicant (Laurie Warren) dated March 24, 2000,3 the Board finally provided "a written statements of the reasons for such disapproval." This letter was wholly ineffective because it is dated and was mailed after the 45 daytime period expired. Therefore, the septic system permit for Lot #38 has been granted. The applicant, Laurie Warren, will be sending a representative to pick up the permit by the end of this week. B. Grant of Permit for Lot #39 The applicant for a septic system on Lot #39 is Christopher Kuhn. Mr. Kuhn filed his application for a sewage disposal system permit on December 29, 1999. The application requested a variance from the Board's 100 foot wetland setback 2 On page 2 of its letter denying the permit application, the Board states that the applicant failed to apply for a variance from the local requirement for a 100 foot setback from wetlands. A review of the original application and the final revised plan shows that both expressly requested variances for each component of the"sewerage disposal system." In addition, the system and each of its components, and the wetlands on the lot as confirmed by the Conservation Commission are shown on the final revised plan for the Lot #38. Thus, it is ludicrous to assert that the applicant did not request such a variance. 3 The letter appears to have been mailed somewhat later as it was received by the applicant's Hyannis office on March 29, 2000. 3 regulation 4and the Board's 150 foot well setback regulation. The septic system met all of the requirements of the state environmental code and, therefore, the permit application did not request a variance from state Title 5 requirements. A revised plan was submitted on February 22, 2000, to the Board. On March 13, 2000, the Board held a public hearing. Not a single comment from the neighbors or the Board at the hearing addressed the environmental impact of ;the proposed system on wetlands: _... Rather, the Board and the neighbors focused on: (i) whether the applicant had sufficiently demonstrated that the groundwater flow in the vicinity of the septic system was, away from a neighbors' well; (ii) whether the Board should even consider variances for the lot; and (iii) whether the failure to grant a permit would constitute an injustice. The Board then voted at the March 13, 2000, meeting to deny a permit to the applicant. On April 7, 2000, at the latest, -the 45 day time period to mail a written decision provided in Section 31 E expired. Thus, on April 7, 2000, the permit application for Lot #39 was granted pursuant to Section 31 E because, by that date, no "written statement of reasons" had been mailetl to the "applicant." The applicant, Christopher Kuhn, will be sending a representative to pick up the permit by the end of this week.' 2. Appeal of Denial and Takings Claim If the Health Department, refuses to issue these permits as required by Section 31 E for either lot, an appeal will be filed. The appeal will include the following requests: (i) a declaration that the permits were granted pursuant to Section 31 E; (ii) a declaration that the Town of Barnstable ("Town") unlawfully (or ineffectively) attempted to impose restrictions on the granting of variances for septic systems on the lots and requiring a public water supply for each lot; (iii) a declaration that the Board's regulations requiring a 100 foot setback from wetlands and 150 feet from private wells are invalid; (iv) a determination that the Board acted unlawfully when it denied a permit for each 4 On page 2 of its letter denying the permit application,the Board states that the applicant failed to apply for a variance from the local requirement for a 100 foot setback from wetlands. A review of the original application and the final revised plan shows that both expressly requested variances for each component of the"sewerage disposal system." In addition, the system and each of its components, and the wetlands on the lot as confirmed by the Conservation Commission are shown on the final revised plan for the Lot #39. Thus, it is ludicrous to assert that the applicant did not request such a variance. 5 The Board did send a letter to Down Cape Engineering dated March 22, 2000, purporting to deny the permit and explaining the reasons for the Board's attempted denial of the permit application. The applicant, Christopher Kuhn, first learned of this letter on April 10, 2000, after his attorney reviewed the' Board's file for this lot on April 10, 2000, and forwarded a copy of the letter to him. This letter was wholly ineffective in preventing the 45 day time period from expiring. In particular, Section 31 E requires that"the written statement of reasons, in the case of disapproval shall be sent to the applicant by first class mail, postage prepaid." (emphasis supplied). Here, Christopher Kuhn was listed with his address as the "applicant"for the lot in the permit application.`The written statement had to be mailed to him, not to Down Cape Engineering, to be effective. Because it was not, the March 22, 2000, letter did not prevent the 45 day time period from expiring. The necessity of mailing the"written statement" to the"applicant" is illustrated by this matter wherein the applicant, Mr. Kuhn, was completely unaware of the letter until nearly 20 days after its date. 4 lot; and (v) a judgment including an award of damages because the application of the Board's regulations to the lots and/or the failure to grant a permit constituted a temporary or permanent taking of property in violation of the civil rights of the applicants under the United States and Massachusetts Constitutions. A brief summary of the claims (except for the Section 31 E claim) follows. A. Restrictions on Variances and Public Water Supply As part of the hearing on each lot, there was significant discussion regarding whether the Planning Board and the Board imposed restrictions on the granting of variances for septic systems on the lots and also requiring a public water supply for each lot when the subdivision creating Lots #38 and #39 was approved in 1989. For each lot, the Board concluded that such a restriction had been placed upon the lots by a Board letter dated June 6, 1989. The applicants believe that such a restriction was never placed upon the lots. First, the Planning Board's approval of the subdivision does not reference or incorporate by reference the June 6, 1989, Board letter which purports to impose restrictions on variances and require a public water supply. The Planning Board's approval simply states that the approval is subject to "All requirements of the Board of Health." This language cannot be construed to bind the applicants to meet the requirements of the June 6, 1989 letter. Second, the restrictions attempted to be imposed by the Board were deemed unlawful in Fairbairn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171 (1978). In particular, the Fairbairn case unequivocally states "the board of health [in its letters to the Planning Board] would be acting prematurely and unreasonably if it were to take any action with respect to [Title 5] other than requiring the planning board to endorse a condition on the definitive plan to the effect that no dwelling shall be built on any lot without first securing from the board of health the disposal works construction permit required by the code." Fairbairn, at 185 (citations omitted and emphasis supplied). Here, in direct contravention to the Fairbairn decision, the Board attempted to impose requirements on septic systems and public water supply for these lots through the June 6, 1989 letter. Applicants will request that the court declare these attempted restrictions void. In this regard, you should note that the Board has attempted to incorporate these requirement in virtually every subdivision approval since the early 1980s. The applicants will seek a declaration that this restriction is invalid which will have the- affect of removing this impediment to development for numerous subdivisions." Third, the attempt to impose a requirement to provide public water exceeded the Board's authority under its regulation. The 1989 Board promulgated a regulation on May 23, 1989, Part XII, Section 3.00, Section 19 (the 1989 Water Regulation"), which " In this regard, applicants may consider requesting that they be considered representatives of the class of land owners to whom the Board has attempted to impose these restrictions and, in that capacity, may request relief for like-situated parties such as notice to all affected property owners. 5 provides that: "The Board of Health may at its discretion require single family, multi- family, or commercial structures located within 300 feet of a municipal water line, to connect to municipal water." Here, Lot #38 and the proposed dwelling are located more than 400 and 600 feet, respectively, from Scudder Lane, the near water main.' Lot #39 is located an even greater distance from Scudder Lane. This distance is more than twice_the distance specified_in the 1989 Water Regulation and imposing this requirement exceeded the Board's authority. B. Invalidity of Board Regulations The Board regulations requiring a 100 foot setback from wetlands and 150 feet from private wells have been in effect since 1973 and 1974, respectively. Since that date, Title 5 regulations have been completely revised at least twice (1978 and 1995). Massachusetts General Law Chapter 111, Section 31 requires that a board of health provide a specific justification based on local conditions for local board requirements that are more stringent than Title 5 requirements. The above regulations have been in effect for nearly 30 years and yet the Board has never justified why local conditions require these more stringent setbacks under the revised Title 5 standards. In this regard, it should be noted that a variance is required for both the lots due to post-1974 changes to the definition of wetlands and Title 5 changes which require that the septic tank flow to a soil absorption system rather than a leaching pit. The applicants will seek a declaration that the Board's setback regulations have been preempted by the amendments to Title 5. If the setback restrictions are declared invalid, it will have the affect of removing this impediment to development on numerous lots throughout the Town. C. Improper Denial of Permits As discussed above, the record does not support the Board's denial of the permits on an environmental/public health basis. To obtain a variance the applicants need only show equivalent environmental protection and manifest injustice. With respect to both lots, the Board made no finding at the hearing (nor could they plausibly) that either system affected the nearby wetlands." Rather,-the Board simply held that they would not allow variances from septic system requirements or the need to provide a public 'The Property is located approximately 400 feet from the water supply line. 8 With respect to Lot#39, some concerns were raised regarding a well on the corner of an adjacent four acre or more property. While the applicant submitted the opinion of a geologist stating that groundwater flowed away from the well based on the water elevations found in the test holes, the Board expressed concern that the applicant had not adequately demonstrated that the groundwater was not flowing toward the well. While the Board's justification seems to make some sense in the abstract, the well on the neighbors'over 4 acre property is uphill from the septic system and the adjacent salt water marshes of West Barnstable. Thus, the Board seemed to want a detailed scientific study to prove the obvious; namely, fresh groundwater does not percolate from a salt marsh to an adjacent upland area which is greater than 25 feet above sea level. Simply, the position of the Board is unsupportable. Furthermore, the Board essentially has allowed the neighboring property owner to render Lot#39 unbuildable by his placement of his well in the corner of his more than four acre lot. 6 water supply on the lots due to the June 6, 1989 letter and because the applicants had not demonstrated "manifest injustice." As explained to the Board, it is impossible to place a system of any capacity on the greater than one acre lots without a variance. The current septic system regulations require a field type soil absorption. These systems require considerably more area than a leaching pit absorption system which was allowed prior to 1995. Thus,-the decision of the Board that no variances will be granted for the lots rendered them unbuildable and has deprived my clients of any economically beneficial use of.the lots since they do not own adjacent property nor are they suitable for any use other than a single family home. Such deprivation constitutes "manifest injustice Therefore, the applicants were entitled to a variance for both lots. The Board also stated that it would require a public water supply for the lots pursuant to the June 6, 1989 letter, and gave no public health justification. Rather, the Board stated that the applicants had not shown manifest injustice. The applicants presented the following evidence to the Board. A water main runs down Scudder Lane. The Barnstable Fire District Water Department informed the applicants that they would not be allowed to connect at Scudder Lane due to insufficient water pressure. Thus, to connect to public water according to the Fire District, the applicants would need to run a line of at least a half mile to Scudder Lane and reconnect all existing homes to the line. Not only is the cost of such a line economically infeasible for two lots and would benefit numerous other lots, but further the applicants have no right to engage in such work in a public way, namely Scudder Lane. In summary, the applicants adequately demonstrated that it would constitute "manifest injustice" to require than to connect to public water, yet the Board refused to allow a variance. D. Taking of Property The applicants own an interest in two lots which were buildable when they were subdivided. These lots are not postage stamps. Each are approximately 1.5 acres and contain over an acre of upland. The Town has assessed taxes on each lot as if they were buildable. Given their locations and the current real estate market, the retail value of these lots is significant. The actions of the Board have rendered both lots unbuildable. The denial of the permit applications was not based upon any public health impact. Thus, the Board's decision has taken the applicants' property. The United States and Massachusetts Constitutions prohibit the government from taking private property without-.compensating the owners." The applicant's appeal will claim that the Board's actions took their property either: (i) on a temporary basis if the Board's decision is reversed; or (ii) on a permanent basis if the Board's decision is upheld. Because this letter addresses numerous legal issues, I have provided a copy to Robert ' Deprivation of"substantially all beneficial use" constitutes"manifest injustice sunder Title 5. 310 C.M.R. 15.410(2). 10 In this regard, the applicants are considering whether to sue the Board members in both their official and individual capacities. 7 Smith for his review. If you have any questions, please feel free to contact me. Very truly yours, - Paul Revere, III cc: Robert Smith, Esq. John Klimm v 8 �oEVE lti Town of Barnstable y� 0 STAB Department of Health, Safety, and Environmental Services BARN ,' : ,�� Public Health Division �fD MA'�A P.O.Box 534,Hyannis MA 02601 Office: 508-8624644 Thomas A.McKean,RS,CHO FAX: 508-790-6304 Director of Public Health,. January 19,2000 TO: Robert Smith Town Attorney FROM:Thomas McKean,Health Agent RE: Lot 38 CALVES PASTURE LANE/ QUESTION FROM THE BOARD OF HEALTH On November 30, 1999,Laurie Warren submitted a variance request application to the Board of Health requesting variances from Board of Health Regulations VIII and XII regarding separation distances between a proposed leaching facility and vegetated wetlands and concerning separation distance between a proposed septic tank and an onsite well. On June 7, 1989, the Board of Health reviewed a definitive subdivision plan which included the above referenced vacant lot and wrote a letter to the Planning Board which included the following language: • The developer must provide public water to each and every lot in the subdivision. • The developer shall have recorded on the deed that variances from Title 5,Minimum Requirements for the Subsurface Disposal of Sanitary Sewage,or the Town of Barnstable Health Regulations,whichever is more stringent,will not be granted on any lot in this subdivision. I telephoned Jackie Etsten at the Planning Department Office today to inquire whether or not the Planning Board accepted these recommendations. She will call me tomorrow with a reply. LEGAL QUESTIONS 1) Can the Board of Health rescind the public water connection recommendation in this particular case although this recommendation was recorded in 1989 in their letter to the Planning Board by previous Board of Health members(James Crocker and Ann Jane Eshbaugh)? 2) Can the Board of Health rescind the no variance clause in this particular case although this recommendation was recorded in 1989 in their letter to the Planning Board by previous Board of Health members(James Crocker ansl Ann Jane Eshbaugh)? This matter is scheduled to be continued at Board of Health meeting on February 3,2000. Please advise. J:calves.doc l 4: r �ppTHE T�ti ` UA&& � Town of Barnstable 9�A i639• A,O$ Board of Health 367 Main Street, Hyannis MA 02601 Office: 508-862-4644 Susan G. Rask, R.S. FAX: 508-775-3344 Ralph A. Murphy,M.D... Sumner Kaufman,MSPH March 24, 2000 Ms. Laurie Warren, Esquire 67 School Street Hyannis, MA 02601 RE: Lot 38 Calves Pasture Lane, Barnstable Dear Ms. Warren: Your request for variances from Part VIII, Section 1.00, to construct an onsite sewage disposal system leaching only seventy (70) feet away from wetlands at Lot 38 Calves Pasture Lane, Barnstable, is not granted. The variances are not granted due to the following: • The Board of Health previously decided that no variances would be granted pursuant to a definitive plan approval issued by the Town of Barnstable Planning Board. As part of the subdivision approval process, the Board of Health imposed requirements and limitations upon the definitive subdivision plan. Those requirements are set forth within the letter of the Barnstable Board of Health dated June 7, 1989. Among the requirements, the Board of Health specifically stated: The developer shall have recorded on the deed that variances from Title V, Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, or Town of Barnstable Health Regulations, whichever is more stringent will not be granted on any lot in this subdivision. The Town of Barnstable Planning Board incorporated the Board of Health letter of June 7, 1989 into its record. Later, the Planning Board conditioned its definitive plan approval upon "all the requirements of the Board of Health ..." Accordingly, the Planning Board approval for the subdivision creating Lot 38 Calves Pasture Lane is predicated upon the Board of Health requirement that no variances would be granted. During the public Board of Health meeting held on March 13, 2000, Attorney Paul Revere, testified that the applicant who is a lawyer with expertise in real estate law, was aware of the conditions imposed in regards to the June 7, 1989 Board of Health requirements and limitations. The present applicant had knowledge of the Board of Health requirements contained within its letter of June 7, 1989. Furthermore, these requirements are a matter of public record and are 38calves among the conditions included within the Planning Board approval. The applicant, Laurie Warren, is an attorney whose practice includes real estate transactions. In addition, it should be noted that the engineer representing the applicant in this current request for variances is the same engineer who prepared the subdivision plan for the proponents of the subdivision plan, Harry C. and Susan R. Jilson. Therefore, denial of a variance will not cause manifest injustice. •_, A site visit was conducted by Board of.Health members and,.by-.Edward Pesce, P.E.; Senior - Environmental Engineer for Horsley and Witten, Inc. It was found that several wetland areas on the site connect to other water course/wetlands areas to the north and east of the parcels via culverts under Calves Pasture Lane. Based upon this information and the Town's definition of water courses, that the wetlands shown on the plan dated April 5, 1999 prepared by Down Cape Engineering, Inc. are indeed watercourses. Dr. Jo Ann Muramoto of Horsley and Witten, Inc. also conducted a site visit to confirm this position. Dr. Muramoto has extensive experience in this area of wetland and watercourse definition through her four years of tenure as the Town of Falmouth Conservation Agent. Her memorandum dated August 12, 1999 explains that 310 CMR 15.01 Definitions defines water course as: "Any natural or man- made stream, pond, lake, wetland, coastal wetland, swamp. or other body of water and shall include wet meadows, marshes, swamps, bogs, and areas where groundwater, flowing or standing surface water or ice provide a significant part of the supporting substrate for a plant community for at least five months of the year." According to this definition of "watercourse" the Bordering Vegetated Wetland shown on the plan revised 4/5/99 is a watercourse because it is a wetland ( a swamp) which contains a wetland plant community for at least five months of the year(a growing season), and is supported by groundwater and flowing surface water. On the basis of the definition of watercourse, which is part of the Board of Health's Regulations, there is a significant area of watercourse on lots 38 and 39 Calve's Pasture Lane, Barnstable, MA. The boundary of the bordering vegetated wetland is the boundary of the watercourse. • The proposed soil absorption system is proposed to be located only seventy (70) feet away from the wetlands/watercourse. Also, the septic tank is proposed to be located only fifty-six (56) feet away from the wetlands/watercourse. The applicant failed to request a variance from the Board of Health Regulation PART VIII, SECTION 1.00 which requires a minimum separation distance of 100 feet between septic system components and the wetlands/watercourse. • The applicant also requested permission to install an onsite private well at this lot. However, the Board of Health previously decided that public water shall be provided pursuant to a definitive plan approval issued by the Town of Barnstable Planning Board. As part of the subdivision approval process, the Board of Health imposed requirements and limitations upon the definitive subdivision plan. Those requirements are set forth within the letter of the Barnstable Board of Health dated June 7, 1989. Among the requirements, the Board of Health specifically stated: The developer must provide public water to each and every lot in this subdivision. Public water lines and all connections must meet specifications and/or rules and regulations of the local water department. The Town of Barnstable Planning Board incorporated the Board of Health letter of done 7, 1989 into it's record. Later, the Planning Board conditioned it's definitive plan approval upon "all the requirements of the Board of Health..." Accordingly, the Planning Board approval for the subdivision, creating Lot 39 Calves Pasture Lane, is predicated upon the Board of Health requirement that no variances would be granted. 38calves e! rlip During the public Board of Health meeting held on February 3, 2000, Attorney Paul Revere stated the applicant was aware of the conditions imposed in regards to the June 7, 1989 Board of Health . requirements and limitations. The present applicant had knowledge of the Board of Health requirements contained within it's letter of June 7, 1989. These requirements are a matter of public record and are among the conditions included within the Planning Board approval. The applicant, Laurie Warren, is an attorney whose practice includes,real estate transactions. In addition, the engineer representing the applicant in this current request for variances is also the same engineer who prepared the subdivision plan for the proponents of the subdivision plan, Harry C. and Susan R. Jilson. i You are reminded that variances may be granted only when, in the opinion of the approving authority: (a) The person requesting a variance has established that enforcement of a provision from which a variance is sought would be manifestly unjust, considering all of the relevant facts and circumstances of the individual case; and (b) The person requesting a variance has established that a level of environmental protection that is at least equivalent to that provided can be achieved without strict application of the Board of Health regulations from which variances are sought. You failed to establish manifest injustice and you did not establish that a level of environmental protection that is at least equivalent to that provided by the Board of Health Regulations can be achieved without strict application of the Board of Health Regulations from which variances are sought. Further, as pointed out by the applicant, under the Board of Health's On-Site Sewage Disposal Construction Part VIII: Onsite Sewage Disposal Regulations Section 10.00 Onsite Sewage Disposal Construction adopted 6/11/91, became effective 6/11/91, revised 2/11/92, the Board has discretion to adjust the setback requirements appropriately to protect the environment and the public health. Based upon the evidence presented, the Board of Health finds no justification for adjusting the setbacks closer than the 100 feet established under the applicable regulation. Therefore, your request for variances is not granted. Sincerely yours, usan G. Rasl ., C airperson Board of Health Town of Barnstable SGR/bcs 38calves P�oFtHETp�� Town of Barnstable O� Department of Health, Safety, and Environmental Services BARNSTABLE, 9� '� ��� Public Health Division °rfn MAC a P.O.Box 534,Hyannis MA 02601 Office: 508-862-4644 Thomas A.McKean,RS,CHO FAX: 508;790-63.04 —Director-of Public Health April 25,2000 Mr. Paul Revere, III,Esquire Law Offices Of Paul Revere, III 226 River View Lane Centerville, MA 02632 Dear Mr. Revere, In response to your letter addressed to me dated April 24, 2000, the Board of Health stands by its previously-issued decisions of February 3, 2000 and March 13, 2000 regardin- Lots 38 and 39 Calves Pasture Lane, Barnstable Village. Sincerely Yours, omas A. McKean, R.S., C.H.O. 4 SUBDIVISION PLANS DEFINITIVE PLANS - PUBLIC HEARING Subdivision #701 ; "Bayberry Place" MOTION was duly made by B. Wilber and seconded by C-. . Cooperrider that the Planning Board postpone the public hearing for subdivision- #701 until 8t30 p.m. when there would be the required number of Board members present. So voted unanimously. S. Rchrbach was absent for this vote. 4— I V' Subd fivi s't``or��#�TI�'t '•Hsri�v� C.: �-SUsan�:R.::Ji:l"son" , C. Cooperrider read the notice of public hearing. C. Cooperrider read the letter from Stephen Seymour, DPW, dated 06/19/89; the letter from the Barnstable Fire. Department,. dated 06/09/89; the letter from abutter Andrew Keck, dated 06/ 14/89; the letter from abutter Barbara Moore, dated 06/07/89; the letter from the Board of Health, dated 06/07/89; - and the DPD staff report dated 06/19/89. Attorney Michael Ford was present to represent the applicant. He reviewed the recent history of the property and the Planning- Board minutes which covered prior discussions. He stated that the applicant wished that Calves Pasture Lane remain in its present condition and be granted the requested waivers. He referred the Board members to Section I , page 17, of the Subdivision Rules and Regulations which discussed the protection of, natural features. Mr.. Ford felt that even though Calves Pasture Lane did not have official status as a scenic road, it did actually have historic value. Attorney Ford presented a copy of the applicant's certificate of title to the Board stating that he felt Mr. Jilson had the right to use the whole of the forty foot way lon the said plan, referring to the 1953 Land Court plan , which laid out Calves Pasture . Lane, to pass to and from said land. and Scudder's Lane, for all the usual ) purposes including installation of public utilities. He added that if the r 5 i Board required improvements be made to Calves Pasture Lane, Mr. Jilson would comply. J. Bartell asked if the Board members had- questions . There were none . J. Bartell asked if there were members of the public who wished to speak. Attorney Ron Jansson was present to represent two abutters, Andrew Keck and the Chase family. He. -stated that he wished to reiterate what Mr. Ford had said. He described the physical- layout of the road and some of the road's history. He added that the lots on Calves Pasture Lane were not serviced by Town water, but that they had wells and that he felt the abutters owned to the middle of the road. Mr. Jansson stated further that much of the land was wetlands and that he felt that the property could be further divided into only a possible six or seven additional lots. He added that there was a need for public safety to be provided but that the abutters should not have to pay. He asked that if the Board approved the definitive plan that they also grant the requested waivers. Edward Kelley, a land surveyor, explained to the Board that he had previously worked in the abutting area and that based on the .number of test holes which had been dug, there would be a limited number of buildable lots. He added that if the road were to be improved, it would disturb the natural swail , telephone poles, and three to four feet of clay. He confirmed that the ditches would have to remain if the land was divided further and that Mr. Keck was in support of the plan if the road was to remain in Its present condition. J. Polcaro confirmed that Mr. Kelley's ,judgement of the number of buildable lots had been based on the determination of which parcels had rights to the road and the perking ability of the lots. Mr. Kelley added that the the topography of the land had also been considered. Abutter Jeff Jonas stated that he was speaking for himself and his neighbor Herb Carver. He explained that he was opposed to the r widening of Calves Pasture Lane because it would change the scenic beauty, the old stone walls , would result In increased parking problems and that an Improved road would encourage speeding by enabling vehicles to be able to travel at faster speeds . 3 ..l J. Bartell asked if there• were any other members of the public who wished to speak. There were none. MOTION was duly made by B. Wilber and seconded by J. Polcaro. that the Planning Board take the definitive subdivision ##713, Harry C. & Susan R. Jiison, under advisement. So voted unanimously. It was agreed to rescheduled subdivi'sion ##713 for the Planning Board meeting of July loth. In order to give the applicant a sense of what the Board would be willing to accept with the plan, J. Polcaro stated that. he would be in favor of approving the subdivision, but to waive much of the road construction. He added that he loved the idea of someone thinking about traffic and parking problems. C. Cooperrider stated that he was. very concerned by the letter from the fire department and that he felt the applicant should consider alternative options, such as the, clearing and trimming of brush in order to facilitate access to emergency vehicles. He added that it was important for the Board to consider public safety. S. Rohrbach stated that she was in agreement with C. *Cooperrider. She added that after making a site visit, she had questioned whether there could be other areas cleared to allow for another pull-off area. The Board members discussed potential road traffic and road visability with the close foliage. M. Ford confirmed with C. Cooperrider that what was being asked for from the fire chief, would be recommendations should the Planning Board approve the subdivision keeping Calves Pasture Lane in its present condition. PRELIMINARY PLANS Subdivision 4712 ; "Robert R. Ghurchill " Dick Baxter, of Baxter & Nye Engineering,. was present to represent the applicant. He explained that the plan represented an open space r 14 through four, page two, of the DPD report dated 07/10/89, and that rights of access be provided for the relocated Lothrop's Lane In subdivision ##603, "West Parrish/Leeward Hills' S. Rohrbach asked if the Board needed to address that section of road which the developer of "West Parrish" was supposed to complete.- J. Polcaro confirmed that Mr. Boghos had requested that they not have to complete the section of road because with the approval of "Berkshire Trail " it would be torn up and changed. Joe Rodricks, of Schofield Brothers, explained the location of the piece of road in question. C. Cooperrider reread the letter from Stephen Seymour. J. Rodricks commented that Stephen Seymour was asking to have Lothrop's Lane reconstructed off the property owned by Cedar Street West Barnstable Realty Trust which they did not, at that point, have the right to do. B. Wilber and the other Board members discussed the issue further with Attorney Princi , Attorney Dunning and Mr. Boghos. B. Wilber marked and initialed on sheet two of five the exact northwest corner portion of road which Mr. Dunning would be responsible for top coating. MOTION was so voted unanimously. 3):`S(jbd i.v i:9 i'bh' 97.13 t: J t l 96h 4t" C. Cooperrider 'read the report from the DPD dated 07/10/89, the letter from the Barnstable Fire Department dated 07/10/89, the Barnstable Fire District letter dated 06/15/89, and the letter from abutter Dr. Jonas dated 06/20/89. Attorney Michael Ford was present to explain that the • pub] ic hearing for the definitive plan had been at the meeting of 06/19/89 and the plan taken under advisement. The direction the applicant had received from the Board had been to address the comments from Fire Chief Jones. He stated that Chief Jones) 07/ 10/89 letter addressed the safety concerns and that the applicant was asking for approval of the subdivision plan as well as approval of the requested waivers. J. Bartell confirmed that the public hearing had been closed at the 06/19/89 meeting.- • s _ 15 i S. Rohrbach asked what effect the second request from the Fire Chief would have on how the road currently looked. Ed Kelley, land surveyor, was present to explain that he had made a site visit with the fire chief and that his main concern was with the height of the brush. ,He added that the fire chief did not have a concern with. the. water flow because there was not enough .water flow on Scudder Lane in order to have water mains in the road. The main concern was access in and out of the area for the fire equipment. B. Wilber commented that In the Barnstable district water had to be applied for availability. . B. Wilber confirmed that the fire chief's recommendation was that the width was all right but to trim branches, not to cut trees. M. Ford questioned the fire chief's third condition. J. Bartell stated that any further subdivision plans would be considered on their own. S. Rohrbach confirmed through Mr. Kelley that the first recommendation of the fire chief was that the road should .remain in its present repair and also that the property owners on the road should pay to have the road plowed. M. Ford clarified that it would mean that the road would be open through all seasons. C. Cooperrider confirmed that the road would be maintained to its current condition. MOTION was duly made by J. Polcaro and seconded by D. Martin that the Planning Board APPROVE the DEFINITIVE subdivision ##713, "Jilson" , plan dated 01/31/89 and revised 04/03/89 8 05/22/89, subject to the grade and surface of.-the present road being maintained to be serviceable as a four season road, that the trees and brush be trimmed and maintained to a width of seven (7) feet from the center of the roadway on each side and no less than twelve ( 12) feet in height, all the requirements of the Board of Health, and that the applicant be granted a waiver of the drainage and road construction requirements. , So voted unanimously. 3) Subdivision 9573 ; Ardito Family Trust i J. Polcaro explained that he had been asked to explain in the developer's absence .that the eight lot subdivision -An question was located between two other subdivisions which contained overhead t - r :1 SUBDIVISION # 89-713 PLAN ENTITLED Subdivision Plan of Land in Barnstable , Mass . To Be Filed in t e-•Land Court Shown As Lot 20 on Lana Curt .Plane #02950E Scale 1 '=40 ' PLAN DATED 01/31/89 , Revised 04/03/89 & /05/22/89 PLAN ENGINEER Down Cape Engineering Hary C. & Susan R . Jilson PLAN LOCATION south off Calves Pasture Lane , west of Scudder Lane , Barnsta e NEW ROAD NAMES None - using existing road/Calves Pasture Ln MAP/PARCEL # Map 259, Parcel 1 TOTAL ACREAGE 6 .02 TOTAL # LOTS 3 fX RF-1 GRID OR CLUSTER Grid DATE SLIRMTTTED NONE - tried first with an ANR plan & directed to submit a subdivision approval required .plan which would upgrade Calves Pasture Lane DEFINITIVE DATE SLIRMTTTt=11 05/23/89 ADVERTTSFD DATF� 06/01/89 & 06/08/89 HF�RTN[3 DATE 06/19/89 AOPRa.vA1 HATE 07/10/89 DLL]TT[-F T[] Tn[.!N 1^1 ERK/ L7^K TN DATE 07/11/89 STLNED RY T[]WN t1 RK/DAT 07/31/89 STt31'JED RY PI ANNTNt; RMARD/DATE 07/31/89 COVENANT REQUESTED - YEs DA TFD SECURITY REQUESTED - Y F S Covenant TYPE [.')E SECL IRTTY SE[�IIRTTY T :til IFPf RY .I LOTS RELEASED 01/03/91 - zero released LOTS REMAINING UNDER COVENANT 1 , 2 , 3 FINAL LOTS RELEASED/DATE r� ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. ATTORNEYS AT LAW MATTACHEESE PROFESSIONAL BUILDING 25 MID-TECH DRIVE,SUITE C WEST YARMOUTH,MASSACHUSETTS 02673 EDWARD J.SWEENEY,JR. TELEPHONE(508)775-3433 MI RICHARD P.MORSE.Jp. DONNNAA M.ROBERTSON M B.STUSSE FAX(508)790-4778 BETSY NEWELL MATTHEW J.DUPUY PAUL R.TARDIFF' CHARLES M.SABATT CHARLES J.ARDITO.P,C. 'also admitted in MAINE PLEASE REFER TO FILENUMBER December 14, 1999 G4427X Barnstable Board of Health 367 Main Street Hyannis, Massachusetts 02601 Re. Lot 38 Calves Pasture Lane, Barnstable Village Dear Board Members: This office represents certain abutters to the above referenced parcel (hereinafter called locus). My clients oppose the issuance of any variances from Town of Barnstable Health Regulations Part VIII Section 1.00 as requested within the November 27, 1999 letter of Down Cape Engineering, Inc. The reasons for my clients' opposition are set forth below. • The Board of Health previously decided that no variances would be granted. Locus Was created in 1989 pursuant to a definitive plan approval issued by the Barnstable Planning Board. As a part of that process the Town of Barnstable Board of Health imposed requirements or limitations upon the definitive subdivision plan. Those requirements are set forth within a letter of the Barnstable Board of Health dated June 7, 1989, a copy of which is attached hereto as Exhibit 1. Among the requirements, the Board of Health provided as follows: The developer shall have recorded on the deed that variances from Title 5, Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, or the Town of Barnstable Health Regulations whichever is more stringent will not be granted on any lot in this subdivision. • The Barnstable Planning Board incorporated the Board of Health letter of June 7, 1989 into its record. (See Exhibit 2 - Planning Board Minutes - June 19, 1989) Later, the Planning Board conditioned its definitive Plan approval upon"all the requirements of the Board of Health..." (See Exhibit 3 - Plan Approval, Condition #3) Accordingly, the Planning Board approval for the subdivision creating lot 38 is predicated upon the Board of Health requirement that no variances would be granted. Barnstable Board of Health December 1=4, 1999 Pa(-Ye • The proponents of the subdivision plan, namely Harry C. and Susan R. Jilson, are the current record owners of the locus. As is apparent from the Planning Board minutes, the Jilson's accepted the requirements of the Board of Health precluding variances. Furthermore, the abutters to locus relied upon the Board of Health requirements when they agreed to support the Jilsons' request for waiver of the drainage and road construction requirements. Had it not been for the Board of Health requirements imposing a restriction on the granting of variances, my clients would not have supported the Jilsons' subdivision plan. • Denial of a variance will not cause a manifest injustice. Part VIII, Section 1 existed on June 7, 1989 when the Board of Health imposed its requirements ultimately incorporated by the Planning Board. The present applicants had knowledge of the Board of Health requirements contained within its letter of June 7, 1989, since these requirements are a matter of public record and are among the conditions included within the Planning Board approval. Furthermore, it should be noted that the engineer representing the applicants in their current request for variances is the same engineer who prepared the Jilsons' subdivision plan. • The applicants are not record owners of locus, but rather are assignees assig of a mortgage on locus, having taken the assignment on April 23, 1998. Unlike other applicants who request variance q s from the Board f o Hea lth, th e he applicants in this case have not recently learned of their inability to construct a subsurface disposal system upon preparation of construction plans. On the contrary, the Board of Health requirements of June 7, 1989 put these applicants on notice as to the limitations to which locus would be subject. The granting of a variance will result in manifest injustice. The Planning Board approval is predicated upon the Board of Health requirements precluding issuance of a variance. The abutters to locus relied upon that restrictive requirement in withholding opposition to the Jilsons' definitive subdivision plan and in supporting their request for waivers of the drainage and road construction requirements. Thank you for your courtesy in this matter. Respectfully, " Charles -1. Sabatt C`IS:Ics tel.(508)362 4541 939 main street rt 6a fax(508)362-9880' yarmouth port mass 02675 down cape engineering civil engineers& land surveyors structural design • Arne H.Ojala P.E., P.L.S. Timothy H.Covell, P.L.S. Daniel A.Ojala,P.L.S. land ,:��,�e . January 2b, 2000 ..�... . . . . ... _ - surveys Thomas McKean,RS site planning Barnstable Health Department 367 Main Street Hyannis, MA 02601 sewage system designs Re: Lot 38, Calves Pasture Lane, Barnstable inspections Dear Tom: Per your request, enclosed is an amended variance request application form for the permits above-referenced lot. The enclosed revised plans reflect the re-positioning of the proposed well to be greater than 100' to the proposed septic tank and pump chamber. Distances to abutting wells are also indicated. Old test hole results and their locations have, as well,been added. Please do not hesitate to call with any questions. Very truly yours, Arne H. Ojala, PE,PLS Down Cape Engineering, Inc. cc: L. Warren P. Revere III 06 FROM Paul Revere III Esq PHONE NO. 5087787126 FEB. 02 2000 02:24PM P1 LAW OFFICES OF PAUL REVERE, III 226 River view Lane . Centerville, Massachusetts 02632 (508) 778-7126 To. Thomas McKean Fr: Paul Revere, 111 Re: Lot#38, Calves Pasture Lane Da: February 2, 2000 See attached letter. PR 3 Pages } 1 let.(508)362-4541 939 main street rt 6a fax(508)362-9880. yarmouth port mass 02675 down cape engineering civil engineers& land surveyors structural design Arne H.Ojala P.E., P.L.S. Timothy H.Covell, P.L.S. Daniel A.Ojala,P.L.S. land court November 27, 1999 _ .. _ surveys Barnstable Board of Health site planning 367 Main Street Hyannis,MA 02601 sewage system Re: Lot 38 Calves Pasture Lane, Barnstable Village designs ti Dear Board Members: inspections On behalf of our client, we are hereby requesting variances under Town of Barnstable Health Regulation Part VIIL Section 1.00. Specifically, the variances are as follows: permits 1. Proposed primary leaching facility to be 70' from the edge of a bordering vegetated wetland(30' variance requested); 2. Proposed septic tank to be 5 y to the edge of wetland(4 b variance requested); 3. Proposed reserve leaching facility to be 66' to the edge of wetland (34' variance requested). The resource area delineations shown on the plan have been confirmed by the Conservation Commission under filing SE3-3494. These resource areas include bordering vegetated wetland, intermittent stream, salt marsh, coastal bank, land under waterways, and land subject to coastal storm flowage. According to a report submitted by ENSR to the Conservation Commission as part of the resource area delineation filing, surface waters originating from a swamp to the northeast of Lot 38 flow intermittently via three culverts under Calves Pasture Lane during storm events. The water is discharged onto Lot 38 and the abutting Lot 39. Test holes performed over previous years in various areas of the lot have indicated the presence of silt loam and sandy loam soils to depths of as much as 14.5'. Due to the impervious nature of the soils present and the fact that there are no man-made drainage structures on Lot 38, the surface waters originating from the swamp to the northeast are not able to percolate downward on Lot 38 (i.e. it is perched water) and, therefore, the surface waters are not hydraulically connected to groundwater on the lot. The discharge point for these surface waters is the salt marsh to the south of Lot 3 8. The closest point of the primary leaching facility to this perched wetland community is 70'. This distance is perpendicular to the site-specific groundwater flow in this area, which is from northeast to southwest. Thus, any waste residue which reach groundwater will not flow toward the bordering vegetated wetland to the west, but y rather will flow in a southwesterly direction, i.e., toward the marsh. The leaching facility is IDL directly upgradient from the wetland to the south. The base of the leaching facility is at least 20' above the true groundwater level. The septic tank and pump chamber are both proposed to be factory certified waterproof, as another added level of protection. The two inch pressure line is proposed to be hand-du under the ditch/channel 1 p p p nne which g transports water intermittently between the culvert under Calves Pasture Lane and the wetland on Lot 38. An extension of this culvert to replace the ditch is proposed, in order to assure a more permanent continuence of this connection to the wetland on Lot 38. This culvert will serve, as well, to protect the 2" pressure he proposed to be installed under the culvert. Lastly, and as can be seen from the plan, there is no other location on the property where a sewerage disposal system could be located that has a greater setback from adjacent wetlands. The only means to obtain a greater setback would be through a waiver of Title 5 property line setback requirements, and to the extent that the Board desires that the system be located closer to the property line to increase the wetland setback, the applicant is willing to consider such an alternative. In sum, enforcement of full compliance with local setback requirements would be "manifestly unjust" considering that the system is at least as environmentally protective as a system which meets the setback requirements because groundwater flows towards a wetland which is greater than 100 feet from the primary leaching facility. I look forward to meeting with the Board to discuss the proposed plan. Very truly yours, Arne H. Ojala, PE, PLS Down Cape Engineering, Inc. v FROM Paul Revere III Esq PHONE NO. : 5087787126 FEB. 02 2000 02:25PM P2 i i LAW OFFICES OF PAUL REVERE, III 226 River view Lane Centerville, Massachusetts 02632 (508) 778-7126 February 2, 2000 Tom McKean, RS, CHO Health Agent Health Department Town of Bamstable New Town Hail 367 Main Street Hyannis, Massachusetts 02601 RE: Application for Septic System Disposal Permit Lot 38, Calves Pasture Lane, Barnstable Village Scheduled for Hearing February 3, 2000 Dear Mr. McKean: Last Wednesday, we briefly discussed the issue of whether my client, Laurie Warren, could be an applicant for a septic system disposal permit. In particular, you stated that the Town Attorneys office stated that the "owner" of the property must either make the application or the applicant must demonstrate that the "owner" has authorized the applicant to file the application_ My client is the "owner" under Title 5. The Title 5 regulations define"owner" as: A person who, alone or together with other persons, has legal title to any facility served by a system or control of the facility, including but not limited to any agent, executor, administrator, trustee, lessee, or guardian of the estate for the holder of legal title. 310 C.M.R. 15M2. Laurie Warren owns a mortgage with a face value of $600,000.00 which is secured by Lot#38, Calves Pasture Lane (the "Property"). Massachusetts is a "title" state wherein legal title vests in the owner of a mortgage (also known as the mortgagee) subject to the right of occupancy held by the person who gave the mortgage also known as the "mortgagor." Laurie Warren has made a legal "entry on Lot #38 which is a legal act that divests the mortgagor of the right,of occupancy. Thus, at this time, Laurie Warren holds both legal title and the right of occupancy at the Property. Under these f FROM : Paul Revere III Esq PHONE NO. : 5087787126 FEB. 02 2000 02:25PM P3 I circumstances, Ms_ Warren meets the definition of owner under Title 5 because she has both legal tide to and control of the"facility." In deciding whether Laurie Warren is the "owner„ for purposes of Title 5, the Board of Health should consider the implications of a decision that she is not the "owner" on the Board's ability to .enforce Title 5. In particular, if a mortgagee in possession is not the "owner," then the Board is arguably powerless to require such a mortgagee to upgrade or replace a failing Title 5 system. I will be available at the February 3, 2000, meeting to answer any questions. Very truly yours, Paul Revere, III 2 FORM C APPLICATION FOR APPROVAL OF DEFINITIVE PLAN (Where alternative paragraphs are provided, applicant is to select and complete the paragraph pertinent to his case.) ............A. ....z 2................... . 1931 To the Planning Board of the Town of Barnstable 1. The undersigned applicant, being the owner of all land included within a proposed subdivision shown onthe accompanying plan, entitled .......................................................................................................... and dated ...: .!:?t :...3i....�seN...r�Ac.,tz..�. , 19_81. , submits such plan as a definitive plan of the proposed subdivision and makes application to the Board for final approval thereof. 2. The land within the proposed subdivision is subject to the following easements and restrictions: D 2cvl H Z o-t ! RRG... Z99 �a7 �! 9s3 ..RC,.. . a.........�...��1....t..AAc...laR.....?�,...........�. rl.P..........,. .... ..`....Qo,C..�1a.... ..�v.,.. .t....�.QR,�..r�?A..... - 20 Co 1 b....1.....a... ?.:..ZQ . .................... .................................................................................... 3. There are appurtenant to the land within the proposed subdivision and following easements and re- strictions over the land of others: ...................................................................................................................................................................... ...................................................................................... ............................................................................... 4. (a) A preliminary plan of the proposed subdivision has not been, submitted to the Board. OR C�o�Je�sa[ ` !� n.%�04��b4S c"'s"'"A "MSS c- Z 52(+�rwt� f1n2 2��n�1� (b) A preliminary plan of the proposed subdivision, to which the accompanying plan conforms, was tentatively approved by the Board on .......................................... . 19........ . OR (c) A preliminary plan of the proposed subdivision was tentatively approved by the Board on ................................................ . 19........ with modifications, which modifications have been incor- porated in the accompanying plan. 5. The applicant agrees, if the definitive plan is approved, to construct and install all improvements within the proposed subdivision required by the Rules and Regulations of the Barnstable-Planning Board as in force on the date of this application, and as modified and supplemented by the work specifications and other requirements set forth in the statements attached hereto. A- 6. The applicant further agrees to complete all said required improvements within one year from the date, of approval of the definitive unless the Board approves a different period of time. 7. If the definitive plan is approved, the applicant agrees to record or register the plan in Barnstable County Registry and agrees that even if otherwis uthorized so to do by the filing of a performance bond, applicant will not sell or offer to sell any a oWmI a ivision until?sgid plan is so recorded or registered. TOWN OFBARNSTitBLE .r� 8. The applicant further agrees that if the definitive pawn is op � � cant will prompt:ly'.WgQ��'a3j� time thereatee- 7vFbenej�q�l,jtec69p to do by the Board, convey .to the sewer District in form.-sptAIV factory to the Board, title to sewers and the prescribed easements therefor. The applicant also ag;e to convey to the Town title to storm drainage improvements sand easements therefor. W- 2,3 1989 'Y4 �JOo A WAUtCF_ t=Rorn G0..3sri,UC J 10 J tS sel' c- FORM C—Page 2 9. (a) The applicant further agrees that before final approval of the definitive plan, the applicant will; cause to be filed with the Board a bond in form satisfactory to the Board, conditioned on the completion of all required improvements in the time and manner prescribed, in a penal sum sufficient, in the opinion of the Board, to cover the cost of such work, and executed by the ap- plicant as principal and a surety company authorized to do business in the Commonwealth and satisfactory to the Bourd as surety, or secured by the deposit with the Town Treasurer of cash or negotiable securities in an amount equal to the penal sum established by the Board. OR , (b) The applicant requests the Board to approve the definitive plan on condition that no lot in the subdivision shall be sold and no building shall be erected or placed on any lot until the re- quired improvements necessary to adequately serve such lot have been completed to the Satis- faction of the Board. 10. This application is accompanied by an original drawing of the proposed definitive plan with three black line contact prints and a fee of $15.00 to cover the cost of giving notice of a public hearing. 11. The owner's title to the land is derived under deed from .,�►a4i...5�n?�k:�c,.�.... ..�d�, �..pcw, , dated ............................................ . 19........ , and recorded in Barnstable County District Registry of Deeds, Book................ . Page ................ OR under Certificate of Title No. ..IIVA(Q.'�...... registered in Land Registry District, Book .......ck ...... , Page.......V!........ . .............. ...a,Asa.c,.......................................... Applicant ........................................................................................ Address A list of the names and addresses of the abuttors of this subdivision is attached. Verification will be made by the Planning Board. J J Project Reference: 3Lot Subdivision off Calves Pasture Lane Barnstable Harry Sz Susan Jilson ABUTTERS: Map Parcel Name Address 259 2 Andrew S. & Katherine Keck 1552 34th St. N.W. Washington, D.C. 20000 259 4 Barnett Banks Tr. Co., P.O. Box 2556 NA. (Joshua C. Chase) Jacksonville, FLA 32203 259 5 Barbara R. Moore 210 Scudder Lane Barnstable, MA 02630 259 16 Carson Trust P.O. Box 824 Herbert Carver, Trustee Barnstable, MA 02630 258 78 Steven E. & Kathleen N. Berglund P.O. Box 624 Barnstable, MA 02630 258 17 Massachusetts Audubon Society South Great Pond Road Lincoln, MA 01773 C. ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P ATTORNEYS AT LAW MATTACHEESE PROFESSIONAL BUILDING 25 MID-TECH DRIVE,SUITE C WEST YARMOUTH,MASSACHUSETTS 02673 EDWARD J.SWEENEY,JR. TELEPHONE(508)775-3433 s RICHARD P.MORSE,JR. MICHAEL B.STUSSE BETSY NEWELL DONNA M.ROBERTSON FAX(508)790-4778 PAUL R.TARDIF' MAT THEW J.DUPUY .. CHARLES J.ARDITO.P.C. CHARLES M.SABATT "also admitted in M!AINE June 15 1999 PLEASE REFER TO FILE NUMBER G4427X . ' Mr. Roy Fogelgren, Chairman �" a Planning Board ' Barnstable Town Hall Hyannis, .Massachusetts 02601 Re: Definitive Subdivision No. 713, Calves Pasture Lane Assessors Map 259, Parcels 38 and 39 (formerly Assessors Map 259, Parcel 1) Dear Mr. Fogelgren: Please be advised that the undersigned represents certain abutters to the above referenced parcels located on Calves Pasture Lane in Barnstable, Massachusetts. I ' am enclosing herewith for your reference a photocopy of a letter from the Barnstable Board of Health to the Barnstable Planning Board dated June 7, 1989 as well as a photocopy of the notice of approval of the definitive subdivision plan dated July 11, 1989 as recorded with the Town Clerk of the Town of Barnstable. In its approval of Definitive Subdivision 713 dated July 11, Board made such approval subject to 1989, the Barnstable Planning Bo pp 7 certain provisions among which was provision number 3 which conditioned approval upon compliance with "all the requirements of the Board of Health. Among those requirements as set fo rth in the June 7 , 1989 Board of Health letter regarding this subdivision was the requirement that the developer "shall have recorded on the deed that variances from Title 5, Minimum Requirement for the Subsurface Disposal of Sanitary Sewage or the Town of Barnstable Health Regulations, whichever is more stringent, will not be granted on any lot in this subdivision. . . " T have undertaken a title rundown_ of the title to the t-w- �'1..1 , . 1,=1 WF!.t-t.. i__�* lf' as of this date I cannot find t:.hat the above restriction was recorded against the titles to these two parcels. Accordingly, the developer has not complied with the requirements of the Board of Health and therefore is in violation of the definitive subdivision plan approval. �,oF�"E Twyti Town of Barnstable, Massachusetts Department of Planning and Development ' 13AMST"B"e' N Office of The Planning Board M ems. ATEp Mp'l A 367 Main Street,Hyannis,Massachusetts 02601 (508)775-1120 ext. 190 July 11 , 1989 A, r - - Aune Cahoon, Town Clerk Town of Barnstable —+ + Town Hall 367 Main Street w Hyannis, MA 02601 :J Re-: DEFINITIVE SUBDIVISION #713 Grid Definitive Subdivision ##713; "Ji ] son"; Subdivision Plan of Land in Barnstable, Mass.to be Filed in the Land Court Shown As Lot 20 on Land Court .Plan ##02950E Scale 1"=40' ; . Plan dated 01/31/89, revised 04/03/89 & 05/22/89; Down Cape Engineering; 3 lots; located south off Calves Pasture Lane, west of 'Scudder Lane, Barnstable; Assessor'.s. Map 259, parcel 1 . At a duly posted meeting of the Barnstable Planning Board held July 10, 1989, it was voted to APPROVE the above captioned DEFINITIVE subdivision plan subject to the following: 1 ) That the grade and surface of the present road be maintained to be serviceable as a four season road; 2) That the trees and brush be trimmed and maintained to a width of seven (7) feet from the center of the roadway on each side, and no Jess than twelve ( 12) feet in height; 3) All the requirements of the Board of Health; A ; Respectfully, i cq�eYY osep E. Bartell , Chairman Ba able Planning Board ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. ATTORNEYS AT LAW MATTACHEESE PROFESSIONAL BUILDING 25 MID-TECH DRIVE,SUITE C WEST YARMOUTH,MASSACHUSETTS 02673 EDWARD J.SWEENEY,JR. TELEPHONE 508 775 3433 RICHARD P.MORSE,JR, MICHAEL B.STUSSE BETSY NEWELL DONNA M.ROBERTSON FAX(508)790-4778 PAUL R.TARDIF' MATTHEW J.UUPUY CHARLES V SABATT .- CHARLES J.ARDITO.P.C 'also admitted in MAINE PLEASE REFER TO FILENUMBER June 15, J999 G4427X Ms. Susan Rask, Chairperson Barnstable Board of Health Barnstable Town Hall Hyannis, MA 02601 Re: Calves Pature Lane Assessors Map 259, Parcels 38 and 39 (Formerly Assessors Map 259, Parcel 1) Dear Ms. Rask: Please be advised that the undersigned represents certain abutters to the above referenced parcels located on Calves Pasture Lane in Barnstable, Massachusetts. I am enclosing herewith for your reference a photocopy of a letter from the Barnstable Board of Health to the Barnstable Planning Board dated June 7, 1989 as well as a photocopy of the notice of approval of the definitive subdivision plan dated July 11, 1989 as recorded with the Town Clerk of the Town of Barnstable. At the current time, a mortgagee of the above referenced parcels is in the process of undertaking certain percolation tests on each of the above referenced parcels. To date, two tests have been conducted on the parcels and it is my understanding that additional tests are scheduled for the future. As you can see by the enclosed documents, approval of the subdivision that created the two parcels at issue, namely parcels 38 and 39 was contingent, among other things, upon compliance with all requirements of the Board of Health as set forth within provision No. 3 of the definitive subdivision approval dated July 11, 1989 . Those requirements are explicated within the Board of Health letter of June 7, 1989 . In the fourth paragraph of the Board of Health letter, the Board of Health required that the developer record "on the deed that variances from Title 5, Minimum Requirement for the Ms. Susan Rask, Chairperson June 15, 1999 Page 2 Subsurface Disposal of Sanitary Sewage or the Town of Barnstable Health e Health Regulations, whichever is more stringent, will not be granted on any lot in this subdivision. . . " I have undertaken a rundown of the title to the two / lots at issue and I find no recording of any such restriction against the lots in the Barnstable County Registry of Deeds. Furthermore, the second paragraph of the letter requires that the developer . . must provide public water to each and every lot in this subdivision. " My clients are under the impression that the mortgagee undertaking the percolation tests at the present time, namely Laurie A. Warren and Christopher Kuhn have obtained a waiver of that requirement and are now being permitted by the Board of Health to install well water as opposed to connecting to the public water supply. If such a waiver was obtained, then it was obtained without any notification to my clients who are abutters to the parcels at issue. I would like to know whether or not such a waiver was obtained and if it was obtained, then I would be most appreciative of receiving a copy of any written decisions or minutes of meetings regarding any such waiver. In addition, I would appreciate your undertaking the following or having appropriate staff personnel within the office of the Board of Health undertake the following: 1. Take appropriate action to compel the developers of the property to record the restriction required by the fourth paragraph of the June 7, 1989 Board of Health letter in the Barnstable County Registry of Deeds District of. the Land Court. Arguably, the "developer" of the lots may be the mortgagees who are undertaking the percolation tests, .namely, Laurie A. Warren and Christopher Kuhn. On the other hand, the Board of Health probably intended in 1989 that the word "developer" meant the applicant and record owner, Harry and Susan R. Jilson. The Jilsons are still record owners of the parcels and therefore may likewise be required to record the restriction. 2 . In lieu of the above or in addition thereto, request the Barnstable Planning Board to rescind the subdivision plan by reason of the developers ' failure to abide by requirements of -he Board of Health, specifically the recording of the above referenced restriction. 3 . Provide me with copies of any waivers granted with respect to the requirement that the lots must be serviced by public water. Ms. Susan Rask, Chairperson June 15, 1999 Page 3 . 4 . Notify me as to any filings, applications for requests for relief, or hearings regarding the above parcels 5 . Notify my clients ' engineer, Mr. Edward Pesce, of Hoarsley and Whitten, or Me of any percolation tests to be conducted on said parcels, providing the date and time of such tests. Mr. Pesce can be reached at 508-833-6600, fax- 508-833-3150. Thank you for your attention to this matter. Very truly yours, Charles M. Sabatt CMS :lcs Enclosures cc: Mr. Thomas McKean Bernard Kilroy, Esquire Mr. Robert Gatewood Mr. William Cook �pFTHE tp�� Town of Barnstable, Massachusetts Department of Planning and Development BARN STABLE, ' Office of The Planning Board t639• �0 ATfD A MA'i 367 Main Street, Hyannis, Massachusetts 02601 (508) 775-1120 ext. 190 July 11 , 1989 07 Aune Cahoon, Town Clerk Town of Barnstable I Town Hall _c 367 Main Street tom; Hyannis, MA 02601 Re: DEFINITIVE SUBDIVISION 9713 Grid Definitive Subdivision ##713 ; "Jilson" ; Subdivision Plan of Land in Barnstable, Mass.to be Filed in the Land Court Shown As Lot 20 on Land Court Plan ##02950E Scale 1 "=40' ; Plan dated 01/31/89, revised 04/03/89 8 05/22/89; Down Cape Engineering; 3 lots; located south off- Calves Pasture Lane, west of Scudder Lane, Barnstable; Assessor' s Map 259, Parcel 1 . At a duly posted meeting of the Barnstable Planning Board held July 10, 1989, it was voted to APPROVE the above captioned DEFINITIVE subdivision plan subject to the following: 1 ) That the grade and surface of the present road be maintained to be serviceable as a four season road; 2) That the trees and brush be trimmed and maintained to a width of seven (7) feet from the center of the roadway on each side, and no .less than twelve ( 12) feet in height; 3) All the requirements of the Board of Health; 4) That the applicant be granted a waiver of the drainage and road construction requirements . + Respectfully, I 4osep E. Bartell , Chairman Ba able Planning Board APR UW D �POFZNSTo�y TOWN OF BARNSTABLE OFFICE OF BARI BOARD OF HEALTH � MAS&66 1639. �� 367 MAIN STREET F0 MAY HYANNIS, MASS. 02601 June 7, 1989 Mrs. Susan H. Rohrbach Re: Definitive subdivision plan of landin Barnstable Chairperson, Planning Board Petitioner: Harry and Susan R. Jilson Barnstable Town Hall Date: January 31, 1989 - Revised April 31, 1989 Hyannis, Ma 02601 Revised may 22, 1989 Engineer: Down Cape Engineering, Inc. . Assessor's map 259, Parcel 1 Dear Mrs. Rohrbach: The Board of .Health has reviewed this definitive subdivision plan in Barnstable and makes the following recommendations: The developer must provide public water to each and every lot in this subdivision. Public water lines and all connections must. meet specifications and/or rules and regulations of the local water department. Each septic system shall be located within the prescribed boundaries of each individual lot. The developer shall have recorded on the deed that variances from Title 5, Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, or the Town of Barnstable Health Regulations whichever is more stringent, will not be granted on any lot in this subdivision, A percolation test must be made on the lot at leaching site, before a Disposal Works Construction Permit will be issued. Maximum ground water elevations must be determined by using data available from the United States Geological Survey - Probable High Ground Water Levels on Cape Cod, Mass. Each proposed septic system must conform strictly to 310 CMR 15.00, the State Environmental Code, Title 5, and Town of Barnstable Rules and Regulations. All tree stumps, brush and building debris removed when clearing lots or roads must be disposed of at a licensed solid waste disposal facility. Chipping brush and tree stumps is an acceptable alternative. Burial on site is prohibited. The applicant must receive an. Order of Conditions from the Conservation Commission, if applicable. « It is recommended that each sewage disposal leaching facility be located most distant from wetlands to reduce eutrophication caused by phosphorous and other nutrients. The United States Environmental Protection Agency's National Eutrophication Survey states that 0.25 lbs. per,year of total phosphorous enters wetlands rom every person served by onsite septic systems within 300 feet" wetlands (US EPA 1983). Very truly yours, Grover C. M. Farrish, M.D. Chairman ckmlwr Ann Jane E baugh C.20�� TiK J es H. Crocker, Sr. BOARD OF HEALTH TOWN OF BARNSTABLE TM/bs cc: Harry and Susan Jilson Down Cape Engineering, Inc. Town Clerk Health Department Conservation Commission Barnstable Fire and Water District THE FOLLOWING IS/ARE THE BEST .. IMAGES - FROM POOR QUALITY ORIGINAL(S) im DATA IrU to ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. C,,w�f S�y�Ll is ATTORNEYS AT LAW Pit�'Gv MATTACHEESE PROFESSIONAI _�{G 25 MID-TECH DRIVE,SUIa 1J �..:: _ WESTYARMOUTH,MASSACHI5 z EDWARD J-SWEENEY,JR. TELEPHONE (508)77 MICHAEL B.STUSSE 5 N'- f '" �Q,l Y--,_—•L — ,,T`E,�� DONNA M.ROBERTSON FAX(508)790 477P "` MATTHEW J.DUPUV CHARLES M.SABATT •o i PLEASE REFER TO July 21, FILE NUMBER G4 4 2 7 X ` 1Ir. Thoras A. P"cKear. Public Health Director r-� Barnstable Town Offices Hyannis, Massachusetts 02601 Re: Calves Pasture Lane Assessors Map 259, Parcels 38 and 39 (Formerly Assessors Map 259, Parcel 1 Dear Mr. McKean: I As you may recall from previous correspondence, the undersigned represents certain abutters to the above referenced parcels . I would like to appear before the Board of Health with Mr. Pesce, of Horsley & Witten, at its meeting of August 24 , 1999 for the purpose of discussing with the Board certain issues pertaining to prospective development on the above lots located on Calves Pasture Lane in Barnstable, Massachusetts . Accordingly, I request that you place the above matter on the agenda for hearing on August 24 , 1997 . In the event that you have any questions, then please contact me. Sincerely, Charles M. Sabatt CMS : lcs cc: Mr. Arne Ojala Bernard T. Kilroy, Esquire William Cook ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. ATTORNEYS AT LAW MATTACHEESE PROFESSIONAL BUILDING 25 MID-TECH DRIVE,SUITE C WEST YARMOUTH,MASSACHUSETTS 02673 EDWARD J.SWEENEY,JR. MICHAEL B.STUSSE TELEPHONE(508)775-3433 RICHARD P MORSE,JR• E SY NEWLL DONNA M.ROBERTSON FAX(508)790-4778 BET BET R.NEW ELL MATTHEW J.DUPUV CHARLES M.SABATT s CHARLES J.ARDITO.P.C. 'also adrritled in MAINE PLEASE REFER TO FILE NUMBER May 12, 1999 G4427X Mr. Thomas McKeehan Health Agent Barnstable Board of Health Town Offices Main Street Hyannis, Massachusetts 02601 Re: Parcels 38 and 39 Calves Pasture Lane Dear Mr. McKeehan: Please be advised that the undersigned represents certain abutters to the above referenced property who are interested, in any development of or permits applied for in connection with those parcels. Accordingly, I would appreciate being notified of any filings or applications made in connection with the above referenced parcels. Currently, the party undertaking activities with regard to this property, is the current holder of the mortgage, namely Laurie A. Warren. Thank you for your attention to this matter. Very truly yours, Charles M. Sabatt CMS: lcs Ll.(508)362-4541 .939 main street rt 6a fax(508)362-9880 yarmouth port mass 02675 down Cape efifflifteerin't x 30 civil engineers& land surveyors structural design ,' ZJe H.0jala P.E.,P.L.S. M&I"t Timothy H.Covell,P.L.S. Davld C.Thulln,P.E. land court February n.,-1999 surveys site planning Thomas McKean,RS, CHO Gj e Barnstable Health Department sewage system 367 Main Street designs Hyannis,MA 02601 inspections Re: Jilson subdivision,off Scudder Lane,Barnstable Village Dear Mr. McKean: permits On behalf of my client, Christopher P. Kuhn,I am requesting an opportunity to come before the Board of Health at a regular business meeting to discuss the requirement that lots in the above-referenced.subdivision be served by town water, rather than by. (_� private wells. Very truly yours, /CC� Arne H. Ocala,PE,PLS Down Cape Engineering, Inc. cc: C. Kuhn Ud/il/99 12:28 F.A1 Surf 833 31SO Horsley & itit:cen 11�01 FACSIMILE COVER SHEET Horsley &Witten, Inc. Environmental Services Sextant Hill Telephone: 508-833-6600 90 Route 6A Facsimile: 508-833-3150 Sandwich, MA 0256.3 TO: Ms. Barbara Sullivan Company: Barnstable Health Dept. FAX # : 709-0304 FROM: Ed Pesce DATE: Aug 11,1999 Total PAGES: COMMENTS: Barbara, Please find attached, the letter originally sent by Attorney. Sabatt, regarding a request to be put on the B.O.H. agenda for August 24 to discuss the Calves Pasture Lane project (Jilson Subdivision). Please confirm with me that we may be added to the hearing agenda for August 2e. Thanks for your help with this. .....ED This message h intended onty fur the use of the IndMWal or entity to which it is addressed,and may contain Information that is privileged. oonndenael and exempt from discloaae under appkaole taw. V the reader of this message Is not the Intended recipient.or the employee or agent responsible for deweang me message to the intended recipient.you are hereby nofied then any diss&i*ailon,distribution or copying of Cris communicabon Is str"prohiblted. It you have received VS communication in error,please notify us hrtrnemately by telephone,and return original message to us at the above ad*M via the U.S.Postal Service. udilli99 12:L6 Fii 5uu 633 315u Horste3' & ltiltten 902 ARDITO,SWEENEY,STUSSE, ROBERTSON & DUPUY,P.C. ATTORNEYS AT LAW MATTACH£ESE PROFESSIONAL BUILDING 25 M(D-TECH DRIVF—SUITE C W'ES'T YARMOUTH.MASSACHUSETI'S 02673 EDWAMJ SWEENEY A. TELEPHONE(509)775Jd33 �uaov vEnSE.jR ,nOaAa a STUSSE ��ELL DoNr,lau FQEATSQ" I FAX(508)790-4778 re n'a r+wo� a+AP"Sj..aaTo at b+AALES Y SASATr 'lib�1UR�d n W,NS PLEAW"09M"D July 21, 1999 G4427X Mr. Thomas A. McKean. Public Health Director Barnstable Town Offices Hyannis, Massachusetts 02601 Re: Calves Pasture Lane Assessors Map 259, Parcels 38 and 39 (Formerly Assessors Map 259, Parcel 1 Dear Mr. McKean: As you may recall from previous correspondence, the undersigned represents certain abutters to the above referenced parcels. I would like to appear before the Board of Health with Mr. Pesce, of Horsley & Witten, at its meeting of August 24, 1999 for the purpose of discussing with the Board- certain issues pertaining to prospective development on the above lots located on Calves Pasture Lane in Barnstable, Massachusetts. Accordingly, I request that you place the above matter on the agenda for hearing on August 24, 1997 . In the event that you have any questions, then please contact me. Sincerely, Charles M. Sabatt CMS:lc s +, cc: Mr. Arne Ojala r Bernard T. Kilroy, Esquire William Cook } ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. ATTORNEYS AT LAW Y MATTACHEESE PROFESSIONAL BUILDING 25 MID-TECH DRIVE,SUITE C WEST YARMOUTH,MASSACHUSETTS 02673 EDWARD J.SWEENEY,JR. TELEPHONE RICHARD P.MORSE,A. MICHAEL B.STUSSE $O8)77S 3433 BETSY NEWELL DONNA M.ROBERTSON FAX(508)790-4778 _ PAUL R.TARDIF' MATTHEW J.DUPUY CHARLES J.ARDITO.P.C. CHARLES M.SABATT ' "also adn-,Jtsd in R!;INE PLEASE REFER TO FILE NUMBER - June - 15, 1999 G4427X ' Ms. Susan Rask, Chairperson Barnstable Board of Health Barnstable Town Hall Hyannis, MA 02601 Re: Calves Pature Lane Assessors Map 259, Parcels 38 and 39 (Formerly Assessors Map 259, Parcel 1) Dear Ms. Rask: Please be advised that the undersigned , represents certain abutters to the above referenced parcels located on Calves Pasture Lane in Barnstable, Massachusetts. I am enclosing herewith for your reference a photocopy of a letter from the Barnstable Board of Health to the Barnstable Planning Board dated June 7, 1989 as well as a photocopy of the notice of approval of the definitive subdivision plan dated July 11, 1989 as recorded with the Town Clerk of the Town of Barnstable. At the current time, a mortgagee of the above referenced parcels is in the process of undertaking certain percolation tests on each of the above referenced parcels. To date, two tests have been conducted on the parcels ., and it is my understanding that additional tests are scheduled for the future. As you can see by the enclosed documents, approval of the subdivision that created the two parcels at issue, name ly-p'arce1s 38 and 39 was contingent, among other things, upon compliance with all requirements of the Board of Health as set forth within provision No. 3 of the definitive I subdivision approval dated July 11, 1989 . Those requirements are explicate within the Board of Health letter of June 71 1989. In the fourth paragraph of the Board of Health letter, the Board of Health required that the. developer record "on the deed that variances from Title 5, Minimum Requirement for the Ms. Susan Rask, Chairperson June 15, 1999 Page 2 .Subsurface Disposal of Sanitary Sewage or the Town of -Barnstable Health Regulations, whichever is more stringent, will not he granted on any lot in this subdivision. . . " I have undertaken a rundown of the title' to the two lots at issue and I find no recording of any such restriction against the lots in the Barnstable County Registry of Deeds. Furthermore, the second paragraph of the letter requires that the developer . must provide public water to each and every lot in this subdivision. " My clients are under the impression that the mortgagee undertaking the percolation tests at the present time, namely Laurie A. Warren and Christopher Kuhn have obtained a waiver of that requirement and are now being permitted by the Board of Health to install well water as opposed to connecting to the public water supply. If such a waiver was obtained, then it was obtained without any notification to my clients who are abutters to the parcels at issue. I would like to know whether or not such a waiver was obtained and if it was obtained, then I would be most appreciative of receiving a copy of any written decisions or minutes of meetings regarding any such waiver. In addition, I would appreciate your undertaking the following or having appropriate staff personnel within the office of the Board of Health undertake the following: 1. Take appropriate action to compel the developers of the property to record the restriction required by the fourth paragraph of the June 7 , 1989 Board of Health letter in the .Barnstable County Registry of Deeds District of the Land Court. Arguably, the "developer" of the lots may be the mortgagees who are undertaking the percolation tests, namely, Laurie A. Warren and Christopher Kuhn. On the other hand, the Board of Health probably :intended in 1989 that the word "developer" meant the applicant and record owner, Harry and Susan R. Jilson. The Jilsons are still record owners of the parcels and therefore may likewise be required to record the restriction. 2 . In lieu of the above or in addition thereto, request the Barnstable Planning Board to rescind the subdivision plan by reason of the developers ' failure to abide by requirements of the Board of Health, specifically the recording of the above referenced restriction. 3 . Provide me with copies of any waivers granted with respect to the requirement that the lots must be serviced by public water. r Ms. Susan Rask, Chairperson June 15, 1999 Page 3 4 . Notify me as to any filings, applications for requests ...for relief,- or hearings regarding the above parce-ls. 5. Notify my clients' engineer, Mr. Edward Pesce, of Hoarsley and Whitten, or me of any percolation tests to be conducted on said parcels, providing the date and time of such tests. Mr. Pesce can be reached at 508-833-6600, fax- 508-833-3150. Thank you for your attention to this matter. Very truly yours, Charles M. Sabatt CMS:lcs Enclosures cc: Mr. Thomas McKean Bernard Kilroy, Esquire Mr. Robert Gatewood Mr. William Cook �°*tHE rosy Town of Barnstable, Massachusetts Department of Planning and Development R"R`''A`"B`E' � Office of The Planning Board 9 Mnss. � . i639• ATf0 MA'S A 367 Main Street, Hyannis, Massachusetts 02601 (508) 775-1120 ext. 190 July 11 , 1989 ` rn i Aune Cahoon, Town Clerk Town of Barnstable Town Hal ) _c 367 Main Street tAJ Hyannis, MA 02601 Y � Re: DEFINITIVE SUBDIVISION 9713 Grid Definitive Subdivision ##713 ; "Jilson" ; Subdivision Plan of Land in Barnstable, Mass.to be Filed in the Land Court Shown As Lot 20 on Land Court Plan ##02950E Scale 1 "=40' ; Plan dated 01/31/89, revised 04/03/89 & 05/22/89; Down Cape Engineering; 3 lots; located south off Calves Pasture Lane, west of Scudder Lane, Barnstable; Assessor's Map 259, Parcel 1 . At a duly posted meeting of the Barnstable Planning Board held July 10, . 1989, it was voted to APPROVE the above captioned DEFINITIVE subdivision plan subject to the following: 1 ) That the grade and surface of the present road be maintained to be serviceable as a four season road; 2) That the trees and brush be trimmed and maintained to a width of seven (7) feet from the center of the roadway on each side, and no less than twelve ( 12) feet in height; 3) All the requirements of the Board of Health; 4) That the applicant be granted a waiver of the drainage and road construction requirements . Respectfully, f. oil Le�Y 4osep E. Bartell , Chairman Ba able Planning Board APR I U4 McKean Thomas From: Mackey Patty . To: McKean Thomas Subject: Jilson Subdivsion Date: Thursday, January 20, 2000 3:29PM From Jackie Etsten, Jilson Subdivsion#713 was approved by the PLanning Board irf a decision dated July 11, 1989 subject to all the requirements of the Board of Health. If teh Board of Health decides to change their requirements (recommendations), then the PLanning Board approval may also be required for such grant. Let me know if you need any more information. A copy of the Decision is avaialble here. Page 1 LAW OFFICES OF PAUL REVERE , III 226 River View Lane Centerville, Massachusetts 02632 (508) 778-7126 January 18, 2000 Board of Health ' Town of Barnstable New Town Hall 367 Main Street Hyannis, Massachusetts 02601 -. RE: Application for Septic System Disposal Permit Lot 38, Calves Pasture Lane, Barnstable Village Scheduled for Hearing January 18, 2000 Dear Members of the Board: This letter is submitted on behalf of the Applicant, Laurie Warren, for a septic system permit for Lot #38 on Calves Pasture Lane in the Village of Barnstable (the "Property"). As you may remember, the Board of Health ("Board") held a public hearing on December 14, 1999, in which the Board requested that the Applicant: (i) revise the plans in the application to reflect surrounding geographical features; and (ii) obtain a written statement from the Barnstable Fire Department Water District that public water was unavailable for Lot #38. The Board also decided to schedule a site visit to view the Property. As you may also remember, I spoke on behalf of the Applicant and Charles Sabatt, an attorney, spoke on behalf of alleged abutters to the Property. Since the meeting, Mr. Sabatt has submitted a letter to the Board and the site visit was held on Friday, January 7, 2000. This letter further explains the permit application and respond to the comments of Mr. Sabatt. I apologize for submitting this letter on the day of the hearing as I have just recently,learned that the Board would be considering this application at its January meeting. 1. Merits of Application The Applicant requests relief from: (i) Part VIII, Section 1.00 ("1973 Setback . Regulation") for the septic tank and pump chamber;' and (ii) the 1973 Setback Regulation and Part VIII, Section 10.90 ("1992 Leaching Facility Setback Regulation") The term "pump chamber" is not used in Section 1.00 and, therefore, an argument can be made that Section 1.00 is inapplicable that unit. For purposes of this proceeding only, the Applicant concedes that Section 1.00 applies to the pump chamber. 1 for the leaching facility and reserve area.2 The application for Lot #38 warrants relief from both these requirements. A. Septic Tank and Pump Chamber The proposed septic tank and pump chamber are subject to,the requirements rof the- - 1973 Setback Regulation. These units are located 56 feet from the edge of a vegetated wetland that borders on a drainage ditch.3 The Board should authorize their construction in this location because these units will have no impact on the wetland. The 1973 Setback Regulation provides: Unless otherwise specified by the Board of Health, all cesspools, septic tanks, disposal fields, or other disposal systems hereafter constructed shall be located such that a distance of not less than one hundred (100) feet shall intervene between any watercourse including brooks, ponds, salt and freshwater marshes, bogs, streams, lakes or extreme high water mark of tidal waters and any portion of any cesspool, septic tank, disposal field or other sewerage disposal systems. . . . Town of Barnstable, Board of Health Regulations, Part VIII, Section 1.00 (emphasis supplied). The septic tank and the pump chamber will be watertight in accordance with Title 5 requirements. No leakage of septage will occur from either of these units and consequently there will be no impact to the wetland. Therefore, the Board should exercise its discretion and allow the septic tank and pump chamber to be located less than 100 feet from the vegetated wetland. To authorize construction in this location, the Board does not need to make a formal "variance" determination and the Applicant does not need to demonstrate that failure to grant the relief would constitute "manifest injustice." The 19'3 Setback Regulation uses the phrase "[u]nless otherwise specified by the Board of Health rather than unless granted a "variance" by the Board. The 1973 Setback Regulation is written in this manner so as to provide discretion for the Board to not only permit systems at distances of less than 100 feet to a wetland, but also to require a setback of greater than 100 feet if necessary to protect the wetland. Put another way, the 1973 Setback Regulation is a precursor to Subsection 1.14 of the 1992 Leaching Facility Setback Regulation. Subsection 1 .14 requires a distance of 250 feet from wetlands in areas of 2 No relief from the requirements of Title 5 of th;State Environmental Code ('Title 5") is required for the proposed septic system. 'The drainage ditch and bordering wetlands do not appear to be natural geographic features. Rather, adjacent property owners apparently constructed a system of drainage ditches on their properties that causes water to flow from a low-lying/swampy area on their properties to a culvert located under Calves Pasture Lane which then drains onto the Property. 2 , high groundwater and high soil permeability, and incorporates express numerical standards for the siting of such systems. The 1973 Setback Regulation provides the Board with discretion to adjust setback requirements as appropriate to protect the -` environment and appropriately does not use the term "variance" or explicitly (or even implicitly) incorporate the "manifest injustice" standard for the granting of a variance.4 Regardless, .:eve.-n if the "manifest injustice" standard of the � ti 1 Board of Health's �e plc P system,regulations, see Part VII, Section 10.00, Subsection 1.31, applied-it would be manifestly unjust prohibit placement of these units in this location when they will have no impact on the adjacent wetland. B. Leaching Facility And Reserve Area The proposed leaching facility and reserve area are subject to the requirements of the 1973 Setback Regulation and the 1992 Leaching Facility Setback Regulation. The leaching facility and reserve area are located 70 and 66 feet, respectively, from the edge of the vegetated wetland. The Board should authorize.their construction in this location pursuant to the 1973 Setback Regulation because these units will have no impact on the vegetated wetland. Likewise, the Board should grant a variance from the 100 foot setback requirement of Subsection 1.13 of the 1992 Leaching Facility Setback Regulations because enforcement of the requirements of that regulation would do manifest injustice and the system provides the same degree of environmental protection as a system meeting the setback requirement. With respect to the 1973 Setback Regulation, the location of the leaching facility and reserve will have no impact on the vegetated wetland. As explained in a December 14, 1999, letter by ENSR, Inc., the vegetated wetlands are an area of perched water that results from the surface flow of water onto the Property rather than from elevated groundwater. Attached as Exhibit One. In addition to the evidence cited in that letter, this conclusion is supported by the logs for Test Holes #3 and #4 where the leaching facility and reserve are proposed to be located on the Property which show that groundwater is significantly below the elevation of most of the drainage ditch. In particular, groundwater was not detected in Test Holes #3 and #4 at their maximum depths of elevation 20.0 and 15.4, respectively. The drainage ditch traverses approximately 155 feet from the Property's edge to the flood zone (elevation 11 .0). Of that distance, approximately 75 percent is located at elevation greater than 15 feet. Groundwater in the vicinity of the proposed leaching facility and reserve is not feeding the drainage ditch because it is located at an elevation below the bottom of the ditch. Thus, the construction of the leaching facility and the reserve within 100 feet of this vegetated wetland will have no detrimental impacts on it and the Board should Further support for this reading of the 1973 Setback Regulation can be found by comparing the terms of the regulation to other Board regulations adopt d in the early 1970s. In particular, the same Board of Health members adopted Part XII, Section 2.ODof the Board's regulations which specifies minimum lot sizes and well setback requirements. In that regulation, the Board not only used the term "variance" to describe any alteration to its requirements, but also the regulation sets forth specific standards for the granting of variances. Thus, the then existing Board members used the term "variance" and incorporated express decision criteria when they desired to limit their discretion in altering regulatory requirements. 3 exercise its discretion under the 1973 Setback Regulation and allow 'the leaching facility and reserve to be located less than 100 feet from the vegetated wetland. With respect to Subsection 1 .13 of the 1992 Leaching Facility Setback Regulation, the Board should grant a variance. A variance from that regulation may be granted if: (i) :.''the enforcement. [of the regulation] would do manifest injustice".; an' d.4ii):.the sae ' degree of environmental protection can be obtained. Subsection 1.31 of the 1992 Leaching Facility Regulation. As discussed previously, the Applicant has demonstrated that the construction of the proposed leaching facility and reserve area will have no impact on the vegetated wetlands. Thus, a variance must be granted if the Applicant demonstrates that "the enforcement [of the regulation] would do manifest injustice." The 1992 Leaching Facility Setback Regulation does not define "manifest injustice" or describe the nature of the demonstration required to be made by the applicant. Here, the Applicant purchased an interest in the Property in 1998 with the expectation that a four or more bedroom house could be built on the Property based upon a 1989 subdivision plan which showed limited wetlands and one and one half acres of upland.' However, as can be seen by a review of the plan submitted by the Applicant which includes a more recent wetland delineation ' there is no location on the Property where a septic system and reserve of any size can be built without a variance from the 1992 Leaching Facility Setback Regulation. In particular, no area on the western two thirds of the Property is more than 100 feet from a wetland. The only area on the eastern third of the Property which is more than 100 feet from a wetlandis a small sliver of land which comprises the southern 25 percent of the proposed system. In sum, the Property, which was created by a subdivision approved by the Board slightly more than ten years ago and contains more than one acre of upland is unbuildable without a variance from the 1992 Leaching Facility Setback Regulation. Under the current zoning of the Property, a residence is the only use available use of the Property. Thus, enforcement of the 1992 Leaching Facility Setback Regulation will "deprive the Applicant of substantially all beneficial use of the subject property"' and, therefore, a variance should be granted. II. Objections of Alleged Abutters And Subdivision Approval Without naming his clients,' Mr. Charles Sabatt attended the Board's December 14, 1999, meeting and objected to the issuance of septic system permit for the Property. Mr. Sabatt objected to the issuance of a permit based upon a June' 7, 1989, letter issued by the then sitting Board approving the subdivision that created this lot (the 8 The effect of those wetlands on the construc�on of a septic system is discussed below. 8 The wetland delineation shown in,the application was obtained by the Applicant and approved by the Barnstable Conservation Commission. 'The quoted language is from 310 C.M.R. 15.410(2) which addresses variances under Title 5. 8 At a.previous Board meeting in August, Mr. Sabatt stated that he represented the Cooks who own property at the end of Calves Pasture Lane which does not abut the Property 4 "June 1989 BOH Letter").' In particular, the June 1989 BOH Letter provided that: (i) variances from Title 5 and the Board's septic system regulations will not be granted, and (ii) a public water supply must be provided for each lot. Noticeably absent from Mr. Sabatt's comments are any allegation that the granting of a variance or construction of a well on the Property will result in any adverse impact on public health or,ahe..environment. The Board,should issue the septic system permit`for=the.Property and not require connection to public water regardless of Mr. Sabatt's objections. 1. Variances From Title 5 and Board of Health Requirements The primary focus of Mr. Sabatt's arguments was.that the Board is prohibited from granting a variance due to the statement in June 1989 BOH Letter approving the subdivision and providing that variances from Title 5 and the Board's septic system regulations will not be granted. The June 1989 BOH Letter: (i) cannot limit the authority of the Board to grant variances as it deems appropriate; (ii) unlawfully imposed a prohibition on variances; and (iii) must be read to address only the applicable 1989 regulatory requirements and conditions at the Property. The 1989 BOH Letter cannot limit the authority of the Board to grant variances as it deems appropriate." The Board is a regulatory body created by statute. The Board is empowered to act as it deems appropriate on a septic system permit application subject only to the limitations in state statutes and regulations, and local ordinances and regulations. No prior Board possesses the power to limit the authority of later Board except through the adoption of regulations." Here, Mr. Sabatt's position is that the 1989 Board limited the current board's authority to decide on the issuance of a permit for the Property. Put another way, Mr. Sabatt argues that the 1989 Board had the authority to control the actions of all future Boards.72 No statute or regulation provides such authority or even supports his position. Simply, the 1989 Board had no greater authority than the current Board. Under these circumstances, the Board has the power to decide on the merits of the Applicant's permit application and is not bound to follow the pronouncements of the 1989 Board. In this regard, it should be noted that the attempt limit the discretion of future Boards to grant variances does not appear to be the result of a site-specific determination of the 1989 Board. A review of the letters of the Board of Health for subdivisions approved at that time shows that every Board letter includes the prohibition on variances. Thus, contrary to Mr. Sabatt's comments, the limitation does not derive from concerns of abutters to the Property. 9 Mr. Sabatt's comments also are set forth in letters dated December 14, 1999, and December 23, 1999. 10 It should be noted that the 1989 BOH Letter requires that a deed restriction be recorded imposing a limitation on variances. This restriction was never recorded by the person who subdivided the Property. As the Board is well aware, the adoption of reaulations addressing septic systems are subject to special requirements including publication, public heaings, and, if more stringent than state requirements, a statement as to the local need for the regulation. It is doubtful that the 1989 BOH Letter would qualify as a valid regulation. 72 An analogy could be made to the Town Council (or any other legislative body) passing an ordinance which states it cannot be repealed by a later Town Council. 5 The limitation on variances in the 1989 BOH Letter also is prohibited by the decision in Fairbairn v. Planning Board of Barnstable, 5 Mass. App. Ct. 171 (1978). In particular, the Fairbairn case unequivocally states "the board of health would be acting -` prematurely and unreasonably if it were to take any action with respect to [Title 5] other than requiring the planning board to endorse a condition on the definitive plan to the, effect that.n_o dwelling shall be built on any lot without first-,securing from the board of health the disposal works construction permit required by the code." Fairbairn, at 185 (.citations omitted and emphasis supplied).t3 Here, the 1989 Board did more than allowed by Fairbairn in that it set forth specific limitations on the granting of a permit for the Property and, thus, the inclusion of the limitation on variances was unlawful. .On December 23, 1999, Mr. Sabatt provided a letter to the Board setting forth his opinion on the meaning of the Fairbairn case. Mr. Sabatt's letter completely ignores the above quoted language which is the most relevant portion of the decision and argues that the Board should impose the limitation on variances because the subdivider did not appeal the 1989 Board's decision.'° Essentially, Mr. Sabatt is telling the Board that it should affirm the unlawful actions of the 1989 Board and that two "wrongs" make a "right." The Applicant's position with respect to this argument is simply that, if the 1989 Board should not have imposed the limitation, the Board can correct that action by making its own independent judgment on the merits of the application. In contrast, Mr. Sabatt's position is that the Board must blindly follow the path of the 1989 Board regardless of the validity or appropriateness of its actions. Lastly, if the Board concludes that the limitation on variances in the 1989 BOH Letter must be enforced, that limitation must be read to apply only to those requirements of the Board which existed in 1989 and remain in effect today. As explained above, the Applicant has requested relief from two requirements of the Board: (i) the 1973 Setback Regulation; and (ii) the 1992 Leaching Facility Setback Regulation. The 1973 Setback Regulation was in effect in 1989; whereas the 1992 Leaching Facility Setback Regulation post-dates the subdivision that created the Property. Therefore, the limitation on variances only is relevant to the request for relief from the 1973 Setback Regulation. As discussed in detail previously, relief from the 1973 Setback Regulation is not a "variance." Rather, the regulation provides authority for the Board to designate a setback as appropriate for the proposed system. Thus, the limitation on variances does not place any restriction on the Board's ability to grant relief from this regulation. " Additionally, when considering the meaning of Fairbairn, you should note that the court quoted the variance provision of the Title 5 regulations in effect at that time in a footnote immediately preceding the quoted sentence. " Mr. Sabatt's letter does cite part of the senter ce, but does so in a deceptive manner by removing the bold language from the sentence as follows: `the board of health would be acting prematurely and unreasonably if it were to take any action with respect to [Title 5] other than requiring the planning board to endorse a condition on the definitive plan to the effect that no dwelling shall be built on any lot without first securing from the board of health the disposal works construction permit required by the code." December 23, 1999, Sabatt Letter, at p. 1. 6 In addition and to fully understand the 1989 BOH Letter, the Board should consider the need for variances in 1989. In 1989, the Property had far less extensive wetlands as is demonstrated by the 1989 subdivision plan. Furthermore, a septic system under the 1978 Title 5 code could use leaching pits for the leaching facility. Thus, at the time of the 1989 BOH Letter, a septic system which met Title 5 code and local regulations could be constructed on the Property based-on the wetlands delineation in rthe 1989 subdivisiorT plan without a variance or other relief. When the 1989 Board imposed the limitation on variances, it was addressing a property that did not need variances under applicable law. Today, the need for relief from/the 1973 Setback Regulation is driven primarily by the size of the leaching facility which is mandated by the 1995 Title 5 Code. To use the 1989 BOH Letter to prohibit relief caused by the 1995 revisions of Title 5 would be fundamentally unfair reading of the variance limitation in the 1989 BOH Letter. 2. Public Water Supply The alleged abutters and the Board have also expressed concerns regarding the requirement in the 1989 BOH Letter to provide public water to the Property. The Applicant's position is that issue of water supply for the Property is irrelevant to the determination of whether to issue a septic system permit for the Property. Regardless, to the extent that the Board desires to address this issue, the Applicant believes that the Board should waive this requirement because public water is unavailable for the Property. The proceeding before the Board is an application for septic system construction permit. Neither the applicable regulations nor the permit application requirements impose an obligation that the Applicant demonstrate that it has a water supply for a property. Thus, the issue of whether the Applicant has complied with the requirement to provide public water to the lots is simply irrelevant. That issue can be addressed if and when the Applicant applies for permit for construction of a well pursuant to Part XII, Section 3.00 of the Board's regulations. To the extent that the Board desires to address the issue of supplying public water to the Property, the Applicant's position is that the Board should waive this requirement. Like the limitation on variances, the public water supply requirement derives from the 1989 BOH Letter. As discussed previously, the Board has the power to decide on the merits of this matter and is not bound to blindly follow the pronouncements of the 1989 Board. Here, the Applicant has approached the Barnstable Fire District Water Department ("Water Department") regarding connection of the Property to the water main on Scudder Lane. By letter dated February 5, 1999, and again at their December board meeting, the Water;)epartment has informed the Applicant that they cannot connect to the water main at Scudder Lane unless the Applicant provides funds to upgrade the water main on Scudder Lane all the way to its connection to the main line on Route 6A and also to reconnect all existing customers of the Water 7 Department.15 While the exact cost of the upgrade of the water main is not known, the cost is likely to exceed $100,000 and the Water Department appears to desire that the Applicant pay a significant portion of those costs in addition to the cost of the water line ,, from Scudder Lane to the Property which in itself may exceed $30,000. Thus, the cost to supply public water to the Property is excessive. Under the circumstances, it is appropriate to examine the source of the 1989 Board's authority to impose a requirement to connect to public water at the Property. The 1989 Board promulgated a regulation, Part XII, Section 3.00, Section 19 (the 1989 Water Regulation"), which provides that: "The Board of Health may at its discretion require single family, multi-family, or commercial structures located within 300 feet of a municipal water line, to connect to municipal water." The use of a distance limitation in the 1989 Water Regulation demonstrates that the 1989 Board intended that costs be considered in deciding whether to require connection to public water supply lines. Furthermore, .nothing in the regulation requires "structures" which are less than 300 feet to connect to public water and the decision as to whether to require connection of a structure within 300 feet was left completely to the discretion of the Board. Here, the proposed single family home is located approximately 600 feet from Scudder Lane.16 This distance is more than twice the distance specified in the 1989 Water Regulation. Thus, it can be surmised that the 1989 Board imposed the water connection requirement in the 1989 BOH Letter because it believed: (i) water was available at Scudder Lane; and (ii) connection to such water could be made at a reasonable cost. As explained above, neither of these circumstances exist. The Water Department will not allow the Applicant to connect to the main at Scudder Lane unless it pays for the upgrade of the line from Route 6A and reconnection of existing users. The costs of such connection are unreasonable not only to connect to Route 6A, but also to run a pipe to Scudder Lane. Under the circumstances, the Board should allow that the Property be developed without a public water supply. 3. Alleged Abutters' Failure to Demonstrate an Adverse Impact on Public Health or the Environment Mr. Sabatt has made numerous comments of behalf of alleged abutters in opposition to the application before the Board. Although the alleged abutters have hired Horsley and Witten and Mr. Sabatt in their attempts to block the permit and they have submitted letters in opposition, the submissions of the alleged abutters fail to state that the issuance of a septic permit will have any impact adverse impact on public health or the environment. In fact, the record is completely devoid of any evidence of adverse 5 The Applicant has had numerous discussions with the Water Department's superintendent and attorney in her attempts to obtain an additional letter regarding this matter for the Board's review. Additionally, the Applicant has concerns regarding the propriety of the Water District request that she provide funds which will primarily benefit the private property owners on Scudder Lane. 16 The Property is located approximately 400 feet from the water supply line. 8 impact. Essentially, the abutters' argument boils down to an opposition to any development of the Property. Put another way, the alleged abutters simply desire that the Applicant be forced to maintain open space in their neighborhood for their benefit. -' If the alleged abutters desire the Property to remain open space, the alleged abutters should purchase the Property rather than attempt to use this Board's powers to prohibit the Applicant's development. 111. Conclusion The Applicant has demonstrated that it should be granted relief from the 1973 Setback Regulation and the 1992 Leaching Facility Setback Regulation. Additionally, if the Board decides to consider water supply issues, the Board should waive any requirement to connect the Property to public water. I will be available at the January 18, 2000, meeting to answer any questions. Very Y trul yours, Paul Revere, III r 9 x G, k14 ONE Celebrating 30 Years of Excelle,-Ce in Environmental Services . 95 Sate Road December 14, 1999 Buzzards Bay,MA 0= (5M)a8&3U FAX(508)8864M web:httpjjw^jnsr.tam Laurie A. Win Kilroy & Warren, P.C. 67 School Street P.O. Box 960 Hyannis, Massachusetts 02601-0960 8726-519 RE: Review of Wetland and Surface Water Flow Information Calves Pasture Lane,.Lot 38 Barnstable, Massachusetts Dear Laurie: As requested, ENSR has reviewed the percolation test information provided by Down Cape Engineering, Inc. in addition to the field observations that we collected at the above- referenced site. It is our understanding that you are requesting a variance from the regulations goveming required setbacks from jurisdictional wetland resource areas. The Barnstable Conservation Commission ("BCC") determined that the boundaries of the wetland resource areas, which were delineated by ENSR in 1998, were accurate. The BCC approved these boundaries for a three-year y period when they issued an Order of Resource Area Delineation (WPA Form 413) on April 6, 1999. On several occasions from 1996 to 1999 ENSR observed conditions on Lot 38 and on adjacent lots for the purpose of wetland boundary delineation and to better understand surface water flow patterns_ We concluded that the stream flows observed on Lot 38 were intermittent in nature and that these flows originated from a scrub-shrub swamp located to the north of Lot 38. During significant storm events, and primarily during the winter and earty spring, several channels directed surface water from this wetland onto Lot 38 and adjacent Lot 39. The water entered onto these properties. through cross- culverts installed beneath Calves Pasture Lane. The stream located on the eastern half of Lot 38 was located within a relatively nano shrub-dominated wetland plant community. We believe that it is the water from this stream that creates the conditions primarily responsible for the growth of wetland- indicator plants. The species most commonly observed in this bordering wetland community was northern arrowwood (Vibumum dentatum), a facultative-wetland indicator Plant. Facultative plants have a 34-66 percent frequency of occurrence in wetlands or in upland communities (Wetland Indicatbrs, Tiner, 1999). Species including Morrow's honeysuckle (Lonicera monrowii) and eastern red cedar (Juniperus virginiana) were also observed as part of the bordering wetlandand adjacent upland. Both of these species are f"cUttative-upland indicator plants. Facultative-upland plants have a 1-33 percent frequency of occurrence in wetlands (Tiner, 1999). According to the Bamstable County Soil Survey (Soil Conservation Service, 1983)("th soil survey"), Lot 38 is located within an area mapped as a Boxford silt foam (3-8 percent ® Consulting Engineering R e m e d i a. l i o n e Laurie A.Warren December 14, 1999 Page 2 slopes). The Boxford soil series is not listed as a hydric soil series according to Hydric Soils of New England (liner and Veneman, 19�7). Permeability in the subsoil and substratum of these soils is typically slow or very slow due to the sitty and clayey sediments within which these soils formed. ENSR's soil profile observations to depths of approximately 24 inches were consistent with information provided in the soil survey. It is likely that the percolation of surface water flowing down a slope comprised of these soils would be limited. These soil conditions would likely result in a perched water table, which would contribute to the conditions favoring the growth of a community of wetland-indicator plants. Down Cape Engineering reported that on Lot 38 during a percolation test that occurred June 3, 1999 the depth to groundwater observed in test hole 1 was greater than 18 feet. Similarly, in test hole 2 on July 6, 1999 the depth to groundwater was greater than 13 feet. From this information, it appears that groundwater is at a significant depth below the soil surface. ENSR believes that water at this depth would not be responsible for producing aquic conditions near the soil surface (i.e., the root zone) that would result in the growth of a characteristic community of wetland indicator plants. It is our opinion that the surface water flow and not the presence of an elevated groundwater water table results in the aquic conditions exhibited by the bordering vegetated wetland on Lot 38. This opinion is based upon the following observations: • the predominance of facultative and some facultative-upland plants in the wetland community, • the reported depth to groundwater in the percolation test areas on the property, and • the permeability characteristics of the soils on this site resulting in a perched water table. If ENSR is able to provide you with additional services for this project, please do not hesitate to contact me. Sincerely, E R D. Michael Ba Wetland Scientist ' Cc: Arne H. Ojala, PE TOTAL P.03 �oF THE r°y� Town of Barnstable, Massachusetts ' Department of Planning and Development S& ' Office of The Planning Board Aj f0 MAt A 367 Main Street,Hyannis,Massachusetts 02601 (508) 775-1120 ext. 190 DATE: 5/24/89 TO: FIRE DISTRICT WATER DISTRICT CONSERVATION COMMISSION COMMONWEALTH ELECTR BOARD OF HEALTH ENGINEERING FROM: BARNSTABLE PLANNING BOARD OFFICE RE: SUBDIVISION # "7 1 3 "HARRY C. & SUSAN R. JILSON" PLAN ENTITLEDSUBDIVISION PLAN OF LAND IN BARNSTABLE, MASS. TO BE FILED IN THE LAND COURT SHOWN AS LOT 20 ON LAND COURT PLAN #02950E SCALE 1"=40 ' PLAN DATED: 01/31/89, REVISED 04/03/89 , & REVISED 05/22/89 PLAN LOCATION: SOUTH OFF CALVES PASTURE LANE, WEST OF SCUDDER LANE, BARNSTABLE, MASS. PLAN ENGINEER: DOWN CAPE ENGINEERING MAP 259 PARCEL # 1 ACREAGE• ZONING: RF-1 LOTS: 3 DATE SUBMITTED: MAY 23 , 1989--135 days 10/05/89 PRELIMINARY DEFINITIVE_ GRID X OPEN SPACE The above captioned subdivision plan has been submitted to the Planning Board. A public hearing action has been scheduled for J'UNE 1. 9 1 9 8 9 Please -forward any recommendations or comments to the Planning Board office before this date. r Town of Barnstable Legal Department - Town Attorneys' Office, 367 Main Street, Hyannis MA 02601-3907 Inter-Office Memorandum M Robert D. Smith, Town Attorney Office: 508-862-4620 Ruth J. Weil, 1 st Assistant Town Attorney Fax: 508-862-4724 Claire Griffen, Paralegal/Legal Assistant T. David Houghton, Assistant Town Attorney �. Terri Cahalane, Legal Clerk Date: June 7, 2000, To: Tom McKean, Director of Public Health, T.O. From: Ruth J. Weil, 1 st Assistant Town Attorney Subject: Complaint of Kuhn & Warren v. Bd. of Health, C.A. #00-285 Legal Ref. #2000-0074 ---------------------------------------------------------------------------------------------------------- This will follow my earlier memo to you regarding the above matter. (1) Would you please also have the tapes of the meetings transcribed at the earliest possible date and when they are done, please give us a call, x4620. (2) We will need to have you assemble all the documents you have which you want included into an "Administrative Record". The Court will accept this assembly of records into a 3-ring binder wide enough to accommodate the documents. You will have two months to prepare this administrative record and then give it to us. Included on the face of your documents should be your affidavit and a list of the documents you are making as part of this record. We will be diarying August 7th for submission of your Administrative Record. Conservation does Admin. Records for their office and you might want to touch bases with them to see what is expected of you. Thanks. RJW:cg Atchmt. (2000-00741mckean-2] II �I gam• STANDARD LEGEND �ro.0 mtbkwn '\ C�_ ,` _ 3`"• `'11J C -.> 601E COURSE FAIRWAY Kcatu05 TREES ' lJ EDGE OF BRUSH ' r_ / - - � ; •1 "-��, i�_ �'' ��,. � °ern: '' ORCHARD OR NURSERT� �, I CONIFER016 TREES- , MARSH AREA:. EOM OF WATER L � �'I ,, 0 < ' � ��o'l•\ �J��� '�1��\ � a Z � _-___ � ___ DIRTRDAD ��, / \� \ - a DRIVEWAYS s✓".""`- I ' 7 , 11 11�1•�—PARgN6 UTE - PAVED ROAD I o DWES PATH/TRAIL '. `�I\/•/ 'I,i' : 11 PROPERTY LINES LS/ / . 3 �' :"' r— MAP z\—PARCEL NUMBER {_�-'�` NUMBER - � ❑ 'I i .� O �= � 2F00T NNTOUR LINE I 1O F00T CONTWR UNE + i SPOT ELEVATION I jI I Li < _'- / '--- STONE WALL TENS I Cv� ,/ 5ro•' }-' RETAINING WALL 1.. � • 3' � 3 I Q 3^ ;"e - /. RAIL ROAD TRACTS STONEPETIY SWWANG POOL . / W POROI/DEa �. / // Q• s �!��•-� � - 0. �_Q__ ; v j '_ J cy• I tl\ ,' u- BUILUINGS/STRUCTURES t JJ F4h` DD(I(,HER,IETIY I ASSESSORS MAP BDUNDAIO' �a_ - - lVM SaN3d3HS I / J 6 YMYE m WHIRRS �' o POST p" NASW QSo smoum �1Al\ a0 Polla TONER Lo Eris o U8n o E1EOBm! I i N a h 1 a 3—• J � �I I 2' 3 v � �� � a � •� � � 3a _ ____--_ - -��- _ _ ___- ��- _ _ :,: =� SITE MAP r T.O.B.6E0611PHIC INFORMATION SYSTEMS UNIT SCALEin feet ll Q M y r- 3 2 - , y III ' 'so ; 0 100 200 -_ y��•a r \ c/�Q� - / ' I 1 IN❑1=200 FEET' 2cl i Taft P - o „ I� '� �I � ` '!��I ;' ;� �� � I '�I �, �� .., �I %.• ,�I �I \\ ___-- .y—`�,' � N166s•.dw m�.. . _^ - ,./ _ - 0 , W \ �I..�I\\ _/ I �I \ I ;"-L�-I- "-�:,' ^ �/ I ✓ 'I , - I I I iy iVN S/RE010.r6 V � 4muHxDTTM U�HlalnF5a8x1sfA1pRs of 1 '� �, � . . . �I ..-.. � - =��'=;.. '---'-=�1 �I , �I �••. 4EIDp�NgIOSNR.Di•_dpp.NiiXWI®NI•_\m. �I ';y „. _ .a a �� 1, �I ��,... `�.-<\ � � ._ � •• ; rwmaMam®rm.r_Ime�s�wrslsn. `._ ' ., � � _1 r T ^:'•1 �I Y I ,�� � I \ / �, auwxmar-Im.muaawsnsl®uAewoaT a Town of Barnstable 03-13-2000 Treasurer's Office Tel: 508-862-4653 230 South St. Hyannis,MA. 02601 Tax Title Account Summary Account: 4657 - Name : 7ILSCN,HARRY C. Taking Date: 03-08-1993 ' Recorded: Map Parcel: 259 001 002 i Registered: 576968 Location: 71 CALVES PASTURE LANE Deed: C 1187 Village: Barnstable Fire District: Barnstable *Interest Due is calculated thru: 03-13-2000 Interest Per Diem: 6.370 Initial Principal Interest Year Principal Paid Paid Principal Due *Interest Due Fees Due Total Due 1991 1589.97 0.00 0.00 1589.97 1785.65 0.00 3375.62 1992 1412.64 0.00 0.00 1412.64 1572.25 0.00 2984.89 1993 1391.69 0.00 0.00 1391.69 1484.27 0.00 2875.96 1994 1432.33 0.00 0.00 1432.33 1278.97 0.00 2711.30 1995 1515.35 0.00 0.00 1515.35 1063.49 0.00 2578.84 1996 1916.81 0.00 0.00 1566.81 838.61 350.00 2755.42 1997 1662.83 0.00 0.00 1662.83 497.85 0.00 2160.68 1998 1977.15 0.00 0.00 1977.15 160.34 0.00 2137.49 1999 1982.08 0.00 0.00 1982.08 54.74 0.00 2036.82 9999 34.83 0.00 0.00 0.00 0.00 34.83 34.83 Total: 14,915.68 0.00 0.00 14,530.85 8,736.17 384.83 23,651.85 Page 1 of 1 °FZHE to Town of Barnstable, Massachusetts Department of Planning and Development ' a,►R,�sens:.e,MASS. Office of The Planning Board � �A . 1639. MA'i s 367 Main Street,Hyannis, Massachusetts 02601 (508) 775-1120 ext. 190 July 11 , 1989 r - Aune Cahoon, Town Clerk = '} j Town of Barnstable Town Hall -a _ 367 Main Street Hyannis, MA 02601 Re: DEFINITIVE SUBDIVISION #713 Grid Definitive Subdivision #713; "Jilson"; Subdivision Plan of Land in Barnstable, Mass.to be Filed in the Land Court Shown As Lot 20 on Land Court Plan #02950E Scale 1"=40' ; Plan dated 01/31/89, revised 04/03/89 8 05/22/89; Down Cape Engineering; 3 lots; located south off Calves Pasture Lane, west of Scudder Lane, Barnstable; Assessor's Map 259, Parcel 1 . At a duly posted meeting of the Barnstable Planning Board held July 10, 1989, it was voted to APPROVE the above captioned DEFINITIVE subdivision plan subject to the following: 1 ) That the grade and surface of the present road be maintained to be serviceable as a four season road; 2) That the trees and brush be trimmed and maintained to a width of seven (7) feet from the center of the roadway on each side, and no Jess than twelve ( 12) feet in height; 3) All the requirements of the Board of Health; 4) That the applicant be granted a waiver of the drainage and road construction requirements . Respectfully, osep table artell , Chairman Ba Planning Board 1� -� tel.(508)362-4541 939 main street rt 6a LV fax(508)362-9880 yarmouth port mass 02675 down cope enginee.iag civil engineers& land surveyors 4 structural design Arne H.Ojala P.E.: P.L.S. Timothy H.Covell,P.L.S. land court November 27, 1999 Daniel A.Ojala• P.L.S. surveys Barnstable Board of Health site planning 367 Main Street Hyannis,MA 02601 sewage system Re: Lot 38 Calves Pasture Lane, Barnstable Village designs Dear Board Members: inspections On behalf of our client, we are hereby requesting variances under Town of Barnstable Health Regulation Part VHL Section 1.00. Specifically, the variances are as follows: permits 1. Proposed primary leaching facility to be 70' from the edge of a bordering vegetated wetland(30' variance requested); 2. Proposed septic tank to be 51/ to the edge of wetland (4 variance requested); 3. Proposed reserve leaching facility to be 66' to the edge of wetland (34' variance requested). The resource area delineations shown on the plan have been confirmed by the Conservation Commission under filing SE3-3494. These resource areas include bordering vegetated wetland, intermittent stream, salt marsh, coastal bank, land under waterways, and land subject to coastal storm flowage. According to a report submitted by ENSR to the Conservation Commission as part of the resource area delineation filing, surface waters originating from a swamp to the northeast of Lot 38 flow intermittently via three culverts under Calves Pasture Lane during storm events. .The water is discharged onto Lot 38 and the abutting Lot 39. Test holes performed over previous years in various areas of the lot have indicated the presence of silt loam and sandy loam soils to depths of as much as 14.5'. Due to the impervious nature of the soils present and the fact that there are no man-made drainage structures on Lot 38, the surface waters originating from the swamp to the northeast are not to percolate downVard on Lot 38 (i.e. it is perched water) and, therefore, the surface waters are not hydraulically connected to groundwater on the lot. The discharge point for these surface waters is the salt marsh to the south of Lot 38. /0 The closest point of the primary leaching facility to this perched wetland community is 70'. This distance is perpendicular to the site-specific groundwater flow in this area, which is from northeast to southwest. Thus, any waste residue which reach groundwater will not flow toward the bordering vegetated wetland to the west, but rather will flow in a southwesterly direction, i.e., toward the marsh. The leaching facility is 1Q2' directly upgradient from the wetland to the south. The base of the leaching facility is at least 20' above the tr4e groundwater level. The septic tank and pump chamber are both proposed to be factory certified waterproof, as another added level of protection. The two inch pressure line is proposed to be hand-dug under the ditch/channel which transports water intermittently between the culvert under Calves Pasture Lane and the wetland on Lot 38. An extension of this culvert to replace the ditch is proposed, in order to assure a more permanent continuence of this connection to the wetland on Lot 38. This culvert will serve;as well, to protect the 2"pressure line proposed to be installed under the culvert. Lastly, and as can be seen from the plan, there is no other location on the property where a sewerage disposal system could be located that has a greater setback from adjacent wetlands. The only means to obtain a greater setback would be through a waiver of Title 5 property line setback requirements, and to the extent that the Board desires that the system be located closer to the property line to increase the wetland setback, the applicant is willing to consider such an alternative. In sum, enforcement of full compliance with local setback requirements would be "manifestly unjust" considering that the system is at least as environmentally protective as a system which meets the setback requirements because groundwater flows towards a wetland which is greater than 100 feet from the primary leaching facility. I look forward to meeting with the Board to discuss the proposed plan. Very truly yours, Arne H. Ojala, PE, PLS Down Cape Engineering, Inc. v l� teL(508)362-4541 939 main street rt 6a fax(508)362-9880 yarmouth port mass 02675 down cape engineering-. civil engineers& land surveyors structural design Arne H.Ojala P.E., P.L.S. Timothy H.Covell,P.L.S. land court November 27, 1999 Daniel A.Ojala.P.L.S. surveys Barnstable Board of Health site planning 367 Main Street Hyannis,MA 02601 sewage system Re: Lot 38 Calves Pasture Lane, Barnstable Village designs Dear Board Members: inspections 4n behalf of our client, we are hereby requesting variances under Town of Barnstable ` —-- Health Regulation Part VM Section 1.00. Specifically, the variances are as follows: permits 1. Proposed primary leaching facility to be 70'from the edge of a bordering vegetated wetland(30' variance requested); 2. Proposed septic tank to be 5IV to the edge of wetland(4 6 variance requested); 3. Proposed reserve leaching facility to be 66' to the edge of wetland(34' variance requested). The resource area delineations shown on the plan have been confirmed by the Conservation Commission under filing SE3-3494. These resource areas include bordering vegetated wetland, intermittent stream, salt marsh, coastal bank,land under waterways, and land subject to coastal storm flowage. According to a report submitted by ENSR to the Conservation Commission as part of the resource area delineation filing, surface waters originating from a swamp to the northeast of Lot 38 flow intermittently via three culverts under Calves Pasture Lane during storm events. The water is discharged onto Lot 38 and the abutting Lot 39. Test holes performed over previous years in various areas of the lot have indicated the presence of silt loam and sandy loam soils to depths of as much as 14.5'. Due to the impervious nature of the soils present and the fact that there are no man-made drainage structures on Lot 38, the surface waters originating from the swamp to the northeast are not able to percolate downward on Lot 38 (i.e. it is perched water) and, therefore, the surface waters are not hydraulically connected to groundwater on`the lot. The discharge point for these surface waters is the salt marsh to the south of Lot 38. as .J The closest point of the primary leaching facility to this perched wetland community is 70'. This distance is perpendicular to the site-specific groundwater flow in this area, which is from northeast to southwest. Thus, any waste residue which reach groundwater will not flow toward the bordering vegetated wetland to the west, but rather will flow in a southwesterly direction, i.e.,toward the marsh. The leaching facility is.1.QL directly upgradient from the wetland to the south. The base of the leaching facility is at least 20' above the true groundwater level. The septic tank and pump chamber are both proposed to be factory certified waterproof, as another added level of protection. The two inch pressure line is proposed to be hand-dug under the ditch/channel which transports water intermittently between the culvert under Calves Pasture Lane and the wetland on Lot 38.. An extension of this culvert to replace the ditch is proposed, in order to assure a more permanent continuence of this connection to the wetland on Lot 38. This culvert will serve, as well, to protect the 2"pressure line proposed to be installed under the culvert. Lastly, and as can be seen from the plan, there is no other location on the property where a sewerage disposal system could be located that has a greater setback from adjacent wetlands. The only means to obtain a greater setback would be through a waiver of Title 5 property line setback requirements, and to the extent that the Board desires that the system be located closer to the property line to increase the wetland setback,the applicant is willing to consider such an alternative. In sum, enforcement of full compliance with local setback requirements would be "manifestly unjust" considering that the system is at least as environmentally protective as a system which meets the setback requirements because groundwater flows towards a wetland which is greater than 100 feet from the primary leaching facility. I look forward to meeting with the Board to discuss the proposed plan. Very truly yours, Arne H. Ojala, PE, PLS Down Cape Engineering, Inc. a� ARDITO, SWEENEY, STUSSE, ROBERTSON &DUPUY, P.C. ATTORNEYS AT LAW MATTACHEESE PROFESSIONAL BUILDING 25 MID—TECH DRIVE,SUITE C WEST YARMOUTH,MASSACHUSETTS 02673 EDWARD J.SWEENEY,JR. TELEPHONE(508)775 3433 � RICHARD P.MORSE,JR. MICHAEL B.STUSSE BETSY NEWELL DONNA M.ROBERTSON FAX(508)790-4778 PAUL R.TARDIF' MATHEW J.UUPUY CHARLES J.ARDITO.P.C. CHARLES M.SABATT c ;:✓ .. *also admitted in MAINE PLEASE REFER TO June 15, 1999 FILE NUMBER G4427X a f Mr. Roy Fogelgren, Chairman �a Planning Board Barnstable Town Hall Hyannis, .Massachusetts 02601 Re: Definitive Subdivision No. 713, Calves Pasture Lane Assessors Map 259, Parcels 38 and 39 (formerly Assessors Map 259, Parcel 1) Dear Mr. Fogelgren: Please be. advised that the undersigned represents certain. abutters to the above referenced parcels located .on Calves Pasture Lane in Barnstable, Massachusetts. I' am. enclosing herewith for your reference,a photocopy of a letter from the, Barnstable Board of Health to the Barnstable Planning Board dated June 7, 1989 as well as a photocopy of the notice of approval of the definitive subdivision plan dated July 11, 1989 as recorded with the Town Clerk of the Town of Barnstable. In its approval of Definitive Subdivision 713 dated July 11, 1989, the Barnstable Planning Board made such approval subject to certain provisions among which was provision number 3 which conditioned approval upon compliance with "all the requirements of the Board of Health. " Among those requirements as set forth in the June 7 , 1989 Board of Health letter regarding this subdivision was the requirement that the developer "shall have recorded on the deed that variances from Title 5, Minimum Requirement for the Subsurface Disposal of Sanitary Sewage or the Town of Barnstable Health Regulations, whichever is more stringent, will not be granted on any lot in this subdivision. . . " T have undertaken a title rundown of the title to- the twn pill ce 11-tit Were 47-r a.:.Pc] {' , 11i4_' as of this date I cannot find that the above restriction was recorded against the titles to these two parcels. Accordingly, the developer has not complied with the requirements of the Board of Health and therefore is in violation of the definitive subdivision plan approval. 3y Mr. Roy Fogelgren, Chairman June 15, 1999 Page 2 Currently, the holders of one of the mortgages recorded against the two parcels, namely Laurie A. Warren and Christopher Kuhn, have begun certain activities on the parcels consisting of the undertaking of percolation tests with a probable eye toward ultimate development of the lots for the construction of single- family structures thereon. As the current or probable developers of the lots, these mortgage holders should be required to record ,the restriction set forth within the fourth paragraph of the June 7, 1989 Board of Health letter. Probably, in its 1989 letter the Board of Health intended the word "developer" to mean the applicant or the then and current record owner, Harry and Susan R. Jilson. Alternatively, these record owners, namely the Jilsons, may likewise have been required to record such a restriction. I am writing to respectfully request that your Board or its planning staff undertake an investigation of this matter and thereafter take appropriate steps to rescind the definitive subdivision: plan approval by reason of � the fact that the above referenced specif is requirement of the .Board of Health. has not:,been complied with. Furthermore, in the event that the above mortgage holders or any other _ persons - request relief from.. . the Planning,., Board­or ., o cations for relief. � ap provals, modifications r otherwise file applications , PP � PP - otherwise, I would appreciate being notified immediately so that I can be present to. represent the _interest of my clients. . , Thank you for your attention to this matter. Very truly yours, Charles M. Sabatt CMS:lcs Enclosures cc: Ms. Jackie Edson Bernard Kilroy, Esquire Mr. Robert Gatewood Mr. William Cook O TOWN OF BARNSTABLE �pF THE T�� OFFICE OF EJH HAEL i BOARD OF HEALTH 165 AB6 OM Y� 367 MAIN STREET HYANNIS, MASS. 02601 June 7, 1989 Mrs. Susan H. Rohrbach Re: Definitive subdivision plan of land in Barnstable Chairperson, Planning Board Petitioner: Harry and Susan R. Jilson Barnstable Town Hall Date: January 31, 1989 - Revised April 31, 1989 Hyannis, Ma 02601 Revised may 22, 1989 Engineer: Down Cape Engineering, Inc.- Ailk Assessor's map 259, Parcel 1 Dear Mrs. Rohrbach: The Board of Health has reviewed this definitive subdivision plan in Barnstable and makes the following recommendations: The developer must provide public water to each and every lot in this subdivision. Public water lines and all connections must• meet specifications and/or rules and regulations of the local water department. Each septic system shall be located within the prescribed boundaries of each individual lot. The developer shall have recorded on the deed that variances from Title 5, Minimum . Requirements for the Subsurface Disposal of Sanitary.Sewage, or the Town of Barnstable Health Regulations whichever is more stringent, will not be granted on any lot in this subdivision, A percolation test must be made on the lot at leaching site, before a Disposal Works Construction Permit will be issued. Maximum ground water elevations must be determined by using data available from the United States Geological Survey - Probable High Ground Water Levels on Cape Cod, Mass. Each proposed septic system must conform strictly to 310 CMR 15.00, the State Environmental Code, Title 5, and Town of Barnstable Rules and Regulations. All tree stumps, brush and building debris removed when clearing lots or roads must be disposed of at a licensed solid waste disposal facility. Chipping brush and tree stumps is an acceptable alternative. Burial on site is prohibited. The applicant must receive an Order of Conditions from the Conservation Commission, if applicable. It is recommended that each sewage disposal leaching facility be located most distant from wetlands to reduce eutrophication caused by phosphorous and other nutrients. The United States Environmental Protection Agency's National Eutrophication Survey states' that 0.25 lbs. per"wear of total phosphorous enters wetlands from every person served by onsite septic systems within 300.:feet wetlands (US EPA 1983). Very truly yours, Grover C. M. Farrish, M.D. Chairman Ann Jane E baugh 117�4u, T J es H. Crocker, Sr. BOARD OF HEALTH TOWN OF BARNSTABLE TM/bs cc: Harry and Susan Jilson Down Cape Engineering, Inc. TownClerk Health Department Conservation Commission Barnstable Fire and Water District v ETNErp�� TOWN OF BARNSTABLE a►� �'� OFFICE OF NAML Z fJBIST BOARD OF HEALTH 1639 367 MAIN STREET HYANNIS, MASS. 02601 . June 7, 1989 Mrs. Susan H. Rohrbach Re: Definitive subdivision plan of land in Barnstable Chairperson, Planning Board Petitioner: Harry and Susan R. Jilson Barnstable Town Hall Date: January 31, 1989 - Revised April 31, 1989 Hyannis, Ma 02601 Revised may 22, 1989 Engineer: Down Cape Engineering, Inc.- Assessor's map 259, Parcel 1 , Dear Mrs. Rohrbach: The Board of Health has reviewed this definitive subdivision plan in Barnstable and makes the following recommendations:, The developer must provide public water to each and every lot in this subdivision. . Public water lines and all connections must• meet specifications , and/or:.,;rules and regulations of the local water department. ., Each septic system' shall be located within. the prescribed boundaries' of each individual lot. The developer shall have recorded on the deed that variances from Title 5, Minimum Requirements for the Subsurface Disposal of Sanitary Sewage, or the Town of Barnstable Health Regulations whichever is more stringent, will not be granted on any lot in this subdivision, A percolation test must be made on the lot at leaching site, before a Disposal Works Construction Permit will be issued. Maximum ground water elevations must be determined by using data available from the United States Geological Survey - Probable High Ground Water Levels on Cape Cod, Mass. Each proposed septic system must conform strictly to 310 CMR 15.00, the State Environmental Code, Title 5, and Town of Barnstable Rules and Regulations. All tree stumps, brush and building debris removed when clearing Hots or roads must be disposed of at a licensed solid waste disposal facility. Chipping brush and tree stumps is an acceptable alternative. Burial on site is prohibited. T}ir' ?T� Ortler of Co nmissiort, It is recommended that each sewage disposal leaching facility be located most distant from wetlands to reduce eutrophication caused by phosphorous and other nutrients. The United States Environmental Protection Agency's National Eutrophication Survey states' that '0.25 lbs. per'year of total phosphorous enters wetlands from every person served by onsite septic systems within 300 feet wetlands (US EPA 1983). Very truly yours, Grover C. M. Farrish, M.D. Chairman alwwr E42A (±-M—� — Ann Jane Ekfibaugh J es H. Crocker', Sr. BOARD OF:HEALTH TOWN'OF.BARNSTABLE TM/bs cc:.Harry and Susan Jilson Down Cape Engineering, Inc. Town Clerk Health Department Conservation Commission Barnstable Fire and Water District 4 ��FtHE T � Town of Barnstable, Massachusetts Department of Planning and Development Office of The Planning Board � HA.Ss. 0a 019• 0 '°rEp MAC s 367 Main Street,Hyannis,Massachusetts 02601 (508)775-1120 ext. 190 July 111 1989 Aune Cahoon, Town Clerk '= Town of Barnstable Town Hail -p 367 Main Street w Hyannis, MA 02601 •� %o J: Re: DEFINITIVE SUBDIVISION #713 Grid Def i n i t i ve Subd i vision ##713; '•J I I son"; Subd i v i s i on Plan of Land in Barnstable, Mass.to be Filed in the Land Court Shown As Lot 20 on. Land Court Plan ##02950E Scale 1"=40 ;.. Plan dated 01/31/89, revised 04/03/139 8 05/22/89; Down Cape Eng iheer i ng; 3 lots; located south. off Calves Pasture Lane, west of Scudder. Lane,'' Barnstable; Assessor':s Map - 259, Parcel 1 . At a duly posted meeting of the Barnstable Planning Board held July 10, 1989, it was voted to APPROVE the above captioned DEFINITIVE subdivision plan subject to the following: 1 ) That the grade and surface of the present road be maintained to be serviceable as a four season road; 2) That the trees and brush be trimmed and maintained to a width of seven (7) feet from the center of the roadway on each side, and no Jess than twelve ( 12) feet in height; 3) All the requirements of the Board of Health; .1 } Thz* f hty r F`T7:1- I y __--'4yF .,. ;psa of-i: ! P.=?'.:�M Respectfully, i o�Ze 3� 4BaablefPl:annIng . tell , Chairman Board ARDITO, SWEENEY, STUSSE, ROBERTSON & DUPUY, P.C. ATTORNEYS AT LAW r! MATTACHEESE PROFESSIONAL BUILDING 25 MID-TECH DRIVE,SUITE C WEST YARMOUTH,MASSACHUSETTS 02673 EDWARD J.SWEENEY,JR. TELEPHONE $O8 775 3433 RICHARD P.MORSE,JR, MICHAEL B.STUSSE BETSY NEWELL DONNA M.ROBERTSON FAX(509)790-4778 PAUL R.TARDIF' MATTHEW J.UUPUY CHARLES M.SABATT - CHARLES J.ARDITO.P.C. 'also admitted in MAINE PLEASE REFER TO FILE NUMBER June 15, 1999 G4427X Ms. Susan Rask, Chairperson Barnstable Board of Health Barnstable Town Hall Hyannis, MA 02601 Re: Calves Pature Lane Assessors Map 259, Parcels 38 and 39 (Formerly Assessors Map 259, Parcel 1) Dear Ms. Rask: .Please ` be advised that ' the- undersigned -represents certain abutters to the above referericed'parcels located .on Calves Pasture Lane in Barnstable,' Massachusetts. I am *enclosing . herewith for your reference a photocopy of a 'letter from the Barnstable Board of Health to the Barnstable Planning Board dated June 7, 1989 as well as a photocopy of the notice of approval of . the definitive subdivision plan dated July 11, 1989 as recorded with the Town Clerk of the Town of Barnstable. At the current tine, a mortgagee of the above referenced parcels is in the process of undertaking certain percolation tests on each of the above referenced parcels. To date, two tests have been conducted on the parcels and it is my understanding that additional tests are scheduled for the future. As you can see by the enclosed documents, approval of the subdivision that created the two parcels at :issue, namely parcels 38 and '39 was contingent, among other things., I upon compliance with all requirements of the Board_ of-, Health as "set forth within provision . No'. ' 3- of the definitive subdivision approval', dated July. ' 11,> 1989. ' ' :Those requirements are' ekplicated within' the ` Board- of Health letter of June -7,, 1989,, In the fourth paragraph of the Board of Health letter`; the-Board of Health required that the developer record "on the deed that -variances--from Title 5, Minimum- Requirement for the r �g 1 y. 1 -,Ms. Susan Rask, Chairperson June 15, 1999 Page 2 Subsurface Disposal of Sanitary Sewage or the Town of Barnstable Health Regulations, whichever is more stringent, will not be granted on any lot in this subdivision. . . " I have undertaken a rundown of the title to the two lots at issue and I find no recording of any such restriction against the lots in the Barnstable County Registry of Deeds. Furthermore, the second paragraph of the letter requires that the developer " . . . must provide public water to each and every lot in this subdivision. " My clients are under the impression that the mortgagee undertaking the percolation tests at the present time, namely Laurie A. Warren and Christopher Kuhn have obtained a waiver of that requirement and are now being permitted by the Board of Health to install well water as opposed to connecting to the public water supply. If such a waiver was obtained, then it was obtained .without any notification to my clients who are abutters to the parcels at issue. I would like to know whether or not such a waiver was obtained and if it was obtained, then I would be most appreciative of receiving a copy of any written decisions or minutes of meetings regarding any such waiver. In addition, I would appreciate your undertaking the following or having appropriate staff personnel within the office of the Board of Health undertake the following: 1. Take appropriate action to compel the developers of the property to record the restriction required by the fourth paragraph of the June 7, 1989 Board of Health letter in the Barnstable County Registry of Deeds District of the Land Court. Arguably, the "developer" of the lots may be the mortgagees who are undertaking the percolation tests, .namely, Laurie A. Warren and Christopher Kuhn. On the other hand, the Board of Health probably intended in 1989 that the word "developer" meant the applicant and record owner, Harry and Susan R. Jilson. The Jilsons are still record owners of the parcels and therefore may likewise be required to record the restriction. 2 . In lieu of the above or in addition thereto, request the Barnstable Planning Board to rescind the subdivision plan by reason of the developers ' failure to abide by requirements of the Board of Health, specifically the recording of the above referenced restriction. 3 . Provide me with copies of any -waivers granted with respect to the requirement that the lots must be serviced by public water. f f I 1� s. Susan Rask, Chairperson June 15, 1999 Page 3 4 . Notify me as to any filings, applications for requests for relief, or hearings regarding the above parcels. 5. Notify my clients' engineer, Mr. Edward Pesce, of Hoarsley and Whitten, or me of any percolation tests to be conducted on said parcels, providing the date and time of such tests. Mr. Pesce can be reached at 508-833-6600, fax- 508-833-3150. Thank you for your attention to this matter. Very truly yours, Charles M. Sabatt CMS:lcs Enclosures cc: Mr. Thomas McKean Bernard Kilroy, Esquire Mr. Robert Gatewood Mr. William Cook �pCIHE tph� Town of Barnstable, Massachusetts Department of Planning and Development eAx''' S& MASS. ` Office of The Planning Board � 0q i639• ♦b ArED MA'S A 367 Main Street,Hyannis,Massachusetts 02601 (508) 775-1120 ext. 190 July 11 , 1989 i i Aune Cahoon, Town Clerk _. Town of Barnstable r Town Hal ) -c 367 Main Street to Hyannis, MA 02601 Re: DEFINITIVE SUBDIVISION 4713 Grid Definitive Subdivision #713; "Jiison" ; Subdivision Plan - of Land in Barnstable, Mass.to be Filed in the Land Court Shown As Lot 20 on Land Court Plan #02950E Scale 1 "=40' ; Plan dated 01/31/89, revised 04/03/89 8 05/22/89; Down Cape Engineering; 3 lots; located south off Calves Pasture Lane, west of Scudder Lane, Barnstable; Assessor's Map 259, Parcel 1 . At a duly posted meeting of the Barnstable Planning Board held July 10, 1989, it was voted to APPROVE the above captioned DEFINITIVE subdivision plan subject to the following., 1 ) That the grade and surface of the present road be maintained to be serviceable as a four season road; 2) That the trees and brush be trimmed and maintained to a width of seven (7) feet from the center of the roadway on each side, and no Jess than twelve ( 12) feet in height; 3) All the requirements of the Board of Health; 4) That the applicant be granted a waiver of the drainage and road construction requirements. Respectfully, i osep E. Bartell , Chairman Ba able Planning- Board v 14 Q�oF tNe Toffy TOWN-OF BARNSTABLE OFFICE OF ' ST°Z MA86 BOARD OF HEALTH 1659 � � OMAX 367 MAIN STREET HYANNIS, MASS. 02601 June 7, 1989 Mrs. Susan H. Rohrbach Re: Definitive subdivision plan of land in Barnstable Chairperson, Planning Board Petitioner: Harry and Susan R. Jilson Barnstable Town Hall Date: January 31, 1989 - Revised April 31, 1989 Hyannis, Ma 02601 Revised may 22, 1989 Engineer: Down Cape Engineering, Inc. Assessor's,map 259, Parcel 1 Dear Mrs. Rohrbach: The Board of Health has reviewed this definitive subdivision plan in Barnstable and makes the following recommendations: The developer must provide public water to each and every lot in this subdivision. Public water lines and all connections must• meet specifications and/or rules and regulations of the local water department. Each septic system shall be located within the prescribed boundaries of each individual lot. The developer shall have recorded on the deed that variances from Title 5, Minimum Requirements for the Subsurface Disposal of Sanitary.Sewage, or the Town of Barnstable Health Regulations whichever is more stringent, will not be granted on any lot in this subdivision, A percolation test must be made on the lot at leaching site, before a Disposal Works Construction Permit will be issued. Maximum ground water elevations must be determined by using data available from the United States Geological Survey - Probable High Ground Water Levels on Cape Cod, Mass. Each proposed septic system must conform strictly to 310 CMR 15.00, the State Environmental Code, Title 5, and Town of Barnstable Rules and Regulations. All tree stumps, brush and building debris removed when clearing lots or roads must be disposed of at a licensed solid waste disposal facility. Chipping brush and tree stumps is an acceptable alternative. Burial on site is prohibited. The applicant must receive an Order of Conditions from the Conservation Commission, if applicable. . i .. if IT It is recommended that each sewage disposal leaching facility be located most distant from wetlands to reduce eutrophication caused by phosphorous and other nutrients. The United States Environmental Protection Agency's National Eutrophication Survey states that"0.25 lbs. pernyeai of total phosphorous enters wetlands from every person served by onsite septic systems within 300 feet wetlands (US EPA 1983). Very truly yours, Grover C. M. Farrish, M.D. Chairman C � ✓ M Ann Jane E baugh ga2t,�� 19�1CzOZi T"t J es H. Crocker, Sr. BOARD OF HEALTH TOWN OF BARNSTABLE TM/bs cc: Harry and Susan Jilson Down Cape Engineering, Inc. Town Clerk Health Department Conservation Commission Barnstable Fire and Water District y�b FORM C Y. APPLICATION FOR APPROVAL OF DEFINITIVE PLAN (Where alternative paragraphs are provided, applicant is to select and complete the paragraph pertinent to his case.) ............ a................. To the Planning Board of the Town of Barnstable 1. The undersigned applicant, being the owner of all land included within a proposed subdivision shown on the accompanying plan, entitled .......................................................................................................... and dated ...-?. /1:...3i....�ceN...P�e.�.. z..�. , 19..V. , submits such plan as a definitive plan of the proposed subdivision and makes application to the Board for final approval thereof. 2. The land within the proposed subdivision is subject to the following easements and restrictions: aRt...r1a..2�?'�.�.`.!�5...t..Aaa..eJa...Z$to«°?.►....�.R,vG...r.�v..Z.4.9,.�a.7..�....Lb�c..nla...Z!fv.,9�t....,.Qa,�..!:�A_,.. 20Ce 1 l0 3 �... uc ZQ le'�2....... 3. There are appurtenant to the land within the proposed subdivision and following easements and re- strictions over the land of others: ...................................................................................................................................................................... ......................................................%................................................................................................................ 4. (a A preliminary plan of the proposed subdivision has not been submitted to the Board. \ OR C1�c .aQc,+ham P1aft`%*n%Qc,�J.w4S ca;sao.ce.q �n;s c r Z'S t�� rr,e e�•%,�s_l (b) A preliminary plan of the proposed subdivision, to which the accompanying plan conforms, was J tentatively approved by the Board on .......................................... . 19........ . OR (c) A preliminary plan of the proposed subdivision was tentatively approved by the Board on ................................................ . 19........ with modifications, which modifications have been incor- porated in the accompanying plan. 5. The applicant agrees, if the definitive plan is approved, to construct and install all improvements within the proposed subdivision required by the Rules and Regulations of the Barnstable Planning Board as in force on the date of this application, and as modified and supplemented by the work specifications and other requirements set forth in the statements attached hereto. k 6. The applicant further agrees to complete all said required improvements within one year from the date of approval of the definitive unless the Board approves a different period of time. 7. If the definitive plan is approved, the applicant agrees to record or register the plan in Barnstable County Registry and agrees that even if otherwis uthorized so to do by the filing of a performance bond, applicant will not sell or offer to sell any a otter aFivision unt.r 'said plan is so recorded or registered. MNOt:BgRNsigBtE8. Th �e applicant further agrees that if the definitive p an is appp ant will p".."'I a`P',"q�'�r� time thereate-'', &6enCaq�,4sttec69p to do by the Board, convey to the sewer District in fdrrn sp3"'i'y� factory to the Board, title to sewers and the prescribed easements therefor. The applicant also ag ^ to convey to the Town title to storm drainage improvements-and easements therefor. Q 2 3 1989 "14? ` °�'S jfc A WAIJE(r- FRorr1 IS 6£-',Jc6 tZ�A�fSY�_ V FORM C—Page 2 .` 9. (a) The applicant further agrees that before final approval of the definitive plan, the applicant will cause to be filed with the Board a bond in form satisfactory to the Board, conditioned on the completion of all required improvements in the time and manner prescribed, in a penal sum sufficient, in the opinion of the Board, to cover the cost of such work, and executed by the ap- plicant as principal and a surety company authorized to do business in the Commonwealth and satisfactory to the Board as surety, or secured by the deposit with the Town Treasurer of cash or negotiable securities in an amount equal to the penal sum established by the Board. OR (b) The applicant requests the Board to approve the definitive plan on condition that no lot in the subdivision shall be sold and no building shall be erected or placed on any lot until the re- quired improvements necessary to adequately serve such lot have been completed to the Satis- faction of the Board. 10. This application is accompanied by an original drawing of the proposed definitive plan with three black line contact prints and a fee of $15.00 to cover the cost of giving notice of a public hearing. 11. The owner's title to the land is derived under deed from dated ............................................ . 19........ , and recorded in Barnstable County District Registry of Deeds, Book................ . Page ................ OR under Certificate of Title No. .. IUA49k...... registered in Land Registry District, Book .......�)3...... , Page....... a........ . .............. .......................................... Applicant ........................................................................................ Address A list of the names and addresses of the abuttors of this subdivision is attached. Verification will be made by the Planning Board. �'C �oE'"E rO Town of Barnstable, Massachusetts Department of Planning and Development ' MAE& L�' ! Office of The Planning Board � a ��Al f0 MA't 367 Main Street,Hyannis,Massachusetts 02601 (508)775-1120 ext. 190 DATE: 5/24/89 TO: FIRE DISTRICT WATER DISTRICT 'E CONSERVATION COMMISSION COMMONWEALTH ELECTR BOARD OF HEALTH ENGINEERING FROM: BARNSTABLE PLANNING BOARD OFFICE RE: . SUBDIVISION # 7 JL3 "HARRY C. & SUSAN R. JILSON" PLAN ENTITLEDSUBDIVISION PLAN OF LAND IN BARNSTABLE, MASS. TO BE FILED IN THE LAND COURT SHOWN AS LOT 20 ON LAND COURT PLAN #02950E SCALE 1"=40 ' PLAN DATED: 01/31/89, REVISED 04/03/89, & REVISED 05/22/89 PLAN LOCATION: SOUTH OFF CALVES PASTURE LANE, WEST OF SCUDDER LANE, BARNSTABLE, MASS. PLAN ENGINEER: DOWN CAPE ENGINEERING MAP 259 PARCEL # 1 ACREAGE: i ZONING: RF--1 LOTS: 3 DATE SUBMITTED: MAY 23 , 1989--135 days 10/05/89 PRELIMINARY DEFINITIVE_ GRID X OPEN SPACE The above captioned subdivision plan has been submitted to the Planning Board. A public hearing/action has been scheduled for DUNE 1- 9 , 1 9 8 9 Please forward any recommendations or comments to the Planning Board office before this date. a- Project Reference: 3Lot Subdivision off Calves Pasture Lane Barnstable Harry & Susan Jilson ABUTTERS: Map Parcel Name .Address 259 2 Andrew S. & Katherine Keck 1552 34th St. N.W. Washington, D.C. 20000 259 4 Barnett Banks Tr. Co., P.O. Box 2556 NA. (Joshua C. Chase) Jacksonville, FLA 32203 259 5 Barbara R. Moore 210 Scudder Lane Barnstable, MA 02630 259 16 Carson Trust P.O. Box 824 Herbert Carver, Trustee Barnstable, MA 02630 258 78 Steven E. & Kathleen N. Berglund P.O. Box 624 Barnstable, MA 02630 258 17 Massachusetts Audubon Society South Great Pond Road Lincoln, MA 01773 . 30 R ;� Town of Barnstable P 8 Department of Health,Safety,and Environmental Services oFTrrp,,_ �e Public Health Division Date. 367 Main Street,Ilyannis MA 02601 RARNSTARLE, ` .. 1639- �ArEnrAn't" Date Scheduled / 'rime Fee Pd. Soil Suitability Assessment for Sewage Disposal. k AA nn n,� r , ,. Perfomed By: "VIC4E Witnessed By:PIMI7�[ w�/GI � LOCATION&GENERAL INFORMATION Location Address�T3� Owner's Name'ev �* /` Address G� A� s Eu �+ /"/ Assessor's Map/Parcel: � //Z Engineer's Name � 5_p" • 4 �fL�/2,C��"-C NEW CONSTRUCTION REPAIR �Telcphone H Land Use t eQ� u,f Slopes(%),q 16716 1 Surface Stones Distances from: Open Water Body R Possible Wet Area ft Drinking Water Wel,12V� fl Drainage Way ,00 Il Properly Line /d Il Other Il SKETCH: (Street name,dime sites so lot,exact locations of test holes R perc tests,locate wetlands in proximity to holes) N fi L6 ' � l v� Parent material(geologic) "CCZ. Depth to Bedrocks V6 � Depth to Groundwater: Standing Water in hole: VOY e Weeping from Pit Pace Estimated Seasonal high Groundwater. � `Y V ['TOl`1 FOR S�ASnNAL;IT��H '�VAmI;It TAB Method Used: Depth Observed standing in obs.hole: in. Depth to soil mottles: Depth to weeping from side of obs.hole: in. Groundwater Adjustment ft. Index Well N_ RcadinR Dale:_ Index Well level _ _ Adj.factor Adj.Oroundwatcr Level I'EItCOLA i':ION TES I u`ate ite Observation ; Hole H 3 �� Time at 9" m ;j-- Depth of perc 97 Time at 6" /O;y7 Start Pre-soak Time Time(9'-6") �Z End Pre-soak 1 G!Z r -1r Rate Min./Inch 41n 4HA J#-5 Site Suitability Assessment:,Site Passed Site Flirt: Additional Testing N cdcd(Y/N) Coivb/fIVAIq qcf .ihrn7.a� l yl (so �[ Original: Public health Division Observation -loP��To Bel Completed�5t�., on Back j Copy: Applicant - 4 4 EN OI3 I RVATI0 LE LOG IIolt' # _ Depth from Soil I lorizon Soil Texture Soil Color Soil Other Surface(in.) (USDA) (MUnSell)- Mottling (Structure,Stories,13oulderes. Consistent % ravel l 2- qL{ S� Izo z,SY 64 DEED OBSERVATION I-,1OLE'LOG Hole # Depth front Soil horizon Soil Texture Soil Color Soil Other Surface(in.) (USDA) (Munsell) Mottling (Structure,Stones,13oulderes. Consistent % ravel 7/1 d--t2v eZ S�►�t ,�ys� OB DEEP; SLRVATION<IIOLE LOG.. _ Hole# Depth from Sod Horizon Soil Texture 1 Soil Color Soil Other Surface(in.) (USDA) (Munsell) Mottling (Structure,Stones,13ouldcres. Consistency.%Gravel e DEEP OBSERVATION HOLE LOG. Hole# Depth tront Soil Horizon Soil Texture Soil Color Soil Other Surface(in.) (USDA) (Munsell) Mottling (Structure,Stories,Houlderes. Consistent %Gravel Flood Insurance Rate Man. i Above 500 year flood boundary No_ Yes Within 500 year boundary No_ Yes Within 100 year flood boundary No Yes Depth of Naturally Occurring Pervious Material Does at least four feet of naturally occurring pervious material exist in all areas observed throughout the area proposed for the soil absorption system? If not, what is the depth of naturally occurring pervious material? Certification I certify that on (date)I have passed the soil evaluator examination approved by the Department of Environmental Protection and that the above analysis was performed by,me consistent with the required training,exxp rtise and experience described in 310 CMR 15.017. Date Signature ` 3a cy g �/ Town of Marnstable - Depa1• 111ent of Health,Safety,and Environmental Services �oft IHE 4 Public Health Division gate P y�0 4� 367 Main Street,I lyannis MA 02601 nARNITABLF MAC9. 1639. 9�'ArF0vt" Date Scheduled Time . * Fee Soil Suitability Assessrnwtt for Sewage Diyosal Perlormed lay:Apt n�pL N Witnessed By: 'Dow"A W10"Ivp(- LOCATION & GI NLIZAL INI{Oltn!AjION l.,ocal61 Address 1,61 3$ Owner's Name Address %Vk( rbb W �t Assessor's Map/Parcel: �� z Pngimcer's Name (, I_ V NEM CONSTRUCTION (! RFPAIR I cicphonelf Land Use �� �' Slopes("/�) 2�� is/d Surfacc Sloncs Distances from: Open Water Dody. It Possible Wel Arc,, 70 It Drinking Walcr 31'cll fs° fl Drainage Wny q0 Il Properly I•in'c', It Olhcr II SKE1 CLI: ($heel name,dimensions of lot,exact locations or test holes&perc ICSIs,locale wc(lands in proximity to holes) Iv i zt- �f L9Zp }c.. Lvfi3 - 6"- yip- 0%^ Parent material(geologic) Q 1 L Dcp(h to Hcdrock zS� Depth to Groundwater. Standing Water in I tole: l mt _ 1lrecping from Pit Pace ry eTYv �, Fstimaled Seasonal I ligh Groundwater ILL LIZ. NATION FORSC:n +?NBC II1GI1 OVA rZ 'IA13L1 Method Used. ... a it Depth Observed standing in ohs.hole: - I in. Depth to soil mottles: 29 — lo in. Depth to weeping from side of obs.hole: in. Groundwater Adjushncnl — Index Well N Reading Date:_ _ Index Well level Adj. factor Adj.(3roundwalcr l.cN,cl 'I✓ZtCQLA'I'ION'z'>JST ui G 3 9 ittte �' p � Observation Mole N �Y. Time it 9" Depth of Perc 'F �' ✓ Time at G' Start Pre-soak Timc @ 1' t r11(( (�j� �Q � Timc(9"-G') l-nd Pre-soak Rate Min./Inch PC LC Site Suitability Assessment: Site Passcd Site Fnilcd: Additional"fcsling Needed(Y/N)_ t� r.. Original: Public tleal(h Division Observation (tole Dala To 13e Completed on 13acic j Copy: Applicant DEEP OBSERVATION HOLE LQ;G Hole# A( Depth from Soil Horizon Soil Texture Soil Color Soil Other Surface(inJ (USDA) (MUnsell) Mottling (Structure,Stones,Boulderes. Consistent %Gravel It-ZY g *A40c4*A C 'ff Imo- Id yx2 /aY csr w�- No ew DEEP OBSERVATION HOLE LOG Hole #' 7 G 9 y. . .. Depth from Sort Horizon Soil Texture Soil Color Soil Other Surface(in.) (USDA) (Munsell) Mottling (Structure,Stones,Doulderes. Consistent %Gravel /z A sir z,srVy 1a 4-4 Q s,Y�Lo ?,gy Vy �3 1•j`y2,� 4r�rrrr�a'► DEEP.O$SERVATION HOLE LQ:G Hole# Depth from Soil Horizon Soil Texture Soil Color Soil Other Surface(in.) (USDA) (Munsell) Mottling (Structure,Stones,Doulderes. Consistency,%Gravel DEEP OBSERVATION HOLE LO.G Hole# !' . .. Depth from Soil Horizon Soil Texture' Soil Color Soil Other Surface(in.) (USDA) (Munsell) Mottling (Structure,Stones,Doulderes. Consistent %Gravel Flood Insurance Rate Map: Above 500 year flood boundary No_ Yes L Within 500 year boundary No_ Yes Within 100 year flood boundary No— Yes Depth of Naturally Occurring Pervious Material Does at least four feet of naturally occurring,pervious material exist in all°areas observed throughout the area proposed for the soil absorption system? Or If not,what is the depth of naturally occurring pervious material?. Certification I certify that on (date)I have passed the soil evaluator examination approved by the Department of Environment Al Protection and that the above analysis was performed by me consistent with the required training,expertise and experience described in 310 CMR 15.017. Signature Date ' �Y AL .� Ak AIL AL 4LL - O ` gd 's � _ .._ . AL a TRW w4s ase *Og `tPflax , -wh147 0 AIL �4£CK .�- "� AL r _ _ _ m ASTUR' Q nr t AL ls� w All- w P- -- �`l!- //. I 1- ISO AL \1 N1•. �i )) AIL V 1-2 CJ I ♦n 1 a� , � atso AL — , AL / � I 1 1 ,� ' \i Yi_ _ -�` wrn I C ASV — w I - = , , nn .x attt i .. _ UI y a if Iwo$!.. .. 1 .\ 1� I96 T. &%I OV gooN =i50 �' \� SOC -�� toLLI jr t w 5 a — 11, 1 _ - \ `'' 1 cl F- LL `7 16 to SIT [] • - — = O 9 11 �� e , ' fi �• 1 ` 1 W 1 � , ohm , ,, All rip I \ \ x w3P w �' m = ttttttt_I d m 4 o m D "II I x �r: z p-: u 00 ®5 oil :z r o > 4 $ s mpg � $ sa j V-1 4F, 4. 14, it V V en Ak 1, Ile, ji m �5� ,. j A� 7* 'za 4 Jr, n 4 4 vo- k,Y I P4 PIZ fl. y A. 4, r.4,-, M& I-V V779, B �k 3, 0_7 i�, ,0,4: 9 _00 6 4X4 so PLIALW&L immmimijol low. A";f" % :S WINDOW q�EDUL WALK-11-4 I rN0 'OR' S12t QTY. RA R"ARKS ... BEDROO '2 b 60 os66 m 9�_305 '601�113. ++_ elm D" W/bm GIMUSS 2 7,� -AND, /OPT. 6m, *Wbowl V1 CASIP40 41 -too 3 .3 2#6 -.11 1 lgwjiS'-30 A NO. ,CA.%. DOIN"IN/6PT, SU 4­0 1/2oX4'-O Ile to C24 !D Vt." T CASING 4*-0 1/2p* 2'--2 i 6 It a Dbw 16 - - - - - - 1 C�a 3/1 OOKAXS fjA go C-4 w TYL AM INDICAM. AS AMWRSEN OR BROSCO VAND0*5 Or'tOU AL '01UALI MAY OE, WOSMTW IF DESM. t A go DOW,, !MHEDME,JJEDRW 1'j WE 0"' FQ,)U BELOW, 14*-Op 8"-2" HALF-ROUND BOVE 'ell _6W motto KAms OLALL 1 tooi bbok' ktE,-'INIXATED B It It 7#-.30 6,-C) 3" 38'-0* SCALE 1/4"-1'-0" t dpr 62'-0* r L L E C 3 10, PUALWALL 2. §7 24'-2 K 7r, 1 3, al 1w lob co JM_ QAR iARAGE rot ok K4, POST .4X,4 POST 16 2/2xi0s, W131e "ILPLATE 0 ASO FUT611. KAM�- VE < (OR, MICRO-LAM.9M.). la 56 40 u LIMNQ RQOM 4",PM 7.-0. c; to 4# t 1, X. ;f L jdL* I .is, W&L KEY BARNSTABLE HARB� Tb TRANSEC I Locus D P DEP-DELINE A1' ) COA`JAL BANK - SCUD: 7.0 \. TOWN BARNSFAEJ; t GULAIION DELINEATED C. BANK - � �93 t 9% SLOPE A� A ASURE OF PERCENTAGE \ \\ 1 PR0POSED ',,'HINE TRAVERSE FOR PER,2. TESTS F'RUt _ Il:,l ►IL ES `;; \ i APPROXIMA ,i ACAVAIIUN AREA •v ` 10.0 7u I \ T1 ,7R \ _� ut1 , I j ,\ S � EXIST wEI l / I I.( 1 i ; `�, \ �' LOCUS MAP SCALE -1 = TOwN\ f� u `? p _ ASSESSORS MAP 259 PARCELS . 67 8T / 2 � 1j I/ I, I \ ? s `� 1� ��\ Y o / ", P - oz-� i \ `\ \ �\ ul �1 \ i 3� FLOOD ZONE: A3 EL. 11 AND C `o -7 so - � -�- i �� i ! 1 tt r� ��,, � 28 ors 2s.� DATUM: NGV (RM 7) 7.8 / / / _I i �- , - S ' PORTIONS OF SITE THAT ARE wl / tt 6.s ��� \ �L 11 F00 F CONTOUR ELEVATION Lir 2 ; I k4/ U / �,\ "/ �, ` 2 . OF THE SANDY NECK/BARNSIAEA: C> ACE C I Jug DES I 1 t-- �2, .5 4/ 1 1: / 1d9 I ��7I �H I 4� t 5.a _- r,h , / p52 `� /� �(l \ 23.0 \a 0 37 67 „ UFO / ^/ - -_bd 20.8 \ H � _ 2. 6 fj81 J ,4 // Lj.:I 39 __ - 16 2 / \#708.9 ra l N b �,= \ \` / PROP. TEST HOLES �* 6 t5 :` AIJ; 1 :;KEA 1 -t5 / Mt �+5- y45 f J \ t ( - ($ mac-- 1 7 /'* \ ) ) \ \ 4_l 2� 11 .� v) " o L \ V - \ 0. i il� \J► 'LANO AREA 4t,737 s.f. WETLAND AREA 23, 49 \ \ \ "x \ .2 DITCH \ ter OZON �� / \ �� \ \ TTL AREA 6 86 s f. v+ 26 9 I , 7 _ `01 \�.� p v Ib 7 (1.59 ac.) \ \ \ \ 24. i #1S ` # #84\ �� W'O �� # _ \ 12 -DES �7 � ` —_� \\ \ � • 23"5\` 16 �. / o - a S \ \ 017 2 G� \ ' \ 22 1 NO UOASTAL�\ R29 _ //63 \ 10 18. B'VW C 1 BANK \ \ \ \ ` 21.2/ 1V 26.3 r7/ #61 \ u Cup .'• i 9' \� r /r2 o ,+k � \ \ \ EkIrG v � TATEI wLTLAND � ?9 n��. p73 79 .7 I �` g � \\ �', o ax � O���R � �\ t7.9 / H26 ' `i �--- t y� N�2�, �7 \15. ` ! ! ]V ;,u 10 cOASN6 l ANK 11,3j \ 1 PLAN #5 VRJECORD LOTS 38 AND 39 CALVES PASTURE LN. 'S' N TfIE TOWN OF: BARNSTABI E (VILLAGE)�a REF'? D FOR: _ 8. LAUR IL h. vJr",i���N 2 'y 30 0 .�0 60 90 �3 L,J {.., a . ,�tt of �, 158. JANUARY 4, 1999 'own Cape L".(gin, '.f'1]]P, inc. �r� _ � � 96 10 t 69 48 SCALE: 1= 30'-- DATE: E { ��: /cam � #2 REV. BAPNSTABLECONS`_RtlATl0fd ?_ H' 8 99 TEST HOLES) CIVIL lNk ERS REV. 2/10/99( (THs) J NzI:3a�, 9.8/ REV. 2 22 99 (C. BANK LAND St. NIFYORS REV: 3/112/99TRAV. ) '�wr�t,,,u,J "' y1 {� REV. 3/24 9`J DEP COASTAL BANK 939 main st. yarino � ma 02675 � __ _ �. <�_ o �nWl nA�(v o. c-r�un K, DEP B�^,NK t �'EV. n/5 ., .,. � �. e_._. C;.1�L�, F.F.., P.I,. e._ ARNF' S SEPTIC PROFILE TEST HOLE LOGS T.O.F. AT EL. 27 O NOT TO SCALE) ACCESS COVER TO WITHIN 6" of FIN. GRADE ACCESS COVER (WATERTIGHT) To ENGINEER; A.H. OJALA, PE BARNSTABLE HARBOR WITHIN 6" of FIN. GRADE LOCUS 27.0 MINIMUM .75' OF COVER OVER PRECAST /� 2% SLOPE REQUIRED OVER SYSTEM WITNESS; DONNA MIORANDI, RS 32.0 A RUN PIPE LEVEL 2" DOUBLE WASHED PEASTONE\ DATE: JUNE 3, 1999 \24.CLPROPOSED 9� FOR FIRST 2' \,ice 3 MAX, PERC. RATE = TH3 = < 4 MIN/INCH; TH4 < 2 MIN/INCH 00- �Q TIC \ o 29.0 I 9447 23.33 � EE CLASS SOILSP#3. 80 ) GAS BAFFLE 29.29 C7 [� O 0 O O''C� 0 6� 29.46/�IT �� 28.17' O O O TC� O C C] - 4' AT SIDES aooED � OO � C] R ( 2 % SLOPE) �6" CRUSHED STONE OR MECHANICAL 8o F� 2' � EJ � ED O ED EJ I ED o 26.17' COMPACTION. (15.221 [2]) ELEV, 4 DEPTH OF FLOW = 4 1 % SLOPE) 3/4" TO 1 1/2' DOUBLE` WASHEC: STONE p" 29.4 p" 34.0' ;; ---- BwB aim, SCHOOL TEE SIZES: ( A SL /A SL INLET DEPTH = 10 NOTE: SEPTIC TANK AND PUMP CHAMBER TO BE FACTORY CERTIFIED 12„ 1 OYR 5/3 28 4' 12„ 10YR 5/3 33.0' OUTLET DEPTH = 14 B� SL B , SL/ LOCUS MAP SCALE 1 "= 2000' FOUNDATION- 21' ST 1' PUMP 234' D' BOX 14' LEACHING 10.77' 44" 2.5Y 6/6 36" 2.5Y 6/4 EXIST. WELL CHAMBER FACILITY /C1 C1 SILT LOAM SILT LOAM 64" 2.5Y 6/3 24.1' 60" 2.5Y 5/4 29 p ASSESSORS MAP 259 PARCEL 1-2 ZONING DISTRICT: RF C2 15.4' YARD SETBACKS: 27.0' (G-W EST. ® EL. 6+/-) 86 LS / erc C2 FRONT = 30' ,'F - 0 2.5Y 5 6 P ALARM AND CONTROL PANEL ��----t.;r--^�^-^' C3 LS SIDE = 15' ;Rs a r - I . 2.5Y 5/6 eul BE INSTALLED ON Ce . i�{j�L'. REAR = 15' 1.SEPARATE CIRCUIT FROM PUMP INV. IN 23.32 1000 GAL H t0 iAT 7 2" PR SSURE PIPE TO D'BOX Lc CT ALARM ON 800 GAL.+ ' WEEP HOLE perC J PLAN REF. - LCP 20950M FLOAT SWITCH RESERVE CHECK VALVE T SETTINGS:4" WORKING O 6" 120n SUBMERSIBLE UB E MODEL M282 1/2 HP PUMP 15Y 6/6 zLER IBL 120" FLOOD ZONE: A3 EL. 11 AND C +/ PUMP OFF a" - SYSTEM (ORE EQUAL) C 4 C 3 \ t - - o00000 0o a oo l.. EOOf OF j ?� 6" CRUSHED STONE OR 4` M E D FIN E y`�0�0/qT wAY` COMPACTION -1`- / MED/FINE +. _ PUMP CHAMBER SAND SAND (NOT TO SCALE 20 -• 168 2.5Y 7/4 15.4' 168" 2.5Y 7/4 20.0' ' -I s 7+ NOTES: NO WATER ENCOUNTERED' # `#3 7 222 18 SEPTIC DESIGN: (GARBAGE DISPOSER IS M �S NGVD (RM 7) #46 i - 1 DATU -17 -ri 40 ` ROP. WELLA..� y I I�' _ FIn7 rAVA\Ih11 # 6 �ry' ``` `'\ \l DESIGN r LOW: __ t3tUKU0M5 (_ v u� ar v 2.'F MUNICIPAL WATER 1S h _J 41 -16 i A I FLOW So 3. MINCMUM PIPE PITCH TO BE 1/8" PER FOOT, _ #45- USE 440 GPD DESIGN 0 PROP. 1HRi-ST BLOCKS AS SEPTIC TANK: 440 GPD ( 2 ) = 880 4. DESIGN LOADING FOR ALL PRECAST UNITS TO BE AASHO H- 10 15 ; i #3 #35 NECESSARI _�4 I J�#43 -K#42 ___ 4 . #3 s USE A 1500 5. PIPE JOINTS TO BE MADE WATERTIGHT. GALLON SEPTIC TANK # LEACHING: 6. CONSTRUCTION DETAILS TO BE IN ACCORDANCE WITH MASS. ENVIRONMENTAL CODE TITLE V. PROP. GAR. F� G� SIDES: 2(33 + 12.83)2 (.74) = 135 GPD 7. THIS PLAN IS FOR PROPOSED WORK ONLY AND NOT TO BE #32 oe �P SLAB = 29.5 �� �\` BOTTOM: 33 x 12.83 (.74) = 313 GPD USED FOR LOT LINE STAKING. 3' % Q� v TOTAL 605 S.F. 448 GPD 8. PIPE FOR SEPTIC SYSTEM TO SCH. 40-4 PVC. --12 N o �� �` �, t 9. COMPONENTS NOT TO BE BACKFILLED OR CONCEALED WITHOUT #31 USE (3) 500 GAL. CHAMBERS WITH 3.75' STONE AT INSPECTION BY BOARD OF HEALTH AND PERMISSION OBTAINED PROP. DWELL. FROM BOARD OF HEALTH. TF = z7.o' C 1 ENDS AND 4' AT SIDES % 10. RESOURCE AREA DELINEATION CONFIRMED UNDER SE3-3494 DIT 15 ("ORDER OF RESOURCE AREA DELINEATION ) "`oQD ZONE El. 11.0, + '+' }�% 1 1 1 1 . NO KNOWN POTABLE WELLS WITHIN 150' OF SAS 50, P TOWN OF BARNSTABLE HEALTH REGULATION VARIANCE REQUIRED, UNDER 10 I P *#17 } ; PART Vill, SECTION 1.00: 12. ROOF RUN-OFF TO BE DIRECTED TO DRYWELLS 7 4 5% t Q• i l PROPOSED PRIMARY SAS TO BE 70' FROM EDGE OF BORDERING VEGETATED Q s\q, I WETLAND (30' VARIANCE REQUESTED) 9 NO COA -k%#2 ' #18 SITE AND SEWAGE PLAN I i PROPOSED RESERVE TO BE 66' FROM EDGE OF BVW (34' VARIANCE) BANK 19 1 i i PROPOSED SEPTIC TANK TO BE 56' TO EDGE OF BVW (44' OF VARIANCE REQUESTED) L 0 T 38 CALVES PASTURE LANE 2r #1 IN THE TOWN OF, #A, �� I l * NOTE: IF PRIMARY SYSTEM SHOULD FAIL, REPLACE SYSTEM IN ITS I I ' 71` ENTIRETY, INCLUDING THE REMOVAL OF UNSUITABLE/CONTAMINATED SOILS. REPLACE SYSTEM IN KIND. BARNSTABLE (VILLAGE) ENGINEER TO INSPECT AND CERTIFY REMOVAL AND REPLACEMENT % OF SOILS AND SYSTEM #2 - # g 1 PREPARED FOR: LAURIE WARREN I 5 r2 % 7 I ; 5' REMOVAL OF UNSUITABLE SOIL REQUIRED AROUND PERIMETER OF LOT 3'8 - 6 I SYSTEM DOWN TO SUITABLE SOIL LAYER. REPLACE WITH CLEAN MED. 30 p 30 60 90 NO COA AL #6 1 I SAND. ENGINEER TO INSPECT AND CERTIFY REMOVAL UPLAND AREA 45,737 S.f, BANK S2 WETLAND AREA 23,449 S.f. BOARD OF HEALTH �3 5 1" = 30' NOVEMBER 3, 1999 TTL. AREA 69,186 s.f. (1.59 ac.) o\ o' I , MA SCALE: DATE: ` \ 00 APPROVED DATE LEGEND A on 5OB-382-4541 fox 508 362-9880 OF 100.0 PROPOSED SPOT ELEVATION �' FT \ �\ T 4 �N of Mq'\ Mglfy�;.\` �`, \ I down cape engineering, inc. ��P` {''; oz ARNE H. ��� 100x0 EXISTING SPOT ELEVATION ` 3 a AAN� \''� o I o � OJALA 1o2' CIVIL ENGINEERS OJALA -� CIVIL N 100 I ' LAND SURVEYORS 26g4E3 4 No. 3(7792 PROPOSED CONTOUR 1 S8.96 �' � ` PROP. STAKED SILT\�� yt'�' fC1$1ER�'� ISTE ' FENCE 939 main st. yarmouth, ma 02675 F o E �2�wlq� • #2: L /N NNt`)NNNOD N C) 100 EXISTING CONTOUR �.� %, n cn o, :� cn u? (�ti N(A A(r Q,J OD co �, t'' N UI � v -''-'-- -` BVW BORDERING VEGETATED WETLAND I I ARNE H. OJALA, P.E., P.L.S. DATE 98-288-38 SEPTIO PROFILE TEST HOLE LOGS T.O.F. AT EL. 27.0' ACCESS COVER TO WITHIN 6- OF FIN. GRADE (NOT TO SCALE) ENGINEER: A.H. OJALA, PE ACCESS COVER (WATERTIGHT) TO � wARaoa 27.0' MINIMUM .75' OF COVER MR PRECAST WITHIN 6- OF FIN. GRADE 2% SLOPE REQUIRED OVER SYSTEM � WITNESS: DONNA MIORANDI, IRS LOCUS 0 2' DOUBLE WASHED PEASTONE\ DATE: JUNE 3, 1999 Oti G� RUN PIPE LEVEL TH3 - < 4 ►!IN/INCH; TH4 - < 2 MIN/INCH 24.0 q FOR FIRST 2' 3' MAX. PERC. RATE _ PROPOSED 15QO ,,� GALLON SEPTIC I 29.�' CLASS I SOILS P Q447 23.33' �, TEE - -- ' TANK (H- 10 } GAS C� C7 C� O O Ci CD 1 -• BAFFLE 29.46' �� 29.29' 0 28.17' E D CD 0 ED CD TCD 0 Q 0 . - VAT SIDES 0000 O 0 ED0 7 (_2 7. SLOPE) �6" CRUSHED STONE OR MECHANICAL 2' CO 0 O CD M CD M ED 2 26.17' COMPACTION. (15.221 [2]) __.. 4 ELEV. V DEPTH OF FLOW 4' 3/4" TO 1 1/2" DOUBLE WASHED, Sj DNE 0" 29•4' 0" 34.0' eSCMOCIL m ( 1 7. SLOPE) ! A SL /A TEE SIZES' SL EXIST. WELL INLET DEPTH 10" NOTE: SEPTIC TANK AND PUMP CHAMBER TO BE FACTORY CERTIFIED I 12" 10YR 5/3 28 4' 12" 10YR 5/3 33.0' WATERPROOF OUTLET DEPTH 14" PUMP LEACHING B SL B SL LOCUS MAP SCALE 2000' -�- FOUNDATION- 21' ST 1' 234' D' BOX 14 CHAMBER FACILITY 2.5Y 6/6 36" 2.5Y 6/4 10.77' 20't 44„ ���' 194.5 2e.e' . C1 A SILT LOAM SILT LOAM LOAM 1z. ASSESSORS MAP 259 PARCEL 1-2 ,CyR 4/2 64" 2.5Y 6/3 24.1' 60" 2.5Y 5/4 29.0' B ZONING DISTRICT: RF SILT LOAM C2 YARD SETBACKS: BOT. TH1 15.4' I 24• - LS r Cl # 2 (G-W EST. O EL. 6+/-) 86,r 2.5Y 5/6 perc C2 FRONT = 30 CLT LCAM `' - AL.ARY AND cap Ts+oL PAWL LS SIDE = 15' im. 2,5y 5/3 To BE INSTALLED wsrOE CWMON MOTTLES SEPARATE ALARM FFea -`"" '" 23.32' REAR = 15 �. ,� TO :� 2.5Y 5/6 r :,n TeoxC2 {/� . T000 CAL:`H•10 S ,_ PKC LS NO CM 4 z.sY 6%6 `�� ; /` - naAT SwTG+ ALAW or4 2.SY 6/6PLAN REF. - LCP 20950M `1 r� CHz,e 11.4' Tj srtTTMas R �� 120" 120 FLOOD ZONE: A3 EL. 11 AND C NO WATER `� 4 rgWw�a RANCE M262 T/2 MP PUMPOLD TH2 - - PUMP Cr7 • TEM (OR EOVAL) C4 C3 30. F _ �_ e• CPsHO STOW oft �. MED/FINE MED/FINE SL' 2.5Y 4/4 1,411 r' w,y t- - SAND SAND js •` Ir, Cl' 1� 12 e z , =-� �-,� * _ TJ To SAA �3ER 4 2 5 LOAu 20 P WE cu , jA 168 .5Y 7/ 15.4' 168 Y 7/ ; 2 '4 ° . L� 1 2 d G' _ - 9--'r� STA.. _-- HAY � N o, y NO WATER ENCOUNTERED 0� TES' T_;LT LOAM / � 03 7 •n',i,` _ !. .. l , 2.5y 5/3 ,a -; �.._ _ -_ ��,4 I SEPTIC DESIGN: GARBAGE DISPOSER IS NOT ALLOWED U NGVD (RM 7) DAT UM M I- 1 S ,__ coux�'xv uornrs _ r . 4 , I �� 5p, t . ' 1 LUW' `�_ DROUMS ("1 Ill- GPD) _ "4v NFU 2. MUNICIPAL WATER _IS NOT AVAILABLE t �SIGt tE ` , , PIPE PITCH TO BE 1/8 PER FOOT. � 2sy Q/• � -�6 , i . - - USE A 440 GPD DESIGN- FLOW -_ 3 MINIMUM I NC WATER fF __ - OLD YH t �� -15 #3 #3 �,- -�Y °� '� SEPTIC TANK: 440 GPD ( 2 ) = 880 4. D.ESIGN LOADING FOR ALL PRECAST UNITS TC BE AASHO H- 10 '. F _ #4 3 Cu TH1 8 USE A 1500 GALLON SEPTIC TANK _RT GHT. 5 PIPE JOINTS TO BE MADE WATERTIGHT. 14 #43 -- #4 LEACHING: ACCORDANCE ,WITH MASS. 6. CONSTRUCTION DETAILS TO BE IN ACC PROP. GAR. ( ) (. ) 135 GPD 7. THIS PLANES FOR PROPOSED � � � ',, SIDES: 2 33 + 12.83 2 74 ONLY AND NOT TO BE SLAB = 29.5' � ' � '�, •. . (.74) = 313 GPD USED FOR LOT LINE STAKING. <� BOTTOM: 33 x 12.83 `V #32 ', Q�°e '� i'. t 8. PIPE FOR SEPTIC SYSTEM TO SCH. 40-4" PVC. a. Q I 448 P I , TOTAL: 605 S.F. 'GPD 9. COMPONENTS NOT TO BE BACKFILLED OR CONCEALED WITHOUT #31 r ,L USE (3) 500 GAL. CHAMBERS WITH 3.75' STONE AT INSPECTION BY BOARD OF HEALTH AND PERMISSION OBTAINED ,` FROM BOARD OF HEALTH. PROP. DWELL. DITC G� ENDS AND 4' AT SIDES 10. RESOURCE AREA DELINEATION CONFIRMED UNDER SE3-3494 7 i 87 S + - 1 rr FLDODZOjV 6 5 ("ORDER OF RESOURCE AREA DELINEATION ) f -}-' }� , PART VOF 8 RN11, TSTABLE HEALTH REGULATION VARIANCE REQUIRED, UNDER l El. II'0 #1 1 i PROPOSED PRIMARY SAS TO BE 70' FROM EDGE OF BORDERING VEGETATED 1 1 • NO KNOWN POTABLE WELLS WITHIN 150' OF SAS #17 5� P ;1 WETLAND (30' VARIANCE REQUESTED) 12. ROOF RUN-OFF TO BE DIRECTED TO DRYWELLS 4.57 ? ,'/ 4 ; PROPOSED RESERVE TO BE 66' FROM EDGE OF BVW (34' VARIANCE)* S j AND SEWAGE PLAN 7 Q `9' , #1$ ,' i PROPOSED SEPTIC TANK TO BE 56' TO EDGE OF BVW (44' g NO COA #2 VARIANCE REQUESTED) - - BANK �, - ' 19 * NOTE: IF PRIMARY SYSTEM SHOULD FAIL, REPLACE SYSTEM IN ITS OF L 0 T 3 8 CALVES PASTURE LANE ENTIRETY, INCLUDING THE REMOVAL OF ` r ' i i UNSUITABLE/CONTAMINATED SOILS, REPLACE SYSTEM IN KIND. #2' � J t I I ENGINEER TO INSPECT AND CERTIFY REMOVAL AND REPLACEMENT #A # f. IN THE TOWN OF: 1 I OF SOILS AND SYSTEM BARNSTABLE (VILLAGE) 0 z $ PREPARED FOR: LAURIE WARREN J/- #2 2 ! 5 #2 % 'o 5' REMOVAL OF UNSUITABLE SOIL REQUIRED AROUND PERIMETER OF LOT 38 7 SYSTEM DOWN TO SUITABLE SOIL LAYER. REPLACE WITH CLEAN MED. 30 0 30 60 90 NO COA AL i #6 �! ' i SAND. ENGINEER TO INSPECT AND CERTIFY REMOVAL UPLAND AREA 45,737 s.f. y, BANK ' S ` � 1 r WETLAND AREA 23,449 s.f. 9 - ct�o BOARD OF HEALTH 5 4 Co i 1" = 30' NOVEMBER 3, 1999 TTL. AREA 69,186 s.f. (1.59 oc.) ; d o' I MA SCALE: DATE: 1_ o p APPROVED DATE REV. 1/14/oo(OLD THS) 1 i REV. I/Z7/00(MOVE WILL) LEGEND I 1 1 `. .n Sae-3l2-as41 j 100.0 PROPOSED SPOT ELEVATION ` 32 » _) �� T. 4 ` _ R1 down cape engineering, inc. Mqs\ � `�N °f �'AJJq 100x0 EXISTING SPOT ELEVATION `.3 o�� AR NE H. �9cyG �� ARNE H. 102' ,5� it CIVIL ENGINEERS -0 CUALA L. � 100 10 IVIL 0.OJTHil a e I' LAND SURVEYORS S O PROPOSED CONTOUR 158.9g a I PROP. 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