the video of the meeting and reviewed the packet material for this property. He discussed the lengthy

Transcription

1 TOWN OF ORLEANS BOARD OF HEALTH MINUTES OF MEETING 16, TLIt m May 18, 2016 ORLEANS TOVN CLERK The Board of Health convened its meeting at 2: 00 p.m. on Wednesday, May 18, 2016 in the Skaket Meeting Room of the Orleans Town Hall. Present: Chairman Jan Schneider, M.D., Vice Chair Joseph Hartung, Mr. David Currier, Mrs. Judith Di Brigida, and Mr. John P. Smith. Also present: Health Agent Mr. Robert Canning. Chairman Jan Schneider called this meeting to order and welcomed newly elected Mr. Smith to the Board of Health. Agenda Item 1 Public or Press There was no one present from the public or press. Agenda Item 2 Variance Application 178 Beach Road Subdivision Mr. Smith left the meeting for this discussion. Dr. Schneider noted for the record that he was absent for the April 20, 2016 meeting but he has watched the video of the meeting and reviewed the packet material for this property. He discussed the lengthy process by which regulations are formulated; and explained that it is the responsibility of the Board of Health to enforce those regulations to protect the public health and environmental safety. He noted that although the regulations are thoughtfully promulgated to protect the public safety there are allowances for variances for unusual circumstances. Dr. Schneider pointed out that this parcel at 178 Beach Road is an irregularly shaped lot of acres owned by the Walter Howard May III Revocable Trust to be divided into five buildable lots. The Board of Health Subsurface Sewage Disposal Regulation requires that a subdivision " of five or more lots shall be served by a shared or common septic system that provides nitrogen removing technology." He noted the options available to the owners: ( 1) divide the parcel into five lots with a single, common septic system; ( 2) divide the parcel into four lots with individual septic systems; ( 3) divide the parcel into five lots with five individual septic systems requiring a variance to the Subsurface Sewage Disposal Regulation for the common septic system. The critical reason for granting a variance is establishment of a hardship for the owner as pointed out by Attorney Landreth at a previous meeting. Mr. Canning noted that this is a continuance of the variance hearing on April 20, The variance requested is to the Orleans Board of Health Subsurface Sewage Disposal Regulation that requires: " The creation of a subdivision of five or more lots or the division of a tract of land into five or more lots shall be served by a shared or common septic system that provides nitrogen removing technology. The system may be located anywhere within the subdivision or division including the open space, if any, subject to all applicable rules, regulations and laws. The nitrogen removing technology shall remove nitrogen at a minimum to 10 ppm' s discharge or 5 ppm at the lot line." Mr. Canning continued that Mr. O' Reilly represents the owners of the Walter Howard Mayo III Revocable Trust who are proposing a five-lot subdivision on a 256,754 square foot lot at 178 Beach Road. His request is to allow the subdivision of five lots with a variance to the required common septic system. On March 16, 2016 Mr. O' Reilly met with the Orleans Board of Health to review a Definitive Subdivision Plan for 178 Beach Road. After reviewing the above regulations and the subdivision plans the Board of Health approved the subdivision plan with the following conditions: Town water must be available to all parcels. U:\ HealthDept\health\ Board of Health Minutes\ Draft Minutes\BOH Minutes b. docx 1

2 All provisions of the Orleans Board of Health Subsurface Sewage Disposal Regulations, including the provisions stated above, must be complied with. o The proponent must show easements necessary for the common septic system. These easements must account for the location, construction, operation, and maintenance of the wastewater collection system, wastewater treatment works, and the soil absorption system. This land is subject to the provisions of the Orleans Board of Health Nutrient Management Regulations. Per these regulations all lots in the subdivision are limited to 440 gallons per day of sewage flow per 40,000 square feet of land( or ratio thereof). In addition to the above, Title 5 requires that the septic system serving the existing dwelling is to be inspected when the land is divided. If the septic system consists of cesspool components it must be brought into compliance with the provisions of Title 5 and the Orleans Board of Health regulations. He noted that Mr. O' Reilly requests that the Board of Health grant a variance to the requirement that the five lots shall be served by a shared or common septic system that provides nitrogen-removing technology that will remove nitrogen at a minimum of 10 ppm' s discharge, or 5 ppm at the lot line. He has supplied Board members with a Nitrogen Loading Calculation from the Cape Cod Commission that depicts an Actual Nitrogen Load for the subdivision of 4.41 ppm, which is below the required nitrogen concentration of 5 ppm at the lot line as required by the Board of Health regulations. Mr. Canning noted that the Health Department had compiled a similar Nitrogen Loading Calculation using the Cape Cod Commission Model resulting in a Mean Nitrogen Loading Concentration of The Commission Technical Bulletin indicates that the Mean Nitrogen Loading Concentration should be used for regulatory review. Mr. Canning also pointed out that additional letters from abutters opposing the variance had been received since the last hearing from: James and Ann Marie Galowski, 17 Deer Run, Timothy and Susan O' Connor, Thomas and Elizabeth Sherwood, and a letter dated May 16, 2016 from Attorney Duane Landreth to the Planning Board not related to this hearing. Mr. Canning stated the Standard of Review for this variance request: 1) Variances to the provisions of 310 CMR 15: 000 and the Orleans Board of Health Regulations for Subsurface Sewage Disposal shall be granted only when in the opinion of the Orleans Board of Health: a. The person requesting the variance has established that enforcement of the provision of 310 CMR 15: 000 and these regulations from which a variance is sought would be manifestly unjust, considering all the relevant facts and circumstances of the individual case; and b. The person requesting a variance has established that a level of environmental protection which is at least equivalent to that provided under 310 CMR and these regulations can be achieved without strict application of the provisions from which the variance is being sought. 2) With regard to variances for new construction, enforcement of the provisions from which a variance is sought must be shown to deprive the applicant substantially of all beneficial use ofthe subject property in order to be manifestly unjust. Dr. Schneider requested, and Mr. Canning read into the record the specific regulation: Article III, Subsurface Sewage Disposal, General Requirements, 2) Building/Plumbing Permits/ Subdivisions/ Divisions, c) Subdivisions and Divisions: The creation of a subdivision of five( 5) or more lots or the division of a tract of land into five ( 5) or more lots shall be served by a shared or common septic system that provides U:\ HealthDept\health\ Board of Health Minutes\Draft Minutes\ BOH Minutes b. docx 2

3 nitrogen- removing technology. The system may be located anywhere within the subdivision or division including the open space, if any, subject to all applicable rules, regulations and laws. The nitrogen removing technology shall remove nitrogen at a minimum to 10 ppm' s discharge or 5 ppm at the lot line. And Article III, Subsurface Sewage Disposal, Variance/ Local Upgrade Approval, A) Standard of Review 1) Variances to the provisions of 310 CMR 15: 000 and the Orleans Board of Health Regulations for Subsurface Sewage Disposal shall be granted only when in the opinion of the Orleans Board of Health: a) The person requesting the variance has established that enforcement of the provision of 310 CMR 15: 000 and these regulations from which a variance is sought would be manifestly unjust, considering all the relevant facts and circumstances of the individual case; and b) The person requesting a variance has established that a level of environmental protection which is at least equivalent to that provided under 310 CMR 15: 000 and these regulations can be achieved without strict application of the provisions from which the variance is being sought. 2) With regard to variances for new construction, enforcement of the provisions from which a variance is sought must be shown to deprive the applicant substantially of all beneficial use of the subject property in order to be manifestly unjust. Mr. John O' Reilly of J. M. O' Reilly& Associates, Inc. explained that he represents the Walter Howard Mayo III Revocable Trust and presented additional supplemental information for the request for a variance. Mr. O' Reilly introduced Attorney Ed Patton, also present as attorney for the Mayo Trust. Attorney Patton addressed the nature of the application and the reasons why the Trust requested the variance. Mr. Mayo, now deceased, left the property in the Mayo Trust with Ellen Harrington as trustee to hold the legal title to the property for the five beneficiaries of the Trust holding equitable title to the property. It was Mr. Mayo' s intention that the property should be divided into five separate lots rather than as one large parcel prior to conveyance to the five beneficiaries to avoid any controversy over what should be done with the land. He discussed the issue that there are actually five applicants behind the one named applicant as trustee. This is important because there is no common development scheme, unlike when a developer buys a parcel of land and has a plan for a subdivision of five lots upon which he builds spec housing to sell. Attorney Patton spoke about the lot with the existing dwelling which, most likely, has a failed septic system necessitating an upgrade of the septic system upon conveyance. That owner would immediately be faced with individually constructing the required shared septic system with capacity for five dwellings in order to be able to use the dwelling. He requested that Mr. Ken Mayo speak to the Board as one of the beneficiaries ofthe Trust. Attorney Patton explained that one or two of the beneficiaries currently have no intention of developing the property they would own upon conveyance. He addressed the possible difficulty in getting financial support from all beneficiaries to maintain a shared septic system if they have no beneficial interest in the property. Attorney Patton suggested that installation of individual I/A technology septic systems could meet the requirements of the regulation without causing a substantial hardship for the owner of the property with the existing dwelling. He requested that the Board consider these circumstances as they deliberate on this variance request. Mr. Ken Mayo, younger brother of Howard Mayo, agreed with the proposal to install individual I/A technology septic systems. He noted that the future beneficiary ofthe existing dwelling financially could not install a shared septic system in order to own and occupy that property; and the septic system in place has been operating well for the past twenty years. To his knowledge there are no plans for development of any of the other lots in the proposed subdivision. U:\ HealthDept\health\Board of Health Minutes\ Draft Minutes\BOH Minutes b. docx 3

4 Mr. O' Reilly reviewed the discussion held during the April 20, 2016 meeting and referenced the Songbird Circle subdivision where there were two regulations that apply to this proposed subdivision: One is the shared septic system for subdivisions of five or more lots; and the reference to the Nutrient Management Regulations requiring one bedroom per 10, 000 square feet of lot area. He noted that the Songbird Circle subdivision was originally allowed to proceed without a common sewer system by utilizing 1/A technology septic systems. Mr. O' Reilly explained that he has nitrogen loading information prepared if the Board would consider its use for this proposed subdivision. Following the establishment of the Nutrient Management Regulations, the owners of the Songbird Circle subdivision requested and were allowed by the Board to not be required to install VA technology septic systems. Mr. O' Reilly also addressed concerns by Board members at the prior hearing regarding soil on the property. He explained that he had obtained soil information for the abutting properties from the Health Department as well as on the parcel, all of which are suitable for design and installation of a sewage disposal system. Mr. Hartung agreed that given these circumstances the installation of individual septic systems seems appropriate. However, making the subdivision for only four lots would eliminate one of the beneficiaries. Mrs. Di Brigida stated that although it is a difficult family situation, that is not the concern of the Board of Health; it is the obligation of the Board to uphold the regulations in place for the good of the entire town. She also noted that although a beneficiary might not have plans to build, they might sell their lot and the new owner could immediately build on that property. It is her opinion that the request for a variance does not meet the criteria of a hardship. Mr. Currier disagreed and noted that the requirement for a shared septic system is a local regulation and it is placing a hardship on a long-time local family and that it is manifestly unjust to force five beneficiaries to determine how they would treat their properties in the future. He acknowledged that if the property were sold to a developer and the developer requested the variance he would oppose the requested variance. Mr. Currier also noted that the proponents are adhering to the Nutrient Management Regulations requirement of no more than one bedroom per 10, 000 square feet of property. Dr. Schneider agreed with Mr. Hartung that there is one dwelling with an old septic system. Dr. Schneider also addressed the issue ofthe number of abutters who had sent letters to the Board opposing the requested variance as well as those that had attended the previous meeting. He requested that any abutters present speak to the issue of hardship. Mr. John Laurino, 32 Grandview Drive, distributed a letter to Board members( Exhibit 2-1) and spoke on behalf of the 32 homeowners and as vice president of the Grandview Estates Association; he requested that Board members consider the following information: There is no basis for granting a variance to the applicant for relief from the existing requirement that the five-lot subdivision have a shared system. The rationale submitted by the applicant for a hardship in no way meets the Town code, or for that matter, any definition of hardship within the Commonwealth of Massachusetts. Any variance would be appealed and we are firmly ofthe opinion that the variance would be overturned, putting us right back here again. It would be a waste of Town resources and send the entirely wrong message to Wastewater to future applicants during a time when this issue is of paramount importance to the residents and taxpayers of Orleans. The 2009 single lot nitrogen management standard does not override the preexisting fivelot subdivision common septic system requirement, as we understand, as a matter of the existing Town policies in place to which you were elected to uphold. Both regulations are in effect. A single family home, or two, or three, or four-lot subdivision may not be required to comply with the common system rule, but for the unusual five- lot or more subdivisions there is the additional requirement of a common septic system. And this, your Board' s own rule, still applies. In order for a five or more lots subdivision to waive out of the common septic system requirement the rule states that the applicant must prove, as we discussed, the alternatives to which they don' t meet the standards, and also U:\HealthDeptthealth\ Board of Health Minutes\Draft Minutes\ BOH Minutes b. docx 4

5 that they are showing that their calculations are thirty percent higher than the 5 ppm at ppm. They are not even showing us that they can meet that standard today. To continue the argument, independent of the five-lot rule, the engineering is straightforward because the applicant' s own engineer has submitted calculations showing that a four-bedroom house on these lots which are at ppm of nitrogen at the property line. It is higher than the Town' s own Health Agent' s calculations provided to the Board in April. In addition, the new site soil information that the Board was looking for in April, if you go back and look at the April 20`h meeting when the waiver hearing was postponed, has not been obtained. Apparently no on- site soil or groundwater tests have been done on this property in the intervening weeks, which is the reason this meeting was continued to today and not the previous meeting in between on May 4's. Instead, copies of applications of other properties have been handed in with no analysis of the single observation in their cover letter. So, is the Board supposed to do the staff work, or should the applicant be doing the staff work here? Further, the other property whose in- house records were handed in as evidence to support the waiver request were not comparable to the subdivision land now under consideration. The closest one is 17 Grandview Avenue; a lot that the Mayo family carved out ofthis lot already, so the reason this lot is so weirdly shaped is because they have already carved a lot out of it and they did it themselves, so they imposed their own hardship here. That land is high and relatively flat. To the north of 17 Grandview there is a sheer drop of twenty feet into an unusual hole. How will that lot manage a single septic system? Is the hole natural or manmade? The records for 17 Grandview indicate that the test holes were dug to a depth of eleven feet, but the big hole on the new subdivision is a twenty-foot deep hole already. The old information on 17 Grandview does not tell us what soils or groundwater are like at the bottom ofthe hole, and the subdivision tract is part of the old Mayo duck farm and may have been significantly disturbed over the years. Our fundamental concern is that the Cape community truly depends on the Board of Health to administer regulations that were hammered out with a purpose to protect our lands, aquifers, freshwater ponds, and estuaries for the future. The Town' s rules are meant to apply equally to everyone for the protection of us all. The hearing is directly about the environment which in turn will inform the safety issues that must be addressed in the Planning hearing if we get to that stage. If the Board of Health finds that there is insufficient reason under the regulatory standards to waive the common septic system requirement, then the applicant will either have to do the work to design a feasible common septic system, or redesign the subdivision plan. If the Board gives the applicant a pass they will be on their way to, what we believe based on the information provided so far, a development that would overburden the property and adversely impact Grandview and our local environment." Stefanie Sequin of Ryder& Wilcox, Inc., representing the Grandview Property Owners' Association, observed that in the original request for the variance to the requirement to construct a common septic system the applicant noted that they would comply with the Nutrient Management Regulations. This appeared to be an alternative to complying with the 2005 Orleans Board of Health Subsurface Sewage Disposal Regulation. She explained that the applicant must comply with both regulations. Mrs. Sequin explained that the Nutrient Management Regulations limit the development of existing parcels or expansion of existing dwellings. The Subsurface Sewage Disposal Regulations seem to have a higher standard applying to the creation of new lots, or a subdivision of a parcel. She also noted that the applicant had stated the requirement to provide easements for a common septic system as a hardship. In the creation of that regulation the Board of Health had to be aware of the requirement for the easements; therefore, there is no additional difficulty for this applicant than there would be for another applicant for a subdivision to meet this requirement. U:\ HealthDept\health\Board of Health Minutes\ Draft Minutes\BOH Minutes b. docx 5

6 Mrs. Sequin pointed out that the latest nitrogen loading calculations indicated 6. 6 ppm, while Mr. Canning showed 5. 7 ppm; both exceeding the 5. 0 ppm targeted in the Subsurface Sewage Disposal Regulations. She noted that those calculations included the entire parcel area of 256, 754 square feet but the area of the cul de sac should be eliminated from that calculation. Although not a large area, removal of those 6, 500 square feet would slightly increase the nitrogen loading calculations. Mrs. Sequin also discussed the recharge rate noting that if Mr. O' Reilly had used the same number as the Cape Cod Commission' s number for Orleans, that number would also be slightly increased. She noted that the assumption of building coverage of 4, 000 square feet per lot is a very large house. Other properties in Grandview Estates range in size from 2,250 square feet to 4,000 square feet; however, most fall in the range of 3, 000 to 3, 500 square feet. Mrs. Sequin addressed the septic system at the existing dwelling on the property and whether the owner would be required to connect to the shared common septic system because it is being considered part of the five-lot subdivision. She also noted that Lot 1, with the existing dwelling, would be 70, 000 square feet and according to the Nutrient Management Regulations that dwelling could be expanded to have seven bedrooms. She suggested a deed restriction to maintain a dwelling with no more than four bedrooms. Mr. Canning reiterated that the proposal outlines that each dwelling in the subdivision could have no more than four bedrooms. He also opined that the lot with the existing dwelling, being part of the subdivision, would be expected to connect to the shared common septic system if and when the current septic system fails. He further clarified that upon approval of the subdivision plan that property owner should be required to connect to the common septic system when it is constructed. Board members inquired if the parcel with the existing dwelling could be separated from the subdivision plan. Mr. Canning responded that because the house sits on the entire parcel to be divided, its separation is part of the creation of the subdivision. Board members discussed the establishment of the requirement for a common shared septic system for a subdivision of five or more parcels. Mr. Canning explained that the Board was attempting to have greater treatment of effluent than that provided by a single property UA technology septic system. He also explained how the nitrogen loading is calculated and noted that it is more stringent than the Nutrient Management Regulation' s stipulation of no more than four bedrooms per 40, 000 square feet of property area. Mr. Hartung acknowledged that the four bedrooms per 40, 000 square feet was established for the best protection of the environment. Mr. O' Reilly noted that reducing the number of bedrooms allowed per dwelling would work to the advantage of the beneficiaries of the estate and would comply with the nitrogen loading calculation of 5 ppm at the property line. He noted that an I/A technology septic system would add between $ 10, 000 and$ 12,000 to the cost of a four-bedroom home. A common septic system would cost approximately $ 250, 000 to install, compared to approximately $30, 000 for an individual VA technology septic system. Mr. O' Reilly pointed out that the increased cost of the common septic system is because the topography of the land necessitates additional electric service for pump stations as well as the electricity and pumps for the treatment process. Mrs. Di Brigida inquired that the strange topography of the land might increase the cost for installation of individual UA technology septic system. Mr. O' Reilly explained that because of the bowl between lots 4 and 5 those septic systems could be gravity fed, therefore avoiding additional expense to those property owners. Mr. Currier pointed out that because the prospective property owners would not be building on their lots in the near future, the initial property owner to utilize their property would be forced to bear the entire expense of installing the common sewer system. He noted that the person in California, who probably has no intention of building on the property, would probably not be willing to contribute to the cost of the common sewer system. Mrs. Di Brigida pointed out that that problem should not be the concern of the Board of Health. Mr. Laurino discussed that the Mayo Estate had termed this parcel as an investment and by improving the investment it would be worth more in the future. He also noted that this is a problem for the Estate and it U:\ HealthDept\ health\ Board of Health Minutes\ Draft Minutes\BOH Minutes b.docx 6

7 is not up to the Board of Health to solve the Estate' s problem. He opined that the trustee of the Estate has the resources to make any decisions about the parcel as required to satisfy the beneficiaries. Because of the parcel' s proximity to Nauset Beach, allowing a variance to the requirement for a common septic system by the Board grants a tremendous increase in the value of each lot created. Dr. Schneider discussed that in spite of the confusion within the beneficiaries of the Estate, he does not, see any hardship caused by being required to install a common septic system in order to develop the subdivision of the land. On a motion by Dr. Schneider and seconded by Mrs. Di Brigida, the Board of Health voted in the matter of 178 Beach Road. The issue at hand is an irregularly-shaped, more or less 256,000 square foot parcel which is to be subdivided. It has five owners and the request was for five units of the subdivision each to have its own subsurface sewage disposal system. I move that in the face of the reality that there is no hardship, and that the regulations were postulated for reason, that we deny this variance request. Mr. Hartung inquired if the Estate had indicated a time limit for dividing the land? Attorney Patton explained that the Estate is very close to making distributions to beneficiaries. He also noted that a prior speaker has no knowledge about the Trust regarding its assets. He also pointed out that the regulations required the Board of Health to consider all relevant facts and circumstances of the individual case. With no further discussion, the vote was with Mr. Currier voting no. Mr. Smith returned to the meeting at this point. Agenda Item 3 Variance Application 33 Old Duck Hole Road Mrs. Stephanie Sequin of Ryder& Wilcox, Inc. represented the Martha R. Abissi Trust, Lyn Abissi, Trustee, and owner ofthe property at 33 Old Duck Hole Road. Mrs. Sequin explained that the 38, 000 square foot property with a four-bedroom house is for sale and the existing cesspools must be replaced with a Title 5 sewage disposal system. Noting the topography of the land where a large portion is within the 100- year flood zone and top of a Coastal Bank, it would be necessary to locate the new septic tank 45 feet from the top of the Coastal Bank, and the soil absorption system will meet the 100- foot setback from the top of the Coastal Bank but the existing topography makes it necessary for the soil absorption system to be installed deeper than allowed. Mrs. Sequin also noted that because of the additional depth to cover the distribution box and soil absorption system covers will be heavy-duty components and will be vented. The Conservation Commission has approved this plan. Mr. Canning reviewed the Standard of Review and noted that this is considered a repair of a septic system with no increase in flow. Board members had no comments or questions. There were no abutters present. On a motion by Mr. Hartung and seconded by Dr. Schneider, the Board of Health voted in the matter of 33 Old Duck Hole Road. I move that we accept the two variances as written: A portion of the soil absorption system shall be greater than 36 inches below final grade a variance of two and one-half feet( 2. 5'); and the septic tank shall be forty-five feet( 45') from the top of a coastal bank where a fifty- foot setback is required a variance of five feet( 5'). Also note that the components will be heavy duty H-20. With no further discussion, the vote was Item 4 Variance Application 25 Gull Lane Mrs. Judy Bersin of Ryder& Wilcox, Inc. represented John and O.J. Murphy, owners of the property at 25 Gull Lane. Mrs. Bersin distributed a map indicating where the flood zone had changed in relation to this property. (Exhibit 4-1) She explained that the client has requested Local Upgrade Approval of the U:\HealthDept\ health\ Board of Health Minutes\ Draft Minutes\ BOH Minutes b. docx 7

8 septic system( cesspools) under Title 5 and for the addition of a garage/ studio to the existing three- bedroom dwelling. There will be no additional bedrooms. Mrs. Bersin explained the topography of the lot noting that it abuts a marsh leading to Little Namskaket Creek. In October 2013 the Conservation Commission approved the plan and issued an Order of Conditions. The project did not proceed at that time. Since then the FEMA Flood Maps were revised in July 2014 and the proposed sewage disposal system now requires variances to Title 5 and the Orleans Board of Health Subsurface Sewage Disposal Regulations. Mrs. Bersin noted that the proposed system will improve the quality of the effluent in that the septic tank will contain the solids, which will be pumped periodically, and the effluent treatment will be improved with pressure dosing of the soil absorption system. Also, the soil absorption system will be located fifty feet further from the top of the coastal bank. Mrs. Bersin read the variances required for this installation. Mr. Canning explained that this is a request for variances to enable the owner to construct a new septic system for the three- bedroom dwelling on 34,848 square feet of land because of an increase in the footprint of the dwelling. They would be replacing the cesspools on the property with a septic tank, pump chamber, distribution box, and leaching chambers. He reviewed the Standard of Review for repair of a septic system. Board members discussed the fact that the variances are now required because of the change to the FEMA Flood Maps. There were no abutters present. On a motion by Mrs. Di Brigida and seconded by Mr. Hartung, the Board of Health voted in the matter of 25 Gull Lane. I move that we accept the upgrade of a new septic system with a twentyfive foot( 25') variance to the one hundred foot setback. The soil absorption system which is seventy feet( 70') where one hundred feet( 100') is required and the reserve area shall be sixty-seven feet( 67') where one hundred feet( 100') is required. The septic tank shall be fourteen feet( 14') from the coastal bank where fifty feet( 50') is required, and the pump chamber shall be twenty-five feet( 25') from the coastal bank where fifty feet( 50') is required. With no further discussion, the vote was Agenda Item 5 Variance Request 7 Brick Hill Ext. Mrs. Stefanie Sequin of Ryder& Wilcox, Inc. represented Robert and Carol Hausman, Trustee of the Carol P. Hausman Revocable Trust, owner of the property at 7 Brick Hill Ext. The three- bedroom house on a 47,000 square foot lot is served by a 1978 Code septic system. Because the current septic system, which is within fifty feet of a wetland, is showing signs of failure, the proposal is to replace it with a new 1, 500- gallon septic tank, distribution box, and soil absorption system as far away as possible from the wetlands. Test holes were conducted in the southwest corner of the property to a depth of ten to eleven feet where they found clean sand with no evidence of groundwater. Locating the leaching system in that corner seventy- five feet from the wetlands requires a twenty-five foot variance to the one hundred foot setback. In order to relocate the septic system to the southwest corner of the property it will be necessary to replumb the waste pipes and relocate a water line, considerably increasing the cost to the owner. Because of the relocation of the septic system components and utilizing gravity flow the depth to cover over the distribution box and leaching system will be more than three feet below grade requiring a variance of approximately two feet. Mrs. Sequin has specified heavy-duty components and venting for the leaching chamber. Mrs. Sequin explained that the Conservation Commission has approved the project. However, Mrs. Judith Bruce pointed out that moving the new septic system to a new location would be beneficial to the nearby ponds for removal of phosphorous from the effluent. U:\ HealthDept\health\Board of Health Minutes\ Draft Minutes\ BOH Minutes b.docx 8

9 Mr. Canning noted that the pond is most likely a perched wetland and there may not be any hydraulic connection between the bottom of the septic system and the pond. However if there were a hydraulic connection, being further away from the pond and with fresh soil would be advantageous in preventing the conduction of phosphorous toward the pond. Mr. Canning again discussed the Standard of Review for the requested variances. Board members had no comments. There were no abutters present. On a motion by Mr. Smith and seconded by Dr. Schneider, the Board of Health voted in the matter of 7 Brick Hill Ext. I move that we approve the variances for a two and two-tenths feet( 2. 2') reduction below grade for the distribution box and soil absorption system. Also, there is a twenty-five foot( 25') reduction variance for the soil absorption system from the two wetlands that are incurred. With no further discussion, the vote was Agenda Item 6 Variance Request 56 Gosnold Road Mrs. Stephanie Sequin of Ryder& Wilcox, Inc. represented Colin and Alix Campbell, owners of the property at 56 Gosnold Road in their request for a variance to Chapter 147 of the Town of Orleans Code with regard to swimming pool fencing greater than twenty feet from the apron of a pool. The pool installation also includes construction of a cabana, which along with the rear of the house will provide security fencing for two sides of the pool area. The remainder of the fencing will be between twelve feet and seventeen feet from the pool apron and parallel to the apron. However, when measuring diagonally from two corners of the pool apron the fence is approximately twenty-three feet from the pool apron which is three feet greater than the twenty feet allowed by Chapter 147 Swimming Pool Fencing. Mrs. Sequin pointed out that the apparent intention of Chapter 147 is to ensure that the property owner can see all areas of the pool enclosure so they are able to maintain its security. She noted the extensive visibility to the pool area fence from both inside the house and the cabana as well as the patio area around the pool. Mr. Canning explained that Chapter 147 is a Town By-law, not a Board of Health regulation. He read the standard of review to consider this request. Mr. Canning inquired of Mrs. Sequin whether a shower is still included in the cabana plan. She responded that this plan showing a shower was submitted with a Disposal Works Construction Permit application. Mr. Canning noted that they had since received plans without the shower because the initial plans with the shower would meet the code for habitation with an additional bedroom. Board members had no comments or questions. There were no abutters present. On a motion by Dr. Schneider and seconded by Mr. Hartung, the Board of Health voted in the matter of 56 Gosnold Road. The request is for a swimming pool, two sides of which are fenced in by buildings, and the other two sides of which are fenced in by a fence. All are within the twenty-foot 20') regulations except for the far corners of the fence which are either two feet( 2') or three feet 3') beyond the twenty feet( 20'). This is a very minor variance requested. I move that we grant it. With no further discussion, the vote was Agenda Item 7 Approval Request 210 Main Street Zia Pizzeria & Café Dr. Schneider noted that Mr. Rik Morse, owner of Zia Pizzeria& Café, had been present for the hearing but left prior to this Agenda Item. Mr. Canning explained that he had been told by note that Mr. Morse left the meeting to attend another appointment. He wished to have the Board discuss his request, and if needed he would return for another hearing. U:\ HealthDept\health\ Board of Health Minutes\Draft Minutes\ BOH Minutes b. docx 9

10 It was decided that this hearing would be postponed until the other business for this meeting had been exhausted. Agenda Item 8 Approval Request Stefanie' s Clam Chowder Mrs. Stefanie Wright of Stefanie' s Clam Chowder had sent a request that the Board of Health allow her to pay the $ 50 fee for a Temporary Food Permit for the first two weeks of the Orleans Farmers' Market and then waive the remainder of the fees for the balance of the season. Mrs. Wright needs the Temporary Food Permit to be able to offer samples of her chowder at the Market. Mr. Canning explained that Mrs. Wright' s requested variance is from the State and Federal Food Code required to serve or sample clam chowder at the Orleans Farmers' Market. She also requested that Temporary Food Permits for the service and sampling of chowder be issued for the season of the Farmers' Market at a modified fee of$ 50 for the entire season. Mr. Canning explained that a Temporary Food Permit is good for a maximum of fourteen days at a cost of$ each. It would necessitate having fifteen permits for the Farmers' Market season. Mr. Canning pointed out that regarding the Temporary Food Permits, all vendors with permits are obliged to comply with the requirements of the Federal Food Code. Because this request is for service at the Farmers' Market, it will not meet the requirement of the Federal Food Code for physical facilities. Therefore, the Board should consider granting a variance to allow the sampling of clam chowder without meeting the requirements of the physical requirements of the Federal Food Code. Mr. Canning noted that Mrs. Wright would be preparing the clam chowder in her licensed kitchen and would transport the hot chowder and maintain it hot in a crock- pot at the Farmers' Market. She would portion two ounce tasting cups as requested. Mrs. Wright holds a Farmers' Market Retail License to sell the cold packaged chowder, however some people request a sample prior to purchasing the product. Mr. Canning outlined the standard of review for this request. Board members inquired if there would be any possible risks. Mr. Canning noted that Mrs. Wright would not serve samples on a very windy day. He explained that Mrs. Wright had done this last year and she keeps the proper temperature logs; he has no problem with this request. Board members discussed allowing the Health Agent to approve these requests without the proponent coming to a Board meeting each time. However, it was decided to only deal with this individual request at this time. On a motion by Dr. Schneider and seconded by Mr. Smith, the Board of Health voted in the matter of Stefanie' s Clam Chowder to approve the request as we did last year for the variance to the Federal Food Code and for the modified fee for Temporary Food Permits. With no further discussion the vote was Agenda Item 9 Approval Request The Local Scoop Ms. Mary DeBartolo, owner of The Local Scoop, was present for this hearing. Ms. DeBartolo had requested that the Board of Health, as they had last year, allow her to pay the $ 50 fee for a Temporary Food Permit for the first two weeks of the Orleans Farmers' Market and then waive the remainder of the fees for the balance ofthe season. Ms. DeBartolo needs the Temporary Food Permit to be able to make and sell crepes made fresh at the Market. She explained that she purchases food products from other vendors at the Farmers' Market to use in preparation of the crepes. Mr. Canning explained that this request is similar to the previous item. Ms. DeBartolo requested a variance to the Federal Food Code for the facilities at the Farmers' Market; and approval of Temporary Food Permits with relief from the fee after the initial $ fee is paid. Mr. Canning reviewed the proposal submitted by Ms. DeBartolo. She will provide a tent for a roof and a tarp on the ground as a floor. She uses a mobile food unit for refrigeration of ingredients already prepared U:U-lealthDept\health\ Board of Health Minutes\Draft Minutes\BOH Minutes b. docx 10

11 at the Local Scoop and transported in the unit to the Farmers' Market. To meet the requirements for hand washing Ms. DeBartolo will have Purell available to her customers and sanitary wipes available to the cook. They will also have multiple utensils and a sink set up for wash, rinse, and sanitizing those utensils. Mr. Canning outlined the standard of review for granting the requested variances. He has no problem with this request. Board members had no questions or comments. On a motion by Dr. Schneider and seconded by Mr. Hartung, the Board of Health voted in the matter of The Local Scoop to approve all three requests as we had last year. The vote was Agenda Item 10 Approval Request 6 Beach Plum Lane Mr. Myles Glynn and Mrs. Kerry McCabe, owners of the property at 6 Beach Plum Lane, requested that the Board of Health approve a request to build a small, screened porch addition on the front of his dwelling. Mr. Canning explained the application to construct a screened porch that would change the footprint of the dwelling. He pointed out that Title 5 requires that a system inspection be conducted to determine the location of all septic components and the location of a reserve area. He also noted that the property is served by a cesspool, which, according to the Orleans Subsurface Sewage Disposal Regulations, constitutes a failure of the septic system. Mrs. Di Brigida discussed that the proponent would be required to upgrade their septic system, and Mr. Currier noted that he has consistently disagreed with this requirement in order to add a porch to a dwelling. Dr. Schneider noted that the cesspool would need to be replaced at some point in the near future. Mr. Glynn explained that the dwelling has only one bedroom and was built in the early 1950' s. He noted that the addition of a porch would not increase the septic flow to the cesspool that has continued to funetion properly. He pointed out that they would be required to install a Title 5 septic system on a lot that is approximately 35, 000 square feet allowing installation of a septic system for a three-bedroom house for the existing one- bedroom house creating a situation where the septic system is over-designed for the size of the dwelling. Dr. Schneider inquired if the Board could grant a variance to the requirement to upgrade a cesspool. Mr. Canning agreed that they could apply for a variance to that requirement. Board members noted that it is the purpose of the regulation to eliminate all old cesspools for safety reasons. Mr. Currier suggested allowing them to place a deed restriction on the property that it remains a one-bedroom dwelling until a new septic system is installed. Mr. Canning outlined some possible actions that Mr. Glynn could pursue. He also cited the number of cesspools that have failed in the past On a motion by Dr. Schneider and seconded by Mr. Hartung, the Board of Health voted in the matter of 6 Beach Plum Lane that we deny the request for the extension without there being an inspection of the current cesspool. And, if it is in good enough shape to last five years, we will give you five years to replace it with a Title 5 system. Mr. Canning clarified that it is his understanding of Dr. Schneider' s intention that the Health Department would be allowed to sign off on the building permit, and the system is ordered to be repaired with a fiveyear compliance date. Dr. Schneider pointed out that if the cesspool caves in the proponent would have to replace it, or upon sale ofthe property it would need to be replaced. Again, Mr. Canning clarified his understanding that the Board of Health motion was to allow the Health Department to sign off on the Building Permit on the condition that the septic system be deemed failed because it is a cesspool; and require it to be inspected to be structurally sound and if it is structurally sound they can have five years on the date of compliance on that order. The vote was with Mrs. Di Brigida voting no. U:\ HealthDept\ health\board of Health Minutes\ Draft Minutes\BOH Minutes b. docx 11

12 Agenda Item 7 Cont' d. Approval Request 210 Main Street Zia Pizzeria & Café Mr. Currier recused himself from this discussion. Mr. Canning reviewed the request from Mr. Rik Morse, owner of Zia Pizzeria& Café. They would like to increase sales by offering a full breakfast menu and would like to use ceramic coffee cups and metal utensils during breakfast service. Mr. Morse noted in his request that a condition of his septic system was that they are required to only use disposable dishes, utensils, and drink ware for service of food. He requested a variance from that requirement to use only disposable ware and to be able to use ceramic coffee cups and metal utensils so breakfast at Zia' s would be more enjoyable. Mr. Morse stated that standard washing procedures would be used. Mr. Canning explained that Zia Pizzeria was approved as a fast food restaurant and required to use only paper goods and single service articles. He is allowed 20 gallons per seat per day. Mr. Canning also explained that in 2014 Mr. Morse had requested, and was granted, the use of glassware for the service of wine. Mr. Smith inquired and Mr. Canning responded that Title 5 requires 35 gallons per day of septic capacity per seat for a full-service restaurant. Also Mr. Canning noted that the current capacity of the septic system would need to be upgraded to become a full- service restaurant. Because of their location they would also need a variance to the Nutrient Management Regulations of 110 gallons per day per 10, 000 square feet of land requirement. On a motion by Mrs. Di Brigida and seconded by Dr. Schneider, the Board of Health voted in the matter of Zia Pizzeria& Café located at 210 Main Street. I move that we deny the request by Zia to use anything other than single serve. Board members discussed that Mr. Morse wished to make Zia Pizzeria a full- service restaurant but he has been restricted by the size of the septic system he inherited from the previous owner. However, the system is now overloaded and cannot take any additional load. With no further discussion, the vote was Mr. Currier returned to the meeting at this point. Agenda Item 11 Discussion' Orleans Board of Health Regulations Nutrient Management Regulations Dr. Schneider suggested that because of the time, this discussion should be postponed until the next meeting. Mr. Currier noted that the discussion had been postponed since January. Agenda Item 12 Approve Minutes March 16, 2016 The March 16, 2016 Board of Health meeting minutes had previously been distributed to Board members for review and discussion. On a motion by Dr. Schneider and seconded by Mrs. Di Brigida, the Board of Health voted to approve the Board of Health meeting minutes of March 16, 2016 as presented. With no further discussion, the vote was Agenda Item 13 Old/ New Business and Review Correspondence 13 1 A Notice from MDAR regarding the Eversource Energy Vegetation Management Plan had previously been distributed to Board members for review and discussion. Mr. Canning explained that Eversource wants to treat the vegetation under the power lines in Orleans. He explained that the Health Department researches for any wetland or potable water well that could be compromised by the herbicide. U:T ealthdept\health\ Board of Health Minutes\ Draft Minutes\BOH Minutes b. docx 12

13 13 2 A letter dated May 10, 2016 from POCCA regarding the Eversource Energy Vegetation Management Plan had previously been distributed to Board members for review and discussion. Mr. Canning noted that POCCA requested that Boards of Health deny the MDAR rights of way spraying. He requested that the Board approve his method of response to this request. Mr. Smith inquired if the area of concern included Cedar Pond along Route 6. Mr. Canning explained that the line in question runs from the Brewster line across Route 6 and then along Eldridge Park Way. Mr. Currier opined that the Town should deny the use of pesticides. It was suggested that the Board of Health only allow the use of mechanical means to control the vegetation. Mr. Canning asked for clarification whether the letter should just state that fact or whether the Board is requesting a hearing with MDAR. Mr. Currier felt strongly that Orleans should join other Cape towns in requesting a hearing to fight this issue further. On a motion by Mr. Currier, and seconded by Mr. Hartung, the Board of Health voted to write a letter to MDAR that we don' t want Eversource spraying our town. The vote was The motion was amended and seconded to request a hearing with MDAR regarding the approval of Eversource' s request to spray herbicides in Orleans. The amendment was moved, seconded, and voted A letter dated May 3, 2016 from MassDEP regarding Return to Compliance to the Orleans Housing Authority had previously been distributed to Board members for review and discussion A copy of the Revised Orleans Solid Waste Facility Regulations had previously been distributed to Board members for review and discussion. Mr. Canning noted that the revision would be effective July 1, A letter dated May 13, 2016 from the Fourth of July Committee requesting a waiver of disposal fees at the Orleans Transfer Station had previously been distributed to Board members for review and discussion. Mr. Canning noted that Nauset Disposal would collect and dispose of the trash after the Fourth of July activities. On a motion by Mr. Hartung and seconded by Dr. Schneider, the Board of Health voted to waive the fees. With no further discussion, the vote was Agenda Item 14 Health Agent' s Report Licenses Mr. Canning explained that at the Board of Health meeting on April 20, 2016 during the discussion of the Orleans Farmers' Market Board members voted to approve the Orleans Farmers' Market but did not vote to approve the Farmers' Market Retail Permit holders. He distributed a list of the permit holders( Exhibit 14-1) for Board members to review, noting that most vendors have previously held permits and new vendors have recently appeared before the Board. On a motion by Dr. Schneider, and seconded by Mrs. Di Brigida, the Board of Health voted to approve the list as circulated. The vote was On a motion by Dr. Schneider and seconded by Mr. Hartung, the Board of Health voted to approve a Farmers' Market Retail Permit for Wellfleet Sea Salt not included in the previous list. The vote was Bathing Beach Permits The public bathing beaches in Orleans( Nauset Beach, Skaket Beach, Meetinghouse Pond Beach( for swimming lessons only), Pilgrim Lake Beach, and Crystal Lake Beach) are required to have Bathing Beach Permits each year. U:\ HealthDept\health\ Board of Health Minutes\Draft Minutes\BOH Minutes b. docx 13