Public Meeting

 

January 9, 2003

 

6:00 p.m.

 

Members Present:                 Mark Baker, Cynthia Gast, Duane Gregory, Ken Janson

 

Members Absent:                  Kay Halle (excused absence)

                                                David McLean (excused absence/alternate)

 

Health Agent:             Marina Brock

 

Health Inspector:                   Patricia Pajaron

 

The meeting was called to order by Mark Baker at 6:00 p.m.

 

Public Hearing – Proposed Change in Board of Health Regulations Part VI,

Article 3 – Sanitation Collection & Disposal, Article 4 – Rules & Regulations for the Use & Operation of the Temporary Transfer Station, and Article 5 – Solid Waste Fees

Mark Baker explained the procedure to be followed for a Public Hearing.

1)      Arguments from Proponents: Pat Pajaron, acting as proponent for this proposal, detailed the proposed changes:  (1) Part 4, Article 4, Section A-1:  Change hours to “7 a.m.-2 p.m.” with days open remaining the same; (2) Part 4, Article 3, Section 6 (B), Item 6:  Add  “Town trash pick-up will be at curbside only”; (3) Part 4, Article 4, Section C (e):  Plastic types #1 and #2 will now be accepted for recycling; (4) Part 4, Article 5, Section C (1-7):  Weighing in procedures for Transfer Station, particularly Section C (5) to state: “Tare weights for regular users will be checked each month and changed as necessary. Customers may be weighed in and out at any time at their or the Town’s request. Per the Weights and Measures Laws, the scale will be recalibrated each year.”

2)      Questions from the Board: None.

3)      Public comments/questions: James Richmond asked if anyone could use the scale.  Pat said that it is open to anyone’s use.

4)      Arguments by Opponents: None.

5)      Questions from the Board: None.

6)      Public comments/questions: None.

7)      Closing statements/rebuttal by Proponents: None.

8)      Closing statements/rebuttal by Opponents: None.

 

Motion:  Ken Jansen moved and Duane Gregory seconded a motion to accept the new regulations as presented.  The vote passed 4-0-0.

 

Discussion

Since no agenda item was scheduled under Discussion, Mark Baker recommended five minutes be made available for Public Comments. The Board agreed by consensus.

 

Three people spoke regarding the Smoking Ban regulations. Steve Anderson read a prepared statement discussing the effect of the ban on him personally and professionally, as a bartender.  He feels the ban denies freedom of choice and asked the Board to come up with a compromise solution that would give back people’s right to choose.  He said his income has dropped since the ban and stated concerns for the financial and social impact the ban will have on the town.

 

Amy Mitchell then spoke, listing several U.S. towns where there have been reported income losses following smoking bans. She is concerned about increased street litter of cigarette butts as well as moving bar language into the street. She feels town residents should vote on the ban at Town Meeting.

 

Robin Brun spoke next, feeling that the ban was not done democratically and suggesting it go to Town Meeting for a vote.  She feels that the people the ban was trying most to protect, the bartenders, are the ones who are most negatively affected by the ban.

 

Old Business

None.

 

New Business

29 Conwell Street – Title 5 Variances

William Rogers appeared on behalf of property owner Charles Roderick requesting variances on two property lines.  The cesspool failed and the septic is being upgraded.  Marina Brock stated that there must be Water Department approval and Mr. Rogers stated that he obtained one.  Ken Janson asked why the system was not being placed in a more open section of the yard and Mr. Rogers explained that there are large trees in that area. Pauline Richmond, an abutter at 21B Conwell, spoke next raising two concerns.  First, she requested assurance that there would be proper retaining sheeting placed prior to and during excavation.  Second, she asked that the location of the proposed vent pipes be changed to a place closer to the street and away from the houses because of the possibility of odors.  Mr. Rogers agreed with both suggestions.  There were no further questions from the Board.

 

Motion:  Ken Janson moved and Cynthia Gast seconded to approve Plan P-02-1781 with the following three conditions:  (1) Deed restriction limiting it to five bedrooms; (2) That the excavation be properly sheeted during construction; and  (3) That the vent pipe be moved farther south, closer to the street.  The vote passed 4-0-0.

 

1C Jerome Smith Road – Title 5 Variances

William Rogers appeared for property owner John Twomey requesting variances on the septic tank and soil absorption system, which are less than 10 feet from existing crawl space.  Marina Brock stated that it should be an H-20 tank rather than an H-10 tank as planned due to the proximity to traffic.  Mr. Rogers agreed.

 

Motion:  Cynthia Gast moved and Ken Janson seconded to approve Plan P-02-1788 with one condition:  That the tank be changed to an H-20 tank.  The vote passed 4-0-0.

 

522 Commercial Street – Change in Use

Dr. John Livingstone, the applicant, appeared with the contractor, E. J. Martinez, to request that a garage bay in the back garage building be changed to use as a waiting room for his and his wife’s private practices.  Marina Brock recommended a deed restriction stating that the main house has four bedrooms and the back garage building has one bedroom plus one office space.  There are two septic systems. Since this plan will actually decrease flow because it will go from a two bedroom to a one bedroom and office in the garage building, there is no need to go to Growth Management.

 

Motion:  Ken Janson moved and Duane Gregory seconded to approve the requested Change of Use with the following deed restriction:  That the main front house have only four bedrooms and the back garage building have only one bedroom and one office.  The vote passed 4-0-0.

 

165 Commercial Street (Continued from 11/21/02, 12/5/02, 12/19/02 – Appeal of Health Agent Decision

Motion:  Mark Baker moved and Duane Gregory seconded to re-hear this case as there were only three Board members present at the last meeting and one of those three is not present at this meeting.  It passed unanimously.

Ken Janson stepped down from hearing the case because he is a guesthouse owner.

Attorney James Veara appeared for the property owners and summarized the situation:  The owners previously obtained approvals from the Conservation Commission and the Zoning Board for a 16-bedroom house. Marina Brock then investigated and found licenses and permits issued for only a 15-bedroom house based on the in-ground SAS. The septic tank is sized for 19 bedrooms, but the leeching field is sized for only 15 bedrooms. The owners seek a permit to upgrade to a 16-bedroom flow upon hook-up to the sewer.  Duane Gregory stated that this request may be in defiance of regulations and thought the Board should review what happened with 117 Commercial Street. Mark Baker clarified via the 6/20/02 Board of Health Minutes that 117 Commercial Street is a one-bedroom house. He then stated that he emailed Zoning Board of Appeals Chair Gary Reinhart regarding the ZBA’s decision about 165 Commercial Street. Zoning seemingly upheld the licensed 15-bedroom use by saying in their decision that “the usage of the property will not be increased.”  The use is governed by a 15-bedroom septic system. Marina stated that to approve 16 bedrooms would be in violation of Growth Management and that she does not want to reward deception by the previous owners who obtained a permit for 15 bedrooms but put in a 16th without benefit of the proper permit. A building permit was issued on the condition that a wall in the basement that afforded privacy to the illegal 16th bedroom be removed. The Health Agent would not sign off on the 16th bedroom. It was emphasized that there has been no deception on the part of the present owners, that they are honest and trying to get a permit legitimately. They are asking that the wall be put up again in the basement for a 16th bedroom at the time of the septic hook-up to the sewer. Mark suggested that they could apply to Growth Management to add the 16th bedroom.  Duane Gregory commented that the Board had made a similar decision previously on a house in Pilgrim Heights where two bedrooms had been added in a basement without a permit, and this Board denied the permit for an expanded septic system that included those two bedrooms.

 

Motion:  Mark Baker moved and Cynthia Gast seconded to uphold the Health Agent’s decision to keep the property at its licensed and permitted use for 15 bedrooms based on the in-ground septic system.  The vote passed 3-0-0.

 

293 Commercial Street – Discussion of Use

Tom Roberts, a Subway restaurant franchise owner, and Tom Messa, a regional manager of Subway, appeared.  Mr. Roberts is requesting the location of a Subway restaurant in the back of the building with up to 10 seats. He stated that Subways are unique, requiring little water use. All food is delivered pre-cut and only assembled on-site, only paper is used, there are no open flames or ovens (except for baking bread daily), and only microwave ovens are used to heat sandwiches which are served hot. Marina Brock explained that the Board of Health only deals with septic flow.  The challenge for this property is that it has a very limited septic flow.  Food preparation and seating both require that certain flows be assigned to them as per Title 5 regulations. She stated that this situation is strictly based on numbers regarding this assigned flow and whether or not those numbers fall within the flow capacity of the property in question. She recommended that: (1) Mr. Roberts speak to her directly regarding the standard assigned flows,  (2) Mr. Roberts speak with the Health Inspector, and (3) Mr. Roberts speak with the Building Inspector to determine if the space could be used for this purpose.

 

428 Commercial Street – Review of Building Permit Application

Property owner Olga Vitello appeared with her neighbor/friend Larry Meilleur to appeal the decision of the Barnstable County Health Agent regarding proposed changes to her one-room studio. Proposed changes include a ladder/stairway to a loft space and the addition of a small dormer with three windows, which has been approved by the Historic Commission.  Much discussion ensued regarding use of the proposed loft space and the rest of the studio. Marina Brock explained that the loft space must have an assigned flow under Title 5 regulations, even if the ceiling level is only 5’3” high. It is considered habitable space and under Title 5 qualifies as a “sleeping loft.” Thus, the concern is the increased flow.  It was acknowledged that under state building code, it is not a bedroom because there is a ceiling height requirement. Duane Gregory expressed concern that a loft space is not a bedroom. Marina recommended that the Board take it under advisement and get an opinion from the Department of Environmental Protection regarding whether or not it is a bedroom. The owner reported that another Barnstable County Health Agent recently visited the site and reviewed the plans and said because of the limited height, the space cannot be considered a bedroom. After careful consideration of the plans before the Board, Ms. Vitello decided to re-submit the current plan to the Health Agent with the following changes: the first floor is to be used as living/dining room/kitchen and the loft as a bedroom, therefore maintaining it as a one-bedroom residence. Ken Janson questioned the flow for this particular unit. The history on the property is complex, as it was a single family that was split into three condos with approval for four bedrooms total. However, a 5th bedroom was added to another unit (not by this owner) without permit. The Board recommended that Ms. Vitello revise and re-submit the plan to the Health Agent and/or Building Inspector for approval with the agreed upon changes.

 

6 Sandy Hill Lane (Continued from 3/21/02) – Review of Building Permit Application

Property owner Maria Kuliopulos appeared seeking approval of revised floor plans as requested by the Board on 3/21/02. The first floor plan was previously approved by the Board. Current plans relate to changes on the second floor, creating three one-bedroom spaces of approximately 520 square feet each. The pre-existing building was a three-bedroom, single-family dwelling; it will now be three separate one-bedroom dwellings complete with three kitchens and baths. Discussion ensued regarding whether a Change of Use will need to be requested as well. Minutes from the 3/2/02 Board meeting were distributed and the seven conditions set at that time were read. Ms. Kuliopulos stated that she has complied with all conditions, but there was no verification of this. Marina Brock wondered why it would not be considered a change of use as well. Duane Gregory read the regulations regarding the requirement to obtain a Change of Use and meet current codes. Marina said she needed to research whether or not this issue was previously addressed. The Board has never voted on a Change of Use for this property. It was agreed that this request would be continued to the next meeting on January 23, 2003 so the Health Agents can review it thoroughly. 

Ken Janson asked if there is a maximum square footage allowed for bedrooms. Ms. Brock stated that there is not but that the Board could limit by deed restriction the number of people allowed per bedroom to a maximum of two. Mark Baker stated this is a complicated and large rehabilitation and apologized to the owner for the delay, but stated it is important to follow the correct process.

 

Any Other Business:

Mark Baker received a fax regarding Potassium Iodide (KI) stockpiling and distribution and stated the Board should review the information.  Marina Brock recommended that the Board place a warrant on Town Meeting.  This would satisfy the Town-approval requirement to obtain KI but not obligate the town to accept it.  Thus, the town would be ready if the Department of Health develops a distribution plan.  The Board agreed to get town approval in an effort to be pro-active.  Mr. Baker will ask Pat White to revise the template for a Town Meeting warrant and put it on the Board’s agenda for discussion at the January 23, 2003 meeting.

 

Mr. Baker asked the Board if they want to allow future agenda items regarding the smoking ban. He does not feel they should be on the agenda unless the Board plans to take action or unless new information can be provided by the applicant.  Ken Janson felt that it may anger opponents and Mark stated that further comments would be fine under Public Comments but not as agenda items.  Ken and Cynthia Gast agreed.  Cindi wondered about a Town Meeting vote.  Mark said that the Board can either: (1) do nothing and see if someone brings a warrant to Town Meeting regarding the Smoking Ban, or (2) bring a warrant to Town Meeting ourselves asking for support.  Duane Gregory said another alternative would be to do away with the ban and then go to Town Meeting for support.  However, none of the three members who voted to support the ban want to change their vote.  Duane asked what would happen if Town Meeting voted against the smoking ban.  Mark replied that the Board could still legally uphold the ban.  Duane stated that if the Board proponents do not expect to change their minds, it should not be taken to Town Meeting.  She feels it is a business issue, but Mark feels it is a health issue.  Cindi asked Mark if the town voted against the ban, would he agree to bring up a new vote by the Board.  He would not.  Ken was surprised by the data presented by one of tonight’s speakers about the negative economic impact on towns with smoking bans because the stats the Board have show that, after an initial decline, revenues increased again.  He feels the Board made the right decision and he would not change his vote.   Duane asked if the Board could legally turn away people wanting to discuss this issue as an agenda item.  Mark said yes as agenda items are at the discretion of the Chair, especially if there was time given under Public Comments.  Duane felt this was reasonable.  Cindi felt it should go before Town Meeting.  Marina Brock reminded that anyone can take a warrant to Town Meeting as long as ten people agree.  It was agreed that the Board will take no action at the present time.

 

Approval of Minutes of 12/19/02 Meeting

Motion:  Duane Gregory moved to approve with Mark Baker seconding.  Cynthia Gast and Ken Janson abstained because they were not present at the meeting.  Vote passed 2-0-2.

 

Health Agent’s and Health Inspector’s Reports:

Marina Brock stated that it is important for the Board to review and create criteria regarding what is considered habitable space as the number of requests for expansion are increasing.  She sees this as a potentially serious problem that presents policy questions for several boards.  She agreed to a request from Mark Baker to investigate other municipalities’ policies regarding what constitutes a bedroom for the Board to examine.

 

Pat Pajaron reported that she has been busy with licensing inspections.  She also said that there is a need to tighten and amend food service regulations to set standards for food establishments.  She will make a draft of recommendations for the Board to review.  She distributed her report on activities of the Health Department for 2002, noting the substantial increase in housing complaints that stress the need for a Housing Inspector.

 

Board Members’ Statements:

Ken Janson:  None

 

Mark Baker:  None

 

Cynthia Gast:  (1) Cindi would like for there to be building plans that the Board can examine for each agenda item presented at meetings.  (2) She asked if anyone can come before the Board and change a single family to a multiple family dwelling.  Duane Gregory said it is okay if it is zoned for it and that it would be a Change of Use. The Board can do an inspection if there are complaints.

 

Duane Gregory:  Duane asked if two upcoming meeting dates could be changed:  (1) July 3, 2003 because of the July 4th holiday, and (2) August 21, 2003 because of the Carnival Parade and limited access to Town Hall.  Mark will look into it with Pat White.

 

Motion:  Ken Jansen moved and Duane Gregory seconded that the meeting adjourn at 8:30 p.m.  The vote was 4-0-0.

 

The next meeting will take place on January 23, 2003 at 6:00 p.m.

 

Respectfully submitted by

 

Chris Hottle

 

Approved by

 

________________________________________on January 16, 2003.

Mark W. Baker, Chair