Public Meeting
February 26, 2009
Grace Gouveia – Room 10
5:00 p.m.
Members Present: Duane
Gregory, Ken Janson, John Livingstone,
and Mark Phillips.
Members Absent: Jerry Anathan and Tom Gaudreau
Staff:
Brian Carlson, Health Inspector
Jane Evans, Health
Agent
David Gardner, Ass’t Town Manager
Sharon Lynn, Town Manager
Darlene VanAlstyne, Licensing Agent
AGENDA
Public Comments:
John Fahanian asked the BoH
to please temper anything that they decide stating this is a very bad year for
rentals.
Motion: Move to waive the reading of the Public
Hearing notice.
Motion: Mark Phillips Seconded: Ken Janson Vote: 4-0-0.
Chair, Duane Gregory gave a
brief overview of what had prompted the initiation of these BoH regulations. She explained the format of the Public
Hearing. Due to the large number of people 5 minutes time limit for
comments. Duane also disclosed that she
is a licensed real estate broker and holds a rental certificate. Appointing board (BoS) had determined no
confilict.
Public Hearing:
Public
Hearing Notice
Board
of Health
The
Provincetown Board of Health will hold a public hearing to consider proposed
changes to the Provincetown Board of Health Regulations Part VII – Local Title
5 Supplements Article 9 and the addition of Part XIV – Habitations for
Rent. (Deletions are stricken through
and additions are underlined.)
PART VII – LOCAL TITLE 5 SUPPLEMENTS
ARTICLE
9 – Definitions
Revised
December 16, 2004
Public
Hearing February 26, 2009
Bedroom:
Portion of a dwelling as so
defined to furnish minimum isolation necessary for use as a sleeping area,
which includes but is not necessarily limited to a bedroom, den, study, sewing
room, sleeping loft, dining room or enclosed
porch, but does not include kitchen, bath, dining room hall or
unfinished cellar or attic. A bedroom
must provide a minimum of 70 square feet of floor space with a head room
of 7’ or more and at least one window which conforms
with the most current requirements of 780 CMR-Mass State Building Code for an
emergency egress window. There
must be a minimum of one electrical outlet.
All bedrooms shall have finished walls and ceilings. A room that must be walked through in order
to reach an another room (other than a bathroom) will not be considered to have
the minimum isolation necessary to be considered a bedroom. For new construction or remodeling, in
order for a room not to be considered a bedroom there must be a minimum 6’ cased opening into any other room.
Dwellings build prior
to the 1978 Building Code will may have their
bedrooms determined on a case by case basis by the Board of Health.
Sleeping
Loft: In order for a loft to be
considered as a bedroom the following minimum standards must be met:
· The above referenced criteria defining a bedroom.
· A solid privacy wall of at least 3’ in height.
· Access other than a ladder and which complies with
current building codes.
Any loft
that does not meet the above criteria shall not be used for sleeping purposes.
Change
of Use: Shall include but not be limited
to an increase, decrease, alteration or extension within the existing use
group; also defined as a transfer to another use group. The term increase is defined as: expansion of
any structure that would increase its interior floor space by more than 50
square feet.
PART
XIV – HABITATIONS FOR RENT
Board of
Health Public Hearing
February
26, 2009
The
Provincetown Board of Health promulgates the following regulation under
authority of M.G.L. c. 111, Sections 3 and 127A:
Purpose
The
purpose of the regulation is to protect the public health, safety and welfare
of both the general public and the occupants of all rental housing units,
including but not limited to, year round, seasonal and weekly rentals.
ARTICLE
I – RENTAL CERTIFICATION
No
person, owner or agent for the owner shall rent or lease or offer to rent or
lease any building or any portion of a building to be used for human habitation
without first obtaining a Rental Certification from the Board of Health. Prior to issuance of the initial Rental
Certification, the health agent/inspector shall inspect the premises in
accordance with Section 6 hereof, and determine the number of persons each
rental unit may lawfully accommodate under provisions of 105 CMR 410.000.
Rental
Certifications shall be effective on the date indicated on the approved rental
certificate and shall expire, unless previously revoked, one year from that
date.
Applications
for new Rental Certifications shall be accompanied by a floor plan depicting
the layout of the premises showing the square footage of each room. No premises certified under this Regulation
shall be structurally altered unless the Board of Health or its agents approve
such alteration, addition or deletion, in writing.
The
fee set forth in Section 7 hereof shall accompany all applications.
Section
1. Posting of Rental Certification
The
Rental Certification (a.k.a.
“certificate”) required by this regulation shall be conspicuously posted within
the registered premises.
Such
posting shall indicate the number of bedrooms and the number of persons said
dwelling unit, or portion thereof, may lawfully accommodate. All significant contact information for the
Owner or the owners agent/manager including, but not limited to, telephone
numbers, mailing address and e-mail address shall be provided to the tenant or
posted conspicuously within the registered premises. Where the owner is a realty trust or
partnership, the contact information for the managing trustee or partner shall be
posted. In the event that the owner is a
corporation, the contact information for the president of the corporation shall
be posted.
Section
2. Maximum Occupancy
Maximum
occupancy of the dwelling unit and for each bedroom shall be determined by the
health agent/inspector at the time of the original inspection. Maximum occupancy shall be based on State
Sanitary Code 105 CMR 410.400 Minimum Square Footage which states the
following:
Every
dwelling unit shall contain at least 150 square feet of floor space for its
first
occupant, and at least 100 square feet of
floor space for each additional occupant, the floor space to be
calculated on the basis of total habitable room area.
In a
dwelling unit, every room occupied for sleeping purposes by one occupant shall
contain at least 70 square feet of floor space; every room occupied for
sleeping purposes by more than one occupant shall contain at least 50 square
feet of floor space for each occupant.
Section
3. Agent to Act in Owners Absence
Every
property owner who offers living accommodations for rent or lease, shall make
available to the tenant, in the event of the owners absence, the name and
contact information of an agent authorized to act on the owners behalf in the
case of an emergency which endangers the property or threatens the welfare of
any person living in or on the premises.
Section
4. Definition of an Emergency
An
emergency is defined as a violation of any health and/or safety code or law
enforceable by a town authority including, but not limited to, the health
agent/inspector, building inspector, fire inspector, wiring inspector, plumbing
inspector or any police official.
Failure to provide the services of a competent person to act in an
emergency shall be deemed sufficient cause, upon written notification from a
town authority, for a fine and/or revocation and/or suspension of the Rental
Certificate for the property in which the violation occurs and for all other
properties for which the same owner holds a Rental Certificate.
Section
5. Maintenance Requirements
The
registered premises shall be maintained in a clean and sanitary condition and
free from garbage, rubbish or other refuse.
The owner of the premises shall immediately correct any condition caused
by or on such premises or its appurtenance which affects the health or safety
and well being of the occupants of any or of the general public.
The
owner of the premises shall maintain the foundation, floors, walls, doors,
windows, ceilings, roof, staircases, porches, chimneys and other structural
elements of the premises so that it excludes wind, rain and snow and is
rodent-proof, watertight and free from chronic dampness, weather-tight, in good
repair and in every way fit for the use intended. Further, he shall maintain every structural
element free from holes, cracks, loose plaster or defect where such holes,
cracks, loose plaster or defect renders the area difficult to keep clean or
constitutes an accident hazard or an insect or rodent harborage.
The
registered premises shall be maintained in accordance with the provisions of
the State Sanitary Code, and every other applicable General Law, regulation or
by-law intended to protect public health, safety and/or the environment
No
owner or manager shall permit the registered premises to be occupied by more
than the number of persons specified on the Rental Certification at any one
time.
Section
6. Inspection of Rental Units
Prior
to the issuance of the initial Rental Certificate the Provincetown health
agent/inspector or other authorized town official, shall inspect all rental
units and continue to do so every third year from that point on. The owner or owner’s agent or property
manager shall schedule the inspection and be present during the entire inspection.
In
addition to determining maximum occupancy, the health agent/inspector will
require:
Smoke
and carbon monoxide detectors, fire extinguishers and emergency lighting (if
applicable) must be in compliance with Mass. Fire Safety laws.
· General cleanliness.
· Clear egresses.
· Electrical panels properly labeled.
· Proper trash receptacles and recycling bins are
provided and the rubbish hauler pick-up schedule is posted as well as the hours
of operation and location of the Provincetown transfer station.
· Street number and unit number must be posted on
the outside of the building.
· The premise conforms to the requirements of 105
CMR 410.000 Minimum Standards of Fitness for Human Habitation.
Section
7. Complaints
All
rental units are subject to inspection upon complaint or request in accordance
with 105 CMR 410.820. Issuance of the
Rental Certificate does not preclude the tenants right to file a complaint with
the health agent/inspector; to which he or she must respond with an inspection
in compliance with 105 CMR 410.000. This may result in additional requirements
of compliance to be issued.
Section
8. Rental Certificate Registration fees
All
Rental Certificates must be renewed annually, whether an inspection is required
that year or not, in accordance with the following fee schedule (No fee for
deed restricted affordable housing):
1. Initial Rental Certificate with
Inspection: $150.00
Annual
Renewal of Rental Certificate: $60.00
Annual
Renewal of Rental Certificate with Inspection (after every third year): $100.00
The
annual renewal of a Renters Certificate, on the years when an inspection is not
conducted, must be accompanied by verification that the smoke detectors, carbon
monoxide detectors, fire extinguishers and emergency lights (where applicable)
are all in good working condition and functioning as intended. This verification shall be provided by
either:
1. A professional fire protection company.
A
Homeowner’s Affidavit provided in the application packet.
Renewal
applications shall be submitted to the Licensing Department fifteen (15) days
prior to the expiration date posted on the Rental Certification. If the renewal application is for a year in
which an inspection is required, the inspection shall be conducted prior to
issuance of a Rental Certificate for the following year.
Section
9. Enforcement
The
Board of Health may suspend or revoke any Rental Certification, after a hearing
and in accordance with the procedures set forth in 105 CMR 410.830-410.860, for
any violation of any provision of this regulation, the State Sanitary Code, or
any other applicable General Law, regulation or by-law intended to protect
public health, safety and/or the environment.
If
any rental certificate is suspended or revoked, the owner and manager of the
premises shall be responsible for finding alternative and comparable housing
for the tenant until such time as the tenancy ends or the rental certificate is
reinstated.
The
Board of Health may enforce the Regulation or enjoin violations thereof through
any lawful process; and the election of one remedy by the Board of Health shall
not preclude enforcement through any other lawful means.
Section
10. Fines and Penalties
Any
agents of the Town’s Board of Health may enforce this regulation.
Whoever
violates any provision of this regulation may be penalized by a non criminal
disposition process as provided in G.L. c.40, §21D and the Town’s non-criminal
disposition by-law. If non criminal
disposition is elected, then any person who violates any provision of this
regulation shall be subject to the penalties set forth below, commencing ten
days following day of receipt of written notice from the Board of Health. Each day or portion thereof shall constitute
a separate offense. If more than one, each
condition violated shall constitute a separate offense.
This
schedule of fines is in accordance with the Provincetown General By-Laws
Schedule A:
1st
offense………………………$100.00
2nd
offense…………………… $200.00
3rd
offense, and all there after..$300.00
Section
11. Severability
If
any provision of these regulations is declared invalid or unenforceable, the
other provisions shall not be affected thereby but shall continue in full force
and effect.
Section
12. Operation and Effect
This
Regulation shall become effective upon publication pursuant to G.L c. 111, §31.
Part VI – Local Title 5
Supplements; Article 9 –
Definitions; Bedroom
Jane Evans explained this was
housekeeping. It has been the board’s
policy to require 6 ft or greater opening for a room not to be considered a
bedroom with new construction or remodeling. In 2004 when this was last
addressed, Jane and Duane recall that we had included the language, but somehow
it never was posted in our regulations.
Another slight change referred to egress windows. There were neither questions nor comments
from the public or the Board on these changes.
Part XIV – Habitations for
Rent
There has been a regulation
in the general by-laws which required registration of units rented for 90 days
or less. There enforcement issues and other flaws in the by-law and the
Licensing Board felt it wasn’t their responsibility. At one time it was thought to be a money
making issue for the Town. At the last
meeting between the BoH chair, staff and the Board of Selectmen (BoS), the BoH
was encouraged to pursue a Board of Health inspection regulation for the sake
of the public health and the environment.
Jane Evans, referring to her
complaint log, said that complaints usually come from year round rentals. Brian
agreed. Duane said the goal is for all
rentals to meet the minimum standards of human habitation.
Questions from the
audience:
Adam Wolf has a few units and wondered what “minimum standards”
mean in the meeting notice he had received.
David Gardner answered by saying
he had tried to do outreach to the community. He sent invitations (for the
hearing) to find landlords with multiple units.
Duane said that David went above & beyond to invite you all to the
meeting.
Jim Turner wondered if it were true
that all affordable housing units are exempt from paying. Answer – It is proposed they have to be
inspected but at no charge. Selectmen would have final say on that policy.
Alan Wagg asked what kind of communication the BoH has had with
non-residents who own property here? How
are they informed?
David G. said that once this
is in effect – a notice will be inserted in their tax bill.
Joe DeMartino wondered - how many people does it take to do an
inspection? - how much? - how
often? how long? He counts over 1200 rentals and asked if anyone
has budgeted staff time and what will it cost the town?
David G. responded that the
town is aware it will be a demand on our health staff (2 people). We’re talking about doing a third of the town
the first year and we hope for good compliance with this. He knows it will take some time to get to all
those units. In any given year we’ll do
about 1,000 inspections. We’ll do
rolling inspections. Duane added that
they’ll be set up so that you’ll renew annually from the date of inspection so
all do not expire at the same time.
Napi VanDerek said is dead set against the whole policy. He asked:
If the purpose is public safety - what about condos?
Jane said that the state code
for minimum habitation only applies to rentals and if an owner wants to live in
a substandard house – it’s their castle!
David Nicolau – referring to the language in the 1st
paragraph – shouldn’t it be the owner of record?
Duane said that the by-law
that went before this one was combined with the redo. The word “agent” can mean different things,
i.e., it could be the rental agent, or the complex managing agent, etc. She suggested that the board will discuss
alternate language which may eliminate real estate agents from culpability.
John Fiset asked if the $150 was for each and every unit?
Jane said that the $150 is
for the first unit and then it is proposed to change to be $50 for each
additional unit.
Duane also said that these
fees are not set in stone and the final fee will be approved by the BoS.
Emily Flax said that her question hasn’t been addressed yet –
does the inspection go with the property if it is sold? Answer:
Yes. There would be an obligation for the new owner to give his contact
info to the town and tenants.
Klaus Betten said that he made several calls – no other town has
this – did you do your research?
Provincetown is always double or triple any other town for fees. Duane
answered that we did look into other towns doing this and they exist both on
and off the Cape.
Gregg Russo said that registering your rental has always existed. The by-law has always been on the books.
Duane said that it wasn’t
cost-effective and David said that it was an expansion of the existing by-law.
Astrid Berg – referring to Klaus’ question – asked - how did you
come up with the numbers? She has studio
apartments and they won’t take that long to inspect. She needs reason for the inspection cost.
David cited a methodology in
determining the cost and said that included in this cost is a factor for
compliance. We need to do a notification
to property owners and we do that by certified letter, etc. All that cost has been factored into the
fee. It’s a spreadsheet that considers the individual
staff cost and other needs.
Paul Tasha asked what is considered a standard of “general
cleanliness?” Also he asked about
unfinished bedrooms as opposed to finished bedrooms and what that meant. Paul, too, said that insurance companies
inspect an entire property for $175. yet we have to pay unit by unit.
Duane said that you always
have the recourse to come to the BoH and complain if you feel you have been
treated unfairly. Duane also said that
there are units that may not pass for year round use. Units can be deemed
seasonal use only.
Liz Carney questioneded if
it was an issue if people prefer to sleep in the living room rather than the
bedroom. No, as long as the occupancy is
proper.
Tony Banford asked if the BoH has a record on how many complaints
you have received.
Brian C. said that the majority
of complaints 75% or 80% are from year-round rentals. There are about 10 or 15 every year. Jane feels that many people don’t complain
because they may be afraid of repercussions.
Helen VanDerek asked - is there a real need for this based on so few
complaints?
Duane said that the BoS seems
to think so. When a person rents his
property to another we have a responsibility to ensure the safety of the
public. We’re not the only town who does
this – Barnstable, Boston, and Haverhill, etc.
Steve Busa asked - what about Truro and/or Wellfleet? Why do we need to inspect and they don’t?
Sharon Lynn, the town manager
said that for the 22 months that she’s been here – the BoS have asked about the
system and why we’re not capturing more than 150 or 200 rentals? Why are we not capturing more of these
inspections? We’re now faced with
cutting staff – but to say it’s been a BoS concern is an understatement.
Susan Davis said that a lot of people are concerned with the
timeline and when it will take affect?
Duane said that the BoH wants
to ease the requirement in and the BoH will inform people when that might
happen. No one is out to get people if they are making an attempt to comply.
Joe DeMartino wondered how you handle this issue when people rent
through many sources?
David G. said that it’s the
responsibility of the property owner.
Don Fiset said that the emphasis has been on bedrooms and number
of occupants and you want to know square footage of each room – why would you
have to know other rooms that are not bedroom?
Jane said that 70 sq ft is
required for a one person bedroom and you must have 120 sq ft for two people in
a bedroom to meet the minimum standards of habitation.
Comments from the
audience:
David Nicolau, once again commented on the 1st paragraph
and wanted it to read owner of record.
Also he said that he’s all for safety but it couldn’t happen at a worst
time. The economy couldn’t be worse and
he requests the BoH to please do this with minimal cost to the homeowners.
Napi VanDerek said that’s he’s been in business for the last 40
years and now that condos have begun to
grow it has become the norm. He has 21
rental units and this will change his whole perspective on it. If this really passes I’m going to condo
everything. This is just one more level
of bureaucracy!
Duane Cremins said that he lives next door and if it this goes
through it hurts renters. He also added
that he is unemployed right now.
Joe DeMartino works in real estate and handles rentals. He said that there is no more fishing; no
other industry in town. All we have is
tourism and 2nd home owners This could be the straw that breaks the camel’s back. This will create an unintended consequence
for all of us. The second homeowner and
their taxes are subsidizing the rest of us and our services. He knows that the BoS and the town want more
money but he urges not to allow this.
Paul Tasha said that he didn’t realize the urging for this came
from the Board of Selectmen. I leave
here with a different perception on the reasons why! It’s for the money.
Frank Vasello said if his landlord has been charged $150 dollars and
it will be passed on to me. Doesn’t feel
its outrageous. It’s about $13 month.
Astrid Berg agrees with Paul Tasha – biggest problem seems to be
not catching the extra units that are renting 90 days or less – how are you
going to catch them? She suggests going
back to the drawing board and finding representation of 2nd home
owners. She didn’t get a letter and
feels a fee should cover the expense of the services. Also should consider this
when second home owners are here.
Robert Silva asked about the complaints – were they life
threatening – or what? Brian answered by
saying that the complaints vary some are and some aren‘t.
Don Fiset said that you’re trying to pass along water rate
increases – your inspections – and he has tenants that have been here for many
years and he will lose them.
Adam Wolf said that he has many units – one of his tenants said
that she would gladly pay out of her pocket.
He has 25 and 35 year long tenants.
He feels this program may cost more to administer than it is worth. The BoS will find that it will cost more in
staff. His suggestion if they need money
call it a tax.
John Fahanian said that the last thing people need is inspectors in
the summer!
burocracy
Paul Tasha said that a lot of his tenants are behind
already. It does eventually mean that
there’s a far reaching impact, i.e., the more the town takes out of your pocket
the less you spend in town.
David Nicolau wondered about a 2nd means of egress. Some people fear they will need to do
extensive work.
Napi VanDerek mentioned the word bureaucracy one more time
referring to the new inspections proposal.
Gregg Russo said he is not opposed necessarily and that the issue
is more about the year-round property owners.
He thinks it’s overall a good plan but he feels it going to be a
daunting task. He cautioned that the BoH
needs more feedback.
Moe VanDerek feels too much regulation but if it is going to be
implemented the fees should be adjusted downward.
Emily Flax said that if this is all about safety – then the fees
should be secondary.
Duane was assured by the chair
of the BoS that this was not about revenue raising.
Duane thanked everyone for
their input and assured them that there would be no decisions made today and
careful thought by the BoH is needed.
Each member of the BoH had
their concluding comments and they all thanked the gathered group and assured
them that they would take all their questions and comments under serious
advisement.
The public hearing was closed
at 7:00 p.m.
Duane said that regarding
Klaus’ comment – we are high. Barnstable
is big and charges only $95. John L.
asked David G. for his methodology and wanted to know to what extent the Town
has been transparent. This would be
useful especially when people are really counting their money. Duane said that what remains is for the BoH
to do their homework and come to the next meeting with any suggestions they may
have for changes/alterations, etc.
Ken Janson said that all
these people are making money on their rentals.
The amount of the inspection will be spread out over 12 months and these
attitudes are a lot of crying; paying
for these inspections is just a cost of doing business.
Duane wondered if we should
say $150 for the inspections and that amount is good for three years?
I.
Health
Agent’s Report
Jane said that she had a
letter from the county regarding alternative septic systems and they’re asking
for the BoH to submit another letter to continue with the program. It was signed.
I.
Health
Inspector’s Reports
Brian said that he wrote a
letter of support for a grant from the BoH for the DPW.
Motion: Move to approve a letter of support for a DPW
grant and authorize the Chair to sign off on the letter.
Motion: Ken Janson Seconded: John Livingstone Vote: 4-0-0.
Also Brian told the BoH that
he is still working on a tenant issue.
The meeting adjourned at 7:15
p
Respectfully submitted,
E. Rogers Gaudiano
Approved by the Board of
Health on ______________________,2009
Duane Gregory, Chair