HomeMy WebLinkAbout2004-5-26BOARD OF HEALTH
TOWN OF NANTUCKET
MINUTES
MAY 26, 2004
SUPERIOR COURTROOM
MEMBERS OF THE BOH PRESENT: CHAIRMAN SOVERINO, MR. MURPHY,
MR. WATTS, MR. BENNETT AND MR. GLOWACKI
MEETING CALLED TO ORDER: Approximately 7:00 p.m.
CHAIRMAN SOVERINO: First item on the agenda concerns from the public. Anoe
with concerns for the BOH? Seeing none, I will move to the printed agenda. First item
on the agenda, which is approval of minutes for December 10th and January 14th. So
moved and seconded. Next, we have a variance request — a food service code Section
210.311B for the Company of the Cauldron. Mr. Ray, is there anything you'd like us to
know?
HO Ray: This is a request to waive a particular portion of the Food Service Code which
requires that the public not be allowed to pass in or through the kitchen facilities of a
food service establishment. I believe that the regulation is in place for obvious reasons.
Certainly staff can be educated with regard to sanitary practices. To bring a member of
the public through a food service kitchen certainly invites contamination of a food
product and other issues. I believe you have in front of you my negative recommendation
for this particular man's request.
Chairman Soverino: Other information this evening? Anyone here that would like to be
heard?
Mr. Kovalencik: All Kovalencik, with the Company of the Cauldron. I think you all have
a letter in front of you. Richard was helpful in giving me the code sections and at the
restaurant, it's a prix fixed menu. It is a very, very small restaurant, the kitchen is not
very well defined, and it's a menu so when people will be walking through the area that is
separated by the counter itself. There is no food prep going on where people will be
walking by. There also is no food out at the time they are going to walk by. I found the
code from Richard Ray "persons unnecessary to the food establishment operation are not
let into the food prep, food storage, or ware washing area except that brief visits and tours
may be authorized by the person in charge, at the time they will be walking through, there
is no food out on the counters. Courses get served after everyone is seated. Utensils and
linens are protected .... Everything is under the counter or refrigerated. So what I am
asking is for maybe 4, or one table in the back, maybe 3 or 4 people to walk by before
service even begins. I am not asking for anybody to be in the kitchen at the time. It says
here in the code there is a way to walk through if all the situations are taken care of -
no exposed food, no chance of contamination because there isn't any food out.
Chairman Soverino: Any questions? We have the information from both parties there.
Unfortunately, we don't have agreement on the outcome. Does the Board have any
questions?
Mr. Watts: I just have one. Is this a new practice for the restaurant?
Mr. Kovalencik: No, actually not. The restaurant has been exactly the same for 30 years.
Mr. Watts: And they've used the kitchen, they've used that area to go to the patio?
Mr. Kovalencik: They have used it to step outside. Yes.
Mr. Glowacki: I am unclear. There has been seating outside?
2
Mr. Kovalencik: No. There wasn't seating out there before but there was always a
backyard. People went out there to smoke. So, yes, the area has been used back and forth
for 30 years.
HO Ray: It was not something I was aware of. At this point, I am still very
uncomfortable with bringing in the public. I am comfortable with Mr. Kovalencik's
abilities as a sanitarian and protecting his food products. However, I think when you
bring the public into an environment that is containing food service products, I think you
invite compromising situations and endanger some of the other patrons to the restaurant
with regard to food borne illness.
Chairman Soverino: Thank you, do you want to follow up?
Mr. Kovalencik: Yes, as you can see in the photograph, the counter, the back ledge of the
counter, is where the chefs actually work to prepare the food. It's not very much like
counters in drugstores where you sit at the counter and food or bagels get grilled and
prepared right on the other side. But here nobody will be sitting at the counter or won't be
in the area during the preparation of food — only to walk through to get seated so that the
preparation of food can begin. So at the point where they are walking through, there is no
food to be exposed.
Chairman Soverino: Thank you.
Mr. Watts: A follow up question. I guess I direct this at Richard. What is the difference
between what is happening here and what happens at the restaurant on India Street where
they sit at the bar and the chef prepares the food right there. They are not five feet away.
HO Ray: If a food that is served at the bar, it is food being served to that individual at the
bar. Food contact is between the food service establishment chef and the individual
consuming the food. In this situation, it is a very large table — probably one half the size
of the table you're at and approximately the same height if not 6" taller. My concern is
when passing by that, you're passing by everyone else's food and a sneeze, an errant
unwashed hand after using the bathroom, it's a food contact surface where it's a table and
I think you compromise the food product.
Mr. Kovalencik: I just want to repeat myself where it's at the point where people are
walking through there is no food there, the food is either refrigerated or stored. The staff
at the Company of the Cauldron — the food is prepared in the morning, just before service
grilled off and then re- refrigerated and then things come back out. The first course when
everyone else is seated. The point where food will be out on the counter, there won't be
any traffic going through. People will be seated.
Counselor Weinman: How this all came to being is we got a letter from your office last
summer saying that any establishment that is serving outside had to be licensed as part of
the HDC application, so I put an application before the Board and your office had
asked for a recommendation from Mr. Ray's office. We met with Mr. Ray. Mr. Ray
looked at the premises and came up with this determination. I would just like to make a
suggestion to those of you who aren't familiar with the setup in there, would it be helpful
for you to go in and just observe it and continue this so you can make an informed
decision, because I think Mr. Kovalencik is saying it's legitimate that people won't really
be passing through by food that is being prepared, and I think it will help the Board to
make a decision to observe and maybe walk through...
Mr. Murphy: Further clarification. This isn't a restaurant you walk into and order on an
ad hoc basis. They have two seatings and all the food is served at exactly the same time.
0
That makes it very different. I would be inclined to approve the variance provided that
the business operations of 2 seatings per night with food served simultaneously doesn't
change.
Mr. Glowacki: I concur. I think it is different than what is traditionally going on in other
restaurants.
Mr. Watts: I apologize I was invited to come view there - I couldn't get by.
Mr. Murphy: I will make that motion, Mr. Chairman that the essential operation of 2
seatings a night not be changed and that would be the condition of the variance.
Chairman Soverino: Motion made, second?
Mr. Watts: Second.
Chairman Soverino: Made and seconded to approve this request subject to the historical
nature of the seatings remaining. Motion has been made, any discussion? If not, all those
in favor, say aye.
(Aye.)
Opposed? No.
The ayes have it. Next, we have a request from the BOH with Health Regulation Section
64 — distances ... HO Ray, did you want to be heard on this?
HO Ray: I believe my letter speaks for itself. I recommended approval of this particular
variance. The individuals have proposed a leach facility and well location on a vacant
piece of property in such a way that the property becomes a buildable property in the
Health Department's eyes, and they have achieved what we call maximum feasible
compliance in trying to protect all the individual wells on the public's property.
Mr. Murphy: Move for approval, Mr. Chairman.
5
Mr. Watts: I second.
Chairman Soverino: Made and seconded to approve. On the motion.... discussion.
Mr. Murphy: Yes, Mr. Ray. A couple of questions, the alternative system proposed here
is — brings it down to a nitrate loading of 19 mg.
HO Ray: That is the intent of the particular system that is proposed for this lot, yes.
Mr. Murphy: And are we trying to get to 10?
HO Ray: Yes, I believe we are trying to get to 10. I don't know that the technologies are
out there at this point that will get us there consistently. There are soil conditions that are
affecting that and many lots have different soil conditions on Nantucket. This is a lot out
in the Surfside area; it is certainly more porous soil. Will we see a 10? I don't know that
we will see a 10 nutrient loading. I think that whether this particular system that Mr.
Blackwell designed, we will see well below 19. I think it is an acceptable system,
certainly acceptable in the eyes of the state — it is state approved technology.
Mr. Murphy: When you say we won't see 10, you mean we won't see 10 with this
alternative system or you never see 10?
HO Ray: We may not see 10 with this particular alternative system in this particular
location because of the soil conditions.
Mr. Murphy: So how does this variance request or waiver request, how does this dovetail
with the septic meeting we had the other day with respect to some of the goals we may be
adopting shortly.
HO Ray: We do have a buildable lot; we have been asked for maximum feasible
compliance, we are limiting them to the 3 bedrooms. That is all they can ever have on
2
this property, provided that they use a particular type of nutrient reducing technology, I
think we are doing the best we possibly can with this particular piece of property.
Mr. Glowacki: Mr. Chairman, I would just add also that if it is for environmental
concerns on the nitrate loading another way we can do that is by expanding the sewer
district when we get to 0.
Mr. Newton: Mr. Chairman, my name is Germaine Newton; I am trustee of the property
immediately south of the subject property. As you can see from the map there is a well on
my property that is approximately 150 feet away from the proposed septic system. That
is about half of the minimum 300 feet requirement. So I understand from Mr. Ray that
there is a new technology. I am not sure whether that technology will be enough to bring
that footage requirement down from 300 feet minimum right now to approximately 150
feet to protect our property. Now as a trustee I have fiduciary responsibility to make sure
that nothing can be approved and therefore you have to take my objection that the request
be denied so I can be assured that the land is properly protected.
Chairman Soverino: Thank you for your comments.
HO Ray: I can respond. Here we have a map of the property. And the yellow on this
map is the protection zone associated with this gentlemen's well, which is here. His leach
facility is approximately 102 feet off in this direction. This leach facility is probably 130
feet off in this direction here and because of property line constraints, that's as close as
they can get it to their property line — as far as they can put it. They have moved it the
maximum feasible distance they can. They just barely are inside the protection district for
his well. They do also intrude on this well over here but on a lesser degree. They have
moved it the maximum feasible distance they can — they just barely are inside the
7
protection district for this well. They do also intrude on this well over here but on a
lesser degree. I would remind the Board that the regulations were written with the
maximum feasible compliance portion added to the regulation ... if your property is large
enough you will be mandated to distances of 300 feet or more. If your property is not
large enough, and it is a long standing property, that has been on the books for some time
prior to the regulations certainly, that you not be penalized for that but that you be
mandated to move your leach facility the furthest possible distance you can from
abutters' wells, and that is what this individual has done. In doing so, they have agreed to
alternative design technology, which will further reduce the nutrient loading of the septic
system in the soils.
Chairman Soverino: Other comments or concerns from the Board? If not, all those in
favor say aye.
(Aye.)
All those opposed.
(Opposed.)
Ayes have it.
HO Ray: If I may impose on the Board this evening. We have had an emergency situation
come before us with regard to a septic system, and I note that the design engineer is here.
We have a septic system out in Madaket, a very old antiquated septic system existing of a
line from the structure going to a metal septic tank, actually no septic tank at all, it's a
cesspool that has collapsed, has rendered the structure uninhabitable and under the
emergency provisions, the Board may invoke to grant this particular variance for the
repair of the system. This is the property in question on the corner of Madaket Road and
Cambridge Street. As such, it is a long - standing, small Nantucket piece of property
typical of many of the lots out in Madaket. The repair proposed will relocate the leach
facility, which is now currently located about 60 feet from the well, it will relocate the
leach facility certainly outside the 100 foot parameters mandated by the state. It will not
force it beyond the 15 foot mandated parameters because of the constraints of the
property. Once again, we have maximum feasible compliance. I am asking the Board's
indulgence and grant this tonight so we can get this repaired. It is a nasty situation. We
will repair it with a system designed to specifically and more appropriately handle the
waste from this structure.
Chairman Soverino: Your recommendation?
HO Ray: Would be to grant this variance on an emergency basis.
So moved.
Motion made and seconded.
Any questions or comments?
Mr. Kinsella: The address of the property?
HO Ray: The address of the property is 252 Madaket Road.
(Speaker not identified): This is still not in compliance?
HO Ray: It is in compliance with Title V. It is not in compliance with the distance
separation associated with Madaket in that it can't make the 150 -foot but it can certainly
make the 100 feet.
(Speaker not identified): So it's a variance request?
HO Ray: Variance request from the Madaket regulations.
E
Mr. Murphy: If we are going to have the Madaket Regulations, we should stick with
them ... that would be my vote.
Mr. Watts: Mr. Chairman, if this is an emergency situation and we have a serious
problem with this system regardless of Madaket or Tuckernuck, the thing has to be taken
care of It can't continue. You can't tell the people now that it's failed they can't live
there.
HO Ray: If the variance didn't go through, it would be an uninhabitable structure because
they wouldn't be able to put a septic system in there.
Mr. Murphy: Under the Madaket regulations, they could put a tight tank or other system.
HO Ray: That is certainly true, but that request would have to go to the state for approval.
Mr. Jeff Blackwell: I would like to clarify a point. The Madaket Regulations were
adopted in 1972 in an effort to respond to the booming growth in Madaket in Tristam's
Landing area and a 150 -foot well protection radius was adopted. In 1990 after a study by
the land council provided a more comprehensive approach to well or public water supply
protection. The drawing that Richard showed you shows the well protection zone. If we
take this grandfathered lot, draw a well protection zone around its well, based on the
study, the new location of the leaching field, even with the reduction from the 150 foot
separation, will comply with the 1990 regulations. So the 1990 regulations are more
science -based than the 1972 Madaket Regulations.
Mr. Murphy: I am sure it is going to pass but I don't feel like there's enough
information. It seems to me that we grant a variance in Madaket whenever anyone asks
for one, and that's a problem. I appreciate your comments.
Ito]
Chairman Soverino: A motion that's been made and seconded to approve. If there is no
further discussion all those in favor say aye.
(Aye.)
Opposed?
Mr. Murphy: I will abstain.
Chairman Soverino: Let the record reflect Mr. Murphy abstains.
Richard, Do you have some updates for us this evening?
HO Ray: Yes, I want to talk about some of our summer issues — bugs, ticks ... it is the tick
season. I would like to address the public... the next three months will be filled with tick
checks, tick cards and advice handed out by the Health Department. As such, we want to
remind everybody wherever they go if they venture off the beaten path in the scrub brush,
tuck your pants into your socks, wear long sleeve shirts, please utilize a form of pesticide
like DEET, some form of spray on treatment for kids and for adults. When you get home
check yourself over for ticks. Please spend a great deal of time with your cats and dogs,
they are not immune to picking up ticks and you can pick them up in your own home
from them. So, the tick season is upon us, please take care of yourselves, Lime Disease is
certainly an issue, Babesiosis, Ehrlichiosis, are also some problematic diseases of a
Nantucket summer. On another note, West Nile Virus is a mosquito borne disease which
has been diagnosed with some of the birds we have sent off for the past two years in a
row. We have had crows sent to the state diagnosed with West Nile Virus. As such, we
anticipate the same results this summer. Now, I will tell you that human beings cannot
pick up West Nile Virus from crows. You can't pick it up from picking up a crow. You
can however, pick it up from the mosquito carrying it that has bitten a crow. With regard
11
to birds, if you find a large bird dead in your yard or somewhere you are traveling, and by
large I mean a crow or blue jay and nothing smaller than that, we would like you to call
the Nantucket Health Department. If nothing else, we want the location of that bird so we
can report that to the state. The first few birds called into our office, we will go and pick
up and send to the state for diagnostic work until we have our positive finding, which will
probably occur in August, the last week of July, the first week of August. As such, a first
diagnosis will put us on the map with other communities and counties in Massachusetts.
Following that first diagnosis, we will no longer be testing birds. We don't want birds
that simply look like a road kill — they need to be a fresh bird. The eyes need to be intact,
it shouldn't be an emaciated, skeletal remains. It needs to be a relatively healthy bird,
other than the fact that it is quite dead. We want to know, and we will come and pick it
up. Small birds can't and won't be tested because we don't find a great deal of West Nile
Virus in these birds. Obviously the contributing factor here in both humans and birds are
the mosquitoes. Mosquitoes are an annual problem on Nantucket. We have to deal with
them every year, particularly at this time right through the summer. There are things that
the average citizen can do to curtail the life cycle of the mosquito. You need to spend
time being cognizant of what's on your property. Tomorrow morning go and walk around
your property, particularly after a rain, and dump out any and all containers you have
sitting on your property with water in them. That goes for birdbaths, empty cans, potting
material (and place holes in the bottom of all your pots), and swimming pools need some
care. Be cognizant of landscaping practices on your property that leave you with
puddles. A puddle left for more than five days is a breeding ground for mosquitoes. This
is something we want to minimize on all properties on Nantucket. Mosquitoes will be an
12
issue, and we would simply like to assure you that we will do all that we can as a Health
Department to try to help you eradicate the mosquitoes on your property. We will come
out if you live near a large body of water that can't be drained and try to do a briquette
application to the pond. Please call the Health Department with all concerns or questions.
Thank you.
Chairman Soverino: Thank you, Richard. All good information, thank you. Last item,
concerns from the Board? None noted. Motion made and seconded to adjourn.
Meeting adjourned at approximately 8:00 p.m.
13