HomeMy WebLinkAbout2015-2-19 Minutes for February 19,2015,adopted Apr. 16
Ti BOARD OF HEALTH
,, ' y 5 Town of Nantucket
'; 2 Fairgrounds Road
.\ P ��_= Nantucket, Massachusetts 02554
www.nantucket-ma.gov
Commissioners: Malcolm MacNab, MD, PHD; (chair),James Cooper (Vice chair); Helene Weld, RN;
Stephen Visco; Rick Atherton
Staff: Richard Ray, Artell Crowley
— MINUTES —
Thursday, February 19, 2015
4 Fairgrounds Road, Community Room–4:00 pm
Called to order at 4:00 p.m.
Staff in attendance: Richard Ray, Health Director;Artell Crowley, Deputy Director Health;Terry Norton,
Town Minutes Taker
Attending Members: Malcolm MacNab,MD, PHD;James Cooper; Helene Weld, RN; Stephen Visco; Rick
Atherton, Board of Selectmen
Absent Members: None
Agenda adopted by unanimous consent
I. PUBLIC COMMENTS –ANY MEMBER OF THE PUBLIC MAY ADDRESS COMMISSIONERS AT THIS TIME
1. None
II. APPROVAL OF MINUTES
1. January 29, 2015:Approved by unanimous consent
III. ADMINISTRATIVE CONSENT ORDER (ACO) APPLICATION
35 South Cambridge Street.
Sitting MacNab, Cooper,Weld,Visco,Atherton
Recused None
Documentation Supporting documents and plans, staff recommendations.
Discussion Ray–This ACO is for$55,000 to be split 5 ways and to be paid over 20 years. The system has a
technical failure. Once it is determined what form of wastewater removal will be used in Madaket,
this money will be returned to them so that they can do what is necessary. Water flow here is
toward Hither Creek.
Cooper–Asked if the system is stable.
Ray–It is working appropriately;it's just too close to the groundwater.
MacNab–Asked when a decision whether or not to sewer Madaket would be made.
Atherton–Next town meeting, 2016, hopefully. If there is a technical failure, the nitrogen flows
more quickly into the groundwater.
Cooper–Asked if they have to put in an AI system should sewer not happen.
Ray–Yes,Alternative Design would be required; and there are systems to handle larger bedroom
capacities. There is no land in Madaket large enough to sustain a package treatment plant;
however, there are other options available should sewer not go to Madaket. Until the Town makes
a decision,we are in a holding pattern; this board will have to act once that decision is made.
Looking at Madaket, 98%is small lots;if sewer is not opted, every lot will have to go to
Alternative Technology.
Action Motion to Approve the ACO. (made by: Visco) (seconded by: Cooper)
Vote Carried unanimously
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Minutes for February 19,2015,adopted Apr. 16
IV. UPDATE
1. Opiate Abuse Symposium
Sitting MacNab, Cooper,Weld,Visco,Atherton
Recused None
Discussion Weld—Two meetings have been held; Cheryl Bartlett agreed to be part of it and it is scheduled
for the 2nd Saturday in May. Several other professionals have expressed interest. It will be specific
to this Island. Dr. Tim Lepore and Chief William Pittman will speak; there is a possibility for a 3rd
speaker.
2. Local Regulation—Prohibition of Tobacco Use on Public Beaches
Sitting MacNab, Cooper,Weld,Visco,Atherton
Recused None
Documentation Supporting documents and plans, staff recommendations.
Discussion Ray—Administration has a concern to further define the enforcement portion and sot this has
gone to Town Counsel. The hearing is scheduled for March.
V. DISCUSSION ABOUT SEATING LIMIT AT MILLIE'S RESTAURANT
Mandating a 124 seating limit
Sitting MacNab, Cooper,Weld,Visco,Atherton
Recused None
Documentation Supporting documents and plans, staff recommendations.
Discussion Ray—He has been asked by his supervisor to ask the board to initiate a discussion only and to
take no vote at this time. The Planning Board stipulated that only 124 active seating at any time
regardless the number of chairs and chairs; the problem is it is difficult for the management to
keep food service at that 124 limit. When you subtract the approved gallonage associated for the
dormitory and the retail store,it only leaves the restaurant with the appropriate gallonage for 124
seats. Title 5 specifies seats as chairs. He recommends limiting Millie's Restaurant to 124 chairs on
the premises at any one time; they can be located inside or outside.
MacNab—Thought that was what this board had decided.
Ray—This came up from a redesign on the interior; they have taken out the finger bars and high-
top tables. Reiterated his recommendation.
Cooper—If they gave up the retail space and dormitory; asked how many more seats would that
allow the restaurant.
Crowley—Doing that would add 15 seats.
Ray—We need to keep them within the allowed value of the septic.
Atherton—In regards to the liquor license, the Board of Selectmen (BOS) approved a modification
of the premises that involves seats;what they looked at had exactly 124 seats. There is a
confirmation for the restriction to 124 seats to include the layout for the new bar on the first floor.
Rick Beaudette,Vaughan, Dale, Hunter and Beaudette, P.C., for Millie's —They did submit a plan
to the BOS showing 124 seats; however, the Planning Board allows Millie's to have 124 seats in use
at any given time. What he thinks the BOH decided in October was to make an interpretation that
if the inspector sees a high-top table, he sees 3 seats.
MacNab—We voted and approved 124 seats. The spirit of the regulation is 124 patrons
consuming liquor or food at any one time; he believes that is what was agreed upon.
Ray—The concern was with the outdoor seating plus 124 seats inside the premises if the outside
seating wasn't being used;last summer, his inspectors found on numerous occasions all 124 inside
seats as well as the additional outside seats being occupied. He feels the only way to control that is
by mandate under Title 5 to limit the seats to 124; they can be inside or outside but never exceed
more than 124 seats as stipulated by the size of the septic system. Any additional flow is detrimental
to Hither Creek but the present system is allowed by right. The septic can appropriately handle 124
seats, the dormitory and the retail store.
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Minutes for February 19,2015,adopted Apr. 16
Beaudette—They would object to that because they feel the Planning Board has made a
reasonable interpretation of Tide 5. Explained that if they have only 124 seats and not all 55 seats
are occupied outside, they can't meet their capacity. He thinks a good compromise is to allow them
20 or 30 more seats so that if they are missing the 20 or 30 outside, they can accommodate all 124.
Cooper—Asked what they do if they exceed capacity and the septic is backing up.
Beaudette—They pump the system. Stated he doesn't think that happened.
Cooper—Last summer people saw the grease trap backing up over the ground. It all comes down
to how many gallons that septic will allow and that is 124 seats.
Beaudette—They don't really want more than 124 people at one time.
MacNab— 124 seats was agreed upon;it is 124 seats and he doesn't know why this is still being
discussed.
Atherton—The liquor license shows where all the seats are and that is 124 seats.
Beaudette—The liquor board can't tell them where they put the dining tables. They can dictate
where the bar goes or where the liquor is stored.
MacNab—Everyone has agreed upon 124 seats. This is an enforcement issue.
Ray—He has been requested to send this discussion and pertinent facts to Town Counsel for
clarification.
MacNab—The Planning Board,Tide 5, and Liquor License all say 124 seats. Mr. Ray's issue is
what happens when he fords that the 124-seat limit has been exceeded. Mr. Atherton suggested
having the owners sign a form certifying that the restaurant is adhering to 124 seats.
Beaudette—What he thinks Mr. Ray is saying is that they can't have one chair more than 124 and
that is where his client has an issue. Last year they did a count every half-hour and there were times
when they were over; they were over 39 times out of 639 counts. When they are over 124, they
need to fix that. When they were over,within a half hour they were back down.
Crowley—They have demonstrated that they can't adhere to this current seating plan; on four
occasions they were grossly over and gallons and water usage was off the graph. Our seating count
and theirs were not even close.
Ray—Today he is looking for permission to carry the maximum total of 124 seats allowed on the
property to Town Counsel. He has been directed to run this by Town Counsel.
Cooper—If every board and regulation limits the to 124 seats, then it has to be 124 seats.
MacNab—Maybe what we need to do is follow through with the suggestion that every week the
restaurant submit a statement that they have not exceed the 124 seats.
Cooper—Asked why they would need extra seating.
Beaudette—If you have a 4-top table with two people and the limit is 124 seats, the restaurant just
lost 2 seats and they are down to 122. They want to be able to bring in two chairs. Contends that
moving chairs between tables is impractical because that is not what happens in restaurants, also
the vacant portion of a picnic table can't be moved.
Atherton—Those two chairs can be moved from one table to another and there are still 124 seats.
He bets that half the time, all seats are full. There is a discrepancy between the inspection count and
the restaurant count.
Ray—We talk about seats when what we should look at is how those seats contribute to the
nutrient loading of Hither Creek. Once you go to 126 or 127, that is more nutrient loading flowing
into the harbor. His concern is the environmental impact of that number of people in that
restaurant on that waterway.
Atherton—Suggested fixing the extra number of seats allowable so that they can't exceed 124 plus
X.
Crowley—He would like to see something resolved so that there aren't any enforcement actions in
July.
MacNab—He is not opposed to restricting them to only 124 physical seats.
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Minutes for February 19,2015,adopted Apr. 16
Discussion about what Town Counsel will look at and who has the final authority to limit the
seating.
Beaudette—The Planning Board decision allows for 124 people to be seated at any given time.
Stated that he believes the BOH decided to follow the Planning Board decision.
Cooper—No the BOH did not decide that. What happens if this is sent to Town Counsel and
town Counsel changes the number of seating; does that change the BOS and Planning Board
decisions?
MacNab—Suggested Mr. Beaudette to consider the BOH concerns for the environment and
making sure the business functions in an environmentally safe way and come back with another
idea. The health officers concerns is finding a way to ensure enforcement. If they find another
violation, they will come down hard. This needs to be resolved forever. The gallons are fixed.
VI. VARIANCE REQUESTS
Three properties in Fisher's Landing: 14 Creek Lane/7 West Way/29 Ridge Lane
Sitting MacNab, Cooper,Weld,Visco,Atherton
Recused None
Documentation Supporting documents and plans, staff recommendations.
Discussion MacNab—This was left open to allow the parties to come back with another proposal.
Paul Santos, Nantucket Surveyors—Introduced Paul Jensen and John Brescher, Glidden &
Glidden for the applicants. Reviewed the variance request and the subdivision. The subdivision has
123 acres of open space.There were no restrictions on development of lots prior to the adoption
of local regulations. In the aggregate, the cluster subdivision meets the 1 bedroom per 10,000
square feet (SF). Under State Title 5 and take away Regulation 54, there is no bedroom limitation
on these lots. There is plenty of available land for the bedrooms they seek.
Atherton—Mr. Santos said it is not in a nitrogen embayment area under state regulations.
Ray—It is within a nitrogen sensitive embayment under local regulations; there is no state nitrogen
sensitive embayment.
Santos —Looking at the aggregate acreage, there is room for the bedrooms. This board was
concerned about others coming back asking for bedroom increases. Explained how that can be
prevented by limiting the nitrogen credit land to 126 acres which would limit it to 29 available
bedrooms.
Atherton—It sounds like everyone would come to an agreement that there are only 29 available
bedrooms and Mr. Santos is asking to make those available to the 5 vacant lots. The present
residents of Fisher's Landing have to be notified.
Cooper—That leaves 13 bedrooms to go to the last two lots.
Santos —Looking at developing an aggregate plan that is fair to the property owners.
Ray—The dark green lots in the upper left are not part of the aggregate today so what happens if
someone comes in and wants to use that as their aggregate;they can use it. Reviewed an option that
allows them to build out their properties without taking away any lots.
Santos —Speaking to the groundwater flow direction;ground water flow from the lots is southeast
and south and the credit land is in the direction of the groundwater flow.
Ray—His concern is simply that the flow is in that direction toward the north head of Long Pond
and in the direction of the ditch going to Hither Creek. However whatever water hits the aggregate
land will flow toward the harbor.
Atherton—The harbor is reasonably flush but the ditch is not. The flow goes toward Long Pond
and the ditch; anything going that way is not helpful. He would like to know if they are willing to
install IA systems.
Santos —His two clients have no issues with putting in IA systems on their lots.
Cooper—Asked right now how many bedrooms are available using the aggregate land.
Jensen—503 bedrooms.
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Minutes for February 19,2015,adopted Apr. 16
Cooper—You want to knock that down to 29 bedrooms available and take 16 and everyone else is
out of luck. The first part of the subdivision was on wells and were limited in the number of
bedrooms they could have.
Santos —They built their lots in the manner they saw fit at the time before the regulations were
adopted.
Jensen—His clients bought one of 10,000 SF lot before regulations made the lot unbuildable. The
BOH seems concerned these three owners are going to take all the bedrooms or everyone is going
to rush in for a variance. Pointed out that any variance is manifest injustice. The BOH does have
the ability to limit this if someone comes in with a request to expand an existing structure.
Reviewed how the design of Fisher's Landing is a benefit to the harbor, pond, and creek. Pointed
out that you can't tell with surety where the water is flowing, only the general direction. For those
who purchase the vacant land, this board can't tell them they can't build a home. There is a lot of
vacant land that can't be built out.
Atherton—Reviewed the request: three structures with 6-5-5 bedrooms.
Ray—He is recommending 3-2-2 based upon alternative technology systems. The board needs to
be careful about being arbitrary;if someone comes in with a similar variance, the BOH can't decide
to deny that request. The request for 6 bedrooms he recommends Alternative Technology with 3
bedrooms, and on the two requesting 5 bedrooms, he recommends Alternative Technology with 2
bedrooms.
Cooper—Asked who would inform the other residents that no more aggregate land exists.
Ray—That is not BOH responsibility.
Atherton—Suggested drafting a letter to the homeowners assn putting them on notice detailing the
decision.
Visco—If this goes into effect, there are only 29 bedrooms left.
Cooper—Does not feel the BOH has the right to limit the number of bedrooms. He wonders if it
is arbitrary for this board to do that to satisfy 5 empty lots.
Ray—There is still the upper left vacant land to be used as aggregate.
Discussion about whether or not the BOH can limit the number of bedrooms left.
Santos —These can be looked at three separate variances; there are two criteria. Cited those criteria
and how he has demonstrated there is the space in the aggregate. This variance is being tailored to
the vacant lots only. There is no manifest injustice for the existing dwelling.
Ray—Under the mathematical model,universally used throughout the State,AI can grant 3
bedrooms to one lot and only 2 to the other two.
MacNab—Thinks Mr. Ray's option is fair.
Santos —Disagrees; there is a huge difference between 6 & 3 and 5 & 2.
Ray—Bases his decisions on environmental requirements; that is why he uses the mathematical
model. Pointed out that two of the properties are unbuildable; he got past that by going with the
AI. If sewer goes out there, they can build out all they want.
Visco—Mr. Ray's option is unjust compared to what they could have done if they built out prior to
the regulation. He thinks the Town would lose if it went to court.
Cooper—Asked if there was a way to increase the 2 bedrooms to 3.
Ray—Not using the mathematical model.
MacNab—There are three possible motions: deny, propose a variance request based upon Mr.
Ray's 3-2-2, or a motion on another number. If they are limited to 3, 14 Creek Lane doesn't need to
be discussed because no variance is required.
Action Motion to Grant a variance based upon 4-3-3 with alternate design systems. (made by:
Atherton) (seconded by: Weld)
Vote Carried 4-1
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Minutes for February 19,2015,adopted Apr. 16
VII. TIGHT TANK REQUEST
Crow's Nest Way
Sitting MacNab, Cooper,Weld,Visco,Atherton
Recused None
Documentation Supporting documents and plans, staff recommendations.
Discussion (5:33) Ray—These are all condominium dwelling units on one property with a mix of tight tanks,
existing septic systems and a two units tied into one system. These are seasonal uses, but there
might be a change. The Request is for a tight tank for a unit which is tied into a failed system with
a second unit. The owner has expressed an interest in using the property year round. The soil is
bad with high ground water; explained why a mounded system couldn't be installed. He has check
with the DEP, and they agree that because there is no alternative a tight tank for year-round use is
acceptable with the condition that they pay the sewer fee because when the tank is pumped all
effluence goes to the treatment plant.
Action Motion to Approve the installation of a tight tank for year-round use. (made by: Cooper)
(seconded by: Atherton)
Vote Carried unanimously
VIII. CONCERNS FROM THE BOARD
1. Atherton—After the discussion today, he would like the BOH to develop some changes to the regulations
related to nitrogen loading issues, specifically Nantucket Harbor. The issues they are looking for are to
inspections and technical failures and moving more assertively in meeting requirements. He would like to
suggest that we circulate a draft of the proposal through the members and that he and Mr. Visco and a staff
member create a small sub-committee to review the proposed changes. MacNab—This meeting can be
continued and reconvened when it is ready.
2. Ray—He has been contacted by the Food and Drug Administration to initiate a conference call to discuss
use of deer meat in a retail or donation situation. MacNab—Spoke to a person willing to fund the program.
IX. ADJOURNMENT
Meeting continued'l'BD
Recessed at: 5:47 p.m.
Submitted by:
Terry L. Norton
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