Legal Glitch Dogs Change To Nitrogen Loading Regulation

CHATHAM – A controversial amendment to the board of health’s nitrogen loading regulations may not be legal due to a problem with the public hearing legal notice.

The amendment, which prohibits homes on undersized lots from having an additional bedroom, is under review by the health board following recent criticism by members of the select board. The regulations allow homes on conforming lots to have an extra bedroom with the addition of nitrogen-removal septic systems.

Health board members agreed last week to discuss altering the regulation to make it more flexible. A public hearing would have to be held on any further changes to the nitrogen loading regulations.

A new hearing will have to be held in any case, since the previous hearing, held in July, fell three days short of notification requirement.

A public hearing for new or amended health board regulations requires publication of a notice for two successive weeks, and the first publication cannot be less than 14 days prior to the hearing. The first publication of the hearing notice for the nitrogen loading regulation amendment was July 6, and the hearing was held July 17, three days short of the 14-day requirement.

The issue was brought up by Select Board member Michael Schell at a recent joint meeting of the select board and health board. The health board sought an opinion from Town Counsel Patrick Costello, who said that although he did not think that the regulation would be struck down if challenged, the board should hold another hearing just to be safe.

Health board regulations are generally granted deference by state courts as long as they are valid and reasonable, Costello wrote in a Nov. 20 email to Health Agent Judith Giorgio. The three-day delay in the hearing notice is not likely to result in the amendment being invalidated or deemed unenforceable should it be challenged, he wrote.

“While there is also judicial precedent supporting the position that procedural requirements must be rigidly followed with respect to public hearing notices, I do not believe that this particular deviation from the statutorily prescribed notice requirement for this rule-making hearing has been unduly prejudicial or materially detrimental to the public interest, such that a court would invalidate the amendments,” Costello wrote.

To avoid the possibility of a legal challenge and to avoid any uncertainty, he recommended that the board hold another public hearing with proper notice.

The board denied one variance for an extra bedroom under the revised language.

Under the board’s nitrogen loading regulations, homes on lots that conform to the 10,000-square-foot per bedroom standard can have an extra bedroom if they upgrade to nitrogen-reducing innovative/alternative (I/A) septic systems. The additional language was added to clarify that homes on smaller lots, such as a two-bedroom house on a lot with less than 20,000 square feet, did not qualify for the extra bedroom, even with an I/A system, because they did not meet the 10,000-square-foot-per-bedroom standard.

Select board members and others suggested the measure was discriminatory and did not make sense, since by adding an I/A system, the level of nitrogen in wastewater for three bedrooms would be less than for two bedrooms with a standard Title 5 septic system.

Health board members were concerned that granting variances for extra bedrooms on small lots would result in an increase in short-term rentals.

It may be possible to alter the language to give the board flexibility in granting variances for extra bedrooms on undersized lots in “exceptional circumstances,” health board member Richard Edwards said.

“Right now it doesn’t say that we can do that,” he said during the board’s Nov. 20 meeting. “The board, I think, should be allowed some leeway in making these decisions.”

One option may be to require a deed restriction prohibiting a property from being used as a short-term rental. Giorgio said she would explore the legality of such a measure with Costello.

The board will schedule discussion of the issue at its Dec. 4 and 18 meetings, and then schedule a public hearing, likely sometime in January.

“Our regulations stand until we change it, unless it’s challenged and goes through the court, and that will take time,” said Giorgio.