[Adopted 11-18-2008]
Orleans, like most of the towns on Cape Cod, has experienced
rapid population growth and development since the early 1960's. Local
responses have included adoption of 1 acre zoning in 1973. Also the
Board of Health adopted Subsurface Sewage Disposal Regulations to
supplement and augment the provisions of Title 5 of the State Environmental
Code. However, many under-sized lots remain 'buildable', and numerous
pre-Title 5 subsurface wastewater disposal systems continue to operate.
The Federal Clean Waters Act (1977) requires the Massachusetts
Department of Environmental Protection (DEP) to limit the discharge
of pollutants entering water resources. Excess nitrogen has been identified
as the major contributing factor in the declining health of the marine
water environment. Excess phosphorus, and to some degree excess nitrogen,
are the major contributing factors in the declining health of the
freshwater environments. Ninety-nine percent of sewage disposal systems
in town do little to remove nitrogen or phosphorus. A few systems
are in place that partially remove nitrogen for the property they
serve. In Orleans, this translates to an immediate concern over the
level of nitrogen entering local groundwater and its subsequent effect
on marine estuaries. Phosphorus has similar effects on freshwater
resources.
In 2000, Orleans and other Southeastern Massachusetts communities
joined the Department of Environmental Protection's Massachusetts
Estuaries Project (DEP-MEP). The result of many years of water quality
testing and five years of scientific analysis was the publication
of a technical report by the DEP. This technical report lead to the
establishment of Total Maximum Daily Limit (TMDL) standards of nitrogen
for each estuary studied.
Local health officials now realize that on-site septic systems
(both Title 5-compliant and not), soil conditions and hydrology allow
rapid migration of groundwater to surface water bodies (ponds and
estuaries). Sewage disposal systems in Orleans, while adequately protecting
public health, do not remove any meaningful amounts of nitrogen or
phosphorus and their discharge migrates rapidly into the groundwater.
Locally controllable sources of nitrogen are primarily from septic
system effluent and to a lesser extent from lawn fertilizer.
The Town of Orleans is in the process of developing a Comprehensive
Wastewater Management Plan (CWMP). When adopted, the Plan will guide
the phased construction of facilities to control nitrogen and phosphorus
loading. This costly undertaking will likely take more than a decade
to begin operating at an effective level, and longer to be fully functioning.
The documented scientific need and the regulatory mandate to
address the issue of excess nitrogen released into local estuaries
and the extraordinary lead-time required to fundamentally alter the
way wastewater is managed are well known. The Orleans Board of Health
adopts these regulations to minimize, to the extent possible, the
increase of excess nitrogen and phosphorus in the local environment.
Currently nitrogen and phosphorous in groundwater is steadily
increasing. The town must regulate the increase in nutrients entering
the groundwater from septic systems that might affect ponds and estuaries.
To minimize this increase in nutrients, the town must address the
generation of wastewater on a parcel-specific basis by relating development
potential to parcel size.
For purposes of this regulation, the following definitions shall
apply:
A structure, regardless of form of tenure, containing three
(3) or more dwelling units, or a mixed-use structure containing three
(3) or more dwelling units having a majority of floor area devoted
to non-residential use.
The capacity of a 1978 Code system reflected by the sewage
flow as shown on the Disposal Works Construction Permit Application
or as shown on the Certificate of Compliance, whichever is less for
that system and not the calculated capacity based on 1978 Code loading
rates which may account for over design or safety factors. For a system
designed in accordance with 310 CMR 15.000, the approved calculated
capacity is based on the loading rates found at 310 CMR 15.242.
Any portion of a dwelling which meets the Minimum Standards
of Fitness for Human Habitation (Chapter II of the State Sanitary
Code), and is designed to furnish the minimum isolation necessary
for use as a sleeping area, and includes, but is not limited to, bedroom,
den, study, sewing room, sleeping loft or enclosed porch, but does
not include kitchen, bathroom, dining room, halls, living room, sun
porch (as defined in these regulations) or unfinished basement.
The quantity of sanitary sewage, expressed in gallons per
day (gpd), for which a system must be designed in accordance with
310 CMR 15.203.
The division of a parcel of land or the modification of lot
lines to create a new lot, including preliminary and definitive subdivisions,
Approval Not Required (ANR) plans, Open Space Residential Developments
(OSRD), and other legal means, and shall include re-subdivisions.
The modification of existing lot lines, not resulting in the creation
of additional buildable lots, shall not be a division of land.
One (1) or more rooms intended as a single housekeeping unit
for the use of one (1) or more individuals living together, and having
cooking, sanitary and sleeping facilities. A "dwelling unit" does
not include garages, sheds or an accessory or additional structure,
whether attached or unattached.
A septic system that is designed to increase removal of nitrogen
from effluent as compared to that removed by a standard Title 5 septic
system.
Any real property (including any abutting real property)
and any buildings thereon, which is served, is proposed to be served,
or could in the future be served, by a system or systems, where:
An area or parcel of land in undivided ownership with definite
boundaries, used or available for use as the site of one (1) or more
buildings.
Condominiums, apartments, apartments incidental to commercial
space, boardinghouses and congregate, cluster or attached housing
where the individual units are either owned or rented.
The construction of a new building for which an occupancy
permit is required or an increase in the actual or design flow to
any existing structure through addition, renovation or modification
or a change in use. New construction shall not include replacement
or repair of an existing building totally or partially destroyed or
demolished if there is no increase in flow.
All nitrogenous compounds.
Does not meet the requirements of Title 5 or the Orleans
Board of Health Regulations.
Those portions of the mainland of Orleans where groundwater,
the aquifer, and adjacent estuarine environments can be significantly
altered by addition of nitrogen or phosphorus; or those areas identified
and required by Department of Environmental Protection-TMDL's to have
nitrogen input mitigated.
A system or series of systems for the treatment and disposal
of sanitary sewage below the ground as defined by 310 CMR 15.000 of
the State Environmental Code, Title 5.
All phosphoric compounds.
A room designed to have a minimum of 40% glazed area (window
area) of the total combined exterior wall and ceiling area of the
room. In calculating the total glazed area only the translucent or
transparent window area should be considered (rough opening or unit
dimension shall not be considered).
For the purposes of this regulation a watershed is defined
as the area of land under which the groundwater collects and flows
towards or into a specific pond and/or estuary.
Except as explicitly set forth in § 185-107B, the provisions of the Orleans Nutrient Management Regulations shall apply to all facilities (properties) regardless of date of permit approval, construction or approved capacity of any septic system in the Town of Orleans.
A.
Applications for New Construction, renovations, additions or change
of use of a facility that increases the design flow to the septic
system.
(1)
Disposal Works Construction Permit Application
(a)
Complete Applications for Disposal Works Construction Permits
filed prior to July 1, 2009 shall be reviewed, and if approved, such
system shall be constructed and a Certificate of Compliance shall
be issued within three years of the date the application was approved.
(b)
Upon receipt of a written request detailing the facts that prevented the filing of an application for a Disposal Works Construction Permit prior to July 1, 2009, the Board of Health or its agent may grant an applicant a six month extension to the required submittal date as defined in Subsection A(1)(a). Only one extension may be granted per parcel.
B.
Building Permit Applications filed after the effective date of this
regulation shall be reviewed as follows:
(1)
If a there is an Active Disposal Works Construction Permit on
file with the Health Department prior to the effective date of these
regulations showing an Approved Capacity adequate for a specific project
the Board of Health will sign off on a building permit application
for that project if the applicant demonstrates that the sewage disposal
system will be constructed and connected to the foundation wall and
a Certificate of Compliance can be issued prior to the expiration
of the Disposal Works Construction Permit.
(2)
If there is a complete Application for Disposal Works Construction
Permit filed with the Health Department prior to the effective date
of these regulations showing an Approved Capacity adequate for a specific
project the Board of Health will sign off on a building permit application
for that project if the applicant demonstrates that the sewage disposal
system will be constructed and connected to the foundation wall and
a Certificate of Compliance can be issued prior to the expiration
of the Disposal Works Construction Permit.
(3)
If there is an existing septic system with an Approved Capacity
as shown on the Disposal Works Construction Permit or as shown on
the Certificate of Compliance on file with the Health Department,
which Approved Capacity is sufficient for the proposed project, the
Board of Health will approve the project if the building permit application
for the project is filed prior to July 1, 2012.
(4)
Any application for a building permit filed after July 1, 2012,
regardless of the Approved Capacity of the septic system will be subject
to the full provisions of these regulations.
A.
The following projects shall be subject to the provisions of this
regulation:
(1)
New commercial development with a Title 5 sewage flow under
10,000 gallons per day.
(2)
Existing commercial development with a total Title 5 sewage
flow of under 10,000 gallons per day where an addition or a change
in use is proposed that will increase the sewage flow over the existing
flow but still be less than 10,000 gallons per day.
(3)
Division of Land creating more buildable lots, regardless of
existing dwelling units.
(4)
Construction of multi-family housing.
(5)
Construction of single family dwellings.
(6)
Alterations, additions or changes in use to existing dwellings
that would increase the calculated sewage design flow.
(7)
The division of land involving existing dwelling units.
B.
The following are exempt from the provisions of this regulation:
(1)
Facilities with a design flow of 10,000 gallons per day or greater
which fall under the jurisdiction of the Massachusetts DEP Groundwater
Discharge Permit Program.
(2)
Properties located within the Village Center District as defined
by The Orleans Zoning Map.
(3)
Properties located within the General Business District as defined
by The Orleans Zoning Map with the exception of apartment developments
having three or more dwelling units.
(4)
Properties located in the Industrial District as defined by
The Orleans Zoning Map.
A.
No Disposal System Construction Permit shall be issued by the Board of Health or its Agent for any of the projects described in § 185-107A above unless the proposed system is designed to receive or shall receive four hundred forty (440) gallons per day or less per forty thousand square feet (40,000) of lot area or ratio thereof.
B.
This regulation shall not prohibit the construction of a two (2)
bedroom house on any lot providing that said lot is not in an area
subject to Nitrogen Loading Limitations or a Nitrogen Sensitive Area,
as defined in Title 5 or in District II of the Orleans Ground Water
Protection District and all other Local and State requirements are
met.
C.
No facility described in § 185-107A shall be expanded or have a change of use that increases the design flow until a Disposal System Construction Permit has first been obtained, unless the Board of Health, or its Agent, determines that the existing sewage disposal system is adequate (per Title 5 and the Orleans Board of Health Subsurface Sewage Disposal Regulations), including documentation that the facility's design flow is less than or equal to 440 gallons per 40,000 square feet of lot area or the ratio thereof.
D.
The owner of any lot reduced in area by the laying out, and acceptance
of, a road or roads as a public way or ways, or for any other municipal
purposes serving the common good, shall be allowed to use the area
taken in determining compliance with this regulation. This shall apply
only to the owner of record at the time of the lot's reduction in
area.
E.
The division of land involving existing dwelling units shall not
render the existing dwelling unit as noncompliant with these regulations.
A.
Variances from this regulation may be granted by the Board of Health
only as follows:
(1)
Variance Requests not Demonstrating a Hardship:
(b)
If applying for a variance under Subsection A(1)(a) an applicant shall supply a nitrogen loading report, accepted by the Board of Health, prepared by a Professional Engineer or Registered Sanitarian demonstrating that the proposed septic system will offer the same level of protection to the ground or surface water resource as would be provided by the strict application of this regulation.
(2)
Standard of Review for all other variances:
(a)
If the applicant demonstrates to the satisfaction of the Board
of Health, that a literal enforcement of this regulation would involve
substantial hardship, financial or otherwise, to petitioner(s), i.e.
it would deprive the landowner of reasonable use of the lot in question;
and
(b)
If the applicant demonstrates to the Board of Health that the
discharge of effluent from the proposed septic system will offer the
same level of protection to the ground or surface water resource as
would be provided by the strict application of this regulation.
B.
Every request for a variance shall be made in writing and shall state
the specific variance sought and the reasons therefore. No variance
shall be heard except after the applicant has notified all abutters
by certified mail at his own expense at least ten (10) days before
the Board of Health meeting at which the variance request will be
on the agenda. The notification shall state the specific variance
sought and the reasons therefor.
C.
If applying for a variance under Subsection A(2) above, the petitioner shall at a minimum submit:
(1)
Written documentation as to why the enforcement of this regulation
would cause hardship.
(2)
A nitrogen loading report, accepted by the Board of Health,
prepared by a Professional Engineer or Registered Sanitarian demonstrating
that the proposed septic system will offer the same level of protection
to the ground or surface water resource as would be provided by the
strict application of this regulation.
(3)
A plan prepared by a Professional Engineer or Registered Sanitarian
indicating:
(a)
The Watershed and Sub-Watershed in which the proposed septic
system is located;
(b)
Depth to ground water;
(c)
Soil conditions; topography;
(d)
All surface waters;
(e)
All wetlands located within two hundred feet (200') of the proposed
system;
(f)
Any other information deemed pertinent by the Board of Health.
D.
The Board of Health will consider, but not be limited to, the following
factors when reviewing a variance application:
E.
Any variance granted by the Board of Health shall be in writing.
Any denial of a variance shall also be in writing and shall contain
a brief statement of the reasons for the denial. While it is in effect,
a copy of each variance granted shall be made available to the public
at all reasonable hours in the office of the Health Department.
F.
Any variance or other modification authorized to be made by this
regulation may be subject to such qualifications, revocations, suspensions,
or expiration as the Board of Health expresses in its grant. A variance
or other modification authorized to be made by this regulation may
otherwise be revoked, modified, or suspended, in whole or in part,
only after the holder thereof has been notified in writing and has
been given the opportunity to be heard, in conformity with the requirements
for an order and hearing as contained in 310 CMR 11.07 and 11.08 of
the State Environmental Code, Title 5.
G.
Any variance or modification authorized by this regulation shall
be subject to a covenant from the owner which shall be recorded in
the Registry of Deeds or Registry District of the Land Court, as appropriate,
stating that:
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"At such time as the Town of Orleans through its Board of Health
and/or Board of Water Commissioners, or the equivalent of those Boards,
directs the connection of the land herein described to a municipal
sewer, the construction of enhanced wastewater treatment system, connection
to a shared septic system, or any other wastewater management option
for the removal of nitrogen (or phosphorus), [owner], for myself and
my successors and assigns, covenant and agree to comply with such
direction. The Board of Health and/or the Board of Water Commissioners,
or the equivalent of those Boards, shall determine the schedule for
compliance."
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The Orleans Board of Health, its designated agents, enforcement
officers and anyone with police powers, may enforce this regulation.
A.
The Board of Health and its designated agents may issue orders requiring
the owner or operator of a facility to comply with the provisions
of this regulation or to take any other action necessary to protect
public health, safety, welfare, or the environment.
B.
Orders may be served on any person responsible for a violation of
this regulation in accordance with the following procedure:
(1)
Personally, by any person authorized to serve civil process,
or
(2)
By any person authorized to serve civil process by leaving a
copy of the order at his/her last and usual place of abode, or
(3)
By sending the owner a copy of the order by registered or certified
mail, return receipt requested, if he is within the Commonwealth,
or
(4)
If his last and usual place of abode is unknown or outside the
Commonwealth, by posting a copy of the order in a conspicuous place
on or about the premises and by advertising it for at least three
out of five consecutive days in one or more newspapers of general
circulation within the municipality wherein the building or premises
affected is situated.
A.
Unless otherwise specified in this regulation, any person aggrieved
by the determination of the Health Department or other personnel of
the Board of Health, may request a hearing before the Board of Health
by filing a written petition to the Board of Health.
B.
Upon receipt of such petition, the Board of Health shall set a time
and place for such hearing and shall inform the petitioner thereof
in writing. The hearing shall be commenced no later than 30 days after
the day on which the order was served. The Board of Health, upon application
of the petitioner, may postpone the date of hearing for a reasonable
time beyond such 30-day period if, in the judgment of the Board of
Health, the petitioner has submitted a good and sufficient reason
for such postponement.
C.
At the hearing the petitioner shall be given the opportunity to be
heard, to present witnesses or documentary evidence, and show why
the decision of the Health Department or other agents of the Board
of Health should be modified or withdrawn. Failure to hold a hearing
within the time period specified shall not affect the validity of
any order.
Any person aggrieved by the final decision of the Board of Health
with respect to any order issued under the provisions of this regulation
may seek relief therefrom in any court of competent jurisdiction,
as provided by the laws of this Commonwealth.
A.
Violation of this regulation will be subject to the provisions of Massachusetts General Laws, Chapter 40, Section 21D, regarding non-criminal dispositions as adopted by the Town of Orleans.
B.
Any person who knowingly violates any provision of this regulation
may be subject to a One Hundred Dollar ($100) fine for each offense.
Each day of noncompliance constitutes a separate offense.
A.
Whenever possible, these regulations shall be deemed to be supplementary
to (not contradictory with) state and federal statutes and regulations.
B.
In the event any of these regulations shall be held invalid, any
such regulation or regulations shall be deemed to be severed from
the others and struck from these rules, but the remaining regulations
shall continue in full force.
