Friday, May 11, 2007
BOH sees limits to town's powers to protect water, property
What can homeowners do to protect their property and water supply when it appears threatened by activities on a neighbors' land? During construction projects, the town boards enforce laws that protect neighboring homeowners from pollution or other property damage. But on April 24 the Board of Health (BOH) could find no clear jurisdiction when the homeowner at 15 Stearns Street asked the board to investigate possible contamination from run-off which had flooded the yard, as well as the end of Stearns Street near the intersection with Route 225.
After a site visit, the consulting engineer for the BOH determined that there was currently no sign of contamination in the well or septic areas. The board agreed there is a water problem. However, because there was no contamination, it was considered a safety issue instead of a health issue, and was therefore not an area where the BOH could step in. "Not only can we not intervene until there is contamination, once there is contamination we must ask the owner to address the health issue or to vacate the property," BOH member Michael Holland said.
In a telephone interview, the homeowner outlined the current situation at 15 Stearns Street. This will be Phyllis Madanian's fourth summer in her Stearns Street home. According to Madanian, her property has experienced severe surface flooding. She said about her home, "There is a sump pump in the basement. During the first year that I lived here, it would run periodically during the spring or after a heavy rain. Now it runs continuously — 24 hours a day seven days a week. I have gone through four sump pumps in three years." She believes the flooding coincided with her neighbors' relandscaping during the last couple of years. "The run-off is excessive," she says, and said that the increased water and ice on her driveway caused her to fall and injure her wrist,"In the winter I put ice melt on the driveway in the morning, and by the afternoon it has reflooded and refrozen." Madanian also cited water damage to her shed and trailer.
In order to alleviate some of the street flooding during the winter, the DPW dug a trench along the side of Stearns Street and created a path through a stonewall on the property so that the water could flow off the street.
Madanian said that she turned to the BOH after she had already tried the Conservation Commission (ConsCom), the Building Department and the Planning Board. "I thought there must be some department in town that could help. I don't know where to go from here."
According to Conservation Administrator Sylvia Willard, the flooding does not fall under the jurisdiction of the ConsCom since it is not a wetlands issue, although she notes that there is an isolated wetland on the property. Willard said the buffer area around an isolated wetland is not protected under the Massachussetts Wetland Protection Act. Wetlands may change over time, and have not been mapped recently on the property, she said.
According to Building Inspector and Zoning Enforcement Office Bob Koning, the issue does not fall under the jursidiction of the Building Inspector for two reasons. "Town zoning bylaws restrict run-off from driveways, but not from other conditions" and "the building department does not have jurisdiction, since no permits were required for additions or new construction." He added, "This is a wet property. It was built before many of our regualtions about wetlands. If this house were built today, it would be on a mound." Koning noted that many properties in Carlisle are wet. "The town has opted not to widen roads and put in storm drains. It would be incredibly expensive."
Board of Health role
In a telephone interview, Board of Health Agent Linda Fantasia discussed the role of the BOH in protecting the property and wells of individual home owners. "The homeowner has the responsibility to protect their property. The town does not have that authority and in many cases people would not want the town boards to have so much authority," noted Fantasia. When asked what a homeowner should do in the above situation, Fantasia stated, "The best course is to work with the neighbor." Echoing Holland, she stated that once a system (well or septic) had failed, the BOH would require the homeowner to repair or replace the system so that it was back in compliance with local and state regulations. "Although it seems unfair, the expense would be borne by the homeowner. Later during the permitting process for the repair or replacement, the BOH would need to determine what caused the original failure. At that point the homeowner could sue the other party to try to recoup some of the costs."
This is not the only situation in town where abutters are trying to protect their wells and property from activities occuring on neighboring land. Earlier at the same BOH meeting, the protection of the private wells of abutters to the Coventry Woods development was discussed. The Zoning Board of Appeals (ZBA) recently granted a comprehensive permit for the development, and included language in its decision designed to offer protection to abutters' wells. During the ZBA meetings, there had been questions as to which town boards had regulatory authority to protect abutter wells. The BOH subsequently received an e-mail from a Planning Board member who asked, "Does the BOH have any regulatory power to put conditions in place that would prevent a potential negative impact on abutters' wells or to force a developer to address those issues should they arise? The short answer from Michael Holland was "No. The abutter must sue."
At its last meeting, the Zoning Board of Appeals took an abutter's drainage concerns into account in its permitting process (see "Water issues resurface on ZBA agenda) However, the ZBA could apply those conditions only because a permit had been requested.
In the Stearns Street case, officials did not find that any work had been done on neighboring land that might have required a permit. Currently Madanian has hired a lawyer and a lawsuit is in process. "I don't want to be the kind of person who sues my neighbor, but I have legal, medical and property expenses."
The abutters did not wish to make any comment.
As of press time, BOH Chair Martha Bedrosian said the board will work with the ConsCom to reinvestigate the situation and follow it closely.
© 2007 The