Hardship Case At Board Of Health Could Have Broad Implications With Sewer Expansion Looming

After months of debate, the Board of Health has decided it will not enforce regulations requiring a Polpis homeowner to connect to the town sewer system.

“This is a really tricky one,” Board of Health member Kate Garrette said. “The only thing that really seems to make sense to me is to put in stipulations…and to grant the request.”

While the decision, motivated primarily by the property owner's age and challenging financial situation, may seem to be a minor issue concerning a single homeowner, it could have broader implications as the town seeks to expand the sewer system to the Somerset area in the coming months.

“I think this is one of those rare situations where you have to take each one individually, and if we do get more of them, we’ll have to just be very scrutinous,” Board of Health member Bob DeCosta said. “I think the key for me is that we’re not eliminating the requirement, we’re just prolonging it.”

Deputy Health and Human Services director Jerico Mele suggested that, if the Board of Health plans to waive enforcement of sewer regulations in cases of severe hardship, the Board should draft a more formal definition of hardship and establish standards that can be applied equitably to future cases.

“It has implications on the Somerset sewer extension, and it also means that we’ll need to work out some more rigorous definition of hardship and have some mechanism by which we verify hardship,” Mele said.

That may be a task the Board of Health needs to pursue sooner rather than later. Town Meeting has approved a plan to bring sewer to the Somerset area, and Mele worried that the Polpis homeowner's successful effort to avoid connecting to the sewer, which spanned several years, could motivate other homeowners to follow her lead—perhaps including some with less legitimate hardships.

“It now creates an incentive structure where delaying compliance with a regulation allows you to make a case that you should not have to comply with the regulation,” Mele said. “In this instance, there’s every indication that this is a genuine hardship, but it would have been a lesser hardship had there been prompt compliance.”

It has been years since the Board of Health issued a similar ruling, but chief environmental health officer John Hedden said during Thursday’s meeting that he could recall two cases on Rugged Road in which the Board had allowed homeowners to temporarily avoid connecting to town sewer despite the regulations.

Connecting to the town sewer is a costly proposition, and homeowners sometimes balk at the price tag, frustrated that the connection is both involuntary and expensive.

“I, and all of my neighbors, we all are under these enforcements,” health inspector Heather Hudson said. “We put in a system that cost us $106,000. I work for the town; my husband is a chef. You can imagine how much money that is, and I just want to be careful when we’re thinking about regulations is that they are in place for a reason, and I have neighbors that also are in their 80s that have these letters in the Madaket area, and I just feel like if we’re going down the line where we can just say its hardship and it doesn’t count, then how many letters are going to go back for?”

The Board of Health’s decision is not a formal variance, as the regulations are worded in such a way that variances cannot be granted. Homeowners must connect to sewer lines that run by their properties, and variances are not allowed in environmentally sensitive areas.

Instead, the Board of Health is acknowledging that the Polpis property owner is out of compliance, but instructing Health Department staff not to take any enforcement actions until she sells her property or in the event of her death.

Attorney Arthur Reade, who represented the Polpis homeowner before the Board of Health, said that an officer in charge of the “family trust” that has been the woman's main source of income described her financial situation as “dire.”

“She has a mortgage on the property, which she is struggling to pay,” Reade said. “The trust officer said there is basically no way the trust could advance any more money to her.”

Reade said that the connection would cost $125,000. The property owner would be eligible for a septic loan, and also owns a separate one-bedroom apartment.

“I cannot afford in any shape or form to connect with the sewer,” the Polpis property owner wrote in a letter to the Board of Health.

As a condition of the stay on enforcement, the homeowner will have to have her septic system pumped once a year; no new construction will be allowed on the property until it is connected to the town sewer; and any change in ownership will trigger the requirement to connect.

Town staff realized the Polpis property owner was out of compliance when she applied for a food service permit, which she is no longer pursuing. The Board of Health granted her two years to connect, but she failed to do so. The town then issued an enforcement letter, which she appealed, leading to the Board of Health’s latest deliberations.

In the last few months, the woman and her relatives have occasionally engaged in emotionally charged verbal sparring with members of the Board of Health. Then, four of the Board of Health’s five members were replaced in one of the quickest and most dramatic reshuffles Nantucket’s local government has ever seen. The reconstituted Board of Health voted unanimously to grant the homeowner's request on Thursday.