Housing Or The Environment? Accord Reached On Ban Of Nitrogen Loading Credits

After nearly a year of debate, the Board of Health has approved a ban on so-called “nitrogen loading credits” in sensitive areas, restricting the number of bedrooms allowed in certain parts of the island. The revised rule includes a carve-out allowing variance requests for affordable, attainable, and year-round housing.

Last January, the proposed ban briefly met with sharp pushback from the Select Board, Planning Board, and Housing Department. At the time, the ban would have put a stop to all nitrogen loading credits for additional bedrooms in two areas of the island: the wellhead protection district and the Hummock Pond watershed. This worried housing advocates, who argued that those variances are an essential tool used to create lower-cost housing units.

Since then, the ban has been overshadowed by the contentious debate over the artificial turf field proposed for installation at Vito Capizzo Stadium, which the Board of Health has considered tightly restricting or blocking entirely.

But negotiations have continued behind the scenes, spearheaded by Board of Health member Kerry McKenna, and a draft presented last Thursday was approved unanimously.

Deputy Housing Director Dylan Metsch-Ampel, who was involved with the negotiations, gave his support to the amended regulation on Thursday after McKenna agreed to expand the allowed variance requests to cover attainable as well as affordable housing.

“For the Board of Health to acknowledge the importance of affordable housing on-island, it’s one of the number one issues the Select Board also has, is an important expression in terms of really working together with other parts of the town to try to make affordable housing happen in an increasingly difficult environment to make that happen,” McKenna said.

There were some concerns raised about the carve-out, but it was a far cry from January, when a flurry of letters from different town bodies led the Board of Health to put off the ban that had, to that point, faced relatively little community pushback. At one point last January, Metsch-Ampel recommended against the ban, and the town’s Communication Department, which at times speaks for both the Housing and Health Departments, then tried to partially walk back his comments. Little of that controversy was on display Thursday.

Notably, the carve-out applies to both districts. There were previously discussions about applying it only to the wellhead protection district and not the Hummock Pond watershed.

“I have, I think, a couple of concerns about it being applied broadly to nitrogen-sensitive areas like the Hummock Pond watershed,” said Willa Arsenault, the environmental program coordinator for the Nantucket Land and Water Council. “We just would hope the Board uses its discretion to consider those nutrient inputs, specifically in those sensitive areas, if this is to be the wording that is applied.”

The Board of Health can unilaterally deny any variance request at its discretion.

“Just because someone has a request for a variance doesn’t mean they’re going to get it,” McKenna said. “Even if we didn’t put the special wording in, the reality is, to a certain extent, anyone can apply for a variance at any time, but applying for a variance doesn’t mean they’re going to get it. So, I think part of it is that if we are committed to keeping our single source aquifer as best we can, that is going to be pretty much the guiding principle of looking at any variance.”

The ban tightens restrictions on development in the wellhead protection district and Hummock Pond watershed. Regulations limit the number of bedrooms homeowners are allowed based on square footage, but in the past, the Board of Health routinely granted variances from those regulations, issuing nitrogen loading credits when homeowners proposed switching from a conventional septic system to an innovative/alternative, or I/A, system. I/A systems treat sewage more effectively, potentially so much more effectively that, even with an allowance for additional bedrooms, fewer contaminants will leach out into the soil.

But the Board of Health issued a moratorium on such variance requests last June, and has now adopted a ban on nitrogen loading credits in the two regions, both of which are considered nitrogen-sensitive areas. Nitrogen is harmful to humans and the environment, and the new rules are intended to limit exposure to it by requiring that all homeowners switch to an I/A system, without receiving any credits, if their existing system fails, if any new construction or structural alterations are proposed, or if the property is transferred from one owner to another.

Housing advocates, including town staff and members of the Select Board and Planning Board, raised concerns that the hard cap on bedrooms could damage the ability of property owners to create more affordable year-round housing and would hamstring the island’s covenant housing program, which offers home ownership opportunities to islanders with moderate incomes. The carve-out addresses those concerns.