A special permit request to build a two-story house on an Old Indian Trail property, which abutters claim is the source of problematic neighborhood flooding, appeared further in jeopardy after a letter from the Board of Health asked the Marion Zoning Board of Appeals to table the application until a recently noted alleged BOH matter at the site could first be resolved.
ZBA member Betsy Dunn, who is also a member of the Board of Health, read a statement and letter dated April 13 from the BOH to the ZBA regarding fill that was placed at the property, which the letter states “is in direct conflict with the requirements of Title 5 of the State Environmental Code.”
Written by Health Director Karen Walega, it states, “[The Board of Health members] are recommending that you table a decision regarding the ZBA special permit until the area is reconstructed to the satisfaction of the Board.”
The fill, which came up during the last public hearing for 20 Old Indian Trail, was purportedly placed near the septic system right up against an existing stone wall, a source of flooding water onto neighboring properties, neighbors allege. The septic system was deemed functioning in accordance with the plan, but subsequent fill to the specific location was not part of the original Board of Health approved plan.
The additional fill directs stormwater off the site, said Dunn, “So the Board of Health has sent a letter stating that … they did not follow the as-built plans.”
“They need to remediate that,” said Dunn. “Until it’s remediated, it does not seem as though we (the ZBA) can make a decision.”
Engineering representative for property owner OIT Realty Trust c/o Jacqueline Gaffey, Dana Nilson, asserted the ZBA special permit was an entirely separate matter and, furthermore, the plans to build a stormwater retention system, of which there currently is none, would mitigate the neighborhood’s concern of water runoff, regardless of the alleged fill issue with the Board of Health.
“Ironically,” Nilson continued, “the Town paid for the installation of the septic system and was responsible for the engineering of it … the construction, the approval … so it didn’t follow a plan, it’s not the Gaffeys.”
The board discussed the matter at length, with some members expressing concern over Dunn’s position on the septic fill and how the ZBA application would add a secondary problem into the mix.
Neighbors in attendance also clung to the fill theory as a source of the flooding on their yards, while Nilson struggled to convince them that the proposed stormwater retention system is what was needed to solve the flooding issue, saying, “It’s a tactic to delay this…”
Nilson asked Dunn, if the grading by the septic system and the stone wall was addressed, would that satisfy the board?
“…I don’t know, I’m only one member of the board [of health],” said Dunn.
ZBA Chairman Eric Pierce said trying to mitigate the flooding with a roof run-off system in the special permit plan was “a good step … that would show a reduction (in run-off).” He pointed out that the Gaffeys’ engineer and the town’s engineer have gone back and forth and come to an agreement on the effectiveness of the proposed stormwater retention system.
“We are correcting the problem,” said Nilson. “You have to have some faith here. If we do nothing, then the situation is not improved…. Anything with the septic system has nothing to do with whether this solves the problem.” Nilson continued, “It’s a bad problem. This is going to be the solution.” His visible frustration was mounting.
Dunn replied, “I, for one, can’t say. I can’t give the go-ahead until I know the engineers have looked and remediated the problem that’s causing the flooding.” She said the next step would be the BOH meeting with the engineer.
“It’s a separate issue,” asserted Nilson.
Pierce agreed with Nilson, saying he found the two matters to be separate issues.
“We’re making a huge difference,” argued Nilson. “No one in the neighborhood seems to grasp that.”
Nilson turned to Dunn and brought up her position on both the BOH and the ZBA and asked her if she should even be voting on the matter after bringing the BOH into it.
“I don’t know,” said Dunn after a period of silence. “I will not vote if that’s what you want…. It’s never been a problem.”
ZBA member Bob Alves said, “They’re two separate issues. Can we address this issue first because he’s provided everything that he’s supposed to?”
“Typically, the other issue isn’t our problem right now,” said ZBA member Marc LeBlanc.
The debate went in circles for a while, with the same oppositions and same defenses until Dunn said, “We could do this all night.”
Pierce suggested closing the hearing to take the matter under advisement.
It’s conjecture at this point,” he said of the septic fill matter with which the BOH was concerned. “All we can deal with is this.”
The board voted 4-0 to take the matter under advisement. Dunn did not vote.
In other matters, a special permit request for Garrett Bradley of 8 Park Street was withdrawn.
The next meeting of the Marion Zoning Board of Appeals is scheduled for April 28 at 7:30 pm at the Marion Town House.
By Jean Perry