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HomeMy WebLinkAbout1994/08/25 - Board of Health 'MASON COUNTY BOARD OF HEALTH APPEAL HEARING AUGUST 25, 1994 An Appeal Hearing of the Board of Health was called to order at 2:00 p.m. by Dr. Mark E. Trucksess, Health Officer. Those in attendance: Dr. Trucksess, Health Officer Pam Denton, Environmental Health Specialist Richard Scroggs, Appellant Russell A. Austin, Jr., Appellant's Attorney APPEAL HEARING - SCROGGS Dr. Trucksess explained the appeal hearing procedure. He stated that Ms. Denton would present the Health Department's report and then the Appellants would be given opportunity to state their position. He noted that the Appellants had the ability to appeal to the Board of Health, and on to the State Board of Health if they deemed it necessary. Ms. Denton began a chronological history of the application made by Mr. and Mrs. Scroggs to rebuild a home located at E 6631 Highway 106 in Union which had been destroyed by fire. Mr. Austin asked if those giving testimony would be placed under oath. Dr. Trucksess responded that they would not be placed under oath, as was the normal procedure during this informal hearing. He asked Mr. Austin if he wished to have the parties sworn in. Mr. Austin replied that he did not if it was not the usual procedure. Ms. Denton told those in attendance to make comments during her report, if they so wished. Ms. Denton reported that a letter from Tony Godat, the Scroggs' Engineer, had been received on February 25, 1994, stating that the Scroggs' four bedroom house had burned a few months earlier and that they wanted to rebuild. The number of bedrooms nor the square footage were to be increased, and the Scroggs wished to use the existing drainfield. Three days later a file search was completed and it was discovered that a 1970 sewage permit for a five bedroom residence had been taken out but had never been signed off for final approval and there was no as-built. On March 2, a letter was sent to Mr. Godat stating the requirements set forth in the Environmental Health Building Permit Review Requirements Policies. These policies would require that both septic tanks be pumped, and that a scaled plot plan signed by a designer or engineer showing the system layout in detail and an area for a non-conforming reserve area be submitted. The letter further stated that an environmental health review may be required if the Department was unable to determine if the system was functioning properly. Ms. Denton stated that two months later her office received an as-built which showed the two septic tanks, the r^ foundation location, parking, etc., and showed the reserve area as being where the pickle ball \�.. court was located, which she assumed was under a concrete pad. On May 20th a letter was sent MASON COUNTY BOARD OF HEALTH APPEAL HEARING' - AUGUST 25, 1994 PAGE 2 of 7 to Mr. Scroggs stating that the tanks needed to be pumped and inspected, and that additional items may be required pursuant to the pumper's report. The letter noted that a variance would be necessary to allow the reserve area to be underneath the pickle ball court. Ms. Denton commented that this letter erroneously stated that the original home was only 1,833 square feet. On the same day this letter was mailed to Mr. Scroggs, a fax had been received from Mr. Godat. Mr. Scroggs and Mr. Austin questioned having received a.letter dated May 20th. Ms. Denton responded that the May 20th letter looked similar to the June 1st letter. Mr. Austin stated he and Mr. Scroggs had not seen the May 20th letter. Dr. Trucksess stated that copies would be provided. Ms. Denton stated that she realized the square footage was in error and prepared a new letter on June 1st which had the corrected footage included. Mr. Scroggs commented that the May 20th letter probably went to the address where the home had burned. He had been advised of the error in square footage by someone receiving a copy of the letter. Mr. Austin asked why Ms. Denton's June 1st letter had asked for the pumping report when it had already been received. Ms. Denton responded that she had merely sent out the same letter as sent on May 20th with the corrected square footage. Mr. Austin asked about the date the fax had been received, stating he believed it was May 9th. Ms. Denton explained that on May 9th the fax had been received by the County, but not by her department. The date she actually received the fax in her office was. May 20th. Dr. Trucksess commented that a lot of attention was being paid to dates and wondered if this was important. Ms. Denton replied that the dates were not important to the overall picture, however, one of Mr. Scoggs' contentions was the amount of time taken during the process. Ms. Denton stated that the actual square footage of the old house was 4,168 and the new home was 164 feet larger. Dr. Trucksess asked if the number of bedrooms was the same. Mr. Austin replied that they remained at five. Ms. Denton reported that on June 20th Mr. Scroggs requested a variance to place the reserve drainfield in the area of the pickle ball court. On June 26th, she and Brad Banner, the Health Services Director, reviewed the variance request. Their concerns were that the lot was small and encumbered by concrete pads, and that the drain field was possibly undersized and might not adequately treat and dispose of effluent properly. The variance was not approved and an environmental health review of the existing drainfield was requested to determine additional information regarding the drainfield. Staff person Jim Tobey inspected the site but was not familiar with the history of the site and did not have the records available to him. Therefore, Mr. Tobey was briefed and returned a week later to dig test holes. His second site inspection revealed a very shallow restrictive layer at ten inches below grade. Ms. Denton decided to verify Mr. Tobey's results so she met with Mr. Scroggs and Mr. Godat on site on July 26th. At that time, Mr. Tobey's results were verified that the soil was very restrictive with only 10" of useable soil over a very compacted to cemented till-like layer. One test hole was dug into the drain field lateral. The bottom of the drain rock was at 34"' below grade where there was standing water. i r MASON COUNTY BOARD OF HEALTH APPEAL HEARING - AUGUST 25, 1994 PAGE 3 of 7 Ms. Denton stated that the drain field was discharging directly into the water table. After talking with Brad Banner, it was determined that the drainfield would need to be brought up to current code because it was so far out of compliance and size and was discharging into the water table. Ms. Denton had informed Mr. Scroggs and Mr. Godat of this determination and then followed-up with a letter. An appeal application relating to this determination was then received. Mr. Austin, Mr. Scroggs' attorney, wrote a letter stating that the drainfield should be "grandfathered." He had referenced the Mason County Shoreline Master Plan regarding reconstruction of a structure within two years after a fire. Upon Mr. Austin's request, Dr. Trucksess read aloud the written comments he had made on the appeal application. The word in question was "remedial" measures. Mr. Austin asked Dr. Trucksess if he understood that the Scroggs' application was not to put in a septic tank but was an application for a building permit. Dr. Trucksess was aware of this and stated that if a septic system was out of compliance, the Health Department could hold up a building permit application until the system was put into compliance. �. Mr. Austin stated there was no reason to believe that the system had potential for failure because it had 24 years of past good experience. He believed the county was negating the grandfathering portion of the plan, and that the Scroggs had a constitutional right under due process to rebuild. He stated they should be allowed to rebuild by hooking up to and monitoring the existing system. If there were problems, the problems would be dealt with. Dr. Trucksess asked if the system had been tested during the time it was functioning. Mr. Austin replied that seven tests had been completed in 1993 under the shellfish project, and the fecal coliform bacteria count was well into the lower ranges of acceptable results on the Scroggs' beach. Dr. Trucksess asked if there were records of this testing. Mr. Austin believed the Health Department should have copies of the testing. Ms. Denton stated that the drainfield on the neighboring property had failed. Mr. Austin stated he was aware of this fact, but they should not be penalized for that. Ms. Denton commented that the Health Department did not rely solely on these shellfish tests, and used additional testing processes. Mr. Austin stated that the Health Department carries these test results with them, and that he believed this testing was the basis for the decision to close down the system on the property next to the Scroggs' property. Ms. Denton stated that the testing was an indicator only. Dr. Trucksess asked if the Scroggs would feel better putting in a viable, functioning drainfield before they built their new home rather than finding out afterwards through testing that the system had failed and therefore, the need to put in a new system. He stated that if the work was done now, they would know before construction whether they could install a viable drain field. Mr. Scroggs stated that they have tried all along to comply with the Department's requests. He ��,% commented that Ms. Denton had left some things out of her report. For instance, while in the MASON COUNTY BOARD OF HEALTH APPEAL HEARING - AUGUST 25, 1994 PAGE 4 of 7 field, she had told Mr. Godat and himself that they would require testing on the existing system. However, he had not received a letter regarding this, but rather a letter with different requirements. Ms. Denton differed with Mr. Scroggs' comment, stating she had been very frank with him and that, at the very minimum, would require a treatment device. She stated there were many different ways to mitigate this, but had not given them a determination until she had talked with the Health Services Director. Mr. Scroggs stated that they have tried to comply, and that Ms. Denton had recommended something that was overturned by the Health Services Director. Ms. Denton stated she had misunderstood what Mr. Banner was requiring after their conversation, but after he saw-the letter written by her to the Scroggs, Mr. Banner informed her that the system had to meet current codes, so she rewrote the letter and mailed it. Dr. Trucksess asked what had been done to comply with the requirements. Mr. Scroggs replied that there was no treatment device installed,however,they had complied with covering additional grassy areas and declaring the pickle ball court as a reserve. Dr. Trucksess asked about the treatment device. Ms. Denton informed that it could be something like a bio-max, which wouldn't take up a lot of area so that a larger area could be used for the drainfield. Mr. Austin commented that a bio-max costs approximately $8,000 and was about i� the size of a septic tank. Dr. Trucksess asked if it would be more cost effective to put in a treatment device and have testing performed to verify the system was working or to put in a new system. Mr. Austin remarked there are two good operating tanks now. Dr. Trucksess responded that the Scroggs would be able to utilize the same tanks. Dr. Trucksess viewed a diagram of the Scroggs' property. Ms. Denton stated that there was one area more suitable for a drainfield. Mr. Scroggs stated that they, at least, have their system in back of the house rather than closer to the water like so many other homes. Dr. Trucksess asked about putting in a new drainfield, maximizing the area, and using the existing septic tanks. Ms. Denton stated that if that was done a bio max would not be required, but they would need to pump more frequently. .She noted that design questions would need to be resolved, however. Dr. Trucksess wondered about digging a few more test holes in the area closer to the property line and having the drainfield relocated. Mr. Austin stated that they would consider this proposal, but at this time it was their desire to utilize the existing system which for 24 years had no evidence of less than safe performance. And, if at a later date it was found not to be working, the Scroggs would be the first ones who would not want to.pollute the canal and would rectify the problem. He stated they do not want to jump through $10,000 hoops until there was evidence it was needed. Mr. Austin stated the Health Department should approve the building permit and allow the Scroggs to hook up to the existing system with testing as a condition. Dr. Trucksess asked about the possibility of testing. Ms. Denton replied that there was a dye test which could determine if discharge was reaching the bulkhead; however, the system was not currently being used because there was no house there. MASON COUNTY BOARD OF HEALTH APPEAL HEARING - AUGUST 25, 1994 PAGE 5 of 7 Ms. Denton commented on the fact that the Department has no as-built or final inspection approval of the system. Mr. Austin disagreed, stating the Health Officer had signed off on the permit and even though the Health Department had not signed off, whose fault was that? The permit was in the possession of the Health Department, and the Scroggs believed they had approval. Dr. Trucksess stated the initial permit was not an issue. Mr. Austin remarked that the system had not had a problem for 24 years and that the shell fish tests indicate it was a good system. Dr. Trucksess stated that they now know the system was discharging into the water table and that there was standing water in a test hole in July. Mr. Scroggs stated he believed the water in the test hole was from watering. Ms. Denton commented the water was tidally influenced. Mr. Austin stated they were attempting to put back the house at an allowable size, not increasing the number of bedrooms or applying for a new septic tank permit. He referred to Mason County Code 7.13.020 which gives certain rights, one of which to rebuild within 2 years. He stated that they were not asking for a variance, but had been told they needed to apply for one. This was a single-family dwelling with no previous record of its system failing, and that it was a purely - constitutional and practical matter to rebuild. Mr. Austin commented that the Scroggs were responsible citizens who feel a propriety interest in the water and who believe in constitutional rights, and that the Health Department should not be above certain rights and ordinances. And, although he would not encourage testing requirements, the Scroggs would be willing to be subjected to the same testing as all the other systems. And, if it was decided that a bio max was necessary, one would be installed. Mr. Scroggs agreed. Mr. Austin stated they would be ahead of the game to play by the rules, and the rules allow the Scroggs to rebuild their home. He commented that litigation was not good for anyone, and he did not want to impose the burden of litigation, noting it would cost more than the cost to buy the bio max. Mr. Austin commented that they did not see the need to purchase a bio max because the system may fail or because there was water in a test hole. Dr. Trucksess stated the water in the test hole was one of many aspects of the drainfield which did not meet current regulations. He commented that the Scroggs have the opportunity to make correction at minimal cost, that it would be more expensive at a later date. He hoped they would be less rigid and work with the Department towards a viable system ensured to work properly. Mr. Austin replied that they had been working with the Health Department since last February and were receiving mixed signals. He stated that no one had said a bio max would be a solution, and that they were frustrated by the mixed signals. He remarked that if Dr. Trucksess would not approve their permit to hook up to the existing system, but instead required a bio max, that requirement would give them trouble, and they would remain rigid. t MASON COUNTY BOARD OF HEALTH APPEAL HEARING - AUGUST 25, 1994 PAGE 6 of 7 Dr. Trucksess asked if the solution would be in a new design. Ms. Denton replied that her most recent correspondence to the Scroggs indicated they needed a newly designed system, but such a design had not been received. She noted that a design would need to be received and reviewed before a determination on its acceptance could be made. Ms. Denton commented that there were many things wrong with the existing system; one concern being the discharge. Another was seeing the standing water in the test hole, and the fact that the size of the drainfield did not meet standards in the best of soil for a two bedroom home. She stated the design needed to show treatment and disposal. Mr. Austin stated they were reluctant to invest additional money toward a new design when other suggestions had been vetoed by Mr. Banner. Mr..Austin asked that Dr. Trucksess tell them what would be acceptable. Dr. Trucksess replied that just because a designer designs a system it did not always mean it would comply with regulations. The Health Department has to see the design in order to make a determination. ' He stated that it appeared that the property could meet standards, but there were no guarantees until the Department has an idea where the drainfield would be located and what kind of treatment was being proposed. Dr. Trucksess commented that submitting a new design was a reasonable solution. Mr. Austin stated that this was the problem; they were led to believe that if they did something it would solve the problem, but it had been overruled by Mr. Banner. He stated that Ms. Denton appeared to be a buffer between Mr. Banner and himself. Ms. Denton responded that her position was lead on-site coordinator, and as such handled cases. Mr. Banner was the Director of Health Services. She was paid to make determinations on systems and that the primary goal was to ensure that contamination did not occur in the canal. Mr. Scroggs stated that, for that reason, they had installed a new system in 1970. Ms. Denton stated she was not questioning their integrity. The Department had strong concerns substantiated by test holes and water tables that the system did not meet standards on treatment and disposal. She did not see how they could allow the use of this system when there were so many concerns. Mr. Austin asked the Department to offer an alternative. Dr. Trucksess responded, stating the Scroggs could have a designer look at the system and redesign it. He noted that it may be a simple solution, or it may not. Mr. Austin responded that it had not been simple during the past seven months. Ms. Denton commented that at the end of February, the Department had asked for an as-built, and it had not been'received until May. Mr. Scroggs remarked that they had supplied a topographical survey because certain references had been wanted. Ms. Denton stated they wanted a plot map, that a topographical map was helpful but not necessary and not typical of what was usually received. Mr. Austin asked if Dr. Trucksess' decisions were made on sanitary/health grounds, a limited authority. Dr. Trucksess replied that his decisions were based on health issues. Mr. Austin (�-� remarked that if Dr. Trucksess did not feel comfortable granting their variance on constitutional MASON COUNTY BOARD OF HEALTH APPEAL HEARING - AUGUST 25, 1994 PAGE 7 of 7 grounds, would he please render an oral confirmation of his opinion so that they could proceed immediately to the Board of Health. Dr. Trucksess stated he would not approve the existing system. Mr. Austin asked that this matter,be placed on the Board of Health meeting agenda for September 1st, 1994. Ms. Denton stated she would inform the Appellants of the hearing time when it was determined. Appeal hearing adjourned at 3:00 p.m. Dr. Mark E. Trucksess, Health Officer `—� i Respectfully Submitted, 6u&�L �— Lorraine Coots t )