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BREWSTER BOARD OF HEALTH
REGULATION REGARDING VARIANCE REQUESTS FOR ON-SITE SEWAGE
DISPOSAL SYSTEMS APPLICATIONS
The following regulation is promulgated under the authority of Chapter 111, Section 31,
of the Massachusetts General Laws:
Section I – Purpose:
1.1 Brewster draws its groundwater from a single source aquifer which is integrally
connected with and flows into, the surface waters, ponds, streams, coastal estuaries and
embayments. These water bodies constitute significant recreational and economic
resources of the town, used for bathing and other water-related recreation, including
shellfishing and fishing for human consumption. Inadequately treated wastewater
effluent presents serious threats to the water quality of the sole source aquifer, posing
potential public health and safety hazards and threatening economic losses to the affected
communities. Additional and more stringent preventative measures than those set forth
in Title 5 of the State Environmental Code, 310 C.M.R. 15.000, et seq., are necessary to
protect the public health from potential and present sources of pollution from sewage
disposal systems in Brewster. Thus, these regulations shall apply to all applications for
variances from the provisions of Title 5 of the State Environmental Code, 310 C.M.R.
15.000, et seq., as well as, applications seeking variances from local Brewster Board of
Health Regulations governing the siting, construction, inspection, upgrade and expansion
of on-site sewage treatment and disposal systems.
Section II – Definitions:
2.1 Environmentally Sensitive Area means the following:
A. Land area that borders on or is within 300 feet of the following Resource Areas,
as defined in the Brewster Wetlands Protection Regulations, Section 1.04: beach,
dune, flat, bank (coastal and inland), freshwater wetland, coastal wetland, marsh,
meadow, bog, swamp, lake, pond, river, stream, estuary, land subject to coastal
flowage, and the ocean.
B. Land with groundwater six (6) feet or less below natural ground surface elevation,
as defined by the USGS 1992, 2’ Water Table Contour Map, as the same may be
amended;
C. Land within Zone II of an existing or proposed municipal well, as Zone II is
the Massachusetts public Drinking Water Regulations set forth at 310 C.M.R.
22.00, et seq., as the same may be amended;
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D. Land in a protective private drinking well zone as defined by the Brewster Board
of Health Private Well Regulations, effective June 29, 2007, as the same may be
amended;
E. Land in freshwater pond recharge areas as those areas are shown on the Cape
Cod Commission Map, entitled Cape Cod Water Resources Classification Map I
dated January 16, 2009, as the same may be amended;
F. Land in critical environmental habitats, as those habitats are mapped and
depicted on the Cape Cod Critical Habitat (Association for the Preservation of
Cape Cod) Atlas, dated August 1990, as the same may be amended.
2.2 New Construction shall have the same meaning as defined in Title 5 of the State
Environmental Code, 310 C.M.R. 15.002.
2.3 Bedroom shall have the same meaning as defined in the Brewster Local Regulation to
Supplement Title 5 of the State Environmental Code, effective May 22, 2015, as the same
may be amended.
2.4 Buildable Upland means the total area of a lot as measured in square feet, but excluding
that portion of the lot located within beach, dune, flat, bank (coastal and inland),
freshwater wetland, coastal wetland, marsh, meadow, bog, swamp, lake, pond, river,
stream, estuary, land subject to coastal storm flowage, and the ocean, as those areas are
defined under the Brewster Wetlands Protection Regulations.
Section III – Granting of a Variance:
3.1 All Variances. The Board of Health may vary the provisions of any state or local
regulation pertaining to the design, inspection and installation of septic systems in
Brewster only when, in the opinion of the Board of Health, the person requesting a
variance has demonstrated by a preponderance of credible evidence that:
(A) enforcement of the provision from which a variance is sought would be
manifestly unjust, considering all the relevant facts and circumstances of the
individual case;
and,
(B) a level of environmental protection that is at least equivalent to that provided
under the unvaried regulation can be achieved without strict application of the
provision from which a variance is sought.
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3.2 Environmentally Sensitive Areas.
(A) Variances for projects in Environmentally Sensitive Areas shall only be
permitted for the following systems:
i) Failed Systems as defined in Title 5, 210 C.M. R. 15.002;
ii) New Construction. With regard to variances for New
Construction, in order to meet the manifestly unjust requirement of
the Variance standard set forth in Section 3.1 above, the applicant
must demonstrate that:
(a) enforcement of the provision from which a variance is sought will
deprive the applicant of substantially all beneficial use of the
subject property;
and,
b) when compliance to the provisions of the Brewster Board of
Regulation Regarding Leaching Facility Setbacks cannot be met for New
Construction of residential dwellings, in addition to meeting the
requirements of Section 3.2(a) above, the design flow of the system shall
be equal to or less than one Bedroom per 10,000 square feet of Buildable
Upland calculated at 110 gallons per day per Bedroom; provided,
however, an application for New Construction of a two (2) bedroom
house on previously undeveloped land may be permitted under this
provision where the applicant can meet the requirements of 310 C.M.R.
15.216 (aggregate flows) or 15.217 (enhanced nitrogen removal), and
agrees to execute and record at the Barnstable County Registry of Deeds
to run with the title to the property a deed restriction limiting the
number of bedrooms permitted on the property to two (2) bedrooms.
iii) Upgrade of existing residential systems provided no additional design
flow is proposed; and,
iv) All other structures, provided the project does not trigger an increase in
design or actual flow above the existing approved capacity of the system.
(B) In order to meet the manifestly unjust requirement of the Variance standard set
forth in Section 3.1 above, applicants seeking variances for projects in Environmentally
Sensitive Areas must:
i) demonstrate that enforcement of the provision from which a variance is s
sought will deprive the applicant of substantially all beneficial use of the
subject property;
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ii) in addition to meeting the requirements of Section 3.2 (a) above, agree to
install water saving devices on all fixtures. If the Brewster Board of
Health determines that it is necessary to protect public health and the
environment, it may require a deed restriction limiting the number of
bedrooms permitted on the property to a number equal to or less than one
bedroom per 10,000 square feet of buildable upland or a number
determined by the Board of Health. Such deed restriction must be
recorded at the Barnstable County Registry of Deeds to run with the title
of the property.
Section IV - Certificates of Granting Of Variance
4.1 Once granted by the Board of Health, a written Certificate of Granting of Variance will
be issued by the Board of Health, approved by the Department of Environmental
Protection pursuant to the provisions of Title 5 of the State Environmental Code, and
posted conspicuously in Brewster Town Hall for 30 days following its issuance.
Thereafter, the Certificate of Granting of Variance shall be recorded against the title to
the property by the property owner at the Barnstable County Registry of Deeds.
Section V - Expiration of Variance
5.1 A Variance approved by the Brewster Board of Health hereunder shall expire if the work
permitted under the Variance is not complete within one (1) year from the date of the
issuance of the Certificate of Granting of Variance.
Section VI - Severability
6.1 If any provision of these regulations is declared invalid or unenforceable, the other
provisions shall not be affected thereby but shall continue in full force and effect.
ADOPTED: December 19, 1989 EFFECTIVE: January 1, 1990
AMENDED: May 18, 1993 AMENDED: June 1, 1993
AMENDED: June 15, 1993 EFFECTIVE: July 13, 1993
AMENDED: February 20, 2001 EFFECTIVE: Upon Publication
AMENDED: August 12, 2010 EFFECTIVE: Upon Publication
AMENDED: September 7, 2010 EFFECTIVE: Upon Publication
AMENDED: November 7, 2012 EFFECTIVE: November 23, 2012
AMENDED: May 27, 2014 EFFECTIVE: June 6, 2014
AMENDED: July 7, 2015 EFFECTIVE: July 17, 2015
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BOARD OF HEALTH
____________________________ ___________________________
Lemuel Skidmore, MS, MPH Chairman Carmen Scherzo, DVM, Vice Chairman
____________________________ ___________________________
Mary Chaffee, RN, PHD Annie Dugan, RN
____________________________ ___________________________
Joe Ford Town Clerk