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Falmouth board approves variances for 227 Edgewater Drive West with 3‑year sunset clause; one member dissents
Summary
After prolonged debate over bedroom counts, nitrogen loading and Title 5 definitions, the Board approved variances for a renovated 5‑bedroom house at 227 Edgewater Drive West while requiring an IA nitrogen‑reducing system within three years or at point of sale unless municipal sewer is funded/permitted.
The Falmouth Board of Health voted on July 20 to grant variances for a renovation project at 227 Edgewater Drive West while attaching a sunset condition that would require the owner to install an IA (innovative alternative) nitrogen‑reducing wastewater technology within three years or at the point of sale, whichever is sooner, unless the municipal sewer outfall for the area has been permitted and funded and sewer installation is reasonably anticipated.
The applicant’s team told the board the proposal replaces an existing cesspool with a Title 5 system serving a renovated 5‑bedroom house and argued that the work does not meet Title 5’s definition of "new construction" and therefore does not trigger an automatic IA requirement. "This project does not trigger new construction," said attorney Brian Wall, who explained Title 5’s definitions and argued the planned replacement reduces nitrogen loading compared with the current cesspool.
Board members pushed back on two fronts: whether bedrooms that had been previously recorded as single‑occupancy would formally be treated as double occupancy for flow calculations, and whether approving variances without a denitrifying system amounts to an allowance of increased flow in perpetuity. One member framed the policy question starkly: "We're giving it to the deed, not to a particular person...the town will spend tens of millions of dollars fixing this problem...I couldn't, in my conscience, say to the town of Falmouth, yeah," expressing opposition to approving a variance without stronger nitrogen safeguards.
After lengthy procedural motions and failed attempts to require an IA immediately, the board negotiated language that ties a required IA to a three‑year revisit (or point‑of‑sale trigger) and to a clear sewer‑funding/permitting condition. Under the approved compromise the variances are granted now, but an IA from the MassDEP banner list capable of achieving the agreed performance target must be installed within three years or at point of sale unless the municipal outfall has been permitted and funded and municipal sewer in the property area is anticipated by 2035.
A member registered opposition to the final motion; the board chair said the motion carried and asked staff to craft formal findings and conditions for the written decision. The board also preserved the applicant’s right to return and seek deadline revision with updated information.
The final order: variances approved with written findings and a condition requiring an IA upgrade within three years or at point of sale unless sewer outfall is permitted and funded and installation is anticipated.
Next steps: staff will prepare formal written findings and conditions reflecting the board’s sunset clause language and process for appeals or deadline revisions.
