A proposal by the Chatham Board of Health to impose a three-year moratorium on new septic systems has left homebuilders and real estate agents flush with anger.

The proposal, scheduled to be discussed at a hearing April 10, would halt the issuance of permits for all new septic systems until April 2003.

While Board of Health member Paul Kelley, in writing the draft proposal, said the town is looking for a way to slow the discharge of nitrogen into the town’s groundwater and surface water, critics contend the moratorium essentially stops all new construction in the tony Cape Cod town.

“The town of Chatham is now suffering seriously from the cumulative impact of 7,000 on-site sewage disposal systems constructed over the past several decades,” Kelley wrote in a background letter to the Board of Health. “The systems jeopardize the quality of our ground water and surface waters alike.

“In 1999 nitrogen contamination played a significant role in the closure of shellfishing areas and beaches and has caused changes to the ecosystem including algal blooms, destruction of eelgrass and general fouling of our shallow estuaries,” he continued.

Kelley further stated that the increase in year-round living in Chatham has further increased sewage, and with that increased the threat to human health.

“To prevent further contamination of ground and surface water resources, and to address threats to the public health and environment … the Board of Health and the town of Chatham has determined that immediate measures must be taken. We are therefore establishing regulations which limit the issuance of new and repair septic systems,” he said.

The draft proposal calls for no new septic systems except in the case of a failure of a current system or a voluntary upgrade of a current system. The regulations also states no variances will be granted.

The town of Chatham has a sewer system, but according to town officials the pipes only serve the immediate Main Street area. Because of a lack of sewage alternatives, critics of the proposal say Chatham, in effect, will be instituting a moratorium on all new construction in town. New homes need septic systems; no septic means no home, they say.

“This would prevent any new construction or even expansion,” said William F. Riley, an attorney with Toabe and Riley in Chatham who is representing a group of homebuilders calling themselves the Chatham Association for the Protection of Private Property. “Even if you wanted to add on a bedroom, this would end that kind of construction. This is causing serious problems for property owners.”

“The action the Chatham Board of Health is considering is the most Draconian of approaches to addressing their environmental concerns,” said Benjamin Fierro III, legal counsel for the Home Builders Association of Massachusetts.

“A moratorium on the issue of permits for the installation of septic systems is as effective a tool to stop development as a moratorium on building permits, and this contemplated move should be of great concern to home builders and developers across the state. The Home Builders Association of Massachusetts will be looking at this very carefully.”

In addition to sparking reaction from the home construction industry, real estate agents working in the Chatham market are also seeing red.

“This is an erosion of our property rights,” said Marilyn M. Seufert, co-owner of Sylvan Realty in Chatham. “You can’t sell a piece of land if no one’s going to be able to build on it for at least three years. Yet the town is going to continue to tax you for it as if you can build on it.”

Seufert said the real estate agents’ concerns go beyond just being worried about the loss of some property sales.

“We’re Realtors, but this is our town, and we live here too,” she said. “We’re the first to conserve water and care about the environment, but they’re really jumping the gun on this one. They don’t even have a study to prove anything.”

Little Effect on Water
Riley said the regulation’s effect on new homes would be devastating, but the effect on remediating the environment would be minimal.

“The effect of the moratorium on groundwater is zero,” he said. “If the current systems are degrading, the degradation will continue. The effect of any additional systems wouldn’t be felt for years.”

Seufert said the moratorium might have a reverse impact.

“In the interim, there’s going to be this big rush for everyone to get septic permits before the regulations go into effect,” she said. “There’s actually going to be more building because of it.

“I haven’t talked to one real estate agent, or anyone, that’s not in shock over this.”

Though unaware of the situation in Chatham before being contacted for comment, 2000 president of the Cape Cod & Islands Association of Realtors Richard F. Martin said the town may be taking matters to the extreme.

“Three years seems to be a pretty excessive amount of time for somebody to wait to build a house,” said Martin, broker/owner of Dick Martin & Assoc. of South Yarmouth. “The town should have done something a long time ago to protect its environment.

“If you’re talking about no new septic systems in the town’s aquifer zone, I can understand that, but this makes no sense to me,” he continued. “Doing this to the whole town is overkill. They ought to be able to come up with alternatives. This is terribly restrictive.”

Finding an alternative to the moratorium was a suggestion echoed by Seufert and Riley.

“The town and the Board of Health should work to reduce the flow of nitrogen from existing homes, as well as fostering the community sewage systems,” Riley said. “There are a lot of positive things they can do that would have an immediate and positive impact. But right now it’s like they’re saying ‘We have ours, if you want yours you’re going to have to bear the burden of the moratorium while we keep flushing our toilets.'”

“I want to know why more sewers aren’t possible,” Seufert said. “They should tell us why these alternatives wouldn’t work. Maybe they would get less complaints.”

Riley said another group that has heightened concerns about the proposed regulation is property owners looking to retire.

“I know a minister in Cleveland who bought a lot here in the 1970s. He’s 65 now and he’s worried he won’t be able to retire here,” Riley said. “Most people buy vacant lots in Chatham and think of them as an asset. This moratorium is going to take the value of their asset and reduce it.”

Riley said a large contingent of homebuilders are planning on attending the hearing to plead their case and propose alternatives. Seufert expects Realtors will also be voicing their concern as well.

“I think the Realtors, and everybody for that matter, have to get together and listen to the facts before everybody starts going off the deep end,” she added.

Kelley’s letter stated additional information or the institution of remedial actions by the town, including the construction of more sewers, might prompt the board to lessen the restrictions of the moratorium.

“Conversely, if warranted, the board may institute even stricter regulation,” he added.