BENJAMIN FIERRO III
Praises governor’s efforts
Speaking to homebuilders gathered for an annual awards dinner, Gov. Jane Swift last week vowed to ease septic system restrictions that are hindering housing development in many Bay State suburbs.
Swift said she would take immediate action on issues involving Title 5 septic system regulations, including directing the Department of Environmental Protection to change a testing requirement for septic systems.
“In taking the action that the governor announced … she is doing more to advance the production of needed housing in Massachusetts than has been done in years,” said Benjamin Fierro III, counsel for the Home Builders Association of Massachusetts.
Homebuilders and Realtors have long complained that septic-system regulations that are stricter than state standards are making it harder and more expensive for developers to construct housing. They argue that local health boards are approving tougher regulations without providing scientific proof or evidence that they are needed, and have called on lawmakers to pass a statewide uniform Title 5 code. More than 125 communities in the Bay State have a septic system code that differs from the state.
One barrier to housing construction identified by builders and other experts concerns the percolation, or perk, test done for septic systems. The test determines the capability and amount of time it takes for soil to absorb liquid. In practically all the states, an acceptable perk rate is 60 minutes, but in Massachusetts it is 30 minutes.
Swift said she would direct the state Department of Environmental Protection to modify the perk test rate to 60 minutes, a move builders believe will free up land that was considered not suitable for development before. Swift’s comments came last week at the HBAM’s annual awards banquet.
“The one important thing is the 60-minute perk,” said Kevin Sweeney, who was installed as the new president of HBAM. “It will provide additional land for housing which is severely needed. It will, I think, once and for all begin to end board of health de facto zoning.”
Zoning Tool
Sweeney, owner of Sweeney & Sons in Maynard, said health boards have been using the septic code as a zoning tool to restrict housing construction.
“Each and every town uses the health code differently,” said Sweeney. “Health codes should be uniform. Much like the building code, the electrical code, and plumbing code. Unless the town can prove scientifically that their soils are different or that they have some unique characteristic, [the health code] should be uniform.”
“The adoption of a 60-minute perk rate has been sought by the homebuilders since the adoption of the original Title 5 [code] over 20 years ago,” added Fierro, a partner at Lynch & Fierro in Boston.
In 1995, regulations revising the original version of the Title 5 code required DEP to prepare a report by Jan. 1, 1998, about whether it was appropriate to have a 60-minute perk test, and then to revise the regulations accordingly by 1999, said Fierro.
“The DEP has never moved on it,” said Fierro. “Gov. Swift is simply requiring the DEP to do what they were told to do back in 1995.”
In addition to changing the perk rate test, Swift said she wants DEP to review and analyze the reasons that local health boards are using to approve septic regulations that exceed the state’s requirements. She is also ordering the development of a state council that will coordinate building and specialty codes.
Homebuilders and Realtors hailed Swift for taking action on these matters. Many of her comments reflect the suggestions and recommendations that came out of a report issued in January by the Governor’s Special Commission on Barriers to Housing Development. The 18-member commission, which included local officials, environmentalists, builders and real estate professionals, was appointed by former Gov. Paul Cellucci to determine how to increase housing production.
Upon hearing Swift’s recommendations, the Massachusetts Association of Realtors issued a press release urging Swift to take immediate action on the commission’s recommendations.
“What concerns us most is that the regulatory barriers being used to limit new constructions, such as excessive minimum-lot-size requirements and arbitrarily imposed Title 5 rules that lack scientific data, don’t only minimize housing opportunities for consumers, but drive up the cost of housing for all buyers,” said John Fridlington, MAR’s executive vice president.
