Council rejects municipal waterline extension to East Shore Road
Sitting Monday as the Board of Water and Sewer Commissioners, the Town Council rejected the long-pending Muir application for town water extension.
The council again reviewed the application of Donald Muir of Whittier Road for extension of town water to a lot he owns at 44 East Shore Rd. that is outside the municipal water district. He applied in late 2004 for the extension for the lot that abuts the end of the town waterline.
The councilors concluded that Muir had not exhausted his efforts to obtain water of sufficient quantity and quality from a well on his property. They voted 4-1 to deny the application, with Councilor Barbara Szepatowski opposed.
The council originally told Muir to drill a new well to replace one considered contaminated. After he did, the councilors said the effort was not sufficient because it was less than 50 feet deep and needed to be at least 100 feet deep.
Last year, Muir then attempted to negotiate the development of a conservation program to substitute for the water he would be using at East Shore Road, but questions were raised about anyone trying to swap retrofits on other properties to gain access to town water.
Szepatowski, whose volunteer program for a on-island animal shelter might have benefited from Muir's conservation proposal, said this week that discussion about the possibilities were not fair to Muir, since it led the applicant to believe he had a solution when it was later set aside.
Other councilors wanted to follow regulations precisely about what Muir needed to document his seeking well water, including getting a state variance to drill near state Route 138 at his property line. Muir and his attorney cited cases on Clinton Avenue and at Beavertail years ago that they said reflected a less strict application of the water regulations. Some councilors said the Clinton Avenue example did not apply because it is in the municipal water district. They said they did not know about or agree with the interpretation of the Beavertail situation.
At the request of Council Vice President Julio DiGiando, Town Solicitor Lauriston Parks gave a ruling that the regulations give criteria that Muir must meet, and that the Muir application lacks two of the four provisions. Muir's request for a waterline extension does not meet the town's Comprehensive Community Plan, and Muir has not done all that is possible to find a new well or to fix the existing well on the property.
Previous "weak" actions
Councilman Michael Schnack said the board must follow regulations as interpreted by Parks, even "if the way they might have been applied in the past was weak. We cannot be weak, and we do not have to be weak because someone else was." He also said no person outside the municipal water district has a right to town water or to a connection to the town waterline.
Muir and his lawyer disputed Parks' and Schnack's viewpoints. The lawyer, Christopher Kehoe, submitted a memorandum of more than 50 pages that led off by citing a U.S. Supreme Court decision
that Kehoe said upheld Muir's claims and rights. Kehoe said Muir "has the right to be treated the same as others . . . (even) if others were weak." Kehoe also said Parks "is wrong. It is up to the board to decide if the rules are met."
Parks and Kehoe started exchanging arguments without being recognized by Council President Long. That led Councilman William Kelly to ask that the lawyers not be allowed to debate among themselves. Kehoe returned to address the councilors about his position, including their "being bound by past interpretations."
The likelihood that the island is a sole-source aquifer was raised and led Szepatowski to ask about the island's capacity to produce. Public Works Director Steven Goslee reported the public water supply is 420,000 gallons a day according to a recent "safe-yield study."
Szepatowski said she did not believe that was the maximum and questioned Goslee about other study options. Goslee said one, initiated by researchers, was offered to the town some years ago but was not contracted for the several hundreds of thousands of dollars quoted.
Schnack and Kelly returned to their discussions. Muir attempted to argue with them, but Long signaled him that he was out of order. Kelly said that the water board "almost rubber stamped" approval of the Muir application, but more study showed "how (the water supply) is such a critical local issue." He said Schnack should be commended, not criticized, because Schnack did some extra study for the commission about the issues.
Schnack had submitted a written report stating Muir "has not demonstrated that he has exhausted all avenues to locate a well on his property." He reported that Muir did not follow through on the related applications he had made in 1997.
Regulations provide that an applicant for a waterline extension must prove that all other possible options for water have been exhausted before such an extension can be considered, because of the limited amount of water that is available for the municipal supply on the island.
Last month, Muir's lawyer argued that the board allowed about 50 connections and extensions over the past 10 years, without the regulations making distinctions among them. He also claimed that Muir was being asked to do far more than has been required of any other applicant. "You are taking a tougher stance than allowed," Kehoe said. He and Muir suggested the size and configuration of the East Shore property does not enable siting a well without one or more variances, and that water from any well would be suspect in terms of being safe according to state health department standards.
Szepatowski said last month that in the past she had done some engineering-related work for Muir and more recently served him as a client of her pet-care business. However, she said she was advised by the town solicitor that she did not have to recuse herself from the discussion and voting because she has no current business involvement with him. During the months of consideration of Muir's application, he and the councilor's also discussed his proposal to offset the town water he would use by paying for watersaving retrofits on either public or private properties.
Muir said he asked for the extension because the existing well water on the property was blamed for the loss of a child by miscarriage in 1998, when he and his wife were living full time at the East Shore Road property. Muir and his family lived there for two years. During that time, the well water was muddy, of poor quality, under poor pressure, and subject to outages. The family then moved to East Passage, and in 2002, they moved to their current home. Muir said his family uses East Shore only in the summer and without consuming the well water.