# Board of health abuse of power?



## Mrgomez7 (Nov 24, 2020)

I have been trying to get a walkout basement done in Massachusetts and been hitting a real wall with my local board of health. Everything is to code on my plans and this is what they keep giving me as a response. Please notice the use of word “potential”. To me this seems like a cop not letting you drive because you might get a speeding ticket in the future...



As Ms. BoH explained, adding a bathroom would add potential bedrooms, and your dwelling is already at the maximum wastewater capacity.


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## classicT (Nov 24, 2020)

I'd agree. Unless the plans show that you are adding a sleeping room, their rejection is baseless and should be overturned.

That said, are you adding bedrooms and labeling them something else to get around the health dept.? I presume this is an issue with size of the existing septic system?


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## Mrgomez7 (Nov 24, 2020)

No. The proposed work is for a gym, office, game room, bar. What can I do about it in my situation?


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## classicT (Nov 24, 2020)

Call and politely explain that a sleeping room is not being added. Ask them kindly for a code/legal citation. If they do not concede, ask politely for their supervisor and explain your case again. 

If you can refrain from angering anyone, you should prevail.


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## cda (Nov 24, 2020)

Mrgomez7 said:


> I have been trying to get a walkout basement done in Massachusetts and been hitting a real wall with my local board of health. Everything is to code on my plans and this is what they keep giving me as a response. Please notice the use of word “potential”. To me this seems like a cop not letting you drive because you might get a speeding ticket in the future...
> 
> 
> 
> As Ms. BoH explained, adding a bathroom would add potential bedrooms, and your dwelling is already at the maximum wastewater capacity.




Ok, my thought

Are you adding a bathroom???

If so, are they saying and not in plain English,,,    You cannot at a bathroom, because you have reached your poop limit???


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## classicT (Nov 24, 2020)

cda said:


> Ok, my thought
> 
> Are you adding a bathroom???
> 
> If so, are they saying and not in plain English,,,    You cannot at a bathroom, because you have reached your poop limit???


CDA, health departments will typically size septic systems based upon the number of bedrooms. It is a more accurate representation of how many people will reside in a property than the number of bathrooms.

It is still a very poor calculation method, but that is what they typically use, so it is what folks have to deal with.

In Mass., see 310 CMR 15.000: Title 5 of the State Environmental Code, which has the below section. Note that for a SFD, it is per bedroom.


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## Mrgomez7 (Nov 24, 2020)

classicT said:


> Call and politely explain that a sleeping room is not being added. Ask them kindly for a code/legal citation. If they do not concede, ask politely for their supervisor and explain your case again.
> 
> If you can refrain from angering anyone, you should prevail.


I have asked for the code violation a few times now. They just don’t ever email me back. Only going thru email due to Covid. It’s a small office, this is coming from one of the BOH members. I’m not sure they have a supervisor


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## Mrgomez7 (Nov 24, 2020)

classicT said:


> CDA, health departments will typically size septic systems based upon the number of bedrooms. It is a more accurate representation of how many people will reside in a property than the number of bathrooms.
> 
> It is still a very poor calculation method, but that is what they typically use, so it is what folks have to deal with.
> 
> ...


I’m not sure I understand. Could you please explain?


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## classicT (Nov 24, 2020)

Mrgomez7 said:


> I’m not sure I understand. Could you please explain?


If you look at the image above that I posted, it comes out of  310 CMR 15.000: Title 5 of the State Environmental Code, which is the law regarding septic tank sizing. This is what the person reviewing your plans at the health department should be citing as a reference.

Your system shall be sized for the greater of 330 gal/day or (110 gal) X (# of bedrooms) /day.

As you are not adding a bedroom, they should not be reviewing the size of the existing system.


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## Mrgomez7 (Nov 24, 2020)

classicT said:


> If you look at the image above that I posted, it comes out of  310 CMR 15.000: Title 5 of the State Environmental Code, which is the law regarding septic tank sizing. This is what the person reviewing your plans at the health department should be citing as a reference.
> 
> Your system shall be sized for the greater of 330 gal/day or (110 gal) X (# of bedrooms) /day.
> 
> As you are not adding a bedroom, they should not be reviewing the size of the existing system.


Okay I understand. Also it’s a brand new system that was installed in 2019 sized for a 7 bedroom. Shouldn’t have any issues.


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## cda (Nov 24, 2020)

Mrgomez7 said:


> Okay I understand. Also it’s a brand new system that was installed in 2019 sized for a 7 bedroom. Shouldn’t have any issues.




How many bedrooms are existing in the house?


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## cda (Nov 24, 2020)

Mrgomez7 said:


> I have asked for the code violation a few times now. They just don’t ever email me back. Only going thru email due to Covid. It’s a small office, this is coming from one of the BOH members. I’m not sure they have a supervisor





Every one has a boss,

I would call and not email. just keep going through the city directory till you find intelligent life, even if you have to call  the mayor or whoever runs the city.

Bother them and you should get some action.


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## Mrgomez7 (Nov 24, 2020)

cda said:


> How many bedrooms are existing in the house?


7 and I’m not asking to add one. They are saying I can’t have a bathroom in the basement because if I ever even sell the house the new owners would possibly make my other rooms (gym, office) into a bedroom. Guilty before even thinking of the crime...


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## classicT (Nov 24, 2020)

Mrgomez7 said:


> 7 and I’m not asking to add one. They are saying I can’t have a bathroom in the basement because if I ever even sell the house the new owners would possibly make my other rooms (gym, office) into a bedroom. Guilty before even thinking of the crime...


Stick to being polite and refer to the code section that I gave you. If they do not agree, ask for supervisor. Cannot force you until a room is labeled as a bedroom.


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## mtlogcabin (Nov 24, 2020)

Mrgomez7 said:


> They are saying I can’t have a bathroom in the basement because if I ever even sell the house the new owners would possibly make my other rooms (gym, office) into a bedroom.


Not without adding egress windows and smoke detectors in those (sleeping) rooms.
You could just as easily reduce the number of bedrooms by making one an office and another a craft room.
See how their logic falls apart when trying to have a crystal ball about what "might" be done in the future by a new owner


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## ADAguy (Nov 24, 2020)

Be thankful this is not a change in occupancy from a pre 1920 SF to an ADA compliant commercial, They will ask for the sun, moon and a few stars.


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## classicT (Nov 24, 2020)

ADAguy said:


> Be thankful this is not a change in occupancy from a pre 1920 SF to an ADA compliant commercial, They will ask for the sun, moon and a few stars.


What are you talking about? An "ADA compliant commercial" septic tank? So confused...


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## Rick18071 (Nov 25, 2020)

Is this preventing them to issue a permit? There probably an appeals process. If you know a lawyer have them send a letter, that should get their attention.


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## jar546 (Nov 25, 2020)

This is easily fixed by the municipality by placing stipulations on the Certificate of Occupancy.  This is how I handled situations like yours in the past.


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## TheCommish (Nov 25, 2020)

The assumption are correct, the septic system is sized the pert test calculation for leach field size based on the number of bed rooms the house at 110GPD.

The BOH in MA. can  be an elected board there for answers to the voters at election time or appointed  by an authority and answers to them to a point, however is bound by the state septic code.  If you are aggrieved by the BOH employee/agent decision you can appeal to that to the authority

I my town, and I have never questioned it, a 9 room house is considered a 4 bedroom house and a 10 room house is considered a 5 bedroom house regardless of what you label the rooms. 

For the BOH a bedroom must have the expectation of privacy, bathroom and laundry rooms do not count as a room in the total room count.  

Suggestion ask the BOH if you put a deed restriction on the property that it will  only be considered a 3 bed rooms hose  would that ease their  minds?

What  the problem the BOH is heading off is the under design of a septic system for  the number of bedroom and the the sale of the house at a late date with the relator  misrepresenting the number of bedrooms in the house and the subsequent failure of the septic system, coming back to the BOH and why  did you let them do it. It happen all the time, been there, done that had to straiten the mess out more than once. .


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## jar546 (Nov 25, 2020)

Same in PA, septic systems are designed based on the number of bedrooms.  This is not the issue here, the issue is poor enforcement IF the story being told here is accurate.  You can't future proof your code decisions.


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## rogerpa (Nov 25, 2020)

Crystal balls are not allowed.


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## tmurray (Nov 25, 2020)

Similar situation here: septic is sized on the number of dwelling units and the number of bedrooms in the dwelling unit(s). Have a many bathrooms as you want. 

Other people must be way better at telling the future than I am if that is their basis for this requirement. Adding bedrooms is either a reno or a change of use and would trigger a plan review. We would catch the septic issue at that time.


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## No Soup for you (Nov 25, 2020)

Is there a shower in the basement bathroom? If so that is probably why they are flagging it. Remove the shower.

My health dept says that if the room his readily accessible to a bathroom w/a shower it "may" possibly be considered a sleeping room.


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## cda (Nov 25, 2020)

No Soup for you said:


> Is there a shower in the basement bathroom? If so that is probably why they are flagging it. Remove the shower.
> 
> My health dept says that if the room his readily accessible to a bathroom w/a shower it "may" possibly be considered a sleeping room.




I sleep in my living room, when the show is boring, is that a bedroom?????????


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## No Soup for you (Nov 30, 2020)

I sleep in my living room because I am married.....


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## mark handler (Nov 30, 2020)

Expand the septic system


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## classicT (Nov 30, 2020)

mark handler said:


> Expand the septic system


Why? He hasn't added a bedroom, so he has no legal impetus to do so.


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## steveray (Nov 30, 2020)

Here the "privacy" kicks in and a 5' cased opening solves that if needed...


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## Mrgomez7 (Dec 3, 2020)

TheCommish said:


> The assumption are correct, the septic system is sized the pert test calculation for leach field size based on the number of bed rooms the house at 110GPD.
> 
> The BOH in MA. can  be an elected board there for answers to the voters at election time or appointed  by an authority and answers to them to a point, however is bound by the state septic code.  If you are aggrieved by the BOH employee/agent decision you can appeal to that to the authority
> 
> ...


I’m not sure who is the higher power of my local office. I’m not sure how I figure it out. Any ideas?


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## cda (Dec 3, 2020)

Mrgomez7 said:


> I’m not sure who is the higher power of my local office. I’m not sure how I figure it out. Any ideas?



If the city has a web site

Look for the department head or whatever they call it

Look for the mayor or whatever they call it

Look for the city manager, if they have one


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## classicT (Dec 3, 2020)

cda said:


> If the city has a web site
> 
> Look for the department head or whatever they call it
> 
> ...


NOOO!!! Do not follow this.

First, it is not the city. It is the Board of Health which is probably at the county level.

Two, get a grip and work through things. No need to stir every politician up when you haven't even started asking the right questions yet.


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## No Soup for you (Dec 3, 2020)

I dont believe the question I asked on Nov 25th ..... "does this basement bathroom have a shower" has been answered.

I would bet that it does show a shower and that is why the health dept is considering it as a "possible" bedroom / Apt use.

If so.... delete the shower and move on.


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## classicT (Dec 3, 2020)

No Soup for you said:


> I dont believe the question I asked on Nov 25th ..... "does this basement bathroom have a shower" has been answered.
> 
> I would bet that it does show a shower and that is why the health dept is considering it as a "possible" bedroom / Apt use.
> 
> If so.... delete the shower and move on.


I see your point, but it shouldn't matter.

Get the AHJ to review their own code language. Only when a bedroom is added, can they require improvement.


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## Mrgomez7 (Dec 3, 2020)

classicT said:


> I see your point, but it shouldn't matter.
> 
> Get the AHJ to review their own code language. Only when a bedroom is added, can they require improvement.


my bathroom would have a shower as for use by the gym right next to it. the entire basement is 1200sqft with 2 exterior walk out doors and a stairwell to rest of home. I emailed them back on the 11/24 asking for the regulation that shows that "adding bathroom in a basement means added bedrooms" for the 3 time and still no response at all. Extremely unprofessional. I have to hide my phone number to get them to pick up the phone at the offices, and of course we aren't allowed to enter the offices. All this while im being polite still. Very soon ill have to use some back hand moves to shame them into doing there jobs correctly.
 and to the letter of the law.


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## No Soup for you (Dec 3, 2020)

I agree it shouldnt matter

You cannot penalize someone for something that "may" happen in the future.

But... My County Health Dept view any renovation or expansion of 100% of existing floor area, or 1000 sq ft or the addition of a bedroom requires their approval.

My health dept says that if the room, (any room, wheter you call it an office/rec room, gym that has privacy and is readily accessible to a bathroom w/a shower it *"may"* possibly be considered a sleeping room.

I dont always agree but sometimes I do... 

Especially when someone is putting an obvious 2nd floor master bedroom over an existing attached garage and calling it a Rec room or family room just to avoid having to deal with any septic issues.

I bet it is a shower that they are not liking...


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## Mrgomez7 (Dec 3, 2020)

Is that what the health department says or is it an established by law of your region? Because it being a law i can understand and would follow, but in my case im yet to be giving a legal reason why i cant do my proposed plan besides of incompetence.


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## fatboy (Dec 4, 2020)

Take it to their Board of Appeals, I would think that there would be intelligent life there.


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## No Soup for you (Dec 7, 2020)

Mrgomez7 said:


> Is that what the health department says or is it an established by law of your region? Because it being a law i can understand and would follow, but in my case im yet to be giving a legal reason why i cant do my proposed plan besides of incompetence.


Yes it was in an amendment to the County Sanitary Code effective Nov 7, 2008. I am in NY though...


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## Teeshot (Dec 17, 2020)

Jumping through hoops because the BOH is using a "heavy badge mentality" is BS in MHO. Go to the top and demand the code language to support their position.


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## HadToDoItToEm (Jan 6, 2021)

Just went through a septic approval for an expansion- during my research I found some interesting info.

*This doesn't apply explicitly to Mass*, but I imagine you might find something in the design manual for your state if they post one. In CT, specifically, there is a clause, as follows:
Per the CT Dep Public Health website
Design Manual Part 1 pdf (General Design Principles) Page 7 in the document, 12 in the PDF if interested


> DEFINITION OF A BEDROOM: Within today’s custom homes it is not uncommon to see exercise rooms , sewing rooms, studies, offices, dens, family rooms and other similarly labeled non-bedroom spaces shown on residential house plans. However, these same rooms can and are used as bedrooms when a family grows or the house is sold to another family which has different needs. *To make sure the home is served by a sewage disposal system which is sized properly, the system must be based on the potential number of bedrooms in the house.*





> There are certain standards by which a room can be deemed a potential bedroom. They provide: 1. A defined habitable space per Building Code requirements. The exception to this statement would pertain to obvious future habitable space (such as the unfinished second floor in a “cape” style home) which has the appropriate structural shell but has not been “finished” to meet Building Code standards for habitable space. 2. Privacy to the occupants. 3. Full bathroom facilities (containing either a bathtub or shower) which are conveniently located to the bedroom served. 4. Entry from a common area, not through a room already deemed a bedroom.





> Consideration should be given to the number of rooms in a new dwelling which may be used as bedrooms, even though the builder may not intend to use them as such. This is particularly true for homes built on speculation, since the builder has no control over who purchases the dwelling. Generally, all rooms on the second floor of a two story house, except for the bathroom and hallway, are considered bedrooms. Two bedrooms houses are allowed by the Public Health Code. However, such buildings would be expected to be relatively small in total floor area. A significant number of homes are being constructed with habitable space above a two or three car garage. This space may be accessible from either the first or second floors or both. They are typically labeled as second floor playrooms or bonus rooms, may be quite large in area and have the potential to be a bedroom. Using the above criteria, this space should be deemed a bedroom when access is from the second floor and a full bathroom is readily available. The same designation would apply if access were provided from both the second and first floor. It would not be designated a bedroom if the only way to gain access to this area above the garage were perhaps from a first floor stairway when the first floor does not have a full bathroom facility, or access is from the garage. Some latitude can be applied to the above when dealing with large homes, consisting of more than 5 bedrooms. It would not be unusual for this type of home to have a truly functional library, an exercise room, or a home office. However, before a bedroom designation can be made there should be some architectural feature which would typically exclude it from being used as a bedroom (such as, bookshelves around perimeter of library, sauna built into exercise room, etc.). Rooms on the first floor of two story homes are generally easier to deal with. If rooms do not have access to full bathroom facilities on the first floor or are constructed with large archways, or, where entrance is through another room, they would not be deemed bedrooms.





> Basement areas can be utilized for bedrooms in certain circumstances. Walk-out basements with large windows, sliding glass or conventional doors could allow the area to be converted to a bedroom in the future. The key to this situation is the availability of plumbing fixtures on this level of the house. Plumbing plans should be examined at the time of initial construction to determine if plumbing will be “roughed in” which would provide access for future bathroom facilities. *If a full bathroom (with a tub or shower) is shown on the plans then all rooms in the basement area shall be considered bedrooms when they meet the aforementioned “potential bedroom” standards.*


There's a bit more, but _imagine_ MA has a very similar stipulation. 
There may be an issue with your plans that screams an intention to make a bedroom area. I think they can request you to identify as reserve leach field for your existing conversion, and an actual addition to the leach field if there's a genuine concern for a bedroom. If you lack that area, you may be out of luck.
I'll try to do a cursory search for your state, but this is a pretty serious concern on their part, especially in communities where everyone's summer houses that have 500 square foot leach fields are overloaded with 4 person families. This is a VERY serious concern in the North East specifically. Contact someone from the state dept of health to get a general bearing.


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