Timeline

Timeline -Bolyston Board of Health/Ken Sydow Rocky Pond Realty Trust
Abutter Perspective

This timeline and associated documents were provided by a Rocky Pond resident and we are posting them because they raise serious questions about the inspection process -- and the ultimate protection of the pond. All questions regarding them should be addressed to Dr. Frank DeFalco. Dr. DeFalco is the internationally recognized expert who has helped residents and provided (generally ignored) input to Town of Boylston authories. Check back often because we will be adding additional materials related to the Board of Health and actions taken with regard to it.

February 22, 1999 New England Forestry Foundation transferred property, including 6 cottages on Rocky Pond, to Rocky Pond Realty Trust/Ken Sydow.

The subsurface sewage disposal inspections did not take place as required pursuant to 310 CMR 15.301 System Inspection.

For the next 13 months the abutters requested that the Board of Health enforce the law. We explained to the Health Agent that failure of the owner of a system to have the system inspected, or use any system after the transfer of title without an inspection is a violation of 310 CMR 15.000 Title V. The Health Agent said there really was no need for Mr. Sydow to have the inspections done because the systems were presumed to be failed systems.

November, 1999
An abutter met with the Boylston Health Agent, Dennis Costello, at the Brd of Health office to inquire about a permit for a septic system at 26 Boulder Way. (owned by Mr. Sydow) Neither he nor his administrative assistant were able to find a permit. Furthermore, he said he had no knowledge of an approval for one at 26 Boulder Way. A phone call to a previous health agent resulted in the same response-no knowledge of any approval for a permit. Another phone call to another former Boylston health agent who had no knowledge either. Yet, a person who was present when the septic was installed had told me that there was a septic on the property.

December, 1999 January 2000, February, 2000, many phone calls were made to Boylston Health Agent and DEP as to why inspections were not done as required by law.

March 16, 2000 System Inspections were conducted by Mr. Richard Wall of Shrewsbury, MA. (13 months after the transfer)
The Boylston Board of Health, at their meeting on 3/27/00 stated"Given the increasing objections and complaints of the abutters, Mr. Sydow had inspection reports prepared". (Board of Health minutes attached)At the time of the inspections 13 months had transpired and no action had been taken by the Boylston Board of Health nor the Health Agent. Apparently the inspections were only done because the abutters complained. Title V inspections are not done because abutters complain; they are done because it is the law.

The results of the inspections were: 5 systems failed and 1 had a conditional pass.

April, 2000 Dr. Frank DeFalco reviewed the reports, found many deficiencies and inaccurate information. The reports had been accepted by the Boylston Board of Health.

May 8, 2000 Dr DeFalco cited the deficiencies in a letter to Mr. Wall (the inspector) and asked him to file a corrective report on # 26 Boulder Way.(Mr. Sydow's property)

May 15, 2000 Dr. DeFalco contacted Mr. Wall to ascertain his decision. Mr. Wall declined to reinspect, stating he would only reinspect #26 Boulder Way if the Boylston Health Agent asked him to. The abutters knew the inspection was a "virtual inspection" with very little resemblance as to what was really there. Phone calls were made to Mr. David Boyer at DEP asking him to intervene in a reinspection of #26 Boulder Way, owned by Mr. Sydow, which had received a conditional pass.

July, 2000 Abutters sent photographs to Mr. Boyer showing that no digging nor excavation took place during the "inspection" of #26 Boulder Way, owned by Mr. Sydow.

August 2, 2000 A letter was sent to Boylston Board of Health from DEP requesting reinspection of #26 Boulder Way, owned by Mr. Sydow, and included guidelines for reinspection. There was a request that the Boylston Health Agent, Dennis Costello, observe the reinspection.

August 11, 2000 A letter was sent to Mr. Wall from DEP requiring a reinspection of # 26 Boulder Way, owned by Mr. Sydow, citing deficiencies and inaccuracies in the inspection. Mr. Wall had 30 days from August 11, to submit to the Boylston Board of Health and DEP a report addressing the deficiencies.

September 7, 2000 Mr. Wall reinspected #26 Boulder Way.

September 18, 2000 A visit to the Boylston Board of Health to obtain a copy of the reinspection. It was determined that they had NOT received a copy of the reinspection as was required by DEP and therefore Mr. Wall was not in compliance. We were not able to obtain a copy of the reinspection at that time.

September 18, 2000 We called Mr. Boyer inquiring about the reinspection results and let him know there was no report in Boylston. Mr. Byer said he would send Boylston a copy of the reinspection. Mr. Boyer said 26 Boulder Way received a conditional pass. The next day one of the abutters drove to Worcester to get a copy from DEP.

September 20. 2000 Some of the abutters asked Dr. DeFalco to reviews the Title V reinspection of # 26 Boulder Way.

September 21, 2000 Dr. DeFalco found the report to the incomplete and critical information was missing from the report. The ENTIRE SEPTIC SYSTEM at 26 Boulder Way is located within 50' of the pond and the owner's well was not located during the inspection. There is no permit on file that can be found for this septic system. Then is it legal?

Finally DEP failed the system at #26 Boulder Way.

October 23, 2000 The Boylston Board of Health and Mr. Sydow signed an Enforceable Schedule for compliance with Title V which gave him 5 years from the date he acquired the property to upgrade the systems. He was allowed 5 years because he said he would be putting in shared systems. Otherwise the time limit for upgrading failed systems is only two years.

At the Board of Health meeting on March 27, 2000 the board discussed the allowable time period for upgrading the systems. "..the Agent (Dennis Costello) discussed an option whereby Title 5 allows repair of proposed shared system configurations within 5 years provided certain interim measures (i.e. regular pumping) are taken. The Board discussed the various timing options and the financial constraints which may prohibit repair within a 2 year period.

So Mr. Sydow was allowed 5 years, instead of the usual 2 years from the transfer date because he said he would install shared systems and the enforceable agreement was for shared systems. We will see later on the Mr. Sydow changed from shared systems to individual systems but still had a 5 year timeline which probably helped with the financial constraints that the Board of Health was concerned about.

October 30, 2000
Letter from DEP from Douglas Fine, Deputy Regional Director, that there were still outstanding deficiencies in the title V inspection report for # 26 Boulder Way. Finally, the system at #26 Boulder Way was failed.

October, 2001
Enforceable Agreeement for upgrading the failed systems at #s 24, 26, 30, 32, 34, and 36 Boulder Way Action Date date listed Required Action (to occur no later than October 26, 2001 Submit plans to Sanitation Agent for each shared system proposed on the subject property

Early November, 2001
Calls were made to the Boylston Board of Health to view the plans for the septic systems on Boulder Way. They were not available to be viewed because Mr. Sydow delivered them to Mr. Dennis Costelloâ€™s (Boylston Health Agent) house and Mr. Costello had been driving around with them in his truck for over a week.

November 15, 2001
Plans were at the Board of Health. We were told the plans were for individual systems and not shared systems as per the enforceable
agreement

November 20, 2001
Frank DeFalco went to the Boylston Board of Health to observe the plans and the office was closed and would not be open until November 28th. Since the plans were not available to be seen until the 15th and the office is closed on Fridays, there was no day in which to see the plans. The secretary was on vacation. Frank DeFalco called the Health Agent, Dennis Costello and he suggested
Frank call a member of the Board of Health to open the office at a time when Frank was available to view the plans. Frank called the member of the Board and she said the plans were not at the Board of Health.

November 26, 2001
Board of Health Meeting. The board discussed the plans as submitted by Mr. Sydow. There were many different areas of concern expressed by the abutters:

1.Frank DeFalco expressed his concern that the plans had not been available for viewing prior to the meeting. The plans are considered public records and have to be available for the public to view. The board maintained that Dr.DeFalco could view the plans that evening but he felt that was not sufficient time.
2. The abutters addressed their concern about the plans being delivered to the Health Agent'ss house. The Health Agent stated that the plans were delivered to his house on October 26th, the due date according to the enforceable agreement. At that time he did NOT stamp the date so there was no proof that he had received them on that date. The plans were in his truck until November 15th when the secretary to the Board of Health called Attorney Price (Gertrude Falby's attorney) to tell him the plans were finally
in the office. Then the office was closed because she went on vacation. Frank DeFalco called the Boylston Board of Health office several times during the week of November 19th to schedule a time to see the plans. He received a call from Boylston Board of Health member, Wendy Lonstein, that the plans were no longer in the office. On November 25, the day before the board of
health meeting the Boylston Health Agent, Dennis Costello called and said he had received the plans again, delivered to his house on Sunday November 25. The abutters wondered just how common it is for applicants to deliver plans to the health agent'ss house.....
3. The abutters expressed concern regarding the fact that the plans had not been stamped Received, with the date and the fee(s) paid. They suggested that plans should come to the office with the filing fee paid and the date stamped at that time. The Boylston Board Health Agent did not know if the filing fee(s) had been paid or not. And he had not stamped the date of acceptance of
the plans which had come to his house.
4. Another area of concern was addressed by Attorney Robert Price, the attorney for Gertrude Falby. An Associate Member of the Boylston Board of Health, Mr. Steven Sears who was present at the Boylton Board of Health that evening, is an employee of Ross
Associates, Mr. Sydow'ss engineering firm. Mr. Sears talked extensively that evening about Mr. Sydow'ss septic plans and at times he appeared to be stating the Board's position and at other times Mr. Sydow'ss position. Attorney Price addressed his concern with Town Counsel, Gregory Angelini. Attorney Price cited the statute known as the conflict of interest law:Statute G.L. 268A, s. 19. He maintained that the Town of Boylston should remove Mr. Sears as an Associate Member of the Boylston Board of Health. Mr. Sears resigned from the Board.
5. Another concern addressed by Frank DeFalco was that the Board of Health should stamp the dates of acceptance of the plans because plans must be acted upon within 45 days of receipt or they are automatically approved. Neither the Board of Health members, Health Agent, or Mr. Sears, the associate member were aware of this.
6. The Boylston Board of Health felt that they could vote on the septic plans that evening but the abutters protested and the board decided to ask Town Counsel, who was at another meeting in the building, for an opinion. He advised the Boylston Board of Health that the public should have some access to public documents and advised them to act upon the plans at their December
18th meeting.

November 28, 2001 Dr. DeFalco sent a letter to the board of health stating: "I have attached copies of the appropriate sections of the State Statutes and have highlighted the 45 day reference. ...It is surprising to note that members of the Board of Health, the health agent, and the associate member of the Board, who is also on the staff of Ross Engineering, do not know of the 45 day statute regarding aciton on proposed residential septic designs."

Week of December 3, 2001
During this period of time Dr. DeFalco had a chance to review the proposed individual septic systems designs. (no longer was Sydow submitting plans for a shared system) The septic designs are based on the premise that the existing 6 cottages have 2 bedrooms. The official assessorsâ€™ reports list each cottage as having 1 bedroom. This indicates an increase in flow by a
factor of two. Full compliance with Title V is required for any increase in flow by the change from 1 to 2 bedrooms. The plans as submitted do not show the reserve area locations.

Dr. DeFalco had, during this period, checked with health agents from other towns nearby, checked with a DEP employee, and a Boylston resident who is the full time health agent in a nearby town and unanimously they all agreed the septic designs needed a reserve area and full compliance to Title V. Unanimously they said if they were presented with those designs they would
check the cottages to verify if there were 1 or 2 bedrooms and then they would be assured the plans were adequate.

On the morning of Decemberr18th, the day of the Boylston Board of Health meeting in which Sydow would present his septic plans again Frank DeFalco met with Dennis Costello, the Boylston Health Agent, to explain that the septic designs did not meet TitleV requirements because of the assessors reports listing the cottages as 1 bedroom homes. Mr. Sydow'ss engineers designed
septic plans for repair of the systems when they should have designed an upgraded system based on the increase in flow.
Mr. Costello, the Boylston Health Agent, then faxed a copy of Frank DeFalco's letter to Ross Engineers making them aware of Frank DeFalco's assessment that the septic designs were not sufficient for new 2 bedroom homes.

December 18, 2001
At the Board of Health meeting, Ms. Carter from Ross Engineers, stated that Mr. Sydow had told her that all the cottages had 2 bedrooms and she based the plans on that information. She said she knew that #24, and #26 Boulder Way had 2 bedrooms.

The abutters asked the Board to postpone making a decision until they had time to verify the bedroom situation. They could find out if the cottages have 1 or 2 bedrooms and then they would know for sure if the septic designs were adequate. The Board refused to do that and unanimously approved the septic designs.

The abutters were not surprised that the Board accepted the septic plans that do not meet Title V. Since Mr. Sydow acquired the property they have not enforced Title V . It took 13 months for the Board to agree that the septic systems need to be inspected.

The board had already entered an enforceable schedule for with Mr. Sydow to replace/install a shared system by February 2004. At the December 18 meeting they amended the enforceable schedule to follow a two year time table thereby coinciding with the two year expiration date on the plans. Now he is installing individual systems but has until January 1, 2004 , 5 years from
acquiring the property.

Ms. Falby filed a lawsuit in Superior Court claiming the proposed plans are inadequate and illegal for new 2 bedroom homes on the pond and will pollute the pond. There are no reserve areas which are mandated by full compliance.

The Boylston Board of Health and the Health Agent have found ways to help Mr. Sydow skirt Title V right from the date of transfer when they did not enforce the inspection requirement, accepted false reports from the inspector, did not stamp his plans on acceptance, and did not even know if he paid fees with the plans because they were delivered to the health agent'ss house, and were
concerned about the financial constraints of Mr. Sydow which might prohibit repair within 2 years to comply with Title V so allowed him 5 years. These practices really need to be looked at and perhaps changes need to occur .