Passing muster on septic is first step in winning approval for flood zone project

February 25

(Dan Wittenberg)

Dan Wittenberg bought about 13 acres of land in the Potomac River flood zone because of his love of sailing and windsurfing. Eight years ago, with no special real estate or construction skills, Wittenberg built an 800-square-foot cottage there (the maximum permissible on that 566,000 square foot lot). Now he’s chronicling his attempt to build something special that will pass regulators’ muster on a just-purchased one-third of an acre waterfront parcel next door. This is his third installment.

Many readers identified waste disposal as the logical starting point for any and all planning assumptions on this project. Once again, the crowd-sourced brain trust is on target. Sewage flow does, indeed, dictate building permit flow.

Sewers have been around for almost 5,000 years. The ancient city of Mohenjo-Daro in India even had (no kidding) flush toilets back in 2600 B.C. Since that time, the course of human history is pretty well summed up by the adage “civilization follows the sewers.” That refers to cultural as well as real estate development. But in St. Mary’s County, where more than 70 percent of the homes are still not served by public sewers or public water, the phrase “civilization follows the septic permit” is much more apt.

There a septic permit is the “philosopher’s stone” that can turn lead (or at least swampland) into gold. It is the single most important determinant in whether a lot is deemed buildable — and hence valuable. In order to get a septic permit a lot has to “perc.” That means it has to pass a percolation test administered by the county’s Health Department.

Routinely, the test is only given during the wet months of February, March and April, and it essentially entails pouring a glass of water into an 18-inch deep hole in the ground and seeing how long it takes for the hydrous stuff to disappear into the hydric soil. The water table in most of the coastal part of the county happens to be only 10 inches below its clay surface. There is no chance that either my lot or any other lot on my street can pass the current perc test (mine flunked about a year ago). In fact, all the houses there are “grandfathered” septic-wise (i.e. granted an exemption from the rule by virtue of their existing use before that rule was enacted).

My lot, too, had such grandfathered rights attaching to its still intact underground septic tank. Those rights, however, may have deceased along with the cottage itself when the owner-once-removed failed to rebuild his defunct cottage within three years of Hurricane Isabel. In the eyes of St. Mary’s County, such inaction can constitute a technical “abandonment” of a property which would allow its grandfathered septic permit to lapse. It seems that hapless homeowner may have also allowed his property tax payments to lapse since the next owner (the guy who sold it to me) picked up the place at a county tax sale for just a fraction of what I paid him.

There are some wonderful stories about the occasional friendly hurricane (or unscrupulous landowner) depositing huge mounds of sand from the river’s bed or bay’s floor atop a formerly “unpercable” lot and thereby garnering a coveted pass on the perc test. Since the odds of such a miracle happening (if it occurs via front-end loader there’s potential jail time involved) are about the same as a public sewer line being installed down there. I’m operating under the assumption that my lot may be forever branded “DNP”  (does not perc).

That acronym is the bureaucratic kiss of death to a land developer since it means that a lot will not be permitted to have a septic system and hence a water well. Without those two amenities, no structure built can ever receive an “occupancy permit” — which is the county’s official blessing of a legally habitable residence. For me, that circumstance provides quite an incentive for the exploration of alternative means of sewage disposal and water collection.

An outhouse could easily solve half the problem but an outhouse is outside of the law in St. Mary’s County. That is unless you happen to be Amish. The 200 or so Amish families living in the county can qualify for a religious exemption to that sanitary law (apparently an outhouse is a God-given rather than a grandfathered right). Even with that perhaps unconstitutional exception, the issuance of septic permits is still far and away the county’s most effective and widely used tool in controlling development.

Instead of trading in my Subaru for a horse and buggy or pursuing a discrimination challenge in court, I’d rather take the technological high road and consider the use of dry toilets, rainwater catchments and cisterns. That technology is certainly available out there.

Besides, I don’t necessarily require an occupancy permit for my intended use. As previously mentioned, I already have a properly certificated house that lives practically next door so I do have the luxury of attempting to build something unconventional here — something that might even be called an architectural “folly.”

But whether folly or not, environmental rules stipulate that nothing can be built within 100 feet of the water’s edge. My lot, like every other one on the street, began its subdivided life back in 1928 at a length of 185 feet. Since then, the Potomac River has been steadily eroding the lot down to about 130 feet. Given the 25-foot setback requirement from the road and two 15-foot setbacks from neighboring lot lines, that would leave almost negative space (aside from in certain dimensions predicted by String Theory) on which to build. Happily, however, the lots are legally grandfathered so we’re not obliged to defy any laws of physics — and gravity shouldn’t interfere too much with the mandated 40-foot height limitation.

Nevertheless, the lot is still subject to very strict rules about the amount of impervious surface (meaning any ground cover — including elevated decks — which prevents rain from directly hitting the soil) that can be created within the “Critical Area.” The Critical Area is  the state’s designation for anything within 1,000 feet of a shoreline.

Inside the Critical Area, my  lot’s particular zoning is also (and  hierarchically)  Rural Preservation District / Limited Development Area / Buffer Management Overlay. This multiplicity of zoning allows for a theoretical maximum of 31 percent lot coverage of my 1/3 acre — or 4,650 square feet. The minimum building area, however, could be the 670 square foot “footprint” of the existing cottage.

Naturally before I can build anything on the site, that existing cottage will need to disappear. I’m planning to let the local fire department burn it down for practice — which would save me demolition costs, dumpster fees and possibly even beget a tax deduction. Of course, that, too, would require a permit.

But at least I can start applying for permits now that my approved lot consolidation agreement has been officially recorded (for a $60 fee) — which allows my single Transferable Development Right (TDR) to legally cover development of the entire property.

With this latest batch of constraints in mind, I’m wide open for any suggestions and designs from the reading public. Keep up the good work.

Read Dan Wittenberg’s previous posts:

Pontoon house? Stilt house? Geodesic dome? ISO ideas to develop flood zone.

The quest to build something very cool in a very hazardous area

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