OBSERVER CORPS REPORT 2020
The Zoning Board of Appeals (ZBA) is appointed by the Selectmen to rule on appeals from the Planning Board or Building Commissioner, variances from the Zoning Code and special permits. There are five full members and two associate members, each appointed for a five year term; there is a full time Zoning Administrator. The Board typically meets on the first and third Thursday of the month; meetings are public and agendas must be published 48 hours or more in advance on the Town website. There have been 26 meetings since my last report on June 16, 2019, including one joint meeting with the Planning Board and one training workshop. Currently TJ Hurrie serves as Chair, Ken Foreman as Vice-Chair, Robert Dugan as Clerk, Ed Van Keuren and Scott Zylinski as full voting members, and Mary Barry and James Morse as associate members.
The great majority of cases heard are special permits related to pre-existing non-conforming lots; lots and buildings existing prior to the adoption (1979) or modification of the Zoning Bylaws (periodic). These were for modifications to structures, additions, raze and re-construct, etc. in cases where the lot size, lot coverage by structures, or setbacks do not comply with current bylaws. In these cases, the Board’s goal it to make sure the requested changes do not make the structure less compliant and do not adversely affect the neighbors. Abutters’ expressed concerns or support are taken under consideration before a decision is reached. The Board often requests changes to the design to meet these goals, and applications are typically approved with conditions.
Less numerous but more time consuming are applications under the Affordable Housing bylaw, known as 40B applications. In these, a streamlined permit process gives ZBA the permitting authority rather than individual permits through Planning Board, Conservation Commission, etc. Comments are sought from all Town departments, but ZBA has the task of negotiating the best possible project with the developer, granting waivers from various Zoning regulations needed to produce affordable housing. These waivers typically include units per acre, setbacks, lot coverage by structures, combined septic systems and others. Applications often involve robust abutter input, and sometimes the hiring of outside consultants to address architectural style, engineering, traffic impact or economic feasibility. During the last year, 40B applications have included projects on Shore Street, North Falmouth Highway and Crooked Meadow Road. Each involved multiple continuances for modification or additional information. The ZBA typically negotiates the best project they can, then imposes conditions for further improvements to approve the project. This often makes the project unaffordable in the developer’s opinion, who then sues in the Mass Housing Court to set aside the conditions: this process can take several years to resolve. The Lyberty Green 40B project approved in 2018 has just been returned to ZBA by the Housing Court which found the number and scope of conditions to be excessive and unfair.
A significant case this year involved an Appeal of the Building Commissioner’s permit to build a house on a lot that three previous ZBA findings had found to be unbuildable. These earlier decisions were not recorded with the deed, not obvious to the Building Commissioner, but were brought to his attention by the Applicant very early in the construction process. The Building Commissioner did not pull the permit, and construction proceeded. This case involved many hearings and input from Town Counsel, much of it revolving upon the Applicant’s standing in the case. The ZBA overturned the building permit and instructed that the house be removed; this is being appealed to a higher court.
In January, Board Member Gerry Potamis announced that he would be away for two months and asked that these absences be excused; according to Town Charter, more than four concurrent unexcused absences creates a vacancy and the absent member is off the board. In this case, there were seven planned meetings and the Board declined to excuse the absence: the vacant position was advertised by the Select Board and ultimately filled by Scott Zylinski for the remainder of Potamis’s term. During February, March and part of April, the Board was down to four full members and two alternates, and there were a number of meetings in which another full member was absent for travel. Most applicants chose to request continuances for those meetings, as approval requires four positive votes and only members who have been present for all hearings are allowed to vote (i.e. a unanimous vote). This backed up the work of the Board and prompted at least one applicant to request a withdrawal without prejudice. The Board is considering a change to their rules to remove the option of a continuance if the full board is not present; it has always been the Board’s choice but was so much assumed that one applicant told his client and an abutter not to attend the hearing as it would be continued.
In March, because of the Covid-19 Pandemic, Town Hall and ZBA Hearings were closed to the public. The Attorney General approved changes to the law to permit remote hearings for permitting Boards, via ZOOM technology which allows for remote participation. This has been successful over the last five meetings, though public comment has been less than normal. Public comment is possible by correspondence in advance or by the chat function in ZOOM in real time: few people use the latter.
This observer found two instances troubling, both with 40B projects. On North Falmouth Highway during the final composition of conditions, Ken Foreman proposed removing one of the units because a retaining wall needed to build it was in his opinion too close to the property line, which would significantly impact the economic success of the project. The applicant chose to mediate a change to the Permit to restore that unit with participation and agreement of Town Counsel, two ZBA members and the affected abutter, requesting a change in the permit to add more detailed retaining wall engineering details and a bond to repair abutter’s land and add landscape screening. The Board voted May 28 three to two to accept the mediated revision over advice from Town Counsel and the two ZBA members involved. Initially, it was thought to have failed as all votes before the ZBA require a supermajority vote (four to one). At the following meeting the record was corrected as 40B projects require only a simple majority to pass.
The second instance is on the Shore Street 40B and involves one member’s insistence the affordable and market rate units be identical, not just similar, in bedroom count and garages. This caused the developer to increase bedroom counts from 3 to 4 in one affordable unit (where guidelines prefer 2-3 bedroom units for affordable housing), comparable to market rate units. One market rate unit has a two-car garage while all others have single garages, and it is not yet clear if ZBA will allow this variation. The applicant noted that the Mass Housing had approved the earlier proposal with dissimilar bedroom and garage counts.
One last intricate case is a housing development on Pam’s Way, permitted years ago under a zoning bylaw which has since been rescinded. Two vacant lots were to become buildable if certain fees were paid to an affordable housing entity before they were developed. A proposal is now in place to do so, but there is disagreement over which entity controls who receives the funds. The original permit gave Planning Board control but since the bylaw change, ZBA would seem to have the authority. This is still to be decided.
Richard Johnson, LWVF Observer