OBSERVER CORPS REPORT JUNE 2025
The Zoning Board of Appeals (ZBA) is appointed by the Select Board to consider special permits, variances and appeals of the Building Commissioner’s decisions. ZBA is also the permitting authority for developments under the 40B law for affordable housing; input from other town boards is members and two associate members are appointed for five-year terms. There is a Zoning Administrator and an Assistant Administrator who handle much of the paperwork. ZBA operates under the Open Meeting Law with all deliberations made in public open meetings, typically recorded and broadcast by FCTV, with files for each application available for review online or in the office.
ZBA is currently composed of Susanne Murphy chair, James Morse vice chair, Frank Duffy clerk, Scott Peterson and Marc Finneran voting members, and Anthony Petrucci and Nicholas Hanney alternates. Approval requires a supermajority (4 of 5) except for 40B and mixed-use developments which require a simple majority (Chapter 358 of the Acts of 2020).
The majority of cases heard are special permits related to pre-existing non-conforming lots; lots and buildings existing prior to May 19, 1959, according to the adoption (1979) or modification of the Zoning Bylaws (periodic). These are 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. A great many homes in Falmouth were built before the Zoning Code raised the minimum lot size to 40,000 sf in most zoning districts, and modification to any of those homes requires a special permit. In these cases, the Board’s goal is 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.
Variances are required to do something not permitted by the Zoning Code; these are rare and may be approved if a hardship can be demonstrated.
Affordable Housing developments are permitted under the 40B law which allows ZBA to negotiate waivers from any of the Zoning Code restrictions, typically density, building height, setbacks for property lines and others. 40B developments may be proposed in any zoning district, although the law gives preference to locations close to public transit and recreational facilities. These developments are often complex and controversial, requiring many meetings to reach agreements and hear abutters’ concerns. ZBA’s strategy in the past has been to negotiate the best possible project with the developer and condition approval on any essential changes. The developer may appeal denial or conditions that are onerous to the State Housing Court who tend to favor affordable housing needs over issues of local concern.
Since June 2024, ZBA has heard about sixty new applications including six 40B developments and several appeals of the Building Commissioner’s decisions. Approval of the Falmouth Southerly 40B project in July increased the affordable housing inventory enough that Falmouth entered “Safe Harbor” and gave the ZBA more leverage over 40B projects filed after that date. As a result, only one new 40B project has been filed: meetings have dropped back from near weekly to a more normal once or twice a month.
A change in the Title 5 septic regulations in 2024 has focused great scrutiny on nitrogen- sensitive estuaries and septic systems. ZBA has been urging applicants with new construction to include innovative/alternative (I/A) septic treatment systems in their plans, particularly in areas where there are no plans to extend the sewer system. Two of the 40B projects approved this year have included I/A septic systems, and two will be or will soon be on town sewer. The town is developing watershed permits for approval by DEP and it is likely that new construction in nitrogen- sensitive areas will be required to have I/A septic systems; the health board is already requiring applicants to show that they have space for such systems in the future.
Abutter’s comments on applications are heard and weighed carefully by ZBA; applicants are encouraged to share their plans with abutters prior to opening the hearing to address concerns as much as possible.
One of the highlights of this period was the approval of a special permit for the YMCA on Brick Kiln Road in a single hearing. This Observer has never seen a project of this scope and complexity approved in a single hearing.
ZBA held two workshops this year, one with the Select Board to discuss 40B and LIP (local Initiative Programs) projects and one to discuss how much they should press for I/A septic systems.
—Respectfully submitted,
Richard Johnson
