OBSERVER CORPS REPORT 2023
The Zoning Board of Appeals (ZBA) is appointed by the Select Board 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 25 meetings plus a site visit since my last report in June 2022; I attended 22 of these.
Currently James Morse serves as Chair, Scott Peterson as Vice Chair, Susanne Murphy as Clerk, Frank Duffy and Marc Finneran as full members and Gerald Potamis as Associate Member: there is a vacancy for another Associate Member. Decisions require a supermajority (four of five votes); associates are designated to vote on applications whenever fewer than the five full members are present. The Board also rules on 40-B affordable housing projects which require a simple majority (three of five).
The 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. A great many homes in Falmouth were built before the Zoning Code raised the minimum lot size to 40,000 sf, and modification to any of those homes require 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, such as placing an accessory structure in the front yard when the back yard is constrained due to wetland issues.
The Zoning Code was re-codified in October 2021 and that effort is continuing. The purpose was to correct inconsistencies and clarify meanings. There are areas of ambiguity: wood decks and stairs have always been considered structures while stone walls, steps and pavements have not (except in Historic Districts). Last year stone or masonry steps needed to enter a building were newly being interpreted as structures, impacting setbacks to lot lines and maximum lot coverage by structure on small lots; this position was reversed at a hearing in May 2023. There is confusion about where to measure structures: foundations are typical but corner boards or roof overhangs may apply in non-conforming setbacks; window wells seem to be ignored. The Board consistently advises applicants to meet with abutters and resolve noise and screening concerns prior to a decision, often requesting landscaping plans to be submitted.
The ZBA membership was relatively new at the start of this reporting period and needed to come to agreement on procedural issues such as staking of the full lot boundaries as well as proposed work before site visits; many hearings were continued to have the property bounds fully staked. There were several court-ordered remands upon appeal of ZBA denials, and Board Members are sometimes in disagreement as to the intent of certain Zoning Code sections; for example, do changes to a building height or length in a location where it is closer to the property line than set-backs allow increase the non-conformity?
Over 100 cases (appeals, variances, special permits) are typically filed each year. 40-B applications for affordable housing were rare in this reporting period although the need for affordable housing is increasing. At a few hearings one full member and the associate member were absent, requiring a unanimous decision to approve a project: a few applicants chose to continue to a later date rather than risk a split vote and denial. One hearing date had only three members present, causing all the hearings to be continued.
Richard Johnson, LWVF Observer, June 6, 2023