OBSERVER CORPS REPORT 2024
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 considered but ZBA has final permitting authority. Five 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 on-line or in the office. Normally the board meets twice a month, but has met nearly weekly this year due to the volume of applications, particularly 40B applications. All decisions of ZBA may be appealed within 20 days of publication.
ZBA is currently composed of James Morse chair, Scott Peterson vice chair, Susanne Murphy clerk, Frank Duffy and Marc Finneran voting members, and Gerald Potamis and Anthony Petrucci alternates. Approvals require 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 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[1]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.
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. 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.
As of March 11 2024 Falmouth has 8.13% affordable units among its housing stock: the threshold for permanent “Safe Harbor” from 40B development is 10%. The threshold for safe harbor is based on achievement of benchmark goals for affordable housing, where the Town can qualify for a 1-year, 2-year, or ‘permanent’ safe harbor (upon certification of attaining 10% affordable housing).
Since June 2023 ZBA has heard 74 new applications including four 40B developments and a number of appeals of the Building Commissioner’s decisions. Most of the hearings have been dealt with effectively but several excited intense public scrutiny and questionable behavior on the part of several board members. The Committee Handbook Code of Conduct calls upon all members to treat their colleagues, applicants, and their representatives with courtesy and respect despite differences of opinion, and to never engage in personal insults. This standard is often violated by one member in particular; several other members have done so to lesser extent. Those interested might review the FCTV archives of the meetings on June 22, 2023 (start at 2:22 hours and for the next five minutes), April 25, 2024 (start at 2:40 hours until the end) and May 30, 2024 (start at 2:30 hours and for the next five minutes). At the hearing on May 23, 2024 Town Counsel advised that the project under discussion was consistent with the bylaw; one member disagreed and stated that members who did not vote with him would be exceeding their authority (start at 1:10 hours).
In several particularly contentious 40B hearings the Chair made minimal attempt to control hecklers from the audience: members and special counsel several times engaged in shouting matches with the applicant, or posed questions/comments in sarcastic ways. One applicant suggested a Board Member had behaved so badly that he should be censured or removed from the Board: the Chair directed him to complain to Select Board.
Select Board should consider that option and carefully review the behavior of sitting board members before re-appointing them to another term.
Report submitted by Richard Johnson
