OBSERVER CORPS REPORT 2021
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 25 meetings since my last report in June, 2020, all conducted remotely via ZOOM, including a special meeting of the ZBA with the Building Commissioner and Town Manager. 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. Restrictions on travel through the pandemic have yielded nearly perfect attendance at ZOOM meetings by the members.
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. 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.
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 a rule change in this year requires the hiring of outside peer engineering review. During the last year, 40B applications have included projects on Shore Street, Wings Pond, the Village at Brick Kiln, Rebecca Ann Lane, Eco Land Development and the Falmouth Housing Trust. 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 40B project at Shore Street was approved with so many onerous conditions that the developer chose not to appeal, but to pursue conventional construction. The Wings Pond owner has not responded to numerous questions from the ZBA through the developer and will likely be denied. There have been irregularities on the Falmouth Housing Trust 40B on the Town’s side which are in the process of being resolved. The other 40B projects seem to be progressing smoothly.
The meeting of the ZBA with the Town Manager and Building Commissioner was called to discuss several recurring concerns. The Health Department and Building Department sometime interpret rooms differently (bedroom, office, studio) with confusion as to requirements for secondary means of egress and maximum bedroom count as it affects septic systems. There was discussion of studio spaces with full baths and kitchenettes, which might become accessory apartments in future though they do not meet the conditions of the zoning code. There have been instances when the Building Department has not fully enforced conditions in the Special Permits: the ZBA administrator and Building Department agreed to coordinate special permit building permits more closely.
This Observer has several concerns. Meetings typically run over 3 hours, partly due to the ZOOM platform but also because one member tends to be quite repetitive. One controversial project was withdrawn without prejudice, then revised and resubmitted; the Chair chose not to let the full voting members review this new application but assigned only the members/alternates who had heard (and objected to) the withdrawn application. An applicant who appealed a ruling by the Building Commissioner withdrew his appeal, but the Board denied the withdrawal to seek more information; the withdrawal was accepted at the next hearing with no comment from the Board. In one hearing, a ZBA member pointed out that submitted photographs did not agree with site observations on the day of the hearing, accusing the owner of misrepresenting the project: the hearing (which had been closed) was reopened and continued, and the application was ultimately approved.
Richard Johnson, LWVF Observer, June 3, 2021
