ZBA Strikes Down Appeal For Cease And Desist At Falmouth Pickleball Courts
In a 4-1 vote, the Zoning Board of Appeals on Thursday last week chose to uphold the building commissioner’s decision to not issue a cease and desist order for the pickleball courts at the Lawrence School.
Victoria Dalmas, an attorney from Senie and Associates representing residents on Lakeview Avenue, went before the board on December 2 to appeal interim building commissioner Eladio Gore’s September 29 decision to not issue the cease and desist order on the grounds that pickleball is currently out of season in respect to weather and daylight. Another factor in his decision was the town warrant item seeking $50,000 to install attenuation sound barriers at the court, which was struck down at the November 15 Town Meeting.
Upon taking the lecturn for a presentation to the board, Ms. Dalmas said up front that none of her clients have anything against the game of pickleball or its players, a sentiment that was echoed in the public testimony that followed.
“This is really about the noise issues,” she said.
Ms. Dalmas said that since the pickleball courts opened in November 2020, her clients have been subjected to continuous and injurious noise from the courts, which the residents say they were not aware was being implemented prior to its being up and running.
“To the best of our knowledge, there was no site plan review or acoustical analysis undertaken in pickleball siting at the Lawrence School premises,” Ms. Dalmas said. “Site review would’ve resulted in notice and [an] opportunity to be heard regarding the proposed use.”
Ms. Dalmas’s presentation was detailed and included excerpts from affidavits taken by her clients and other surrounding neighbors. She represents some of the residents who live closest to the courts: John Churchill of Lakeview Avenue lives 80 feet away, Michael B. Galasso of Lakeview Avenue lives 175 feet away, and Robert and Stephanie Mastroianni live 350 feet away. Ms. Dalmas cited Spendiarian and Willis Acoustics and Noise Control, LLC, which said that courts within 350 feet require abatement, and courts within 150 feet require “careful abatement designs to avoid complaints.” Massachusetts Department of Environmental Protection standards categorizes noise nuisances as anything above 10 decibels (dB).
Ms. Dalmas said that her clients are unable to enjoy their homes because the “pop, pop-pop” of pickleball permeates the walls and windows and makes enjoyment of their outdoor spaces nearly impossible.
“They are also experiencing health issues, including increased stress and anxiety levels, headache, and sleep problems,” she said. “Daytime napping during pickleball is not an option. Ultimately, they are leaving their homes.”
Zachary Weiss, an acoustical engineer with Noise Control Engineering and author of the acoustical analysis conducted by the applicant, explained the one-day acoustical analysis that was conducted. He said that with impulse noises such as the impact of a pickleball ball on a hard paddle, a different technique must be employed when averaging all of the sound samples across a time period. For their analysis, they averaged the sound levels at every 10th of a second, which is more comparable to the human ear. Their one-day study, which was conducted on a Saturday, revealed that one hour of pickleball play produces thousands of 10 dB (scale A) peaks above ambient noise levels.
Other notable testimony came from the abutters themselves through previously submitted affidavits and video footage taken from the property of Mr. Churchill, in which he recorded the intrusive sounds at various areas on his property. Susan Keleher, a real estate agent with Kinlin Grover, said that she believes that the injurious noise of pickleball greatly impacts the value of Mr. Churchill’s home, should he choose to sell. She said that typically, buyers will dismiss houses based on objections and that noise of this caliber would likely be seen as an objection by many potential buyers.
Ms. Dalmas also included quotes from the minutes of the September 8 meeting of the recreation committee, in which two board members said they visited the site during pickleball play and were “horrified” by the noise they heard. Ms. Dalmas quoted her client, who said the residents “never know when it’s going to begin or end.”
“It’s compelling because it speaks to the very nature of impulse sounds,” Ms. Dalmas said. “They put you on edge.”
Ms. Dalmas went over her allotted 15 minutes to address the board, but was awarded another 10 to make her point, much to the exasperation of the small audience of abutters and pickleball players that had gathered in the select board’s meeting room. Ultimately, she requested that the board overturn Mr. Gore’s decision and issue a cease and desist order until the matter can be taken up by the planning board, where it would undergo site plan review, something she asserted should have happened in the first place. The cease and desist order would mainly serve to relieve the afflicted residents from the possibility of enduring pickleball noise every day until such a time that a solution is reached.
Frank Duffy, town counsel for Falmouth, asked the board to uphold the building commissioner’s decision, saying it was made in good faith after consultations with the neighbors and Joseph Olenick, recreation director, and committee members.
“The commissioner’s decision might not be what the neighbors want but if we look at the whole picture of what’s going on here, it is a reasonable response and I believe it should be worthy of being affirmed,” he said.
Mr. Duffy said the recreation committee estimates that there are about 400 pickleball players in town, so they must weigh the complaints of the residents against the greater good of Falmouth residents who have the right to use the courts. He also cited the shortened hours of play imposed by the recreation department, and signage posted at the courts as evidence of good faith on Mr. Gore’s part that this would quell the problem. He also said that Mr. Gore did have access to the applicant’s acoustical sound study at the time of his decision, and he did not consider it to be truly representative of the situation. The board later agreed that the one-day study—which Mr. Weiss said was limited in time due to funding—is not representative of definitive proof of a Massachusetts DEP violation.
Mr. Duffy also made a point to say that he was surprised to see the same residents named in this appeal argue against funding for sound barriers at Town Meeting.
“It’s something that I’ve actually never seen before and I’ve been to many Town Meetings, over a hundred,” he said. “Rarely do you see people argue against something that’s intended for their benefit.”
Ms. Dalmas and Mr. Weiss spoke to this point and said that the town should not spend money on sound barriers that might not not even solve the problem. Mr. Weiss said that while it is possible that barriers could help, they cannot know for sure without doing a study beforehand.
“I think the sentiment is that the courts are just far too close to residences in this situation,” Ms. Dalmas said. “We don’t believe that sound curtains are going to solve the problem; that’s our conclusion. And $50,000 is a lot of money to throw at something particularly without having done studies in advance to determine that it’s actually really going to work.”
Mr. Duffy said that Mr. Gore’s decision did not close the door on the matter and that there is still a willingness of the town, the schools, and the recreation committee to work with the residents to find a solution. He did, however, raise the Dover Amendment, which would protect pickleball play at the school should it be picked up as part of the physical education curriculum.
“I’m not arguing that pickleball by the public at large is an educational purpose, but I am saying that were the schools to adopt pickleball as a physical education component of this curriculum, then it could be conducted on the property under the exemption of the Dover Amendment,” he said.
Seven members of the public spoke at the meeting and offered a mixed bag of testimonies for the board to consider. Mr. Galasso, Mr. Churchill, and neighbor Dustin Fauth of Lakeview Avenue attested to the stress of living under the constant threat of intrusive pickleball noise. Mr. Fauth, a 4th-grade teacher, said that it has gotten to the point where he is considering moving out of their home because he and his family can no longer live under these conditions.
“We have nothing against pickleball,” he said. “Pickleball is an awesome sport, I play it. It’s quite fun, it’s great health, great social support for everybody… none of us are angry at pickleball players, it’s just very difficult to live with this daily.”
Mr. Galasso said there was no communication from the recreation committee, despite previous testimony from the chairwoman of the committee, Sandra Cuny, who said the issue was part of public discourse for two years before the courts opened. Ms. Cuny also said that they received no complaints about the court until after they had opened.
Maria Moniz, a pickleball player who lives on Ludlam Street, took to the lecturn in an attempt to clear up confusion over the operating hours of the courts. She said that because school is going on, the players only have between the hours of 3 and 5 PM to play. The set schedule is 9 AM to dusk on Monday and Wednesday and Saturday for the shared pickleball/tennis courts and the same hours for the one dedicated pickleball court.
“All we have and all you people are bothered by is the Saturday and Monday and Wednesday from 3 to 5 and it gets dark at 4,” Ms. Moniz said. “So please, don’t cease and desist these few hours that we get to use that wonderful new court and those other courts.”
Mr. Olenick further clarified that the principal of Lawrence School had told him that it was okay for players to use the courts during school hours as long as the school was not using them that day and that a sign has been put up letting players know if the courts are open that day.
Another pickleball player, Judy Pender, said that she has a petition with 236 names on it to relocate the courts, and wants to see Falmouth model their pickleball courts after Mashpee and Sandwich, which are less of a bother to residents as they are not in high-density neighborhoods.
After much testimony from both sides, the board was mostly in agreement to uphold Mr. Gore’s decision on the grounds that it was a reasonable response to the situation at the time and that the willingness to work toward a better solution was clear from all parties. The board also feels that a one-day acoustical analysis study is not substantial enough to act as evidence of continuous, daily noise and would like to see a longer study that clearly establishes the sound differentials between ambient noise, tennis play, and pickleball play.
“I am sympathetic with the neighbors, I think it’s a bit premature to rise to the level of cease and desist order before this board,” said Terrence J. Hurrie, chairman of the board.
The only dissenting member of the board was vice-chairman Edwin P. Zylinski, who argued that in a situation like this, the “greater good” argument is not applicable.
“This is a recreational activity and you’re talking about a nuisance that affects people in their day-to-day life,” he said. “We have to ask ourselves, what is a nuisance? You have to put yourself in that position, so I don’t count the greater good in an instance like this. There are other places in this town [where] that could take place. We have to stand with the aggrieved abutters as well as the greater good. You should be able to go home and enjoy your time at home.”