40B At Brick Kiln Road Still Under Scrutiny From ZBA
The developer of a Chapter 40B project at 123 Brick Kiln Road must go before the Falmouth Zoning Board of Appeals again after failing to submit documents or plans that accurately reflect the development as it was built, which deviated from the original approved permit.
Unbeknownst to the board, various changes were made during the construction of the development that did not abide by the plans approved by the board and the town. High-priority problems, like the exclusion of the approved sidewalk, dumpsters, and green play space for children, which were shown on earlier plans, were discussed at a previous hearing on October 7. At that meeting, it was agreed upon by both the board and the applicant that the applicant would return to the board with documents and plans that reflected the changes that had been made.
However, the board was displeased when, at its November 18 meeting, board clerk Robert Dugan reported that the applicant had not submitted anything since the last meeting.
“We should hear the applicant’s representative on why we shouldn’t deny tonight,” board member James T. Morse said.
Nicholas Mirrione, speaking as a representative for developer John DeSangro, confirmed that the plans are not yet complete, partly because the developer still has outstanding questions. He then asked the board if it would like to see dumpsters or pull cart trash bins on the plan.
“That was for you to propose,” vice chairman Edwin P. Zylinski said. “At the risk of sounding facetious—and I’m not trying to do that—we talked already about the fact that you had a set of plans that you didn’t abide by…I’m not voting on anything, personally, until I see it written down, proposed by you and your engineer. It’s up to you and your engineer to come up with a solution to the problems you’ve created, sir.”
Originally proposed in early 2017, the 20-unit development was built by Northstar Construction, doing business as Northstar Place, LLC. The development is already built out and occupied, but various issues were identified where the actual construction deviated from the plans approved by both the board and the town. The issues were formally brought before the board earlier this year, when the applicant filed a request for insubstantial changes to his permit. The board reviewed the changes in July and determined that they were indeed substantial and brought the matter to a public hearing.
Some of the issues under scrutiny were minor—such as the use of pull carts and weekly garbage pickup instead of installing two dumpsters on the property as the plan reflected—but the board took bigger issue with the more glaring problems, like the exclusion of the sidewalks that had been shown to run along the top of the driveways in front of each home on the initially approved plans. In reality, there are no sidewalks, and the driveway of each unit is paved right up to the steps leading to the front door.
“It just seems like things were done and there were changes that didn’t have to happen, because the money was there for the entire project to be built as it was,” Mr. Dugan said on October 7. “But certain things, like the sidewalk, isn’t just an aesthetic issue. [As a] commonsense safety concern, you do not asphalt a driveway into a building.”
There was also debate over where the final version of the submitted and approved plans are. Mr. Dugan said he had not seen a version of the plan where the detention pond was included, and that the last the board knew of it, that area was intended to be a green space for children to play, not a “six-foot ditch with rocks at the bottom.”
“That was a switch we didn’t know was going to happen and then [the play space] turned into some kind of asphalt court on the other side,” Mr. Dugan said. “If you didn’t build it according to the [approved] plan, what actual, physical plan did you submit to the building department? Or did you not submit the changes to the building department? Where is the plan that shows that installation that was actually done?”
It was clear that there was some kind of miscommunication between the board and the applicant, as Mr. Mirrione insisted that there is, in fact ,a plan that shows the area with a detention pond, not a green space for children.
“I have no idea what you’re talking about,” Mr. Mirrione said. “That’s not what was approved.”
At the hearing on October 7, Mr. DeSangro addressed some of the issues that had been raised. He assured the board that no disrespect was meant by the decisions made and explained that the sidewalk, which would have been laid at the top of the driveway directly in front of the front steps to each home, was ultimately not included because he felt it was poorly designed.
“I don’t understand [why] people would walk their children in front of people’s apartments right past their bedroom window,” Mr. DeSangro said. “To be honest with you, as far as I’m concerned—and again, I should’ve brought it to the board—that was a poor design. There shouldn’t be a sidewalk there.”
Mr. DeSangro repeatedly told the board that operations at the development have been running smoothly and that there have been no complaints. As both developer and owner, Mr. DeSangro said, he employs himself as maintenance and general caretaker for the property, while Mercantile Property Management handles the management side of the business.
“This place is my life morning, noon and night,” he said on October 7. “And it’s operating like a fine-tuned machine.…I haven’t come close to a problem or complaint with any tenant on really anything, especially to do with the sidewalk.”
With no further information from the applicant, the board was unable to move forward with the November 18 hearing. Mr. Mirrione was apologetic and said that the plans were almost done, and would be done in plenty of time for the next hearing.
Board members voted to continue the matter until January 13.