Chronic Noncompliance Proves To Be A Big Problem For ZBA
Falmouth Zoning Board of Appeals is frustrated with the excess of noncompliance with regulations and conditions set forth through comprehensive permits, a chronic issue that has continuously reared its head across public hearings and highlighted a lack of enforcement protocol when it comes to these kinds of issues.
The issue of noncompliance with comprehensive permit conditions issued by the board was a prevalent theme at the board’s January 13 hearing. After hearing further testimony about Northstar Place, LLC—a 40b development that has been before the board for the past few months for discrepancies between the approved plan and what was actually built—the board was again tasked with addressing the same issue regarding different applications.
The Village at Brick Kiln at 511 Brick Kiln Road recently received a cease and desist order for clearing the site before the proper soil erosion and sediment control could be installed. The work, however, continued the next day, despite the developer’s acknowledgment of the cease and desist order. Noreen Stockman, the zoning administrator, said she went out to the site herself and was able to confirm firsthand that the work was ongoing and therefore was able to take immediate action.
“The developer acknowledged that he essentially gave his workers permission to finish what they were doing,” she said. “I sent a subsequent email to the building department suggesting enforcement. Work eventually did stop, and then they have complied with conditions, so they were allowed to resume work, which included demo-ing the existing house on the lot.”
Board vice chairman Edwin P. Zylinski said that if it were not for Ms. Stockman being able to visit the site and see things for herself, the work would have likely continued without their knowledge, but being able to visit every site in-person is not a sustainable form of checking for compliance with regulations.
“I guess the problem bounces back to your comprehensive permits and people not following conditions,” Ms. Stockman said.
The board also addressed the status of Beach Plum Path, formerly Locustfield LLC, a development that is being brought back before the board for discrepancies between what was approved and what was built. The board ultimately decided to bring the site developer back for further discussion on the issue, but the more obvious problem was the theme of disregard for the conditions explicitly laid out by the board during the comprehensive permitting process.
During the discussion of 511 Brick Kiln Road, board chairman Terrence J. Hurrie asked if the board has a condition that allows the board to recall applicants who do not abide by the laid-out conditions, but Ms. Stockman said that specific language is no longer used because there were previous concerns regarding the validity of it. There is, however, language that requires all changes, no matter how minor, to be subject to board review either administratively or through a subsequent public hearing.
“I think part of it is, maybe, we do have very long decisions, and I think people are maybe reading them, maybe not, and that primarily people realize that the penalty is insubstantial compared to the gain that they get by proceeding with work that is outside of what’s permitted,” Ms. Stockman said.
Mr. Zylinski expressed frustration with the fact that applicants for big projects such as 40b developments represent themselves as experienced developers, yet are more often than not the ones who have trouble following the agreed-to conditions.
“It continues to be ‘I’m going to do whatever I want and there’s nothing you can do about it,’” Mr. Zylinski said. “And that’s what it feels like in this instance, too.”
Board member James T. Morse, who is a lawyer, asked Ms. Stockman if there is any precedent for a zoning board filing a complaint against a developer’s professional license. She said she was not sure of any instance of that but thought it might be something the board would want to consider.
“It just doesn’t seem to be that whatever the town does for enforcement is enough of an impression on people to make them follow the rules,” she said.
“I don’t know how anybody else feels,” Mr. Zylinski said, “but I think we’ve beaten this horse to death and until something changes or somebody stands their ground or somebody encourages somebody above us who does have the authority to administer some kind of enforcement, it’s going to continue just like this.”
Despite agreement that developers’ disregard for comprehensive permit conditions is problematic, board members were still unsure of how to exactly proceed to ensure that there is compliance. Ms. Stockman said it should be made clear to applicants that their professional license could be at risk, should they fail to follow terms. Mr. Zylinski, however, said he would rather see the building department cease all work on the site until the developer can be brought before the board to explain why work that did not comply with conditions was being done.
“I’m not looking to go after anybody’s money or their license; I just want them to be accountable for what they promised they would do,” he said.
Mr. Morse asked if it could look into what out-of-the-box techniques other communities have employed to solve this same problem. Ms. Stockman said that in other municipalities she has worked for, noncompliance was a high priority issue and if conditions were not followed, then work was shut down.
“So what I’m saying is that if the town is not supporting and promoting that this is how things are to take place, and that there’s not a penalty, you’re not going to get change until the whole town is following the same procedures,” she said.
Better enforcement would be a potential solution to the issue of chronic noncompliance, but with no permanent building commissioner and staffing issues due to COVID, the building department is stretched as it is. More explicit language in the permitting process could also help solve the problem, especially when paired with enhanced collaboration between the board and the developer to ensure a full understanding of what is expected.
Ms. Stockman said that another large part of the problem is the sheer volume of paperwork and legwork that goes into enforcement when issues are identified.
“Every time that something goes wrong or an issue is raised, that’s sort of the tip of the iceberg,” she said. “Following up on that, checking in with people, trying to find out what went wrong, how did it go wrong, how can we fix it—it’s a big drain on time and I can certainly appreciate why enforcement might be something that people tend not to touch: because it’s a drain… but on the other hand, you’re left with ‘here’s what you approved, here’s what you get,’ and it’s not lining up the way it should. I mean, it’s not ever going to be perfectly exact but people should exercise far more care.”
Mr. Zylinski proposed that he and Mr. Hurrie meet with town management to discuss the board’s concerns and seek guidance, so that the board and the town can begin to work together to find solutions and correct the problem, and the board agreed.
“The ‘minimal’ changes should be the ‘minimal,’” Mr. Zylinski said. “We bust our tail trying to be explicit in our decisions and it’s frustrating when they’re interpreted so differently. Their attention should be equal to the attention we give the contractors… it makes us look bad when we have no control over the things that we deem to be appropriate.”