ZBA Considering Enforcement Measures To Ensure Compliance
In the face of widespread noncompliance from applicants, the Falmouth Zoning Board of Appeals is looking to implement some enforcement measures that will assure that comprehensive permitting conditions and zoning regulations are followed by developers.
The issue of noncompliance with comprehensive permit conditions laid out by the board in its decisions has been more prevalent in recent months, with the board discussing three different projects with major violations over the past two hearings. In response, the board is looking to implement a policy for all comprehensive permits that allows for the enforcement of a cease and desist order when projects are in violation of conditions, and will also bar the zoning department from signing off on any additional building permits for that applicant until the applicant rectifies any identified violations.
“Rules are meant to be followed,” chairman Terrence J. Hurrie said at the board's meeting on Thursday, January 27, last week. “If everyone was following these comprehensive permits, then we’d never be in this situation and unfortunately over the past two meetings, we’ve had three discussions of three separate projects with major violations…it’s nothing against 40B projects, they’re major projects. It’s a violation of a failure to follow basic construction protocol and that’s my issue that I’m having with these projects. If we don’t do anything, no one’s going to listen to us.”
In this instance, the topic of discussion was Kendall Lane, formerly known as Helmis Circle. Zoning administrator Noreen Stockman reported to the board that unauthorized overnight work was done at the site two nights in a row.
“There was no permission to do work those hours,” she said. “During their overnight work, which they were reportedly doing so they weren’t disturbing traffic or neighbors or something, they did contact a town water main and there was a substantial issue related to that.”
Board clerk Robert Dugan, who saw the situation firsthand, said it was a rather serious flood.
“When you say ‘a substantial water issue,’ almost half of the site was flooded with pretty heavy knee- [to] waist-high water,” he said. “It actually didn’t look like a site, you didn’t see the road. It looked like a lake.”
Mr. Dugan said it was his understanding that there had been an issue with Dig Safe, a nonprofit organization that works with developers and utility companies to plan safe digs. Mr. Dugan said that while he is not sure if it has been confirmed, it appeared that the town’s concern was that the developer didn’t work with Dig Safe and therefore didn’t know where the utility lines were prior to digging. Obviously, Ms. Stockman said, someone dug in an area where digging is forbidden.
Ms. Stockman said that she did request a cease and desist order for Kendall Lane, but it was never issued. In response, she sought out answers from the board on how it would like to proceed in instances where there are outstanding violations.
“Certainly, engineering was very concerned about the conditions,” she said of Kendall Lane. “The other piece that sort of weaves into this is that this is a development where there are multiple homes, so we’re continuing to get the building application requests coming into the office looking for [a] sign-off and frankly, I’m having a concern about continuing to sign off on future building permits where they’re not maintaining the site….There are multiple levels of a problem here that need to be addressed so I guess I’d be looking to the board to make some determination as to how you want to manage these types of problems.”
Board discussion revealed persistent frustrations with the lack of conformance from applicants and inconsistent enforcement from the town. Mr. Dugan said that without cease and desist orders for projects in violation, there will be no conformance.
“I do not understand when you request a cease and desist and it’s not understood,” he said. “You had requested a cease and desist for another 40B that had clearcutting and that cease and desist was put right in place. And then you request one for another one and it’s gone weeks.”
Mr. Dugan said there needs to be enforcement across the board, not just for specific sites, but one of the main issues is staffing. The way peer review is structured, Ms. Stockman explained, is that the peer reviewer anticipates the developer to contact zoning officials when inspections are needed and that they don’t do drop-in types of inspections. When a complaint is received, it goes to the town engineer because that is where immediate personnel are usually available. In the case of Kendall Lane, the town engineer was very dissatisfied with what he saw, Ms. Stockman said, so he called in the peer engineer as well.
“These people on Kendall seem very savvy, I mean they’re very experienced developers,” Mr. Dugan said. “I didn’t expect this kind of a situation. And it seemed like when they had the flooding way back, they were actually shopping to see if they could change their work hours over our permit and the other departments said no, so they just did it anyway. Why have a zoning board that does comprehensive permits for the state if we have absolutely no enforcement?”
Mr. Dugan suggested sending a statement to the entire select board and Town Manager Julian Suso to let them know the extent of the problem of noncompliance.
“My biggest worry right now is that every single comprehensive permit we have ongoing has a problem and none of it is being enforced,” Mr. Dugan said. “And I’m sure the state doesn’t know they have a problem and you assume you’ll get these once in a while, but all of them—I mean all of them—have the same issues. It’s almost like when the workers or developers or whatever they’re thinking is they see one person getting away with it think. 'Well we’ll just do it, maybe we’ll be okay.'”
The board is now looking at voting on and implementing a policy that allows the board to issue cease and desist orders for any project in violation of comprehensive permit conditions, which would give the board a better chance at enforcing compliance and rectifying violations. Ms. Stockman said that she thinks part-time Building Commissioner Eladio Gore is trying to be generous in allowing developers to continue doing work, but the problem has been exacerbated by a combination of zoning leniency and a lack of personnel at town hall for enforcement.
“When you start getting people who are willfully and maliciously violating conditions and not playing by the rules, a cease and desist is the appropriate thing to issue,” board member James Morse said. “The carrot doesn’t work anymore, Mr. Chairman. It’s time for the stick.”
Moving forward, the board is poised to discuss and implement a sweeping policy that would apply to all comprehensive permits issued by the board, giving it the right to issue an immediate cease and desist for projects in violation of conditions. The building department will also not sign off on any additional building permits until violations are corrected, and any applicable state organizations will be notified so that the board can begin to build a track record for applicants who are repeatedly in violation of conditions.
The board is expected to further discuss this topic at its next meeting on Thursday, February 10.