After 14 Months Before ZBA, 40B At Percival Road Still Has Application Issues
Falmouth Zoning Board of Appeals again postponed discussion of the Chapter 40B development off Percival Road after comments submitted to the file were received too late to be considered for the most recent hearing on February 24.
Edwin A. Monteiro, of Eco Land Development, LLC, proposes to build eight three-bedroom, two-story Cape-style single-family homes, and eight three-bedroom, one-story ranch-style homes ranging between 1,400 and 1,800 square feet, with four of the homes being designated as affordable housing. But after more than 14 months of ongoing discussion, the Rosewood Estates development is still not poised for approval by the ZBA due to what the board considers to be an incomplete application.
Additional comments from the peer-review engineer were submitted to the file just two days before the hearing, which did not allow sufficient time for board review. A myriad of concerns was raised with the current state of the application, the most significant of which was a lack of clarity with the plans. There is also general confusion regarding certain aspects of the application that are missing, such as a complete list of waivers and a land surveyor stamp required on all plans depicting property lines.
Attorney Brian J. Wall sent a letter to the board on behalf of three abutting residences—Daniel Colturi of 187 Percival Road, Patricia A. Harris of 181 Percival Road, and William and Margaret Overholtz of 193 Percival Road—in which he highlighted the concerns regarding waivers and lack of clarity, in addition to highlighting the abutters’ concerns about unsafe access to the development parcel.
Mr. Wall cited concerns from both town engineer Scott Schluter and peer-review engineer Adel Shahin, both of whom have made past references to confusing elements of the plan such as unclear markings, non-differentiated symbols, and a lack of clarity between what is proposed and what is existing.
“If the two engineers that are providing [consultation] to the board other than the applicant have problems with the clarity of the plans, I would respectfully submit to the board that the plans are not sufficient for you to conduct your review in a meaningful way,” Mr. Wall said.
Another abutter, Jessica Salsman of 231 Trotting Park Road on the corner of Percival Road, submitted a letter to the board in which she stated that she is opposed to the project and intends to install a six-foot stockade fence around her property—which includes the corner abutting Percival Road—within the next few weeks. Mr. Shahin said that depending on where the fence is installed in regards to Ms. Salsman’s property line, it could be detrimental to the sight lines for the development.
“The only thing I would add is [to] make sure there’s no fence to be blocking [sight lines], especially at that south corner of the intersection with Trotting Park Road and Percival Road,” he said to the board. If left unobstructed, he clarified, then the development meets sight distance requirements. But it is something the board will need to follow up on, board member Edwin P. (Scott) Zylinski said, because until clarity is provided about where exactly the fence would go, those concerns will remain unresolved and could result in a safety hazard.
Another persistent issue has to do with the buildability of the lot itself. At a previous hearing, it was brought to the board’s attention that a note was left on an approval-not-required plan that was before the planning board in 2000 that says the lot is not a buildable lot because, at that time, there was no determination of access.
Christopher Lebherz, the attorney representing Mr. Monteiro, told the board in December that he is of the opinion that the parcel can be accessed via Trotting Park Road and is suitable to build on. Mr. Lebherz previously told the board that former interim building commissioner Eladio Gore shared his belief that the lot was buildable, but when Mr. Lebherz asked Mr. Gore for either written confirmation or to appear at the board meeting as the board had requested, Mr. Gore “seemed hesitant to do it.”
“I will again represent to you unequivocally, Mr. Gore’s position was if there is access to the parcel, that note that said it’s not a building lot was a nullity,” Mr. Lebherz said. “Those are his words, lock, stock, and barrel, and I’ll stand by it. I’m sorry I don’t have the letter; I requested the letter, I asked for the letter, [and] I didn’t receive it from your building commissioner.”
Mr. Gore has since stepped down as interim building commissioner, so Mr. Lebherz has said he will pursue the same conversation with new acting building commissioner Gary Street.
Despite persistent concerns, Mr. Monteiro repeatedly stated that all of the engineers’ comments regarding conditions such as stormwater, setbacks, and sight lines had been resolved and the requirements met.
“As far as I am concerned working with peer review, they’re satisfied with what we have presented, all of the information that we’ve given,” Mr. Monteiro said. “They wouldn’t let us proceed one step further unless we were satisfying probably 90 percent of a subdivision type of regulation.”
Mr. Shahin clarified that any outstanding comments on the plans have to do with town bylaws and requirements which are not being currently met by the plans and said he will defer to the board on making a determination about what to do for that.
Mr. Wall said that in previous letters to the board, requests had been made on behalf of the abutters for additional waivers that have yet to be included in the plan. He noted that a February 22 note from Mr. Shahin identified 41 potential waivers that have yet to be requested.
Mr. Monteiro said that the reason those waivers have not been included is to avoid redundancy.
“I’m basically putting the main [waivers] that I need for the approval because everything else on that plan conforms to what [the peer engineer] was looking for,” he said. “Any other waivers that the abutters may be asking for, I’m meeting it with the criteria from either drainage engineers, peer engineers, or my engineers for the subdivision.”
Board clerk Robert Dugan suggested that Mr. Monteiro comprehensively review all suggested waivers before his next hearing, noting that many “general” waivers they see on almost all applications are missing from Mr. Monteiro’s file.
“If you think it requires a waiver, we would need a request for that,” Mr. Dugan said. “If the application had been approved based on just your list, you wouldn’t be able to do the project because we didn’t waive what was required.”
Mr. Monteiro confirmed that he will review all waivers that have been suggested. Both Mr. Wall and Ms. Harris, one of his clients, strongly suggested to the board that the lack of clarity in the applicant’s plans could be detrimental to the project, citing the board’s recent struggles with enforcement of agreed-upon permitting conditions between the board and applicants.
“I read with interest the recent Enterprise articles reporting the board’s frustration with 40B developers who fail to conform to the terms of their comprehensive permits,” Ms. Harris said. “This developer has repeatedly misled or misrepresented material facts. It’s my opinion that the developer has provided this board plenty of reason to be concerned that he will not take the details of any permit seriously. Nevertheless, I think this permit application should be denied for failure to provide safe access.”
Mr. Monteiro told the board that he would need about 30 days to compile the requested information, which includes a complete list of waivers, an opinion from Mr. Street on the lot’s buildability, and a revised set of concise plans with a land surveyor stamp. The next scheduled hearing on this matter will take place on April 7.