Falmouth Appeals Board Finds Against Percival Road Chapter 40B Project
After 16 months of review, the Falmouth Zoning Board of Appeals voted unanimously last week against the proposed 40B development on Percival Road, effectively killing the project.
After an hour and a half of discussion and testimony on April 7, the board cited negative findings for the Rosewood Estates project and requested that zoning administrator Noreen Stockman draft a decision based on discussions regarding issues such as increased traffic concerns, access to the development and buildability of the land.
Edwin A. Monteiro, the applicant, had proposed 16 homes at the end of 2020: 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 designated as affordable housing.
Since the beginning of the public hearing process, abutters have voiced concerns over the increased number of cars traveling Percival Road from Trotting Park Road to reach the development. Brian Wall, an attorney representing three abutters, spoke at the meeting and outlined his clients’ biggest concerns. He said there has been little to no consideration for neighbors already living in the area, and no one can be sure how the inundation of traffic will integrate into the area.
One abutter said that traffic studies estimated an additional 160 vehicular trips each day, a major area of concern for neighbors as they say the area is not suitable for multiple cars traveling at once and is heavily populated with children.
Mr. Wall raised further concerns his clients had with the proposed septic systems. Mr. Monteiro told the board that each of the 16 units he is proposing—which, at some point unbeknownst to the board, became condominiums—will have individual Title 5 septic systems that the homeowner will be responsible for maintaining and replacing in the event of a failure.
“The project is in a coastal pond overlay district and a water resource protection district,” Mr. Wall said. “The regulations for those particular districts require a subdivision of this size to have a common septic treatment plant, and if the developer can show that that’s not feasible, the fallback position is to have denitrifying septic systems. The proposal is for neither of those; it’s for individual Title 5 conventional systems and there has been no showing by the developer that he can’t put in a plant or he can’t put in denitrifying septic systems.”
Board chairman Terrence J. Hurrie also said that he has never before seen this kind of setup with septic systems. Mr. Monteiro maintained that by having individual septic systems, the incentive to take good care of it and be sure to not flush foreign objects is greater than it would be if there was a common septic system shared by all units.
He said snow removal and trash pickup would be handled by private companies as designated by the complex’s homeowners association. Board clerk Robert Dugan asked if there would be some kind of fallback fund set up in the event of a septic failure in an affordable unit, where the tenants might not have immediately available funds to replace it. At this time, nothing of that sort is planned, but it could be later incorporated into the condominium dockets.
In terms of road safety and access to the parcel, concerns remain over the road Mr. Monteiro proposed to put on his property to serve the development. The angle at which the road meets the curve of Percival Road and Cardoza Way as it heads toward Trotting Park Road is very unsafe, Mr. Wall argued, citing that 13 waivers out of the 23 requested have to do with safety matters of the road.
There are also concerns regarding the use of Percival Road itself. Mr. Wall said the original idea was to have individual driveways for the development fronting on Percival Road, but when the developer discovered he did not have rights to Percival Road in that way, he resolved to put a road on his own property.
“This area right here is so poorly designed that it’s going to present hazards,” Mr. Wall said of the intersection.
Mr. Monteiro’s property line extends to the centerline of Percival Road. This means that the neighbors across the street also own up to the centerline of Percival Road, which is a private way. According to the derelict fee statute, Mr. Wall explained, the way is subject to the rights of all people on that way to use that road.
“So when Mr. Monteiro is saying things like, ‘That’s my road, they’re on my road’—he’s correct, he owns the dirt, but he can’t take the road off his property,” Mr. Wall said. “It serves Cardoza Way and Percival Road, so it is very important to understand he is using a road to provide access to his development, that he owns half of the dirt but it’s subject to the rights of others, and that’s the point.”
Sightlines where Percival Road meets Trotting Park Road are also a problem. Abutters Robert and Jessica Kowal of 197 Percival Road told the board that after moving to Falmouth recently, they learned that previous iterations of the Rosewood Estates plans included pieces of their property, and the proposed sight triangles go directly through their property.
“Nobody has talked to us or asked us anything,” Mr. Kowal said. “It seems like there’s a lot of stuff in this project—because it’s been going on for two years—that hasn’t really been well thought-out. They haven’t talked to me; they haven’t talked to any of the neighbors about these concerns or they really don’t seem to care about our concerns. I guess what I would posit is that this plan isn’t a very good one.”
Myriad other issues contributed to the overall rejection of the plan by the ZBA, including trees located in the sight triangles that are not under the developer’s jurisdiction. It is unclear whether these trees would even be approved for removal, but peer engineer Adel Shahin confirmed that they are in the way and would have to be removed to achieve satisfactory sight triangles leaving the property onto Trotting Park Road.
“The sight triangle is supposed to be under the control of the developer to keep it clear from growth and obstruction,” Mr. Wall said. “The plan is showing sight distances that the developer does not own, so he has no ability to control this area; he can’t assure the board this is going to stay clear.”
In terms of buildability, Mr. Monteiro’s attorney, Christopher Lebherz, told the board that he did, in fact, follow up with former building commissioner Eladio Gore, whom he asserts was of the opinion that lot 4 of the parcel is, in fact, a buildable lot, despite a note on an Approval Not Required (ANR) plan from 2000 saying otherwise. Mr. Lebherz met with current Building Commissioner Gary Street and received a response from Town Counsel Frank Duffy regarding the issue. Mr. Duffy said the note was likely due to an absence of legal right to use Percival Road as access to the parcel, and goes on to suggest that the ZBA, acting instead of the planning board, may grant an ANR endorsement without the note, if the right of way is clearly established, or the applicant could submit a new plan to the ZBA under the subdivision control law.
Mr. Lebherz told the board that Mr. Duffy confirmed what he had been saying all along and that the ZBA could waive the note as long as there is a determination of access. The board, however, did not agree, and did not seem to appreciate the conclusion drawn by Mr. Lebherz, who said he was “reading between the lines.”
“Forgive me for being facetious, but I’m trying to get away from ‘basically’ and I’m trying to get a definitive opinion from the building commissioner,” board member Edwin P. (Scott) Zylinski II said. “That’s all I’m looking for—counsel. That’s it.”
Mr. Dugan also said he did not interpret the letter from Mr. Duffy as a suggestion for the ZBA to waive the ANR note, and in order for the board to even do that, a new plan would need to be submitted specifically requesting a change in the ANR endorsement from 2000. Mr. Monteiro was clear that he did not want to submit a new plan but was amenable to further amending his current one.
Despite the board’s questions over the past year, Mr. Monteiro has not adjusted the number of bedrooms to better suit the town’s needs for one- and two-bedroom units, something the board discussed at earlier hearings but appeared to play a role in the final rejection of the project.
Mr. Hurrie said that, for him, the decision comes down to the various health and safety issues regarding the project, and other board members concurred.
“While there’s such a great need for affordable housing, and we do need it in the town, everybody leaves out [that] we need good projects and safe projects to make all of this work,” Mr. Zylinski said. “I think we’ve given the applicant and his team ample opportunity and whatever guidance we can put forward with respect to lowering the density, lowering the trips by density, things of that nature. And to be honest, at every point—and I know that I asked the question on numerous occasions—the applicant was unwilling to do that. He said it wouldn’t be affordable. So I feel comfortable with the fact that we tried on this; we gave you every opportunity we could.”
The draft decision is expected to be ready prior to the board’s scheduled meeting on Thursday, May 5.