Permit Application For Indoor Falmouth Swimming Pool To Be Withdrawn
Sandra Miranda, the owner of Thumbtastic Pool, told the Falmouth Zoning Board of Appeals last week that she intends to withdraw her application for a special permit to allow her to resume teaching swimming and aquatic exercise classes in the indoor swimming pool at her home.
Ms. Miranda first came before the board after it was discovered that she had been operating a semipublic pool at her home at 105 Redlands Road. The enclosed pool house structure she used to conduct her aquatic classes was built in May last year.
Stephen O. McKenzie, a representative of Ms. Miranda working with her attorney Anthony T. Panebianco—who was not present at the meeting—told the board that the intention is to withdraw the application without prejudice, as Ms. Miranda intends to come back to the board with another application under a bylaw that she will be able to satisfy. If the board were to deny the plan or were it withdrawn with prejudice, the applicant must wait two years before coming back to the board unless the project is substantially different in nature.
“At the first meeting, there were several complimentary comments from the board members of Sandy’s efforts and the services she would be providing,” Mr. McKenzie said. “But as [ZBA member] Rob [Dugan] pointed out very quickly, she could not comply with the section of our bylaw for home occupation that she applied under. In particular, she couldn’t comply with the 30 percent limitation of the size of the home occupation of the accessory structure.”
The board understood the reason for the withdrawal but there were concerns as to whether a withdrawal in favor of another application was the proper avenue. Mr. Dugan said one of his concerns was that with a withdrawal, additional business or work might go on at the property.
“The pool was originally given a permit for personal use,” he said. “We’ve got information coming from the building department, information coming from the health department, at no time did they think this would be public access at all. They did do a cease and desist on the property, so this isn’t a situation we have where somebody is proposing something’s going to be done, it’s something that already exists.”
Mr. Dugan also said that it is his understanding that there was a fundraiser of some sort planned to do additional work on the property.
“It’s a unique situation because something had happened and then was stopped,” Mr. Dugan said. “We’re also dealing with something that at one point, other towns were using it, there were contracts that went out, there seemed to be testimony that there might have been other people using the pool for classes. I do have some worries that changes may have been done with monies.”
The board previously pointed out that the project was not filed under the appropriate bylaw. Mr. Dugan also pointed out that at a previous meeting, he specifically asked Mr. Panebianco if Ms. Miranda would be able to come back and show she has complied with the bylaw, to which Mr. Panebianco said she would.
Board member Edwin P. (Scott) Zylinski asked Mr. McKenzie why the current application was not just amended to fit what Ms. Miranda would now like to ask for. Mr. McKenzie said that the next request will come under a different bylaw and the wiser course of action is to submit a new application entirely.
“Here’s how I look at it,” Mr. Zylinski said. “Even though it’s pretty frustrating to request what we were looking for previously but with the good that it’s going to do, if they can come up with something that fits the legality of the bylaw, then there are people out there that literally use this and it’s a benefit to them. Bob, I understand where you’re coming from but if they can be creative and they can come back, I don’t think that they should have to wait two years to come back with that.”
Mr. Zylinski said that it might work out for the applicant or it might not, but he would be in favor of allowing a withdrawal without prejudice because the board has no way of knowing until the application comes in.
“Personally, I believe that if they don’t use it while they’re reapplying for this and it doesn’t become a cease and desist order and any of that, they do it correctly and come back before the board, I would be in favor,” he said.
Chairman Terrence J. Hurrie agreed. Board member James T. Morse asked what would happen to the cease and desist order that had been issued after the board of health discovered it was operating without proper permitting. Zoning administrator Noreen Stockman said that if the application is withdrawn, absence of board approval is essentially a prohibition to operate a business there.
“I would certainly be opposed to some kind of misunderstanding where somebody leaves here and thinks they’re good to go until this gets adjudicated through us,” Mr. Zylinski said. “I don’t mean that. I mean nothing happens until it comes back.”
“[If] the applicant understands that you can’t do a commercial business until this issue is resolved, I don’t have a problem to allow a withdrawal so they can reapply,” Mr. Morse agreed. “I just don’t want the neighbors walking away thinking the ZBA isn’t enforcing the zoning.”
The board indicated that it would like a condition on the acceptance of the withdrawal without prejudice. Ms. Stockman said that to her knowledge, there is nothing that says the board cannot place conditions on a withdrawal, but she also said that it was not necessary, as the absence of approval would be enough to cease all business activity there. Should business operations continue, the applicant would be subject to enforcement.
“The only issue I have—and this is just maybe semantics—they’re saying they’re going to apply under another section of the bylaw; we have no idea what other section of the bylaw is,” Mr. Dugan said. “I would have liked, again, for them to come and say ‘this is the section we’re looking at,’ and I could be completely wrong, but I couldn’t find anything that it fits under. I just want to make sure that whatever we do tonight, there is no further activity on that property having to do with a business, people coming and going, because it’ll be the same thing that happened before.”
The board decided that the best avenue would be to engage town counsel and determine if an application withdrawal can be conditioned to ensure that no further business operations occur on the property. The vote to continue the hearing was unanimous, and it will be revisited by the board on Thursday, May 5, after an opinion from town counsel is received.