ZBA Affirms Withdrawal For Indoor Pool
After nearly three months of discussion and wrangling, the Falmouth Zoning Board of Appeals has voted to accept a withdrawal with prejudice on the matter of Sandra Miranda’s home pool business.
Thumbtastic Pool, of which Ms. Miranda is the owner, is located at her home at 105 Redlands Road. She first appeared the board after it was learned that she had been operating a business out of her home without proper permitting and conducting aquatic exercise classes in her enclosed pool house.
Stephen O. McKenzie, a representative for the applicant, informed the board at its meeting on April 21 that it was the intent of the applicant and her counsel to withdraw the application without prejudice, essentially meaning the application is null and void. The board opted to continue the hearing until May 5 to allow time for an opinion from town counsel to be received on whether it would be able to condition a withdrawal without prejudice to ensure there is no further operation of the business until Ms. Miranda comes back before the board. The board did not disclose what that opinion said, but said it was received.
Ms. Miranda’s attorney, Anthony T. Panebianco, has not appeared before the board since the first hearing in February, when he told the board he would be coming back at the next hearing to prove that his client can meet the 30 percent maximum for the size of the home occupation. Mr. McKenzie told the board that Mr. Panebianco had recently tested positive for COVID-19, hence his absence at the May 5 meeting, but the board said it would have liked to at least receive some kind of communication from Mr. Panebianco in the interim.
Mr. McKenzie said he could not tell the board which bylaw the applicant would be reapplying under, as Mr. Panebianco is the one who will be filing the application and he didn’t want to overstep.
“Please understand that we’re asking for the withdrawal without prejudice so we’re not prejudicing Sandy, who got some bad information from people within this building—not within this board or anybody within this room—and filed this on her own,” Mr. McKenzie said.
The board had been concerned that accepting a withdrawal without prejudice would encourage Ms. Miranda to continue conducting business, but Mr. McKenzie assured members that because of the enduring cease and desist orders put on the business by the health and building departments, that would not be an issue.
“Other than penalizing her by doing it with prejudice, I see no harm in allowing it without prejudice because she can’t do anything with it until she comes back,” he said. “This board would be the ultimate arbiter.”
Having confirmed that the cease and desist orders remain in effect, zoning board chairman Terrence J. Hurrie said he would be in favor of accepting a withdrawal without prejudice.
Because of the circumstances surrounding the project, such as public outcry from neighbors and the lack of communication from the applicant with the building department regarding the pool’s intended use, board clerk Robert Dugan said he was inclined to either accept a withdrawal with prejudice or to act on the application itself. He also noted issues with parking requirements and an unauthorized entrance off of Currier Road and said that had the Town of Mashpee not alerted the Town of Falmouth that it was contracted to use the pool, it would be unbeknownst to the town that Ms. Miranda was operating without a permit.
“There’s nothing to substantiate the opposition to Bob’s points,” board vice chairman Edwin P. (Scott) Zylinski II said. “Nothing. No lawyer, no lawyer submission, nothing…as unfortunate as it sounds, we still have a job to do…it’s very difficult to try and legitimize a request for something when we just don’t have anything to really go on.”
In a 4-1 vote, the board decided to accept a withdrawal with prejudice, meaning the applicant may not come back before the board for another two years unless the project is substantially different in nature.