Last Thursday, the Falmouth Zoning Board of Appeals found in favor of a developer appealing conditions on six separate building permits.
William F. Curley, a trustee of Green Meadow Realty Trust, applied in March for six building permits to construct single-family homes on Broken Bow Lane. When he received the permits, close to two months later, the permits listed an unexpected condition: enhanced nitrogen removal systems. Mr. Curley, through his attorney, Particia McArdle, filed appeals for each of the permits.
The developer and his attorney had a hurdle to clear before the board would proceed: standing. The board noted that Ms. McArdle had submitted all six appeals one day past the close of the 30-day appeals window. Ms. McArdle explained that she submitted them on June 17, a Monday because the 30-day appeals period closed on June 16, a Sunday. After citing a 1907 case to that defended the extension, the zoning board of appeals found that she had standing to proceed with the appeal.
Ms. McArdle argued that the building commissioner had made an error when he added conditions mandating denitrification systems. Falmouth bylaws require new subdivisions of greater than five houses or lots in a coastal pond overlay district to go before a town board, typically the planning board, for a development impact analysis. During this hearing, the board may determine that denitrification systems or other means of mitigation may be necessary to prevent nitrogen flow to nearby watersheds. The building commissioner does not have the authority to require denitrification systems on his own, she said.
Ms. McArdle added that this hearing process could only be triggered by the proposal of a new subdivision. Mr. Curley had not proposed anything new. He pulled permits to build six homes in an existing subdivision, initially recorded in 1969. Even if the Falmouth Zoning Board of Appeals considered Mr. Curley’s new homes to be part of a new subdivision, her client had not been afforded due process, she argued. He never received a hearing before the condition was added to the building permits.
Mary Barry, a member of the zoning board, asked why Mr. Curley had chosen to apply for all six permits at once. Mr. Curley said he aimed to construct three houses at once and have permits in hand for three more if someone expressed interest.
Mr. Curley added that he intends to build the houses to be affordable for young families. The homes will be modest, three-bedroom, Cape-style builds, Mr. Curley explained. They will be sold in the $400,000 price range. Mr. Curley noted that he might keep two of the houses as rentals.
“The reason for applying for the six was… right from the beginning I’ve been trying to build what the town needs—affordable, small houses,” he told the board. Mr. Curley added that he has been living in the community for 20 years and was well aware of the struggle to find affordable housing.
Ms. McArdle said the cost of monitoring and maintaining six de-nitrification systems imposed a financial hardship on her client. “All other prior existing lots in the coastal pond overlay district have not been required to have this de-nite system,” Ms. McArdle told the board. That includes the other houses built on Broken Bow Lane after the subdivision was approved in 1969, she said.
Thomas Bunker of BSS Design, whose firm worked on the design for the houses, told the board he was surprised by the requirement. “We’ve never had a situation… where we required… to put in a de-nite system on a vacant lot purely because the lot was in the coastal pond overlay district,” he said.
Brian K. Borque, a former Falmouth building inspector, said he had gone back two years to see if a similar requirement had been imposed on permits for new residences in pre-existing subdivisions. He said it had not. Mr. Borque said the condition was a “misinterpretation” of the bylaw. “The verbiage in that bylaw is crystal clear,” he said.
Members of the board pushed back on the arguments. Some members suggested that denitrification systems should have been conditioned on previous permits. “Just because you didn’t get caught robbing a bank doesn’t mean you didn’t rob a bank,” said board member Gerald Potamis.
Ms. McArdle disagreed with Mr. Potamis’ statement. “I would suggest that the clear intent of this bylaw has been applied in previous years,” she said.
Ms. McArdle also noted that building commissioner Rod Palmer had waited more than 50 days to issue the building permits for Broken Bow Lane. The Massachusetts State Building Code requires building permits be issued within 30 days of receipt of application. Mr. Palmer issued the permits more than three weeks past that deadline, Ms. McArdle explained, causing Mr. Curley to wait additional time to receive permits with arbitrary conditions.
The zoning board of appeals moved to overturn the building commissioner’s condition on each of the permits requiring a denitrification system.
“I’m a huge fan of nitrogen mitigation but I have to agree with the applicant,” said vice chairman Kenneth Foreman.
“Waiting 52 days… is just ridiculous,” said Robert Dugan, another member of the board.