A building on the corner of Nye Road and Main Street has been under review by multiple departments in town hall for unapproved changes over the last three months.
Bogosian Development LLC received approvals from the Falmouth Planning Board and the Falmouth Zoning Board of Appeals to construct a mixed-use building on the site in 2017. Plans show two commercial units on the first floor of the building and three residential units split between the second and third floors.
Differences between what was approved and what was built were not discovered until after the building had been fully constructed. Changes were made to the length of the building, the landscaping, the size of walkways around the building, and patio space in front of the structure. Partitions were added to the basement, not shown on the plans, that suggested to the building commissioner that it might be used as an office rather than excess storage space.
The unapproved changes have stalled occupancy permits, which businesses on the first level of the building expected months ago. Sean Dailey, owner of Eat Your Heart Out Catering, has been unable to open his gourmet cafe, one of the first-floor businesses. The delay means he has missed a large portion of the summer foot traffic.
The alterations prompted hearings before the planning board and the zoning board of appeals. The planning board chose to allow administrative approval of the changes in May, turning the project over to town planner Thomas Bott.
The zoning board of appeals decided to open a hearing into the matter.
Attorney Kevin P. Klauer represented the developer. On July 11, he advocated for approval of changes and further alterations to the initial special permit before the zoning board of appeals.
“We acknowledge the fact that there was a mistake made. There’s simply no way around it, but we’re trying to address it. We just don’t want to continue to have people punished that don’t need to be when there’s a really good and workable solution that’s at hand,” Mr. Klauer said.
Mr. Klauer said the building is 2.9 feet longer than what was approved due to a “clerical error.” Between zoning board of appeals approval and permitting from the building department, engineers altered the plans to “address a structural deficiency,” he said. There is a 161-square-foot difference between the plans on file with the zoning board of appeals and the plans submitted to the building department for permits.
Mr. Klauer said the developer removed existing sheds on the site to keep the lot coverage by structures at 19 percent, the original approved amount.
“The walkways were changed in order to provide increased handicap access to the building,” Mr. Klauer added.
Other changes to the original plans included a break in the roof line and alterations to the third-floor layout. Mr. Klauer said that despite changes to the layout, the number of bedrooms was still consistent with what was approved.
In terms of the basement, Mr. Klauer said partitions had been added to delineate between storage space for residential and commercial tenants. One of the sections provided space for computer servers and storage for alcohol for the restaurant on the first floor, but was not being used as an office, Mr. Klauer said.
He added that the building that sits on the lot today meets zoning requirements. Although the changes should have been applied for and reviewed by the zoning board of appeals before they occurred, they improved the property nonetheless, he said.
Mr. Klauer noted that the building commissioner and town had completed inspections and signaled they would be ready to grant occupancy permits.
“I’ve been in this industry for 45 years. I’ve been on the regulatory side for 20 years. I have seen hundreds of applications for zoning boards, for special permits, for variances... I have never seen one project built in full compliance. It just doesn’t happen. There’s always some margin for error. I’m not trying to minimize the changes here. It’s not a perfect science,” said building commissioner Rod Palmer.
The town planner weighed in on behalf of the planning department on July 11. He said he had been working with town staff on an “in-depth evaluation on what’s changed on the site.” He said the changes were rectifiable. Additional work still needs to be done to ensure the drainage system on-site is still adequate, Mr. Bott said. He added that landscaping work also still needs to be completed. The developer agreed to post a $25,000 bond to ensure completion of work to improve drainage and increase landscaping.
Robert Dugan, a member of the zoning board of appeals, recused himself to be able to share concerns about the building as an owner of neighboring property. He encouraged the board to request an independent height certification.
Matthew Costa, president of Cape and Islands Engineering, disagreed. “The building height is 35 feet because they were too high and they cut it back to the limit... The ridge was adjusted. So it’s not a coincidence. It was a fix,” he told the zoning board of appeals, certifying that the building is 35 feet.
Despite frustration that changes were made to the building without review from the zoning board of appeals, the board voted to approve a draft decision last week. Edward Van Keuren, a member of the board, said he hoped a $25,000 bond would be incentive enough to complete the rest of the work on the project to original specifications.