ZBA grants comprehensive MGL 40B permit for 12‑unit Acapescate/Old Bayberry development with conditions

The Falmouth Zoning Board of Appeals voted Nov. 21 to grant a comprehensive permit under Massachusetts General Law Chapter 40B for construction of six duplex ownership dwellings (12 units) on two combined lots on Acapescate and Old Bayberry in East Falmouth.

The board’s decision, made after a condition‑by‑condition review, authorizes 12 total units with a maximum of 24 bedrooms and designates three units as permanently affordable to households earning no more than 80% of area median income. The decision includes multiple waivers to local zoning provisions, and a lengthy set of conditions addressing stormwater, inspections, utilities, affordable‑housing controls and site work.

Key conditions adopted by the board require that:

• All stormwater from the premises be directed to recharge on the site and that the stormwater system be privately operated with a perpetual O&M and reporting requirement overseen by town engineering; the system is subject to peer review and inspection by a town‑approved inspection engineer.

• The applicant provide required watermain easements, install a town‑specified fire hydrant and submit hydrant flow test results; water main and hydrant work must meet the water superintendent’s specifications and be pressure‑tested and sampled.

• Condominium/master‑deed documents, a regulatory agreement and restrictive covenants for the affordable units be recorded and included in the SHI; the affordable units must remain year‑round, owner‑occupied and are subject to resale controls and monitoring in perpetuity (the board added foreclosure and bankruptcy survivability language to the restriction).

• An inspection engineer, at the applicant’s expense, be designated to oversee EPA construction general permit compliance, erosion control and right‑of‑way work, and to review as‑built plans prior to issuing any certificate of occupancy.

• The project be designed to allow future connection to town sewer when it becomes available; the applicant noted the development is designed to be able to connect to town sewer in a future sewering project.

Board members reviewed the record, discussed public comments and finalized the G‑series (general), S‑series (site), B‑series (building) and O‑series (occupancy) conditions in open session. Several technical clarifications and minor edits were made on the record (for example, where reports should be filed and that town engineering will receive copies). The board approved the conditions by voice votes throughout the meeting.

Following the condition votes, a motion to grant the comprehensive permit under MGL 40B §20–23 was made and seconded. The board recorded roll‑call affirmations including “Finnering, aye,” “Murphy, aye,” and “Petrucci, aye,” and voted to grant the permit subject to the conditions adopted during the hearing.

The decision imposes requirements that will be enforced through recording at the Barnstable County Registry of Deeds, plan sign‑offs by the town’s inspection engineer, and continuing obligations for stormwater O&M and affordable‑housing monitoring.