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Planning Board Hears Lengthy Review of Nonconforming Uses Bylaw; Consultants Advise Conformance with State Law
Summary
Consultants and counsel debated major rewrites to the town’s nonconforming uses bylaw (Article 10), including definitions of abandonment, reestablishment criteria, and which elements of state Chapter 40A (Zoning Act) constrain local options. Staff will redraft language to address legal concerns raised by counsel and board members.
FALMOUTH — The Planning Board on Sept. 13 heard an extended presentation from consultant Bob Mitchell on a draft recodification of the town’s nonconforming-uses bylaw (Article 10), focusing on how local language should align with Chapter 40A of the Massachusetts Zoning Act.
Mitchell told the board the draft pulls most existing local language into a reorganized section, with added definitions and clearer procedures for reestablishing nonconforming uses and for handling abandonment. He advised removing local language that would extend the state’s 12-month protective period for building permits, saying the town lacks authority to do so.
"There is a provision in state statute that if someone files a building permit before the first notice of the public hearing for a zoning amendment...the person with the building permit gets a 12 month period where they can use the building permit under the old zoning," Mitchell said. "The town doesn't really have any authority on its own to exceed that." (paraphrase based on presentation)
Town counsel and several board members pressed for wording changes. Counsel said a purpose clause in the draft that would "discourage the perpetuity of nonconforming structures" raised concerns and might be better framed as regulating nonconforming uses and structures, not discouraging their existence outright. Counsel also argued that adding the words "or structure" to the abandonment clause—so structures could lose protection after two years of nonuse—would be a significant change from longstanding town practice and should be reconsidered.
Board members asked staff to return with written summaries of the comments and revised language. The hearing was continued; no bylaw was adopted at the meeting.
