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Falmouth commission takes public comment, closes hearing on contested as‑built pool and masonry wall at 70 Cary Lane
Summary
Attorneys for the homeowner argued the as‑built pool, ramp and masonry wall meet performance standards; commissioners expressed concern that construction deviated from an earlier permit and closed the hearing to take the matter under advisement, with a decision and possible order of conditions expected next week.
The Conservation Commission on Feb. 4 heard a contested as‑built notice of intent for 70 Cary Lane after staff reported the constructed pool, masonry retaining wall and ramp differ from the approved permit drawings.
Engineer Raul Lizardi presented the as‑built conditions and said the closest point of the deck and masonry wall to Buffer Zone A is roughly 5.9 feet. He and the applicant proposed removing an unpermitted fieldstone wall, removing fill between the fieldstone and masonry wall, and restoring the area with native plantings. The applicant offered to expand previously proposed improvement plantings from 50 square feet to 318 square feet.
Attorney Brian Wall, representing homeowner Donna Haber Kornberg, argued the as‑built condition meets the commission’s performance standards. "The as built location of the deck and block wall do not in any way impact wetland resource areas and represent no additional impact to the FWR buffer zone A compared to the approved locations," Wall said. He further argued there is no regulatory performance standard that prescribes an exact number of feet for an adjacent no‑structure zone and that, under the site conditions, a roughly 6‑foot no‑structure zone would meet the commission’s objectives.
Several commissioners disagreed on process and precedent. Commissioner Courtney said the commission had previously denied an amended request to allow the structure where it now exists and emphasized that the commission issued a valid order of conditions that was not followed: "You don't build pools and retaining walls and stone walls and stuff and then come and ask," she said. Other commissioners raised concerns about precedent, enforcement and whether a building permit had been issued for the as‑built work; staff clarified the building‑permit sign‑off had been for the originally approved plan, not the as‑built changes.
A neighbor, Douglas Wingrove, addressed the board in support of the owner and described her as an elderly, disabled long‑time resident for whom prolonged reconstruction would be burdensome: "She's 84 years old… Any prolonged reconstruction of this is going to deprive her of that," he said.
After argument and discussion the commission voted to close the hearing and take the matter under advisement; staff will draft an order of conditions or denial language for review and vote at the next meeting.
