The special permit granting authority (SPGA) shall be the Zoning Board of Appeals, the Planning Board, and the Select Board as specifically designated in this bylaw.
See Article 6, Use Tables, for more information on uses that require a special permit.
(1) 
Special permits - Specific types of uses, as described in this bylaw, shall be permitted only in specified districts upon the issuance of a special permit. Whenever a special permit is required, the Building Commissioner may not issue a building permit until a special permit application has been approved by the special permit granting authority and the applicant has also obtained all other permits and licenses, whether state, county, or municipal, that are a prerequisite to carrying out the proposed use of the premises.
(2) 
Fees - Each special permit granting authority may require fees, to be paid by the applicant, to cover the cost of advertising, notification by mail, and the reasonable cost to the town for processing the application. The fees shall be published in the rules and regulations of each special permit granting authority.
(1) 
Application filing - An application for a special permit shall be filed by the applicant with the Town Clerk and a copy of the application, including the date and time of filing certified by the Town Clerk, shall be filed forthwith by the applicant with the special permit granting authority. The effective date of filing is the date the application is concurrently filed with the special permit granting authority and the Town Clerk in accordance with MGL c. 40A, § 9.
(2) 
Public hearing - Within 65 days from the date of filing the application, the special permit granting authority shall hold a public hearing, for which notice has been given as provided in MGL c. 40A, § 11.
(1) 
Decision timeline - The special permit granting authority (SPGA) shall take final action within 90 days following the close of a public hearing for which notice has been given in conformance with the requirements of MGL c. 40A. The applicant or SPGA with the consent of the applicant, subject, may request, and the SPGA may grant, an extension to the 90-day limit, to the agreement being signed by the applicant and the SPGA and filed with the Town Clerk.
(2) 
Constructive grant - Failure by the special permit granting authority to take final action upon an application may be deemed to be a constructive approval of the special permit. The applicant who seeks constructive approval by reason of the failure of the special permit granting authority to act within the time prescribed, shall notify the Town Clerk in writing within 14 days of the expiration of 90 days or extended time, if applicable, of the approval and that notice has been sent by the applicant to parties in interest.
The applicant shall send the notice to parties in interest by mail and the notice shall specify appeals, if any, shall be made pursuant to MGL c. 40A, § 17, and shall be filed within 20 days after the date the Town Clerk received the written notice from the applicant that the special permit granting authority failed to act within the time prescribed. After the expiration of 20 days without notice of appeal to the Superior Court or Land Court, or if appeal has been taken, after receipt of certified records of the Superior Court or Land Court indicating that the approval has become final, the Town Clerk shall issue a certificate stating the date of approval, the fact that the special permit granting authority failed to take final action, and that the approval resulting from the failure has become final. The certificate shall be forwarded to the applicant.
(1) 
Review criteria - In addition to any specific requirements elsewhere in this bylaw, or where no specific restrictions are made applicable to a use allowed by special permit, the SPGA shall grant a special permit only upon its written determination that the proposed use will not have adverse effects that overbalance its beneficial effects on either the neighborhood or the Town, in view of the particular characteristics of the site. The provisions of § 240-12.1 shall not apply to, nor limit in any way, decisions issued under § 240-14.8. The determination shall indicate that the proposed use will be in harmony with the general purpose and intent of this bylaw, and shall include consideration of each of the following:
a. 
Adequacy of the site in terms of size for the proposed use;
b. 
Suitability of the site for the proposed use;
c. 
Impact on traffic flow and safety;
d. 
Impact on neighborhood visual character, including views and vistas;
e. 
Adequacy of method of sewage disposal, source of water, and drainage;
f. 
Adequacy of utilities and other public services;
g. 
The effect of the proposed project on the adequacy of the supply of affordable housing in the Town;
h. 
The decision of the Planning Board under § 240-12.2; and
i. 
Compliance with all applicable sections of this bylaw including, but not limited to, all performance requirements under §§ 240-13.1; 14.1; and 14.3.
(2) 
Affordable housing - For those special permits providing affordable housing, the SPGA shall require the following standards be met by conditioning the special permit accordingly:
a. 
The applicant shall comply with the regulations found at 760 CMR 56.03(2), or successor regulations regarding unit inclusion on the state's subsidized housing inventory.
b. 
All affordable homeownership units or affordable rental projects shall be governed by a use restriction, recorded with the Barnstable County Registry of Deeds, and shall comply with the provisions of 760 CMR 56.02, or successor regulations. The term of the restriction will be determined by the SPGA taking into consideration the following.
i. 
The type of unit being created;
ii. 
Whether there will be new construction or rehabilitation;
iii. 
The level of affordability; and
iv. 
The requirements of any subsidy program or agency.
c. 
The applicant or successor in interest shall be responsible for providing the following information to the SPGA or its designee, on an annual basis for affordable rental units, or upon sale of affordable homeownership units.
i. 
The bedroom size and the monthly rent, inclusive of utilities, or sales price;
ii. 
The household size and gross annual household income;
iii. 
Documentation of ongoing compliance with affirmative fair marketing requirements;
iv. 
Documentation shall be provided on an annual basis, for both homeownership and rental affordable units, that each unit is occupied by a qualified owner or renter, respectively, as a principal residence; and
v. 
Ongoing proof of a current monitoring services agreement with an affordable housing specialist that meets with the special permit granting authority's approval.
(1) 
Guaranty options - As a condition of the granting of a special permit for any uses requiring 20 or more parking spaces, as determined by § 240-14.1E, the SPGA shall require that construction and site alteration permitted, specified, or a condition of a by the special permit be secured by one, or in part by one and in part by the other, of the following methods, which method may be selected, and from time to time varied, by the applicant upon receiving prior written approval from the SPGA:
a. 
By a proper bond, deposit of money, or negotiable securities sufficient in the opinion of the SPGA to secure performance of the construction of buildings, parking areas, and appurtenances thereto, required for completion of the project as noted in the special permit and shown on any accompanying plans. The SPGA shall require that construction be completed within a specified period of time; or
b. 
By a covenant executed and duly recorded by the owner of record, running with the land, whereby construction will be completed before the buildings or appurtenances thereto may be eligible for an occupancy permit as required by § 240-2.1C.
(2) 
Guaranty release - Performance bonds, deposits, or covenants may be released, in whole or in part, from time to when the work has been satisfactorily completed in the opinion of the SPGA. The SPGA shall then release the interest of the Town in the bond, deposit, or covenant and return the bond or the deposit to the person who furnished it or shall release the covenant by appropriate instrument duly acknowledged and which shall be recorded at the Barnstable County Registry of Deeds.
(3) 
Guaranty release request - Request for a release shall be by certified return receipt letter to the SPGA and shall outline that portion of the work to be released and shall be accompanied by an engineer's or surveyor's certification that the work has been done in accordance with the requirements of the granted special permit.
(4) 
Certificate - If the SPGA determines that construction or site alteration has not been completed, it shall specify in a notice sent by registered mail to the applicant and to the Town Clerk, the details wherein construction or site alteration fails to comply with the special permit. Upon failure so to do within 45 days after the receipt by the Town Clerk of the request by the applicant, all obligations under the bond shall cease and terminate by operation of law, any deposit shall be returned, and any covenant shall become void. If the forty-five-day period expires without that specification, or without the release and return of the bond or return of the deposit or release of the covenant as aforesaid, the Town Clerk shall issue a certificate to that effect, duly acknowledged, which may be recorded.
(1) 
Referral to Town boards, commissions, departments - The Board of Appeals, Select Board, and Planning Board shall refer a special permit application to the Board of Health, Conservation Commission, Planning Board, Building Commissioner, Fire Department, and the Department of Public Works Water and Engineering Divisions for written comments and recommendations before taking final action on the special permit application. In addition to the above noted Boards, a special permit granting authority may refer a special permit application to any other Town agency, board, or department for comments and recommendations if it so desires before taking final action on the special permit application.
(2) 
Response deadline - Any board or agency to which applications have been referred for comment shall make its recommendations, and send copies thereof, to the SPGA and the applicant within 35 days of receipt of the referral request by the board or agency or there shall be deemed no opposition or desire to comment. The SPGA shall not act upon the special permit until either comments from referred boards or agencies have been received, or 35 days have elapsed, whichever is sooner. Applications referred to more than one board or agency may be reviewed jointly by the boards or agencies.
(1) 
Plan submissions - If the Building Commissioner determines that a structure or use requires multiple review under either § 240-12.1 or § 240-12.2 and any special permit review from any SPGA, the applicant shall submit materials to both boards according to their requirements within seven days of each other.
(2) 
Site plan review - Under multiple review, the Planning Board shall schedule a public hearing for a plan requiring site plan review under § 240-12.2 within 30 days of receiving the application and shall file the findings of its review with the Building Commissioner within 60 days after the public hearing. Time requirements for multiple review under § 240-12.1H shall remain as before.
(3) 
Building permit - Any structure or use that requires multiple review shall not receive a building permit until a special permit decision or a site plan review has been filed with the Building Commissioner under § 240-12.1 or § 240-12.2.
Unless otherwise provided by this bylaw a special permit granted under § 204-12.1 shall lapse three years from the date it is granted if a substantial use thereof has not sooner commenced except for good cause shown, or in the case of a permit for construction, if the construction has not begun by that date, except for good cause shown. The determination of good cause shall be made by the SPGA.
No special permit, or any extension, modification, or renewal thereof, shall take effect until a copy of the decision bearing the certification of the Town Clerk that 20 days have elapsed after the decision has been filed in the office of the Town Clerk and no appeal has been filed or that if an appeal has been filed, that it has been dismissed or denied.
(1) 
Purpose - A use for which a site plan review submission is required is a potentially significant addition to a developing or developed area of the Town, and to a residential, commercial, or industrial neighborhood. The purpose of site plan review is to ensure that the design and layout of certain developments permitted as a matter of right or by special permit will constitute suitable development and will not result in a detriment to the neighborhood or the environment.
(2) 
Plan compliance - The site plan for each use shall be prepared with due consideration for compliance with all applicable sections of this bylaw including, but not limited to, all performance requirements under §§ 240-13.1; 14.1; and 14.3, and parking and loading standards as may otherwise be adopted by the Planning Board.
(1) 
Required plan submission - A site plan review by the Planning Board shall be required in the following circumstances:
a. 
Any new development, redevelopment or expansion in use, other than one single-family or one two-family residence on a lot would that add 500 square feet or more of gross floor area or roof area or which would, under the parking table of minimum requirements of § 240-14.1E, require a total of two or more parking spaces based on the existing development, redevelopment, or new development, or require a change to the layout or location of two or more parking spaces, an increase in pavement of more than 300 square feet, or the alteration of any driveway; or
b. 
Any change of use which would, under the parking Table of Minimum Requirements of § 240-14.1E, require two or more parking spaces based only on new development, or grading or clearing more than 10% of a lot, except for the following:
i. 
Landscaping on a lot with an existing structure or a proposed single or two family dwelling;
ii. 
Clearing necessary for percolation and other site tests; work incidental to agricultural activity; or
iii. 
Work in conjunction with an approved subdivision plan.
c. 
An accessory apartment allowed as a matter of right or special permit shall be permitted only upon the approval of the Planning Board for site plan review.
(2) 
Administrative approval for minor alteration to building exterior or site - The Town Planner may authorize work to proceed without site plan review for minor alterations provided the following criteria are satisfied:
a. 
The proposed alteration shall not violate any provision of this bylaw.
b. 
The proposed alteration does not result in an expansion of the building footprint other than expansions required by the building code related to means of egress or accessibility.
c. 
The proposed alteration does not change the height or roof lines of any building.
d. 
The proposed alteration does not result in any substantial change in lot coverage.
(3) 
Waived requirements - The Board may waive, by an affirmative majority vote, any of the § 240-12.2 requirements, if it believes that the strict compliance with these rules and regulations will, because of the size or special nature of the proposed development, create an undue hardship on the applicant and not be in the public interest. Any waiver(s) requested by the applicant shall be submitted in writing by the applicant with the submission of the site plan review application.
(1) 
Filing - Applications for site plan review shall be filed with the Planning Board as specified in § 240-12.2D of the bylaw and § 300-10 of the Town Code of Falmouth.
(2) 
Public meeting - Before approval of a site plan review, the Planning Board shall solicit public comment at the public meeting where the plan is discussed. Notice that the Board will be accepting public comment shall be published in a local newspaper once at least one week prior to the date of the meeting and by notice to abutters within 300 feet of any part of the subject land of the application, by regular mail, at least two weeks prior to the date of the Board's meeting. The notice shall identify the site plan review application and the day, time, and location of the public meeting.
(3) 
Decision - The Planning Board shall act within 90 days of receiving a complete application for site plan review. Approval of the site plan review shall require a majority vote of the Board. Failure by the Planning Board to take final action upon an application shall be deemed approval of the plan.
(1) 
Specific plan requirements - Plans subject to site plan review shall be prepared by a registered architect, landscape architect, or professional engineer. The site plan shall be prepared at a scale not greater than one inch = 40 feet, and shall show all existing and proposed buildings, contour elevations, structures, parking spaces, driveway openings, driveways, service areas, facilities for sewage, refuse and other waste disposal, surface water drainage, and landscaping features such as fences, walls, trees, and planting areas, walks, and lighting.
(2) 
Plan submission requirements - The site plan shall show all resource areas excluded from lot area calculations as described in the definition of lot area found in § 240-3.3, all FEMA V and A Zones, and surface water bodies. The applicant shall submit a plan showing only existing conditions when required by the Planning Board. The site plan shall show the relation of locus map at a scale not greater than one inch = 2,000 feet. The site plan shall also show all contiguous land owned by the applicant or by the owner of the property.
(3) 
Additional information - The applicant shall submit information required by § 300-10, Article 11 of the Town Code, in addition to information on measures to prevent pollution of surface or ground water, soil erosion, increased runoff, changes in groundwater level, and flooding.
(4) 
Design requirements - The applicant shall submit information as required regarding design features intended to integrate the proposed new development into the existing landscape to enhance aesthetic assets and to screen objectionable features from neighbors. Design features shall include, but not be limited to: site planning, building placement, building size, design compatibility, exterior appearance, construction materials and finishes, parking and roadways, landscaping and site grading, and building entrance and exit placement.
(5) 
Traffic information - The applicant shall submit materials required regarding the projected traffic flow patterns into and upon the site for both vehicles and pedestrians and an estimate of the projected number of motor vehicle trips to and from the site for an average day and for peak hours.
(1) 
Vehicular matters - Provisions shall be made for vehicular access to the lot and circulation upon the lot in a manner as to safeguard against hazards to traffic and pedestrians in the street and in the lot, to avoid traffic congestion on any street, and to provide safe and convenient circulation in the street and in the lot.
(2) 
Requirements - The following access and circulation requirements shall apply:
a. 
Where reasonable alternate access is available, the vehicular access to the lot shall be arranged to avoid traffic use of the local residential streets situated in or bordered by residential districts.
b. 
Where a lot has frontage on two or more streets, the Planning Board may require that the access to the lot be provided across the frontage and to the street where there is lesser potential for traffic congestion and for hazards to traffic and pedestrians.
c. 
Where necessary to safeguard against hazards to traffic and pedestrians or to avoid traffic congestion, provision shall be made for turning lanes, traffic directional islands, driveways, and traffic controls within the streets.
d. 
Access driveways shall be of a design and have sufficient capacity to avoid queuing and entering vehicles on any street.
e. 
Driveways into the lot shall have grades and alignments, and transition grades and sight distances that allow for safe, convenient, and efficient access, and shall meet the street right-of-way line and pavement in a manner as to conform to the standard cross section for the street as determined by the Director of the Department of Public Works and the Planning Board.
f. 
Where topographic and other conditions are reasonably practical, provision shall be made for circulation drive aisle connections to adjoining lots of similar existing or potential use.
g. 
For the purpose of facilitating fire protection services or enabling the public to travel between two existing or potential uses that are open to the public without the need to travel on a street, provision shall be made for drive aisle access between or among adjacent properties where feasible.
h. 
There shall be no more than one driveway connection from any lot to any street, except that separate entrance and exit driveways may be provided where necessary to safeguard against hazards and to avoid congestion. Additional driveway connections may be provided, particularly for, but not limited to, large tracts of land and uses of extensive scope, if traffic flow in the street will be facilitated by the additional connection.
i. 
Driveways shall not exceed 24 feet in width at the street line, or a lesser width as will be sufficient to accommodate the traffic to be generated unless a greater width is required by a Town bylaw or the Commonwealth of Massachusetts.
Where the lot has frontage on an existing street, provision shall be made for grading and improvement of shoulders and sidewalk areas within the right-of-way of the street and for provision of curbs and sidewalks.
Section 12.2 is supplementary to other bylaw sections affecting the access, circulation, design, and landscaping of parking areas. Where the application of § 240-12.2 imposes a greater restriction than is imposed by other bylaw sections, the application of § 240-12.2 shall control.
(1) 
Three-year approval - A site plan review decision shall lapse three years from the date it is granted if substantial use thereof has not sooner commenced except for good cause. The determination of good cause shall be made by the Planning Board.
(1) 
Variances - The Board of Appeals shall have the power to hear and grant a petition for a dimensional variance with respect to both land and structures, from the terms of the applicable zoning.
(2) 
Findings - The Board shall specifically make findings related to both of the following criteria:
a. 
Owing to circumstances relating to the soil conditions, shape, or topography of land or structures, especially affecting the land or structure but not affecting generally the zoning district in which the land or structure is located, a literal enforcement of the provisions of MGL c. 40A, § 10, and § 240-12.3 would involve substantial hardship, financial or otherwise, to the applicant or appellant; and
b. 
Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of MGL c. 40A, § 10, and § 240-12.3.
(1) 
Use variance - No use variance may be authorized in any zoning district. However, a properly granted use variance approved prior to the first adoption of Chapter 240 on April 2, 1979, may be extended, altered, or changed.
(2) 
Process - The owner of a lot where the use is governed by a properly granted use variance may apply to the Board of Appeals for an alteration, modification, or change of use. An alteration, modification, or change of use shall reflect changes in the neighborhood and important planning issues before the Town that have arisen subsequent to the date of the original variance and shall, in the opinion of the Board, not be more detrimental than the existing use permitted by variance in the neighborhood. Requests may only be made for modification, alteration, or change of use and not for an extension in physical area or an increase in the intensity of the proposed use from the use originally granted.
The Zoning Board of Appeals may impose conditions, safeguards, or limitations, both of time and use, including the continued existence of any particular structures, but excluding any condition, safeguard, or limitation based upon the continued ownership of the land or structures to which the variance pertains by the applicant, petitioner, or any owner.
Rights to a variance shall be exercised within one year from the date of the grant of the variance or the rights shall lapse. However, the Zoning Board of Appeals, upon written request and notice by the applicant, may extend the time for those rights for a period not to exceed six months. The application for an extension beyond the original one-year period shall be filed prior to the expiration of the one-year time period. The ZBA has 30 days in which to act on the request, and if it fails to do so, the rights may be reestablished only after notice and a new public hearing pursuant to the provisions of § 240-12.3.
An application for a variance shall be made to the Town Clerk with a copy of the application transmitted to the ZBA forthwith. The ZBA may require fees to be paid by the applicant to cover the cost of advertising, notification by mail, and reasonable costs to the Town in processing the application. Fees shall be published in the adopted Rules and Regulations of the Zoning Board of Appeals.
(1) 
Public hearing - The Zoning Board of Appeals shall hold a hearing on a variance application filed with the Town Clerk within 65 days from the date of the filing with the Town Clerk.
(2) 
Notice - Public hearing notice shall be given by posting and publishing, and by mailing to all parties in interest as required by MGL c. 40A, § 15.
The concurring vote of four members of the Board of Appeals shall be necessary to approve a variance application.
(1) 
Decision timeline - The decision of the Board of Appeals shall be made within 100 days after the date of the filing of an application for a variance, or an extended period of time requested by the applicant or ZBA, agreed upon by both parties, and subject to a written agreement being filed with the Town Clerk. The Board has an additional fourteen-day subsequent deadline beyond the 100 days in which to file its decision.
(2) 
Constructive grant - Failure by the Board of Appeals to act within 100 days or an agreed upon extended time shall be deemed to be a constructive grant of the variance. The applicant who seeks approval by reason of the failure of the Board of Appeals to act within the time prescribed shall notify the Town Clerk in writing within 14 days from the expiration of the 100 days or extended time, if applicable, of such approval by failure of the Board to act and that notice has been sent by the applicant to parties of interest. The applicant shall send notice to parties in interest by mail. Each notice shall specify that appeals, if any, shall be made pursuant to MGL c. 40A, § 17, and shall be filed within 20 days after the date the Town Clerk received the written notice from the applicant that the Board of Appeals failed to act within the time prescribed.
After the expiration of 20 days without notice of appeal or, if an appeal has been taken, after receipt of certified records of the Superior or Land Court indicating that the approval has become final, the Town Clerk shall issue a certificate stating the date of approval, the fact that the Board of Appeals failed to take final action and that the approval resulting from failure of the appeal has become final, and the certificate shall be forwarded to the applicant.
The Town Clerk's certificate shall be recorded in the Registry of Deeds for Barnstable County and indexed in the grantor index under the name of the owner of record and noted on the owner's certificate of title.
No variance, or any extension, modification, or renewal thereof, shall take effect until a copy of the decision bearing the certification of the Town Clerk that 20 days have elapsed after the decision has been filed in the office of the Town Clerk and no appeal has been filed or that if an appeal has been filed, that it has been dismissed or denied.
(1) 
Appeal - An administrative appeal to the Zoning Board of Appeals may be taken by the following parties:
a. 
A person aggrieved by reason of inability to obtain a permit or enforcement action from an administrative officer under the provisions of this bylaw or MGL c. 40A, § 8;
b. 
A person, including an officer or board of the Town of Falmouth or of any abutting town, aggrieved by an order or decision of the Building Commissioner or other administrative officer, in violation of provisions of this bylaw or MGL c. 40A; and
c. 
The Cape Cod Commission.
(2) 
Timeline - An appeal shall be initiated within 30 days from the date of the order or decision being appealed, by filing a notice of appeal, specifying the grounds thereof, with the Town Clerk.
(3) 
Procedure - The procedure outlined in § 240-12.3F through § 240-12.3I shall be followed for action on appeals, all subject to the requirements of MGL c. 40A.
(4) 
Constructive grant - The constructive grant process shall be in accordance with § 240-12.3H(2).
(1) 
Appealable decisions - A person or board aggrieved by a decision of the Zoning Board of Appeals on a variance or an administrative appeal by the special permit granting authority (Zoning Board of Appeals, Planning Board, or Select Board, as specified in this bylaw) on a special permit, and by the Planning Board on a site plan review, whether or not previously a party to the proceeding, may appeal to the Superior Court or Land Court or other court as applicable in accordance with MGL c. 40A, § 17.
(2) 
Appeal process - The appeal shall file a notice of appeal, specifying the grounds thereof, with the Town Clerk in accordance with the provisions of MGL c. 40A, § 17. The appeal shall be filed within 20 days from the date that the Board's decision is filed with the Town Clerk.
(1) 
Two year requirement - An appeal or variance application (Zoning Board of Appeals), or special permit application (Zoning Board of Appeals, Planning Board, or Select Board) that has been denied by the board shall not be acted favorably upon by the respective board for a period of two years unless the following two conditions are met:
a. 
All but one member of the entire Planning Board shall vote their consent to the refiling of the application for any appeal, variance, or special permit within the two-year period; and
b. 
The Zoning Board of Appeals (acting as the permit granting authority or special permit granting authority), the Planning Board (acting as the special permit granting authority), or the Select Board (acting as the special permit granting authority) finds that there are specific and material changes in the conditions upon which the previous unfavorable action was based and describe those changes in its record of the meeting.
(2) 
Process - The actions of any of the boards involved in a repetitive petition process shall be taken in accordance with MGL c. 40A, § 16 and include notice to the parties in interest as to the time and place of the meetings.