Zoning Bylaw Recodification

Phase 1: Reformat, Reorganize, Clarify, and Update

The first phase of this project involved recodifying the Town’s Zoning Bylaw into a “new version" having a redesigned, contemporary, sound framework, and solid foundation. This new Zoning Bylaw has all of the basic provisions of the old Zoning Bylaw; the text was was transferred, repositioned, and renumbered and some new information was added and necessary changes were made. The Recodified Zoning Bylaw can be found here:

 Town of Falmouth Massachusetts Zoning Bylaw, Town Code Chapter 240 Articles 1 – 14, November 2022

What happened in Phase 1?

Phase 1 included amending the Zoning Bylaw to renumber, recaption, and recodify, and to make clerical and substantive revisions by (a) reorganizing the layout of the Bylaw and adding tables; (b) assigning new article numbers; (c) renumbering sections of the Bylaw accordingly, (d) updating internal references to reflect the new numbering system, (e) updating the existing text to conform with State statutes and regulations; (f) adding new text to provide clarity, specificity, and structure; (g) correcting typographical errors, (h) eliminating outdated references and terms, and (i) adding recent Town Meeting approved bylaw language where necessary.

Attorney General Review

As required by G.L. c.40, s.32, the Recodified Zoning Bylaw approved at the November 2021 Town Meeting, was sent to the Municipal Law Unit of the Office of the Attorney General for their review and approval. In July, the town received an informal review from the AG's Office indicating that the Recodification effort included substantive changes, not just reformats, updates or clarifications. They were concerned that Town Meeting members were not adequately informed about the changes when they voted to approve the new Zoning Bylaw because the Warrant Article did not identify that the proposed Bylaw included changes. The AG's Office review and our consultant's responses can be found here.

A brief summary of "where we are now" and the path forward can be viewed here and in the video below. If you still have questions, feel free to download our FREQUENTLY ASKED QUESTIONS document or simply contact the Planning Office at 508-495-7440.

Summary of Proposed Changes for Fall Town Meeting (Overview):

SECTION PROPOSED ZONING BYLAW CHANGES
The following is an overview of the substantive changes to the Zoning Bylaws that the Planning Board is recommending for Town Meeting approval. 
ARTICLE 1 - PURPOSE AND AUTHORITY   
240-1.1 A(1) - Intent
New: New Text

Why: This paragraph is new to create an intent before the purpose.
240-1.1 A(1) - Purpose Old text – to conserve health 
New text – to protect the public health, safety and welfare of the community

Old text – to conserve the value of land and buildings, including the conservation of natural resources and the prevention of blight and pollution of the environment.
New text – (h) to conserve the value of land and buildings and to prevent blight; (i) to protect and enhance the conservation of natural resources and the environment

Why: To add clarifying and clearer language
Sec 240-1.1B - Authority New: New Text

Why: This language helps clearly state where the authority to adopt zoning derives. 
ARTICLE 2 - ADMINISTRATION AND ENFORCEMENT  
Sec 240-2.2A - Planning Board Overview
New: New text

Why: There was a section for the Zoning Board Overview but not one for the Planning Board to explain their duties.
Sec 240-2.3A (3) - ZBA powers New: New text

Why: Deciding special permits is a statutory power of the ZBA and this explains that.  
ARTICLE 3 - DEFINITIONS  
240-3.1A (1)(2) and (3) - Terms 
New: New Text

Why: Article 3 Definitions was part of the Consultants’ contract to reorganize, rewrite some definitions for clarity and add missing definitions. Based on many conversations with the Planning staff and the Workgroup , the result was a the updated Definitions Article in the Recode.
240-3.2 - Index of Defined Terms New: New text

Why: An index of definitions was added for ease of use
240-3.3 - Definitions
New: Added definitions 

Why: This improves the clarity of terms used in our bylaws making them easier to use and understand as well as making them easier for the town to administer fairly, avoiding the need for legal or professional counsel to understand them.
ARTICLE 5 - USE REGULATIONS  
240-5.1 - Use Regulations – Requirements
Old: Previous language stated building permit construction shall commence within 6 months after issuance
New: Changed to within 12 months

Why: Updated to reflect state law 
240-5.1F – Temp Structures and Uses Old: Allowed a tent for a maximum of 3 days
New: Removed time limit and now is subject to reasonable conditions 

Why: To provide residents with the ability to have more time if needed for events
ARTICLE 6 - USE TABLES  
240-6.2 - Business District
Old text: no mention of the use of funeral homes
New text: Table of uses – special permit uses – funeral homes – allowed by SP-Z in B1, B2 and B3 

Why: The old text called this use “undertaker.” “Undertaker” is not a use, it is a profession. It was agreed to change this to “funeral home.”

Old text: no mention of the use agricultural, horticultural and floriculture in the BR district (240-240)
New text: Table of Uses allows agricultural, horticultural and floriculture in the BR by right (Y) 

Why: Agricultural horticultural and floricultural uses are by-right uses under Chapter 40A, section 3. These uses were added to be in accordance with state statute.

Light Industrial C District
Old text: Section 240-64.2 does not permit any community service uses in the LI-C district
New Text - Table of Uses allows religious institutions by right in the LI-C district. 

Why: Religious institutions are a protected use allowed in any zoning district by C. 40A, section 3. This brings the Bylaw into conformance with state statute.

Old text: Section 240-64.2 does not permit any municipal uses in the LI-C district
New text: Table of Uses allows municipal uses by right in the LI-C district. 

Why: Municipal Uses were allowed in LI-A and LI-B and there appeared no reason to not allow it in LI-C
240-6.4 - Marine District Old text: Section 240-41 is silent as to religious institutions
New text: Table of Uses allows religious institutions by right in the Marine District 

Why: Religious institutions are a protected use allowed in any zoning district by C. 40A, section 3. This brings the Bylaw into conformance with state statute.
240-6.6 - Residence Districts (AA,A, B, and C)
Old text: identifies sanitoria (240-23 (C)) and allows it by SP
New text: This terms were deleted 

Why: Sanatoria was deleted as an archaic term.
240-6.7 - Senior Care Retirement District Old text: Section 240-65.1 does not mention religious institutions
New text: Table of uses allows religious institutions by right in the Senior Care Retirement District

Why: Religious institutions are a protected use allowed in any zoning district by C. 40A, section 3. This brings the Bylaw into conformance with state statute.
ARTICLE 7 - OVERLAY DISTRICTS  
240-7.1 - Accident Prevention Overlay District
240-7.3 - Floodplain Overlay District 
New text: adds “Overlay” to the Title. 

Why: To make the titles of all Overlay Districts consistent, those without “Overlay” in their title had that word added.
240-7.1A - Use Table

Section 240-7.4 - Large Scale Ground Mounted Solar Overlay District 

Section 240-7.6 - Water Resource Protection Overlay District

Section 240-13.2B - Performance Indicators and Summary (Table)
New: Added a Table to these sections 

Why: Easier to read
240-7.1B - Height Limitation New: "in height above the ground" was added 

Why: To clarify from where the height measurement is to be taken. 
240-7.3 - Floodplain Overlay District  Old text: Section 240-80 references maps dated July 1992 and May 1986.
New text: Section 240-7.3A (2) references a map dated July 2014. 

Why: Updated the text to reflect the date of the Flood Insurance Rate Maps being used by the Federal Government and the Town.
Section 240-7.5 - Search and Rescue Corridor Overlay District  Old text: Section 240-186 states the purpose is to preserve three-thousand foot wide helicopter flight corridor.
New text: Section 240-7.5A states the purpose is to preserve two three-thousand foot wide helicopter flight corridors.

Why: This clarifies that there are two corridors in this District.
ARTICLE 9 - SPECIAL USE REGULATIONS  
240-9.4 - Commercial Accommodations 
Old text: Section 240-144 allows garages only where “lot size is such as to make it possible
[sic] no injury to the neighborhood”
New text: Section 240-9.4C. Adds new text about lot area of a parcel where a garage is located, must be sufficient size to minimize or prevent negative impacts to those properties in the neighborhood that are “parties in interest.” 

Why: New text made this section more sensible. Old text used the phrase “injury to the neighborhood.” Workgroup discussion around how a neighborhood is injured and how is a neighborhood defined. Both very vague terms. New text intended to be more specific as to who might be affected by impacts.
240-9.6 - Marijuana Treatment Centers Old text: Section 240-250 (D) requires a MTC to be approved for operation with a certificate of registration from CCC. Text also references 935 CMR 501.
New text: Section 240-9.6A (3) (b) requires a MTC to have a license from the CCC and a registration issued by DPH. Text also references 105 CMR 725.

Why: State Marijuana regulations changed since the town initially adopted Marijuana regulations. The new text brings the Bylaw into conformance with state statutes and regulations.
240-9.7 - Planned Residential Development  New text: Section 240-9.7H (3) allows the Town to own the open space and limits the use of the open space for recreation, parkland and open space. 

Why: The current bylaw language infers that the open space can be dedicated to the Town. New text simply clarifies that it can be dedicated to the Town. Language related to use of open space is not new language. It is in the current Bylaw.
ARTICLE 12 - LAND USE PERMIT REQUIREMENTS  
240-12.2 - Site Plan Review Old text: Section 240-198.1 provides that a site plan shall lapse after 2 years.
New text: Section 240-12.2H states that site plan shall lapse after 3 years.

Why: State statute changed from 2 years to 3 years for special permits. Workgroup agreed to change it to 3 years for site plan review as well.
240-12.3 - Variances Old text: Section 240-204 prohibits use variances except use variances granted prior to the
date of adoption of this charter may be altered etc.
New text: Section 240-12.3 prohibits use variances except those granted prior to the “first
adoption of Chapter 240 on April 2, 1979” may be altered etc. 

Why: Text was changed to provide the specific date it was adopted so that Town staff, boards and citizens will easily know the cut-off date.
Section 240-206, Section 240-210, 240-12.4, “Administrative Appeal,” Section 240-12.5 “Judicial Appeal,” and Section 240-12.6, “Repetitive Petition” Old text: Section 240-206 states a variance lapses after one year and may be reestablished only after a new hearing.
New text: Section 240-12.3D authorizes the ZBA to extend a variance for 6 month and extensions beyond 1 year must be filed before the 1 year expiration. 

Why: This is language direct from Chapter 40A and should be in every zoning bylaw as a point of information for the ZBA and applicants. 
ARTICLE 13 - PERFORMANCE REQUIREMENTS  
Section 240-13.2A - Restaurant Classification Calculation 
New: New text

Why: Added to provide an introductory explanation to one of the more challenging sections of the Bylaw – Restaurant Performance Standards - to assist the reader in understanding this section.
240-13.2B - Performance Indicators and Summary Old text: column C for hours of operation says “noon”
New text: column C for hours of operation says “both AM & PM”

Why: Consultants’ pointed out that literally interpreted, “Noon” would mean the restaurant could only be open for a minute (a second?) each day Workgroup agreed and changed the text to “AM and PM.”
240-13.2C - Restaurant Classification This is an additional informational paragraph to clarify what the total ;points mean as to the Restaurant classification category.
240-13.2D - Restaurants – Use Tables New: New text

Why:  Added a cross reference to Article Six – Use Tables to direct the reader to that Article to understand in which zoning districts the different restaurant are allowed, or not allowed.
ARTICLE 14 - GENERAL REGULATIONS  
240-14.1 G(2) - Handicapped Parking Off Street Parking Standards changed Handicap Parking text to “whichever is greater” form “whichever is more restrictive” (“Handicap parking shall be provided in accordance with the requirements of the MA Building Code or the Architectural Access Board, whichever is greater.”) 

Why: This change was made by the Workgroup to simply have a more accurate statement. Whichever of the two (Building code or AAB) requires a greater number of parking spaces, that is the standard to be used.
240-14.3 - Landscaping Old text: When planted, street trees shall have a trunk diameter of at least two inches at a height of four feet six inches and shall be free of limbs below seven feet.
New text: When planted, street trees shall have a trunk caliper of at least 3 inches at a height of four feet and shall be free of limbs below seven feet. 

Why: Changed because caliper is the correct term for this requirement. Recommended by staff and Workgroup agreed.
240-14.5 G (1)(c), Denial of Permit, Special Permit Criteria Old text: There is insufficient vegetative barrier to remain on the property upon completion of the project to prevent view of this project from a way.
New text: There is no plan showing a vegetative barrier to remain on the property, or to be planted upon completion of the project, which would prevent view of the project from a street.

Why: Workgroup discussion tweaked existing text to strengthen the language related to the vegetative barrier.
240-14.6 - Subdivision Phasing Old text: two sections of the old text (240-167 and 240-171 (A)(1)) refers to “multifamily open space developments” and “multifamily open space residential development” respectively
New text: the two sections of the new text (240-14.6B and 240-14.6E (1)(v)) refers to “Planned Residential Developments” instead.

Why: There is no “multifamily open space residential development” procedure in the zoning bylaw. The correct reference should have been, and now is, Planned Residential Development.
240-14.6E(2) - Impacts  Old text – Section 140-171 (B) says in relevant part: “people of low and moderate income as well as Master Plan or growth management plans”
New text – Section 240-14.6E (2) says in relevant part: “people of low and moderate income, as well as the Local Comprehensive Plan or growth management plans”

Why: The name of the Falmouth plan is “Local Comprehensive Plan,” not “Master Plan.” Thus, this was changed to use the correct title.

Phase 2: Modify & Amend

The second phase of the project is focused on reviewing the bylaw for errors, inconsistencies, or areas that need to be better defined. This work will likely happen over several months and will involve a number of meetings of the Working Group. The Zoning Bylaw Issues Topic for Phase 2 document below is an outline of the topics that will be part of this phase.

Working Group

  • Charlotte Harris, Planning Board Member
  • Pat Kerfoot, Planning Board Member
  • Jed Cornock, Planning Department 
  • Michaela Shoemaker, Planning Department
  • Frank Duffy, Town Counsel
  • Noreen Stockman, Zoning Board of Appeals
  • D. Scott Peterson, Zoning Board of Appeals Member
  • Robert Dugan, Zoning Board of Appeals Member
  • Gary Street, Interim Building Commissioner
  • Jonathan Dickinson, Assistant Zoning Compliance Agent

Zoom Meeting Link for Meetings : https://us06web.zoom.us/j/88303236190