Falmouth again rethinking seaside zoning regulations

1:00 AM

By Kelley Bouchard kbouchard@mainetoday.com
Staff Writer

FALMOUTH -- When Dick and Pat Traynor bought their modest, one-story ranch on a bluff overlooking the town landing and Casco Bay in 2010, they anticipated adding a small second story to accommodate visiting children and grandchildren.

The retired couple figured the town would approve the plan, since theirs was the only house in the waterfront neighborhood that didn't have a second or third story. They were wrong.

Neighbors who live behind the Traynors fought the expansion plan when it went before the Board of Zoning Appeals. They pointed to the town's unusual 2006 ban on additions that would have "a significant adverse impact on water views" from nearby properties. The Traynors ultimately withdrew the plan and settled for a much smaller, ground-level expansion.

"It got so acrimonious, we gave up on the idea of having a second story," Dick Traynor recalled. "Our house is still the runt on the Falmouth waterfront."

Repeatedly faced with similar battles over precious water views, Falmouth officials are again rethinking seaside zoning regulations. They'll take a first step on Monday, when the Town Council receives a proposal to create a Waterview Overlay Zone. Future proposals promise to be controversial, including one that would turn back the clock on house- and lot-size requirements set in the 1960s.

The reason for the conflict is clear -- waterfront property values have skyrocketed in recent years, and tax bills on lots in the Foreside neighborhood are two-and-a-half to nine times higher than elsewhere in Falmouth. But while many communities have wrestled with the value of water views -- and government's role in protecting competing interests of private property owners -- Falmouth may stand alone in passing zoning specifically designed to preserve private water views.

In a search of communities across the United States, Falmouth officials found none that went beyond protecting public "viewsheds," such as forested hillsides and scenic highways, according to Amanda Stearns, Falmouth's community development director.

In Maine, Camden has zoning that protects scenic coastal corridors and landscapes, and Bar Harbor protects vistas in its Town Hill and downtown districts. If pressed, municipalities may choose to protect private water views under more general zoning language that limits a project's negative impact on neighbors' property values.

"Towns usually don't get involved," Stearns said. "We didn't find other communities that expressly assist residents in protecting their water views. In most communities, unless you buy waterfront (property), you risk losing your water view."

Protecting water views

Falmouth moved to protect water views in 2006, after a number of waterfront property owners built larger homes that obscured upland neighbors' views. The Board of Zoning Appeals asked the Town Council to review the zoning last fall to make it more clear and less cumbersome.

"The board's reasoning is that 'significant adverse impact' is so ambiguous that it should either be amended to provide greater clarity or repealed," wrote Jay Meyer, appeals board chairman, in an Oct. 19 letter to the council.

At least one board member worried that by enforcing the zoning, the board is effectively taking away property rights and granting view easements to neighbors without compensating property owners who are being denied permission to expand, Meyer wrote.

Councilor Tony Payne, chairman of the committee that's reviewing waterfront zoning, shares the appeals board's concerns.

Payne said the only sure way to prevent a neighbor from obscuring a valued water view is to buy view rights, just as people buy easements to run a sewer line or build a driveway across a neighbor's land.

"A view easement is attached to the deed, so it preserves property rights in a legal way and makes it an economic decision, too," Payne said.

Still, Payne said, current waterfront zoning is unclear and unfair to both residents and the board, and it needs to be fixed.

"We're trying to be mindful of property owners' rights," Payne said. "The question is, where do my rights end and where do my neighbors' begin and what am I allowed to do with my property?"

Three proposals

On Monday, the Town Council will receive a proposal to create a Waterview Overlay District encompassing the Foreside and Flats neighborhoods east of Route 88, including Mackworth Point. The proposal was developed by Stearns and the council's Community Development Committee.

If approved, all property owners in the overlay district would need a conditional use permit to expand a single-family structure, demonstrating that a project is compatible with the neighborhood and won't have a significant adverse impact on others' water views.

Under current zoning, all nonconforming uses in town need a conditional use permit. Under the proposed change, nonconforming uses outside the Waterview Overlay District would need only a building permit from the code enforcement officer.

Falmouth officials are developing a second waterfront zoning proposal that would introduce a neighborhood negotiating process to the review of projects in the overlay district, Stearns said. Neighbors could sign off on a project or municipal staff would help negotiate a resolution before presenting it to the appeals board.

A third proposal, destined to be the most controversial, would call for changes in the dimensional requirements within the overlay zone, so the size and placement of homes would be more in keeping with the historical appearance of the waterfront area, Stearns said.

Many waterfront homes built at the turn of the last century were one- or two-story cottages set on small lots. Town zoning passed in 1965 established a minimum lot size of 20,000 square feet, she said, and the maximum height allowed in the waterfront area is 35 feet.

Town officials would review the sizes of houses and lots throughout the overlay district and establish reduced dimensional requirements reflecting a majority of properties, Stearns said. The new requirements would stop short of regulating architectural style.

"This would be a huge step," Stearns said. "The current requirements take the neighborhood character away. This would be a return to the seaside village character. It would say that we like the form of the neighborhood as it is, so we want to perpetuate that."

For better or worse

The three waterfront zoning proposals are liable to get mixed reviews.

Matt Manahan, a land-use lawyer with Pierce Atwood in Portland who represents some of the Traynors' neighbors, said the first two zoning proposals make sense, but the third could make matters worse.

Manahan said trying to legislate the character of the Foreside neighborhood would make waterfront zoning more subjective and the project-review process more time-consuming, expensive and controversial.

"If you try to determine what the neighborhood character is, you may protect some water views but open the area to more intensive development," Manahan said.

If the concern is that some people will build "megamansions," he said, then reducing the height limit should be enough.

Manahan represents Christopher Green in particular, whose house at 11 Ayers Court is located directly behind the Traynors' house at 20 Burgess St.

The tax bill on Green's two-story, 1,456-square-foot cottage, built in 1900, helps to explain why he fought to preserve his water view.

Like all non-waterfront properties in the Foreside neighborhood east of Route 88, the $329,000 assessed value of Green's 3,000-square-foot lot is 2.5 times higher than average lots elsewhere in town, said Town Assessor Anne Gregory.

The lot's assessed value is an additional 50 percent higher because Green has a water view, which accounts for $100,000 of his total $486,000 property assessment, which includes $157,000 for the house. His view accounts for $1,292 of his $6,279 annual tax bill.

In comparison, the Traynors' waterfront lot, which measures less than one-third of an acre, has an assessed value of $743,000 - nine times higher than average lots elsewhere in town, Gregory said. There are 87 waterfront lots in Falmouth that are assessed at this rate.

The Traynors' total property assessment is $899,000, including a 3,178-square-foot house assessed at $155,000, and their annual tax bill is $11,615.

In the wake of the appeals board battle in 2010, the Traynors have tried to come to terms with the limited use of their property.

Dick Traynor, an 83-year-old lawyer, dons a wet suit and swims daily, May through October, off the beach in front of their house. They both enjoy walking the hills throughout the Foreside neighborhood and relish their beautiful views of Casco Bay.

But Pat Traynor, 75, is still angry and says she wouldn't have bought the house if she had known they couldn't add a second story. Dick Traynor struggles to be more forgiving, noting that while zoning prevented them from building an addition with a 25-foot-high peak, they could plant evergreens that would grow 90 feet tall.

"This is an emotional, vexing problem," Dick Traynor said. "I don't envy the Town Council or the appeals board one bit."

Continued here:
Falmouth again rethinking seaside zoning regulations