Falmouth developer feels unfairly targeted by proposed moratorium

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FALMOUTH — Two projects, one on Blackstrap Road and another on Middle Road, would create housing development not previously seen in town.

That’s a reason the Town Council is considering a moratorium on two-family and multifamily projects in Falmouth’s new growth districts.

Created in the summer of 2016 under the town’s updated Comprehensive Plan, the rules covering the growth districts were initially designed to bring a diversity of housing types to town.

But public reaction to the projects shows that the council moved “too far, too fast,” Councilor Karen Farber said last week.

In weighing whether to impose a moratorium that would bring a temporary halt to these dwellings in certain areas of Falmouth, the council is also considering making the prohibition retroactive.

Residents at a special meeting Monday urged the council to go back as far as 2016 to stop a 32-unit project off Blackstrap Road, which is being developed by Jim Cummings.

But when Cummings spoke to the council Monday, he said it would be patently unfair, unprecedented and not good business practice to change the rules midstream.

His project has already received preliminary approval from the Planning Board and is slated for a final vote in early November.

Tuesday Cummings said he can understand the town feeling it made a mistake.

“It’s fair for them to take a step back, but not to blindside me 14 months in,” he said.

At Monday’s meeting, Cummings said he’s already invested $500,000 in his project.

Also Monday, his attorney, Michael Traister, said a retroactive moratorium would not be fair because Cummings’ project has already received “substantive review” and Cummings proposed the project “under the ordinances and acted in good faith.”

Traister also encouraged the council to “consider the broader policy and precedent. The business community needs stability, which means not changing the rules after the fact.”

If the council wants to revisit the zoning ordinances governing the town’s growth districts, Traister said it can do that, but “it shouldn’t be retroactive. (That) would be an unusual and unprecedented step.”

Adrienne Fine, Cummings’ engineer on the Blackstrap Road project, which is called Tuscan Way, also argued against a retroactive moratorium Monday.

She said the development is specifically “designed to meet the purposes of the new ordinances” and that it’s gone through “a rigorous Planning Board process.”

“(We) followed the ordinances to a T,” Fine said. “Don’t go retroactive on a project that’s near to final approval.”

Real estate agents Tim and Marie Flaherty also spoke in defense of Cummings Monday, with Tim Flaherty calling the proposed moratorium “an over-reaction.”

And Marie Flaherty said Cummings’ development answers the town’s call for “more diverse and affordable housing.”

She also said it responds to a segment of home buyers looking for “low-maintenance living.”

Flaherty said that Cummings has been “unfairly targeted” and that the council’s proposed moratorium “should matter to every landowner because it sets a dangerous precedent.”

Without weighing in on the merits of either the Tuscan Way or Middle Road projects, Christopher Hickey, a former member of the Planning Board, spoke up generally in favor of new development.

“If you don’t allow new development, you stifle the ecosystem that makes up the community,” he said.

In remarks following Monday’s public comments, Farber said “development is going to happen whether we like it or not. Our goal is to direct and control (that) growth.”

And in defending the moratorium, which was her idea, Councilor Claudia King said implementing the measure “is in no way a knee-jerk reaction” or an action that the council takes lightly.

In the end, the council agreed to move forward with two moratorium proposals; one would include a retroactivity clause, while the other would not.

Kate Irish Collins can be reached at 710-2336 or kcollins@theforecaster.net. Follow Kate on Twitter: @KIrishCollins.

Signs opposing a 32-unit condominium project off Blackstrap Road in Falmouth have popped up in the neighborhood as the Town Council is considering a moratorium on two-family and multifamily housing developments.

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  • Whitney Bradford

    While I understand the financial implications that retroactivity could bring to a developer or two, think about the neighborhoods that will be forever changed by building these dense duplex/condo developments. We are NOT against development, just the density. Can anyone honestly say that they would like to have 32 units, on less than 3 acres of land, plunked down on their cul-de-sac?!

  • Evelyn Hundley

    I am an abutter to Mr. Cummings project. I am not opposed to Mr. Cummings building on his property. I am not opposed to Mr. Cummings building on his property. I feel like I’ve been saying this over and over and over again. When Mr. Cummings signed his purchase and sale agreement on 8-22-16, it was contingent on him getting town preliminary approval to build 14 homes on the Tuscan Way property. I would welcome his 14 homes. But not 16 duplexes consisting of 32 families. The scope and density of this project is not good for the environment (they cannot put in town septic and septic proposed is inadequate), the rural neighborhood, the traffic, and the character of this part of Falmouth. The Falmouth town Council have all admitted that the wording of the new zoning which was enacted a year ago had “unintended consequences.” Mr. Cummings project as it is proposed is taking advantage of the unintended consequences and everyone knows this, including Mr. Cummings. We’ve been hearing this from day one and so has Mr. Cummings. We have all gone to town meeting after town meeting after town meeting. Mr. Cummings representative, Mr. Amos, was point-blank asked by the town planning board on 7-11-17 if Mr. Cummings had considered a reduction in density. Mr. Jeff Amos, Cummings’ representative, stated they “discussed this with the developer who is not in favor of reducing the density.”

    No one is being unfair to Mr. Cummings. He knows there is a zoning issue that needs to be corrected. He has known this forever. The public has spoken out one by one at an incredible amount of town meetings and stated that we are not opposed to the development but definitely opposed to the scope of the development. Mr. Cummings will not hear the townspeople, or the town for that matter. We the residents of the town feel that we went through a fair, open process where the developer was made aware from day one that the town and its citizens believe the application was of a scope that was not what the town desires, not what the residents desire, and was not best for the town. Everyone knows the zoning is wrong and it needs to be corrected. And it can’t be corrected after two projects go through that are wrong. The zoning law needs to be corrected retroactively.

    It was mentioned at the last meeting that Mr. Cummings has already put a substantial amount of money into this project. whatever that amount is, it is not lost. He just needs to re-design a development the way it should have been designed in the first place. He just needs to do the right thing.

    Evelyn Hundley
    Abutter to proposed Tuscan Way

  • Evelyn Hundley

    On my above comment, I did mean to mention that the proposed development of Tuscan Way is 16 duplexes, which will be 32 families, developed on 2.85 acres. That is where the erroneous zoning density problem comes into play– which needs to be corrected.

    Evelyn Hundley
    Abutter

  • Evelyn Hundley

    I am an abutter to Mr. Cummings project. I am not opposed to Mr. Cummings building on his property. I am not opposed to Mr. Cummings building on his property. I feel like I’ve been saying this over and over and over again. When Mr. Cummings signed his purchase and sale agreement on 8-22-16, it was contingent on him getting town preliminary approval to build 14 homes on the Tuscan Way property. I would welcome his 14 homes. But not 16 duplexes consisting of 32 families. The scope and density of this project is not good for the environment (they cannot put in town septic and septic proposed is inadequate), the rural neighborhood, the traffic, and the character of this part of Falmouth. The Falmouth town Council have all admitted that the wording of the new zoning which was enacted a year ago had “unintended consequences.” Mr. Cummings project as it is proposed is taking advantage of the unintended consequences and everyone knows this, including Mr. Cummings. We’ve been hearing this from day one and so has Mr. Cummings. We have all gone to town meeting after town meeting after town meeting. Mr. Cummings representative, Mr. Amos, was point-blank asked by the town planning board on 7-11-17 if Mr. Cummings had considered a reduction in density. Mr. Jeff Amos, Cummings’ representative, stated they “discussed this with the developer who is not in favor of reducing the density.”

    No one is being unfair to Mr. Cummings. He knows there is a zoning issue that needs to be corrected. He has known this forever. The public has spoken out one by one at an incredible amount of town meetings and stated that we are not opposed to the development but definitely opposed to the scope of the development. Mr. Cummings will not hear the townspeople, or the town for that matter. We the residents of the town feel that we went through a fair, open process where the developer was made aware from day one that the town and its citizens believe the application was of a scope that was not what the town desires, not what the residents desire, and was not best for the town. Everyone knows the zoning is wrong and it needs to be corrected. And it can’t be corrected after two projects go through that are wrong. The zoning law needs to be corrected retroactively.

    It was mentioned at the last meeting that Mr. Cummings has already put a substantial amount of money into this project. whatever that amount is, it is not lost. He just needs to re-design a development the way it should have been designed in the first place. He just needs to do the right thing.

    Evelyn Hundley
    Abutter to proposed Tuscan Way

  • Jan Baker

    I disagree with Jim Cummings’ accusation that he has been “unfairly targeted.” This is not a personal vendetta. He may have jumped in quickly to get started with his Tuscan Way Development 14 months ago, but most of us have known about it for less than 3 months. As evidenced by the vocal complaints, and by the increasing attendance at town meetings, the news of this development is finally spreading around Falmouth, where many residents are shocked and dismayed by the plans to crowd so many housing units on such a small space. I don’t understand why Mr. Cummings refuses to consider reducing the number of units to a reasonable amount. If he did so, his losses would be minimized, and most residents would be appeased.

  • Felicia Garant

    Mr. Cummings is not personally a target. I’m not anti-development, but the size and density of this development is completely out of character for this area. I have heard several people (including a planning board member) state at planning board meetings that if the number of units was reduced to something more reasonable for this neighborhood, there wouldn’t be so much negative reaction and it would be a smoother process. At one planning board meeting I attended, when asked directly by a planning board member if the developer would consider reducing the size of this development since size seems to be the major issue causing such negative reactions from everyone in the area, the developer’s representative stated no. So, that’s why we’re now at this point.

    As the former planning board member stated at the Council’s special meeting this past week (the same one referred to in the article), when the planning board approves projects, it’s following a set of rules over which it has no control. The former planning board member stated that when he served on the board, there were some projects that he felt were not necessarily good projects, but they had to approve them anyway because the project met all the requirements. Preliminary approval/final approval does not mean it’s a good project or the right fit for the location.

    Everyone makes mistakes and I respect the Council members for admitting that, despite their thoughtful and hard work on the changes to the zoning ordinances, they didn’t foresee this serious negative consequence. This is far from easy and I greatly appreciate them trying to do the right thing. Unlike many who find out they made a mistake and can’t do anything about it because it’s too late, the Council has the unique opportunity to fix this before real damage is done to this and other neighborhoods. We ask the Council not to force their fellow citizens and taxpayers to live with this mistake, and to please approve a retroactive moratorium. A development can still be built in accordance with the prior zoning ordinances while the Council revises them to produce the results they really intended.

  • wolf

    ” Final Approval ” is what you need Mr. Cummings, if you don’t get it, blame yourself for not going to your neighbors to ask if they are in favor of your 32 units, seems like you just want to shove it down their throat and now your the one chocking on it. It’s just what is going on at the Gray RD. The Town Office has pushed this on the people.

  • wilgus

    Cummings should not be whining–he has brought the situation upon himself by proposing a development that is far larger than anyone contemplated, and the Town is rightly applying the brakes.

    This is a case where the person who pushes the rules to the limit triggers a reaction and a rule change. Cummings should be–and likely will be–required to scale back his mega-proposal to something that fits the area and the Town. Sorry, Cummings, but you don’t get to profit (at least as obscenely as you seem to want to) at the expense of the neighborhood. You should have agreed to scale back the development when the question first came up.