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Decision 2048 Filed 03.08.84 TOWN OF YARMOUTH BOARD OF APPEALS Filed with Town Clerk: Original Hearing Date : 5/15/75 Petitioner (Original) : Petition No. : 1321 3/0 Oak Harbor Associatesa�, 477 Main Street Yarmouth Port, MA Successor to the Petitioner : Original Decision: 10/16/75 Light House Associates P.O. Box 70069 Reno, Nevada 89570 DECISION The successor to the petitioner Oak Harbor Associates, being Light House Associates requested an extension of its special permit and clarification of variances language, by letter request and petition for appearance and approval; said special permit and variances noticed as granted on October 16 , 1975 ; all in accordance with paragraph 3 (11) of said special permit. Members of Board of Appeals present: Tlnnal r? TUPnr3Prcnn ThmmnC Gerru Les Campbell Judy Sullivan Richard Neitz Reasons for the Decision : 1. On October 16 , 1975 a Notice of Variance, Conditional or Limited Variances and Special Permit was issued by the Yarmouth Board of Appeals relative to petition 11321 filed by Oak Harbour Associates. Said permit stated in part that, " 6. This decision and the special permit herein granted shall run with the land, be exercisable by the owners from time to time of the subject parcel, and by the successors in title to the present developer. The word "Developer" or "petitioner" used herein shall be deemed to mean and include the owners of Oak Harbor from time to time and the successors to the developers , as well as Oak Harbor Associates, the original petitioner and developer . " 2. Further, said permit contemplated that, given the size of the project, extensions of same would be necessary. To that issue said permit states, Page 2 "11. All building permits taken out under the terms of this special permit shall be applied for within ten years of the expiration of any appeal period from this special permit or, in the event an appeal is taken from the date of expiration of any appeal rights from any Court decision upholding the decision in whole or in part, provided, however , that the developer may during the last two years of the ten-year period, by letter to, or appearance before, this Board, stating the reason therefor , request an extension or extensions of this ten-year time limit. " 3. The last two years of the first ten year period began on October 17 , 1983. The first ten year period ends on October 16 , 1985 . 4. In accordance with said permit the successor developer filed a request for extension by letter and petition dated February 10, 1984 with the Board of Appeals. 5. The successor developer requested that the original special permit be extended by letter request through October 16, 1990. 6. The size of the project as originally permitted suggested the necessity of an extended period of time to complete it. 7. The special permit as originally granted contemplated the necessity and probability of extensions. 8. The project is substantially underway with the construction of the first condominium phase of 19 units and partial construction of Oak Harbour Circle. 9. The successor developer indicates that substantial sums have been invested for the purpose of planning the second and third condominium phases, the sewage treatment plant facilities and the golf course and other amenities. 10. The successor developer indicates that present and future financing agreements require assurance of buildability beyond the existing permit time limitations. 11. The Town of Yarmouth benefits by the development of this property in accordance with the terms of the open space concept rather than grid subdivision proposals for any post permit development; and in the opinion of the Board an extension would allow for continued gradual development rather than a quicker paced, lower quality development which might result if an extension in time were not granted. 1 Page 3 12. Given the length, breadth and complexity of the original permit; its background and the extensive legal, engineering, and scientific research provided at the time of the original hearings, an extension by letter provision was incorporated in the decision by the then Board of Appeals, and is appropriate in this instance. 13. The Board finds that the proposed extension is in harmony with the general purpose and intent of the by-law and finds that the extension will not be detrimental to the neighborhood; and that no undue nuisance, hazard or congestion will be created by granting this request, and that there will be no substantial harm to the established or future character of the neighborhood, for the reasons set forth in the Board's original and current decision. 14. In its review of the above referenced special permit and variance, the Board finds only one ambiguity created by this requested date extension, that being at unnumbered paragraph 3 of Section III in the above referenced variance. Said paragraph states, "Finally, there is included in this category the request for authorization to extend use of the golf course and golf course accessory facilities, if constructed, together with the club house and pro shop, to the public on a greens fee charge or other monthly or seasonal charge basis during the first eight years of the project, or until the 750 units of housing have been completed and occupied, whichever occurs first (Numbers 2 (v) and 3 (1) ) " . The Board finds that the meaning and intent of the words "first eight years of the project" within the context of that decision meant the first eight years of the golf course project and that the eight year period for the allowed use begins when the golf course is available for play. The successor developer has agreed to inform the Board, by letter , in the future as to the date on which said golf course is in fact available for play. The petitioner is therefore granted, after letter request, in accordance with the terms of the original special permit, the following extension; all building permits taken out under the terms of said special permit shall be applied for on or before October 16 , 1990 , provided, however, that the developer may during the period between October 16, 1988 and October 16, 1990, by appearance before this Board at an advertised public hearing, stating the reason therefor, request an extension or extensions of the special permit present expiration date. In all other respects this special permit is extended in accordance with the Language of the permit as originally written. The said variance is hereby clarified by the Board in that the Board finds that the • Paje 4 meaning and intent of the words "first eight years of the project" found at unnumbered paragraph 3 of Section III of said variance, within the context of that decision meant the first eight years of the golf course project and that the eight year period for the allowed use begins when the golf course is available for play. The developer is hereby required to inform the Board, by letter, in the future as to the date on which said golf course is in fact available for play. Members of Board voting: Donald Henderson Thomas George Richard Neitz Judy Sullivan Les Campbell All voted unanimously in favor of granting the petitioner's request and to clarify the language of the variance. Therefore the petitioner's request is granted as above for all the above stated reasons. No permit issued until 20 days from the date of filing the decision with the Town Clerk. THOMAS GEORGE Clerk pro tem ""2/17 -; TOWN OF YARMOUTH BOARD OF APPEALS OWNER: NAME: LIGHT HOUSE ASSOCIATES APPEALS it ' Original Appeals #1321 ADDRESS: P .O. Box 70069 Reno, Nevada 89570 PETITIONER: NAME: LIGHT HOUSE ASSOCIATES ADDRESS: P .O. Box 70069 Reno, Nevada 89570 BOARD OF APPEALS, YARMOUTH, MASS. This petition when completed and signed must be filed with the Board of Select- men, Yarmouth, Massachusetts, along with the fee of $75.00. DATE: February 10 , 1984 PAID: $75 .00 1. I, We, hereby appeal from decision of the Building Inspector and petition your board for a public hearing on the action checked below: Xl. Review refusal of Building Inspector to grant permit. 2. Decision of Selectmen. 2. I, We, hereby request the action checked below: Xl. Variance from requirements of Yarmouth Zoning By-Law. X2. Approval of the Board of Appeals. X3. A special permit from the Board of Appeals. f s_> Extension of Special Permit and clarification of "vaeiceince° allow: all in accordance with letter of Petitioner's :'eotnsel, dated February 10 , 1984, attached hereto as Exhibit A; and :: uCb-_ further relief as the Board of Appeals deems meet and just. 4u Further the Petitioner requests that the Board waive strict compliance f .itls- he Board's rules and regulations where it deems said waiver(s) apprpkOate. The Petitioner's property is located off Route 6A, Yarmouti as shown on Yarmouth Assessors sheets and lots as described off,., tie attached Exhibit B. The Petitioner 's plans remain as oe igina'11y submitted and as anticipated by existing permits. 3. Reason for the Board of Appeals action as checked below: 1. Contrary to Zoning by-laws as follows: 1. 2. 3. 2. Approval of Board of Appeals, or Special Permit requested under the following section of Zoning By-Law: 1. 175-1320 through 175-1330 , and 175-1421 through 175-1425 , 2. and all other sections as the Board of Appeals deems applicable . Names and addresses of abutting property owners, and those persons deemed affected by this application. (At least three.) _- ARDITO, SWEENEY, STUSSE i ROBERTSON Signe / - 5200 BUILDING Respec y submitted WEST YARMOUTH, MA 02673 ARD J. S ENEY, JR. , Attorney (617) 775-3433 for LIGHT HOUSE ASSOCIATES March 8, 1984 - Lighthouse Associates ret. #2048 Members present: Donald Henderson, Les Campbell, Richard Peitz, Thomas George, Judy Sullivan. The Chairman called the meeting to order and read the petition. All abutters were notified and the necessary correspondence was made in the Dennis-Yarmouth Register. Mr. Henderson: I assume everyone is here for this appeal, and you may not be familar with our procedure. With this # of people, and the lack of an audio system, we will listen to the petitioner, the Board members have unlimited questions of them, then at the conclusion of the case, I will read the correspondence we have so everyone will be aware of what we have in the file. Then those in favor, then those against. Anyone who does speak, give your name first, for the record. Mr. Sweeney, Attorney: I am here to present the arguement for the petitioners petition. With me is Mr. Burkhart, one of the priraple Mr. Oman, the Builder, Mr. Kelley, the Engineer. I would ask Mr. Kelley to allow you to view the overall view of the project. The plan shows the location of the project, which is north of Route 6A, the green area and the open space, the site, and where the units will be placed. Oak Harbor is a cluster development, granted in 1975. The special permit, by its language, has a life of 10) years. It was issued also in conjunction with a series of variances granted then. The permit has a clause that says the permit may be extended by the Board of Appeals, that they must, in the last 2 years of the life of the permit, by letter, request such an extension and by appearance, if the developer so desires. We did send a letter in January, and we did appear. A meeting took place and votes were taken. At the request of the Planning Board, a letter went to Town Counsel to see if that should have been a public hearing. The Board of Appeals made every effort before that hearing to notify all Boards. The Town Counsel's ralgonse said he felt it would be wise if an advertised hearing was held. As a result, I request we be allowed to withdraw at that time, and resubmit the petition. Our request is that the Oak Harbor special permit be extended fac 5 years. The existing permit will expire in October, 1985. At the end of that 5 years, we request, as any other person would be allowed to, that we be allowed to come back for further extensions, if necessary. I present tonight, that future hearing,if it were to occur, be an advertised public hearing. Also, I request clarification of the golf course variance in the decision. It indicates that course play, when the course is built, can be used by the public for the first 8 years of the project. I believe that language should be read to include the meaning of the word project is the golf course project. We ask to allow public play after it is built, for 8 years. We believe that this request for an extension of the special permit should be granted because of the project size, its uniqueness, and the will of the developer and the amount of funds placed into it. We have very enlightened development in here. They have built high quality homes. Given the length of the decision and the language itself contemplates extensions should be considered by the Board tonight. We have developed our first cluster and our people, if granted, would continue to full development. Also to continue if the permits were not extended. Also, substantial funds have been extended to plan for dev- elopment and financing for the golf course and the treatment plant, which is required to be built before occupancy of unit #76. The Town of Yarmouth, the neighbors, and those who will live here, will benefit by the continued type of quality. This type of Open Space Development is much better than the grid form of subdivision, which would be allowed if the permit was not extended. We will show you what a grid plan would look like, It is presently allowable. There would be a substantial number of single homes and duplexes, over 4 miles of roads, individual septic systems, no treatment plant available to them. I believe the extension or clarification of the language is important not only to the developer; if we could have public play in the first 8 years, it would help pay for it. Also, it would make another course available for the people of Yarmouth. The town was • Pet. #2048 Page 2 turned down recently for a second course. If the Oak Harbor course is built, it would help to relieve the pressure we now feel for golf play in Yarmouth. I have for the members of the Board, a proposed decision. In 'January, when I came in, I submitted one at that time, which incorporates the arguements I have made tonight. At that time, we were asking for an extension of 10 years. In the discussions at that time, it was felt it was more appropriate if this was granted it be for 5 years, and the Board of Appeals would then look at the status of the project to see what effort has been made. As a result, I have scaled down my request to 5 years. Also, I have clearly stated in the proposed decision that if and when another extension was requested, that it be an ad- vertised, public hearing. With that, I would be happy to answer any questions. rlr. Henderson: I will read the correspondence first, as I think they address some of the concerns the Board and audience may have. From the Building Dept. - they say they have reviewed this appeal and have the following comments: Due to the late start of construc- tion of the units, it doesn't seem unreasonable to extend the special permit for an additional 5 years; Since the approval of the original permit, the zoning has changed, which would lessen the number of units that would be allowed under the present formula. Also, multi-family dwellings are not allowed in this area under our present zoning; They request the Board consider a reduction in the number of units, if not at the present time, at least that if and when another extension is requested at a later date, that the existing zoning at that time be strictly enforced; He also requests that consideration be given to extending the use of the golf course to the public longer than the time asked for in the appeal, as he feels this could be an asset to the association as well as the town; He says he has worked with the project since the beginning and have had no problems to be any concern, that relations between this department and others involved has been good. Conservation Commission - They have reviewed the appeal for an extension of a spec- ial permit that was previously issued, and as of this date, no approvals have been required for any construction; that page 6 of Board of Appeals decision of 5/15/75 notes that Conservation Commission determined areas of wetlands; There have been changes in the wetlands regulations since the special permit was issued, and any construction, alter- ation of land, etc. , that comes under the jurisdiction of the Conservation Commission will require a filing. Water Dept. - They say they have no objections to water main extensions within Lighthouse Associates development providing all necessary documents are filed with the Water Dept. and all work performed is in accordance with the Water Dept. policies and specifications. Fire Dept. - They say they have no objection to grant- ing the extension of construction time, and that all of their requinments were discussed at Site Plan Review. Board of Health - They say they reviewed the appeal and the letter dated Feb. 10, 1984 from Attorney Sweeney and have the following comments: As mentioned in his letter, item #4, sewage treatment plant facility is planned for the 2nd and 3rd phases. As required by the State Environmental Code, when there is more than 15,000 gallons per day of sewage discharged on a lot, a sewage treatment facility is required. Engineering Dept. - They say because they were not asked for comments until they received a verbal request on March 7, they would like to reserve the right to make comments within 35 days of notification. However, because the Engineering Dept. would not usually become heavily involved in a project like this until the detailed plans are submitted for each individual phase, i.e. , each "village", they do not anticipate that they will have any major comments. As a general note, they say, the aesthetics of the entrance drive and the 19 units constructed to date is of high quality. They say they will provicb additional correspondence within the 35 day comment period should they determine the need. There is also a letter in here from Robert Saben, he supports this request, stating he understands the project as originally proposed contemplates construction of 750 units considered to be of good quality and that 2 years remain under the existing permit and he has concern the original concept may be materially affected in the event that they will not be able to proceed on the scale on which it was originally proposed. Of major concern to hint is the rapid development of lesser quality units in order to accommodate marketing stra- tegies and time constraints so that maximum return on investments can occur within the Pet. #2048 Page 3 time remaining under the original permit. It is his hope, he says, the Board will consider the negative effect of fast growth in this area. Mr. George: How many show on the grid plan, if you had to go to that? I heard about 261. Mr. Sweeney: It shows as spelled out on the plan, 211 single faily,26 duplexes, total families 263. It also shows the footage in roads. Mr. Worrell, Planning Board: We did send a letter in connection with the previeus hear- ing, in which we made several points. The first one has been resolved, for the advertised hearing. I would like to remind the Board of the concerns we had at that time. We still have them to some extent. Not being attorneys, we are unable to say if the general laws put any time limits on special permits at that time. This is of particular concern be- cause there have been changes in the by-law since this permit was issued. Two, at least - prohibiting any multi family dwellings, reducing the allowable units. This arises out of an increased concern about such questions as to the adequacy of the water supply. I would like to comment on . . . . the alternatives that would Ye presented to the petitioner in case this is modified or the extension not granted. He said they could put in a con- ventional subdivision. . . it would have, according to figures he said, if that plan has been drawn to maximum. . .that means, under the present by-law, if cluster development, 263 is what would be allowed, which is a lot less that 750. He hasn't mentioned the only alternative,for a single family cluster development, allowed, up to 263 houses, and it would have open space. He is a bit misleading. The Planning Board did discuss this question last night, whether to write another letter, and this took place very late last night, and it was obvious we could not put together a coherent statement which would represent directly our view, so we did not send another letter. We would like to discuss this if anyone has any questions for us. That is all we are prepared to say as the Planning Board. There are 3 of us here tonight, but we may have different views. Mr. Henderson: You said you were not sure whether pre 808, which changed the zoning, if special permits are still good. Are you aware of Town Counsel's general letter saying special permits granbd before 808 are still good? Mr. Worrell; No. We had asked that question in our letter, but he didn't answer that. Mr. Henderson I believe we have a copy of that letter. . .based on a hypothetical situa- tion, not necessarily this case. Mr. Sweeney: I agree with you. I have that letter. Also, even if his position is correct, with regards to special permits, we would be considered to be a prior non- conforming use, and could ask under Sec. 1532 under the present by-law, and we could extend under that section. Mr. Alexander: This 5 yeah' extension runs from when to when? Mr. Sweeney: The existing permit expires October, 1985. From October, 1983 through October, 1985, it states during that time period we must request an extention if we want one. The 5 years would be October 16, 1985, to 1990. Mr. Johnson: I am an abutter, and President of Rolling Hills Citizen Association. You cur- rently have 19 units completed. Your sales people are calling it a village. The devel- opment already completed, that village, is that comparable in size or shape to what these will be? On the average, what we see there now as a so-called village, is that what we will see if this plan is carried out? Mr. Sweeney: We refer to what you say as a village in a marketing sense. We are trying at best, to describe to the people. Each one of our phases is a separate and distiict Pet. #2048 Page 4 condominium unit. The entity under the existing permits, which is required to preserve the open space. With regards to future development, what you see will not be exactly what will be in the future. Every time we have a new plan, we must come in here. Mr. Johnson: I am not concerned with the legality of terminology. . .the area coverage of the future development - will it be similar? Mr. Sweeney: It is set between permits. They have a schedule within them. We cannot build within the green areas you see. The white area will be broken down for the units. I am not sure if that directly answers that question. Mr. Henderson: Are you asking if the units will be broken up? Mr. Johnson: That is spelled out. What is the average area for one of these clusters? It is difficult to say if you are for or against this project. As far as the general public is concerned, this development has been going on for 10 years. I recognize the original permit was issued to a corporation, of which you are not a part of. Take the rate of development and extend it, using those numbers, and the project will be finished in 345 years. Take it from when you people got into it, and it would take only 75 years to complete. We think you owe the people what your schedule is. Secondly, the numbers in the original documents. . .you have 194 acres of which 10% is wetland, not used for building. 30% of your area will be open space. That is really another 58 acres. Wet- land, about 19 acres, 58 open space, 80 acres of land not used, subtract from 194, and what we have is about 120 acres capable for building. The current development is 19 units occupied, about 3 or 4 acres. If we go by that, we will be using about 130 to 140 acres. You don't have that. Nothing is for the golf course, post office, community building. You have little things that calls for no building within 50' from the peri- meter of the property. These are the numbers;I am very confused the more I look at them. Please explain. You don't have enough land. For a golf course, it would be impossible. An 18 hole golf course, average, will take about 130 to 140 acres. You will never do that. The best you could have is a minimum. Mr. Sweeney: The speed of the development - we are not the original developers. The permits themselves indicate the permits are valid. We have not been involved for 8 years in the project, only for a few years. What has been presently built is the first time around. It takes time during this pelaiod. They have. . . .procedures for approving sub- divisions, reviewing plans. . .that whole process takes time. Financing was a question mark and a concern. The original financing ;four the original development is no where to what will be in the future. We are presently in that process. That will be completed if the request is granted. We believe the project will take ..... . 7.5 years - 375 years - we have trouble with that. We understand construction can be a problem. That will be an on-going concern with any project. With regards to the original numbers you presented, I am sure you took a good look at the permits acid the variances. I don't believe what you said was totally accurate. The origira7. computations show we could have built over 900 units, based on the acreage. The formula originally in the by-law was looked at in great detail by the Board of Appeals. They did find we had sufficient open space. If we didn't have the space, the variances would not have been granted. The preliminary course design is on paper and will be placed in the development, and there is room for it. It will be attractive. We have the space for it. The permits, paragraph by para- graph, show what areas these amenities will exist on. We have the space, or we wouldn't have gotten the original Mr. Johnson: I didn't want to say we were negative about this. ..we are not. The con- struction there now is good. I don't believe you have the kind of land to build what you say you will. Your first group of buildings, if that is what you will build, you couldn't do it. Pet. #2048 Page 5 Mr. Sweeney: We have the space. It is difficult, without going through the permits and the variances and associate them to the plans with the engineers specifications to get a clear picture. We wouldn't have gotten the permits if we didn't. Mr. Johnson: We have a different opinion then. Mr. Barr: I am an abutter. Has the Police Chief been involved in this development? Mr. Henderson: I don't know. Mr. Barr: There have been a number of accidents in this area, 2 this past week. It is a bad curve just to the entrance to here. People come and go in and out, it will be a terrible situation. Mr. Henderson: Do you intend to build 750 units? Mr. Sweeney: Yes. Mr. Fitzgerald: I understand on the golf course, there is an arguement on what they meant by the course, 8 years after the project is completed. . . .I was in on the original talks. The understanding was at that time, it would be 8 years after the completion of the whole project. I was all for it, and I approved it. I don't want to see anything else read into it. I haven't met Mr. Burkhart. We have had a few dealings. He realizes I have been in contact with these people, for about 10 years. I am all for it, but not for the golf course. Mr. Sweeney: If it is your reading of the decision that the golf course could be 8 years from the whole project, 8 years from the beginning of the project, not from 1975. . . Mr. Fitzgerald: No, 8 years after the the completion of the project. Mr. Sweeney: That may be what you thought, but that is not what the document says. Mr. Tolly: I think probably for the amount of money spent, probably they are entitled for another 5 years extension. I think what Mr. White says, being used for the public for more time. . . This current plan - is that an approved plan or a threat technique? Mr. Sweeney: You can say itlas you may, but we are attempting to show you what could be allowed. This is one way. t is not an approved plan. In order to have that done, we would have to go to the Planning board. Multi family dwellings are not allowed, but duplexes are. John Karras: On the open space - in the lower right, Knottingham Dr. going in, it doesn't show it going through, but on the current plan it shows it going through. Wasn't that granted to Mr. Fitzgerald? Mr, Sweeney: That was granted. by Board of Appeals. This is an existing land court plan that did not have that road on it when it was drafted and recorded. The Board of Appeals granted permission for Mr. Fitzgerald to place the road through because they felt that road going through would have a small affect with regards to open space. Also in that decision, they indicated that if in fact this road was put through, we would agree, if we were continuing with the development as it is, that we would not connect Oak Harbor Circle to that road. We did agree to that. If our permits are not extended and had to go to another type of development, we could let that go through. Pet. #2048 Page 6 Mr. Karras: Why isn't it still good? Mr. Sweeney: If that original permit is not extended by them, nothing is in existance any longer, and to subdivide, have roads, we could do that. Mr. Karras: If you have a subdivision plan you could. use Knottingham Dr. then? Mr. Sweeney: Yes. Mr. Habner: There is still somaecongeR about a time table. Maybe you could give a more concrete time table. Mr. Burkhart: aevelopers s' Oak Harbor. . .it has been stated before, we are successors to the original project, plans and development. We have been involved for some 3 years now. We started at a time when the economy was in very bad shape. That accounts to some extent, for the lack of development. We were attracted to this project because of its uniqueness. We consider itIn be a good project. A great deal of thought has been put into this, for the environmental concern. We are committed, and made that commitment publicly to carry out the plan we consider very unique and of great benefit to the town. To answer the question, the first 19 units built are representative of the building that will occur. It is not representative of the overall density. We have desi- gnated parcels of land that cannot be built upon. We show the open space and the golf course. Each lot shown on the map has a designated maximum number of buildings. Single dwellings built on these lots, like have been built to date. Various buyers will want different things. Generally, the first 19 quality and design, placement, is representative of what will be built. We are subject to the Historic District. We have every intention of going by the quality of the neighborhood. We will be sentive to the community. We consider Oak Harbor something that is exceptional. All good things take a long time. I can't tell you if the end of 1990 we will have built Oak narbor. We may never fully com- plete it. That is very difficult to say. I would think these conditions imposed on the development, give the town and the Board some very strong control for continuous reviews to be sure the project is carried out. I would be glad to answer any questions. Mr. Henderson: Under the existing permit, when the 76th unit is occupied, can you say when those first 75 or 76 will be completed? Mr. Burkhart: It takes about 1 year to design and carry through the approval process, the necessary treatment facility planning, plans, and we are prepared to start that now. The thrust of it takes about 9 months to a year. It works the other way around. We cannot build more than 75 units until the plant has been approved and built. We would like to be able to build more than 75 in the next year. That depends on your action tonight, or financial conditions. Mrs. Laskey: I go along with Mr. Johnson. I have lived here for 12 years, and 8 of those years it was continually being built. I had to see trucks going in and out. Why do you have to add a year to plan - can't you plan ahead? I would like to see if this appeal is granted, that at the end of 5 years, we can see some headway and not have a request every 5 years. Mr. Juskowicz: Once the golf course is built, where will the access road be? Where will the public come in? Mr. Sweeney: Oak Harbor ircle. Mr. Henderson: Anyone else want to speak? No one? Do you, Mr. Sweeney? Mr. Sweeney: I would like to thank the Board for your consideration, and the public, Pet. #2048 Page 7 and publicly thank all the department heads who provided information. Mr. Henderson: All Boards have to write letters, and we can make a decision when the Engineering Dept. makes their comment, maybe after 35 days, we will then make our decision. Hearing closed. JOHN C. CRENEY. P.C. ATTORNEY-AT-LAW HYANNIS PROFESSIONAL CENTER 17 EAST MAIN STREET HYANNIS, MASSACHUSETTS 02601 (617) 771-0049 February 8 , 1984 Francis T. Worrell , Chairman Planning Board Town Offices South Yarmouth, MA 02664 Re: Board of Appeals Petition #1321 Our File No. Y-115 Dear Mr. Worrell: Your letter of February 1 voices the objection of the Planning Board to the notice given by the Board of Appeals prior to its hearing of a request for a ten year extension of the special per- mit covering the Oak Harbour development situated off Route 6A. The special permit originally granted by the Board of Appeals dated October 16 , 1975 was for a term of ten years. A portion of the Board' s decision states " . . .the developer may during the last two years of the ten-year period, by letter to, or appearance before, this Board, stating the reason therefor, request an exten- sion or extensions of this ten-year time limit. " Such a request was made by letter of the developer' s counsel dated January 10 , 1984 . I am informed that developer' s counsel appeared before the Board at its meeting of January 26 at which time the request for an additional ten-year extension was considered by the Board. It appears that notice of the January 26 hearing before the Board of Appeals was given by letter to the Planning Board, by letter to the Executive Secretary, and by posting of notice at the Town Hall . Notice by publication was not given; notice by mail to other parties in interest was not given. General Laws, c. 40A, §§ 9 and 11 require that notice of Board of Appeals hearings be given by publication and by posting and by mailing. The publication and posting are designed to inform the public at large of the hearing; mailed notice is designed to inform specific individuals who may have an interest in the hearing. Mailing is required to be made to "parties in interest" including the petitioner, the owners of abutting land, the owners of land directly opposite locus on a public or private way, the abutters of abutters owning land within 300 feet of locus, the planning board and the planning board of every abutting town. - JOHN C. CRENEY. P.C. Francis T. Worrell, Chairman -2- February 8 , 1984 Planning Board To the extent that the Board of Appeals decision of October 16 , 1975 purports to authorize the grant of an extension of the term of the special permit at a hearing for which the normally required notice need not be given, then the terms of that 1975 decision conflict with the notice requirements of General Laws , c. 40A both as it now exists and as it existed on October 16 , 1975 . In the event of a conflict between the terms of a board of appeals decision and a provision of General Laws , c. 40A, then General Laws, c. 40A prevails . I am of the opinion that the normal publi- cation, posting and mailing requirements applicable to board of appeals hearings ought to have been adhered to. Failure to give the notice required by General Laws , c. 40A by publication, posting and mailing is said to constitute a "juris- dictional" defect in the proceeding. Pelletier v. Board of Appeals of Leominster, 340 N.E. 2d 912 , 915 (1976) and cases cited therein. General Laws, c. 40A, § 17 , however, provides that "jurisdictional" defects caused by failure of notice are cured by a 90 day statute of limitations if no appeal from the Board of Appeals decision is taken. I understand that the Board has not yet filed any decision with the Town Clerk. In that circumstance, and considering that the applicant would be vulnerable on appeal, the simple solution would be for the matter to be withdrawn without prejudice. Very truly yours , John C. Creney Town Counsel JCC/meh cc: Donald F. Henderson, Esquire Edward J. Sweeney, Jr. , EsquireMrs. Joyce Sears, Secretary/ Board of Appeals Robert C. Lawton, Jr. , Executive Secretary - ARDITO, SWEENEY, STUSSE 8e ROBERTSON ATTORNEYS AT LAW FIFTY-TWO HUNDRED BUILDING WEST YARMOUTH. MASSACHUSETTS TELEPHONE 775-3433 CHARLES J. ARDITO ADDRESS ALL MAIL EDWARD J. SWEENEY, JR. LOCK BOX 777, WEST YARMOUTH MICHAEL B. STUSSE MASSACHUSETTS 02673 DONNA M. ROBERTSON (ASSOCIATES) PLEASE REFER To FILE No. February 9, 1984 Donald F. Henderson, Chairman Board of Appeals Town of Yarmouth Town Hall South Yarmouth, MA 02664 Re: Request for Extension of Special Permit and Clarification of Variance Relative to Petition No. 1321, by Letter to the Board of Appeals dated January 10, 1984, on Behalf of Light House Associates, Successors to the Original Petitioner, Oak Harbour Associates Dear Mr. Henderson: Please be advised that in deference to the wishes of the Yarmouth Planning Board and as a result of the opinion of John C. Creney, Town Counsel, dated February 8, 1984, rendered to the Planning Board, the above referred Petitioner respectfully requests that its above-captioned request for Extension of Special Permit and Clarification of Variance Language be withdrawn without prejudice. It is the intention of the Petitioner to file, within the next few days, a revised petition seeking the above relief before the Board at an advertised Public Hearing. The reasons for this request are: 1. Mr. Creney's opinion; and 2. To prevent the Board of Appeals being involved in unnecessary litigation. I will appear before the Board with regards to this request for withdrawal without prejudice, if requested. Very truly yours, J NEY, JR. EJS:n . cc: John C. Creney, Town Counsel Planning Board - Town of Yarmouth a TOWN OF YARMOUTH 48. 1 .O 1 H ENGINEERING — (� . `� RIN DEPARTMENT SOUTH YARMOUTH, MASS. 02664 '. • MATTA H.!GO MEMO TO: Board of Appeals FROM: Engineering Department 0 SUBJ: Lighthouse Associates (Petition #2048 - Oak Harbour) DATE: March 8, 1984 Because we were not asked for comments until we received a verbal request yester- day (March 7, 1984) , we would like to reserve the right to make comments within 35 days of notification. However, because the Engineering Department would not usually become heavily involved in a project like this until the detailed plans are submitted for each individual phase (i.e. , each "village") , we do not antici- pate that we will have any major comments. As a general note, the aesthetics of the entrance drive and the 19 units constructed to date is of high quality. We will provide additional correspondence within the 35 day comment period should we determine the need. RPd/mc TOWN OF YARMOUTH CI `�y, ' ENGINEERING DEPARTMENT — SOUTH YARMOUTH, MASS. 02664 t TAC MATH ES " , MEMO TO: Board of Appeals FROM: Engineering Department J SUBJ: Lighthouse Associates (Petition #2048 - Oak Harbour) DATE: March 26, 1984 We would like to thank the Board of Appeals for the additional time to review the many and varied documents related to this project. Based upon our further review and several citizen comments/suggestions we offer the following: 1. We specifically concur with items 2, 3 and 5 listed in the Building Inspect- or's memorandum of March 8, 1984. 2. As we had indicated in our memorandum of March 8, 1984, we typically do not become heavily involved in a project like this until the detailed plans are submitted for each individual phase (i.e. , each village) . There are several paragraphs in the decisions of 5/15/75 (on Petition #1321) which notify the petitioner that these detailed plans will have to be submitted and approved before building permits can be issued. Therefore, we feel that the need for the detailed plans has been aptly covered, and any detail- ed comments can be made at the time of submittal of these detailed plans. 3. The stormwater drainage management method originally proposed was changed during the final design stages for Village "A". That is, they changed from using retention ponds to subsurface drainage structures to handle stormwater drainage. Either method is acceptable if properly designed. However, sever- al of the future retention ponds as originally proposed appeared to have been proposed as water hazards for the golf course. What effect(s) could a change in the design of drainage handling have upon the proposed golf course? 4. We understand that it is the intent of the petitioners not to have Oak Harbour Circle taken as a Town road. However, it should be noted that should the petitioners change their minds, it may be impossible with a gate house struct- ure located within the road layout. Further, it appears that none of the driveways into the villages could be taken as Town ways. 5. Several neighboring citizens requested that we check to see if an 18 hole golf course could fit within the open spaces as proposed. We are not golf course architects; however, we did check the original golf course layout as shown on the Master Plan dated 12/29/72 against the land available for open space as outlined on the Overall Development Plan dated 4/21/75. The earlier plan set aside approximately 30 acres for the tees, fairways and greens, whereas the newer plan appears to set aside only about 24.5 acres. Further, the recently proposed Town golf course set aside about 41 acres for the tees, fairways and greens. Because the proposed available open space in Oak Harbour is only 60% of the acreage proposed for a Town golf course, one may ask whether or not a regulation 18-hole golf course can actually fit in the area proposed at Oak Harbour. (Again, the figures given were for tees, fairways, and greens, and (Lighthouse Associates - (Petition #2048 - Oak Harbour) , cont. - Page 2) did not include surrounding buffer areas, etc. ) . 6. Several citizens have indicated their concern over how a golf course could be considered open space when it will be actively used and not left in its natural state. We only bring this comment to your attention as they request- ed that we do so. We have no opinion relative to this matter. RPd/mc xc: Planning Board Mr. Sweeney .`'�_Y�r� TOWN 0I' Y A R W T � rt -- � BUILDING DEPARTMENT mA„c MEf SC so l 1i Y A1510:1 1-I --MASSACHUS!"Ti S 02664 TO: Board of Appeals Town of Yarmouth _ jj,,'LL�� L,,., FROM: Forrest E. White eye, Building Inspector SUBJECT: Lighthouse Association Oar Harbor Condo's DATE: March 8, 1984 (1) I have reviewed Appeal Number 2048 for Light House Association and have the following comments. Due to the late start of construction of the units, it doesn't seem unreasonable to extend the Special Permit for an additional five (5) years. (2) Since the approval of the original permit, the zoning has changed, which would lessen the number of units that would be allowed under the present formula. Also multi-family dwellings are not allowed in this area under our present zoning. (3) I would request the board to consider a reduction in the number of units, if not at the present time, at least that if and when another extension' is requested at a later date, that the existing zoning at that time be strictly enforced. (4) I would also request that, consideration be given to extending the use of the Golf Course to the public longer than the time asked for in the appeal. I feel this could be an asset to the association as well as the town. (5) I have worked with the project since the beginning and have had no problems to be any of concern. Relations between this department and others involved has been good. 40, TOWN OF YARMOUTH 0 i6 1 ' _ y% SOUTH YARMOUTH MASSACHUSL I I S 02664 MATTA BOARD OF HEALTH TO: Board of Appeals FROM: Bruce Murphy, Health Agent � 1 IJ DATE: March 7 , 1984 SUBJECT: Appeals #2048 Lighthouse Associates The department has reviewed the above appeal and exhibit "A" , letter of February 10 , 1984 , from Attorney Sweeney. I have the following comment: As mentioned in Attorney Sweeneys letter, item #4 , sewage treatment plant facility is planned for the 2nd and 3rd phases. As required by the State Environmental Code, when there is more than 15 , 000 gallons per day of sewage discharged on a lot, a sewage treatment fac- ility is required. .Y ,Y �a 4o, TOWN OF YARMOUTH O Ir. PLANNING BOARD M TA M fi5 • BPo"""D`6•n• SOUTH YARMOUTH MASSACHUSETTS 02664 Memorandum to: Board of Appeals From: Planning Board 1' " Date: January 20 , 1984 Re: Petition 1321 , Light House Associates (Oak Harbour Assoc . ) The Planning Board has received a copy of the letter from the office of Ardito, Sweeney, Stusse and Robertson in which it is requested that the Board of Appeals grant an extension of the Special Permit granted on October 16 , 1975 under petition #1321 . We reviewed this request at our meeting of 18 January, 1984 , and have the following recommendations and comments: 1 . We note that the request asks that the Board of Appeals make a decision on this request at their meeting of January 26 , 1984 . It is our understanding that a hearing to be held on this request has not een advertised in the usual manner. The Planning Board feels strongly that this request goes beyond a minor question or request for clarification, and is in reality a petition, which should be made in the usual manner and consid- ered in a duly advertised public hearing. 2 . In the Special Permit under consideration it was stated: "All building permits taken out under the terms of this special permit shall be applied for within ten years of the expiration of any appeal period from this special permit the developer may, during the last two years of the ten-year period request an extension or extensions of this ten-year time limit. " It is not clear to the Planning Board whether, under the law in effect at the time of the granting of the original special permit, if a special permit would have been valid into the indefinite future; however, the fact that the provision quoted above was written into this special permit suggests that normally a special permit would not be forever, or at least that there was some uncertainty about the life of such a permit, so that a provision stating the term of the 2 - 2 - Re: Petition 1321 special permit was needed. In light of this , it would seem that the question should be considered in the present context, where, under the Zoning Act, and the Zoning Bylaw of Yarmouth, work allowed under a special permit must be substantially started within 2 years, and under an approved subdivision plan, 8 years . These time limits are imposed, in part, in recognition of the fact that conditions change, and what were once reasonable terms of a permit may, at a later time, not be reasonable. Viewing the question in this context we note, first, that the requirements and limits in the Zoning Bylaw that affect multi- family cluster developments have been chanced twice during the term of this special permit and are now much more stringent than before, partly out of concern for our water supply, second there is now great concern about the possibly deleterious impact of the now allowed project on the future quality of our water supply and possibly, about the adequacy of our aquifer to provide sufficient water when the demands of this development are added to existing demands . 3 . The Planning Board notes that a long time elapsed from the time of granting of the special permit before any work was done on the project, and even since the start of work there has been much less progress than normally expected. If the progress to date continues at the same rate, extrapolation into the future indicates that it will be some years before the project as now defined would be complete. (At the rate of 19 of 750 units in 2 years, it would take 79 years ! ) It does not seem to the Plan- ning Board to be reasonable to ask the Town to allow completion of a project which by present standards is far from being a reasonable one, and in the distant future may become even more questionable. 4 . The Planning Board therefore recommends: a) that a hearing be scheduled and duly advertised, and b) the present special permit not be extended, and c) if a new special permit is granted, it require that the development conform to present requirements of the Zoning Bylaw of the Town of Yarmouth, in particular, Section 175-4200 . F TTW/mp xc Mr. Robert C . Lawton, Executive Secretary. TOWN OF YARMOUTH 207, 0, -4A4- PLANNING BOARD MATTACM[[S[- SOUTH YARMOUTH MASS:ACHUSETTS 02664 February 1 , 1984 Mr . John C. Creney, Town Counsel , Hyannis Professional Center, 17 East Main Street, Hyannis , Mass . 02601 Dear Mr. Creney: Re : Petition #1321 to the Board of Appeals The Planning Board has received from the Board of Appeals a memor- andum, dated January 18 , 1984 , regarding Appeal *1321 . A copy of the memorandum is attached hereto , along with the accompanying letter from: Edward J . Sweeney , Jr . , to the Board of Appeals . In that letter the developer "reouests" extension of the oricinal permit beyond the present expiration date . In the memorandum from the Board of Appeals, the Planning Board was invited to comment on the request. The Planning Board responded in a memorandum dated January 20, 1984, which is attached hereto. As reauested by petitioner, the Board of Appeals did hear the request at its meeting of January 26 , 1984 , but contrary to the recommenda- tion of the Planning Board in item 41 of our memorandum, that hearing was not advertised in the customary manner . Our first question , then, is , did the Board of Appeals act properly in that matter? It has always been the understanding of the Planning Board that all hearings by the Board of Appeals must be advertised; it is so stated in the Zoning Bylaw of Yarmouth, section 1330 . A search shows that such requirement appears in GL ch. 40A, sec . 15 , a copy of which is attached hereto, as well as a copy of sec . 81-AA, in which the same requirement is stated. You will note , in particular, that in sec . 15 it states, "The Board of Appeals shall hold a hearino on any appeal , application or petition The Planning Board contends that, although petitioner used the term "request" , he was certainly submitting something which can be described as an appeal , application, or petition. Further , we point out that certainly applicant appeared before the Board of Appeals , and they listened to his request ; they heard his application. 2 - 2 - February 1 , 1984 Per . John C. Creney That is , they held a hearing. We see no alternative to the conclusion that since the Board of Appeals held a hearing, it should have been advertised in the prescribed manner . Since it was not, we question whether any decision rendered on the basis of that hearing is valid . We would appreciate hearing your opinion on this matter . The second matter about which we ask your opinion is that discussed in item # 2 of our memorandum of January 20 , 1984 , namely , is it proper for any extension of the time period of the special permit to be Granted? The basis for our concern is stated in item f2 of that memorandum. Although this question does not seem to us to have the clear-cut answer that the first question does , it seems to us that the intent of the laws is to limit the lenath of time for which a special permit is valid . On this matter, likewise, we would appreciate having your opinion. If your opinion of the first matter confirms ours , we have a third question: what should the Planning Board do? We do not wish to file an appeal in court if the situation can be corrected without such action. If you state your opinion that the hearings should have been advertised , can the Board cf Appeals reconsider or rescind their decision and co through the process aaain , or can they sucoest to the petitioner that he withdraw his petition without prejudice? Yours very truly, YARMOUTH PLANNING BOARD Approved by Planning Board: f4 Alton F. Carr —• Francis T. Worrell , Richard F. Martin Chairman. James A. Robertson, AIL Steven r . Shuman /1r, Nancy R. Trafton Janet L. White ' / r TW/mp xc Robert C. Lawton, Jr . attach . xc Board of Appeals [7y ARDITO, SWEENEY, STUSSE 6c ROBERTSON ' ATTORNEYS AT LAW \`� -� FIFTY-TWO HUNDRED BUILDING WEST YARMOUTH, MASSACHUSETTS TELEPHONE 775-3433 CHARLES J. ARDITO ADDRESS ALL MAIL EDWARD J. SWEENEY. JR. LOCK BOX 777. WEST YARMOUTH MICHAEL B. STUSSE MASSACHUSETTS 02673 DONNA M. ROBERTSON (ASSOCIATES) 91/ 7')1:4•r PLEASE REFER To FILE No. January 10 , 1984 C-OH.5 Donald F. Henderson, Chairman Yarmouth Board of Appeals Yarmouth Town Hall Yarmouth, Massachusetts 02664 Re: (1) Request for Extension of Special Permit (2) Petition No. 1321 (3) Notice of Variances and Special Permit, Dated October 16, 1975 (4) Request on Behalf of Light House Associates, successors to the original petitioner , Oak Harbour Associates Dear Mr . Henderson : Please be advised that this office represents Light House Associates successor to the petitioner Oak Harbour Associates. On October 16, 1975 a Notice of Variance, Conditional or Limited Variances and Special Permit was issued by the Yarmouth Board of Appeals relative to a petition filed by Oak Harbour Associates. Said permit stated in part that, " 6. This decision and the special permit herein granted shall run with the land, be exercisable by the owners from time to time of the subject parcel, and by the successors in title to the present developer. The word "Developer" or "petitioner" used herein shall be deemed to mean and include the owners of Oak Harbor from time to time and the successors to the developers , as well as Oak Harbor Associates, the original petitioner and developer." Further , said permit contemplated that, given the size of the project, extensions of same would be necessary. To that issue said permit states, "11. All building permits taken out under the terms of this special permit shall be applied for within ten years of the expiration of any appeal period from this special permit or , in the event an appeal is taken from the date of expiration of any appeal rights from any Court decision upholding the decision in whole or in part, provided, however , that the developer may during the last two years of the ten-year Page 2 - .Donald Henderson, January 10 , 1984 period, by letter to, or appearance before, this Board, stating the reason therefor , request an extension or extensions of this ten-year time limit." The last two years of the first ten year period began on October 17, 1983. The first ten year period ends on October 16, 1985. In accordance with said permit please accept this correspondence as the present developer 's request "by letter" for an extension of the original ten year period. The developer hereby requests that the permit be extended through October 16, 1995. The developer further requests that the Board of Appeals include the following language in its decision: • "All building permits taken out under the terms of this special permit shall be applied for on or before October 16, 1995, provided, however, that the developer may during the period between October 16, 1993 and October 16 , 1995, by letter to, or appearance before, this Board, stating the reason therefor , request an extension or extensions of the special permit present expiration date. In all other respects this special permit is extended in accordance with the Language of the permit as originally written." The reasons for this request , by letter , for extension and provision for further extensions are stated as follows: 1. The size of the project as originally permitted suggested the necessity of an extended period of time to complete it. 2. The special permit as originally granted contemplated the necessity and probability of extensions. 3. The project is substantially underway with the construc- tion of the first condominium phase of 19 units and partial construction of Oak Harbour Circle. 4. Substantial sums have been invested for the purpose of planning the second and third condominium phases, the sewage treatment plant facilities and the golf course. 5. Present and future financing agreements require assurance of buildability beyond the existing permit time limitations. 6. The Town of Yarmouth benefits by the development of this property in accordance with the terms of the open space concept rather than grid subdivision proposals for any post permit development. Page 3 - Donald Henderson, December 10 , 1984 7. 'Given the length, breadth and complexity of the original permit; its background and the extensive legal, engineering, and scientific research provided at the time of the original hearings, an extension by letter provision was incorporated in the decision by the then Board of Appeals. Given the above, I would hope that the Board would act quickly and favorably upon this reques I will make myself available at your meeting on Januar , 984 for the purpose of discussing this request if t e B would so desire. Very tr� Jy SWEENE JR. �S a •