HomeMy WebLinkAboutDecision 3570 Filed 11.23.99 Heatherwood 254 Kings CircuitY TOWN OF YARMOUTH
BOARD OF APPEALS
0 DECISION
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99 NOV 23 F...;. 1l;
FILED WITH TOWN CLERK: November 23, 1999
PETITION NO: 3570
HEARING DATE: October 28, 1999 and November 18, 1999
PETITIONER: Alvan Hirschberg&Others
PROPERTY: 254 King's Circuit-King's Way Yarmouthport
Map: 142,Parcel: 11 (128/R51) Zoning District: R40
MEMBERS PRESENT AND VOTING: David Reid, Chairman, James Robertson, John
Richards,Joseph Sarnosky,Diane Moudouris,non-voting Robert Reed.
It appearing that notice of said hearing has been given by sending notice thereof to the petitioner
and all those owners of property deemed by the Board to be affected thereby, and to the public
by posting notice of the hearing and published in The Register, the hearing was opened and held
on the date stated above.
This petition seeks to reverse the decision of the Building Inspector, as set forth in his letter of
August 25, 1999, wherein he indicated that he would issue a building permit for the planned
construction of assisted living units at the Heatherwood development,the proposal being withinthescopeofthedevelopmentsexistingrelief/permits. The hearing was conducted on October
28, 1999 then continued for further hearing on November 18, 1999. Throughout the hearings,
the petitioners were represented by Atty Philip Magnuson. The developers of Heatherwood
were represented by Attorney Richard Oetheimer and Attorney James Klucznik.
The Kings Way Development is a 750 dwelling unit Open Space Village Development,
originally permitted in 1975 (decision #1321), with additional modifications and relief havingbeengrantedin1986 (decision #2268). The project, by design, involves many phases of
development, and has been permitted to be constructed over several years in these individual
phases. Full construction is not yet completed. The initial phases included the construction of
common areas such as a golf course, and club house, a general store and post-office for
residents, as well as many other more common amenities for such a development. The majorityoftheunitsareoffairlytraditional "condominium"design, with an assortment of unit styles and
sizes. In 1986, the Board, among other things, allowed the developer to include an area of thedevelopmentspecificallytargetedforso-called "active elderly". This portion would have the
residential units directly connected to or immediately accessible to the various common areas
and amenities (unlike the rest of the development, where the amenities are centrally located, withthedwellingunitsindetachedstructuresaboutthesite). The development was specificallyallowedtobeconstructedinseparatephases, essentially at a pace to be determined by the
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developers and the real estate market. The Board, in its decision, approved of the uses, the
common elements, the general layout, and the typical construction types. As each successive
phase approached construction, the actual site plans have to be presented to the Board for a so-
called "phase review and approval". For purposes of this hearing and decision, the traditional
condominium phases have been referred to as "Kings Way", and the"active elderly"phases havebeenreferredtoas "Heatherwood", (although in reality they are all part of the overall "Kings
Way"development).
Presently, the developers are in the process of undertaking what has been referred to as
Heatherwood Phase III". This will consist of a single principal structure, which will house 68
assisted living units". Unlike the other phases, this phase will involve the developer's leasing
an area of land within the project to an entity known as the Benchmark Company. Benchmark
and its related companies, will construct the building and operate the 68 unit assisted living
facility therein. In July 1999, the plans for this building were approved by the Board in its phase
review. The petitioners now challenge the Building Inspector's indicated intention to issue a
building permit for construction of these units, based upon the phase review. The petitioners
contend that the proposed use of the Phase III, as an independently operated assisted living
facility, would be beyond the scope of relief originally approved of by the Board in its prior
decisions (principally the 1986 modification).
The Board received written presentations from both counsel, as well as numerous letters, a
petition, and supporting and opposing exhibits, throughout the course of these hearings. The
Board members also had available to them the copies of the 1975 and 1986 decisions, and the
minutes of the 1986 hearing.
Many of the residents, of Kings Way and of Heatherwood,participated in the hearing,personallyand/or through their correspondence. Strong, and sincere, emotional arguments were presented
on both sides of this issue. It is important, however, to define the issues which are presentlybeforetheBoard. The only issue directly pending in the present action is whether or not the
proposed Phase III is within the scope of the previously granted relief. No petition has been
filed asking for the modification of the prior relief, nor to grant new relief to allow the assisted
living facility use(if it were determined that it were not already allowed).
At the risk of oversimplifying their respective detailed and sophisticated presentations and
analysis of the issue, some of the principal points made by the parties are as follows.
The petitioners (opposed to the allowance of Phase III), contend that there is no mention of anysuchuseintheearlierdecisionsoftheBoard,nor was it discussed in the hearings (as recorded in
the minutes). The decision (collectively the 1975 and 1986 decisions) is very lengthy anddetailed, covering many aspects of this project. It does not, however, (they contend) make anyreferencetothisproposeduse. They contend that these "assisted living units" (as distinguished
from the other"independent units" at Heatherwood and Kings Way) are a different category ofuse, for which additional relief would be needed. While conceding that they would not rise tothelevelofa "nursing home", as defined by various bylaw and licensing provisions, theycontendthattheydoinvolve, as a principal component, the providing of personal care services
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which are more akin to nursing home services than to traditional open-space residential
developments. Furthermore, directing the Board to the proponents residency agreement and
informational materials, they point out that all of the units would be owned by the single
operating entity, and would be rented, often for relatively short terms, to their occupants. They
object to this separate business operation, and point out that while the prior relief does permit
rental of units, the predominant practice and component of the overall residential development is
that of owner occupied condominiums.
The respondents (and proponents of the Phase III development) contend that their use is within
the use contemplated and allowed by the earlier decisions of the Board. They note that the
minutes of the 1986 hearing included discussion of wishing to provide for the "active elderly",
who wish to live independently,but without the burdens associated with single-family residential
ownership. The Heatherwood phases are designed to allow a self-contained residential complex,
with a variety of services and amenities available to its residents. The provisions, in these Phase
III units, of some additional personal care services, do not make them any less "residential"
units. They contend that the Board's existing decisions allowed an assortment of residential
units, designed to service the active elderly, and that these units are within those parameters. As
evidence of this intention,they point out that in 1987, in the first Heatherwood phase review, the
plans which were approved by the Board included the designation of several units as "personal
care units". They contend that the term"assisted living"was not a term used or recognized until
recently, and that "personal care" units was the predecessor to it, while both terms refer to the
same type of use. While the units specifically show on the 1987 plans were not immediately
constructed (for unrelated economic reasons), several such personal care units were constructed
within the Heatherwood building, and 14 such units currently exist in the Phase II wing of
Heatherwood. They also point out that, in 1995,the then Building Inspector of Yarmouth wrote
a letter to the developer's bank and counsel, confirming that he was not aware of any violations
of the Special Permits or Variances for this project, as constructed to date. The development, at
that time, already included the 14 assisted living units, as referenced in that letter. The
proponents therefore reason that, notwithstanding the absence of any reference to such"personal
care" or "assisted living" units in the hearings or decisions of the Board, they must have been
within the contemplation of the parties at the time, since no one objected when they were
proposed and constructed.
To this latter point, the petitioners contend that the phase reviews (both of the 1987 plans
showing the "personal care units" and of the current Phase III plans) are limited to a site-plan
review process. The review is limited to a screening of the construction plans for conformity of
the proposed improvements to the original decision, and does not include any review of the use
nor are they an opportunity to discuss,nor allow, changes in the use to which the buildings maybeput. Simply stated, the notation of"personal care units" on one sheet of a multiple sheet set
of plans, was surplusage, not the focus of the Board's review, probably not even noticed by theBoardandnottobecreditedwithanyparticularsignificanceatthistime. Further, AttyMagnusonindicatedthathehadspokenwiththeformerbuildinginspector, and that he now
believes that the"personal care"and"assisted living"units should not have been allowed,had he
fully understood the nature of the use and services involved in their operation.
The Board members recognized that the currently existing assisted living units have been
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constructed and used with the apparent approval of all necessary authorities, and that this fact is
inconsistent with the petitioner's contention. However, the question of whether or not they
should have been constructed, and whether or not the proposed facility should be constructed,
requires our independent analysis of the actual decisions of the prior Boards.
Mr. Robinson placed significantly greater emphases upon the Boards phase approval of the 1987
personal care units" plan, and the fact that they were constructed and that 14 assisted living
units have existed,without objection from the town or residents, for several years.
The members all agreed that neither the 1975 nor 1986 decision make any reference to personal
care (or assisted living) units or use. Furthermore, neither makes reference to any equivalent
activities, of providing care or assistance directly to residents, nor of accommodating residents
who are expressly dependant upon such care. To the contrary, the 1986 decision focuses upon
the residents as "active elderly", living independently, who would like and would benefit from
this self contained community setting. The decision, and to a greater degree the minutes of the
hearing,placed considerable emphasis on the fact that the residents would be active and mobile,
and that the accessability and central location of the amenities and community services was a
convenience, not a physical or medical necessity. The Board and the developer took pains to
emphasize that this would not be a nursing home use, but would be an integrated residential
community, principally consisting of owner-occupied condominiums, in which each resident
would have an ownership interest in the common areas and open-space.
The majority of the Board also gave credence to the petitioner's concern for the business nature
of the new facility. It would be singularly owned and operated by a company which is in the
business of managing such facilities. None of the residents would own or have long term leases
for these units. The units would be quite small, little over one-half the size of comparable
independent" units, emphasizing the dependence of the occupants upon the common facilities
rather than their independent living. Furthermore, the entire design and plan makes clear that
the providing of care to the residents, individually and collectively, is the focus of the facility,
and is not merely an incidental function of the other common amenities and resident's services.
The single ownership and operation of this 68 unit facility also is inconsistent with the overall
scheme of this open space village development, including the recitation in the 1975 decisions
that none of the phases or structures are to be operated independent of the overall plan. As
proposed, Phase III would entail a free standing, wholly independent business venture, which
would not be an integral part of this "community".
The original plan (in 1975) was for a traditional stye condominium complex, with extensive
community services available to the residents within the site. In 1986 this plan was modified
somewhat, to allow a portion of the units to be further consolidated with the same common
facilities and amenities, for the convenience of the residents. It is the opinion of the majority of
the Board members that while the provision of assisted living units would seem to be the next
logical step in the progression of housing alternatives, and would provide a valuable and
appropriate service to the elderly population of Kings Way and Heatherwood, and the entire
town, it simply is not a housing alternative which was reviewed by or approved of by the priorBoard (in 1986). It does not appear that the Board in 1986 contemplated or intended to allow
this type of uses. Moreover, it does not appear, from the minutes, that they were ever asked to
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approve this type of housing. The decisions written in 1975 and 1986 are very comprehensive,
and the Board places great significance upon the absence of any references to this type of use.
Had they intended to include this variation of the residential use they could have easily said so.
However logical or appropriate it might have been to include assisted living units within the
Heatherwood project, it does not now appear that it was contemplated at that time, and therefore
it is not now allowed, absent a grant of new relief or a further modification of the existing relief
either of which are beyond the scope of the present petition).
After much discussion and deliberations, a Motion was made by Mr. Samosky, seconded by Mr.
Richards, to Grant the petition, so as to overturn the decision of the Building Inspector
contained in his letter of August 25, 1999) wherein he determined that he would issue a
building permit for the proposed Heatherwood Phase III, including the construction and use of a
68 unit assisted living facility, because we fmd that the proposed assisted living facility use, as
proposed, is not within the scope of the previously granted relief for this open space village
development, as modified by the Board's 1986 decision#2268.
On the Motion, as made and seconded, Mr. Samosky, Mr. Richards, Mr. Reid and Mrs.
Moudouris voted in favor, Mr. Robertson voted opposed. The motion therefore carried and the
petition to overturn the decision of the Building Inspector's decision of August 25, 1999 was
granted.
Appeals from this decision shall be made pursuant to MGL c40A §17 and must be filed within
20 days after the filing of this notice/decision with the Town Clerk.
David S. Reid, Clerk
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F_,;,• TOWN OF YARMOUTH
g BOARD OF APPEALS
ih
APPLICATION FOR HEARING 1'itATATCMEESE
99 Scp 22 P` :0Appeal #: Hearing Date: i°12 a hit Fee 0
Applicant: See: attached list (Exhibit "A")ALVAj HIRSC_ & i7 hers' "`
Full Name- including d/b/a)
c/o Philip E. Magnuson, Furman, Cannon & Ross , P. C. , 255 Main Street, Hyanni
Address) zip) Telephone Number)
Pam' 02601
and is the (check one) Owner Tenant 0 Prospective Buyer Ef Other Interested Party
Pro e HEATHERWOOD @prty: This application relates to the property located at: 254 King ' s Circuit , King s Way,Yarmouthport , MA
which is also shown on the new Assessor's Map: 142
as Parcel: 11 old Map & Lot #) 12 8/f;,5/ Zoning District:113- A 40
Project: The applicant seeks permission to undertake the following construction/use/activity :(give a briefdescriptionoftheproject. i.e.: "add a 10' by 15' deck to the front of our house" or "change the use of the existingbuildingontheproperty"):N/A
RELIEF REQUESTED: The applicant seeks the following relief from the Board of Appeals:
i) X REVERSE THE DECISION OF THE BUILDING INSPECTOR OR THE ZONINGADMINISTRATORdated8/2 5/9 9 (attach a copy.of the decision appealed from). State the reason forreversalandtherulingwhichyourequesttheBoardtomake. See attached sheet (Exhibit "B")
2) SPECIAL PERMIT under § of the Yarmouth Zoning By-law and/or for a useauthorizeduponSpecialPermitinthe "Use Regulation Schedule" §202.5
3) VARIANCE from the Yarmouth Zoning By-law. Specify all sections of the by-law from which relief isrequested, and, as to each section. specify the relief sought:
Section: Relief sought:
Section: Relief sought:
Section: Relief sought:
Additional comments:
FACT SHEET
This sheet must be completed and filed at the time of application.
Owner of Property (if other than applicant) Michael T. Downey , et al, Trustee of
Heatherwood 0 Connell Nominee lrus t (Full Name)
480 Harnpdon Street , Holyoke, MA 01401 413) 534-0243
Address) Telephone Number)
How long has the owner had title to the above premises: Unk. L. C. C. C2 7 9 L. C.P. 342 7 9G
Give title reference if available)
Nursing and
Use Classification: Existing:1'" Pertonal Care s. 202.5 # P. 5
Proposed: Nursing and s. 202.5 # p, 5
Personal Care
Is the property vacant: No How long has it been vacant:
Lot Information (if available) Area: Subdivision/Plan Reference:
Is this property within the Aquifer Protection Overlay District: Yes No X
Other Department(s) Reviewing Project: Indicate the other Town Departments which are/ have/ or will review
this project. and indicate the status of their review process: Site Plan Review 6/2 3/9 9
ZBA Compliance Review 7/8/99
Repetitive Petition: Is this a re-application: No If yes, do you have Planning Board Approval:
Prior Relief: If the property in question has been the subject of prior application to the Board of Appeals or Zoning
Administrator. indicate the Appeal number(s) and other available information:
See attached list (Exhibit "C")
ADDITIONAL INFORMATION: Please use the space below to provide any additional information which you
feel should be included in your application:
frtAQ).
A plicant's Signat r mey •775.-e ?11 Owner's Signature
d5 Nucv. i m
Site Plan Review
Required Completed
1 •'` (1r7"7%-rie-41
Yes No Yes No
Biding Inspector's Signature
d
NOTICE OF APPEAL
PLEASE TAKE NOTICE that Alvan Hirshberg, John Powers, Robert Pecor, Barbara
Oxholm, Richard Men-ow, Jack Crosby, Nancy Winer, and Edward Nulton have appealed
Building Inspector James Brandolini's decision dated August 25, 1999 to the Zoning Board of
Appeals pursuant to Section 8 and 15 of Chapter 40A. A copy of the Appeal, including a
statement of reasons, is enclosed herein.
Respectfully submitted
Alvan Hirshberg, John Powers, Robert Pecor,
Barbara Oxholm, Richard Merrow,
Jack Crosby, Nancy Winer, Edward Nulton
By their attorney
4.,
q2c()/(:.,
Philip E. Magnuson, Esquire
Furman, Cannon& Ross, P.C.
T.255 Main Street
C o Hyannis, MA 02601
508-775-0277
111BBO# 544867
Date: September 1,6, 1999
EXHIBIT "A"
Alvan Hirschberg
25 Forest Gate
99 PYarmouthport, MA 02675 22 ` ,00
John Powers CLEt h « ;
45 Westwoods
Yarmouthport, MA 02675
Robert Pecor
8 Westwoods
Yarmouthport, MA 02675
Barbara Oxholm
37 Westwoods
Yarmouthport, MA 02675
Richard Merrow
24 Kate's Path
Yarmouthport, MA 02675
Jack Crosby
52 John Hall Cartway
Yarmouthport, MA 02675
Nancy Winer
32 Forest Gate
Yarmouthport, MA 02675
Edward Nulton
208 Kate's Path
Yarmouthport, MA 02675
EXHIBIT "B"
STATEMENT OF REASONS FOR REVERSAL OF
AUGUST 25, 1999 DECISION OF THE
BUILDING INSPECTOR P 22 1!
On July 28, 1999 the Applicants submitted a letter to Building,InsRector ar I$,BandolinirequestingenforcementoftheYarmouthZoningBy-Law and a zoning determination with
respect to the existing and proposed Assisted Living Facility at Heatherwood at King's Way,Yarmouthport, MA. Copies of the Applicant's July 28, 1999 Request for Zoning Enforcement
and the Building Inspector's August 25, 1999 decision are attached hereto.
The Applicants made three specific requests of Mr. Brandolini pursuant to Chapter 40A,Section 8:
1. That he take zoning enforcement action against the existing 19 Assisted Living
Units at Heatherwood (Phase II) to compel compliance with the existing Special
Permit, Variance and current Zoning By-Law;
2. That he deny any application for Building Permit pursuant to the Heatherwood
Phase III Site Plan which was the subject of the July 8, 1999 ZBA hearing; and
3. That he make a determination that Assisted Living Facilities as defined under
Chapter 19D of the Massachusetts General Laws, and as proposed in
Heatherwood Phase III, are not an allowed use under the current Zoning By-Law
or under any prior Special Permit or Variance relief applicable to King's Way or
Heatherwood at King's Way.
The Applicants based this request on the fact that the current Zoning By-Law classifies
Assisted Living Facilities as "Nursing and Personal Care Facilities"which require a Special
Permit in a residential zone. Information obtained from Heatherwood and provided to Mr.
Brandolini indicates that Heatherwood Assisted Living operates under the supervision of a
Registered Nurse, provides 24-hour a day staffing by Certified Personal Care Assistants and bills
by the day according to the level of care provided. The Standard Industrial Classification
Manual therefore, classifies King's Way as an"Intermediate Care Facility,"use 8059, which is a
type of"Nursing and Personal Care Facility".
Because the Assisted Living Facility would not be allowed under the current By-Law the
Applicants next asked Mr. Brandolini to consider whether it had been allowed by any prior
zoning relief. The many prior Variances and Special Permits pertaining to this property do not
allow or contemplate providing personal care or nursing services for a fee on a per day basis.
Rather, the Variances and Special Permits allow only a physical layout to accommodate the
active elderly". Appeal No. 2268, (1986).
In his August 25, 1999 response, Mr. Brandonlini goes right to the issue of whether the
Assisted Living Facility is allowed by a previous Special Permit or Variance, indicating hisagreementthatAssistedLivingFacilitiesarenotallowedunderthepresentZoningBy-Law.
Mr. Brandolini states that he "was unable to ascertain whether the proposed AssistedLivingUsewasintendedtobeallowedunderthepreviousBoardofAppealsDecision". Mr.
Brandolini goes onto rely on the July 8, 1999 3-2 vote of the ZBA that Assisted Living Units willbewithinthescopeoftheoriginalDecisionasmodifiedin1986.
As the Board noted in its written decision: "These phase review hearings are ordinarilyconcernedwiththephysicalplacementandarrangementoftheproposedunitsandbuildings".
This "phased development" scheme was allowed through both Variances and Special Permits
granted in 1975. Specifically, the 1975 Decision provided that the ZBA "shall receive from the
petitioner a detailed Site Plan for such stage or phase meeting the requirements of that section of
the By-Laws, which plan shall be forwarded to the Town Engineering Department for review and
report". Petition No. 1321, Paragraph 3(7), Page 14. Accordingly, a Site Plan review of a
development phase may not be used to change, or even determine, the use allowed under the
prior Special Permits or Variances. As the Board knows, it may only grant zoning relief or
decide zoning appeals which are properly before it. Even then, a super-majority of 4 is required.
Accordingly, the July 8, 1999 vote is not a proper determination of whether the prior Special
Permits allow an Assisted Living Facility.
However, Mr. Brandolini has indicated that he will rely on the July 8, 1999 vote as the
prevailing factor in issuing a Building Permit". Mr. Brandolini has also declined to take the
requested zoning enforcement action against the existing 19 Assisted Living Units or to make a
zoning determination that the proposed Assisted Living Facilities are not allowed under any priorSpecialPermitorVarianceapplicabletothelocus.
The purpose of this Appeal is to properly present to the Zoning Board of Appeals the
issue of whether an Assisted Living Facility is allowed under the By-Law, or under any prior
Special Permit or Variance applicable to Heatherwood. Mr. Brandolini has understandably
deferred to the Board given the long history of this project before he took over as BuildingInspector. In this Appeal, the Applicants ask the Board to make the same determinations that
were requested of Mr. Brandolini in their July 28, 1999 request:
1.Ordering zoning enforcement action against the existing 19 units at Heatherwood
at Phase II to compel compliance with the Special Permit, Variance and current
Zoning By-Laws;
2.A determination that a Building Permit may not be issued for Heatherwood Phase
III without further zoning relief from the Zoning Board of Appeals; and
3.A determination that Assisted Living Units, as defined in Chapter 19D, and as
proposed in Heatherwood Phase III is not an allowed use under the current Zoning
By-Law or under any Special Permit or Variance relief applicable to King's Way
or Heatherwood at King's Way.
FURMAN CANNON &ROSS,Hyannis • Falmouth • Harwich
I .C•
Attorneys at Law
255 Main Street
Hyannis, MA 02601
Tel: 508-775-0277
Fax: 508-778-4256
Internet: Icrlaw.conr
July 28, 1999 Philip E. Magnuson
Direct Iax/Voicemail
508-861-0169
I,maxnusowit!icrlaw.com
James Brandolini,
Building Inspector
Town of Yarmouth
1146 Route 28
South Yarmouth, MA 02664
RE:
Request for Zoning Enforcement regarding Heatherwood at Kings WayPhaseIIIand "Assisted Living"portions of Phase II
Dear Mr. Brandolini:
Enclosed please find:
1.Copy of Zoning Board of Appeals minutes of July 8, 1999;2.Copy of Phase Review Approval dated July 8, 1999;3.
Mr. Nulton's letter dated July 15, 1999 requesting zoning enforcement;4.
Copy of Memorandum from David Reed, Chairman, Board of Appeals to Robert C.Lawton, Jr. Town Administrator dated July 21, 1999;5.
Minutes of January 23, 1986 Zoning Board of Appeals on hearing of Appeal No.2268;
6.Copies of Massachusetts General Law Chapter 19D, Sections 1 8;7.Copies of 1987 Standard Industrial Classification Manual Industr ,
4
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and
Nursing and Personal Care Facilities". Group No. 805
This is a request for zoning enforcement and a zoning determination pursuant to Section 8ofChapter40A.
I represent Alvin Hirsberg,John Powers,Robert Peacor,Barbara Oxholm,Richard MerrowJackCosbyandNancyWiner,members of the Kings Way Residents' Advisory Committee. Th ey,in turn,represent over three hundred(300)residents ofKings Way who have signed a petition againsttheproposedAssistedLivingFacilityatHeatherwood, including Ed Nulton. As you know, Mr.Nulton submitted a request for zoning enforcement to you on June 15, 1999. To simplify things, I
qincorporatebyreferencethecommentsandfactsstatedinMr. Nulton's letter and request that youp
make a single response to the two letters. Mr.Nulton will be with me during our meetin on1999, and will indicate his consent to this procedure at that.time.
b July 29,
James Brandolini
Page -2-
Building on Mr.Nulton's letter,the first issue is: what is an"Assisted Living Facility?" This
is a fairly new creature, defined by Chapter 19D, which was enacted by the legislature in 1994.Section 1 of the Assisted Living Act(the"Act")defines"Assisted Living Residence"as:"Any entity,
however organized, whether conducted for profit or not for profit, which meets all of the followingcriteria:
1. Provides room and board;
2.Provides,directly by the employees of the entity or through arrangements with
another organization which the entity may not control or own,assistance with
activities of daily living for three or more adult residents who are not related
by consanguinity or affinity to their care provider; and
3. Collects payments for third party reimbursements from or on behalf of
residents to pay for the provision of assistance with the activities of dailylivingorarrangesforthesame."
An Assisted Living Residence must provide"self-administered medication management and
provide services to residents in accordance with service plans". M.G.L. c. l 9D, § 2. The "personal
services"to be provided under the service plan include"assistance with or supervision of activities
of daily living, self-administered medication management, or other similar services specified byregulation". M.G.L. c. 19D § 1. Although the Act classifies "Assisted Living Residence" as a
residential use for the purpose of the State Building Code, it recognizes that an "Assisted Living
Residence"may be designated as an institutional use under a local zoning ordinance. M.G.L.c. 19D
18(d).
The Yarmouth Zoning By-law has an institutional use category for Nursing and Personal CareFacilities. By-law§202.5 Category P5. The classes of uses in the By-law are based on the Standard
Industrial Classification Manual of 1987. The manual classifies Nursing and Personal Care facilities
under Group 805. Use 8059 "Nursing and Personal Care Facilities, not elsewhere classified,"
matches the Massachusetts definition of Assisted Living facilities. Please note that this use
specifically refers to "supervision of self-administered medications" and "health-related care to
patients who do not require the degree of care and treatment that a skilled or intermediate care facilityisdesignedtoprovide". Depending on the level of services to be offered at 1-leatherwood Phase III
the appropriate classification may also be 8052"Intermediate Care Facilities". Either classification
places the use under"Nursing and Personal Care Facilities" which requires a Special Permit in the
residential zone. By-law § 202.5 Category P5.
Reference to the minutes of the July 8, 1998 meeting confirms, based on the representations
of Heatherwood/Benchmark representative Wendy Norapensky that personal care services will be
provided. She specifies that"personal care aides"will be on staff to provide care,and that the project
will be certified under the Executive Office of Elder Affairs. She describes the typical stay as threetofiveyears, but also indicates that "respite" stays of one month will be allowed.
lames Brandolini
Page -3-
Other information developed at the hearing indicates that the proposed 68 Assisted Living units are
to be clustered in a free-standing building to be built and operated by Benchmark Assisted Living;that
it will be separate and distinct from the existing active elderly housing at Heatherwood;and that units
will be exclusively rented and not owned.
It being clear that the"Assisted Living" use is not allowed under the current zoning by-law,
it is necessary to examine the history of the site to determine whether this use is allowed by any prior
zoning relief The answer is no. This project has been the subject of numerous Special Permits,
Variance, and site plan review/phase approvals. The two most important decisions are the 1975
Variance and Special Permit(Appeal No. 1321)and 1986 Special Permit(Appeal No.2268). As Mr.
Nulton points out, Appeal No. 2268 had to do with re-configuring the physical layout to
accommodate the "Active Elderly" and did not involve the provision of personal services which
would be a part of an Assisted Living Residence. These services apparently began after the 1995
Phase II review of Heatherwood, which included 19 assisted living units. This was not a Special
Permit grant or a Variance, only a review of site plans. As Mr. Reed states in his July 21, 1999
Memorandum,such reviews are not a"decision",nor are they the granting of"relief'under Chapter
40A. Neither the prior Special Permit,nor any of the site plan review approvals,gives Ieatherwood
the right to operate an institutional facility in this residential district.
By the same token, no decision of the Building Inspector, or issuance a Building Permit in
1995 should affect your consideration of the Heatherwood Phase III Building Permit application.
First, this is a new project in a new structure requiring a new permit. Second, even the existing 19
units under the 1995 Phase 11 development and Building Permit are still subject to zoning
enforcement. Structures and uses constructed and used pursuant to a Building Permit are subject to
enforcement for six years. M.G.L. c. 40A § 7.
It has been argued that the 1995 phase Heatherwood Phase II site review somehow confirmed
that"Assisted Living Facilities"were within the intent of the 1975 and 1986 permits. However,no
Member of the ZBA who sat in on the project in 1975 or 1986 was still on the Board in 1995 (with
the possibly exception of one alternate). Accordingly,it falls to you to determine whether the earlier
permits allow an "Assisted Living Facility".
In summary,the proposed 68 Assisted Living units in Heatherwood Phase III are an extension
of a new use which was begun in 1995. The Assisted Living Facility use was not contemplated or
granted in any prior zoning decision,and is classified as an institutional use under the current Zoning
By-law. In light of these facts, we respectfully request the following:
1.That you take zoning enforcement action against the existing 19 units at I-Ieatherwood
at Phase II to compel compliance with the Special Permit, Variance, and current
Zoning By-law;
James Brandolini
Page -4-
2.That you deny any Application for Building Permit pursuant to Heatherwood Phase
I1I and review the subject of the July 8, 1999 Zoning Board hearing; and
3.That you make a zoning determination that Assisted Living as defined in Chapter 19D
of the Massachusetts General Laws,and as proposed in Heatherwood Phase 111 is not
an allowed use under the current Zoning By-law or under any prior Special Permit or
Variance relief applicable to Kiiigs Way or Heatherwood at Kings Way.
I thank you for your anticipated response. Please let me know if I can provide any further
information to assist you in this determination.
Very truly yours,
L ifie)..„./7-07,,,,.„4,...
Philip E. Magnuson
PEM:cmc
Enclosures
cc: Client
FURMAN, CANNON & ROSS, P.C. Attorneys at Law
Hyannis•Falmouth•Harwich
255 Main Street
Hyannis,MA 02601
Tel: 508-775-0277
Fax: 508-778-4256
Internet: fcrlaw coin
Philip E. Magnuson
August 18, 1999 Direct Fax/Voiccmail
508-861-0169
pmagnusonvfcilanv coil
James Brandolini,
Building Inspector
Town of Yarmouth
1146 Route 28
South Yarmouth, MA 02664
RE: Assisted Living Facility at Heatherwood/Request for Zoning Enforcement
Dear Mr. Brandolini:
This is to confirm our telephone conversation of August 18, 1999 regarding the July 28, 1999
Request for Zoning Enforcement.
I understand that your office is extremely busy and that you have not had an opportunity to
formulate a response to the July 28, 1999 Request for Zoning Enforcement. We have agreed to touch
base in ten(10) days.
Thank you for your attention in this matter.
Very truly yours,
ilip E. agnuson
PEM:cmc
cc: Client
roY `Yq4',
BUILDING1. ` ' ; TOWN OF Y A M O J 1 1 1 ELECTRICAL
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1146 ROUTE 28 SOUTH YARMOUTH M
GAS
F` ' ASSACHUSETTS026611451MATTACMEES
PLUMBINGog,op„to4b''dil Telephone (508) 398-2231,Ext. 261 — Fax (508) 398-2365
SIGNS
BUILDING DEPARTMENT
August 25, 1999
Fumran, Cannon&Ross
Attorneys at Law
Philip E. Magnuson
255 Main Street
Hyannis,MA. 02601
Dear Mr. Magnuson:
Reference is hereby made to your letters of July 28 and August 18, 1999, concerning the proposed
assisted living facility at Heatherwood and the related determination by the Zoning Board of Appeals,dated July 8, 1999.
Please be advised that in my opinion,the primary purpose of the Board of Appeals' review of the matter,
was two fold:
1. The original special permit required that each phase be reviewed prior to construction commencement.
2. I was unable to ascertain whether the proposed Assisted Living use was intended to be allowed under
the previous Board of Appeals decision. (see my comments on the Site Plan Review Comment Sheet
dated June 15, 1999)and deferred to the Board to make this determination.
Based on this and the petitioner's application,the Board took-up the task of making such a determination.
In its decision of July 8, 1999,a majority of the Board determined that they'`are satisfied that the assistedlivingunitswillbewithinthescopeoftheoriginaldecision(as modified in 1986)"and therefore
approved the request to undertake Phase III as proposed and found"that the use would be within the
scope of the existing relief granted."
Accordingly, because the Board made this use determination relative its previous decisions with respect
to the original construction of Heatherwood (see Chap.40A, Sect. 14),I fmd that said
determination/compliance review to be the prevailing factor in issuing a building permit,when such
application is received. However,this decision may be appealed pursuant to MGL Chapter 40A, Section15.
Please feel free to contact me should you have any questions concerning this matter.
Very truly,
46td-r
James D. Brandolini,C.B.C.
Building Commissioner
cc:Zoning Board of Appeals
akiNt
Printed on Recycled Paper
EXHIBIT "C"
KINGS WAY- (OAK HARBOR) -ADMIRALTY HEIGIll'S ;I;; F2TIER*OOD
1.Original Special Permit - 5/15/75
Petition No. 1321 Pik GLERK & I icE,A i.
2.Original Variances - 5/15/75
Petition No. 1321
3. Extension of Development Permits through October 16, 1990 and Golf Course DateClarification- 4/13/84
Petition No. 2048
4.Project Redesign by Green Company- 1/23/86
Petition No. 2268
5.Setback Variance - 7/9/87
Petition No. 2448
6. Extension of Development Permits through October 16, 1997 - 10/29/87PetitionNo. 2491
7. Foundation Variance/Building 8 - 1/28/88
Petition No. 2511
8. Extension of Development Permits through October 16, 2004 and Extension of Full PublicAccesstoGolfClubthroughDecember31, 1999 - 4/28/94
Petition No. 3096
RECEIVED
GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW 0 C T 2 61999
EXCHANGE PLACE
TOWN OF YARMOUTHBOSTON, MASSACHUSETTS 02109-2881 BOARD OF APPEALS
TELEPHONE(617)570-1000
RICHARD A. OETHEIMER TELECOPIER (617) 523-1231
617)570-1259
October 25, 1999
Mr. David Reid
Chairman
Yarmouth Board of Appeals
Town Offices, Route 28
South Yarmouth, MA 02664
Re: Appeal of Building Commissioner James D. Brandolini's August 25, 1999
Decision regarding Heatherwood at Kings Way. Phase II and Phase III
Dear Mr. Reid:
This firm represents O'Connell Engineering & Financial, Inc. and Michael T. Downey,
Trustee of O'Connell Heatherwood Nominee Trust (collectively, "O'Connell"), in this matter.
Petitioners' appeal raises the question whether 14 existing and 68 proposed assisted living units
on the Heatherwood site are in compliance with the Zoning By-Law and the Kings Way
Special Permit.' This Board answered "yes" to the same question in its July 8, 1999
Determination on Compliance Review of Phase III of the Heatherwood project.2 The Board
was "satisfied that the assisted living units will be within the scope of the original [1975
Special Permit] decision (as modified in 1986)."3
The Building Commissioner relied on this
Board's July 8, 1999 Determination on Compliance Review in rendering his August 25, 1999
Decision. In support of the current appeal, petitioners advance the same arguments they made
As the Board is aware from its Phase III compliance review, the 14 existing assisted living units in Phase
II will be converted to six residential units when the 68 proposed Phase III assisted living units are developed.
2
Earlier this month, petitioners filed a Notice of Dismissal of their appeal to Superior Court from the
Board's July 8, 1999 Determination on Compliance Review.
3
July 8, 1999 Board of Appeals Phase Review#2268 Heatherwood @ Kings Way ComplianceReview-Phase II and III Modifications (hereinafter "July 8, 1999 Determination on Compliance Review").
GOODWIN, PROCTER & HOAR LLP
Mr. David Reid
October 25, 1999
Page 2
to the Board on Compliance Review. Petitioners have given the Board no reason to reverse or
reconsider its July 8, 1999 Determination on Compliance Review.
As discussed in more detail below, petitioners devote much of their latest submission to
the Board to supporting their contention that an assisted living facility constitutes an
institutional use under the current Zoning By-Law. Petitioners' contention is mistaken, as
discussed elsewhere herein. Furthermore, this argument is immaterial because the Board has
previously determined and repeatedly recognized that the Kings Way development is
grandfathered and governed by the 1975 Zoning By-Law.4
The entire Kings Way project,
including the elderly housing component on the Heatherwood site, was approved as an Open
Space Village Development providing multi-family housing under Section 18:07 of the 1975
Zoning By-Law. Petitioners cannot establish that the existing and proposed assisted living
units are outside the scope of the permitted use for multi-family dwellings authorized under the
1975 Special Permit (as modified in 1986) and Zoning By-Law.
O'Connell's prior counsel, Edward J. Sweeney, Jr., Esq., set forth O'Connell's
position on this issue in anticipation of the Board's Compliance Review by letter dated July 8,
1999. That submission is incorporated herein.5
This supplemental letter provides a brief
background of the Kings Way project in general and the Heatherwood site in particular, and
rebuts specific points raised in Petitioners' "Statement of Reasons for Reversal of August 25,
1999 Decision of the Building Inspector" (hereinafter "Petitioners' Statement").
A. Background: The Kings Way/Heatherwood Development.
1. The 1975 Special Permit.
Kings Way is a residential development located off Route 6A in Yarmouthport. The
original 1975 Special Permit (Petition#1321) provided for the construction of up to 750
multi-family dwelling units pursuant to the Open Space Village Development section of the
4 See, ., Petition No. 2268 at 5-6; Petition No. 3152, November 15, 1994, at 4 (Board's prior Kings
Way decisions established "a protection of the project as pre-existing in any respects in which it may be deemed
to be non-conforming with the current Yarmouth Zoning By-Law.")
5
Also incorporated herein are Attorney Sweeney's July 1, 1999 letter submitting O'Connell's Phase III
and revised Phase II plans, and his separate July 8, 1999 letter to the Board enclosing correspondence from the
Developer's representative in response to the Site Plan Review Comment Sheet of June 15, 1999.
GOODWIN, PROCTER & HOAR LLP
Mr. David Reid
October 25, 1999
Page 3
1975 Yarmouth Zoning By-Law. The Permit also provided for additional amenities such as
community facilities, a golf course, and related accessory features.
The 1975 Zoning By-Law Section 18.13 defined multi-family dwelling units as follows:
Dwelling, Multi-Family shall mean a dwelling containing three or more
dwelling units, irrespective of tenure or ownership.°
Dwelling Unit shall mean living quarters for a single family plus not more than
4 boarders, lodgers, or domestic employees with cooking, living, sanitary and
sleeping facilities independent of any other unit.
All of the Heatherwood assisted living units contain "cooking, living, sanitary and
sleeping facilities independent of any other unit." Additional amenities, such as communal
dining facilities, are also available.
Due to the scope and complexity of the Kings Way project, the 1975 Special Permit
provided that the project "may be constructed in successive stages." Petition No. 1321 at 14.
The Board went on to state that "[tjhe developer may apply for and obtain building permits
under the Special Permit from time to time for each successive stage or phase." Id. Pursuant
to the Special Permit, the Board has conducted compliance reviews for each stage, including
Heatherwood Phase II and Phase III.
2. The 1986 Special Permit Modification: Housing for the "Active Elderly."
In 1986, Oak Harbor's successor in interest, The Green Company ("Green"),
petitioned the Board for a modification to the Special Permit. In relevant part, Green sought
permission to make changes to accommodate a burgeoning "aging population." Petition
No. 2268 at 3. Green's proposal contemplated that the Heatherwood site would be reserved
for development of approximately 250 dwelling units dedicated to "housing for the active
elderly." These units, to be connected by enclosed walkways for the occupants' ease and
safety, featured a number of services and facilities that would enable their elderly residents to
continue living independently: a full-service dining room; shuttle service around the
development and into the Town of Yarmouth; common activity areas specifically designed to
6
As the quoted language makes clear, there is no merit to petitioners' challenge to the assisted living unitsbasedontheirrentalcharacter. Moreover, the Board was specifically told in 1986 that the housing for the elderlywouldincluderentalunits. Minutes for Appeal No. 2268, January 23, 1986, at 7.
GOODWIN, PROCTER & HOAR LLP
Mr. David Reid
October 25, 1999
Page 4
accommodate the elderly; and "social and minimum health support services oriented to
independent living in a quality of life which enhances self-dignity." Minutes for Appeal
No. 2268 at 2, Statement of Mr. Alan Green.'
At the hearing on Green's proposal, the Board considered at length whether the
proposed use for elderly housing was in keeping with the original Special Permit. In
particular, the Board inquired concerning the characteristics of the aging population denoted by
use of the term "active elderly":
Mr. Singer asked what is meant by active elderly.
Mr. Green said that it is for people who are older, whose family
is grown, who don't want to be a burden to their children, who
want to live independently and with dignity and want to be with
their peers and it is definitely not a nursing home.
Minutes for Appeal No. 2268, January 23, 1986, at 7.
The Board thus clearly understood that the "active elderly" were aging individuals who
needed some moderate level of personal assistance to maintain an independent lifestyle. The
Board approved Green's proposal by a unanimous vote, finding that "the project as now
proposed by the petitioner satisfies and complies with all of the requirements of Massachusetts
General Laws, Chapter 40A, Sections 9 and 10, of applicable provisions of zoning by-laws of
the Town of Yarmouth, and of the Prior Decision, warranting the relief herein granted."
Petition No. 2268 at 5.
Mr. Green further articulated some of the "basic components" of the planned elderly housing
development as including, among other services, an emergency call system, a resident advisor, food service and
nutritional and service needs, stimulating and creating activities and educational programs, health maintenance and
medical counseling services . . ., health and physical therapy programs . . . ." January 23, 1986 Minutes at 2.
He further explained that the "health and medical services" provided would include keeping health records of each
resident, and "a diary of their condition," to facilitate emergency medical responses. Id. at 19. It was even
contemplated at the time of the 1986 Special Permit Modification that there could be an on-site doctor's office or
clinic, id., though this feature is not currently in use or proposed for the Heatherwood assisted living units.
GOODWIN, PROCTER & HOAR LLP
Mr. David Reid
October 25, 1999
Page 5
3. The Existing and Proposed Assisted Living Units.
Phase II of the Heatherwood development includes 14 assisted living8 units to serve
precisely the aging population Mr. Green described to the Board in 1986. The Board has
previously found that the 14 existing assisted living units have not produced any complications
or conflicts. July 8, 1999 Determination on Compliance Review at 2. Further, their existence
has never been a secret.9 Indeed, as the Board was made aware at the July 8, 1999 Hearing on
Compliance Review, the overwhelming majority of Heatherwood residents (83% in favor)
prefer the proposed assisted living units to additional residential condominium development.
Mr. Green represented to the Board, at the 1986 Hearing, that the services provided to
the aging Heatherwood population would not rise to the level of a "nursing home." Neither
the existing 14 Phase II assisted living units, nor the 68 assisted living units proposed for
Phase III, contradict that representation. By law, Heatherwood staff cannot provide any
medical or skilled nursing care to assisted living unit residents. See Mass. Gen. L. ch. 19D,
10 and 11. The services that Heatherwood may, and does, offer are limited to providing
personal services," as defined in Gen. L. ch. 19D, § 1, and authorized by ch. 19D, § 10.10
8 "
Assisted living" is the nomenclature embodied in Mass. Gen. L. ch. 19D, enacted in 1994, pursuant to
which the 14 existing and 68 proposed Heatherwood units receive their certification from the Commonwealth of
Massachusetts' Executive Office of Elder Affairs. In the past, terms such as "personal care" or "congregate
living" have been utilized to refer to similar housing for the elderly. The Heatherwood Phase I Plans, approved
by the Board of Appeals on December 14, 1987, in fact used the term "Personal Care Units." Petitioners place
undue importance on semantics in basing much of their argument on the failure of the Board's prior decisions to
expressly employ the term "assisted living". Although the terminology has evolved over time, it is the actual use,
not the terminology, that is controlling, and the functionality of the 14 existing and 68 proposed assisted livingunitsisperfectlyconsistentwiththeusedescribedtoandapprovedbytheBoardin1986.
9
Mr. Sweeney's September 8, 1995 letter to this Board, a copy of which was enclosed with his July 8,1999 letter to the Board addressing the use issue, indicated that proposed assisted living units were included
among the Phase II Heatherwood units. Further, correspondence, dated September 15, 1995, from Forrest
White, then Inspector of Buildings, indicated that the assisted living areas were in accordance with existingpermits. While the petitioners note that no member of the present Board sat on the 1986 hearing, Mr. White, whoissuedtheBuildingPermitforPhaseII, including the assisted living units, was Building Inspector in 1986.
Moreoever, as noted above, the 1987 Board of Appeals signed off on the Heatherwood Phase I Plans, includingthedeveloper's designation of units as "Personal Care Units."
10
Such personal services can include reminding residents to take their medications; helping residents to
meals and other activities; and assisting residents with bathing and dressing. Residents are entitled under their
agreements to receive up to one hour of such services per day, however, most receive less.
GOODWIN, PROCTER & HOAR LLP
Mr. David Reid
October 25, 1999
Page 6
B. The Current Appeal.
Petitioners challenge both the existing 14 units and the 68 proposed units on the
grounds that this use — "assisted living" — is allegedly not permitted under the Zoning
By-Law and the Kings Way Special Permit. Petitioners argue that Heatherwood's assisted
living units are the functional equivalent of a "Nursing and Personal Care Facility," which
requires a special permit under Yarmouth's current Zoning By-Law." Moreover, petitioners
argue, O'Connell's Special Permit does not expressly authorize a "Nursing and Personal Care
Facility" or an "Assisted Living Facility."12
Petitioners' arguments are erroneous on several levels.
1. The Current Zoning By-Law Does Not Apply.
First, the current Zoning By-Law is wholly irrelevant to the case at hand. The existing
and proposed assisted living units are constructed under the 1975 Special Permit, as modified
in 1986, and are therefore not subject to the current Zoning By-Law. The assisted living units
satisfy the definition of "multi-family dwellings" under the 1975 Zoning By-Law.13
2. Heatherwood Is Not A Nursing Home.
Second, Heatherwood is most definitely not a nursing home; the points of distinction
between this facility and a nursing home are myriad and include:
1'
Petitioners' argument proceeds from the false premise that an assisted living facility falls within IndustryGroupNo. 805, Nursing and Personal Care Facilities, under the 1987 Standard Industrial Classification Manual
referenced in the current Yarmouth Zoning By-Law. O'Connell disputes this contention, since this grouping islimitedto "establishments rimarily engaged in providing in-patient nursing and health-related personal care"
emphasis supplied). Heatherwood does not meet this test. The Board need not resolve this issue, however, as
nothing turns on it since the current Zoning By-Law has no application to Kings Way or Heatherwood.
12 Petitioners' July 28, 1999 "Request for Zoning Enforcement" to Building Commissioner Brandolini
acknowledges that "assisted living" is classified as a residential use for the purpose of the State Building Code.See Mass. Gen. L. ch. 19D, § 18(d). Although a municipality can choose to classify assisted living as an
institutional use under its local zoning ordinance, the Town of Yarmouth has not done so.
13
Because Kings Way is grandfathered, it does not matter that multi-family residential development is no
longer a permitted use North of Route 6. This Board has repeatedly recognized that the Kings Way developmentisuniqueinYarmouth. See, e.g., Petition No. 2511 at 7.
GOODWIN, PROCTER & HOAR LLP
Mr. David Reid
October 25, 1999
Page 7
Heatherwood does not have a nursing staff. Though petitioners seek to make
much of the fact that the facility's Executive Director is a registered nurse, the
position is an administrative one, involving overseeing the facility and ensuring
that residents are receiving appropriate levels of attention.
Heatherwood staff cannot and do not administer medication or provide medical
or home health care services. If a resident requires medical or home health care
services, those services are contracted by the resident directly through a licensed
health care agency just as any Kings Way resident would do.
Heatherwood residents are not required to utilize Heatherwood staff for their
personal care needs; indeed, they are free to decline assistance or contract for
personal care services with an independent agency.
The whereabouts of Heatherwood residents are not monitored by Heatherwood
staff. Heatherwood residents come and go as they please.
14
Heatherwood is a residential facility governed by Massachusetts landlord/tenant
law and is not subject to the legal requirements applicable to medical
facility/inpatient relationships.
Heatherwood assisted living residents sign leases for their units yearly. Most
residents in fact live at Heatherwood for more than one year; some current
residents have lived at Heatherwood since the existing 14 units were built 3-1/2
years ago.
3. The Board Has Already Found In O'Connell's Favor.
In its July 8, 1999 Determination on Compliance Review, the Board, after considering
the arguments of Petitioners and hearing from various Kings Way and Heatherwood residents,
concluded that the existing and proposed Heatherwood assisted living units are within the
scope of the original 1975 Special Permit Decision, as modified by the Board of Appeals in
14
An undated letter received by the Board of Appeals on October 13, 1999 from Roland J. Garofalo,
D.D.S., questions whether assisted living units will result in increased vehicular traffic into and out of Kings
Way. In fact, a study by the American Seniors Housing Association("ASHA"), previously furnished to the
Board by Mr. Sweeney, concluded that "[a]ssisted living residences generate low traffic volume compared to most
other property types." Assisting Living Residences, A Study of Traffic & Parking Implications.
GOODWIN. PROCTER & HOAR LLP
Mr. David Reid
October 25, 1999
Page 8
1986. Absent compelling reasons to reconsider that decision, which do not exist, the Board
should adhere to the conclusion it reached previously on this same issue and should, therefore,
deny petitioners' appeal for the reasons expressed in the Board's prior July 8, 1999
Determination on Compliance Review.
We thank you and the Board for considering our views.
Very truly yours,
r
Richard A. Oetheimer
RAO/smw
DOCSA\664707.1