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Decision 1321 Filed 10.16.75 Special Permit page 1-15 Variances page 16-41
TOWN OF YARMOUTH BOARD OF APPEALS Filed with Town Clerk: Hearing Date: 5/15/75 Petitioner: Oak Harbor Associates 0' . 7 Petition No. : 1321 477 Main St. Yarmouthport, Mass. RECORD AND DECISION The petitioner has requested from this Board, a Special Permit under Sec. 18.07 of the zoning by—law for the Town of Yarmouth, which section provides for open space village developments. The Petitioner ' s parcel of land north of Route 6A, in the vicinity of and west of Manchester Rd. , and Bray Farm Rd. , consists of approximately 194 acres. Petitioner requests the Special Permit under Sec. 18.07 for residential buildings each containing no more than 24 dwelling units and together containing no more than 750 dwelling units, 83 garage—storage sheds, a community center complex, a gate house, a garden club building, a sewage treatment plant and facility, maintenance buildings and facilities, and related accessory features and facilities for the use and enjoyment of residents of the development, such as tennis courts, a golf course, swimming pools, gardens, trails and outdoor cooking areas. The petitioner also requests approval from this Board for construction of the project in successive stages with building permits issuing from time to time for each successive stage. The petitioner also filed with its Special Permit request, a petition for a series of variances from Sec. 18.07 of the zoning by—law and from other sections of the by—law. Some of the variances are requests for accessory structures and uses not specifically provided for under Sec. 18.07. All of the building structures and facilities listed above, except for the residential buildings themselves, fall withit this category and are included in the variance petition. Lot 11 , which is the site of an existing Federal Aviation Administration Contro'.- Facility, may or may not be utilized for hous,i.ng purposes. Petitioner states the dwelling units depicted on the Overall Development Plan on Lot 11 will only be possible if the F.A.A. terminates the control facility and vacates the premises; should this occur, the Developer seeks to construct up to 32 dwelling units on Lot lE but in this event, the number of units on one or more of the lots listed would be reduced by an equivalent number, so that the overall number of dwelling units in the development will in no case exceed 750. For purposes of our decision on the Petitioner ' s Special Permit request, we treat these accessory structures and facilities as part of the project as if pro— vided for in Sec. 18.07 inasmuch as they are important and integral parts of the development proposal . As a consequence, we apply the criteria, tests and requirements of Sec. 18.07 against the proposed development project as a whole, including these accessory structures and facilities. It is to be noted, however, that the special permit granted by us in this case may not by itself authorize the construction of such accessory buildings or facilities; to the extent these are not provided for under Sec. 18.07, the construction requires variance authorization. 1— We note further that except in the case of the Sewage Treatment Plant and facilities, without which the project could not advance beyond initial stages, our conclusions as respects compliance with these criteria, tests and require— ments do not depend on any accessories being built so that our decision in this case would be unaffected by subsequent denial by us of any one or more accessory variance or by court determination of the invalidity of any one or more. Under Sec. 18.07, Par. 3C, the Board of Appeals was to receive with the application, an overall development plan indicating boundaries of the site, pro— posed land and building uses, location of common open space and other features. Und Par. 3D, the application also was to include a statement of each land owners interes of the land to be developed, a statement of the form of organization proposed to own and maintain the common open space, and a statement of the substance of covenants and grants of easements to be imposed upon the use of land and the structures. A development schedule is also called for. The Board believes these requirements have been met, as the petitioner 's overall development plan contains on its face more of the information required under Sec. 18.07, 3C; the balance is provided in the notes attached to the plan. The statements required under Par. 3D are attached to the petition. The petition therefore complies with the by—law. Members of Board of Appeals present: Thomas N. George, Robert Sherman, David Oman, Philip Dempsey, Herbert Renkainen. It appearing that notice of said hearing has been given by sending notice there- of the the petitioner and all those owners of property deemed by the Board to be affected thereby, and that public notice of such hearing having been given by publication in the Cape Cod Standard Times on 4/30 and 5/7/75, the hearing was opened and held on the date first above written. The following appeared in favor of the petition: Richard Anderson, Attorney Marion McKinnon by letter J. Robertson Robert Helwig by letter J. Karras E.B.Duar by letter Mr. Chandler Richard G. Allen by letter The following appeared in opposition: DuPont P.J.Rozelle by letter The petitioners parcel of 194 acres more or less lies North by Route 6A (a State Highway) , East of the Bass River Rod and Gun Club and by the Town of Yarmouth, South of a vacant tract of land and Bray Farm Road, an -unimproved dirt road, and West of several subdivisions which have not been fully developed. The only structure on the petitioners parcel is a Federal Aviation Adminis— tration Flight Control facility situated in the southwest corner. This facility, we understand, exists under a short—term lease; we are unaware whether the F.A.A. 2— intends to renew the lease. We are familiar with the structures constituting the Flight Control facility. The parcel is bisected north and south by Hockanom Road which is inimproved and unpaved. We believe the traffic over Hockanom Road is slight. It provides alternate access from Route 6A to the Town' s conservation land situated Northwest of the petitioners parcel ; Bray Farm Road provides equal access to this land. The parcel is entirely within the RD-2 zoning district, and therefore subject to the provisions of Sec. 18.07 of the by—laws. At the hearing, the petitioner presented nine plans as follows: 1 . Overall Development Plan (in color) . 2. Plan showing control lines and parking. 3. Plan showing Buffer zones. 4. Plan showing proximity of proposed residence buildings to existing single family dwellings. 5. Plan showing water system. 6. Utility plan. 7. Plan showing existing trees to be saved and open spaces. 8. Plan showing proximity of lucus to wetlands. 9. Emergency access and circulation plan. In addition, there were reports by Childs, Bertman, Tseckares Associates, Inc. , land planners; Dana F. Perkins and Sons, Inc. , Environmental Engineers; Dr. John M. Teal , Ecologist and marine biologist, and Edward E. Kelley, registered land surveyor. The report by Childs, Bertman, Tseckares Associates describes the clustering or grouping of buildings in residential areas and the effect of clustering in terms of preservation of existing trees and vegetation, conformity to existing topography, visual screenings, control of sight lines to provide scale, and other advantages not herein enumerated. The report specifically compares the proposed open space development to conventional subdivision plans for this parcel . The report by Dana F. Perkins and Sons, Inc. , the firm which prepared the drainage and utilities plans, was filed by Donald E. Martinage who was present at the meeting. The report covers the adequacy of public water supply, provisions in the plan for handling of surface water run off and the adequacy of the proposed sewage treatment system. Mr. Martinage, in answer to questions, described the plant as a secondary treatment system with polishing filters designed to produce an approved solid waste. 3— Dr. John M. Teal , an ecologist, set forth his conclusions with respect to the superiority of the proposed plan over a conventional one in respect to con— servation, protection of vegetation, and effects of this project on tidal marshes which would be subject to the water running off of this parcel . Dor Teal during questions stated that he was familiar with the end products from the proposed sewage treatment plan and that in his opinion, the effluent from the plant would have no effect on Chase Garden Creek, or on the research station situation on the Creek, or on any of the ponds surrounding the development. Edward E. Kelley' s report attests to the number of square feet in the peti— tioners parcel . There was presented at the meeting the petitioners environmental impact report in draft form dealing with matters of traffic flow, congestion on Route 6A in Yarmouth, with the adequacy of the proposed sewage treatment plant and with other environmental considerations. The qualifications for Dr. Teal and the firm of Dana F. Perkins and Sons, Inc. , are set forth in the envioonmental impact report; those for the firm of Childs, Bertman Tseckares and Associates, Inc. , were separately presented. We are familiar with the qualifications of Edward E. Kelley, a local registered land surveyor. In our judgement, all of these firms and persons named above are well qualified within their fields of expertise and we accept their reports, opinions and con— clusions as the equivalent of expert testimony. At the hearing, there was a slide presentation (the slides for which were left with us as part of the documentation in this case) , including: 1 . Chart showing typical advancement of construction in successive stages with matching dedication of open space areas to comply with Sec. 18.07, 4F. 2. Plans showing lot and road layout for typical single family and duplex subdivisions. 3. Chart comparing number of feet of subdivision streets requiredfortheproposedOpenSpaceVillageDevelopmentandthetypicalsinglefamilyandduplexsubdivisionsshownontheplansreferred to above. 4. Plan showing a typical residential cluster in larger scale than on the Overall Development Plan. The petitioner filed with us at the hearing, copies of Plans and Profiles of Oak Harbour Circle as prepared for and presented to the Yarmouth Planning Board in connection with the subdivision of the locus. 4— Finally, the petitioner submitted with the reports a statement of the likelyeffectoftheproposedgolfcourseontheprojectasawholeandontheopenspace areas in particular. COMPLIANCE WITH CRITERIA OF PARAGRAPH 3—F OF SECTION 18.07 The petitioners overall development plan, together with the plan highlighting the trees and open spaces that will be available to residents of the Oak Harbour Development show at least 30% of the entire parcel will be set aside in blocks large enough to accommodate walking, and bicycle trails, nature paths, ball fields and even a golf course. Furthermore, the lots which the petitioner proposes to commit from time to time to open space useage are linked together so as to makepossibleunbrokentrailsandpathsrunningthroughouttheentire194acres. We have reviewed the reports referred to above and it is our specific findingbasedonthesereportsandonourownobservationsfromthedatasubmittedthatthe proposed plan in superior in these respects (preservation of open space for con— servation and recreation) to a conventional one. We have examined the contour plan for the parcel as well as the plans and profiles for Oak Harbour Circle. We note the rather steep decline of the land in the northeast corner and the relatively elevated nature of the plateau in the center.We conclude from these observations and from the opinions and conclusions set forthintheforegoingreportsthattheproposedopenspacevillageplanforthistract is superior and more appropriate than would be a conventional single family sub— division with respect to utilization of natural features of the land. We note that whereas a conventional subdivision scheme for this tract could require as much as 32,000 running feet of subdivision streets, the proposed open space village plan calls for only 6, 165 feet of street. We observe that the proposed plan does not call for streets or access ways or driveways of any kind across or down the relatively steep slope in the northeast corner; this is a good feature as opposed to a conventional subdivision. In respect to utilities, we note that by reason of the clustering or grouping of residential structures, no water, sewer or electric service lines or trunks on extensions are required at all in many portions of the development; clustering of buildings appears to make possible a shorter and more efficient network of lines and pipes for essential services. Our observations and conclusions as above, together with the opinions as set forth in the reports above listed, lead us to the finding that the proposed plan for development of the parcel under Sec. 18.07 is superior in theserrespectsttlities any plan for single family homes. We deal on the following pages of this report with the requirements set forth i para. 4D of the open space village by—law. In each of the required categories in para. 4D, we find that the petitioners proposal is at least equivalent to a conven— tional plan, if not superior. In addition, we find that the proposal is superior to a conventional plan in the following respects: 5— a. The proposed system of walking paths or trails over open space lots andalsoacrosssomeoftheproposedconstructionlotsissuperiorfor movement of people to the usual layout of sidewalks that would be pro— vided in a standard subdivision. b. The proposed form of ownership of the lots to be dedicated from time totimeasopenspaceprovidesaflexibleschemenotonlyformaintenance of and orderly control of the use of open space, but also for alteration from time to time of the recreational uses of the open space to serve the changing recreational interests and needs of residents as time passes. c. Some of the recreational need of residents of Oak Harbour that mightotherwiserequireatripbyautomobileintotownorfurtherwillbe met by on—site facilities and in this respect, the proposed development is superior to a conventional one. COMPLIANCE WITH THE DENSITY REQUIREMENTS OF PARAGRAPH 4A OF SECTION 18.07 The report of Edward E. Kelley states that the subject parcel contains 8,436, 518 square feet of land. We have examined the plan indicating the portion of the parcel determined by theConservationCommissionfortheTownofYarmouthtobepossiblysubjecttoWetlands regulations and we find that it is less than 10% of the whole tract. We find no other areas within the perimeter of the petitioners overall development plan which is designated for use or which in our opinion will be for use not primarily servicing residents of the development. We therefore find that the applicable land area under Par. 4,A,2 of Sec. 18.07 is the same as the total area of the parcel . Assuming that all of the dwelling units requested by the petitioner will be contained in multi—family dwellings (a condition of grant of this permit), and since the total applicable land area is in excess of 75 acres, we find that the incentive factor applicable to this project under para. 4,A, 1 of Sec. 18.07 is two. We have applied the above incentive factor and applicable land area to the formula set forth in para. 4,A,2 for the RD-2 zoning district and we conclude that the petitioners calculations for the maximum number of dwelling units that could be constructed on the site is correct, this number being 844. The notes attached to the petitioners overall development plan state that particular locations of buildings shown on the plan are not intended to fix absolutely the eventual siting or arrangement or layout of buildings or structures; therefore, although our examination of thissmplan andbaalso thehedplansansrsublitted by the petitioner showing buffer zones" (p l s internal setbacks) discloses Cnare instance met,nwewhichimposeany asfa on of our grant tconditehe iaregu— lations set forth in para. ,of this permit the condition that all buildings as eventually sited on the various lots must comply with the prsn para. from4such except regulations bytvariance ent that this Board now or later shall permitdeparture 6— 1 . PARKING, as required by Para. 4,D, of Sec. 18.07 Our examination of the overall development plan discloses no instance where sufficient parking spaces for the maximum number of dwelling units requested for each residential lot are not provided, nor do we find any instances where spaces shoti are, according to the scale of the plan, too small or too near a street or lot line. However, the petitioner states in the notes attached to the plan that the areasdepictedontheplanasparkingspacesarenotintendedtofixthesitingof parking areas as ultimately constructed; therefore, we condition our grant of this special permit on provision by the developer of adequate numbers of parking spacesofpropersizeandsetbackforthenumbersofdwellingunitstobeconstructedfrom time to time on each residential lot. 2. DISRUPTION OF ESTABLISHED NEIGHBORHOODS, as required by para. 4,0 of Sec. 18.07. Requirement #2 specifies that there shall be minimal disruption of established neighborhoods, evidence by (there being) not more than 30 single family dwellings at the time of application within 500 feet of any proposed multi—family (or attached single family) structure. To the Board' s knowledge, there are only 8 dwellings within this distance. Since this number is less than 30, we find that under the test set forth for requirement 2, the proposed development will cause minimal disruption of the functioning of established neighborhoods. We note from the petitioners plan showing buffer zones that for the most part, the developer is providing a 70' buffer strip around the edge of the entire parcel , even though in most places, 50' would meet the b6—law requirement; in our judgement, this extra—width separation strip will further protect the surrounding neighborhoods, 3. SAFE ACCESS, as required by Para. 4,D of Sec. 18.07. This requirement is tested by determining whether access is from a major arteri, street, one of which is Route 6A, without use of minor streets extensively developed for single family houses and (providing) adequate access to the site for fire and se vice equipment. Primary access to Oak Harbour will be over the frontage of Route 6A. The overall development plan shows that several streets dead end at the Oak Harbour boundary. The 70' buffer zone referred to in para. 2 above and the covenant between developer and the Yarmouth Planning Board in connection with the subdivision of the parcel (on which this special permit request depends) to the effect that barriers of bushes or trees will be planted at the ends of these streets to ensure that traffic will not pass beyond the existing turn arounds, are sufficient to assure there will be no connections between roadways in Oak Harbour and abutting subdivisions. We find that all of the tests for satisfaction of requirement 3 have been met and therefore that there will be safe aecess to Oak Harbour. 7- 4. ' ADEQUATE UTILITY SERVICE, as Required by Paragraph 4-D of Sec. 18:07 Subparagraph 4 specified that satisfaction of this requirement shall be evidence of availability of a public water supply, adequate drainage, and at the location of the sewage treatment system, soils having certain characteristics. These three criteria are specifically covered by the Petitioner's draft Environ- mental Impact Report. Beyond this, approval from the Mass. Dept. of Public Health will be required for the final sewage treatment plan, no more than one or possibly two residential clusters or phases could be constructed. We note too with respect to the adequacy of the petitioner's system for surface water drainage that extensive survey and engineering work was done in the course of preparation of the petitioner's plans and profiles for Oak Harbour Circle as submitted to the Planning Board. Based on all of the above, we conclude that the three criteria are satisfied and therefore that the petitioner's Open Space Village Development will provide adequate utility service. 5. AVOIDANCE OF ECOLOGICAL DISRUPTION, as Required by Paragraph 4-D of Sec. 18:07 A two-part test is specified for this requirement: whether any proposed building will be less than 250 feet from any pond over 5 acres, river, ocean, swamp or marsh and whether site design minimizes topographic change or removal of existing trees and vegetation. We have examined the two plans submitted by the petitioner showing proximity of the locus to wetlands areas (southwest corner only) and to nearby ponds and the salt creek. No buildings are proposed within 250 feet of the wetland areas, and no pond, river, ocean, swamp, marsh or salt creek is within 250 feet of the development parcel. We have kept in mind also the reports of Dr. Teal and Mr. Tseckares and based on the foregoing observations and conclusions, we find that the proposed open space development resonably avoids ecological disruption. 6. PRESERVATION OF NEIGHBORHOOD AMENITIES, as Required by Paragraph 4-D of Sec. 18:07 Three tests are set forth for this requirement: 1. Glare-free illumination of parking areas We establish as a condition of this Special Permit that all parking areas wherever located,be illuminated, such illumination to be glare-free. 2. Preservation of water views from public highways No water views are available from any public highways in the vicinity of Oak Harbour; this test does not apply. 3. Effective use of topography, landscaping and building placement to maintain, to the degree feasible) the character of the neighborhood 8- The petitioner's topographic map clearly indicates that the lots selected for residential construction and for the community center are in the higher elevation, plateau area. The developer's plans indicate they have avoided any appearance of "bull- dozer"subdivisions; trees and vegetation have been retained to the extend possible; the petitioner's proposed clustering of buildings with belts of trees surrounding each cluster will give Oak Harbor an appearance in keeping with the neighboring subdivisions. There are no neighborhood characteristics to match along the north and west boundaries of the locus because these areas are all undeveloped and are still held as large tracts. We find therefore that the petitioner's use of contours , in sitting its build- clusters and the retention (or provision) of belts of trees as a permanent landscap- ing feature will be entirely compatible with and should reinforce the visual characteristics of the surrounding neighborhoods. For the foregoing reasons, we find that the Oak Harbour Development plans will be in keeping with and will preserve neighborhood amenities. 7. NO MULTI-FAMILY STRUCTURE TO CONTAIN MORE THAN 24 DWELLING UNITS, as required by Para- graph 4-D of Sec. 18:07 The petition so states, but we make compliance with this requirement a condition of our grant of this Special Permit in any event. 8. EMERGENCY ACCESS TO EACH BUILDING, as required by Paragraph 4-D of Sec. 18:07 The petitioner's emergency access plan shows that access will be made available to each multi-family dwelling. There is no indication whether or not these approaches will be paved,but we see no reason for pavement in any event so long as the paths are capable of supporting fire and emergency service vehicles. However, because the sitting of buildings may change as the petitioner points out in the notes attached to the Overall Development Plan, we impose as a condition to our grant of this Special Permit, that emergency approaches capable of supporting vehicles up to 15 tons shall be provided to each multi-family dwelling as provided in this subparabraphandshallthereafterbekeptfreeofsuchobstructionsascouldblockthepassageof these vehicles in any emergency situation. OPEN SPACE Paragraph 4-F of the Open Space Village By-law sets forth the requirements for and the restrictions to be imposed upon the open space areas which are in intregal part of this type of cluster development. We observe that there are five (5) basic parts to this paragraph and we will deal with each part. 1. Basic Requirement for Open Space The first two and the last sentences of the By-law outline the amount and type ofopenspacethatmustbeprovidedinadevelopmentunderSection18:07 and limit the buildings that may be constructed thereon. The main requirement is contained in the second sentence of the By-law, wherein it is stated that common open space shall comprise not less than thirty (30%) per cent of the applicable land area shown on the development plan. We have added up the land area represented by the lots on which the Petitioner indicates that dwellings or other struc- 9- tures may be placed; we find that the total is less than seventy (70%) per cent of the applicable land area as set forth in the land surveyor's report. We are satisfied that the remaining lots (some of which are shown as open lands on the overall development plan) are capable of meeting this thirty (30%) per cent test. We make no findings or decision as to the particular lots or the order in which particular lots may be selected and dedicated by the Petitioner as the required open space under paragraph 4-F of the By-law. The paragraph clearly limits the lots which may be used for this purpose to those on which (essentially) no construction is to take place. This requirement is one of many on-going provisions that will be applicable t able to as the project as it progresses and with which the Developer will have to comply, P we may grant exception thereto by variance. Section 18:07 calls for no specific find- . ings or determinations by us on this matter and in our judgement none should be entered. The Petitioner specifically requests in this case our approval to build Oak Harbour in successive stages, drawing building pemits from time to time as the project commences. In this connection, the Petitioner proposes, as stated in variance request #10, to dedi- cate prior to the commencement of each stage sufficient open space lots to cause at alltimesthecompletedsectionsoftheprojectplusthephaseorphasesunderwaytocomply with the 30% open space requirement of paragraph 4-F. The Town needs to be assured that this will take place automatically and that at any and all times during development, if for any reason the balance of the project does not go forward to completion under this special permit, and the remaining lots are placed in any of the other uses possible under the underlying RD-2 Zoning District, no question will arise as to whether or not additional open space lots must first be committed to support the Open Space Village buildings already built. Since variance #10 acutally deals only with a dimensional requirement under Section 18:07 - 4 -C,we are in doubt as to whether our inclusion in that decision of a conditionorrequirementtomeetthequestionathandwouldassuretheTownofprotectioninall events. We therefore impose upon our decision in this case the condition that prior to the start of construction of any of the multi-family dwellings approved under thisSpecialPermit,sufficient lots shall be dedicated as open space to cause the project as then completed plus the dwelling units then to be commenced to comply with the 30% open space requirement of paragraph 4-F. 2. Ownership and Maintenance of Open Space Areas Paragraph F requires that ownership of open space areas shall be arranged through an incorporated homeowners association, condominium deeds or other land agreement through which each first owner (and we assume each subsequent owner) in the development auto- matically becomes a member. We have reviewed the statement attached to the original petition covering these points and we are satisfied that the condominium unit deeds to be granted each unit owner, together with the ownership of open space areas either by a land trust as proposed or in the alternative by one or more of the separate condominiums,will provide a form of ownership and a basis for membership meeting this requirement. 3. Use and Enjoyment of Open Space by Residents of the Development for Conservation and Recreation The By-law requires that under the above arrangements for ownership of open space areas, preservation of required open space shall be guaranteed for use and enjoymentthese of residents of the development, for conservation or for recreational use only, by residents and their non-paying guests. 10- We have examined closely the statements in this regard made by the Petitioner as part of its request for this permit, and we note that "deed restrictions limiting the use for open space purposes will be imposed upon each open space area as it is dedi- cated to the project. . ." In our opinion, legal instruments of this description will guarantee permanent dedication of open space lots for those uses and purposes only which are set forth in paragraph F, thereby meeting this requirement. Similarly, we note in the Petitioner's statement that ". . .rights will be granted to all unit owners of the project so as to ensure to each of them their rights to use the open space areas." We conclude that instruments granting rights of this kind will comply with the above requirement except as we may grant exception therefrom from time to time by variance. 4. Maintenance of Open Space Areas Paragraph F requires that maintenance of open space areas shall be permanently assured through instruments under which each lot is subject to a charge for a share of maintenance expenses. The Petitioner made several statements specifically calling for the imposition we assume in each unit owner's deed) of covenants requiring ". . .each unit owner to pay his determined share of expenses incurred on the maintenance of open space areas. . ." In our opinion, these provisions will ensure that the requirements for guaranteed and permanent maintenance and upkeep of open space areas will be met, except as we may grant exception therefrom from time to time by variance. 5. Other Requirements Finally, it is required under paragraph F that the town shall be granted an ease- ment sufficient to ensure perpetual maintenenace of required open space as conservational and recreational land. 141 in this connection the Petitioner's statement in the request for this permit that " restriction running in favor of the Town of Yarmouth will be imposed on all open space areas by the terms of which no use inconsistent with the open space concept de- scribed in this application will be permitted." Since the application itself is consistent throughout with paragraph F of Section 18:07,we find that the restriction which the Petitioner proposes will grant to the Town of Yarmouth the guarantees for permanent establishment of open space areas for conser- vation and recreational purposes that are required in paragraph F. Overall,we find that the proposed development meets or will meet the requirements for open space in Section 18:07, paragraph F. SUMMARY OF SUBMISSION AND MATERIALS This special permit is issued under the Yarmouth Zoning By-law, Section 18:07, commonly known as the Open Space Village Development By-law. This petition was put before the Board on May 15, 1975, proper notice having been given and due publication having been made pursuant to GL 40A Section 17 on 4/30 and 5/7/75 in the Cape Cod Standard Times, and the Board examined the petition in light of the above-referred to by-law and in light of all other requirements by other committees within the Town of 11- Yarmouth, to include, but not limited to, the Planning Board, the Yarmouth Conservation Commission, the Yarmouth Water Department , the Yarmouth Engineering Department. The Board examined several sets of plans, as well as documentary evidence presented by the petitioner and voted on June 17, 1975 to grant to the petitioner a special permit under Section 18:07 of the by-laws for an open space village development , to be located north of Route 6A in the village of Yarmouth, in Yarmouth, Mass. Oak Harbor, dated Feb. 14, 1975 , which plan was presented to the Yarmouth Planning Board and which plan was approved by said Board,subject to certain restrictions laid down in a covenant by that Board with the developer- petitioner, and to which covenant, and of which restrictions this special permit is subject, in addition to those imposed by this Board. DECISION THE SPECIAL PERMIT REQUESTED BY THE PETITIONER IS GRANTED SUBJECT TO THE FOLLOWING PROVISIONS: 1. All lots on the above-referred to plan are approved for open space development with a maximum number of dwelling units on each lot or lots as imposed below, with the exception of Lot 11, which is presently occupied by the Federal Aviation Administration Contol Facility, and which lot will remain free from any development, so long as the Federal Aviation Administration Control Facility exists. However, should the F.A.A. terminate the control facility and forever release its use of that permises, then Lot 11 may be used for development of open space village units not to exceed thirty-two dwelling units in number, provided that the thirty-two units to be built on Lot 11 are made up from units on one or more of the other lots listed below, so that the aggregate number of units on all lots shall not exceed 750 units, whether or not Lot 11 is used in the development. The maximum number of dwelling units designated below for the lots listed shall not be changed without the prior review and assent of this Board. Lot Number Maximum number of dwelling units 8A & 35 38 33 35 13 52 14 30 15 28 31 37 16 50 18 72 29 32 28 27 20 50 23 52 24 40 26 & 10A 44 2 & 8 59 21 104 Total 750 2. Accessory structures and facilities, as follows, to the extent that the same con- stitute structures, facilities and uses authorized in an RD-2 zoning district under a special permit for open space village development, or to the extent that this Board shall now or hereafter permit such structures, facilities and activities by variance, are included in this special permit, without however any requirement that these structures and facilities, which must be constructed in accordance with paragraph 3, following in order for the project to meet the requirements of this permit. Accessory1e structures, facilities and uses are as follows : 1) Gatehouse 2) Sewage treatment plant and facilities 3) Garden club building 4) Requisite maintenance facilities, such as tool sheds, but not limited to tool sheds 5) Community Center complex, containing a clubhouse, pro shop, dining room, lounge, kitchen, community hall, health club, ten guest rooms, post office-village store, which facility shall be combined unless the U.S.Government requires otherwise, management office, sales office, and swimming pool. The foregoing are for the use of members and guests of the development and are not to be open to the general public except asthis Board may by variance authorize public use of the Clubhouse, Pro shop and village store. 6) Related accessory features and facilities for the recreation and enjoyment of residents and guests of the development, including tennis courts, walking and bicycle paths, gardens, outdoor cooking areas, rain shelters, ball fields, a golf course and a look-out platform. 7) Garage and storage sheds for the accommodation of unit owners, which storage sheds and garages shall not exceed 83 structures. 3. In order to facilitate proper development, this project may be constructed in successive stages. The developer may apply for and obtain building permits under this special permit from time to time for each stage or phase of the project, prior to the commencement of each stage or phase, conditional upon the following: 1) No proposed building for residential use shall contain less than two, nor more than 24 dwelling units. 2) The component parts of each residential building shall be limited in height (height to be measured in accordance with the by-laws for the Town of Yarmouth) : a one-story component - 25 feet; two-story com- ponent - 35 feet. 3) Parking areas shall conform to the applicable provisions of the Town of Yarmouth zoning by-laws. Parking areas may be illuminated for con- venience of the unit owners , such illumination to be glare-free. 4) Access for each proposed building for residential use shall be provided in accordance with the requirements of Section 18:07, sub-paragraph 4, sub-sub-paragraph E, of the Yarmouth zoning by-law. 5) Emergency access , whether or not paved, shall be provided for in accordance with the requirements of the Town fire department and the Town police department, provided that their requirements are governed by Section 18:07. Sub-paragraph 4, sub-sub paragraph D, sub-sub-sub- paragraph 8 of the town zoning by-law. 6) Placement of the residential buildings on the lots mentioned above shall conform with the requirements of the zoning by-law, most particularly section 18:07 , paragraph 4C. Said requirements may be varied by this Board, provided that a proper petition for a variance is presented and approved. 13- 7) In accordance with Section 18:10-6 of the town by-laws, this Board 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 Dept. for review and report. 8) Sewage treatment plant facilities must be erected and operating andfunctioninginaccordancewiththeprovisionsofapplicablestateand local laws, the phasing of same to commence no later than the time when75dwellingunitsshallbeoccupiedwithintheopenspacevillagedev- elopment. 9) The issuance of building permits for accessory structures as have been authorized by and under the terms of this special permit or by a variance now or later issued by this Board, shall be subject to the following conditions : a) The ground area and height for each such structure shall not exceed the following: MaxiumMaximum I. Community center complex of inter- ground area hei ht connected buildings 10,000 sq. ft. 35 ft. 300 sq. ft. 20 ft. II. Gate house III. Garden Club building 3,500 sq. ft. 35 ft. IV. Maintenance Area buildings 25 ft. a) open storage building 1,000 sq. ft. b) 4 bay open shed type 25 ft. buildings (2) 2,300 sq. ft. 2,300 sq. ft. 25 ft. c) garage - office( d) bath house 600 sq. ft. 15 ft. V. Sewage Treatment Plant buildings: a) Communitor and flow measurement 400_ sq. ft. 25 ft. building 4,000 sq. ft. 25 ft. b) clarifier building 00 sq. ft. 25 ft. c) chlorine equipment building 2,400 sq. ft. 25 ft. d) polishing filter building 25 ft. e) office and laboratory 7,200 sq. ft. VI. Garage-Storage Sheds 1,800 sq. ft. 20 ft. b) Siting of accessory buildings shall be in compliance with the town by-laws Section 18:07 -4- C. 10) Prior to the construction of any residential buildings, from time to time, sufficient open space in the form of one or more in whole part t of lots 3, 6, 10, 12, 17, 19, 22, 25, 27, 12A, 9A, 30, 34, 7, 4, and 32, as shown on the above-mentioned plan of February 14, 1975; and lots 22, 23, 24, 25 and 26 on Land Court Plan No. 35454A at the Ba rn is- stable Land REgistration Office, shall be dedicated under the pr ovions of Section 18:07-4-F of the zoning by-law in order to assure that the total area of dedicated open space, plus housing lots completed or then to be started, meet the requirements of Section 18:07 -4-C for the number of dwelling units completed, plus those which are then to be started. shalt 11) All building permits taken out under the terms of this specilpermito fro; be applied for within ten years of the expiration of any appeal 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 appear- ance before, this Board, stating the reason therefor, request an extension or extensions of this ten-year time limit. 14- 4. Use of this special permit is subject to the developer's providing a scheme for ownership of open space lots insuring the use thereof by residents of the develop- ment and their guests and the maintenance thereof by residents of the development, except as this Board may now or later vary the requirements, meeting the following general requirements. a) Open space lots shall, following the dedication as such, be owned by a land trust or in the alternative, by one or more of the separate condominium organizations. b) Following dedication of lots for open space purposes, there shall be restrictions in the deeds to the same limiting the use thereof to the open space purposes set forth in Section 18:07-4-F of the town by-laws. c) Each condominium unit owner shall be granted rights to use open space areas in common with other unit owners and their guests. d) Covenant obligations shall be imposed on each unit owner requiring payment of his determined share of expenses necessary for the main- tenance of open space areas. The instruments and documents utilized by the developer from time to time to carry out the foregoing may be altered and varied without approval of this Board, provided that the effect of the present permit is carried out. 5. This permit is granted subject to the condition that the developer restore by some type of vegetation all areas disturbed during construction, which areas are not either structure, walks, roads, parking areas, or formal recreation facilities, such as ball fields, picnic areas, or golf courses. The foregoing will not apply to areas within the sewage treatment area which might be required to be kept open for proper operation of the treatment plant, nor to the work and storage areas on lot 13A. 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. Therefore, petitioner's request for approval is granted. Members of Board voting: Thomas N. George voted in favor Robert Sherman voted in favor David Oman voted in favor Philip Dempsey voted in favor Herbert Renkainen voted in favor No permit issued until 22 days from date of filing the decision with the Town Clerk. per Robert W. Sherman Clerk TOWN OF YARMOUTH BOARD OF APPEALS Filed with Town Clerk: Hearing Date: 5/15/75 Petitioner: Oak Harbor Associates Petition No. : 1321 DECISION The petitioner requested from this Board, a series of variances from certain sections of the Yarmouth zoning by-law with respect to a parcel of essentially vacant land on the north side of Route 6A in Yarmouthport. The petitioner filed with this Board at the same time and under the same case number, for associated consideration, a request for a special permit for an Open Space Village Development under Section 18:07 of the zoning by-law to be constructed on the same parcel. This Board voted on June 17, 1975, to approve the petitioner's special permit request and the record and decision in that case will be filed with the Town Clerk for the Town of Yarmouth with the record and decision in this case. Notice of the public hearing required was published in the Cape Cod Standard Times on April 30,and May 7, 1975. Notice of the public hearing was mailed to parties interested including abutters and abutters to abutters pursuant to applicable statutes and by-laws. The public hearing on the petitioner's request was held at the Yarmouth Town Hall in South Yarmouth, Massachusetts on May 15, 1975 at 7:30 o'clock p.m. Members of Board of Appeals present: Thomas N.George Herbert Renkainen David Oman Philip Dempsey Robert Sherman The petitioner's property consists of approximately 194 acres of vacant land on the north side of Route 6A in Yarmouth and situated between Route 6A and Bray Farm Road. The site is bisected north and south by Hockanom Road, known to us to be a dirt track 8 feet wide of long standing between Route 6A and Bray Farm Road. There is located on the property in the southwest section an FAA flight control installation, the lease for which will expire in 1978. The property is entirely within the RD-2 zoning district. Until 1973, apartments were permitted in this district and in 1973, this Board granted to one of the owners a special permit for multiple family units for 957 families. At the annual town meeting in 1973, the town amended the zoning by-law, substitut- ing in place of the apartment section, a new by-law section for Open Space Village Dev. . This new section, as amended slightly by the special town meeting in the fall of 1974, is the basis for this petitioner's accompanying request to this Board for a special permit for multiple family units for 750 families. DESCRIPTION OF THE PETITIONER'S REQUESTS: The petitioner seeks variance relief from the zoning by-laws in order to be per- mitted various structures and uses in connection with the proposed Open Space Village 1- Q Development for up to 750 dwelling units in multi-family residential buildings. The purpose of each variance is to make possible some particular structure, use or activity associated with the Petitioner's proposed Open Space Village Development forwhichtherelatedSpecialPermitpetitionhasbeensubmittedandwhichwehavenow approved. None of the structures or uses reflected in these variance applications repre- sents a building or an activity designed to stand independent of the basic plan for the site, that of a cluster-type residential development. In this important sense, all of the variances have in common their status as accessory requests, and we consider them in 'this light, although in part, we treat each separately and enter separate decisions for each. EVIDENCE AND MATERIALS PRESENTED AT THE PUBLIC HEARING At the hearing, the petitioner, represented by Attorney Richard C. Anderson of Hyannis, presented a report by Murray Regan and a letter to the Board by Edward E. Kelley, Reg. Land Surveyor. Mr.Regan's report describes the relationship between the proposed Open Space Village Development and the variances. In substance, Mr. Regan states that in his opinion the accessory features requested would be essential in order to make the construction of an Open Space Village economically feasible. Mr.Kelley's letter describes the parcel in terms of its terrain and peculiar geo- graphical characteristics, concluding that for several reasons , the land is suited for a cluster type development but not for a single family subdivision. An Environmental Impact Report in draft form was presented at the meeting, dealing in detail and at length with the requirements for an on-site sewage treatment facility. Dr.John M. Teal, Ecologist, presented a summary report of certain of his findings, stating his opinion that the proposed development will contain natural areas separating it from surrounding developments, further reducing the visual impact of development. Mr. Kelley, during the hearing and in answer to questions, stated that established neighborhoods to the southeast should not be affected from a traffic standpoint by the proposed development, since access into the site over the existing roads which now end at the edge of the parcel will be blocked. Richard Anderson, Esq. , representing the petitioner, stated that neighborhoods to the southwest should not be adversely affected during the construction phase of any of the buildings requested under the variances, or other buildings, because Hockanom Road will not be used by construction equipment. Finally,the petitioner submitted plans to the meeting, several of which show the buffer zones or strips to be provided around the perimeter of the development shieldingtheSewageTreatmentBuildingsandmaintenanceareastructuresfromestablishedneighbor- hoods. Upon request, we were supplied with additional data showing the relative size and significance of the facilities to be incorporated into the proposed Community Center Complex. 2- LAND CONDITIONS APPLICABLE TO THE OAK HARBOUR PARCEL Some of the physical conditions applicable to the petitioner's parcel, may be summa- rized as follows: 1. The parcel is the largest undeveloped tract of vacant land in united private ownership in the RD-2 zoning district in which it is situated. The district itself is small and includes the petitioner's parcel, plus some land to the west and more to the east, all being on the north side of Route 6A. The petitioner's 194 acres constitute nearly 30% of the whole. In addition, the land in the district to the east of the petitioner's parcel is already subdivided into single family lots , some of which are already built upon. 2. The parcel has unique topographic characteristics. The main portion is an up- land plateau with an average elevation of 85-90 feet. This plateau rises gradually north- ward toward the water. It then falls away steeply to Bray Farm Road and sea level. The highest point in the parcel in fact is the hill (elevation 101 feet) in the northeast corner about 400 feet from the edge of this slope. Other land in the district has no such high upland which ascends in the direction of the marsh and water. 3. In the southwest corner of the parcel, there is situated a low, relatively wet area and also an FAA flight control installation in neither of which areas construction can presently take place. 4. The street frontage for the parcel is small in relation to its size and peri- meter. Supplementary access is limited, partly because of the above described topo- graphic conditions to the southwest, north and northeast, which are also found to to the northwest just beyond the petitioner's property line where the Town conservation land slopes steeply to Chase Garden Creek. Access is limited by the existing street network in the area; the Yarmouth Planning Board has conditioned its approval of the petitioner's subdivision plan on adequate blocking of the stub ends of the three existing streets in th Shaffer development, these being Cromwell Drive, Avon Road and Stratford Lane and on a connection to Canterberry Road in the same area for emergency access only. Nottingham Roa in the northeast corner provides no access to the plateau because it would connect near th foot of the downslope. The only roads crossing the parcel or parallel to it are Hockanom Road and Bray Farm Road. Access to the west is blocked by reason of the ownership of the land in that direction, some of which is in conservation use and ownership, and the balanc of which is already committed to established recreational and conservation use in the case of the Rod and Gun Club property. The Oak Harbour parcel is therefore singularly isolated in terms of its connection possibilities. 5. The parcel is unique in that it is the only piece of land in the RD-2 district bisected by an ancient way which must be kept open to accommodate the passage of persons entitled to use. 6. The parcel is situated geographically 2,750 yards from Yarmouthport and 2.1 miles from the Yarmouth Inn, the nearest large restaurant now in existence. The site is 2.2 mil distant from the nearest public hall, 2.1 miles from the nearest post office and .55 miles from the nearest convenience store. We are familiar both with the petitioner's parcel and with the location, topography, state of utilization, and form of ownership of neighboring land in the RD-2 zoning distric 3- We adopt as our findings the above list of physical characteristics affecting the Oak Harbour parcel. We further specifically find that these physical characteristics affecting the petitioner's parcel do not affect generally the remaining land in this RD-2 zoning district. No other parcel of vacant land in the district in united ownership is this large. No other parcel of land in the district has the peculiar topographic features of the petitioner's tract, namely, a high and relatively level central plateau with dis- associated low areas on opposite sides separated from the uplands by steep slopes having elevation differences of approximately 70 feet. No other land in the district has and is restricted by a Federal Flight Control facility. No other substantial parcel in the district is to the best of our knowledge, as separated and isolated physically from its surroundings or as dependent on a small section of its perimeter for access. Finally, no other parcel is split down the middle by an ancient path such as Hockanom Road. EFFECT OF LAND CONDITIONS ON THE SUBJECT PARCEL The land conditions described above which make this parcel unique in the zoning district have direct bearing on how the land may be developed and used and therefore on the petitioner's variance request. We find that the land conditions uniquely applicable to the petitioner's parcel make necessary the utilization of Yarmouth's Open Space Village by-law provisions. The configuration of the parcel dictates a development scheme which will hold the number and length of primary streets to a minimum. The reports to us state, and we find, that the petitioner's subdivision plan (which is the basis for the petitioner's applications to us for variance and special permit relief) observes this principle, whereas a single or two-family subdivision scheme would not. We conclude, therefore, that in this respect, land conditions applicable to petitio- ner's parcel call for development under the Open Space Village scheme. By reason of land condition number 4 (isolation of the parcel due to the absence of secondary road connections) , all traffic from the parcel, no matter what type of development is involved, will of necessity flow south toward and over the parcel's 125 feet of frontage on Route 6A in order to bear east or west on Route 6A. There is no other access. The lower section of this entrance road, which is the only one possible, will therefore bear the heaviest volume of traffic into and out of the development. A standard single family or two-family subdivision would inevitably contain lots fronting on these lower portions of the main entrance street which would expose dwellings con- structed thereon to a relatively heavy flow of traffic. On the other hand, development of the land under Sec. 18:07 will permit these exposed and comparatively busy areas near the entrance to be left open. In this important respect , therefore, we find that the shape and location of the land dictates a cluster scheme of development of the tract. In summary, we specifically find that the several land conditions noted above would uniquely affect the petitioner's parcel and for practical purposes compel the devel- opment of the parcel under the cluster treatment provisions of Sec. 18:07 of the zoning by-law. 4- The effect of these findings on each of the structures or uses requested in the petitioner's variances (giving rise to the petitioner's hardship) , and in turn the impact that each variance if granted will in our judgement have on the intent and purpose of the zoning by-law and on the character of the neighborhood we now deal with on a category by category and variance by variance basis: ORGANIZATION OF MATERIAL The subject matter of the variances falls within four general categories or groups as follows : I. Accessory structures for each residence building. II. Accessory structures , uses and features appurtenant to the project as a whole. III. Non-residential uses. IV. Structures, facilities and uses which do not (or may not) comply with the zoning by-law. The material presented to us at the hearing was organized according to this group- ing and we utilize the same format for our report. I. ACCESSORY STRUCTURES FOR EACH RESIDENCE BUILDING - GENERAL INFORMATION Description of relief request: Principally, this request covers 83 garage-storage sheds to be situated on lots numbered 2, 8, 11, 13, 14, 15, 16, 18, 20, 21, 23, 24, 26, 28, 29, 31, 35, 8A and 10A (reference to lot numbers appearing here and elsewhere in this report are to lots and lot numbers shown on the petitioner's subdivision plan dated February 14, 1975 and approved by the Planning Board for the Town of Yarmouth on March 19, 1975) for use of residents of the dwellings to be constructed on these lots and to be sited with respect to such dwellings approximately as shown on the plan attached to the variance request, which plan is entitled, "Typical cluster, Oak Harb- our." Final siting and placement of these garage-storage sheds will be shown on the site plans to be submitted under Sections 18:07-4-E and 18:10-6-B prior to the commencement of each cluster. This variance also covers typical residential accessory facilities such as patios, decks, fireplaces, canopies , unenclosed outdoor structures such as gazebos, refuse receptacles and bird houses. The variance also covers those accessory uses permitted under Sec. 18:02, paragraphs 8 and 9, of the Yarmouth zoning by-law. Reason Requested: This variance is requested because there is no provision in Sec. 18:07 of the zoning by-law for structures or uses accessory to the multi-family dwellings specifically permitted by special permit under paragraph 4D of said Sec. General accessory structures and uses are set forth in Sec. 18:02 of the by-law, but only with respect to structures and uses permitted thereunder; under Sec. 18:02 (applicable to the RD-2 zoning district) , residential buildings are limited to those for one or two families. Variance #1 Specific Findings (Dwelling Accessories Variance) The reports to us at the hearing state that an open space village without basic accessories and facilities such as garage-storage sheds would make little sense. Based on these reports and on our own experience, we conclude that the facilities requested in this variance are a practical necessity. These accessory and appurtenant facilities are not clearly permitted under Sec. 18:02 and 18:07 of the by-law. We do not believe this is intended and conclude that S- the omission of common accessory facilities was inadvertent , but under a literal interpretation of the by-law, these facilities may be excluded which in our judgement imposes a significant hardship on the petitioner not of its own making since the by-law I amendment substituting Sec. 18:07 for the earlier apartment by-law came after the petitioners acquisition of the site and in fact after our 1973 grant to the petitioner of a special permit under the (prior) apartment by-law. In summary, we find that owing to physical land conditions affecting the petitioner'• parcel but not affecting generally other land in the RD-2 district, a literal enforce- ment of the by-law insofar as it might prevent inclusion in the proposed developmentofcustomaryandnecessaryaccessoryfacilitieswouldinvolvesubstantialhardshipto the petitioner. The garages and outside yard facilities requested in this variance can be grantedwithoutanyadverseeffecteitherontheneighborhoodsurroundingOakHarbouroron townspeople in general, because these requested structures and uses are all common to the single family dwellings situated nearby in the neighborhood. We note that the dominant character, from a land use point of view, of the area along Route 6A between Yarmouthport and the Dennis Town line is residential; none of the requested accessory structures is in any way inconsistent with this pattern of development. We find therefore that the requested variance may be granted without substantialdetrimenttothepublicgoodandwithoutderogatinginanymeasurefromtheintentand purpose of the Yarmouth zoning by-law. DECISION Upon the affirmative and unanimous vote of the Board on June 17, 1975, a variance was granted in all respects and particulars as requested in Variance Request #11. ACCESSORY STRUCTURES, USES AND FEATURES APPURTENANT TO THE PROJECT AS A WHOLE - GENERAL INFORMATION Description of relief requested: These variances cover: The proposed Community Complex on Lot 4 and use thereof. The proposed sewage treatment plant on Lot 9 and proposed sewage treatment facilities, an office, laboratories and parking and vehicle storage areas on Lots 1, 3, 6, 7,9, 10, 11, 12, 17, 18, 30 and 34 as shown on the plan accompanying variance request #4,which plan is entitled "lots for sewage treatment plant and related facilities' and use of the same. The proposed maintenance buildings and facilities on Lot 13A and use thereof. The proposed Gate House structure partly on Lot 12A and partly within the right of way of Oak Harbour Circle. The proposed Garden Club building on Lot 11A, and use thereof. General landscape accessory facilities throughout the development. Open space recreation facilities such as tennis courts and paddle courts on Lots 5, 17, 22, 11A and 32. General golf course accessories such as markers, benches, drinking fountains, wash racks and rain shelters on any golf course which may be constructed. A replacement shrub and tree nursery, and 3 signs at the entrance. 1 Reason Requested: These variances are requested because there is no provision in Sec. 18:07 of the zoning by-law for structures or uses accessory to the multi-family dwellings specifically permitted by special permit under Paragraph 4D of said Section. General accessory structures and uses are set forth in Sec. 18:02 of the by-law, but only with respect to structures and uses permitted thereunder; under Sec. 18:02 applicable to the RD-2 zoning district) , residential buildings are limited to those for one or two families. VARIANCE #12 (i - iv) Specific Findings (Community Center Variance) The reports to us at the hearing included statements that an open space village without central community facilities of the type proposed would be unfeasible and economically unsound. We agree and find therefore that a Community Center containing the kinds of facilities referred to in the petitioner's request is a practical necessity for a cluster type of development. In our judgement, the facilities proposed to be included in the petitioner's community center, subject to the floor-area limitations for each facility, are reasonable and typical of those in similar centers. We conclude further that the proposed center's primary function and purpose is in support of and therefore accessory to the clustered dwellings permitted under the by-law. These accessory and appurtenant facilities are not clearly permitted under Sec. 18:20 and 18:07 of the by-law. We do not believe this was intended and conclude that the omission of common accessory facilities was inadvertent, but under a literal inter- pretation of the by-law, these facilities may be excluded which in our judgement, imposes a significant hardship on the petitioner not of its own making since the by-law amendment substituting Sec. 18:07 for the earlier apartment by-law came after the pet- itioner's acquisition of the site and in fact after our 1973 grant to the petitioner of a special permit under the (prior) apartment by-law. In summary, we find that owing to physical land conditions affecting the petitioner's parcel but not affecting generally other land in the RD-2 district, a literal enforcement of the by-law insofar as it might prevent inclusion in the proposed development of accessory buildings and facilities in the form of the community center complex requested in this variance would involve substantial hardship to the petitioner. The requested structures and uses will have no adverse effects either on the immediate neighborhood or on the town as a whole, None will be visible from the nearest public highway (Route 6A) . All of the structures and facilities requested in this variance, except as any golf course, the pro shop and club house may under the provisions of variance #/3 be used by non-residents and except as the post-office store may be patronized by persons other than residents and guests of the development as set forth in variance #2 (v) 7 will exist to complement the residential character of the development. The outdoor facilities included within this category, being the swimming pool and parking for the swimming pool, are consistent with residential activity. 7- All structures and parking facilities requested in this variance will be located on Lot 4 in the center of the development, thereby ensuring privacy to abutting neighbors. Finally, no secondary streets existing primarily to serve neighboring homeowners will be open to or used by residents of Oak Harbour in connection with the Community Center. The requested community complex is furthermore consistent with the underlying RD-2) zoning for the parcel and the area in that the complex makes more viable, certain and secure the proposed Open Space Village which when constructed will not only coLrnuit solidly to residential use the 194 acre parcel of vacant land which is directly involved, but will in our opinion, influence future development of nearby vacant land for residence use which is the objective of the existing zoning pattern for the locale. We find therefore that the requested variance ##2 (i-iv) may be granted without substantial detriment to the public good and without derogating in any measure from the intent and purpose of the Yarmouth zoning by-law. DECISION By a unanimous affirmative vote, a variance was granted on the 17th day of June, 1975 in all respects and particulars as requested in parts i through iv of variance request #2, provided that the floor area in the community center for each facility requested to be included therein shall be no greater than the following: a) Club House and Pro Shop (consisting of men's and women's lockers, storage space and the shop itself) 3,000 sq. ft. b) Dining room, lounge and kitchen (including a coat room, dining room seating a maximum of 80 persons , wash rooms for men and women, food lockers, bar, and miscellaneous storage, but not including the connected outside deck) , 3,000 sq. ft. c) Community hall (basically a multi-purpose room with entry, coat room, men's and women's rest rooms, area for final preparation of food and storage area) , 4,000 sq. ft. d) Health facilities (consisting of men's and women's exercise, sauna and athletic rooms, either with showers or utilizing those included in the pro shop and club house group above) , 3,000 sq. ft. e) Ten rooms for guests of residents (each having a separate bath and including common hall) , 4,000 sq. ft. f) Combined post office-convenience store, 2,000 sq. ft. g) Rooms for crafts such as wood working, art, ceramics, 2,500 sq. ft. h) Museum - Art Gallery, 500 sq. ft. i & j) Offices (including management and sales offices, developer sales office, and space for storage of records and supplies) , 3,000 sq. ft. k) Swimming pool dressing rooms (included in the pro shop, club house group above) 1) Recreation and game rooms, 600 sq. ft. 8- tz VARIANCE #4 - Specific Findings (Sewage Treatment Variance) t The draft Environmental Impact Report clearly sets forth the basic requirements for disposition of sewage for a project of this size. According to Mr. Regan's report ,State and Local Public Health approval could not be secured without a sewage treatment plant and facilities of the kind requested in this variance. We find the facilities requested in this variance to be absolutely essential for the project and wholly accessory in purpose and function of the primary use of the parcel for dwellings. These necessary and appurtenant sewage treatment facilities are not clearly permitted under Sec. 18:02 and 18:07 of the by-law. We do not believe this was intended and conclude that the omission of common accessory facilities was inadvertent, but under a literal interpretation of the by-law, these facilities may be excluded, which in our judgement imposes a significant hardship on the petitioner not of its own making, since the by-law i amendment substituting Sec. 18:07 for the earlier apartment by-law came after the petit- _, loner's acquisition of the site and in fact after our 1973 grant to the petitioner of a special permit under the apartment by-law. In summary, we find that owing to physical land conditions affecting the petitioner's parcel but not affecting generally other land in the RD-2 district, a literal enforcement , of the by-law insofar as it might prevent inclusion in the proposed development ofnecessaryaccessoryfacilitieswouldinvolvesubstantialhardshiptothepetitioner. The requested structures and uses will have no adverse effects on neighbors or on townspeople. None will be visible from the nearest public highway (Route 6A) . All of the structures requested in this category will exist to complement the residential character of the development. The operation of the sewage treatment plant will not intrude upon the privacy of or be noticeable by even the nearest neighbors. Finally, all structures and parking facilities requested in this category will be located at least 50 feet from the perimeter of the development, thereby securing added privacy to abutters and to residents of Yarmouth. The request is in addition consistent with zoning in the area inasmuch as it confirms and reinforces the commitment of a substantial tract of vacant land in a residence zone w to residential use in the manner contemplated by Sec. 18:07 of the zoning by-law. t We find, therefore, that the requested variance #4 may be granted without substantial detriment to the public good and without derogating in any measure from the intent and I purpose of the Yarmouth zoning by-law. DECISION Upon the affirmative and unanimous vote of the Board on June 17, 1975, a variance was granted in all respects and particulars as requested in Variance Request #4. 9- VARIANCE #5 - (Maintenance Area Variance) We recognize from personal experience and observation the need for garages, shops and maintenance buildings and facilities if a project of this size is to be properly cared for. The reports to us at the hearing confirm this observation. We find that on-site maintenance facilities are a practical necessity for a community of up to 750 dwellings and in our judgement, the facilities proposed in variance #5 are reasonable in terms of the size of the project. We find that these requested maintenance and storage buildings and facilities have as their sole purpose the servicing and support of the dominant activity proposed for the . parcel which is residential; as such, we find them to be accessory in character. These necessary accessory and appurtenant facilities are not clearly permitted under Section 18:02 and 18:07 of the by-law. We do not believe this was intended and conclude that the omission of common accessory facilities was inadvertent, but under a literal interpretation of the by-law, these facilities may be excluded which in our judgement imposes a significant hardship on the petitioner not of its own making since the by-law amendment substituting Section 18:07 for the earlier apartment by-law came after the petitioner's acquisition of the site and in fact after our 1973 grant to the petitioner for a special permit under the apartment by-law. In summary, we find that owing to physical land conditions affecting this petitioner's parcel but not affecting generally other land in the RD-2 District, a literal enforcement of the by-law insofar as it might prevent inclusion in the proposed development of these necessary accessory facilities would involve substantial hardship to the petitioner. The requested structures and uses will have no adverse effects on the neighborhood or the Town. The maintenance buildings, to the extent visible from Route 6A, will so far as appearance is concerned, comply with and be approved under the Old Kings Highway Regional. Historic District Act. All of the structures requested in this category will exist to complement the resi- dential character of the development. Finally, all structures and parking facilities requested in this category will be located at least 50 feet from the perimeter of the development, thereby securing add privacy to abutting neighbors and to townspeople travelling on Route 6A or using the Town-owned land on the west side of the Oak Harbour parcel. The request is, in addition, consistent with zoning in the area inasmuch as it makes possible the commitment of a substantial tract of vacant land in a residence zone to residential use in the manner contemplated by Section 18:07 of the zoning by-law, and we find therefore that it may be granted without substantial detriment to the publie good and without derogating from the intent and purpose of the zoning by-law. DECISION After a unanimous affirmative vote of this Board, a variance was granted on thel7th day of June,1975 in all respects and particulars as requested in Variance Request IS, provided that the buildings listed in paragraphs 1, 11 and ill of said request shallnot be commenced until approval of the exterior architectural features thereof has been3ecured from the Yarmouth Historic District Commission pursuant to the Old King's Highway Ysgional Historic District Act. 10- VARIANCE #6 - Specific Findings (Gate House - Variance ) We take note of the increasing interest on the part of people everywhere to be secure in their homes. In addition, there was testimony at the hearing to the effect that condominium buyers are increasingly concerned about the security features of their prospective residence. We find that the concerns of future residents of Oak Harbour coupled with the obvious suitability of the proposed road scheme for a security control point at the fork in Oak Harbour Circle, together call for the inclusion of a gate house at the point indicate in variance ##6. We find that the proposed structure and its location are reasonable in terms of the function of any such control facility, and we find that the structure and its proposed use are wholly accessory to the residence character of the development. This accessory facility is not clearly permitted under Section 18:02 and 18:07 of the by-law. We do not believe this was intended and conclude that the omission of common accessory facilities was inadvertent; however, the gatehouse may constitute an excluded structure, which in our judgement imposes a significant hardship on the petitioner's not of its own making, since the by-law amendment substituting Section 18:07 for the earlier apartment by-law came after the petitioner's acquisition of the site and in fact after our 1973 grant to the petitioner of a special permit under the apartment by-law. In summary, we find that owing to physical land conditions affecting the petitioner's parcel but not affecting generally other land in the RD-2 District, a literal enforcement of the by-law insofar as it might prevent inclusion in the proposed development of a practical and desirable accessory feature would involve substantial hardship to the petitioner. The proposed gate house will not be visible from Route 6A. Situated, as indicated, at the fork in Oak Harbour Circle, it will be too small a structure to affect the view of an neighbors who may be able to see it. Since it will involve only traffic entering and leaving Oak Harbour, the normal travel in the area by townspeople and neighbors will be totally unaffected. The request is in addition consistent with zoning in the area inasmuch as it provides a facility which supports the commitment of a substantial tract of vacant land in a residence zone to residential use in the manner contemplated by Section 18:07 of the zoning by-law. We find, therefore, that the requested variance #i6 may be granted without substantial detriment to the public good and without derogating in any measure from the intent and purpose of the Yarmouth zoning by-law. DECISION Upon the affirmative vote of this Board, a variance was granted for a Gate House in all respects and particulars as requested in Variance Request #6, except with respect to the location of the same, (as to which, see the second decision in Group IV following) , on the 17th day of June, 1975. VARIANCE #7 - (Garden Club Variance) Our observations and findings with respect to the Community Center requests in Variance #2 apply with the same force to this variance. We find a garden club building and the facilities to be included in it to be within the type of common facilities expected by future purchasers of dwellings in a cluster development such as Oak Harbour and therefore necessary as part of the overall group of 11- support structures. We find the proposed building reasonable in size and judge it to be accessory in function to the dominant residence character and purpose of the development. As an accessory facility not clearly permitted under Section 18:02 and 18:07 of the by-law, the garden club building may therefore under a literal interpretation of these sections constitute an excluded structure, which in our judgement imposes a significant hardship on the petitioner not of its own making since the by-law amendment substituting section 1807 for the earlier apartment by-law came after the petitioner's acquisition of the site and in fact after our 1973 grant to the petitioner of a special permit under the apartment by-law. In summary, we find that owing to physical land conditions affecting the petitioner's parcel but not affecting generally other land in the RD-2 district, a literal enforcement of the by-law insofar as it might prevent inclusion in the proposed development of this wholly accessory facility would involve substantial hardship to the petitioner. The requested structure and use will have no adverse effects on the general neigh- borhood. It will not be visible from the nearest public highway (Route 6A) . It exists to complement the residential character of the development. The building and parking facilities requested in this variance will be located on Lot 11A toward the center of the development and will not therefore encroach upon the privacy of the neighbors or residents of Yarmouth. The request is in addition consistent with zoning in the area inasmuch as it con- firms and reinforces the commitment of a substantial tract of vacant land in a residence zone to residential use in the manner contemplated by Section 18:07 of the zoning by-law. We find,therefore, that the requested variance #7 may be granted without substantial detriment to the public good and without derogating in any measure from the intent and purpose of the Yarmouth zoning by-law. DECISION Upon the unanimous affirmative vote of this'Board, a variance was granted in all respects and particulars as requested in Variance Request #7 on the 17th day of June, 1975, with specific authorization for the inclusion of shower facilities in the lavatories referred to in said request. VARIANCE #8 -Specific Findings (Landscape Facilities Variance) The general landscape facilities and features , features such as fences, directional signs, fireplaces, rain shelters, tennis courts and even an area for growing replacement trees and shrubs, represented by variance #8 are in our judgement so clearly accessory in function and so usual and common to all residential areas that we do not hesitate to declare them to be necessary in one form or another in a project which could include 750 families. In our opinion, the expectation on the part of any future purchaser at Oak Harbour that these kinds of everyday amenities will be included will inevitabley be so high as to make out an automatic case of hardship in any situation where, as here, the applicable zoning by-law does not permit them. We believe that such omission was inintended and inad- vertent in any event. This hardship was not of the petitioners own making, since the by -law amendment substituting section 18:07 for the earlier apartment by-law came after the petitioner's 12- acquisition of the site and in fact after our 1973 grant to the petitioner of a special permit under the apartment by-law. In summary, we find that owing to physical land conditions affecting the petitioner's parcel, but not affecting generally other land in the RD-2 district, a literal enforcement of the by-law insofar as it might prevent inclusion in the proposed development of cus- tomary and necessary aceessory facilities would involve substantial hardship to the petitioner. The requested structures and facilities will have no adverse effects on the Town or the neighborhood. None will be visible from the nearest public highway (Route 6A) . Except as any golf course may under the provisions of variance #3 be used by non-residents; all of the structures and facilities requested in this variance will exist to serve the residents of the development. All such facilities are consistent with residential activity and are commonly found in residential areas. All structures and facilities requested in this variance will be located at least 50 feet from the perimeter of the development thereby securing privacy to abutting neigh- bors. None of these facilities, except for the lookout platform and possibly golf course flags or tennis court enclosures or baseball back stops which may be situated near the perimeter, should be visible at all to neighbors or residents of the Town. The request is in addition, consistent with zoning in the area inasmuch as it provides facilities which support the commitment of a substantial tract of vacant land in a residence zone to residential use in accordance with the scheme and purpose of the zoning by-law. We find therefore that the requested variance #8 may be granted without substantial detriment to the public good and without derogating in any measure from the intent and purpose of the Yarmouth zoning by-law. DECISION Upon the unanimous, affirmative vote of this Board, a variance was granted in all respects and particulars as requested in Variance Request 4#8 on the 17th day of June, 1975. VARIANCE #12 - Specific Findings (Signs Variance) Our comments with respect to the effect of the zoning by-law's failure to provide for the amenities requested in Variance #8 apply equally to the signs requested in this variancf We find that the size and type of the permanent sign and the two "for sale" signs, and their proposed locations, are reasonable in terms of the overall project and are clearly necessary accessories to the open space village. In our judgement, hardship to the petitioner is clear and evident to the extent that the by-law does not permit construction of accessories facilities which are obvious and necessary for the permitted primary use. In our judgement, this hardship is significant and not of the petitioner's own making, since the by-law amendment substituting Section 18:07 for the earlier apartment by-law came after the petitioner's acquisition of the site and in fact after our 1973 grant to the petitioner of a special permit under the apartment by-law. In summary, we find that owing to physical land conditions affecting the petitioner's parcel but not affecting generally other land in the RD-2 district, a literal enforcement 13- of the by-law insofar as it might prevent inclusion in the proposed development of necessary accessory signs would involve substantial hardship to the petitioner. Although the requested signs will be visible from Route 6A, that being their purpose, they are not in our judgement in any way offensive. Their design and appearance will be subject to Historic District Commission Approval. The signs are not be be illuminated excej by glare-free, detached lights. We are familiar with the activities and uses, residential and otherwise, presently in existence along this section of Route 6A; we condlude that the requested signs will not be injurious to or out of keeping with the neighboring area. The request is in addition consistent with zoning in the area, inasmuch as it is both necessary for and accessory to a substantial residential use of land in a residence zone . in the manner contemplated by the zoning by-law. We find, therefore, that the requested variance #12 may be granted without sub- stantial detriment to the public good and without derogating in any measure from the intent and purpose of the Yarmouth zoning by-law. DECISION Upon the unanimous, affirmative vote of this Board, a variance was granted as requested in Variance Request #12, subject to the condition that illumination, if any, be provided by glare-free detached flood or spot lights, on the 17th day of June, 1975. III. NON-RESIDENTIAL USES Description of relief requested: These variances cover space and facilities for sales of dwelling units by the developer in the form of a developer sales office in the com- munity center complex and a model unit for display purposes with provision for a resident sales agent. (Numbers 2(v) and 14) . These variances also cover the operation of the post office-store in the community center complex with the limitation that sales be made only to residents and guests Number 2(v)) . 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)). Reason Requested: These variances are requested because there is no provision either in the RD2 zoning district or within Section 18:07 of the zoning by-law for activities or facilities having business characteristics. We note specifically that the on-premises sales office for developer sales and the use of a model unit could be classified in a development this large as activities necessary for the contemplated transfer of the dwelling units to individual owners , and hence, as accessory uses to be dealt with in Group II. However, inasmuch as the proposed sales activity will not occur on the site of the particular unit offered for sale, or even within the cluster being sold, but instead in separate buildings, these activities seem to have at least in part the attributes of a business use and for this reason only are included in this category. VARIANCE 1l2(v) - Clubhouse-Pro Shop, Village Store and Developer Sales Office Variance Since the impact of these land conditions on the requested use of the clubhouse and 14- pro shop within the community center would be the same as on the requested use of the golf course itself, we refer to our decision (following) for variance #3 (i). for the details of our findings on impact and hardship with respect to the use of the clubhouse and pro shop by non-residents. We find the proposed use reasonable and we find it necessary in support of the basic residential purpose of the Oak Harbour development. To the extent that such use is not permitted under Section 18:02 or 18:07 of the zoning by-law either as an accessory use or as a limited business use, it is our conclusion that the petitioner is exposed to significant hardship; such hardship is in our judgement not self-created by the petitioner, for it exists only in connection with the petitioner's• efforts to utilize Section 18:07 of the by-law for the purposes for which the section obviously was created. With respect to the request in this variance for a sales office for use by the developer while construction is proceeding and while sales of units by the developer, referred to as developer sales, are taking place, we note that in other developments of this type known to us in our area of Cape Cod, sales activities are focused other than on and in the particular unit to be sold. In our judgement, the petitioner both needs and is entitled to maintain and use an office located in the central complex for interviews, dis- cussions, and negotiations with prospects and for other related sales activity. The petitioner as we see it is entitled to conduct its sales and promotion activity in a professional manner. In our judgement, the space proposed for such developer sales activity in the comm- unity center is reasonable. We conclude further that the sole function and purpose of the requested use is to effect an orderly transfer of ownership of the proposed dwelling units permitted under the by-law, which, in our judgement, defines the use as one which is accessory. There is no provision either in Section 18:02 or 18:07 of the by-law for a sales office of this kind, either as an accessory use or as a limited business activity which in our judgement imposes a significant hardship on the petitioner, which hardship is not self-imposed by the petitioner. With respect to the requested use and operation of a store in the community centerincombinationwithapostoffice, to be patronized by persons other than those identified or identifiable as residents or guests of residents, we are convinced that a case has been made for the reasonable necessity of the same. Although no direct evidence or testimony was presented on the question of use of such a store by persons other than residents or guests of residents, we find on the basis of personal observation and experience that any requirement that patrons identify themselves would be cumbersome and unworkable and would require a system for identification that could not be justified by the small facility requested. We find therefore that the proposed limited use of the village store (and post office)by others is both necessary and substantially in support of the primary residential function of Oak Harbour and that the inability of the petitioner to provide the same under Sections 1802 or 18:07 of the by-law either as an accessory use or as a limited business use constitutes significant hardship not of the petitioner's own making. In summary, we find that owing to physical land conditions affecting the petitioner'sparcelbutnotaffectinggenerallyotherlandintheRD-2 district, literal enforcementofthezoningby-law insofar as it may prevent the uses requested in variance Il2(v) wouldinvolvesubstantialhardshiptothepetitioner. 15- The requested use of the clubhouse and pro shop by non-residents during the con- struction phase will in our judgement result in no higher level of use of these facilities in connection with a golf course, if constructed, than will be the case after the developmer is complete and the golf course reverts to use solely by resident members and guests. As such, the variance should have no impact at all on the surrounding neighborhood. As long as all of the parking facilities for the community center are provided at the outset, no traffic or parking problems are to be anticipated within the development, let alone outside on Route 6A. No congestion or parking should occur on Route 6A since there will be no entrar to the development and therefore to the golf course except via Oak Harbour Circle. We conclude that neither neighbors nor townspeople will be affected in any way by this requested use. The conducting of developer sales within the community center is designed to reduce the evidence and impact of the necessary selling activities so far as residents of the development are concerned. The office will not be a separate structure, but part of the community center which will not have the appearance of a business-purpose building. The requested use should have no effect whatever on the Town or the neighborhood and should, in fact, be totally unnoticed. Operation of the post office-convenience store without the requirement that patrons identify themselves as residents should have minimal impact on the Yarmouth Community for at least three reasons. First, the post office-store will be situated within the Community Center, which in turn is to be located on Lot 4 in the middle of the development. Second, this variance will be made conditional upon total avoidance of any advertising of the store outside of the Oak Harbour community itself. Third, the existence of the store will tend to reduce vehicle traffic on Route 6A. With respect to the effect of this variance on the overall zoning purpose and scheme, we find first that to the extent that all of the activities requested in Variance 2(v) , although having business attributes , are purely subordinate to and in support of the basic residential character and purpose of the development, they are consistent with and not in derogation of the applicable zoning by-laws. Second, so far as patronage of the store is concerned, we will condition this variance upon the store being one limited to the sale of conveniences and necessities and also to its occupying, together with any post office or mail facilities, no more than 2,000 square feet of floor space in the community center. So limited, we are satisfied that it will not become an overly large market resembling and competing with those situated elsewhere in Yarmouth in districts zoned for business, and as such, that the requested use will not undercut in any measurable degree the zoning by-law. Third, developer sales activity in the community center will end under this variance following completion of the project and sale of all units. So limited, we find that such accessory activity, no different in kind from that conducted in residential districts whenever a house is offered for sale, will not diminish the effectiveness of the zoning by-law. We find therefore, that the requested variance No. 2(v) may be granted without sub- stantial detriment to the public good and without derogating substantially from the intent and purpose of the Yarmouth zoning by-law. DECISION Upon the unanimous affirmative vote of this Board sitting on this case, a variance was granted on the 17th day of June, 1975 in all respects and particulars as requested in Variance Request #2(v) , subject to the conditions following: 1. That developer sales activity in the community center continue only during the 16- period of initial sales of units by the developer or during construction, which- ever is longer. 2. That the store referred to in this variance offer only such necessities and con- venience items as are commonly found in a convenience store. 3. That there be no advertising of the store referred to in this variance outside of the Oak Harbour Development. 4. That the store referred to in this variance and any related postal or mail facilities together occupy no more than 2,000 square feet of floor space in the community center. 5. That all of the parking facilities described for the community center in Variance 2 (111) be completed before the pro shop and clubhouse situated therein are made available to non-residents of the development. VARIANCE #3(i) Market conditions may make it necessary for a golf course to be included at Oak Har- bour; if so, the burden of carrying its fixed maintenance costs could not, according to testimony presented, be placed totally on initial owners or the developer. We find that without provision for the use of the golf course by others in addition to residents during the development stage, construction of it would be unpractical and economically unfeasible. Since both the construction of the golf course itself, save possible for some of the related facilities, and the eventual use thereof by residents and guests would constitute a proper recreational use of open space under the Open Space Village by-law, we conclude that denial to the petitioner of the limited non-resident use needed to bring the golf course into existence and up to the point of exclusive resident use, as required under a strict application of the by-law, would be unduly burdensome and would constitute an un- necessary hardship. In summary, we find that owing to physical land conditions affecting the petitioners parcel but not affecting generally other land in the RD-2 district, a literal enforcement of the by-law insofar as it would prevent a limited use of any golf course facilities by the publis as requested in Variance 113(i) would involve substantial hardship to the petitioner The requested use of the golf course, club house and pro shop by non-residents during the construction phase is designed and requested only to assure the same level of patronage of the facility during early years as will occur according to plans when the development is completed. As such, the variance should have no impact at all on the neighborhood, provided that the parking facilities for the community center are constructed at the same time as the golf course so that no traffic congestion or parking problems will occur either within the development or on Route 6A. The only entrance to. the golf course will be via Oak Harbour Circle. In addition, the nearest present neighbor to the contemplated site of ti golf course is approximately 500 feet from any proposed fairway. To the extent that the business aspects of the golf course requested in this variance will be limited in time essentially to the period during which business activity in the form of construction of the development will be in progress, we find that no significant departure from the regulatory effect of the by-law will be involved. Second, operation of a golf course itself is within the provisions of Sec. 18:07 and the additional temporary use thereof by non-residents will, therefore, in our judgement, be consistent with the activities permitted under the by-law in Open Space Villages. Finally, we find that the purpose of the temporary use requested by this variance is simply to make possible and to 17- support a primary residential use and employment of this residentially zoned land. We find therefore that the requested Variance #3(i) may be granted without sutstan- tial detriment to the public good and without derogating in any measure from the intent and purpose of the Yarmouth zoning by-law. DECISION Upon the unanimouse affirmative vote of this Board, a variance was granted on the 17th day of June, 1975 in all respects and particulars as requested in Variacne Request #3(i) subject only to the condition that all of the parking facilities for the community center called for in Variance PP2 (111) be completed before any use is made of this variance. VARIANCE #14 - Specific Findings (Model Sales Unit Variance) We note from personal observation of and acquaintance with other residential dev- elopments in the area, particularly those offering multi-family dwellings, that sales activities usually are centered around a so-called model unit, rather than in the parti- cular unit to be sold. This in our judgement is a sensible approach to a necessary activity especially from the point of view of occupants of units adjoining the unit being offered for sale. Traffic on driveways, over walks and through the common halls of dwellings already partly occupied will be kept to a minimum. The developer will be able on the other hand to show a furnished home. The petitioner in our judgement is entitled to conduct its sales activities in a professional manner with minimum disruption to owners already in residence. We find that the sole function and purpose of the proposed use of a model unit is to make possible the orderly transfer of the dwellings intended under the zoning by-law for thi.. RD-2 district. There is no provision in Sections 18:02 or 18:07 of the by-law for use or occupancy of a model unit of this kind, either as an accessory use or as a limited business activity which in our judgement imposes a significant hardship on petitioner which is not of the petitioner's own making. We find therefore, that awing to physical land conditions affecting the petitioner's parcel but not affecting generally other land in the RD-2 district, a literal enforcement of the by-law insofar as it would prevent the maintenance and use of a model sales unit as requested in this variance would involve substantial hardship to the petitioner. The requested use, occupancy and maintenance of a model unit for sales and pro- motional purposes is designed to reduce the evidence and impact of necessary selling activity so far as residents of the development are concerned. However, townspeople who may ride through Oak Harbour will derive similar benefit. Equally important, the building in which the model unit will be located will not be any different from any other residen- tial building at Oak Harbour; visually, therefore, the neighborhood will be entirely unaffected by this variance. With respect to the impact of the requested variance on the zoning scheme and pattern for this area in Yarmouth, we find that conduct of sales activity that is clearly necessary. if residential development is to occur, all in one location rather than in each dwelling as completed and offered for sale will not affect the purpose of the zoning by-law which was to commit this area of Yarmouth to residential use. Moreover, the variance is limited in time and therefore will not permanently suspend the applicable by-law provisions. We find, therefore, that the requested variance ##14 may be granted without substantial detriment to the public good and without derogating in any measure from the intent and purpose of the Yarmouth zoning by-law. 18- DECISION k> Upon the unanimous affirmative vote of this Board, a variance was granted on the 17th day of June, 1975 in all respects and particulars as requested in Variance Request #14 and G: for the period specified therein. IV. STRUCTURES, FACILITIES AND USES WHICH DO NOT (OR MAY NOT) COMPLY WITH THE ZONING BY-LAW Description of relief requested: These variances cover: 4 Use of any golf course and golf course accessory facilities that may be constructed 1 b residents and their guests on a greens fee or monthly or seasonal charge basis (No. 3(11) : Y Construction of the gate house building on Lot 12A within the front yard area required j under Section 18:07 of the by-law (No. 6) . t' Placement of fi lls on the "construction lots" (Lots 1 & 9, 4,2 & 8, 10A, 11, 11A, 13, 13A, 14, 15, 16, 18,20, 21, 23, 24, 26, 28, 29, 31, 33, 8A & 35) in excess of 5 feet to k accommodate siting and grading of buildings, facilities and landscaping as shown on de- N tailed site plans to be submitted to the Board of Appeals from time to time. Construction of a dwelling unit on the housing lots at a higher ratio of numbers f of units to lot area than is permitted in Section 18:07-4-C, footnote A (footnote A requires 8,000 square feet of lot area per dwelling unit) provided that sufficient open space in the 1 form of one or more of the future "open space lots" (Lots 3, 6, 10, 12, 17, 19, 22, 25, 12A, . 27, 9A,30, 34, 7, 11A, 4, 5, 32) is dedicated as open space prior to commencement of con- struction on the particular housing lot involved. Authorization to submit to the Board of Appeals detailed site .plans for each cluster of dwellings (the overall development plan for Oak Harbour filed in connection with thepetitioner's related special permit request illustrates the grouping of dwellings in sub- villages which we refer to in this report as clusters or phases) at the time of commencement of each cluster rather than at this time as a condition to the grant of the sepcial permitwhichisthesubjectoftherelatedrequestbeforethisBoard. To allow the developer to limit the use and enjoyment of parts or all of the yard areas of the housing lots in the development to the residents ownersorofthetedwellingdent units situated thereon or to groups of residents constituting less r ii population of Oak Harbour. Reasons Requested: Variance 3(ii) The assessment of golf course use charges upon residents who use the golf course, in the form of greens fees or monthly or seasonal charges, is included as a variance request because the golf course, if built, will be situated on land otherwise flfillicgithel" 07n space" requirement of Section 18:07 of the zoning by-law. The paragraph of describing open space states that it shall sured heldbyforsubjecting eachslotftoealshare of the development with maintenance permanently as maintenenace expenses. The application of this specification is unclear; to the extent it would prohibit assessments in the form of flexible charges related to the amount oof use, a variance is requested. Also, to the the who payhe language tirgcommon said assessments, variance limitations upon use of open space by residents relief is requested. olf itself or Variance relief is not sought here for constructionbeingpermittedgexceptufor accessory for use of open space for golf course purposes, both 19- AD I structures thereon which are the subject of Variance No. 8. Variance 6 The petitioner asserts that the gate house on Lot 12A, in order to be effective, must be situated near enough to the paved part of Oak Harbour Circle for drivers to converse with the gate house attendant ; as such, the structure will not observe the open space villag setback requirements (under Section 18:07-4-c, a minimum front yard of thirty feet is required) and in fact will encroach partly on the right of way of the street itself. Variance 9 The third variance in this category is requested because Section 18:9-7 of the by-law• specifies that no fills exceeding 5 feet may be made without the approval of the Board of Selectmen. Variance 10 The fourth variance in this category deals with one of the two density requirements for multiple family dwellings. Footnote (a) to Section 18:07-4-C requires that there be 8,000 square feet of lot area for each dwelling unit constructed on any of the proposed housing lots.' This requirement will not be met. Variance 11 This variance request that submission of detached site plans not be required for a cluster or phase until that phase is about to be built is inserted because of ambiguity in Section 18:10-6 which applies to special permits for open space village developments. To the extent that this section might be interpreted as preventing the Board of Appeals from acting upon the petitioner's related special permit petition without detailed site plans first being prepared and submitted, a variance is requested. Variance 13 The final variance in this class, seeking permission to limit use of the yard areas on each housing lot to the residents of dwellings constructed on the lot or to groups of residents less than the whole, is inserted because Section 18:07-4-F of the open space village by-law leaves it unclear whether in a subdivided development, the open space to be held for common use of all residents is that open space needed to meet the 30% requirement the first two sentences in Section 18:07-4-F provide: "all land not designated for roads, dwellings , or other development within the open space village development shall be held for common use of the residents of the development. Open space shall be preserved for recrea- tion or conservation; and shall comprise not less than 30 per cent of the applicable land area within the development plan.") or includes all land which will have no buildings, roads or other development on it. To the extent it may be intrepreted to mean the latter, a variance is requested. VARIANCE #3 (ii) - Specific Findings (Golf Course Assessment Variance) We find that we should have a concern for prospective buyers who as owners may have no interest in use of such golf course facilities, and who therefore may object to assessment of golf course maintenance and operating expenses as common charges. Fairness would dictate that assessments on owners planning to use the golf course be heavier than on those not doing so. As a corollary, non-paying residents should not object to some limitations upon their use of the golf course open space. 20- Although the point of this request seems to us to be a narrow one involving house- keeping matters rather than considerations of land use, nevertheless , we find that the by-law's apparent prohibition of what seems to us to be a fairer basis for sharing the charges called for in the open space section of the open space village by-law imposes an unnecessary burden on the petitioner. Mr. Regan testified briefly at the hearing on the hardship and we conclude that it would be significant in its impact. We find that the proposed method for shifting golf course expenses on residents who use it by monthly or seasonal fees is fair and reasonable. In summary, we find that owing to physical land conditions affecting the petitioner's parcel, but not affecting generally other land in the RD-2 district, a literal enforce- ment of the by-law insofar as it would prevent the petitioner from instituting a system for use of the golf course facilities by interested residents who pay for the same in the form of seasonal or monthly charges would represent a substantial hardship to the petitione We find that this variance should have no effect on neighbors or on the public, for it involves only the basis on which expenses within the development shall be shared. To the extent that a recreational use of open space will be confirmed and assured under the proposed variance on a maintenance basis fairer to residents who do not wish to use it,the purpose of the open space village by-law will be served. We find, therefore, that the requested variance #3 (ii) may be granted without sub- stantial detriment to the public good and without derogating in any measure from the intent and purpose of the Yarmouth zoning by-law. DECISION Upon the unanimous affirmative vote of this Board, a variance was granted in all respects and particulars as requested in Variance Request #3(ii) , this 17th day of June, 1975. VARIANCE #6 - Specific Findings (Gatehouse Location Variance) Reference is made to the fourth variance in Group II for our findings relative to the necessity of a gate house as an accessory structure. In our judgement, compliance with the front yard requirements of Section 18:07 of the by-law so far as the proposed gate house is concerned, would cause it to be set back so far from Oak Harbour Circle as to be ineffective as a security checkpoint, constituting a substantial hardship to the petitioner. In summary, we find that owing to physical land conditions affecting the petitioner's parcel but not affecting generally other land in the RD-2 district, a literal enforcement of the by-law insofar as it would bar placement of a gate house next to the paved surface of Oak Harbour Circle would involve substantial hardship to the petitioner. The plan submitted with this variance indicates that the gate house will be no closer than 400 feet to any present neighbors. Its operation will not be seen by abutters, nor will it be seen by the public from Route 6A. We find that the siting of the gate house as requested two feet (or more) from the paved surface of Oak Harbour Circle will have no impact on the neighborhood or the Town and will in no way be detrimental to either. To the extent that the gate house will make it possible for the developer to control vehicle traffic into the development, residents will receive added security which will reinforce the residential character of the land which is the intent and purpose both of the 21- open space village by-law and the underlying RD-2 district provisions. We find, therefore, that the requested variance It6 may be granted without substantial detriment to the public good and without derogating from the intent and purpose of the Yarmouth zoning by-law. DECISION Upon the unanimous affirmative vote of this Board, a variance was granted with respect to the siting of the proposed gatehouse in all respects and particulars as requested in Variance Request #6, this 17th day of June, 1975. VARIANCE #9 - Specific Findings (Fills Variance) The open space village section of the by-law under which the petitioner submitted the related special permit request requires submission to the Board of Appeals (or Planning Board) of detailed site plans showing the elevations of structures, ways and adjacent landscaping. However, there is also a general by-law provision (section 18:09-7) requiring a permit from the Board of Selectmen for fills exceeding 5 feet. We find that submission of essentially the same data at the same time to a different Board for approval of one aspect of the proposed landscaping scheme (e.g. , fills in excess of 5 feet) imposes an unnecessary burden upon the petitioner. We find that owing to physical land conditions affecting the petitioner's parcel but not affecting generally other land in the RD-2 district, a literal enforcement of the by-law insofar as it would require the petitioner to secure approval from the Board of Selectmen of fills shown on plans submitted to this Board would represent substantial hard- ship to the petitioner. This request, involving the placement of fills on housing lots and on the lots for the community center complex, the maintenance area, the sewage treatment plant and the garden club, concerns almost entirely the interest of the Town in controlling significant alterations of the landscape. This control will be provided by the Board of Appeals so that there should be no injury to the neighborhood or to the Town and full compliance with purpose of the by-law. We find, therefore, that the requested variance #9 may be granted without substantial detriment to the public good and without derogating in any measure from the intent and purpose of the Yarmouth zoning by-law. DECISION Upon the unanimous affirmative vote of this Board, a variance was granted in all respects and particulars as requested in Variance Request #9, conditional upon submission from time to time to this Board of site plans pursuant to and as required under Section 18:07-4-E and 18:10 of the zoning by-law for the construction of buildings in open space village developments, this 17th day of June, 1975. VARIANCE #10 - Specific Findings (Variance for Area of Housing Lots) ment A literal enforce= of footnote (a) to Section 18:07-4-C (footnote (a) provides: lot area designed for multi-family units shall be not less than 8,000 square feet per dwelling unit.") would in the case of a subdivided parcel such as we are presented with here require each proposed housing lot to have 8,000 square feet of lot area for each multip family dwelling without regard to required open space, whereas in an unsubdivided open space village, the test would be applied on a parcel wide basis. In our estimation, as long as the main density requirement in section 18:07-4-A for 22- multi-family dwellings is met, as here, and as long as the 8,000 square foot requirement is met overall (housing lots plus open space considered together) , as will be the case here, the application of footnote (a) in this subdivided parcel works an unnecessary burden on the petitioner. In summary, therefore, we find that owing to physical land conditions affecting the petitioner's parcel but not affecting generally other land in the Rd-2 district, a literal enforcement of the by-law insofar as it would require footnote (a) to be met for each housing lot would involve substantial hardship to the petitioner. There is a basic density formula for multiple family dwellings in open space village developments. The formula is set forth in section 18:4-A of the by-law; the formula together with its application to the petitioner's land was shown in the formula calcu- lation submitted to us with the petitioner's legal memorandum. The maximum number of dwelling units permitted under the formula would be 844. Petitioner's request for 750 units falls well within this upper limit. Footnote (a) imposes an additional density requirement that operates only in cases of subdivided open space village parcels and it imposes limits which are more stringent than the formula test above. In this particular situation, it imposes an ongoing require- ment that each housing lot contain at least 8,000 square feet of land area per dwelling unit Petitioner requests that this requirement be waived by variance, but petitioner proposes that the intent and purpose of the requirement be met fully by the dedication of a sufficient number of open space lots as each stage proceeds to meet and exceed the 8,000 square foot test. Since the addition of this proposed condition to the variance will result in full compliance with the intent of the applicable by-law section on an on-going basis, no injury whatever will be caused to any abutters or to townspeople or to the Town and the in- tent and purpose of the by-law will be carried out. We find, therefore, that the requested variance #10 may be granted without substantial detriment to the public good and without derogating in any measure from the intent and purpose of the Yarmouth zoning by-law. DECISION Upon the unanimous affirmative vote of this Board, a variance was granted in all respects and particulars as requested in Variance Request #10 and subject to the condition included therein, on the 17th day of June, 1975. VARIANCE #11 - Specific Findings (Site Plan Delay Variance) We were told at the hearing that because of changes in market conditions and buyer demand which are bound to occur over the 8 years of this project, it is essential that a flexible approach be taken to the design and placement of buildings from stage to stage. In our estimation, it would be burdensome in the extreme if the petitioner were to be required, before the first buildings have been started, to prepare and submit for the whole project the detailed information required under Yarmouth's Site Plan Review by-law. None of the first stage buildings-have been designed, ler al•:ne thz,se for the more distant clusters. These by-laws, however, are capable of being interpreted as requiring just that. In addition to the burden on the petitioner in preparing such plans at this stage, flexibility in placement of later phases would be lost, which could well render the project unfeasible. More practical in our judgement would be a sequential submission of site plans for each.phaseor4"clustei prior to application for or issuance of a building permit for that phase or cluster The Board also feels it would have closer supervision of the project under the above situation:. yws r-r.'xK:. ate`.: C, In summary, we find that owing to physical land conditions affecting the petitioner's parcel but not affecting generally other land in the RD-2 district, a literal enforcement of the by-law insofar as it may be deemed to require preparation and submission of siteplansundersection18:07-4-E and 18:10-6 for all buildings in the development prior toissuanceoforanyusebythepetitionerofthespecialpermitrequestedinthepetitioner's related application would involve substantial and unnecessary hardship to the petitioner. The controls established in the by-law for the siting, landscaping, screening, parking and utilities of and for all buildings in open space village developments (Plans subject to site plan review shall show the location and dimensions of the lot, the exact location and size of any existing or proposed buildings, streets and ways adjacent to the lot, existing and proposed topography, drives, parking, landscaping, park or recreation areas, usi of structures and land,screening, water, sanitary sewerage, and storm drainage; and separate plans shall also show ground floor plans and architectural elevations of all pro- posed buildings and signs, to be prepared (except in the case of one and two-family dwell- z1 ings) by a registered architect or engineer if such buildings contain 35,000 cubic feet of space or more (section 18:10-6-A)) will not be cast aside by the issuance of this variance; it is a condition of our granting this variance that all plans and details required under the by-law be submitted and reviewed. This variance goes only to the timing of submission. Therefore, the Town and its residents should in no way be affected and the standards in the by-law for site planning will in no way be undercut. We find,therefore, that the requested variance #11 may be granted without substantial detriment to the public good and without derogating from the intent and purpose of the Yarmouth zoning by-law. DECISION Upon the unanimous affirmative vote of this Board, a.variance was granted, on this 17th day of June, 1975, in all respects and particulars as requested in Variance Request 11 subject to the condition specified therein. VARIANCE #13 - Specific Findings (Local Yard Enjoyment Variance) The attractiveness and therefore saleability of dwelling units within a cluster dev- elopment depends in part on the ability of the developer to set aside for the exclusive use of residents of each building or group of buildings in a cluster exclusive use ffadjacent yard areas, sometimes referred to as local common areas. This makes it possible owners to enjoy the same individual or local control of immediate yards that is one of the main characteristics of single lot, single family home ownership. It also in our esti- mation will stimulate among owners of units in the same subvillage, the consciousness of neighborhood and feelings of identity needed in a project this large. From our reading of Section 18:07 as a whole, we find nothing in the general scheme of open space villages indicating that the foregoing should not occur, but we agree that se tion 18:07-4-F, taken literally, could be deemed to bar designation of local yard areas for the exclusive use of one or several residents and to require common use of all unbuilt areas including local yards by all residents of the development. We find that this would be unduly and unnecessarily burdensome to the petitioner (not to mention a unit owner without a yard) . In summary, we find that owing to physical land conditions affecting the petitioner's parcel but not affecting generally other land in the RD-2 district, a literal enforcement o the by-law insofar as it may be deemed to prevent the petitioner from limiting use of theyardareasonlotswithdwellingsthereontotheresidentsofthosedwellingsortogroupsofsuchresidentswouldimposeasevereandsubstantialhardshiponthepetitioner. 24- c a ovr read of Section l . 07 as a whole, we find nothing in th. gc- aral scheme of cpsn spate v ' 11a.ges indicating that e foregoing shou: nu _ occur, but we ree that 'ection 15 :07-4-F', taken'4 iterally.. Could be r.deemed co bar designation .f local yard areas for,,the e:cclusive use of or several residents arm to require common ace Qi all unbui_lt areas cli local yards by all res, 'dents of the developm c. We find that thi woul+ be unduly and unnece eerily burdensome to e Petitioner (not to ention a unit owner with a yard) . In summery we find that owin -o physical land condi- ons affectin; the Petitioner s parcel but not a. ecting generally other and in the RD• district, a • teral Enforcement f the By-law insofar a it may be deeme; to prevent e Petitioner fro limiting use of the ya areas on lots wi.. dwellings hereon to the res 'dents of those dwelling., or to groups , of su; resident would impose a s -ere and substantial hardship on the- Petition+ This variance seeks only to permit the developer to set ;side local areas on each housing lot for the e,:ciusive use of the residents of that dwelling or cluster of dwellings. As such, the matter is entirely one of internal rights and restric-tions; it does not have anything to do with people outside the developme, Abutters will see no difference in the day- rurping of Oak Harbour no matter whether this variance is granted or not. We find that this va will have no effect whatever on the surrounding neighborhood or on the ri dents of Yarmouth. With respect intent 1` :07-4-P of the By-law,l _h respect to the i.n of Section u we C+ elude that its basic purpose is to ensure that certain raauired open epa: constituting at least 30% of the total land ' area,, be made available for , use and• enjoyment of all residents. As long as this requirement is met, and we have made certain incurSpecial Permit that it will be met al all t. during construction and after, we conclude that- the sense and purpose cE • Open Space Village By-law will be well observed. Wa find therefore, that the . requested variance 013 may be granted ithout substantial detriment to the public good and without derogating any measure from the intent and purpose of the Yarmouth Zoning By-Law. DECISION unanimous Upon the/affirmative vote of this Board, a variance was granted in : respects and particulars as requested in Variance Request 013 on the 17t1 day of June, 1975. The Following appeared In favor of the petition: Richard Anderson, Atty. Mr. Chandler J. Robertson Marian '1cK•?nnon (by letter) J. F.arras Robert Helwig (by letter) E.B. Doer (by letter) Richard G. Allen (by letter() 27- 7kc folldwins appeared in opposit DuPont P. J. Rczelle (by letter- ) Members of the Board voting on June 17 , 1975 to grant the above variance: Thomas N. George Voted in Favor Robert Sherman Voted in Favor David Oman Voted in Favor Phillip Dempsey Voted in Favor Herbert Renkainen Voted in Favor 411 No permit issued until 22 days from date of filing the decision witltheTownClerk uer- Robert Sherman, 8ecretarv, pro tentfortheabove :fisted members of the Eoai 28- 0‘. THE COMMONWEALTH OF MASSACHUSETTS 1"' 111/4.4P'CITY OR TOWN t BOARD OF APPEALS 11 < -" t"ti\P 3k.) d/(.-..Y2-,: _..l 2_5' NOTICE OF VARIANCE AND Conditional or Limited VarianceSot Special Permit General Laws Chapter 40A, Section 18 as amended) Notice is hereby given that a Conditional or Limited Variance or Special Permit has been granted To Jr ..J c.. : a t\.s 0iwiter or Petitioner Address S t. City or Town r.' •.•i!"l.;vi-; ts,;s 1.. r' , . ' , ` ' r^f.k t•.,. ,,r r;- i , Identify Land Affected City by the Town of a: tl Board of Appeals affecting the rights of the owner with respect to the use of premises on. Street 13[' ' 4 :'• : .: " ''''r ' ''''''''''-' 'I'l's' City or Town the record title standing in the name of r c lo, t't body Brow,„ r;o.l cry, t :. ,:(Te 'whose address is---- -. S isr'l.._..i_ z:.__-y,as.t t_s...":?L:I. Street City or Town State by It deed,duly recorded in the i"s' `' ! County Registry of Deeds in Book l'.r' Page._'K:' 'T ;:rn s t? i Registry District of the Land Courtra47i' Certificate No.s . I`=i Book Page The decision of said Board is on file with the papers in Decision or Case No i %` City in the office of the Town Clerk c)_;_ _`L'_4_[_.:._• Certified this/ Z!, day of t •..0j 7 19 2,S `— Board of Appeals: airman oard of Appeals ye;yGe-(--- __ Z:_rt_----_Clcrlf °e, Y., ,II'oard of Appeals y 19 at o'clock and minutes ____M. Received and entered with the Register of Deeds in the County of Book Page ATTEST Register of Deeds Notice to be recorded by Land Owner. FORM 1094 HOBBS & WARREN. INC., REVISED CHAPTER 212.1962 1 - Li( Mr. Johnstone FitzGerald 36 Old West Yarmouth Rd. Yarmouthpor , Mass. bear Mr. FitzGerald: I am very sorry for any inconvenience you may havehadbynothearingfromusinanswertoyourletters. Enclosed please find a copy of the Covenant and Agree—ment with the Planning Board that Oak Harbour has had, andrefertothen<:;,;: to last page, third paragraph. This isallIcoldfindwithoutreadingpagebypageinthefile,pertaining to anytiing you wanted to know. If this is ofnohelptoyou, I suggest you either contact their attorney,Richard Anderson, Hyannis, or your attorney. I found nothing that referrzd to !+. I:: the written decision, a copyofwhichIwillen,lose herewith. You are welcome to eor1L in and pro s5 throuponpleteMg! if yoq wish to see if you can find anyt7ng. iilCGrslyy Joy : ri'trs. . a, s, is tr', mac! ', ="=1",-eot c. COVENANT AND AGREEMENT WITH THE PLANNING BOARD FOR THE TOWN OF YARMOUTH The undersigned Aaron G. Weintraub of Boston, County of Suffolk,Massachusetts , Trustee of the MVI Nominee Realty Trust recorded with theBarnstableCountyRegistryofDeedsinBookPagehereinafter in hisfiduciarycapacityreferredtoasthe "Covenantor", having submittedtothePlanningBoardfortheTownofYarmouthadefinitiveplanentitled "Subdivision Plan of Land in Yarmouth, Massachusetts ofOakHarbour, February 14, 1975 , Scale 1 ' = 200 feet , Edward E. Kelley,Registered Land Surveyor, Cummaquid , Massachusetts" hereinafter referredtoasthe 'Plan' hereby covenants and agrees with the said PlanningBoardfortheTownofYarmouth, hereinafter referred to as the "Board"and their successors in office of the Board pursuant to G. L. Chapter 41Section81Uasamended, and the Board hereby agrees with the saidCovenantor, as follows , that: 1. The Covenantor is the owner of record of the premisesshownonthePlan, being approximately 194 acres of vacant land situatedontheNortherlysideofRt . 6A in said Yarmouth between said Rt. 6AandBrayFarmRoad. 2. This Covenant shall run with the land and be bindingupontheCovenantoranduponhisassignsanduponhissuccessorsentitledtothepremisesshownonthePlan. 3. Except as provided in paragraphs 5-9 following, theconstructionoftheway (Oak Harbour Circle) and drainage service shownonthePlanshallbeprovidedtoserveanylotinaccordancewiththeRulesandRegulationsoftheBoardbeforeanysuchlotmaybebuiltuponorconveyedotherthanbymortgagedeedprovidedthatamortgagee who acquires title to the mortgaged premises by foreclosure or otherwiseandanysucceedingownerofthemortgagedpremisesorpartthereofmaysellanysuchlot , subject to that portion of this Covenant which providesthatnolotshallbebuiltuponuntilsuchwayanddrainageserviceshavebeenprovidedtoservesuchlot. 4. Nothing herein shall be deemed to prohibit a conveyancebyasingledeedsubjectofthisCovenant , of either the entire parceloflandshownonthePlanorofalllotsnotpreviouslyreleasedbytheBoard. 5. Except as hereinabove or hereinafter provided and exceptasendorsedonthePlan , no further condition or restriction shall attachetotheuseoforplacementofanystructureuponanyofthelotsshownonthePlansolongasthesameshallbepursuanttoorinconnection with any Special Permit which may be issued by the Board of Appeals for the Town of Yarmouth under the Open Space Village provisions of Section 18. 07 of the Yarmouth Zoning By-Law following submission of an overall development plan with respect to such lot or lots under paragraph 3B ofsaidSection, or to the use of or placement of any structure upon any such lot or lots pursuant to any variance or variances issued by saidBoardofAppeals , and such of the requirements set forth in the Rules and Regulations of the Board for the subdivision of land in the Town of Yarmouth, effective January 1 , 1974 , establishing procedures for the submission of plans and regulating the contents thereof as have not been reflected in the submission of the within plan or are not shown thereon including in particular the following sections of said Rules and Regulations are hereby specifically waived , to wit : Section 342 : 1. Subparagraph d as to lines of proposed easements and common areas . 2. Subparagraph e as to data showing location , direction , and length of future ways other than Oak Harbour Circle and future easements . 3. Subparagraph g as to street numbers . 4. Subparagraph h as to location of proposed monuments. S. Subparagraph 1 as to proposed topography except as shown on profile plan for Oak Harbour Circle . 6. Subparagraph m-6 as to location of water mains , hydrants and main-gate valves. 7. Subparagraph m-7 as to location of cable utilities. 8. Subparagraph m-8 as to location of fire alarm boxes and street lighting standards and as to requirement that sidewalks be provided. Section 347 : As to recision of approval. Section 431 : To the extent of any requirement that easements for utilities across lots or on side or rear lot lines be shown on the Plan or otherwise described or determined prior to approval by the Board. Section 434 : To the extent of any requirement that slope easements be shown on the Plan or otherwise described or determined prior to approval bytheBoard. 2- Section 435 : As to submission of easements to the Board prior to the publicbearing. Section 461: As to any requirement that areas be reserved for possible parks with notation of the same for endorsement on the Plan. Section 463: As to certification by all utilities with respect to provisionforeutilityservicepriortoapprovalbytheBoard. Sections 53 (531-533) , 541i 543 , 544 , 545 : As to standards for improvements and methods of construction. Section 551 : As to installation of monuments. Section 554: To the extent of any requirement for fire alarm systems . Section 557: As to future conveyance to the Town of the fee in anystreets , roads , ways or walkways , or easements in the subdivision with notation thereof on the Plan: Section 63 : As to imposing a one-building-per-lot requirement. 6. For any use of or placement of structures upon lots shown on the Plan otherwise than in accordance with the provisions of paragraph 5 preceding, no building permit shall issue for the same and the same shall not be commenced until plans , information , and data have been submitted to this Board with respect to the following subdivision plan requirements specifically waived above and enumerated therein and until such plans ,information , and data have been approved in writing by this Board or until this condition has been released by instrument in writing or has been waived by instrument in writing with respect to the lot or lots on which such use or structure is proposed: 3- Section 342 : subparagraph (d) e) except as to portions of Oak Harbour Circle alreadyconstructed. g) h) 1) except for profile and topography of Oak Harbour CircleandexceptfortopographyoflandhavingfrontageonportionofOakHarbourCirclealreadyconstructed. m-6) except as to mains , hydrants and gate-valves in portions of Oak Harbour Circle already constructed. m-7) m-8) except with respect to portions of Oak Harbour Circlealreadyconstructed. Section 431 : Section 434 : Except as to portions of Oak Harbour Circle already constructed. Section 435 : Except as to portions of Oak Harbour Circle already constructed. Section 461 : Except with respect to lots having frontage on portions ofOakHarbourCirclealreadycompleted. Section 463: Except with respect to lots having frontage on portions ofOakHarbourCirclealreadycompleted. Sections 53 (531-533) , 541 , 543 , 544 , 545 : Section 551 : Section 554 : Except as to lots having frontage on portions of Oak HarborCirclealreadycompleted. Section. 63: 7. The Covenantor hereby covenants and agrees that prior to anyapplicationfororissuanceofanyoccupancypermitorpermitsfor any residential structure or structures on any of the lots shown onthePlan: A. That portion of Oak Harbour Circle running Northeasterly 4- from the branch in Oak Harbour Circle at the Easterly corner of Lot 4 as far as Lot 24 , shall be constructed so as to provide a passable roadwayforvehicles . B. A strip of land at least 16 feet wide over that portion ofLot25SouthofLot24 , and running between Oak Harbour Circle and the Northerly terminus of Canterbury Road as shown on the Plan shall be cleared and sub-base of sufficient depth and strength shall be providedtosupportemergencyvehiclesincludingTownfiretrucksupto15tons , the same to be laid out to permit automobiles and trucks to enter and proceed over the same from Canterbury Road to Oak Harbour Circle and to turn onto Oak Harbour Circle in either direction. The purpose of such strip shall be to provide emergency vehicle access to and egress from the site and to this end no trees or obstructions shall be placed thereon other than flexible barriers but said strip may be covered with a thinlayeroftopsoilandplantedwithgrassorhay. If Lot 25 shall be conveyed , rights of emergency passage consistent with the foregoing shall be reserved for the benefit of owners of all other lots shown on the Plan. 8. The Covenantor hereby covenants and agrees with the Town of Yarmouth that : A. Prior to application for or issuance of any building permit or permits for any structure or structures on any lot or lots shown onthePlan, Oak Harbour Circle shall have been completed from Rt. 6A to a point beyond the driveway or access way serving such lot or lots in 1- accordance with the standards for collector streets for the Town of Yarmouth as set forth in said Rules and Regulations or until the sub-base for such portion of Oak Harbour Circle has been completed and a surety bond satisfactory to the Board has been provided in accordance with Section 81U of the subdivision control law to ensure completion. B. Prior to application for or issuance of any occupancy permitforanystructureorstructuresonanylotorlotsshownonthePlan,Oak Harbour Circle shall have been completed from Rt . 6A to a point beyondthedrivewayoraccesswayservicingsuchlotorlotsinaccordancewiththestandardsforcollectorstreetsfortheTownofYarmouthassetforth in said Rules and Regulations or until such portion of Oak Harbour CirclehasbeencompletedexceptforfinalsurfaceandasuretybondsatisfactorytotheBoardhasbeenprovidedinaccordancewithSection81Uofthe subdivision control law to ensure final surfacing, and, C. In the case of either of A or B above , except where OakHarbourCirclecompletion (or the completion of sub-base or to final surfacing stage) , is to occur , a temporary turnaround shall be constructedtobasecoatstageinOakHarbourCirclebeyondsuchdrivewayoraccessway, said turnaround to be constructed to standards for turnarounds for the Town of Yarmouth as set forth in said Rules and Regulations . 9. With respect to any lot or lots shown on the Plan , as soon as '1paragraph7 (if applicable) and paragraphs 8 or 10 (whichever applicable)have been complied with , the owner thereof may sell the same and builduponitandinconnectiontherewithapplyforandreceiveabuildingpermit 5- or permits , and the Board shall , and agrees that it hereby will , uponapplicationtoit , release such lot or lots from the terms of thiscovenantandagreement. 10. Notwithstanding the provisions of paragraph 8 above , no buildingpermitsforstructuresonanylotorlotsshallbeappliedfororissuedbasedontemporaryturn-arounds if the remaining incomplete segment ofOakHarbourCirclebeyondtheproposedtemporaryturn-around would belessthan800feet. 11 . Approval hereof shall not be deemed to affect in any way anyexistingrights , public or private , in , to or over Hockanom Road orBrayFarmRoadasshownonthePlan , the same being shown thereon merelyaslandfeatureshavingnoroleassourcesofsupplementaryaccessoregress. 12. Referense to this covenant and agreement shall be entered uponthePlan. 13. Following execution hereof, the Covenantor agrees to recordthisinstrumentasapartofbutnotattachedtothePlanatthetimethe' Ptan is recorded. 14. The effective date of this covenant and agreement shall bedeemedtobethedateofapprovalofthePlanbytheBoard. 15. The Covenantor, Aaron G. Weintraub, is executing this Covenant andAgreementinhisfiduciarycapacityonlyintendingtobindtheestateofMVINomineeRealtyTrustandnothimselfpersonallyanditisaspecificconditionofhisexecutionofsamethatonlythepremisesshownonthePlan, to which premisesheholdslegaltitleinhiscapacityasTrusteeofsaidTrust, shall besubjecttothisCovenantandAgreementandthatsaidAaronG. Weintraub shallnotbepersonallyliablehereunderinanymannerorto- any extent. WITNESS the hands and seals this day of the Covenantor, Aaron G.Weintraub , Trustee as aforesaid and the unders ' gned members of the Board,being a majority thereof. i t i\. . -r Yu t- o a . id i PA:,Aaron . . eintrau• , rustee as a oresaidwAmmlandnotindividually cam Member Y mouth Planning Board 7 r,-._) eez _ Memb r, Yarmouthp.',n g Board if5,4 Mem er, Yarmout Planning :o . COMMONWEALTH OF MASSACHUSETTS Suffolk, ss May S , 1975 Then personally appeared the above named AARON G. WEINTRAUB andgaveoathtothetruthofthestatementshereincontainedandacknowledgedthewithininstrumenttobehisfreeactanddeedasTrusteeasaforesaid,before me Notary Public tIT G"a"1 g k/i/1S COMMONWEALTH OF MASSACHUSETTS Barnstable , ss hl 1975 ln1 7 Then personally appeared the above namedandacknowledgedtheforegoingtobehisfree act and deed as a member of the Planning Board for the Town of Yarmouth, before me fee,f. Notary Public Apr 8 i97g d TOWN OF YARMOUTH BOARD OF APPEALS Appeal No. 1321 Oak Harbor May 15, 1975 ' Members present: Thomas George, David Oman, Robert Sherman, Phil Dempsey, HerbertRenkainen. The Chairman called the meeting to order and read the petition. All abutters werenotifiedbyCertificateofMailingandthenecessarycorrespondencewasmadeintheCapeCodStandardTimesandtheDennis-Yarmouth Register. Mr. Anderson, Attorney for petitioners: Oak Harbor Associates is, Yarmouth PropertiesInc. , R.M. Bradley, Inc. , MGIC Ventures, Inc. (Mortgage Guarantee Co. ) These 3 havecomeintothisprojectonajointventurebasis. The owners are Yarmouth PropertiesInc. and Aaron Weintraub. What we are seeking here tonight is a Special Permitunder18.07 of the zoning ordinance. Also requisite variances from the zoningordinance. These variances are necessary to the fulfillment of the development .The variences we seek are all intregally related to our overall development. Nonecouldorwouldstandalone. They are necessary. Most of the variances probablycouldbeclassifiedasaccessory - no variance relief would be necessary - they maybeallowed. However, considering the magnitude of the project ard the committmentsthathavebeenmadeandwouldbemade, we felt there could be a slight doubt , so weareseekingthezoningreliefbyvariances. This development concept has been on thedrawingboardforoverayearandahalf. It has drawn on the experience and talentandcountlesshoursofsomeofthenationsleadingauthoritiesintheirfields -land planning ecologists, geohydrolics, sewer disposal engineers, etc. We havemaintainedaverycloselaisonwithmanymunicipalboardsandcommissionsanddepart-ments that would have a decided interest in our program. We have also dealt verycloslywiththestateaswillbeseeninmoredetail , the D. P.U. , D. P.W. , historiccommission, Board of Health. We propose to give a visual slide presentation of whattheprojectisabout. In February of 1973, I appeared before this Board representingYarmouthProperties, upon a petition for a Special Permit, to permit the developmentofthissamelocusintoacondominiumcomplex. My records show Mr. Dempsey andMr. Sherman sat on that petition. At that time we came in under Section 4B of theby-law. By decis on dated March, filed March 30, we received a permit to constructuponlocus, 129 buildings containing 957 units together with treatment plant, golfcourse, clubhouse, etc. Based upon that permit and logic, relying upon its validityYarmouthPropertiesproceededtospendvastsumsofmoneytogetgoingonthebasisofthepermit. In August of 1973 some 5 or 6 months after, the Attorney GeneralapprovedanemendmentoftheYarmouthzoningby-law, Sec. 4B was then out . In lieuofthat , 18.07, Open Space Village came to be. To compound the problem, BellowsFarmsvs. Acton came up in Court. That brought into question the validity of ourSpecialPermit. Then everything came to a hault with Oak Harbor project. There wasextremeconcernaboutthetremendousfinanciallossthatwouldsufferiftheycouldnotmoveforward. At this point we had 2 alternatives - one was to come back andaskforavariancetomakethepermitvalid. The second was to step back and examine18.07 and see if possibly this might be a viable approach. We decided to come backunderSec. 18.07 with the necessary variances that would be requied. This lattercourseofactionwaspursuedandbringsustothepointwherewearepresentingto Appeal #1321 Page 2 you our petition under 18.07. We have held our requisite pre application review with the Planning Board and we went through a great deal of the project — we received their blessing. Also, the review with the Board of Appeals. Plans, reports, etc. , will be filed with you, also you will be furnished, as one of the documents, a 250 page environmental impact report. We feel that the objectives of 18.07, Sec. 1 , the most significant one being Open Spaces for Conservation and Recreation, have been fully met by our proposal . The criteria as spelled in 18.07, 3.F have been fully met and complied with. Provisions of 18.07, 4 and particularly 18.07, 4D, with 8 criteria have all or will be fully and completely met in every respect . In 1973 the petition was for a condominium complex — the buildings were all in one local . Now we propose compatible mini villages, spread more throughout the locus. Proposal is for 750 units, as spelled out in the legal ad. Our project is no where near the marsh area. This land is completely undeveloped at this time. Alternatives to this could be various units, what could be done in a conventional type single family dwelling subdivision, and a conventional subdivision for duplex units. We do meet all criteria in Sec. 18.07. The overall standards are found in 18.07, 3F — Preservation of Open Space for conservation and recreation. We show existing natural vegetation not to be disturbed in dark green, the light green is open space area, open at all times, forever. They will be preserved. In orange, common area, open spaces. These are the areas that are being set aside as perpetual common spaces. We will not leave all open spaces with all trees or woods — you must have a balance of meadows and trees. Utilization of natural features of the land — being, orange shows the land suited for houses. The x ' s are the high points and low spots. The lines are slopes. We are taking advantage of the slopes. Housing on the high points, low lands kept open perpetually. This takes advantage of the natural parts. The Conservation Commission does not feel there are any other areas within our locus but the one they state, that would need any action by their commission. We have filed w th the Conservation Commission. One area in the locus under the domain of the Conservation Commission. Criteria for cluster permit — 1973 plan, the road network had 14,000 linear feet, in a single family plan there would be an excess of 31 ,000, in a duplex plan, 32,000 linear feet of roads. The new proposal would be 6, 165 linear feet of roads. Under 3F also, we show that the plan is equal to a conventional plan and we do no feel we are equal — we feel we are superior. I will file a letter with you from Dr. John Teal telling this will be superior to a conven— tional plan in every aspect. Report of Childs, Bertman and Tseckares, says in every respect this is by far more satisfactory than any other proposal could be. Letter here from Dana Perkins also saying it is superior. The number of dwelling units permitted by the formula is 844 units — we are requesting a maximum of 750. Par. 4D under 18.07 there are 8 criteria that must be met. Parking — 12 spaces per unit — we would be required with 750 units toThave 1125 spaces. Our proposal provides for 1267, an excess of 142. Central lines and parking — the plan shows parking garage sheds located within interiors or adjacent to little villages. Minimal disruption of the neighborhood — we show the 500 ' radius. We have a buffer zone around the entire perimeter a minimum of 70 ' around it. All natural screening. We will not disturb greatly existing vegetation. Requirement of safe access — off Route 6A. This has been approved by Dept. of Public Safety in Boston. This will 4 be the single access into the development with the exception of the required emer— gency roads. Adequate Utility Service — sewer disposal system and storm drainage plan — the railroad tracks would be the primary leaching fields. There will be on site collection of surface water. No ground water will leave the site. This has received approval of the nexessary state agencies. On behalf of the town, Whitman and Howard saw the plan ans said it was adequate. Water System — basically this is lops on lops. No matter where a break may occur there would always be water. Also this has been reviewed by the Water Commissioners of Yarmouth — they approve. Appeal #1321 Page 3 Sewer Treatment Plant — on site. There are test borings made throughout the entire area of locus. New Bedford Gas & Edison Light submitted a letter saying they could provide light into the development. Avoidance of ecological disruption — 750 'between the nearest building and nearest body of water, Mathews Pond. Within the book at Page 35, soil studies, Page 64, study of water supply and waste water treat— ment. Page 69 treatment plant data, page 70 geohydrolie studies, page 73 traffic, air and noise reports. Preservation of Neighborhood Amenities — units will not be visible from Route 6A. About 55% of the perimeter of the locus is bounded either by Conservation Commission land or undeveloped land. Little or no disturbance of neighborhood amenities. You can see none of the project from off site. Letter from the Mass. Historic Comm. showing there are no historic properties within the locus or adjoining the project. Size limitation on Multi Family Dwellings — all met. Adequate emergency access — The Planning Board gave a waiver for walks — we are having pedestrian walks that will provide an access of emergency vehicles to everyunit, every cluster. Letter from the Fire Chief — he has accepted our emergency access site plan. Open Space test is met. 4F, 30% requirement of open space develop—ment — we have 40% approximately for open space and communal use. This does not include other open spaces within the complex. 25% coverage the by—law requires —6.85% of the land area will be covered with buildings — 92+ will be open space, 40% biing common open area. Over all development plan — 207 units less than asked for before, fewer roads, maximum of 2 bedroom units. The final design has not yet beendone —tit will be colonial and we have the Historic District Comm. that must approve. Instead of one large village there will be many little villages. Variances — 194 acres, this is one of the largest tracts of land here in single ownership. A verydramaticcontouroflandinonearea, difficult for single family. In the south— westerly area is marsh land, difficult for single family homes. The contours do not lend itself for single family homes. This parcel or parcels of land should be for open space. Tremendous amounts of money have been spent based upon the earlier decision for petition. A large sum of money has been spent. You granted variance relief on another case caught up in the Bellows Farms Case. Many of the variances could be called accessory. 18.07 contemplates ommissions could exist where what is asked for could exist. It was not spelled out as such. Requests for 4 separate variances. Variances— ones that are accessory to each individual residence building, storage garage sheds, patios and decks, walks, refuse, rain shelters and fire places— these are all provided for in a single family residence. They are acceptable uses in residences. 18.07 does not say you can have these. It only says buildings, dwellings units. Therefore, we are requesting a variance to have these things. Variance — Community center complex — no provision for in118.07. Located on the master plan.Community center, a club house and pro shop, dining room, lounge and kitchen, community hall , health club, guest house, post office, village store, arts and crafts, art gallery, library, sales office, management office, recreation game room, swimmingpool , dressing room, terrace and deck, parking area for 100 cars. There is a lot line for this community center but we cannot say the picture shown will be exactlylikeitwillbeplacedwithinthelines. We want it understood that this is the loca tion of the club house complex or community center complex and will be located within the lines. We have treated all the variances like this. We may want to move the buildings around within the lines, that is all . Sewerage Treatment Plant — variance for this, with control panel , lavatory, office, etc. . It is not waadxaaax spelled out in 18.07. If we do not have this plant we cannot have the development as stated in the state law. The state has approved the preliminary plan of the concept. Again, it will be within the lines of the plant. Will also be for storage of boats and trailers. We cannot be precise of the exact location of the plant though. Appeal #1321 Page 4 Maintenance building - located in the area near sewerage treatment plant . 4 build-ings, each one of a maximum size as in the application. Also storage buildingnottoexceed1 ,000 ' . Also 4 bay shed, 1 heated garage for vehicle repair , office,lavatory and shower, fuel storage for servicing our own vehicles, area for storingloam, mulch, etc. Variance - gate house. Security, purpose of identification. Thiscouldberegardedasaccessory, not provided for in 18.07. Garden Club building,not provided for in 18.07, green house, potting shed, meeting room, kitchen and toilet facilities. Many retired people will live here. Gardening would be of primeinteresttothem. Variance - general landscape facilities & features, tennis courts, direction signs, fencing and lighting and bath houses, bike racks, mailboxes, etc. Signs - buildings do not appear from Route 6A. A permenant sign toidentifyOakHarbor. Temporary signs showing condominium units for sale within theoveralldevelopment. Non-residence uses - Sales office in the community center.No provision in 18.07. The operation of the post office and the village store be permitted without identification. These are for the use of residents of Oak Harbor.However, if someone comes in to the store, we do not want them to have to have anyidentification. None of these will be advertised. We don ' t think there will be anyintrusionofpeoplecomingin. Variance - use of club house pro shop and golfcoursebeusedfor8yearsoruntiltheprojecthasbeencompletelybuilt . We have not decided if there will be a golf course. If we do have one, in the first phase of development we cannot maintain the golf course if no one is allowed to play onit . It is an economical impossibility. It will be limited use, on a fee payingbasis. Permission for a sales office within a model cluster. This is just for sales purposes and only until the project is sold out. Common areas and open areas. If we build a golf course we would like to have it operate within the development and set it up that those who play golf should bear most of the cost than those whodon ' t play. There is some confusion in 18.07 where everyone should pay equal amount .We want a waiver of the 30 ' setback requirement for the gate house. It must be right up to the hardened surface. We will be within 2 ' of the layout . We would like a waiver or variance that every time you fill more than 5 ' you have to go totheBoardofSelectmenforpermit . We only ask for this on the lots we are puttingthebuildings. Board of Appeals will have control over this. We will come to you every time we open up a new area. Waiver or variance from the by-law that says the number of units on any one lot is governed by multiplying area of the lot by 8,000.This is a phase condominium. We have created lots - some building lots, some open space lots. We are asking for permission to overburden one of the building lots,lot 33 for example, upon the condition that before any building permits are pulledthereisdedicatedtoopenareaoneopenarealots. Lot 33 will have 35 units, @8,000 sq. ft . per unit we would be xusimir.ittlxtoxkaswe 95,000 sq. ft . short within lot 33. We would take lot 34 and lot 6 and we would in effect add those to lot 33tomakeupatotalof138,000 more sq. ft . leaving us 43,000 sq. ft. over. We plantodothisontheotherlotsaround. On lot 13 we want 52 units. Before buildingonitwewouldaddtothislot12, having over 600,000 sq. ft . , 43,000 sq. ft . left over. We still always fall well within the 8,000 sq. ft . required. Variance - that before a building permit is issued we not be required to file a site plan. The reason frrthis is obvious. We may not need one. Because of the fact this is a sequen tial phase condominium project that we be able to delay filing site plan until we develop any particular lot . We do not want to go to the tremendous expense of filingforeverybitofland - we will not get to the end for about 8 years. We are asking permission to file and have approved as each phase progresses, that phase alone. The end result is the same. Variance - if necessary, to create common area. The by-law says open areas are subject to use by everyone within the complex. No question with open spaces - 40%- those will be open to everyone. However, within each subvillage there will be open areas and we like to refer to them as local common areas as to open spaces. We feel the residents within each ,.cluster should be permitted to have areas for them alone. Garden plots will be in each village. We don ' t want that rl acci f i rmd ac m r-nmmnn 1 Appeal #1321 Page 5 on things such as this. He has appraised over $500 million dollars of projectssuchasthis, and has been in it for 15 years. I would like him to tell you why these variances are so necessary. Mr. Ragan: I would like to agree to the opinions of those before me. This is the correct thing for this piece of land. It is critical for this to get the variances.We do not meet the things as outlined. It is my opinion that if these variances are not granted, then the project cannot be built . Mr. Oman: Regarding the Historic District , what did you refer to? Mr. Anderson: I aluded, or referred to the Mass. Historic Comm. and said they have nothing to do with the local Historic District . We do not have renderings showingwhatatypicalbuildingwilllooklike. We are in the Kings Highway Historic Dis— trict. Before we apply for building permits it is necessary for us to obtain a cer— tificate. They would have control over the buildings. They will be of colonial architect. Mr. Oman: The Kings Highway Historic Act was drafted by Senator Alymer and is specific to a degree and nature relative to the things in a given area of the town. If I Understand the bill and if Senator Alymer understands the bill he drafted, the Historic Comm. would have no jurisdiction in this area because this is not a public way. This lot is not a public lot open to the public. Mr. Anderson: The road network within the development is all private. Mr. Oman: Then I say the Historic Comm. does not have jurisdiction, nor am I implyingthingsaren ' t going to be done right. For the record, I would like to make that clear. Mr. Anderson: I am not going to argue with you or Senator Alymer what the bill really means. There is a copy of the act within the report here. As I recall there is only one instance where it makes reference to public view. You have raised a maicxadxa good point , and assuming that is right, I could say on behalf of my clients that we would not question or raise an issue as to the jurisdiction over our projectoftheHistoricDistrictComm. It would be a voluntary thing to go to the Historic Comm. and they have jurisdiction. We do not want anyone to feel they are buying something they cannot see. I am very sorry we do not have renderings because we have not concluded on an architect. Consider the renderings of the last hearing, if you would. Mr. Ragan: We actually have already had an informal session and have shown them several architects styles. We haven ' t decided on the final one yet. I talked with Senator Alymer — at that time he did feel this project would come under the Historic District. Mr. Anderson: I would suggest it could be written in the decision as a condition. Mr. George: Your entrance way off Route 6A abuts Route 6A, and as you can see on the plan that is access. Where does Routle 6A run from that point southwest? How far back from Route 6A other than at that point is your land? Mr. Anderson: The maintenance area is the closest — going into the locus there is a request to make a fairly substantial cut. As I have been informed, that because Appeal #1321 Page 6 of the contours of the land and because of the screening that will remain, these buildings will not be visible, and considering the height of the buildings will not be seen from Route 6A. Mr. George: Where is the access road from Route 6A? Mr . Kelley: Directly across the street from where Mr. Ruhan bulldozed off the bank, just east of Manchester Rd. , 750 ' further towards Dennis. Mr . George: Is it marsh near the bay? Mr. Kelley: We have several hundred of upland there. There is one building there now, a cottage that was built already. It is all high and buildable. Mr. George: Does that have access from somewhere? Would someone come in in that area for another development? Mr. Kelley: It would not be good for them to do so. Hockonom Rd. bisects our property. Mr. Anderson: It is not a public way. There are certain people who have rights of that road. The residents of the town of Yarmouth were given rights of access over it . It is a way that is available to residents or inhabitents of the Town of Yar. Mrs. Fitzgerald: We own the land to the north. Does this mean this land will not be buildable? Mr. Anderson: You must be one of the people that have access to Hockonom Rd. Yours would be buildable. Mr. George: The Whitman & Howard report — is that included in your papers? Mr. Anderson: It was not made to us — it was made to the Town of Yarmouth Board of Health. That report has been filed with you. Mr. George: You said walkways would provide for emergency vehicles — they would be wide enough to get an ambulance, etc. ? Mr. Anderson: That is right. They will not be paved. They will be walking paths, pedestrian walks , so designed so as to be capable of supporting trucks or other vehicles. Mr . George: Have you considered the golf course, if constructed, as with the open area? Have you considered that as a use calcuable not to be built on? Mr. Anderson: That will not be built on. No structures on them. I don't think there is any preclusion for using your open spaces for recreation purposes. Mr. George: the club house, golf course is within the community complex? Mr. Anderson: That is right. Mr. Oman: You said water going in, town water, and N.b.G.& E. will supply power, unuer ground. You said nothing about natural gas. A tew years ago there wds nppedi ff1321 Page 7 large main put down Route 6A - is that an alternate power you will be using? Mr. Ragan: We at the present time of the opinion that main is not close enough to use here. If in the future it comes closer we would like to use as an alternate. Mr. Oman: Gas companies have been cut off from extensions of mains, that is why I asked the question. When you told figures, land coverage, your lowest figure was 6.85% - would you be more specific for me - that referred to what? Mr. Anderson: Only to building coverage - all buildings. Mr. Oman: From that point, do you have your percentage of your parking and the paved surfaces, plus buildings? Mr. Ragan: We didn ' t go on that basis. That does not include parking, road. , tc. , just buildings. Mxxx> manxxxkxomxtkatxpointxxxdoxyoNxiaxexyomxxistexzemtagexoixympsxxpaxkxmIxamkslxike plexxemIngaxmxialas*xpitisxktdidi mi3s2 Mr. Oman: All road maintenanxe, snow removal , would be taken care of? Mr. Anderson: We would take care of them. Mrs. Kelly: What will happen to the F.A.A. Station? Mr. Anderson: It is located in the southwesterly corner of locus, an area that is under lease to them. It has been there for some while. There is a prohibition &gains against any structure being built 500 ' to the tower. We do not propose to do any construction in that area. In regard to the golf course, we already received per- mission from the F.A.A. to put it in. In the plan it shows 32 units - those units cannot be built if F.A.A. continues to occupy the property as a tenant. There is some feeling as I understand that it might become obsolete very quickly. If they did and the land reverted to us , we would put the 32 units in that area. If it was not used for a golf course and if we did put 32 units, they would be taken from other villages within the development. Mrs. Kelly: I understand they had a 99 year lease - they have been in operation for not less than 15 years. Mr . Jordan: Their lease is up in 1978, July 1 . Mr. Pretrovitch: I am agent for Agriculture Research Corp. This development is in the water shed of Chase Garden Creek. We are concerned over what effect this development will have on the water of ours. In terms of gallons, how much affluent will you be pushing out of the system? What would be the chemical of this? This will eventually go into your water table - has anyone made a test - where will the movement go to? Dr . Teal : We have someone in the sewerage company here - the plans for the treat- ment plant which will be done in the lower part of the area with the disposal area. The water shed runthing down. The water, or affluent, will be about 150,000 gallons a day when the project is completed, disposed of in the ground. If you put that much in the ground that means it will come out of the ground someplace else. About 3/4 will flow in one area, Mill Pond, the remaining part of the water will flow into Appeal # 1321 Page 8 Mathews Pond and then into Chase Garden Creek. The water will have in it the ordinary things you would find in domestic secondary water, phostrates and nitrates. Mr. Pretovitch: Is there any possibility of this excess load of nutrients causing a mass explosion to affect our water? Dr. Teal : No chance at all . No detrimental effect. Mr. Petoviteh: Could I get a loan of an impact report? Mr. Anderson: Not from us - We don ' t have that many. We have a limited supply. We have disposed of one in the Yarmouth public library, Ypt. We have within the Town Office available for public view, onit at th Cape Cod Economic Comm. It is at all times available to you from one of these places. Mr. Pretovitch: Is there any chance of your fresh water table being destroyed? Dr. Teal : It is fresh water you are putting in. Phosfates wiTl not get out - they are bound by the sediments of the marshes. Nitrate might be what you have to worry about. Mr. Pretovitch: Storm sewerage - where will they have been discharged to? Mr. Anderson: Everything is on site. Into the ground, I believe, where else would it go? Mr. Rretovitch: One in Dennisport goes right into Chase Garden Creek. Mr. Huppfer: We have been here for about 2 years - we have heard nothing but the Historic Distric Comm. of Route 6A. We will be looking at sewerage treatment plant from 6A. I would like to see seme thought given to putting it some place else. Mr. Anderson: First of all , I suggest that because of ground contours and screening, you will see nothing from 6A. A great amount of planning went into this project as to where everything should be located. There was a reason for locating everything where it was located. Mr. Tsekerous: A lot of thought was given to where to put the plant. It is back about 600; from 6A. Will not be seen at all . A small picket fence might be seen from 6A around the maintenance area. Mr. Huppfer: It it felt there is sufficient width of 6A to take that many cars coming on the street from that location without an extension of the street or a rotary circle? Dr . Teal : We did go into this in great detail . There is a detailed study of the traffic distribution on the streets for a considerable distance at different times of day and at different times of the year. It does fall within the state requirement . People will be mostly retired and would not affect it at the times of day the road would be busiest anyway. Mr. Anderson: One of the requirements of Open Space Dev. is there must be a 50 ' unbroken buffer strip - that was when I said 50 ' . About the traffic - you might go to the library and pick up a copy of the report , start on Page 73, traffic impact . You will find many pages of texts , studies, diagrams, maps, charts , traffic count Appeal #1321 Page 9 graphs, inclusive of photos, something in excess of 40 pages devoted to the traffic study. They say no adverse effect on the present Route 6A.' Mr. Jordan: Another copy is with the Police Chief. Mr. Kent: When the development is completed, there will be no change in 6A? Mr. Anderson: I am not saying that - Wilbur Smith is saying that. Mr. George: We would have no authority that no change be made to 6A. Mrs. Kelly: In regard to the water - when the water is treated, it will go to the valley - conservation area? Dr. Teal : Yes that is the closest place where the water comes to the surface. Mrs. Kelly: There are fish and turtles in Mathews Pond - will that affect it? Dr. Teal : It won ' t affect it at all . Mrs. Kelly: I have property abutting that. If that water ever got under greund would it undermine houses and foundations? Dr. Teal : It won'tdo that. Mr. Rold: Are you sure it will not be another village like on Weir Rd. - Mr. George: You can ask what the houses will be like. Mr. Rold: If they are not sold they will cheapen. Can we have a guarantee they will not be sold for less than 40,000 to $50,000? Mr. Anderson: We cannot give you any guarantee. Economic conditions have a great Ixering. The lowest priced as presently contemplated is $50,000 running up to 80,000 to $85,000. This is the price range. I cannot say they will not be lowered. This is no hit and run proposit on. We have extremely responsible participents in L!• this. Mr. Smith: The 150,000 gallons of water - is there an accumulation of sludge? Mr. Anderson: Yes, there is. Mr. Mardenozier: Part of the final design of the plant will be a concentration of sludge. It will be taken to some state approved site, not necessarily in that area. Off site, to an approve land fill site. It is all dried and compact, can be shoveled fairly firm. Mr. George: Once you get it built, in which combination - how many people do you think will live here? On a permanant basis? Mr. Anderson: I think you will have to consider you are going to get perhape 2 groups of people. Retired people or second home owners. It is not condusive to family living. In Cranberry Knolls there is only one child and that child is 16 years old. Studies show a condominium project produces few children. In a single Appeal #1321 Page 10 family unit, 1 .2 children of school age. With 750 units, you might average 2'2 people per household. About 2200 people fully occupied. Mr. George: You request tennis courts — how many? How many rain shelters, ball fields, lookout platforms? Mr. Anderson: We have said, one master garden plot and nursery. One community barbeque area, one field. Reference is made to the lots of the tennis courts. We don ' t show such things as rain shelters — they will be spersed on the open areas, maybe in the parking lot area. Mr. George: Hardtop parking lots? Mr. Anderson: That is right. Mr. Oman: When we did the preview before tonight , we talked about at that time the sewer treatment plant — I don ' t remember it being referred to as a secondary plant. Mr. Mardenozier: It is a play of words. This is a secondary plant followed by polishes. Mr. Oman: What would be the content of bacteria, how clean will it be? Mr. Mardenozier: The bacteria would be zero. It will not be drinkable. Mr. Oman: They have developed systems that are almost drinkable. Dr . Teal : No doubt, but is not necessary in this situation to the soil conditions. Mr. Oman: All golf courses have to be irrigated. Why can ' t this material be used for the golf course? Dr. Teal : It can ' t be. It would be a good idea if it could be. The state will not allow it . They are looking into it though. In this case it would make a good deal of sense. Mr. Edwards: Construction equipment — coming in Hockonom Rd. ? Mr. Anderson: No way. All construction will be phased over 8 years. First thing constructed will be the road. Construction equipment will proceed in a counter clockwise direction, so continuing construction will not disturb the people already in there. Mrs. Kelly: All units are going to be 2 bedrooms? Mr. Anderson: one and 2 bedrooms. Mr. Essary: What assurance that Canterbury Rd. Would not become access road? The trees have been cleared there. Mr . Anderson: They will be made impassable. There will be no way to get to the dead ends from the locus. Mr. Kelley: The Planning Board approval said the end be screened and planted so Appeal #1321 Page 11 they cannot be driven through. Mr. George: One request for variance was to vary 8,000 sq. ft . per unit - you said you would dedicate certain lots for open spaces used in conjunction with certain lots. Have you calculation in your report what percentage of those lots would be roads or any other area that might be used for anything else? Mr. Anderson: The lots devoted with the housing lots would be common area ,open space, no structures, no roads at all . Mr. Ragan: A restriction on all of these lots is given to the town. Mr. George: The sales area by variance would be temporary you said - what will happen when you sell 750 units. Someone in there may want to sell their units - would you then want to continue to use the sales area and be agent for them? Mr . Anderson: It would appear to me that perhaps we would want a permanent sales in the community complex so as to facilitete the resale of any unit. The sales office in the models would be temporary, the sales office in the complex should be without restriction as to duration. Mrs. Kelly: Is it possible that this section is to the RD 2 zoning? Is it possible it would be allowed to have a store and a variance? Mr. George: That is why they are asking for a variance in that section. Carol Smith: I think it is a lovely layout. I like the small villages. Mr. Dolley: What action can the Board of Appeals take to protect the town and the people who buy in the beginning? Mr. George: You mean like posting a bond to complete roads, sewerage etc. ? Mr. Dolley: Yes. Mr. Anderson: This being a condominium it must qualify under 183A under Mass. Gen. Laws. They set certain regulations. We are phasing this condominium, for several reasons. One is for financial - you could never get a lender enough guarantee money to build the whole project at once. The way this is phased is for the further purpose of assuring if this project ever went broke, what had been built up to that point will be self sustaining. You would never end up with buildings half up. This has been one of the major problems where people have gotten themselves into a lot of trouble. Phase 2 will not begin until phese one is finished. Mr. Dolley: I think the phasing should be controlled by the Town of Yarmouth. Mr. Anderson: The way it is set up we cannot proceed with any phase without present- ing detailed site plan for approval . Mrs. Kelly: It is a beautiful thing, no doubt about it. My only concern is for the village of Ypt. It will almost double the population. Mr. Anderson: This will not happen overnight. The first year, 50 units, second year 50, third, 100, all over 8 years. Even if this did not exist, the population Y i s Appeal #1321 Page 12 of Yarmouthport will grow anyway. Mr. George: Regarding this petition — we have a letter from the Conservation Commission, not opposed provided that open spaces and preserved areas are set aside, etc. Also letter from Board of Health, Fire Dept. & Eng. Dept . Mr. Anderson: Those requests have been met. Mr. George: I have also 4 letters in favor — Marion McKinnon, E. B. Duar, Robert Helwig, Richard Allan. 1 telegram from DuPont P. J.Roessel , opposed. Mr. Chandler: This is a great project. I am a retiree who owns a house in this particular price range. I would look forward to living in a project such as this. Mr. Robertson: I own some land over there — I think this is one of the outstanding projects I have seen. I am in favor. Mr. Karras: I am an abutter , in favor. 9 large color plans to be returned to petitioners. Hearing closed. HOLLAND, JOHNSON & HAYS COUNSELLORS AT LAW BERT E.HOLLAND (1866-1958) WH17FIELD W.JOHNSON 73 TREMONT STREET WILLIAM C.HAYS BOSTON 02108 WILLIAM E.HAYS ARTHUR W.HUGHES,III OF COUNSEL 227-0695 DONALD H.JACKSON,JR. May 15 , 1975 Chairman Board of Appeals Yarmouth, Massachusetts RE: Oak Harbour Petition for Special Permit Dear Sir: Enclosed herewith as additional documents for consideration by your Board and for the record in this case are the following: 1 . Report by Childs, Bertman, Tseckares Associates , Land Planners . 2 . Letter from Dana F . Perkins $ Sons , Inc . , Environmental Engineers . 3 . Summary report and statement by Dr. John M. Teal . 4 . Letter from Edward E. lley. ours very trul llIii 44110WilliamC . .ay. WCH/kmp IllhiEnclosures P r HOLLAND, JOHNSON & HAYS 73 Tremont Street Boston, Massachusetts August 11 , 1975 Mr. Scott C. Jordan Oak Harbor Associates 477 Main Street Yarmouth Port, Mass . 02675 Ref: OAK HARBOUR Dear Scott: You may recall in connection with the draft of suggested language for the Special Permit decision that we inserted on the day ofdeliveryadditionalmaterialwithregardtotheopenspacelots . This was done in order to make sure that the Town will receivethesameprotectionsofarastheSpecialPermitisconcerned that we have already suggested as a condition to Variance #10 . I understood at the time that the Chairman of the Board of Appeals was aware that an additional condition not mentioned in our draft would have to be inserted in order to provide this protection. Would you please confirm that the Chairman is awareofthispoint? I am enclosing with this letter a suggestion for the languageoftheadditionalcondition. On a different subject, the draft for the variances is now ready and I am sending you a copy herewith. You will note that I have used the date of June 17 as the decisiondateforallofthevariances , including #2 and #4 . I believe that originally, according to the information I received,the Board held up its decision on #2 and #4 pending insertion of additional confirmatory material . I first thought that a later decision date would work fine for2and #4, but I think now that June 17 would be best for everythingfortworeasons . First, some of the other variances such as thoseforthestore, the developer/sales office , and one for publicuseoftheproshopandclubhouserelatetothecommunitycenterbuilding; it would be strange if these variances carried decisiondatesearlierthanthedecisiondateofthecommunitycenteritself.Second, the June 17 date for everything will eliminate altogether anynecessityforanexplanationconcerningthe60-day time limit for the r F Mr. Scott C . Jordan 2 - August 11 , 1975 vote by the Board of Appeals ; we will then be left with need to explain only the extra time taken for the recording of the decision. V e;y''t ru y u r s , am a Enclosures WCH:m REPORT TO THE BOARD OF APPEALS BY MURRAY REGAN May 14 ,, 1975 This report and the opinions contained herein are submitted to the Yarmouth Board of Appeals in connection with the pending petitions submitted by Oak Harbor Associates for fourteen (14) variances for associated consideration with the same petitioner' s request for a Special Permit under Section 18 : 07 of the Yarmouth Zoning By-law. The Special Permit request and the variances relate to the Petitioner' s parcel of vacant land containing approximately 194 acres situated between Rt . 6A and Bray Farm Road in Yarmouthport . Other reports are being submitted by Childs , Bertman, Tseckares Associates, Inc. , land planners , and Edward E. Kelley, land surveyor. These set forth the advantages of a cluster type development on this site . These reports contain specific statements to the effect that a cluster development approach under the Open Space Village By-law will be superior to a conventional development plan. This report and opinion will deal with the necessity of the companion variances in order to make the Open Space Village Development possible . An Open Space Development, of this size could and would not be under- taken from a marketing standpoint without provision in the development plans for general accessory structures and features , particularly the garages . Although some units could undoubtedly be sold to Buyers uninterested in enclosed garage and storage space, the loss to the project of the entire class of potential Buyers who desire or require a garage would render the project inadvisable and unfeasible . To a lesser extent the same is true with respect to customary outside yard facilities commonly identified with non-urban living such as fireplaces , decks , canopies and related features . Similarly this cluster type , open space development plan would be unfeasible and economically unsound without a series of central community facilities for the common use of all residents . It is well known that purchasers of units of housing in cluster developments and especially buyers of condominium units in cluster developments recognize and accept the need to share yards , parking, and open space , contrary to the expectations and ideas of persons purchasing single family homes . (1) 1) Some local yard areas , however, must be reserved for the exclusive use of the adjacent unit owners ; the Petitioner has requested this necessary relief in variance #13. On the other hand Buyers of condominium units in cluster developments look for and expect common facilities going beyond yards and parking . These added common facilities usually take the form of central community buildings of the kind and description proposed by the Petitioner to be situated on Lot 4 and on Lot 7 and the tennis and paddle courts on Lot 5 and elsewhere. The distance of Oak Harbour from town would call for inclusion in the community center of some form of convenience store on a small scale to avoid residents having to use an automobile or vehicle everytime miscellaneous food and sundries are needed. Also generally included are common recreational facilities such as gardens , barbeque pits , picnic tables , rain shelters , ball fields , and the like . Without common recreational and social features of this type, the proposed open space development plan for the Oak' Harbour parcel would not reach marginal economic feasability and in the opinion of the undersigned would not and could not go forward and would not and could not be financed. At the present time it is uncertain whether Oak Harbour will require the special community facility represented by the proposed golf course in order for the project to be marketable and feasible over the full development term. Should market conditions in this area of Cape Cod require the addition of the golf course in order to make the open space plan feasible, experience indicates that the relatively high carrying charges of any golf course, which become fixed and unavoidable irrespective of the number of persons using the course, requires the expansion of use of the facilities during the development stage when fewer than the total number of projected dwelling owners have taken up residence . Initial owners cannot by themselves carry the annual costs of maintenance, operation and upkeep; to the extent that the remaining burden is to be carried by the developer, the project in the opinion of the undersigned would have doubtful viability from a marketing and financing standpoint . To the lesser extent, the same conclusion is reached with respect to the proposed security feature of the development in the form of the proposed gate house . Security is becoming more and more a primary factor in many condominium Buyer' s selection process . The access and layout of the Oak Harbour project is so well adapted to the placement of an information and security control point on Oak Harbour Circle between the entrance and the fork in the street that the failure of the developer to provide one could have serious impact on the financing of this cluster - open space project. A project of this description could not be undertaken under any circumstances without the on-site sewage treatment facilities proposedtobesituatedonLot9andelsewhere , without the maintenance buildingandfacilitiesproposedtobesituatedonLot13A, or without the on-site sales offices and the signs requested in variances #2, 12 and 14 . The Massachusetts Department of Public Health would not permit the project to go forward beyond the first or second stage without a treatment plant meeting its standards and requirements . Similarly the project is toolargeformaintenancetobehandledbyoutsidecontractors ; on-site provisionsforstorageandrepairofvehiclesandequipmentmustbeprovidedin order to make it possible for the project to go forward as an OpenSpaceVillage. 2- r Equally necessary in order for construction to proceed under the Section 18 : 07 concept is the waiver of the By-law requirement that 8, 000 square feet of lot area be provided in each lot on which dwellings are to be . constructed. Without this waiver, the parcel could not be subdivided and without subdivision, independent financing of various elements and phases of Oak Harbour could not take place . The relief request in variance 11 from the By-law requirement that detailed site plans be prepared and submitted for all phases of the project at the beginning is necessary to ensure that flexibility be maintained with respect to the make up of the buildings and dwelling units in each successive cluster . Market conditions as well as the tastes and desires of earlier Buyers will cause changes in plans from year to year; the project ' s feasibility would be doubtful without the opportunity for this change. My qualifications and experience are as follows : I am certified as an expert real estate appraiser in Bristol and Norfolk Counties in Massachusetts . I have previously been employed in the real estate divisions of HUD and I presently hold a position as Vice President and head of the Development Division of R. M. Bradley & Co . , Inc. , 250 Boylston Street, Boston. I have had more than fifteen (15) years experience in the real estate field and have during this time appraised more than $500, 000 , 000 . 00 of multi-family housing . Dated this 14th day of May, 1975 . Murra Reg 0 TOWN OF YARMOUTH OFFICE OF THE PLANNING BOARD - SOUTH YARMOUTH, MASS. MHC TACH EESE! aPOAATED° May 8 , 1975 Yarmouth Board of Appeals Town Office Building South Yarmouth, Ma. 02664 Re: Appeal #1321 - Oak Harbour Associates Gentlemen: The Planning Board is in favor of the granting of this Special Permit and Variance. When the subdivision plan for this project was approved by the Planning Board, we waived a number of requirements of our Rules and Regulations with the understanding that the Board of Appeals would be ruling on the same. A copy of this Covenant and Agreement is enclosed showing those items which we are leaving to your discretion and which we would appreciate your examining closely and definingintheSpecialPermit, if granted. The phasing of the construction of the roads and buildings is also of importance to us. Because of the scope of this project, we would also be interested in seeing something in the Decision regarding no future residence building construction on any of the open spaces shown, especially the portions noted for "Future Golf Course" . We would be happy to sit down and discuss the same with you. Sincerely yours, YARMOUTH PLANNING BOARD 7 SALLY ` . SILVER CHAIRMAN sfs/j lw 1 CAPE COD PLANNING AND ECONO:Y.IC D 1 sr DISTRICT COURT HOUSE, BARNSTABLE, MASSACHUSETTS 02630 TELEPHONE: 61 7.362-251 1 August 4, 1975 Secretary, Executive Office of Environmental Affairs 18 Tremont Street Boston, Ma. 02108 Dear Madam Secretary: At the July 31 meeting of the Cape Cod Planning and Economic Development Commission, the following review was acted upon: 1. Recommendation to endorse the Oak Harbor_ Housinm Project, Yarmouth, Mass. Final Environmental Impact Report. Enclosed is a letter of comment from the Town of Yarmouth Board of Selectmen. Sincer y, t Glenn H. Rowley Research Technician Enc. T6wn of Yarmouth Board of Selectmen's letter dated July 31, 1975 cc: State Clearinghouse Coordinator Oak Harbor Associates Board of Selectmen, Town of Yarmouth off yA CONSERVATION COMMISSION MATTACM ES ^ ;TOWN OF YARMOUTH SOUTH YARMOUTH, MASSACHUSETTS 02664 coppORFTE039 S;'.C' May 15, 1975 Yarmouth Board of Appeals Town Office Building South Yarmouth, Massachusetts 02664 Re: Appeal # 1321 - Oak Harbour Associates Gentlemen: The Yarmouth Conservation Commission has examined the plan for the Oak Harbour Open Space Village as submitted to them. The Commission is not opposed to this project provided that the open space and reserved areas be set aside in perpetuity for golf course or other recreational use or conservation areas and that there are adequate safeguards contained in the open space document, to prevent any later development for other uses of these areas. Very truly yours, YARMOUTH CONSERVATION COMMISSION 4( JOHN L. NEWTON SECRETARY jln/jlw YARMOUTH FIRE DEPARTMENTO S'' South Yarmouth, Massachusetts 02664 O00RA1t GO? DANA H. WHITTEMORE CHIEF OF DEPARTMENT April 24, 1975 Town of Yarmouth Board of Appeals Town Office Building South Yarmouth, Massachusetts Attention Mr. Kenneth H. Studley Gentlemen: The Fire Department has reviewed the final plans for Oak Harbour Associates and hereby notifies your Board of their acceptance. Very truly our, ; d Dana H. Whittemore Chief of Department DHW/lmc cc : Mr. Scott Jordan cc: Chief Whittemore I. BOARDS OF U,ter,',. rS ! ti 7, - 3, f^ ~ J I-71 - 71_ L r . L: t CLLLCTML Ir,; c' T i r^- ASSESSORScOZrri-I Y A..ivIOUT 1 MASSAC USL T rs HA7T/Cl4ls 1 HEALTH• r July 31 , 1975 Cape Cod Planning and Economic Development Barnstable, Mass. Attention: Mr. Curtis Dear Mr. Curtis, The Board of Selectmen for the Town of Yarmouth Met on Tuesday, July 29, 1975 at the Yarmouth Town Hall with the Water Commiss- ioners, Conservation Commissioners, Planning Board and Town En gineer to discuss the A-95 Review on OAK HARBORS, located on Route 6A in Yarmouth. This proposal has been the subject of many public meetings with- in the town of Yarmouth, in which all departments were represented. There has been a continual up-dating of the status of this project with the Board of Selectmen and other Boards of this town on a le- gal basis. An environmental impact report was made and a final impact report was made to answer the questions left by the Secretary of Environ- mental Affairs after the annual report. The Selectmen for the town of Yarmouth feel 'that all questions have_ been adequately answered. Perhaps this proposal has been in- vestigated more fully, or at least as much as any proposal ever sub-' mitted in the Commonwealth of Mass. We strongly recommend approval of Oak Harbors project located on Route 6A in Yarmouth. Very truly yours, Board6'f Selectmen CWE/cr F• A BOARDS OF TOWN OF YARMOUTH SELECTMEN o SOUTH YARMOUTH MASSACHUSETTS 02664 ASSESSORS MnrracH esE 4" H E A L T H JJJJJ 40-_. 6.May 13, 1975 Town of Yarmouth Board of Appeals Route 28 South Yarmouth, Mass. Re: Oak Harbor Development Dear Members, We have received the plans submitted to us. Basically, the project is in a preliminary design phase and very little detail is shown in relationship to the sewage treatment plant layout and the collection system. The final plans for this development will be thoroughly scrutinized when the time comes for review. Mr. Charles L. Hattaway, Jr. , P. E. , of Whitman & Howard, Inc. , reviewed the plans submitted for the Board of Health, Town of Yarmouth. A summary of this report indicated the entire system of sewers, drains, pumping stations, and treatment facility seems adequately designed and should provide acceptable service. Therefore, the Board of Health for the Town of Yarmouth, find the plans as submitted in proper order and acceptable. Very truly yAurs u( Board o Health lh SSl1 OF kS EDWARD i E. F KELLEY H 1 No.2o100 GiSTERoQ- Ma 14 1975 do SUCNi* y , Cummaquid Barnstable, Mass . Chairman Board of Appeals Town of Yarmouth Massachusetts Re: Oak Harbour Dear Sir: I have surveyed the land on the northerly side of Route 6A, between Route 6A and Bray Farm Road, which is the subject of a petition for variances before your Board. The parcel of land involved is vacant and contains about 194 acres . There are certain features and aspects of the land con- stituting this parcel , and I wish to point these cut in this brief report: 1. The major part of the parcel is well suited for development. Except for the square in the northeast corner and except for that portion of the southwest corner below the 70 foot contour line, the parcel is basically plateau land with a relatively high elevation of approximately 90 feet. 2. The site, is one of the largest parcels of build-7 able vacant land in single ownership and privately held on the north side of Town; to the best of my knowledge as a 1 surveyor familiar with the area, it is the largest parcel of this kind on the north side of Route 6A between the center of Yarmouthport and the Dennis town line. 3. There are additional characteristics and features of this parcel which are peculiar to it: a) The plateau ends with a sharp bank in the northeast corner; it would be unwise and impracticable from a road layout standpoint to join the low north- east tip of the parcel to the plateau. b) The land in the southwest corner in the vicinity of the kettle hole cannot easily be integrated for development with the plateau. 2- May 14, 1975 c) The land surrounding the existing F.A.A. flight control facility should not and cannot be developed as long as the facility remains in its present location. The three areas referred to above would, under an optimum residential development plan, be areas which could remain as open space without construction or improvements upon them. 4 . The parcel narrows in the southeast corner where it abuts Route 6A, the only point of access for development. Because all traffic would be required to enter and leave at this point, and also because of the substantial rise in the land northerly from 6A, the optimum residential development of the parcel is , in my opinion, one in which the number and length of primary subdivision streets would be at a minimum; the subdivision plan which I prepared and which was approved by the Planning Board on March 19, observes this principle . I have also prepared a street plan geared to accommodate single family development; this plan does not observe the principle that I mentioned. By way of background, I have been actively engaged as a land surveyor in Barnstable and Yarmouth since 1953 , and I have been a Registered Land Court Surveyor for the last three years . I have worked extensively in the northeast section of Yarmouth and I am familiar with the identity and configuration of parcels in this area. LAG i. F `w q Z E. a m KELLEY N U 4 No 26100 O CISTE.O' IHp S t}F`46 tDANA F. PERKINS;SONS,'NC 125 Main Street 43 Lakeview Avenuetared urve[ord Box 506 Box 1322 2 Reading, Massachusetts 01867 Lowell, Massachusetts 01850 ltec fdtererl Civilengineerb 944-3060 452-9871 environmental Gnggineer6 Est. 1829 May 13, 1975 Town of Yarmouth Board of Appeals Yarmouth Town Hall Yarmouth, Massachusetts 02675 Re: Oak Harbour Project Project, Massachusetts Gentlemen: This correspondence is in regard to the utility services being proposed for the above-captioned project. It is the opinion of Dana F. Perkins & Sons, Inc. that adequate utility service will be provided as evidenced by the following: 1 . Actual flow tests of the existing public water supply system has resulted in adequate water supply to service the project. 2. Adequate drainage can be provided on site capable of handling storm water runoff. Natural holding areas have been set aside to produce an esthetic drainage scheme. 3. At the location of the on-site secondary wastewater treatment plant excellent soil conditions have been found for final disposal of the treated effluent. This site was selected after review of on-site soil tests and an extensive geohydro- logical study. This site adequately satisfies the 1973 Soil Conservation Service soil survey limitations. As a result of the above utility studies as we'll as the overall layout of the Oak Harbour project, Dana F. Perkins & Sons, Inc. is of the opinion that the final result will be superior to a standard conven- tional single family residence subdivision. Very truly yours, DANA F. PERKINS & SONS, INC. c/G ee2G L.-a, Donald E. Ma'rtinage, P. E. DEM/hmk cc: Oak Harbour Associates SITE PLANNING REPORT OAK HARBOUR YARMOUTH, MASSACHUSETTS PREPARED BY CHILDS, BERTMAN AND TSECKARES ASSO„ INC. SITE PLANNERS AND LANDSCAPE ARCHITECTS 306 DARTMOUTH STREET BOSTON, MASSACHUSETTS FOR THE BOARD OF APPEALS TOWN OF YARMOUTH, MASSACHUSETTS The concept on which the Oak Harbour master plan is designed features multi-family housing structures which are clustered into "villages"; these clusters are buffered from one another by natural wooded areas and open spaces. The overall development plan is designed for a maximum of 750 multi-family resi- dential units which are to be built on 194+ acres. The clustering or grouping eliminates small unused pieces of land in and around the units from being under- utilized; instead all excess land, land adjacent to the units not specifically needed for parking and servicing the buildings, internal common areas, yards and the like are combined and added to the land set aside for open spaces. This com- bined land accounts for over 40% of the total site, and building coverage is only 6.8% of the 194 acres. The fact that the open space land is massed into large parcels allows for a more flexible use of the land for conservation and recreation. The flexibility of clustering units and massing open space allows for housH.,a and accessory facilities to be placed and adapted to the existing topography, thus -aximizing land use and minimizing the need to disturb the existing topography by unnecessary excavation. The massing of open space insures that large groves and clumps of existing trees will be saved; this preservation will serve to screen the individual clusters and their parking from the main subdivision loop road and also to buffer the clusters from one another, and to give immediate residential scale in and around the individual buildings by providing mature trees close to the buildings. The preservation of tree masses allows the creation and control of views and vistas within the total development. These tree masses are positioned so that an infinite variety of views and vistas become available, which greatly increases the visual interest and variety afforded to the inhabitant of the clusters and to those driving through the development and viewing it from their car. The natural features of the land have been identified and analyzed, and the character of these studied during the site planning process. Included in this study are a slope analysis, existing drainage patterns, existing vegetive covers, exposure to sun and wind, and areas were tested for leaching capability. Existing views and vistas were identified and potential views in areas now covered by trees were determined. All of these were studied in the field with the aid of an aerial topographic map which was prepared with a two-foot contour interval . The maximum number of dwelling units allowed by the formula for an open space village on the Oak Harbour site is 844 units under the new law. It was de- termined that 750 units was the proper number of units which could be clustered on the site and achieve the objectives of the site planning concept. These objectives were to create quality internal common spaces, reduced asphalt parking surfaces, and preserve the existing tree coverage. The goal from the beginning of the site planning process has been to accommodate 750 multi-family, residential units on the site in a manner which is economical and efficient in terms of construction and support services, aesthetically pleasing, conserves existing topography and vegetation, and provides the most flexible use of open space possible. The individual clusters have been planned for 12 cars per dwelling unit, with each parking space 10 feet by 20 feet in size. No parking is within 25 feet of any street or lot line. Parking spaces are also provided at the community center, the garden club, the sewerage treatment plant and the maintenance area. Approximately 10% of the parking spaces within each cluster will be designated "guest parking". The entire development is separated from surrounding lands which are under different ownership by a buffer strip which is a minimum of 70 feet wide in the vicinity of multi-family buildings and a minimum of 50 feet elsewhere. In many areas, this separation is increased by several hundred feet of additional open space. By careful placement of these buffer zones, Oak Harbour has minimized the impact of the project on surrounding neighborhoods. At present, there are less than 30 single- family units within 500 feet of the proposed multi-family buildings. Oak Harbour Circle, a new, internal loop road designed to the Town of Yarmouth Subdivision Standards for a Collecter Street, will accommodate vehicular traffic within the project. Oak Harbour Circle connects directly to Route #6-A without making use of any existing minor streets or lanes in surrounding neighbor- hoods. In addition to Oak Harbour Circle, emergency vehicles can gain access to the site by way of Hockanom Road and Canterbury Drive. An internal network of prepared trails is provided around each cluster so that fire apparatus will have close access to any building. This system of emergency access has been reviewed sand approved by the Fire Chief of the Town of Yarmouth. The Oak Harbour master plan is superior to a conventional, single-family subdivision because of the efficient distribution of streets, utilities ans support- ing services. Where possible, utility lines accommodate to the natural terrain features and take the most direct routes. The loop road, Oak Harbour Circle, is designed to have the shortest length possible for servicing the building lots. Unit parking is concentrated into parking compounds within the common areas of the clusters. this .cults in less paving and lower costs. The overall development plan of Oak Harbour is superior to a conventional plan in the way the natural features of the land are utilized. This is accomplished by clustering the housing units on the higher portions of the site and using the lower areas for open spaces. Resident use of these spaces will be channeled by a system of internal trails, thus preserving the natural ground cover. All exposed soil shall be covered with vegetation and slopes in excess of 1 on 3 will be seeded with quick, cover grasses to prevent erosion. In addition, the storm drainage system is designed to divert runoff from the higher land down and through the open spaces by a system of culverts and open swales to detention basins where the water is allowed to percolate into the ground and recharge the local ground water system. A system of temporary drainage swales and settling basins will be utilized during construction so as to control erosion and siltation of undisturbed areas. Since the concept of Oak Harbour is a series of building clusters inter- laced with open fields, some areas now in woodland will be cleared to create these fields and meadows. This clearing of trees will encourage new vegetive growth not presently featured on the site. This vegetation will be shrubby in nature and will provide more diverse types of habitats for wild life associated with the Cape Cod area. The individual clusters are designed so as to enhance the feeling and image of a small , residential neighborhood. This is evidenced by the attention which has been given to the setting within each of the residential clusters. The residential scale of the individual clusters is enhanced by the preservation of existing trees surrounding the buildings. The visual impact of the parking lots is reduced by the use of wood fences, shrubs, parking structures and existing trees. All parking areas and access walks will be lighted by glare-free illumination. The buildings are positioned so as to frame and capture distant views of the open fields and woods from within the cluster. In most instances the private, outside areas of the individual units overlook these amenities. The clusters will be land- scaped with plant materials associated with residential living and will include a variety of broad leaf evergreens, flowering shrubs, ground covers, evergreen and deciduous trees. All plant materials will be compatible with the climatic conditions of the area. All surface areas within the clusters will be kept in grass or ground covers, and all plant beds and tree areas will be mulched. Landscaping outside the cluster areas will be with plant materials indigenous to the Cape and will include species which encourage habitation by wild life. To further enhance the residential character, all electrical and telephone services will be buried. The visual indicators usually associated with separate residential owner- ship, such as hedges, fences, walls and the like highlight the individual clusters. These become design elements in the landscape which give scale and character to the residential areas and control pedestrian movement. Individual storage of personal effects such as bicycles, sport equipment and the like will be in storage units located within the covered car sheds. In addition, a fenced-in storage yard for trailers, small boats and the like is provided within the sewerage treatment plant area. Trash storage is provided in each parking compound and will be screened from view. The overall development plan of Oak Harbour with respect to preserving open space for conservation and recreation is superior to a conventional one. This is evidenced in the master plan for Oak Harbour which limits building cover- age to 6.85% of the entire site. This open space is combined to make it more use- able for conservation and recreation uses. Some of the open spaces are arranged lineally and interconnect, making it adaptable for hiking and bicycle riding. Other portions of the open space are concentrated in large blocks so that it can be adapted to recreation uses such as golf and baseball . Under a conventional plan, the Oak Harbour site would have a maximum of 5% o® the total set aside temporarily for public use. This would provide 9.7 acres of open space as opposed to the Oak Harbour Open Space Village plan with its 81 acres of interconnected open areas. A conventional plan might not restrict these 9.7 acres to conservation purposes. The Oak Harbour plan provides for common use of the 81 acres and legally preserves it for conservation and recreation. In conclusion, the Oak Harbour Master Plan for the reasons discussed in this report, is superior to a conventional one in preserving open space for conserva- tion or recreation, in utilizing the natural features of the land, and in allowing more efficient provision of streets, utilities and other public areas. Charles N . Tseckares Architect May 14, 1975 3A MEMORANDUM PETITION FOR VARIANCES RE: OAK HARBOUR YARMOUTHPORT, MASSACHUSETTS SUBMITTED TO THE YARMOUTH BOARD OF APPEALS BY OAK HARBOR ASSOCIATES Petitioner DESCRIPTION OF SITE The Petitioner' s property consists of approximately 194 acres of vacant land on the north side of Rt . 6A in Yarmouth and situated between Rt . 6A and Bray Farm Road. The major portion of the site is presently owned by the M.V. I . Nominee Realty Trust, Aaron G . Weintraub Trustee . In addition, Yarmouth Properties, Inc . c/o Scott Jordan, 477 Main Street, Yarmouthport, holds title to several part-lots at the edge of the parcel on the Southeast corner. The site is bisected north and south by Hockanom Road, a dirt track of long standing between Rt. 6A and Bray Farm Road which has never been improved and over which relatively few vehicles now pass . There is located on the property in the southwest section an FAA flight control installation, the lease for which will expire in 1978 . ZONING HISTORY The property is entirely within the RD-2 zoning district . Until 1973, apartments were permitted in this district and in 1973, the Yarmouth Board of Appeals granted to one of the petitioners a special permit for multiple family dwellings for 957 families . At the Annual Town Meeting in 1973, the Town amended the zoning by-law, substituting in place of the apartment section a new by-law section for Open Space Village Development . This new section, as amended slightly by the Special Town Meeting in the Fall of 1974, is the basis of this petitioner ' s accompanying request to this Board for a Special Permit for multiple family dwellings containing 750 dwelling units . The major portion of the parcel has recently been subdivided; a copy of the subdivision plan approved by the Yarmouth Planning Board on March 19, 1975 is attached. PETITIONER' S REQUEST The Petitioner filed with the Yarmouth Board of Appeals a request for a Special Permit under Section 18 : 07 . of the Yarmouth Zoning By-Laws ; a copy of that petition (without support documents) is attached to this memorandum. The Petitioner also filed with this Board as an associated request for simultaneous consideration a petition for fourteen variances . These variances fall with four classifications or categories : 1 . Access structures for each residence building . 2 . Access structures and features appurtenant to the project as a whole. 3 . Non residential uses . 4 . Structures and facilities which do not (or may not) comply with the zoning by-law. For purposes of this brief, the variances will be grouped within these categories because of the common factors applicable to each category. It is to be noted, however, that in one important aspect, all fourteen variances are alike . The only purpose of each and every variance is to make possible the open space village for which the related special permit petition has been submitted. Not one of the structures or uses requested in the variance petition represents a building or activity that will stand independent of the basic plan for the site, that of a residential development . In this sense , all of the variances may be looked upon as accessory requests . CATEGORY 1 ACCESSORY STRUCTURES FOR EACH RESIDENCE BUILDING A. Variances within this category: #1 B. Description of relief requested: Principally, this request covers 83 garage- storage sheds to be situated on lots numbered 2 , 8 , 11 , 13, 14 , 15 , 16 , 18 , 20, 21, 23, 24 , 26 , 28 , 29 , 31 , 33 , 35 , 8A and l0A for the use of residents of the dwellings to be constructed on these lots and to be sited with respect to such dwellings approximately as shown on the plan attached to the variance request, which plan is entitled Typical cluster, Oak Harbour" . Final siting and placement of these garage-storage sheds will be shown on the site plans to be submitted under Sections 18 : 07-4 -E and 18 : 10-6-B prior to the commencement of each cluster. This variance also covers typical dwelling appurtenances such as patios , decks , fireplaces , canopies, unenclosed outdoor structures such as gazebos , refuse receptacles and bird houses . The variance also covers those accessory uses permitted under Section 18 : 02 , paragraphs 8 and 9, of the Yarmouth Zoning By-law. C . Reason Requested: This variance is requested because there is no provision in Section 18 : 07 of the Zoning By-law for structures or uses accessory to the multi-family dwellings specifically permitted by Special Permit under paragraph 4D of said Section . General accessory structures and uses are set forth in Section 18 : 02 of the By-law but only with respect to structures and uses permitted thereunder; under Section 18 : 02 (applicable to the RD- 2 Zoning District) , residential buildings are limited to those for one or two families . D. Land conditions applicable to the Oak Harbour Parcel : The parcel is the largest undeveloped tract of vacant land in united, private ownership on the north side of Rt . 6A within the RD-2 zoning district ; as such the parcel is particularly suited for treatment as a cluster development under the Open Space Village Development section of the By-law. In addition, the main part of the tract has an average elevation of 90 feet which rises gradually toward the northeast corner . The northeast corner itself, however, falls away steeply to the level of Bray Farm Road. Severe problems would be encountered in joining this corner to the rest of the tract . This feature of the land, therefore, causes the parcel as a whole to be best suited for cluster development treatment under which the northeast corner can be allocated to open space thereby eliminating the need for street connection. In the southwest corner of the parcel there is situated a low relatively wet area (1) and also aFAAflight control installation in neither of which areas construction can presently take place . Also, as pointed out in the report of Mr. Kelley to this Board , the configuration of the parcel is not adaptable to a single family street layout . For these additional reasons , cluster development treatment is preferable . 1) See E.E. Kelleyplan dated January 9 , 1975 on file with the Conservation Commission for the Town of Yarmouth. E. Effect of the above land conditions on the Petitioner : As set forth above, and as referred to in the report by Childs , Bertman, Tseckares Associates , Inc . submitted to this Board, these several land conditions particularly affecting this parcel dictate cluster development treatment under Section 18 : 07 of the Yarmouth Zoning By-law. However, as the report of Mr. Regan to this Board points out, this open space option has little practical value without provision in the development for basic accessories and appurtenances such as the garage- storage sheds and other facilities which are the subject of this variance . F . Impact of the requested accessory structures and uses on the neighborhood and on the overall zoning scheme : The garages and outside yard facilities requested in this variance can be granted without the slightest adverse effect on the neighborhood surrounding Oak Harbour because these requested structures and uses are all common to the single family dwellings situated nearby in the neighborhood. The dom"pant character, from a land use point of view, of the area along Rt . etween Yarmouthport and the Dennis town line is residential ; no of the requested accessory structures is in any way inconsistent with is pattern of development and in fact supports it . The request is in addition consistent with zoning in the area inasmuch as it confirms and reinforces the committment of a substantial tract of vacant land in a residence zone to residential use in the manner contemplated by Section 18 : 07 of the zoning by-law. CATEGORY 2 ACCESSORY STRUCTURES AND FEATURES APPURTENANT TO THE PROJECT AS A WHOLE A. Variance within this category : Numbers 2 (i-iv) , 4 , 5 , 6 , 7 , 8 and 12 B. Description of relief requested: These variances cover : _ the proposed Community Complex on Lot 4 the proposed sewage treatment plant on Lot 9 and proposed sewage treatment facilities , an office, laboratories and parking and vehicle storage areas on Lots 1, 3, 6 , 7 , 9 , 10 , 11 , 12 , 17 , 18 , 30 and 34 as shown on the plan accompanying variance request #4 , which plan is entitled "Lots for Sewage Treatment Plan and related facilities" the proposed maintenance buildings and facilities on Lot 13A the proposed Gate House structure partly on Lot 12A and partly within the right of way of Oak Harbour Circle the proposed Garden Club building on Lot 11A general landscape accessory facilities throughout the development open space recreation facilities such as tennis courts and paddle courts on Lot 5 , 17 , 22 , 11A and 32 general golf course accessories such as markers , benches , drinking fountains , wash racks and rain shelters on any golf course which may be constructed a replacement shrub and tree nursery. C . Reason Requested: These variances are requested because there is no provision in Section 18 : 07 of the Zoning By-law for structures or uses accessory to the multi-family dwellings specifically permitted by Special Permit under paragraph 4D of said Section . General accessory structures and uses are set forth in Section 18 : 02 of the By- law but only with respect to structures and uses permitted thereunder; under Section 18 : 02 (applicable to the` RD-2 Zoning District) , residential buildings are limited to those for one or two families . D. Land conditions applicable to the Oak Harbour Parcel : The considerations set forth in paragraph D of Category 1 apply equally to the variances in this classification. In addition, the parcel is situated geographically 2,750 yards from Yarmouthport and 2 . 1 miles from the Yarmouth Inn, the nearest large restaurant now in existence. The site is 2 . 2 miles distant from the nearest public hall, 2 . 1 miles from the nearest post office and . 55 miles from the nearest convenience store. Finally, the configuration of the lot in relation to Rt . 6A issuchthatalltraffictoandfromthedevelopmentwillpassfromRt . 6AoverOakHarbourCircleasfarastheforkinOakHarbourCircle , a condition contributing to the practicality and therefore desirabilityofaninformationandsecuritygatehouse . E. Effect of the above land conditions on the Petitioner : Asindicatedabove, the conditions affecting this parcel dictate clusterdevelopmenttreatmentundertheOpenSpaceVillageSectionoftheBy-law. However, as the report of Mr . Regan to this Board states , no effective use can be made of the open space village by-law in developmentofthesitewithouttheaccessorystructuresandfacilitiesrequestedinvariances #2 (i- iv) , 4, 5, 6, 7, 12 aryl 8 (i , ii and iv) . The prospectthatmarketconditionswillrequireaspecialidentityforthedevelopment in the form of a golf course in order to make the project economicallysoundsimilarlyestablishestheimportanceofvariance $8 (iii) . F . Impact of the requested accessory structures and uses on theneighborhoodandontheoverallzoningscheme : The requested structures and uses will have no adverse effects on the general neighborhood.None will be visable from the nearest public highway (Rt . 6A) exceptforthemaintenancebuildingswhich, to the extent visable, will be required to comply so far as appearance is concerned with the Old KingsHighwayRegionalHistoricDistrictAct . Except as any golf course ,the pro shop and club house may under the provisions of variance #3 be used by non-residents and except as the post-office store may bepatronizedbypersonsotherthanresidentsandguestsofthedevelopment as set forth in variance # 2 (v) , all of the structures requested in this category will exist to complement the residential character of thedevelopment. All outside facilities included within this category,being principally the swimming pool and parking for the swimming pool ,tennis courts , barbeques , bicycle racks , picnic tables , rain shelters , ball fields and the golf course support facilities are consistent with andinsupportofresidentialactivity. Finally all structures and parking facilities requested in this category will be located at least 50 feet from the perimeter of thedevelopmenttherebysecuringaddedprivacytoabuttingneighbors . MoreovernosecondarystreetsexistingprimarilytoserveneighboringhomeownerswillbeopentoorusedbyresidentsofOakHarbour (3) The considerations set forth in paragraph F under category 1 withrespecttotheeffectofthisrequestontheoverallzoningschemeapplywithequalforcetocategory2 . 3) Emergency acc ss for use the Fire Department and otherswillbeprovidedoverCanterburyRoa , a private street constructed toTownofYarmouthCollectorsandards , but the connector streetbetweentheendofCanterburyadandOakHarbourCirclewillnotbpavedandcommonusethereofw' ll further be discouraged by the existenceofsuitablebarriersontheOaHarbourside . ` CATEGORY 3 NON-RESIDENTIAL USES A. Variances within this category: 2 (v) , 3, 14 B. Description of relief requested: These variances cover spa::: 110....44andfacilitiesforsalesofdwellingunitsbythedeveloperintheformofasalesofficeinthecommunitycentercomplexandamodel0unitfordisplaypurposeswithprovisionforaresidentsalesagent . d'"i These variances also cover the operation of the post office-storeTh in the community center complex without the limitation that sales be made only to residents and guests . 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 . C . Reason Requested: These variances are requested because there is no provision either in the RD- 2 zoning district or within Section 18 : 07 of the Zoning By-Law for activities or facilities having business characteristics . Actually, the on-premises sales office and the use of a model unit could be classified in a development this large as activities necessary for the contemplated transfer of the dwelling units toindividualowners, and hence, as accessory uses (dealt with in Category 2) . However, inasmuch as the proposed sales activity will not occur on the site of the particular unit offered for sale, or even within the cluster being sold, but instead in separate buildings , these activities seem to have the attributes of a business use and for this reason are included in this category. D. Land conditions applicable to the Oak Harbour Parcel : The circumstances set forth in paragraph D in Categories 1 and 2 apply toallofthevariancesinthiscategory. E. Effect of the above land conditions on the petitioner: The petitioner respectfully submits that the existence of the several land conditions particularly affecting this parcel mitigates against development of the land for single family homes under the RD- 2 zoningdistrict. If the alternative to an RD- 2 development, namely an open space village, is utilized as the petitioner proposes , substantial portions of the parcel are required to remain open for conservation and recreation purposes . Within the category "Recreational Open Space Activities", golf courses are particularly attractive; retired persons are able to make use of golf ccurses , the equipment involved is small , and on Cape Cod operation during most of the year is possible . The effect on the project of elimination of a possible future golf course is contained in Mr. Regan' s report . The hardship attendant upon operation of the post office-convenience store without the variance requested lies in the added cost and difficultytothedeveloperandinconveniencetofutureownersofarrangingasystem for identification under which a person unable to show himself or herself to be a resident or the guest of a resident would be turned away as a purchaser. Mr. Regan' s report also states that provision for on-site sales facilities is necessary if the cluster development alternative is to represent a practical choice . F . Impact of the requested uses on the neighborhood and on the overall zoning scheme: The requested use of the golf course , club house, and pro shop by non-residents during the construction phase is designed and requested only to assure the same level of patronage of the facility during early years as will occur according to plans when the development is completed. As such, the variance should have no impact at all on the neighborhood; the parking facilities for the community center will be constructed at the same time as the golf course so that no traffic congestion is anticipated. As a practical matter, the nearest present neighbor to the contemplated site of the golf course is approx . 500 feet from the proposed fairway. The use of a separate model unit or cluster for sales and a sales office within the community center structure are both designed to reduce the evidence and impact of the necessary selling activities so far as residents of the development are concerned. In neither case will the structures involved be structures primarily for sales activity with the result that these requested uses should be expected to have no effect whatever on the neighborhood and should, in fact, be totally unnoticed. Use of the post office-convenience store by non-residents of the development should have minimal impact on neighbors , first, by reason of the fact that the post office-store will be situated within the community center, which in turn is to be located on Lot 4 in the middle of the development. Second, it is expected that this variance, if granted, would be conditional upon total avoidance of any advertising of the convenience store outside of the Oak Harbour community itself. Finally, the limitations in size and scale inherent in the classification of the store as a convenience store mitigate against any substantial effect onfood store owners already serving the north side of Yarmouth. To the extent that all of the activities requested in this category, although having business attributes , are purely subordinate to and in support of basic residential character of the development, the petitioner submits that they are thereby consistent with and not in derrogation of thel,applicable Zoning By-Laws . CATEGORY 4 STRUCTURES AND FACILITIES WHICH DO NOT (OR MAY NOT) COMPLY WITH THE ZONING BY-LAW A. Variances within this category: #3 (ii) , 6 , 9, 10 , 11 , and 13 B. Description of relief requested: These variances cover: use of any golf course and. golf course accessory facilities that may be constructed on open space by residents and their guests on a greens fee or monthly or seasonal charge basis . construction of the Gate House building on Lot 12A within the front yard area required under Section 18 : 07 of the By-law. placement of fills on the "housing lots" (4) in excess of 5 feet to accomodate siting and grading of buildings , facilities and landscaping as shown on detailed site plans to be submitted to the Board of Appeals from time to time . construction of dwelling units on the housing lots at a higher ratio of numbers of units to lot area than is permitted in Section 18 : 07-4-C, footnote A, (footnote A requires 8 , 000 square feet of lot area per dwelling unit) provided that sufficient open space in the form of one or more of the future "open space lots" (5) is dedicated as open space prior to commencement of construction on the particular housing lot involved. authorization to submit to the Board of Appeals detailed site plans for each cluster at the time of commencement of each cluster rather than at present as a condition of the grant of the Special Permit which is the subject of the related request before this Board. to allow the developer to limit the use and enjoyment of parts or all of the yard area of the housing lots in the development to the residents or owners of the dwelling units situated thereon or to groups of residents constituting less than the entire resident population of the development. 4) Lots 1 $ 9, 4 , 2 E, 8 , 10A, 11 , 11A, 13, 13A, 14 , 15 , 16 , 18 , 20 , 21 , 23, 24 , 26 , 28 , 29 , 31 , 33, 8A & 35 5) Lots 3, 6 , 10 , 12 , 17, 19 , 22 , 25 , 12A, 27, 9A, 30, 34 , 7 , 11A, 4 , 5 , 32 C . Reasons Requested: 1 . Variance 3 The assessment of golf course use charges upon residents who use the golf course, in the form of greens fees or monthly or seasonal charges, is included as a variance request because the golf course, if built at all , will be situated on land otherwise fulfilling the "open space" requirement of Section 18 : 07 of the zoning by-law. The paragraph in Section 18 : 07 describing open space states that it shall be held for the common use of residents of the Development with maintenance permanentlyassuredbysubjectingeachlottoashareofmaintenanceexpenses . The application of this specification is unclear; to the extent it would prohibit assessments in the form of flexible charges related to the amount of use, a variance is requested. Also, to the extent the language might be said to prohibit any limitation upon use of open space by residents who pay their common assessments , variance relief is requested. 2 . Variance 6 The Gate House on Lot 12A in order to be effective must be situated near enough to the paved part of Oak Harbour Circle for drivers to converse with the Gate House attendant; as such, the structure will not observe the Open Space Village set back provisions (1) and in fact will encroach partly on the right of way of the street itself. 3 . Variance 9 The third variance in this category is requested because Section 18 : 9- 7 of the by-law specifies that no fills exceeding 5 feet may be made without the approval of the Board of Appeals . 4 . Variance 10 The fourth variance in the class deals with one of the two density requirements for multiple family dwellings . Footnote (a) to Section 18: 07-4-C requires that there be 8 , 000 square feet of lot area for each dwelling unit constructed on one of the proposed "housing lots" . This requirement will not be met . 5 . Variance 11 The variance request that submission of detached site plans not be required for a cluster or phase until that phase is about .to be built is inserted because of ambiguity in Section 18 : 10-6 . To the extent that the section which applies to special permits for open space village development could be said to prevent the Board of Appeals from acting upon the petitioner' s related special permit petition without detached site plans first being prepared and submitted, a variance is requested. 1) Under Section 18 : 07-4-C, a minimum front yard of thirty feet is required. 6 . Variance 13 The final variance in this class seeking permission to limit use of yard space on the housing lots to the residents of units on the particular lots or to groups of residents less than the whole is inserted because Section 18 : 07-4-F of the Open Space Village By-Law leaves it unclear whether in a subdivided development, the open space to be held for common use of all residents is that open space needed to meet the 30o requirement, or includes all land which will have buildings , roads or other development on it . To the extent it may be interpreted to mean the latter, a variance is requested. D. LAND CONDITIONS APPLICABLE TO THE OAK HARBOUR PARCEL : The circumstances set forth in paragraph D in Categories 1 and 2 apply to all of the variances in this category. E. EFFECT OF THE ABOVE LAND CONDITIONS ON THE PETITIONER: 1 . Variance 3 This variance proceeds from the most adverse reading ofofSection18 : 07-4-F, namely that it prohibits any restrictions on resident use of required open space land taking the form of a greens fee charged to those who wish to use the golf course . A literal enforcement of this interpretation would require that any and all recreational facilities constructed on open space lots must be maintained and serviced by an equal charge to all unit owners , a result not unacceptable where low upkeep facilities such as bike trails or nature paths are concerned but a serious disadvantage when a golf course is involved. Assessment of golf course upkeep costs upon all owners - golfers and non-golfers alike - would significantly limit the market for units in the development . 2 . Variance 6 Compliance with the front yard requirements of Section 18 : 07 of the By-law so far as the proposed gate house is concerned would cause it to be set back so far from the Oak Harbour Circle to be ineffective as a security checkpoint; the effect of elimination of a security gate house on the economic feasibility of the project is set forth in Mr. Regan' s report. 3 . Variance 9 Section 18 : 9- 7 enforced as written would require the developer to submit detailed site plans showing the elevation of structures and ways and adjacent landscaping first to the Board of Appeals under Sections 18 : 07 and 18 : 10-6 and then to the Board of Selectmen for approval of any fills shown thereon to be in excess of 5 feet . In view of the responsibility placed upon the Board of Appeals for control over and approval of all aspects of the siting and arrangement of buildings within an Open Space Village Development, it is submitted that the added requirement of submission of the same plans to the Board of Selectmen for approval of one particular and relatively minor aspect thereof is unnecessary and constitutes only an added burden on the developer. This is not to say that in cases not involving detailed site plan submissions and review, the requirements for approval of fills by the Board of Selectmen does not make good sense. 4 . Variance 10 A literal enforcement of footnote (a) to Section 18 : 07-4-C requiring 8 , 000 square feet of lot area for each multiple dwelling unit would as stated in Mr. Regan' s report prevent use of the subdivided parcel in its present form which would in turn eliminate the open space village by-law as an alternative for development . 5 . Variance 11 The same considerations set forth in the paragraph above apply to this variance request; a literal enforcement of this by-law provision would eliminate design flexibility and render impractical the proposed plans for open space development of the parcel . 6 . Variance 13 The attractiveness and therefore saleability of dwelling units within a cluster development depends in part on the success of the developer in setting aside for the exclusive use of residents of each building or group of buildings in a cluster exclusive use of adjacent yard areas , sometimes referred to as local common areas or cluster common areas . These make possible for unit owners the same individual or local control of immediate yards that is one of the main characteristics of single lot, single family home ownership . A literal enforcement of Section 18 : 07-4-F could be deemed to eliminate this treatment of local areas to the detriment of future owners and with consequent reduction in the feasibility of the project. F . IMPACT OF THE REQUESTED VARIANCES ON THE NEIGHBORHOOD AND ON THE OVERALL ZONING SCHEME 1 . Variance 3 The effect of this variance which would impose a greens fee or seasonal charge on residents desiring to play golf and which would allow a different arrangement for maintenance of the open space lots involved on the golf course than equal assessments upon all residents should havenoeffectwhateverintheneighborhoodforitwillhavenothingtodo with the visable activity on the land. To the extent that a recreational use of open space will be confirmed and assured under the proposed variance on a maintenance basis fairer to residents who do not wish to use it, the purpose of the Open Space Village will be served. 2 . Variance 6 The Gate House which is the subject of this variance will not be closer than 400 feet to neighbors. nor will it ' s operation be perceived by abutters; its impact on the neighborhood will be minimal . To the extent that the Gate House will make it possible for the developer to control vehicle traffic- into the development, residents will receive added security which cannot help but reinforce the residential character and purpose of the land which is the intent and purpose of the Open Space Village By-law and the underlying RD- 2 district provision. 3 . Variance 9 This request involving the placement of fills on housing lots and on the lots for the Community Center Complex, the Maintenance Area , the Sewage Treatment Plant and the Garden Club concerns almost entirely the interest of the Town in controlling significant allerations of the landscape . This control will be provided by the Board of Appeals so that there should be no injury to the neighborhood and full compliance with the purpose of the By-law 4 . Variance 10 There is a basic density formula for multiple family dwellings in Open Space Village Developments . The formula is set forth in Section 18 : 4-A of the By- law. The application of this formula to the petitioner ' s land works out as set forth in the Formula Calculation attached to this Memorandum. The maximum number of dwelling units permitted under the formula would be 844 . Petitioner ' s request for 750 units , falls well within this upper limit . There is an additional density requirement that operates on an interim basis . This requirement operates only in cases of subdivided Open Space Village parcels and it imposes limits which are more stringent than the formula test above only where a subdivided Open Space Village Development is proposed to be built in stages . In this particular situation, it imposes an ongoing requirement that each housing lot contain at least 8 ,000 square feet of land area per dwelling unit . Petitioner requests that this requirement be waived by variance , but Petitioner proposes that the intent and purpose of the requirement be met fully by the dedication of sufficient open space lots as each stage proceeds to meet and exceed the 8 , 000 square foot test . The operation of this proposed condition in a typical development sequence is set forth in the attached chart so named. Since the addition of this proposed condition to the variance will result in full compliance with the applicable By-law section on an ongoing basis , no injury whatever will be caused to any abutters and the intent and purpose of the by-law will be carried out. 5 . Variance 11 The considerations set forth in paragraph 3 of this section apply equally to this variance which seeks a delay in submission of detailed site plans . No departure from the standards of the by-law is sought ; no reduction in construction or site planning standards for each cluster will result. 6. Variance 13 This variance seeks only to permit the developer to set aside local yard areas on each housing lot for the exclusive use of the residents of that dwelling or cluster of dwellings . The by-law may be deemed to bar such local dominion and instead to require that every resident of Oak Harbour have free access to every square foot of land not designated for buildings , parking, streets or recreational structures . As such the matter is entirely one of internal rights and restrictions ; it does not have anything to do with people outside the development; neighbors will see no difference in the day to day running of Oak Harbour no matter whether this variance is granted or not. As to the intent of the Section 18 : 07-4-F of the By-law it is submitted that the basic purpose of the entire section is to ensure that the required open space constituting at least 30% of the total land area be made available for the use and enjoyment of all residents (which Oak Harbour provides) ; that it was not intended and is not desirable that residents have no yard areas for local use and enjoyment and that in a subdivided development, the yard areas within each housing lot are within the excluded "land designated for other development" and are not open space in the sense of Section 18 : 07-4-F at all . As such, no departure from the intent of the by-law will occur . CONCLUSION The Petitioner respectfully submits that the foregoing establishesthefollowing: A.. The •existence of conditions especially affected the subject parcel which do not affect generally the zoning districtinwhichitislocated. It is further submitted that the conditions hereinbefore described are physical conditions associated with and uniquely affected the Oak Harbour parcel,all as set forth in the cases of Rodenstein V. Board of AppealsofBoston, Dion v. Board of Appeals of Waltham and Josephs v.Board of Appeals of Brookline, 1972 Advance Sheets 1405 . B. That owing to the physical conditions described herein,a literal enforcement of the zoning by-law would involve substantialhardshiptothePetitioner; this hardship in most instancestakestheformofeliminationfromapracticalstandpointof any opportunity to use the cluster development alternativescontainedinSection18 : 07 of the by-law. C . That the relief requested may be granted without substantialdetrimenttothepublicgoodandwithoutderrogatingfromtheintentandpurposeofthezoningby-law. For the foregoing reasons your Petitioner respectfully urges andsubmitsthatthispetitionforvarianesbegranted. OAK RBOR ASSOCIA ES By TOWN OF YARMOUTH BOARD OF APPEALS OWNERS: Yarmouth Properties , Inc . , Yarmouth, Mass , and Aaron G. - Weintraub , Trustee of MVI Nominee Realty Trust ADDRESS: c/o Peabody, Brown , Rowley ' Story, 1 Boston Place Boston, MA 02108 PETITIONER: NAME: Oak Harbour Associates ADDRESS: c/o Scott Jordan, 477 Main Street, Yarmouthport , Mass . BOARD OF APPEALS, YARMOUTH, MASS . . This petition when completed and signed must be filed with the Board of Selectmen, Yarmouth, Massachusetts , along with the fee of $20 . 00 DATE : *t 32) PAID: 1. I , We , hereby request the action checked below: 1 . A special permit under Section 18 . 07 of the Yarmouth Zoning By-Law To allow: an Open Space Village Development on approximately 194 acres of land situated on Rt. 6A in Yarmouth between Rt. 6A and Bray Farm Road which Open Space Village Development will con- sist of residential buildings each containing no more than 24 dwelling units and together containing no more than 750 dwelling units ; 83 garage- -storage sheds ; together with a) Community Center complex containing a clubhouse- -pro shop , a dining room, lounge , kitchen , a community hall , a health club, 10 rooms for guests , a combined post office- -village store , a management office , a sales office , swimming pools and other space and facilities for recreation; b) -A gatehouse ; c) A Garden Club building ; d) A sewage treatment plant and facilities ; e) Maintenance facilities ; and f) Related accessory features and facilities for the recrea- tion and enjoyment_ of residents of the development , including tennis courts , swimming '-pool$ , walking and bicycle paths , gardens , outdoor cooking areas , rain shelters , ball fields , a golf course , and a look out platform. This development to be constructed in successive stages with building permits issuing from time to time for each stage upon the commencement thereof; this development is further shown on the applicable overall development plan submitted with this application ; the description of the form of organization proposed for the ownership and maintenance- of common open space and a description of the covenants and easements proposed for the use of land and structure together with a proposed development schedule are attached hereto. The development will be known as Oak Harbour and will be organized as one or more condominiums. The premises are situated within the RD-2 zoning district and consist of the following parcels as shown on the Yarmouth Assessor' s Plans : (see list p.ttacb,ed1 2 . Reason for the Board of Appeals action as checked below: 1 . 1. 2 . 3. 2 . Approval of Board of Appeals , or Special Permit requested under the following section of Zoning By-Law: 1 . Section 18 . 07 2 . Names and addresses of abutting property owners , and those persons deemed affected by this application. (At least three .) see list attached Signed Respectfully submitted, Petitioner Assented to : Owner Owner 2- D DEVELOPMENT SCHEDULE The Overall Development Plan depicts residential buildings on • certain lots (the housing lots) containing altogether 750 dwelling units . Plans call for completion of the project in eight years Market forces and conditions will determine not only the rate of construction of the 750 units but also the order in which housing lots are used. No projection either of pace or sequence could be entirely accurate ; therefore no definitive schedule for development time or order is submitted with this request . However some forecasts have been made upon which tentative plans have been prepared. As to timing , it is anticipated that construction of housing units will proceed as follows : Plans call for the staged construction of 750 units according to the following schedule : Year 1 $ 2 100 Units Year 3 100 Units Year 4 100 Units Year 5 125 Units Year 6 125 Units Year 7 100-Units Year 8 100. Units Second, a clockwise progression of construction around Oak Harbour Circle is planned, starting with some of the Community Center facilities on Lot 4 , eight model units on Lot 8-A, and construction of the first units for occupancy on Lot 33. Based on the foregoing time and sequence estimates , it is possible to project the kind of development schedule that may apply to Oak Harbour. Sequential Lot Development - Clock Wise Year Lots Total Units 1 f 2 33-13 87, 3 14-15- 31 95 4 16-18 122 5 29-28-20 109 6 23-24 92 7 26$10A-2&8 103 8 8A$35-21 142 750 A. Landowners Interest in the Land to be Developed 1. Present Ownership Lots 22 through 26 (included with Lot 12A on Plan 2) shown separately on Land Court Plan 35454-A recorded with the Barnstable Registry District of the Land Court in Book 452 , Page 82 , are owned by Yarmouth Properties , Inc . , the balance of the land within the development is owned by Aaron G. Weintraub, Trustee of M.V. I . Nominee Realty Trust. 2 . Proposed Future Ownership a) It is presently intended that the open space village hereinafter referred to as the "Project") will be made up of a number of completely self-governing condominium sub-villages (hereinafter "Condominium Sub-Village") . Each unit owner in a Condominium Sub-Village will own his condominium unit and will have an undivided interest in all of the common areas associated with the Condominium Sub-Village as provided in Chap. 183A of the General Laws of Massachusetts (hereinafter the "Act" ) . An organization: of unit owners (hereinafter "Unit Owners Association") for each Condominium Sub-Village shall be established for the management and regulation of such Condominium Sub-Village as provided in the Act. b) It is presently intended that, within each Condominium Sub- Village, there will be different types of areas . The area within the unit will be the sole and exclusive private pro- perty of the owner or owners of that unit. Certain limited local common areas , although owned by all unit owners of that Condominium Sub-Village, will be created for the use of a limited number of unit owners for a limited purpose . 1_...., dia tely next to the wi na f - Sub-Village. c) While it is presently intended that some or all of the lots designated for housing on the Plan entitled "Overall Development Plan I" submitted to the Board of Appeals of the Town of Yarmouth (hereinafter the "Plan" ) may be phased with other lots into a single Condominium Sub- Village, it is possible that each lot so designated may be a separate Condominium Sub-Village . B. Form of Organization Proposed for Ownership and Maintenance of the Common Open Areas The Plan depicts several lots as open space (hereinafter "Open Space Areas" ) to comply with the requirements of the Open Space Village Development By-Laws of the Town of Yarmouth. With the possible exception of Lot 11 on the Plan, no housing is intended to be constructed on any Open Space Area . Deed restrictions limiting the use for open space purposes will be imposed upon each Open Space Area as it is dedicated to the Project in accordance with the phas- ing schedule of development and rights will be granted to all unit owners of the Project so as to ensure to each of them the right to use the Open Space Areas . In addition, the burden of sharing ex- penses necessary for the maintenance of the Open Space Areas will be imposed upon the unit owners of the Project. A trust with a board of trustees or similar entity (hereinafter the "Land Trust") will be created to manage the Open Space Areas although the right to convey any or all of the Open Space Areas to one or more of the individual Condominium Sub-Villages (to be included as part of the common area of such Condominium Sub-Villages) shall be reserved; but, in any event, the Land Trust shall have the right to control through reasonable rules and regulation the use of any or all of the Open Space Areas . The beneficiaries of the Land Trust will be the Unit Owners Association of each Condominium Sub-Village and , theretore, acting through its Unit Owners Association , would choose a repre- sentative with voting power to elect the trustees of the Land Trust. During construction and development of the Project, the Land Trust shall be controlled by the Developer . An alternative to this plan, as the Condominium Sub-Villages became more numerous , would be to provide for the election of the Land Trustees by popular vote of the unit owners as a whole. In the event that a golf course is constructed and in order to properly operate and maintain certain facilities and activities , such as tennis , gardening, etc . , certain limitations will be placed on some or all of the Open Space Areas . If a golf course is con- structed, the ownership of the Open Space Areas affected will remain unchanged but the owner will enter into certain agreements for the proper management and supervision of , for example, the golf course. Such agreement would relieve the Land Trustees of the burdens of the day-to-day operation of the golf course and certain other facilities without relinquishing control over broad policy matters which would reside in said Trustees at all times . In summary, all Open Space Areas will be controlled by the Land Trust as they are committed to the phased development of the Project . The Village Common Areas The village common areas (hereinafter the "Village Common Areas" ) are represented by Lots 5 and 32 (for which tennis courts are planned) , Lot 4 (for which the Community Center Complex is planned) and Lot 11A (for which a Garden Club and Greenhouse is planned) . On each of these Lots, Structures will be necessary . Ultimately , the maintenance buildings and facilities planned for Lot 13A will be a Village Common Area . Restrictions as to use will be imposed upon each Village Common Area as it is committed to the phased deve- lopment and rights will be granted to the unit owners of the Project so as to ensure the use of the 4- Village Common Areas although the right to convey any or all of the Village Common Areas to one or more of the individual Condominium Sub-Villages (to be included as part of the common area of such Condominium Sub-Villages) shall be reserved; but, in any event, the Village Trustees shall have the right to manage the Village Common Areas and the unit owners will have equal rights in the use thereof . Said Trustees will also have charge of the roads and other common facilities which are not Open Space Areas and which are outside the individual Condominium Sub-Villages . The beneficiaries of the Village Trust will be% the Unit Owners Associations of each Condomin- ium Sub-Village, and, therefore, indirectly, the unit owners of each Condominium Sub-Village. Each local Condominium Sub-Village acting through its Unit Owners Association would choose a representative with voting power to elect the trustees of the Village Trust. During construction and development of the Project the Village Trust will be controlled by the Developer . The proper and efficient use and operation of these Village Common Areas will require more time than will - be required by, the Open Space Areas and there may be more day-to-day problems . The Sewage Facility The ownership and control arrangements of the Sewage Facility will have to meet the requirements of the Department of Public Health. In any event, the use of the sewage treatment plant will be available to all unit owners and the expenses of the Sewage Facility will be borne.• by such unit owners . Interim Control During the period of construction, it will be necessary for the developer to sustain and manage the Project. This description of the future form of organization is applicable to the completed village. During sr; arc' e Project, the D- C . Substance of Covenants , Restrictions and Easements to be Imposed During the construction of the Project, the applicant (or any assignee or successor to the rights of the applicant) shall reserve appropriate easements and rights with regard to all parcels in the Project to allow it to continue in an orderly fashion with the anti- cipated construction activity. As the Project is developed and as parcels are committed to the phased development, deed rights will be granted to each unit owner to provide for the use of the Open Space Areas in common with other unit owners in accordance with rules and regulations adopted for the regulation of the Open Space Areas . Similar deed rights will be granted to each unit owner for the use of Village Common Areas . Deed restrictions will be imposed upon all Open Space Areas and Village Common Areas which will restrict the use of such Areas for the purposes established. The obligation shall be imposed by covenant upon each unit owner to pay his share of ex- penses incurred in the maintenance of common facilities through the Unit Owners Association. An easement will be granted so that all unit owners can use utilities and other services necessary or appropriate for their use in this Open Space Village Development. In addition and pursuant to the Open Space Village Development By-Laws of the Town of Yarmouth, a restriction running in favor of the Town of Yarmouth will be imposed on all Open Space Areas by the terms of which no use inconsistent with the Open Space concept des- cribed in this application will be permitted . SUMMARY OF A, B AND C ABOVE While the above expresses the present intent with regard to the organization of the future ownership of the Project, it is contemplated that certain changes may become necessary or appropriate for the proper development, financirg and construction of the Project and the sale of t-ho individual units . The applicant reserves the right to make any and b- Areas as dedicated to the phased deve- lopment of the Project in a manner which will preserve the use of Open Space Areas for open space or recreational purposes . 2. Rights to use any and all Open Space Areas and Village Common Areas dedicated to the phased development of the Project will be granted to all unit owners . 3 . Obligations will be imposed upon all unit owners requiring each unit owner to pay his determined share of expenses in- curred in the maintenance of Open Space Areas and Village Common Areas . TOWN OF YARMOUTH BOARD OF APPEALS OWNERS: Yarmouth Properties , Inc . , Yarmouth , Mass , and Aaron G. Weintraub , Trustee of MVI Nominee Realty Trust ADDRESS: c/o Peabody, Brown, Rowley & Story, 1 Boston Place Boston, MA 02108 PETITIONER: NAME : Oak Harbour Associates ADDRESS: c/o Scott Jordan, 477 Main Street , Yarmouthport , Mass . BOARD OF APPEALS, YARMOUTH, MASS . _ This petition when completed and signed must be filed with the Board ofSelectmen, Yarmouth, Massachusetts , along with the fee of $20 . 00 DATE : 23 /115 PAID: . 6L J. 1. I , We , hereby request the action checked below: - -- 1 . A special permit under Section 18. 07 of the Yarmouth ZoningBy-Law To allow: an Open Space Village Development on approximately194acresoflandsituatedonRt. 6A in Yarmouth between Rt . 6A and Bray Farm Road which Open Space Village Development will con- sist of residential buildings each containing no more than 24 dwelling units and together containing no more than 7S0 dwellingunits ; 83 garage- -storage sheds ; together with a) Community Center complex containing -a clubhouse--pro shop,a dining room, lounge , kitchen, a -community hall , a healthclub, 10 rooms for guests , a combined post office--village store , a management office , a sales office , swimming poolsandotherspaceandfacilitiesforrecreation ; b) A gatehouse ; c) A Garden Club building ; d) A sewage treatment plant and facilities ; e) Maintenance facilities ; and f) Related accessory features and facilities for the recrea-tion and enjoyment of residents of the development , includingtenniscourts , swIling pools , walking and bicycle paths ,gardens , outdoor cooking areas , rain shelters, bal•1 fields ,a golf course, and a look out platform.y• This development to be constructed in successive stages withbuildingpermitsissuingfromtimetotimeforeachstageupon the commencement thereof ; this development is further shown on the applicable overall development plan submitted with this ' ` * application; the description of the form of organization proposed for the ownership and maintenance-of common open space and a description of the covenants and easements proposed for the use of land and structure together with a proposed development schedule are attached hereto. The development will be known as Oak Harbour and will be organized as one or more condominiums . The premises. are situated within the RD-2 zoning district and consist of the following parcels as shown on the Yarmouth Assessor' s Plans : CSee list attachedi 2 . Reason for the Board of Appeals action as checked below: 1 . 1 . 2 . 3. 2 . Approval of Board of Appeals , or Special Permit requested under the following section of Zoning By-Law: 1 . Section 18 .07 2 . Names and addresses of abutting property owners , and those persons deemed affected by this application. (At least three . ) see list attached c'A t ATE5 Signedtl ;\( Respectfully s bmitted, Petitioner Assented to : tzkicgTfe5474C, Owner Lk)) Owner Air ' i 75 A1,4 . r r"3 2- I r CALCULATION TO DETERMINE MAXI.UM NUTBER OF UNITS The formula for calculating the maximum number of units which can be built in an Open Space Village Development appears on Pg. 14 of the Yarmouth Zoning Bylaw, as follows: Requirements. An Open Space Village Development must conform to the following: A. Number of Dwelling Units 1) The maximum number of dwelling. units (living quarters for a single-family plus not more than 3 boarders or lodgers, with cooking,living, sanitary and sleeping facilities independent of any other unit, or quarters for not more than four persons in a lodging houseordormitory) allowed in an Open Space Village Development shallequalthe "Applicable Land Area" divided by the minimum lot area requirements for a single-family dwelling in that district, multi-plied by the following incentive factors; then rounded to the near- est whole number: Applicable Land Area Incentive Factor Less than 20 acres 1.00 plus M/T20-5n acres 1.1 + .9 x M/T 50-75 acres 1.2 + .8 x MIT 75 Vlus acres 1.3 + .7 x MIT Where "M" is the number of dwelling units proposed to be in multi-family structures and "T" is the total mumber of dwellingunitsproposed. 2) "Applicable Land Area" shall be determined by a registered land sur- veyor, and equals the total area 'encompassed by the Overall Develop-ment Plan minus land designated on the plan for uses not primarily• servicing residents of the development. Not more than 10 percent of the Applicable Land Area shall be land subject to either inland or coastal wetland regulations (Sec. 40 and 40A, Ch. 131,G.L.) or land otherwise prohibited from development by local bylaw or regu-lation." The total land area of Oak Harbour, as surveyed by Edward E. Kelley, a Registered Land Surveyor, is 193.67 acres. All of the land in this subject parcel is considered as "Applicable Land Area" under the Open Space Village Development Bylaw. (Only 5.1 acres of land, or 2.67 of the Applicable Land Area, is subject to wetland regulations. See E.I.R. , Sec. VII, Yarmouth Conservation Commission - Pgs. 85-89) The formula Is as follows: Total Area: 193.67 acres or 8,436,455 square feetMinimumLotAreaRequirement: Incentive Factor: 20.n00 square feet Applicable Land Area @ 75 plus acres = ] .3 + .7 x `1/TM: Number of dwelling units proposed to lie in multi-family structuresT: Total number of dwelling units All proposed dwelling units will be in multi-family structures; therefore, MIT a 1 07; or 1 100% 8,436.455 Sq.Ft. 421.8227 x (1.3 + .7) (1) = 421.8227 x 2 = 843.620,000 Sq.Ft. Rounded to: 844 Units Summary The total number of dwelling units which can be built at Oak Harbour is 844 units CO N oN D. N Os I-' + 0% Fes. A (NJ 0 O02 u0 m a 1-. V! A W W Q• Hr• -tW 9U O MO N a e.,. ._ I-. PI 0 El la O A O CO VI A A W IJI ha. O V N V W W N W to W M M to A O N N O V CO O N W F•+CO C G H Prri-I-. to µHM nd1v O kC 03 HWAWWAAN •N A N rN ' N N O O O O O's Os O O N A 0 O lil \ O Cr, .L O Cr,O+ O A LA 9O0000OOoOO000000000000000000000m a 72 C I H G 71 l li i 4 x14:O N W Oa W W W N W Ns CO ' V In A W CO + H C It. F-' A Co A A ON F+ V W A N W MNAO !•+ Os N F+ AW F+ tri La W so IA N In Os ON N F-' W lJr 1/40 T G7 < _ N M O CO A CO 1.- Oh O In J\ N N y H 1 td$ . Q .O N 4 A 0 re 70 Ist1 1' N 01 . M - N F+ CO lA O N CO W V O OD a..0..., nh~•, J g nl A W b O N N N U1 'O W V O In O A V f.a A W O O H HWCO V a0 O In V A W W V %0 Oa AVV . p N OM N CA A a In O 000 ra'r ' O'! Iz 0+ O µM F W J v .7 1 O O H CJ N d ca H•1 Al rs X n MI M M M OS 7 O X XnOOOOnn coco 1 0r d Ds•q m m 0 OOo N fJ rr f: r'+ LfDinx [--, Os N O I--. F+•+ + + • rr En 01 W H p W rt IT0n00 0 0 A 2. a Co EA .- 0 N 1,3 V rt W V O W U1 n 3.. ITI N I N In V b 0 O CO In J- Cr. 1.4 ' H [r• OVNNIIasIACO , CD W N N 2 •- 0%1-. ,O N F-' N W W A W O) W O FV+ A N 0 y 1-4 rp97O T Os at) V A W M 0 Co 0 N I-. W A V O O N COCO O V Oa CD A OWA CO N o O% La In 1+ p 17 1,3 En 101 A 7Y.NWN OAm Os AbNONW O ON CO A FJ t*colJv I CO N Asa lb.) Os a 0IC0' IV to to to to H H La H H H WHWCoOrLaO07 '0 Co as H to .P. W La CA0LA L..., 0 . LA • 0rr0{ con a H o rO.0 O WO In .0- A In In to W V In W A) W In La ID O O. DO O.- CD Fa CD N to CD V OD CD N In H CO A z Ed H C H C+7 03 I,- CHAP K n CD m CO v Z0 HOH Co W r W W r t4- N N In r N N N r N H r 'dWOVinNHOHInVO10NrN .0-4N N 0 0' O 0+ 0+ 0' O 0' A O 05 O .OF CA > ON x1 CnOOOCDOCDCDHOCDOOO0CDCDOOOCDCDCDOyts1OOOOOOOOOOOOOOOOOCoC' 7y CI o VI CAO C 0 CrCCZHH C"'0 rn H H- • CCriH Vf H N F...) H >. C-1 H N N H H W N H H H N H HV0 '0 V A) In In In A) W In 0 v In .C-- La Co CO Z Ctrl OSONWO\ W W H r Co r L 0T . V W r N CO > J' N r O H ON N H r CO In N CO In Os s0 N 1. CI rs2InC' In N N In 0` 05 IV H U.) In kO CT 0 < 2%V IV H La OW H C) Co r CO r 0' C) In -N N N 9 H t'' 0 Fri0 1-3 V3 VI Co OCDO En co "1 •n Fa H H H H H H H Al H H I-, N CD .0 •y [ A) H co In CT as r O H N H H V VD Co CO ' g 7 is.) co H V In '0 N N N In I 'CI y C-: r W '0 CO La CO Us C) r V H r La CD 00 r0-I O i H W co a0 V V 0 In v r La W V '0 CT r O 7 C *7 >'0 O N O, N 0' r O In O' co n rt Z Q' CoI '7', Lc 0v 0 •rI O CD H 0 O. CA 00 C) r)HCl PI H 777 0 i 0 X X X X X m X 0nIDn0000D] 0 rr x N zIDCoIDIDfDIDID CD COcoa) co al al co co F m H w Cn m I+' O + N r+' f+-' t+' rt r K ramI yO0n00000AHrnCo a, La r 0 + VI C) W rt n rt - rt rt rt W V H 0 W co0 O H VI V rt a r 0 N N 0' W 3.0 N N H H W In V N C• I-. r710 0ONNaInVCOOOOInrI" HNINIIIIIasIIrCr, N H Z H HVNKa O N In U V N W CoO W O Co Co Z CO r w v r'' C) H H r v .O 0 4.vsc3 r CA O r 0' W In C•" in V WOOCoONHWr 0 N 0 O CO O In W 0, V O O W r H CoV Co N 50 O W In H O VI r r OnrNV . ` W 05 W t H N N Co Co 01 0 N O H In N W N O O, CO Co CIrHN Al v O l'' C0 9ICA7s] TOWN OF YARMOUTH BOARD OF APPEALS OWNtERS : NAME: Yarmouth Properties Inc. , Yarmouth, Mass APPEALS # - Aaron G . Weintraub, Trustee of MVI Nominee Realty Trust and ADDRESS: c/o Peabody, Brown, Rowley & Storey, 1 Boston Place ,Boston, MA 02108 PETITIONER: NAME: Oak Harbor Associates 477 Main Street ADDRESS: Yarmouthport , Mass . 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 $20.00. DATE: 6,y,,,A P ;::7 , l j PAID: ,fir i>, Xk:XX ),:X )tXksi XVxXX PXft9 D IXX9PX;t?4COPcinOMX)F €RXIMXTVX.R RI( XlxcxxXl oteVx ftrx xiXx ' ` xlif. ?Q- wX u itI f.0 xXpfi :I5 X X X X X X 300=M XM XWIMX 2. I, We, hereby request the action checked below: li 4 Variancesfrom requirements of Yarmouth Zoning By-Law. XXYX 4(4-R4 xaegrtXX PRnXX C4:t3RxE."xpfx -17aexolRK To allow: offa, /5 7_5- See 1 through 14 attached 1' 2 3. Reason for the Board of Appeals action as checked below: 1. Contrary to Zoning by-laws as follows: 1. See 1 through 14 attached 2. 3. XXX? xXA4X X4X9g(XEtEx xxxsic/x nxixl:AlxRp,:e4-txxcewxXAxixIgnxIT kXX ISX X1134 a0AXXXtAD X '1( XIX XN Names and addresses of abutting property owners, and those persons deemed affected by this application. (At least three.)i c, Assgnted Zed h ,-ie j f,ti J~ Tr a, .Nc, f t Lt f i it`s Sign 1 Tr p.1 Respectfully submit d 1"a Petitioner VARIANCE NUMBER 1 1. Structures and uses accessory to the multi-family dwellingsrhicharethesubjectoftherelatedrequestforanOpenSpaceVillage pecial Permit under Section 18 : 07 of the Yarmouth Zoning By-Law,including i) specifically 83 garage-storage sheds , each for up to 4carsandhavingagrounddimensionnottoexceed30feetby60feetandamaximumheightof20feet, to be situated on Lots #2 , 8 , 11 , 13 ,14, 15 , 16 , 18 , 20, 21 , 23, 24 , 26, 28 , 29, 31 , 33, 35, 8A, l0A asshownontheattachedPlanAbeingaplanentitled "Subdivision PlanofLandinYarmouth, Massachusetts of Oak Harbour, February 14 , - 1975byEdwardE. Kelley, Reg. Land Surveyor" for use by residents of the dwellings to be constructed thereon and to be sited with respect to such dwellings approximately as shown on attached Plan B entitledTypicalCluster, Oak Harbour". ii) generally those structures and facilities such as patios , decks , fireplaces , canopies , gazebos , refuse receptacles and bird houses as are commonly regarded as reasonable accessories to residential structures in the Town __of Yarmouth iii) those uses constituting accessory uses under Section 18 : 02 , paragraphs 8 and 9 of the Yarmouth Zoning By-Law. The foregoing are requested because there is no provision in Section 18 : 07 for structures or uses accessory to the multi-family dwellings requested in the related Special Permit request . la i.Jn xlC fa gia> t-'? ` - p V< vW= 23Q ti`'.oD teVri tvc oC `Ao itCc 2E ItzyE`o c; wa oN. Y- a t->I. n_ 75_ T 2_-itp04C0 ° Y E ` $ tc N - 2 « minoc4` Ecom woocEpcoEoc 4d0oF 3 - Q F =C Q. a pa n`EH a j Q WLL FQLLa tQ=« a cCVC«.sU. S. O C C" eD" C.D- oU N io sdo VNc^ cyu.. D> EO m Ycc¢ T Q SO DOo, L~ oOu' aaoC D- roOV aa Cw> O> O- O««_` O« Co-oD0i fo-uEI nia>~Ly1Eo0 NOuO VNDo"-qc_ 0 Ca>D r2nO n.- d.' Qv^.C; c'.- U. Y0O nr'Pte YaQa.Yn C-7<O e6` 2c c o=-` c tUW Z aOc >Q Oa d GO O0412 WJ4 Xa0piNWmC XZ>ZO N=UVV LO = aa E a ,P37a F > Onaic ovt-W2W CC O OcO,rNa QaYOQCEEmNUouOHWmE0LEaEOjELy«OO_>daEO-DyQQ Elio Y -ao 0 y« -c- t cJZOOO-c E t'tur= ao e-c = o , - o5a _ o oQiv- a µ0^ ''^N_ u>coccgg,x0mz ao Ouo= uoa24t?t= .%f . 01gqF=vQCnoSt .z o 5 Y n s0Zn4-4 `co =QaW v cE2 cac ao v Doc.co 0 « a a c 2©ac0aUCo n00_ - a .o co0.1 . 0 . '0nac1 cacoc.o do 'otoCc,r , av YN fbr3X3OQQti9o-.pCEVb;CVv-C®E^-$C I^n- O«« O=C Ofh >nDLO=CLOQO- DPa - ti«-Ot+U l00>p9 >e$ p 1. $t$Zuo ceOf 4 OAK HARBOUR VARIANCE NUMBER 2 2 . Community center structures , facilities and uses on Lot 4 as shown on attached Plot Plan C and the use thereof as follows : i) Community Center complex consisting of one or more linked substructures and having an overall ground dimension not to exceed 10, 000 square feet , and a maximum height of 35 feet, said building providing space and facilities for (a) a clubhouse and pro shop, (b) a dining room, lounge and kitchen, c) a community hall , (d) a health club, (e) 10 rooms for guestsofresidentsofthedevelopment, (f) a combined post office - village store, (g) rooms for crafts such as art, ceramics and decorating, (h) an art gallery-library, (i) an office for management, j ) a sales office, (k) swimming pool dressing rooms, and (1) recreation/game rooms . ii) two swimming pools . iii) a paved parking -area for not more than 100 cars . iv) outdoor terraces and decks. v) use of the sales office by the developer while constructionanddevelopersalesofdwellingunitsareinprogress , use of the postoffice - store without the necessity that patrons identify themselvesasresidentsorguestsofresidents, and limited use of the clubhouseandproshopbynonresidentsinconnectionwithvariancerequest3,if granted, together with use of Oak Harbour Circle for access thereto Except as provided in paragraph (v) above, the foregoing facilities arefortheuseandenjoymentofresidentsoftheDevelopmentandtheirguests . Items (i) through (iv) above are requested because there -is no provisioninSection18 : 07 for structures or uses accessory to the multiple familydwellingsrequestedintherelatedSpecialPermitrequest ; item (v) isrequestedbecausethereisnoprovisioninanyResidenceDistrictzone forbusinessuseofstructuresorfacilities . OAK HARBOUR VARIANCE NUMBER 3 3. Use of such golf course facilities as may be constructed on the open space lots" referred to in variance request 10 and of the clubhouseandproshopreferredtoinvariancerequest2andofthegolfcourse accessory facilities referred to in variance request 8 as follows : i) to permit limited use of the golf course, golf course accessoryfacilities, and clubhouse - pro shop by the public on payment of greensfeesorothermonthlyorseasonalfeesfor8yearsoruntil750unitshavebeencompletedandoccupiedwhichevershallfirstoccur, suchusetobejointwithresidentsoftheOakHarbourDevelopmentandtheirguests. ii) to permit use of the golf course and golf course accessoryfacilitiesbyresidentsofthedevelopmentandtheirguestsonagreensfeebasisoruponpaymentofamonthlyorseasonalgolfcourseusefee;either fee may be in addition to or in lieu of common charges to allresidents . The foregoing are requested because as to (i) there is no provision inthezoningby-law for business use of land or facilities and because as toii) it is provided in Section 18: 07-4-F that "open space" shall be held forcommonuseoftheresidentsoftheDevelopmentwithmaintenancepermanentlyassuredthrough (arrangements) through which each lot issubject to a chargeforashareofmaintenanceexpenses ; it is unclear whether use of open spacecanberestrictedinwayproposedtothoseresidentswhopayanadditionalgreensfee" and whether such arrangements for maintenance can include chargespaidonlybyusers. OAK HARBOUR VARIANCE NUMBER 4 4 . Sewage Treatment Plant as shown on attached Plot Plan D and relatedfacilitiesonLots1, 3, 6 7 9 10 11 12 , 17, 18, 30 and 34 as shown onattachedPlanEentitled^" including thefollowing: i,(-0 T-5 c Imi.crHZ ri-ANT Ar i) Wastewater treatment complex providing extended aerationandsecondarytreatmentanddesignedforaflowof150, 000 gallonsperday; components to include comminutur aerated equalization tank,aeration tanks, clarifier units , effluent polishing filters , chlorinecontactchambersandsludgedewateringequipment . ii) Buildings to house the above as follows; all on Lot 9 a) Comminutor and Flow Measurement Building not to exceed400squarefeetinareaand25feetinheight . b) Clarifier Building not to exceed 4,000 sq. feet in area and 25 feet in height. c) Chlorine Equipment Building not to exceed -400 square feet in area and 25 feet in height. d) Polishing Filter Building not to exceed 2,500 sq. feet in area and 25 feet in height. The final arrangement and configuration of the above structures and the design of the equipment therein will be subject to approval of the Yarmouth Board of Health and the Nassachusettts-Dept. of Public Health. All tanks referred to in (i) above to be no more than 4 feet abovefinalfinishedgrade. iii) Office building containing office, lavatory and -shower, -- --control panel and laboratory for test equipment, situated on Lot 9andhavingamaximumgroundareaof7, 200 square feet and not to exceed 25 feet in height . iv) Paved parking area on Lot 9 for not more than 6 cars . v) Graveled areas on Lots 1 and 9 for parking and storage ofboats, trailers and recreational vehicles . vi) Trunk line network as shown on Plan E. The foregoing are designed and necessary to serve residents of the OakHarbourDevelopmentandarerequestedbecausethereisnoprovisioninSection18 : 07 for structures or uses accessory to the multi-family dwellingsrequestedintherelatedSpecialPermitrequest. OAK HARBOUR VARIANCE NUMBER 5 Maintenance buildings and facilities on Lot 13-A as shown onattachedPlotPlanFasfollows : i) An unheated open storage building having a ground dimensionnottoexceed1 , 000 square feet and a maximum height of 25 feet . ii) Two 4-bay open shed-type buildings having a ground dimensionnottoexceed2 , 300 square feet and a maximum height of 25 feet. iii) A heated garage building with 3 vehicle repair bays andcontainingworkareas , one room office , day room, lavatory andshowersformaintenancestaff, and having a ground dimension nottoexceed2 , 300 square feet and a maximum height of 25 feet . iv) Lath house for temporary storage of plants having aground -dimension not to exceed 600 square feet and a maximum heightof15feet . v) Fuel storage with delivery pump for service of maintenancevehiclesonlyandnotforresale . vi) Outdoor storage for loam, mulch , gravel , fertilizerandothercommonlandscapingmaterials . vii) Work area having a maximum paved surface of 200x80 feet for outdoor parking and storage of service vehicles and equipment . The foregoing are intended solely for use in servicing the residentsoftheOpenSpaceVillageandwillnotbeavailabletothegeneralpublic ;they are requested because there is no provision in Section 18 : 07 forstructuresorusesaccessorytothemulti-family dwellings requested intherelatedSpecialPermitrequest . OAK HARBOUR VARIANCE NUMBER 6 6 . Gatehouse structure partly on Lot 12A and partly within the right of way of Oak Harbour Circle as shown on attached Plot Plan G having a grounddimensionnottoexceed300squarefeetandamaximumheightof20feet ; this structure to include a lavatory and a security control panel and to be located two feet or more from the paved surface of Oak Harbour Circle and two feet or more from the paved surface of a proposed by-pass way to be constructed on the easterly side of the gate house. This structure and the use thereof is designed and intended to serve residents of the Open Space Village by controlling traffic from Rt . 6A and is requested because there is no provision in Section 18 : 07 for structures or uses accessory to the multi-family dwellings requested in the related Special Permit request; Section 18 : 07 also requires a front yard of 30 feet . OAK HARBOUR VARIANCE NUMBER 7 7 , Garden club building on Lot 11-A as shown on attached Plot PlanHwithattachedgreenhouseandcontainingroomsandfacilitiesformeetings , potting, workshops , displays , and lavatories and a kitchen and having a ground dimension not to exceed 3, 500 square feet and a maximum height of 35 feet and parking area for not more than 20 cars . This building will be available for use by residents of the Open Space Village and is requested because there is no provision in Section 18 : 07 for structures or uses accessory to the multi-family dwellings requested in the related Special Permit request . OAK HARBOUR VARIANCE NUMBER 8 8 General landscape accessory facilities and features commonly associated with multi-family residential structures in the Town of Yarmouth including , but without limiting the foregoing , the following: i) Street , directional and warning signs , vegetable and flower garden plots , fencing, outdoor lighting , bird houses , bike racks , mail boxes , drinking fountains , barbecue pits , a community clam bake area, picnic tables , rain shelters , gazebos , fireplaces , soft ball back stops , ball fields , look-out platform, all wherever situated. ii) Open space facilities such as tennis courts and paddle courts on Lot 5 on attached Plan I being a plan entitled "Subdivision Plan of Land in Yarmouth, Massachusetts of Oak Harbour, February 14 , 1975 by Edward E. Kelley, Reg . Land Surveyor" and at other locations deemed suitable by the developer on any one or more of Lots 17 , 22 , 11-A or 3Z shown on said plan. iii) General golf course accessories such as signs , markers , benches , flags , drinking fountains , ball washers , wash racks , sprinklers , and rain shelters . iv) A replacement shrub and tree nursery. Except for the additional uses of the golf course and golf course facilities requested in Variance 3 , all such facilities are to be for the exclusive use and enjoyment of residents of the Oak Harbour Development and their guests and are requested because there is no provision in Section 18 : 07 for structures or uses accessory to the multi-family dwellings requested in the related Special Permit request . OAK HARBOUR VAr.IA; .:F NUHBER 9 9. To permit on Lots 1 $ 9 , 4, 2 & 8, 10A, 11 , 11A, 13, 13A, 14 , 15 , 16, 18, 20, 21 , 23, 24, 26, 28, 29, 31 , 33, 8A $35 as shown on attached Plan J entitled "Lots for Proposed Structures" fills in excess of 5 •feet wherever required to accomodate the siting of buildings, sewage treatment facilities , surrounding landscape and grading, and all improvements as shown from time to time on the detailed site plans to be submitted to the Board of Appeals pursuant to Section 18 : 07-4-E and 18 : 10 for the construction of buildings in the Open Space Development . It is required under Section 18 : 9- 7 of the Yarmouth Zoning By-Lawthatnofillsmayexceed5feetwithoutapprovalthereofbytheBoard ofSelectmen. OAK HARBOUR VARIANCE NUMBER 10 10 . From the requirement in footnote (a) of Section 18 : 07-4-C of the Yarmouth By-law to permit construction of the various numbers of dwelling units on particular lots (1) as set forth in the related request for a Special Permit under the Yarmouth Open Space Village By-law Section 18 : 07) , provided that prior to the construction of any of such dwelling units , sufficient open space area in__the form of one or more_ of Lots 3, 6, 10, 12 , 17, 19, 22, 25, 12A, 27, 9A, 30, 34 , 7, 11A, 4 , 5 , 32 as shown on the attached Plan .K being a plan entitled "Subdivision Plan of LandinYarmouth, Massachusetts of Oak Harbour, February 14 , 1975 by Edward E .Kelley, Reg . Land Surveyor" plus Lots 22 , 23, 24 , 25 and 26 on Land Court Plan35454-A filed with the Barnstable Registry District of the Land Court in Book 45:Page 82 shall be dedicated under the provisions of Section 18 : 07-4-F of the Yarmouth By- law to cause the total area of dedicated open space plus housinglotscompletedorsthentobestartedtomeettherequirementsoffootnote (a)for the number of dwelling units completed plus those then to be started. Footnote (a) to Section 18 : 07- 4-C of the Zoning By-law requires thattherebeaminimumof8, 000 square feet of lot area per dwelling unit . 1 T e particular lots and maximum number •o units to be construthereonareasfollows : _ cte Lot No. Area of Lot Dwelling Units 33 184 , 292 13 233, 954 35 units 14 147, 635 52 units 15 151 , 510 30 units 31 176, 826 28 units 16 284 , 264 37 units 18 354 , 568 50 units 29 138 , 954 72 units 28 124 , 428 32 units 20 251 , 150 27 units 23 253, 291 50 units 24 153, 603 52 units 26 $ 10A 226, 123 40 units 2 & 8 273, 051 44 units 8A & 35 192, 462 59 units 21 599, 257 38 units 11 408, 855 104 units 32 units total no. of units not to exceed 750 OAK HARBOUR VARIANCE NUMBER 11 11 From the provisions of Section 18 : 07-4-E and Sections 18: 10-6-B of the Yarmouth Zoning By-law to permit the Board of Appeals to act upon and issue the Special Permit requested in the related Open Space Village application without prior submission of detailed site plans or review thereof provided that the same are submitted to the Board of Appeals or Building Inspector prior to the issuance of any building permits for any of the structures authorized under such Special Permit or under any of these associated variances. It is not clear under the applicable provisions of the above sections dealing with site plans whether the Board of Appeals is authorized to act upon (and grant) a Special Permit for an Open Space Village Development without prior site plan submission and review. OAK HARBOUR VARIANCE NUMBER 12 12 . To permit the erection of signs on Lots 13A and 68 as follows : i) One permanent identification sign on Lot 68 as shown on the attached Plot Plan L, sign not to exceed 24 square feet in area. ii) Two advertising signs containing general "for sale" information, on each of lots 68 and 13A as shown on the attached Plot Plan L, each sign not to exceed 12 square feet in area. iii) Illumination of such signs to be by flood or spotlights . ir+€is 04 c t Rc-; 15icN lf-j )ECTisry l6 t 7 Fa: AQcIE sc FS'? s is N5 OAK HARBOUR VARIANCE NUMBER 13 13. From the provisions of Section 18 : 07-4-F of the Yarmouth ZoningBy-law to allow the developer to limit the use and enjoyment of partsor alloftheunbuiltuponportionsofthehousinglotsinthedevelopmenttotheresidentsorownersofthedwellingunitssituatedthereonortogroupsorassociationsofresidentsorownersconstitutinglessthantheentireresidentpopulationofthedevelopment. Section 18 : 07-4-F provides in part that "all land not designated for roads, dwellings or other development within the Open Space Village - Development shall be -held for common use of the residents of the Development . " It is not clear whether in the case of a subdivided development, this Section applies only to the lots designated as open space and meeting the 3D_% requirement or whether the provision may apply as _well _to the portions. of other lots not designated for roads , dwellings, or other development. OAK HARBOUR VARIANCE NUMBER 14 14 . To permit during construction and initial sales of units in the development the use of a unit or cluster of dwelling units as a model with provision therein for a resident sales agent and for use of the same as a sales office. The foregoing is requested because there is no provision in Section 18 : 07 for the use of structures other than as dwellings or for the conduct therein or thereon of a sales activity. MEMORANDUM PETITION FOR VARIANCES RE: OAK HARBOUR YARMOUTHPORT, MASSACHUSETTS SUBMITTED TO THE YARMOUTH BOARD OF APPEALS BY OAK HARBOR ASSOCIATES Petitioner DESCRIPTION OF SITE The Petitioner' s property consists of approximately 194 acres ofvacantlandonthenorthsideofRt . 6A in Yarmouth and situatedbetweenRt . 6A and Bray Farm Road. The major portion of the site is presently owned by the M.V. I .Nominee Realty Trust, Aaron G . Weintraub Trustee . In addition, YarmouthProperties, Inc. c/o Scott Jordan, 477 Main Street, Yarmouthport, holds title to several part-lots at the edge of the parcel on the Southeastcorner. The site is bisected north and south by Hockanom Road, a dirttrackoflongstandingbetweenRt. 6A and Bray Farm Road which has neverbeenimprovedandoverwhichrelativelyfewvehiclesnowpass . There is located on the property in the southwest section an FAAflightcontrolinstallation, the lease for which will expire in 1978 . ZONING HISTORY The property is entirely within the RD- 2 zoning district . Until1973, apartments were permitted in this district and in 1973, the Yarmouth Board of Appeals granted to one of the petitioners a special permit formultiplefamilydwellingsfor957families . At the Annual Town Meeting in 1973, the Town amended the zoningby-law, substituting in place of the apartment section a new by-lawsectionforOpenSpaceVillageDevelopment . This new section, as amended slightly by the Special Town Meeting in the Fall of 1974, is the basis of this petitioner' s accompanying request to this Board for a SpecialPer.nit for multiple family dwellings containing 750 dwelling units . The major portion of the parcel has recently been subdivided; a copy of the subdivision plan approved by the Yarmouth Planning Board on March 19, 1975 is attached. PETITIONER' S REQUEST The Petitioner filed with the Yarmouth Board of Appeals a request for a Special Permit under Section 18 : 07 of the Yarmouth Zoning By-Laws ; a copy of that petition (without support documents) is attached to this memorandum. The Petitioner also filed with this Board as an associated request for simultaneous consideration a petition for fourteen variances . These variances fall with four classifications or categories : 1 . Access structures for each residence building . 2 . Access structures and features appurtenant to the project as a whole . 3 . Non residential uses . 4 . Structures and facilities which do not (or may not) comply with the zoning by- law. For purposes of this brief, the variances will be grouped within these categories because of the common factors applicable to each category. It is to be noted, however, that in one important aspect, all fourteen variances are alike . The only purpose of each and every variance is to make possible the open space village for which the related special permit petition has been submitted. Not one of the structures or uses requested in the variance petition represents a building or activity that will stand independent of the basic plan for the site , that of a residential development . In this sense, all of the variances may be looked upon as accessory requests . CATEGORY 1 ACCESSORY STRUCTURES FOR EACH RESIDENCE BUILDING A. Variances within this category: #1 B. Description of relief requested: Principally, this request covers 83 garage- storage sheds to be situated on lots numbered 2 , 8 , 11 , 13 , 14 , 15 , 16 , 18 , 20 , 21, 23, 24, 26 , 28 , 29 , 31 , 33, 35 , 8A and l0A for the use of residents of the dwellings to be constructed on these lots and to be sited with respect to such dwellings approximately as shown on the plan attached to the variance request, which plan is entitled Typical cluster, Oak Harbour" . Final siting and placement of these garage- storage sheds will be shown on the site plans to be submitted under Sections 18 : 07-4-E and 18 : 10-6-B prior to the commencement of each cluster . This variance also covers typical dwelling appurtenances such as patios , decks , fireplaces , canopies, unenclosed outdoor structures such as gazebos , refuse receptacles and bird houses . The variance also covers those accessory uses permitted under Section 18 : 02 , paragraphs 8 and 9, of the Yarmouth Zoning By-law. C . Reason Requested : This variance is requested because there is no provision in Section 18 : 07 of the Zoning By-law for structures or uses accessory to the multi-family dwellings specifically permitted by Special Permit under paragraph 4D of said Section. General accessory structures and uses are set forth in Section 18 : 02 of the By-law but only with respect to structures and uses permitted thereunder; under Section 18 : 02 (applicable to the RD- 2 Zoning District) , residential buildings are limited to those for one or two families . D . Land conditions applicable to the Oak Harbour Parcel : The parcel is the largest undeveloped tract of vacant land in united, private ownership on the north side of Rt . 6A within the RD-2 zoning district ; as such the parcel is particularly suited for treatment as a cluster development under the Open Space Village Development section of the By-law. In addition, the main part of the tract has an average elevation of 90 feet which rises gradually toward the northeast corner . The northeast corner itself, however, falls away steeply to the level of Bray Farm Road. Severe problems would be encountered in joining this corner to the rest of the tract . This feature of the land, therefore, causes the parcel as a whole to be best suited for cluster development treatment under which the northeast corner can be allocated to open space thereby eliminating the need for street connection. In the southwest corner of the parcel there is situated a low relatively wet area (1) and also aFAAflight control installation in neither of which areas construction can presently take place . Also, as pointed out in the report of Mr. Kelley to this Board, the configuration of the parcel is not adaptable to a single family street layout . For these additional reasons, cluster development treatment is preferable . 1) See E.E, Kelleyplan dated January 9 , 1975 on file with the Conservation Commission for the Town of Yarmouth. E. Effect of the above land conditions on the Petitioner : Assetforthabove, and as referred to in the report by Childs , Bertman,Tseckares Associates , Inc . submitted to this Board, these several land conditions particularly affecting this parcel dictate clusterdevelopmenttreatmentunderSection18 : 07 of the Yarmouth Zoning By-law. However, as the report of Mr. Regan to this Board points out, this open space option has little practical value without provision in thedevelopmentforbasicaccessoriesandappurtenancessuchasthegarage- storage sheds and other facilities which are the subject of this variance . F . Impact of the requested accessory structures and uses on the neighborhood and on the overall zoning scheme : The garages and outside yard facilities requested in this variance can be granted without the slightest adverse effect on the neighborhood surrounding Oak Harbour because these requested structures and uses are all common to the single family dwellingssituatednearbyintheneighborhood. The dominant character, from alandusepointofview, of the area along Rt . 6A between YarmouthportandtheDennistownlineisresidential ; none of the requested accessorystructuresisinanywayinconsistentwiththispatternofdevelopmentandinfactsupportsit . The request is in addition consistent with zoning in the areainasmuchasitconfirmsandreinforcesthecommittmentofasubstantial tract of vacant land in a residence zone to residential use in the manner contemplated by Section 18 : 07 of the zoning by-law. CATEGORY 2 ACCESSORY STRUCTURES AND FEATURES APPURTENANT TO THE PROJECT AS A WHOLE A. Variance within this category: Numbers 2 (i-iv) , 4 , 5 , 6 , 7 , 8 and 12 B. Description of relief requested: These variances cover : the proposed Community Complex on Lot 4 the proposed sewage treatment plant on Lot 9 and proposed sewage treatment facilities , an office, laboratories and parking and vehicle storage areas on Lots 1, 3, 6 , 7 , 9 , 10 , 11, 12 , 17 , 18 , 30 and 34 as shown on the plan accompanying variance request #4 , which plan is entitled "Lots for Sewage Treatment Plan and related facilities" the proposed maintenance buildings and facilities on Lot 13A the proposed Gate House structure partly on Lot 12A and partly within the right of way of Oak Harbour Circle the proposed Garden Club building on Lot 11A general landscape accessory facilities throughout the development open space recreation facilities such as tennis courts and paddle courts on Lot 5 , 17 , 22 , 11A and 32 general golf course accessories such as markers , benches , drinking fountains , wash racks and rain shelters on any golf course which may be constructed a replacement shrub and tree nursery. C . Reason Requested: These variances are requested because there is no provision in Section 18 : 07 of the Zoning By-law for structures or uses accessory to the multi-family dwellings specifically permitted by Special Permit under paragraph 4D of said Section. General accessory structures and uses are set forth in Section 18 : 02 of the By- law but only with respect to structures and uses permitted thereunder; under Section 18 : 02 (applicable to the RD- 2 Zoning District) , residential buildings are limited to those for one or two families . D. Land conditions applicable to the Oak Harbour Parcel : The considerations set forth in paragraph D of Category 1 apply equally to the variances in this classification. In addition, the parcel is situated geographically 2,750yards from Yarmouthport and 2 . 1 miles from the Yarmouth Inn, the nearest large restaurant now in existence . The site is 2 . 2 miles distant from the nearest pubic hall, 2 . 1 miles from the nearest post office and . 55 miles from the nearest convenience store. Finally, the configuration of the lot in relation to Rt . 6A is such that all traffic to and from the development will pass from Rt . 6A over Oak Harbour Circle as far as the fork in Oak Harbour Circle , a condition contributing to the practicality and therefore desirability of an information and security gate house . E. Effect of the above land conditions on the Petitioner : As indicated above, the conditions affecting this parcel dictate cluster development treatment under the Open Space Village Section of the By-law. However, as the report of Mr. Regan to this Board states , no effective use can be made of the open space village by-law in development of the site without the accessory structures and facilities requested in variances #2 (i- iv) , 4, 5, 6, 7, 12 and 8 (i , ii and iv) . The prospect that market conditions will require a special identity for the development in the form of a golf course in order to make the project economically sound similarly establishes the importance of variance $8 (iii) . F . Impact of the requested accessory structures and uses on the neighborhood and on the overall zoning scheme : The requested structures and uses will have no adverse effects on the general neighborhood. None will be visable from the nearest public highway (Rt . 6A) except for the maintenance buildings which, to the extent visable , will be required to comply so far as appearance is concerned with the Old Kings Highway Regional Historic District Act . Except as any golf course , the pro shop and club house may under the provisions of variance #3 be used by non-residents and except as the post-office store may be patronized by persons other than residents and guests of the development as set forth in variance #2 (v) , all of the structures requested in this category will exist to complement the residential character of the development. All outside facilities included within this category, being principally the swimming pool and parking for the swimming pool , tennis courts , barbeques , bicycle racks , picnic tables , rain shelters , ball fields and the golf course support facilities are consistent with and in support of residential activity. Finally all structures and parking facilities requested in this category will be located at least 50 feet from the perimeter of the development thereby securing added privacy to abutting neighbors . Moreover no secondary streets existing primarily to serve neighboring homeowners will be open to or used by residents of Oak Harbour (3) The considerations set forth in paragraph F under category 1 with respect to the effect of this request on the overall zoning scheme apply with equal force to category 2 . 3) Emergency access for use by the Fire Department and others will be provided over Canterbury Road, a private street constructed to Town of Yarmouth Collector Streets Standards , but the connector street between the end of Canterbury Road and Oak Harbour Circle will not be paved and common use thereof will further be discouraged by the existence of suitable barriers on the Oak Harbour side . CATEGORY 3 NON-RESIDENTIAL USES A. Variances within this category: 2 (v) , 3, 14 B. Description of relief requested: These variances cover spaceandfacilitiesforsalesofdwellingunitsbythedeveloperinthe form of a sales office in the community center complex and a model' unit for display purposes with provision for a resident sales agent . These variances also cover the operation of the post office-storeinthecommunitycentercomplexwithoutthelimitationthatsalesbe made only to residents and guests . 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 houseandproshoptothepubliconagreensfeechargeorothermonthlyorseasonalchargebasisduringthefirsteightyearsoftheproject or until the 750 units of housing have been completed and occupied, whichever occurs first . C . Reason Requested: These variances are requested because thereisnoprovisioneitherintheRD- 2 zoning district or within Section18 : 07 of the Zoning By-Law for activities or facilities having businesscharacteristics . Actually, the on-premises sales office and the use of a model unit could be classified in a development this large as activities necessary for the contemplated transfer of the dwelling units toindividualowners , and hence, as accessory uses (dealt with in Category 2) . However, inasmuch as the proposed sales activity willnotoccuronthesiteoftheparticularunitofferedforsale, or even within the cluster being sold, but instead in separate buildings , these activities seem to have the attributes of a business use and for this reason are included in this category. D. Land conditions applicable to the Oak Harbour Parcel : The circumstances set forth in paragraph D in Categories 1 and 2 apply toallofthevariancesinthiscategory. E. Effect of the above land conditions on the petitioner: The petitioner respectfully submits that the existence of the several land conditions particularly affecting this parcel mitigates againstdevelopmentofthelandforsinglefamilyhomesundertheRD-2 zoningdistrict . If the alternative to an RD- 2 development, namely an open space village, is utilized as the petitioner proposes , substantial portions of the parcel are required to remain open for conservation and recreation purposes . Within the category "Recreational Open Space Activities", golf courses are particularly attractive; retired persons are able to make use of golf courses, the equipment involved is small , and on Cape Cod operation during most of the year is possible . The effect on the project of elimination of a possible future golf course is contained in Mr. Regan' s report . The hardship attendant upon operation of the post office-convenience store without the variance requested lies in the added cost and difficulty to the developer and inconvenience to future owners of arranging a system for identification under which a person unable to show himself or herself to be a resident or the guest of a resident would be turned away as a purchaser. Mr. Regan' s report also states that provision for on-site sales facilities is necessary if the cluster development alternative is to represent a practical choice . F . Impact of the requested uses on the neighborhood and on the overall zoning scheme: The requested use of the golf course , club house, and pro shop by non-residents during the construction phase is designed and requested only to assure the same level of patronage of the facility during early years as will occur according to plans when the development is completed. As such, the variance should have no impact at all on the neighborhood; the parking facilities for the community center will be constructed at the same time as the golf course so that no traffic congestion is anticipated. As a practical matter, the nearest present neighbor to the contemplated site of the golf course is approx . 500 feet from the proposed fairway. The use of a separate model unit or cluster for sales and a sales office within the community center structure are both designed to reduce the evidence and impact of the necessary selling activities so far as residents of the development are concerned. In neither case will the structures involved be structures primarily for sales activity with the result that these requested uses should be expected to have no effect whatever on the neighborhood and should, in fact, be totally unnoticed. Use of the post office-convenience store by non-residents of the development should have minimal impact on neighbors , first , by reason of the fact that the post office-store will be situated within the community center, which in turn is to be located on Lot 4 in the middle of the development . Second, it is expected that this variance , if granted, would be conditional upon total avoidance of any advertising of the convenience store outside of the Oak Harbour community itself. Finally, the limitations in size and scale inherent in the classification of the store as a convenience store mitigate against any substantial effect onfood store owners already serving the north side of Yarmouth. To the extent that all of the activities requested in this category, although having business attributes , are purely subordinate to and in support of basic residential character of the development, the petitioner submits that they are thereby consistent with and not in derrogation of the applicable Zoning By-Laws . CATEGORY 4 STRUCTURES AND FACILITIES WHICH DO NOT (OR MAY NOT) COMPLY WITH THE ZONING BY-LAW A. Variances within this category: #3 (ii) , 6 , 9, 10 , 11 , and 13 B. Description of relief requested: These variances cover: use of any golf course and golf course accessory facilities that may be constructed on open space by residents and their guests on a greens fee or monthly or seasonal charge basis . construction of the Gate House building on Lot 12A within the front yard area required under Section 18 : 07 of the By-law. placement of fills on the "housing lots" (4) in excess of 5 feet to accomodate siting and grading of buildings , facilities and landscaping as shown on detailed site plans to be submitted to the Board of Appeals from time to time . construction of dwelling units on the housing lots at a higher ratio of numbers of units to lot area than is permitted in Section 18 : 07-4-C, footnote A, (footnote A requires 8 , 000 square feet of lot area per dwelling unit) provided that sufficient open space in the form of one or more of the future "open space lots" (5) is dedicated as open space prior to commencement of construction on the particular housing lot involved. authorization to submit to the Board of Appeals detailed site plans for each cluster at the time of commencement of each cluster rather than at present as a condition of the grant of the Special Permit which is the subject of the related request before this Board. to allow the developer to limit the use and enjoyment of parts or all of the yard area of the housing lots in the development to the residents or owners of the dwelling units situated thereon or to groups of residents constituting less than the entire resident population of the development . 4) Lots 1 $ 9, 4, 2 E 8 , 10A, 11 , 11A, 13, 13A, 14 , 15 , 16 , 18 , 20 , 21 , 23, 24 , 26 , 28 , 29 , 31, 33, 8A E 35 5) Lots 3, 6 , 10 , 12 , 17, 19 , 22 , 25 , 12A, 27, 9A, 30, 34 , 7 , 11A, 4 , 5 , 32 C. Reasons Requested: 1 . Variance 3 The assessment of golf course use charges upon residents who use the golf course, in the form of greens fees or monthly or seasonal charges , is included as a variance request because the golf course , if built at all , will be situated on land otherwise fulfilling the "open space" requirement of Section 18 : 07 of the zoning by-law. The paragraph in Section 18 : 07 describing open space states that it shall be held for the common use of residents of the Development with maintenance permanently assured by subjecting each lot to a share of maintenance expenses . The application of this specification is unclear; to the extent it would prohibit assessments in the form of flexible charges related to the amount of use, a variance is requested. Also, to the extent the language might be said to prohibit any limitation upon use of open space by residents who pay their common assessments , variance relief is requested . 2 . Variance 6 The Gate House on Lot 12A in order to be effective must be situated near enough to the paved part of Oak Harbour Circle for drivers to converse with the Gate House attendant; as such, the structure will not observe the Open Space Village set back provisions (1) and in fact will encroach partly on the right of way of the street itself. 3 . Variance 9 The third variance in this category is requested because Section 18 : 9- 7 of the by-law specifies that no fills exceeding 5 feet may be made without the _approval of the Board of Appeals . 4 . Variance 10 The fourth variance in the class deals with one of the two density requirements for multiple family dwellings . Footnote (a) to Section 18 : 07-4-C requires that there be 8 , 000 square feet of lot area for each dwelling unit constructed on one of the proposed "housing lots" . This requirement will not be met . 5 . Variance 11 The variance request that submission of detached site plans not be required for a cluster or phase until that phase is about _to be built is inserted because of ambiguity in Section 18 : 10-6 . To the extent that the section which applies to special permits for open space village development could be said to prevent the Board of Appeals from acting upon the petitioner' s related special permit petition without detached site plans first being prepared and submitted, a variance is requested. 1) Under Section 18 : 07-4-C, a minimum front yard of thirty feet is required. 6. Variance 13 The final variance in this class seeking permission to limituseofyardspaceonthehousinglotstotheresidentsofunitsontheparticularlotsortogroupsofresidentslessthanthewholeis inserted because Section 18 : 07-4-F of the Open Space Village By-Lawleavesitunclearwhetherinasubdivideddevelopment, the open spacetobeheldforcommonuseofallresidentsisthatopenspaceneeded tomeetthe30arequirement, or includes all land which will have buildings ,roads or other development on it . To the extent it may be interpretedtomeanthelatter, a variance is requested. D. LAND CONDITIONS APPLICABLE TO THE OAK HARBOUR PARCEL : The circumstances set forth in paragraph D in Categories 1 and 2applytoallofthevariancesinthiscategory. E. EFFECT OF THE ABOVE LAND CONDITIONS ON THE PETITIONER: 1 . Variance 3 This variance proceeds from the most adverse reading ofofSection18 : 07-4-F, namely that it prohibits any restrictions on resident use of required open space land taking the form of a greensfeechargedtothosewhowishtousethegolfcourse . A literal enforcement of this interpretation would require thatanyandallrecreationalfacilitiesconstructedonopenspacelotsmustbemaintainedandservicedbyanequalchargetoallunitowners , a resultnotunacceptablewherelowupkeepfacilitiessuchasbiketrailsornaturepathsareconcernedbutaseriousdisadvantagewhenagolfcourseisinvolved. Assessment of golf course upkeep costs upon all owners -golfers and non-golfers alike - would significantly limit the marketforunitsinthedevelopment . 2 . Variance 6 Compliance with the front yard requirements of Section 18 : 07oftheBy-law so far as the proposed gate house is concerned would causeittobesetbacksofarfromtheOakHarbourCircletobeineffectiveasasecuritycheckpoint; the effect of elimination of a security gate houseontheeconomicfeasibilityoftheprojectissetforthinMr. Regan ' sreport. 3. Variance 9 Section 18: 9- 7 enforced as written would require the developertosubmitdetailedsiteplansshowingtheelevationofstructuresandwaysandadjacentlandscapingfirsttotheBoardofAppealsunderSections18 : 07and18 : 10-6 and then to the Board of Selectmen for approval of any fillsshownthereontobeinexcessof5feet . In view of the responsibility placed upon the Board of Appeals for control over and approval of all aspects of the siting and arrangement ofbuildingswithinanOpenSpaceVillageDevelopment, it is submitted that the added requirement of submission of the same plans to the Board of Selectmen for approval of one particular and relatively minor aspect thereof is unnecessary and constitutes only an added burden on the developer.This is not to say that in cases not involving detailed site plan submissionsandreview, the requirements for approval of fills by the Board of Selectmendoesnotmakegoodsense. 4 . Variance 10 A literal enforcement of footnote (a) to Section 18 : 07-4-C requiring 8, 000 square feet of lot area for each multiple dwelling unitwouldasstatedinMr. Regan' s report prevent use of the subdivided parcelinitspresentformwhichwouldinturneliminatetheopenspacevillage by-law as an alternative for development . 5 . Variance 11 The same considerations set forth in the paragraph above applytothisvariancerequest; a literal enforcement of this by-law provisionwouldeliminatedesignflexibilityandrenderimpracticaltheproposed plans for open space development of the parcel . 6 . Variance 13 The attractiveness and therefore saleability of dwelling units within a cluster development depends in part on the success of the developer in setting aside for the exclusive use of residents of each building or group of buildings in a cluster exclusive use of adjacent yard areas , sometimes referred to as local common areas or cluster common areas . These make possible for unit owners the same individual or local control of immediate yards that is one of the main characteristicsofsinglelot, single family home ownership . A literal enforcement of Section 18 : 07-4-F could be deemed to eliminate this treatment of local areas to the detriment of future owners and with consequent reduction in the feasibility of the project . F . IMPACT OF THE REQUESTED VARIANCES ON THE NEIGHBORHOOD AND ON THE OVERALL ZONING SCHEME 1 . Variance 3 The effect of this variance which would impose a greens fee or seasonal charge on residents desiring to play golf and which would allow a different arrangement for maintenance of the open space lots involved on the golf course than equal assessments upon all residents should have no effect whatever in the neighborhood for it will have nothing to do with the visable activity on the land. To the extent that a recreational use of open space will be confirmed and assured under the proposed variance on a maintenance basis fairer to residents who do not wish to use it, the purpose of the Open Space Village will be served. 2 . Variance 6 The Gate House which is the subject of this variance will not be closer than 400 feet to neighbors nor will it ' s operation be perceived by abutters ; its impact on the neighborhood will be minimal . To the extent that the Gate House will make it possible for the developer to control vehicle traffic- into the development, residents will receive added security which cannot help but reinforce the residential character and purpose of the land which is the intent and purpose of the Open Space Village By-law and the underlying RD-2 district provision. 3 . Variance 9 This request involving the placement of fills on housing lots and on the lots for the Community Center Complex, the Maintenance Area , the Sewage Treatment Plant and the Garden Club concerns almost entirely the interest of the Town in controlling significant allerations of the landscape . This control will be provided by the Board of Appeals so that there should be no injury to the neighborhood and full compliance with the purpose of the By-law 4 . Variance 10 There is a basic density formula for multiple family dwellings in Open Space Village Developments . The formula is set forth in Section 18 : 4-A of the By- law. The application of this formula to the petitioner ' s land works out as set forth in the Formula Calculation attached to this Memorandum. The maximum number of dwelling units permitted under the formula would be 844 . Petitioner ' s request for 750 units , falls well within this upper limit . There is an additional density requirement that operates on an interim basis . This requirement operates only in cases of subdivided Open Space Village parcels and it imposes limits which are more stringent than the formula test above only where a subdivided Open Space Village Development is proposed to be built in stages . In this particular situation, it imposes an ongoing requirement that each housing lot contain at least 8 , 000 square feet of land area per dwelling unit . Petitioner requests that this requirement be waived by variance , but Petitioner proposes that the intent and purpose of the requirement be met fully by the dedication of sufficient open space lots as each stage proceeds to meet and exceed the 8 , 000 square foot test . The operation of this proposed condition in a typical development sequence is set forth in the attached chart so named. Since the addition of this proposed condition to the variance will result in full compliance with the applicable By-law section on an ongoing basis , no injury whatever will be caused to any abutters and the intent and purpose of the by-law will be carried out. 5 . Variance 11 The considerations set forth in paragraph 3 of this section apply equally to this variance which seeks a delay in submission ofdetailedsiteplans . No departure from the standards of the by-lawissought ; no reduction in construction or site planning standardsforeachclusterwillresult. 6 . Variance 13 This variance seeks only to permit the developer to set aside local yard areas on each housing lot for the exclusive use of the residents of that dwelling or cluster of dwellings . The by-law may bedeemedtobarsuchlocaldominionandinsteadtorequirethateveryresidentofOakHarbourhavefreeaccesstoeverysquarefootoflandnotdesignatedforbuildings , parking, streets or recreational structures . As such the matter is entirely one of internal rights and restrictions ; it does not have anything to do with people outside the development; neighbors will see no difference in the day to day running of Oak Harbour no matter whether this variance is granted or not. As to the intent of the Section 18 : 07-4-F of the By-law it is submitted that the basic purpose of the entire section is to ensurethattherequiredopenspaceconstitutingatleast30% of the total land area be made available for the use and enjoyment of all residents (which Oak Harbour provides) ; that it was not intendedandisnotdesirablethatresidentshavenoyardareasforlocal use andenjoymentandthatinasubdivideddevelopment, the yard areas withineachhousinglotarewithintheexcluded "land designated for other development" and are not open space in the sense of Section 18 : 07-4-Fatall . As such, no departure from the intent of the by-law will occur . CONCLUSION The Petitioner respectfully submits that the foregoing establishesthefollowing: A.. The existence of conditions especially affected the subject parcel which do not affect generally the zoning districtinwhichitislocated. It is further submitted that theconditionshereinbeforedescribedarephysicalconditions associated with and uniquely affected the Oak Harbour parcel,all as set forth in the cases of Rodenstein V. Board of AppealsofBoston, Dion v. Board of Appeals of Waltham and Josephs v.Board of Appeals of Brookline, 1972 Advance Sheets 1405 . B. That owing to the physical conditions described herein,a literal enforcement of the zoning by- law would involve substantialhardshiptothePetitioner; this hardship in most instancestakestheformofeliminationfromapracticalstandpointof any opportunity to use the cluster development alternativescontainedinSection18 : 07 of the by-law. C. That the relief requested may be granted without substantialdetrimenttothepublicgoodandwithoutderrogatingfromtheintentandpurposeofthezoningby-law. For the foregoing reasons your Petitioner respectfully urges andsubmitsthatthispetitionforvariancesbegranted. OA HARBOR ASSOCIA ES By TOWN OF YARMOUTH BOARD OF APPEALS OWNERS: Yarmouth Properties , Inc . , Yarmouth, Mass . and Aaron G. Weintraub, Trustee of MVI Nominee Realty Trust ADDRESS : c/o Peabody, Brown , Rowley • Story, 1 Boston Place Boston, MA 02108 PETITIONER: NAME: Oak Harbour Associates ADDRESS: c/o Scott Jordan, 477 Main Street, Yarmouthport , Mass . BOARD OF APPEALS, YARMOUTH, MASS . _ This petition when completed and signed must be filed with the Board of Selectmen, Yarmouth, Massachusetts , along with the fee of $20 . 00 DATE : PAID: 1. I , We , hereby request the action checked below: 1 . A special permit under Section 18 . 07 of the Yarmouth Zoning By-Law To allow: an Open Space Village Development on approximately 194 acres of land situated on Rt. 6A in Yarmouth between Rt . 6A and Bray Farm Road which Open Space Village Development will con- sist of residential buildings each containing no more than 24 dwelling units .and together containing no more than 750 dwelling units ; 83 garage--storage sheds ; together with a) Community Center complex containing a clubhouse- -pro shop , a dining room, lounge , kitchen , a community hall , a health club, 10 rooms for guests , a combined post office- -village store , a management office , a sales office , swimming pools and other space and facilities for recreation; b) A gatehouse ; c) A Garden Club building ; d) A sewage treatment plant and facilities ; e) Maintenance facilities ; and f) Related accessory features and facilities for the recrea- tion and enjoyment_ of residents of the development , including tennis courts , swimming_.pool5 , walking and bicycle paths , gardens , outdoor cooking areas , rain shelters , ball fields , a golf course , and a look out platform. This development to be constructed in successive stages with building permits issuing from time to time for each stage upon the commencement thereof; this development is further shown on the applicable overall development plan submitted with this application; the description of the form of organization proposed for the ownership and maintenance- of common open space and a description of the covenants and easements proposed for the use of land and structure together with a proposed, development schedule are attached hereto. The development will be known as Oak Harbour and will be organized as one or more condominiums. The premises are situated within the RD-2 zoning district and consist of the following parcels as shown on the Yarmouth Assessor' s Plans : Csee li$t attacjied1 2 . Reason for the Board of Appeals action as checked below: 1. 1. 2 . 3. 2 . Approval of Board of Appeals , or Special Permit requested under the following section of Zoning By-Law: 1 . Section 18 . 07 2 . Names and addresses of abutting property owners , and those persons deemed affected by this application. (At least three . ) see list attached Signed Respectfully submitted, Petitioner Assented to : Owner Owner 2- Nv4COc.r co co O. r1 cO aD V c0 NO C) N .rc N u'1 ,-i O N CA yWNri .T ul .0 .7 O .O OJ W ul - rl .7 O ul 14(2. z N .O N N. u, c0 ri CD CO c0 N N H N. N .7 UWXWa, Cr) .1 C.1 O .-1 .1 el .o O. cV CO r, r-i -0- el CD QO7vulO .D .7 .T N N N 00 Co .7 ri O r\ O1N -iri 1 ri N. .o crl .1 • 4- r CO1..., 00 ChO• CO J r1 ri N C) 00 CDKulr1ulCO .o .7 O .o .TON. .O ul 7 O' N. . W N.• rc'1 • al N. COO. N. T i .-i O m .D .-1 .7UNoNN. ul ul N O. r1.Z v1 c0 .o CO Fi rl 0 rt CO ' CO .7 0 .O 0 I 0 0 I N 0 NFFXiN .-i .7 ul Co O O O. r` tr Oa 7.4 W FA0 .-i D N N. u'1 + r1 ri N N CT Inn N N T. H o 0 4' cry CD H N. cc L i.1 .c.1 _ J.1 1.1 iJ r) 4a N CO Cr] w' o r-1 4' O 0 0 0 0 3.1 0 CDCD Q ...-1 :4 7 + r7 N .-i u ` + + + + + ri -la a a. 1; F al m o m m m m m N ¢ 1-4m rA m CO m m m + m1xmcc410041Glmp1 W6 J 0 U m U U U U U W U WWWW C) No > a W d N X W. 4 H a] dWE.HC QW cn •V O Q 4r4,4m : G ,4 m y z f+ L W .D ul O .7 .D N .D N O O. n N. O\ CO r1Cr400o .7 .D cm r, rl rl .7 r. ul O O. r. .7 r1 .7Wc, W O r. O el .7 ri J` .7 O ul O] r. el 00 O. ul r. O. 1 u1 N N N O. ul ri r. ri CO N .o u'1 cO r-i N la. 4.. 6 Vi O. CO T r` H r-1 N .-1 O. .7 .o .o N O. ri 01O01r1ririHNr-1 • r I r I r-I H ri H N 1.4.1 R. N. L W C., v COvN N O0O CO a W d OO aa' H F4 d N N .T ul O .O .7 CO .7 CO O .-i co rl .--1 N N. L 7 U .o O. ul CI r-i N .O %O rrl N u'1 O. O N ul .D u1CQ .7 N O. .o ul CO N ul O. .7 ri N .0 r-i O .T N r A N .7 VI n r-i .D .7 .7 CO .7 H c'l rl .D c'1 N O. O Cr) O. CO Cl .7 ul f. CO c1l VI N ul ul u'1 N N O. O.1 Q H ri ri N H H ri N CO r-i ri N N ri N N r I ul x WQ 4 F CO Orm Ga HE. W H W Q OWO w x a CO O o 0 o O o 0 o O o O O o O O O O00 ¢ o o O O o O O o O O o O O O O O oHG= X O O O O O O O O O O O O O O O O O U0 Q CO .7 O .O O .7 .O O .o .D NO O .O O N N .7 N O F .O co r-i .7 N O. C) N ul .-1 O ri N u1 f. O r1 p,, r.- H N .T N N N .7 ul N N .7 .7 rl an .7 c.i CO Ev zHQOF0z m 0m acL COU) -rl W H a i R7 Z." CD a ,-.1 u NCOl O CO N. O N N N. C:. N co .T Ol CO O .7Clrl .Cl r1 cm r1 ul N. rl N u) ul .7 v ul Cl l3 CDa-. MIHO0 I o r, G c7 Z C) u1 Q .L Cl r1 .T ul ri .O W O. nW O Cl J ri CO CI H cc .- fn CD I .--Irl rl .-1 .-i N Ni N N N so + + N r-1 CO N Co CALCULATION TO DETERMINE MAXIMUM NUMBER OF UNITS The formula for calculating the maximum number of units which can be built in an Open Space Village Development appears on Pg. 14 of the Yarmouth Zoning Bylaw, as follows: Requirements. An Open Space Village Development must conform to the following: A. Number of Dwelling Units 1) The maximum number of dwelling. units (living quarters for a single- family plus not more than 3 boarders or lodgers, with cooking, living, sanitary and sleeping facilities independent of any other unit, or quarters for not more than four persons in a lodging house or dormitory) allowed in an Open Space Village Development shall equal the "Applicable Land Area" divided by the minimum lot area requirements for a single-family dwelling in that district, multi- plied by the following incentive factors; then rounded to the near- est whole number: Applicable Land Area Incentive Factor Less than 20 acres Lon plus M/T 20-50 acres 1.1 + .9 x M/T 50-75 acres 1.2 + .8 x MIT 75 plus acres 1.3 + .7 x M/T Where "M" is the number of dwelling units proposed to be in multi-family structures and "T" is the total mumber of dwelling units proposed. 2) "Applicable Land Area" shall be determined by a registered land sur- veyor, and equals the total area 'encompassed by the Overall Develop- ment Plan minus land designated on the plan for uses not primarily• servicing residents of the development. Not more than 10 percent of the Applicable Land Area shall be land subject to either inland or coastal wetland regulations (Sec. 40 and 40A, Ch. 131,G.L.) or land otherwise prohibited from development by local bylaw or regu- lation." The total land area of Oak Harbour, as surveyed by Edward E. Kelley, a Registered Land Surveyor, is 193.67 acres. All of the land in this subject parcel is considered as "Applicable Land Area" under the Open Space Village Development Bylaw. (Only 5.1 acres of land, or 2.67 of the Applicable Land Area, is subject to wetland regulations. See E.I.R. , Sec. VII, Yarmouth Conservation Commission - Pgs. 85-89) The formula Is as follows: Total Area: 193.67 acres or 8,436,455 square feetMinimumLotAreaRequirement: 20,000 square feetIncentiveFactor: Applicable Land Area @ 75 plus acres = ] .3 + .7 x `!/TM: Number of dwelling units proposed to lie in multi-family structuresT: Total number of dwelling units All proposed dwelling units will be in multi-family structures: therefore, MIT in0% or 1if-viz 8,436,455 Sq.Ft. 421.8227 x (1.3 + .7) (1) = 421.8227 x 2 = 843.6 20,000 Sq.Ft. Rounded to: 844 Units Summary The total number of dwelling units which can be built at Oak Harbour is 844 units. May 15, 1975 Cummaquid Barnstable, Mass . Chairman Board of Appeals Town of Yarmouth Massachusetts Re: Oak Harbour Dear Sir: I have surveyed and prepared subdivision plans and other plans of the parcel of land between Rte 6A and Bray Farm Road which is the subject of the Oak Harbour open space village special permit request pending before your Board. I have determined that the "applicable land area" of the parcel as defined under Section 18 : 07-4-A-2 of the Yarmouth Zoning By-Law is 8 ,436, 518 + square feet . I have been a Registered Land Court Surveyor since 1972 . I have worked extensively in the northeast section of Yarmouth and I am familiar with the iden nd configura- tion of parcels in this area. H® as,ts Ep„W R¢Your- e EL u \r, KELLEY ; ;> v No 26100 No suiN m ilkH htOF EDWARD r io KELLEY v N0.25100 2tiv SUR 04 May 14 , 1975 Cummaquid Barnstable , Mass . Chairman Board of Appeals Town of Yarmouth Massachusetts Re: Oak Harbour Dear Sir: I have surveyed the land on the northerly side of Route 6A, between Route 6A and Bray Farm Road, which is the subject of a petition for variances before your Board. The parcel of land involved is vacant and contains about 194 acres . There are certain features and aspects of the land con- stituting this parcel , and I wish to point these cut in this brief report: 1. The major part of the parcel is well suited for development. Except for the square in the northeast corner and except for that portion of the southwest corner below the 70 foot contour line, the parcel is basically plateau land with a relatively high elevation of approximately 90 feet. 2. The site is one of the largest parcels of build- able vacant land in single ownership and privately held on the north side of Town; to the best of my knowledge as a surveyor familiar with the area, it is the largest parcel of this kind on the north side of Route 6A between the center of Yarmouthport and the Dennis town line. 3. There are additional characteristics and features of this parcel which are peculiar to it: a) The plateau ends with a sharp bank in the northeast corner; it would be unwise and impracticable from a road layout standpoint to join the low north- east tip of the parcel to the plateau. b) The land in the southwest corner in the vicinity of the kettle hole cannot easily be integrated for development with the plateau. 2- May 14 , 1975 c) The land surrounding the existing F.A.A. flight control facility should not and cannot be developed as long as the facility remains in its present location. The three areas referred to above would, under an optimum residential development plan, be areas which could remain as open space without construction or improvements upon them. 4 . The parcel narrows in the southeast corner where it abuts Route 6A, the only point of access for development. Because all traffic would be required to enter and leave at this point, and also because of the substantial rise in the land northerly from 6A, the optimum residential development of the parcel is , in my opinion, one in which the number and length of primary subdivision streets would be at a minimum;the subdivision plan which I prepared and which was approved by the Planning Board on March 19, observes this principle . I have also prepared a street plan geared to accommodate single family development; this plan does not observe the principle that I mentioned. By way of background, I have been actively engaged as a land surveyor in Barnstable and Yarmouth since 1953, and I have been a Registered Land Court Surveyor for the last three years . I have worked extensively in the northeast section of Yarmouth and I am familiar with the identity and configuration of parcels in this area. o.ts" y1,,,,. Yoh - er ' °t 4 , ig E. 8 2' KELLEY N 1`) No 26100 4Hv s May 15 , 1975 OAK HARBOUR Statement To Board Of Appeals On EFFECT OF GOLF COURSE ON PROJECT In the event that a golf course is constructed, it will be either a 9-hole par-3 course (pre-empting the use of Lots 6, 10 , 11 and 12) or an 18-hold par-3 golf course (pre-empting additionally the use of one or more of Lots 3, 4, 7 , 34 , 36, 17 , 19, 27 , 9-A and 12-A. Such construction will eliminate all housing units on all of the Lots affected and each of those Lots will become Limited Open Space Areas . As an Open Space Area, the. golf course would be reserved for the use of all unit owners by the use of recorded covenants and easements similar to those pertaining to other Open Space Areas and would be under the jurisdiction of the Land Trustees , who would be empowered to make reasonable regulations governing the use of the course . Such regulations would be similar to those required in the operation of any golf course (i .e. rules of courtesy, prohibition against mis- use of greens , hours of operation, etc. ) . Unlike other Open Space Areas , the golf course would require some degree of continuous super- vision. The Land Trustees would probably enter into an arrangement with a third party whereby that party would operate and manage the golf course on a day-to-day basis . Unlike the other Open Space Areas , the golf course would entail operational costs and continuous maintenance costs . As a common area certain basic maintenance expenses of the golf course would be a common expense chargeable to all unit owners . In addition thereto, it is presently intended that a user charge or greens fee would be collected for each use of the course for golfing in recognition of two facts : (i) certain unit owners will be using the course more often then others (which is no different from the other Open Space Areas) and (ii) use of the course for golfing will bear a significant relationship to maintenance and operating costs which is different from the other Open Space Areas) . The determina- tion of the amount of such user charge would be made initially by the developer• and thereafter by the. Land Trustees . May 15 , 1975 OAK HARBOUR Statement To Board Of Appeals On EFFECT OF GOLF COURSE ON PROJECT In the event that a golf course is constructed, it will be either a 9-hole par-3 course (pre-empting the use of Lots 6, 10 , 11 and 12) or an 18-hold par-3 golf course (pre-empting additionally the use of one or more of Lots 3, 4, 7 , 34 , 36 , 17 , 19, 27 , 9-A and 12-A. Such construction will eliminate all housing units on all of the Lots affected and each of those Lots will become Limited Open Space Areas . As an Open Space Area, the, golf course would be reserved for the use of all unit owners by the use of recorded covenants and easements similar to those pertaining to other Open Space Areas and would be under the jurisdiction of the Land Trustees , who would be empowered to make reasonable regulations governing the use of the course. Such regulations would be similar to those required in the operation of any golf course (i .e. rules of courtesy, prohibition against mis- use of greens , hours of operation, etc. ) . Unlike other Open Space Areas , the golf course would require some degree of continuous super- vision. The Land Trustees would probably enter into an arrangement with a third party whereby that party would operate and manage the golf course on a day-to-day basis . Unlike the other Open Space Areas , the golf course would entail operational costs and continuous maintenance costs . As a common area certain basic maintenance expenses of the golf course would be a common expense chargeable to all unit owners . In addition thereto, it is presently intended that a user charge or greens fee would be collected for each use of the course for golfing in recognition of two facts : (i) certain unit owners will be using the course more often then others (which is no different from the other Open Space Areas) and (ii) use of the course for golfing will bear a significant relationship to maintenance and operating costs which is different from the other Open Space Areas) . The determina- tion of the amount of such user charge would be made initially by the developer and thereafter by the Land Trustees . Re : Oak Harbour Additional condition for Special Permit , page 17 , para. C-12 : Prior to construction of residential buildings from time to time, sufficient open space in the form of one or more of Lots 3 , 6 , 10 , 12 , 17 , 19 , 22 , 25 , 12A, 27 , 9A, 30 , 34 , 7 , 11A, 4 , 5 , and 32 as shown on the above mentioned Subdivision Plan dated February 14 , 1975 , and Lots 22 , 23 , 24 , 25 and 26 on Land Court Plan #35454-A filed with the Barnstable Registry District of the Land Court in Book 452 , Page 82 shall be dedicated under the provisions of Section 18 : 07-4-F of the Zoning By-Law to cause the total area of dedicated open space plus housing lots completed or then to be started to meet the requirements of footnote (a) of Section 18: 07-4-C for the number of dwelling units completed plus those then to be started. RECEIVED p 1975 A ITC r' . i 1.AW May 29, 1975 Board of Appeals Town Hall South Yarmouth, Mass. Re: petition 01321 - Oak Harbour Gentlemen: By deed dated June 25, 1973 we conveyed a parcel of land containing 21. 3 acres to Yarmouth Properties which is now a portion of the Oak Harbour parcel. We retained and we still own about 30 acres which lies northerly of the land we conveyed, and which we will develop in the future. Our deed contains the following language: Reserving a right of way over Hockanom Road appurtenant to remaining land of the Grantors shown as parcel 4 on said Subdivision Plan and to other land of the Grantors shown as parcel 2 and parcel 3 on Sheet 2 of Land Court Plan 31551A, to be used for all purposes for which roads or ways are now or may hereafter customarily be used in the Town of Yarmouth. The Grantees hereby covenant for themselves , their successors and assigns that they will convey to the Grantors by appropriate deeds and such other instru- ments as may be required, as appurtenant to the remaining land of the Grantors, rights of way over all roads and ways shown on any Subdivision Plan of the premises hereby conveyed hereafter recorded in the Barnstable Registry of Deeds, to be used for all purposes for which roads or ways are now or may hereafter customarily be used in the Town of Yarmouth. We wish to be recorded as opposed to the petition on the ground that the plan should indicate that we have the right to use Hockanom Road and any other roads and ways on the petitioner' s subdivision plan. Very truly yours, yid t4-- Johnstone Fit Gerald Dolores Fit raid 011 ' 125 Main Street 43 Lakeview Avenuecanal [tr•ve/orb Box 506 Box 1322 Reading, Massachusetts 01867 Lowell, Massachusetts 01850 CeiStere: n 944-3060 452-9871 e•v[ n jtneer3 environmental en/tneer6 Est. 1829 May 13, 1975 Town of Yarmouth Board of Appeals Yarmouth Town HaZZ Yarmouth, Massachusetts 02675 Re: Oak. Harbour Project Project, Massachusetts Gentlemen: This correspondence is in regard to the utility services being proposed for the above-captioned project. It is the opinion of Dana F. Perkins & Sons, Inc. that adequate utility service will be provided as evidenced by the following: r 1. Actual flow tests of the existing public water supply system has resulted in adequate water supply to service the project. 2. Adequate drainage can be provided on site capable of handling storm water runoff. Natural holding areas have been set aside to produce an esthetic drainage scheme. 3. At the location of the on-site secondary wastewater treatment plant excellent soil conditions have been found for final disposal of the treated effluent. This site was selected after review of on-site soil tests and an extensive geohydro- logical study. This site adequately satisfies the 1973 Soil Conservation Service soil survey limitations. As a result of the above utility studies as weZZ as the overall layout_ of the Oak Harbour project, Dana F. Perkins & Sons, Inc. is of the opinion that the final result will be superior to a standard conven- tional single family residence subdivision. Very truly yours, DANA F. PERKINS & SONS, INC. x 6/21 C1. It-e i Donald E. M rtinage, P. E. DEM/hmk cc: Oak Harbour Associates June- 26, 1975 Thomas George, Chairman Yarmouth Board of Appeals Yarmouth, Massachusetts RE: Oak Harbour Dear Mr. George: This is in response to your request for a better definition of the size and extent of the various facilities requested by us in Variance Number 2 for the proposed Community Center in the Oak Harbour Open Space Village. In our variance request, we listed the different rooms , shops and conveniences that we believe will be needed to serve adequately the future residents of the Development . We set a maximum ground dimension of 10, 000 square feet on the structures to house these activities but as you point out, we did not indicate how much of this space each facility might occupy, or how a typical Community Center lay-out might look. We will by this letter try to fill both gaps . First, the upper limits on the inside space to be allocated to each of the requested facilities in the Community Center building consisting of one or more linked structures) are as follows : a) Club House and Pro Shop (consisting of men' s and women' s lockers, storage space, and the shop itself) : 3, 000 sq . ft . b) Dining room, lounge and kitchen (including a coat room, dining room seating a maximum of 80 persons , wash rooms for men and women, food lockers , bar, and miscellaneous storage, but not including the connected outside deck) : 3 , 000 sq. ft . c) Community Hall (basically a multi-purpose room with entry, coat room, men' s -and women' s rest rooms , area for final preparation of food and storage areas) : 4, 000 sq . ft . d) Health facilities (consisting of men' s and women' s exercise, sauna and athletic rooms , either with showers or utilizing those included in the Pro-Shop and Club House group above) : 3 , 000 sq. ft . Thomas George, Chairman Page 2 June 26, 1975 e) Ten rooms for guests of residents (each having a separate bath and including common hall) : 4, 000 sq. ft . f) Combined post ¢office - convenience store:2 , 000 sq. ft . g) Rooms for crafts such .as wood working, art, ceramics : 2 , 500 sq. ft . h) Museum - Art Gallery: 500 sq. ft . i & j ) Offices (including management and sales offices and storage of records and supplies) : 3 , 000 sq. ft . k) Swimming pool dressing rooms (included in the pro-shop, club house group above) : 1) Recreation and game rooms : 600 sq. ft . Second, we have prepared in draft form floor plans of a possible Community Center building observing the above limits . These plans show the location and arrangement of each of the Community Center facilities and also the relative size of each. It happens that the building for which these plans apply would be one consisting of three connected substructures , the center or entrance portion and one side structure being 1 1/2 stories high and the other side structure being 2 1/2 stories . We wish to point out however, that we have not carried our planning, design work or engineering on the Community Center to the point that we are sure that the lay out depicted will be the best one for the residents of the Development. For this reason, we emphasize that these plans are submitted only to illustrate how one Community Center might look under the limitations we are imposing above on each of its components . Yours very, truly, OAK HARBOR ATES By Page 1. s 04 "TOWN OF YARMOUTH BOARD OF APPEALS Appeal No. 1321 January 26, 1984 Oak Harbor Members present: Doanld Henderson, Judy Sullivan, Les Campbell, Myer Singer, and Dewitt Davenport Edward J (Skip) Sweeney, Jr: the project is on the North side of Route 6A, Yarmouthport, MA Mr. Sweeney: a period was indicated at 10 years with a special permit. Within that time, a request could be made to extend the time period of building. This period ends in 1985. I have a written request for an extension, for the following reasons: 1. It it probably wasn't going to be completed in ten years' time 2. We have bunt Phase I (19 units) and completed portions of Oak Harbor Circle 3. Present financing requires knowledge of extension of time to build. I would like to request a ten-year extension. Ni' S nxger: Howmany have been built, sold, density, acreage? Mr. Sweeney: They have sold 9 units, out of the 19 units built. The density is 196 acres at 175 units; approximately 4 per acre. Mr. Worrell, of Planning Board (letter read by Mr. Henderson): Should there be a regular hearing? Mr. Henderson: Zoning on the Northside of Rte 6A is 20,000 square feet now. Mr. Sweeney: We could hold a public hearing after five years with a promise of a public golf course;then after eight years, enough people will be in the development to go private. Mr. Davenport: How about membership for a buck for a day? Mr. Henderson: No. It is exclusive to unit ownership only. Mr. Singer: I have no problem with Skip's interpretation including eight years course starts. Mr. Henderson: I have no fears with a public hearing. It is for input only from the people. Mr. Singer: Now planning is for two years;then you have forever if you're off the ground. Page 2. TOWN OF YARMOUTH BOARD OF APPEALS Appeal No. 1321 January 26, 1984 Oak Harbor Mr. Singer: You could only complain like it's a new hearing, such as not 750 units at that place. Mr. Sweaney: We would like to request an extension date of Oct. 16, 1990. Mr. Singer: Motion: Prior to decision for request, the Board hold a public hearing with notice to all appropriate persons at expense of petitioners. Mr. Henderson: There are about 300 abutters. Imply publication and mailing. Mr. Sweeney: After notice and advertisement by the then Board of Appeals. Mr. Singer: Motion: Notice of hearing shall be advertised and given to all Boards entitled to notifica- tion under the Open Space By-Law. Also, the request to extend time period on Special permit be 73ranted for all the reasons set forth by said petitioner Time period to be extended to 10/16/90 provided that he comply with all the require- ments Eight years on the golf course under Open Space By-Law J. Sullivan: Seconded Voting: All in favor of granted as moved. TOWN OF YARMOUTH BOARD OF APPEALS Appeal No. 1321 Oak Harbor Associates Informal meeting September 25, 1980 Members present: Donald Henderson, Robert Sherman, Morris Johnson, David Oman, Herbert Renkainen, Myer Singer. The Chairman called the meeting to order and read the petition. All abutters were notified and the necessary correspondence was made in the Cape Cod Times and the Yarmouth Sun. Attorney Greene: Representing Lighthouse Assoc. , the present owners of the project - Oak Harbor. This was approved in 1975 by way of a variance. We are here tonight because we are in the process of seeking building permits for the first 53 units of the project, 750 units in all. We are here for one particular portion. The section, sec. 3 (7) of the special permit which provides in accordance , 18.10, 7, of the town by-laws. Your Board received a detailed site plan for each stage of that section of the by-laws, for- warded to the town engineer. We have gone through all that and our plan was to see if there was any other portion that would require a review. We are not seeking any changes, so that is not necessary. I will leave a memo for the record. The by-law at that time said plans shall show dimensions, etc. . What we have done is we have made preliminary contact with each agency. You may have 4 of the 5 agencies that had to do that. The engineer is the only one that you have no report on. We think the plans meet all the requirements of all departments. This is not a definitive review they have made. We have a plan showing the overall area, showing the first site, which you are concerned with tonight. It comes in off Route 6A, has a common road. Lots #8 & #2 on the subdivision plan and lot #10 is the requirement of 30% for open space. The site plan for your consideration and review is the colored one. Lot #10 - open space is off the plan. We will have 53 units - 59 were granted in this area. The other buildings are garages that cover a parking area. The driveways are 25' in width - they don't have to be 25' wide, they may be down to 22' wide. The fire lanes are shown in light green, are wide, just foot paths, will be hard so trucks can go in and through to the buildings. On the plan, the location of the sanitary facility are shown. The facility is the unit on lot 10. Leaching field situation. Eventually there will be a septic sewage treatment plant and it will all tie in. There will be a water line, to hook up. That is all covered by the site review and they have been satis- fied. Where there are trees on the plan - it shows the unaltered natural terrain - they will remain. All designs have gone before the Historic District and will go again before construction begins. The floor elevations are shown. All of the water lines are shown on the plan. We have many other things with us tonight that we will show you if you want. These are the essential things we think you should see. What I will ask you to do is put in the record the following: (see attached memo) . Mr. Singer: Were there any anemities approved? Mr. Greene: Yes, there were. They are confined to certain locations. No requirements that they have to be built at any particular time, only that open spece be built as certain phases are put in. The location of tennis courts in #'s, ground cover, common area for pool, all which were approved as to location but the requirement to build is not a condition to the construction. Pet. #1321 Page 2 Mr. Singer: Are these on separate subdivision lots so you don't have to go forward with phase 2 or any of the amenities? Mr. Greene: As long as we supply the open space, as we go along. Mr. Sherman: Are you still planning the amenities as proposed? Mr. Greene: Yes. The golf course portion will become final within the next few weeks, the tennis courts, the clubhouse building will be constructed during this phase. Paddle ball is still planned. The golf course can be open for the public for 7 years - that is the plan. Mr. Sherman: Then after that it will go private? Mr. Greene: That is according to the granting of the variance. We are moving in that direction. If we get down to the 7th year and you think it could be left open to the public, I am sure the owners would want to do that. Mr. Singer: Once we get the town engineer report, what do we do? Mr. Greene: The wording says you will forward it to him for review and report. I believe all you have to do is you note the review has been received and placed in your record. Just by my language in your minutes, as far as approving or discussing approving, that is not what the requirement is. We want you to be happy with what is going on though. Mr. Singer: Do we have to look at the current by-law? Mr. Greene: We feel the express language referred to in the 1975 by-law - we checked 808 and are of the opinion the 1975 by-law is the controlling one. The new one has the same ingredients. Mr. Sherman: How is it that your permit is still valid? Mr. Greene: The permit had a life of 10 years. Mr. Singer: There is some language in 40A,permits granted before 808,has some indefinite life. Mr. Greene: No it didn't. I have a memo on that. 5 sets of plans are at the town engineers - you will have them back. Meeting closed. On September 25, 1980, Light House Associates, successors in title to Oak Harbour Associates, submitted to this Board, in conformity with both section 18:10-6 of the 1975 Zoning by-law of the Town of Yarmouth, and section 3(7) of the Special Permit granted to Oak Harbour Associates on June 17, 1975, the copies of the detailed plans for the initial stage of construction of the Oak Harbour Project, for site plan review. These plans will be forwarded to the Town Engineering Department for review and report. Counsel for Light House Associates and the Building Inspector will be advised when this Board has received the Town Engineer's report. TOWN OF YARMOUTH BOARD OF APPEALS Appeal No. 1 3 21 Informal meeting with Richard Anderson, AttorneyforOakHarbor July 10, 1975 A pamphlet was passed out to each member describing the questionable variances.In regard to the Community Center, we asked for a certain size building to beplacedonacertainlot . The figures are down on the plan, as to about howlargeeachroomwillbe. They may vary, each room in size, but the total sizeofthebuildingwillbejustthesame, regardless. The post office may wanttheirpartlarber, then we would have to take off from some other room. Theconveniencestorewillbeverysmalljustsellingthenecessities. The diningroomwillholdonlyabout80peoplewillbestaffedandonlyforthecondominiumpeoplenotthepublicThehallshownontheplanwi1havearoomforheatingfoodonly. The basement floor will have street level on the one side becausethisisonaslopeandwillhavetheproshop, locker rooms, etc. , as shownontheplan. The second floor will have a deck around the one side to be used asawalkway. The plans show what the second and so=called third floor will haveandgivestheapproximatesizes. Lot 1 — nothing to be built on this lot . Lot 9 will have just the plant. Thesystemitselfextendsthroughoc;t the whole development. Some of it goes throughmanylots, including lots 1 , 3, 6, 7, 9, 10, 11 , 12, 17, 18, 30 and 34. Thesewerlinescrossthroughtheselots. Mr. Oman: The only reason these relate to those lots is because of the undergroundpart? Mr. Anderson: That is right . All of these activities occur on lot 9. Thepumpingstation, we didn ' t ask for it, but you have to have the manhole to getit . It is all screened in the open spaces. We want to be sure someonedoesn ' t come in and say that is a structure. The question of variance #4 dealing with parking of boat trailers and recreationalvehicles. The request does say the gravel areas on lot 9. That is not the case.It doesn ' t show on the plan that was filed. It is at the southwesterly corneroflot9, not to be seen from Route 6A. It will be fenced in — the whole areatherewillbefencedin. Lot 1 is nothing more than an accessory road into themaintenancearea, lots 13 and 9. No parking on lot 1 . Mr. Oman: Relative to Category 4, Section B, authorizing you to submit to BoardofAppealsplans, etc. — you wanted to come back in sections. It should be3weeksnoticebeforeeachtimesoitcanbesortofanewsiteminthepapersasopposedtoapublicnotice. Mr. Anderson: That is okay with us. As to the Special Permit, we said thisprojectwouldbephasedoveran8yearperiod. Further consideration by thebigpeopleinBostonhassaidtheyfeeltogivethemselvesalittlemargintheywouldlikeverymuchtohavethat8yearpeniodbe10years. Everything is stillgearedfor8years. 1321 , informal meeting, Oak Harbor Page 2 Mr. Oman: What if the zoning changes within the 10 years? Mr. Anderson: We would have to comply with the changes. We are always subjecttothosechanges. Mr. Renkainen: Say phase 1 was built and nothing further, or maybe there werejust5sales. Mr. Anderson: This is always present — this is why the property is subdivided,into lots. You have a money lender in there who wants each phase on separatelots. The open areas are also connected with those areas. The balance of thelandwewouldgivethespecialpermitupandtherestofthelandwouldrevertbacktowhatitwas. Mr. Oman: The principals here involved — Say you do phase 1 , go into phase 2andthenyoustarttoquiver. Are we locking in the principals involved with this approval or would they be able to sell phase 3 to someone else and get out? Mr. Anderson: Say we finished phase 1 — now you are saying what would preventOakHarborfromsellingoffphase2to "A", phase 3 to "B", etc. It can ' tbedone. Mechanically you couldn ' t do it, either. If they got in trouble in phase 1 , there is nothing to prevent Oak Harbor from selling the whole project say to Etna Life — they would have to go on to the same phases, or Met. Lifecouldgoinandfollowthrough. Title could pass through only as a whole.Because of the covenant we entered into with the Planning Board, it says the minute the developer, or Oak Harbor, does not progress or complete the condo— miniums in its entirity, the subdivision plan is lost. The Planning Boardapprovalwasgoodonlysolongaswefollowwiththecondominiumconcept. We could never end up with different ownership. We cannot use the subdivision plan.We would have to come back to the Planning Board. Mr. Oman: Say phase 1 , phase 2, same thing. Phase 3 you revert to single familyhomes — does that mean that is the end of the condominium complex or can phase4gothrough? Mr. Anderson: If you default on the plan after a phase you cannot go back to another phase. Mr. Oman: You then won ' t have enough units in phase 1 if that is all that is completed. You won ' t have enough for the sewerage plan — what happens then?Would they be individual septic systems? Or Mr. Scott: It would tie into the leaching system so it won ' t be actuallyindividualsystems. We will have to utilize tome of it . We would have to use one two or three huge septic tanks, at least. We will have to put in the 14leachingfieldsanyway. 8x1.46xxXxM Mr. Oman: The Planning Board said they waived road construction rules andregulations, etc. , relative to a typical subdivision. Mr. Anderson: The Planning Board is very aware of this. We had 3 separatehearingsbeforethem. We have had meetings with them. Our hearings were ourpre—application reviews, etc . We have only one road on the subdivision plan.They agreed to waive requirements relative to these spider roads, but they sawourplansandknowwhatwewilldo — we will go by those plans. Those spiderroadshavetobeconstructedtostandard. They don ' t have to be 40 ' wide. It 1321 , informal meeting, Oak Harbor Page 3 was lef to the Board of Appeals in considering the overall project to say weapproveoftheprojectasthewayyoushowtheroads, etc. Requirements of side— walks were waived. W wanted the Board of Appeals to approve the whole concept. Meeting closed. 4 40A § 5 CITIES, TOWNS AND DISTRICTSNote71 Powers granted zoning board of ap- ordinances. Bearce v. Zoning Bd. ofpealsbyformerc. 40A did not include Appeals of Brockton (1968) 219 N.E.2dpowertonullifyactsoflocallegislative15, 351 Mass. 316.body in adopting and amending zoning 6. Existing structures, uses, or permits; certain subdivision plans; application of chapter Except as hereinafter provided, a. zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfullybegun, or to a building or special permit issued before the first publi- cation of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a struc- ture begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purposeinasubstantiallydifferentmannerortoasubstantiallygreaterex-may .tent except where alteration, reconstruction, extension or structural change` to a single or two-family residential structure does not in- a ,_,-.. .;:4.-. ... e 'At crease the nonconforming nature of said structure. Pre-existing non- conforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there isafinding,@.,. ,; , by the permit granting authority or by the special permit4-zA.Z e ' granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detri- r mental than the existing nonconforming use to the neighborhood.L` .' '` This section shall not apply to billboards, signs and other advertisingr"' `"'' " devices subject to the provisions of sections twenty-nine throughk thirty-three, inclusive, of chapter ninety-three, and to chapter ninety-three D. A zoning ordinance or by-law shall provide that construction or operations under a buildingor specialp permit shall conform to anysubsequentamendmentoftheordinanceorby-law unless the use or f construction is commenced within a-.-period of not more than six t months after the issuance of the permit and in cases involving con-Zy struction, unless such construction is continued through to completiontip --- as continuously and expeditiously as is reasonable. 0- -A zoning ordinance or by-law may define and regulate noncon-j +`.forming uses and structures abandoned or not used for a period oftwoyearsormore. Any increase in area, frontage, width, yard, or depth require- ments of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recordingorendorsement, whichever occurs sooner was not held in common4 ownership with any adjoining land, conformed to then existing re-.---- z----- quirements and had less than the proposed requirement but at leasts= _-_.. = 110 a C' El u f.a.,,. y,.r x-- -ems.,. r- ar fib .u.. iX'`_.., ma`s. t..s `- 7 c n xA`at '."- '_.:.'°'•: r.. 3s..` a.va .., wr .. r3'r .:. . * z Fv_. ZONING 40A § 6 five thousand square feet of area and fifty feet of frontage. Any in- crease in area, frontage, width, yard or depth requirement of a zoning ordinance or by-law shall not apply for a period of five years from its effective date or for five years after January first, nineteen hundred and seventy-six, whichever is later, to a lot for single and two family residential use, provided the plan for such lot was recorded or en- ers, dorsed and such lot was held in common ownership with any ad- joining land and conformed to the existing zoning requirements as of January first, nineteen hundred and seventy-six, and had less area, frontage, width, yard or depth requirements than the newly effective zoning requirements but contained at least seven thousand five hundred square feet of area and seventy-five feet of frontage, and provided that said five year period does not commence prior to Janu- ary first, nineteen hundred and seventy-six, and provided further that the provisions of this sentence shall not apply to more than three of such adjoining lots held in common ownership. The provisions of this paragraph shall not be construed to prohibit a lot being built upon, if at the time of the building, building upon such lot is not pro- hibited by the zoning ordinances or by-laws in effect in a city or town. If a definitive plan, or a preliminary plan followed within seven months by a definitive plan, is submitted to a planning board for ap- proval under the subdivision control law, and written notice of such submission has been given to the city or town clerk before the effec- tive date of ordinance or by-law, the land shown on such plan shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of the first such submission while such plan or plans are being processed under the subdivision control law, and, if such definitive plan or an amendment thereof is finally approved, for five years from the date of the endorsement of such approval, except in the case where such plan was submitted or sub- mitted and approved before January first, nineteen hundred and seventy-six, for seven years from the date of the endorsement of such approval. When a plan referred to section eighty-one P of chapter forty-one has been submitted to a planning board and written notice of such submission has been given to the city or town clerk, the use of the land shown on such plan shall be governed by applicable provisions of the zoning ordinance or by-law in effect at the time of the submis- ri sion of such plan while such plan is being processed under the sub- division control law including the time required to pursue or await the determination of an appeal referred to in said section, and for a period of three years from the date of endorsement by the planning board that approval under the subdivision control law is not re- quired, or words of similar import. Disapproval of a plan shall not serve to terminate any rights which shall have accrued under the provisions of this section, pro- vided an appeal from the decision disapproving said plan is made 1 1 1 TOWN OF YARMOUTH - SITE PLAN REVIEW 2,52„...„‘„ tkr- 5 tyI APPLICANT: Oak Harbour Condos Dave Oman LOCATION: Off Route 6A ASSESSORS' MAP. #. 120, 127, Yarmouth, Mass. 02673 PARCEL # 128, 134 FIVE DATE: Feb. 16, 1982 FIR XSETS OF PLANS SUBMITTED: YES X NO PERSONS PRESENT AT REVIEW HEARING: F.? 1C dr I,At , a -Itii E4L t( J/ R{r 1.- 1 P C_'.0 rL' k _1'- - r N-e_ r H J—_k c ,A.et-A.c PLAN DISAPPROVED COMMENTS/INFORMATION TO BE FURNISHED BY APPLICANT: PLAN APPROVED CONDITIONS AGREED UPON: Sri .<71a4-e-4/ 9 ADDITIONAL COMMENTS : SIGNED: FEB 17'82 OMAN CONST. OAK HARBOR CONDOMINIUM CONDITIONS 1. Fire Dept. wants water up to first hydrant prior to commencement of wood construction. (foundations & any other non-combustable construction OK) . 2. Town needs revised sewage plans showing location of control and alarm panels. 3 . List all "Top of foundation" elevations showing 2 feet above high point of road, drive or parking area at the buildings. 4 . No bedrooms are to be constructed in walkout or any basements. 5. Plans are to be provided to the Engineering Department showing the breakdown of the drainage areas for approval of calculations . 6 . If road consturuction is to be bonded the applicant shall provide cost estimates to the Planning Board for forwarding to and approval by the Engineering Department. 7 . The Town is to be provided easements to cover road drainage on Oak Harbor Drive. 8 . The Engineering Department is to review the revised plans provided to-day. (2/16/82) 9 . The question of the effect of the provisions of the Zoning Act (under Ch. 808 of the Acts of 1975) on the outstanding Special Permit must be addressed by Town Counsel and/or the Board of Appeals, but in any case, prior to the issuance of a building permit. 10 . The question of "Final subdivision plan" under item 6 of the covenant must be resolved prior to lot releases . 11 . Proper documentation assuring the preservation of the open space is to be provided prior to the issuance of building permits . 12 . It is recommended that, if permits can be reasonably obtainedfromStateDPW, acceleration and deceleration lanes be constructed off Route 6A onto Oak Harbor Circle . TOWN OF YARMOUTH BOARD OF APPEALS Appeal No. August 26, 1982 Gerald Garnick Informal meeting - re Oak Harbor Members present : Donald Henderson, Les Campbell, David Oman, Thomas George, Augustine Murphy. Mr. Garnick: The purpose for coming before you - the only reason we are here is because of the suggestion of the Planning Board. The Fitzsimmons have had a long-running dis- cussion with Oak Harbor. The reason for it is because there is a road that goes right through the Oak Harbor subdivision. When they sold the property, there was an agree- ment on record and at the Registry of Deeds, that the owners of Oak Harbor would give them a right of way from Nottingham Dr. to lot 4. They have been trying to get that for the last 7 years. When they came in front of you, they were having a terrible association with the previous owners. They then came to get a subdivision - the Planning Board didn't refuse it but wouldn't consider it because there was no actual right of way. They couldn't convince the Planning Board there was one. They now have a Land Court Plan - a new parcel - #38 - to be where the road is, the drainage easement. There is an actual easement that is to be filed - it will be recorded. Lot 38 will be an extension of Nottingham Dr.to the lot in back. They can then go to Planning Board to subdivide at this point. The Planning Board will say they want a copy of the signed easement itself, a letter from the Board of Appeals that says the placing of the road and it doesn't infringe on the open space, from the grant of the special permit you gave them. There won't be any building here. We are only here to get a letter saying the lot on Nottingham Dr. is access to lot 4 and that this wouldn't be in contradiction to the open space. Hockanom Rd. ends and does not get to lot 4 if this doesn't go through. They could require Oak Harbor to finish the road to go to their lot. Mr. Oman: It sounds like you are saying Hockanom Rd. has been altered or something. Mr. Garnick: No, it just doesn't reach their lot. It misses that lot. Mr. Oman: Who did the Fitzsimmons give up their rights to? Mr. Garnick: To Scott Jordan. Mr. Oman: Is it right now part of Oak Harbor? Mr. Garnick: Yes. It was all their land. They in a sense land-locked themselves. In consideration for them giving them a right over Nottingham Dr Mr. Oman: How can anyone give up their rights over a road? Mr. George: I think he is saying Hockanom Rd. goes right up to Bray Farm. The Fitz- simmons , when they sold,gave up their rights. . . .they now have no property to get to their lot. Mr. Henderson: If the easement predated the special permit, the agreement to grant this easement. . .our special permit said nothing about the easement, so the only question before us would be is if this 40' road layout takes away so much so it jeoprodizes the open space part of the special permit. If you take that road out of the open space, that doesn't bring the project below the request of the open space. Mr. Garnick: That is all correct. That was all represented to the Planning Board. Mr. Henderson: If that is the case, I don't see any problem. I have no objection writing a letter along those lines , if Oak Harbor attorney verifies they are satisfied the formula for open space is not violated. Mr. Garnick: That is all they want. They are satisfied with a letter from you. Mr. Henderson: If their attorney agrees to this, I have no objection to it. Mr. Garnick: The agreement was about 1973. Mr. George: The special permit was issued about 8 years ago, so about 1974. Mr. Garnick: At the time all this came up, the Fitzsimmons came before everyone and told them of the agreement. I have the grant of easement. Mr. Oman: What is the litigation you alluded to? Mr. Garnick: Lighthouse has defaulted in their agreement, and then Richard Burling got involved and told me not to go any further. He took over and got us this far and we came up with the easement. I took the legal proceedings to get this to come to a head. Everyone knows what the situation is. Mr. Henderson: Show us this road which will be an improvement and show that it doesn't interfere with the open space of that special permit. This settles some litigation by the parties. If it keeps the Planning Board happy, then okay. I don't think the Board wants to make representation that this would or would not have any affect with the special permit. We don't want to give an opinion to that effect. We can give the letter if we have your assurance. Mr. Burling: We can give you that. The plan was for 196 acres , sufficient for 844 units, only building maximum of 150. So we had that much leeway. The road itself will not be as wide as the easement. It will only be as wide as required. There is ample excess open space to allow this road to go across, as a means of access to lot 4, as an alternative to Hockanom Road. Planning Board just wants to be sure the wording of the special permit is. . . .as long as there is sufficient open space, and there is, to accommodate the number of units. Mr. Murphy: Is there a house on lot 4? Is it for sale? Mr. Fitzsimmons : No house on it, but we hope there will be. Mr. Garnick: This lot will be subdivided. Also, the date of the agreement was October, '75. There is really nothing that deters from the special permit. Mr. Oman: To Mr. Burling and Mr. Garnick - you indicated that this was on recorded - how did the bank. . .why didn't this question come up at that time? Mr. Burling: The bank knew about this , at least within the past several months. They are aware. Mr. Garnick: They are in my suit and were sued. The previous bank - MGIC. Mot,ion b Mr. George to wri letter, Mr. Campbell 2nded, all in favor, Mr. Oman abstained.with copy' or this retter to r. tan. 5 TOWN OF YARMOUTH t BOARD OF APPEALS Appeal No. February 25, 1982 Discussion on Oak Harbor Condominiums Members present: Donald Henderson, Les Campbell, Myer Singer, John Lee Marchildon Mr. Henderson: The original plan was dated December 1974 and approval was givenatthattime. Site plan and architectural plans received for the file. Mr. Burling( attolney ): A decision was made in 1975; there was no site plan review committee like what was done Tuesday, February 23, 1982. The Board of Appeals has asked for this seven years ago when this was originally reviewed. There are many variances to fit this in, such as Section 18 "cluster zoning".It is called Variance No. 11, or a special permit decision. The Site Plan Review Committee(newly created) has approved it. Mr. Oman (speaking for Oak Harbor Condominiums, as builder): Overall unit numbers have been keyed down from 8)44 to 7)44 units, not to exceed 750 units. Mr. Burling: As of September 1981, site plan committee approved of the development. Mr. Henderson: Approval was for Unit #9. Mr. Burling: John Creney is writing a letter that Section 808 doesn't apply. They have 10 years to get a building permit/building permits. Mr. Oman: There has been $150,000 worth of work going on prior to this hearing. Mr. Burling: Don Anderson has agreen that this doesn't fall under Section 808. The Town of Yarmouth Board of Appeals Petition 1321 hearing dated May 15, 1975grantedVariance11, as a specific finding: Sequential admission of site plan for each phase prior to any addition to this for any phase to begin. Mr. Oman: There was a built-in control of this project. Mr. Singer: I would have to read all of this (proposal for Oak Harbor Condos.)to make a decision. The Site Plan Review Committee has authority to check it ourandreporttotheBoardofAppeals. Mr. Henderson: The Environmental Impact Study Committee has come up with this TOWN OF YARMOUTH BOARD OF APPEALS Appeal No. Discussion on Oak Harbor Condominiums February 25, 1982 Page 2. Mr. Henderson(cont.): report. Since this is the biggest project the town has ever seen, we will be guided by the judgement of the Site Plan Review Committee. Reports should go out to Dept. Heads. Mr. Oman: We are after fifty-three units now. Phase I will include 53 units which will be broken down to a finer grouping of 19 units (4 clusters in a village of 19 units). Mr. Henderson: What about the open space? Mr. Oman: Lots 2 and 8. The green will be off this site and will include sewage and septic field. Sewage will go to a pumping station and down to the field. Mr. Henderson: The theory was that the Phases might never be completed. There will he strictly no amenities. Mr. Oman: No. Motion made and seconded: Village A for proposed fifty-three units subject to petitioner complying with the Town of Yarmouth Site Plan Review Committee Sheet dated February 16, 1982, with getting approval from John Creney and Condition 9 being approved by Town Council. Voting: All in favor of granting motion. Mr. Henderson: As chairman, I would like to request a letter sent to all of the department heads connected with the Site Plan Review Committee and that the Board of Appeals rely heavily on their decisions. Plan received for Oak Harbor Condominium file. GARNICK 8 PRINCI, P. C. ATTORNEYS AT LAW GERALD S. GARNICK 22 MAIN STREET MICHAEL J. PRINCI POST OFFICE BOX 397 HYANNIS, MASSACHUSETTS 02601-0397 DIANE A. SHRANK 617) 771-2320 PETER W. PRINCI July 23, 1982 COUNSEL Yarmouth Board of Appeals Town Hall, Main Street South Yarmouth, MA 02664 Re: FitzGerald, Johnstone and Dolores Lot #4, Nottingham Drive, Yarmouth Our File #5784-1 Dear Members of the Board of Appeals: Please be advised that I represent Johnstone and Dolores FitzGerald. They own a piece of property which abuts and is in the back of the Oak Harbour subdivision. They are presently obtaining their Easement connecting Nottingham Drive to their back parcel of property over the Oak Harbour Condominium property. We have had the plan approved by the Planning Board, but we need to review the granting of the ease- ment and the placement of the road on the Oak Harbour property with the Board of Appeals. Richard Burling of Barnstable is representingOakHarbour. The purpose of writing this letter to you is to request that Attorney Burling and I appear before your Board concerning this matter. Would you please infolm me as to when we can be placed on the agenda to discuss this fully. If you contact me and inform me as to when we can be placed on. the agenda, I will then coordinate the presence at the meeting with all other participants. Please may I hear from you. Very truly yours, GARNICK & PRINCI, P.C. Gerald S. Garnick GSG/jnh cc: Richard Burling, Esq. cc: Mr.and Mrs. Johnstone FitzGerald OF.YA4 TOWN OF YARMOUTH SOUTH YARMOUTH MASSACHUSkt IS 02664 C HATTAIC E I Boa.oRATto/6 BOARD OF HEALTH May 19 , 1982 Dave Oman Lighthouse Assoc. 546 Higgins Crowell Road West Yarmouth, Ma 02673 Re: Oak Harbour, Route 6A, Yarmouth Dear Dave: This letter is in regards to the construction of the above development subsurface sewage system. It appears the subsurface sewage system is not located on the lot which it serves. The Town of Yarmouth amendments to Title 5 of the State Environmental Code, regulation 2-18 states, "Multiple Use - the common use of an individual sewage system by more than one property, dwelling or other premise is prohibited unless written approval is obtained from the agent of the Board of Health. The sewage disposal system shall be located on the one lot which it serves. " The State Environment Code Title 5, 310 CMR 15. 02 : 18 states , Multiple Use - the use of a subsurface sewage disposal system by more than one lot is prohibited. " Formerly Article XI (now Title 5) regulation 2-16 states, Individual Service - the use of an individual sewage disposal system by more than one property, dwelling, or other premises is prohibited. " The State Department of Public Health issued a position letter in 1973 regarding intent of regulation 2-16 of Article XI of the State Sanitary Code, enclosed, which states , in part, that it was the intent that the individual sewage disposal system must be on the property it serves. Therefore, it appears you must submit application for a variance from the Town of Yarmouth, regulation 2-18 and Title 5, regulation 15. 02 : 18 . The procedure for a Board of Health variance is as follows : 2- 1) A copy of the locus of the parcel (s) in question. 2) List of all abutters names, addresses, with parcel and map number. (This includes abutters on all sides of the property in question, as well as across the street, roadway, etc. ) 3) The Health Department will notify all abutters by registered mail at least two (2) weeks in advance of the Board of Health hearing. If you have any questions, please do not hesitate to contact me. Very truly yours, Z4cam_,! c.Cc7g vZt Bruce Murphy, Hea th Agent Town of Yarmouth cc: Virginia Robinson, Chairman Bd. of Health Robert C. Lawton, Jr. Executive Secretary Forrest White, Acting Inspector of Buildings Edward Donnelly, Town Planner 3.--Donald Henderson, Chairman Bd. of Appeals Steven Shuman, Chairman Planning Board file enc BM/rw GARNICK 8 PRINCI, P. C. ATTORNEYS AT LAW GERALD S. GARNICK 22 MAIN STREET MICHAEL J. PRINCI POST OFFICE BOX 397 HYANNIS, MASSACHUSETTS 02601-0 397 DIANE A. SHRANK 617) 771-2320 PETER W. PRINCI COUNSEL October 13, 1982 Ms. Joyce Sears, Board of Appeals Town Of Yarmouth Town Hall, Main Street South Yarmouth, MA 02664 Re: Johnstone FitzGerald Nottingham Drive Extension Application Our File #5794-1 Dear Ms. Sears: Pursuant to your telephone conversation with my office on this date, enclosed herewith please find a photostatic copy of a copy of Mr. Burling's letter dated October 6, 1982, the original of which was sent directly to the Appeals Board. Very truly yours, GARNICK & PRINCI, P.C. 2/. Gerald S. Garnick GSG/jnh Enclosure RICHARD S. BURLING ATTORNEY-AT-LAW 3217 MAIN STREET POST OFFICE Box 205 TELEPHONE BARNSTABLE. MASSACHUSEITS 02630 617) 362-4584 October 6, 1982 Appeals Board Town of Yarmouth 1146 Route 28 South Yarmouth, MA 02664 Re: Johnstone Fitz-Gerald Nottingham Drive Extension Application Gentlemen: I am writing in behalf of my client, Light House Associates, with regard to the application of Mr. and Mrs . Johnstone Fitz-Gerald to extend Nottingham Drive across Lot 22 as shown on sub-division plan for Oak Harbour recorded in the Barnstable Registry of DeedsinPlanBook300 , Page 5. My client has granted an easement fiftyfeetinwidthacrosssaidLot22fromthepresentendofNottingham Drive westerly to the property shown as Lot 4 owned by theFitz-Geralds. This easement was granted as a result of an agree- ment reached between the Fitz-Geralds and my client's predecessors in title as a means of providing the Fitz-Geralds with an alternate form of access to their property so that they would not have to use Hockanom Road. A copy of this agreement is attached hereto. Among the provisions of this agreement is one which requires that the granting of this easement and the subsequent approval bythePlanningBoardfortheextensionofsaidNottinghamDrivewillnotalter, amend or modify the present Oak Harbour sub-division plan or the special permit therefor. I am requesting, on behalfofmyclient, that in your letter to the Planning Board, which theyhaverequestedonthestatusoftheNottinghamDriveExtension, you clearly state that the granting of this easement by Light HouseAssociatesandthesubsequentextensionofNottinghamDriveoversaidLot22willnotalter, amend or modify or have any adverse effect on the special permit for the Oak Harbour development. The Fitz-Geralds, in paragraph 7 on page 3 of the above mentionedagreement, agreed to release their rights to pass over HockanomRoad. A release of these rights will be recorded and it is our understanding that since the Fitz-Geralds are the only propertyownersbeyondOakHarbourtowhomHockanomRoadprovidesaccess, the release of their rights over Hockanom Road will insure that Hockanom Road is maintained in its present status as an undevelopedancientway. At a hearing before your Board concerning this matter on September 9th, you requested a statement concerning the effect of removing the amount of square footage necessary to develop Nottingham Road Extension from the total available land for open space, as noted in the special permit for the development of Oak Harbour on page 6 there are 8, 436 , 518 square feet of land. It is further noted that the maximum number of dwelling units which could be built on this area is 844 . Only 750 dwelling units were asked for and granted in the special permit. Based on the differen- tial of 96 units between the allowed and the requested number of units there is an excess of open space available of approximately 330 ,000 square feet. Since the total area granted under the easement is only 37, 822 square feet, there is ample extra open space area available to ensure that throughout the development of Oak Harbour the required 300 of open space land will be available for dedication as each new phase of the development proceeds . Yours truly, Richard S. Burling t/ AlJWW 2 0 1982GARNICK8PRINCI, P. C. ATTORNEYS AT LAW GERALD S. GARNICK 22 MAIN STREET MICHAEL J. PRINCI POST OFFICE BOX 397 HYANNIS, MASSACHUSETTS 02601-0 397 DIANE A. SHRANK 617) 771-2320 PETER W. PRINCI August 19, 1982 COUNSEL Donald F. Henderson, Esq. 776 Main Street Hyannis, MA 02601 Re: FitzGerald, Johnstone & Dolores Nottingham Drive, Yarmouth, MA Our File #5784-1 Dear Donald: With regard to the above-captionRd matter, I enclose herewith my July 23, 1982 letter to the Yarmouth Board of Appeals. It is my understanding that you are presently trying to place us on the agenda. Time has become important on this matter, and I would greatly appreciate it if you could possibly set us down on the agenda at the next available meeting. Very truly yours, GARNICK & PRINCI, P.C. s,"Gerald S. arnick GSG/jnh Enclosure OAK HARBOUR PROJECT MEMORANDUM ON OCCASION OF APPLICATION FOR BUILDING PERMIT July 22, 1980 Upon application for a building permit by Oak Harbour Associates, two questions may arise. They are as follows: 1 . What is the involvement of the present Board of Appeals in this process; and 2. What is the effect of Chapter 808 of the Acts of 1975 upon the Oak Harbour special permit and variances? The following memorandum was prepared to answer these questions. I. BOARD OF APPEALS INVOLVEMENT The special permit and variances granted to Oak Harbour Associates have been reviewed in conjunction with the 1975 zoning bylaw and current zoning bylaw to determine what compliance with the same was necessary in order for the present developers of the Oak Harbour project to obtain building permits for the first stage of the development. With respect to Board of Appeals involvement in this process or prior thereto, the requirements of the special permit are twofold. First, provision No. 1 of the permit reads : The maximum number of dwelling units desig- nated below for the lots listed shall not be change( without the prior review and assent of this Board. " r Secondly, provision No. 3, Subsection 7, of the permit reads as follows: In accordance with Section 18 :10-6 of the Town Bylaws, this Board shall receive from the petitioner a detailed site plan for such stage or phase meeting the requirements of that section of the bylaw, which plan shall be forwarded to the Town Engineering Department for review and report. " Section 18 :10 of the 1975 Bylaw contained the general admini- strative procedures, while Subsection 6 thereof was concerned with the procedure for site plan review. That subsection provided that: Forthwith upon their receipt, a copy of the above plans shall be forwarded by the Board of Appeals or the Building Inspector to the Town Engineering Department for his review and report. " This is essentially the same requirement of the permit. The permit, however, states that submission of the plans should be to the Board alone. Under the comparable provision of the current zoning bylaw, submission of these plans is to the Building Inspector only: Forthwith upon their receipt, a copy of the above plans shall be forwarded by the Building Inspector to the Town Engineering Department for its review and report. " Section 1433 . Furthermore, the current site plan review procedure includes a joint meeting of the Building, Engineering, Health and Fire Departments only. It would seem that the intent of the current Bylaw and procedure established pursuant thereto, was to relieve the Board of Appeals of having to participate in site plan review proceedings. Because of the specific language used in the Oak Harbour special 2 permit, that plans would be submitted to "this Board" even though the Bylaw permitted otherwise, the present developers feel that it was the intent of the Board which issued such permit that they or their successors would receive such plans in the first instance. Furthermore, the language used by that Board in their specific findings for Variance No. 11 (Site Plan Delay Variance) supports this interpretation. The Board had found that: In our estimation, it would be burdensome in the extreme if the Petitioner were to be required, before the first buildings have been started to prepare and submit for the whole project the detailed information required under Yarmouth 's Site Plan Review By-law . . . . More practical in our judgment would be a sequential submission of site plans for each phase or cluster prior to application for or issuance of a building permit for that phase or cluster. The Board also feels it would have closer supervision of the project under the above situation. " (emphasis supplied) . Therefore, although the present procedures do not require such submission, the present developers of the Oak Harbour project will submit a copy of their detailed site plans to the Board so that they will be in compliance with the Oak Harbour special permit as issued, and as interpreted. II. VALIDITY OF THE OAK HARBOUR SPECIAL PERMIT AND VARIANCES In 1975 the Board of Appeals granted the instant special permit and variances to Oak Harbour Associates. Chapter 808 of the Acts of 1975 was also enacted in that year and as one zoning authority has found, that chapter "caused fundamental change ( s) in Massachusetts zoning practice. " Massachusetts Zoning Practice Under the Amended Zoning Enabling Act. Martin R. Healy, (1979 ) 3 64 Massachusetts Law Review No. 5, p. 157. Two of those funda- mental changes concern time limitations within which rights granted by variance or special permit must be exercised. These new provisions are now in effect1 and whether or not they should be construed as applying to existing special permits and variances is a question that has not yet been definitively answered, but a clear suggestion is to be found in case law. As the court in Austin v. Boston University Hospital , Mass. , 363 N.E. 2d 515, 517 (1977) found: Our general rule, easily stated but not always easily applied, is to construe statutes which deal with substantive rights, rather than remedies or procedure, as operating prospectively only, unless the legislature has stated the contrary explicitly. " emphasis supplied) . See also Town of Canton v. Bruno, 282 N.E. 2d 87, 92-93 (1972) . In construing these statutes, the court has a duty to discern the intent of the legislature on the basis of all pertinent evidence. " Town of Canton, supra, p. 92. The legislative history of Chapter 808 consists mainly of a report prepared by an Advisory Committee established by the legislature to study and report on planning and zoning laws, and a study and recommendations concern- ing the same prepared by the Department of Community Affairs. The Department apparently relied heavily on the Advisory Committee 's The Yarmouth Zoning By-Law has been amended so as to include the specific lapse language from c. 40A with respect to special permits but the By-Law is silent as to the lapse of unexercised variance rights. 4 report. See 1972 Report on Zoning in Massachusetts: Proposed Changes and Additions to Zoning Enabling Act Chapter 40A, prepared by the Massachusetts Department of Community Affairs, Leon Charkoudian, Commissioner. This report, however, is silent as to the reason for and the meaning of these lapse provisions. This lack of information creates a situation similar to the one in Austin, supra, p. 517, wherein the court found "The question is one of legislative intent, and, in this instance, the legisla- ture has given no explicit guidance on the point. " The court in Austin then determined that since the section in question was largely procedural , the application of it to existing claims would not interfere with the reasonable expectations of the parties at the time of the transactions giving rise to those claims. " 363 N.E. 2d 517. This would not be the case with respect to the special permit issued for the Oak Harbour Development. The permit provided that the developer would have a period of ten 10 ) years within which he was to obtain his building permits and, furthermore, that during the last two (2 ) years of the ten-year period, the developer could request an extension of the ten-year period. In addition, the special permit was made to run with the land and to be exercisable by successors in title. These were expectations of the original permit holders and the present successors in title which would clearly be interfered with should these lapse provisions be given retroactive effect. Martin R. Healy in his article in the Massachusetts Law Review, supra, p. 169, found that: 5 The statutes of limitation provided by Chapter 808 should be applied to pre-existing causes of action for the reasons previously discussed. However, other new limits estab- lished by Chapter 808 (variances must be exercised within one year; special permits must be exercised within two years; subdivi- sion plans have a five-year zoning freeze) should not be applied retroactively because they affect substantive rights vested before Chapter 808 became effective. " As authority for this conclusion, Mr. Healy cites Building Inspector of Acton v. Board of Appeals, 204 N.E. 2d 296 (1965) and Vazza v. Board of Appeals of Brockton, 269 N.E. 2d 270 (1971 ) . Both cases concerned Section 7A of Chapter 40A and whether or not certain amendments of that section were to be applied retro- actively. Both courts found that: At least in the absence of very clear statu- tory language, we do not apply legislation retroactively in such a manner as to affect substantive rights. " 204 N.E. 2d 296 , 299 ; 269 N.E. 2d 270, 273. (emphasis supplied) . On the contrary, the language "granted under this section", which is used in the new lapse provision for special permits, might indicate a prospective application only. The language of the variance provision, however, is less clear. See, Application of Chapter 808 to Existing Structures, Uses, Plan Variances and Permits. William C. Hays, 22 Boston Bar No. 4, p. 17, 20-28. Mr. Hays suggests that the lack of the aforementioned language granted under this section" in the variance provision might at first reading indicate an intent by the legislature to have the provision apply retroactively. This is contrary to the court' s requirement of the use of "clear" and "explicit" language, whether in the affirmative or the negative, by the legislature before a 6 statutory provision will be applied retroactively. Town of Canton v. Bruno, 282 N.E. 2d 87, 92-93 ; Hein-Werner Corporation v. Jackson Industries, Inc. , 306 N.E. 2d 440, 442 (1974) ; Palmer v. Selectmen of Marblehead, 335 N.E. 2d 349, 352-353 (1975) ; Austin v. Boston University Hospital , 363 N.E. 2d 515, 517-518 (1977) . The Oak Harbour variances are, however, different. As the variance decision says: These accessory and appurtenant facilities are not clearly permitted under Section 18 : 02 and 18 : 07 of the By-Law. We do not believe this was intended and conclude that the omission of common accessory facilities was inadvertent, but under a literal interpretation of the By-Law, these facilities may be excluded which in our judgment imposes a significant hardship on the Petitioner not of its own making. " Furthermore, the variance states that: None of the structures or uses reflected in these variance applications represents a building or an activity designed to stand independent of the basic plan for the site, that of a cluster-type residential development. " Accordingly, these variances could not be exercised and were not intended to be exercised until the various stages allowed by the special permit were commenced. Since the original developers did make use of the special permit immediately after its issuance by clearing the area and by beginning construction of the road to be known as Oak Harbor Circle, in accordance with the Planning Board Covenant concerning the same, the permit would be protected from the new lapse provision even if that provision were to be interpreted as being retroactive, since this would constitute a "substantial use" of the permit as required by that section. Therefore, since the permit is still 7 valid, the variances must also be valid since they cannot exist separately from that permit. Respectfully submitted, Alan A. Green Attorney for Oak Harbour Associates 8