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HomeMy WebLinkAbout4282 Kings Way Golf Course Rebuttal to Opposition Received at Hearing ReCZ/Ve® MEMORANDUM Ai T q R To: Yarmouth Zoning Board of Appeals 1NG From: Michael B. Stusse Attorney for Kings Way Trust Re: Appeal#4282 Date: November 12, 2009 REBUTAL TO OPPOSITION On November 10, 2009, a letter was filed in opposition to the instant appeal on behalf of an abutter, Davenport Realty Trust. This memorandum is offered as a rebuttal to the points voiced in the foregoing letter. The abutter alleges the following: 1) Paragraph #5. Public golf courses are not presently a permitted use in the R-40 Zoning District. The Use Regulation Table at 202.50 N-6 (Exhibit"1") allows such use byof a special permit; 2) Paragraph #5 The initial decision of the Board approving the project.... "granted a variance for limited non-resident use of the golf course." Actually the original approval of the golf course was by way of a special permit and not a variance. A copy of page 19 of the Board's Decision in#1321 is attached. The Board found that the golf course was authorized under the open-space provisions of then section 18.07 of the Zoning By-Law. (Exhibit#2). 3) Paragraph #5 The letter states that the developer's request for a permit for a golf course was a request for a variance. However the Board's decision in Petition#1321 at page 14, specifically found at paragraph# 6 the recreational facilities of Kings Way, including the golf courses, were regulated accessory uses authorized by special permit. (See Exhibit#3). 4) Paragraph #7. The opposition letter again asserts that the original decision was a variance. The by-law then in place at Section F allowed recreational uses for residents and guests, (See attached Exhibit#4) except for 1975 zoning by-law. 5) Paragraph #9. The opposition asserts that the Board only allowed the golf course public play because ... "not enough homes had been completed." The Board should note t the original 750 dwelling units authorized; only 475 can now be built. hat of 6) Paragraph #10. The opposition again asserts that the golf course is authorized by a variance. The only variance at issue was limited public play for non-residents. The golf course was by way of special permit. Under the present zoning by-law, the land set aside for conservation or recreational purposes is not limited to use by residents of the development only. Section 402.6.2 of the Cluster Development By-Law provides that the land may be conveyed to the Town for a public park. Finally, the opposition demands that the request uest in Appeal applicant improperly seeks a special permitand the eaier perm t ha lapsed. edbecause the The Trustees of King's Way urge the Board of Appeals to reject this argument as it is clear that the golf course was built pursuant to a special permit, is an allowed use in the R-40 District and the absence of showing nuisance or detriment, the Permit should be granted. Respectfully Submitted By: Michael B. Stusse Attorney for the Applicant Ardito, Sweeney, Stusse, Robertson& Dupuy, P.C. 25 Mid Tech Drive, Suite C West Yarmouth, MA 02673 508 775 3433 Exhibit "1" 1 • I 111 l 41 g O O :' Z Z Z Z Z Z Z Z Z Z Z Z `,aZ-, `g o N _. -.,,,,,4 -' _, _, CO co a) Ui •- co N , . c N -x N N r— p ` o m 0 -o 0 -0 0 W 0- —1 0 cn * m g "' -1 0 o co D Q cn v 0 eL � c �. 0 c c o w 2 � m 0 �= 0 c<.4410 BCD w a cn `fn N 4 ICA =CD = 0 (D ° 0 v cn v ° o' ° N N o_ cn 13 c n v C cm 3 0 Q b 0 ( (D 0 Q'• cn c C) 0 v cD 7-a in tni 92. ° o- ° Cl) ,Z`, 'Z c v 0 N0 N0 = , ncD o co :rn 7 n 0 = v w . -* Sp 20 o O 0 (D (D (D O CD CD w _ { 0 fll [fie 6 A _. m v �' v 0 ( °' n S -`n 93 0 cn w e '2 a 0- I`1'1' `° 0- o O= 7 Q = Q A o € 'c -gyp CD -D p'— ', S �• fn' CrCD 5' cfl CO CD Pt) E- rn , f 73 = > W n = -W > > = = 0.. > > > = Ella= 0 0 `" i 0 0 0 > o 0 > 0 0 0 0 0 A' 0 0 0 0 b" ` cp N N? o — 0 o 0 0 0 0 0 0 0 0 0 0 0 O O 0 , A N N ya '= .4 • 14 A { r `G `G �? ° (D � W 7 W W W W W W W W W N � � � � % W 0 -,, 0 > 0 > > > > > > > > D " m w m m 4'{ 1 G co b. 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" - Exhibit "2" P,,, , Ge �' the go.,,.. v phase is ties l�'LLV•- G1 rG,a�c c�C e pi�a�s-. d�ari earlyY r. , 1-sam is .he co--I-ructionthe racilitY As such, �... . � patronage of the de��e]opn�e��t zs completed.: vi.ded_ e S e level of -a P�ans rhea nr the nei g ib e _i 8 hoar 1 �� ';: ® _ ..:. v V O 14�� ce tPY ar t Y ha Co -tit:' . r. :^ :ai3 ;;oZ a ox the eti F� �> ` gC� .f o that nofic cow Koine `y� `�>a a c r, � ka ¢p1�i ►t$ �� 2o+ �'" i�t o nt :, E.' .v ,i re u. ..., ; _0 4:,� arbour 3rcl r Z i-w r� .x F e a t Y '�d$ c i c'C1E i- , .A.' 'ii � } b-oili iie 4wil ' to la eu site, • .an-.4 , . �- �,, a}iosed fai Si wT� Y�St�� ����ii.DCK� '�ca :�,i12 ' Se nr: = : P `500:feet ..f:rom any_P _-e T. Pnately ' tsofthegolf business -aspc�seof thly ;to co ...„ � " 'o .the iantt_ tha the ent Wll - � ce-.��.11 be lisnite�+: in timcoe construction of 'the r�ev��'�P��$tory ; :form of ev Ye p tY.f. �.' xia ure f rom t fcur8e l�n`:thy aif Icant depart act "ftr t o.: sag. n ration �f $ °: f}�.ic1a rb �i�•ss t '. ` riM: W olved. . Second,- pe dd 4-*I temp' . Section- i8�O7• and:: .the_ a o res therefore, Space of f sect ��; h�� '" . of ,. in flux �u�n ftsei-f *Vitk. :� tit!'ze. 1-dints: it . -haw in p, U,�� �fieY � ..�..:.. e�rmxtted .u�:�aEr the by � requested- the -temporary ill k x .. tAae .flc ..-fin �•tli P the !purpose.:of u ort a primary cons �t� w.e f ' d thai ,ossib -e ana t-o .s .PF �- ' . 3 to crake p , :�T�:�.�:�a es- ��c�e�-�t���:..1 r �41-zed land -� , r - ii c nce.:-s-:sis Y : r be grsr�tEci Lo rmet .of tl3is rem=- � �8e-cit �l� ���'��nd emp. � . requested Variance ;�3t itb.out derogating xr� public goodZoning Y &?e. find therefore .1�+��t:. t�-�. the 1' � the �=a�o�'�'h asure ::from the Eaten and purpose ny m $ECG 8_. a vaYs.ance was granted on the Rn- this Board, d on unanimous , vote ofcu?ars as requested in Variance for • �es PCtc and p„rti the s parking tacili ` upon tre�affir_��a�-a�� ;.-.:p�--- all o�. �.eted before any. -, it c° that ,i be COC�ip ,F:� 17th of Jude. i°'; Lei the condition i�-. 1C1C]t - for in Variance d 2( c i: . r., =l `u��eCCeziter called .� the. Co'I1.-r-tIX1�'�� ..tilts �� ZTcs.Y_�_£:."?�G F° 1 8�!-ce is ' tade of t ts t far_: t- '{ . of Tilr�us. a�=�lsr • �. o'i-f'1 l..'. �.p�„i•'�Gt L.i'..- ' fiN'j!' <_ho a so-called �i�. mot.C.1.�•.1' �,;Q note .flcot T. '-:in the area, ' s 6. ;�'-i-._P f;ti:LL"C'_:_t�i Fa offering. .This, e ou7 �_ s,ti Z,4,�.�a) ; it.ies tes s-3►. zlr �� tot be sold. ally from. t}": '..tdv:iellil I L'Y ;. sales G'S n in e particular wait bCt�e sol especially 11 s;en.s than c-, to a. necessary unit being r•.o��e�- �7Z.1__t, �, '�Yoa�-,. adjoining the ttrx_ b.ai�.s �Uc g _-�t is a se_..sihl e c pants of units adj gab the i The devel- of view of . driveways, aye::: walks and through The pEt .t3oue. drill e��a s s kept to a minimum.thed pointpartly occupied will be . for sale. Traffic oT' art_, xafeBs.iax's.� • r s .-already F shOw .a furnished sb.e.d home• of dwellings_ the ot�e�' ��''�d to sales activities in .a P to conduct its sae _ residence• o er:.w�_l�. be e�tl�s ex�.tit�to �. a�reaa� r P •to :ov. .eTS . f a out .�;Id� z� �i on �,s. c� in er wa.th' ini . dis p , .,+_.2o e of the. propose.....-1 e _ : �► y ,_ n C_.G :S�ici_• C; i LrBX LCi G� i.i' .. sible trle. • orderl-Y 7.5 y , fort: i , L-� ii Exhibit "3" .,_ , • Je swimming pools. the foregoing are #3and guests of the development and o the enerai nub except to g is as this . authorize public use of the Club ce ' village store. (6) Related accessory features and tion and enjoyment of residents an illent, including tennis courts, walking guests ot i= �C ....:ve�0'�-- ts, walking and bicycle paths, !i gardens, 'outdoor cooking areas, rain shelters, ball fields, a golf course and E. look--out platform. j (7) Garage and storage sheds for the accommodation of unit owners, which storage sheds and �ni garages shall not exceed I, 83 structures. ill ,!i 3. In order to facilitate properd be constructed in successive �q evelo pmen t, this project j ect may `!, stages. The develo developer may apply obtain bzi_'_Id?L• permits P' P1� �' for az.c g P fi under this special e !i �'='Q�? stage or phase O-' y.>`r;= Z,-,••r�?� �_ permit from time to -timefor �i ._ct, prior to c e - ji stage or phase, conditional upon the fol1owinL; c©��,-�wnccr_^�:;� c:, c<,:(l) Ado proposed Uuildir_g far residential Guse sx�s l catri�4iz� ?ess t an t- �o, nor more than 24 dt e l'i�� ? i s COZ.y. l. e/ri. r-,(2) he eCRpO __?nt arLS Of each resi ent' ^ r building SI�.7nited in r,;.'- (height ^^-Lc:_ �ta�� bF? i height to be measured in accordance ,; with the By-laws for the Town m of Yarmouth):th a one-story 1 component 25 feet; two-story component - 30 feet; and two and one-half story component - 35 feet, a (3) Parking areas shall conform to _the applicable , provisions , of the TownYarmouth � _ of Zoning By-Laws. De illuminated forconvenience y La".•�a. Parking areas may ! ed convertien. e of the unit Q'f�. erS r wsuchsuch V illumination to be .f ree.(4) Access for each proposed building shall be P for residential use provided in accordance :ith the requirements of fSecttc. �8 07 Sub -paragraph 4; sub-sub-paragraph E, of i ;the vermouth �0=7??g By-Law. i ol (5) Emergencyaccess, whetter j 1 in accordance t.. pa ed shall be provided i ,itr� the recui rene tits of the Town Fire Department and the Town Police D , their reouirement s are bygo;rerned� � t s 18':07dea thee aa-rag-raph 4, sub-sub ,Section l8 �7 5uL paragraph L7, Si1D^SZ?b-oZ?b°j]ciY&��?"�'pi l 8 of the Town Zoning By-Law. i (6) Placementof the residential , 'c. tlaer� buildings ' above shall .� on t�:e lots men- ! .-1 conform with Ji,3_?i% ' - - r.-,;y most C �' a the 2'ei'{�Z reit: i:3i.S O'' i is '� _ t ;,.ram• C _ � ._ ._ Section 1 Sn�c t.`i,"-•Z w'c.:ri:c:Y• __ _ _ L% .Mara f.�"c=.�..',. that a proper petitionfor a.:.T � _ . L1 , ':yr �:x ��: i approved. variance is presented: and`' j F i (7) In accordance with Section {8:10--6 of the J y this Btiur:? shall x'e''e'!'C:g•, from i . Town ��T^ 2-sQ^':., It y :..he' eti site �'si&i! for such stageor i.,, petitioner�` a Cte :G??�pC I:: ' g,- phase meeting theref=,S"f 4_ele is=s I Exhibit "4" • • 18. 07 pen Space Village Cevelopment - 4 Requirements Continued E. Improvements. Access, drainage, utilities, and grad. meet functional standards equivalent to those establ.1 -.._ the Planning Board' s adopted Subdivision Regulations. - �° •Prior to issuance of building permits within an Open Space Village Development, the Town Engineering Department shall certify to the Building Inspector that a detailed site plan has been submitted in accordance with Section 18.10(6) and meets the requiremetts of said section. Occupancy permits for any structure shall be granted only in accordance with the requirements of Section 18.10(7) .11 F. Open Space. 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 Develop- ment. Common open space shall be preserved for recreation or conservation; and shall comprise not less than 30 percent of the "Applicable Land Area" within the Development Plan. Owner- ship of common open space areas shall be arranged and mainten- ance permanently assured through an incorporated home owner's association, condominium deeds, or other recorded land agree- ment through which each 1st owner in the development is auto- matically a member and each lot is subject to a charge for a share of the maintenance expenses, or through comparable ar- rangement satisfactory to the Board of Appeals. Preservation shall be guaranteed through dedication, by covenant or com- parable legal instrument, to the community use and enjoyment of residents of the development tract, for recreational pur- poses serving those residents and their non-paying guests only, or for conservation. In addition, the town shall be granted an easement over such land sufficient to ensure its perpetual maintenance as conservation or recreation land. Building coverage shall not exceed 5 percent in such conservation or recreation areas. G. Long-term Compliance. Subsequent to approval of such Open Space Village Development, no land therein shall be sold and no lot line or structure altered from that shown on the Over- all Development Plan so as to increase the extent of non- conformity with the standard dimensional regulations of this By-law (See Section 18.09 (VI) . Prior to sale of any lot within an Open Space Village Development, or issuance of a building permit for construction therein, such lots shall be shown on a plan recorded in the Registry of Deeds or registered with the Land Court, which plan shall make reference to the recorded land agreements referred to in Section F. Unless the Board of Appeals has specifically approved staged develop- ment, such plan shall show all lots to be included in the De- velopment. " • Formal X Informal Review SITE PLAN REVIEW COMMENT SHEET Date: September 29, 2009 Applicant: Kings Way Golf Course, Sharon Donegan, Tr. Map: 142 Lots: 13 - 17 Location: 64 Kings Circuit, Yarmouth Port Zone: R-40 Persons Present: Jim Brandolini Michael Stusse Terry Sylvia Sharon Donegan Karen Greene Craig Jordan Project Summary The applicants propose to convert a private 18 hole golf course (NAICS 713910, Use Code N6), which was created within the required open-space component of a cluster subdivision, to public use. 8000 rounds of golf for the general public are proposed. Comments Building: (1)A special permit and/or revision to Petition No. 3555 is required to allow public golf play. (2) The Site Plan Review Team reviewed the existing and proposed parking demand based on 8,000 rounds of public play and determined that the existing 114 parking spaces are adequate for these uses. Community Development: Golf is an important part of Yarmouth's recreational amenities. Providing additional access to golf for the public, including residents and visitors, is a positive contribution to the community. Conservation: Not present. 1).) Y.*...- \ R'cc Design Review: Not present. ID r q) Engineering: Not present. • Fire: Not present. Health: Not present. Planning: This proposal is an expansion of use. Parking appears to be adequate for the existing uses and proposed ---r expansion. Any future expansion or change of the present uses should require a full review of the adequacy of parking. Water: Not present. Read & Received by Applicant(s) / j