4282 Kings Way Golf Course Judgment After Rescript 04.05.12 •
Commonwealth of Massachusetts
County of Barnstable
The Superior Court
CIVIL DOCKET# BACV2009-00849
DeWitt P Davenport Trustee
vs
Town of Yarmouth Board of Appeals,
Sharon Donegan Trustee
JUDGMENT AFTER RESCRIPT
This action was appealed to the Appeals Court for the Commonwealth, the
issues having been duly heard and the Appeals Court having duly issued a rescript
affirming the Judgment of the Superior Court,
It is ORDERED and ADJUDGED:
1. that the decision of the Town of Yarmouth Board of Appeals, filed with the
Town Clerk of Yarmouth on November 19, 2009, is not arbitrary and
capricious, and not legally untenable and the decision is affirmed; and
2. that the Clerk of Courts shall, within thirty days after entry of this
judgment, send attested copies thereof to the Board of Appeals, the
Building Inspector and the Clerk of the Town of Yarmouth.
Dated at Barnstable, Massachusetts this 5th day of April, 2012.
Scott W. Nickerson,
Clerk of the Courts
•
�Li L
John S. Dale
First Assistant Clerk-Magistrate
cvdjudresc_1.wpd 746358 rescaft dalejohn
A true copy,Atte if.e6S
/ 5t Clerk
Commonwealth of Massachusetts
County of Barnstable
The Superior Court
CIVIL DOCKET#: BACV2009-00849
RE: Davenport Trustee v Yarmouth Board of Appeals et al
TO: Town of Yarmouth Board of Appeals
Town Hall
1146 Route 28
South Yarmouth, MA 02664
NOTICE OF DOCKET ENTRY
You are hereby notified that on April 5, 2012 the following entry was made on the
above referenced docket:
JUDGMENT after rescript: AFFIRMED.
Dated at Barnstable, Massachusetts this 5th day of April, 2012.
Scott W. Nickerson,
Clerk of the Courts
BY: John S. Dale
First Assistant Clerk
Copies mailed April 5, 2012 to ETP, BPG and MBS with attested copies to the Board
of Appeals, the Building Inspector and the Town Clerk of Yarmouth.
RECEIVED
APR 6 - 202
YARMOUTH
BOARD OF APPEALS
cvdgeneric_2.wpd 746373 judrescr dalejohn
Page 1 of 1
Clark, Sandi
From: Hibbert, Jane
Sent: Wednesday, August 22, 2012 4:22 PM
To: Clark, Sandi
Subject: FW: Board of Appeals Question
Sandi
Here is your answer. So I guess we need to make some changes. Jane
From: capecodlawyer@comcast.net [mailto:capecodlawyer@comcast.net]
Sent: Wednesday, August 22, 2012 4:20 PM
To: Hibbert, Jane
Subject: Re: Board of Appeals Question
Jane:
The date should be April 5, 2012 and should include the words "All appeals have been
exhausted."
BPG
From: "Jane Hibbert" <JHibbert@yarmouth.ma.us>
To: "Bruce Gilmore (capecodlawyer@comcast.net)" <capecodlawyer@comcast.net>
Sent: Wednesday, August 22, 2012 3:53:55 PM
Subject: Board of Appeals Question
Bruce
I had a Board of Appeals#4282 for Kings Way Trust dated November 19, 2009 that was appealed. We
received a notice from the court see attached which I interrupt that the original decision is approved and I
should now attest the Certificate of Special Permit. My question is that the date of the 20 day appeal is
December 10, 2009 if I issue this does that mean I leave that date the same. I need an answer as soon
as possible. Thanks for your help. Jane
8/22/2012
..og'
TOWN OF YARMOUTH
W _ OFFICE OF THE TOWN CLERK
'•,�► ,w" 1146 ROUTE 28, SOUTH YARMOUTH, MA 02664
IN�ITTACHEE �,
; ,,, co, TELEPHONE (508) 398-2231 FAX (508) 760-4842
Jane E. Hibbert, CMC/CMMC
RECEIVED
DEC 1 2009
December 1, 2009
BOARD OFOUTH APPEALS
Bruce Gilmore, Esq.
99 Willow Street
Yarmouth Port, MA 02675
Dear Mr. Gilmore:
Enclosed please find copies of Superior Court in Barnstable by DeWitt P. Davenport,
Trustee of Davenport Realty Trust, Plaintiff V Town of Yarmouth Board of Appeals and
Sharon Donegan, Trustee of the Kings Way Trust ET ALS, filed December 1, 2009.
Please feel free to contact me if you have any questions or need any more information.
Respectfully yours,
. 1114441/
JEH:jeh Jane E. Hibbert, CMC/CMMC
Encs Town Clerk
Cc: Robert C. Lawton, Jr. Town of Yarmouth
Board of Appeals
File
ZISSON AND VEARA
ATTORNEYS AT LAW
828 MAIN STREET
DENNIS, MASSACHUSETTS 02638
TELEPHONE (508) 385-6031
FAX (508) 385-6914 Dl.J
71)
MAILING ADDRESS: P.O. BOX 2031, DENNIS, MA 02638-0043 (Fri I
EDWARD E. VEARA '-S-
E. JAMES VEARA RICHARD L. ZISSON
PAUL V. BENATTI (1942-2006)
MICHAEL I. FLORES
EDWARD T. PATTEN
CHRISTOPHER A. VEARA OF COUNSEL
SHARON MARCHBANKS December 1, 2009
DELIVERED BY HAND
Jane E. Hibbert, Town Clerk
Town of Yarmouth
Yarmouth Town Hall
1146 Route 28
South Yarmouth, MA 02664
Re: DeWitt P. Davenport, Trustee of Davenport Realty Trust v. Town of Yarmouth
Board of Appeals
Dear Ms. Hibbert:
With respect to the above-captioned zoning appeal, I have sent to you with this letter the
original "Plaintiff's Notice of Action", a copy of the "Complaint", and"Civil Action Cover
Sheet."
If you have any questions about this matter, please feel free to contact me.
Cordially,
Edward T. Patten
ETP/jfl
Enclosures
COMMONWEALTH OF MASSACHUSETTS — >> _{
SUPERIOR COURT DEPARTMENT _A
OF -1-
THE TRIAL COURT i
BARNSTABLE, SS. C.A. NO. --
DEWITT P. DAVENPORT, TRUSTEE, -
DAVENPORT REALTY TRUST,
PLAINTIFF
V.
SHARON DONEGAN, TRUSTEE OF THE KINGS WAY TRUST ET ALS.
AND
SEAN IGOE, JOSEPH SARNOSKY, DIANE MOUDOURIS, DEBRA MARTIN, AND
BRYANT PALMER, AS THEY ARE MEMBERS OF THE TOWN OF YARMOUTH
BOARD OF APPEALS.
PLAINTIFF'S NOTICE OF ACTION
DeWitt P. Davenport, Trustee, Davenport Realty Trust, hereby gives notice that
he has sought judicial review in the Barnstable Division of the Superior Court
Department of the November 12, 2009 decision for file #4282 of the Town of Yarmouth
Board of Appeals. Attached hereto, incorporated herein, and labeled"A"and "B",
respectively, are true and accurate copies of the Plaintiff's "Complaint" and "Civil Action
Cover Sheet".
Plaintiff,
B his attorneys,
Wln," --,a1:77-
E. JAMES VEARA, ESQ.
BBO # 562161
EDWARD T. PATTEN, ESQ.
BBO# 546386
Zisson and Veara
828 Main Street, P.O. Box 2031
Dennis, MA 02638
(508) 385-6031
F ° t.
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
OF -H
THE TRIAL COURT 72
BARNSTABLE, SS. •
C.A. NO. 1'
DEWITT P. DAVENPORT, TRUSTEE,
DAVENPORT REALTY TRUST, - ` +'
PLAINTIFF - ' cv
V.
SHARON DONEGAN, TRUSTEE OF THE KINGS WAY TRUST ET ALS.
AND
SEAN IGOE, JOSEPH SARNOSKY, DIANE MOUDOURIS, DEBRA MARTIN, AND
BRYANT PALMER, AS THEY ARE MEMBERS OF THE TOWN OF YARMOUTH
BOARD OF APPEALS.
COMPLAINT
1. The plaintiff, DeWitt P. Davenport, Trustee, Davenport Realty Trust ("Davenport"), is
the owner of the land and buildings known and numbered as 700 Route 6A, Yarmouth
Port, Massachusetts shown as Parcel 46.1on Yarmouth Assessors Map 134 ( the
"Davenport property").
2. The defendant, Sharon Donegan, Trustee of the Kings Way Trust (the "Trustee"), is the
owner of record of the land and buildings identified by the Trustee as 64 Kings Circuit,
Yarmouth Port, Massachusetts 02675 ("Kings Way"). The Davenport property directly
abuts the Kings Way property.
3. Sean Igoe, Joseph Sarnosky, Diane Moudouris, Debra Martin, and Bryant Palmer are
duly appointed Members of the Town of Yarmouth Board of Appeals (the "Board")
having residential addresses as follow:
Sean Igoe
223 South Sea Avenue
West Yarmouth, Mass. 02673
Joseph Sarnosky
111 Merchant Avenue
Yarmouthport , Mass. 02675
D3 =>
Diane Moudouris 471 .? <
12 Athens Way
West Yarmouth, Mass. 02673 ��LL
ii
Debra Martin
118 Pleasant Street ;�,
South Yarmouth, Mass. 02664 C
Bryant Palmer
66 Traders Lane
West Yarmouth, Mass. 02673
4. The Board maintains a usual and principal place of business at Town Hall, 1146 Route
28, South Yarmouth, Mass. 02664.
COUNTI
jAPPEAL PURSUANT TO G.L. C. 40A, SEC. 171
5. The plaintiff repeats, realleges and incorporates fully herein paragraphs 1 through 4 of
the Complaint.
6. The Davenport land directly abuts the locus which forms the subject matter of the
above Petition. As such, the plaintiff received mailed notice of the hearing date of
November 12, 2009 on the Trustee's application to modify the 1999 decision of the Board
#3555 to allow up to 8,000 rounds of public play golf on the locus.
7. The Trustee's application came on for hearing before the Board on November 12, 2009
at which time the Plaintiff appeared through counsel and objected to the Trustee's
2
•
application.
8.The Plaintiff is an "interested person" within the meaning of G. L. c. 40A and,
therefore, had legal standing to appear, comment upon and object on November 12, 2009
before the Board to the Trustee's Petition and the relief requested.
9. The use of Kings Way for public golfing has been the subject of numerous Petitions to,
and Decisions by, the Board involving numerous issues.
10. Kings Way first came before the Board in 1975 seeking a Special Permit for the
construction of a multi-family cluster residential development on the site with an
accessory private golf course with associated amenities.
11. Since public golf courses were not a permitted use by right or by Special Permit in
1975 in the zoning district where Kings Way was then located, the Board's initial
Decision No. 1321 of 1975 approved the project generally on Special Permit and granted
a variance for limited non-resident (public) use of the golf course.
12. The Board concluded that the developer's 1975 request for a variance for public use
"limited in time essentially to the ....[construction].... period..." was granted in order to
•
assist the Kings Way developer's cash flow requirements.
13. In 1984, in Petition and Decision No. 2048, the Board interpreted the eight year
period contained in the variance allowing public use of the course to mean " .... that the
eight year period for the allowed (public) use begins when the golf course is available for
play." The Board then ordered the Petitioner to inform the Board by letter when the
course in fact became available for play.
3
JJ —1
FT! a ) -
14. By correspondence dated June 23, 1988, counsel for the developer informed the
Board that the golf course had become available for play on May 27, 1988, hence
permitting public play through May 26, 1996.
15. Again citing development business needs in 1994, the developer by its Petition No.
3096, requested "extensions in time for temporary public use" of the golf course, club
house and pro shop beyond the original eight years. By its Decision on Petition 3096, the
Board granted an extension for temporary public use of the golfing amenities from May
26, 1996 through December 31, 1999 providing that the developer could, between
December 1, 1998 and December 1, 1999, request further extension of the "variance
I expiration date."
16. The Board grounded its Decision to grant the extension on the fact that development
of homes in the project had not been completed and, consequently, additional revenues
Ifrom public patronage were necessary to avoid the initial homeowners and developer
having to carry the fixed costs of facility maintenance, coupled with the assumption that
11 the golf course would be self-supporting once all residential units were completed.
17. Thereafter, by Petition filed in 1999, the developer requested an extension of the
variance to permit public use through December 31, 2002 and thereafter to allow public
access permanently to a maximum of 200 non-owner annual or permanent (individual or
spousal/family) memberships.
18. The Board heard the matter on July 22, 1999 and filed its Decision #3555 with the
Town Clerk on August 5, 1999. Once again, the developer grounded its request to assure
the same level of patronage and financial stability of the facility during its early years as
4
•
was projected to occur when the development was completed. According to Decision
#3555, abutters spoke in opposition citing objectionable behavior of some course users.
19. A motion was made on July 22, 1999, seconded and carried granting the requested
general extension of the variance for public play but only until December 31, 2000, not
2002 as requested by the developer, with permission to apply for a further extension of
the variance after July 1, 2000. A second motion was made, seconded and carried
allowing non-resident memberships not to exceed 200.
20. No further Petition was filed between July 1, 2000 and December 31, 2000 seeking an
extension of the variance granted in the Board's 1975 Decision #1321 and as extended by
the Board's Decision #3555. Accordingly, the variance permitting public use of the
Kings Way golf course lapsed by the terms of the Board's December 31, 2000 extension
date.
21. At some time between when the Board rendered its Decision 1321 in 1975 and
November 12, 2009, the Town of Yarmouth Zoning Bylaw was amended so that multi-
family dwellings are no longer permitted north of Route 6 either by right or on Special
Permit.
22. The Kings Way property is located to the north of Route 6 and, accordingly, the
dwelling units and accessory uses approved by the 1975 Special Permit are no longer uses
permitted by right or by Special Permit in the zoning district because the buildings which
are the principal use of the land consist of multi-family dwellings. Accordingly, the
principal use of the Kings Way property has become a pre-existing non-conforming use
of the land for multi-family dwellings with an accessory private golf course and
5
associated amenities.
23. On or about September 29,2009. Kings Way filed its application in the Board's matter
4282 requesting a Special Permit to permit up to 8,000 rounds of public play at the non-
conforming private course accessory to the non-conforming residential use.
24. The matter came on for hearing on November 12, 2009 before the Board with the
plaintiff appearing through counsel in opposition to the application.
25. The Board voted unanimously, 5 in favor and none opposed, to grant the application
!
II for Special Permit as applied for by Kings Way.
26. The Board filed its written Decision with the Town Clerk for the Town of Yarmouth
on November 19, 2009, a true attested copy of which is attached hereto as Exhibit A.
27. The plaintiff is a person persons aggrieved by the Board's Decision within the
meaning of G.L. c. 40A, sec. 17.
28. The Board's Decision exceeded its authority and was arbitrary, capricious and based
on a legally untenable ground.
WHEREFORE, DeWitt P. Davenport, Trustee Davenport Realty Trust, Plaintiff in this
civil action, respectfully request this Court afford him the following relief:
(a) To determine that the November 12, 2009 Decision of the Town of
Yarmouth Board of Appeals exceeded the authority of said Board and was
arbitrary, capricious and based on a legally untenable ground;
(b) To annul the Decision of the Board of Appeals; and,
(c) To award such other and/or different relief as this Court deems appropriate
for this case.
6
Plaintiff,
By his attorneys,
E. James Veara, Esq.
BBO# 562161
Edward T. Patten, Esq.
BBO# 546386
Zisson and Veara
828 Main Street, P.O. Box 2031
Dennis, Ma. 02638
(508) 385-6031
_‹'
f _ r
—
i
7
•
e
of _k EXHIBIT
• •At �'''t��� TOWN OF YARMOUTH
' AIh y BOARD OF APPEALS
` ,r. DECISION r_l., �.
♦tr4c,II
FILED WITH TOWN CLERK: November 19, 2009
PETITION NO: #4282
HEARING DATE: November 12, 2009 7,1 -
PETITIONER: Kings Way Trust,et al, Sharon Donegan Trustee
PROPERTY: 64 Kings Circuit, Yarmouthport
Map & Parcel: 0142.13-17; Zoning District: R40
Book & Page#: 5870/222
MEMBERS PRESENT AND VOTING: Sean Igoe, Chairman, Joseph Sarnosky, Diane
Moudouris, Debra Martin, Bob Palmer.
Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners of
property as required by law, and to the public by posting notice of the hearing and publishing in The
Register, the hearing opened and held on the date stated above.
The petitioner seeks to modify the language in the Board's decision in appeal #3555 by adding a
provision allowing the applicant to promote up to 8,000 rounds of public play per season and or a
Special Permit from bylaw §202.5 N6, which will allow the limited "Public Play" of the golf
course at Kings Way. According to the Board's prior Decision (#3661, January 2001) public play
expired on December 31, 2002, unless application were made for a further extension. The
petitioner also seeks permission to proceed based upon the existing site plan, since no site
alterations are proposed or requested.
The petitioner represents that the King's Way development is completed. The original
permits/decision permitted public use of the golf course, in order to keep it self-funding until
completion, so that it would not be an economic drain upon the developer or residents of the
condominium complex. The original permit called for up to 750 residential units to be built, but
only 475 units were built and 191 units were dedicated to elderly housing. However, resident and
non-resident memberships are not sufficient to support the financial operation of the golf course.
Additionally, the Board finds that the golf course was permitted by way of a Special Permit issued
by the Board in 1975. Since that time the Use Schedule of the By-Laws (§202.5 N6) has been
amended to allow a public golf course use in the R-40 zoning district by way of a Special Permit.
Therefore, the Board of Appeals may apply the Special Permit standards set forth in the Section
of 103.2 of the bylaw to determine whether the request should be granted.
The Petitioner represented that the allowed number of memberships at the golf course have never
been attained and that the golf course is running an annual deficit that cannot be sustained.
A True Copy Attest:
. c1
Ann M. Quirk, Assistant Town Clerk
Town of Yarmouth Pages I - 2
•
_ • Should the golf course fail, there would be a loss of value in the properties that comprise Kings
Way and erosion to the tax base of the Town. Also, a deconstructed golf course may not be as
aesthetically pleasing as the existing landscaped golf course.
With respect to hazard and congestion, the Board notes that the golf course operated from 1985
through 2001 with full public play and there were no issues concerning hazard, congestion or
nuisance conditions. The site plan review team has examined the issue of access and parking and
finds the parking facility to be adequate.
With respect to whether allowing up to 8000 rounds of public play per season would result in a
substantial detriment to the neighborhood or Town, the Board believes that closing the golf course
would be more detrimental than keeping it operating. Golf provides a substantial recreational
outlet for people of all ages and is popular with the people in the Town of Yarmouth. The loss of
revenue to Kings Way and the Town of Yarmouth would be detrimental.
Substantial correspondence in favor of the proposal was received by the Board. One abutter had
concerns about golf balls coming off the 9`h hole of the golf course on to their property. The
Trustee indicated that they would contact that abutter and discuss ways to correct that problem.
One other letter was received by an abutter objecting to the relief requested because he was of the
opinion that golf courses were not allowed in the RS40 district, Kings Way is not in that district.
It was also his opinion that the application was only seeking relief by variance from the previous
decision # 3555. The Board members disagreed with his opinion, as the bylaw is clear that public
golf courses are allowed by Special Permit in the R40 Zoning District.
Therefore, upon a motion made by Mrs. Martin and seconded by Mr. Palmer, it was voted to grant
the Special Permit as requested, based upon the existing site plan to allow up to 8000 rounds of
public play at the Kings Way Golf Course per season with the following conditions (1) the Board
of Appeals will review the operation of the golf course after three years (November 2013) to
determine whether any new modification of the operation is appropriate and (2) the Trust shall
maintain accurate records of the rounds played by members of the public; (3) the number of
public players reported semi-annually to the Yarmouth Building Department and the Yarmouth
Zoning Board of Appeals; and (4) in all other respects, the conditions set forth in decision #3555
& #3661 shall remain in full force and effect. The members voted unanimously in favor.
No permit shall issue until 20 days from the filing of this decision with the Town Clerk. This decision must
be recorded at the Registry of Deeds and a copy forwarded to the Board of Appeals. Appeals from this
decision shall be made pursuant to MGL c40A section 17 and must be filed within 20 days after filing of
this notice/decision with the Town Clerk. Unless otherwise provided herein, the Special Permit shall lapse
if a substantial use thereof has not begun within 24 months. (See bylaw §103.2.5, MGL c40A §9)
Steven DeYoung, Clerk
2 .v
CIVIL ACTION DOCKET NO.(S) Trial Court of Massachusetts
COVER SHEET Superior Court Department V
County: Barnstable
PLAINTIFF(S) DEFENDANT(S)
DeWitt P. Davenport, Trustee, Sharon Donegan, Trustee of The Kings Way Trust,
Davenport Realty Trust, Plaintiff et als.
ATTORNEY,FIRM NAME,ADDRESS AND TELEPHONE ATTORNEY (if known)
Edward T. Patten (508) 385-6031 Not known at this time
Zisson and Veara
BoardUt3arUisliter ,tumberDennis,MA 02638 BBO 546386
Origin code and track designation
Place an x in one box only: ❑ 4. F04 District Court Appeal c.231, s. 97 &104 (After
PI 1. F01 Original Complaint trial) (X)
❑ 2. F02 Removal to Sup.Ct. C.231,s.104 ❑ 5. F05 Reactivated after rescript; relief from
(Before trial) (F) judgment/Order (Mass.R.Civ.P. 60) (X)
❑ 3. F03 Retransfer to Sup.Ct. C.231,s.102C (X) ❑ 6. E10 Summary Process Appeal (X)
TYPE OF ACTION AND TRACK DESIGNATION (See reverse side)
CODE NO. • TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE?
CO2 Zoning Appeal ( F ) ( )Yes ( XX) No
The following is a full, itemized and detailed statement of the facts on which plaintiff relies to determine
money damages. For this form, disregard double or treble damage claims; indicate single damages only.
TORT CLAIMS
(Attach additional sheets as necessary)
A. Documented medical expenses to date:
1. Total hospital expenses $
2. Total Doctor expenses $
3. -- Total chiropractic expenses $
4. Total physical therapy expenses $
5. Total other expenses (describe) -U. $ .,-
Subtotal $ . . 1 . . . . . .
B. Documented lost wages and compensation to date $ , _ .
C. Documented property damages to date $ 1
D. Reasonably anticipated future medical and hospital expenses $ —
E. Reasonably anticipated lost wages $ .
F. Other documented items of damages (describe)
G. Brief description of plaintiff's injury, including nature and extent of injury (describe) `.2
$ N/A
TOTAL $
CONTRACT CLAIMS
(Attach additional sheets as necessary)
Provide a detailed description of claim(s):
N/A
TOTAL $.
PLEASE IDENTIFY, BY CASE NUMBER, NAME AND COUNTY, ANY RELATED ACTION PENDING IN THE SUPERIOR
COURT DEPARTMENT
"I hereby certify that I have complied with the requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on
Dispute Resolution (SJC Rule 1:18) requiring that I provide my clients with information about court-connected dispute
resolution services and discuss w6 th m the advapr t ' adva ages of the various methods."
Signature of Attorney of Record (/ Cl %; l DATE: /" 7'
AOTC-6 mtc005-11/99
A.O.S.C.1-2000 ,
BRUCE P. GILMORE RECEIVED
ATTORNEY AT LAW
99 WILLOW STREET
YARMOUTHPORT, MA 02675 DEC 8 2009
(508) 362-8833
FAX: (508) 362-5344 YARMOUTH
E-MAIL: capecodlawyer@comcast.net
www.capecodlawyer.com BOARD OF APPEALS
December 7, 2009
Rhonda LaFrance, Office Administrator
Yarmouth Board of Appeals
1146 Route 28
South Yarmouth, MA 02664
RE: DeWitt P. Davenport, Trustee, Davenport Realty Trust v. Sharon Donegan,
Trustee of the Kings Way Trust, et als, and the Yarmouth Board of Appeals
Dear Ms. LaFrance:
Please be advised the Town of Yarmouth, Board of Appeals, is the Defendant in the
above-referenced matter. Would you kindly prepare a copy all documents pertaining to
Petition No. 4282, Petitioner Kings Way Trust. Thank you for your assistance. Should
you have any questions, please do not hesitate to contact me.
Very truly yours,
6t-(4-446) Cf-f
12 VI'
Bruce P. Gilmore
&3311-1L. `"
/1mm
ZISSON AND VEARA
ATTORNEYS AT LAW '� E13
828 MAIN STREET
DENNIS, MASSACHUSETTS 02638 ( 2 Z009
TELEPHONE (508) 385-6031
FAX (508) 385-6914 ARD
'A OMOU7N
gPPEgLs
MAILING ADDRESS: P.O. BOX 2031, DENNIS, MA 02638-0043
EDWARD E. VEARA
E. JAMES VEARA RICHARD L. ZISSON
PAUL V. BENATTI (1942-2006)
MICHAEL I. FLORES
EDWARD T. PATTEN
CHRISTOPHER A. VEARA November 10, 2009 OF COUNSEL
SHARON MARCHBANKS
Via E-Mail&First Class Mail
Town of Yarmouth
Zoning Board of Appeals
Town Hall
1146 Route 28
South Yarmouth, MA 02664
Re: Petition #4282: Kings Way Trust, et al, Sharon Donegan, Trustee,
64 Kings Circuit, Yarmouthport
Dear Members of the Board:
Please be advised that this office represents DeWitt Davenport, Trustee of Davenport
Realty Trust,the owner of record of the land known, numbered and described as 700 Route 6A,
Yarmouthport, MA Assessors' Map 134, Parcel 46.1.
Mr. Davenport's land directly abuts the land which forms the subject matter of the above
Petition. As such, he received mailed notice of the hearing date of November 12, 2009 on the
application to modify the Board's decision#3555 to allow up to 8,000 rounds of public play golf.
As such, Mr. Davenport is an"interested person"within the meaning of G. L. c. 40A and,
therefore, has legal standing to appear, comment upon and object to the Petition and the relief
requested as well as to appeal any Decision by the Board which causes injury to him.
Please be advised that Mr. Davenport does object to the Petition and the relief requested
for the following reasons.
As the Board is well aware, Kings Way has been the subject of numerous Petitions to,
and Decisions by,this Board involving numerous issues. This latest Petition(#4282)targets the
sole issue of the use of the land as a golf course available to the general public. Public golf
courses are not a presently permitted use in the R-40 zoning district nor were they permitted by
ZISSON AND VEARA
Town of Yarmouth
Zoning Board of Appeals
November 9, 2009
Page 2
right or by Special Permit in 1975 when the Board rendered its Decision No. 1321, the initial
Decision of the Board approving the project generally and granting a variance for limited non-
resident(public) use of the golf course.
The Board concluded that the developer's request for a variance for public use "limited in
time essentially to the ....[construction].... period..." in order to assist the developer's cash flow
requirements and at a time jvhen the nearest neighbor to the site of the contemplated golf course
was approximately 500 feet from and proposed fairway should be granted.
In 1984, in Petition and Decision No. 2048, the Board interpreted the eight year period
contained in the variance allowing public use of the course to mean" .... that the eight year
period for the allowed (public)use begins when the golf course is available for play." The Board
then ordered the Petitioner to inform the Board by letter when the course in fact became available
for play.
By correspondence dated June 23, 1988, counsel for the developer informed the Board
that the golf course had become available for play on May 27, 1988, hence permitting public play
through May 26, 1996.
Again citing development business needs in 1994, the developer by its Petition No. 3096,
requested"extensions in time for temporary public use"of the golf course, club house and pro
shop beyond the original eight years. By its Decision on Petition 3096,this Board granted an
extension for temporary public use of the golfing amenities from May 26, 1996 through
December 31, 1999 providing that the developer could between December 1, 1998 and
December 1, 1999 request further extension of the "variance expiration date." Again, the Board
grounded its Decision to grant the extension on the fact that development of homes had not been
completed and, consequently, additional revenues from public patronage were necessary to avoid
the initial homeowners and developer having to carry the fixed costs of facility maintenance,
coupled with the assumption that the golf course would be self-supporting once all residential
units were completed.
Thereafter, by Petition filed in 1999, the developer requested an extension of the variance
to permit public use through December 31, 2002 and thereafter to allow public access
permanently to a maximum of 200 non-owner annual or permanent(individual or
spousal/family) memberships.
The Board heard the matter on July 22, 1999 and filed its Decision#3555 with the Town
Clerk on August 5, 1999. Once again, the developer grounded its request to assure the same
level of patronage and financial stability of the facility during its early years as was projected to
occur when the development was completed. According to Decision#3555, abutters spoke in
opposition citing objectionable behavior of some course users.
ZISSON AND VEARA
Town of Yarmouth
Zoning Board of Appeals
November 9, 2009
Page 3
A motion was made, seconded and carried granting the requested general extension of
public play but only until December 31, 2000, not 2002 as requested by the developer, with
permission to apply for a further extension of the variance after July 1, 2000.
A second motion was made, seconded and carried allowing non-resident memberships
not to exceed 200. No further Petition was filed between July 1, 2000 and December 31, 2000
seeking an extension of the variance granted in the Board's 1975 Decision#1321. Accordingly,
the variance lapsed by the terms of the Board's December 31, 2000 extension date. This is the
indisputable conclusion where the Board had rejected?he Petit"_,r,er's request f)r an extension to
December 31, 2002.
It is well settled law in Massachusetts that a variance, even a use variance, may be
permissibly limited as to life span. See Bobrowski Handbook of Massachusetts Land Use and
Planning Law Second Edition, §8.05. When, as here, such time limits are imposed and, as is the
case herein, the time period has expired and the variance has lapsed, any renewal must be by
variance subject to an entirely new review by the Board of Appeals, pursuant to Mass. Gen. Laws
chapter 40A, § 10. An extension in this instance is unwarranted, and cannot be granted by
special permit as the petitioner suggests.'
Accordingly, the Board should deny the Applicants' Appeal #4282 where:
1. The Application improperly seeks a Special Permit;
2. public golf courses are not permitted uses in the R-40 District; and
3. the 1975 Variance has lapsed requiring a new application for a variance and
establishment of all the statutory criteria to allow public play.
Because the applicant has improperly sought a special permit where a use variance is
required, no argument need be advanced by or on behalf of Mr. Davenport as to why the special
permit criteria would not be met. Comments as to why the applicant could not meet the strict
criteria for a use variance will be reserved until such time as the Applicant properly petitions for
the right form of relief at a duly noticed hearing for a use variance.
ZISSON AND VEARA
Respectfully submitted, DeWitt P. Davenport
By his attorney ,
E. James V-. 1, Esq.
Edward T. Patten, Esq.
Zisson and Veara
828 Main Street, P.O. Box 2031
Dennis, MA
(508) 385-6031
Cc: Dewitt P. Davenport (via e-mail)
Michael B. Stusse, Esquire (via facsimile)