4282 Kings Way Golf Course Application and Memo .„"cif TOWN OF YARMOUTH v1'r` ' `" 1 !
' BOARD OF APPEALS Tr
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nATTA n s[' APPLICATION '-. ^'�
FOR HEARING =�" :?� ���'+ 3: 19
Appeal#: A Hearing Date: 11 1 /2- I 0 ct Fee$ oZ 5D•40
Owner-Applicant: Sharon Donegan, Trustee of the Kings Way Trust, et al
64 Kings Circuit, Yarmouth Po ;1NMAesoipcG� dingd/b/a)
(Address) (Telephone Number)(EmailS Address)
and is the (check one) bi Owner 0 Tenant 0 Prospective Buyer 0 Other Interested Party
Property: This application relates to the property located at: Kings Circuit, Yarmouthport
and shown on the Assessor's Map #: I Li GL as Parcel#: 13 -I 1
Zoning District: R-4 0 If property is on an un-constructed(paper)street name of nearest cross
street,or other identifying location:
Project: The applicant seeks permission to undertake the following construction/use/activity
(give a brief description of the project. i.e.: "add a 10' by 15' deck to the front of our house" or
"change the use of the existing building on the property"):
RELIEF REQUESTED: The applicant seeks the following relief from the Board of Appeals:
The applicant seeks to modify the language in the Board' s decision
in appeal #3555 by adding a provision allowing the applicant to
promote up 8, 000 rounds of public play per season in order to allow
the Trust to maintain economic viability of the golf course & **
1) REVERSE THE DECISION OF THE BUILDING INSPECTOR OR THE ZONING
ADMINISTRATOR dated attach a copy of the decision appealed from). State the reason
for reversal and the ruling which you request the Board to make.
2) X SPECIAL PERMIT under § 10 3 .2 of the Yarmouth Zoning By-law and/or for
a use authorized upon Special Permit in the "Use Regulation Schedule" §202.5 N6 .(use
space below if needed)
3) VARIANCE from the Yarmouth Zoning By-law. Specify all sections of the by-law from
which relief is requested, and, as to each section, specify the relief sought:
Section: Relief sought:
Section: Relief sought:
Section: Relief sought:
ADDITIONAL INFORMATION: Please use the space below to provide any additional
information which you feel should be included in your application:
See attached
**appurtenant amenities.
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FACT SHEET
Current Owner of Property as listed on the deed (if other than applicant): N/A
See attached
Name &Address
Title deed reference: Book&Page#
or Certificate#
Land Court Lot#
Plan# f provide copy of recent deed)
Use Classification: Existing: Golf Course §202.5 # N6
Proposed: Golf Course §202.5 # N6
Is the property vacant: no If so,how long?: n/a
Lot Information Size/Area: Plan Book and Page / Lot#
See plan on file with appeal 3661
Is this property within the Aquifer Protection Overlay District? Yes No x
Have you completed a formal commercial site plan review(if needed)? Y es allolicable
Other Department(s) Reviewing Project: Indicate the other Town Departments which are/
have/or will review this project, and indicate the status of their review process:
no changes
Repetitive Petition: Is this a re-application: no If yes, do you have Planning Board
Approval?
Prior Relief: If the property in question has been the subject of prior application to the Board of
Appeals or Zoning Administrator, indicate the date and Appeal number(s) and other available
information. Include a copy of the decision(s)with this application:
See attached
Building Commissioner Comments:
Applicant's/Att gent 'ignature
Owner's Signature
Michael B. Stusse, Esq.
Address: 25 Mid Tech Dr. , Suite C
West Yarmouth, MA 02673
Phone 508 775 3433
E-Mail:tara@assrd.corn
ilding Commissioner Signature Date �/�
ATTACHMENT
TOWN OF YARMOUTH
BOARD OF APPEALS
I. Applicant and Owner
Sharon Donegan, Chair,Russell Gessner, Treasurer, James Nelson, Secretary, Neal Crampton,
Ken Driscoll, Don Hoyt, Roger Wahlberg,Norm Weare of 64 Kings Circuit, Yarmouth Port,
MA 02675, Trustees of the Kings Way Trust u/d/t dated May 12, 1987.
II. Property
This application relates to the property located at Kings Circuit, Yarmouthport, MA, Zoning
District R-40 shown on Assessor's Map 142, Parcels 13, 14, 15, 16, 17 being approximately 70
acres and other maps and parcels as may be shown as Kings Way on the amended records of the
office of the Yarmouth Assessor's Office. Said property and development is commonly known
as Kings Way, an open space village development on a parcel of land containing approximately
194 acres, on the north side of Route 6A, Yarmouth Port, Massachusetts.
III. Project
The Applicant seeks permission to modify Appeal#3555 to allow the offering of up to 8,000
rounds of public play per golf season.
IV. Prior Relief and Relief Requested
The Applicant seeks the following relief from the Board of Appeals:
In compliance with the existing Decisions of the Board of Appeals as to the project commonly
known as Kings Way, this application is submitted to the Yarmouth Board of Appeals by Sharon
Donelan, et al, Trustees of the Kings Way Trust seeking a modification of a special permit,
granted by the Yarmouth Board of Appeals in its Decision of Appeal 3555 dated July 22, 1999.
Prior Relief
Petition No. 1321 —Document No. 202276
Petition No. 2048—Document No. 337150
Petition No. 2268—Document No. 394798
Petition No. 2448 —Document No. 441210
Petition No. 2491-Document No. 451751
Petition No. 2511 —Document No. 456783
Petition No. 3096—Document No. 616075
Petition No. 3152—Document No. 630182
Petition No. 3555- Document No. 776887
In its Decision in Petition 3555 ( Document No. 776887), the Board of Appeals granted relief to
the Petitioner stating:
"Motion ... to grant the requested extension of general public play at the golf course facilities,
until December 31, 2000, on the understanding that after July 1, 2000, the petitioner may, if
necessary, apply for a further extension of this permit...", and
"... A second motion was made to allow the petitioner to sell memberships to the course to non-
residents of Kings Way, after the expiration of public play, on the condition that:
a) the total number of resident and non-resident memberships not exceed 450
b) the maximum number of non-resident memberships not exceed 200.
c) after the end of public play and completion of residential, construction, residents of Kings
way be given preference for such memberships so as to limit the need for the sale of non-
resident memberships
d) and on the condition, as represented by the petitioner, that the total number of residential
units have been reduced from 750 to a maximum of 725 for the facility."
In accordance with said Decision, the applicant requests:
1. That the Board authorize the promotion and sale of up to 8,000 rounds of public play for
non-residents per golf season.
In all other respects, the Extant Decision shall remain in accordance with the language of the
Extant Decision as modified.
Further, the applicant requests:
2. Insofar as a Special Permit pursuant to Zoning By-Law Section 103.2, for use N6 Public
Golf Course, is required pursuant to Zoning By-Law Section 202.5, same is requested.
3. A waiver of the Board's Rule that its plan be less than two (2)years old; and
4. Such other relief that the Board of Appeals deems meet and just; and
5. A waiver of strict compliance with the Rules and Regulations of the Board of Appeals
where if may deem appropriate.
REcEi
VFD
MEMORANDUM NO V 6 - 2009
To: Yarmouth Zoning Board of Appeals y
Bp "RC)O,L'UTH
From: Michael B. Stusse Attorney for Kings Way Trust ppEqs
Re: Appeal#4282
Date: November 12, 2009
MEMORANDUM IN SUPPORT OF APPLICATION FOR ZONING RELEIF
I. FACTS AND BACKGROUND
The Applicant is Sharon Donegan, et al Trustee of the Kings Way Trust. The Kings Way Trust
is responsible for management and operation of the recreational facilities including an executive
Golf Course located at Kings Way, 64 Kings Circuit, Yarmouth Port, Massachusetts.
Kings Way is an open space village development which was originally permitted by the
Yarmouth Zoning Board of Appeals in 1975 by way of a special permit and related variances
granted in Appeal#1321.
The original permit authorized up to 750 units on 194 acres of land with 30% of the land area set
aside for open space. The golf course and its accessory structures were approved in a series of
variances previously required because the then bylaw did not make provisions for accessory
uses/buildings that are necessary and desirable in an open space village development.
With respect to the golf course, the Board of Appeals made the following findings in its initial
decision:
"Variance #3 (i)
Market Conditions may make it necessary for a golf course to be
included at Oak Harbour; 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 need 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 public as
requested in variance #3(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
present neighbor to the contemplated site of the 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 judgment, 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 support a primary residential use and employment of this
residentially zoned land.
Since the 1975 variance, the golf course has been the subject of several Board of Appeals
Hearings. They are as follows:
Petition#3096—This decision allowed full public play at King's Way through December 31,
1999;
Petition#3152—This decision allowed for a redesign of the golf course;
Petition#3553 —This decision allowed full public play of the golf course through July 1, 2000.
The decision also contained the following conditions
(a) The total number of resident and non-resident memberships not to exceed 450
(b) The maximum of non-resident memberships not exceed 200.
(c) Kings Way Residents to be given preference for membership;
(d) The total number of units to be constructed to be reduced from 750 units to 725 units
Petition#3661 —This decision allowed full public play to continue to be extended through
December of 2002.
Since the Board's last review of the conditions of King's Way have caused the Trustees of
King's Way to conclude that the only means of maintaining its golf course is to allow some
public play to non-members on a controlled basis.
II. CURRENT CONDITIONS
Presently of the allowed 450 memberships there are a total of 198 memberships. Of these are
103 residential members and 95 are non resident members.
On average, the resident members leave King's Way by October of each year and return in mid
May of each year. The golf course therefore, in its last full fiscal year the golf course, generated
$1,186,854 revenue and incurred costs for labor and maintenance of$1,278,290 leaving a deficit
of$91,436 an approximate 10% shortfall of income to expenses. The non golfing residents of
Kings Way are unable to provide an on-going subsidy for the operation of the golf course.
Therefore, the Trustees have determined that the only options available to them are either to (a)
increase revenue or(b) deconstruct the golf course.
The purpose of this petition is to seek approval from the Board of Appeals to modify its earlier
decisions by allowing controlled public play at King's Way
III. ZONING RELIEF REQUIRED
At the time King's Way was originally permitted (1975), golf courses were not an allowed use in
the RD-2 zoning decision. (See Decision#Appeal # 1321 at page 5).
Since that permit was granted and King's Way has been built through to completion, the zoning
by-law has been amended. Public Golf Courses are now considered an allowed use in the R-40
Zoning District upon approval by the Board of Appeals (Yarmouth Zoning By-Laws, Table of
Uses, Section 202.5 N-6)
Special Permits may be granted by the Board of Appeals as the special permit granting authority
under section 103.2 of the zoning by-law. Special Permits may be granted with or without
conditions upon a finding as demonstrated by the applicant that:
(1) there will be no undue nuisance, hazard or congestion created; and
(2) There will be no substantial halm to the established or future character of the
neighborhood or town.
IV REASONS FOR PERMIT MODIFICATION
As can be seen for a review of a history of King's Way, the Board of Appeals has been
involved in the use of the golf course since it was originally permitted by way of a variance
in 1975. The standard of review should now be considered to be that of a special permit as
the public golf course is now allowed by way of a special permit in the R40 Zoning District.
With respect to this petition, therefore, the Board must consider the effect, if any, the
allowance of up to 8000 rounds of public play will have with respect to nuisance, hazard and
congestion. The history of the golf course suggests that public play will not cause any undue
hazard or congestion.
From the time the course first opened for play on May 27, 1988 through 2002, the course was
available for unlimited public play (see Appeal#3096, 3555 and 3661). Throughout the
fourteen (14) year period in which the course was available, there were no issues with hazard
and congestion. There was an issue with respect to the location of tee to an abutter's rear
yard. That issue was resolved without further complaints.
With respect to the adequacy of access and parking, the Yarmouth Site Plan Review Team
has reviewed the instant application on September 29, 2009 and determined that parking and
access are adequate for the intended use.
It should be noted that the Town of Yaiiuouth utilitzes the community building across from
three Kings Way Golf Club House as a voting precinct and that parking and access has never
been an issue even on election day.
With respect to the second criteria to be applied; the effect of the proposal on the established
character of the neighborhood or town, the Board might consider the effect on both the
neighborhoods and town should the golf course be abandoned. If the Trustees are correct,
the continued deficit at King's Way will/may eventually lead to the need to close and
deconstruct the golf course.
The visual effect of a deconstructed golf course in the neighborhood might be substantial. It
is likely that the landscaped and manicured fairway and trees will become overgrown and
perhaps unsightly after some period of time before returning to forest land.
The financial burden of deconstruction is most troublesome. Kings Way and its
appurtenances provide the Town of Yarmouth approximately three million dollars of
revenue. The facility is largely self-supporting and requires few Town Services beyond fire
and police protection. It has been noted by the Yaiuiouth Assessor's Department (need to get
confirmation) that deconstruction of the golf course will result in an immediate loss of 20%
.t .
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of the value of the properties that comprise of King's Way and Heatherwood. Such a drop in
value will result in a decrease of revenue of approximately $600,000.00 per tax year to the
Town of Yarmouth. The impact on the neighborhood is more significant as each dwelling
will lose 20% of its present market value. As can be seen from the number of memberships
that has remained constant since 2001, there is not sufficient play to support the golf course.
Golf is however a unique activity as the timing and price of the activity is controlled by
scheduling tee times. Therefore, there is never a situation similar to rush hour.. Additionally
the golf course operation is self policing in that public play will be accounted for at the
register and the register receipts can be made available to the building department to monitor
actual use on a monthly basis.
Finally, the golf course is under utilized as it was originally planned to provide for 750
households. Ultimately, only 475 units were built with the balance going to elderly(191)
and assisted living accommodations. The loss of 250 potential resident memberships can
account for the operating deficit being experienced in the golf course operation.
IV. CONCLUSION AND DESIRED RELIEF
For the foregoing reasons, the Trustees of the Kings way respectfully requests that the Board of
Appeals find that the request for a special permit to allow limited public play at Kings Way
Golf Course 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
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PROPOSED DECISION
PETITION NO: 4282
HEARING DATE: November 12, 2009
PETITIONER: Sharon Donegan, Trustee of Kings Way Trust, et al
PROPERTY: Kings Circuit, Yarmouthport
Map 134, Parcel 60.3 60.2, 61
Zoning District R40
MEMBERS PRESENT AND VOTING:
It appearing that notice of said hearing has been given by sending notice thereof to the petitioner
and all those owners of property deemed by the Board to be affected thereby, and to the public
by posting notice of the hearing and published in The Register, the hearing was opened and held
on the date stated above.
The petitioner seeks a modification of its existing permit, so as to allow"Public Play" of the golf
course. 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 current proposal is based upon the 516 of the original 750 units
permitted were actually built. A total of 666 dwellings were built but 91 units were dedicated to
assisted living units. The 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 variance issued by
the Board in 1975. Since that time, the use schedule of the By-Laws (Section 201.5 N7) has
been amended to allow a public golf course use in the R-40 zoning district.
Therefore, the Board of Appeals may apply the special permit standards set forth 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 in the golf course have
never been attained and that the golf course is running on an annual deficit that cannot be
sustained. Should the golf course fail, there would be a loss of value in the properties that
comprise Kings Way and an erosion in the tax base of the Town. Also, a deconstructed golf
course may not be a aesthetically pleasing as a well maintained and landscaped as the existing
golf course.
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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 at the Town of
Yarmouth. The perpetual loss of revenue to Kings Way and the Town of Yarmouth would be
detrimental.
Therefore, upon motion made and seconded, it was voted to allow the modification based upon
the existing site plan to allow up to 8000 rounds of public play at the Kings Way Golf Course per
season. No permit shall issue until 20 days from the filing of this decision with the Town Clerk.
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 Sec. 103.2.5, MGL c40A Sec. 9)Unless otherwise provided herein, a
Variance shall lapse if the rights authorized herein are not excised within 12 months. (See MGL
c40A Sec. 10)
Board of Appeals