Decision 3555 Recorded 08.26.99 with 1973 Letter About Condos and Golf Course 00C:776/887 08-26-83 Ci3g54
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1,;Y - THE COMMONWEAL i infA S Ct' I ) ii' TSy
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c TOWN OF YARMOUTH
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''^ re, ro Petition #3555 Date: August 25, 1999
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Certificate of Granting of Special Permit and Variance
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) & cr. (General Laws Chapter 40A,Section 11)
67.
The Board of Appeals of the Town of Yarmouth MascAchusetts hereby certifies that a Special b
Permit-and Variance has been granted:
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'o To: Kings Way Properties Realty Trust,Donald K. Kurson,et al,Trustees
• Address: 46 Glenwood Avenue
•4' qs City or Town: Newton, MA 02159
'0iN N affecting the rights of the owners with respect to land or buildings located at 31 Kings Circuit,
g * Yarmouthport. Assessor's Map: 134 Parcel: 60.3,60.2,61,Map: 142 Parcel: 1 thru 17
And the said Board of Appeals further certifies that the decision attached hereto is a true and
tr correct copy of its decision granting the Special Permit and Variance and that copies of said decision,
and of all plans referred to in the decision, have been filed with the Planning Board and the Town
'v Clerk.
The Board of Appeals also calls to the attention of the owner or applicant that General Laws,
Chapter 40A, Section 11 (last paragraph) provides that no Special Permit or Variance, or any
extension,modification or renewal thereof, shall take effect until a copy of the decision bearing the
certification of the Town Clerk that twenty days(20)have elapsed after the decision has been filed
in the office of the Town Clerk and no appeal has been filed or that, if such appeal has been filed,that
CY it has been dismissed or denied, is recorded in the registry of deeds for the county and district in
c, which the land is located and indexed in the grantor index under the name of the owner of record or
a is recorded and noted on the owner's certificate of title. The fee for such recording or registering
cr, shall be paid by the owner or applicant.
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_ David S. Reid,Clerk
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TOWN OF YARMOUTH
AR,�, BOARD OF APPEALS R�-�. .'��
O DECISION
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FILED WITH TOWN CLERK: August 5, 1999
PETITION NO: #3555
HEARING DATE: July 22, 1999
PETITIONER: Donald Kurson,Trustee of Kings Way Trust
PROPERTY: 30 Kings Circuit, Yarmouth,MA
Map: 134 Parcel: 60.3, 60.2,61 Zoning District: R40
Map: 142 Parcel: l tbru 17
MEMBERS PRESENT AND VOTING: David Reid, Chairman, Joseph Sarnosky, Diane
Moudouris, Audrey Miller,Richard St. George.
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.
Prior Relief and Relief Requested.
In compliance with the existing Decisions of the Board of Appeals as to the project commonly
known as Kings Way, this application was submitted to the Yarmouth Board of Appeals by
Donald K. Kurson, et al, Trustees of Kings Way Properties Realty Trust, under Declaration of
Trust Dated March 31, 1993,as successor developer,seeking an extension modification of special
permit and related variances, granted by the Yarmouth Board of Appeals in its Decision of
October 16, 1975, upon Petition No.:1321 - Document No.: 202276, of Oak Harbour
Associates, the original Petitioner, and extended by the Board of Appeals in its Decision of April
13, 1984 (Petition No.: 2048 - Document No.: 337150) by Light House Associates, a prior
successor to the original Petitioner, as further modified and supplemented by the Board of
Appeals in its Decisions of January 23, 1986(Petition No.: 2268 - Document No.: 394798),July
9, 1987 (Petition No.: 2448 -Document No.: 441210), October 29, 1987 (Petitioner No.: 2491
- Document No.: 451751)and January 29, 1988 (Petition No.: 2511 - Document No.: 456783)
upon the Petitions of the Green Company, Inc., a subsequent prior successor developer, and as
further extended by the Board of Appeals upon the Petition of the current Petitioner by Decision
made April 28, 1994 (Petition No.: 3096 - Document No.: 616075 and November 10, 1994
(Petition No.: 3152- Document No.: 630182, all heretofore and hereafter collectively referred to
as the Extant Decision.
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In its Decision in application 3096(Document No.: 616075)the Board of Appeals stated:
"Inasmuch as the developer has proceeded to develop quality infrastructures(such as construction
of the Golf Course, Club House and Pro Shop) quickly, but has proceeded to develop housing
moderately and appropriately, extensions in time for temporary public use of these facilities may
be granted beyond the original eight (8) years as requested. Such an extension is hereby granted
from May 26, 1996 through December 31, 1999 provided, however, that the developer may,
during the period between December 1, 1998 and December 1, 1999, by appearance before this
Board at an advertised public hearing, stating the reasons therefor, request an extension or
extensions of this variance expiration date. In all other respects the variance remains in
accordance with the language of the extant Decision as originally written and/or modified."
In accordance with said Decision,the Applicant requests:
1. A further extension and modification of full public access at Kings Way to the Golf
Club Facilities and Golf Course through December 31, 2002 and to thereafter
allow access to owner members and additionally to allow public access
permanently to a maximum 200 non-owner annual or permanent (individual or
spousal/family) memberships, the total number of said memberships in any one
year to be at the discretion of the then organization of Kings Way Golf Club
Charter Members or its successor or assigns,but subject to said maximums.
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 it may deem such appropriate..
Plans.
The Petitioner has submitted plans entitled: Plan No.: l -Land Court Plan 34279-Q, sheet 1 of 4
Facts and Extension History.
The petitioner represents that the Kings Way Development was originally permitted in 1975 by
this Board by the grant of an open space village development special permit and a series of
variances, all as set forth in the Petition No. 1321 Decisions. In 1984, (Petition No. 2048) the
then Developer sought and received an extension of the permit's then ten year life from October
16, 1985 through October 16, 1990. Within said Decision this board further clarified that the
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public use of the golf course and its related facilities was,at a minimum, intended to be eight years
from the date the golf course was available for play. The golf course became available for play on
May 27, 1988. Thus,the initial permitted life of public play on and use of the golf course facilities
was through May 26, 1996. By Decision in Petition #3096, in 1994, full public access to the golf
club was extended through December 31, 1999 with the proviso that the petition could return
between December 1, 1998 and December 1, 1999 and seek a further extension of public play.
The Applicant is within the proper time frame for further extension. The current proposed
extension for full public access is through December 31, 2002 and to thereafter limit access to
owner members and additionally to allow public access permanently to a maximum of 200 non-
owner annual(individual or spousal/family)memberships,the total number of said memberships in
any one year to be at the discretion of the then organization of the Kings Way Golf Charter
Members or its successors or assigns,but subject to said maximum.
The petitioner contends that the stated reasons for the variance within the original permit were
valid as to the original grant of the variance and remain valid as to the proposed extension. Thus,
the criteria for grant of the variance extension and modification are also satisfied.
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 and
financial stability of the facility during early years as will occur according to plans when the
development is completed. As such, the variance should have no significant impact at all on the
neighborhood.
The petitioner contends that the failure to grant the requested relief would cause a substantial
hardship upon the Petitioner as well as current and future homeowners within the project.
Further, the King's Way project is unique in Yarmouth. Multi-family residential development is
no longer a permitted use north of Route 6 generally, nor within the Project's Zoning District
specifically.
In particular, the petitioner observes that the project specifically planed a multi-phased
construction, where by each phase of residential units would be constructed only when they were
ready to be sold. However,in order to provide the planned amenities for the residents purchasing
at the early phases, and to provide the necee•sfiry infrastructure,these portions of the development
were constructed within the first phases. Because of the size of the project and length of time
necessary for the completion of all phases, public play at the golf course was considered to be a
reasonable interim accommodation,to help assure the economic viability of the early amenities.
Now, because the later phases of construction have been delayed, the need for this public play
period also needs to be extended.
As for the post-construction(build out) proposal to allow limited non-resident use of the course
facilities, by members(not by the general public)the petitioner represents that this is necessary in
order to assure the ongoing viability of the course because of two factors.
First, a lower than anticipated percentage of residents have opted to take advantage of the course
membership opportunity. Only 230 memberships are presently in place among the residents,
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I
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whereas approximately 450 total memberships had been anticipated(at build-out).
Second, the total number of units to be built has been reduced from 750 to 725, thus further
reducing the resident play below planned levels.
The petitioners therefore propose to be allowed to sell private memberships to non-residents,after
the completion of the project and after the end of allowed "public play", in order to supplement
the pool of members supporting the course.
Abutters spoke in opposition, expressing concern for the poor behavior of some users of the
course, affecting their properties (surrounding the course). These abutters feel that residents of
Kings Way will be better neighbors, and better behaved, bringing a vested interest in the
development and neighborhood. They also objected to the proximity of some holes to their
private property lines, and to the early morning hours of course maintenance and equipment use.
The petitioners have admittedly been working with the neighbors to address these complaints,but
have not been successful in doing so,to date.
Residents of Kings Way spoke in favor of the proposal.
Concerns were expressed by Board members on several points. First,the members felt that it was
incumbent upon the petitioners to work with their neighbors to address these directly adverse
impacts upon their properties. The Board members tended to agree that the non-resident golfers
are more likely to be less considerate of abutter's interests than would the residents. Secondly,
some members expressed concerns that the lack of resident "members" was in part due to the
marketing practices of the developers. Golf course "charter memberships" are apparently only
available at the time of the initial sale of a unit by the developer. If a unit purchaser does not take
advantage of the membership buy-in at that time,it is not generally available to hint/her,nor to the
subsequent owner of that "unit". While the practice may be well motivated and have an element
of fairness to those who do choose to buy-in early, it also has had the apparent effect of limiting
resident memberships, and thereby creating the currently anticipated need for new non-resident
memberships. The Board members felt that, in the spirit of the original approval of this project,
greater effort was needed to make memberships available to the residents, in the long run, rather
than relying on non-resident membership sales.
After due consideration, the Board finds that some extension of general public play may be
granted, without causing substantial detriment to the public and without causing undue nuisance,
hazard or congestion, provided the petitioners address the current adverse impact upon the close
abutters. The Board also finds that, following the build-out of the development, and the end of
general public play, limited non-resident memberships for the course would be warranted, given
the changes in the development which have occurred, and the unique nature of this planned
residential development.
For the reasons originally relied upon by the Board in the granting of the prior relief, and because
of the changes of construction which have occurred since then, the Board finds that a
modification of the prior relief may be granted, within the original project's intent and purpose,by
allowing the requested post-construction build-out memberships.
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Therefore,the following motions and votes were taken:
1) Motion by Mr. Sarnosky, seconded by Mr. St. George, 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. However, it is the express
intention of the motion that no further extension of public play would be granted
unless satisfactory efforts have been made to address the concerns of the
residential abutters, especially concerning un-cooperative and disrespectful golfers,
and disturbances of abutters with early morning course work (and machinery
operation), and due to the impact on the abutters by the particular placement of
certain golf tees and holes very proximate to the lot lines, and the proposed
placement of remote sanitary facilities throughout the golf course. The members
voted unanimously in favor of this motion.
•
2) A second motion was made by Mr. Sarnosky, seconded by Mr. St. George, 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.
The members voted unanimously in favor of this motion.
3) A motion was made by Mr. St. George, seconded by Mr. Sarnosky,to grant to the
petitioner a waiver from the Boards rules and regulations, so as to allow the
petition to be based on the golf course and site plan more than 2 years old. The
members voted unanimously in favor of this motion.
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 §17 and must be filed within 20 days
after the filing of this notice/decision with the Town Clerk.
David S. Reid,
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57+ TOWN OF YARMOUTH
BUILDING DEPARTMENT
1146 Route 28, South Yarmouth,MA 02664
�'tcaao�
`�` �ri�r'ta�C �' 508-398-2231 ext. 261 Fax 508-398-0836 L E Corp!
July 30, 2007
Ardito, Sweeney, Stusse, Robertson&Dupuy
Attorneys at Law
Thomas P. Carpenter
25 Mid Tech Drive
West Yarmouth, MA 02673
•
Re: Admiralty Heights Condominium/King's Way Association's Proposed Garages
Dear Mr. Carpenter:
I have reviewed your letter of July 16,2007 and associated documentation concerning six garages which
have not been constructed on the site referenced above. Based on this review,I concur with you that the
remaining six accessory garages may be constructed at this time without further relief from the Board of
Appeals.
Accordingly, please advise your client to submit the appropriate building permit application(s)with the
plans for these garages.
Very try,0
James D. Brandolini, C.B.O.
Building Commissioner
/10416' 0wNe- P 'S
Qen L . 3.cnn, OtaiAnan 7L/ C.Loveiz Ad. UleA2 ganmott2/ , /Yladi . 02 673
771-0090, 775-8856
February 8, 1973
TO: Yarmouth Board of Appeals
FROM: Executive Committee, Yarmouth Homeowners League
SUBJECT: Yarmouth Properties Inc, appeal for for a special permit to build the
129 buildings, containing 957 Condiminium units, two man made lakes, a golf course,
and a self contained sewage treatment plant.
The League wishes to go on record that by a majority vote, YHL approves of the
project as, " The best possible use of the land " in that area, for building purposes.
Benjamin L. Finn,
Chairman
cc. YHL Villages Executive Committee