HomeMy WebLinkAboutDecision 2491 Filed 12.28.87 TOWN OF YARMOUTH
BOARD OF APPEALS
Filed with Town Clerk: 4"7 , g -e Hearing Date: 10/29/87
Petition No. 2491
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. : "7"- DECISION
87 DEC 28 P 2 :21 'S1' PETITIONER
The Green Company, Inc.
OF 46 Glen Avenue
N CLERK ' Newton, MA 02159
PaP- RELIEF REQUESTED
The Petitioner has requested two special permits
pursuant to Yarmouth Zoning Bylaw Section 103 . 2 and M.G.L.
Chapter 40A, as amended, as follows :
A. The Petitioner requests that the Board of Appeals
modify the Extant Decision by deleting the date
October 16, 1988 therein and in place of said
date, inserting the date October 16 , 1987 .
B. Further, the Petitioner requests that in
accordance with said Extant Decision that said
Extant Decision be modified and extended as
follows :
In accordance with the Extant Decision as
modified and extended; all building permits
taken out under the terms of said special
permit shall be applied for on or before
October 16 , 1997 , provided, however, that
the developer may during the period between
October 16 , 1993 and October 1..6 , 1997 , by
appearance before this Board at an
advertised public hearing, stating the
reasons , therefor, request an extension or
extensions of the special permit above
expiration date. In all other respects the
special permit is extended in accordance
with the language of the Extant Decision as
originally written and/or modified.
C. Such other relief that the Board of Appeals deems
meet and just .
D. Waiver of strict compliance with the rules and
regulations of the Board of Appealq who're it may
deem such appropriate .
1
LOCUS
The property is a certain parcel of land containing
approximately 194 acres on the north side of Route 6A in
Yarmouthport , Barnstable County, Massachusetts , formerly
known as Oak Harbour and now known as King' s Way ; shown on
Yarmouth Assessors records , all sheets and lots as described
in the original special permit and variance ; and Sheet 120 ,
lots , R1, R2 , R13 , 8 , E3 , E4, E5 , 9 , E7 , E8A, E9A, E10 , Ell ,
E12 , I, 22 , 23 , 24, 25 , 26 . Sheet 127 , lots Z31, Z30, M16 ,
M17 , Z15 . Sheet 128 , lots P29 , P28 , M27 , S26 , T25 , T24,
T23 , G22 , G21, A20, A19 , A18 ; and/or other sheets and lots
as may be on the amended records of the office of assessors ;
and Locus is now comprised of: Lot 10 on L. C. Plan 34279C,
Lots 41 and 42 on L. C. Plan 34279E, Lots 43-54 , inclusive ,
on L. C. Plan 34279G , Lot 14 on L. C. Plan 38776B; Kings
Circuit on L. C. Plan 34279G; Certificate of Title No . 105310
and No. 92243 .
PLANS
The Petitioner has submitted a plan entitled:
Plan of Land being a subdivision of LCC 34279C D
E & LCC38776A & 35454B, King' s Way, Barnstable
County Registry District , Yarmouth, MA; Arrow
Engineering, Inc. , 10 Cape Drive , Suite B,
Mashpee , MA 02549 , Sale 1" = 160 ' , Date October
15 , 1986 .
FILING
The Petition was duly filed. Notice was given as
required by Law, including twice publication in the
Register, a weekly publication having circulation in
Yarmouth. Pursuant to notice , a public hearing was held by
this Board of Appeals on the evening of October 29 , 1987 .
In the course of the hearing, several questions were posed
to the Petitioner' s representatives by members of the Board
of Appeals . Several Yarmouth residents were heard and
response was made by representatives of the Petitioner and
by members of this Board.
MEMBERS OF BOARD OF APPEALS PRESENT:
DONALD HENDERSON LESLIE CAMPBELL
DAVID REID r'RITZ LINDQUIST
JOYCE SEARS
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REASONS FOR THE DECISION
CRITERIA AND AUTHORITY
A. The Criteria for the grant of a special permit are
stated as follows :
1. Zoning Bylaw Section 103 . 2 . 2 Special permits
shall not be granted unless the applicant
demonstrates that no undue nuisance, hazard
or congestions will be created and that there
will be no substantial harm to the
established or future character of the
neighborhood or town.
2 . Chapter 40A Special permits may be issued
only for uses which are in harmony with the
general purpose and intent of the ordinance
or bylaw, and shall be subject to general or
specific provisions set forth therein; and
such permits may also impose conditions ,
safeguards and limitations on time or use .
B. This Board has the authority to modify its
previously issued decisions via powers vested in
M.G.L. Chapter 40A Section 14 which states in
part :
"In exercising the powers granted by
this section, a Board of Appeals , may in
conformity with the provisions of this
chapter, make orders or decisions ,
reverse or affirm in whole or in part ,
or modify any order of decision and to
that end shall have all the powers of
the officer from whom the appeal is
taken and may issue or direct the
issuance of a permit . "
FACTS AND PROJECT EXTENSION HISTORY
This petition is submitted to the Yarmouth Board of
Appeals by the Green Company, Inc . , a Massachusetts
corporation having a usual place of business in Newton,
Massachusetts , seeking two special permits in accordance
with the special permit and related variances , granted by
the Yarmouth Board of Appeals in its decision of October 16 ,
1975 , upon petition of Oak Harbour Associates , the original
Petitioner, and extended by the Board of Appeals in its
decision of April 13 , 1984 , upon petition of Light House
Associates , a prior successor to the original Petitioner, as
modified and supplemented by the Board of Appeals in its
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decisions of January 23 , 1986 and July 9 , 1987 , upon the
petition of the Green Company, Inc. , all hereinafter
collectively referred to as the Extant Decision.
The developer via the Extant Decision as modified on
January 23 , 1986 , has been granted a Special Permit for open
space village development , and related variances , for a
project , on a parcel of land containing approximately 194
acres on the north side of Route 6A, now known ad
hereinafter referred to as the King' s Way premises , (the
"Premises") .
In its decision dated April 13 , 1984, this Board of
Appeals found in part that:
A. On October 16 , 1975 , a Notice of Variance
Conditional or Limited Variances and Special
Permit was issued by the Yarmouth Board of Appeals
relative to petition #1321 filed by Oak Harbour
Associates . Said permit stated in part that ,
"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. "
B. Further, said permit contemplated that , given the
size of the project , extensions of same would be
necessary. That that issue said permit states ,
"11. All building permits taken out under
the terms of this special permit shall be
applied for within ten years of the
expiration of any appeal period from 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 appearance before ,
this Board, stating the reason therefor,
request an extension or extensions of this
ten year time limit . "
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C. The last two years of the first ten year period
began on October 17 , 1983 . The first ten year
period ends on October 16 , 1985 .
D. In accordance with said permit the successor
developer filed a request for extension by letter
and petition dated February 10, 1984 with the
Board of Appeals .
E. The successor developer requested that the
original special permit be extended by letter
request through October 16 , 1990 .
F. The size of the project as originally permitted
suggested the necessity of an extended period of
time to complete it .
G. The special permit as originally granted
contemplated the necessity and probability of
extensions .
H. The project is substantially underway with the
construction of the first condominium phase of 19
units and partial construction of Oak Harbour
Circle.
I . The successor development indicates that
substantial sums have been invested for the
purpose of planning the second and third
condominium phases , the sewage treatment plant
facilities and the golf course and other
amenities.
J. The successor developer indicates that present and
future financing agreements require assurance of
buildability beyond the existing permit time
limitations .
K. The Town of Yarmouth benefits by the development
of this property in accordance with the terms of
the open space concept rather than grid
subdivision proposals for any post permit
development ; and in the opinion of the Board, an
extension would allow for continued gradual
development rather than a quicker paced, lower
quality development which might result if an
extension in time were not granted.
L. Given the length, breadth and complexity of the
original permit ; its background and the extensive
legal , engineering, and scientific research
provided at the time of the original hearings , an
extension by letter provision was incorporated in
5
the decision of the then Board of Appeals , and is
appropriate in this instance.
M. The Board finds that the proposed extension is in
harmony with the general purpose and intent of the
bylaw and finds that the extension will not be
detrimental to the neighborhood; and that no undue
nuisance, hazard or congestion will be created by
granting this request , and that there will be no
substantial harm to the established or future
character of the neighborhood, for the reasons set
forth in the Board' s original and current
decision. . . . "
Said Extant Decision in the special permit modification
decision filed with the town clerk on April 13 , 1984 states
in part , on page 3 thereof;
. .The Petitioner is therefore granted, after
letter request , in accordance with the terms of
the original special permit , the following
extension; all building permits taken out under
the terms of said special permit shall be applied
for on or before October 16 , 1990 , provided,
however, that the developer may, during the period
between October 16 , 1988 and October 16 , 1990 , by
appearance before this Board at an advertised
public hearing, stating the reason therefor,
request an expiration date. In all other
respects , this special permit is extended in
accordance with the Language of the permit as
originally written. . . " .
Further, in the decision of January 23 , 1986 , the
Board referred to that extension to October 16 ,
1990, and stated that : " . . . it is hereby provided
that this decision shall also remain effective and
exercisable to that date. Nothing herein shall be
deemed to preclude an application for further
extension of time . . . " .
RATIONALE FOR GRANT OF RELIEF
Relief Sought :
A. The Petitioner requests that the Board of Appeals
modify the Extant Decision as stated in part above
by deleting the date October 16 , 1988 therein and
in place of said date inserting the date October
16 , 1987 .
6
Rationale for Relief Requested and Criteria
Satisfied:
The Board finds that : In its decision of April
13 , 1984, the Board of Appeals selected the date
of October 16 , 1988 as the initial date when the
Petitioner could seek a further extension. The
selection of a specific date has validity in that
it appears that the Board did not wish to hear a
petition for further extension until substantial
further progress had been made in the development .
However, the selection of the date was somewhat
arbitrary. As is stated more fully hereinafter,
sufficient substantial progress has been made at
the development at this time that the crucial
point for project extension planning has been
reached a year earlier than expected. It is thus
appropriate that the Board hear the request for
relief at this time . Further, by hearing the
request at this time, no undue nuisance, hazard or
congestion will be created and there will be no
substantial harm to the established or future
character of the neighborhood or town and is in
harmony with the general purpose and intent of the
bylaw.
B. Further, the Petitioner requests that in
accordance with said Extant Decision, that said
Extant Decision be modified and extended as
follows :
In accordance with the Extant Decision as
modified and extended; all building permits
taken out under the terms of said special
permit shall be applied for on or before
October 16 , 1997 , provided, however, that
the developer may during the period between
October 16 , 1993 and October 16 , 1997 , by
appearance before this Board at an
advertised public hearing, stating the
reasons , therefor, request an extension or
extensions of the special permit above
expiration date . In all other respects , the
special permit- is extended in accordance
with the language of the Extant Decision as
originally written and/or modified .
Rationale for Relief Requested and Criteria
Satisfied:
--------
The Board finds that the request for extension be
should be granted in that no undue nuisance ,
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hazard or congestion will be created and there
will be no substantial harm to the established
future character of the neighborhood or town and
that the extension is in harmony with the general
purpose and intent of the bylaw because ;
The Board further finds that :
1. The size of the project as originally
permitted suggested the necessity of an
extended period of time to complete it .
2 . The special permit as originally granted
contemplated the necessity and probability of
extensions .
3 . The April 13 , 1984 permit extension and the
January 13 , 1986 modification, as recited
above, both contemplated future extensions .
4. The Petitioner Developer in its development
and financial planning has relied upon future
extensions as contemplated in earlier
decisions .
5 . The Construction of residential units is
substantially underway.
The Board finds that the extended
construction schedule to be far superior to
what would be currently required. However,
no specific construction schedule is hereby
imposed.
6 . The developer has , since 1986 , been
emphasizing the construction of Common
Facilities and amenities designed to serve
the future owners of 750 units . Millions of
dollars have been invested and spent in
planning, designing, engineering, permitting
and/or the construction of King' s Circuit ,
Sewage Treatment Facility , Maintenance
Building, Gatehouse Security, Village
Driveways , an Eighteen Hole Executive Golf
Course, Golf- Course Clubhouse and Pro-shop,
Community Building, Post Office/Country Store
and Landscaping.
7 . Present and future financing agreements
require assurance of buildability beyond the
existing permit time limitations .
8 . The Town of Yarmouth benefits by the
development of this property in accordance
8
with the terms of the open space concept and
an extension would allow for continued
gradual development rather than a quicker
paced, lower quality development which might
result if an extensions in time were not
granted.
9 . Given the length, breadth and complexity of
the original permit ; its background and the
extensive legal , engineering, and scientific
research provided at the time of the original
and later hearings , an extension provision
was incorporated in prior decisions by the
then Board of Appeals , and is appropriate in
this instance .
10 . The general purpose of the Zoning Bylaw is
stated as follows :
"The purpose of this bylaw is to
promote the health, safety , convenience
and welfare of the inhabitants by
dividing the town into districts and
regulating the use and construction of
buildings and premises therein. "
The development as designed with all the
Common Area Amenities and Facilities as
described in paragraph six above all promotes
the health, safety, convenience , and welfare
of the inhabitants generally. The project
meets the intent of the bylaw in that the
Petitioner' s project does promote a choice in
housing types , and broadens the economic base
of the town and creates employment while at
the same time protecting the public health by
preserving air, water and groundwater quality
and enhances the public welfare in that it
does not include any uses which are noisy,
dusty, dirty, smelly, dangerous or otherwise
a nuisance to the public at large . It is
noted that the project is outside of the Zone
of contribution. Further, the project meets
Zoning Bylaw objectives inasmuch as it is
designed to allow relatively intensive use of
land locally while preserving open space for
conservation and recreation; and it
introduces variety and choice into
residential development ; meets housing needs ;
and facilitates economical and efficient
provisions for public services .
11 . Failure to grant the extension would cause a
substantial hardship upon the Petitioner as
9
well as current and future homeowners within
the project . In its many permit compliance
appearances before the Board, the Developer
has shown upmost good faith in complying with
the extant decision. All plans reviewed by
this Board have been of the highest quality
all in accordance with the country wide
impeccable reputation of The Green Company.
Further, the King' s Way project is unique in
Yarmouth. Multifamily residential
development is no longer a permitted use
north of Route 6 generally, nor within the
Project ' s Zoning District specifically. The
shape of the development area is irregular
and is to be serviced by one main road
called, King ' s Circuit . There will be many
village driveways . The open space village is
intertwined through and around the only
Yarmouth Golf Course North of Route 6 . The
topography is undulating rather than the
usual flat Cape Cod terrain. Said conditions
do not effect the Zoning District generally.
Desirable relief may be granted without
either: substantial detriment to the public
good; or nullifying or substantially
derogating from the intent or purpose of this
bylaw because the project as designed will
not adversely effect traffic, public water
supply, fire safety nor public health and
safety as a whole. Because the project is
self contained, the proposed extension will
not effect abutters nor the surrounding
neighborhood.
CONCLUSION AND GRANT OF RELIEF
The Petitioner is granted the two special permits
pursuant to Yarmouth Zoning Bylaw Section 103 . 2 and M.G .L.
Chapter 40A, as amended, as requested.
The Extant Decision is hereby modified to allow the
Petitioner to seek an extension of said Extant Decision
after October 16 , 1987 .
Further, in accordance with said Extant Decision, the
said Extant Decision is modified and extended as follows :
In accordance with the Extant Decision as
modified and extended; all building permits taken
out under the terms of said special permit shall
be applied for on or before October 16 , 1997 ,
provided ,however, that the developer may during
the period between October 16 , 1993 and October
16 , 1997 , by appearance before this Board at an
10
advertised public hearing, stating the reasons ,
therefor, request an extension or extensions of
the special permit above expiration date . In all
other respects the special permit is extended in
accordance with the language of the Extant
Decision as originally written and/or modified.
The Decision and Relief herein granted shall run with
the land and enure to the benefit of the Petitioner and its
successors and assigns .
MEMBERS VOTING
DONALD HENDERSON LESLIE CAMPBELT,
DAVID REID FRITZ LINDQUIST
JOYCE SEARS
All voted unanimously in favor granting the
Petitioner' s request .
Therefore , the Petitioner' s request for two special
permitsisgranted as requested for all the above stated
reasons .
No permit issued- until 20 days from the date of filing
the decision with the Town Clerk.
Fritz Lindquist
Clerk, pro tem
rrt
Rey
CO
10
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•
111M l;t Y rya"k.'i,1 h
BOARD OF APPEALS
OWNER: NAME: The Green Company, Inc.
ADDRESS: 46 Glen Avenue APPEALS V �42791
Newton, MA 02 1 59 HEARING DATE: /0/49/F 7
PAID: I,ry,dp
PETITIONER: NAME: The Green Company, Inc.
ADDRESS: 46 Glen Avenue
Newton, MA 02159
This application is for the property and/or structure located at: King ' s Circuit, Off 6A,
Yarmouthport, MA - See Exhibit "B" attached hereto.
Including Assessor's Map 41 & Parcel f/
I, We, hereby appeal from decision of the Building Inspector to grant permit and petition
your Board for a public hearing on this action.
Date refused Building Inspector
I, We, hereby request the action checked below:
1. APPLICATION for SPECIAL PERMIT under Section (s) 103 . 2 of the Yarmouth Zoning
By-Law and/or for a use authorized in the "Use Regulation Schedule" Section (s)
to allow: See Exhibit "A" attached hereto.
2. PETITION for VARIANCE from the terms of the Yarmouth Zoning By-Law to allow:
In order to grant petition, a variance of Section (s) of the By-Law is
necessary.
A list of abutters within 300 feet of the perimeter of the property, as shown on the most recent
Assessor's Maps is attached.
Ardito, v n eeey,Stusse,Robertson &Dupuy,P.CPHE GREEN COMPANY, INC.
Mattacheese Professional Building By its Attorney,
0 25 Mid-Tech Drive, Suite C
i__West Yarmouth, MA 02673
775-3433
RECEIVED BY TOWN IFLERK Appl i - s Sif,na urc
Edward J.
Copies of the I:ules and Regulations of the Board .and a Sweeney, Jv j
. general in, urmatic�n sha�ct arc ��,�;ai l:,hl k
from the hoar;; ': secretary.
EXHIBIT "A"
TOWN OF YARMOUTH
BOARD OF APPEALS
This petition is submitted to the Yarmouth Board of Appeals
by The Green Company , Inc. , a Massachusetts corporation having a
usual place of business in Newton, Massachusetts , seeking two
special permits in accordance with the special permit and related
variances , granted by the Yarmouth Board of Appeals in its
decision of October 16 , 1975 , upon petition of Oak Harbour
Associates , the original Petitioner, and extended by the Board of
Appeals in its decision of April 13 , 1984 , upon petition of Light
House Associates , a prior successor to the original Petitioner,
as modified and supplemented by the Board of Appeals in its
decisions of January 23 , 1986 and July 9 , 1987 , upon the petition
of The Green Company, Inc. , all hereinafter collectively referred
to as the Extant Decision.
Said Extant Decision granted a Special Permit for open space
village development , and related variances , for a project , on a
parcel of land containing approximately 194 acres on the north
side of Route 6A, now known and hereinafter referred to as the
King' s Way premises , (the "Premises" ) also shown on Yarmouth
Assessor' s Maps as more fully described on Exhibit "B" attached
hereto and also shown on "Land Court Plans as Lot 10 on L. C. Plan
34279C, Lots 41 and 42 on L. C. Plan 34279E, Lots 43-54,
inclusive, on L. C. Plan 34279G, Lot 14 on L. C. Plan 38776 B and
Kings Circuit shown on said L. C. Plan 34279G; most recently
registered under Certificates of Title No . 105310 , No . 92243 and
No . C- 153 .
Said Extant Decision in the special permit modification
decision filed with the town clerk on April 13 , 1984 states in
part , on page 3 thereof;
. . .The Petitioner is therefore granted, after letter
request , in accordance with the terms of the original
special permit , the following extension; all building
permits taken out under the terms of said special
permit shall be applied for on or before October 16 ,
1990 , provided, however, that the developer may, during
the period between October 16 , 1988 and October 16 ,
1990 , by appearance before this Board at an advertised
public hearing, stating the reason therefor, request an
extension or extensions of the special permit present
expiration date . In all other respects this special
permit is extended in accordance with the Language of
the permit as originally written. . . " .
Further, in the decision of January 23 , 1986 , the Board
referred to :that extension to October 16 , 1990 , and
stated that : " . . . it is hereby provided that this
decision shall also remain effective and exercisable to
that date . Nothing herein shall be deemed to preclude
an application for further extension of time , . . . " .
The Petitioner requests two special permits pursuant to
Yarmouth Zoning Bylaw Section 103 . 2 and M.G.L. Chapter 40A, as
amended, as follows :
A. The Petitioner requests that the Board of Appeals
modify the Extant Decision as stated in part above by
deleting the date October 16 , 1988 therein and in place
of said date inserting the date October 16 , 1987 .
B. Further, the Petitioner requests that in accordance
with said Extant Decision that said Extant Decision be
modified and extended as follows ;
In accordance with the Extant Decision as
modified and extended; all building permits
taken out under the terms of said special
permit shall be applied for on or before
October 16 , 1997 , provided, however, that the
developer may during the period between
October 16 , 1993 and October 16 , 1997 , by
appearance before this Board at an advertised
public hearing, stating the reasons ,
therefor, request an extension or extensions
of the special permit above expiration date .
In all other respects the special permit is
extended in accordance with the language of
the Extant Decision as originally written
and/or modified.
C. Such other relief that the Board of Appeals deems meet
and just .
D. Waiver of strict compliance with the rules and
regulations of the Board of Appeals where it may deem
such appropriate.
0
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EDIT B
All sheets and lots as described in the original special
per•it and variance; and Sheet 120, lots, R1, R2, R13, 8, E3, E4,
ES, 9, R10, E6, All, Al2, A13, A14, A31, A32, A33, 34, 35, E7,
E8A, E9A, E10, Ell, E12, I, , 22, 23, 24, 25, 26.
Sheet 127, lots Z31, Z30, M16, M17, Z15.
Sheet 128 , lots P29, R28, M27 , S26, T25, T24, T23, G22, G21,
A20, A19, A18;
and/or other sheets and lots as may be on the amended records of
the office of assessors.
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