HomeMy WebLinkAboutAppeal 3570 Heatherwood Timeline and Trustee Letter 11.17.998 Iv
HEATHERWOOD N OV 1 8 1999
At Kings Way
TOWN OF YARMOUTH
BOARD OF APPEALS
November 17, 1999
VIA DELIVERY BY HAND
Mr. David Reid, Chairman
Yarmouth Board of Appeals
Town Offices, Route 28
South Yarmouth, Massachusetts 02664
Re: Appeal of Building Commissioner James D. Brandolini's August 25, 1999
Decision regarding Heatherwood at King's Way,Phase II and Phase III
Dear Mr. Reid:
I am writing to you and the other Board members as Trustee of Heatherwood at
King's Way Condominium Trust. I have been involved with Heatherwood since 1986.
The Board heard at length from the lawyers at the October 18, 1999 hearing. I thought
that it would be of assistance to the Board for me to present in simple and practical terms
a summary of Heatherwood's position in advance of the continued hearing on November
18. I will, of course,be available at the hearing to answer any questions that the Board
has.
The Board should reject this appeal because the law permits the 14 assisted living
units which exist and are occupied today as well as the units which are proposed. This
Board on at least three prior occasions and town building inspectors on at least three
occasions have specifically approved the construction of the assisted living units. One of
your decisions was appealed to court and the appeal was dismissed. To now reverse
course would not only be against what the law, your past variance/special permit
decisions and the town's consistent interpretation of those decisions allow, it would also
result in the eviction of the 14 tenants who today occupy the 14 assisted living units and
cast a legal cloud on the entire project as there is little difference between the services
received by residents of assisted living units as opposed to the independent ones.
The 1975 and 1986 Board variance/special permit decisions and the old
Yarmouth zoning by-law, not today's zoning by-law, govern Heatherwood. These past
Board decisions permit the development and use of elderly housing units which, in
100 HEATHERWOOD DRIVE AT KINGS WAY-a ROUTE 6A zs, YARMOUTH PORT, MA 02675
508) 362-4400 or(800) 852-0365
addition to having "cooking, living, sanitary and sleeping facilities independent of any
other unit" and otherwise meeting the applicable zoning definitions of a"dwelling unit,"
also provide elderly residents with the option of taking their meals in a central dining
room, and of having light housekeeping, social services and personal care services
provided.
The 1986 decision specifically references these "support services." They had been
explicitly described to the Board in January, 1986 by Mr. Alan Green, who proposed the
amendments to the variance/special permit in order to develop what is now know as
Heatherwood. At the beginning of his presentation Mr. Green testified that the facilities:
will provide living accommodations, social and minimum health support services
oriented to independent living in a quality of life which enhances self-dignity. The basic
components will include dining room facilities, security, emergency call system, a
resident advisor,food service and nutritional and social needs, stimulating and creating
activities and educational programs, health maintenance and medical counseling
services, swimming pool, health and physical therapy programs . . . .. (Board Minutes,
January 23, 1986, p. 2). The Board in 1986 knew specifically that it was approving, not
simply multi-family housing for the elderly, but multi-family housing for the elderly that
also offered a range of nutrition, social and other support services to allow elderly people
to maintain a quality to their life by assisting them in meeting their living needs and
thereby allowing them to remain independent.
It is long past the time when anyone can challenge the wisdom of the Board's
1986 variance and special permit decision to allow more than mere housing at King's
Way. I suggest, however, that allowing our elderly a range of housing choices was a wise
decision. It certainly was in keeping with the applicable 1975 Open Space Village
Development cluster zoning which had among its objectives "to introduce variety and
choice into residential development" and"to meet housing needs." (1975 By Law,
18.07(1)).
The residents of Heatherwood's assisted living facility have lived harmoniously
with the residents of greater Kings Way since 1991. Moreover, 300 people have
participated in purchasing 198 residential units at Heatherwood since 1989. It is much to
their surprise that seven individuals, after almost a decade of community, have now
challenged the right of Heatherwood's assisted living units to exist illegally. I refer you
to the attached timeline labeled"Exhibit A". This timeline illustrates the clear and
deliberate pattern of the permitting, construction and operation of the units which give
extra assistance in living at Heatherwood. Based on this course of events alone, it was
reasonable for the Zoning Board of Appeals to reaffirm this past July,just as it did in
1987 and 1995, that assisted living is allowed under the 1975 variance/special permitasamended. It also shows that in May of this year, 84%, or 119 of the total 142 unit owners
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at Heatherwood voted specifically to allow the planned additional assisted living units
that this Board approved in July.
The seven individuals who propose to end assisted living at Heatherwood assert
that the units are not "residential"due to the types of support services provided, and
therefore should be subject to additional permitting as a nursing home. As the attached
matrix labeled "Exhibit B" shows, there is little difference between the services provided
to Heatherwood's independent living units and Heatherwood's assisted living units. The
main difference is the provision of up to one hour per day of assistance with daily living
help with dressing, bathing, dining and the like). But even this difference is illusory
since any resident of Kings Way, including the opponents, can contract individually for
these same services in their personal residence.
The same arguments of the seven individuals would seem to call into question the
legal right of the 142 independent unit residents at Heatherwood to have the support
services they now enjoy. The residents of the independent units, like the residents of the
assisted living units, have their meals cooked in the same central kitchen and they eat in a
common dining room. Like the residents of the assisted living units, the independent unit
residents also receive commonly provided light housekeeping, social services, and other
support services. As Exhibit B shows, the only material difference between the services
commonly provided to the independent units and the assisted living units is the one hour
per day of personal care in dressing, bathing, dining and the like.
One hour of personal care a day does not make the assisted living units into a
nursing home. Nursing homes provide 24 hours of personal, skilled and medical care as a
common service to their residents. Heatherwood's assisted living does not, and cannot
both by law and by its master deed, provide nursing care to its residents. Its certification
as an Assisted Living Unit provider under state law specifically prohibits this.
Heatherwood is clearly not a nursing home nor does it provide nursing or medical care.
I appreciate the thoughtful consideration which this Board has given to this matter
since July of this year, and which past Boards have given to the subject since 1986 and
earlier. In summary, I offer the following points.
The 1986 variance/special permit amendment clearly contemplated assisted
living support services as part of the mix of housing proposed for an aging
population on Lot 62.
Following the 1986 decision, all of the three phases with assisted living units
originally referred to as personal care units)were approved, building permits
granted, and construction has been completed on two of the three phases.
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Assisted living units at Heatherwood opened in 1991 and the living assistance
provided to these units continuously since that time differs only from the
independent units at Heatherwood in the availability of one hour per day of
personal care.
Heatherwood's assisted living units clearly meet all of the requirements of
1986 variance/special permit; current zoning by law requirements relating to
use are not relevant.
No skilled nursing or medical care is or can be provided for assisted living
units; residents requiring skilled nursing or medical care must move from
assisted living to a nursing home.
All of the existing residents of Heatherwood purchased their units in reliance
that they would receive the commonly provided meals, housekeeping and
social services they now receive, and if they ever needed the additional
assisted living support services in the form of the one hour per day personal
care would be available at Heatherwood.
The reversal by the ZBA of its prior decisions will result in at least 14 elderly
residents from Heatherwood having to leave, and likely future challenges to
the existence of the common services now provided to the 142 independent
units and their residents.
I appreciate your consideration of the points made in this letter and look forward
to seeing you at the hearing on November 18.
Very truly yours,
Heatherwood at Kings Way Condominium
Trust / ;
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L a r.C . ,U i6;
Sotiff
Michael T. Downey, Trustee
Enclosures
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