Appeal 3570 Meeting Minutes 10.28.99 (continued to 11.18.99) •
TOWN OF YARMOUTH
BOARD OF APPEALS
MINUTES
HEARING DATE: October 28, 1999
MEMBERS OF THE BOARD PRESENT AND VOTING: David Reid, Chairman, James
Robertson, John Richards, Joe Samosky, Diane Moudouris, Non-voting alternate Robert Reed.
PETITIONER#3570: Alvan Hirschberg & Others, c/o Philip E. Magnuson, Esquire, 255 Main
St. Hyannis, MA. Property located at 245 King's Circuit, Heatherwood @ King's Way,
Yarmouthport. Assessor's Map: 142, Parcel: 11, Zoning District: R40. The applicant seeks to
reverse the decision of the Building Inspector regarding a determination for zoning enforcement
action for the proposed assisted living facility at Heatherwood @ King's Way.
Mr. Reid read the legal ad. Attorney Philip Magnuson represented the petitioners in this appeal.
Atty Magnuson first presented the board with a copy of the petition filed with the Board on July 8,
1999, signed by 291 members and unit owners at Kings Way in opposition to the proposed assisted
living facility.
Atty Magnuson mentioned that the majority of the people named in the petition were present here
tonight. He mentioned that he provided the board, with the application, his memorandum that he
would be addressing in his presentation. The focus will be on the core issue, "What is the nature of
the use at the existing and proposed assisted living facility at Heatherwood at King's Way and is it
allowed under the Zoning Bylaw or any prior decision of this board?"
Atty Magnuson mentioned that he brought with him the original marketing publication which is the
best source ofinformation about the existing and proposed assisted living facility,and that each board
member had one in their packets. It describes the services provided, like 24 hour a day staffing by
certified personal care assistants under the supervision of a registered nurse,physician consultation
by our board certified interns,assistance with your medication,bathing,toileting,dressing,dining and
mobility. The amenities described(exhibit b)include three meals daily,diets evaluated by a qualified
dietician, therapeutic diets ordered by a physician at additional cost. Ability to provide timely
assistance to residents and to respond to urgent and emergency needs by the presence of a 24 hour
per day on site staff capability.
Atty Magnuson referred to the price schedule for these services. The schedule reflects daily charges
of$120.00 to $150.00 per person for a one bedroom unit at Heatherwood. It allows stays as short
as 2 weeks. The monthly cost would be between$3,600.00-$4,900.00 per month. For comparison
they made inquires and learned the going rate for a monthly rental for a two bedroom unit at Kings
Way would be between$1,100.00 to $1,500.00 per month. The difference between the rental value
of the one bedroom unit at Heatherwood and the$3,600 charge is not the value of real estate rental,
it is the value of personal care services being provided.
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Atty Magnuson explained that assisted living facilities are governed by Chapt. 19D enacted by the
legislators at the end of 1994. Assisted living facilities must be more than just a residence. By law
it must provide personal care services. He discussed the present Zoning Bylaw and its relevance.
If this use were allowed under the present bylaw there would be no question whether or not it had
been granted by a prior Special Permit. It states, establishments which provide 24 hr, per day
personal, with a licensed nurse on duty during the day are classified as intermediate care facilities,
#8052 in the industrial classification manual of 1987. This is a sub-group to the industry group#805
which comes under"Nursing&Personal Care Facilities",which is reflected in our Zoning Bylaw P5.
It is not allowed in a residential district without a Special Permit. The only question is whether it is
an intermediate care facility or a nursing&personal care facility. He suggested it was an intermediate
care facility because it provides 24 hr per day personnel under the services previously described with
a licensed nurse on duty each day, as described in their brochure.
Atty Magnuson stated that back in 1975 the zoning board granted a Special Permit and a number of
Variances to Oak Harbour Associates to develop what is now the Kings Way site. Under the bylaw
in force then business uses were not allowed in the residential district. A number of Variances were
required to allow the business uses which were permitted to Oak Harbour in 1975. In the decision
(Exhibit E), there is no Variance granted which would allow an assisted living facility.
Atty Magnuson explained that he went back and looked again at the Special Permit decision granted
in 1975. It contains on page 12, a list of accessory structures and uses allowed by Special Permit.
(See file) There is no provision in this decision for the offerings of personal care services for a fee.
Atty Magnuson offered that 10 years later, December of 1985, the Green Company filed an
application to confirm and change the 1975 zoning Variances and Special Permits. There was an
exhibit attached to that application which lists in great detail the relief that is requested (exhibit f).
No relief could have been granted which was not requested. The application requested approval of
the connection by enclosed walkways of buildings containing retirement housing to the community
center complex. Atty Magnuson read the attachment which tells what the uses are in the community
complex. One of which is Health and Medical Facilities, and if you look at it in the context of the
application, what they are talking about is health and medical facilities being one of the uses within
a Community Complex which would total 20,000 sq. ft. This drew the attention of the zoning board
back in 1986. (Exhibit G,minutes of the board hearing) Concerns were raised from a board member
(Mr. Neitz) about it being a nursing home. Mr. Green clarified by saying, "all of these things in
residence services are limited to 20,000 sq.ft.The health and medical services are keeping ofrecords
of each person, a diary of their condition in case of emergency so the doctor or hospital could be
called, a place for doctors to have a clinic or see patients rather than make the people go all the way
to town to visit a doctor. A place for a podiatrist to be able to see patients, it is not meant to be a
community health plan,just to be able to service those people on a actual basis. Mr. Henderson
(board member)asked ifit would be limited to residence? Mr.Green reasoned,yes,absolutely." Mr.
Green described an office within a community building which would provide an amenity, a
convenience to residents of Kings Way or Heatherwood. What now exists is an assisted living
facility which is a separate facility apart from the Community Building. The proposed facility will
consist of over 54,000 sq. ft. providing personal care services for a daily charge. This will be
operated by a separate entity,and the people paying for those services are not required to be residents
of Kings Way or Heatherwood. The use that is contemplated is the sale of nursing and personal care
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services to the public, with stays as short as two weeks, and not limited to Kings Way or
Heatherwood residents.
Atty Magnuson felt that it was clear from both the decision and the minutes of the 1986 Special
Permit and Variance what the ZBA intended to grant which was a re-configuration of the physical
structure to include covered walk ways and other amenities to make the site, the layout, more
comfortable for elderly residents. The term active elderly is used,over and over again in the minutes,
on page 7 (exhibit G), Mr. Green defines active elderly for us. He says, "it is for people who are
older whose family has grown who don't want to be a burden to their children who want to live
independently and with dignity that want to be with their peers, it is definitely not a nursing home".
Attorney Magnuson suggested that it strains the meaning of the word "active elderly" as we
understand the English language, to suggest this describes the persons who require the degree of
service which is proposed at the assisted living facility. And that means help with dressing, bathing,
toileting and every day functions of life, that is not an active elderly population.
He further stated that in 1996 Heatherwood amended its master deed to allow a very different use
from the active elderly. (Provided a copy, exhibit H). The purpose of this amendment was to allow
the assisted living suites "designed for occupancy by persons who are unable to live independently
and require assistance with everyday activities including dressing, grooming, mobility and
medication."I see this as an indication Heatherwood's understanding that in 1996 there was a change
of use from what had occurred before and what had been authorized before and that it was necessary
for them to change their internal documents to allow that use.
Atty Magnuson; Heatherwood at Kings Way and it's predecessors never asked this board for the
necessary zoning relief to operate an assisted living facility and such relief was never granted. There
has also been an issue raised about the legal effect of past Site Plan Reviews which may have
contained the words "personal care". Going back to the 1975 decision to see what the purpose of
those Site Plan Reviews was, the Board allowed Phase development of the project so as to not be a
burden. They did not have to file all the site plans now, they were allowed to bring them in phases.
When those plans came to this Board they were for the purpose of seeing that the site plans meet the
requirements of the 1975 Zoning Bylaw. (Read section of decision about review of the plans). In
summary, it stated that the purpose of the Site Plan Review was to demonstrate the siting and
location of the buildings and to see if it complies with the site plan requirements of 1975 bylaw. Site
Plan Review is not an opportunity to change the allowed use. A use which is not allowed under the
bylaw maybe allowed only with a Special Permit or Variance. Because the words assisted living or
personal care may have appeared in a prior Site Plan Review does not change or expand the uses
allowed under the 1975 and 1986 Special Permits or Variances. The ZBA merely certified that they
were in accordance with the design requirements of the 1975 bylaw.
Atty Magnuson requested the Board to exercise its power under §14 of Chap. 40A, to reverse the
decision ofthe building inspector to: 1)order zoning enforcement action against the existing 14 units
at Heatherwood Phase II to compel compliance with the Special Permit and Variance and Zoning
Bylaw,2)to determine that a building permit may not be issued for Heatherwood Phase III without
further relief from the ZBA, 3) to determine that assisted living units as defined in Chapter 19B, as
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proposed at Heatherwood Phase III is not allowed under the current bylaw or any previously granted
Special Permit or Variance.
Atty Magnuson mentioned that he did have occasion to speak with the former Building Inspector,
Forrest White. Mr. White was in the building department office reviewing their records. He was
unable to attend the hearing so I stopped by his house and he mentioned that the building permit for
the existing Heatherwood units issued on 9/27/95 could not be found in the building department. He
went to the assessors office and saw a copy of it. It referred only to 27 units,Phase II. (copy in file)
There were no references to assisted living facility. Mr. White did make a statement and authorized
me to quote him. "He can not see where assisted living is allowed by the prior decisions." Atty
Magnuson supplied Mr. White with copies of the Heatherwood materials. Mr. White stated that he
didn't realize it was full blown care. He does not believe assisted living is allowed by the prior
decisions.
Mr. Reid stated that this is an appeal from the Building Inspectors decision, and wanted Mr.
Brandolini to speak next, but if anyone had questions for Atty Magnuson to ask now.
Mr. Richards asked about the Community Building location, and was the building supposed to be
connected so that people that lived there could participate in the common areas?
Atty Magnuson; my understanding of the 1986 decision was that it would allow within the
Heatherwood area, would allow buildings to be interconnected. Heatherwood was originally
conceived more as a retirement neighborhood, condominiums, where the greater part of Kings Way
is not. The community building is some distance from that.
Mr. Richards; Exhibit H, where highlighted, is that the first reference to assisted living suites?
Atty Magnuson; I have not done a full title search to look at all the prior master deeds for
Heatherwood, I can't tell you that it is the first reference. The significance I attach to it is that the
proponent of this document felt that a change was necessary to allow assisted living suites, and to
describe the use. This must have been something that was not allowed before this change, and the
fact that it took place in 1996 indicates to me that this was a fairly recent change.
Mr. Reid asked Atty Magnuson about the brochures and printed materials regarding the operations
of the Heatherwood assisted living residencies, have you had a chance to look at the comparable
documents for the proposed operators of the new facility?
Atty Magnuson;we are in an interesting situation, trying to describe a use which does not exist yet,
and which we don't have access to the intention of the person who is going to use it. The best
evidence I can give the board is the existing use that is there. The burden should be on the proponent
of any future use to show that it falls within the relief granted ....of the Zoning Bylaw.
Mr. Reid asked if Atty Magnuson was familiar with the Heatherwood operation, other than the
assisted living units?
Atty Magnuson; only in the most general sense.
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Mr. Reid; does it comply with the existing decisions?
Atty Magnuson In my opinion yes, because it contains multi-family structures, more than three
dwelling units. These assisted living suites could be used within the intent of the decisions as multi-
family units if people just rented them or bought them. They are not being used for that, they are
being used as a site for the sale of personal care services.
Mr. Reid What distinguishes the existing assisted living units from the other Heatherwood units?
Atty Magnuson it is not necessarily a structural inquiry, it is a use inquiry. The key difference in the
use is that in the assisted living units there is the sale of services, the 24-hour day on site available
aides, supervised by a registered nurse, all the assistance that is required to be furnished under the
statue. Those services are being sold and the sale price is the difference between the rental value of
a one bedroom kitchenette which is in the neighborhood of$800.00 or $1,000.00 per month. The
sale price of the services is the difference between that and the $3,600.00 to $5,000.00 that they
charge for the units with those services provided.
Mr. Brandolini; Atty Magnuson had requested in his letter of July 28th, that I take three zoning
enforcement actions/decisions(see letter). He mentioned his letter back to Atty Magnuson(8/25/99
see file). In it I said that I was not able to ascertain whether the proposed assisted living use was
intended to be allowed under the previous Board of Appeals decision, and deferred to the board to
make that determination. This board took the task of making such a determination and it stated
"They were satisfied that the assisted living units will be within the scope of the original decision as
modified in 1986". Therefore this Board approved the request to undertake Phase III as proposed
and found "the use will be within the scope of the existing relief granted". Based on that decision,
I felt to make a contrary decision would be a violation of§14, Chap. 40A.
Mr. Reid asked Mr. Brandolini, but for this board's decision,did you have an opinion of your own?
Mr. Brandolini; I do not.
Mr. Richard Oetheimer, of Goodwin, Proctor & Hoar LLP representative of the developers of
Heatherwood, passed out copies of his presentation in opposition, dated October 25, 1999. (Copy
in file)
Mr. Oetheimer;it seems to me after listening to Atty Magnuson,the issue he is suggesting that it was
never contemplated, not within the contemplation of the boards that issued the Special Permit and
heard the proposed use, that there would be such personal services provided to residents at
Heatherwood. The historic record demonstrates the contrary. They heard some of this from Mr.
Sweeney at the July 8t hearing,he could not be here tonight and stands by his presentation made that
night, and supports the boards decision. It has been said that this board could not have know what
was in the minds ofthe board back then. No one here sat on that board, but the minutes and the plans
are evident. The 1987 Phase I plans received and approved by the board, show 13 personal care
units. There is no difference in services than what is provided today at the existing assisted living
units, than what will be provided in Phase III. It is not medical care, not skilled nursing care, it is
defined by statute what it can and can not be. It is help with bathing and dressing, assistance with
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meals. The original master deed in 1989 made specific reference to personal care units. That term
personal care units is essentially the same as assisted living facility, the use is no different.
Mr. Oetheimer objected to the references to a conservation Atty Magnuson had with Mr. White,the
former Building Inspector. "We don't attach a whole lot of weight to that without having the
opportunity to ask him questions."
Mr. Oetheimer showed the board a copy of the building permit issued 11/27/90,signed by Mr. White,
which was the first phase ofHeatherwood, not Phase II where the 14 assisted living units are. This
permit relates to 6 personal care units. There were in fact five units. Personal care units are on the
1987 plans, in the 1989 master deed, 1990 building permit for Phase I and some people have been
there since 1991.
Mr.Oetheimer showed a letter from Olsten Health Care Services,dated 3/22/91,enclosing a contract
that Olsten was returning to Heatherwood for a signature by Dorcas Magurn. (See file).
Mr. Oetheimer said that in that letter they were referred to assisted living units. The five units in
Phase I were converted to condominiums when Phase II came in. Those residents were transferred
to the fourteen assisted living units constructed in Phase II,just as the current residence in the Phase
II assisted living units will be transferred when Phase III is done. Those fourteen units will be
converted to six residential units.
Mr. Oetheimer mentioned the letter Mr. White wrote to the bank which mentioned assisted living
units.
Mr. Reid asked if the letter referred to assisted living units or personal care units?
Mr. Oetheimer; In Mr. Sweeney's letter to Mr. White it refers to 14 one bedroom assisted living
units, and Mr. White's response letter refers to assisted living area for up to 14 residents.
Mr. Oetheimer stated that the master deed was amended in 1996 because the project had expanded
to Phase II. The terminology "assisted living" replaced `personal care" units which was in the
original deed. Chapter 19D was passed in 1994. The use is no different. He referred to the 1996
decision, April 1986#2268, which referred to "residents services" (page 5), and refers to the plans,
Exhibit A. It references the use categories and defines the uses,including residence services;support
services and health and medical facilities.
Mr. Oetheimer pointed out that there was some reference to the 20,000 sq. ft. community area, and
now this facility being proposes is 54,000 sq. ft. The 20,000 relates to the community area, and no
application to the actual residencies of the individuals, that is a red herring. These are not services
for sale to the general public,this is a residential building. They must reside there. They sign a lease
agreement.
Mr. Oetheimer; What will be in Phase III is also assisted living, a different operator, but both are
governed by Chapter 19D, which says what can and can not be provided. Mr. Oetheimer produced
copies of the residency agreement. He said that the services are very limited, they are valuable, but
not medical. People must become residents ofHeatherwood in order to receive the services as part
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of their residency agreement. They sign a 12 month agreement,they have to received an assessment
and the staff has to make a determination that they are capable of independent living with the help of
some personal care. If they can no Ionger maintain that level of independence they are counseled out
and they have to leave.
Mr. Oetheimer stated that there had been mention of a 24 hour nurse, in fact the administrator is a
registered nurse, but is not involved in providing nursing care and there are no nurses on staff.
Mr. Robertson interjected and asked about the residency lease,referred to as an agreement between
the tenant and the landlord, is that document controlled by tenant/landlord law in the state of MA?
Mr. Oetheimer said it is his understanding that it is. Chapt 19D, assisted living law, provides that
assisted living residencies shall be regarded as residential uses, for the purpose of the state building
code and are subject of landlord/tenant laws.
Mr. Oetheimer talked about the current bylaw. He felt that Kings Way was approved and permitted
under the 1975 Zoning Bylaw and this board has recognized at previous hearings that it is
grandfathered by it. The only question is whether the use is one that was permitted under the 1975
Zoning Bylaw.
Mr. Reid; More precisely, under the 1975 decision, not necessarily the bylaw.
Mr. Oetheimer said that the project was approved under the open space village development, §18 of
the 1975 bylaw. It was approved under multi-family residential use. These units satisfy the criteria
of the definition of multi-family, the only issue Atty Magnuson raises is whether the use was
permitted.
Mr. Oetheimer took issue with Atty Magnusons conclusional premise that this is an instructional use
even under the current bylaw. He (Magnuson) also stated that this falls in the industry group 805
which has the exact same title the bylaw uses, nursing and personal care facilities (tape over). Mr.
Oetheimer read the sentence from the section,and then said that this facility is not licensed to provide
nursing care. It goes on to say that facilities providing residential care with incidental nursing or
medical services are classified as group 836,a different group entirely,not nursing and personal care
facilities and not the use the current bylaw has classified.
Mr. Oetheimer recounted that the board on July 8, 1999, after the hearing, was satisfied that the
assisted living was within the scope of the original 1975 Special Permit decision and as modified in
1986. It was noted in the decision that they would be residential units for elderly residents and
providing modest levels of assistance and that they would not be receiving medical or skilled nursing
care. They believe the evidence shows that the use "personal care", "assisted living" "personal
support services" was always contemplated back to 1986. Quoting Mr. Green from the 1986
minutes, it says"We are dedicating the central facility to the active elderly which will provide living
accommodations,social and minimum health support services....independent living and quality oflife
which enhances selfdignity". Mr.Singer,board member, asked Mr. Green what was meant by active
elderly. Mr. Green said, "It is for people who are older whose family has grown and don't want to
be a burden to their children, who want to live independently and with dignity, live with their peers,
it is definitely not a nursing home."
Mr. Robertson; All counsel apparently agree that the 1975 decision allow multi-family residential
structures. You could build the building with 68 units in it, multi-family, aka apartment houses, the
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primary use as residency. The question is, when the prior decision and relief granted therein, being
the 1975 & 1986 decisions, was it contemplated that services would be made available to the multi-
family residence. In my humble opinion what is offered as an assisted living program are services,
same as I had a door man 24 hours a day in the front door of the apartment house, service to the
tenants and an on site resident janitor, that's a service to the tenants. Things supplied to the tenants
in an assisted living facility are services. The question that bothers me and some other people,when
or if; the services change the primary use of the building. Do the services get to be the horse as
opposed to the cart? Can you increase the amount of services to the residential occupants of the
multi-family structure to a point where they overshadow the primary or original use, multi-family
sturcuture? I don't know the answer.
Mr. Oetheimer; The decision shows that significant levels of service were contemplated, and
approved by the board,the last page of exhibit A, list use categories which includes resident services.
Atty Magnuson suggested that this is not a service like providing a door man or a janitor which
benefits all of the residents and it is part of a customary residential use. This is a provision of services
for a discrete few persons who pay a substantial additional amount for those services. Here you are
paying several thousand dollars a month for these services,not for the benefit of all the residents,but
for those who pay for the provision of this particular service. I don't think there is a continuum of
when the services over shadow the primary use, I think every service that is beyond the normal and
customary residential use has to be authorized by the zoning decision. If you go back to exhibit A,
last page of my exhibit F, there is a reason why the Green Co. went to great trouble and detail to file
a sixteen page application in 1986, and a reason why they listed 21 or 22 categories of services that
would be available. Because everything had to be spelled out there or it would not or could not be
granted. Mr. Oetheimer admitted that he did not know what"support services"meant. It would be
remarkable from a zoning standpoint if the board took an application with a vague word and then had
to take the permit holders word for it 16 years later on what those words meant. I think we can use
normal and customary language to interpret that. What are support services? Maybe to park your
car, maybe someone available if you locked yourself out. It doesn't describe this specific and
intensive and expensive personal care that we are talking about. Back to that same page, it is clear
that these"support services"and the"health and medical services"are contemplated to be within the
community center. In 1975 and 1986, everybody knew that what was going to exist had to be
specifically permitted. Under the 1975 and the current bylaw, an unclassified use is not permitted.
Mr. Reid asked Mr. Oetheimer to address the issue of the reference on that 1986 decision to these
services being associated with the community building as opposed to the residential building? Do you
agree with that interpretation or can you tell me how you interpret that?
Mr. Oetheimer;There are people at Heatherwood who receive services, not just at the assisted living
units,(read from brochure entitled Services and Amenities)"You may be retired from your profession
but certainly not enjoying life to its fullest." Mr. Oetheimer read from the list of services, including
concierge service, flexible meal plan, housekeeping, 24 hour security, health center, wellness
program, on site banking, library, pool, private dining room, transportation, etc.
Mr. Reid; My question is not what they offer, but the point has been made that the decision
authorized these services, apparently, and the position that Atty Magnuson is taking, is that these
personal and resident services are offered, not as part of the residential buildings, but as part of the
community building to be shared by the residents from their own building. For example, as in Kings
Way, these services are not available in their homes. These are services that are available at the
common or community buildings separate from the residential units.
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Mr. Oetheimer;The original intent of the 1986 request for relief included the request to provide those
types of services within the same structure as the residences.
Mr.Reid; Can you show me that in the decision? I asked this of Mr. Sweeney before, can you show
me where in the decision it shows that? That is why I asked Atty Magnuson the question before if
he thought the Heatherwood building complied with the decision.
Mr. Oetheimer; There are services that can not all be offered in the community building.
Mr. Reid; My question is, is that what it says?
Mr. Kluzsnick: The only thing I can suggest with regards to that is part of the exhibits that don't
show up here are some of the proposed plans that were on file as well,it is hard to tell from this what
was on those plans.
Mr. Oetheimer;The term personal care units,the connotation of that is that people are receiving care
within their units.
Mr. Reid; Was that term discussed at all at the time of the granting of the permits?
Mr. Oetheimer;There was description that people would be receiving services that would allow them
to maintain an independent life style including support services. The term personal care units is on
the plan and on the building permit that was issued in 1990.
Mr.Reid;Granted,but was there any discussion with the board ofpersonal care units as some distinct
entity from an independent living unit, different classifications of units, different categories?
Mr. Kluzsnick; Essentially the minutes refer to the number of one and two bed room units and....
Mr. Oetheimer; I think the minutes contemplate that everyone who would be active elderly, the
population that was being proposed ....that they would all be receiving some level of service.
Everyone at Heatherwood receives services,what is different is the....the people in the assisted living
units receive a different level of service. There are people who have chosen Heatherwood units
because when, if, their condition progresses to a point they feel less independent and require a
different level of service they will not have to relocate.
Mr. Robertson;I am in the minutes of appeal#2268, 1/23/86,page 13, it says"Mr.Henderson states
that the major change concerns the concept of the retirement housing built
pretty character of the project...the active elderly, does anyone have a problem with the concept?' Mr.
Robertson; it seems there is a distinction being made between what I call, the row townhouses in
Kings Way and the concept of some sort of multi-family building in the center on Lot 62, now Lot
51, and that housing concept is going to be different. Mr. Henderson says the concept makes it
different from the traditional row houses, and asked if anyone has any problem with it, no one has a
problem with the concept. It would be nice if they spelled out the concept.
Atty Magnuson; I think Mr. Neitz identifies it in the next paragraph, the difference was the
constructional configuration ofHeatherwood,it was to be configured to be more user friendly to an
aging,active, independent elderly population by providing covered walk ways to dining, some other
physical arrangement thereon which would make the buildings easier to use than the traditional row
house. It is mentioned also providing meals, there are permits for restaurants for the provision of
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meals on the premises. That level of service was contemplated. Physically it was to be different from
the rest of Kings Way which was a town house luxury condominium. It doesn't go to providing
services over and above what you would normally find in a residential use.
Mr. Oetheimer; The question is, what makes this not a residential use, who says, and what says that
services can not be provided without changing the character from a residential use? Chapt. 19D
makes pains in saying the assisted living is a residential use.
Mr. Reid; If they are residential units, and the proposal is for residential use only, why was it
necessary to amend the master deed to specifically add this as a separate category?
Mr. Oetheimer; It wasn't. The original master deed said that there may be some units as personal
care units.
Mr. Kluzsnick: It is descriptive of the improvements that were made,just as the independent units
the condominium units, were described as well. The assisted living was described in that amendment.
It was not necessarily to make an amendment to the master deed to allow under the condominium
documents the assisted living.
Mrs.Moudouris;Back to the use categories that you referenced,It is your interpretation that the uses
under the use categories are uses that should be offered to all of the residences of the Kings Way
development?
Mr. Oetheimer;This was the context of the 1986 decision it was specifically the re-configuration and
the concept of serving an aging population. The description was provided in terms of the type of
services that were going to be offered to the active elderly.
Mrs. Moudouris; To the community as a whole would be offered these services?
Mr. Oetheimer; I think it was in the context of the elderly population.
Mr. Reid; Does that include the club house and pro shop?
Mr. Oetheimer; They have access.
Mr. Reid; That is one of the ones listed in the use category.
Mr. Sarnosky asked if the independent living people own those units, do they have deeded units in
the independent living units.
Mr. Oetheimer; Everyone owns a unit there, there are some renting from a unit owner.
Mr. Sarnosky; The assisted living will not own the units?
Mr. Oetheimer;Correct. In the 1986 minutes Mr. Green was asked about the ownership and he said
some of it would be rental, some will be condominiums. The units are classified as residential.
Mr. Sarnosky; Who will own the assisted living units?
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Mr. Oetheimer: A company called Benchmark will own the building and rent to residents. The
assisted living units that exist right now, 14 units, are part of the common area of Heatherwood.
They are leased from Heatherwood.
Mr. Sarnosky; Is there a minimum rental period required in the assisted living?
Mr. Oetheimer: (provided a copy of the Benchmark resident agreement) The term is for 12 months,
it does provide that it can be terminated.
Mr. Oetheimer; The average stay in the assisted living units has been 2 to 3 years.
Mr. Reid asked if they see any distinction in the operation, or the operating procedure, whereby a
single entity will own and operate the entire 68 units as opposed to any other portion of Kings Way
or Heatherwood?
Mr. Oetheimer;No I don't believe so. The definition of multi-family dwelling under the 1975 bylaw
says that it requires certain characteristic but it is irrespective oftenure or ownership. Mr. Green was
asked if the units were going to be condominium, and he said that they would be active elderly and
a combination of rental units and condominium units for sale. I have to assume that the renter of
those units might be the developer.
Mr. Reid; There seems to be some significance placed in the original decision by the board, on the
fact that all unit owners would have deeded and vested interest in the common areas and therefore
common control and participation in the maintenance and continuation of the development. How
does that relate to the singular ownership of the entire 68 units? Will Benchmark vote at
condominium meetings and have 68 votes on decisions on how the golf course is going to be
operated or anything of that.
Mr. Kluzsnick;It has been discussed how the 68 units would interact with the open space trust and
wastewater treatment plant trust,and they are being treated no differently than any condominium unit,
they will pay a per unit assessment.
Mr. Reid; So the answer to my question is yes, Benchmark will have essentially 68 votes?
Mr. Kluzsnick; It maybe treated by unit, I am not sure, they will be treated like any other
condominium unit.
Mr. Reid; So you say that it is consistent with the intention original decision?
Mr. Kluzsnick ; I don't believe there is anything inconsistent with the decision.
Mr. Reid; You made reference with the 1975 bylaws, is there a definition in there of dwelling unit?
Mr. Oetheimer read from bylaw;page 32, (provided copy)dwelling unit and multi-family. The units
satisfy the definition.
Mr. Reid;That was my question, are each of the assisted living units intended to be capable of being
occupied independent of any other unit?
Mr. Oetheimer; yes.
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Mr.Reid;I thought the definition of the assisted living units was those were for people who were not
capable of living independently.
Mr. Oetheimer; That is a different question. They are intended to be occupied independent of any
other unit. The occupants of those units may require some level of care, personal care or support
services. That does not mean they are not independent or living by themselves. This is not a nursing
home.
Mr. Reid; So each of the units will be capable of being a separate apartment that you would live in
and never need to go any place else unless you wanted to.
Mr. Oetheimer; Correct. The other definition of dwelling, multi-family, which is the use that was
permitted in 1975, a dwelling containing three or more units, irrespective of tenure or ownership.
Mr. Kluzsnick ; Also, each unit has a locking door and each person has a key.
At this time the Chairman took a brief recess. The hearing resumed and the Chairman mentioned that
the non-voting alternate Ms. Miller had to leave and Mr. Robert Reed who is also an alternate
member of the board and has been here throughout the hearing has stepped in to now become the
non-voting alternate. He would only vote ifone ofthe members were unable to complete the hearing.
Mr. Brandolini wanted to raise a few issues. He mentioned that the Building Department is in the
process of transferring the old filing system to an address system. Some documents are in one place
and others in another place. I tried to retrieve some pertinent documents and noticed a building
permit was circulated to the board, I have a set of plans for permit #736 that show personal care
units, labeled as such and a reception/nurses station, directors office and activity office. Also the
corridor is identified as assisted living. Additionally, a letter dated 9/15/95 addressed to Shawmut
Bank,CT,from Forrest White,Building Inspector,with regards to Heatherwood at Kings Way,(read
letter) review and confirming that the Special Permit and Variances are in full force and effect and
to his knowledge no violations to the permits and stating that additional Site Plan Review would be
required for further expansions.
Mr. Reid went over the correspondence in the file. He read the names of the abutters who wrote
letters in favor and opposition to the petition/proposal.
Marjorie Kane, a resident of Heatherwood and representative for the residents, spoke in favor of
the proposed expansion to Heatherwood.
Mr. Reid explained to the audience that the comments made by Ms. Kane are reflective of the letters
that he just mentioned. All of the points mentioned, the need for assisted living, traffic, etc. was
mentioned in the letters. I would like to be careful and not loose track of what is before us. We do
not have before us a request for us to allow or disallow assisted living, the only question before us
is not whether or not we want it or don't want it, think it is good or bad for Heatherwood, Kings
Way, or Yarmouth, but whether it has already been allowed by a previous board. That is the only
question before us. There is not a petition before us asking to modify, or add, nor asking us for
permission to have assisted living units. The question is whether they already have permission or not.
Mr. Bill Kelly; Kings Way resident, commented that what was an incidental use for residents of
Heatherwood, and Kings Way while they are recuperating. That by nature and definition assumes
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that you are already a full time resident/owner of a condominium in the complex that we all bought
in to.
Robert Larson, former Kings Way resident and now Heatherwood resident, spoke in favor of
assisted living at Heatherwood.
Mr. Reed asked if there was any intention for any use of these facilities by people who are not
residents.
Mr. Oetheimer;No. The services are only available to residents of the assisted living units,they have
to become residents.
Mr. Reed asked what the minimum term of a rental?
Mr. Kluzsnick; The agreement is for a 12 month term, and there are conditions in which it can be
terminated. They are renewed automatically unless terminated.
Mr. Reed; There wouldn't be any way a person could enter in to an agreement for less than a year?
Mr. Oetheimer; I can't state that categorically, I know that at least, referring to the contract for
Phase III,I believe in the existing units there has been on occasion they have been available for respite
care, or possible to enter for shorter stays. It is not available on a daily basis, not a nursing home.
There may be instances that people are there less than a year.
Mr.Reed;I didn't have a chance to read the residency agreement,is this the only residency agreement
that is in place?
Mr. Oetheimer; It is. Benchmark is going to operate the 68 units in Phase III, that is their form of
residency agreement. There are existing 14 units not operated by Benchmark, they also have a form
of residency agreement that is very similar. There is a reason for that, it is defined by statute, there
is a certain, in terms of services an assisted living facility can provide or offer.
Mr. Reed; Is there a section in this 21 page document that describes a minimal rental arrangement?
Mr. Oetheimer; The agreement is entered in to for a period of one year, ending on the one year
anniversary date, unless terminated sooner as provided in this agreement or by law. There are
conditions spelling out the rights of termination.
Mr. Reed; Ok, so we are clearly saying that under the agreement that there is no way they can turn
around and rent the unit out for a week or day or a month,that option doesn't exist, and the Special
Permit going back to 1975 and 1986 or talking about it now.
Mr. Oetheimer; I do not think the Special Permit requires any particular length of stay and I refer
back again to the definition which classifies residential dwellings and multi-family residential, as
irrespective of tenure of ownership. It doesn't matter if it is condominium or rental and it doesn't
matter if you rent it under a 12 month lease or month to month type of agreement.
Mr.Reid;There was made mention earlier ofthe fact that the existing 14 units were classified as part
of the common areas is that so.
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Mr. Kluzsnick; that is correct.
Mr. Reid;how can you have some of the residential units be classified as the common areas? Also,
is there an adult day care program that is operated there now? If so, can you tell me how that works
and what it entails.
Mr. Kluzsnick: Yes, there is adult day care there now, but is not planned for in Phase III.
Mr. Reid; So that would not be continued?
Mr. Kluzsnick: Correct.
Mr. Art ? 24 Forest Gate; Should at some future date Benchmark ceases to operate this building,
what happens to the building, what future use could it be put to? Does it go back to the trustee of
Heatherwood?
Mr. Kluzsnick; The use of that facility is governed by the Special Permit and by the lease document
which limits it to use that is allowed under the Special Permit and the condominium documents, i.e.
independent units, assisted living units, so the answer will be what will be the highest and best use
under the existing approvals, assisted living.
Mr. Art ?; Who supports the building if it is empty? According to an article I read, assisted living
may have reach its? In the state of MA, there are several companies who have gone out of business
recently. If the lease is defaulted on what happens next, who supports it?
Mr. Kluzsnick; The trustee's have the right of purchase of the building if there is an event such as
one described. The lender could also be responsible until another operator could be brought in.
Mr. Art?; That is a big fear that people at Kings Way have, that should Benchmark leave or stop
operating that building. It can't be used for much else, and if there is no market for assisted living
then that building becomes a white elephant.
Mr.Robertson said that the building is a multi-family structure,better known as an apartment house,
and if demand for assisted living disappeared, then the highest and best use would be an apartment
house. The question is, is there anyone to lease it, based on the economy we are presently in, there
sure is.
Mr. Oetheimer presented his closing comments to the board. Focusing on what use was permitted
under the 1975/1986 Special Permit,what was permitted was multi-family residential dwellings. The
first question is, is there some reason that this does not qualify as multi-family residential dwelling?
....in 1975 bylaw they are units capable of being occupied independently, they were approved as
multi-family use. The question is, is there something that makes it, that turns it into other than a
residential use, where do you cross the line? The answer to that is in Chapter 19D. In §18D it says
that assisted living is classified as a residential use for purposes of state law. Yarmouth has never
classified it any differently. Other evidence we have is that, that board and subsequence boards and
the Building Inspector all thought that some level of care or service was going to be furnished to the
elderly and aging population, it has been there at Heatherwood for a decade. The phase one plans
in 1987 identify personal care units, and the board approved those plans. The building permit that
Mr. White signed said personal care units. They have been referred to assisted living units since
1991. There has been no problems with these units or the operation of the use. The case is clearly
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made that it is multi-family residential use approved by the 1975 Special Permit as modified in 1986,
was then is now.
Atty Magnuson presented his closing comments. He wanted to start by responding to some mis-
statements and half truths that were stated to the board. First,the definition in Chapt. 19D,"that for
purpose of the state building code these are to be treated as residential units, the state building code
does not cover use, does not cover zoning, it covers the construction, the materials and the design
and construction of buildings. There are specific requirements for nursing homes, hospitals, and
residences. The construction requirements for residences apply to assisted living facilities. It has
nothing to do with use or zoning. The town will make it's own zoning decisions, which it has, we
are allowing residential uses, we have not allowed non-residential uses without some sort of relief in
this district. It is a misleading argument to say this stops being residential when it stops being an
assisted living facility because the State has said that the state building code for residences shall be
used. It doesn't apply. O'Connell proponents can not show you language in an application for a
Special Permit or Variance or language in a decision or in the minutes which would allow this use.
What they attempt to do is to make an argument out of a word that appears there, out of a use that
begins a few years later and then changes and changes and changes again. Something that slipped
in to the cracks and grew. They say that because it grew gradually that now it is permitted. We need
to look at the legal significance ofany ofthose past Site Plan Reviews or building permits. A building
permit issued within the last six years is subject to attack through this procedure. The 1995 building
permit, to the extent that it may be interpreted to permit this use, is subject to attack today. Mr.
Robertson asked, "When does this stop being residential?" Well we learned something from Mr.
Brandolini, these plans show a nursing station. Residencies don't have nursing stations. (Tape over)
It is evident in the structure and the plans that it is not a multi-family residential use, based on the
plans. Personal care, what does it mean? We don't know what it meant in 1997, it appeared on a
Site Plan Review. It was not a subject of a decision of the board, it was on a plan. There was no
definition given for what a personal care unit was. Unfortunately, that trend has continued through
to when this issue was raised on July 8th, probably in the wrong proceeding. Mr. Magnuson made
a analogy, "IfI went up to Manchester Road where there are duplex's on both side,we can agree that
they are residential uses,there are only two units per building. If I bought them all up and put a sign
up that said Magnuson's Assisted Care Facility and I hired a nurse to be present and supervise and
hired certified home care providers and instead of charging the$1,000.00 a month that those two bed
room units may get, I charge $3,000.00, there would be no doubt that I would be engaging in a
business other than renting real estate because I would be providing services. There has been a
representation that the nurse does not function as a nurse, she is an administrator. The exhibit A,
which is their own brochure, says that the nurse is supervising the care providers. There is a
representation made to the public that the nurse is there as a nurse. There has been a lot oftalk about
the residency being for a minimum of one year and Mr. Reid, after asking a number of direct
questions, finally got a straight answer which is that there is no year requirement, respite stays are
available for less. Exhibit H, with the price list on it specifically says respite stays are available for
2 weeks. I have statements made at the last hearing and now completely different statements made
now. Maybe we do have two issues, what they are doing now and what they propose to do when
Benchmark builds the 68 units. There was also a representation made that people who live in assisted
living facilities are independent elderly. That is not square with common usage ofthe language.Look
to Exhibit H, which is the amendment which we now hear was unnecessary and didn't do anything
to the master deed which specifically defines residents in assisted living facilities as persons who are
not able to live independently. Mr. Reid made a excellent point about the existing 14 units being a
part of the common area, the 68 units will also be part of the common area which is a different
concept from condominium ownership which was contemplated. These will not be separate
condominium units. Benchmark will have 68 votes and it will pay the common area charges allocated
15
to 68 units. At this point we are not talking about evicting residents of Heatherwood assisted living
facility. The question is whether further zoning relief is required for those units and that is one of the
requests for relief,a determination from the board that further zoning relief is necesfa
. When they
come in to do that there is an opportunity to talk about the benefits and detriments of assisted living
facilities and whether that Special Permit should be granted. It clearly has not been granted now and
it can't be granted by inference or accident. It can't be granted because a word like "support
services"was attached to an addendum and we don't know what it means but now 15 years later we
think it means what we want it to mean. That is not how zoning relief is granted.
Mr. Reid mentioned that it was getting late and asked the board when we could come back to
deliberate. It was his intention that when we come back the public hearing be kept open solely for
the intention that if board members have questions we can ask them. If we close it we can't ask
questions. It was suggested to split the room with the Con Com and hold the hearing on November
18, 1999.
Therefore, Mr. Robertson made a motion to continue the hearing without closing the hearing to
November 18, 1999, Thursday 7:00 pm. Mr. Richards seconded the motion which passed
unanimously in favor.
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