Decision 2268 Heatherwood Notice of Appeal 12.13.99 COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT
BARNSTABLE COUNTY DIVISION LAND COURT DEPARTMENT
* * * * * * * * * * * * * * * * * * * * * * * * *
O'CONNELL DEVELOPMENT GROUP
,
INC., f/k/a O'CONNELL ENGINEERING & *
FINANCIAL, INC. and MICHAEL T.
DOWNEY, as TRUSTEE OF
HEATHERWOOD O'CONNELL
NOMINEE TRUST, *
*
Plaintiffs, *
*
v. * NOTICE OF APPEAL
*
DAVID REID, JAMES ROBERTSON,
JOHN RICHARDS, JOSEPH SARNOSKY, *
and DIANE MOUDOURIS, as they are duly *
appointed members of the Yarmouth
Zoning Board of Appeals, and
ALVAN HIRSCHBERG, JOHN POWERS, *
ROBERT PECOR, BARBARA OXHOLM, *
RICHARD MERROW, JACK CROSBY, *
NANCY WINER and EDWARD NULTON, *
*
Defendants.
*
* * * * * * * * * * * * * * * * * * * * * * * * *
PLEASE TAKE NOTICE THAT O'Connell Development Group Inc., f/k/a,
O'Connell Engineering & Financial, Inc. and Michael T. Downey, as Trustee of Heatherwood
•
O'Connell Nominee Trust, have filed an Appeal to Land Court from the November 23, 1999
Decision of the Zoning Board of Appeals. A copy of the Complaint is attached hereto.
Respectfully submitted,
O'CONNELL DEVELOPMENT
GROUP INC., f/k/a
O'CONNELL ENGINEERING &
FINANCIAL, INC. and MICHAEL T.
DOWNEY, as TRUSTEE OF
HEATHERWOOD O'CONNELL
NOMINEE TRUST
By their attorneys,
( 17ek—
Richard A. Oetheimer (BBO #377665)
Jennifer G. Mihalich (BBO #638138)
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109-2881
(617) 570-1000
Dated: December 0, 1999
•
DOCSA\673072.1
2
COMMONWEALTH OF MASSACHUSETTS
TRIAL COURT
BARNSTABLE COUNTY DIVISION LAND COURT DEPARTMENT
C. A. No.
* * * * * * * * * * * * * * * * * * * * * * * * *
*
O'CONNELL DEVELOPMENT GROUP *
INC., f/k/a O'CONNELL ENGINEERING *
& FINANCIAL, INC., and MICHAEL T. *
DOWNEY, as TRUSTEE OF
HEATHERWOOD O'CONNELL
NOMINEE TRUST,
*Plaintiffs, *
*
v• * COMPLAINT
*
DAVID REID, JAMES ROBERTSON,
JOHN RICHARDS, JOSEPH SARNOSKY, *
and DIANE MOUDOURIS, as they are duly *
appointed members of the Yarmouth
Zoning Board of Appeals, and
ALVAN HIRSCHBERG, JOHN POWERS, *
ROBERT PECOR, BARBARA OXHOLM, *
RICHARD MERROW, JACK CROSBY, *
NANCY WINER and EDWARD NULTON, *
*
Defendants. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
This action seeks review and annulment, pursuant to Mass. Gen. L. ch. 40A, § 17, of
the Yarmouth Zoning Board of Appeals' (the "ZBA's") November 23, 1999 decision (the
"Decision") to overturn the August 25, 1999 determination of the Yarmouth Building
Commissioner, wherein he determined that he would issue a building permit (if application
were made) for the proposed construction of a 68 unit assisted living residence as Phase III of
the Heatherwood at Kings Way development. (A certified copy of the Decision, filed with the
Yarmouth Town Clerk on November 23, 1999, is appended hereto as Exhibit A.) This action
further seeks a declaration, pursuant to Mass. Gen. L. ch. 231A, that the 68 unit assisted living
residence proposed for Phase III of Heatherwood at Kings Way is permitted under the 1975
Yarmouth Zoning By-Law and 1975 Kings Way special permit and variance decisions, as
modified in 1986, and requires no additional zoning relief.
INTRODUCTORY STATEMENT
Plaintiffs O'Connell Development Group Inc., formerly known as O'Connell
Engineering & Financial, Inc., and Michael T. Downey, as Trustee of Heatherwood O'Connell
Nominee Trust (collectively, "O'Connell") are the developers of an elderly housing
community known as Heatherwood at Kings Way. The original special permit for Kings Way,
issued in 1975, authorized construction of an "open space village development," to be built in
phases subject to compliance review by the ZBA. In 1986, the special permit was modified to
provide a service-oriented residential housing alternative for the "active elderly," described as
individuals who might otherwise be unable to maintain their independence and become a
burden to their children without the assistance of such support services.
Pursuant to the 1986 decision, plans were approved by the ZBA in 1987 for "personal
care units." The first five such units opened at Heatherwood as part of Phase I in 1991, and
this use, denoted as "personal care units" on the initial plans and eventually becoming known
as "assisted living," has been continued without interruption at Heatherwood for nearly a
decade. In 1995, the ZBA and the Building Inspector approved the construction of 14 more
assisted living units as part of Phase II of the Heatherwood development. The ZBA has
previously found that these units have posed no complications or conflicts.
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As part of the next planned phase of development at Heatherwood -- Phase
III -- O'Connell plans to construct an additional 68 assisted living units, to be sited in a new
building. This past summer, O'Connell submitted its Phase III plans to the ZBA for the
requisite phase review and received ZBA approval. The ZBA, after a lengthy hearing, stated it
was "satisfied that the assisted living units will be within the scope of the original [1975
Special Permit] decision (as modified in 1986)." (A copy of the ZBA's July 8, 1999
determination on compliance review is appended hereto as Exhibit B.)
A handful of Kings Way residents -- defendants herein -- sought reconsideration by
petitioning the Yarmouth Building Commissioner for purported zoning enforcement under
Mass. Gen. L. ch. 40A, § 8. The Building Commissioner, relying on the ZBA's July 8, 1999
decision, indicated that he would issue a building permit for Phase III if requested to do so.
The petitioners appealed the Building Commissioner's August 25, 1999 determination to the
ZBA pursuant to Mass. Gen. L. ch. 40A, § 15.
The ZBA then abruptly reversed course. A scant four months after approving
O'Connell's Phase III plans, the ZBA, on the same facts (albeit after an even lengthier
hearing), did a complete about-face and overturned the Building Commissioner insofar as he
indicated he would issue a building permit for Phase III, as proposed.
The ZBA's November 23 Decision is contrary not only to its own July 8, 1999 decision
on compliance review, but also to the ZBA's approval of personal care units on the Phase I
plans in 1987 and its approval of the existing 14 assisted living units in 1995. Not only has the
ZBA on at least three prior occasions approved this express use, the Building Inspector has
also on a number of occasions beginning in 1990 determined that this use is permitted under
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the existing Special Permit and accordingly has issued building and occupancy permits for
personal care and assisted living units at Heatherwood. The ZBA's Decision flies in the face
of this open and uninterrupted history of nearly a decade of providing personal care services to
assisted living residents at Heatherwood, "with the apparent approval of all necessary
authorities," as the Decision recognizes. The Decision must be annulled.
PARTIES
1. Plaintiff O'Connell Development Group Inc., formerly known as O'Connell
Engineering & Financial, Inc., is a Massachusetts corporation with a principal place of
business at 480 Hampden Street, Holyoke, Massachusetts. Plaintiff O'Connell Development
Group Inc. is an "aggrieved person" within the meaning of Mass. Gen. L. ch. 40A, § 17.
2. Plaintiff Michael T. Downey is Trustee of the Heatherwood O'Connell Nominee
Trust, with an address at 480 Hampden Street, Holyoke, Massachusetts. Plaintiff Michael T.
Downey, as Trustee of Heatherwood O'Connell Nominee Trust, is an "aggrieved person"
within the meaning of Mass. Gen. L. ch. 40A, § 17.
3. Defendant David Reid is a natural person domiciled at 1292 Route 28, South
Yarmouth, Massachusetts, and is named as a party defendant only in his capacity as a duly
appointed member of the ZBA.
4. Defendant James Robertson is a natural person domiciled at Post Office Box
544, South Yarmouth, Massachusetts, and is named as a party defendant only in his capacity as
a duly appointed member of the ZBA.
4 _ `
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5. Defendant John Richards is a natural person domiciled at 12 Colburne Path,
Yarmouthport, Massachusetts, and is named as a party defendant only in his capacity as a duly
appointed member of the ZBA.
6. Defendant Joseph Sarnosky is a natural person domiciled at 111 Michael
Avenue, Yarmouthport, Massachusetts, and is named as a party defendant only in his capacity
as a duly appointed member of the ZBA.
7. Defendant Diane Moudouris is a natural person domiciled at 12 Athens Way,
West Yarmouth, Massachusetts, and is named as a party defendant only in her capacity as a
duly appointed member of the ZBA.
8. Defendant Alvan Hirschberg is, on information and belief, a natural person
domiciled at Kings Way, Yarmouthport, Massachusetts, and was one of the petitioners in the
proceedings before the ZBA in this matter.
9. Defendant John Powers is, on information and belief, a natural person domiciled
at Kings Way, Yarmouthport, Massachusetts, and was one of the petitioners in the proceedings
before the ZBA in this matter.
10. Defendant Robert Pecor is, on information and belief, a natural person
domiciled at Kings Way, Yarmouthport, Massachusetts, and was one of the petitioners in the
proceedings before the ZBA in this matter.
11. Defendant Barbara Oxholm is, on information and belief, a natural person
domiciled at Kings Way, Yarmouthport, Massachusetts, and was one of the petitioners in the
proceedings before the ZBA in this matter.
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12. Defendant Richard Merrow is, on information and belief, a natural person
domiciled at Kings Way, Yarmouthport, Massachusetts, and was one of the petitioners in the
proceedings before the ZBA in this matter.
13. Defendant Jack Crosby is, on information and belief, a natural person domiciled
at Kings Way, Yarmouthport, Massachusetts, and was one of the petitioners in the proceedings
before the ZBA in this matter.
14. Defendant Nancy Winer is, on information and belief, a natural person
domiciled at Kings Way, Yarmouthport, Massachusetts, and was one of the petitioners in the
proceedings before the ZBA in this matter.
15. Defendant Edward Nulton is, on information and belief, a natural person
domiciled at Kings Way, Yarmouthport, Massachusetts, and was one of the petitioners in the
proceedings before the ZBA in this matter.
JURISDICTION
16. This Court has jurisdiction over this matter pursuant to Mass. Gen. L. ch. 40A,
§ 17, Mass. Gen. L. ch. 185, § 1(p) and Mass. Gen. L. ch. 231A, § 1.
FACTS
A. The 1975 Special Permit.
17. Kings Way is a residential development located off Route 6A in Yarmouthport.
18. In 1975, O'Connell's predecessor-in-interest, Oak Harbor Associates ("Oak
Harbor"), received a special permit and several variances to construct Kings Way as an "open
space village development" under Section 18:07 of the Zoning By-Law for the Town of
Yarmouth in effect at that time (the "1975 By-Law"). Because the special permit and
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variances for Kings Way were issued in 1975, the entire Kings Way development (including
the Heatherwood site) is grandfathered and governed by the 1975 By-Law.
19. Pursuant to the 1975 By-Law's provisions governing open space village
developments, Kings Way as designed and permitted included up to 750 multi-family dwelling
units, a community center, a gate house, a garden club building, multiple storage buildings, a
sewage treatment center, as well as outdoor amenities including a golf course, tennis courts,
swimming pools, and outdoor cooking areas, all traversed by paths.
20. Under Section 18.13 of the 1975 By-Law, "multi-family dwelling units" were
defined as follows:
Dwelling, Multi-Family shall mean a dwelling containing three or more
dwelling units, irrespective of tenure or ownership.
Dwelling Unit shall mean living quarters for a single family plus not more than
4 boarders, lodgers, or domestic employees with cooking, living, sanitary and
sleeping facilities independent of any other unit.
21. Given the scope and complexity of the project, Oak Harbor requested and
received permission to construct Kings Way in phases. The developer and the ZBA
contemplated that the developer would submit specific plans in stages; the ZBA would then
review the plans for each phase to confirm compliance with the special permit and authorize
the issuance of building permits "from time to time for each successive stage." This
arrangement was designed to afford the developer flexibility in planning and constructing
successive phases of the Kings Way development over time to meet changing market demands
and residential needs.
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B. The 1986 Modifications to the Special Permit.
22. After erection of 19 residential condominium buildings, development of Kings
Way was temporarily put on hold due to an economic downturn. In 1986, Oak Harbor's
successor-in-interest, The Green Company ("Green"), resolved to proceed with the project and
requested certain modifications to the special permit. Those modifications included
improvements to certain amenities, reconfiguration of the overall development, and up to 235
units specifically designed to accommodate "an aging population" to be constructed on the
Heatherwood site within Kings Way. These units featured a number of amenities and extended
services that would enable elderly residents to continue living independently: a full-service
dining room, shuttle service from the development to the Town of Yarmouth, common activity
areas, and support services to promote residents' health and independence. It was fully
contemplated that, due to the addition of these support services for the elderly, these units
would be different from all other units at Kings Way.
23. The ZBA held a full hearing on Green's petition over several nights in early
1986. At that hearing, a Green representative, advocating for the proposed modifications,
described the proposed facilities as living accommodations that included "social and minimum
health support services oriented to independent living in a quality of life which enhances
self-dignity." Green further provided a non-exhaustive listing of the elderly housing's "basic
components," including, among other things, "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 . . , etc."
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24. Also at the 1986 hearing, ZBA members asked a number of probing questions
about the proposed modifications, including the 235 units designed to accommodate the
elderly. Specifically, the ZBA asked Green to define the targeted "active elderly" population:
Mr. Singer asked what is meant by active elderly.
Mr. Green said that it is for people who are older, whose family is grown, who
don't want to be a burden to their children, who want to live independently and
with dignity and want to be with their peers and it is definitely not a nursing
home.
25. After thorough consideration, the ZBA unanimously approved Green's proposed
special permit modifications. The ZBA incorporated in its decision Green's plans to provide
"resident services" to the elderly including, inter alia, "support services" and "health and
medical facilities." The 1975 special permit was accordingly modified by the 1986 decision
(these decisions, collectively, are hereafter referred to as the "Special Permit").
C. Development of Heatherwood at Kings Way.
26. The following year, Green submitted plans for Phase I of what became known
as Heatherwood to the ZBA for approval. The plans specifically denoted 29 units as "personal
care units." ("Personal care" and "assisted living," a term that became more commonplace in
the early 1990s, are functionally equivalent terms.) The Phase I plans denoting "personal care
units" were approved by the ZBA and signed by Donald Henderson, then-ZBA Chairman, in
December, 1987. Mr. Henderson had chaired the ZBA's 1986 hearing on Green's petition.
27. The 29 personal care units shown on the 1987 Heatherwood Phase I plans,
submitted pursuant to the ZBA's 1986 decision, were not immediately built due to an
economic downturn at the time. Ultimately, however, a total of 19 such units were constructed
as part of either Phase I or Phase II of Heatherwood at Kings Way.
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28. On November 27, 1990, then-Building Inspector Forrest E. White issued a
building permit for six personal care units at Heatherwood. Five such units (referred to as
"assisted living units" on the construction plans) were in fact built, and the first Heatherwood
assisted living residents moved into the Phase I units in 1991. Assisted living residences have
been in existence and occupied at Heatherwood continuously since 1991.
29. In 1995, O'Connell (as the successor-in-interest to the Heatherwood parcel)
submitted the Heatherwood Phase II plans to the ZBA for compliance review. The Phase II
plans included 14 new assisted living units. The ZBA determined that the proposed assisted
living units were within the scope of the Kings Way Special Permit.
30. Also in 1995, Building Inspector Forrest White issued a letter specifically
indicating that the 14 Heatherwood Phase II assisted living units possessed all necessary
permits and approvals.
31. In 1996, O'Connell completed construction of the 14 Heatherwood Phase II
assisted living units. The five assisted living units that had been built as part of Heatherwood
Phase I in 1991 were converted to independent living units, and their occupants were relocated
to the 14 new Phase II assisted living units.
D. The Assisted Living Units.
32. Heatherwood's assisted living units -- both existing and proposed -- are certified
by the Commonwealth's Executive Office of Elder Affairs under Mass. Gen. L. ch. 19D
("Chapter 19D"), enacted in 1994 as An Act Establishing Assisted Living Residences. They
are not regulated by the Department of Public Health as are hospitals and nursing homes.
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33. Pursuant to Chapter 19D, assisted living facilities are not appropriate for
individuals who require medical or skilled nursing care. Rather, the services provided by
assisted living facilities are statutorily limited to modest personal care services, such as
assistance with bathing, dressing, dining, ambulation and housekeeping, and supervision of
self-administered medication. By law, assisted living residences are not authorized or eligible
to provide assisted living residents with any medical or skilled nursing care.
34. Through Chapter 19D, the Massachusetts General Court has evidenced the
legislative intent that assisted living be classified and treated as a residential use. In enacting
Chapter 19D, the Legislature stated the statute's purpose as being "to encourage the
development of residential alternatives that promote the dignity, individuality, privacy and
decision-making ability" of the elderly, and directed that "assisted living residences,should be
operated and regulated as residential environments with supportive services and not as medical
or nursing facilities." Acts 1994, ch. 354, § 1 (emphasis added).
35. The existing and proposed assisted living units at Heatherwood meet the 1975
By-Law's definition of dwelling units, in that each individual assisted living unit contains
"cooking, living, sanitary and sleeping facilities independent of any other unit." Moreover,
their rental nature is consistent with the definition of a multi-family dwelling, as "a dwelling
containing three or more dwelling units, irrespective of tenure or ownership."
36. Assisted living residents are required, under state law, to sign a residency
agreement, which is governed by Massachusetts landlord-tenant law. The typical residency
agreement is for a twelve-month term, renewable annually, though shorter respite stays are
available. In actuality, the average length of stay for assisted living residents is several years,
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and the existing Heatherwood assisted living units have been occupied primarily by long-term
residents. Residents furnish their individual units just as they would any other home.
37. Assisted living residences are not nursing homes, as both the facts and
Chapter 19D make clear. Assisted living residences may not lawfully provide medical or
skilled nursing care to residents and Heatherwood does not have a nursing staff. Assisted
living residents are not required to utilize the personal care services offered to residents; they
are free to decline assistance or to contract for personal care services with an independent
agency. Assisted living residents come and go as they please, without any monitoring of their
whereabouts by Heatherwood staff. Finally, assisted living residences are not regulated by the
Massachusetts Department of Public Health, as are hospitals and nursing homes.
38. The 14 existing assisted living units comprise only a small portion of the elderly
living accommodations at Heatherwood. The remaining Heatherwood units are referred to as
"independent living units," and, like the assisted living units, are occupied by elderly
residents. Residents of Heatherwood's independent living units enjoy the same types of
services as the assisted living residents, including a common dining area offering prepared
meals, housekeeping services, and planned social activities. Indeed, the only services received
by assisted living residents that O'Connell does not directly provide to independent living
residents is the one hour of personal care each day; however, independent living residents can
(and often do) contract with outside agencies for such services. Many of Heatherwood's
independent living residents purchased their units in reliance on the ability tg transition into
assisted living units should their needs increase in the future.
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E. Heatherwood Phase III: The 68 Proposed Assisted Living Units.
39. In planning Phase III of Heatherwood, O'Connell considered two options:
building additional independent living units, or adding additional assisted living units. In order
to ensure that its decision enjoyed the support of existing Heatherwood residents, O'Connell
earlier this year put the issue to a vote by Heatherwood residents. The residents voted
overwhelmingly (119 of the total 142 unit owners, or 84%) in favor of construction of
additional assisted living units at Heatherwood.
40. In light of the residents' vote, as well as the success of the five original Phase I
assisted living units built in 1991 and the 14 Phase II assisted living units currently in use,
O'Connell developed plans for a 68 unit assisted living residence to be leased to and operated
by Benchmark Assisted Living ("Benchmark"), one of the Commonwealth's leading operators
of assisted living residences. O'Connell proposed converting the existing 14 Phase II assisted
living units to independent living units when the Phase III units are opened, and relocating
residents of the Phase II assisted living units to Phase III units, just as the original Phase I
assisted living residents were relocated when the Phase II assisted living units opened in 1995.
O'Connell submitted its plans for Heatherwood Phase III to the ZBA on July 1, 1999 for
review to confirm compliance with the existing Kings Way Special Permit.
41. The ZBA conducted its compliance review of Phase III on July 8, 1999. Some
Kings Way residents, principally those named herein as defendants, appeared at the review to
oppose the proposed Phase III plans. The crux of their objection was that assisted living, as a
use, was not permitted under O'Connell's Special Permit. The residents argued that assisted
living is an institutional use requiring additional zoning relief. They further argued that,
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because the proposed facility would be operated by an "outside entity," it would be
inconsistent with the residential condominium character of the Kings Way development.
42. After what the ZBA termed as "thorough consideration," the ZBA, in its July 8,
1999 compliance review decision, agreed with O'Connell that the assisted living use is a
multi-family residential use within the scope of the existing Special Permit. The ZBA noted
"[t]hey will be residential units for predominantly independent elderly residents, for whom
only modest personal assistance is required." The ZBA went on to note that the 14 existing
assisted living units had not produced any complications or conflicts.
43. The Kings Way objectors appealed the ZBA's July 8, 1999 decision to
Barnstable Superior Court by Complaint dated August 2, 1999. Following the filing of
O'Connell's motion to dismiss, the Complaint was voluntarily dismissed on October 9, 1999.
44. Seeking ZBA reconsideration of its approval of O'Connell's Phase III plans, the
objectors on July 28, 1999 submitted a purported request for zoning enforcement to the
Yarmouth Building Commissioner pursuant to Mass. Gen. L. ch. 40A, § 8. More
particularly, the objectors asked the Building Commissioner to declare assisted living outside
the scope of the existing Special Permit and to deny any application to build the 68 proposed
Phase III assisted living units. The objectors' petition was based on the assertion that assisted
living is a classified institutional, rather than multi-family residential, use.
45. By letter dated August 25, 1999, Yarmouth Building Commissioner James D.
Brandolini responded to the objectors' July 28, 1999 request and indicated his intention to issue
a building permit for Heatherwood Phase III, as proposed to the ZBA by O'Connell in July,
including the 68 assisted living units, when and if asked to do so.
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46. The objectors appealed the Building Commissioner's August 25, 1999
determination to the ZBA pursuant to Mass. Gen. L. ch. 40A, § 15. The ZBA held a public
hearing on October 28, 1999 and November 18, 1999. On November 23, 1999, in complete
contradiction to its "thoroughly considered" July 8, 1999 decision, the ZBA issued its decision
to overturn the Building Commissioner's August 25, 1999 determination.
F. The ZBA's November 23 Decision.
47. The ZBA's November 23 Decision constitutes a 180-degree shift from its July
8, 1999 determination that the proposed Phase III assisted living facility is permitted under the
existing Special Permit as modified in 1986. The Decision relies on an overly-strict reading of
the Special Permit, particularly the 1986 modification; this narrow construction runs counter to
years of ZBA and Building Inspector approvals and the original intent that the Special Permit
be construed flexibly so as to accommodate the evolving development of Kings Way.
Specifically, in its November 23 Decision the ZBA stated that "neither the 1975 nor 1986
decision make any reference to personal care (or assisted living) units or use." Though it is
technically true that the 1986 decision does not use the specific terms "assisted living" or
"personal care," the Decision all but ignores the fact that the 1986 ZBA modified the Special
Permit to allow "living accommodations [with] social and minimum health support services
oriented to independent living in a quality of life which enhances self-dignity." The ZBA
knew, at the time it modified the Special Permit, that these accommodations would house
precisely the type of people currently in residence at Heatherwood -- elderly people "who don't
want to be a burden to their children," but require personal support services to continue "living
independently and with dignity." While not explicitly labeled "personal care" or "assisted
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living," a term that has only come into common use during this decade, these descriptions
leave little doubt that the 1986 ZBA fully understood the service-oriented components of this
use.
48. The Decision also appears to rely, at least in part, on the objectors' assertion
that a free-standing building of 68 assisted living units, leased and operated by a single assisted
living management company, would not comport with the integrated nature of the Kings Way
development as an "open space living development." This premise, too, is flawed, for several
reasons. First, the 1975 By-Law explicitly provides that a cluster of three or more dwelling
units in one building fits the definition of a "multi-family dwelling," "irrespective of [the
units'] tenure or ownership." To be sure, the Phase I and II assisted living units have always
been "singularly owned and operated;" O'Connell has operated the current 14 units,since they
opened in 1995. Moreover, Heatherwood at Kings Way is largely separate from the rest of
Kings Way -- indeed, the configuration of Heatherwood, as a "self contained community
setting" within Kings Way, serving Cape Cod's aging population, was precisely the subject of
the 1986 modification of the original 1975 special permit. Finally, the Decision's emphasis on
the prevalence of "owner-occupied condominiums" within Kings Way is insupportable in light
of the ZBA's acknowledgment that the Special Permit and 1975 By-Law permit rental units.
49. Lastly, the Decision is contrary to the ZBA's own findings and conclusions
concerning the nature of the assisted living use. The objectors argued that the assisted living
residence proposed for Phase III is an Intermediate Care Facility, classified as a Nursing and
Personal Care Facility under the current Yarmouth Zoning By-Law, a proposition O'Connell
demonstrated to be both false and irrelevant. Ultimately, as the Decision recognizes, the
16
objectors were forced to concede that the assisted living units "would not rise to the level of a
`nursing home' as defined by various bylaw and licensing provisions." The Decision appears
to agree with O'Connell's position that the use is residential, characterizing assisted living as a
"variation of the residential use." The Decision nowhere takes issue with O'Connell's
contention that the proposed assisted living facility meets the definition of a "multi-family
dwelling" as permitted in an open space village development under the Kings Way Special
Permit and governing 1975 By-Law. Accordingly, no additional zoning relief is required.
RELIEF SOUGHT
50. In sum, the Decision should be annulled because it exceeds the ZBA's authority.
Specifically, the Decision is fundamentally flawed for the following reasons: •
(a) The proposed Phase III assisted living facility is a multi-family dwelling
as defined under the 1975 By-Law. As such, it is within the scope of the existing Special
Permit; O'Connell is not required to obtain additional zoning relief.
(b) The 68 proposed Phase III assisted living units are within the scope of
the Special Permit as modified in 1986, as evidenced by the decision and the minutes of the
1986 hearing regarding Green's proposed modifications to the Kings Way development.
(c) The plan for the Phase III assisted living facility to be leased to and
operated by Benchmark is completely irrelevant; the Kings Way Special Permit and 1975 By-
Law authorize the construction of up to 750 dwelling units (235 on the Heatherwood site)
"irrespective of tenure or ownership."
1-7
z
-y .
17 >
•
(d) For the same reason, it is immaterial that assisted living residents will
not own their units; the Decision acknowledges that the 1975 By-Law and the prior relief
permit rental units.
WHEREFORE, Plaintiffs request judgment against the Defendants, and ask that
this Court:
A. Annul the November 23, 1999 ZBA Decision;
B. Declare that O'Connell's Phase III Heatherwood plans, as proposed, for
construction of a 68 unit assisted living residence, are permitted under the 1975
By-Law and existing Kings Way special permit and variances;
C. Affirm the ZBA's July 8, 1999 determination on compliance review approving
O'Connell's Phase III Heatherwood plans; and
D. Award any other relief the Court deems proper.
Respectfully submitted,
O'CONNELL DEVELOPMENT GROUP
INC., f/k/a O'CONNELL ENGINEERING
& FINANCIAL, INC., and MICHAEL T.
DOWNEY, as TRUSTEE OF
HEATHERWOOD O'CONNELL
NOMINEE TRUST
By their attorneys,
Richard A. Oetheimer (BBO #377665)
Jennifer G. Mihalich (BBO #638138)
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109-2881
Dated: December 13, 1999 (617) 570-1000
DOCSA\671832.3
18
•
s Yam} TOWN OF YARMOUTH
• RR O" BOARD OF APPEALS
DECISION
-�Hy/ .
MATTAC Pi[CS[/ ti
2. E:J
FILED WITH TOWN CLERK: •0,,•:minncr _3. :"99
PETITION NO: #3570
HEARING DATE: October 28, 1999 and November 18, 1999
PETITIONER: Alvan Hirschberg & Others
PROPERTY: 254 King's Circuit-King's Way Yarmouthport
Map: 142, Parcel: 11 (128/R51) Zoning District: R40
MEMBERS PRESENT AND VOTING: David Reid, Chairman, James Robertson, John
Richards, Joseph Sarnosky, Diane Moudouris, non-voting Robert Reed.
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.
This petition seeks to reverse the decision of the Building Inspector, as set forth in his letter of
August 25, 1999, wherein he indicated that he would issue a building permit for the planned
construction of assisted living units at the Heatherwood development, the proposal being within
the scope of the developments existing relief/permits. The hearing was conducted on October
28, 1999 then continued for further hearing on November 18, 1999. Throughout the hearings,
the petitioners were represented by Atty Philip Magnuson. The developers of Heatherwood
were represented by Attorney Richard Oetheimer and Attorney James Klucznik.
The Kings Way Development is a 750 dwelling unit Open Space Village Development,
originally permitted in 1975 (decision #1321), with additional modifications and relief having
been granted in 1986 (decision #2268). The project, by design, involves many phases of
development, and has been permitted to be constructed over several years in these individual
phases. Full construction is not yet completed. The initial phases included the construction of
common areas such as a golf course, and club house, a general store and post-office for
residents, as well as many other more common amenities for such a development. The majority
of the units are of fairly traditional "condominium" design, with an assortment of unit styles and
sizes. In 1986, the Board, among other things, allowed the developer to include an area of the
development specifically targeted for so-called "active elderly". This portion would have the
residential units directly connected to or immediately accessible to the various common areas
and amenities (unlike the rest of the development, where the amenities are centrally located, with
the dwelling units in detached structures about the site). The development was specifically
allowed to be constructed in separate phases, essentially at a pace to be deteiiuined by the
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developers and the real estate market. The Board, in its decision, approved of the uses, the
common elements, the general layout, and the typical construction types. As each successive
phase approached construction, the actual site plans have to be presented to the Board fnr a so-
called "phase review and approval". For purposes of this hearing and decision, the traditional
condominium phases have been referred to as "Kings Way", and the"active elderly"phases have
been referred to as "Heatherwood", (although in reality they are all part of the overall "Kings
Way" development).
Presently, the developers are in the process of undertaking what has been referred to as
"Heatherwood Phase III". This will consist of a single principal structure, which will house 68
"assisted living units". Unlike the other phases, this phase will involve the developer's leasing
an area of land within the project to an entity known as the Benchmark Company. Benchmark
and its related companies, will construct the building and operate the 68 unit assisted living
facility therein. In July 1999, the plans for this building were approved by the Board in its phase
review. The petitioners now challenge the Building Inspector's indicated intention to issue a
building permit for construction of these units, based upon the phase review. The petitioners
contend that the proposed use of the Phase III, as an independently operated assisted living
facility, would be beyond the scope of relief originally approved of by the Board in its prior
decisions (principally the 1986 modification).
The Board received written presentations from both counsel, as well as numerous letters, a
petition, and supporting and opposing exhibits, throughout the course of these hearings. The
Board members also had available to them the copies of the 1975 and 1986 decisions, and the
minutes of the 1986 hearing.
Many of the residents, of Kings Way and of Heatherwood, participated in the hearing, personally
and/or through their correspondence. Strong, and sincere, emotional arguments were presented
on both sides of this issue. It is important, however, to define the issues which are presently
before the Board. The only issue directly pending in the present action is whether or not the
proposed Phase III is within the scope of the previously granted relief. No petition has been
filed asking for the modification of the prior relief, nor to grant new relief to allow the assisted
living facility use(if it were determined that it were not already allowed).
At the risk of oversimplifying their respective detailed and sophisticated presentations and
analysis of the issue, some of the principal points made by the parties are as follows.
The petitioners (opposed to the allowance of Phase III), contend that there is no mention of any
such use in the earlier decisions of the Board, nor was it discussed in the hearings (as recorded in
the minutes). The decision (collectively the 1975 and 1986 decisions) is very lengthy and
detailed, covering many aspects of this project. It does not, however, (they contend) make any
reference to this proposed use. They contend that these "assisted living units" (as distinguished
from the other "independent units" at Heatherwood and Kings Way) are a different category of
use, for which additional relief would be needed. While conceding that they would not rise to
the level of a "nursing home", as defined by various bylaw and licensing provisions, they
contend that they do involve, as a principal component, the providing of personal care services
which are more akin to nursing home services than to traditional open-space residential
developments. Furthermore, directing the Board to the proponents residency agreement and
informational materials, they point out that all of the units would be owned by the single
operating entity, and would be rented, often for relatively short terms, to their occupants. They
object to this separate business operation, and point out that while the prior relief does permit
rental of units, the predominant practice and component of the overall residential development is
that of owner occupied condominiums.
The respondents (and proponents of the Phase III development) contend that their use is within
the use contemplated and allowed by the earlier decisions of the Board. They note that the
minutes of the 1986 hearing included discussion of wishing to provide for the "active elderly",
who wish to live independently, but without the burdens associated with single-family residential
ownership. The Heatherwood phases are designed to allow a self-contained residential complex,
with a variety of services and amenities available to its residents. The provisions, in these Phase
III units, of some additional personal care services, do not make them any less "residential"
units. They contend that the Board's existing decisions allowed an assortment of residential
units, designed to service the active elderly, and that these units are within those parameters. As
evidence of this intention, they point out that in 1987, in the first Heatherwood phase review,the
plans which were approved by the.Board included the designation of several units as "personal
care units". They contend that the term "assisted living"was not a term used or recognized until
recently, and that "personal care" units was the predecessor to it, while both terms refer to the
same type of use. While the units specifically show on the 1987 plans were not immediately
constructed (for unrelated economic reasons), several such personal care units were constructed
within the Heatherwood building, and 14 such units currently exist in the Phase II wing of
Heatherwood. They also point out that, in 1995, the then Building Inspector of Yarmouth wrote
a letter to the developer's bank and counsel, confirming that he was not aware of any violations
of the Special Permits or Variances for this project, as constructed to date. The development, at
that time, already included the 14 assisted living units, as referenced in that letter. The
proponents therefore reason that, notwithstanding the absence of any reference to such "personal
care" or "assisted living" units in the hearings or decisions of the Board, they must have been
within the contemplation of the parties at the time, since no one objected when they were
proposed and constructed.
To this latter point, the petitioners contend that the phase reviews (both of the 1987 plans
showing the "personal care units" and of the current Phase III plans) are limited to a site-plan
review process. The review is limited to a screening of the construction plans for conformity of
the proposed improvements to the original decision, and does not include any review of the use
nor are they an opportunity to discuss, nor allow, changes in the use to which the buildings may
be put. Simply stated, the notation of"personal care units" on one sheet of a multiple sheet set
of plans, was surplusage, not the focus of the Board's review, probably not even noticed by the
Board and not to be credited with any particular significance at this time. Further, Atty
Magnuson indicated that he had spoken with the former building inspector, and that he now
believes that the "personal care"and "assisted living" units should not have been allowed, had he
fully understood the nature of the use and services involved in their operation.
The Board members recognized that the currently existing assisted living units have been
constructed and used with the apparent approval of all necessary authorities, and that this fact is
inconsistent with the petitioner's contention. However, the question of whether or not they
should have been constructed, and whether or not the proposed facility should be constructed,
requires our independent analysis of the actual decisions of the prior Boards.
Mr. Robinson placed significantly greater emphases upon the Boards phase approval of the 1987
"personal care units" plan, and the fact that they were constructed and that 14 assisted living
units have existed, without objection from the town or residents, for several years.
The members all agreed that neither the 1975 nor 1986 decision make any reference to personal
care (or assisted living) units or use. Furthermore, neither makes reference to any equivalent
activities, of providing care or assistance directly to residents, nor of accommodating residents
who are expressly dependant upon such care. To the contrary, the 1986 decision focuses upon
the residents as "active elderly", living independently, who would like and would benefit from
this self contained community setting. The decision, and to a greater degree the minutes of the
hearing, placed considerable emphasis on the fact that the residents would be active and mobile,
and that the accessability and central location of the amenities and community services was a
convenience, not a physical or medical necessity. The Board and the developer took pains to
emphasize that this would not be a nursing home use, but would be an integrated residential
community, principally consisting of owner-occupied condominiums, in which each resident
would have an ownership interest in the common areas and open-space.
The majority of the Board also gave credence to the petitioner's concern for the business nature
of the new facility. It would be singularly owned and operated by a company which is in the
business of managing such facilities. None of the residents would own or have long term leases
for these units. The units would be quite small, little over one-half the size of comparable
"independent" units, emphasizing the dependence of the occupants upon the common facilities
rather than their independent living. Furthermore, the entire design and plan makes clear that
the providing of care to the residents, individually and collectively, is the focus of the facility,
and is not merely an incidental function of the other common amenities and resident's services.
The single ownership and operation of this 68 unit facility also is inconsistent with the overall
scheme of this open space village development, including the recitation in the 1975 decisions
that none of the phases or structures are to be operated independent of the overall plan. As
proposed, Phase III would entail a free standing, wholly independent business venture, which
would not be an integral part of this "community".
The original plan (in 1975) was for a traditional stye condominium complex, with extensive
community services available to the residents within the site. In 1986 this plan was modified
somewhat, to allow a portion of the units to be further consolidated with the same common
facilities and amenities, for the convenience of the residents. It is the opinion of the majority of
the Board members that while the provision of assisted living units would seem to be the next
logical step in the progression of housing alternatives, and would provide a valuable and
appropriate service to the elderly population of Kings Way and Heatherwood, and the entire
town, it simply is not a housing alternative which was reviewed by or approved of by the prior
Board (in 1986). It does not appear that the Board in 1986 contemplated or intended to allow
this type of uses. Moreover, it does not appear, from the minutes, that they were ever asked to
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approve this type of housing. The decisions written in 1975 and 1986 are very comprehensive,
and the Board places great significance upon the absence of any references to this type of use.
Had they intended to include this variation of the residential use they could have easily said so.
However logical or appropriate it might have been to include assisted living units within the
Heatherwood project, it does not now appear that it was contemplated at that time, and therefore
it is not now allowed, absent a grant of new relief or a further modification of the existing relief
(either of which are beyond the scope of the present petition).
After much discussion and deliberations, a Motion was made by Mr. Sarnosky, seconded by Mr.
Richards, to Grant the petition, so as to overturn the decision of the Building Inspector
(contained in his letter of August 25, 1999) wherein he determined that he would issue a
building permit for the proposed Heatherwood Phase III, including the construction and use of a
68 unit assisted living facility, because we fmd that the proposed assisted living facility use, as
proposed, is not within the scope of the previously granted relief for this open space village
development, as modified by the Board's 1986 decision#2268.
On the Motion, as made and seconded, Mr. Sarnosky, Mr. Richards, Mr. Reid and Mrs.
Moudouris voted in favor, Mr. Robertson voted opposed. The motion therefore carried and the
petition to overturn the decision of the Building Inspector's decision of August 25, 1999 was
granted.
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.
/ Th
David S. Reid, Clerk
A True Copy Attest:
George . Bara e •
Town C erk
Town of Yarmouth
Pages 1-5
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TOWN OF YARMOUTH
'YRINA BOARD OF APPEALS
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^No.ute -.J'
PHASE REVIEW: #2268 HEATHERWOOD @ KINGS WAY COMPLIANCE REVIEW-
PHASE III& PHASE II MODIFICATIONS
HEARING DATE: July 8, 1999
PETITIONER: Heatherwood @ Kings Way, Yarmouthport, MA
MEMBERS PRESENT AND VOTING: David Reid, Chairman, James Robertson, Mike
O'Loughlin, Joseph Sarnosky, Diane Moudouris, non-voting alternate Richard St. George.
The petitioner seeks a phase review in order to construct Phase III of the Heatherwood portion of
this project, previously authorized by the Board (and a modification of the previously approved
Phase II plans). The petitioner was represented by Attorney Edward J. Sweeney.
The petitioner proposes to proceed with the construction of Phase III of this project. This phase
will entail the construction of one new building, having 68 "assisted living units", as more fully set
forth in the plans filed herewith. As required by the original Special Permit, each"Phase"must be
reviewed by the Board, prior to construction, to confirm compliance with the terms of the
decision. The petitioner has filed with the Board copies of the applicable plans, as well as various
approvals or confirmations of compliance from other boards and authorities.
The Phase HI will call for the construction and operation of 68 residential units, to be housed
within one building on the Heatherwood site. The Site Plan Review team has raised several
issues, which the petitioner represents have all been complied with fully. The Board is satisfied
that the construction of Phase III will be in compliance with this decision. In addition, the
petitioner proposes to modify some of the units already existing in Phase II. Specifically, there
are 14 "Personal Care Units", which will'be re-constructed to become 6 ordinary residential units
within the retirement complex. The Board finds this to also be in compliance with the original
approvals for this project.
During the course of this review, an issue of the "use" of the Phase III, as "assisted living units",
was raised by residents of Kings Way who were in attendance at this hearing. These residents
voiced opposition to the use, and believe it was beyond the scope of the original approvals. They _
contended, in essence, that the use would be an institutional use, wholly owned and operated by
an outside entity, and not consistent with the residential condominium character of the King's
Way Open Space Village development.
The petitioner confirmed that the proposal was to lease (for 75 years) the area of land to the
Benchmark Company, which would build (and own) the building. A subsidiary of the company
would then operate the assisted living facility. The units would be rented to individuals who
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required some personal assistance in their daily and personal care. It was estimated that the
average resident would require no more than 45 minutes of personal care per day. The facility
would not offer skilled nursing care to residents, and would not be licensed as a nursing home or
skilled nursing facility. The average resident would not own an automobile (thus reducing the
parking and traffic needs) and would stay at the units from 18 months to several years.
The petitioner contends that the units qualify as multi-family residential units, within the
definitions used within the existing decisions/permit, and are therefore allowed. Further, Attorney
Sweeney presented to the Board a copy of the 1995 letter from the Building Inspector, (Forrest
White) confirming that the Phase II personal care units were in existence and in compliance with
the decision. The Board of Appeals endorsed the Phase II construction of these units in 1987,
and the plans do label the units as "personal care units", which the petitioner represents is a term
referring to the same use and level of care as is proposed in the "assisted living units".
It should be noted, as well, that while there was substantial opposition to this use from the
residents of Kings Way, there was also support for it from the residents of Heatherwood itself
The Board noted that these "phase review" hearings are ordinarily concerned with the physical
placement and arrangement of the proposed units and buildings. No new "petition" is before the
Board, nor can any new relief, or substantive modifications of the previously granted relief, be
considered in this context. Nevertheless, the proposed use is integrally involved in the proposal,
and the concerns of the residents present should be addressed to the extent possible in this forum.
The majority of the Board members are satisfied that the assisted living units will be within the
scope of the original decision (as modified in 1986). They will be residential units for
predominantly independent elderly residents, for whom only modest personal assistance is
required. The 14 such units, operated within Phase II have not produced any complications or
conflicts, (at least none have been brought to the attention of the Board). Some members of the
Board felt that, while the assisted living units may be compatible with the retirement facilities at
Heatherwood, and may offer valuable opportunities to the residents and the town, they simply
were not within the scope of relief contemplated by the prior grants of relief, particularly when
operated as.a separate facility, owned and operated by an outside entity, as proposed.
After thorough consideration of the respective points of view, a motion was made by Mr.
Sarnosky, seconded by Mr. Robertson, to approve the request to undertake Phase III as
proposed, and to modify Phase II as proposed, and to find that the use would be within the scope
of the existing relief granted.
Mr. Sarnosky, Mr. Robertson, and Mr. O'Loughlin voted in favor of the nidtion, Mrs. Moudouris
and Mr. Reid voted against the motion. The approval is therefore Granted:
David S. Reid. Clerk
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