HomeMy WebLinkAboutAppeal 3570 Meeting Minutes 11.18.99 (continued from 10.28.99) TOWN OF YARMOUTH
BOARD OF APPEALS
MINUTES
HEARING DATE: November 18, 1999 con't from October 28, 1999
MEMBERS OF THE BOARD PRESENT AND VOTING: David Reid, Chairman, James
Robertson, John Richards, Joe Sarnosky, 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 opened the hearing and mentioned that this hearing was a continuation of the original
hearing from October 28, 1999. The public hearing was not closed so the hearing will continue this
evening.
Mr. Reid mentioned and or read correspondence that was received since the conclusion of the last
hearing.
Mr. Reid asked Atty Magnuson if he had anything new or anything additional he wished to present
supplemental to his presentation.
Atty Magnuson mentioned that he refrained from filing anything because his understanding was that
the board kept the record open only for the purpose of asking questions but given that Heatherwood
has filed a lengthy document he wanted to respond to that.
Atty Magnuson spoke about (passed out a page from Webster's dictionary) the definition of
"residence". There has been discussion and representations that were made that persons that were
staying in the assisted living facility, even those that would be there for respite care up to two weeks
or a month, would be a resident because they would actually be in there. You are not a resident
where ever you lay your head for the night. (Read from Webster's dictionary).
Atty Magnuson:About the exemptions and definition of residential use contained in Chapt 19D there
was a disagreement as to what the language was. (Provided copies of the two relevant pages of 19D).
(Atty Magnuson read highlighted sections). Assisted living residences shall be regarded as residential
uses for the purpose of the state building code etc. Mr. Magnuson stated that this has nothing
to do with zoning it is solely for building code interpretation purposes in that paragraph. It contains
no presumption that for zoning purpose an assisted living facility must be regarded as residential. It
leaves it free for towns to make those determinations.
Atty Magnuson:I went to the regulations, promulgated from the elderly affairs commission, which
contains the requirements to training and certification requirements for the operation for assisted
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living. These regulations will give light to what services are given and the training required. (Passed
out copies of the excerpts and read along with the Board.)
Atty Magnuson asked the board to look at §651 CMR 12.05-which addresses the record keeping
requirements and staffing requirements and training. (Read from that section) He stated that the
reason he brought this information was to show the extent and nature of the services. These are
medical services, they go beyond housekeeping. They may not reach the level of skilled nursing,
although that is possible. There are many levels of service businesses which fall short of skilled
nursing which are nonetheless regulated by our bylaw. The industrial classification manual you have
the intermediate care,which I believe it is classified as, because it is the most specific, that is the level
that talks about having 24 hour staff on call supervised by a registered nurse. Heatherwood says it
is a residential care facility. A residential care facility is not allowed any where in our bylaw, it would
therefore require a Variance. Just because the word residence appears before a use doesn't mean it
is a residential use as allowed under our bylaw. Merely putting the word residence before an
institution that provides a service for a fee does not mean it falls under the....of residential use.
Atty Magnuson: With regards to the dismissal of the prior court action. At the time that action was
brought appealing this boards decision of July 8th, it was the only form in which my clients could
address this issue. Until Mr. Brandolini gave us his zoning opinion that was the only action we could
take. The July 8th meeting with the board was a site plan review. Site Plan Reviews are for the
purpose of determining whether the location and design of the buildings is consistent with the 1975
permit, and the 1975 Zoning Bylaw, it has nothing to do with use. Now this is the appropriate level
to ask this board to make a decision on this issue.
Atty Magnuson stated that there is no request to seek the eviction of the 14 tenants in the existing
assisted living units. What we would like is for this board to determine that zoning relief is necessary
for Heatherwood to apply for relief and legitimize the existing units. My expectation is that it would
not meet with very much opposition from my side of the fence. What raises our concern is the
creation of an entirely new facility in a separate building under independent management with 68
units.
Atty Magnuson: There was a representation in the letter that the 1986 decision specifically references
support services. "I can't find "support services"in there, I did find it on the last page of the 1986
application (exhibit F). (Read from the list of uses to be incorporated within the 20,000 sq. ft.
Community Services building.) There was mention of the fact that on some of the site plans the word
"personal services"appear. In the 1987 site plan the word appears in two places in 21 pages of plans.
The zoning board was reviewing those for the location and construction of the buildings only. I
looked briefly in the 1975 and the 1986 decision and I do not find the words personal care there. I
would challenge the Heatherwood representative to show the board where it appears in those
decisions or where it is defined any where to include those types of services and to operate this type
of business.
Mr. Reid asked Atty Magnuson if he knows if there is anything in either of the two decisions, that
specifically prohibits this. He also asked Mr. Oetheimer if there was anything that specifically allows
it.
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Atty Magnuson: What limits the scope of the relief granted, is the definition, in my mind, of health
and medical services that Mr. Green gave in response to Mr. Singers question on January 23, 1986,
which is on page 4 of my memorandum. That is a very narrow definition of health and medical type
services that was going to be provided. That limits the relief. It should not be my burden to show
that a certain service is prohibited, because if it's not allowed under the zoning and it is not granted
and the decision is silent, then the relief has not been granted and the use can not take place. The
burden is on the person who is enjoying the use to show that it either was allowed by the bylaw or
specifically granted in the zoning relief.
Mr. Reid:There is two parts of your request tonight, in terms of the enforcement, one is the existing
units the other the proposed units, what specifically are you asking the board to do with the existing
14 units?
Atty Magnuson: I am asking the board to order zoning enforcement action. When you hear an
appeal from an action of the Building Inspector you have all the powers of the Building Inspector.
The formal request is to order zoning enforcement against the existing 14 units. As a practical
matter,that decision could be stayed to give Heatherwood an opportunity to file the necessary Special
Permit application.
Mr. Reid: Do you know when those units were constructed?
Atty Magnuson: They were constructed in 1995, so they do not enjoy the affection of the 6 year
statue of limitations of Chapter 40A §7.
Mr. Oetheimer: Responding to Atty Magnuson comments. The issue, only issue relevant on this
appeal is whether assisted living constitutes a residential use. If assisted living is a residential use it
is within the scope of the existing Special Permit. The definition in the 1975 bylaw defines dwelling
unit and it defines it irrespective of tenure or ownership. If someone is living there, it is residential.
Heatherwood assisted living residents live at Heatherwood. It is not a nursing home. Assisted living
residents are eligible to receive up to 1 hour per day of assistance with activities of daily living such
as bathing and dressing. With respect to the Chairmans question, is it specifically prohibited or
allowed, we combed the decisions. Atty Magnuson says he doesn't see any reference to personal
care. This has been, obviously been, an evolving field. I think 20 years there was no such thing as
assisted living it was unheard of. The terminology has evolved. The plans the board approved in
1987, there were six units shown as personal care units, and that was within a year of the boards
1986 Special Permit decision, which were approved. By 1990 or 1991, they were being referred to
as assisted living, same use as the personal care. The terminology didn't exist, but the concept did.
What does it say in the 1986 decision? It refers on Exhibit A to support services. It does not identify
every type of service. There is nothing in the decision that prohibits this use. On page 2 of the
November 17th letter, italicized, "The facilities will provide living accommodations, social and
minimum health support services oriented to independent living with a quality of live which enhances
self dignity. The basic components will include dining room facilities, security, emergency call
system, resident advisor, food service and nutritional and social needs, simulating activities and
educational programs, health maintenance and medical counseling services, swimming pool, health
and physical therapy programs." This is not simply an apartment house that is described or a
condominium building. Mr Green came to the board and said that he wanted to provide a use, a mix
of housing,to service Cape Cod's increasing aging population,to allow people to remain independent
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and to continue to live on their own so that they would not have to seek to move in with their
children or become a burden to people.
Mr. Oetheimer referred to Chapter 19D, statement of purpose. (Read a portion) Under the current
Zoning Bylaw there is a definition of nursing home (read). Certain laws and regulations are not
applicable to assisted living residences, §12.1.4, 651 CMR, (read from list).(tape over) It is
residential,are there services provided, yes, but it does not take it out of the category of residential,
no. Where you do cross the line and move out of the category of residential use is when you end up
under state law, 19D, when you go beyond what is permitted at a assisted living residence. If you
provide medical care or skilled nursing care which by law you are not permitted to do.
Mr. Reid asked,Mr. Oetheimer, "what Win 1992 when they passed the assisted living residence law,
they had referred to it as an institutional use, everything else exactly the same, except they called it
an institutional use, same regulations, same activities, everything else exactly the same just substitute
the word institutional for residential, would that mean that you couldn't do it today under these
circumstances"?
Mr. Oetheimer: It is hard to answer the question in the abstract, we would have to look at, there is
a lot more, it also defines what could be done. Do I think if they called it institutional use would that
be conclusive, I think no. We would have to look at the Zoning Bylaw.
Mr. Reid: Then is the fact that they called it a residential use conclusive?
Mr. Oetheimer:I think that the fact that they called it residential use is strong evidence that this is a
residential environment. The town may be able to classify it differently. Could the town say is
assisted living is an institutional use requiring a Special Permit?
Mr.Reid:Actually,my question is in terms of the direction that which we attack the question. Aren't
we really being asked tonight to interpret the relief that was granted at various dates up to 1986?
Mr. Oetheimer: Yes, but to do that the only question you need to answer is whether this is a
residential use.
Mr. Reid: Do, we? Is it your position that the 1986 extant decision, that it allows any form of
residential use?
Mr. Oetheimer: The permit covers multi-family residential use that meets the definition of dwelling
unit under the 1975 bylaw.
Mr. Reid: So any form of multi-family residential use you think is allow under the 1986 decision?
Mr. Oetheimer: I think that, that ?
Mr. Reid: No specifically, just the ones that were discussed in the hearing and allowed in the
decision, but do you think any form could be allowed?
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Mr. Oetheimer: I think the decision is the back drop or frame of reference. But, in what was
described to the board in 1986 was housing for an aging population with various types of service.
Under the 1986 permit, what was described to the board, is exactly what is there today and what has
been there for the past 10 years.
Mr. Reid: What my point is, I don't think we should get to hung up and putting all of our cards on
what the legislator said in 1992, the real decision is what the board said in 1986.
Mr. Oetheimer:To clarify a little on the history,the 14 units were constructed in 1995. The personal
care units were on the plans in 1987, they were constructed and by the time they opened in 1990 or
1991, they were referred to as assisted living units. Five of the units opened in 1991. When phase
II was constructed in 1995 those five units...
Mr. Robertson: I'll stop you, my understanding was those 5 units were in J building and opened in
December of 1989.
Mr. Oetheimer: You may be correct,
Ms. McGurrin, (Administrator at Heatherwood):I think there may be a misunderstanding, they were
in the J building but they opened in January of 1991.
Mr. Oetheimer: Went over the time line at Heatherwood.
Mr. Reid: Allowed audience members to ask questions.
Ms. Nancy Weiner, resident at Kings Way, stated that she was a former health care administrator.
First, 20 years ago assisted living was called "rest home". It provided the exact same services,
supervision, supervising the taking of medication, helping in dressing, bathing, personal care and
assistance in daily living, supervision by a qualified or responsible person. I owned and ran such a
facility. You had residents there that could no longer administer their own medication. A responsible
person was administering it. Eventually the Department of Public Health, the overseer of rest homes,
decided that this was not working. They needed more care than a"responsible person" could give
them. They became Community Support facilities, and later became part of your skilled nursing
homes. You could have someone requiring care from immediately coming out of a hospital to this
little person who just requires help in daily living activities. When we moved to Kings Way we knew
of these 5 personal care units, they were explained to us that they were for the personal use of the
condominium resident owners or of Heatherwood. If Mr. Jones had to go away and Mrs. Jones
couldn't stay alone she could go down to this personal care unit and get extra help in what ever she
needed. If someone came out of the hospital and couldn't go back to their own unit yet, they could
go to one of the five units and get the extra care until they were back on their feet. I can equate it
like an infirmary on a college campus. Where the problem is in my mind, and many other Kings Way
residents, is they are taking something under the Department of Elder Affairs, and I feel within the
next two years will be under the Department of Public Health because more care is going to be
administered than the Department of Elder Affairs can monitor. You are taking this premise putting
into a separate building, making it a business for profit, without any special Variance or Special
Permit. We have been hearing, well you have a golf course, a general store, restaurant, well all of
those things were authorized for those particular things. I have never read anywhere were a Special
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Permit or Variance was authorized for a business with 68 units, in a separate building from
Heatherwood, to be allowed. That is our biggest complaint. No one here is against assisted living,
we don't want a business in our home.
Dorcus MaGurrin, Executive Director at Heatherwood @ Kings Way since 1989: The item about
the 5 personal care units we did have back in 1991, for all intent and purpose those were run as a
business from the first day they were open. We did have people who were not Heatherwood
residents that were allowed to live there. The monies that were collected from assisted living were
handled by the developer. The Heatherwood Condominium Trust Association has never been the
entity in charge of our assisted living. It has been run as a business since 1991.
Mr. Reid asked the board members if they had any questions?
Mr. Reed, alternate member, asked (both sides) about the flyers given out to new or prospect
residents of Heatherwood. He asked about the mention of 24 hour a day staffing by certified personal
care assistance under the supervision of a registered nurse. I assume there are registered nurses and
assistants at nursing homes, there seems to be a similarity between a nursing home and what
Heatherwood is offering. Could someone make a clarification?
Dorcus MaGurrin: In the assisted living we have home health aides 24 hours a day, there is a
registered nurse who is in charge of the assisted living, not on duty 24 hours a day, she has trained
the aides. Her responsibility is to act as the coordinator in the training of these people and to offer
assessment skills as to how these people are doing in the unit. She is the one to see when it is they
are going to need to move on to another location or if they should have been allowed to come in to
assisted living in the first place. In a nursing home,they are staffed with a registered nurse 24 hours
a day.
Mr.Reed:On the item it says physician consultant by our board certified internist, is that person on
staff?
Ms. MaGurrin: There is available to the residents of Heatherwood in independent living, we have a
physician who is an internist that is available to those residents. They are not required to use him, they
can pick who ever they want.
Mr. Reed referred to Michael Downey's letter on the last page, the chart, Exhibit B, I heard the term
that services are provided one hour a day. If someone is in need of services beyond one hour a day
I am assuming they will get it around the clock, they are going to pay more money for it?
Ms. MaGurrin: Yes, if what they need is the caliper of a home health aid. If what they require is
skilled nursing services then they have to go to an outside agency to take care of that just like if you
were in your own home. Like a VNA.
Mr. Reed: So helping someone with medication around the clock would not be considered skilled?
Ms. MaGurrin: If somebody is required to have somebody give them a shot, that is helping with
medication,that is skilled nursing, our home health aides are not able to do it. If it is to help remind
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Mrs.Jones that it is time to take her pill and she needs help, they can take it out for her and remind
her to take the pill.
Mrs. Weiner: Rest Home with a responsible person on duty, is today's Home Health Aids. Hiring
a consultant, is today's R.N. Supervisor. In a nursing home, depending on the level of care, you can
have a level 3 nursing facility that does not require a R.N. on duty 24 hours a day. When you get to
level 2&3,you have to have a R. N. 24 hours a day. In your rest home, we had to have a narcotic
book open,you have people on lithium,melarill,what ever, a narcotic book has to be kept. You had
pharmacist consultants that came in and checked these records to see that they were being
administered properly.
Atty Magnuson: In response to Mr. Reed's question, about having the nurse available to supervise
the full time staff. Going back to Exhibit B, Standard Industrial Manual, the use I have identified,
Intermediate Care Facility, we are not saying that this is skilled nursing care or the level Ms. Weiner
described, what I am describing is an intermediate care facility. The provision in the Manual, says
that staffing must include 24 hour per day personal, which we have here, with a licensed nurse on
duty full time during each day shift, also what Dorcas just described. That is a nursing and personal
care facility. I would like to correct a statement that Mr. Oetheimer made, he said that these nursing
and personal care facilities were defined as primarily involved in medical or skilled nursing care.
What he is talking about is the definition of residential care which is use 8361, on the second page
of my exhibit. The way it is set up often times in one section they will refer you to another section
and what it says under the residential care section in the last sentence, it says establishments primarily
engaged in providing nursing and health related personal care are classified in industry group 805
which is the group that I have referred to. Certainly this is health related personal care.
Mr. Reid: What do you contend is the proper use classification for the assisted living facility?
Atty Magnuson: I believe that it is P5 in our Zoning Bylaw which is nursing and personal care
facilities. The reason that personal care facilities is on there is because that is an additional use.
Mr. Oetheimer responded that Atty Magnuson continues to refer to the definition of intermediate
care facilities. That is under 8052 "Establishments primarily engaged in providing in-patient nursing
and rehabilitative services." Residential care facilities is an "establishment primarily engaged in
providing residential social and personal care including for the aged where medical care is not an
element."A little note under rooming and boarding houses tells us homes for the aged that provide
additional services other than nursing care are classified in industry group 8361, if they provide
nursing are they are in group 805. They have tried to make so much of the fact here that there is a
nurse, the director of the facility is a R.N., under the regulations there is no requirement that there
be a nurse on stag that the director be a nurse. The qualifications for the manager of assisted living
residence under 651 CMR 12.06 states that a manager of a assisted living residence shall be at least
21 years of age and demonstrated administrative experience and supervisory management skills, also
a bachelors degree or equivalent of experience, unit services management, housing management and
or nursing home management. There is a requirement that they be a nurse.
Mr.Reed:The advertisement here would certainly lead me to believe that there is a registered nurse,
it says it on the flyer. What you say is that under the law you don't need one, but wouldn't this flyer
seem to suggest that is what is going to be there?
Mr. Oetheimer: It says that the manager is a nurse by training, that is true. It is not a requirement,
there is not a nurse there furnishing nursing care they are managing the facility as a administrator.
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Mr. Sarnosky: Is this nurse the manager of the whole facility?
' Ms.MaGurrin: The nurse is the manager of the assisted living 14 units, managing the health issues,
the resident welfare. I am the manager of the 142 condominiums at Heatherwood overseeing the
housekeeping, dining, etc. hospitality aspects of assisted living.
Mrs. Moudouris: Are there any other nurses, LPN, R.N.?
Ms. MaGurrin: We have a sub-contract with the local agency for a registered nurse for 20 hours a
week to run a health prevention clinic. She is available to any resident at Heatherwood, assisted
living or independent living. (Tape over)
Mr.Reid asked both counsel to help him with understanding with a problematic provision in the 1975
Variance decision. Exhibit F, page 2 at the top, second sentence, "None of the structures or uses
reflected in these Variance applications represents a building or an activity designed to stand
independent of the basic plan for the site, that of a cluster-type residential development".
Mr. Reid asked what impact that have on this proposal for a separate building to house this distinct
type of residential unit, to be owned by one entity independent of the general condominium...?
Mr. Oetheimer responded that Kings Way was permitted under the open space village development
with the understanding that it was a ????and would be constructed in phases and phases. I have not
looked at the sentence before. I do know that if you start from 1975 and to 1986 the planning did
evolve focusing on Heatherwood I think that Kings Way has a number of independent
buildings.
Mr. Reid: I am asking you if this ..I guess your answer is that you would assume that this is changed
by the 1986 decision.
Mr. Oetheimer said that what is there now is certainly independent buildings at Kings Way, I believe.
Mr. Reid: Obviously it's not all one connected building.
Atty Magnuson: "I think you hit the nail on the head". None of the uses was intended to stand
independent, all of the uses as confirmed in 1986, going back to the application and exhibits of the
application that list all of the uses to be in that community building they were all to be available to
residents. All of the uses which would serve the concept of an open space village development by
providing services to residents. That is why I started off talking about the definition of a resident.
The people who are there for the short term are not residents of Heatherwood or residents at Kings
Way. Therefore a separate business venture which provides services to them is not ancillary to an
open space village development, this is a separate business in a separate structure. That sentence
captures the intent of the 1975 relief and it is clearly repeated in 1986. In my memorandum I set forth
that exchange between Mr. Green and Mr. Singer of the Board of Appeals. Mr. Singer said, "now
all these services will be available only for residents, correct?" Mr Green stated yes, absolutely.
Mr.Reed; to the Executive Director, It was said at the last hearing that it was a one year lease and
everyone is required to sign a lease in order to be a resident.
Ms. MaGurrin said that it is called a residency agreement. All residents of assisted living must
contract a residency agreement to be a resident of assisted living.
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Mr. Reed: So they do not have to be an existing resident of Kings Way or Heatherwood.
Ms. MaGurrin: Correct, has been since 1991.
Mr. Reed: Some one could come in off the street.
Ms. MaGurrin: Correct.
Mr. Reed: Could they sign one for a month or less, or a few months?
Ms. MaGurrin: Yes, that is respite care. They came in knowing their needs would be temporary,
perhaps recovering from surgery and didn't feel comfortable going home yet. The majority are long
term residents.
A member of the audience asked the Board if the rental agreement with Heatherwood or with
Benchmark?
Ms. MaGurrin: Currently the rental lease is with the O'Connell Development Company and under
the new Phase III the agreement will be with Benchmark.
Another member of the audience asked if they are not successful with these 400 sq. ft. apartments,
what happens then. There is a possibility 10 years down the road that they could be turned into
low rent housing.
Mr. Robertson: At one point the federal government owned the whole thing because the Bank of
New England failed. All of it became the property of the FDIC. Several people and corporations
have owned it including the federal government. There are no grantees on what is going to happen
in the future.
Audience member asking a question. (Can't hear)
Mr. Reid:Asked if there was a representative present from Benchmark that could describe what will
go on there.
John Paven from Benchmark, stated that they had a discussion a few months ago with representatives
from O'Connell in order to convenience ourselves that we fit into a use that was already existing.
We had discussion just recently because of some of the issues that have been raised and convenience
ourselves once again that our operations are consistent with the way the 14 units have been operated
since 1990. Obviously the scale is a little different. The way the residences will be set up and the way
they are administered, the services that are provided, the method by which they are provided are
exactly the same.
Mr. Reid: Ok, so except as to scale you would consider the existing fourteen units to be
representative of what the new 68 will be operated?
Mr. Paven: Yes, the one thing that I would like to clarify that might have been distorted and that is
on the respite question raised by Mr. Reed. In the community the size of 60-70 units, we often have
only two or three respite units. They turn over faster. On the scale of the overall community it plays
a small part of the activity. Often they are not occupied at all. The second thing is the confusion
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about nursing as it relates to the Executive Director or not. Ex. Directors may or may not be from
a medical background.
Atty Magnuson: Asked Mr. Pavin if the newspaper article was accurate in stating that there would
be 30-40 employees, in a 68 unit facility?
Mr. Pavin: Yes, 30 full time....?At any given time the maximum number of employees on a day time
shift will be approximately half of that. It would be very similar to what you would see at
Heatherwood today. Overall manager, executive director, clerical staff, marketing director,
maintenance, food service,housekeeping and kitchen staff, wait staff, concierge, all on the day shift.
The overnight shift is generally one or two people, aides, in the building.
Mr. Robertson asked Mr. Oetheimer if the original 5 personal care units were always owned by the
developer, the 5 were replaced by 14, the 5 converted to standard units. The 14 units since 1995,
have they always been owned by the developer?
Mr. Oetheimer: I believe so.
Mr. Reid to both counsel. We had a discussion last time about the fact that the 14 units were
classified by common areas, did they ever resolve that?
Atty Magnuson: That is my understanding that it is classified as common area and it is a very curious
siltation.
Mr. Reid: Are we clear though that those count as units in terms of the total occupancy count
regardless of how they are owned?
Atty Magnuson: That is my understanding that they count as units allowed under the permit. The
interesting thing is that they are common area. Normally, every resident of a condominium has the
right to go on common area. Certainly the other residents of Kings Way and Heatherwood would
not have the right to walk through the rooms in the assisted living facility.
The board began discussion after all the testimony was given.
Mr. Sarnosky asked,as a matter of procedure, in July we approved the plans by a vote of 3 in favor,
2 against, what is the required vote on this matter?
Mr. Reid: It would take 4 out of 5 votes to overturn the Building Inspector decision and grant the
petition.
Mr. Sarnosky: The real issue we have to address is what did they have in mind, what did the ZBA
have in mind when they approved these plans. Go back in to the minds of these people and ask what
they approved?
Mr. Reid: Essentially yes. I think our decision should be based upon the words used in the actual
decision and if there is some ambiguity in there then we can look to supporting documents and
information as to what they intended by the words, such as the minutes, the application and the plans.
(End of tape, side b)I suppose it is also relevant to indicate what they thought was meant at the time,
but it is really what the decision says and intended that is the final question.
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Mr. Richards said that he keeps going back to the 1986 decision and re-reading the minutes and I am
having difficulty finding language that describes the assisted living units. I just don't see it, I haven't
found specific language to allow me to say that they granted those assisted living units. I was
surprised to read that sentence, from the question you(Mr. Reid) asked from the 1975 decision.
Mr. Reid: I think that everyone is in agreement on both sides of the issue, that the term "assisted
living" would not have been used because that was not the terminology at the time. Personal care
units was apparently a brand new term either just before or just after that date in time. In fairness we
have to leave it open to not just terminology but rather the type of activity. In reviewing the 1986
minutes,I don't find any specific references to that type of care, personal care, by any specific term
or description other than the references to "resident services" and "community services" and the
description as both parties have repeated for us and high-lighted for us. Principally the discussion of
Mr. Green and Mr. Singer.
Mr. Richards: I think that board member asked specifically, and was given a general answer.
Mr. Reid: Mr. Singer was the one that asked about a nursing home.
Mr. Richards: Mr. Green said it was not a nursing home.
Mrs.Moudouris: The description that he gave was also not necessarily the definition I would place
on an assisted living facility.
Mr. Reid:I have the minutes, it is at the bottom of page 18 that you are referring to. It was between
Mr. Sweeney, Mr. Singer at that point, and Mr. Green spoke.
Mr. Robertson:I agree with you Mr. Reid, if you go through the ? of the 1986 decision there is no
pin point description of the specific services. Here is where I am having my problem John and David.
We sit here tonight and listen to the repartition of the MA General Laws and the regulations there
under all of which came to our benefit 1995 and post 1995, if you could wipe the slate and forget that
????because I don't care whether you are sitting where we are tonight or you are sitting over there
in 1986, all that didn't exist. There was no way you could even ????that pin point type of discussion
and those definitions that we have ??? tonight which is the statute from 95 regulations. The
distinction between the???of residency at Kings Way/Admiralty Heights, active elderly. There is no
doubt in my mind that everyone sitting on that board understood that conceptually....Mr. Henderson
asked 5 times ...to the members of the board about the concept, i.e. "Are you comfortable with it?",
and nowhere was anybody not comfortable with it. In those 3 meetings that derived the 86 decision
there was a distinction made between what was there, Admiralty Heights, what was to come, Kings
Way, on what was to be at Heatherwood. They called it active elderly, don't ask me what that
means. There was the active elderly and the not so active elderly.
Mr. Reid: There was the equivalent, with less regulation, there was the equivalent of assisted living
or personal care prior to the inception of those terms. There were senior housing, there were rest
homes, old age homes, there were a lot of things similar to this, that pre-dated it. It is bothersome
to me that none of those terms are used either in the minutes. They didn't compare it to those things
and say,"well it is kind of like that but it is not quite a nursing home"none of those other terms are
there either.
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Mrs. Moudouris:I think it was a developing concept. I think it was something between a retirement
community and a rest home. That is the problem I am stuck at,I think that in 1986 it wasn't a clearer
concept as it is now. Now we are looking at ??facility set up for something that we all understand
what it is but I think in 86 it was just something that was so common ???and it was a developing
idea. The only thing I can see in terms of their acceptance of it, is that it was integrated into the
whole development and the units themselves were actually integrated in to the development and were
part of it. I have trouble connecting from the integrated units to a separate facility set up specifically
for those services. I am not even sure that they are residential.
Mr. Robertson: There is no question they can build the 68 units under the 1975 decision.
Mr. Reid: What 68 units, 68 units of???
Mr. Robertson: Of multi-family dwellings.
Mr. Reid: The same type of units there now at Heatherwood?
Mr. Robertson: They can build 68 housing units.
Mr. Reid: I don't think I can agree with that. ????build 68 independent living houses units..
Mr. Robertson: What is an independent living housing units? Independent of what?
Mr. Reid:Independent of the next one or somebody else.
Mr.Robertson:Can you build a 68 unit apartment building divided into 4 units so that each doesn't
have more than 24 apartments in it. If your answer is not yes than we have more fundamental
problems than assisted living vs personal care vs ..
Mr. Reid: The problem I am having is that, you ask a fairly simple question to what is not a simple
answer. If you are asking me whether I agree that they could build 68 more residential units similar
to the type that are already there now at Heatherwood or Kings Way, the answer is yes. They have
a permit for the extra units. I think the question is what type of units are allowed, that is the whole
issue.
Mr. Robertson: The question is, what services are going to be supplied. They can physically build
the buildings, four buildings each containing less than 24 units to be divided into residential units.
Mr. Reid: I think the answer is yes, what's the next question, it sounds like a set-up question.
Mr. Robertson: I am trying to get a few things we can all agree on.
Mr. Reed: To me looking at it, it is clearly a trend towards something other than basic residence in
a condominium development. If that is different than what was intended when this was all started a
number of years ago, and if we are permitting it then we are a part of changing the character of what
is built in there. When people buy into it I assume that they have a right that the character or the area
they are buying into is going to remain basically the same without government interfering and
changing the character of what they bought into.
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Mr. Reid:I think that we are all in agreement that no one is asking us to change the previous relief.
The question is whether this is already allowed within the existing relief.
Mrs.Moudouris: And where I get stuck is the idea of what that the concept was, I don't think that
what we are looking at today was the concept that they were looking at, at the time, it was
something that was a developing trend. I don't think that the 14 units, that are there, is an issue.
But when you go from 14 to a 68 unit facility, it's a whole new concept of care and residence. I am
not sure that it falls under that decision.
Mr. Sarnosky:If we could try to project back to when they approved this, what I see 14 units out of
149 units or
Mr. Robertson:No,they never approved a number of units,no where in the 1986 approves a number
or nowhere in the minutes. All through the 1975 and 1986 decision is the flexibility factor. What
everybody knew back in 75,they did not know about in 78 or 79, but they all knew that for this thing
to work this Board and town had to be terribly flexible. That's why you can't find the number of
units. You find overall number of units and number of bedrooms. On the plans from 1986 it shows
a building designated as 5-A which would have 16 personal care units and 7 standard units, and
building I-D would have 13 personal care units and 6 standard units. They were not built because
the economy went down the drain.
Mr. Reid: The key to the flexibility factor, with due respect to Mr. Green, Mr. Sweeney and Mr.
Henderson, was probably the thing that made this project as successful as it is. They allowed them
to develop it in stages or phases and it allowed them, the developers, to decide when it was
appropriate to go to the next phase, when the market was ready for it, when the buyers where there
and to pick and choose among the different building designs or models. If they were required to build
them all in 1975 or 1986 they probably would have been bankrupt because they would be sitting on
unsold units. The phasing and the flexibility was an excellent idea. That is an element they discussed,
it is certainly a reason why they may have left some questions unanswered or some specifics
unspecified.
Mr. Robertson: Go to the minutes of 1986 on page 3 and there is a distinction made by Mr. Green,
I guess, between the concept of active elderly and the balance of the housing, i.e. Kings Way today
Admiralty Heights as it existed then, there was a distinction in his mind in 1986 that there would be
at least two residentially different types of housing. Don't ask me to define active elderly. Later on
in this decision Myer Singer asked the question, is active elderly now the new terminology for
congregate living? After the decision of 86, the plans that were drawn based on the 86 decision,
started to use personal care units,then we fast forward to 94 the state adopted the terminology in the
state statute. We went through a period of, decade plus, where people stuck different labels on this
thing.
Mr. Reed: Is there a way we can move this along.
Mr. Reid: The only thing we have before us is the request to order the Building Inspector to do two
things. One is to tell him that the existing 14 units are not allowed, and the second request is to tell
him the proposed 68 units are not allowed under the 1986 decision. We do not have the authority
now to modify, add to, or take from the 1986 decision.
13
Mr. Sarnosky:Mr. Chairman, could we split a motion since there are two issues to the petition. Could
we approve one and not the other?
Mr. Reid: I don't see why not.
Mr. Sarnosky: I think it would be a pity to put those 14 people out.
Mr. Robertson: If you don't deny the 14 then you say that there is something in the decision that
allows them.
Mr. Reid: I think the issue is whether or not they are allowed, the next step is for the Building
Inspector, if you were to make a motion and it passed, to over rule the Building Inspectors decision,
the next step about what action if any to take against the existing units would be his initial judgement,
not ours. I don't know if they are protected by the statue of limitations or not.
Mr. Sarnosky: Then I move that we approve the petition.
Mr. Reid: The motion is to grant the petition and over rule the decision of the Building Inspector?
Mr. Sarnosky: yes.
Mr. Richards: I'll second that.
Mr. Sarnosky: It's a gut feeling I guess, I think to look back into the minds of people
Mr. Robertson: I want a clarification, is it the intent of the maker and the seconder to overturn the
entire decision?
Mr. Sarnosky: We are overturning the decision of the Building Inspector, who's decision was based
on our decision in July. That was the basis for his decision.
Mrs. Moudouris: You are addressing the 14 units as well as the new 68 units, is that right?
Mr. Sarnosky: You have to, you can't cut the baby in half as they say.
Mr. Reid:Tell me what your reasoning is and what you intend to accomplish. Is it your position in
making the motion that the 1986 decision did not encompass assisted living units, or personal care
units, or what ever they may be entitled?
Mr. Sarnosky and Mr. Richards: Yes.
Mr. Richards:I think I said it once already, but reading the minutes of the meetings I just found that
there is no specific reference to the personal care units, even though they showed up on a set of blue
prints some what later, and (new tape) I think they started one place and they ended up somewhere
else. I don't see that there is a logical progression. I don't think they got permission to operate
personal care units. I think they were speaking specifically of the Heatherwood portion of the
buildings, I don't think they were speaking specifically of any kind of upgraded medical care in 1986.
I think that they were,Mr. Green said several times that he was not sure exactly how the development
was going to go, that is clear. As a matter of fact, it isn't what they projected in 1986, it is not the
14
same as what they planned, it isn't now what they planned, it is different. The community building
is separate, it is a whole different project then it was. I think the market changed the way it was built,
but I didn't find that there was any specific wording that led me to conclude that they were speaking
of personal care units in their decision.
Mr. Robertson: I am going to come back to you and Joe, the petitioner asks that the zoning
enforcement action be taken against the existing 14 units...
Mr. Sarnosky: I was told it has to.
Mrs. Moudouris: Does it have to? I go back to the idea that I think the concept was different and
there may have been some intent to have something,maybe not to the magnitude that we are looking
at in terms of 68 units. The use wasn't even defined.
Mr. Robertson: If the 1986 decision allowed 14 units,
Mrs. Moudouris: Then you are saying it would allow 68 units in a separate structure. I do think the
number of units is an issue. I think 14 integrated units..
Mr. Robertson: Your intent of the motion and the second, is to answer all three request of the
petitioner. Tell the Building Inspector to go close down the 14 units existing, assuming they don't
qualify under some state statue.
Mr. Reid:Actually,I am looking at his letter of August 25 of this year, Mr. Brandolini back to Atty
Magnuson, that is the decision that we are being asked to over turn. The letter of August 25th
attached to the petition.
Mr. Robertson:Does that jive with the application.
Mr. Reid: The petition recites that on July 28 of this year the applicant submitted a letter to the
Building Inspector requesting enforcement. We have Mr. Brandolini's response to that letter, but I
don't have a copy of that letter, we are not sure what he asked Mr. Brandolini.
Atty Magnuson: It was attached to the application.
Mr. Robertson:The application on page one says reverse the decision of the Building Inspector dated
8-25-99.
Mr. Reid:I'm sorry Atty Magnuson I do have the letter. Ok, in the terms of the relief requested we
should focus on the 8/25/99 letter of Mr. Brandolini.
Mr. Reid:Joe,(Mr. Sarnosky) is your motion intended, I want to get clear what you intend by your
motion. Are you intending to tell them to do something specific or just to determine that the assisted
living units currently proposed and currently existing, are not within the scope of the 1986 decision?
Mr. Sarnosky: Yes, ...
Mr. Richards: That's specifically what I had in mind.
15
Mr. Sarnosky: To overturn the decision of 8/25/99 letter.
Mr. Reid: OK,Joe,tell me again what you want to accomplish by the decision, what do you want to
tell him, the Building Inspector.
Mr. Sarnosky: I want to tell him.
Mr. Reid: In what respect do you think he was wrong.
Mr. Sarnosky: That subsequent review has caused me to believe that this type of facility was not
allowed in the 1986 decision.
Mr. Reid: Is that your intention John in seconding that motion?
Mr. Richards: Yes.
Mr. Robertson:I will ask you a question, David, if the decision is written that way then the 14 units
can't stay unless they are protected by some state statue.
Mr. Reid: You are probably correct.
Mr. Richards: This letter speaks not at all about Phase II,just Phase III proposed.
Mr. Reid: That was my point, because of the way in which the decision is made in the 8/25/99
decision of the Building Inspector, I think to reverse it means to decide that assisted living units are
not within the scope of the 1986 decision. It then is thrown back to him to decide what enforcement
action he can take. The petitioner may or may not like what enforcement action he decides to take.
Mrs. Moudouris: I think that is the proper way, I just feel that there should have been a separate
permit application for the 68 units. I am still hung on the 14 units, I guess only because it appeared
they kind of had a general concept of what they were looking at. It's graduated to a whole new trend
that is different then it was in 86.
Mr. Reid:It is my conclusion or supposition based upon what we know happened and what we can
see in writing, that frankly I don't think Mr. Green asked for personal care units, or assisted living
units. I don't think he envisioned them as part of his development. I don't think the board intended
to allow them because I don't think they ever envisioned this either. And because I don't think
anybody asked for it,I don't think the Board can be assumed or intended to allow it. It may very well
be, that if they had asked the Board they would have been happy to allow some or all of that same
thing. It may very well be that if the developers at some future date asked this board for that this
board might very well allow it as well. I just don't think that anybody yet has asked the Board of
Appeals on any of these dates to approved assisted living units. Frankly, I am not clear on why the
rest of the people don't want them there, it does seem to be a logical progression and a worthy and
needed facility. I visited the facility that is there now and I can't see any reason what anyone that
lives there would object to it. Maybe you don't, but I just don't think anybody ever asked.
Mr. Robertson: If nobody asks then why did Mr. Henderson, acting for the board, sign off on
12/14/87, on a set of plans in big bold type..
16
Mr.Reid: Well, in fairness not in big bold type, in small obscure type. I looked at them this afternoon
for that very same reason. That is one thing that troubles me.
Mr. Robertson: Look on page C-4.
Mr. Reid: I did,
Mr. Robertson: There is 16 personal care units, and 7 standards, and 3 personal care units and six
standards.
Mr. Reid: I agree.
Mr. Robertson: The two buildings that never got built.
Mr.Reid:Keep in mind, and I wasn't there, I am troubled by that too. Keep in mind the context in
which those plans were seen. It was a Site Plan approval.
Mr. Robertson:And I agree with Atty Magnuson's point that the writing there can't get you relief.
There is no question about it.
Mrs. Moudouris: Isn't the decision based on exhibits that are part of the application?
Mr. Reid: No this came afterwards.
Mr. Reid: Why wasn't there a single mention made in the minutes or the decisions about the
developer or some entity providing personal care services to the residence, all the references to the
"resident services" or "community services" are places to which the residence will come if they
choose to. The reference to health and medical services arises, as Mr. Singer asked specifically about
that, and in response they asked about a nursing home and health and medical language that appears
now. Mr. Sweeney answered that it was not something new. All that was intended by the reference
to health and medical services was to repeat what had already been authorized.
Mr. Robertson: I agree with you David.
Mr. Reid:I went back to see what was already authorized and the reference in the original decision
in 1975 to health facilities refers to men's and women's exercise, sauna and athletic rooms, showers,
in a pro shop or separate club house.
Mr. Robertson: I couldn't agree more, but the thing that hangs me up is I don't have a reference in
1986 decision that I would love to have,which is a hook. I have a record from 1986 and on of plan,
building permits issued and buildings built with active elderly slash personal care units, slash
congregate living, slash, what ever. Over 10 years. Are you telling me that a board with changing
composition were all asleep all the time and didn't know what was in 1986 decision?
Mr. Reid; Let me ask you a question. When was the first time that you sat down and read the
minutes and the whole decision from 1986 and 1975?
Mr. Robertson: I sat here in this hearing room from 1986 on.
17
Mr. Reid: When did you read the decision?
Mr. Robertson: I have been reading it now for the fifth time over five months.
Mr. Reid: Did you ever engage in that intellectual exercise of asking yourself whether the personal
care units were allowed?
Mr. Robertson: Yes, I was trying to figure out..
Mr. Reid: I mean prior to this,prior to July when this issue came up.
Mr. Robertson:No, because I never sat on the Board when this issue was before it.
Mr.Reid: That is what I am saying, the issue was never discussed or even contemplated in peoples
heads.
Mr. Robertson:Nowhere did the board ever say you can't do that.
Mr. Reid: This is not your typical Board of Appeals decision. This is a 34 or 35 page decision that
is about as close to a soup to nuts decision as you can get. We all know Mr. Sweeny and Mr.
Henderson and then have gone through meticulous detail to described everything they thought they
needed. I can't even count the number of Variances that are separately numbered. Everything from
gate houses, signs, stores, and facilities that are there. And not one is there a reference to this kind
of entity. The reference has been made to the fart that anybody in Kings Way can have personal care
providers come into their house,for hire,or a nurse or anything like that to take care of the residents.
The fact that everybody can do it means that it really doesn't destroy the residential quality of their
dwelling just because they have those services provided to them or available to them for hire. I don't
think that it is the same thing as flipping it around and having an entity that provides those as a
business,the residents come to them. Because if it was, then we would have no reason to deny them
permission for a nursing home here either. Because if you reason that everybody can have a nurse
in their house, therefore we can have a nursing home to which people come, that is essentially the
analysis that we have been asked to go through in some of the correspondence and some ... to see.
Mr. Robertson:I absolutely agree with everything you said. Tell me how the plan got signed by Mr.
Henderson and the Building Inspector issued building permits and originally it was proposed 29
personal care units on the plan of 1987.
Mr. Reid: I don't know the answer to that.
Mr. Robertson: I don't know either, but I have to make the assumption that the Board and the
Building Inspector didn't think they would be doing something illegal.
Mr. Reid: I would agree with you. But how do you reconcile the two.
Mr. Robertson: With the decision.
Mrs. Moudouris: But that's an assumption.
18
Mr. Robertson: You are correct David that in the 86 decision there doesn't appear to be a specific
request or specific granting.
Mr. Reid: In some situations I would agree with you that the absence of a prohibition would allow
something that might be otherwise allowable. Not when you have a comprehensive decision like this.
Mr. Robertson: I would never make that argument in this case. You either have to find a basis for
relief in the 86 decision.
Mr.Reid:Other than the subsequent conduct of the parties, what in the 1986 decision tells you that
this was intended to be allowed?
Mr. Robertson: If you are saying specifically, nothing. If I take the pages of the transcript, I can't
come to any other conclusion that somebody, including the board members envisioned that there
would be something conceptually different than just housing units.
Mr. Reid: Well, no, you mentioned repeatedly the notion of Mr. Henderson asking if people were
comfortable with the concept. When I read the 1986 decision, cover to cover several times, it seems
to me it made relatively few changes in the prior relief. It made a number of changes about the
location and the alignment of units and buildings, physical changes as opposed to use changes, but
the key changes it made relative to Heatherwood was to allow consolidation of what had already been
permitted by connecting buildings. It repeatedly used the references to walk ways and connections
allowing what was previously referred to as community building facilities which could be located else
where, remotely.
Mr. Robertson: The 86 decision created Heatherwood.
Mr. Reid: What they did,the language says, they are allowing, staying from, the term they used was
traditional condominium housing units, and allowing them to be pulled altogether and connected to
the community services. That you could walk to the dining room, you could walk to the pool and
you could get to the exercise room without having to go outside or in your car to travel.
Mr. Robertson: I agree with you.
Mr. Reid: The result of that, was what we now have as the Heatherwood complex or building.
Mr. Reed: I have read this material before and sitting here reading it again and it brings me back to
some of the questions I asked the Executive Director. In all this material it is being referenced as
residence,use for residence. A resident is someone who is already there. We have heard that these
facilities, in the past, have been open to somebody coming in off the street. To me, this is, the
additional 68 units,is not consistent with what the people on the board had in mind years ago. If you
read this you can't come to any other conclusion. It doesn't mention these facilities being available
to people who are not living there or for people to spend two weeks. All the way through the
decision, all the past decisions refer to residents and family of residents. I get the feeling it wasn't
intended to go to this extent with what ever terminology was used back then as assisted living.
Mr. Robertson:In answer to you Bob, we are working with the 1975 Zoning Bylaw, Mr. Henderson
makes the point,twice in the 86 minutes and in the decision, and it is clear the 75 bylaw allowed for
any form of ownership. The word of condominium refers to a type of ownership, not a type of
19
building. Rental was allowed in the 75 bylaw. The form of ownership is frozen in? You still have
to go back to, was the relief in the 1986 decision? Either specific or implied.
Mrs. Moudouris:I just have to ask something because you were saying how could you get from the
1986 decision and then proceed through to actually having 14 units without having the board
understand what they were. My only comment to that is this board in July based on what I recollect,
the decision was made based on the fact that those 14 units were already existing there and they were
there, that it was permitted. The 68 units were then passed in July. I think that's probably how its
gone all along.
Mr. Robertson: This member didn't vote on that basis.
Mrs. Moudouris: There were existing information which lead the board to a certain decision.
Mr. Robertson: The sheep theory applied for 11 years.
Mrs. Moudouris: I think so, I am starting to think so.
Mr. Sarnosky: I agree with Diane, I think that I am one of the sheep if that is the way you want to
put it.
Mr. Reid: Anyone else? The motion is to grant the petition to over turn the Building Inspector's
decision of 8/25/99 letter by determining that assisted living .. Is it to determine that assisted living
units are not allowed within the scope of the 1986 decision?
Mr. Sarnosky: ??
Mr. Richards: Would you say that again, I want to make sure that is my second.
Mr. Reid:The motion is to grant the petition to over turn the Building Inspector decision as set forth
in his letter of 8/25/99 by determining that assisted living units are not allowed within the scope of
the 1986 decision, is that right?
Mr. Richards: No, I am not the maker of the motion but my, there is no reference to Phase II
construction in this letter. So my second was...I am referring to what is specifically, to what's in
the letter which was "therefore approve the request so we'll be denying the request to undertake
Phase III as proposed".
Mr. Reid: Has a building permit been issued for Phase III?
Mr. Robertson: Have you requested a building permit?
?Mr. Oetheimer:No, I haven't.
Mr. Reid: Is it your intention John, that to address only the Phase III issue?
Mr. Richards: Yes, that is the way I was seconding.
Mr. Reid: You want to reverse him to the extend that he indicated he would issue a building permit.
20
Mr. Richards: Yes, that he was satisfied the 86 decision allowed them to continue with Phase III.
Mr. Reid: This is what I have, the motion is to reverse the building inspectors decision as set forth
in his August 25, 1999 letter, to overturn his decision to issue building permits for Phase III, the 68
unit assisted living facility as proposed.
Mr. Sarnosky: Could you read that again.
Mr. Reid: You want to grant the petition, and reverse the Building Inspector's decision of 8/25/99
where he indicated that he would issue a building permit for the Phase III construction of the 68 unit
assisted living facility as it was proposed.
Mr. Sarnosky, yes and Mr. Richards: yes.
Mr. Reid: That is the motion and that is the second. Everyone understand the motion?
Mr. Robertson: You are overturning the letter of 8/25/99, that is what the request was in the
application.
Mr. Richards: Exactly.
Mr. Reed:Maybe I am getting to technical but, the letter of 8/25/99 simply dumps this matter in our
lap....If I am reading it correctly there isn't any ruling, saying take your request to the zoning board
of appeals.
Mr. Reid: That's what they did.
Mr. Reed: The motion is not to ??letter of 8/25/99, I would think the motion would be simply to
make the decision based on the letter of 8/25/99 request.
Mr. Reid: He also indicates that he would issue the permit.
Mr. Robertson: When such application is received, he has never gotten an application.
Mr. Reid:Let me ask you if this is what you mean,please tell me if it isn't because I want to get your
motion down right. You move to grant the petition so as to over turn the Building Inspector's
decision referencing his letter of 8/25/99 indicating he would issue a building permit for the proposed
Phase III 68 unit assisted living facility because we find that the proposed assisted living facility use
is not within the scope of the 1986 decision#2268. Is that your motion?
Mr. Sarnosky: Yes.
Mr. Reid: Is that your second?
Mr. Richards: Yes.
Mrs. Moudouris: Aren't we trying to get the point to where we are actually reversing our decision
of July?
21
Mr. Robertson: That was not a decision. That was not a relief decision.
Mr. Sarnosky: It was a Site Plan Review.
Mr.Robertson: You can't give more relief than was asked for, the application asked to over turn the
letter of 8/25/99, that is the motion now drafted.
Mr. Reid:Lets call for a vote, all in favor of the motion made a seconded say I, Mr. Sarnosky, Mr.
Richards,Mrs. Moudouris, Mr. Reid voted in favor. All those opposed say I, Mr. Robertson voted
against.
Mr. Reid: The motion carries by a 4 to 1 vote, required majority, the petition is granted.
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