Loading...
HomeMy WebLinkAboutDecision 3152 Kings Way 11.15.94TOWN OF YARMOUTH BOARD OF APPEALS Filed with Town Clerk: DECISION PETITIONER AND OWNERS: Hearing Date: 11/10/94 Petition No.: 3152 The Petitioner and Owners are Donald K. Kurson and Joseph R. Valle, Trustees of Kings Way Properties Realty Trust under Declaration of Trust dated March 31, 1993, recorded as Document No. 578,921, of 46 Glen Avenue, Newton, Massachusetts 02159, and Donald K. Kurson et al, Trustees of the Kings Way Trust, being an Amendment of the Oak Harbour Open Space and Facilities Management Board Trust as amended by Trust Amendment dated May 12, 1987 and recorded as Document No. 433670, with an address of 46 Glen Avenue, Newton, Massachusetts 02159. ' LOCUS This Petition is for the property and structures located as: Assessors Map No. 128 Parcel F56 and Assessors Map No. 120 Parcels R1, E22, E24, E25, R60, R51, R2, R41 and R42 and/or other maps and parcels as may be on the amended records of the office of the Yarmouth Assessors. Said property and development is commonly known as Kings Way, an open space village development on a parcel of land containing approximately 194 acres, • on the north side of Route 6A, Yarmouth Port as shown on Land Court Plan 34279-K (full size as filed) as Lots 10, 14, 41, 42, 43, 44, 49, 51, 55, 57, 59, 60, 61., 63, 64, 65, 66, 67 and as noted on Barnstable Land Court Registration Certificates C-240 (Kings Way Condominium), C-279 (Heatherwood at Kings Way Condominium), C-153 (Admiralty Heights Condominium) and further certificates 92243, 112651, 129726A, 132726, 105310, 113865, 117659, 117660 and containing open space, golf course, recreational facilities, common facilities and support facilities. The premises are also presently shown on the following Land Court Plans: 34279-A (Sheets 1-3) 34179-3 34279-C (Sheets 1-4) 34279-D 34279-E 34279 -1 _ 34279--G (Sheets 1-4) 34279-H (Sheets 1-5) v, 34279-1 4- 34279-J 34279-K 38776-A 38776-B 35454-B RELIEF REQUESTED AND PERMIT HISTORY In compliance with the existing Decisions of the Board of Appeals as to the project commonly known as Kings Way, the Petitioner has requested relief as hereinafter stated. The Petition has been submitted to the Board of Appeals by the aforesaid Petitioner as successor developer and as Trustee of the Kings Way Trust seeking permit compliance approval of its revised golf course, open space and development plans for future phases pursuant to its existing special permit and related variances, all as modified and extended by prior grants of relief by this Board of Appeals in its Decision of October 16, 1975, upon Petition No. 1321 - Document No. 202276, of Oak Harbor Associates, the original Petitioner, and extended by the Board of Appeals in its Decision of April 13, 1984 (Petition No. 2048 - Document No. 337150) by Light House Associates, a prior successor to the original Petitioner, as further modified and supplemented by the Board of Appeals in its Decisions of January 23, 1986 (Petition No. 2268 - Document No. 394798) , July 9 1987 (Petition No. 2448 - Document No. 441210) , October 29, 1987 (Petition No. 2491 - Document No. 451751) and January 29, 1988 (Petition No. 2511 -Document No. 456783) upon the Petitions of The Green Company, Inc., a subsequent prior successor Developer, and as further extended by the Board of Appeals upon Petition of the current Petitioner by Decision made April 28, 1994 (Petition No. 3096 -Document No. 616075), all heretofore and hereinafter collectively referred to as the Extant Decision. In its 1975 Decision (in Petition No. 1321 - Document No. 202276) the Board of Appeals, by granting a special permit for open space village development and related variances, made all necessary findings with respect to the proposed project to comprise dwelling units, a community center complex, a gate house, recreational facilities and open space and -associated maintenance, utility and service facilities. The Board of Appeals made allocations of particular lots for purposes of dwelling units, open space, sewage treatment facilities and various other serviced facilities, and to the community center complex of interconnected buildings. It provided however (at page 6) that: "particular locations of buildings shown on the plan are not intended to fix absolutely the eventual siting or arrangement or layout of buildings or structures;" and also provided (at page 10) that the Board makes: "no findings or decision as to the particular lots or the order in 2 which particular lots may be selected and dedicated by the Petitioner as the required open space under paragraph 4-F of the By Law," and that "This requirement is one of many on -going provisions that will be applicable to the project as it progresses and with which the Developer will have to comply..." Further, said Decision (at page 13) stated that "Should the F.A.A. terminate the control facility and forever release its use of that premises, then Lot 11 (which now no longer exists as a specific lot) may be used for development ...", but so not as to increase the overall number of approved dwellings. Further, the Board of Appeals in its 1986 Permit Modification (Petition No. 2268 - Document No. 394798) provided for future design modifications with Board Approval wherein at the eighth page of its Decision, the Board stated, "These same plans may hereafter be supplemented with Board of Appeals approval.", and "... it is expressly provided that the detailed specifications of phases of the project as development progresses shall be subject to the further review of this Board in accordance with the Prior Decision as hereby modified and supplemented." Inasmuch as the F.A.A. has removed its control facility and its lease has expired, the Petitioner now desires to improve the existing golf course design and redistribute a portion of its building and open space lots, but so as to maintain and increase its current amount of open space. Thus, in compliance with the above referred prior Decisions, the Petitioner has sought approval by the Board of Appeals of its revised plans as submitted showing proposed additional phases of unit dwelling development and golf course redesign by the relocation of existing golf holes five and seven. The revised site plan, in addition to existing dwellings, recreational and service facilities, golf course and open space, shows: a. A proposed redesigned golf course layout and other open space which includes total open space having area in excess of the amount provided in prior decisions and in excess of the requirements of the applicable zoning by-law. b. A proposed layout of future area phases of development of dwelling units, including area which was formerly a portion of the now dismantled and abandoned F.A.A. control facility. C. A revised lot layout which involves continuation of lots and modifications of certain lot lines, but no modification of Kings Circuit. 3 Further, the Petitioner has requested that the Board: Allow such other relief that the Board of Appeals deems meet and just and that the Board of Appeals waive strict compliance with its rules and regulations where the Board may deem such appropriate. FILING The Petition was duly filed. Notice was given as required by law, including twice publication in The Register, a weekly publication having circulation in Yarmouth. Pursuant to notice, a public hearing was held by this Board of Appeals on the evening of 11/10 , 1994. In the course of the hearing, several questions were posed to the Petitioner's representatives by members of the Board of Appeals. Several Yarmouth residents were heard and response was made by representatives of the Petitioner and by members of this Board. The petitioner was advised, prior to the hearing tht only four (4) members of the Board were present. The petitioner elected to prc MEMBERS OF BOARD OF APPEALS PRESENT Leslie Campbell Richard Brenner Joseph M. Conroy .David S. Reid REASONS FOR THE DECISION CRITERIA AND AUTHORITY Said relief is sought pursuant to the Board of Appeals authority under its prior Decisions as above set forth and by authority vested in the Board in M.G.L. Chapter 40A, Section 14, to "...make orders or decisions, reverse or affirm in whole or in part, or modify any order or decision..." The prior Decisions make specific reference to Section 18.07 of the zoning by-law which was in effect when the original decision was made, and which remains applicable for purposes of implementation of the Prior Decision. The Yarmouth Zoning By -Law has subsequently been recodified and amended,and the Prior Decision established, Pursuant to provisions of M.G.L., Chapter 40A, Section 6, a protection of the project as pre-existing in any respects in which it may be deemed to be non -conforming with the current Yarmouth Zoning By -Law. Thus, Approval and Special Permit relief in compliance with existing permits are sought pursuant to Sections 104.3.2, 103.2.1, 102.2.1 and 102.2 of the Yarmouth Zoning By -Law. Insofar as it may be interpreted that the relief herein requested requires Board of Appeals compliance review and approval as to N project revisions effecting existing variances, in compliance with existing permits said compliance review and approval is hereby sought pursuant to Section 102.2.2 of the Yarmouth Zoning By -Law. The criteria for the grant of a Special Permit and Variance are stated as follows: a. Zoning By -Law Section 103.2.2-Special Permits shall not be granted unless the applicant demonstrates that no undue nuisance, hazard or congestions will be created and that there will be no substantial harm to the established or future character of the neighborhood or town; and as set forth in Section 18.07, the Yarmouth Zoning By -Law (1975) Open Space Village Development, pursuant to which this Development was permitted. b. Chanter 40A - Special Permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by --law, and shall be subject to general or specific provisions set forth therein; and such permits may also impose conditions, safeguards and limitations on time or use. c. Zoning B -Law Section 104.3.2- "...Other preexisting nonconforming structures or uses may be extended, altered or changed in use on special permit from the Board of Appeals if the Board of Appeals finds that such extension, alteration or change will not be substantially more detrimental to the neighborhood than the existing nonconforming use...." d. The criteria for the grant of a variance are stated as set forth in Massachusetts General Laws Chapter 40A and Zoning By - Law Section 102.2.2: 1• A literal enforcement of the provisions of the by-law would involve a substantial hardship, financial or otherwise, to the petitioner or appellant. 2. The hardship is owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures, but not affecting generally the zoning district in which it is located. 3. Desirable relief may be granted without either: substantial detriment to the public good; or nullifying or substantially derogating from the intent or purpose of the zoning by-law. 5 RATIONAL FOR GRANTING RELIEF REQUESTED AND CRITERIA SATISFIED In its 1975 Decision, the Board of Appeals, by granting a special permit for open space village development and related variances, made all necessary findings with respect to the proposed project to comprise dwelling units, a community center complex, a gate house, recreational facilities and open space and associated maintenance, utility •and service facilities. The Board of Appeals made allocations of particular lots for purposes of dwelling units, open space, sewage treatment facilities and various other service facilities, and to the community center complex of interconnected buildings. It provided however (at page 6) that: "particular locations of buildings shown on the plan are not intended to fix absolutely the eventual siting or arrangement or layout of buildings or structures;" and also provided (at page 10) that the Board makes: "no findings or decision as to the particular lots or the order in which particular lots may be selected and dedicated by the Petitioner as the required open space under paragraph 4-F of the By Law," and that "This requirement is one of many on -going provisions that will be applicable to the project as it progresses and with which the developer will have to comply..." Further, said Decision (at page 13 stated that "Should the F.A.A. terminate the control facility and forever release its use of that premises, then Lot 11 (which now no longer exists as a specific lot) may be used for development ...", but so not as to increase the overall number of approved dwellings. Further, the Board of Appeals in its 1986 Permit Modification (Petition No. 2268 - Document No. 394798) provided for future design modifications with Board Approval wherein at the eighth page of its Decision, the Board stated, "These same plans may hereafter be supplemented with Board of Appeals approval.", and it is expressly provided that the detailed specifications of phases of the project as development progresses shall be subject to the further review of this Board in accordance with the Prior Decision as hereby modified and supplemented." Inasmuch as the F.A.A. has removed its control facility and its lease has expired, the Petitioner now desires to improve the existing golf course design and redistribute a portion of its building and open space lots, but so as to maintain and increase its current amount of open space. Thus, in compliance with the above referred extant prior Decisions, the Petitioner has sought approval by the Board of appeals of its revised plans as submitted showing proposed additional phases of unit dwelling development and golf course redesign by the relocation of existing golf holes five and seven. The revised site plan, in addition to existing dwellings, recreational and service facilities, golf course and open space, shows: a. A proposed redesigned golf course layout and other open space which includes total open space having area in excess of the amount provided in prior decisions and in excess of the requirements of the applicable zoning by-law. b. A proposed layout of future area phases of development of dwelling units, including area which was formerly a portion of the now dismantled and abandoned F.A.A. control facility. c. A revised lot layout which involves continuation of lots and modifications of certain lot lines, but no modification of Kings Circuit. The so revised lot layout will be shown on plans to be filed with the Land Court and Barnstable Registry District. Pursuant to Land Court procedures, the Plan and Lot numbers will be designated by the Land Court Engineers, and may differ from those shown on the plans filed with this application. When Land Court Plan and Lot numbers have been established, the Petitioner will submit to the Board of Appeals and file with Barnstable Registry District a Certification of Lot and Plan Nos. specifying the allocations of permitted uses of the Lots in accordance with the plans filed with this application. The project --as now proposed by the Petitioner satisfies and complies with all of the requirements of Massachusetts General Laws, Chapter 40A, Sections 9 and 10, of applicable provisions of zoning by-laws of the Town of Yarmouth, and of the Prior Decision, warranting the relief herein granted. This is essentially a further step in the developmental planning, refinement and specification of the project pursuant to and in accordance with the provisions of the extant Prior Decision, which remains in full force and effect and with which the Petitioner remains in compliance. The Board acts herein pursuant to the authority of the Prior Decision itself and the express grant of authority in M.G.L. Chapter 40A, Section 14, to "... make orders or decisions, reverse or affirm in whole or in part, or modify any order or decision..." The Prior Decision makes specific reference to Section 18.07 of the zoning by-law which was in effect when the original decision was made, and which remains applicable for purposes of implementation of the Prior Decision. The Yarmouth zoning by-law has subsequently been recodified and amended, and the Prior Decision established, pursuant to provisions of M.G.L., Chapter 40A, Section 6, a 7 protection of the project as pre-existing in any respects in which it may be deemed to be non -conforming with the current Yarmouth Zoning By -Law. The project is substantially underway. Most amenities have been con- structed. The extant Prior Decisions have been drawn so as to provide inherent flexibility in the siting of units, amenities and open space, and specifically provide that prior approved conceptual plans may be "...supplemented with Board of Appeals approval.". These latest conceptua proposals are in compliance with the extant Prior Decisions and benefit existing homeowners within the development. No supplementation of plans, beyond that provided for within the inherent flexibility of the extant per mits, is being requested. All of the requirements in the 1975 By -Law Sec- tion 18.07 continue to be met. Thus, it has been demonstrated that no and nuisance, hazard or congestions will be created and that there will be no substantial harm to the established or future character of the neighborhoc or town; and the supplemented plans will not be substantially more detri- mental to the neighborhood than the existing nonconforming use. Furthermore, to the extent that the project as now defined by these supple mental plans requires in any specific respect a variance from the literal application of the by-law, the Board finds that the requirements therefore are met, and grants such variance as is implicated in the relief herein granted. The analysis of the site which was made in the Prior Decision remains wholly pertinent. To deny the opportunity to make the proposed beneficial improvements in the project would certainly effect substantial hardship on the Petitioner, and would also constitute a detriment to the public good. No derogation from the intent or purpose of the by-law is involved in the Board's granting this relief. The Petitioner has filed with the Board two (2) color -coded (reduced size) versions of its Master Plan; one entitled "Kings Way (existing conditions) and one entitled "Kings Way (proposed improvements)", the latter showing t revisions proposed in this petition (both of these plans are incorporated herein by reference). Several neighbors and abutters principally those residing near the South- westerly corner of the Locus, expressed concerns for these changes, princi pally in terms of the visual impact. Noting that the area of the former F structure is one of the highest spots in the area, they are concerned abou the prospect of placing dwelling units at the top of this hill, looking do on to their neighborhood. They also expressed concerns for the preservati of their rights to use the extension of Hochanon Road. The Petitioner assured the neighbors, and the Board, that noone's rights in Hochanon Road would be affected by these changes. Furthermore, the current petition sir ply relocated potential building areas. No construction was presently prc posed -in the affected area, and no construction would be commenced until detailed site and building plans were reviewed by the Board of Appeals in further public meeting. Therefore, specific objections and concerns, and specific plans to minimize any adverse impact on the neighborhood, could f addressed at that time. The Board Members agreed with this observation ar assessments of the procedural safeguards which would still be available fc 0 the neighborhood. RELIEF GRANTED Therefore, a motion was duly made by Mr. Reid and seconded by Mr. Brenner grant the Petition, as requested. The Board members voted unanimously in favor of the motion. Insofar as necessary or appropriate to effectuate the provisions of relief in light.of the extant Prior Decision and the recodification and amendment of the zoning by-law between the time of the extant Prior Decision and thi Decision, such other special permits and variances are thereby granted. In addition to the specific conditions and limitations set forth above, th Board of Appeals hereby expressly provides that, except as and to the exte herein specifically and expressly supplemented and modified, the extant Prior Decision is confirmed and shall remain in full force and effect. Nothing herein shall be deemed to preclude an application for further sup- plementation of project design and it is expressly provided that the detailed specifications of phases of the project as development progresses shall be subject to the further review of this Board in accordance with the extant Prior Decision as hereby modified and supplemented. The Board of Appeals acts unanimously in entering this Decision This relief and the relief herein granted shall run with the land, and be binding upon and enure to the benefit of and be exercisable by the Peti- tioner and its successors and assigns. No permit issued until 20 days from date of filing Decision with the Town Clerk. David S.�Reid, Clerk - Board of Appeals 0