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HomeMy WebLinkAbout5205 Kings Way Attorney NarrativeATrA I EDIT A Applicant full name: George Delaney, Sandy Ulrich, Steven Day, Thomas Holland, Marie Pereto-Hedin, Bruce Turner, Peter Hutton, Lee Rowley and Peter Marinelli, Trustees of Kings Way Trust u/d/t dated May 12, 1987, filed with said Registry District as Document No. 433670, as affected by Amendment No. 2, dated September 25, 2001, filed with said Registry District as Document No. 847992, as further affected by Amendment No. 3, dated November 25, 2008, filed with said Registry District as Document No. 1105817, as further affected by Amendment, dated May 18, 2023, filed with said Registry District as Document No. 1481780, as amended, by virtue of a deed from Anthony D. Green, Joseph R. Valle and Donald K. Kurson, as Trustees of the Kings Way Condominium Trust, dated March 18, 1988, filed with said Registry District as Document No. 454932, creating Cert'ficate of Title No. 136382. This application relates to the property identified as: A portion of Lot 55 on Land Court Plan 34279-H (see Exhibit 10), containing 3.09 acres, more or less, which is shown on a plan entitled, "Boundary Plan, Off Nottingham Drive, Assessors' Map 142, Lot 17, Yarmouth, Massachusetts," dated December 30, 2024, prepared by Merrill Engineers and Land Surveyors. See Exhibit 1. The property, hereinafter referred to as the "Proposed Lot;' is further shown on a second, updated plan entitled 'Boundary Plan, Off Nottingham Drive, Assessors' Map 142, Lot 17, Yarmouth, Massachusetts;' dated October 29, 2025, prepared by Merrill Engineers and Land Surveyors. See Exhibit 2. Relief requested: Applicant seeks to modify Decision #1321, dated October 16, 1975, to remove the Open Space restriction placed on the Proposed lot. Approval is a requirement for the proposed sale of the Proposed Lotto the Town of Yarmouth, as outlined in the mutually executed Offer to Purchase Real Estate, dated August 26, 2025, attached as Exhibit 3. Project summary: The Petitioner seeks relief from an open space restriction placed on the Proposed Lot pursuant to the Board's October 16, 1975 Decision, referred to as "Decision 1321," in response to a petition brought by Oak Harbor Associates ("OHA") which allowed the development of 194 acres of vacant land to the north of Route 6A in Yarmouth and situated between Route 6A and Bray Farm Road (the "Property"), owned at the time by Yarmouth Properties, Inc., Yarmouth, Mass. and Aaron G. Weintraub, Trustee of the MVI Nominee Realty Trust. A copy of the Decision is attached as Exhibit 4. Prior to permitting, during the Town's 1973 Annual Town Meeting, the Town amended its By- law by adopting a new section for Open Space Village Development, which was amended a year later during the 1974 Special Town Meeting. Copies of the By-laws are attached as Exhibit 5. On April23, 1975, OHA applied for, and received a Special Permit authorizing the Property to be developed pursuant to the Open Space Village Development By-law, as well as fourteen related requests for Variances which, together, would allow for the development of 750 dwelling units on the Property. In particular, OHA requested, and received, a Special Permit under Section 18:07 of the By-law, as well as Variances that provided for, among otherthings: (1) access to the residences sought to be constructed; (2) access to structures and features appurtenant to the project; (3) non-residential uses; and (4) construction and development of other structures and facilities that may or may not have been compliant with the By-law. The approved Special Permit and Variances, altogether, allowed for the development of separate residential buildings, each containing no more than 24 units, for a total of 750 dwelling units, as well as a community center complex, gatehouse, garden club building, sewage treatment plant, maintenance facilities and related accessory structures. A copy of the Application is attached as Exhibit 6. The Special Permit included a number of conditions, including one that required that the undeveloped portions of the Property be designated, and maintained as, "Open Space" as required by Section 18:07(4)(F), which provided: "AU land not designated for roads, dwellings or other development within the Open Space Village Development shall be held for common use of the residents of the Development. Common open space shall be preserved for recreation or conservation; and shall comprise not less than 30 percent of the `Applicable Land Area' within the Development Plan. Ownership of common open space areas shall be arranged and maintenance permanently assured through an incorporated homeowner's association, condominium deeds, or other recorded land agreement through which 1`: owner in the development is automatically a member and each lot is subject to a charge for a share of the maintenance expenses, or through comparable arrangement satisfactory to the Board of Appeals. Preservation shall be guaranteed through dedication, by covenant or comparable legal instrument, to the community use and enjoyment of residents of the development tract, for recreational purposes serving those residents and their non-paying guests only, or for conservation. In addition, the town shall be granted an easement over such land sufficient to ensure its perpetual maintenance as conservation or recreation land. Building coverage shall not exceed 5 percent in such conservation or recreation areas." See Exhibit 4. Since the By-law provided that "all" land not designated for roads, dwellings or other development within the Open Space Village Development shall be held for common use of the residents of the Development, the area of land comprising the Proposed Lot was considered as open space for purposes of compliance with the 30% minimum open space requirement outlined in the By-law. However, the Board acknowledged in Decision 1321 that the developed area of the 194-acre Property comprises significantly less than the 70% of its total area. Page 9 of Decision 1321 states: "The main requirement is contained in the second sentence of the By-law, wherein it is stated that common open space shall comprise not less than thirty (30%) percent of the applicable land area shown on the development plan. We have added up the land area represented by the lots on which the Petitioner indicates that dwellings or other structures may be placed; we find that the total is less than seventy (70%) percent of the applicable land area as set forth in the land surveyor's report. We are satisfied that the remaining lots (some of which are shown as open lands on the overall development plan) are capable of meeting this thirty (30%) percent test. We make no findings or decision as to the particular lots or the order in which particular lots may be selected and dedicated by the Petitioneras the required open space under paragraph 4-F of the By-law. The paragraph clearly limits the lots which may be used for this purpose to those on which (essentially) no construction is to take place. This requirement is one of the many on -going provisions that will be applicable to the project as it progresses and with which the developer will have to comply, except as we may grant exception thereto by variance. Section 18:07 calls for no specific findings or determinations by us on this matter and in our judgment none should be entered." See Exhibit 4. In other words, the project, as approved in 1975, allowed the development of less than 70% of the Property, more than meeting the 30gi) minimum open space requirement. Moreover, the amount of open space was increased through a later Petition to the Board. The Green Company, Inc. contemplating purchase of the Property, submitted a Petition to the Zoning Board of Appeals in 1985, seeking modification and supplementation of Decision 1321, which had provided that particular locations of buildings shown on the plans at that time were not fixed, and that the eventual siting, arrangement and layout of buildings and structures on the Property would require further submissions and approvals. The 1985 Petition included, among other things, revised plans showing housing and other building Locations, as well as areas to be preserved as open space. The Decision (ZBA Decision No. 2268, dated March 28, 1986) granted the Petition and included an acknowledgement that the revised site plans included "open space having an area in excess of the amount provided in the Prior Decision and the requirements of the applicable zoning by -taw." See Exhibit 7. The land comprising the Proposed Lot, as well as other land left undeveloped following the completion of the project, were conveyed and dedicated as open space two years later, in 1988: On March 18, 1988, Antony D. Green, Jospeh R. Valle and Donald K. Kurson, Trustees of Kings Way Condominium Trust u/d/t dated July 31, 1987, registered with the Barnstable County Registry of Deeds as Document No. 441933, amended by Document No. 441936 "Grantors"), deeded to Anthony D. Green, Jospeh R. Valle, Donald K. Kurson and Peter Strand, as Trustees of the Kings Way Trust, u/d/t dated May 12, 1987, registered with the Barnstable County Registry of Deeds as Document 433670 ("Grantees"), the lands identified as Lots 44, 49 and 52 on Land Court Plan No. 34279G and Lots 55 (including land comprising the Proposed Lot), 57, 58, 59, 61 and 62 on Land Court Plan No. 34279H, as "common areas and facilities of Kings Way," a condominium established by Master Deed dated July 31, 1987, registered with Barnstable County Registry of Deeds as Document No. 441932, amended by Document No. 441935, registered under Master Condominium Certificate of Title No. C- 240. See Exhibit 8. The deed specified that the aforementioned lots, combined with Lot 10 shown on Land Court Plan No. 34279C, Lot 14 on Land Court Plan No. 34279G, already owned by the grantees under Certificate of Title No. 92243 and 112651, "contain over 99 acres in the aggregate and constitute all of the Open Space lots in Kings Way, which the Grantors, and the Grantees by acceptance thereof, dedicate as such and restrict to open space purposes as provided in applicable documents of record." See Exhibit 8. The dedication of the 99.1 acres (approximately 51 %) of the 194-acre Property as open space more than met the By-law's 30% threshold, and the proposed removal of the 3.09-acre Proposed Lot, through a conveyance to the Town, obviously would not materially affect that ratio. Indeed, as Dean Boumitri, P.L.S, of Merrill Engineers and Land Surveyors, writes in her October 29, 2025 letter, the sale of the Proposed Lot would Leave 96.01 acres of open space remaining, which would be 49.5% of the Property. See Exhibit 9. Allowance of this Petition, then, is permitted by the By-law, as it would not bring the amount of open space under the 30% threshold. Which other Boards and/or Town Departments are/have/will review this project? What is the status? No other Boards or Departments will, or are believed to be formally required to, review this petition or formerly participate in the hearing process; however, this submission was provided to the Building Inspector/Zoning Enforcement Officer and Town Planner prior to submission. The Petitioner welcomes input from Town offic als. If this petition is approved, the Petitionerwill be required to submit an Approval Not Required (ANR) to the Town's Planning Board for its approval, as required bythe Offer to Purchase Rea, Estate executed by the Petitioner and the Town. See Exhibit 3. If this application is approved and the ANR Plan is approved by the Planning Board, the Petitioner will then be required to obtain Land Court approval of the ANR P,an, as well as Land Court approval removing the Proposed Lot from G.L. c. 183A. Do you have Planning Board approval? As aforementioned, an ANR Plan will be submitted to the Planning Board if this petition is allowed. Has this property been the subject of prior relief from the Zoning Board of Appeals? Yes. If yes, provide the date(s), appeal number(s), decision(s), and other pertinent information with this application: As stated in the Project Summary, the Proposed Lot was designated as Open Space as part of the requirements of a Special Permit (Decision 1321, dated October 16, 1975, attached as Exhibit 3) that allowed the 194 acre Property to be developed pursuant to Section 18:07 of the Open Space Village Development By-law, adopted in 1974 and amended in 1975 (attached as Exhibit 4). Deeds relative to the subject lot: Thomas C. Thatcher, Guido R. Perera, John B. Pierce, Jr. Henry C. Thatcher, Langdon T. Thatcher, Douglas C. Thatcher, Claire H. Thatcher and Bernard S. Carter, Jr. to Scott C. Jordan, Filmore W. McAbee, Francis M. Dwyer, G. Arthur Craig and Radford B. Anderlot. The comprises the entire Property. Deed dated December 8, 1972. Scott C. Jordan, Radford B. Anderiot, G. Arthur Craig, Francis M. Dwyer and Filmore W. McAbee and Yarmouth Properties, Inc_ to Aaron G. Weintraub, Trustee of the M.V.I. Nominee Realty Trust, u/d/t dated May 29, 1974. Most of the Property, with small remainder - see below. Deed dated May 34, 1974. (MVI owned majority of the Property as a result of this conveyance but Yarmouth Properties, Inc. retained several partial lots at the edge of the Property on the southeast corner. Both owners properties were identified as "owners on the applications for the Special Permit and Variances.) (Decision 1321, Special Permit and Variances, granted October 16, 1975) Aaron G. Weintraub, Trustee of the M.V.I. Nominee Realty Trust, u/d/t dated May 29, 1974 to MGIC Ventures, Inc. All? Porperty maybe not ...... (Parcels I-V) Deed dated March 12, 1979. MGIC Ventures, Inc. to Light House Associates, LP. (Parcels I-V) Deed dated March 12, 1979. Light House Associates, LP to The Green Company, Inc. (deed scribbled over this to - "Oak Harbor"). Deed dated January 23, 1986. The Green Company, Inc. to Donald K. Kurson, Jospeh R. Valle, Anthony D. Green and peter Strand, Trustees of the Kings Way Trust u/d/t dated May 12, 1987. Deed dated July 31, 1987. (DOES NOT INCLUDE Lot 55) Helen Perry to Jospeh R. Valle, Donald K. Kurson, Anthony D. Green, Robert Kurga, Joseph Durbas and Michael Downey, Trustees of the Kings Way Trust, u/d/t dated May 12, 1987. Deed dated February 9, 1995. (DOES INCLUDE 55) Pls scan and send me a link of these exhibits. Save in Kings Way- Lot 40 -ZBA Application Materials. This is an updated exhibit package to replace what you scanned last week, which can be removed from the common.