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Home My WebLink About5205 Kings Way Decision Certified 12.22.25RRMOLIYH TOWN CLERK RE DEC 22'25 H2:51 _.c YA� FILED WITH TOWN CLERK: PETITION NO: HEARING DATE: TOWN OF YARMOUTH BOARD OF APPEALS DECISION December 22, 2025 5205 December 11, 2025 PETITIONERS: George Delaney, Sandy Ulrich, Steven Day, Thomas Holland, Marie Pereto-Hedin, Bruce Turner, Peter Hutton, Lee Rowley and Peter Marinelli, Trustees of the Kings Way Condominium Trust, u/d/t dated May 12, 1987, filed with the 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 Certificate of Title No. 136382 PROPERTY OWNER: Same as Petitioners PROPERTY: Property located off of Nottingham Drive in Yarmouth, MA, shown as a portion of Lot 55 on Land Court Plan 34279-H, containing 3.14 acres, more or less, and shown on a Plan of Land entitled "Boundary Plan, Off Nottingham Drive," dated October 29, 2025, prepared by Merrill Engineers and Land Surveyors Map 142, Parcel 17 Zoning District: R-40 MEMBERS PRESENT AND VOTING: Chairman Sean Igoe, Dick Martin, John Mantoni, Richard Neitz, and Anthony Panebianco q E COP i?EST c +MO i'PAN/ 1r2026 K Notice of the hearing has been given by sending notice thereof to the Petitioners and all those owners of property as required by law, and to the public by posting notice of the hearing and publishing in The Cape Cod Times, the hearing opened and held on the date stated above. The subject lot is located off of Nottingham Drive in Yarmouth, MA, shown as a portion of Lot 55 on Land Court Plan 34279-H and also shown on a Plan of Land entitled "Boundary Plan, Off Nottingham Drive," dated October 29, 2025 and prepared by Merrill Engineers and Land Surveyors, submitted with the Petition (hereinafter the "Lot"). The Lot consists of 3.14 acres, more or less, and is part of Parcel 17 on the Town of Yarmouth Assessor's Map 142. The Lot is located in the R-40 Zoning District and is part of a larger 194-acre property that has been developed in accordance with a Special Permit and certain Variances issued in 1975, as explained below (the "Property"). The Property is owned by George Delaney, Sandy Ulrich, Steven Day, Thomas Holland, Marie Pereto-Hedin, Bruce Turner, Peter Hutton, Lee Rowley and Peter Marinelli, Trustees of the Kings Way Condominium Trust, u/d/t dated May 12, 1987, filed with the 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 Certificate of Title No. 136382. The Petitioners seek the following relief - Modification of the Board's October 16, 1975 Decision, identified as "Decision 1321," and to provide relief from, and removal of, any open space restriction placed on the area comprising the Lot. Decision 1321, issued in response to a petition submitted by Oak Harbor Associates ("OHA") in April 1975 and described in further detail below, 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, owned at the time by Yarmouth Properties, Inc., Yarmouth, Mass. and Aaron G. Weintraub, Trustee of the MVI Nominee Realty Trust. The Petitioners, through their representatives, presented evidence demonstrating that the requested modification and relief is permitted by, and consistent with, the Town's By-laws: Specifically, the Petitioners established that the Town amended its Zoning By-laws during its 1973 Annual Town Meeting by adopting a new section allowing for Open Space Village Development, which was amended a year later during its 1974 Special Town Meeting. OHA applied for, and on or about October 16, 1975 received, a Special Permit, pursuant to the Open Space Village Development By-law, as well as fourteen related requests for Variances, authorizing the development of the Property. In particular, OHA requested, and received, a Special A TRUE COPY ATTEST. CMMU { CMC / TOWN CLERK JAN 12 2026 Permit under Section 18:07 of the By-law, as well as Variances that provided for, among other things: (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, together, 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. 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: "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. 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 I` 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." Since the By-law provided that land not designated for roads, dwellings or other development within the Open Space Village Development shall be held for the common use of the residents of the development, and that such common open space be preserved for recreation and conservation, the area of land comprising the Lot was considered as open space for purposes of compliance with the 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 70 percent 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 ATRUE COPY ATTEST: c:MMa JAM 1 2 202CLERK 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 Petitioner [itself) as 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." The land comprising the Lot, as well as other lots left undeveloped, were conveyed and dedicated as open space in 1988: On March 18, 1988, Anthony D. Green, Joseph 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, Joseph 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. 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." The dedication of the 99.1 acres (approximately 51 percent) of the 194-acre Property as open space more than met the By-law's 30 percent threshold, and the removal of the 3.14-acre Lot, as requested, does 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, submitted with the Petition, the removal of the restriction on the Lot would leave 96.01 acres of dedicated open space remaining, which is 49.5 percent of the Property. A TRUE COPY ATTEST &W-d. TwielvJ4 CmMO / CMC 1 TOWN CLERK JAN 12 2026 Allowance of this Petition and change in use of the Lot, therefore, is permitted by the By-law, as it would not bring the amount of open space under the 30 percent threshold. Furthermore, the change in use, to open space, is a permitted use of the Lot. See Zoning By-law, Article II, §202.5. At the hearing, the Board received a copy of Special Town Meeting Article No. 11, passed by the voters on November 17, 2025 and certified by the Yarmouth Town Clerk on November 26, 2025. Article No. 11 included the following about the proposed Open Space Acquisition: "...that said land to be conveyed and managed by the Yarmouth Conservation Commission and used exclusively for open space, passive recreation, and land conservation purposes... and further to authorize the Select Board and the Conservation Commission to grant or accept perpetual conservation restriction in limiting the use of the property as aforesaid. Said conservation restriction may be granted to the Yarmouth Conservation Trust or any other organization qualified and willing to hold such a restriction. " Chairman Sean Igoe proposed that a Motion be made regarding the requested modification of Decision 1321 and to remove any Open Space restriction on the area comprising the Lot, as described above. A Motion was then made by Mr. Mantoni and seconded by Mr. Panebianco to approve the Petition as requested. A roll call vote was taken on this Motion with the following results: Mr. Martin: AYE; Mr. Neitz: NAY; Mr. Mantoni: AYE; Mr. Panebianco: AYE; Chairman Igoe: AYE. Accordingly, the Petition seeking to modify Decision 1321, dated October 16, 1975, to remove the Open Space restriction placed on the proposed Lot, was approved on a 4-1 vote in favor. Therefore, the modification to Decision 1321, as requested, was granted. No permit shall issue until 20 days from the filing of this decision with the Town Clerk. Appeals from this decision shall be made pursuant to MGL c40A section 17 and must be filed within 20 days after filing of this notice.`decision with the Town Clerk. Unless otherwise provided herein, the Special Permit shall lapse if a substantial use thereof has not begun within 24 months. (See By- law §103.2.5, M.G.L. c. 40A, §9) c Sean Igoe, Chairman A TRUE COPY ATTEST. L'M A s I CMC I TOWN CLERK JAN 12 2026 CERTIFICATION OF TOWN CLERK 1, Mary A. Maslowski, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have elapsed since the filing with me of the above Board of Appeals Decision #5205 that no notice of appeal of said decision has been filed with me, or, if such appeal has been filed it has been dismissed or denied. All avenues of appeal have expired or been exhausted. Y�A-e- WW&xtj4 Mary A. Maslowski, MMC, CMMC JAN 12 2026 A TRUE COPY ATTEST i&��a &Wtv i `C:1 NIO CMC / TOWN CLERK JAN 12 2026 N K COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTH i.,it06 BOARD OF APPEALS ��RPORASE�� Petition #: 5205 Date: January 12, 2026 Certificate of Granting of a Special Permit (General Laws Chapter 40A, Section 11) The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Special Permit has been granted to: PETITIONERS: George Delaney, Sandy Ulrich, Steven Day, Thomas Holland, Marie Pereto-Hedin, Bruce Turner, Peter Hutton, Lee Rowley and Peter Marinelli, Trustees of the Kings Way Condominium Trust, u/d/t dated May 12, 1987, filed with the 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 Certificate of Title No. 136382 PROPERTY OWNER: Same as Petitioners Affecting the rights of the owner with respect to land or buildings at: Property located off of Nottingham Drive in Yarmouth, MA, shown as a portion of Lot 55 on Land Court Plan 34279-H, containing 3.14 acres, more or less, and shown on a Plan of Land entitled "Boundary Plan, Off Nottingham Drive," dated October 29, 2025, prepared by Merrill Engineers and Land Surveyors; Map 142, Parcel 17; Zoning District: R-40 and the said Board of Appeals further certifies that the decision attached hereto is a true and correct copy of its decision granting said Special Permit, and copies of said decision, and of all plans referred to in the decision, have been filed. The Board of Appeals also calls to the attention of the owner or applicant that General Laws, Chapter 40A, Section 11 (last paragraph) and Section 13, provides that no Special Permit, or any extension, modification or renewal thereof, shall take effect until a copy of the decision bearing the certification of the Town Clerk that twenty (20) days have elapsed after the decision has been filed in the office of the Town Clerk and no appeal has been filed or that, if such appeal has been filed, that it has been dismissed or denied, is recorded in the Registry of Deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certificate of title. The fee for such recording or registering shall be paid by the owner or applicant. Sean Igoe, Chairman A TRUE COPY ATTEST CMMO MC I TQWN CLEF�K JAN 12 2026