Erin SULLIVAN et al.
HERITAGE PLANTATION OF SANDWICH, INC. et al.
Date: September 10, 2018
Cornelius J. Moriarty, II, Justice of the Superior Court
November 17, 2014, Erin Sullivan, Randolph Morgan, Nancy
Andrews and Ursula Price (collectively plaintiffs) filed suit
against Heritage Plantation of Sandwich, Inc., the Town of
Sandwich, Paul Spiro ("Mr. Spiro"), in his capacity
as the Town of Sandwich Building Inspector, and Harold
Mitchell, Robert Jensen, Christopher Neeven, Erik Van
Buskirk, James Killion and David Schrader in their capacities
as members of the Sandwich Zoning Board of Appeals (ZBA). The
complaint contained three counts: Count I seeks review under
G.L.c. 40A, § 17; Count II seeks review under G.L.c.
240, § 14A,  and Count III alleges violation of
G.L.c. 143, § 12.
Heritage Plantation of Sandwich, Inc. ("Heritage")
obtained a building permit from Mr. Spiro to construct an
outdoor adventure aerial park (AAP) as part of its
facilities. Thomas Stanton ("Mr. Stanton") appealed
the issuance of the building permit to the ZBA. On October
29, 2014, the ZBA issued a decision denying the appeal. The
plaintiffs have applied to the court for judicial review
under G.L.c. 40A, § 17 and seek injunctive and
waived trial was held before the undersigned over multiple
days in October, November and December 2017. Fifteen
witnesses testified and 428 exhibits were admitted into
evidence. The court, in the presence of counsel, took a view.
Based on the credible evidence and reasonable inferences
drawn therefrom and the view, the court makes the following
findings of fact and rulings of law.
Randolph Morgan ("Mr. Morgan") is the owner of a
condominium unit located at 67 Highview Drive in Sandwich,
Massachusetts. Plaintiff Ursula Price ("Ms. Price")
is the owner of a condominium unit located at 63 Highview
Drive in Sandwich. Both Morganâs and Priceâs condominium
units are located within a complex known as the Highview
Condominiums ("Highview"). As condominium unit
owners, both Mr. Morgan and Ms. Price own a percentage
interest in Highviewâs common areas. The common area abuts
the property on which the AAP is located.
Erin Sullivan ("Ms. Sullivan") is the owner of a
single-family home located at 7 Jonathan Lane in Sandwich.
Plaintiff Nancy Andrews ("Ms. Andrews") is the
owner of a single-family home located at 25 Pine Street in
is a Massachusetts nonprofit, charitable corporation
organized pursuant to G.L.c. 180. It was incorporated on or
about April 24, 1967. Ellen Spear ("Ms. Spear") is
the President and Chief Executive Officer of Heritage.
Heritage has operated the Heritage Museums and Gardens (HMG)
in Sandwich for the last fifty years. It is located on a
parcel of land approximately one hundred acres in size.
Heritageâs Articles of Organization state the purposes of the
corporation as follows:
Creating, maintaining and operating in the Town of Sandwich
in the Commonwealth of Massachusetts and in other towns on
Cape Cod a museum or museums for the display to the public of
antique buildings, works of art, household furnishings,
machinery, equipment, weapons, hand carvings, artifacts,
miniatures, boats, conveyances and other objects of historic
interest; to educate the public in colonial and early
American history and in the life and work of the early
settlers and their descendants; to increase the knowledge and
appreciation of the public of the American heritage; and to
raise and expend funds for said purposes.
exhibits include collections of art, antique automobiles, and
an antique carousel. Heritage also maintains acres of gardens
principally displaying rhododendrons and hydrangeas. In 2011,
Heritage opened a two-acre outdoor play area for small
children called "Hidden Hollow." Also located on
HMGâs property is a licensed preschool, "The Hundred
Acre School," which focuses on the STEM (Science,
Technology, Engineering and Math) curriculum.
November 7, 2013, Heritageâs Board of Trustees adopted a
written Master Plan, intending to develop new exhibits and
update existing exhibits. The Master Plan provided, inter
alia, that its objective was:
To develop a plan that advances Heritageâs mission to inspire
people of all ages to explore, discover and learn together,
and to be true to our founderâs charge that Heritage "be
a living, outreaching force for education" which
facilitates outdoor learning, discovery and social
feature of the Master Plan was an "Aerial Adventure
Area." Prior to the formal adoption of the Master Plan,
Ms. Spear contacted Outdoor Venture Group, LLC
("OVG"), a developer of aerial adventure parks
(AAPs) throughout the country, in order to gauge its interest
in developing and operating an AAP on Heritageâs property.
OVG is a for profit commercial enterprise.
OVG sent a proposal to Heritage wherein it proposed to
develop an AAP consisting of eight aerial courses.
Thereafter, OVG and Heritage entered into an agreement with
respect to the development and operation of an AAP. To that
end, two new corporate entities were formed, HMG, LLC and
Adventure Park at Heritage Museums and Gardens, LLC
("AP, LLC"). HMG, LLCâs sole member is Heritage,
and its place of business is 67 Grove Street in Sandwich. AP,
LLCâs purpose is, in relevant part, "owning,
constructing, and operating an educational, aerial adventure
feature" on leased property at Heritage Museums and
Gardens. AP, LLC has two members: HMG, LLC and OVG. OVG holds
a 51% majority ownership interest while HMG, LLC holds a 49%
ownership interest in AP, LLC. Bahram Avram, the president of
OVG, is its manager.
to the operating agreement, OVG has constructed and operated
the AAP. It hires, supervises and pays all employees of the
AAP. Heritage plays no part in the operation of the AAP and
none of its employees are employed by OVG.
leased property upon which the AAP was constructed is an
approximately four-acre parcel designed as Parcels Nos. 1 and
2 on Sandwich Assessors Map No. 37. The AAP is located in a
residential (R-1) zoning district. The neighborhood in which
the AAP lies is encapsulated, in large part, by Route 130, a
Massachusetts State Highway which loops around it. For local
traffic, Route 130 provides a ready bypass around the
neighborhood, which is accurately described as insular,
private and scenic. There are approximately 280 homes and
condominiums located within. Those traveling on the roads
within the neighborhood are primarily either residents,
visitors to the museum or the AAP, or otherwise lost.
streets, Shawme Road, Pine Street and Grove Street, provide
access off Route 130. They are residential in nature. There
are no sidewalks on Shawme Road or Pine Street. Shawme Road,
in particular, is, in part, a narrow, winding, unpaved road
with some area of pronounced drop offs and less than adequate
guardrails. It is often used by residents of the neighborhood
for walking and other forms of exercise.
is located in the Old Kingâs Highway Regional Historic
District ("OKRHD"). The OKRHD was created by a
Special Act of the Legislature, Chapter 470 of the Acts of
1973 ("the Act"). Section 4 of the Act established
the Old Kingâs Highway Regional Historic District Commission
("the Commission"). Section 5 of the Act
established separate Town Historic District Committees for
nine individual towns, including Sandwich. Pursuant to
Section 6 of the Act, no structure is allowed to be
constructed within the district without a Certificate of
Appropriateness (COA) from the local Historic District
Committee (the "Committee"). Section 9 of the Act
provides that the Committee is to give fourteen days notice
by local newspaper publication and seven days notice to the
owners of property abutting the premises of the application
as they appear on the most recent tax list and date of the
applied for a COA on April 1, 2014 and the Committee held a
hearing on the application on April 23, 2014. After the
hearing, the Committee approved the application and issued
COA # 14-43. The application incorrectly listed the address
of the AAP as 67 Grove Street, assessorâs map 37, Lot 6. The
correct address is 0 Pocasset Rd. Map 37, Lot 1 and 0 Shawme
Road Map 37, Lot 2. Mr. Morgan and Ms. Price are not abutters
to the property located on Map 37, Lot 6 and consequently did
not receive notice of the application or the Committeeâs
hearing. They are, however, abutters to 0 Pocasset Rd. Map
37, Lot 1 and 0 Shawme Road Map 37, Lot 2.
Morgan learned of the issuance of the COA in early June 2014.
Ms. Price learned of it somewhat later in September 2014.
Neither contacted the Committee or the Commission, or sought
an appeal to the Barnstable Superior Court.
Building Permit Applications
April 24, 2014, Heritage submitted to Mr. Spiro an
application for a building permit to construct the AAP and
two yurts. The building permit application again
incorrectly listed the address of the AAP project as 67 Grove
Street, Map 37 Lot 6. The application was at first denied
"due to insufficient information." Thereafter,
Heritage supplied additional materials including proposed
September 18, 2014, Mr. Spiro issued a building permit
authorizing the construction of the AAP ("the Building
Permit"). Mr. Spiro originally thought that the AAP
would require a variance but subsequently altered his
position after consulting with Town Counsel. In granting the
permit, Mr. Spiro concluded that since the AAP was located in
Residential 1 Zoning District, it was allowed by right as a
museum use as permitted by Section 2300, Table of Uses of the
Zoning ByLaw. He also concluded it was entitled to the
protections of the Dover Amendment, G.L.c. 40A, § 3, as
it had a significant educational component that would afford
it an exemption from zoning use regulations.
about September 26, 2014, a Sandwich resident, Mr. Stanton,
appealed Heritageâs Building Permit pursuant to G.L.c. 40A,
§ 8. The ZBA scheduled a hearing on Mr. Stantonâs appeal
for October 28, 2014. Notice of the October 28, 2014 ZBA
hearing was posted in The Sandwich Enterprise on
October 3 and 10, 2014.
scheduled a site visit on Saturday, October 25, 2014 and
posted an agenda on October 22, 2014. The notice incorrectly
identified the site as 67 Grove Street. However, the site
visit was held at 0 Shawme Road and 0 Pocasset Road. Abutters
Mr. Morgan and Ms. Price did not receive any notice of the
site visit, did not know about it, and consequently did not
attend. During the site visit, members of the ZBA posed
questions to Ms. Spear about the location of the AAP.
However, the members of the public who did attend were not
allowed to ask questions and the members of the ZBA did not
Morgan and Ms. Price received notice of the ZBAâs October
28th public hearing although neither chose to
attend. On October 28, 2014, the ZBA heard
presentations from Heritage and members of the public.
Following the presentations, the ZBA voted to close the
public hearing and take the matter under advisement. Later
that evening, it commenced deliberations and received an
additional oral presentation from Mr. Spiro. It then voted
unanimously to deny the Appeal. The ZBA filed a written
decision, quite cursory in nature, which simply stated that
the appeal "does not provide substantial evidence to
overturn the decision of the Sandwich Building Inspector or
demonstrate the lack of educational use of the
property." The decision was filed with the Sandwich Town
Clerk on October 29, 2014. This appeal followed.
Construction of the AAP
was constructed in late 2014 and early 2015 following the
denial of the appeal by the ZBA. It opened for business on
May 15, 2015. The original design called for eight aerial
trails ("courses") and the two yurts. However, only
five courses and the yurts have been constructed to date. If
successful in this litigation, AP, LLC intends to construct
three additional courses and offer night climbing up to and
including 10:00 p.m., ...