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Sullivan v. Heritage Plantation of Sandwich, Inc.

Superior Court of Massachusetts, Barnstable

August 27, 2018

Erin SULLIVAN et al.

          File Date: September 10, 2018


          Cornelius J. Moriarty, II, Justice of the Superior Court


          On 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, [1] and Count III alleges violation of G.L.c. 143, § 12.[2]


         The 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 declaratory relief.

         A jury 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.



         Plaintiff 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 Morgan’s and Price’s 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 Highview’s common areas. The common area abuts the property on which the AAP is located.

         Plaintiff 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 Sandwich.

         Heritage 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.

          Heritage’s 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.

         HMG’s 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 HMG’s property is a licensed preschool, "The Hundred Acre School," which focuses on the STEM (Science, Technology, Engineering and Math) curriculum.

         On November 7, 2013, Heritage’s 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 Heritage’s mission to inspire people of all ages to explore, discover and learn together, and to be true to our founder’s charge that Heritage "be a living, outreaching force for education" which facilitates outdoor learning, discovery and social interaction.

         One 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 Heritage’s property. OVG is a for profit commercial enterprise.

         Eventually, 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, LLC’s sole member is Heritage, and its place of business is 67 Grove Street in Sandwich. AP, LLC’s 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.

         Pursuant 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.

         The 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.

          Three 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.

         The Permitting Process

         The AAP is located in the Old King’s 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 King’s 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 hearing.

         Heritage 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, assessor’s 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 Committee’s hearing. They are, however, abutters to 0 Pocasset Rd. Map 37, Lot 1 and 0 Shawme Road Map 37, Lot 2.

         Mr. 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.[3]

         The Building Permit Applications

         On April 24, 2014, Heritage submitted to Mr. Spiro an application for a building permit to construct the AAP and two yurts.[4] 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 plot plans.

         On 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.

          On or about September 26, 2014, a Sandwich resident, Mr. Stanton, appealed Heritage’s Building Permit pursuant to G.L.c. 40A, § 8. The ZBA scheduled a hearing on Mr. Stanton’s 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.

         The ZBA 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 deliberate.

         Mr. Morgan and Ms. Price received notice of the ZBA’s October 28th public hearing although neither chose to attend.[5] 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.

         The Construction of the AAP

         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., ...

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