HARWICH — The board of appeals has unanimously approved a variance for a trimmed-down proposal for a miniature golf course on the Emulous Hall Realty Trust property at the corner of Route 28 and Sisson Road.
This is the second time proponents have sought to develop a miniature golf course on the property, which includes Bud’s Go Karts and an antiques store. In April, a previous proposal seeking a 36-hole course was withdrawn after the board signal that the requested variance would not be approved.
This time around the request was for a single 18-hole course. The project needed a variance because the commercial enterprise would be located in both a Commercial Highway One and Residential Medium zoning districts. The use is not allowed in a residential zone.
With the reduction of the size of the project, the land required in the residential zone was reduced from 34,850 square feet to 17,700 square feet. The project was also pushed closer to the Bud’s Go Kart operation. Attorney Andrew Singer said 67 percent of the proposed reuse of the property will be in the commercial zone.
The large triangle of wooded area to the rear of the residential property abutting the Beach Plum Condominiums would not be disturbed and there are plans to plant additional white pines to create a greater buffer from those residents, Singer said.
Based on its historic development and use, the property is not practical for residential use, he said. Cases in the Massachusetts Zoning Manual define hardship as including when land is not economically feasible for uses permitted in the zoning bylaw. But, he added, a variance cannot be used to maximize the value of the property.
The property owner is foregoing the highest and best use of the property to prevent a more intense year-round development, Singer said. He read portions of a letter from Sandra Hall pointing out that over the years the Hall family has rejected many lucrative offers for more intense use of the property, including a chain drug store, big box store and plans for a dense multi-unit housing development, all of which he said are allowed uses.
The current proposal provides a fraction of the potential financial benefit but is an attractive seasonal use, Hall’s letter stated. Singer said Hall understands the concerns of the neighbors, but the project provides buffers and is better for the neighborhood and town than what zoning could allow.
Under the plan, the proposed golf course would be moved out of the floodplain and that area will be enhanced with stormwater, drainage and parking improvements, adding environmental benefits to the floodplain area. The floodplain designation, it was stated, created a hardship on the property.
Attorney David Reid, representing residents of the Beach Plum Condominiums, which abuts the Hall property to the east, took issue with the variance request. He said the applicant had not demonstrated a substantial hardship based on the criteria, which include soil, shape or topography of the land. Reid said the floodplain is in the commercial zone but it is not the cause of a hardship.
He said that 17,700 square feet of commercial activity in a residential zone was not an insignificant encroachment. He took issue with the owners' claim this is a reuse of a commercial activity in the residential zone. Reid said the storage of a boat, trailers and vehicles was done unlawfully on the land and is not a pre-existing non-conforming use. He also pointed out a box store would not be allowed on the residentially zoned property.
“It’s a request to try to take advantage of a business opportunity and I ask you to deny it,” Reid said.
Beach Plum Condominium resident Karen Jensen said she just bought a home in the condominium complex and would not have done so if she knew a miniature golf course was going to be built next door. Carol Porter, also a resident of the condominiums, pushed for assurances the wooded buffer area would be maintained if the variance is granted.
During the board’s deliberations, Appeals Board Chairman David Ryer said he was in opposition to the previous plan, but he found the case law presented by Singer “very helpful” and concluded the property met the requirements for a variance. He agreed that the residentially zoned land is not attractive for residential use.
Board member Alexander Donoghue said one golf course fits more closely to the needs of the area, which has several other recreational entertainment businesses.
The board voted 5-0 to issue the variance. The project will also need a use special permit from the planning board.