ZONING BOARD OF APPEALS
Wareham Town Hall, Lower Level Cafeteria
54 Marion Road
Wareham, MA 02571

Date of Meeting:  October 11, 2006

I.	CALL MEETING TO ORDER

K. Ferreira called the meeting to order.

A.	Roll Call

Members Present:	Kenneth Ferreira, Chairman
			Don McKinlay, Clerk
			Michelle Zollo
			John Cronan
			Mary Scarsciotti
			David Sharkey
			Richard Secher
			Brenda Eckstrom, BOS Liaison

Member Absent:	Michael Martin
			
II.	PRELIMINARY BUSINESS

A.	Minutes:  9/27/06

MOTION:	D. McKinlay moved to approve the minutes of 9/27/06 as written.  M. Zollo seconded.

NOTE:	Brief discussion ensued re:  corrections.
The motions were withdrawn & the ZBA members concurred to table the minutes for 9/27/06.

III.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES

A.	#30-03 – Request for minor modification to Comprehensive Permit – Carlton Place.	

K.Ferreira stated that a letter was sent  & he had a discussion w/ Wayne Delpico, Project Manager re:  the issue.  He read said letter into the record re:  a request for a minor modification relative to affordable unit #12 (16 Carlton St.) be changed to a market rate unit & the market rate unit #31 (37 Carlton St.) be changed to an affordable unit.  

Mr. Delpico explained to K. Ferreira that of the ten affordable units, seven have been purchased, two will be purchased in next few weeks, & due to the climate, three of the buildings have not been started & the bank doesn’t want them to start the buildings until more market rate units are sold.  This particular building has an identical unit to the affordable unit & the request is for them to be switched.

J.Cronan stated one of the conditions was that all ten of the affordables be completed prior to the market rate units.  If this is switched, it will meet the condition.

MOTION:	D. McKinlay moved to approve the request for minor modification relative to switching one affordable unit to market rate & one market rate to an affordable unit for Carlton Place.  J. Cronan seconded.

VOTE:  Unanimous (5-0-0)

NOTE:	The meeting proceeded w/ item IV.  E. - #149-05 – Dugan Marine.

K.Ferreira explained that this is a remand from the courts.  It was advertised in the newspaper for this evening, but the neighbors were not notified properly.  It has been asked by Brenda, Administrative Assistant, to open the hearing since it was advertised for this evening, & then the neighbors will be notified that the hearing will take place on 10/25/06.   

K. Ferriera stated the applicant knows he didn’t notify the neighbors properly & has asked for a continuance.  The ZBA was under a remand by the court to arrive to a decision by 10/24/06.  He has contacted Town Counsel & was told due to the request for continuance from the applicant, the judge would probably allow it.  

MOTION:	D. McKinlay moved to open the remand case #149-05 – Dugan Marine.  J. Cronan.

VOTE:  Unanimous (5-0-0)

MOTION:	J. Cronan moved to continue hearing case #149-05 – Dugan Marine to 10/25/06 per the request of the applicant.  M. Zollo seconded.

VOTE:  Unanimous (5-0-0)

IV.	PUBLIC HEARINGS

A.	#33-06 – Peter & Carol O’Neil, 37 Agawam Beach Rd., c/o G.A.F. Engineering, Inc.

The public hearing notice was read into the record.

Present before the ZBA:	Brian Grady, G.A.F. Engineering, Inc.
				Carol O’Neil

The green abutters notices were submitted to the ZBA.

Mr. Grady discussed the location of the property & the proposal of constructing two small additions to a non-conforming structure.  The additions will square off the dwelling, he discussed location of additions on dwelling, & the square foot measurements of the additions.  The additions will increase living area facing the water & enlarge the kitchen.  The dwelling is in the buffer zone to Shellpoint Bay.  ConCom has approved the plan.  The area is also on the priorities list for Town sewer & a street drainage project.

Mr. Grady stated the existing house will not be raised up & the addition will go up on piles to meet FEMA regulations.  It will match the floor that is there, but it will be on sauna tubes rather than a new foundation.  The total square footage of the project is 280 sq. ft. & doesn’t trigger the 50% law.

M.Scarsciotti asked if the Board of Health needs to approve this application.  Mr. Grady stated they only decide on the building permit.  He has spoken to Mr. Ethier & he will sign the permit.  The area is targeted for municipal sewer &  there is no increase in bedrooms that would trigger an upgrade to the system.

R.Secher asked what the space will be used for.  Mr. Grady discussed space will be increased for the living area & kitchen area.

J.Cronan asked if this is a Variance.  K. Ferriera stated it is a Special Permit.  J. Cronan stated the addition is bringing the dwelling closer to the street so the setbacks aren’t met.  Mr. Grady stated the addition will be a tenth closer to the street at an angle.  The Building Inspector was fine w/ this.  J. Cronan stated if the Building Inspector was fine w/ it, why is this before the ZBA.  Mr. Grady stated it is because the addition will be a tenth closer to the street vs. the existing structure.  K. Ferreira suggested making the three additions 12.5.  Mr. Grady stated this could be done.  Brief discussion ensued.  Mr. Grady discussed the stairway.

Audience members had no questions or comments.

MOTION:	D. McKinlay moved to close the public hearing for petition #33-06 – Peter & Carol O’Neil.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	J. Cronan moved & D. Sharkey seconded to grant a Special Permit for petition #33-06 – Peter & Carol O’Neil w/ the following conditions:

•	Room not be used as a bedroom.
•	All other conditions be adhered to. 
•	Addition(s) be done according to the plans submitted.
•	Adequate parking for use provided off street.

NOTE:	K. Ferreira noted the 50% rule.  He doesn’t feel that people should keep accumulating additions/improvements over time & do one addition one year & another the next year.  He would like another addition to the conditions stating that if any further additions are added to the house, the entire structure be brought up to the minimum FEMA flood plain regulations.  Brief discussion ensued.

•	If any further additions are added, the entire structure needs to be brought up to the minimum FEMA flood plain regulations.
•	No further additions w/out municipal sewer.

VOTE:  Unanimous (5-0-0)

B.	#34-06 – Charles W. Gabriel re:  Fathom Lane

The public hearing notice was read into the record.

Present before the ZBA:	Dennis Cleary, Attorney
				Charles Gabriel

Attorney Cleary stated this is an appeal of the action re:  the Building Inspector relative to a request for enforcement that Mr. Gabriel made of the Building Inspector.  There was no action taken, but by statute & pursuant to By-laws of the Town, if the Building Inspector does not take action w/in 35 days of said request for enforcement action, it is considered to be a denial of the requested action.  This is relative to a commercial use that is being undertaken on the premises at 3 Fathom Lane owned by William Cody.  

Mr. Gabriel has submitted a letter to the ZBA re:  this issue dated 8/4/06.  Mr. Gabriel read said letter into the record & submitted pictures as documentation.

Attorney Cleary stated that Mr. Gabriel initially sent a letter to Mr. Cody that was included in a letter to Mr. Misiaszek (Building Inspector).  This letter was not responded to.  The letter to Mr. Misiaszek was not responded to either.  Thus, he has been forced to come before the ZBA to seek the relief he is asking for.

Attorney Cleary stated the Zoning By-law is clear as to what is allowed in the zone in question & commercial uses are prohibited in this area.  He submitted & briefly discussed  the Superior Court case that Mr. Gabriel addressed in his letter to the ZBA.    

Attorney Cleary addressed the pictures submitted & stated that the incident developed when the oversized garage was completed six to eight months ago & the commercial vehicles at the site is the issue to be addressed.

K.Ferreira asked if the abutters have been notified & if Mr. Cody has been notified re:  this hearing.  He was concerned that the hearing notices were sent out less than timely.  Attorney Cleary stated that Mr. Cody is present & the statute was reviewed to see if there was a notice requirement which there should be.  K. Ferreira stated there is no case law relative to notification, but five days is deemed to be not enough notification time & twelve days is deemed to be enough.  These notices gave six days notice.

Attorney Cleary discussed another court case in land court that is similar to this matter.  Brief discussion ensued.  K. Ferreira stated the ZBA has some experience w/ issuing permits for limited use of property for commercial businesses.  Attorney Cleary discussed the accessory use regulation in the Zoning By-law.

Audience members were asked for comments or questions.

Present before the ZBA:	William Cody, 3 Fathom Lane

Mr. Cody stated that Mr. Gabriel has been less than a nice neighbor since he moved in the neighborhood.  He doesn’t believe this issue belongs before the ZBA for a hearing.  K. Ferreira asked if Mr. Cody is running a commercial business out of a residential house.  Mr. Cody replied “no.”  He repairs surgical equipment at the customer’s site.  His truck is the shop.  He does work for operating rooms & is a mobile medical equipment lab/workshop.  K. Ferreira asked re:  the oversized garage & what is it used for.  Mr. Cody stated the garage is for his own personal use & he does not store business materials for his business in there.  He stated that the distribution center (that Mr. Gabriel has referred to) is located at 191 Main St.  This is where the company office is & where shipping & receiving take place.  K. Ferreira asked if Mr. Cody is an independent contractor or an employee of the company.  Mr. Cody stated he is an employee.  K. Ferreira understands contractors/business people taking their commercial trucks home at night.  He asked why there would be two or three commercial vehicles parked at Mr. Cody’s home.  Mr. Cody stated there were two vehicles on his property for a period of time.  A fourth vehicle was acquired to add to the fleet.  This vehicle was just acquired.  The interior of the box was not suited for what was needed to do for the shop.  It was parked in his yard until the lumber, partitions, & storage racks were taken out which he will use in his garage for his personal use.  It has nothing to do w/ this business.  The vehicle will be stored behind 191 Main St. until an operator is found & the required work can be preformed.  He described the property at 191 Main St. which is an office w/ a storage facility underneath.

K.Ferreira asked what is in the garage. Mr. Cody stated he has a 1996 Capri convertible, a pick-up truck, & a lawn tractor.  He discussed why the garage was built so large.  K. Ferreira asked how long the company has been located at 191 Main St.  Mrs. Cody (the company’s business manager) stated approx. 26 years.  Mr. Cody has worked there for four years.  K. Ferreira stated according to Mr. Gabriel’s letter, he couldn’t find an address for the company.  Mrs. Cody stated it is listed.

Mr. Cody stated many provisions have been made to address Mr. Gabriel’s concerns, but he is sorry that they haven’t worked out to his satisfaction.  The provisions that have been made to address the issue is that the garage, when built, was moved back, he tries not to keep the lights on longer than necessary due to Mr. Gabriel’s close proximity to his house, & he doesn’t let his truck warm up, he starts it & leaves.  Unfortunately, he needs to leave early sometimes to get to the operating rooms that he services.

Present before the ZBA:	Mr. Boyd, 87 Main St., West Wareham

Mr. Boyd was the builder of Mr. Cody’s garage.  He concurs w/ everything Mr. Cody has stated w/ the exception of the lights.  He discussed the re-location of the garage.

J.Cronan asked why is there one truck w/ a set of stairs on it.  Mr. Cody stated this is a different vehicle.  It is a new truck & was used previously for a different kind of work.  J. Cronan discussed how the picture of this truck is perceived on his property.  Mr. Cody stated this truck is now gone & there is only one truck in his driveway now.  

M. Zollo asked what happens if Mr. Cody cannot make the repairs, etc. the facility needs on the spot.  Does he take it home & work on it there.  Mr. Cody replied “no” & it goes to the office & will be mailed out to a third party.  M. Zollo asked if Mr. Cody takes anything home to work on.  Mr. Cody replied “no” & discussed the only time he is out in the vehicle when it is on his property.

M. Scarsciotti asked if there is adequate parking for all the vehicles owned by the business behind Main St.  Mr. Cody replied “no.”.  M. Scarsciotti asked how much parking there is.  Mr. Cody stated there are three spots & the company owns four trucks + a person who works in the shop + four office workers, thus, at least one truck would have to go home w/ an employee.  Ms. Scarsciotti asked if this is such a difficulty, why wouldn’t it be convenient for that particular truck to stay at the office.  Mr. Cody stated he has approx. $10,000 in medical equipment in this truck & he wouldn’t feel safe leaving it downtown.  The other trucks are at other employees’ homes as well.  M. Scarsciotti asked if there is any way to secure the truck.  Mr. Cody stated “no” & he is not willing to take this risk.  M. Scarsciotti asked if Mr. Cody is personally liable for the merchandise.  Mr. Cody feels it is his responsibility re:  liability.  M. Scarsciotti stated the company is insured & Mr. Cody is not personally responsible for the merchandise & Mr. Cody is not personally insured for the merchandise.  It is company owned merchandise & if something happened, the company is insured.

D.McKinlay read a letter into the record from Barry & Olga Carr, 5 Fathom Lane dated 10/11/06 which gave, in short, support for Mr. Cody to park his vehicle on his property.

Attorney Cleary again cited the Paeolla case he cited previously which stated there is not an absolute right to commute in whatever vehicle they want, they can’t take their work vehicle home if it is an oversized vehicle & typically incidental to a residential property.  If it doesn’t have a beeper on it, it is not a commercial vehicle, if it does it is a commercial vehicle.  K. Ferreira stated that there are smaller vehicles being supplied w/ beepers now that are not commercial vehicles.  Discussion ensued.  Attorney Cleary feels if anyone can drive any work vehicle home w/ whatever consequences to the neighborhood then this is not enforcing the Town’s By-law.  Mr. Gabriel feels with or without a beeper, these trucks are commercial.

Brief discussion ensued re:  how to proceed.  Some ZBA members would like to review the information submitted further.

MOTION:	M. Scarsciotti moved to continue the public hearing for petition #34-06 – Charles W. Gabriel to 10/25/06.  D. McKinlay seconded.

VOTE:  Unanimous (5-0-0)

C.	#35-06 – John A. Reeves, 38 West Central Avenue, c/o Mark O. Henderson.

The public hearing notice was read into the record.

Present before the ZBA:	Mark Henderson, Attorney
				John Reeves
				Rebecca Reeves

Plans were submitted to ZBA members & abutters were properly notified.

Attorney Henderson explained that the intent is to combine Lot 33 (38 West Central) Lot 34 & 41(23 South Blvd.).  They are individual dwellings.  The applicants want to demolish the existing home that is there & put a 2.5 car garage w/ a family room above, & a patio room on first floor.  Brief discussion ensued re:  plan.  

Attorney Henderson stated the issue is the eight feet from the edge of sidewalk & corner of the existing house in the front & the proposed addition.  Also an issue, is in the back, there is an open deck which shows 7.5 feet.  There is a proposal to put 14 ft. 4 inches for the proposed addition.  This deck is on the second floor.  The concrete structure will be taken out (from the back) & the deck will go across the back, similar to what exists.  Brief discussion ensued.

K.Ferreira discussed setbacks which needs to be clarified & the radius setback to deck should be ten feet which would be a Variance.  D. McKinlay disagreed & stated the existing one is 7.5 ft. which would make it a Special Permit.  Attorney Henderson clarified changes, plans, additions, & the garage.

Audience members had no questions or comments.

Attorney Henderson again clarified changes to be made.  D. McKinlay feels the conditions are met & the setback requirement needs to be met.  D. Sharkey asked if two feet were taken off, what would it do to the garage.  Attorney Henderson stated he proposed this to the applicants, but they would like to stay w/ the existing structure footprints.  Discussion ensued re:  if this is a Variance of not.  Lengthy discussion ensued re:  options.

MOTION:	J. Cronan moved to close the public hearing for petition #35-06 – John A. Reeves.  M. Zollo seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Zollo moved & D. McKinlay seconded to grant a Special Permit for petition #35-06 – John A. Reeves w/ the following conditions :

•	Conditions of all boards & commissions must be met.
•	Parking adequate to the use provided off street.
•	Street setback to West Central Avenue be increased to a minimum of ten feet.
•	A deed rider that the house is to remain a single family dwelling into perpetuity.
•	No rental units or in-law apartments.
•	Building to be built substantially in accordance w/ the plan submitted by Charles L. Rowley & Associates dated 8/31/06 except as amended by the conditions.

VOTE:  Unanimous (5-0-0)

D.	#36-06 – Cornerstone Properties of Wareham, Inc., 815 Main Street, c/o Peter L. Freeman, Attorney in Fact.

Brief discussion ensued re:  if Attorney Witten would be present for this hearing.

The public hearing notice was read into the record.

K.Ferreira discussed the ground rules for this hearing.  Attorney Witten will be advising the ZBA on legal matters, Mr. Richard Heaton will be providing technical consulting assistance,  Hancock Associates will be reviewing engineering issues & a traffic consultant will be hired to study traffic.  Also, Attorney Richard Daley has been hired by several abutters to represent their interests.  Audience members had no questions or comments as to how this hearing will proceed.

Present before the ZBA:	Attorney Peter Freeman

NOTE:	A woman from the audience asked if notice to abutters is required under 40B projects.  K. Ferreira stated that abutters are required to be notified, but under 40B, it is the Town’s responsibility for mailing the notifications.  Several audience members stated that they have not been notified.

J.Cronan stated on 2/8/06, the ZBA came up w/ Comprehensive Permit rules.  He believes this application is the first 40B seen since these rules were adopted.  He asked if this application adhere to these rules.  He is under the impression it does not.  K. Ferreira stated prior to this week, the applicant had not submitted nor agreed to a payment of a deposit for peer review & technical consulting review.  This has been corrected & the office received a check for $10,000 for technical consultants.  As he understands, Attorney Freeman is still in discussions w/ Attorney Witten relative to if the applicant is required to pay for legal fees.  He suggested that the applicant make the initial presentation & then have the consultant review the application & if there are any defects that need to be corrected, they will need to be made before the ZBA continues.  J. Cronan again feels the application doesn’t adhere to the rules adopted by the ZBA on 2/8/06 & they should be adhered to before any information is presented.

K. Ferreira proceeded to address the woman’s concerns re:  notice to abutters.  He has a list of parties of interest which is certified by the Assessors.  He read the list of names on the list to see if the abutters are present.

Attorney Freeman stated he has had no discussions w/ the Administrative Assistant re:  notifying abutters.  He stated there shouldn’t be a hearing of any kind until the abutters have been notified.  Brief discussion ensued re:  how to proceed.  J. Cronan asked where  it states the Town needs to send out notification to abutters re:  to 40B projects, but not any other hearings.  K. Ferreira stated the Town is responsible for all hearings, except there is a convention under 40A & everyone follows that convention.  This was a topic of discussion previously & the Town should be sending out notification to abutters.  Due to this issue, it will allow the Town’s consultant time to review the application & prepare for any issues that need to be corrected.  Brief discussion ensued re:  when to open this hearing & when to send out notification to abutters.  K. Ferreira stated there will be a need to have a further extension of time from Attorney Freeman unless he wishes to appeal.  Attorney Freeman stated it will not be taken under appeal & 11/8/06 is agreeable as to when to open the hearing.  He will sign a statement stating that he is in agreement to open the hearing on 11/8/06.

K.Ferreira noted that there are new plans for this application.  He stated the actual public hearing for this application will open on 11/8/06 & the new plans are available for inspection at the Old Town Hall.

A woman asked how the abutters list is compiled.  K. Ferreira stated the list is compiled as to the subject property, every abutter that touches the subject property is notified including all parties across a public/private street, & all abutters to abutters are notified who are w/in 300 ft.  This list was compiled when the original project was submitted.  Additional land has been added, so there may be additional abutters to be notified.  The woman noted that several people’s names (for example, Ray Bump & Mr. & Mrs. Melanson) were not on the list that K. Ferreira read.  K. Ferreira stated the list is compiled from the latest tax bills.  He proceeded to review the list again.  D. McKinlay stated the ZBA has always accepted the list as certified & correct.  K. Ferreira briefly discussed how the list is compiled & certified.  He will speak to the Administrative Assistant to make sure the list is correct & the Town’s list can be compared w/ Attorney Freeman’s list to make sure everyone is notified.

A gentleman (Mr. Hazelton) who stated he lives on Fearing Hill Rd. has not been notified either.  K. Ferreira stated if the abutters were supposed to be notified & were not, but they show up at the hearing & give their name for the record, it takes the place of not being notified, thus, this corrects the technical default.  He suggested those present that haven’t been notified, could add their name to the list on the clipboard available as they exit.  He apologized for the error w/ this hearing.

E.	#149-05 – Dugan Marine Realty, LLC, d/b/a Wareham Boatyard & Marina, Inc., 69-73 Leonard Street (Rose Point), c/o Richard M. Serkey, Esquire. (Continued)

V.	CONTINUED PUBLIC HEARINGS

A.	#30-06 – Frank M. Alexander, c/o Edward A. Breault, Agent – Assessors Map 129A-1, Lots 7,8, & 9 off Maple Springs Road.  (Continued by vote to 10/25/06).

VI.	NEW BUSINESS/DISCUSSION
(NONE)

VII.	CORRESPONDENCE
(NONE)

VIII.	ADJOURNMENT

***NO MOTION WAS MADE TO ADJOURN

Attest:  _________________________
	Kenneth Ferreira, Chairman

Date minutes approved:  _____________________
Date copy sent to Town Clerk:  ________________
Date copy sent to Library:_____________________