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

Date of Meeting:  November 8, 2006

I.	CALL MEETING TO ORDER

K. Ferreira called the meeting to order at 7:30 P.M.

K. Ferreira discussed the proceedings for this evening’s meeting.

A.	Roll Call

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

Member Absent:	Richard Secher

II.	PRELIMINARY BUSINESS

A.	Minutes: 9/27/06. 10/11/06, & 10/25/06

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

VOTE:  Unanimous (8-0-0)

MOTION:	M. Zollo moved to approve the minutes of 10/11/06.  D. McKinlay seconded.

Brief discussion ensued re:  if corrections had been made.  The Board concurred to table the minutes of 10/11/06 & 10/25/06.

B.	#128-05 – 21 Sandwich Road – One Year Review – Margaret Ishihara

Present before the Board:	Margaret Ishihara

Ms. Ishihara is representing Wareham Child Care.  There is a purchase & sale agreement to buy the property on 21 Sandwich Road & the closing will be at the end of November.  In reviewing the record, a Special Permit was issued re:  said property & a requirement was that a fence be installed w/in six months of said decision which has not been done & a one year review which is overdue.  She requested an extension of time for the installation of the fence.

K.Ferreira clarified if Ms. Ishihara is asking for an extension of an additional six months from November (time of closing).  Ms. Ishihara concurred.  K. Ferreira stated that at that time a one year review would be scheduled.  D. McKinlay suggested asking the Building Inspector to enforce the decision.  He doesn’t feel the current owner should be the one to install the fence.  He feels this applicant should have been in before now re:  this matter.  Discussion ensued.

M. Scarsciotti asked what degree of responsibility the owner of the Special Permit have.  K. Ferreira stated they are in violation of zoning & the Special Permit.  Brief discussion ensued.

MOTION:	D. McKinlay moved to grant petition #128-05 – 21 Sandwich Road a six month extension to complete work required & to schedule a one-year review at the applicant’s expense w/in six months of today’s date and a letter be sent to the Building Inspector.  D. Sharkey seconded.

VOTE:  Unanimous (8-0-0)

C.	Discussion/clarification - #15 – 9th Street – Request by abutter – Daniel Sheehan.

No-one was present to represent the application.

III.	PUBLIC HEARINGS

A.	#41-06 – Douglas R. Beaton, Eagle Holt Co. Inc. – Off Blackmore Pond Road.

Present before the Board:	Glen Berkowitz

The public hearing notice was read into the record.

M. Martin will not be voting on this matter.  D. Sharkey will take his place.

Mr. Berkowitz is representing Douglas Beaton.  He submitted the green abutters receipts & explained that they also sent out 100 letters to everyone in the area relative to what is being propsed.

Mr. Berkowitz stated his company & Mr. Beaton’s company have teamed up to explore the potential benefits of wind power to diversify & strengthen the revenue of cranberry bog owners.  A study needs to be conducted re:  feasibility of wind power & wind data.  The proposal is to collect natural wind data from the location & they would like a permit to erect a temporary anonometer tower which is 92 ft. tall which is 9x6 in diameter & will be installed for no less than six months & no more than 12 months.  The data collected will provide information to assess the feasibility of windpower.

Mr. Berkowitz reviewed the application components & corrections.  He also submitted a letter of support from the Wareham School Dept. which D. McKinlay read into the record.

Discussion ensued re:  the certified lists & if everyone has been properly notified.  K.Ferreira understands Mr. Berkowitz spoke to Edgewood Development Co., but the ZBA would like a letter indicating that they knew of this hearing this evening because the decision will not be filed w/ the Town Clerk until this letter is received.

Audience members were asked for questions or comments.

Present before the Board:	Steven Bello

Mr. Bello stated he lives across from the property being discussed & he is in support of the application for a temporary tower, he sees no impact to the community, & is a perfect fit.  He encouraged the ZBA to move favorably on said application.

M. Martin indicated that the letter being requested is not a deviation from Chapter 10, s. 11.4 of the statute.  K. Ferreira stated the applicant is providing an affidavit of service verbally re:  notification & he would like it in writing.

K.Ferreira clarified that this is a temporary data tower that will be taken down & is not necessarily the site where a permanent tower may be erected.

MOTION:	D. McKinlay moved to close the public hearing for petition #41-06 – Douglas R. Beaton, Eagle Holt Co., Inc.  J. Cronan seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	D. McKinlay moved to grant a Special Permit w/ conditions identical to conditions held 10/27/06 w/ a 15 month window of opportunity for petition # 41-06 – Douglas R. Beaton, Eagle Holt Co., Inc.  J. Cronan seconded.

VOTE:  Unanimous (5-0-0)

B.	#43-06 – Ryan Correia – 2263 Cranberry Highway

Present before the Board:	Ryan Correia
The public hearing notice was read into the record.

The applicant’s information was submitted.  Some ZBA members expressed concern re:  the non-collated & different information each member was receiving.  D. McKinlay feels the hearing should be continued so the applicant can organize the paperwork, not the ZBA members.

Mr. Correira discussed his proposal.  There is an existing structure (single family dwelling) on a piece of land in West Wareham that is zoned strip commercial.  He would like to add on units.  According to the Building Dept., section 623 of the Zoning laws, a Variance is required for an addition of four units.  This zoning was not changed.  The existing building is on the property line & who owns the land behind the property line to the pond.  He owns everything except the line which the Town owns around the pond.

K. Ferreira noted the Building Inspector’s letter of denial.  Brief discussion ensued re:  requirements for a strip commercial zone.  K. Ferreira asked if the property has been surveyed.  Mr. Correira stated it was surveyed for the septic setbacks, the existing structure, & there is no site plan.

Mr. Correira stated the townhouse style condominiums that will be rentals.  M. Martin asked if Mr. Correira has considered making these units affordable under the 40B law.  Mr. Correira indicated he didn’t know enough about the 40B law so he didn’t look into it & was told it was a long process.  Brief discussion ensued.

Audience members had no questions or comments.

Discussion ensued re:  the need for a Special Permit for use, minimum of one Variance for setback, & area requirement.  K. Ferreira feels this application may need site plan review due to the conversion to an apartment complex, there is a need to know where parking is, screening, etc.  Discussion ensued.  The ZBA members proceeded to review zoning regulations which may be relative to this application.

K. Ferreira explained if the applicant wants to move forward, he will need to hire an engineer who can review the plans & prepare detailed plans to present to the ZBA.  Site plan review is required for this application.  He explained in detail what the applicant needs to have submitted in terms of information & the site plan review.  Brief discussion ensued.

K.Ferreira again asked if audience members had any questions or comments.  There were none.

Brief discussion ensued re:  date to continue this hearing to.

C.	MOTION:	D. McKinlay moved to continue the hearing for petition #43-06 – Ryan Correia – 2263 Cranberry Highway to December 13, 2006.  D. Sharkey seconded.
VOTE:  Unanimous (5-0-0)

D.	#44-06 – Alexander Sperdigliozzi – 6 Wildwood Avenue

Present before the Board:	Alexander Sperdigliozzi

The public hearing notice was read into the record.

Mr. Sperdigliozzi explained what he would like to do re:  an addition to his home.  Brief discussion ensued re:  how the house sits on lot now, how the addition will be placed on the front, & square footage of said lot.

K.Ferreira noted that Attorney Jon Witten is present who helped draft Article 13 – Non-conforming uses, structures, & lots.  He noted language in the article as to what the ZBA needs to do.  He stated the existing structure doesn’t conform to the side setback of 3.3 ft., but w/ the addition, it will remain in conformity w/ the front setback.

Lengthy discussion ensued re:  if this is a request for an in-law apartment vs. an addition.  K. Ferreira feels, after discussion, it is not an apartment, but a living space.  He feels it would be proper to deed restrict it & make it a true in-law apartment.

Audience members had no comments or questions.

MOTION:	J. Cronan moved to close the public hearing for petition #44-06 – Alexander Sperdigliozzi – 6 Wildwood Avenue.  D. McKinlay seconded.

VOTE:  Unanimous (5-0-0)

The ZBA finds that a Variance/Special Permit as indicated in the Building Inspector’s denial letter for a duplex is not required & the ZBA finds this is a Variance for an in-law apartment only. 

MOTION:	J. Cronan moved & D. Sharkey seconded to grant a Variance for petition #44-06-Alexander Sperdigliozzi – 6 Wildwood Avenue for an in-law apartment, after the fact, w/ the following conditions:

•	All standard conditions relative to in-law apartments apply.
•	Before occupancy permit is issued, an attorney needs to insert a deed restriction on current deed indicating that said Variance was granted.
•	Upon sale of property, the in-law apartment needs to revert back to single-family use.
•	No rental of apartment is allowed in future & not to be considered a two family structure, but an accessory apartment w/in the unit.

M. Martin asked as part of the re-conversion, that where the sink is shown now is turned into an open hallway door.  Mr. Sperdigliozzi stated if this wall was opened up you would be outside.  Discussion ensued.

VOTE:  Unanimous (5-0-0)

E.	#45-06 – David & Debbie Fringuelli – 4 Beaver Creek Lane
(I heard nothing on the tape addressing this petition)

F.	#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

Present before the Board:	Richard Serkey

The public hearing notice was read into the record.

M.Martin will recuse himself from this hearing due to conversations he has had w/ the applicant on this matter.  M. Zollo will also recuse herself.  M. Scarsciotti & D. Sharkey will sit in their places.

K.Ferreira noted that all proper abutters have been notified.

Mr. Serkey stated the marina in question is pre-existing, non-conforming commercial use located in what is now a residential zone.  Pre-existing, non-conforming structures & uses have certain protections of that the law affords them.  The law provides that they may be extended or altered providing the no such extension or alteration shall be submitted unless there is a finding by the ZBA that the change, extension, or alteration shall not be substantially more detrimental than the existing non-conforming use or structure is to the neighborhood.

Mr. Serkey discussed non-conforming, pre-existing uses & structures & there are changes that will be made to structure/use.  The question is the extent of change.  In this case, there is a marina that has permission to house 54 boats using a combination of slips & moorings.  He gave examples of circumstances that would & would not require a Special Permit.

Mr. Serkey stated that previously, Mr. Dugan came to the ZBA after he filed a request w/ the Building Inspector for a proposed change of 20 moorings to 20 slips.  It was argued to the Building Inspector that the mere change of moorings to slips (which was neutral w/ respect to number of boats) was not a change that would require a Special Permit.  Mr. Dugan had also sought to construct an observation deck & a parking garage on the property.  He stripped his petition of the observation deck & dropped the structural change as well.  The only change he submitted to the Building Inspector was to change 20 moorings to 20 slips.  The Building Inspector denied & stated it would have to go before the ZBA.  Mr. Dugan came before the ZBA to appeal the Building Inspector’s determination & the ZBA upheld the Building Inspector & stated a Special Permit would be needed to make the conversion from moorings to slips.  This decision was appealed to land court.

Mr. Serkey discussed Exhibit #16 dealt w/ a case management conference, joint statement that was worked out w/ Town Counsel, Geoffrey Honag.  The case was described & he & Mr. Honag agreed that the sole issue of said case was whether the plaintiff’s proposed conversion of 20 moorings to 20 slips meets the requirements of Chapter 40A, s.6.   His client maintains that this application meets the requirements & no Special Permit of site plan approval is required & the Town maintains that a Special Permit & site plan approval were required.

Mr. Serkey explained that after a series of meetings in court, the court issued a Remand Order (Exhibit 17) dated 8/25/06.  The remand order indicates there were a series of conferences.  He read said remand order into the record.  As a result of said remand order, the plaintiff agrees that it shall withdraw & not pursue the plans submitted to the ZBA in 8/05 (the 20 moorings for 20 slips).  J. Cronan stated the plan that is being withdrawn ( the 20/20) was the second plan.  Mr. Serkey stated it was the original plan he presented.  Prior to this, there was a prior case in which an addition to the conversion of moorings to slips, there was a free standing observation tower, etc.  He had always submitted the 20/20.  J. Cronan asked for clarification of the proposal currently.  Mr. Serkey stated it will now be 10 moorings for 10 slips.  This was a compromise that was offered by Mr. Dugan.  He submitted a plan showing what the slips will look at & discussed briefly.  Brief discussion ensued re:  the neighbors on the south side of the river.  Mr. Serkey stated the Wetland Commission is the direct abutter to the extension.  

Discussion ensued re:  the plan submitted.  K. Ferreira expressed confusion relative to how the old plan showed 20 slips & the present plan shows 10.  Mr. Serkey stated each slip holds at least four boats, thus, if a slip is moved, four boats are being eliminated.    K. Ferreira noted that this proposal does nothing by way of structural additions, changes, etc.  What is being presented is to add 10 boats, not 10 slips.  K. Ferreira stated the dock configuration will be altered to allow tying up 10 more boats.  J. Cronan expressed confusion.  He feels Mr. Serkey said that 10 boats are being added, but a slip equals four boats.  Mr. Serkey discussed the slip configuration for clarification.  J. Cronan stated Mr. Serkey has said the applicant is allowed 54 boats.  He asked if there is any document that shows the allowing of 54 boats.  Mr. Serkey stated in the record submitted previously, Exhibit #2 shows this information.  Brief discussion ensued re:  information included in Exhibit #2.

J.Cronan stated in June 1972, a letter was received stating there would be 24 boat slips which equal 24 boats & 30 moorings.  He asked how many boat slips are there presently.  Mr. Serkey stated there are 40 boats.  J. Cronan clarified that there are enough slips for 40 boats, thus 40 slips, which leaves 14 moorings to utilize.  He asked if any of these moorings are being used now.  Mr. Serkey stated seven of the 14 moorings are being utilized.  It varies by season.  J. Cronan explained that there is a permit for 24 boat slips, today there are 40.  He doesn’t understand how the 40 came about.  Now, the applicant wants to take the 14 mooring that are there & convert ten of them to slips, thus, this will equal approx. 50 slips.  He stated approx. one year ago, the applicant had put slips into the water & the Conservation Commission told them to take them out.  He asked when these slips were put in, how many slips did this bring the total to.  Mr. Serkey stated 50.  J.Cronan stated now, the applicant wants to put the slips back in & will change the configuration (going out straight vs. going to the left).  He feels there needs to be a documented plan on this.  This case has gone to court twice & there is still no plan.  He stated this proposed plan will leave four moorings & 50 slips.

Mr. Serkey stated the number of boats are staying the same, they are not increasing.  The geographical area over which the boats are located is becoming smaller.  Due to the fact that slips at this marina are moved in the off season as well as the poles in which they hang, if you convert ten moorings to ten slips in the off season, there will be less evidence of boat usage in the water vs. if there were ten more moorings in the water.  He indicated that not all slips are alike at marinas.  The slips at this marina are smaller vs. what may be at other marinas.  The boats are smaller & activity you have w/ larger boats won’t happen here.  This is a neighborhood marina that serves the needs of the immediate neighborhood & general public.  He feels the conversion of the ten moorings to ten slips is “below the radar screen.”  If the ZBA finds that something has triggered the need for a Special Permit, he suggested that a Special Permit be granted due to the finding that the proposed conversion from moorings to slips will not be substantially more detrimental to the neighborhood than the existing setup, assuming the existing setup is detrimental.  The resulting use will be the same as the existing use.  He asked the ZBA to either find that no Special Permit is required or if a finding is made that a Special Permit is required, that the ZBA grant it.

K.Ferreira feels the ZBA has set precedent in the past that the conversions of moorings to slips does have an increased degree of use or intensity on the neighborhood.  People who have slips visit their boats more often vs. those w/ moorings.  He feels the powers test does get tripped & requires a Special Permit.  Mr. Serkey asked if it would be tripped if there was a conversion of one mooring to one slip.  K. Ferreira feels it would, but it would be a discretionary call.  Discussion ensued.

K.Ferreira asked now there will be slips for 50 boats, will a pump out station be required.  Mr. Serkey stated no, but the applicant may do this & explained that the State may pay for it once the sewer project is done in this area.  Discussion ensued.

Audience members were asked for questions or comments.

Present before the Board:	Lucy Furlong, 30 Arnold St., Rose Point

Ms. Furlong submitted a letter to be read into the record dated 11/8/06.  D. McKinlay read said letter into the record.

Mr. Serkey discussed the applicant’s existing license from 8/00 & the license cannot exceed the perimeters of the issued license.  The dimensions/perimeters & of the permit were discussed as well as the plan(s).  Brief discussion ensued re:  the licensing of four floats & the applicant has more than four floats being proposed & is asking to be licensed through the Conservation plan & then adding more on top of this.  K. Ferreira feels that there are more existing floats & new floats being proposed, but many existing floats/slips were never licensed (during prior ownership or new ownership).  Mr. Serkey stated there are some floats that were not licensed.  He discussed what DEP has approved & the Conservation plan.  K.Ferreira clarified that the float license previously granted holds 24 boats.  This conforms to the Harbormaster’s letter in Exhibit #2.  K. Ferreira stated the 1972 letter from the Harbormaster only speaks to the long pier that comes off the street, then there are other permits.  He feels some people are saying that some boats have been tied up to slips in the resulting years from 2000 to 2004 that were never licensed.  Thus, the license gave 24 boats.  Mr. Serkey stated it was for 30 which includes the gas dock.  Over the years it expanded & ended up w/ 40.  K. Ferreira clarified, that w/out a license, 40 boats could be tied up & the applicant is asking for ten more.

Present before the Board:	Richard Johnson, Abutter

Mr. Johnson feels the hearings started off w/ parking for 60 cars, now it is down to 40.  This summer there were parking issues on the street.  He feels the applicant uses the street at his own will for doing different things.  He displayed pictures of how, for example,  the street has been blocked, taking engines off boats in the street w/ diesel fuel fumes going into his home, & a red truck parked in the street for a week & a half.

Present before the Board:	Gerald Furlong, 30 Arnold St.

Mr. Furlong recalls the previous owners of the marina.  He stated since the new ownership, the marina has grown every year.  He feels evidence shows they are doing illegal activities & asked why this continues.  He discussed the distinct differences between a mooring & a slip.  He recommended the marina get back into compliance w/ the law & move from there.

Present before the Board:	Bob Mendoza, Abutter 

Mr. Mendoza explained if the additions of floats go off the way being proposed, it will be off the channel.  There is not much water there & there is no comparison between a mooring & a slip.

Present before the Board:	Peter Latoza, 26 Arnold St.

Mr. Latoza has grown up in this neighborhood.  He would like to see it written that the dock slips holds six boats.  He discussed location of slips & gas dock & he feels the use of the gas dock for docking of boats needs to be licensed, instead of calling it a slip.  He stated the slips that come off the dock is right in front of his property.  He has been trying to get the applicant to live w/in his license & no-one seems to be able to make sure the applicant is following the guidelines.  When the applicant was told to remove some docks, only a few were removed.

Mr. Mendoza stated a 30 ft. boat was parked there & filled his home up w/ smoke.  He doesn’t want to put up w/ it anymore.

Present before the Board:	Pat Johnson, 68 Lenord St.

Ms. Johnson feels the applicant should stay on his own property & not utilize Lenord St. as a work area or parking area.  The prior owners did not do this.  She feels the marina is getting too big for the area.

K.Ferreira feels this hearing will need to be continued to discuss everything that has been said.  Brief discussion ensued re:  a summary of what has been discussed thus far & how to proceed.

A woman approached the Board.  As she understands, all of the slips are by the State DEP license.  All of the moorings are by the Harbormaster.  She doesn’t feel the applicant can just arbitrarily swap one for the other because they are two different entities.  Moorings can be eliminated, but it isn’t guaranteed they can be turned into slips.  K.Ferreira concurred, but the applicant is asking to do this.

Mr. Latoza stated the original channel goes through the boat yard, so there is no way anything can come off the gas part outward & not block the original channel.  K. Ferreira stated the proposal is not going outward, but extending the long way.  Discussion ensued.

Mr. Serkey stated neither one of the extensions extend anywhere near as much as the 24 ft. float extension.  According to Army Corp. of Engineers & all of the water plans, there is no channel.  The channel ends at the bridge. 

MOTION:	J. Cronan moved to continue the public hearing for #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 to December 13, 2006.  D. McKinlay seconded.

VOTE:  Unanimous (5-0-0)

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

Present before the Board:	Attorney Jon Witten, Town Counsel
				Richard Heaton, H&H Associates
				Attorney Peter L. Freeman (Cornerstone Properties)
				Mr. Santoni
				Brian Hupp
				Charles Eisenberg, Financial Consultant
				Harry Stint???
				Steve Mason
				Jane Gleason, Architect
				Jim Regis
				Jason Ward

Attorney Freeman discussed prior issue w/ notification to abutters & as he understands the green abutter notification cards have been sent out & returned, & scheduling issues.

Attorney Freeman indicated that revised plans have been submitted which includes an abutting property on Main St. that was purchased.   This parcel adds an extra acre.  They are not planning to add four units on this property, but it will help improve the proposed site design.  He noted the package documents submitted, for example, the revised pro-forma, requirements for low income housing tax credit program, & purchase & sales agreement.  He noted a typing error on the purchase & sales agreement.

Attorney Freeman discussed the payment of the filing fee to the ZBA in the amount of $15,000 which they feel is a reasonable review fee as per 40B regulations.  He discussed attorneys fees & they have determined that it is not appropriate for the ZBA to require applicant’s to pay the ZBA’s counsel fees.  As in indication of good faith, they have submitted a check for $2,500.

Attorney Freeman expressed concern re:  meeting schedules & briefly discussed their request to tie into the Town’s sewer system.

K.Ferreira discussed the project eligibility letter.  There was one for the original project which incorporated all the 88 units into the one parcel (815 Main St.).  There has been a re-submittal of documentation to the State to include the new parcel (809 Main St.) along w/ re-design, pro-formas, etc.  He questioned if a second or revised eligibility letter is needed.  Attorney Freeman discussed that it would be typical to file an amendment & it will still be considered one 40B project.  K. Ferreira asked why they will be considered separate LLC’s.  Attorney Freeman explained that it is one project & this is the only way it can be done.  The reason for the LLC’s has to do w/ tax credits.  An amendment letter will be submitted.  K. Ferreira sees the adding of more land area to the project as a more positive thing.

K. Ferreira noted that the applicant is reserving their rights under the legal fee issue.  He asked what checks have been deposited.   Discussion ensued re:  checks submitted.  K. Ferreira stated that it was reasonable to believe when the check for $10,000 came in it was for legal fees.  Attorney Freeman stated there was a cover letter w/ the check submittal that explained what the money was to go to.  K. Ferreira stated the letter indicates that the $10,000 should be applied to site plan review fees which the ZBA calculates to be $19,350.  The $2,500 check should be applied towards legal fees.  K. Ferreira stated the ZBA have received estimates from Mr. Heaton & Hancock Associates relative to their fees which already exceed the amounts submitted.  He understands the time constraints for review of this project.  He feels the ZBA doesn’t want consultant’s working & not know how they will be paid.  He wants to know how this issue will be addressed so time is not wasted.  Attorney Freeman has seen the estimates from the consultants & feels these estimates go way beyond what is typically charged.  He understands the ZBA’s concern re:  fees for consultant’s.  He suggested conditionally agreeing to make a payment of an additional amount in lieu of an accelerated meeting schedule.  Discussion ensued re:  meeting schedules, & holding meetings for this application on off-week meeting nights.

Attorney Witten stated the ZBA can agree to work in good faith w/ the applicant, but the fees are required to be paid.  The ZBA cannot engage the Town’s engineer (Mr. Heaton) w/out having the money in the bank, thus, the ZBA cannot commit contractually to Mr. Heaton or the Town’s engineer if the money is not in the bank.  It is not a matter for discussion.  The fees are required & must be paid.  If they are not paid, the hearing cannot continue because the ZBA cannot contract w/ the consultants.  He stated this is a separate issue from the legal fees matter.  If the legal fees are not paid by the applicant they will have to be paid for by the Town.  Discussion ensued.  Attorney Freeman stated the applicant has in no way indicated they wouldn’t pay reasonable review fees.  He feels the consultants haven’t even looked at the plans before submitting quotes for fees which is one reason he finds the estimates are unreasonable.  He feels it would be a mistake on the ZBA’s part if the hearing was closed & they refused to continue the hearing due to the fee issue.  K. Ferreira stated those who are giving the contracts for the work (on behalf of the Town) didn’t have to look at the plans.  The estimate fees were established under the ZBA’s rules & regulations back in 2/06.  These were based on a review of what other towns are charging.  The numbers that were arrived at were not just pulled out of a hat.  The initial escrow deposit shall be $5,000 per permit plus $250.00 for each unit between one & fifty plus $50.00 for every unit over 50.  This comes out to the $19,350.  Attorney Freeman stated they will pay the fees to continue on w/ an expeditious meeting schedule.

Discussion ensued re:  meeting schedules, holding meetings for this application on off-week meeting nights, meeting on 11/15/06 & 11/29/06, & potential conflicts for those involved.  Discussion ensued re:  a meeting place & which members of the ZBA will be sitting in on the hearing.

Attorney Witten addressed the issue of the project eligibility letter.  The issue is whether the Board of Selectmen gets to comment on the addition of the new parcel, daycare center, & reconfigurations.  He stated that the ZBA can put the applicant on notice that they don’t have a project eligibility letter on file for the second piece.  He feels there may be a potential defect, but can be cured under the regulations which the applicant will pursue.  The other issue is the daycare center.  He asked if the daycare center will be limited to the occupants of the proposed development.  Attorney Freeman stated no, it will not be limited to the occupants of the development & briefly noted the property lines.  Attorney Witten feels the ZBA does not have the power to create new lot lines or create sub-divisions.  The Planning Board does.  Attorney Freeman discussed this issue & is willing to work w/ Attorney Witten on this matter.  K. Ferreira asked if the daycare center is not part of the project, will be taken out & run separately, how will the ZBA be able to act as the Planning Board under 40B & sign the plan that was creating parcel C.  It may not be a legal lot & the Planning Board may need to address this.  Attorney Freeman will address this matter w/ Attorney Witten & the ZBA.  Another option would be to do it by not creating the separation & providing a lease document by metes & bounds to separate.  With regard to the eligibility letter, DHCD will be sending a copy to the Board of Selectmen asking for comment.  K.Ferreira stated that even though the ZBA will continue w/ the testimony & fact finding of the case, the ZBA is reserving its right that if this letter is not queued in 60 days, then time has been wasted.

M. Martin asked re:  the daycare center & asked how a commercial use fall into a 40B.  Attorney Freeman stated it is not considered a commercial use.  It is an allowed use.  The daycare portion is not part of the 40B discussion, but will be a separate entity for discussion.  K. Ferreira doesn’t feel the matter of the daycare center can be heard as part of the 40B application.  Discussion ensued.

Mr. Heaton introduced Mark Lauro from Hancock & Associates.  Mr. Lauro discussed the accelerated schedule & noted that he doesn’t have a set of plans.  Attorney Freeman will discuss this w/ their engineer because there are plans available to Mr. Lauro.  Brief discussion ensued re:  revised plans.

Present before the Board:	Attorney Daley, Attorney for Abutters

Attorney Daley stated this project has changed significantly from its initial submittal, for example,  the daycare center wasn’t a separate entity & drainage issues have changed.  He stated there wasn’t a lot of notice to the ZBA or abutters re:  revised plans.  He feels the plans do not include topography, details of drainage, etc.  Brief discussion ensued re:  the wastewater/sewer issue.  Selectman Eckstrom stated that the Selectmen are going to be drafting a letter relative to the applicant’s letter of requesting to tie into the Town’s sewer system.  Attorney Witten discussed the sewer matter & what the rules/regulations state.  K. Ferreira clarified that the ZBA would make a decision subject to Sewer Commissioners dealing w/ a consent order agreement.  Brief discussion ensued.  Attorney Witten stated the ZBA is not authorized to alter the consent order.  Brief discussion ensued re:  sewer connections. vs. sewer extensions & requirements of both.  Attorney Witten stated the ZBA can provide an opinion on this matter, but its opinion will not provide the connection or the extension; only the Sewer Commissioners can do this.  Discussion ensued re:  consent order.  Attorney Freeman stated whether it is a connection or extension, separate from the consent order, the ZBA under 40B has the authority to grant an extension.  Attorney Witten feels this is a moot point because it is under a consent order.  Attorney Freeman will need to review this because he doesn’t believe this is necessarily the case.  He has tried for months to get a copy of the consent decree from the Town.  Brief discussion ensued.

Audience members were asked for questions or comments.

Present before the Board:	 A woman

The woman asked if the daycare center is not part of the project, why is it mentioned several times in the application.  Attorney Freeman it was thought through discussions that a facility of this sort was a good idea.  This issue will be reviewed & discussed during the hearing process.  The woman noted again that the daycare center is mentioned throughout the application documentation.

The woman asked re:  the separate LLC’s.  She asked if the applicant will be seeking financing current, or will it be Phase I, Phase II, etc.   Attorney Freeman stated there will be no phasing; it will be done all together.  One can’t be done w/out the other.

K.Ferreira clarified that the next meeting will be 11/15/06 at 7:30 P.M. in the Town Hall auditorium.

MOTION:	J. Cronan moved to continue the public hearing for #36-06 – Cornerstone Properties of Wareham, Inc., 815 Main Street, c/o Peter L. Freeman, Attorney in Fact to November 15, 2006 at 7:30 P.M. in the Town Hall auditorium.  D. McKinlay seconded.

VOTE:  Unanimous (5-0-0)

IV.  		ADJOURNMENT

NOTE:	THERE WAS NO MOTION TO ADJOURN.

Attest:  _________________________
	Kenneth Ferreira,  Chairman

Date minutes approved:  _____________________
Date copy sent to Town Clerk:_____________________
Date copy sent to Wareham Free Library:  ____________________