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

Date of Meeting:  March 14, 2007

I.	CALL MEETING TO ORDER

The meeting was called to order at ________ P.M.

II.	CALL MEETING TO ORDER

A.	Roll Call

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

Member Absent:   	Richard Secher

III.	PRELIMINARY BUSINESS

A.	Minutes:  None
B.	#124-05 – Request for extension of time – Rebecca Ryder – 6 Alden Road.  (To be handled later in the agenda)

IV.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES
(NONE)

V.	PUBLIC HEARINGS:

NOTE:	The meeting proceeded w/ item F.  #04 – 25-B Barnes Street – Ralph Maturo – To renovate the dwelling & do a seasonal conversion.

The applicant has requested a continuance to 3/28/07.

MOTION:	M. Zollo moved to continue the public hearing for #04-25-B – Ralph Maturo to March 28, 2007.  J. Cronan seconded.

VOTE:  Unanimous (5-0-0)

A.	#07-07 – 124 Pinehurst Street – Ms. Joyce Lucier – c/o Keith Dmytryck

Present before the Board:	Keith Dmytryck

The public hearing notice was read into the record.

There is no comment from the Board of Health because municipal sewer is available.

Mr. Dmytryck discussed the proposal to raise the existing roof by 7 ft.  It is just a portion of the roof, not the whole roof.  Brief discussion ensued.

Brief discussion ensued re:  the Building Inspector’s letter.  Mr. Sharkey stated the Building Inspector feels this project will intensify an existing non-conformance & a Special Permit is needed before a building permit can be issued.

Mr. Dmytryck stated there is no expansion of the footprint.  A second floor will be added, but just a portion of the existing roof will be raised.  The project has gone before the ConCom & it applies w/ FEMA regulations relative to the additional work will not be greater than 50% of the structure as determined by G.A.F. Engineering, Inc.  The Building Inspector is satisfied that the structure doesn’t have to be raised up on pilings.

Audience members had no questions or comments.

All appropriate abutters have been notified.

Mr. Dmytryk displayed how only a portion of the roof will be raised on the plan.

MOTION:	D. McKinlay moved to close the public hearing for #07-07 – 124 Pinehurst Street – Ms. Joyce Lucier – c/o Keith Dmytryck.  J. Cronan seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved to grant a Special Permit for petition #07-07 – 124 Pinehurst Street – Ms. Joyce Lucier – c/o Keith Dmytryck in that the applicant conforms w/ the requirements of the zoning board, sec. 1335 & the proposed alteration will not intensify any non-conformity that will result in substantial increase of non-conformity nor is it detrimental to the neighborhood & said project conforms to the site plan submitted & the architectural plan dated 3/14/07.  J. Cronan seconded.
VOTE:  Unanimous (5-0-0)

B.	#08-07 – 10 Barnacle Road – Ms. Janice S. Lucchesi – c/o Charles L. Rowley

Present before the Board:	Charles Rowley, Charles L. Rowley & Associates
				Janice Lucchesi

The public hearing notice was read into the record.

The Board of Health has no comments as municipal sewer is available.

Mr. Rowley explained the proposal is to construct a 14x22 ft. garage.  He addressed the two issues noted in the Building Inspector’s denial letter.  One is the setback of the sideline & the second is the total lot coverage.  The Zoning Bylaw requires a 10 ft. setback to a lot line.  They are proposing a 2 ft. setback.  The Bylaw also requires that the maximum total lot coverage is 25%.  They are proposing that the garage & house together would consist of more square footage than allowed at 27%.

Mr. Rowley explained that this is a single car garage which is generally located close to the lot line, not dis-similar to other lots & garages in the area.

K.Ferreira clarified that the request is for a Variance on lot coverage & sideyard setback.  Mr. Rowley stated it meets the 20 ft. minimum setback on the street line.  Brief discussion ensued re:  the zoning requirement for the structure setback.  It is 10 ft.

Audience members were asked for questions or comments.

Present before the Board:	Tim Roberts

Mr. Roberts lives opposite of this property.  He has no objections to the project.

Present before the Board:	Mr. Lawton???

Mr. Lawton stated he is an abutter & he is for the project.

Present before the Board:	Mr. Megan

Mr. Megan stated he lives across the street.  Lately there has been a lot of adding on to properties which eliminates a lot of waterfront views.  The neighbor across the street built a large building across the street which eliminated his water view.  Now a neighbor next door that wants to build another structure 14x22 ft.  After this goes up, there will be no water view.  He objects to further water view obstruction & the loss of it which he doesn’t feel is fair.

K.Ferreira clarified that this is a garage.  The Variance being requested is to allow the garage to be placed closer to the sideline than is normally required by zoning.  He asked Mr. Megan if he had the same objection to the project wherever it was placed on the lot.  The applicant is allowed presently to put the garage in the center of the property.  They are asking to slide it over to one side.  They can build a garage if built in the center.  Mr. Megan feels a 14x22 structure is not small.  Mr. Rowley stated the Bylaw only allows a maximum height of 20 ft.   He discussed the elevations of the road & ground at this site.  He discussed what Mr. Megan would see of the garage w/ this proposal.  Discussion ensued re:  the proposed roof line.  

M.Martin spoke re:  driveway accessibility & location of the garage.  Discussion ensued.  Mr. Rowley stated most of the garages in this area are built right to the lot lines.  Mr. Martin asked what the hardship is.  Mr. Rowley discussed sideline setbacks requirements & small lot areas such as this area.

Brief discussion again ensued re:  the roofline on the garage & the property lines.  K. Ferreira asked if there would be an objection to having the garage 5 ft. off the lot line as the zoning was originally, thus, grandfathering in what the setback would have been for this lot had it been built approx. 2 years ago before Town Meeting.

Ms. Lucchesi discussed parking issues & no room on the street to park.  She feels it would make more sense to put the structure over as far as they can to the lot & it will keep the lot more open for water views.  K.Ferreira stated the existing structure is in the center of the lot which blocks views presently.  He discussed that personal views are not protectable under the Variance zoning Bylaws.

M.Martin feels for the applicant to prevail, they will have to address the issue of why a Variance should be approved.  The zoning ordinances apply to everyone equally.  There has to be more than “2 ft. meets the needs.”  The issuance of a Variance is a higher standard than that.  Ms. Lucchesi feels that she is being held to a higher standard vs. the whole rest of the neighborhood.  There are some houses that are 2 ft. from the street & 2 ft. from the sideline.  M. Martin stated the Town voted to require a 10 ft. setback for new structures.  Discussion ensued.  Mr. Rowley again stated that this structure would not be consistent w/ the Bylaw as written now, he believes the Bylaw is not appropriate for this section of Town where the lots are small & the applicant is not asking for any more than what other residents of the neighborhood have already.  Discussion continued.  D. McKinlay stated regardless of anything prior, the Bylaw at present is a 10 ft. setback.  K. Ferreira discussed what was looked at when the new Bylaw was proposed.  He feels they were looking at 30,000 sq. ft. lots & not so much 4,800 sq. ft. lots.  He understands that the proposal would be consistent as to what is there presently.  

D. McKinlay doesn’t feel the statutory conditions have been properly addressed in a way that the Board can vote on a Variance.  Discussion ensued.  

K. Ferreira feels that State cod requires 4 ft. from a lot line for a wood frame structure.  Brief discussion ensued.  Mr. Rowley stated that they would concede for 5 ft.

MOTION:	D. McKinlay moved to close the public hearing for #08-07 – 10 Barnacle Road – Ms. Janice S. Lucchesi – c/o Charles L. Rowley.  J. Cronan seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	J. Cronan moved & D. McKinlay seconded to grant a Variance w/ the following condition for the side setback for petition #08-07 – 10 Barnacle Road – Ms. Janice S. Lucchesi – c/o Charles L. Rowley.

NOTE:	Mr. Sharkey asked what the applicant would do when others come in w/ similar requests to the Board.  Discussion ensued.  D. McKinlay stated the Board have never looked at a decision setting a precedent & he doesn’t feel it should start now.

M.Martin doesn’t feel there is any rationale provided as to why this zoning change was made.  He is inclined to agree that the 10 ft. setback was not meant to be a blanket setback for all areas.  K. Ferreira feels this should be addressed when zoning Bylaws are reviewed again.

•	Side setback shall be 5 ft. to the greatest point of the roof overhang as viewed from looking down.

POLLED VOTE:	M. Martin – Yes
D.McKinlay – Yes
			M. Zollo – Abstained
			J. Cronan – Yes
			K.Ferreira – Yes

VOTE:  (4-0-1)
M. Zollo abstained

MOTION:	J. Cronan moved & D. McKinlay seconded to grant a Variance for the increased lot coverage from 25% to 27% & the following conditions for petition #08-07 – 10 Barnacle Road – Ms. Janice S. Lucchesi – c/o Charles L. Rowley.

•	Plot plan shall indicate the change of lot coverage & be provided to the Building Inspector at the time the Building Permit is applied for.
•	The garage shall not contain living space on the second floor nor utilities other than electrical.
•	Garage to be built to the plan provided as modified by the setback.

VOTE:  Unanimous (5-0-0)

C.	#09-07 – 3251 Cranberry Highway – Mr. Mark Blanchette & Mr. Robert Meisterman

Present before the Board:  Mr. Wilson, Attorney
			      Mark Blanchette
			      Robert Meisterman
			      Rich Evazinski, Atlantic Design

The public hearing notice was read into the record.

The Board of Health has no comment as municipal sewer is available.

There is a missing abutters card.  Brief discussion ensued.  K. Ferreira stated a re-certified list was done on 3/13/07 to correct a clerical error of omission so as an abutter could be added from the original abutters list certified on 3/1/07.  K. Ferreira asked if the abutters that were omitted from the list are present.  The abutters were present.  K. Ferreira discussed how the hearing can proceed because since these abutters have shown up, they waive their notice.  The abutter can ask for more time, but the notice issue goes away because they showed up.

K.Ferreira explained that the Board will be addressing a particular Variance problem.  If the applicant gets the Variance, they will go to the Planning Board for another public hearing in which the Planning Board will deliberate all the drainage issues, landscaping, issues, etc.  

Attorney Wilson stated there are issues relative to lot coverage & setbacks.  The site is in a Strip Commercial zone.  The proposal is a project which will be a mixed use commercial retail & residential structure (primarily residential).  They are seeking several Variances.  The project consists of a condominium complex & involves 40 townhouse style units which would be elevated to comply w/ flood plain regulations as well as 3,000 sq. ft. commercial retail space located on the ground floor.  Due to the nature of the structure, there would be room for 80 parking spaces on the ground floor which would serve the condo units.  The units are two bedroom units.

Attorney Wilson stated the site is devoted to commercial use (a used car dealership,antique store, & bait shop).  There is also an existing boat ramp w/ a marina facility  There are also fuel tanks.

Attorney Wilson stated the site will be accessed via a 24 ft. wide curb cut in the Cranberry Highway pavement.  Encircling the buildings there will be an additional 10 parking spaces located on the exterior to serve the retail portion of the project.  The drive will circle the building & access the existing boat ramp & marina facility.

Attorney Wilson stated under the existing plan, Variances would be requested.  One deals w/ density.  The Bylaw requires 5 acre minimum for multi-residential.  The second deals w/ lot coverage for impervious surface.  The present design incorporates the parking facilities & the paving in such a way that the maximum impervious surface is exceeded by approx. 10% at 75% lot coverage.  There are a few setback issues.  One is the present design incorporates a setback 38 ft. from the nearest residential use/residential abutting facility.  The Bylaw calls for 40 ft.    The other setback issue involves the buffer.  They are proposing a 40 ft. landscape buffer & a 20 ft. landscape buffer required from the side.  K. Ferreira stated presently, there is 33 ft. from corner of building to lot line.  Setback requires 20 ft., but there is supposed to be a landscape buffer, but there is a driveway there, thus no buffer.  Attorney Wilson is proposing a 6 ft. high fence w/ suitable planting coverage.  He discussed waiver of the landscape buffer in lieu of a 6 ft. fence at the Board’s discretion.  The Bylaw requires a 20 ft. wide buffer w/ a 5x6 planting screen.  With re:  to the setback to Cranberry Highway, they are proposing a 10 ft. setback from the buffer fence to the highway right of way in a 25 ft. setback to the highway.

K.Ferreira asked for an explanation as to how the applicant can substitute a fence for a 40 ft. buffer.  Mr. Evazinski explained the Bylaw requirement & substitution of a fence.  Discussion ensued.  Mr. Evazinski discussed dimensions & setbacks presently at the site & why the Variances would be required.  Discussion ensued re:  section 824.

K.Ferreira discussed concerns re:  driveways being close to residential property lines.  He clarified that the marina goes w/ the property.  He asked if the boat slips are intended to be conveyed to residential unit owners or will be they be rented.  Attorney Wilson stated the slips will be allocated to unit owners.   It is his understanding that there won’t be outsiders parking there & utilizing the slips.  Brief discussion ensued re:  amount of parking available.

M. Martin feels it would be helpful if Attorney Wilson prepared documentation explaining the Variances needed.  He feels what is presented presently is hard to follow.

Audience members were asked for questions or comments.

Present before the Board:	Ken Nelson, 4 Shanley Way

Mr. Nelson owns property on 4 Shanley Way & near the site in question across the railroad tracks.  He has researched section 820 of the Zoning Bylaw.  He asked if this facility be able to connect to sewer on the highway.  K. Ferreira discussed sewer related matters relative to areas that were already connected & allowances made for others on the line not connected.

Mr. Nelson spoke re:  section 824.6 relative to total number of units & recreation area required.  He feels that based on the plan submitted & the number of units proposed, there would need to be 20,000 sq. ft. of recreation area.  This would represent ¼ of the available area.  He feels there is a compromise being made by the applicant to justify squeezing this into a Strip Commercial zoning district.  This commercial space is less than 5% of the total _______space.  This is a small amount of commercial space in a large residential area space.  The architectural plan shows a four story level building which he explained.  Attorney Wilson stated they will be requesting a Variance for height & ridgeline.  K. Ferreira asked if they will meet the 40 ft. requirement.  Brief discussion ensued.

Mr. Nelson stated this is a $20 million residential project.   He doesn’t feel this materially contributes to the reason for having a CS district on the highway that is providing retail & service businesses along it.  He feels this proposal will need to take the boat slips to make the condos more economically attractive & force the closing of Maco’s Bait & Tackle.  He discussed how Maco’s has been a traditional landmark.  Removing the existing buildings would force the closing of five local businesses.  He requested the ZBA continue enforcing the zoning Bylaws.

Present before the Board:	Jim McDevin, 3252 Cranberry Highway

Mr. McDevin spoke re:  the boat slips.  He expressed concern re:  views being blocked w/ this development.  He expressed concern re:  setbacks.  He doesn’t feel there is a hardship to the applicant since they are going to develop something they don’t own.  He expressed concern re:  placing 80 cars in the flood zone.

K.Ferreira noted the list of Variances.  The issue is that the applicant needs to describe something unique about the property associated w/ topography which causes the hardship which may be financial.  He agrees that there is no substantial detriment to the public good.  He discussed the intent w/ strip commercial & issues w/ it.  The Town is trying to rezone the strip commercial areas into a general commercial areas.  He fails to see how the applicant could address all the conditions in 824 & meet them w/ any satisfaction.  There are many Variances being requested.  He feels the applicant is asking for 36 more units than would be allowed by the Bylaw.

M. Martin questioned if the units will be owner occupied.  He noted the table of use.  Discussion ensued re:  mixed use.

Attorney Wilson stated there are a number of factors relating to this location that he feels can be argued w/ respect to uniqueness as well as hardship.  The property is currently under purchase & sale.  It is in flood zone A which will require elevation of the residential portions of the buildings.  The area has beautiful views, but is also exposed to the elements that will increase maintenance costs.  He is willing to draft a memo of finding.  He asked if the applicant would consider dropping the number of units.  If the number of units was decreased, there would be more room for buffer zones, more screening, outside recreation, lot coverage would go down, etc.  He questioned if there has to be 40 residential units on 2 acres of land.  He feels this project is more dense than any 40B project they have reviewed.

M.Martin feels the issue of 5% retail & 95% residential needs to be discussed.  He doesn’t feel this is the intent of the apartment Bylaw.  D. McKinlay agreed.   D.McKinlay stated he doesn’t plan to vote on this hearing, although he will participate in the discussion.  He is an acquaintance of the owner of the property  His interpretation of the Bylaw says that it is the intent to combine residential w/ commercial use & this project is just too much.  It has to be a reasonable mix.

MOTION:	J. Cronan moved to continue the public hearing for petition #09-07 – 3251 Cranberry Highway – Mr. Mark Blanchette & Mr. Robert Meisterman to April 11, 2007.   M. Zollo seconded.

VOTE:  Unanimous (5-0-0)

D.	#10-07 – 2387 Cranberry Highway – Ms. Susan Knute, Monitor Realty Trust, c/o Ronald Busnengo

Present before the Board:	Ronald Busnengo

The public hearing notice was read into the record.

The Board of Health has required plans be submitted for an upgrade of the sewage disposal system conforming to the State environmental code 310CMR Title V:  15.000 local rules & regulations if applicable.

K.Ferreira explained that this is a request for a straight zoning use change vs. a dimensional change.

Mr. Busnengo stated his intent is to place a landscape supply place at 2387 Cranberry Highway.  He noted the materials he will supply.  M. Martin feels this will need a site plan review.  Brief discussion ensued re:  location of this site.  J. Cronan asked why a site plan review is needed to store mulch.  M. Martin feels there will be retail operation going on.  K. Ferreira stated this is a use Variance.  He feels it is more important to deal w/ use changes vs. dimensional minor change.  The applicant needs to make an argument that there is something specifically unique re:  the site that will create a hardship if the use is not allowed to change.  

M. Martin feels an engineer to be sought to help w/ a site plan review.  Mr. Busnengo discussed the portion of land the Board approved for Robertson’s.  They are not going to use it all & this portion of land was taken back.  He felt this was already approved & asked if he could move onto this portion of the site because they had already received a Special Permit.  M. Martin feels that the land approved by the Board can’t be utilized by anyone else but Robertson’s.  K. Ferreira agreed.  He stated Robertson’s project was designed up to the lease line.  If it changes, they need to modify the plan.  Discussion ensued.

Mr. Busnengo submitted a rough plan of what he plans to do at the site.  M. Martin again stated that Robertson’s needs to come in w/ a modification of the Special Permit.  D. McKinlay stated Robertson’s is in violation & it is not Mr. Busnengo’s issue.  Mr. Busnengo stated he doesn’t plant to utilize the open space.

K.Ferreira stated that this proposal is for retail use & there is an intent to stop retail uses in the Industrial District.  At last the last Town Meeting, it turned the use into no retail uses in the Industrial District.  If it was a working yard, the materials could be stored.

Audience members had no questions or comments.

All abutters were properly notified.

MOTION:	D. McKinlay moved to continue the public hearing for petition #10-07 – 2387 Cranberry Highway – Ms. Susan Knute, Monitor Realty Trust, c/o Ronald Busnengo to April 11, 2007.  M. Zollo seconded.

VOTE:  unanimous (5-0-0)

E.	#11-07 – 41 Lincoln Highway – John Robinson

Present before the Board:	John Robinson

The public hearing notice was read into the record.

The Board of Health has required plans be submitted for an upgrade of the sewage disposal system conforming to the State environmental code 310CMR Title V:  15.000 local rules & regulations if applicable.

M. Martin stated this is in the area of Briarwood Beach & sewer has just been installed.

All abutters have been properly notified.

Mr. Robinson discussed the proposal to add a second floor, raise the roof, & put in bedrooms.

K.Ferreira turned the meeting over to D. McKinlay because the plan submitted is a plan he did & the property was previously owned by a business partner of his.

Mr. Robinson stated the same floor plan will be followed as exists, just adding a second floor.  He discussed the overhang.  Discussion ensued re:  proposal.

Audience members had no questions or comments.

D. Sharkey sat in for K. Ferreira.

MOTION:	M. Martin moved to close the public hearing for petition #11-07 – 41 Lincoln Highway – John Robinson.  M. Zollo seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved & M. Zollo seconded to grant a Special Permit for petition #11-07 – 41 Lincoln Highway – John Robinson w/ the finding that the proposed addition will not increase the non-conformity along w/ what is existing w/ side setbacks & that the addition will not be a substantial detriment to the surrounding neighbors & the following condition:

•	All requirements made by relative boards & commissions be adhered to.
•	Constructed per plan submitted.
•	Tie into public sewer.

VOTE:  Unanimous (5-0-0)

F.	#04 – 25-B Barnes Street – Ralph Maturo – To renovate the dwelling & do a seasonal conversion.  (DONE)

NOTE:	The meeting continued w/ item III.  Preliminary Business – B.  #124-05 – Request for extension of time – Rebecca Ryder – 6 Alden Road.

K.Ferreira stated Ms. Ryder doesn’t need an extension of time.  This was an overturn of the Building Inspector’s decision.  This doesn’t expire.  He read the decision of the Board into the record.  It doesn’t need an extension of time.

NOTE:	Discussion ensued re:  remand for Camper’s Headquarters.  

K.Ferreira stated that at the last meeting, the Board was supposed to discuss a remand for Camper’s Headquarters.  There is a new Town Counsel, Ilana Quirk that will be handling this matter.  She has sent a letter stating she was told by Attorney Perry that the Board had granted a remand to client.  He stated this is false.  He noted what he told Town Counsel relative to the concerns of the Board on this application.  She stated that a discussion is needed by the Board to discuss if a remand will be allowed w/ conditions.

Discussion ensued re:  what needs to be done at the site. (***K.Ferreira asked for a motion, but none was made & discussion continued as to what the Board wants from this applicant)

Discussion ensued re:  the matter at Roby St. (John Lavalle).  K. Ferreira asked D. McKinlay to make sure Brenda has all documents together that the Attorney is looking for.

VI.	CONTINUED PUBLIC HEARINGS

A.	#02-07 – off of Alden Road – Lots 105, 106, 107 – James Franklin (NOT HANDLED)
B.	#04-07 – 25-B Barnes Street – Ralph Maturo – To renovate the dwelling & do a seasonal conversion.

NOTE:	The applicant has requested a continuance to 3/28/07.

VII.	NEW BUSINESS/DISCUSSION

A.	Correspondence from Attorney Paul N. Barbadoro (Baker, Braverman & Barbadoro, P.C.)

VIII.	CORRESPONDENCE

IX.	ADJOURNMENT

**THERE WAS NO MOTION TO ADJOURN

Attest:  _________________________
	Mary Scarsciotti

Date minutes approved:  _____________________
Date copy sent to Town Clerk:  ____________________