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

Date of Meeting: 	May 9, 2007

I.	CALL MEETING TO ORDER

The meeting was called to order at 7:35 P.M.

II.	CALL MEETING TO ORDER

A.	Roll Call

Members Present:	Kenneth Ferreira, Chairman
Don McKinlay, Clerk
			Michelle Zollo
			Michael Martin
			Mary Scarsciotti
			David Sharkey
Member Absent:	Richard Secher

K. Ferreira explained the procedure for this meeting.

III.	PRELIMINARY BUSINESS

A.	Minutes to be approved:  10/11/06, 10/25/06, 11/8/06, 11/29/06, & 12/13/06.
(NOT HANDLED)

IV.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES

Present before the Board:	Daniel Lewis

Mr. Lewis stated he is seeking a site plan waiver for a Variance/Special Permit for an exterior deck for a five story miscellaneous use building at 205 Onset Ave.  The deck would be adjacent to one residential unit.  This building was demolished & rebuilt subject to a Variance/Special Permit issued in 2001.  It was tied up in a lawsuit for a couple of years.  The project is almost complete.  The building consists of eight residential condo units upstairs & two commercial retail units on the ground floor.  The applicants want to build a deck adjacent to the second floor rear unit.  It was inadvertently left off the plan drawings submitted at the time.  He submitted a plot plan to the Board.

K.Ferreira asked what the violation was.  Mr. Lewis stated because the deck was left off the drawing, the Building Inspector determined it would be subject to Article 13, extension of an existing, non-conforming use.  This will be taking the place of a deck that was part of the original building which was pretty much in the same place.

Mr. Lewis stated the third, fourth, & fifth units have decks & they face toward Onset Bay.  The second floor front has a deck facing Onset Ave.  The second floor rear is currently the only unit w/out a deck.  This deck would face the parking lot.  Discussion ensued.  Mr. Lewis noted that this would be the only deck in the rear.    He again discussed the location of the other decks.  He also noted that he doesn’t feel the applicant’s own the parking lot in the rear.  Brief discussion ensued re:  previous issue w/ parking for this project.  This unit has no deck.  There had been a deck there before the renovation.

M. Martin asked if Mr. Lewis is looking for a Variance.  Mr. Lewis stated according to the Building Inspector they need an extension of an existing non-conforming use because the old deck was part of the original building.  The applicants want to replace a longer deck, not a wider deck.  M. Martin suggested Mr. Lewis bring in the plan that shows the decks.  Mr. Lewis stated that the proposed deck will extend beyond the footprint of the building, but not beyond the property line. 

K. Ferreira suggested Mr. Lewis submit construction drawings & photos.  D. McKinlay doesn’t understand why there isn’t a plan that will show the deck(s).  Brief discussion ensued.

MOTION:	M. Martin moved to grant a plan waiver w/ standard conditions for 205 Onset Avenue.  D. McKinlay seconded.

VOTE:  Unanimous (5-0-0)

NOTE:	The meeting proceeded w/ item VI.  Continued Public Hearings – A.  #18-07 – 40 West Central Avenue – Christine M. Sweeney.

Present before the Board:	Christine M. Sweeney

D. McKinlay stated he contacted Rich Bowen at Kopelman & Paige, however, he has yet to respond.  Thus, the information the Board needs to make a judgment is not in hand.

Ms. Sweeney asked how to proceed.  D. McKinlay suggested continuing the hearing for two weeks to await the answer.

MOTION:	M. Zollo moved to continue the public hearing for #18-07 – 40 West Central Avenue – Christine M. Sweeney to June 13, 2007.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

B.	#14-07 – 86 Wareham Lakeshore Drive – Ms. Judy Yetman, c/o Judy Herron.

No-one was present to represent the application.  K. Ferreira noted that Mr. Gricus called him on this application informing him there was a money issue.  M. Martin recalled that this application was for an addition w/out obtaining the proper permit.  It is already built & was approx. 3 ft. off the line.  The Board concurred to wait & see if anyone representing the application arrives.

V.	PUBLIC HEARINGS

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

K. Ferreira stated the applicant has asked for a continuance to June 27, 2007.

D.McKinlay read a letter into the record from Ronald Busnengo relative to a request for a continuance of the hearing.

Brief discussion ensued re:  location of the property & its proposed use.

MOTION:	D. McKinlay moved to continue the public hearing for 2387 Cranberry Highway – Ms. Susan Knute, Monitor Realty Trust, c/o Ronald Busnengo to June 27, 2007 as requested by the applicant w/ the requirement of a time waiver be executed by the applicant & if said time waiver is not executed by the applicant & available at the Board’s next meeting, the Board will deny the application w/out prejudice.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)
              B.#19-07 – 36 Kingwood Street – Marcia Walsh

D.McKinlay read the public hearing notice into the record.  The Board of Health has no comments as records indicate municipal sewerage is available.

Present before the Board:	Marcia Walsh

Ms. Walsh was granted a permit on 3/30/07 to change the roof line of her house.  The roof originally was cracked.  Part of the request for the building permit included the farmer’s porch.  This was denied due to setback issues.  She is present to obtain a Variance to put a farmer’s porch on the front of her house.  The reason for doing so is to try to deal w/ water damage.  The water running off the roof comes into a basin in front of the house & an impervious surface.  She would like to divert the water away from the house due to extensive water damage in front of her house.  There is an existing porch going in, but all this area would be reconstructed to put in the farmer’s porch.

M.Scarsciotti asked if the stairs are above 4 ft. wide.  Ms. Walsh stated they are.  She noted the construction of the existing patio in the front which acts as a basin, thus, all the water coming off the roof & snow melt collects there which makes a dangerous situation.  She discussed mushrooms growing on the front of the house last spring due to water damage to the front as well as mold & mildew in the house.  She would like to mitigate this issue.

K.Ferreira asked what the Building Inspector said the required setback that was being violated.  M. Martin stated the setback is 20 ft., but Ms. Walsh has only 18 ft.  D. McKinlay stated this is not what the drawing shows.  Ms. Walsh submitted the plot plan.  Discussion ensued re:  setbacks that apply to this property & the area.  Ms. Walsh stated that when she purchased the house, on the mortgage plan, the 10 ft. layout doesn’t exist.  There is an existing structure w/ a patio in the front.  There was an existing porch w/ a roof over it.  Discussion ensued.

M. Martin feels the rainwater will come off the roof of the farmer’s porch, hit the impervious surface, & roll out back.  Ms. Walsh wants to do away w/ the impervious surface & put crushed stone there to help move the water.

K.Ferreira discussed the issue of 37 ft. to the edge of pavement & w/ a 40 ft. layout, typically, there is a sidewalk.  Ultimately, there would be excess of 20 ft.  He feels this is a Special Permit not a Variance.  He explained the difference between a Special Permit & a Variance as it would apply to this application.

Audience members had not questions or comments.

All proper abutters were notified per certified mail.

MOTION:	M. Zollo moved to close the public hearing for petition #19-07 – 36 Kingwood Street – Marcia Walsh.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved to grant a Special Permit for petition #19-07 -36 Kingwood Street – Marcia Walsh w/ the finding that the alteration does not intensify any existing non-conformity & the extension will not substantially be more detrimental to the neighborhood & further, the strict enforcement of the Zoning regulations in this case, were not serve any public good& would be a substantial hardship to the applicant.  M. Zollo seconded.

VOTE:  Unanimous (5-0-0)

           C.  #21-07 – 20 Spectacle Pond Road – Harry Holm

D.McKinlay read the public hearing notice into the record.  The Board of Health will require plans be submitted for an upgrade of the sewage disposal system conforming to State environmental code 310 CMR Title V:  15.00 & local rules & regulations if applicable.
Present before the Board:	Harry Holm

Mr. Holm would like to change his den into an office.  He explained discussions he had w/ the Building Inspector.  There will be no construction, no signage, etc.  He lives at this residence.  He will be changing the den into an office & he has no employees.  There will be no signage outside.  Brief discussion ensued re:  location of the septic & driveway.

Audience members had no questions or comments.

Mr. Holm clarified that he will have no signage & no alterations.

K.Ferreira read a letter into the record from Paul N. Russo indicating his support of this application.

MOTION:	M. Zollo moved to close the public hearing for petition #21-07 – 20 Spectacle Pond Road – Harry Holm.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Zollo moved & D. Sharkey seconded to grant a Special Permit for petition #21-07 – 20 Spectacle Pond Road – Harry Holm w/ the following conditions:

•	Other than sign allowed per the Bylaw there will be no external evidence of the business.

VOTE:  Unanimous (5-0-0)

D.	 #22-07 – 10 Savary Road – Donna Chaston

NOTE:	This hearing will be handled later in the agenda.

E.	#20-07 – Fees

D.McKinlay read the public hearing notice into the record.

M. Scarsciotti feels the advertisement suggests that the Board had held previous discussions & concluded that the fees read into the record were approved.  K. Ferreira discussed how the fees found in the advertisement came about.  M. Scarsciotti asked if amounts are published, does it limit this being the outside maximum.  K. Ferreira stated no.  Brief discussion ensued.

K.Ferreira stated M. Martin made some unsuccessful inquiries re:  what other towns charge.  He stated that New Bedford charges $400 for Variances/Special Permits & Dartmouth charges $250 for residential Variances/Special Permits $100 for the first Variance  & $100 for every Variance thereafter.  Dartmouth doubles the fee if there is a modification to the Variance due to an error.  He doesn’t know if the fee is needed for multi-unit housing due to the high number of 40B projects & the low amount of multi-family housing.

K.Ferreira stated that Mr. Gricus has relayed that he would like to see the fee increases so he can make an argument for more help in the office.  He doesn’t feel an increase in fees necessarily will get extra personnel in the office.  Discussion ensued.  D. McKinlay expressed concern re:  raising fees to amounts that create a hardship for residential applications.  Discussion ensued.

Discussion ensued re:  tying in the fee to the abutters notification work that needs to be done & time stamping the application.  Discussion ensued re:  how the notification to abutters process works.  Discussion ensued re:  notification of taxes owed by applicants.  K. Ferreira stated the Board hasn’t received these notifications in a while.

D.McKinlay feels that the costs of doing business need to be covered by the applicant, but he doesn’t want it to come to a point where the costs become abusive.  M. Zollo asked if there is anything to help those that can’t afford it.  K. Ferreira stated that the Board has never granted hardships on fees.

Discussion ensued re:  if an increase in commercial fees to $750.00 is reasonable.  The Board concurred to table this matter until further information is obtained.

MOTION:	D. McKinlay moved to continue public hearing #20-07 – Fees to May 23, 2007.  D. Sharkey seconded.

VOTE:  Unanimous (6-0-0)

VI.	CONTINUED HEARINGS

A.	#18-07 – 40 West Central Avenue – Christine M. Sweeney.  (DONE)
B.	#14-07 – 86 Wareham Lakeshore Drive – Ms. Judy Yetman, c/o Judy Herron (No-one present to represent application).

VII.  		NEW BUSINESS/DISCUSSION

A.  Amend rules & regulations re:  documentation required to comply w/ DCHD requirements on the counting of 40B units.

K. Ferreira stated that Attorney Witten was contacted to come up w/ language.  Attorney Witten will e-mail said language.  A public hearing is needed on this.  He doesn’t feel this has been advertised yet.

MOTION:	D. McKinlay moved the Board hold a public hearing to amend the 40B rules & regulations on June 13, 2007.  M. Zollo seconded.

VOTE:  Unanimous (6-0-0)

M.Scarsciotti asked if the Board should also consider rules relative to regular applications in order to refine them to incorporate the mailing lists, abutters notifications, & having everything together before they file an application.  

M.Martin stated he will call some other towns & ask that their zoning applications be sent to him.  M. Scarsciotti will obtain information as well.

MOTION:	D. McKinlay moved the Board hold a public hearing to amend the rules & regulations for the filing of Variances/Special Permits under Chapter 40A on June 13, 2007.  D. Sharkey seconded.

VOTE:  Unanimous (6-0-0)

B.	 #129-05 – 21 Sandwich Road – Request for review date.

K.Ferreira stated there is a request from Margaret Ishihara to review the daycare center.  D. McKinlay read letter dated 5/7/07 from Margaret Ishihara into the record.  Discussion ensued re:  notifying abutters.

The Board members concurred to review this matter on June 13, 2007.

C.	 #09-07 – 3251 Cranberry Highway – Request for refund.

Brief discussion ensued re:  what application this is for & what transpired at this hearing (no review was done).  K. Ferreira doesn’t think the ZBA has the right to draw the money back out of the general fund.  He noted that the fees for these applications go straight into the general fund.  The ZBA has a budget & there is not $2,700 to give back from this budget.  The ZBA would have to ask for a line item transfer back into the budget.  D. McKinlay feels this would require Town Meeting action.

NOTE:	The meeting proceeded w/ item V.  Public Hearings – E.  #22-07 – 10 Savary Road – Donna Chaston.

Present before the Board:	Donna Chaston

D.McKinlay read the public hearing notice into the record.

Ms. Chaston explained that she would like to put an in-law addition to her existing house for herself.  She would like her son & daughter in-law to rent the house as it is now.  Due to her health condition it is not a good idea for her to live alone & she couldn’t afford to live anywhere else.  Her parents built this home & where she grew up.  The neighbor’s are happy about it.  It will be a two-story addition w/ one bedroom upstairs.  

M. Martin noted that this project will be approx. 1,800 sq. ft.  Ms. Chaston noted it will be one big room.  She discussed the room she currently utilizes for photography.  M. Martin doesn’t feel this is an in-law apartment; it is a second dwelling.  Ms. Chaston again noted her health condition & that she is still active.

M.Scarsciotti asked what the attachment is to the dwelling.  Ms. Chaston stated it is the garage.  M. Scarsciotti asked what is on the second floor.  Ms. Chaston stated it used to be her grandfather’s apartment; it is a one room storage area now.  M. Scarsciotti stated the paperwork says there was a workshop.  Ms. Chaston stated this is in the garage downstairs. Ms. Chaston described where the addition will go.  It is an R-30 district.  K. Ferreira questioned if two-family dwellings are allowed in an R-30 district.  Brief discussion ensued.  K. Ferreira stated based on the Building Inspector’s denial letter, two-family dwellings are allowed.  M. Scarsciotti stated they are if there is 45,000 sq. ft. & 200 ft. frontage.  The applicant has the frontage, but not the sq. footage. 

K.Ferreira agrees w/ M. Martin that this application doesn’t seem like a request for an apartment.  The proposed addition is 1,800 sq. ft. & many homes in Town are only 1,200 sq. ft., have one story, & three bedrooms.  He can’t see this addition being a “mother in-law” apartment.  He can see it as a two-family w/ a Variance in area.

Ms. Chaston stated her parents purchased the last two pieces of land in the back.  D. Sharkey asked if the Board would allow the applicant to w/draw & re-present the application in a different way.  K. Ferreira stated when the ZBA handles in-law apartments, the apartments were usually tucked into the house in some fashion, generally over a garage.  They occupied approx. 500-600 sq. ft.  This application, at 1,800 sq. ft. is bigger than most condos.  On the other hand, in an R-30 district, the applicant is allowed a two-family house (duplex) if there is 45,000 sq. ft.  The applicant has almost 39,000, thus, is approx. 6,000 sq. ft. short.  There is plenty of frontage.  If the applicant can convince the Board to grant a Variance, it would have no attachments to it.  If it is an in-law apartment, the ZBA usually states that the apartment must be abandoned/discontinued upon sale of property.  He feels the amount of money the applicant will be spending on the addition, he can’t see her abandoning the use upon sale of the property.  Ms. Chaston can’t imagine moving.

Audience members were asked for questions or comments.

Present before the Board:	John Cronan, Charge Pond Road

Mr. Cronan asked re:  the size of the existing home.  Ms. Chaston stated a little over 2,000 sq. ft.  Brief discussion ensued re:  Variances for in-law apartments.  K. Ferreira noted the denial letter from the Building Inspector which indicates it is a two-family use & it is short the required 45,000 sq. ft., thus a Variance & a Special Permit under Article 3 use regulations & Article 6 density/dimensional.  

M. Martin doesn’t feel the ZBA will consider this as an in-law apartment.  It may have a chance to pass as a duplex.  He suggested Ms. Chaston retain legal counsel to help w/ preparing for a presentation for a duplex.  Ms. Chaston stated when she first inquired at Town Hall re:  this project, she was told it would be considered an in-law addition.  She had told the Building Inspector how big the addition would be & he told her it had to be put in as an in-law apartment.  M. Martin feels an issue is there isn’t a dimensional definition of what constitutes an in-law apartment.  Brief discussion ensued re:  definitions & regulations for in-law apartments in other towns.  M. Martin again suggested Ms. Chaston retain an attorney to help prepare for a presentation to meet the four part test.

Present before the Board:	A gentleman

The gentleman stated there is another duplex in the area.

K.Ferreira explained that the Board isn’t supposed to make the argument for the applicant.  The applicant is supposed to make the argument to the Board.  Lengthy discussion ensued re:  how the applicant should proceed & what the applicant needs to prove.

MOTION:	D. McKinlay moved to continue the public hearing for petition #22-07 – 10 Savary Road – Donna Chaston to May 23, 2007.  M. Martin seconded.

VOTE:  Unanimous (5-0-0)

NOTE:	The meeting proceeded w/ item VII.  New Business/Discussion – D.  #63-04 – 2890 Cranberry Highway – CAPX.

K. Ferreira noted a letter from Dennis & Patricia Pittsley into the record re:   their concern about the property next to Red Wing Estates Mobile Home Park that is being developed (old Kentucky Fried Chicken).  He doesn’t know how much jurisdiction the ZBA has w/ this matter.  He feels the Pittsley’s should be contacting Conservation.  M. Martin feels the ZBA has some culpability because the ZBA denied the request for extension.  D. McKinlay stated the Board directed the applicant to get started, not make a mess & leave it.  K. Ferreira stated if there is an erosion or sediment control issue, this if part of the Order of Conditions of the ConCom.  

M. Martin feels the Pittsley’s are asking for a privacy fence.  There will be a privacy fence as well as vegetation as one of the ZBA’s conditions.  He feels the Pittsley’s felt this would happen right away.  The ZBA didn’t give this assurance.  K. Ferreira cited another part of the letter relative to dust, etc.  He feels this is a construction issue & the ConCom should take care of it.  M. Scarsciotti feels the Building Inspector should be taking care of this.  K. Ferreira stated the applicant activated the Variance by bulldozing the buildings.  He will contact the Conservation Agent relative to this matter.  M. Martin stated the haybales & silt fence are in, but how well he doesn’t know.

NOTE:	M. Martin stated the information he has received re:  the hotel(s) on Cranberry Highway is that the applicant has been given a reconstruction permit on the other building, not on the units.  K. Ferreira stated that Mr. Gricus has notified him that these are going to be apartments, not hotels.  Mr. Gricus had questioned why there is a rebuild permit issued.  K. Ferreira explained to him that the rebuild permit is not for the units & that the ZBA had told the applicant to obtain a complete site plan.  Brief discussion ensued re:  a demolition permit.

The Board noted the letter submitted by Mr. Boloso.

E.  Champion Builder Project @ Fearing Hill Apartments

M.Scarsciotti asked what action was taken on extensive issues, such as leaking.  These issues were sent to the Board by Sandy Butler on 9/19/06.  K.Ferreira e-mailed G.A.F. Engineering, Inc. who told him they were looking into the situation.  He had received complaints from several individuals.  He will look into the matter further w/ Champion Builders or G.A.F. Engineering to see if the issues have been addressed.  He noted that Ms. Butler had expressed concern re:  the way the units had been constructed & water was draining down her driveway.  She is an abutter to the property.

F.	43D

M. Scarsciotti submitted information on 43D to the Board.  She has been invited to attend an informational meeting to discuss this.  The meeting will be held on 5/18/07.

K.Ferreira also attended a meeting on 43D previously.  He noted that SRPEDD is offering a free program w/ one of their consultants who would write a Bylaw for expedited local permitting which Ms. Whalley is behind & would effect the BDOD (Makepeace property).  He will continue to attend these meetings, but he questions the expedited local permitting issue.  Lengthy discussion ensued.

K.Ferreira doesn’t object to M. Scarsciotti attending this meeting, but he feels it is being pushed for Makepeace.  M. Martin concurred & discussed.  M. Scarsciotti questioned if this 43D is a 40B for commercial developers.  She asked what the ZBA members would like her to ask.  K. Ferreira would like to know, if adopted, what benefits will there be.  

K.Ferreira expressed concern re:  no-one in Town Hall directing applicant’s to the right place.  Brief discussion ensued.  K. Ferreira expressed concern re:  many applicant’s not coming before the ZBA w/ proper plans & he questioned how they passed through the Planning office to the ZBA.

VII.	ADJOURNMENT

MOTION:	A motion was made & seconded to adjourn.

VOTE:  Unanimous (6-0-0)

Attest:  _________________________
	Mary Scarsciotti, Clerk

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