TOWN OF WAREHAM
ZONING BOARD OF APPEALS
MEMORIAL TOWN HALL
54 Marion Road
Wareham, MA 02571

ZONING BOARD OF APPEALS MEETING MINUTES

Date of Meeting:  October 10, 2007

Members Present:
Michael Martin, Vice Chairman
Mary Scarsciotti, Clerk
David Sharkey
Richard Secher (NOTE:  As of 10/2/07, by vote of the Board of Selectmen, Richard Secher was appointed as a full time member)
Ticia Weare, Associate Member
Wilma Engerman, Associate Member
John Cronan, BOS Liaison 

Members Absent:
K.Ferreira, Chairman

I.	CALL MEETING TO ORDER

M. Martin called the meeting to order.

II.	PRELIMINARY BUSINESS

A.	Minutes to be approved – 10/11/06, 10/25/06, 11/8/06, 11/29/06 12/13/06, 1/10/07, 2/14/07, 5/23/07, 5/23/07 – Executive Session, 6/13/07, 8/8/07,9/12/07, & 9/26/07.

MOTION:	M. Scarsciotti moved to approve the minutes as printed in the October 10, 2007 agenda.  D. Sharkey seconded.

VOTE:  Unanimous (6-0-0)

NOTE:	The meeting proceeded w/ item III.  Request for Plan Waivers or Other Administrative Issues.

A.	Mr. Madden/Goldstein Assoc., Inc.

Present before the Board:	Bill Madden, G.A.F. Engineering, Inc.
				Larry Goldstein, Owner of Wareham Plaza

M.Martin stated this will be an informal discussion.  Any matters that require a decision at a later date, the Board may state they don’t know the answer presently & any answers that are given this evening will be non-binding.

Mr. Goldstein spoke re:  the residential piece of a project to move forward.  For the last 6-8 months he has been looking at options as it relates to additional land.  He had originally been looking at a definitive subdivision plan.  He had received feedback re: concerns of roadways coming off Marion Rd. just west of the shopping center & making their way through the property of almost 50 acres & ending at Hathaway St.  He is looking at alternative options re:  how the property could be developed.

Mr. Goldstein noted Bylaws relative to CS zone where residential development is permitted by Special Permit.  He submitted information re:  a proposed 21-unit townhouse development.  He would like to authorize the engineers prepare a more formal design, but he felt the advice of the Board should be sought first to make sure his interpretation is the same as the Board’s as to what can be done at the site.  The proposed development is being based on the Bylaw that deals w/ 5+ dwelling units. 

M.Martin stated the zone in question is Strip Commercial.  The table being looked at is Residential Uses.  Mr. Madden indicated where the 5+ dwelling units is shown in the table which requires a Special Permit.  Mr. Martin stated there is a new zoning ordinance under SC.  Mr. Madden understands that any proposed residential use, under this Bylaw, will require a Special Permit.  Mr. Martin interprets the 5+ to mean one structure, five units (like an apartment).

T. Weare stated the information shows there will be one building that will house more than five units & the others look like three & two units.  Mr. Madden stated the square footage of the property is approx. 40 acres.  Mr. Goldstein stated this property abuts the shopping center, but is a separate parcel.

Brief discussion ensued re:  the definition being utilized.  M. Martin doesn’t know if there is a definition for townhouse or condominium.  T. Weare stated there is a separate definition for an apartment.  M. Madden stated there is a definition of dwelling unit in the Bylaws.  M. Martin read this definition into the record.  M. Scarsciotti stated there is a definition for condominium which she read into the record.

T.Weare asked if Mr. Goldstein will be retaining ownership of the land or will it be turned over to an association once completed.  Mr. Goldstein have not gone this far ahead yet w/ planning.  He is still looking at options.

M. Martin feels that apartments equates to rental.  He asked if the units would be rented.  Mr. Goldstein stated this is not his intent.  He is looking into “for sale” units.  He is present to get ideas from the Board so he can incorporate them into the plans he will ultimately submit to the Board.  M. Martin stated ownership would be a significant aspect of the decision making process.  Again, he feels apartment means rental & further, the 5+ is for apartment for the Special Permit.  T. Weare stated this could also be utilized for condos as well.  There are more than five units in one building in some condo complexes in Town.

M.Martin asked re:  the buildings that will have less than five units.  Mr. Madden stated this is a proposed layout.  He is looking for direction from the Board re:  moving forward.

T.Weare asked w/ all this land, why Mr. Goldstein is looking at it the way he is presently vs. a cluster development.  Mr. Madden stated the entire parcel is designated as having endangered species/habitat as cited from Natural Heritage Endangered Species Program.  He has taken this into consideration.  Natural Heritage likes to have 75% of land to be open space w/ a conservation restriction on it.  His idea is consolidate the development to a smaller area, maximize the conservation restriction on the remaining portion, & then put something together in a compact manner.

Mr. Madden clarified that the entire parcel is mapped as priority habitat.  He spoke re:  the MA Endangered Species Act.  Brief discussion ensued.

Brief discussion ensued re:  if there are density issues & density requirements.  M. Madden stated there is 40 acres of land available.  Brief discussion ensued re:  uplands & regulations relative to uplands & circles.

M.Scarsciotti asked how many units will be made affordable.  Mr. Madden stated this hasn’t been discussed at this point.  Brief discussion ensued.

T.Weare expressed concern re:  egress.  M. Martin feels at this time, Mr. Goldstein is looking as to if this is a Special Permit.  He feels issues such as egress will cross the boundary of maintaining a hearing process, which this is not.

The majority of the Board concurred to entertain this project as Strip Commercial w/  5+ dwelling units in a structure.  M. Martin is concerned re:  other buildings w/ configurations of three or two units.  He feels the definition is very specific citing 5+ units in a new structure.  Discussion ensued.  Mr. Madden noted that there is a provision under a Special Permit for three units & above.

Mr. Madden stated there is a preliminary proposal to carve out a parcel of land that is suitable for this development to be constructed on which is something less than 30 acres.  They may only need ten acres to build the development.  He will need the Board to sign a Form A.  He would like to find a way to define the parcel into something less than 30 acres.  

D.Sharkey understood originally, the whole track of land was to be utilized, but now he is hearing they are not.  T. Weare feels Mr. Madden said that the proposal would be to put the buildings into a smaller grouping so to allow for the rest of the area to be open space.  Mr. Madden stated when they originally looked at the 40 acres, they were thinking of doing the subdivision from Marion Rd. to Beaver Creek.  They also discussed lot area that would be required.  The conclusion was there were concerns re:  a long winding road from Marion Rd. to the proposed building site.  T. Weare stated Mr. Madden said that a percentage of the 75% of land would be left as open space to meet conservation requirements.  Mr. Madden stated this is what MA Endangered Species Act requires.  This 75% can be accommodated by a multitude of different methods.  One is a Conservation Restriction for a large tract of land.  Another method is to provide a conservation easement on the individual lots.  T. Weare asked by making this a ten acre parcel, is the applicant relieved of this obligation because it will not be more than 30 acres.  Mr. Madden stated they will not be relieved of this obligation.  The only obligation will be for site plan review.

Brief discussion ensued re:  section 824.  T. Weare feels if Mr. Goldstein is going under the definition of 5+ units or more, then he may have to seek relief for each building that will be built, not the entire development.  Brief discussion ensued re:  this matter.

Mr. Madden stated this is not a sewer needs area.  T. Weare discussed what the regulation states re:  water.  Discussion ensued re:  how this area would be sewered.  Mr. Cronan asked re:  area available for sewer needs.  Mr. Madden stated there is suitable area on site that was successfully perked by the BOH & there is suitable area for a septic system.

Mr. Cronan noted the Westfield property relative to sewer & other pertaining issues.

B.	Carlton Place – Update on questions re:  fence. (To be handled later in the meeting)

III.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES

A.	Mr. Madden/ Goldstein Assoc., Inc. (DONE)

IV.	PUBLIC HEARINGS
(NONE)

V.	CONTINUED PUBLIC HEARINGS

A.	#13-08 – 20 Teakwood Avenue – James Luppino, Sr.

Present before the Board:	James Luppino, Sr.

M.Martin stated he will sit as Chair for this hearing & the other five members will hear the case.

M.Martin asked for the additional information requested from Mr. Luppino.  Mr. Luppino submitted information/documentation to the Board.  M. Martin stated what Mr. Luppino has submitted is not what the Board asked for.  The Board had asked for photographs & an existing floor plan & what would be going in.  Mr. Luppino noted he submitted the architectural drawing which shows the porch added on & the picture shows the old & new.

M.Martin stated the information needed was what was the existing condition re:  the location of the sidewalk.  Mr. Luppino stated all he had to go on was that there was 6 ft. on the stairs (old) & 3 ft. on the walkway.  There is no picture.  Since there has been construction, there is nothing to go by.  T. Weare stated the frontage counts as part of the porch.  If there are a set of stairs there, this is not counted.  The frontage is counted to the building.  When stairs are put in, it doesn’t affect the frontage, but when a porch goes in, this does count.    

T. Weare stated the Board needs to know how Mr. Luppino is justifying the frontage shrinking because of the porch.  Mr. Luppino went through the neighborhood & there are three existing homes w/in the past two years,  that are closer w/ double porches (porch above a porch).  They have been built recently.  M. Martin feels the slab that sticks out 6 ft. counts.  T. Weare disagreed.

Mr. Luppino explained at the first meeting, he was asked if there were to be stairs in front of the porch existing further, & he stated “no” because the stairs were inlaid.  He stated M. Martin stated at that time it would be another issues.

M. Martin stated there are stairs there presently.  If the stairs don’t count, how can it be justified as an extension & bring out the front porch.  T. Weare stated you can’t.  Mr. Cronan asked how much land is involved.  M. Martin stated this is not known because Mr. Luppino didn’t supply pictures.  Discussion ensued.

M.Martin stated being able to establish existing conditions allows for a Special Permit.  Without being able to establish existing conditions, the Board will have to address it as a Variance.

Mr. Luppino stated the architect who did the drawings took all the measurements as to what is exists.

W. Engerman stated what was discussed at the last meeting.  He asked if the stairs coming out will be less than 14 ft. from the road.  Mr. Luppino is asking for 6 ft. for the deck.

T.Weare expressed confusion as to why the pictures are even important if the Board is saying the landing is o.k.  By determining the landing is 6 ft., then the Board is already stating that the frontage is already 14.4 ft.  M. Martin stated at the last meeting, this needed to be established.  T. Weare asked if a photograph will establish this.  D. Sharkey concurred to have the photographs.  M. Martin stated the purpose of establishing it is whether or not it will be a Special Permit or a Variance.  The drawing doesn’t show the existing conditions.  Nothing has been placed in evidence to establish existing conditions.

T.Weare asked if Mr. Luppino were to establish this evening that he has a 6 ft. landing then it would be a Special Permit re:  non-conformance.  She doesn’t feel it would be a Variance because he is already at 14.4 ft.  M. Martin again explained that if Mr. Luppino can establish that there was an existing 6 ft., then there would be an existing non-conformity.  Without being able to establish that, the Board doesn’t know what the existing non-conformity is.
Mr. Luppino doesn’t know why it is not on what he has submitted.  He stated that Braman & Associates did a lot of the work as well as the architect.  D. Sharkey feels both Braman & Associates & the architect should understand this problem.  He doesn’t understand why either one isn’t helping Mr. Luppino. 

Mr. Cronan asked how many stairs are on the front of the house presently.  Mr. Luppino stated _____________.  T. Weare stated the landing sticks out 6 ft. & the steps create additional footage.  Mr. Cronan expressed concern re:  issues in the past w/ landings & stairs.  He feels this matter is a Special Permit issue.  Even if there is a 3 ft. landing w/ two stairs, Mr. Luppino is at 5 ft. from the start.  He is not increasing anything out of the norm.  T. Weare stated the cement slab in the middle of the house vs. a porch that goes the entire length of the house. Discussion ensued.

Discussion ensued re:  the Building Inspector having the right to take care of minor issues vs. sending it to the Board.

M.Martin stated that two dwelling units on a single lot is a non-conformity.  He had asked Mr. Luppino if he would consider abandoning the in-law apartment.  M. Scarsciotti stated it is pre-existing.  M. Martin stated the purpose of zoning is to extinguish non-conformity.  

Audience members were asked for questions or comments.

Mr. Cronan stated he would like to speak in favor of granting a Special Permit for the 6 ft. farmer’s porch in front of this property. 

Mr. Luppino spoke re:  the in-law apartment.  He doesn’t want to do this.  His mother-in-law does come & use it.  He doesn’t intend to rent it.  R. Secher asked that this be part of the motion.  He asked if a plan will be required.  M. Martin stated the Board will require an as-built plan to be submitted to the Building Inspector.  He suggested Mr. Luppino check w/ the Building Inspector re:  his determination that the stairs don’t count.

MOTION:	R. Secher moved to close the public hearing for petition #13-08 – 20 Teakwood Avenue – James Luppino, Sr.  M. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Scarsciotti moved & T. Weare seconded to approve the application of petition #13-08 – 20 Teakwood Avenue – James Luppino, Sr. based on adequate information was provided to support the position that there was 6 ft. of structure in front of the house & that there is no derogation to the Zoning Bylaw w/ the following conditions:

•	Constructed per plan submitted.
•	The porch will be 6 ft. from the front of the house & will not extend more than 14.4 ft. from the front lot line, including stairs.
•	The stairs will be in-laid.  
•	An as-built must be submitted to the Building Inspector, including stairs prior to issuance of an occupancy permit.

Brief discussion ensued re:  including the in-law apartment issue w/in the conditions.

•	The in-law apartment must be discontinued upon property transfer.

ROLL CALL VOTE:	W. Engerman – Yes
				T. Weare – Yes
				D. Sharkey – Yes
				M. Scarsciotti – Yes
				R. Secher - Yes

VOTE:  Unanimous (5-0-0)

NOTE:	The meeting proceeded w/ item II.  Preliminary Business – B.  Carlton Place – Update on questions re:  fence.

M. Scarsciotti read letter from Carlton Place, 7 Carlton St., LLC dated 8/21/00 addressed to K. Ferreira, Chair of ZBA into the record.  The letter in short states that they have reimbursed Mrs. Mann for the fence running along the northern side property line & they are aware that they are still responsible to provide similar fencing along the easterly rear property line which will be installed in accordance w/ the project schedule when the final stage of remaining items will be done.  It is anticipated that these items will be completed by 10/15/07.

M.Scarsciotti feels the Board should follow up w/ Carlton Place to see if the remaining fence was installed since Monday is 10/15/07.

Mr. Cronan spoke re:  the issue facing Carlton Place relative to the flood plain & Inspectional Services.  He suggested that the Board bring Carlton Place forward to discuss some of the discrepancies & deficiencies.  

Brief discussion ensued re:  letter submitted from the Flood Hazard Management Program relative to deficiencies w/ 21 properties w/ several listing Carlton Place lots & Nicholas Dr. lots.

M.Martin feels unless there is something specific to the 40B permit for Carlton Place, it belongs w/ Inspectional Services.  Mr. Cronan & M. Scarsciotti disagreed.  Mr. Cronan discussed issuance of a Comprehensive Permit.  

Mr. Cronan explained that the 21 properties on the list from the letter that was read, are going to be notified by the BOS, or the ZBA, or Inspectional Services.  One or all three will take the issue up & be brought to task on this issue.  M. Martin doesn’t know what the basis of the letter is at the present.  He feels to bring Carlton Place before the Board, there needs to be something specific related to the Comprehensive Permit in which the Board has jurisdiction over.  He feels because the letter crosses beyond the 40B project, it is beyond the Board’s scope of jurisdiction.  The initiation of this matter should come from Inspectional Services, Conservation, etc.

Mr. Cronan feels the Inspections Dept. will be brought to task due to issues w/ elevations, setbacks, etc.  He doesn’t feel the Town’s two inspectors have done their job.  These types of issues are happening all over Town, not w/ just this development.  There have been serious engineering deficiencies made re:  Carlton Place which should have been caught by inspection officials.  

M.Scarsciotti stated the Board had a 40B applicant who presented engineering drawings that were reviewed, confirmed, & approved.  There has been a failure to meet the plans submitted in the 40B application.  M. Martin feels it was established that the Building Inspector has the enforcement of inspections over 40B projects.  Mr. Cronan stated that the Inspections Officer has stated he is not responsible.  D. Sharkey stated relative to Carlton Place, from the beginning, the critical issue was it was in a flood plain.

Mr. Cronan stated the Board at the time, conditioned Carlton Place.  He feels these conditions were proper.  The BOS at the time, changed the Board’s conditions due to financial reasons & sue agreements.  The BOS at the time, in order to get a sewer charge, took away the _________________.  He discussed what transpired when the BOS changed the conditions (12 amendments were made to the 30 conditions) re:  Carlton Place.

Mr. Cronan discussed what transpired w/ Nicholas Dr.  The BOS negated conditions as well for sewer issues.  Brief discussion ensued re:  the Board working diligently on these two 40B projects & money that was supposed to be contributed by the developers to the Town.

B.	#20-07 – Fee Increases (Public Hearing opened on 5/9/07).

NOTE:	To be handled later in the meeting.

VI.	NEW BUSINESS/DISCUSSION

A.	3120 Cranberry Highway – Camper’s Headquarters – Engineering review fee received/pending consulting engineer’s comments re:  plans. (NOT HANDLED)

B.	South Shore Housing Issue.

M.Scarsciotti stated the Board has been dealing w/ an issue where a house was sold at a market rate out of a 40B project.  93A letters have been written to the developer & the attorney who represents the buyer of the property.  The 30 day clock commenced Sept. 28, 2007.

M.Scarsciotti stated South Shore Housing was involved in the sale of the property.  South Shore Housing was supposed to protect the Town’s interest in the affordability of the properties.  They came to the Community Preservation Commission & requested $100,000 to help support a program called the American Dream Down Payment Program.  They suggested it would result in the possibly 100 affordable units.  Realistically, they came down to five units.  This request was approved by the CPC to be presented at Town Meeting.  The Housing Partnership was never informed of this request nor were they never asked to attend meeting when South Shore Housing was discussing this w/ CPC.

M.Scarsciotti looked at a website relative to South Shore Housing (SSH) participation in this American Dream Program.  Based on the DHCD website, SSH is not listed as a contact agency.  On the South Shore Housing website, they list communities that participate.  She spoke to community representatives & there are no SHI units under this program in any of the communities.  None of these communities have contributed monies to this program.  She stated that DHCD confirmed, in writing the program was not a qualifying subsidy.  Brief discussion ensued re:  why SSH is deeming it affordable, but the Town will not actually get any affordable units. 

M.Martin doesn’t feel any of these issues at this point have anything to do w/ zoning.  M. Scarsciotti disagreed.  She stated the relationship between the Zoning Board who is in a legal action w/ South Shore Housing has made a statement to the CPC that the Board would prefer they didn’t approve giving South Shore Housing $100,000 while the Board is trying sue them.  M. Martin feels the powers of the ordinance are clearly outlined in Chapter 40A.  M. Scarsciotti stated this has to do w/ the Board needing to be informed of this matter.

T.Weare stated a deed restriction wasn’t maintained.  One matter that could be conditioned w/ the CPC funds is to make the down payment assistance go w/ the deed.  Mr. Cronan expressed frustration that the Town paid South Shore Housing to manage & supervise this 40B & South Shore Housing now wanting the Town to put up money.

VII.	ADJOURNMENT

MOTION:	R. Secher moved to enter into Executive Session for the purpose of discussing on-going litigation.  M. Scarsciotti seconded.

ROLL CALL VOTE:	R. Secher – Yes
				D.Sharkey – Yes
				M. Scarsciotti – Yes
				M. Martin – Yes
				T. Weare – Yes

VOTE:  Unanimous (5-0-0)

NOTE:	The Board came back into Open Session after the Executive Session meeting.

NOTE:	The Board proceeded to discuss fee increases.

The Board proceeded to review & discuss the proposed fee increases for residential & commercial.  M. Martin briefly noted fees from various other towns.

MOTION:	M. Scarsciotti moved to adopt the fee schedule as published in the notice of public hearing dated April 26, 2007 & May 3, 2007, petition #20-07.  T. Weare seconded.

VOTE:  Unanimous (6-0-0)

VIII.	ADJOURNMENT

MOTION:	M. Scarsciotti moved to adjourn the meeting.  D. Sharkey seconded.

VOTE:  Unanimous (6-0-0)

Attest:  _________________________
	Mary Scarsciotti, Clerk

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