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:  November 14, 2007

Members Present:
Ken Ferreira, Chairman (Arrived at 8:30 P.M.)
Michael Martin, Vice Chairman
Mary Scarsciotti, Clerk
David Sharkey
Ticia Weare, Associate Member 
Wilma Engerman, Associate Member
Brenda Eckstrom, BOS Liaison (Arrived at 8:15 P.M.)

Member Absent:
Richard Secher 

I.	CALL MEETING TO ORDER

M. Martin called the meeting to order.

II.	PRELIMINARY BUSINESS

A.	Minutes to be approved – October 24, 2007

The Board concurred to table this item to later in the agenda.

MOTION:	M. Scarsciotti moved to table the minutes of October 24, 2007.  D. Sharkey seconded.

VOTE:  Unanimous (4-0-0)

B.	Discussion – “Local Initiative” – Brenda Eckstrom, BOS Chair

The Board concurred to hold this discussion later in the agenda.

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

IV.	PUBLIC HEARINGS

A.	#15-08 – 17 Sunset Boulevard – Anna Ulm
      David Ulm
Present before the Board:	David Ulm
				Anna Ulm

The public hearing notice was read into the record.

M. Martin read the denial letter from the Building Inspector into the record.

M. Martin explained the procedure that will be followed for this hearing & the three part criteria that needs to be met for a small lot exemption.

Mr. Ulm stated his parents purchased this lot in 1969 & it was a buildable lot.  He then found out later that the lot was supposed to be held in common ownership.  He asked how this can be.  M. Scarsciotti asked if Mr. Ulm owns any properties next to this lot.  Mr. Ulm stated “no”.  M. Martin asked if Mr. Ulm owns the one behind the lot.  Mr. Ulm replied “no”.

Present before the Board:	Karen Wamsky

Mr. Wamsky stated she owns the property behind the lot & she has no relationship to Mr. Ulm.  

M. Martin stated through the Building Inspector’s review, it has been determined that this lot was held in common, contiguous ownership w/ abutting properties somewhere along the line.

Ms. Ulm submitted a letter from a lawyer that researched the lot.

Present before the Board:	Chris _________, 15 Sunset Blvd.

Mr. _________ stated ________________________________________???

M. Martin stated the letter Ms. Ulm presented is dated August 21, 2001.  He read said letter into the record from Attorney Peter A. Bello referencing 17 Sunset Blvd., Lot 379.

M. Martin stated the Building Inspector has had the letter from the attorney since 2001 & the Building Inspector has again denied the applicant’s request.  Ms. Ulm stated taxes have been paid on this property since 1969.  A gentleman stated it has been taxed as a non-buildable lot.  He noted the change in zoning & requirements.  M. Martin stated this is a Board of Health requirement the gentleman is speaking of.  He stated that the requirement is to meet 100 ft. from an adjacent well.  Again, the Building Inspector has denied the proposed project based on the third part of the three part test dealing w/ the lot being held in common & contiguous ownership.  The letter submitted by the applicant’s attorney was dated six years ago to the Building Inspector who is the same inspector as today.  The Building Inspector has again denied the request.  The reason the Building Inspector has denied the application is because in review of his records, they indicate the lot was held in common & contiguous ownership.  This means that the lots at one time were owned by the same person (lot to the left, right, & lot behind).  The burden of proving this otherwise is on the applicant through the review of deeds & presentation of evidence.  He doesn’t view the letter from the attorney as sufficient.  Ms. Ulm stated the attorney indicates in the letter that research was done.  M. Martin stated that the applicant needs to meet the burden of the third part of the test.  Mr. Ulm asked how he can do this.  M. Martin stated that evidence needs to be provided.  In short, he feels the Building Inspector suspects the applicant’s attorney is incorrect.

Ms. Ulm asked if this information would be on her deed.  T. Weare stated it could have been contiguous ownership prior to the applicant’s deed.  Brief discussion ensued.

Mr. Ulm stated when he spoke to the Building Inspector, it was stated that there were two abutting lots.  One of the lots is his neighbor’s & the other lot is the park. The only person who has abutted this property is the neighbor.

Discussion ensued re:  if the neighbor sold the applicant land.  M. Martin explained when zoning changes, the owner of the lot of record has certain protections that are established for a single-family or a two-family dwelling unit.  These protections are covered under MA General Law, c. 401, s. 6.  This establishes the three part test.  Meeting the three part test protects the applicant’s rights.  The Building Inspector has stated that the applicant’s evidence doesn’t meet the test.  He discussed the determinations the Board must make.

M. Martin discussed the Merger Doctrine.  T. Weare doesn’t feel the applicant understands what common, contiguous ownership means.  She thinks the applicant feels common, contiguous ownership only applies to them owning the lot & another piece of property.

Present before the Board:	Charles Rowley, Charles Rowley & Associates

Mr. Rowley discussed zoning changes made in 1971 & grandfathered protection of properties after this change.  Selectman Eckstrom discussed issues w/ lots in the Shangri-la area held in common ownership by the developer of the subdivision.  M. Scarsciotti stated this was true until the person who purchased the property paid it off.  This is the common ownership issue that the Building Inspector has.  Brief discussion ensued.

M. Scarsciotti stated that the applicant purchased the property in 1965 & a deed was dated in 1965, but the actual physical ownership of the lot wasn’t given until the property was paid off.  The lot is 6,500 sq. ft.  M. Martin discussed what the Town used to do when subdivision plans were submitted & what was required.  M. Scarsciotti stated that an old lot number may have changed.

M. Martin discussed what the zoning table was for an R-130 district back when this lot was purchased.  Brief discussion ensued re:  when the applicant took ownership of the lot.

T.Weare asked re:  the applicant’s taxes.  The lot has been taxed as a non-buildable lot.  She asked why this wasn’t brought up when the applicant wanted to build on it.  Ms. Ulm wasn’t aware that it was being taxed as an un-buildable lot.  She just paid her taxes.  She stated the taxes fluctuated.  She felt it was a buildable lot especially after the lawyer did the research.  The lawyer found that it was a buildable lot, plus it was grandfathered.  She also has documentation from the Building Dept. that the lot was a small lot which was grandfathered.   She doesn’t understand why the Building Inspector doesn’t agree w/ the lawyer’s research.  Discussion ensued.

Mr. Ulm stated that they would like to sell the lot.  He understands that a buildable lot is worth more than an un-buildable lot.  They need to know what they can sell the property for.  Mr. Martin noted that the applicant has been receiving the benefit of paying a tax rate on a lot that is non-buildable & now the applicant wants to reap a financial gain.  Mr. Ulm stated they are not thinking that way.  They were unaware they were being taxed on an un-buildable lot.  Discussion ensued.

D.Sharkey explained what the process of this hearing is.  The Board is to determine what the issue is & the applicant is to offer facts to build a case as to why this lot is buildable.  The Board is then supposed to determine if the criteria that is established has been shown through the evidence.  He doesn’t feel the applicant has made a case.  The applicant was unaware of what they should have been doing.  He doesn’t know how the Board can make a determination until a case is made.  Mr. Ulm discussed the facts that he knows to date relative to the property.  D. Sharkey feels the applicant may need legal help w/ this issue.  Mr. Ulm stated they had retained legal counsel as indicated in the document submitted from 2001.  He doesn’t feel the Board wants to accept the document because it is from 2001.  D. Sharkey spoke re:  the Building Inspector’s role & how it is now up to the applicant to gather information, hire an attorney, etc. to refute the Building Inspector’s decision.

M. Scarsciotti feels everything that is in the packet answers all the questions.  The only question that remains is the issue re:  the Assessor.  She feels the lot being assessed as un-buildable is irrelevant.  She noted that in 2001 the attorney filled out the six questions requested by Inspectional Services.  The letter answers all the questions in the affirmative re:  the fact that the applicant owned the property prior to the zoning change & the applicant has never owned it contiguous w/ any other lot.  The only conflict is the way the lots in Shangri-la were sold.  The developer held them until the certificate was paid off.  The payment schedule attached for this lot shows that the original purchase was done in 1965 & it was paid off in March 1970 & the applicant received the deed.

Present before the Board:	Mr. _____________

Mr. __________acknowledged that the applicant has met criteria #1 & #2.  The third criteria can’t be met.  The applicant is the only person that abuts the lot????????????.  M. Martin explained that there are three lots abutting (lots 382,376, & 380) as well as the park.

Ms. Ulm submitted the tax bills for the Board’s review.  Discussion ensued re:  how to proceed.  

M. Martin asked if the applicant received a betterment from the Water Dept. in 1998.  Ms. Ulm doesn’t know.  Mr. Ulm stated the betterment for water was paid.  Ms. Ulm stated the tax department should have this information.

M. Martin stated it is not the Board’s responsibility to build the applicant’s case.  The Board is supposed to pass a ruling on the evidence provided.  It is the applicant’s responsibility to know what the taxes are.

M. Martin clarified that some outstanding issues need to be addressed. One is the tax issue, the second is whether there was a water betterment, & thirdly, clarification is needed from the Building Inspector as to why he thinks the applicant’s attorney is incorrect.  Mr. Ulm read the denial letter from the Building Inspector.  M. Martin clarified the information in the letter.  He suggested the applicant make an appointment w/ the Building Inspector, show him the information they have, & see if the Building Inspector will change his mind.  The Building Inspector denied the application after seeing the attorney letter.  M. Scarsciotti feels there is enough evidence to support the applicant’s conclusion.  D. Sharkey is looking for more information.  M. Martin stated that the applicant needs 4/5 approval of the Board.

T. Weare asked who was paying the taxes until the deed was put into the applicant’s name.  She asked if the applicant paid taxes while making payments or did the corporation pay the taxes.  M. Scarsciotti stated the corporation paid the taxes.  She noted the issue w/ these lots in Shangri-la.  T. Weare feels that the person paying the taxes was the person who owned it & they also owned the other lots at the same time.  M. Scarsciotti feels these lots were an exception w/ an unusual set of circumstances.

M. Martin asked Ms. Ulm if she would like to ask for a continuance, re-discuss this w/ the Building Inspector & obtain further information or would she like the public hearing to be closed now & have the Board render a decision.  Ms. Ulm would like a continuance.

Discussion ensued re:  when to continue this hearing.

Discussion ensued re:  further evidence that the applicant should look into obtaining.  M. Martin feels the applicant should review the tax records showing that this lot, at one time, was taxed as a buildable lot, determine if there is a water betterment on the property, & obtain a re-affirmation from the attorney on the opinion rendered in 2001.

Mr. Ulm again made the case that they were unaware of the lot being un-buildable & that she was paying taxes on an un-buildable lot.  M. Martin stated it does state this on the tax bills.

The Board concurred to continue the hearing to January 9, 2008.

MOTION:	A motion was made and seconded to continue the public hearing for petition #15-08 – 17 Sunset Boulevard – Anna Ulm to January 9, 2008.

VOTE:  Unanimous (5-0-0)

TAPE I, SIDE 1 ENDED. 

A.	#18-08 – 8 Everett Avenue – Stephen Meister, c/o Kenneth Michaels

TAPE 2 COMMENCED AT THIS POINT

Present before the Board:	Charles L. Rowley, Charles Rowley & Associates
				Kenneth Michaels

Mr. Rowley reviewed the plans & photographs w/ the Board.  He explained the existing dwelling & what the lot consists of.  The proposal is to add an addition.  A piece of the dwelling will be removed & extend the side of the building straight back.  The setback would be no less & no more than what is there presently.  It meets the setback on the opposite side.  Brief discussion ensued.

Mr. Rowley noted they have a determination (RDA) from the Conservation Commission which he submitted. There are no problems as far as the Board of Health is concerned.

Mr. Rowley stated the cost of the addition is less than 50% of the appraised value of the structure so it doesn’t have to comply w/ raising the structure to an elevation _________.  The project will raise the level of the addition up to the floor of the building that remains.

Mr. Rowley stated there will be no full basement.  T. Weare clarified that since the existing dwelling is below the 100 year, the addition will be raised to above the 100 ft.  Mr. Rowley stated this is not the case which he explained.  The elevation is at 12.  

M. Scarsciotti noted the Assessor’s records.

MOTION:	D. Sharkey moved to close the public hearing  for petition #18-08 – 8 Everett Avenue – Stephen Meister.  M. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

T. Weare would like clarification on how this project is not more non-conforming since more of the building will be non-conforming & how this is not important.  A substantial new addition is being built & there is no concern re:  the 100 year flood plain.  M. Martin stated relative to the non-conforming issue, Zoning Ordinance #1324 deals w/ this matter.  T. Weare stated as she understands now, the project will not increase the non-conformity unless it were to go so far back as to effect the conforming back of the structure.  M. Martin stated this project is not substantially detrimental to the character of the neighborhood.  Brief discussion ensued.

M. Martin addressed T. Weare’s comments re:  the 100 year flood plain.  He doesn’t feel this is a zoning issue.  T. Weare stated the living area that exists is below the 100 year mark.  The addition will be substantial.  K. Ferreira discussed the definition of substantial improvement in the zoning laws.  Lengthy discussion ensued.  T. Weare feels that the value is different than the cost.  The Assessor will be looking at the value.  Discussion continued.

MOTION:	T. Weare moved & M. Scarsciotti seconded to grant a Special Permit for petition #18-08 – 8 Everett Avenue – Stephen Meister, c/o Kenneth Michaels based on the finding that the application meets the conditions of 1324 in that there is no new existing non-conformity being created & there is not a substantial detriment to the character of the neighborhood.

VOTE:  Unanimous (5-0-0)

Mr. Michaels proceeded to sign the ZBA confirmation document.

Mr. Rowley asked that the decision be sent either to himself or Mr. Michaels.

NOTE:	The Board went back to item II.  Preliminary Business – A.  Minutes to be approved – 10/24/07.

MOTION:	D. Sharkey moved to approve the meeting minutes of October 24, 2007.  T. Weare seconded.

VOTE:  Unanimous (5-0-0)

NOTE:	The meeting proceeded w/ item VI.  New Business/Discussion.

A.	3120 Cranberry Highway – Campers Headquarters – Remand Hearing 

K.Ferreira stated that Campers Headquarters were supposed to file a new application for a remand hearing w/in 60 days.  He doesn’t feel they have completely filed it.  They sent in some plans, but didn’t submit a check for review w/ it.  Later on, they sent a check in for review.  Hancock & Associates needs to conduct the review, but there has been no application for a new hearing.  According to Town Counsel, a hearing can’t be held until a complete new application with fees is filed.  Town Counsel will be speaking to the applicant’s counsel.  Hancock Associates is still stating they don’t have proper documentation re:  stormwater management for a Zone 2 well protection area.

NOTE:	The meeting went back to item IV.  Public Hearings.

B.	#19-08 – 23 Commonwealth Avenue – John Thomas

The applicant has requested postponing the hearing to the Board’s next meeting.  The Board discussed how they want to proceed & what is on the agenda for the meetings in November & December.

K. Ferreira noted the proposed development on Tyler Ave.  It will be placed on an agenda, but he suggested no public comment should be taken at that time.  In January, public comment will be taken.  

MOTION:	M. Scarsciotti moved to continue the public hearing for petition #19-08 – 23 Commonwealth Avenue – John Thomas to December 12, 2007.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

V.	CONTINUED PUBLIC HEARINGS
(NONE)

VI.	NEW BUSINESS/DISCUSSION

A.	 3120 Cranberry Highway – Campers Headquarters – Remand Hearing (DONE)

B.	Meetings:  November 28, 2007 & December 12, 2007

Brief discussion ensued.

MOTION:	T. Weare moved to cancel the Board’s meeting scheduled for November 28, 2007.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

C.	Discussion.

Brief discussion ensued re:  the Mann case.

M. Scarsciotti stated that Attorney Devin’s appeal date has been changed re:  Cranberry Court.

M. Scarsciotti stated there is a new copy of the update to the Zoning Act available through DHCD online.  

M. Scarsciotti reported she attended the non-conforming uses & invested rights workshop w/ the Town Planner last week.   She also attended the Municipal Coalition for Affordable Housing meeting in Southboro on the 26th.  She noted what was discussed at this meeting relative to 40B.  Brief discussion ensued re:  the Board’s issues w/ 40B.

NOTE:	The meeting proceeded w/ item II.  Preliminary Business – B.  Discussion:  Local Initiative – Brenda Eckstrom, BOS Chair

Selectman Eckstrom stated next week, the Selectmen will commence a campaign for Homes for the Holidays.  The Selectmen will become aggressive looking at local initiatives for affordable housing.  Through research, she has found that only 14% of communities in MA have actually reached their quotas for affordable housing, 86% have not.  K. Ferreira noted the communities that have reached their quotas are mostly cities.

Selectman Eckstrom noted the Town’s current affordable housing numbers.

Selectman Eckstrom stated the Selectmen are looking for support in their initiative.  They will be working w/ groups, such as the Coalition to change or suspend 40B legislation, for example, changing the median income standards for the Town & getting mobile homes to be considered affordable housing.  

Brief discussion ensued re:  the mobile home issue.  T. Weare feels the reason this issue didn’t go through the first time was that the owners of the mobile homes got together & told their tenants that if they voted for it, they would raise the rents to the maximum allowed by law.  With mobile homes being considered affordable, there would have to be rent control or some sort of deed restriction.  K. Ferreira stated the argument made the first time was that there was no guarantee that a mobile home would remain affordable. Selectman Eckstrom stated that another proposal is to petition the legislature to obtain more home rule.

Selectman Eckstrom discussed some local initiatives, such as the Westfield property.  An article will be on the Spring Town Meeting Warrant w/ a proposal for the Westfield property.  She spoke re:  engaging Community Preservation more for affordable housing by utilizing deed restrictions.  Discussion ensued.

Selectman Eckstrom will also be proposing a subdivision of certain lots that were previously merged under common ownership for either selling or creating a larger property.  She discussed the restrictions the lots would need to have, for example, there must be sewer & water available, deed restrictions in perpetuity, & limiting the proposed dwelling to no more than two bedrooms.  K. Ferreira asked why the limitation of bedrooms.  Selectman Eckstrom stated there is concern re:  having huge influxes of children coming in.  T. Weare discussed problems w/ lotteries w/ three bedroom dwellings.  Discussion ensued.

Discussion ensued re:  proposal for lot sizes.  Selectman Eckstrom stated another proposed initiative is to disburse growth, for example, having one or two dwellings in a neighborhood vs. a 50-unit apartment complex.  Brief discussion ensued re:  setbacks & lot sizes.

Selectman Eckstrom stated she spoke to Attorney Witten & it was suggested this proposal be the Selectmen’s local initiative.  If a loophole is found, all the developers can’t come running in.  She noted that building permits would be taken a few at a time.  K. Ferreira discussed hardships in good developers obtaining financing.  Selectman Eckstrom feels this initiative is geared towards the smaller developer or the homeowner.

Selectman Eckstrom stated if the Selectmen concur w/ this proposed program & the ZBA could work with it, the issues could be addressed.  T. Weare discussed the smart growth principles, for example, put the affordables where the resources already are, put the affordables in more of a cluster vs. development here/there.  Discussion ensued.

D.Sharkey feels the whole concept can be sold w/ a built in provision that will de-bug it afterward so Town Meeting approval isn’t sought every time a hole is found.  The structure could be built in for correction.  

K.Ferreira suggested taking the neighborhood & using the neighborhood as a guideline.  T. Weare concurred.

Discussion ensued re:  sewerage & septic systems.

M. Martin, T. Weare, & M. Scarsciotti will be liaisons to this local initiative from the ZBA.

Selectman Eckstrom discussed the prospect of holding lotteries.

NOTE:	M. Scarsciotti spoke re:  South Shore Housing.  She spoke w/ Attorney Witten & there was a response.  South Shore Housing has admitted to obligations that were stated in the deed.  They claim that Wareham has no interest in interest.  They have alluded in the last paragraph an agreement to do something shortly.  Attorney Witten has stated that this matter can go to Superior Court or write another letter to South Shore Housing in response to their letter & the current owner of the 51 Avenue A property.  K. Ferreira feels another letter would make most sense to keep the lines of communication open.  M. Scarsciotti stated there is no regulatory agreement & no monitoring agent.  

M. Martin asked if it is possible to re-establish the affordability.  M. Scarsciotti stated this can’t be done because the house has already been sold for a profit.  T. Weare discussed what the process is when an affordable house is sold.  This is the issue the Board is trying to fix by compensating the Town for the lost unit & re-opening the Oakdale Heights comprehensive permit to protect the remaining three units & insure compliance w/ the original terms of the permit.

VII.	ADJOURNMENT

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

VOTE:  Unanimous (5-0-0)

Attest:  _________________________
	Mary Scarsciotti, Clerk

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