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:  December 12, 2007

Members Present:
K.Ferreira, Chairman
Michael Martin, Vice Chairman
Mary Scarsciotti, Clerk
David Sharkey
Richard Secher
Ticia Weare, Associate Member
John Cronan, BOS Liaison 

Members Absent:
Wilma Engerman, Associate Member

I.	CALL MEETING TO ORDER

The meeting was called to order. 

K.Ferreira discussed the procedures for this meeting.

II.	PRELIMINARY BUSINESS

A.	Minutes to be approved & endorsed:  November 14, 2007.

MOTION:	M. Scarsciotti moved to approve the minutes of November 14, 2007 as corrected.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

B.	Announcement:  “An Evening of Volunteer Appreciation” – December 13, 2007 – Town Hall Auditorium.

III.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES

A.	#15-005 – Request to extend time for Special Permit granting for Anthony Lopes, Bertino Street, Onset, MA, c/o Attorney Edward M. Kiernan.

No-one was present to represent this request.  The Board concurred to table this item until later in the meeting.

IV.	PUBLIC HEARINGS

A.	#20-08 – Avenue A – Access Partners Development, LLC

Present before the Board:	Attorney Jon Witten
Attorney Glynn, Representing Access Partners Development, LLC
				Attorney DeMello, Attorney for Ms. Abrahamson
				Steve Debuke, Exec. Director South Shore Housing Corp.
				
The public hearing notice was read into the record.

K.Ferreira explained the Board is calling this public hearing under their powers under the statute known as 40B (Affordable Housing Act).  This project received Board approval several years ago.  It has come to the Board’s attention that there have been some violations at this property & thus, the Board has voted to re-open this public hearing to receive testimony, correct any misunderstandings/errors, & further clarify the 40B that was issued.

Attorney Witten gave a background on the legal issues as to why this public hearing is being re-opened.  He stated the Board granted a Comprehensive Permit recorded at the Plymouth County Registry of Deeds on 8/99.  It is referred to as Avenue A or Oakdale Heights.  There are lots that are restricted pursuant to the permit & the statute,  for example, to sell to individuals or families earning a percentage of the median income.  This is referred to as affordable lots/units pursuant to the statutory program that has been around for 39 years.  The restriction, according to the permit that the Board approved, is to run w/ the land (a qualified applicant who purchased one of the four affordable units, must pass on this affordability to a successor).  There is no mention that the affordable restriction would expire over time or that someone who was a qualified purchaser could sell the lot/unit to a non-qualified purchaser.  This is how the statute works to preserve affordability.  The Town has been struggling to achieve the State suggested goal of 10% of its housing stock.  The Town is still not at the point where it can turn down Comprehensive Permits because the Town is not yet at that 10% subsidized housing income.  

Attorney Witten explained that it was the intent of the Board & the developer that these 4 lots (Lots 4, 6,9, & 11) would forever remain affordable.  Upon information received, lot 4 was sold by the owner (who qualified at the time) to a non-qualified purchaser.  This is a violation of the regulatory agreement & the deed rider.  He feels the Board & the Town has the power to enforce this restriction.  The Board has authorized him to file a 93A action against two individuals, one is the current owner (Shirley Abrahamson) & South Shore Housing Development Corp. claiming the Town has been deceived under a fair business practice & cheated out of its entitlement to ensure this lot forever remained affordable.  The statute provides the receiving entity 30 days to comment or object, in which case both entities (Ms. Abrahamson & South Shore Housing) represented by counsel did respond by letter on 10/17/07 & 10/30/07 that they object & deny the Town’s claim of a 93A violation.  He read a portion of a letter from Ms. Abrahamson’s counsel into the record which in short feels that the previous owner, Ms. McNally was the one who engaged in an unfair & deceptive action.

Attorney Witten feels the Board wants a remedy vs. a punishment.  The Board & the Town wants & is entitled to, having this unit back or compensation to acquire an additional unit so the Town is made whole.

Mr. Debuke stated South Shore Housing was the agent for the lottery for the affordable units.  They instructed their counsel to pursue the issue of the enforcing the rights expressed in the deed rider to re-enforce the principle that this unit is to remain affordable.  These steps have been taken.  South Shore Housing conducted a preliminary investigation in connection w/ the transaction & sent notices to Ms. Abrahamson, Freemont, Investment & Loan, & Multi-State Title Co., LLC advising them that the right of first refusal & the provisions in the deed rider were not complied w/ & the property was conveyed by Ms. McNally to Ms. Abrahamson on 7/28/06.  The consideration of the deed to Ms. Abrahamson was $280,000.  As part of this transaction, Ms. Abrahamson granted to Freemont Investment & Loan two mortgages (securing $224,000 & a $56,000 second loan).  As part of the investigation they spoke to Attorney DeMello (Ms. Abrahamson’s attorney).  Mr. DeMello also notified Freemont Investment & Loan & the Title insurer (United General Title Insurance Co.) Neither Freemont Investment & Loan nor United General Title Insurance have substantively responded to the notices in this regard.  Mr. DeMello has also stated that his client is willing to evade title to the property to any grantee South Shore Housing designates, accept that it will be subject to the Freemont Investment & Loan mortgages.  He has been informed that upon the sale of the property to the agency, Ms. McNally, the former owner, became Ms. Abrahamson’s tenant on the property until a few weeks ago when she was evicted.  He recommended a civil action be commenced by South Shore Housing against Ms. McNally w/ Ms. Abrahamson & Fremont Investment & Loan as defendants seeking re-conveyance of the property, free from encumbrances, & seeking damages that may be appropriate.  It is the expectation that the defendant will respond by filing cross claims against both United General Title Ins. Co. & Multi-State Title Co., LLC.  It appears that Freemont General Corp. currently doing business as Fremont Investment & Loan is subject to regulatory legal claims related to the activity as a sub-prime lender.  

Mr. DeBuke stated he nor his client were aware that Ms. McNally was selling the property to a non-qualified buyer.  They have subsequently learned that Mr. McNally took out a second mortgage before she conveyed the property.  In both instances, a title search was to have been performed by a title co.  In both instances, they ignored the lien.  Ms. Abrahamson is now the owner of a house that doesn’t have the value she paid to the seller.  It is the intention to return the home to affordability.

Attorney DeMello stated he is an attorney for Ms. Abrahamson.  He explained that his client entered into an agreement w/ Ms. McNally to purchase the property.  She went to a mortgage company who has an attorney who does a title search on the property.  This is supposed to certify the title to both his client & to the mortgage holder.  His client went through w/ the purchase of the property, received the mortgages, signed, etc.  She was never told there was a right of first refusal or an affordability restriction on the property.  She commenced renting back the property to Ms. McNeely for approx. one year.  The first notice his client received of there being an issue w/ the title was from Attorney Witten’s initial letter to South Shore Development.  He & his client immediately responded.  From that first instance, it has been made clear his client is willing to do whatever is necessary to get out from this situation.  Unfortunately, there is a mortgage company involved.    He notified Multi-State Title & Fremont Investment & Loan.  Multi-State Title is not responding at all.  Thus, he has not received any response from Multi-State Title.  The response he received from the title insurance co. is that they are in receipt of his letter & will be investigating.  He has also notified them that there will be 93A claims filed against both parties.  There is a potential issue of title insurance because it could be deemed excluded from coverage due to the reference to the deed.

K.Ferreira discussed who writes the title insurance policy.  He asked who did the title exam.  Mr. DeMello stated it was Multi-State Title & the attorney is Robert Madasta from Rhode Island.  Brief discussion ensued re:  the title closing procedure.  Mr. DeMello stated that Multi-State Title did not respond the filing of the 93A w/in the required 30 days nor after.  His client intends to bring a claim against Multi-State Title to pay the mortgage off.  Unless the mortgage is paid off, the property & title cannot be conveyed back to South Shore or a designee.

Discussion ensued re: what 93A is & its procedure.

K.Ferreira feels it isn’t usual to rent back to the person the property was purchased from.  Mr. DeMello explained it was a outside transaction.  He discussed the circumstances that transpired re:  his client purchasing the home & after the purchase.

Attorney Witten expressed concern re:  the actions the other attorney/representation are considering which would leave the Town in a holding pattern.   It is the Town’s position that it has an interest by way of restriction.  The Board should be considered as a co-plaintiff in the actions being pursued.  He doesn’t want the Town to lose its rights during the pursuit.  

Mr. DeBuke discussed the status of Freemont Mortgage & the issues w/ title companies ignoring deed restrictions.  

Mr. DeMello stated that no-one is living in the house now & no-one is making payments.

Attorney Witten doesn’t know if the 93A matter needs to be pursued further by the Board.  The issue the Board needs to consider is not being in the position to wait on South Shore Housing’s actions.  The Town wants this unit back ASAP.  Mr. DeMello again stated his client is willing to do what she can to convey the property back.  He added he will be filing suit by the end of the year.  

K.Ferreira stated this hearing was to get the parties to the table & address this matter & also to ensure a new decision is put on record that clarifies & solidifies the original 40B deed rider to ensure the next attorney who conducts a title exam sees this rider more clearly.  There are three other units in this area & the Board wants to make sure this doesn’t happen again w/ them.

Attorney Witten discussed the Board’s rights under this 40B application.  He feels the Board should consider the type of announcement that they want to put in a new decision that will be recorded by the Registry.  He spoke re:  the current status of the deed rider which has South Shore Housing as the enforcing entity.  He stated that a decision needs to be made as to how to re-affirm the rider/restriction.  The Board has voted in the past not to accept CHAPA as a monitoring agent.  South Shore Housing is the monitoring agent in the south shore area.  The Board could consider a renewal/revision/re-clarification of the deed rider.  He feels if this is done, it will clarify issues, but the Board is not obligated to stay w/ South Shore Housing.

M.Scarsciotti explained that the Board had applied to DHCD to have all four units counted.  A letter was received from DHCD refusing to accept the units because there is no regulatory agreement, there is no monitoring agreement, & they questioned the “subsidy”.  This is another issue that needs to be addressed in order to get all four units included.  Thus, the Board has not been able to get these four units included.  Discussion ensued as to why these units are not being included.  K. Ferreira asked that everyone keep in contact w/ information.

Attorney Glynn stated he represents the developer.  He submitted a letter commenting on the quality of work the developer provides.  The developer takes pride in his work & he is concerned re:  the matter at hand.  He discussed the filing approval for projects such as these presently vs. back in 1998.  He concurs that this project in question met all the criteria for affordability.  He discussed the deed rider for this project, but he doesn’t feel the detail included in the rider would alert title companies that aren’t paying attention.  Discussion ensued.

M. Scarsciotti stated the party in question was transferred from Access Partners Development to Mr. Ruly which in turn, the Oakdale Realty Trust was created which ultimately sold the properties.  Mr. Glynn stated everything was done relative to getting these units considered affordable & the meet the criteria.

Mr. Robinson doesn’t think the Board can go back & restructure the deed riders that existing for current homeowners.  The tip of the deed rider could be restructured for the next consumer.  He feels this would be an appropriate amendment to the current deed rider for a new applicant.  K. Ferreira stated it is not the intention to “punish” any of the existing units.  The Board wants to make sure they maintain their affordability in the count & make sure it is clear that they continue to count as affordable.
Attorney Witten stated the rules keep changing, but it doesn’t mean the Town losses something it already had.  When these units in question were created in 1999, the units qualified under 40B toward the count.  At that point, the Town was vested in these units.  DHCD has no power to take them away. Whether the units count, according to the State, is completely different from the units being restricted as affordable.  There is a statutory restriction as part of the agreement (Chapter 184, s. 31) that puts a restriction on the units forever.  Worst case is if the units don’t count towards the subsidized housing inventory, the Town will be out four units, but in a practical sense, they still will be affordable.  K. Ferriera stated the Board wants to make sure these count.  If the Town continues to lose units because DHCD randomly decides not to count units for a variety of reasons, it will be difficult.  

Audience members were asked for comments or questions.

Present before the Board:	John Cronan, BOS Liaison

Mr. Cronan asked if the deed restrictions that were placed on these parcels were put there by Attorney Glynn.  Attorney Witten stated they were.  Mr. Cronan asked when these restrictions were placed, what was South Shore to do.  Attorney Witten explained that South Shore Housing was hired to be the agent in charge of both monitoring the program (who prospective purchasers will be) & to be sure the respective purchaser was an eligible purchaser.  Mr. Cronan asked if South Shore Development is responsible for check if a deed rider has been placed on the property.  Attorney Witten stated it is the Board’s position, as represented in the 93A letter, that South Shore Housing has a responsibility to enforce the agreement, thus, the answer is yes.  If this had to go to litigation, the Town would pursue an action against South Shore Housing.  He feels is in everyone’s best interest to avoid this because it seems that South Shore Housing is taking responsibility for what has happened & litigate it on its own to the Town’s benefit.  He would like to see the Town be part of this litigation, say as a co-plaintiff or as an intervener to make sure the Town’s interests are protected.  K. Ferreira doesn’t see why South Shore Housing would object to the Town being a co-plaintiff or intervenor.

T.Weare expressed being careful if the deed rider is changed because DHCD’s position may be that the 62% does not insure the family at 80% of median would be able to afford it, thus it doesn’t meet the perpetuity criteria.  Discussion ensued.  

T. Weare stated there are currently several layers to deed riders.  Mr. Robinson stated the deed riders were approved at the assumptions of the day.  They don’t have the right to come back & say things are different now vs. then.  Discussion ensued.

Brief discussion ensued re:  the Board’s next meeting dates.

MOTION:	M. Scarsciotti moved to continue the public hearing for petition #20-08 – Avenue A – Access Partners Development, LLC to January 23, 2008.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

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

The public hearing notice was read into the record.

Present before the Board:	John Thomas

Mr. Thomas stated he wants to build a shed.  He was denied by the Building Inspector because it does not meet the required setbacks for an MR-30 district.

K. Ferreira asked what type of offsets there are to the street & the sideline.  Mr. Thomas stated under 10 ft.  Mr. Thomas discussed wetlands by his home – all the property to the south is wetlands/marsh.  The proposed placement of the shed is pushed back as far as he could towards the wetlands.  The board of the campground looked at the proposed location & approved the location.  The further away from the buffer zone he places the shed, the more he will mitigate the situation w/ the wetlands.  

K.Ferreira stated in an MR30 district, the front setback needs to be equal to or greater than the principle building & the side yard shall be 10 ft.  He noted a letter submitted from Community of Christ, Board of Trustees, Onset Campgrounds approving the building of a shed.

K.Ferreira stated the main house appears to be 8 ft. off the street at the closest point which is the stairs.  He asked if the shed will be 8 ft. as well.  In the Bylaws, it states that the shed shall be the same setback as the principle structure & then 10 ft. from the line.  Mr. Thomas stated the shed is 12x16.

M.Martin asked what the shed will be utilized for.  Mr. Thomas stated it will be utilized to place tools in, bikes, storage, sailboat, etc.  M. Martin feels the sketch looks more like a small house vs. a shed.  He discussed the look of the proposed structure.  He noted the pitch of the roof & the attempt to maximize his storage.  There will be no water, electricity, or plumbing.

R.Secher would like to see on the plan how close the shed will be to the lot line.  He noted wherever the Board tells him to place it he will.  He again noted what the Conservation has said.  Discussion again ensued re:  setback requirements.  Mr. Thomas again stated that the Conservation Agent has signed off on the shed.  He will be required to install re-bars on site.  Brief discussion ensued re:  location of the shed on the property.

M.Martin asked if Mr. Thomas had to apply to Conservation.  Mr. Thomas stated the Conservation Agent signed off on the Building Permit.  M. Martin asked if Mr. Thomas has anything from Conservation stating that the shed can’t go back further.  Mr. Thomas stated no.  Mr. Thomas stated the buffer for Conservation is anything under 100 ft.  He submitted the same plan the Board has to the Conservation Agent & he came & looked at the site.  The wetlands point had already been delineated.

Mr. Thomas discussed that some of the land is not common land.  It is leased land.  K. Ferreira feels this is a complicated application due to the nature of the properties (some land is leased, there are agreements between families, etc.).  Discussion ensued.

Audience members had no questions or comments.

Discussion ensued re:  sidelines, setbacks, lot lines, & placing these in the decision.  Mr. Thomas would rather not go back to the Conservation Agent since he has already signed off on this application.  K.Ferreira stated Mr. Thomas can go back & measure or he can accept the 8 ft. setback from the wetland, the 10 ft. for the rear setback, & 5 ft. from the side.  Mr. Thomas stated he will take the 8 ft. setback.

MOTION:	R. Secher moved to close the public hearing for petition #19-08 – 23 Commonwealth Avenue – John Thomas.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	R. Secher moved & D. Sharkey seconded to grant a Special Permit for petition #19-08 – 23 Commonwealth Avenue – John Thomas w/ the following conditions:

•	Shed to be located no closer than 8 ft. to the private street known as Commonwealth Ave., 5 ft. from the southerly side lease line, & 10 ft. from the westerly rear lease line (approximately shown on Exhibit A on file).
•	There shall be no plumbing installed in said shed.  The only utility allowed will be electricity.

VOTE:  Unanimous (5-0-0)

C.	#21-08 – 8 Tyler Avenue – Carmen Stroscio, Stroscio Realty Trust, c/o Charles L. Rowley & Associates

The public hearing notice was read into the record.

Present before the Board:	Charles L. Rowley, Charles L. Rowley & Associates
				Attorney Robolson, Mr. Stroscio’s Attorney

K.Ferreira explained that this hearing is being held now to get the process started.  It is a complicated, in depth project that will take time to review.  The public comment period of the hearing may not be held tonight, but will be held at another date since this hearing will be continued.

Attorney Robolson stated this is an application under section 320 for a Special Permit which is required for multi-family residential construction in the Strip Commercial zone & for a Variance under section 824.3 which indicates the number of units allowed can exceed the number of units that would have been allowed under a more conventional single family dwelling.

Attorney Robolson described the site involved & what it consists of.  There are five lots in total w/ seven acres.  1.5 acres are uplands.  The proposed project consists of a 15 unit residential condominium complex which will consist of four buildings.  The parcel would have access to a public way via Tyler Ave.  There would be two curb cuts on Tyler Ave. which would connect the semi-circular drive & access parking for each of the units.  There will be two parking spaces provided for each unit, per the Bylaw.  There will also be two drywells for each unit & a stormwater retention facility located on the premises.

Attorney Robolson discussed issues w/ the site.  This property does not abut a way that has access to public sewer.  He cited section 8.4 of the Bylaw which requires public sewer if accessible.  He noted Title V regulations.  He noted the code doesn’t say what is accessible.  The proposal is to hook-up to sewer.  There is no room to put in a septic system.

TAPE I, SIDE 2 ENDED – TAPE 2 – SIDE 1 COMMENCED AT THIS POINT.

M.Martin wants the applicant to convince him that this cost affects this land & does not generally affect all the other parcels that are in the zoning district.  This is the standard that needs to be met to be granted a Variance under the section cited.

K.Ferreira agrees that this is a multi-use commercial district which allows residential development of this type.  It is a large tract of land.  If all the land was upland, the regulations states still, only ten units could be placed there.  It would be 10 units of townhouses spread out over the seven acres of land w/ parking, recreational areas, etc.  In this case, there is little upland & everything is getting crowded in & is compounded that the density is being increased by 50% of what would be allowed.  He discussed issues w/ density.  He concurs w/ M. Martin that the argument will need to be convincing relative to a Variance & meeting the criteria.  He again expressed concern re:  the density of the project & the proposal to add an additional five units to pay for public sewer.  He stated on the flip side, they could reduce the number of units & apply for a waiver for a septic system.  Mr. Rowley doesn’t feel a septic system would be feasible at all.  He noted the setback requirement for new construction that a Title V system be 150 ft. away from a wetland.  The only way to obtain this w/ this project would be to place it in the middle of the lot where five of the units will be located.  Brief discussion ensued re:  businesses tied into sewer on Cranberry Highway.

K.Ferreira spoke re:  the Planning Board letter that suggests a traffic study.  Mr. Rowley stated he has addressed some of the traffic issues in the impact statement as part of the application.  K.Ferreira stated that traffic in & out of this development needs to be discussed.

K.Ferreira explained that the way the Bylaws are structured, when site plan review is conducted by the ZBA because of Variances being requested, the Planning Board shall make comments.  If comments are made, the ZBA either has to adopt said comments or find findings as to why the ZBA shouldn’t adopt the comments.  

M. Martin asked re:  the condition of Tyler Ave. near the access points.  Mr. Rowley stated it is a 25 ft. layout.  It is old.  It is not in the best condition.  It has several sharp turns.  Attorney Robolson stated the hard top is slightly crumbly due to the lack of drainage structures.  This would be addressed by the construction being proposed.  The benefit of utilizing Tyler Ave. to exit the property onto Cranberry Highway is that there are traffic lights at Home Depot & Depot Street.  He feels the circulation of traffic to get to various points is good.  If people decide to utilize Tyler Ave. going south to exist, to get to Onset, for example, they will be going through a country lane.  Brief discussion ensued.

K.Ferreira wants to make sure the Board has a complete detailed list of Variances the applicant will be requesting &/or comment on the Planning Board comments.  Mr. Rowley spoke w/ Hancock Associates today re:  the groundwater discharge & he should be receiving this information shortly.  He reviewed the design criteria for these areas & for the most part they are in compliance.  There may be some issues, for example, w/ one section requiring a 15 ft. landscape buffer in the front.  

Brief discussion ensued re:  Cranberry Highway being a “no access” highway.  K.Ferreira feels the Board needs to decide whether or not to engage a traffic engineer.  The Planning Board believes a traffic study needs to take place.  Either the Board needs to adopt the Planning Board’s standards or decide otherwise.  M. Martin stated there must be standard traffic counts coming out of the traffic manual.  K. Ferreira would like to know what the residents of Tyler Ave. do in general relative to entering & exiting the area.  Discussion ensued.

K.Ferreira feels Mr. Rowley, to move forward from here, needs to take the comments from the ZBA, Planning Board, & Hancock Associates, speak w/ the Sewer Commissioners as to where the sewer will go, & then decide how much more time & effort to spend on the plans to bring them up to code.

Brief discussion ensued re:  the re-charge area & if it is critical or not & hydrology Hancock Associates is looking for.  K. Ferreira stated that this application is before the ConCom & has been continued to 12/19/07.  Mr. Rowley doubts he will be able to respond to Hancock’s comments by 12/19/07 & he may ask the ConCom for a continuance.  He will also be speaking w/ the WPCF Superintendent & will seek to get on the Sewer Commissioner’s agenda re:  sewer.

K.Ferreira again noted density issues, relative, for example, for parking.  Attorney Robolson noted Bylaws relative to parking.  Brief discussion ensued re:  parking.

Brief discussion ensued re:  when to continue this hearing to & how the applicant’s representation should proceed.

MOTION:	R. Secher moved to continue the public hearing for petition #21-08 – 8 Tyler Avenue – Carmen Stroscio, Stroscio Realty Trust to January 9, 2008.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

NOTE:  The Board concurred to remove item III.  Request for Plan Waivers or Other Administrative Issues from the table.

A.	#15-005 – Request to extend time for Special Permit granting for Anthony Lopes, Bertino Street, Onset, MA, c/o Attorney Edward M. Kiernan.

Present before the Board:	Ms. Lopes

Ms. Lopes stated she is present to listen to the meeting & she was surprised to see her father’s name on the agenda.  K. Ferreira read the request into the record.  Apparently, a Special Permit was granted to Anthony Lopes on Bertino St.  

Ms. Lopes stated #11 & #13 Bertino St. belong to her uncle who passed away & didn’t leave a will.  The property was left to the executor, her great aunt.  Her great aunt has put her father in charge.  The family has been trying to clear the deed for four years because the family wishes to sell the property.  Her great aunt hired Attorney Kiernan to assist them w/ the clearing of the title.  She doesn’t know why it has taken since 2004/2005 for the attorney to obtain all signatures.  Her father is away for the winter.  The attorney keeps coming back for extensions.  Time is needed to clear the title.  There are interested buyers to the property.

K.Ferreira stated the Board has the power w/ Special Permits to extend time frames, but they can’t be extended forever due to statutory breaks.  Three years is allowable for an extension for a Special Permit under statute.  The Board could vote to extend it for one more year, but then he suggested Ms. Lopes’ father & Attorney Kiernan get moving on this issue.  If it takes longer, the permit will lapse & the process will need to start over.

MOTION:	R. Secher moved to continue petition #15-005 – Anthony Lopes, Bertino Street, Onset, c/o Attorney Edward M. Kiernan for one year from the date of 12/12/07.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

D.#22-08 – 20 Winslow Lane – Anna Thorson, c/o Eugene Snow

M.Martin noted that there is an issue w/ this hearing.  It can’t be heard, based on the Bylaws, because it is in tax title.  Brief discussion ensued.  

Present before the Board:	Eugene Snow

Mr. Snow expressed confusion.  M. Martin explained that the Town has a Bylaw that states no hearings can be held if an applicant owes taxes.  Mr. Snow can’t understand why a Board member didn’t see this fact until now (three hours into the meeting).

M.Martin explained that Mr. Snow is in tax title on several properties in Town.  The Town has a Bylaw that if someone owes taxes on any property, then they are not permitted to move forward w/ any hearings, applications, permits, etc.

Brief discussion ensued re:  how the Board should proceed.  K.Ferriera expressed concern re:  the fact that the application was signed off on, it was allowed to be filed, it went to the Town Clerk, it was advertised in the paper, etc. regardless of the Bylaw & a spelling error made.  He is not sure the applicant (Anna Thorson) is not entitled to a hearing.  Mr. Foster, Town Treasurer seemed to pick up on the matter three days prior to the meeting.

Present before the Board:	John Cronan, BOS Liaison

Mr. Cronan feels the application process shouldn’t have gone this far.  There is a Bylaw relative to tax title issues.  He feels the hearing could be held, a decision made by the Board, & whatever decision is made, it will need to be held until the taxes are cleared up.  K.Ferreira expressed concern re:  if the Board doesn’t take any action, the application could be constructively granted.  Brief discussion ensued.

TAPE 2 SIDE 1 ENDED.  TAPE 2 SIDE 2 COMMENCED AT THIS TIME.

Present before the Board:	Ms. Sally Shuttle

Ms. Shuttle discovered that the property behind her was in Mr. Snow’s name.  She went to the Town, looked it up, & the Town told her it was under tax title.  When Mr. Snow pulled the information, Anna Thorson’s name was not listed.

K.Ferreira stated the Board won’t be meeting again until 1/9/08.  He feels the hearing should be opened this evening.  Until there is clarification on the tax issue, the hearing won’t be closed.

The public hearing notice was read into the record.

Present before the Board:	Attorney John Bentley

Mr. Bentley stated his client is seeking a Variance for lot B51 on map 58.  This is an older subdivision that was granted.  All the lots were then served by public sewer & water.  In 1970 this all came to past.   Subsequent to Town sewer being installed, all the lots abutting Winslow Lane had been developed.  This is a sole vacant lot along Winslow Lane.  With the addition of Town sewer, it can be adequately built upon.  He feels the applicant meets the requirements of 40A because the lack of the ability to build on the land constitutes a hardship.

Mr. Bentley briefly noted the plan for the new residence.  In the past, the parcel was held in common w/ an abutting lot.  K. Ferriera clarified that several lots in this area were held in common ownership by the developer.  He asked how the owner of Lot B12 managed to sell it off because it would have created a more non-conformity for the lot.  Attorney Bentley doesn’t know how this was done.  He asked who purchased the undersized lot.  Attorney Bentley stated the common ownership & separation occurred prior to 1988.  He feels the most recent deed is dated 1989.  M. Scarsciotti asked who John Lew is (name is on the deed).  Attorney Bentley stated he has passed away & Ms. Thorson is the heir.  She doesn’t have the deed, but it comes out of probate.  K. Ferreira stated that in 1988 Mr. Lew had inquired as to whether it was a buildable lot.  It states this inquiry was mailed to the owner, Anna B. Thorson in 1988.  Attorney Bentley stated in 1998, it was denied.  He briefly discussed what transpired relative to this inquiry.

K.Ferreira clarified that Ms. Thorson owns the lot & Mr. Snow wants to buy the lot.  It also appears that all taxes have been paid on the lot & Ms. Thorson has gained clearance.  Discussion ensued re:  square footage of the lot.  K. Ferreira expressed concern re:  how large of a Variance the Board would be granting & how suddenly the lot was non-conforming & then sold off a piece.

Discussion ensued re:  the ownership of the lot (past & present) & the lot in question as well as lots abutting it.  K. Ferreira & M. Scarsciotti feel there may be more than one deed.

K.Ferreira suggested Attorney Bentley conduct more research as to who owned what, when, etc.  Discussion again ensued re:  the dimensions of the lot & what area the Variance would cover.

Audience members were asked for questions or comments.

Present before the Board:	Marilyn ___________, (Speaking for Marilyn & Judith Bruno – 22 Winslow Lane)

Ms. _________ read a statement from Marilyn & Judith Bruno into the record on their behalf.  In summary, they are concerned re:  a Variance being requested again after the Board had previously denied it.  On 3/10/88, Mr. Lew submitted a buildable lot request for the property in question.  It was denied as it did not conform w/ Chapter 40A, s. 6 for the reason that the lot was held in common ownership w/ lots 1034B after ANR protection.  The Board’s response was sent to Mr. Lew on 5/13/88.  On 7/6/89, Mr. Lew purchased the lot.  In 1990 the Town re-assessed the lot at $50,500 & Mr. Lew promptly filed for an abatement & was successful.  In 1992, the Town again re-assessed the lot & was given a value of $43,300.  Mr. Lew again filed for an abatement & the value was dropped to $25,500.  However, Mr. Lew felt this was not adequate & stated it was a non-buildable lot.  He signed a paper, under oath, that this was non-buildable.  Eventually, the assessment dropped to $4,300 w/ the reason noted as Class 132 which is un-developed land.  Mr. Lew went to extreme measures to keep the classification of this lot remain un-buildable & he would continue to pay a reduced tax rate.  As neighbors, they had numerous conversations w/ Mr. Lew re:  this property. Mr. Lew assured them that this lot was not buildable & confirmed this w/ the Town.  In 9/98, Mr. Lew attempted to gain a small lot exemption because he felt the un-buildable lot should be buildable.  He no longer lives in Town & would like to make money on this lot.  The request was denied w/ the same reason given prior.   Mr. Lew was reminded, by the Building Inspector, that the same inquiry was made prior & the determination was the same.  In 1/28/99, Mr. Lew filed an application for a hearing for a Variance/Special Permit.  He stated in the application that he would use the permit if granted, however, his lawyer noted that the lot is under a sale agreement w/ the stipulation that the permit is granted.  Hearings were held w/ the ZBA in 4/99 & the ZBA voted unanimously to deny the Variance & reminded Mr. Lew that he was aware when he purchased the lot that it was un-buildable.  Presently, this same issue is before the Board again.  The applicant is seeking a Variance so the property can be sold as buildable & a profit can be made.  Nothing has changed.  The lot is the same size, it is still unbuildable, & still has the same issues/concerns & it is not big enough for a house to be built upon.  They find it offensive as taxpayers that the applicant states the lack of ability to build on this lot creates a hardship.  The purchaser of the property knew it was not buildable & purchased it anyway.  This can’t be considered a hardship.  The granting of a Variance is a win/win situation for the applicant & a losing situation for the Town & the abutters.  They feel if the developer had handled the subdivision properly, this issue wouldn’t be.  It seems the lot is gaining footage.  It is now listed as 34,000 sq. ft.  Much of this is 50% tidal & marsh land.  They noted why this application doesn’t qualify for a Variance.

K.Ferreira noted that he sat on this case.  The case # was 16-99.  He recalls one of the reasons this was denied in 1999 was because the records showed changes in assessment, Mr. Lew asked for an abatement, he paid a reduced tax rate, & knew when he purchased the property that it was un-buildable.

K.Ferreira suggested the attorney re-assess this case & look at file #16-99.

Present before the Board:	Sally Shuttle

Ms. Shuttle is an abutter to the property in question.  She attended the hearing in 1989.  She discussed the purchase of the property by Mr. Lew from Mr. Sullivan.  Mr. Lew did know when he purchased the property it was un-buildable. She discussed the history of those who owned the property.  K. Ferreira stated this case has been turned down twice by the Building Inspector as a small lot exemption & it was turned down once when the applicant applied for a Variance.  It doesn’t qualify as a small lot exemption.

K.Ferreira discussed the four part test that needs to be met to allow for a Variance.  He briefly noted the four parts.  He noted that having sewer is a controlling factor, but not a major factor.  M. Martin explained even if the applicant can meet the four criteria, it doesn’t mean the Board will grant it.

Discussion ensued re:  how to proceed.  Attorney Bentley requested to withdraw the application.

MOTION:	M. Martin moved to withdraw w/out prejudice, the application  for petition #22-08 – 20 Winslow Lane – Anna Thorson, c/o Eugene Snow as requested by the applicant.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

K.Ferreira clarified what the above motion means.

V.	CONTINUED PUBLIC HEARINGS
(NONE)

VI.	NEW BUSINESS/DISCUSSION

A.	Campers Headquarters – 3120 Cranberry Highway – No new application or plans received. 

Relative to correspondence from Kopelman & Paige, the applicant no longer wishes to pursue.

B.	Discussion re:  enforcement issues w/ the Building Inspector (4 pending). 

It was noted this is relative to copies of letters from Inspectional Services demanding compliance.

VII.	ADJOURNMENT

MOTION:	D. Sharkey moved to adjourn the meeting at 11:00 P.M. & enter into Executive Session.  M. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

Attest:  _________________________
	Mary Scarsciotti, Clerk

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