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

Date of Meeting:  February 14, 2007

I.	CALL MEETING TO ORDER

The meeting was called to order by K. Ferreira

A.	Roll Call

Members Present:
Kenneth Ferreira, Chairman
Donald McKinlay, Vice Chairman 
John Cronan  (Arrived at 7:45 P.M.)
Michael Martin
Michelle Zollo 
Mary Scarsciotti, Associate Member
Richard Secher, Associate Member
David Sharkey, Associate Member 

Member Absent:  
(NONE)

K. Ferreira explained the procedure for this meeting.

II.	PRELIMINARY BUSINESS

A.  Minutes:	10/11/06, 10/25/06, 11/8/06, 11/29/06, 12/13/06, 1/10/07, & 1/24/07.

NOTE:	The Board will handle the minutes at the end of the meeting.

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

IV.	PUBLIC HEARINGS

A.	#03-07 – 14 East Boulevard – Thomas McManus

The public hearing notice was read into the record.

Present before the Board:	Paul Maravito, Ross Engineering Co.
				Thomas McManus

Mr. _____________ explained that the family has owned said dwelling for approx. 45 years.  The proposal is to raze the existing structure & replace it w/ a new structure.  The non-conforming nature of the property is the existing lot is 4,153 sq. ft. & current zoning is 10,000 sq. ft. in this zone.  The existing structure has a setback from the closed porch of 1.2 ft. from the property line on the north side of property.  On the left side of property, the existing building is 8.6 ft. from the side property line.  The side yard setbacks in this zone are 10 ft.  The front yard setback is 10 ft. as well as the year yard setback.  The proposal is to make the setbacks less non-conforming.  The house will be pushed back another 4/10 of a foot from the East Blvd. street line.  The left side property line, which is currently 8.6 ft. will remain.  The northerly setback will be 4.2 ft. off the property line & be parallel w/ this property line.  These angles & the lot size are 90 degrees so the house will be parallel w/ the line.  The existing house is serviced by Town water & sewer & proposed _________as well.  The proposed dwelling is approx. 24 ft., thus the dwelling will be 2 ft. off the ground, totaling 26 ft.  

Mr. _____________ stated this proposal was submitted to Conservation & received approval.  He submitted this approval as well as photographs.  This application before the ZBA is for a Special Permit.  The site is an appropriate location for the proposed structure as it is zoned.  The proposed use is an allowed use by right in this neighborhood.  There are no proposed changes in the use or the structure.  He briefly discussed the structure & utilities.  

Mr. ___________ stated there is no increase in the volume of ______________ & there are no known public or private________________ in close proximity to the locus????

Discussion ensued re:  photos of the house setbacks from abutting homes.  K. Ferreira stated the ZBA likes to see a minimum total separation between houses.  It looks like the engineer tried to center this between the existing homes to give the maximum separation between woodframed structures.

M. Martin spoke re:  the Bylaw relative to conforming & non-conforming use.  He feels the applicant meets condition #1 of the rational plan.  He addressed setbacks of the proposed structure.  Mr. __________ stated this is a two-story single family home & it won’t be turned into a duplex.  Brief discussion ensued.

D. McKinlay asked if the enclosed porch will be removed.  Mr. ___________ stated it is.  D. McKinlay asked where the front of the house is.  Mr. _____________stated it is on East Blvd.  D. McKinlay asked where Glen Rd. is.  Mr. _____________ explained.  D. McKinlay asked re:  parking.  Mr. ____________ stated presently they park in front of the house, thus, plan on using on-street parking.  J. Cronan asked if they park on the grassy area where it states NO PARKING.  Mr. McManus stated they do when they have company.  He discussed the sign in front of the house.  Brief discussion ensued.  D. McKinlay asked how adequate parking will be addressed.  Mr. _________ stated there will be available parking in the front yard where the closest __________ of the home where the sideline of the road is 17.2 ft. & there is another 5 ft. to the edge of pavement.  He discussed area on property where the applicant could park vs. on site.

Brief discussion ensued re:  the green abutter cards.  K. Ferreira stated there are three abutters that have not signed the green abutter cards.

Audience members were asked for questions or comments.

Present before the Board:	Sandra Besse

Ms. Besse stated she lives on the street behind the property in question.  She has known the family for many years.  She spoke in favor of the project.

D. McKinlay read letter received from Richard S. Cates dated 2/7/07 into the record re:  the application.  In short,  Mr. Cates is in favor of the project.

MOTION:	M. Zollo moved to close the public hearing for petition #03-07 – 14 East Boulevard – Thomas McManus.  J. Cronan seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved & J. Cronan seconded to grant a Special Permit for petition #03-07 – 14 East Boulevard – Thomas McManus w/ the finding that the applicant met the standards of the Wareham Zoning Regulations, s. 1335 in that the proposed alteration & proposed reconstruction does not intensify any existing non-conformity & that there will be no substantial of a non-conforming nature of the structure & the structure is not substantially detrimental to the neighborhood w/ the following conditions:

•	Constructed per plan submitted dated October 11, 2006 except as modified by below conditions.

•	The work will be in substantial performance w/ the site plan filed & dated October 11, 2006 & made part of the application.

Brief discussion ensued re:  parking.

•	Standard parking adequate per the use – two off-street spaces shall be provided for a single family home.

VOTE:  Unanimous (5-0-0)

NOTE:	The meeting proceeded w/ item V.  Continued Public Hearings – A.  #02-07 – Off of Alden Road – Lots 105, 106, & 107 – James Franklin.

Present before the Board:	James Franklin
Mr. Franklin stated that he went before the Planning Board & was told that there was no problem, no covenant to release w/ the research.  He stated all the deeds back to 1894 were researched.  K. Ferreira feels there was a covenant filed w/ the Planning Board, signed by the owner of record for that subdivision & somehow the Registry made a mistake & the covenant never was filed at the Registry.  The note did say their shall be a covenant, the clerk at the Registry accepted the plan, but didn’t ask for the covenant, thus, the covenant is on file w/ the Planning Board, but not at the Registry.

Present before the Board:	Anthony Scarsciotti, Planning Board

Mr. Scarsciotti researched the matter.  There is a covenant & he found it on the plan & the letter that was in question.  On 12/2/86 Lot 115 was released (across the street).  K. Ferreira stated the ZBA is looking for a similar release that says Lot 105.  Mr. Scarsciotti again stated he did find the covenant, but it is on the plan.  He showed said plan to the Board members.  The plan is dated 4/5/54.  He feels through this research, what is needed to release the covenant is in hand.  The Planning Board can now draft a letter to that end.  K. Ferreira stated that the lots have to be combined into one lot – Lot 105 is locked in w/ Lots 106 & 107.  

Mr. Scarsciotti stated the Planning Board did not sign the covenant because this information was found after they met. M. Martin feels Mr. Franklin needs a vote of the Planning Board releasing the covenant & then a letter.  Discussion ensued.

J. Cronan asked why the Planning Board was upset re:  this matter.  Mr. Scarsciotti stated this is because no research had been done on this matter.  The proponent came before the Planning Board w/out anything.  He (Scarsciotti) shouldn’t have to do the research.  It should have been presented to the Planning Board.  Discussion ensued.

K. Ferreira asked if Mr. Misiasek, Building Inspector has said if the lot is released, the building permit will be issued.  Mr. Franklin stated he left a message w/ Mr. Misiasek & has not heard back from him.  

K. Ferreira suggested continuing this hearing for two weeks so this matter can be w/drawn w/out prejudice if the Planning Board gives Mr. Franklin the covenant & the Building Inspector gives his O.K.  If the Building Inspector doesn’t give Mr. Franklin a building permit after the lot is released, then this issue may have to be further reviewed, for instance, as a Variance.  Brief discussion ensued re:  frontage.

K. Ferreira suggested that Mr. Franklin have Mr. Gricus or Brenda prepare a letter for the Planning Board to sign before the next hearing date.  Discussion ensued.  Mr. Franklin asked if this process could be done sooner if the Planning Board votes on this.  M. Martin stated if the Planning Board signs it, it goes to the Building Inspector, & a building permit is issued, Mr. Franklin doesn’t have to come back to the ZBA.

B.	#05-07 – 30 Ash Street – Robert & Maureen Piccarelli

The public hearing notice was read into the record.

Present before the ZBA:	Robert Piccarelli
				Maureen Piccarelli

Ms. Piccarelli stated they are asking for a Variance for 30 Ash St.  She submitted pictures of the property.  This property had come before the ZBA in May to ask for a site plan waiver which was granted.  They wish to raze the existing house & build a new dwelling, but turn the house.  Discussion ensued re:  pictures submitted.  

Ms. Piccarelli explained the site plan shows a 20 ft. setback in front, but it is actually 30 ft.  She discussed what the deed states.  J. Cronan stated that the documents show the front setback is only 19.6 ft., but this could be moved 4 inches.  Ms. Piccarelli stated this is only a section of lot.  Brief discussion ensued re:  setbacks.  

Ms. Piccarelli stated they are trying to balance the house for privacy issues.  Discussion again ensued re:  pictures submitted.  Ms. Piccarelli discussed reducing building cluster on the property.

Ms. Piccarelli stated they would like a Special Permit to maintain the encroachment.  M. Martin clarified that the Special Permit is needed for the side setback of 5.1 ft.  

Audience members were asked for questions or comments.         

Present before the ZBA:	Andrew McShea

Mr. McShea stated the way the all the houses are laid out on Ash St., they held to one line which allowed for yard space on opposite sides.  All Ms. Piccarelli wants to do is maintain that balance on the left side.  He feels the way things are laid out won’t upset the balance.

Mr. McShea discussed where utilities come in & if the proposed layout is accepted, these won’t have to be changed.

Present before the ZBA:	Thomas McShea

Mr. McShea clarified that Ms. Piccarelli will need to go the Building Inspector to make sure there is an understanding of his interpretation of where the 5 ft. _________starts.   Discussion ensued re:  maintaining the 5.1 ft. for the foundation.

J. Cronan stated when a house is razed & a new one put up, the setbacks have to be met.  Discussion ensued.  Ms. Piccarelli stated if the house is moved over, the house will start getting into the lower slope, thus the foundation would have to be raised, which makes here house higher & blocks her upstairs view.

MOTION:	D. McKinlay moved to close the public hearing for petition #05-07 – 30 Ash Street – Robert & Maureen Piccarelli.  M. Martin seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved to grant a Special Permit for petition #05-07 – 30 Ash Street – Robert & Maureen Piccarelli & that the applicant is in compliance with 1335 of the Zoning Ordinance in that the existing non-conformity will be no less than 6.0 ft. as determined by the Building Inspector & that all other dimensions will be in compliance w/ the Zoning Ordinance for the project relative to rear & westerly side setback & that this reconstruction will not be substantially detrimental to the neighborhood.  D. McKinlay seconded.

•	Constructed per plan as modified by the plan submitted by Charles L. Rowley & Associates dated 9/21/05 & modified to show proposed house outlined in red.

M. Martin asked if a new clear plan could be submitted.  K. Ferreira would rather ask for a foundation plan for the file.  ZBA members concurred.

•	Parking to be adequate for the use.
•	Easterly setback of no less than 6.0 ft.

POLLED VOTE:	M. Martin – Yes
			D.McKinlay – Yes
			M. Zollo – Yes
			J. Cronan – No
			K. Ferreira – Yes

VOTE:  (4-1-0)
J. Cronan opposed

C.	#06-07 – 47 Oak Street – John Fabroski

The public hearing notice was read into the record.

Present before the Board:	John Fabroski

Mr. Fabroski stated he would like to take an existing deck, stay w/in the existing footprint, move it & rebuild it & at the same time, bump out one of the rooms.  The deck there presently has been there for over 30 years & is in disrepair.  He has spoken w/ the Building Inspector whose only concern was the footings used now & the need to utilize ___________.

K. Ferreira asked for clarification of changes.  Mr. Fabroski stated the waterfront side of the plan shows a square which is the actual deck.  He would like to take this deck down & rebuild it.  The new deck will be the same size.  When he spoke to the Building Inspector, he understood that due to the Bylaw change last May, the deck is non-conforming & is making a change to non-conforming, he has to come before the ZBA.  He clarified that he will be bumping out an existing room 12 ft. while rebuilding the deck.  K. Ferreira feels this is an addition to the house.  The 12 ft. addition will be bumped out onto the deck to be rebuilt.  Discussion ensued re:  what exactly will be done.  J. Cronan clarified that w/ the bump out of the room, the deck will be reduced by 4 ft.  M. Martin clarified that a deck will be put on top of the 12 ft. addition.  Mr. Fabroski stated there will be no change in the house lines.  D. McKinlay asked if there is an existing deck on top of the house.  Mr. Fabroski stated there is & explained where it is located.  Discussion continued.

Discussion ensued re:  why this application is considered a Special Permit. K. Ferreira stated this is a small lot & the present deck is open.   M. Zollo feels that once the 12 ft addition is put on it will change the distance from the lot line & the setbacks because it goes back to a brand new foundation.  Mr. Fabroski stated the foundation is not being done over, footings are being put in which are already existing.  M. Scarsciotti asked if underneath the kitchen (addition) will be open.  Mr. Fabroski stated it will.  K. Ferreira stated that Mr. Fabroski needs to stay out of the velocity zone, especially for flood insurance purposes.  The cost of flood insurance for a non-conforming structure is very high.

Audience members had no questions or comments.

K. Ferreira read an e-mail sent from Edward Locke,Louise Locke, & Eleanor Locke re:  this application into the record.  In short, they are upset re:  the proposed application.  It states that the Fabroski’s have a two-story deck off their kitchen right on the beach.  If they extend the kitchen, it will obstruct their view & negatively impact the beach access. They asked to delay this application to the next hearing date.  G.A.F. Engineering, Inc. has indicated that the plans are too vague to make a reasonable assessment on what they are really planning to do.  Brief discussion ensued re:  the Locke’s location on the map.

Mr. Fabroski explained what will be in the new addition.  M. Martin explained that one of the standards for granting a Special Permit is that an application isn’t a substantial detriment to a neighborhood.  There is a neighbor asking for a delay in this matter.

K. Ferreira clarified what the opponents to the project said in their e-mail.  Mr. Fabroski stated that the Locke’s live two houses away.  He feels they may be confusing his house for another next to them.  Brief discussion ensued.

Mr. Fabroski stated when everything is done, his intention is to keep it open.  It will be no different than it is now.  M. Zollo stated that Mr. Fabroski’s situation is that he is non-conforming presently & will become more non-conforming w/ this project.  The ZBA usually doesn’t agree w/ this.  M. Martin feels the issue is not so much the dimensions, but the use.  The existing deck is seasonal & does not have year round use.  When it is closed in, the use has changed for the footprint.  He feels this will increase the non-conformity.  K. Ferreira stated if this is approved, an extension would be allowed w/in less than 3 ft. of the lot line on the north side which the Board normally doesn’t do.  D. McKinlay stated the Board typically would approve a deck, but it would have to remain open.  Discussion ensued.

Discussion ensued re:  Mr. Fabroski’s son’s house next door.  K. Ferreira asked if Mr. Fabroski came before the ZBA in 2000 re:  work to his house.  Mr. Fabroski stated he only purchased the property in May.  He again discussed the intent of what he wants to do.  K. Ferreira stated in most towns he works in, when an application comes in, it asks if ZBA action was taken on a lot previously.

K. Ferreira discussed the options the Board can take re:  this matter.  M. Martin would like to close the hearing & make a decision tonight.  D. McKinlay would be willing to do this, but if the vote is affirmative, he would like to have another hearing.  M. Zollo is not comfortable w/ this application.  J. Cronan doesn’t have a problem w/ the application, but if there is previous case re:  this property, it should be continued.  K. Ferreira feels this application should be continued to obtain research on this property.

MOTION:	D. McKinlay moved to continue the public hearing for petition #06-07 – 47 Oak Street – John Fabroski to February 28, 2007.  J. Cronan seconded.

VOTE:  Unanimous (5-0-0)

V.	CONTINUED PUBLIC HEARINGS

A.	#02-07 – Off of Alden Road – Lots 105, 106 & 107 – James Franklin
(DONE)

B.	#36-06 – 815 Main Street – Cornerstone Properties of Wareham – c/o Peter Freeman Esquire  (Voted to be on the February 28th agenda)

VI.	NEW BUSINESS/DISCUSSION

A.	#48-06 – 4 Greene Street – Michael Godbout

Present before the Board:	Michael Godbout
				_______________ A woman

Mr. Godbout stated he was present on 12/13/06 where the ZBA approved a deck on the side of his house w/ a setback of 10 ft. off the property line.  A neighbor complained re:  being crowded on his (Mr. Godbout) land.  He has staked out a fence for the property line.  Brief discussion ensued.

K. Ferreira explained that this application had been granted.  A repetitive petition can’t come back before the ZBA if it was denied.  Thus, this is a modification.  Mr. Godbout stated the reason he is present is to get the ZBA’s feeling on if it will be worth his while to come back before the ZBA to try & obtain the 4 ft. of deck.

Mr. Godbout explained at the original hearing, the proposed deck came out 10 ft.  A neighbor stated he didn’t want the deck built.  The deck was reduced to 6 ft., but he wants the 10 ft. deck.  M. Zollo stated he can’t do this.  Mr. Godbout asked why.  D. McKinlay stated the ZBA allowed the deck, but a limit on the deck was put on it.  Mr. Godbout stated at that point in the hearing, the suggestion of a fence was discussed.    M. Martin stated Mr. Godbout received an approval; the ZBA cannot modify this approval this evening.  K. Ferreira stated Mr. Godbout can apply for a new public hearing for a modification.  He feels Mr. Godbout is asking if it will be worth his while to spend the money if the ZBA is going to say no.  D. McKinlay stated the ZBA can’t make a binding determination at this time w/out hearing the case.  

J. Cronan asked when the fence goes into the property line, how close is the 6 ft. deck to the fence.  Mr. Godbout stated 6 ft.  M. Martin feels Mr. Godbout should submit a plan waiver to be on the agenda.  Brief discussion ensued re:  justification for a Variance.  K. Ferreira clarified that if the fence is on the property line in the proper place, the property offsets & the 10 ft. wide deck is 6.1 ft. to the property line.  J. Cronan feels Mr. Godbout has to present reasons why the ZBA should grant him a Variance for the 10 ft. deck.

The woman present stated when this case was first heard, the ZBA took a vote for the 10 ft. deck.  Then a neighbor stood up & stated he would feel squeezed & then the ZBA said no.  The neighbor also stated he wouldn’t mind a fence.  Lengthy discussion ensued.

D.McKinlay stated the reason the ZBA gave the applicant the setback from the street is because that was a Special Permit issue because the house setback was closer than that setback.  K. Ferreira stated w/ this request, it would be a Variance & an argument would need to be made why this situation is unique which would be tough.  If the Variance is granted, the neighbor can appeal it & the Variance could be overturned.   He discussed what the applicant needs to do from here.  He discussed the issue of the property line.

VII.	CORRESPONDENCE

A.	Kopelman & Paige re:  lawsuit w/ Roby Street.

McKinlay stated John Cosar bought a lot & all the neighbors were against this gentleman building on it as the end of Swifts Beach.  K. Ferreira stated the ZBA, five years ago, stated it was a grandfathered lot & overturned the Building Inspector & stated it was a buildable lot.  The neighbor(s) complained, hired an attorney, & came back & stated that this was granted an illegal Variance.  A complaint was filed w/ the Ethics Commission stating that he (K. Ferreira) had a conflict of interest for him to do conservation work five years later.  The Ethics Commission stated no & there was no violation five years later.  Thus, a building permit was issued.  Now, the building permit was appealed & it came before the ZBA & he stepped off the case & D. McKinlay handled it.  The Variance was re-granted.

The attorney that was hired wants live testimony from ZBA members.  Town Counsel is saying no to this.  All they have to do is produce the record.  Town Counsel has prepared an affidavit which he discussed.  Discussion ensued re:  this matter.

B.	Remand for Camper’s Headquarters.

Camper’s Headquarters wants a remand hearing.  The ZBA members concurred not to have a remand hearing.  Correspondence sent to Camper’s Headquarters has asked them as to why they should have a remand hearing.

C.	Tedeschi’s Citation.

The Building Inspector has cited Tedeschi’s for violations, for example, opening before 5:00 A.M.

D.	Sandwich Road Building.

Brief discussion ensued re:  property on Sandwich Rd. & parking an oil truck.

Brief discussion again ensued re:  Camper’s Headquarters.

VIII.	DISCUSSION

A.  40B Projects.

Discussion ensued re:  40B projects & the ZBA being the entity that grants sewer related issued.  J. Cronan stated on several occasions he said that the sewer issue should go to the Sewer Commissioners.  He expressed concern re:  the sewer issue relative to agreement w/ DEP to upgrade the plant & sewer needs areas.  M. Martin feels the consent order that the Town has is a document that was prepared so that SRF loan funds could be applied for.  J. Cronan stated the Town has been adhering to this document/plan.  M. Martin doesn’t feel there is an agreement between DEP & the Town.  Discussion ensued.  J. Cronan wants it clear as to whom Attorney Witten is dealing w/.  He stated Town Counsel stated that the ZBA deals w/ the sewer & Attorney Witten stated the same, but the ZBA sent the information to the BOS due to the consent order.  The BOS doesn’t seem to have the consent order.  J. Cronan feels Attorney Witten is saying one thing to the ZBA & another to the BOS.  K. Ferreira stated the ZBA recently asked re:  the sewer issue again.  This time, the answer was the ZBA is the local board that grants the sewer permit.  However, since there is an agreement, it has to go before the Board of Selectmen to sign the DEP connection permit.  Attorney Freeman disagreed w/ this.  M. Martin stated DEP has to approve all sewer extensions.  K. Ferreira feels it has to be approved by the Town first before going to DEP & there is confusion as to who the sewer permit authority lies w/.  Discussion ensued.

J. Cronan addressed the 815 Main St. 40B project.  He is getting tired of the project.  It is too big, there is not adequate parking, etc.  He has asked Dick Heaton re:  speaking w/ the developer relative to cutting it down & reviewing the pro forma & the response was no.  He asked him if the application has been reviewed again & he wants a copy of the rules again.    K. Ferreira also asked Mr. Heaton for clarification on what the rents actually will be.  J. Cronan asked if the abutter’s (Tricia ____________) questions have been submitted & have citizens’ questions been answered.  He hasn’t heard an answer to anything.  He wants to address these issues, cut the project in half, give them a permit, & be done w/ it.  K. Ferreira feels if the project is cut in half, they will claim it is un-economical.  Discussion ensued.

B.  Transfer Development Rights.

Brief discussion ensued re:  Transfer Development Rights & ZBA involvement.  Discussion ensued re:  the aspects & components of TDR.

Discussion continued on the 815 Main Street project & if the Board of Sewer Commissioners have made a decision on the sewer issue.  Discussion ensued re:  the I/I program.

IX.	ADJOURNMENT

(THERE WAS NO MOTION TO ADJOURN ON TAPE)

Attest:  _________________________
	Michael Martin, Vice Chairman

Date minutes approved:  _____________________
Date copy sent to Town Clerk:______________________
Date copy sent to Wareham Free Library:  ____________________