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:  June 13, 2007

Members Present:
Kenneth Ferreira, Chairman (Arrived at __________)
Don McKinlay, Vice Chairman
Michael Martin
Michelle Zollo
David Sharkey
Mary Scarsciotti, Associate Member

Member Absent:
Richard Secher, Associate Member

I.	CALL MEETING TO ORDER

D.McKinlay called the meeting to order.

D.McKinlay explained the meeting procedure.

II.	PRELIMINARY BUSINESS

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

B.	#129-05 – 21 Sandwich Road – One year review – c/o Attorney Margaret Ishihara.

D.McKinlay noted that the file has been misplaced, but this matter can proceed.

Present before the Board:	Margaret Ishihara

Ms. Ishihara stated she is present to represent Wareham Early Childhood Education Development Corp.  She noted that this case should be number 128-05, not 129-05. 

Ms. Ishihara submitted & a brief overview for the Board’s review.  She explained that Wareham Childcare purchased the property at 21 Sandwich Rd. in 3/07.  There was an outstanding Special Permit, at that time, issued to the previous owner.  She indicated that this Special Permit was granted in 6/7/05.  One of the conditions of this decision was that a solid white vinyl fence be extended along the entire south boundary line.  During the purchase process, it came to their attention ________________________.  In 11/06, they asked the Board for an extension so that the real estate could be closed on & then the fence could be put in.  This has since happened (the fence has been extended).  She discussed the fence briefly.  Other requirements have been fulfilled as well as part of the Special Permit.

D.McKinlay read the conditions relative to the decision into the record.  He noted that condition #1 has been met.  Condition #2 is moot because there are no dogs on property.  

Brief discussion ensued.

Audience members had no questions or comments.

D.McKinlay announced that the requirements for the one year review have been completed.  

MOTION:	M. Martin moved the Board approve the one year review for #128-05 – 21 Sandwich Road, c/o Attorney Margaret Ishihara & to close the case.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

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

Present before the Board:	Christine Sweeney

D.McKinlay stated he finally got in contact w/ Richard Bowen, Town Counsel relative to this matter.  Attorney Bowen indicated that the Board does not have authorization or jurisdiction to deal w/ this question.  This has to be the finding.  He read Attorney Bowen’s response into the record.  Attorney Bowen has suggested that Ms. Sweeney contact her own legal counsel.

Ms. Sweeney stated that she first went to the Building Inspector who sent her to the ZBA.  This cost her $280.00 to go through the process.  She asked if the Board would consider returning this fee to her, given that it has been determined this matter is not under the ZBA’s jurisdiction.    She would like to utilize this money to retain counsel.  M. Martin believes she should take this up w/ the Board of Selectmen.  D. McKinlay concurred & that she should also speak to the Acting Town Administrator.  The ZBA does not have the authority to withdraw these funds from the general fund.  Brief discussion ensued.

MOTION:	M. Martin moved that the Board find they have no jurisdiction over the matter of petition #18-07 – 40 West Central Street – Christine Sweeney.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

C.	#002-07 – Reconsideration of decision – James Franklin

Present before the Board:	James Franklin

Mr. Franklin explained that he had an E&R plan done & has given it to the Building Inspector.  The Building Inspector has not acted on it.  He has called him several times to sign it.  He also showed the Building Inspector from the ZBA, but the Building Inspector told him to go back before the ZBA.

Present before the Board:	John Cronan, Board of Selectmen Liaison

Selectman Cronan stated when he was sitting on this case originally, one of the directives given was to get the lots combined.  K. Ferreira had said, at the time, there was frontage w/ the radius of the side street.  The covenant was removed from the Planning Board & then the lots were combined.  The time that the lots were to be combined, the plan was from J.C. Engineering to Mr. Franklin to the Building Inspector.   Hearings have been continued continuously.  Mr. Franklin never came back before the Board because he was under the impression from K. Ferreira & himself, that as long as the plan was being done, it was the last condition.  This didn’t happen by the time the Board voted.  When the Board voted to deny w/out prejudice, he had stood up & said the plan was being done.  The comment was made that the applicant wasn’t present, the applicant missed the hearing, & the Board will deny w/out prejudice.  He spoke to J.C. Engineering & the Building Inspector & the plan was on the Building Inspector’s desk for a few weeks.  He looked it up the other day & told him he has the plan & the information, but the Board denied it w/out prejudice so it is final.  He stated if the Board denied w/out prejudice for the Variance & Mr. Franklin has now combined the lots & met the requirements, he feels there is a problem which he will speak to the Building Inspector about it.  He feels Mr. Franklin did what he was supposed to do in the allotted time.

M.Martin the Board has to render a binding legal decision.  He feels from the beginning, the position of the Board was if Mr. Franklin did what was asked, he would receive an ANR plan to move forward.  It seems the Building Inspector has denied the ANR plan.  A letter of denial should be forwarded from the Building Inspector w/ reasons.  There is an ANR plan & a previous decision from the Board which is not grounds for a denial.

D.McKinlay feels the Board took this action because they believed a Variance was not required if Mr. Franklin did what was requested.

M.Martin feels that either the Building Inspector issues a permit or Mr. Franklin will have to go through the application process again.  D. McKinlay stated this is correct because it is the law.

M. Martin stated that the vote of the Board to deny was based on Mr. Franklin’s failure to appear.  No evidence was heard.
Mr. Franklin submitted a copy of the decision & the denial letter from the Building Inspector to the Board.  He filed the ANR at the Registry.  The Planning Board had stated there were no covenant to release.  M. Scarsciotti stated there is a covenant that needs to be signed & is recorded on the original plan.  She handed the map to the ZBA secretary & it is stated on it.  Discussion ensued.

D.McKinlay read the decision into the record.  M. Scarsciotti stated the lot on the other corner has the letter.  All that needs to be done is have it copied & change it to the other lot number.

D.McKinlay recalls it was the Board’s opinion that this lot is a buildable lot once the lots were combined & received the release from the Planning Board.  Thus, the Building Inspector should issue the building permit.  M. Scarsciotti stated the waiver must be in writing.  D. McKinlay asked the Board’s support in writing a letter to the Building Inspector stating the Board’s position & that is the reason the application was denied – the Board doesn’t feel a Variance is needed.  M. Martin feels a decision from the Board had already been rendered.  D. McKinlay doesn’t feel the Board’s decision was clear enough – it didn’t say the Board feels a Variance is not required when the requirements were met.  M. Martin stated Mr. Franklin wasn’t before the Board for a Variance.  He was present for an appeal of the Building Inspector’s decision.  No evidence was presented.  Brief discussion ensued.

M. Martin suggested Mr. Franklin go back to the Building Inspector to try & get the permit.  Mr. Franklin stated that he spoke to the Building Inspector two days ago & told him he needed the denial letter.  The Building Inspector stated he hadn’t done it yet due to cut backs, money, etc.  M. Martin stated the Board has not power to issue a building permit.  M. Scarsciotti feels D. McKinlay should send a letter to the Building Inspector.  M. Martin feels the wording should be precise not try to overturn the denial.  D. McKinlay believes the reason the application was denied w/out prejudice was because the Board didn’t feel the applicant needed a Variance.  M. Martin feels the Board denied the application because there was concern re:  the issue of constructive grant.  Brief discussion ensued.  M. Scarsciotti doesn’t feel D. McKinlay should write a letter now unless the Building Inspector issues another denial.  The Board members concurred.  

D.McKinlay clarified to Mr. Franklin that either he obtain the denial letter from the Building Inspector or retain the building permit before the Board can move forward.  M. Scarsciotti stated the waiver of the covenant from the Planning Board, in writing, is also required.  Mr. Franklin discussed that the covenant was released on one lot, but not the two back lots.  M. Scarsciotti stated they are not needed on the back lots, only the front lot.  He recalled being told if he combined the two lots w/ the one lot, that the covenant would be released w/ all the lots.  Brief discussion ensued.

III.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES

A.	Appeal – H.A.C. #2007-07  (NOT HANDLED)

IV.	PUBLIC HEARINGS

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

Present before the Board:	Donna Chaston
				Attorney Len Bello

D.McKinlay asked if this is a continued matter or a new application.  He is confused because there is no file before the Board.

Attorney Bello understands Mr. Chaston appeared before the Board & it was suggested that she obtain an attorney & it was requested that this hearing be postponed until such a time an attorney was obtained.

Attorney Bello submitted information to the Board.  He explained what lots this property consists of & ownership & purchase of these lots.  The applicant is filing for a Variance/Special Permit seeking to construct a second, but connected dwelling on the property.  The Zoning Bylaw requires 200 ft. of frontage & 45,000 sq. ft. of area for a duplex or two-family dwelling.  The property has more than the required frontage & has 38,910 sq. ft. of area falling approx 6,000 sq. ft. of the Bylaw.  Relative to the statutory requirements, this property is shaped like a horseshoe which he discussed.  The lot has in excess of 300 ft. of frontage.  The property from 1969 to 1981 had an addition to the main dwelling – an in-law apartment which is referenced on the Assessor’s field card.  Across from the property are eight lots w/ different lot sizes.  Each of these lots contains a single family dwelling.  Directly behind the parcel is  a parcel of similar size which contains a multiple family dwelling.  Another multi-dwelling is located nearby.  Prior to the 1987 zoning change, the change increased the area requirement for two-family dwelling from 30,000 to 45, 000 sq. ft.  The applicant or her parents before her could have built a two-family dwelling on the property as a matter of right.    The applicant’s parents purchased all the surrounding lots to the property.  If they had purchased these lots in separate names, these lots would have been grandfathered.  He discussed requirements at the time the neighborhood was constructed which allowed for two-family dwellings to be built on lots containing 30,000 sq. ft.  The applicant has been living alone in the existing dwelling since her parents death.  She hopes to have her son, his wife, & their family move into the old home & she would like to build a second, but connected home for herself.  He discussed the medical condition of the applicant.  He feels the granting of this request is not detrimental to the public good nor does it nullify or substantially derogate from the intent or purpose of the Zoning Bylaw.  The property is located in an R-30 zoning district which allows for single & multiple family residential use.  He discussed the characteristics of the neighborhood.  He again discussed the applicant’s medical condition.  He noted that the property had two dwellings on it.  It had been approved from 1964-1981 as a two-family unit which is indicated on the Assessor’s record.  It became storage space when the grandfather passed away (the room above the garage).  He feels there is a unique situation to this property.

M. Martin understands the hardship issue of the applicant, but he questioned if the hardship(s) being discussed are applicable under a Variance.  Attorney Bello stated that a hardship can be financial.  It doesn’t necessarily need to relate to the land especially when the Variance being sought deals w/ dimensions vs. use.  A dimensional Variance does not require the same type of hardship as a use Variance.  The uniqueness has to relate to the property.   The hardship can be financial & as to the parties involved, but not to be self-created.  The applicant is not looking to subdivide the property into two & make money.  There is no interest in making money relative to this proposal.

M.Martin feels the issue is that duplexes are allowed in this district, but what this applicant is lacking to have it be a matter of right, is 6,090 sq. ft. of area.  Attorney Bello concurred.  He spoke re:  dwellings in the area & their dimensions.  M. Martin noted that the enforcement of square footage in the Bylaw doesn’t fulfill any public good because there are so many other residences that are already non-conforming.  Attorney Bello concurs, but explained that in 1986, someone could have done what is being proposed.  He stated the applicant has owned this property, separate & apart from all other units since that date.  He noted the grandfathered standards, but the grandfathered standards doesn’t apply when there is already a structure on the property.  Discussion ensued.

M.Scarsciotti asked how many units are in each of the other multi-families in the area.  Ms. Chaston feels one has three, the other has two (& may be three).  M. Scarsciotti asked if the existing kitchen above the garage is still a kitchen.  Ms. Chaston stated it is utilized for storage, but there is a stove in there that is not used.  M. Scarsciotti asked if there are plans to make the new unit handicapped accessible.  Ms. Chaston stated absolutely.

D.Sharkey is sympathetic, but he is conflicted w/ the Bylaws.  M. Martin feels the idea of an in-law apartment is off the table.  The focus is more on a duplex.  Ms. Chaston stated the in-law issue came from the Planning Board.  M. Martin stated the ZBA opposed this because it wouldn’t conform.  The ZBA did determine that multi-family dwellings are an allowed use, but the applicant is approx. 6,000 sq. ft. shy of having this by right use.  

Brief discussion ensued re:  the pre-existing in law apartment over the garage that is no longer in use.

Audience members had no questions or comments.

MOTION:	M. Martin moved to close the public hearing for petition #22-07 – 10 Savary Road – Donna Chaston.  M. Zollo seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved & D. Sharkey seconded that the Board grant a Variance for 6,090 sq. ft. in that the existing square footage of the lot is suitable to support a duplex & given that the surrounding parcels are already multi-family & that there will be no detriment to the public good & there will be no substantial degradation to the Zoning ordinance & the property is unique in its shape & a hardship exists in that the property was previously zoned for two dwellings & through no fault of the current owner, did they fail to exercise this right, & the hardship is that the Zoning ordinance required more lot size than exists w/ the following conditions:
•	Apply for & receive the proper permits from other boards, commissions, & committees.
•	Off-street parking to be adequate to the use.
•	All installations in the in-law portion over the garage that make it an in-law apartment be removed as may be determined by the Zoning Enforcement Officer.
•	All other Zoning Bylaw requirements to be met.
•	To be built per plan.
•	Waive time requirements for filing.

D.McKinlay spoke re:  the process from this point.

VOTE:  Unanimous (5-0-0)

B.	#24-07 – 74 Circuit Avenue – Gary Gustafson, c/o Capizzi Home Improvement

The public hearing notice was read into the record.

Present before the Board:	Tony Pola, Capizzi Home Improvement

Mr. Pola submitted the green abutters cards.  The green cards are in order.

Mr. Pola discussed the proposed addition.  The property is pre-existing, non-conforming on the side lot line which will not be encroached on any further.  There is a small proposed modification to a rear stairway.

Mr. Pola stated the Building Inspector issued a denial due to setback issues, pre-existing, non-conforming.  There is only 5.5 ft. distance on the corner of the house.    D. McKinlay read the portion of the Building Inspector’s letter that states the addition will not meet the required setbacks, thus a Special Permit is needed.  

M. Martin stated the side setback is 10 ft.  The applicant has an existing, non-conforming setback of 5.5 ft.  The addition will be approx. 14 sq. ft.

Audience members had no questions or comments.

MOTION:	M. Scarsciotti moved to close the public hearing for petition #24-07 – 74 Circuit Avenue – Gary Gustafson, c/o Capizzi Home Improvement.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved & M. Zollo seconded that the Board grant a Special Permit to petition #24-07 – 74 Circuit Avenue – Gary Gustafson, c/o Capizzi Home Improvement w/ the finding that the proposed alteration does not intensify an existing non-conformity or result in any additional new non-conformities in that the addition will not be detrimental to the neighborhood w/ the following conditions:

•	Addition to be constructed per plan submitted.

VOTE:  Unanimous (5-0-0)

C.	#29-07 – 10 East Central Avenue – John A. Nardullo, c/o William H. Lockwood, R.A.

The public hearing notice was read into the record.

Present before the Board:	William H. Lockwood, Lockwood Architects
				John A. Nardullo

Mr. Lockwood discussed plans for a reconstruction of a porch constructed on the existing footprint of the existing porch.  On top of the new porch, a roof deck is proposed.  A building permit has been issued for the reconstruction of the porch structure, but a Special Permit is needed for the roof deck on top of the new porch.

Discussion ensued re:  the roof deck.  Mr. Lockwood stated this roof deck will not be closed in.

D.McKinlay clarified that the existing porch will be re-built & will continue to be enclosed & put a new roof on it.  On top of this porch, there will be a deck.  The deck will not be larger than the existing footprint, thus, the setbacks will not be changed.  The height requirement will not be violated.

M. Martin clarified that a building permit has already been issued for reconstruction of the existing porch.  The applicant is present because the proposal is to put a deck & railing around the roof.

Audience members had no questions or comments.

MOTION:	M. Zollo moved to close the public hearing for petition #29-07 – 10 East Central Avenue – John A. Nardullo, c/o William H. Lockwood, R.A.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved & M. Zollo seconded that the Board grant a Special Permit for petition #29-07 – 10 East Central Avenue – John A. Nardullo, c/o William H. Lockwood, R.A. w/ the finding that the proposed use conforms w/ the provision of s. 1334 of the Zoning regulations in that there will be no expansion of the footprint of the existing building w/ the following conditions:

•	Constructed per plan submitted.
•	Deck over porch roof to remain open w/ no roof or walls.
•	Railing per building code requirements to be installed around new deck above porch roof.
•	No expansion of footprint.

VOTE:  Unanimous (5-0-0)

D.	#30-07 – 20 Stockton Shortcut – Mr. Edward Watson

The public hearing notice was read into the record.

Present before the Board:	Mr. Hale, Attorney

Mr. Hale described the property & structures.  Mr. Watson purchased the property two years ago & has put substantial money into the property & improved it.  Stockton Shortcut is entirely surrounded by the Little Harbor Country Club, Inc. golf course.  The only abutter is the golf course itself.

Mr. Hale stated in 2005, the bed & breakfast at the site, received establishment licenses (food establishment) (innholder’s license) & in 12/12/05 was issued a bed & breakfast license & another food establishment license for milk & cream.  It had always been the hope of Mr. Watson to have a small café on the premises.  In 2007, they received license from the BOH for said café.  It was installed & was being utilized for purposes of breakfast.  At that time, someone complained, & Mr. Watson was informed that he would have to go before the ZBA after a denial of their use by the Building Inspector.

Mr. Hale submitted exhibits relative to the case.  Exhibit A shows various licenses received issued by the Town via the BOH.  There is also a food establishment inspection report dated 5/9/07 showing no violations.  Exhibit B is the denial letter from the Building Inspector.  Exhibit C is the copy of the ZBA application.  Exhibit D is documentation as to what is necessary to require an extension for prior non-conforming use under the MGL c.40A s. 6 (under Zoning Bylaws, Article 1332).  Exhibit E shows three photos.  He described the photos.  The first shows no alteration of the exterior of the building from when Mr. Watson first purchased the property.  They have had the tables & umbrellas there anyway.  The second photo shows where they were serving for the café.  It used to be the dining room of the original bed & breakfast.  The only addition is the service bar.  The third photo shows the room that was the dining room which is now intended as the café.  The two dining room tables there previously have been replaced by approx. 5-6 tables.  Exhibit F shows the entire property surrounded by the golf course.  He spoke of a letter from James C. Jones who is the manager/owner of Little Harbor Country Club, Inc. stating he is in favor of having a café operating at Mr. Watson’s premises.  Exhibit G shows a plot plan of the property.  It shows an existing house.  The closest residence to the property is in excess of 500 ft. is southwest of the property.  Exhibit H shows letters received in support.  Exhibit G shows a petition signed by 35 people in favor of the application.

Mr. Hale summarized that the situation is that there is an extension of a prior non-conformity.  There is a bed & breakfast & w/ a bed/breakfast meals are provided.  This was requested by the owner so that his clients could enjoy something in a café style, but also so that members of the public could come & enjoy food.  Nothing about this is detrimental to the neighborhood.  It is exactly the same footprint of meals were already served there due to the bed/breakfast.  Licensure had been issued by the BOH & there have been no violations to that.  He requested the ZBA issue a finding that this requested use is not more substantially detrimental to the neighborhood & issue the Special Permit/Variance.

D.McKinlay read a letter submitted to the ZBA from Marguerite & Paul Cayer dated 6/8/07 into the record relative to this petition.  They expressed concern & complaints relative to this petition.  They do not object to the continued operation of the bed/breakfast as it was previously.  They feel the owners should be allowed to house & feed their guests & rent out the bed/breakfast on a total basis, but only of the granting of the required various licenses for functions.  They suggest the functions should be limited to guests only & not the general public.  They object to the expanding of the present permits or granting new permits/Variances which the letter explains.

Audience members were asked for questions or comments.

Mr. Hale noted building permits for the construction at the property.

Present before the Board:	Francis Ward, Great Neck Rd.

Mr. Ward expressed concern re:  ______________________________ (inaudible).

Present before the Board:	A woman

The woman stated __________________________________________(inaudible)

Present before the Board:	A gentleman

The gentleman stated since the new owners have purchased the property, they have always run a professional operation.

Present before the Board:	A woman, 12 Little Harbor Rd.

The woman stated both of her daughters were married in a tent on the front lawn of the property.  She briefly discussed the events (under previous owners).  There were no complaints.  She feels the new owners have done a great job fixing up the property.
Present before the Board:	Jack _____________, 74 Burgess Point Rd.

Mr. ____________ feels the new owners have done nothing but improve the property.  They don’t offer liquor, just coffee.  He doesn’t see how this would be a detriment to this area.  He is in favor of the application.

Present before the Board:	Nancy Edwards, Lookout Lane

Ms. Edwards expressed how she is in support of the application as well as many others.

Present before the Board:	Betsy Hale, Realtor

Ms. Hale feels the owners have made great improvements to the property.

A woman asked that everyone that is in favor of the application to stand up.  Those in favor stood up.

Present before the Board:	John Cronan, Selectman Liaison

Mr. Cronan stated at last night’s Board of Selectmen’s meeting, two applicant’s came in looking for a one day liquor license for the property.  One was for a wedding at the end of June & the other was for a funeral service.  The one day liquor licenses were granted.  The Board of Selectmen then placed a hold on one day liquor licenses for this property until this case is resolved.  He noted some complaints received re:  permitting for music & tents going up have not been taking place at the property.  Whenever there is a wedding, there needs to be a permit for the music & the event.  There is also a permit required for putting up a tent.

Mr. Watson stated whenever there is a party, he is just renting the property out.  The people having the party will either call a caterer, for example.  They arrange this.  He stated a barn was built in the back so they wouldn’t have to rent a tent.

Mr. Cronan stated if someone rents the premises & wants to put a tent up, he needs to make sure they get a permit for the tent as well as permits for music.  It is a procedure that needs to be followed.  One day liquor licenses will not be allowed to be continued on the property.  He noted that Mr. Watson will need to apply for a liquor license from the Board of Selectmen.

M. Martin stated the case presented may be irrelevant to the argument.  Mr. Hale stated he set out the standards for expansion of prior non-conforming use.  M. Martin feels this applies to single family/multi-family dwellings.  Discussion ensued.  

Mr. Martin feels this deals w/ commercial.  He doesn’t feel the case presented is relavant & applicable to this issue.  Mr. Hale stated it is applicable because it is not limited strictly to a single family dwelling.  It is for the sole standard for determining whether or not a prior non-conforming use would be extended/altered is & if it would be substantial or detrimental to the neighborhood.  The property is located in an R-60 district.  M. Martin asked if anything other than breakfast is being served.  The answer was no.  M. Martin read the definition of a bed/breakfast.  He doesn’t feel what is going on at this property meets the definition of a bed/breakfast, thus, what is going on there exceeds the definition & would be substantially detrimental to the character of the neighborhood which would mean this would be a Variance issue.  He suggested this matter come back to present a defense for a Variance.  Mr. Hale doesn’t understand.  He feels the definition M. Martin just read is exactly what the applicant is doing.  He stated the applicant is looking for a café for the service of breakfast.  D. McKinlay stated the serving of breakfast is only for overnight guests.  He doesn’t feel this is what the applicant is looking for.  M. Martin doesn’t feel the applicant, by this definition, entitled to have weddings or people walk in off the street to have breakfast there.  Thus, it is not a non-conforming use, it is a Variance.  Mr. Hale disagreed.  When there are weddings there, it has nothing to do w/ the request before the Board presently.  This is to allow the use of the café.  If other licensure is needed, they will do so.  M. Martin feels a Variance for the use is needed.

M. Scarsciotti asked for an elaboration on the statement that the “café was in operation in 2007 as a result of a mutual misunderstanding.”  Mr. Hanson stated his wife manages the establishment.  She had spoken to the BOH & that she should open up the café.  His wife was told what to do to do this & she did.  She was then issued a license to serve breakfast.  She served breakfast for six weeks & there were complaints & brought forward to the Selectmen’s Office.  It was researched & found that even though they are a commercial property, surrounded by a commercial property, they are in a residential zone.  Thus, the Zoning Officer told the BOH to take back the license.  The BOH took it back & they discussed the matter w/ the Zoning Officer who stated they needed to go to the ZBA.

M. Scarsciotti asked how long has the bed/breakfast been in operation.  Mr. Hanson stated he has owned it for three years & was operating for approx. 20 years before that.  It was called the Little Harbor Guest House.  M. Scarsiotti asked if it was always owner occupied.  Mr. Hanson stated it was & there have always been weddings there.  He added that there are no houses around them, it is just a beautiful setting w/ an old farmhouse w/ an old barn.  M. Scarsciotti asked how many seats there are at the café.  Mr. Hanson stated five tables w/ four chairs each.  M. Scarsciotti asked if there is adequate parking.  Mr. Hanson stated there is one acre of land to park on (holds 40-50 cars).  There is another quarter acre off the side as well.  There is also approx. 800 ft. of driveway.

D.Sharkey feels this is the most egregious set of circumstances he has seen since being on the ZBA.  He noted the pavilion in the back is technically a tent.  He described the pavilion.  He feels the Building Inspector erred when he issued this permit for a “tent” which is a permanent piece to the property which is in addition to the physical plan.  A gift shop was opened w/out any effort to go through a licensing procedure or policies that govern this.  The public coffee shop opened & understands there was a misunderstanding, but there was also a misunderstanding because the BOH doesn’t conduct zoning, thus they inadvertently issued the permit w/out having any background understanding that this can’t be done on this property.  The public parties & parking could change the traffic patterns in this neighborhood.  Storing commercial dump trucks on the property should not be allowed & has happened frequently.  The liquor license situation needs to be more definitively investigated.  He feels the petitioners have not acted in good faith w/ the Town.

M. Zollo asked if the applicant lives on the property.  Mr. Hanson stated he does.

Discussion ensued re:  if this is a Special Permit or a Variance.  D. McKinlay stated a bed & breakfast, by definition, is a limited number of people being served breakfast only.  It is not a public establishment for the local public.

The Board members were polled.  M. Martin feels this is a Variance.  M. Scarsciotti feels expanding this to an establishment to the public constitutes a commercial use in a residential neighborhood.  She feels the justification for the Variance needs to be at a higher standard.  D. Sharkey stated the bed/breakfast is a grandfathered use to start w/.  Since it is a grandfathered use, no changes should be allowed.  He feels it is a Variance.  M. Zollo feels it is a Variance.  D. McKinlay feels it is a Variance.

Discussion ensued re:  when to meet again for Mr. Hale to present a case for a Variance.  The Board concurred to hear this case on July 13, 2007.

NOTE:	K. Ferreira arrived at this time.

E.	#25-07 – Review of application procedures for Variances & Special Permits & amend rules for Comprehensive Special Permits under M.G.L. Chapter 40B.

M. Scarsciotti stated that Attorney Witten has indicated that in relationship to enforcement, there isn’t much.  The Board needs to make the decision to put the change that puts the responsibility for providing the requested documents on the developer.  If there is a problem, the Board can require they appear before them.  Attorney Witten is suggesting this language be put in the 40B regulations.

K. Ferreira stated that M. Scarsciotti’s concern was how the Board can put the burden of notification & keep the notification up to compliance that the units are being sold are affordable units & get this notification into DHCD.  Currently, it takes a lot of work (for the Director of Community Development) to keep track of the numbers & keep them up.  The thought is if the rules are amended to include a statement that the developer would be burdened w/ the responsibility of getting this certification of the units.

MOTION:	M. Martin moved that the rules & regulations for Chapter 40B applications shall include the language provided by Attorney Witten to place the burden on the developer/applicant to achieve certification of the affordable units.  M. Zollo seconded.

VOTE:  Unanimous (5-0-0)

K. Ferreira he had spoken to Ms. Sampson, ZBA secretary relative to clarification of how people get paperwork out of the ZBA office.  He feels there should be a clear format.  He spoke re:  what is done in Acushnet.

M. Scarsciotti explained what Ms. Sampson gave to her relative to the application packet.  She feels that bad information is being given in the letters of denial.  Discussion ensued re:  some of the cases this evening that shouldn’t have come before the ZBA.  K. Ferreira stated the ZBA doesn’t see people until it is too late.  He suggested that the procedure should be for applicants should go before the Planning Board first, discuss what they want to do, the Planning Board then should tell them what to do, it should be fine.  This is not the way the ZBA works.  The Building Inspector has to give out the denial letter.  Discussion ensued.

Discussion ensued re:  the matter relative to the application of James Franklin.

K. Ferreira feels that the applicants should be signing that they understand the procedure including the packets.  The Board reviewed the application packet.

V.	CONTINUED PUBLIC HEARINGS

A.	#18-07 – 40 West Central Street – Christine Sweeney
(DONE)
B.	#20-07 – Fees

Brief discussion ensued re:  discounts.  K. Ferreira stated the statute doesn’t allow discounts/breaks to be given except to non-profit, 501C3 corporations.  They can request a reduction in fees.  A senior citizen cannot ask for a reduction.

Discussion ensued re:  current fees.  M. Martin suggested a separate application fee should be charged to cover the time of office staff to administer both the application & the decision process.  M. Zollo feels a fee for mailing should be separate.  M. Martin stated the mailings are done certified.  The notices don’t have to be mailed certified.  K. Ferreira stated mailing certified covers the Town.  D. Sharkey feels that generating more money won’t solve the problem because it won’t provide more manpower, for example.

M. Martin & M. Scarsciotti will look into the application procedures.  Brief discussion ensued re:  sign ordinances.  This discussion will be continued to July 13, 2007.

VI.	NEW BUSINESS/DISCUSSION

A.	Discussion:  Response to the Board of Selectmen on Special Employee Municipal Status.

K. Ferreira discussed a meeting w/ the Planning Board & who was present.  Selectman Sauvageau was present to discuss his position as to how eliminating Special Municipal Status raises the integrity of volunteer boards working in Town.  His position is if you want to volunteer your services in Town, you can’t work in Town.  Mr. Cronan felt Selectman Sauvageau stated don’t do business in Town.  M. Zollo asked how can professional people not do business in Town.

K. Ferreira stated that three members of the Planning Board would have issues w/ this SME if eliminated.  He feels it is easy to “keep your nose clean”.  He doesn’t understand why this status is such an issue.  He has never brought anyone before the ZBA.  Sometimes plans show up on the table w/ his name on it & he recuses himself.

M. Scarsciotti stated that Mary Morley of the Planning Board will be drafting a response letter to be presented before the BOS. 

K. Ferreira stated that he is doing two jobs for Wareham residents.  He can’t see turning down a job because he volunteers on the ZBA.  He feels eliminating this status will drain the pool the Town has to choose from.  M. Scarsciotti doesn’t understand why the BOS wants to decimate quality people for no good reason.  Discussion ensued.

The Board members concurred that the ZBA should join in the correspondence that Mary Morley from the Planning Board is drafting.

B.	Oakdale Heights.

M. Scarsciotti stated that the affordable units at Oakdale Heights need to be counted on the list.  They are not counted yet.  She read a letter addressed to Margo LeClaire at DHCD into the record.

VII.	ADJOURNMENT

MOTION:	D. McKinlay moved to adjourn the regular meeting & to enter into Executive Session.  M. Martin seconded.

VOTE:  Unanimous (5-0-0)

Attest:  _________________________
	Don McKinlay, Vice Chairman

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