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:  January 23, 2008

I.	CALL MEETING TO ORDER

K. Ferreira called the meeting to order.

II.	ROLL CALL

Members Present:	Ken Ferreira, Chairman
			Mike Martin, Vice Chairman
			Mary Scarsciotti, Clerk
			Richard Secher
			David Sharkey
			Wilma Engerman, Associate Member
			John Cronan, BOS Liaison (Arrived at 8:00 P.M.)

Member Absent:	Ticia Weare

III.	PRELIMINARY BUSINESS

A.	Minutes to be approved – January 9, 2008

MOTION:	R. Secher moved to approve the meeting minutes of January 9, 2008.  D. Sharkey seconded.
VOTE:  Unanimous (5-0-0)

B.	83 Sandwich Road – Terry Smith – Request to appear before the Board (informally).
C.	Informal discussion/clarification re:  #24-08 – Seed Street – Ron Robinson.

NOTE:	Items B & C were handled later in the evening for informal discussion.  No-one was present to represent these items.

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

V.	PUBLIC HEARINGS

A.	#25-08 – 59 South Boulevard – Ms. Danielle Franzen, c/o William Lockwood

The public hearing notice was read into the record.

Present before the Board:	William Lockwood, Lockwood Architects

K. Ferreira asked if Mr. Lockwood was asked to send out the abutter certified mail cards or did he do it on his own.  Mr. Lockwood stated he supplied the Board’s secretary w/ the certified list of abutters & the secretary sent them out.  They were returned to him, not the Board’s office.

Mr. Lockwood stated there is a small existing house on the property w/ a partial basement.  The applicant wishes to have a larger house on the property.  It is an unusually shaped parcel.  The lot is approx. 3,000 sq. ft.  The proposal is to tear down the existing structure & construct a new dwelling basically on the same footprint.  The front setback will be maintained.  There is a proposal for an open porch.  He submitted plans for the proposed project.

Mr. Lockwood stated the proposed structure will be approx. 1,500 sq. ft.  It will be a two-story structure vs. a one story.  This structure will not significantly affect the neighborhood & will be more in keeping w/ the neighborhood vs. what is presently on the lot.

Brief discussion ensued re:  the existing house shown on the map & the proposed house dimensions.  Mr. Lockwood stated no part of the existing house will remain.  The proposed house will look more set back than the existing house, w/ the exception of the porch.

K.Ferreira clarified that the existing structure is 1.9 ft. off the property line.   The new structure will be the same & be a solid structure.  Brief discussion ensued re:  location of the property & that it is well out of the flood zone, but w/in 100 ft. of the coastal bank.  Thus, there is no issues w/ flood insurance.

M. Scarsciotti asked re:  abutting structures on other properties on the aerial photograph.  Mr. Lockwood explained that this is a house.  Brief discussion ensued.

Audience members were asked for questions or comments.

Present before the Board:	Gail Hern, 63 South Boulevard

Ms. Hern asked to review the photographs & plans.  She asked if abutters to abutters are supposed to be notified.  K. Ferreira stated this is correct.  Ms. Hern stated there was another house that was built five years ago in the neighborhood & she was the abutter to the abutter for that project.  She would have protested it if she had been notified.  It was asked if that project came before the Board.  Ms. Hern doesn’t know how the home was built because she feels it is illegal & there is no parking so the property owners are parking in the park.  Brief discussion ensued.   The Board reviewed where Ms. Hern’s property is located relative to this proposed project.  Ms. Hern stated she was notified for this application.  She has no objections to this project.

M. Martin spoke re:  the Bjorklund vs. Norwell case.  The Supreme Court did not side w/ this type of re-construction (such as the one being presented).  He discussed the findings of the case further.  K. Ferreira has asked Attorney Witten to comment on the case M. Martin is speaking to.  M. Martin concurred that Attorney Witten should review it because it is new.  K. Ferreira feels these types of issues (as cited in the above case) are not things that should be adjudicated before the Board, but should be done by the Zoning Officer ahead of time.  It needs to be coordinated so the Board can utilize it in their decision making.  Discussion continued.

K.Ferreira stated relative to the application at hand, the particular portion of the structure is exactly in the same place it was before & it maintained a one story.  The 1.9 ft. isn’t a two-story structure, but a one story structure.  M. Martin concurred, but the Norwell case decision stated that this type of addition (adding of other rooms, additional living space) can’t be done because the lot is non-conforming.  Thus, it takes it out of the realm of a Special Permit & puts it into the Variance realm.  The mass on the lot would be intensified.

R. Secher asked re:  the living area of the old house vs. new house.  Mr. Lockwood is unclear about the living area of the old house (approx. 600-800 sq. ft.).  The new house will be approx. 1,500 sq. ft.  It is a two-story structure.  Portions of the new house will remain one story.  Brief discussion ensued.  Mr. Lockwood stated the non-conformities that exist remain the same as well in the front & the east side.  The other side setbacks will be more than 10 ft.   Discussion ensued.

D.Sharkey asked what the net increase in height will be w/ the new structure.  Mr. Lockwood stated the net increase will be approx. 10 ft.

M.Martin suggested Mr. Lockwood research the issue of presenting this application as a Variance vs. a Special Permit.  K. Ferreira stated it was sent to the Board as a Special Permit based on the Zoning Officer’s denial letter & it was advertised as a Special Permit, not a Variance.  If it is to be considered as a Variance, it will need to be re-advertised as a Variance.

MOTION:	M. Martin moved to close the public hearing for petition #25-08 – 59 South Boulevard – Ms. Danielle Franzen.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

Discussion ensued re:  how to proceed.

MOTION:	M. Scarsciotti moved to grant a Special Permit per the design submitted & parking provided as shown on plan for petition #25-08 – 59 South Boulevard – Ms. Danielle Franzen.  D. Sharkey seconded.

VOTE:  (3-2-0)
M. Martin & R. Secher opposed

K.Ferreira stated the motion failed due to the lack of super majority vote (4 out of 5 in the affirmative).  M. Martin suggested Mr. Lockwood come back w/ a plan that brings the project more into conformity utilizing the availability of what is inside the footprint.  K. Ferreira stated a motion could be made to re-open the public hearing to discuss options the applicant can take.

MOTION:	M. Martin moved to re-open the public hearing for petition #25-08 – 59 South Boulevard – Ms. Danielle Franzen.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

K.Ferriera stated an option would be to apply for a Variance which would mean re-advertising.  M. Martin stated another plan showing lessening of non-conformities would be looked upon more favorably.  Discussion ensued re:   the public hearing notice only stated a Special Permit & the denial letter specifically stated Special Permit, not a Variance.  The application form states both Special Permit & a Variance.

K.Ferreira again stated, to keep the hearing open, Mr. Lockwood can re-advertise as a Variance & come back w/ a plan that is more w/in the setback requirements.  The second option would be to close the case again, take a vote, the motion would fail, the application would be denied, & the applicant could appeal.  Mr. Lockwood concurred to re-advertise the hearing as a Variance & make revisions to the plan.

MOTION:	D. Sharkey moved to continue the public hearing for petition #25-08 – 59 South Boulevard – Ms. Danielle Franzen to February 27, 2008 for the purpose of allowing the applicant the opportunity to have this case re-advertised as a Variance & come back w/ revised plans.  M. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

NOTE:	Brief discussion ensued re:  item III.  Preliminary Business – B.  83 Sandwich Road – Terry Smith – Request to appear before the Board.

K. Ferreira explained that on 1/14/08, Mr. Smith was denied an application for a sign by the Zoning Inspector because of an existing zoning violation.  M. Scarsciotti stated the existing violation is relative to the three trailers on the property.  They were supposed to have been removed w/in 90 days from when this was discussed.  He thinks possibly Mr. Smith may want to come before the Board to discuss this.

VI.	CONTINUED PUBLIC HEARINGS

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

NOTE:	Mr. Cronan asked re:  legal fees.  He asked who is paying for the legal fees being generated from this matter.  K. Ferreira recalled that the Board went through Mr. Cronan to bring the matter forward to the Board of Selectmen & the Administrator. It The matter was approved to re-open & approved to pursue.  He assumes the Town will pay these fees.  The bill for fees was noted.

M. Scarsciotti explained that she received a phone call from Steven Debuque (Director of South Shore Housing).  Due to a conflict, Mr. Debuque would not be able to attend tonight’s meeting.  His attorney has not completed drafting a complaint against the current property owner, but expects it to be done by the end of this week & a copy will be submitted to the Board.  Mr. Debuque was unsuccessful in getting the units at Oakdale Heights be accepted/counted on the Subsidized Housing Inventory List.  He intends to write a letter of appeal directly to Werner Lohe & a copy of this will also be submitted to the Board next week.  

M. Scarsciotti stated this hearing was continued from 12/12/07 to 1/23/08.  This is six weeks to have completed these two tasks.  Per Mr. Debuque’s request for a meeting he was having w/ DHCD, M. Scarsciotti stated she took time to obtain information he had requested for a meeting the next day.  She is concerned re:  the amount of time Mr. Debuque has had to complete these tasks.  K. Ferreira stated that Attorney Witten has suggested that nothing is lost if the hearing is continued again & allow him to try to move things along.  Attorney Witten stated this would generate a few hours of billable time to do.

M.Scarsciotti stated there is no cooperation from the property owner’s attorney nor the title insurance co. & minimal cooperation from South Shore Housing.  Mr. Cronan doesn’t feel Mr. Debuque will be much help.  He feels the Board should ask Attorney Witten if the Board (Town) should pursue their own lawsuit.  Discussion ensued re:  if the Board (Town) files its own lawsuit.  M. Martin feels if the Town files on its own, it will open the door for potential arbitration which may be quicker.  K. Ferreira wants to be aggressive, but fiscally responsible.

MOTION:	M. Scarsciotti moved to continue the public hearing for petition #20-08 – Avenue A – Access Partners Development, LLC to February 13, 2008.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

VII.	NEW BUSINESS/DISCUSSION

A.	Legal Bill

Brief discussion ensued re:  legal bill(s) for Attorney Witten.  K. Ferreira stated on the 12/07 invoice from Attorney Witten, there is an item for 815 Main Street.  Mr. Cronan asked re:  the issue of the applicant paying legal fees.  K. Ferreira stated there is a decision by the Housing Appeals Committee stating the applicant is not responsible to pay legal fees.  The Town’s rules & regulations state the applicant shall pay the legal fees.  The permit that was issued to 815 Main Street, further specified they had to pay the legal fees.  They deposited $10,000 towards this initially w/ the caveat that they will deposit money under the Town’s rules & regulations, but they will be taking it up on appeal.  The case went to appeal, the appeal was worked out, & a dismissal stipulation based on mediation was given, & they never stated anything about not paying the legal fees.  He feels they did agree to pay the legal fees.  He had asked the secretary to look into the 53G accounts & if there is any money left, the $2,325 of legal fees should come out of this account.  Mr. Cronan would like to know how much is left in this account.  

K. Ferreira explained that out of the total bill of $5,500, $2,300 should be paid by Cornerstone & the remaining amount deals w/ the Avenue A issue & should be paid through the Board of Selectmen.  Mr. Cronan stated the 53G accounts are a major problem in the Planning Dept.  There are disputes about these accounts.  He again wants    the amount that is left in this account to pay this legal bill.

B.	Terry Smith – 83 Sandwich Road

Mr. Cronan asked re:  this matter.  K. Ferreira stated that Mr. Smith requested a sign.  The Building Inspector denied him the sign because he has a current zoning violation.  He is assuming he wants to speak to the Board re:  why he can’t get a sign, etc.  Mr. Cronan understood that the trailers that are at the property where supposed to be removed as part of the conditions.  There was also a condition relative to fencing which has not been put in the right place.  He spoke re:  the buffer zone between the neighbor’s house & Terry’s Home Oil.  There was supposed to be a 20 ft. buffer zone.  A fence was put on the lot line & the trailers have been placed w/in the 20 ft. buffer zone.  He feels there are three violations to the conditions of this permit.

M.Scarsciotti stated that Mr. Smith received a letter dated 12/11/07 from the Building Inspector indicating the cease & desist order given in 10/12/07 relative to these issues giving Mr. Smith until 1/2/08 to comply.  Discussion ensued re:  the trailers on the site.  Mr. Cronan will speak to the Town Administrator to look into the matter.

C.	#24-08 – Seed Street – Ron Robinson

K. Ferreira explained that Mr. Robinson is an abutter on Seed St.  The Board clearly stated in its decision on Seed St. that the road needs to be brought up to specifications of the Planning Board.  Seed St. is a tiny street off Tyler Ave.  Two years ago a gentleman came in wanting to build two houses on some grandfathered lots.  No street existed there.  The Board send this matter to the Planning Board to get the street updated.  The case was subsequently withdrawn.  Recently, this gentleman bought the tiny lot across the street.  The neighbor was encroaching upon this lot by a fence (for over 20 years).  The neighbor filed an adverse possession case & was successful.  The gentleman who purchased the property lost some land, thus, creating a uniquely shaped lot.  Mr. Madden from G.A.F. Engineering presented a plan for a Variance to place a house on this lot.  The Board granted the Variance because the statutory conditions were met.  The neighbors still complained that there is no street there.  The Board’s decision stated that the Board makes no determination as to the accessibility of Seed St. & whether or not it needs to be upgraded as per the standards set forth by the Planning Board.  Thus, the Building Inspector should not issue a building permit until there is a clear street there that is accessible.  The Planning Board sets the standards for street design.

D.  Stroscio Project – Tyler Ave.

Brief discussion ensued re:  the Stroscio project on Tyler Ave. & the sewer issue.  Mr. Cronan spoke to two different Selectmen & they stated that this area is not on the list to be sewered.  K. Ferreira stated the way it is designed, there is no way to build the project w/ a septic system.  Either the sewer connection is granted or the plan needs to be re-designed.  K. Ferreira explained what the applicant was directed to do by the Board.

The Board reviewed the Bylaw, s.8243 & discussed how it is applicable to this case.  Discussion ensued re:  the lot (size & area) & plans submitted.

VIII.	ADJOURNMENT

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

VOTE:  Unanimous (5-0-0)

Attest:  _________________________
	Mary Scarsciotti, Clerk
	ZONING BOARD OF APPEALS

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