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

Date of Meeting:  October 8, 2008

I.	CALL MEETING TO ORDER

K. Ferreira called the meeting to order.

II.	ROLL CALL

Members Present:	Kenneth Ferreira, Chairman
			Mary Scarsciotti, Clerk
			Michael Martin
			David Sharkey
			Richard Secher
			Ticia Weare, Associate Member
			Wilma Engerman, Associate Member

K. Ferreira discussed the meeting procedure for this meeting.

III.	PRELIMINARY BUSINESS

A.	Minutes to be approved:  July 9, 2008, August 13, 2008, August 27, 2008 & September 17, 2008.

M. Scarsciotti explained that added information needs to be placed into the July 9, 2008 minutes.  M. Martin asked what information.  M. Scarsciotti explained that it is information relative to the Union Pond discussion w/ Selectman Potter.  Brief discussion ensued.

MOTION:	D. Sharkey moved to approve the meeting minutes of August 13, 2008, August 27, 2008, & September 17, 2008.  R. Secher seconded.

VOTE:  Unanimous (6-0-0)

NOTE:	The meeting continued w/ item VI.  Continued Public Hearings.

A.	#45-08 – 22 Onset Avenue – Paul Deligianidis

Present before the Board:	Paul Deligianidis

K.Ferreira noted the Board is looking for a more definitive site plan.  Mr. Deligianidis submitted a site plan which the Board reviewed.  The property is in a flood zone.  The Board will not grant a Variance from the flood zone, thus, the applicant will need to take care of this w/ the engineer & build in accordance w/ the flood zone regulations.

Brief discussion ensued re:   if any parking will be gained & what the elevation of the structure will need to be.

The applicant submitted a revised floor plan which the Board reviewed.

Audience members had no questions or comments.

MOTION:	R. Secher moved to close the public hearing for petition #45-08 – 22 Onset Avenue – Paul Deligianidis.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	R. Secher moved & D. Sharkey seconded to grant a Special Permit for petition #45-08 – 22 Onset Avenue – Paul Deligianidis w/ the following conditions:

•	Construction be built in accordance w/ plot plan submitted for 22 Onset Avenue prepared by Steven J. Doyle, Registered Land Surveyor dated October 6, 2008 & per floor plan by R.P. Gremo, Inc.
•	Sufficient off-street parking to be provided appropriate to the use.
•	All other regulations be met by applicable boards & the granting of this Special Permit does not relieve the applicant of any obligations re:  FEMA & flood zone issues relative to the MA State Building Code.

VOTE:  Unanimous (5-0-0)

IV.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES

A.	Discussion request:  6-8 Plymouth Road – Gino Vasconcellas – Pre-existing non-conforming lots.

Present before the Board:	Gino Vasconcellas

Mr. Vasconcellas explained the dimensions of his lot.  His mother owns the lot next door.  His property line is 8 ft. off the back corner of his home.   Both lots are non-conforming.  His lot is 10,525 sq. ft., his mother’s is 24,330 sq. ft.   His mother wants to give him some property.  Thus, his mother’s lot would become smaller/more narrow & his would become bigger.  Brief discussion ensued.

K. Ferreira noted that the next case to be heard is the same situation.  Mr. Vasconcellas’s mother would need a Variance, but he would not, thus there would be one Variance.  M. Martin clarified that Mr. Vasconcellas’s lot would become conforming where his mother’s lot would become more non-conforming.

K. Ferreira suggested Mr. Vasconcellas stay & listen to the next case.

V.	PUBLIC HEARINGS

A.	#51-08 – Park Avenue (White Island) – Bernadette C. Hill, c/o Attorney Leonard M. Bello

The public hearing notice was read into the record.

Present before the Board:	Attorney Leonard M. Bello

Attorney Bello submitted packets of information to the Board.  He noted the lots the applicant owns.  The lots all abut together & for zoning purposes they combine together to form one non-conforming building lot which there already sits a single family home.  The home sits on lots 1236 & 1237.  Each lot is 30x100, therefore the nine lots have a total of 27,000 sq. ft.  There is 120 ft. of frontage on Park Ave. & 150 ft. of frontage on Puriton Ave.  If not for the 9th lot, 1239, the other eight lots would form a box-shaped parcel 120 ft. x 200 ft. for a total of 24,000 sq. ft.  The applicant wants to convey 3,000 sq. ft. of 1239 to Adam & Constance Smolskey.  The Smolskey’s presently own lots 1240 & 1241 in which there is a single family home.  The Smolskey’s home also sits on a pre-existing non-conforming lot, but it is only 60x100 ft. for a total of 6,000 sq. ft.  The applicant & the Smolskey’s are related.  The properties have been family owned for more than 50 years.  The Smolskey property would increase to 9,000 sq. ft. w/ said conveyance.  This conveyance would result in the applicant’s lot becoming slightly more non-conforming, it would lessen the non-conformity of the Smolskey’s property.  Both properties are serviced by Town water & private septic.  Adding lot 1239 to the Smolskey lot would provide a buffer between the properties & add land to place a septic system.  The uniqueness of the property is in size & shape.  It is the largest parcel in the neighborhood.  The conveyance of lot 1239 would straighten the side lot line.  There is no detriment to the neighborhood nor any derogation from the zoning Bylaws.  There is no new lot being created.

K. Ferreira noted why this property could be conveyed w/out ZBA input.   Brief discussion ensued.

Audience members had no questions or comments.

MOTION:	R. Secher moved to close the public hearing for petition #51-08 – Park Avenue – Bernadette C. Hill.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved to grant a Variance for petition #51-08 – Park Avenue – Bernadette C. Hill w/ the finding that a denial of a Variance would provide harm to the petitioner that outweighs the strict enforcement of the Zoning Ordinance requiring that the size or shape of the lot is unique, there be no degradation in the spirit intent of the Ordinance, there be no derogation from the spirit of the Ordinance & that there will be no detriment to the neighborhood, & further finding that as a result of the conveyance, the public good would be served by the separation of one lot to the abutter to bring it more into conformity.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

B.	#52-08 – 4 Pleasant Street – Joseph & Donna DiPersio

The public hearing notice was read into the record.

Present before the Board:	Mr. & Mrs. DiPersio

Mr. DiPersio stated they have a two bedroom cottage which is very small.  They would like his growing family to come to the cottage.  They are proposing an addition on the back of the cottage (16x21).  Two of the sides will be w/in the structure lines.  He discussed what the 3x8 bump out is.  The addition maintains the line of the house, but there are portions of the house that are closer than 7 ft. the lot line.

K.Ferreira noted that the Building Inspector’s denial states it is not a Variance, but a Special Permit because the applicant will not be getting any closer to the side lines that exist & not getting w/in less than the rear yard setback.

Mr. DiPersio stated presently it is a one-story structure.  The back end will become a two-story.  He doesn’t know if he is in the flood plain.  He discussed a Variance that he acquired prior.  He will be adding a new 4 ft. foundation for the new structure.  Upstairs there will be two bedrooms & a bathroom & downstairs there will be the kitchen & living room.  There is currently a deck on the back & a porch will be going in to replace the deck.  He will end up w/ a total of four bedrooms.

Audience members were asked for questions or comments.

Present before the Board:	John Cronan, BOS Liaison

Selectman Cronan asked what is next door to this property.  Mr. DiPersio stated to the right there is a single family home.  Selectman Cronan asked if there are any two-story buildings around his property.  Mr. DiPersio stated there is behind them.

K.Ferreira noted if a property is in the flood zone, the addition of a second floor may cause issues.  This Board cannot grant any relief from FEMA regulations or flood zone regulations since they have been amended by the new State Building Code which took effect 1/1/08.

Brief discussion ensued re:  parking.

Brief discussion ensued re:  having a condition that states the site plan submitted to the Building Inspector will have to show the addition will not get closer to the lot line vs. the existing structure prior to obtaining the building permit.  M. Martin would like to see an engineered site plan first.  Discussion ensued.  The Board members concurred w/ M. Martin re:  an engineered site plan.  K. Ferreira noted that the Building Inspector will require a foundation as-built certified by an engineer/surveyor when the foundation is done.

MOTION:	R. Secher moved to continue the public hearing for petition #52-08 – 4 Pleasant Street – Joseph & Donna DiPersio to October 22, 2008.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

C.	#53-08 – 6 Prospect Street – Martha Maguire, c/o William Lockwood

The public hearing notice was read into the record.

Present before the Board:	William Lockwood, Lockwood Architects

K.Ferreira noted that there is no file for the next hearing for, petition #54-08, thus this application cannot be handled this evening.  Mr. Lockwood stated he filed it.  

NOTE:	K.Ferreira departed this time to look in the ZBA office for the file.

Mr. Lockwood explained the project entails raising the existing roof approx. 4 ft. over approx. 2/3’s of the structure.  Part of the structure is w/in the registered setbacks.  The building elevation will not be changed in the front.  The intent of the project is to gain some head room.  The floor plan will remain the same & exterior foot print is unchanged.

Audience members had no questions or comments.

Mr. Lockwood stated there is already living space now where the proposed increase in the roof will be.  There is a cathedral ceiling presently.  He briefly noted the roof plan.  

M. Scarsciotti asked if the 4 ft. addition to the roof will increase the overall height of the building.  Mr. Lockwood stated it will increase the overall height.  The overall height currently is 6.6 ft.   Brief discussion ensued.

M. Martin noted the standard for approval is the lot has to be a pre-existing non-conforming use.  This seems to be affirmative based on Mr. Lockwood’s statement.  There should be no substantial intensification of the non-conformity for the creation of any new or any additional non-conformities.  There will be no substantial detriment to the neighborhood which includes noise, lights, views/vistas, & traffic.

MOTION:	R. Secher moved to close the public hearing for petition #53-08 – 6 Prospect Street – Martha Maguire.  M. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	R. Secher moved & D. Sharkey seconded to grant a Special Permit for petition #53-08 – 6 Prospect Street – Martha Maguire w/ the finding that  said alteration/expansion of this lawfully non-conforming structure will not intensify existing non-conformities nor create any new non-conformities & further, such alteration/expansion of this use will not be substantially detrimental to the neighborhood & further w/ the following conditions:

•	Alteration/expansion will be in conformance w/ plan as identified as A1 prepared by Lockwood Architects for Martha Maguire dated 9/5/08.

VOTE:  Unanimous (5-0-0)

D.	#54-08 – 16 Maple Street – Howard Gilmore, c/o William Lockwood

NOTE:	K. Ferreira returned to the table.
		
		M. Martin recused himself & left the table for this hearing.

The public hearing notice was read into the record.

Present before the Board:	William Lockwood, Lockwood Architects

Mr. Lockwood explained the project entails a second floor addition/expansion.  MR. LOCKWOOD WAS VERY HARD TO HEAR ON TAPE.

Mr. Lockwood explained there is a pre-existing non-conformity of a setback.

Mr. Lockwood stated it is not extending beyond the first floor footprint.  He discussed the enclosed first floor porch & the living area.  The porch will stay enclosed, but will be incorporated more into the living space vs. what it is now.  The porch & living area are separated now by a wall.  Brief discussion ensued.

K.Ferreira noted the site plan & where the work will be done.  He asked what is in the back.  Mr. Lockwood stated a closet will be put over an existing entry.  Brief discussion ensued.

Audience members were asked for questions or comments.

Present before the Board:	Gerry Hannon

Mr. Hannon lives directly across the street & he is in favor of the project.   Mrs. Hannon is also in favor.

MOTION:	R. Secher moved to close the public hearing for petition #54-08 – 16 Maple Street – Howard Gilmore.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	R. Secher moved & D. Sharkey seconded to grant a Special Permit for petition #54-08 – 16 Maple Street- Howard Gilmore w/ the following conditions:

•	All renovations/additions shall be as per plan submitted dated through 9/10/08 prepared by William Lockwood for Howard Gilmore, 16 Maple Street.

VOTE:  Unanimous (5-0-0)

NOTE:	M. Martin returned to the table.

NOTE:	The meeting continued w/ item VII.  New Business/Discussion.

A.  Carlton Place/Mrs. Mann’s fence.

Present before the Board:	Mrs. Mann

K. Ferreira noted that this fence is a separate issue.  Brief discussion ensued re:  an easement.  M. Martin questioned if the Town already had an easement.  The fence was to be given to Mrs. Mann for her consideration on granting the easement.  If the easement was already granted, why give the fence.  K. Ferreira read a letter from Wayne Delpico representing Mulligan Co. dated in 2007 relative to the fence matter into the record.  

K. Ferreira stated there clearly is an agreement to put up the fence as long as the easement issue is solved.  The fence would be along the property boundary, not the easement.  The easement is for the actual pipe location.

Present before the Board:	John Cronan, BOS Liaison

Selectman Cronan explained that at the time of the hearing, there was a concern that the pipe couldn’t get in there so there wasn’t a right to get in there.  M. Martin believes the improvements that were there prior to Carlton Place did not have permission to be there.  No easement existed.  Discussion ensued.

Present before the Board:	Richard Tabaczynski, Atlantic Design engineer who drew plans

K. Ferreira stated Mr. Tabaczynski did the plans for Carlton Place.  The ZBA required they do some off-site improvements, such as re-laying a pipe.  The plan submitted has a note on it stating “a non-recorded easement as shown on plan of ______________ over land of Carlton Hammond prepared for the Town of Wareham….” There is a plan w/ the easement on it at the Registry.  Thus, there appears to be an easement.  Mr. Tabaczynski reviewed the plan(s) & easement location.

K.Ferreira spoke re:  the construction drawings for Carlton Place where the off-site improvements were done.  They show a new pipe constructed.  There is a man-hole on Mrs. Mann’s land.  The Town of Wareham needs an easement for the pipe going across a certain portion of land.  Mrs. Mann is willing to sign this, but it needs to be drafted.  Selectman Cronan will work w/ the Interim Administrator to draft an easement to the Town for the actual pipe location.

VII.	CONTINUED PUBLIC HEARINGS

A.	#45-08 – 22 Onset Avenue – Paul Deligianidis (DONE)

B.	#47-08 – off Standish Avenue – Bartlett Pond Village, LLC, c/o Attorney Robert L. Devin

Present before the Board:	Attorney Robert L. Devin

K. Ferreira noted the issue of money to be paid by Attorney Devin.  Attorney Devin received notice from the ZBA secretary relative to invoices due.  He sent them along to the applicant along w/ the letter stating the need for more money to replenish the account.  He expects to get the check in the next few days.  When he does, he will FedEx the money to the ZBA Dept.  He has no money this evening.

K. Ferreira discussed the issue of Safe Harbor Status which is under appeal.  The Board could suspend the hearing.  The Board is not waiving their right to the Safe Harbor appeal as it is going through the process.  Attorney Devin stated he spoke to Attorney Witten & they are in agreement that either solution is acceptable.  K. Ferreira noted that by allowing the hearing to continue, no-one is waiving any rights.

K. Ferreira asked the Board how they wish to proceed.  K. Ferreira noted there is enough money in the account to pay the invoices for work to date, w/ the exception of their presence tonight.  There is a last invoice for Mr. Heaton & Hancock Associates that needs to be paid.  Attorney Devin believes the applicant will pay for everything that has been accrued through this evening, but there isn’t enough to move forward.  K. Ferreira stated he will direct Mr. Heaton & Hancock Associates not to do any more work until the account is replenished.

Brief discussion ensued re:  extending the 180 days another 30 days & moving the hearing to December 10, 2008 so all board members are present.  Attorney Devin concurred to add 30 days to the statutory time period of 180 days to conduct the public hearings.

MOTION:	R. Secher moved to cancel the November 26, 2008 hearing of the ZBA.  M. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

Attorney Devin stated they met w/ the BOS last night to discuss the project.

Present before the Board:	John Cronan, BOS Liaison

Selectman Cronan stated the applicant presented the plan submitted to the Board.  There were mixed comments from the BOS.  His comments dealt w/ the size of the lot (12,000 sq. ft.) & this being a 40B project.  The BOS were pleased w/ the three-four model homes being proposed, which the applicant would consider increasing to four to five.  One BOS member was concerned re:  the road being straight down & the houses should be on each side.  There were questions re:  the houses in the back in which the driveways seemed too long.  Discussion had ensued re:  affordability of the homes for Wareham residents.  He feels it was a productive meeting/discussion.

Selectman Cronan stated the issue of septic systems came up & Selectman Eckstrom feels they should look into nitrogen reducing systems.  The applicant indicated they would speak to the ZBA about this.  

Attorney Devin spoke re:  the credit program for market units & how the program works.  He stated the program allows for up to 15% of the lot value is given as a credit to the down payment.  Discussion ensued re:  how the program works.  T. Weare clarified that allowing the developer to obtain the greater density is what will allow the developer financially to give back the 15%.  Attorney Devin discussed workforce housing.  M. Martin feels the applicant is offering this proposal as a counter balance to a discussion on moving from 18 units to 12 units.  He is not interested in this.  T. Weare concurred.

K. Ferreira stated a problem is the plan is very regimented.  It is a straight run down to a cul-de-sac.  There are no curvatures.  It doesn’t look like desirable housing; there is no character.  He understands the piece of land is very narrow & not many options.  The road could be curved around a bit w/ a cluster of units off on one side.

Attorney Devin spoke re:  the response given to Hancock Associates comments.  He has not heard back from Hancock as of yet.

Present before the Board:	Frank McCeary, Hancock Associates

Mr. McCeary spoke re:  the applicant’s response letter dated 9/24/08.  He discussed what was reviewed.  He noted Zone 2 (for water) that is indicated on the applicant’s plan.  He suggested the Board investigate this.  K. Ferreira clarified that a study was done to determine where the line should be based on drawing down of the wells.  Discussion ensued.

Mr. McCeary discussed soil testing, drainage calculations, & results.  Brief discussion again ensued re:  Zone 2, wells, & groundwater.  K.Ferreira expressed the need for more information.

Mr. McCeary discussed drainage issues at the site & fencing. 

Present before the Board:	Dick Heaton, Consultant

Mr. Heaton feels a topic for the next meeting is the reduction of the depths & its impacts.     K.Ferreira expressed the importance of obtaining more concrete numbers & a more concrete layout.            

K.Ferreira clarified that the Board has directed Hancock & Mr. Heaton not to proceed w/ any further billable hours after this evening until funds are received from the applicant.  Once these funds become available, the representatives will be authorized to go back to working on the project on behalf of the Board.  

Brief discussion ensued re:  drainage ponds & recommended depth.

Audience members were asked for questions or comments.

Present before the Board:	Tim Maber, 1 Standish Avenue

Mr. Maber asked re:  the containment pond.    He described where he lives.  He expressed concern re:  oil & gas reaching his water source.  It was explained to Mr. Maber that prior to the stormwater going into this basin, cleansing devices will provided in the system.  This will prevent gas, oil, etc. from getting into the basin.  He discussed a stormceptor unit prior to discharge into the basin which cleans suspended solids out of the stormwater before it gets into the basin.

Mr. Maber expressed concern re:  the proposed straight-way roadway.  There is already speeding on Standish Ave.  He feels this straight-way will create more speeding.  K. Ferreira suggested a raised table upon entering the development & lay-aways & speed tables vs. a speed bump.  

K.Ferreira clarified that discussion is being held re:  reducing the number of units from 18 to another number.  The next meeting for this hearing will be December 10, 2008 & hopefully revised plans will be submitted at that time.  He also spoke re:  BOS comments relative to de-nitrification & nitrogen removing septic systems.

MOTION:	M. Scarsciotti moved to continue the public hearing for petition #47-08 – off Standish Avenue – Bartlett Pond Village, LLC to December 10, 2008.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

VIII.	ADJOURNMENT

MOTION:	D. Sharkey moved to adjourn the meeting.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

Attest:  _________________________
	Mary Scarsciotti, Clerk

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