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

Date of Meeting:  December 10, 2008

I.	CALL MEETING TO ORDER

K. Ferreira called the meeting to order at 7:30 P.M.

II.	ROLL CALL

Members Present:	Ken Ferreira, Chairman
			Mary Scarsciotti, Clerk
			David Sharkey
			Richard Secher (Arrived at 8:00 P.M.)
			Ticia Weare, Associate Member
			Wilma Engerman, Associate Member
			John Cronan, BOS Liaison (Arrived at 7:30 P.M.)

Member Absent:	Mike Martin

K. Ferreira explained the hearing procedures to be followed.

NOTE:	The meeting proceeded w/ item VI.  Continued Hearings - #47-08 – Off Standish Avenue – Bartlett Pond Village, LLC, c/o Attorney Robert L. Devin.

K.Ferreira noted a letter received requesting the Board continue this hearing to 1/14/09.  Attorney Devin has agreed to waive the additional 30 day statutory time period that the Board would normally have to arrive at a vote due to the continuance.

MOTION:	T. Weare moved to continue the public hearing for petition #47-08 – Off Standish Ave. – Bartlett Pond Village, LLC to January 14, 2009.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

III.	PRELIMINARY BUSINESS

A.	Minutes to be approved:  October 8, 2008 & November 12, 2008.

MOTION:	D. Sharkey moved to approve the minutes of October 8, 2008.  T. Weare seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	D. Sharkey moved to approve the minutes of November 12, 2008.  T. Weare seconded.

VOTE:  Unanimous (5-0-0)

NOTE:	The meeting proceeded w/ item V.  Public Hearings.  D. Petition #061- 08 – 7-Eleven, Inc. – 2196 Cranberry Highway.

K. Ferreira stated that this petition will be withdrawn.

Present before the Board:	Dan Krolstein, Attorney

Attorney Krolstein briefly discussed the history of this petition presented by Alan Sipe previously.  The goal set now is there is a commitment by 7-Eleven to come back to the Board & show why they feel they can propose the work re:  the diesel fuel pumps.  There will be a need to address concerns of the abutter, work w/ the Board on a site plan, & show why this project will not be more detrimental to the area.

Attorney Krolstein proposed to withdraw the application w/out prejudice & then reapply.  K. Ferreira spoke to Attorney Krolstein earlier.  He stated the Board would entertain a motion to withdraw & to listen to an argument allowing them reapply because it would save money vs. appealing the matter.  The outcome may be the same (w/ the new decision), but again, it spares the expense of hiring Town Counsel, going to court, etc.

Attorney Krolstein will submit a formal letter to the Board requesting withdrawal of the application.

MOTION:	M. Scarsciotti moved to allow petition #061-08 – 7-Eleven, Inc. – 2196 Cranberry Highway to withdraw the application without prejudice.  D. Sharkey seconded.

M. Scarsciotti asked if this suggests 7-11 would be submitting a totally different plan.  Attorney Krolstein stated they will be.  Brief discussion ensued.  

Mr. Cronan questioned the proposals.  K. Ferreira explained what these proposals (withdrawal & reapply) mean.  Mr. Cronan expressed concern re:   this will set a precedent for reapplying before two years.  K. Ferreira noted that any individual decision made by the Board doesn’t set precedent.  His issue is if this decision is appealed, it goes to court, & remanded back by a judge it would be better to allow the applicant to reapply & show material change.

VOTE:  Unanimous (5-0-0)

MOTION:	D. Sharkey moved to allow 7-Eleven, Inc. – 2196 Cranberry Highway to grant a re-application since there appeared to be material and substantive changes to allow a re-application before the required two year-prohibition on repetitive petitions.  M. Scarsciotti seconded for discussion.

NOTE:  T. Weare expressed concerns that go beyond the matter w/ the abutter, such as the open land across the street where large tractor trailers park illegally.  Brief discussion ensued.

Discussion ensued re:  repetitive petitions & the uniqueness of this application.

Roll Call Vote:	M. Scarsciotti – Yes
			D. Sharkey – Yes
			T. Weare – Yes
			W. Engerman – Yes
			K. Ferreira – Yes

VOTE:  Unanimous (5-0-0)

B.	#132-05 & 007-06 – 15-17 Independence Lane – Point Independence Yacht Club (To be handled later in the meeting)
C.	#67-04 – Certificate of Granting (re-execute) for “The Woods at Great Neck”, c/o Jay Peabody (To be handled later in the meeting)

IV.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES

A.	#055-08 – Elkalassi Family Trust, c/o G.A.F. Engineering, Inc. – 1 Elizabeth St. & 18 Deane St. (To be handled later in the meeting).
B.	#20-08 & 15-99 – Avenue A – Status (To be handled later in the meeting)
C.	Drainage Easement Plan – Mann Property – Map 2, Lot 1025A6 – New issue w/ parcel vs. lot (To be handled later in the meeting)

V.	PUBLIC HEARINGS

NOTE:	R. Secher arrived at this time.

A.	#058-08 – Gail & John Murphy, c/o Lockwood Architects – 67 Longwood Avenue, Onset, MA

Present before the Board:	Bill Lockwood, Lockwood Architects

The public hearing notice was read into the record.

Mr. Lockwood described the project. The proposal is to demolish the dwelling on the front portion of the lot and build a new one.  The same size footprint will be used & the height of the story will be increased.  He proceeded to discuss other aspects of the project, such as the existing structure.

K.Ferreira questioned if the ridge height of the new structure would be substantially compatible w/ the ridge heights of abutting structures.  Mr. Lockwood stated the ridge line of the yellow house on the left is quite higher than what is being proposed for this project.  

Discussion ensued re:  the aspects of the project.

K.Ferreira expressed concern re:  offset of new structure.  Mr. Lockwood stated it will not get any closer to the lot line.  Brief discussion ensued re:  grade & the driveway.

Audience members were asked for questions or comments.

Present before the Board:	Mr. Dickenson, 22nd St.

Mr. Dickenson stated ___________________________(Inaudible)

D.Sharkey would like to have a more detailed plan on file to make sure all the details relating to setbacks are more definitively spelled out.  K. Ferreira suggested this be put in as a condition.

MOTION:	M. Scarsciotti moved to close the public hearing for petition #58-08 – Gail & John Murphy – 67 Longwood Ave., Onset, MA.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Scarsciotti moved & T. Weare seconded to grant a Special Permit for petition #58-08 – Gail & John Murphy – 67 Longwood Ave., Onset, MA w/ the following conditions:

•	Construction shall conform substantially to plan dated 10-25-08, drawing A1.
•	No part of the structure shall be closer to the street/property lines than what exists presently, and to further clarify, the northerly corner must be no less than 8’.
•	An as-built shall be filed w/ the Building Inspector & the ZBA showing all setbacks, specifically to the northerly property line & all projections from the foundation & porch to the street line.
•	Off street parking to be maintained as is.

VOTE:  Unanimous (5-0-0)

B.	#059-08 – John & Barbara Kellegrew – 64 West Boulevard, Onset, MA

The public hearing notice was read into the record.

Present before the Board:	Barbara Kellegrew
Mrs. Kellegrew described the proposed project.  It entails plans to demolish an existing room and build a new deck.  The footprint will not change.   She noted the placement of the stairs.  Discussion ensued re:  the proposal.

Audience members were asked for questions or comments.

Present before the Board:	A gentleman

The gentleman spoke in favor of the application.

Present before the Board:	Nazi Elkallassi, 89 Sandwich Rd.

Mr. Elkallassi stated he is in favor of this application, but he feels this applicant should get money back for this application because he doesn’t feel it needed to go before the ZBA.  K. Ferreira explained if there is a denial letter from the Building Inspector, the ZBA needs to follow the process.  There is a denial letter on this case.  Brief discussion ensued.  T. Weare feels it is before the ZBA because the new deck will come closer to the street.  Discussion ensued.  Mrs. Kellegrew stated the deck will come no closer to the street than what is currently there.

MOTION:	R. Secher moved to close the public hearing for petition #059-08 – John & Barbara Kellegrew - 64 West Boulevard, Onset, MA.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Scarsciotti moved & R. Secher seconded to grant a Special Permit for petition #059-08 – John & Barbara Kellegrew – 64 West Boulevard, Onset, MA w/ the following conditions:

•	Granted per sketch submitted.
•	No part of the new deck to be closer than the existing foundation.
•	Deck to be 15’6” x8’.

VOTE:  Unanimous (5-0-0)

C.	#060-08 - Terry W. Smith, d/b/a People Helping People w/ Christ – 83 Sandwich Road

The public hearing notice was read into the record.

Present before the Board:	Attorney Robert Perry
				Terry Smith

Mr. Smith he would like to amend the prior Variance issued.  Currently, he is in violation of the Variance.

The Board reviewed the conditions of the Variance & Mr. Smith noted the conditions he is in violation of, such as the lack of a 20 ft. landscape buffer (he has a fence).  Mr. Smith is asking for an amendment to the landscape buffer w/ the placement of the fence.  K.Ferreira noted the tractor trailers that were to be removed as of 2006 are still a violation.  Mr. Smith stated there are still three tractor trailers on the property.  Brief discussion ensued re:  lighting & the lighting Bylaw.

Attorney Perry stated the Building Inspector has made issue of signage.  Mr. Smith is willing to make the signage conform to the sign Bylaw.

K. Ferreira asked what Mr. Smith’s plan is for the trailers.  Trailers are not allowed for storage.  Attorney Perry stated it is Mr. Smith’s hope/intent to build a nice building there.  Mr. Smith runs a non-profit organization w/out a lot of income.  Mr. Smith is a few years from building something.

K. Ferreira stated in 2006, the Board was told the trailers would be removed w/in 90 days.  This was two years ago.  The trailers are a violation of the order given.  The 90 days were offered by Mr. Smith.  He asked Mr. Smith what a reasonable expectation would be for the trailers to be removed.  Mr. Smith replied two years.  He apologized for what has taken place.  The needs of the community have increased drastically, especially in the past months.  He is a registered 501C3 Corp.  Brief discussion ensued.

Audience members were asked for comments or questions.

Present before the Board:	Nazih Elkallassi, 89 Sandwich Rd.

Mr. Elkallassi asked if Mr. Smith’s operation is truly non-profit & where does the money go that is being generated from selling the wares donated.  Mr. Smith stated the money generated goes into a savings.  Money is being raised currently to provide a free drug & alcohol rehab. facility.  A building is needed, not necessarily on his property.  He discussed a similar rehab. facility in Brockton & what they do.  Again, all the money goes into the savings.  T. Weare stated a letter from some time ago from Mr. Smith stated that the money generated will go towards supporting his family and the non-profit.  Mr. Smith stated none of the money is supporting his family.  The money does pay for the business expenses.  T. Weare read said letter into the record.  Mr. Smith again stated he is not taking money to support his family.  

Present before the Board:	A woman

The woman stated originally, Mr. Smith felt he would need the income from People Helping People to help support his family.  

Mr. Elkallassi stated at some point he will sell the two houses he owns abutting Mr. Smith’s property.  He feels people would complain about Mr. Smith’s property when they buy his homes.  Presently, he doesn’t mind what Mr. Smith is doing, but there needs to be a plan soon to deal w/ the trailers in the long run as well as a permanent building & signage.  

K.Ferreira asked if there is a way to screen the trailers.  Brief discussion ensued.  Mr. Smith stated the building is 20x30.  In order for his business to grow, it needs time for it to do what the intention is.  The trailers are a necessity right now.  He is not in this for the money.  The response to his operation has been overwhelming as far as support he has received.

K. Ferreira asked how long it has been since the Building Inspector got involved & brought this matter to the housing court.  Mr. Smith stated about one year.  K. Ferreira asked what the remedy & timeframe is for this matter.  Attorney Perry suggested voiding the whole ______________.

R. Secher expressed concern re:  nothing being done in past two years & he doesn’t know what can be accomplished in the next two years, if granted.  T. Weare asked what would allow Mr. Smith to not need the trailers anymore.  Mr. Smith stated it would be getting a building up.

T. Weare summarized that the money being taken in will first be going to build a structure & then going towards the drug/alcohol facility.  Brief discussion ensued.  R. Secher asked if Mr. Smith would be able to generate enough money in two years to build a structure.  Mr. Smith stated at that time he would be able to secure a loan w/ the savings he would have.

K. Ferreira stated if the Board establishes timeframes, Mr. Smith will need to meet these timeframes.  Failure to meet any of them will nullify the Variance at which time the Building Inspector will bring Mr. Smith back into housing court.  W. Engerman asked what is in the trailer & how the articles are shown to interested parties.  Mr. Smith stated he is using the trailers as part of the sales showroom.

Discussion ensued re:  establishing timeframes & a viable business plan.  Mr. Smith stated his plan was to clear the issues w/ the Building Inspector & apply for a permit to put an addition on the back of the existing building & on the side.  He now has enough money to do this.  If he is allowed to put on the additions, he can eliminate two of the trailers.  The next step would be to build another building in the back of the property for storage.  He stated if the court matter is cleared up, he will submit a plan to the Building Inspector w/ plans w/in the next three months.  The Board suggested six months or sooner to apply for a building permit.  K. Ferreira stated if Mr. Smith doesn’t apply for the building permit w/in six months from now, the Variance will be null & void.  This six month timeframe also will include any other permits needed, such as Conservation.

R. Secher feels the trailers should be removed now.  T. Weare asked if Mr. Smith has looked into off-site storage.  Mr. Smith stated this wouldn’t work.  T. Weare stated this is because he isn’t just using the trailers as storage.

K.Ferreira suggested if the first step (obtaining the permits) is approved, the construction will need to commence six months after the first six months is up (for the permits).  Discussion ensued.  

Brief discussion ensued re:  Mr. Smith’s hours of operation.

K.Ferreira asked if the Board members are comfortable w/ the suggested timeframes.  Several members stated they are not comfortable.  R. Secher & D. Sharkey don’t feel any attempts have been made to fix the issues & credibility to accomplish the project.

K. Ferreira explained there is an application to modify the Variance before the Board.  There is the issue of the fence & the trailers.  Mr. Smith stated w/out the trailers at this point, the operation is done.

Brief discussion ensued re:  if this modification application isn’t approved, is coming in w/a building addition a repetitive petition to this one.  It was stated it isn’t because Mr. Smith is not asking for the building this evening.  Brief discussion ensued.

MOTION:	M. Scarsciotti moved to continue the public hearing for petition #060-08 – Terry W. Smith, d/b/a People Helping People w/ Christ – 83 Sandwich Rd. to  January 14, 2009.   K. Ferreira seconded.

VOTE:  (3-2-0)
R. Secher & W. Engerman opposed

NOTE:	K. Ferreira made a ruling that a super majority vote of the Board is not needed for a continuance.  A majority vote is needed for a continuance.

      D. Petition #061- 08 – 7-Eleven, Inc. – 2196 Cranberry Highway. (DONE)

E. #052-08 – Donna DiPersio – 4 Pleasant Street

No-one was present to represent the application.  Brief discussion ensued.

MOTION:	R. Secher moved to continue the public hearing for petition #052-08 – Donna DiPersio – 4 Pleasant St. to January 28, 2009 pending receipt of a written waiver to extend the time to open the public hearing within 14 days, further, if the written waiver is not received within 14 days of today, the application will be denied with prejudice.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

VI.	CONTINUED HEARINGS

A.	#50-08 – Off Marion Road – Wareham Plaza Associates, Inc.

The public hearing notice was read into the record.

Present before the Board:	Attorney Larry Winoker
				William Madden, G.A.F. Engineering
				Ann Dumas, MDM Traffic Engineers
				Larry Goldstein

K.Ferreira noted this hearing, although advertised for an amended application, the beginning of the hearing was heard by the regular board, including M. Martin who is not present.  He has discussed this w/ the applicant’s counsel & he indicated it would be acceptable for M. Martin to listen to the tape re:  minutes of this meeting pursuant to the Mullin Rule & M. Martin would then be able to vote on the final decision.

Attorney Winoker explained there are two petitions before the Board.  One is an application for a Special Permit which has been amended to include a request for a Variance.  The other is an application for a Special Permit for site plan review.  There are four petitions pending w/ the Planning Board which are applications for a cluster, site plan review, sub-division approval, & modification of Beaver Creek Lane subdivision.  There has been issues w/ the Planning Board not having five members, thus the hearing before them has not been opened yet.  He discussed the various applications filed.

Attorney Winoker presented & discussed the proposed project, including conservation matters, zoning matters, roadways & traffic dealing w/ this application at length.

K.Ferreira asked why Lot 5 is cut out from Lot 4.  Attorney Winoker stated originally this was to be included, but he suggested that someday this lot may be needed for additional area, such as drainage.  It is mainly a wetland.  Lot 5 is not part of the 40 acres being spoken about.  Brief discussion ensued.

K.Ferreira asked how many acres are Lots 1,2,3 & 4 (where the units will go) combined.  Attorney Winoker stated 6.8 acres.   K. Ferreira feels Lot 5 should be part of the open space.  He expressed the concern of the Town is if there is a potential to build some large business (Shaw’s or CVS) on Lot 5.  He feels a determination needs to be made re:  Lot 5.  Mr. Madden stated the development potential of Lot 5 is very limited due to the riverfront area.  Brief discussion ensued.

M. Scarsciotti asked what the number of units per acre is based on buildable upland.  Brief discussion ensued.  It was stated it will be 2.8 units per acre of buildable upland.

Mr. Madden proceeded to discuss the site plan, including existing conditions of the site, open space, upland, proposed roadway, stormwater management, landscaping, septic/sewerage, etc.

Discussion ensued re:  clustering & multi-family dwellings & which will be utilized for this project.  Discussion ensued re:  roadway & traffic issues.

Present before the Board:	David Fringoli

Mr. Fringoli asked if the Variance isn’t approved, can other options for the property become commercial/industrial, such as an industrial park.  K. Ferreira stated it would be subject to permitting.  Industrial wouldn’t be allowed on this site, but other commercial uses could be placed there.  Brief discussion ensued.
Present before the Board:	Paul Willard

Mr. Willard stated not everyone is in agreement w/ the project.  He spoke re:  rights of Wareham Plaza Associates to Beaver Creek Lane.  He asked where these rights were derived from, what rights Wareham Plaza Associates have, & what rights to the residents who live on this road have.  K. Ferreira noted this will be answered by the modification of the subdivision.  Wareham Plaza Associates will have to apply to the Board for this.  The Planning Board would have to give Wareham Plaza Associates permission to modify Beaver Creek from its layout.  They own the road.  The Town doesn’t own the road.  It is private.  Brief discussion ensued.

Mr. Willard asked re:  outdoor recreation areas & regulations relative to this.  He doesn’t see this on the plans.  Brief discussion ensued re:  outdoor recreation & this project.

Present before the Board:	John English

Mr. English spoke re:  density, sewerage, & protecting waterways.  Brief discussion ensued.  Mr. Madden stated the Town has said the project can’t tie into the Town’s sewer system

Present before the Board:	A woman

The woman stated she lives across from Shaw’s.  She noted that Stoney Brook does empty into Broad Marsh.  She discussed what Broad Marsh supports, such as wildlife.  She expressed concern re:  sewerage going up hill to the disposal point.  K. Ferreira noted that the Town is paying for the peer review of the project w/ an outside consultant.  The consultant will look specifically at the septic system construction, conservation issues, etc.  A preliminary review has been done, but a final review has yet to be done.  He discussed stormwater management matters that will be looked at.  There usually are requirements w/in a homeowner’s association that requires monitoring & reporting to certain agencies.  Mr. Madden stated that the drainage coming off the site is no way connected to Stoney Brook & can’t get there due to topographic features of the site.  He discussed the drainage design briefly.

Present before the Board:	A woman

The woman described where her lot is & was initially opposed to the project because she felt the project would impact her lot the most.  She expressed concern re:  paving of the street.

K.Ferreira briefly discussed how to proceed from this point.  He noted the Board members that will be hearing this case.  They are D. Sharkey, M. Scarsciotti, K. Ferreira, R. Secher, & M. Martin, unless M. Martin is absent in January in which case. T. Weare or W. Engerman will sit in for him.

K. Ferreira asked for a straw vote on the members’ feelings on granting 18 units vs. 11 units.  R. Secher stated conceptually, it seems the Variance _____________________.
M. Scarsciotti asked what the drop dead minimum units are.  Attorney Winokur stated it is 18 units.  Brief discussion ensued re:  the selling price of the units & how the 18 unit number was derived.  M. Scarsciotti is leaning towards the Variance being granted.
D. Sharkey has no problems w/ the project as presented thus far.  K. Ferreira concurred.

MOTION:	M. Scarsciotti moved to continue the public hearing for petition #50-08 – off Marion Road – Wareham Plaza Associates, Inc. to January 14, 2009.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

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

VII.	NEW BUSINESS/DISCUSSION

A.	Discussion – 21 Crescent Place

Brief discussion ensued re:  what this matter is about.

NOTE:	K. Ferreira apologized for audience members present for a discussion on Point Independence Yacht Club.  He stated there will not be discussion this evening.  He feels a separate meeting night should be established for discussion on PIYC.  The Board members concurred to meet on 12/17/08.

VIII.	ADJOURNMENT

MOTION:	R. Secher moved to adjourn the meeting.  M. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

Attest:  _________________________
	Mary Scarsciotti

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