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:  December 17, 2008

I.	CALL MEETING TO ORDER

K.Ferreira called the meeting to order at 7:00 P.M.

II.	ROLL CALL

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

Members Absent:	Mike Martin

III.	SPECIAL PUBLIC MEETING RE:  POINT INDEPENDENCE YACHT CLUB

K.Ferreira read the public meeting notice into the record.  The purpose of this hearing is to deliberate the remand case for PIYC.

K.Ferreira noted that the public hearing for PIYC was closed, thus, there will be no audience participation/comments.  The only comments he will accept from the audience is if there is a point of order.

K.Ferreira noted the draft decision prepared by Town Counsel, Ilana Quirk of Kopelman & Paige.  He suggested the Board review the draft decision.  Ms. Quirk provided a statement re:  the history of what occurred then included the procedural background of the site plan, Special Permit/Variance applications that were filed (which go back to 3/05).  In 2/06, the Zoning Enforcement Officer issued a determination for PIYC, but did not sign the zoning certificate/Chapter 91 license until he obtained site plan & Special Permit relief from the Board.  PIYC appealed the Zoning Officer’s determination timely & a public hearing was held on 3/22/06 to consider the appeal.  The hearing was continued.  A decision was filed & recorded that the Board voted to uphold the Building Inspector’s decision in that it required site plan review.  Litigation began & continued.  He noted a segment of the judge’s decision into the record.  On 7/27/07, the Board’s motion to reconsider was filed w/ the court.  This was after the Board & Town Counsel had met in Executive Session to discuss options.  A motion to reconsider was filed.  Town Counsel argued that the impact was to invalidate the Town’s zoning.  On 3/11, the judge heard arguments on the motions & took the matter under advisement.  The judge also urged the parties to attempt to settle the matter for a remand.  In 4/08, the parties agreed to a remand to the Board.  On 7/10/08, the Superior Court, under joint motion, issued a remand application back for a new public hearing.  There had been discussions & things were trying to be worked out/agreed upon.  Eventually, it was agreed to have a remand hearing & it was advertised.  There were some objections & issues re:  conflict of interest.  There was no time to conclude these matters by 9/17 when the case was to be heard, thus, it was continued to 10/29/08.  A ruling was confirmed by opinion of Town Counsel & the Ethics Commission that no conflict of interest existing for the Board member in question.  The public hearing was held on 10/29/08 & closed on 10/29/08.

K.Ferreira stated now, there is the findings of fact.  The Board needs to adopt the findings of fact & then make determinations.  There is a need for a majority vote to adopt the findings.

The findings of fact are as follows:

1.	The property is or is not located at 15-17 Independence Lane, Wareham, MA. – It was determined it is.
2.	The property is or is not shown as Assessors Map 2 Lots 3,4,5 & 2003.  Discussion ensued re:  lot numbers & square footage of the property.
3.	The property abuts Onset Bay. – Yes
4.	The upland portion of the property lies or does not lie partially in the Onset Village Zoning District OVII & partially in an MR30 Zoning District.  Discussion ensued re:  what zoning district the property is in.
5.	Onset Bay is or is not zoned MR-30 under Appendix 1 of the Zoning Bylaws.  K.Ferreira stated the Board has taken the position that all land not specifically zoned falls under MR-30.  D. Sharkey stated the bay is not land.  Discussion ensued re:  if Onset Bay is zoned MR-30.

	A roll call vote was taken re:  Onset Bay is zoned MR-30.

	Vote:  (4-1-0) (D. Sharkey opposed).

6.	The club does or does not use the property for a yacht club use, which consists of a club house, a paved parking lot, an unpaved parking area, slips, & moorings in Onset Bay.  The Board determined the club does use the property for yacht club use.
7.	A membership club is or is not a prohibited use in Wareham, under Zoning Bylaw sec. 320.  Brief discussion ensued re:  if it is “silent” (not listed) under a specific district, it is generally prohibited. (If use is not specifically identified, it is prohibited.)
8.	Marina uses are or are not prohibited in both OV districts.  The Board concurred they are prohibited.
9.	The club use of the property is non-conforming.  
10.	The club use of the property has been in place for at least 50 years.
11.	The club use of the property is or is not lawfully pre-existing non-conforming.  It predates the zoning changes adopted & rendered non-conforming.  The Board concurred this is true.  The property use is lawfully pre-existing.
12.	At the public hearing, the club’s representative testified or did not testify the club’s waterside usage consists of a total of 65 boat slips, 16 dingy slips, a gas dock, & a mooring field w/ 57 moorings.  The Board concurred this is correct.  

Discussion ensued re:   it should say mooring field permitted for 57 moorings or mooring field consists of 57 moorings.  The Board concurred to the latter.

13.	The club’s representative testified or did not testify that the club has facilities or does not have facilities now for a total of 122 boats, ie. Slips & moorings excluding dingys.  The Board concurred this is correct.
14.	The club’s slips & docks all connect or do not connect to the upland portion of the club’s property.  The Board concurred the slips & docks do connect to the upland portion of the club’s property.
15.	The club presented or did not present evidence as to how many docks, slips, & moorings existing before zoning was adopted in 1951 & or before the club became a non-conforming use.  

K. Ferreira doesn’t recall there is a clear understanding of what was there before 1951.  Brief discussion ensued re:  information received & only going by what the club presented.  The Board concurred that the club did not provide this evidence.

16.	The club proposes or did not propose to eliminate ten (10) of the 57 moorings & to expand its slips by ten (10) new slips by adding a structure to be known as “F Dock”.  The Board concurred this to be true.
17.	The club asserts or does not assert that ten (10) existing moorings would be swapped for ten (10) new slips.

K. Ferreira feels the club’s attorney indicated that this was never part of the application.  It was never presented as a swap.  Brief discussion ensued.  The Board concurred that the club does not assert on this item.

18.	The 4/5/04 plan provided by the club, shows the “F Dock” would or would not be  195 ft. in length.  Brief discussion ensued.  The Board concurred the dock would be 195 ft.
19.	The plan for “F Dock” would or would not create ten (10) new interior boat slips as well as one exterior boat tie up on the landward side.

D. Sharkey stated it wasn’t stated specifically if this would be a tie-up area.  Discussion ensued re:  the exterior boat tie up & number of interior boat slips.  The Board concurred there are to be 10 interior boat slips & one exterior boat tie up.

20.	F Dock will or will not create 195 ft. “header” dock allowing space for up to three large (60ft. or greater) boats w/ a tie up for six smaller boats.  Discussion ensued re:  language & suggested language of “F Dock would create a 195 ft. header dock on the seaward side allowing space for transient tie ups.”
21.	F Dock would or would not create space for a total of 14 new boats, not ten.  Discussion ensued.  The Board concurred to “x” this item totally out of the document.
22.	F Dock would connect to a re-located gas dock.  The Board concurred.
23.	The re-locating of the gas dock would or would not have a length of 193 ft. in addition to the existing length.  Discussion ensued.
24.	The gas dock will or will not create a new space for transient boats to tie up when the gas dock is in use for as many as four 30 ft. boats.  D. Sharkey noted there is already space for boats to tie up in the current situation.  He doesn’t know if it is new space for transient boats.  Discussion ensued.  The Board concurred that it will create new space & to cross out “four 30 ft. boats.”
25.	The combination of F Dock & the new gas dock would create a total of 388 new linear ft. of dock.  The Board concurred.
26.	The total new space of the dock for boats to tie up would or would not increase by 10 slips & be between eight & 11 tie ups for a total increase in boats that can dock from 18 to 21.  Discussion ensued.  The Board concurred that the dock for tie ups would increase by 10 slips & expanded space for tie ups.
27.	The club facilities for docking boats would or would not increase to 129 total from 122 & be 47 moorings & 75 slips & 7-11 transient boat tie ups.  Discussion ensued.  The Board concurred to take out the total number & take out the transient boat tie up figure & put undetermined transient boat tie up.
28.	The club’s present docking facility for boats is or is not 65 boats ie. slips.  The Board concurred it is.
29.	The club’s docking facility for both F dock & the gas dock, if allowed, would increase from 65 to between 83 & 87.  The Board concurred that the allowed increase would be from 65 to 75 slips.
30.	An increase in the club’s docking facilities for between 18-21 boats would or would not create an increase in boating activity at the club.    Discussion ensued.  The Board found that an increase in the club’s docking facilities would increase boating activity.  (See item 29 above).
31.	The Board found that the proposed increase in the club’s docking facilities would or would not create an increase in noise.  The Board concurred that it could increase the noise.
32.	The Board found that the proposed increase in the club’s docking facilities would or would not create an increase in trash.  The Board concurred that it could increase trash.
33.	The Board found that the proposed increase in the club’s docking facilities would or would not create an increase in pollution of the water from oil & gas of motorized boats.  Discussion ensued re:  the transient component.  K. Ferreira doesn’t feel the specific request to put in slips would not increase pollution.  D. Sharkey concurred.  K. Ferreira feels it could increase trash & noise, but not pollution.  D. Sharkey stated the same pollution would be generated either if a boat is on a mooring or on a slip.  T. Weare feels the transient activity would create more pollution.   Discussion continued.
34.	The Board found that an increase in docking facilities would or would not create more difficulty removing boats from the water in the event of a serious storm event.  D. Sharkey doesn’t feel this is relevant.  If there is a storm, they will get their own people’s boats out & they will let other people haul boats out on the ramp.  He doesn’t feel it would create more difficulty in removing boats.  The Board concurred it would not create more difficulty.

A point of order was made by an audience member.  An audience member stated the club does not have hauling facilities.  It is not deep enough to haul the big boats off the ramp.  D. Sharkey stated the hauling would be in an emergency storm condition.

35.	The Board found that the proposed increase in the club’s docking facilities would or would not create an increase in potential landward property damage from boats thrown to shore during a serious storm event caused by an inability to remove the boats in time.    Some Board members questioned how this could be known.  T. Weare stated above, the Board concurred that it would not create more difficulty in removing boats.

K. Ferreira noted Article 15 of the Zoning Bylaws.

36.	The Board voted to determine that the changes proposed by the club are or are not changes & are or are not alterations or extensions of existing uses that therefore, site plan review is required under the Zoning Bylaws, 1520 & the Board is the permitting granting authority because a Special Permit is involved.  Discussion ensued.
37.	The Board voted to determine that the changes proposed by the club satisfy or do not satisfy the information required under section 1530.  Discussion ensued.
38.	The Board voted to determine that the changes proposed by the club satisfy or do not satisfy the information required under section 1531 & 1534.

The Board concurred that the proposal satisfies the submittal part of site plan review (Section 1530).

Discussion ensued re:  information required under section 1531 & 1534.  Lengthy discussion ensued re:  if the information required under these sections was met.

Discussion ensued re:  if this application satisfies the requirements for submittal and if it satisfies the evaluation standards.  K. Ferreira noted that a Special Permit can always be conditioned.  Mr. Secher feels if the right conditions were placed on this application, he would go for it.  M. Scarsciotti expressed concern re:  enforcement.  She doesn’t know how, whatever conditions are placed, will be enforced.  She feels the situation at the club has increased over time w/out permits.  She stated the changing of the moorings from 57 they are licensed for to 47 is not something the club agreed to.  She doesn’t know how the Board can request this since it isn’t a licensing procedure through the Town.  She understands it is a licensing procedure through the State.  K. Ferreira stated the club could voluntarily decrease the moorings.  M. Scarsciotti doesn’t feel the club will be agreeable & acceptable to this & she doesn’t feel this would be an enforceable condition.  Brief discussion ensued re:  moorings.

D. Sharkey feels the Board has basically approved the site plan w/out many changes.  He questioned what conditions would be placed.  K. Ferreira noted that the application satisfies the submittal requirements for the site plan.  T. Weare expressed concern, not w/ the plan, but the usage.  She expressed concern re:  not getting accurate numbers from the club.  She would be more comfortable if there was a way to regulate the numbers.  There are so many variables.  She is also concerned re:  the number of transient boats.  Brief discussion ensued re:  transient boats & fees charged.

K. Ferreira questioned if ten more boats tied up on the end of the dock make this application much more unacceptable vs. ten boats on moorings.  Discussion ensued.  K. Ferreira expressed concern re:  the failure of the club to voluntarily reduce the mooring field & navigational issues.  He feels this mooring field could be reduced.  D. Sharkey felt the club concurred to give up ten moorings.  K. Ferreira stated the club wasn’t using these moorings anyway so they didn’t give anything up.  He would be more comfortable if the club gave an accurate number of moorings being used & gave up ten of those.  Discussion ensued.

Discussion ensued re:  reducing the mooring field for aesthetic/visual purposes irregardless of the ten boats tied up on the dock.  Lengthy discussion ensued.

K.Ferreira noted the public raised the concern of taking away public/recreational lands & the bay owned by residents.  He stated it is everyone’s (inhabitants of MA) to use (the water).   

Discussion ensued re:  a storm event, where boats would be located, the proposed header dock, & the gas dock.

K. Ferreira stated if the Board grants it, the burden would be on the abutters to appeal it.  If the Board denies it, the Board would incur more expenses in court & the judge would make the decision.  If the Board can condition the application w/ something the Board is comfortable with that the club doesn’t appeal, the Board retains control.

M. Scarsciotti spoke re:  the Marine Resources Commission recommendation.  She read portions of the recommendation/concerns into to the record.  Discussion ensued re:  the MRC’s feeling that private moorings would be displaced.  

Brief discussion ensued re:  un-enforceable conditions, length/height restrictions, & eliminating height restrictions.  K. Ferreira feels that the new length restrictions should only be for the new dock/slips.  M. Scarsciotti feels 50 ft. is 50 ft.

A gentleman asked for a point of order.  He believes the Board already established that there are boats on existing slips that are over 50 ft.  M. Scarsciotti noted that pre-existing boats can stay, but she suggests no new boats over 50 ft. be allowed.  Brief discussion ensued.  T. Weare suggested language to state that no boats over 50 ft. will be allowed at the expanded docks permitted.  She noted that abutters have commented that larger vessels would contribute to an increased detriment of their ability to enjoy the usage & view of the area.  M. Scarsciotti feels the club has expanded what has been applied for permit wise in the past.  They will now have permission for something else.  

A gentleman asked for a point of order.  He stated the club has permits for every single modification dating back to 1950.

M. Scarsciotti is opposed to any expansion unless there are significant limitations on it, for example, keeping the boats to 50 ft. & under.  Brief discussion ensued re:  limiting this to just the new expansion dock not withstanding any existing boats currently registered w/ the club.  The Board concurred w/ this language.

K. Ferreira summarized the points.  #5 was revised.  #6,7,8, & 9 were eliminated.  #10 & #11 are o.k.

Brief discussion ensued re:  a restrictive covenant & if there can be overnight on the transient dock.  The Board concurred w/ new language for #6 to be no overnight docking at either the header portion of F dock or the gas dock.  

Brief discussion ensued re:  #7-the mooring field.  The Board concurred to allow the club to keep the total of 57 current licensed moorings w/ a condition that ten moorings remain un-tackled unless in case of an emergency storm event.  Thus, 47 moorings will be tackled/un-set.

MOTION:	M. Scarsciotti moved to approve site plan approval with conditions for Point Independence Yacht Club.  D. Sharkey seconded.

Roll Call Vote:	R. Secher – Yes
			M. Scarsciotti – Yes
			D. Sharkey – Yes
			T. Weare – Yes
			K. Ferreira – Yes

VOTE:  Unanimous (5-0-0)

Brief discussion ensued re:  the fact there was no Variance.

Brief discussion ensued re:  section 1332 of the Bylaws relative to pre-existing, non-conforming structures.  Discussion ensued re:  conditions.

A ROLL CALL VOTE WAS TAKEN ON LANGUAGE THAT WAS NOT CLEAR TO ME ON THE TAPE.

Roll Call Vote:	R. Secher – Yes
			M. Scarsciotti – Yes
			D. Sharkey – Yes
			T. Weare – Yes
			K. Ferreira – Yes

VOTE:  Unanimous (5-0-0)

Discussion ensued re:  determination to required conditions.  The Board concurred w/ conditions 1-15.

Roll Call Vote:	R. Secher – Yes
			M. Scarsciotti – Yes
			D. Sharkey – Yes
			T. Weare – Yes
			K. Ferreira – Yes

VOTE:  Unanimous (5-0-0)

Discussion ensued re:  the original appeal & the Building Inspector’s determination.

MOTION:	D. Sharkey moved the Board uphold the Zoning Officer’s decision that site plan review & Special Permit relief are required for the issuance of a certificate.  M. Scarsciotti seconded.

Roll Call Vote:	R. Secher – Yes
			M. Scarsciotti – Yes
			D. Sharkey – Yes
			T. Weare – Yes
			K. Ferreira – Yes

The Board proceeded to sign their decision & the complete decision will be drafted & filed.

IV.	ADJOURNMENT

MOTION:	R. Secher moved to adjourn the meeting at 10:10 P.M.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

Attest:  _________________________
	Mary Scarsciotti, Clerk

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