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

Date of Meeting:  February 27, 2008

I.	CALL MEETING TO ORDER

The meeting was called to order at 7:30 P.M.

K.Ferreira discussed the procedure to be followed for this meeting.

II.	ROLL CALL

Members Present:	Ken Ferreira, Chairman
			Mike Martin, Vice Chairman
			Mary Scarsciotti, Clerk
			Richard Secher
			David Sharkey
			Ticia Weare, Associate Member
			Wilma Engerman, Associate Member
			John Cronan, BOS Liaison
			Ted Misiasek, Zoning Enforcement Officer

III.	PRELIMINARY BUSINESS

A.	Minutes to be approved:  NONE

NOTE:	A letter from Charles L. Rowley & Associates was read into the record relative to a request for a continuance of petition #21-08 – 8 Tyler Avenue – Carmen Stroscio, Stroscio Realty Trust to March 12, 2008.

MOTION:	D. Sharkey moved to continue the public hearing for petition #21-08 – 8 Tyler Avenue – Carmen Stroscio, Stroscio Realty Trust to March 12, 2008.  M. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

B.	Informal Discussion – Accessory apartment – Anthony Scarsciotti

Present before the Board:	Anthony Scarsciotti, Housing Partnership Chairman

Mr. Scarsciotti is asking different boards to look at a proposed accessory apartment program.  He is asking boards to come up w/ questions/concerns re:  this matter.  The intent is to come forward at the Fall Town Meeting w/ an accessory apartment program article.  He discussed the positive aspects of this program, especially for senior citizens.

K.Ferreira noted that there are many requests for in-law apartments that come before the Board.  Various plans for these apartments are submitted.  The proposed accessory apartments being proposed have no ties to family, such as an in-law apartment.  Mr. Scarsciotti stated that the proposal states there can’t be relatives.  The apartments fall under the affordable realm.  

K.Ferreira stated most of the accessory apartments that are not qualified under 40B (as affordable apartments) in other towns are usually for in-law type apartments.  Discussion ensued.  M. Scarsciotti discussed a similar program implemented in Hyannis.

Mr. Scarsciotti is looking for feedback as to whether this proposal should be a stand alone type of Bylaw or is there something else it may fit into.  K. Ferreira feels it may fit into Article 5 of the Bylaws.

K.Ferreira noted some may be concerned re:  what district(s) in Town will this proposal be allowable.

M. Scarsciotti asked if there are any restrictions re:  size on the principle residence in the Hyannis program.  Mr. Scarsciotti hasn’t seen anything relative to this.  K. Ferreira feels that there should be a minimum square footage.  M. Scarsciotti would like to see a maximum square footage as well.  Discussion ensued re:  square footage & utilizing percentages.

T. Weare asked who will be responsible for writing the deed rider & who will be the monitoring agent.  Mr. Scarsciotti stated the coordinator will be the responsible party.  T. Weare asked re:  what funds would be utilized for repair grants.  Mr. Scarsciotti stated both Community Preservation & State grants would be utilized.  Brief discussion ensued re:  a compliance coordinator.

M.Scarsciotti asked if there are any applications relative to the program presented by the BOS last fall re:  the “in-fill” 40B (homeowner would be able to utilize some of the smaller lots).  No-one has heard anything.

M.Scarsciotti stated that Brandy Hill will remain on the subsidized housing inventory list until 2016.  Woods of Wareham has an expiration of 8/31/08.  This would mean a loss of 100 units.  She asked if anything has been done to extend this expiration.  Brief discussion ensued.

Mr. Scarsciotti will present this proposal at Town Meeting & will handout surveys to return to see if there is an interest/acceptance of the proposal.  K. Ferreira expressed concern re:  if the Bylaw was passed & the money wasn’t available for the coordinator.  This would create a new job at Town Hall for someone that doesn’t have time to do more work or doesn’t want to do more work.  Discussion ensued.
IV.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES  (NONE)

V.	PUBLIC HEARINGS

A.	#25-08 – 59 South Boulevard – Danielle Franzen

Present before the Board:	William Lockwood
				Attorney Margaret Ishihara

The public hearing notice was read into the record.

K.Ferreira stated this is the same case that came before the Board previously to be considered as a Variance vs. a Special Permit.  

Mr. Lockwood explained the new information & plans he submitted. (Mr. Lockwood was very hard to hear).  Mr. Lockwood discussed the fence on the easterly side of the property.  The fence goes along the property line & turns in & hits the side of the house.  This has been pulled back.

K.Ferreira stated the original house was one story & the proposed is a two-story.  From the sidewalk, going down South Blvd., the new house will be substantially further back due to the open porch.  It will look more setback on the lot.  Mr. Lockwood stated the ridgeline will be perpendicular to the street vs. parallel to the street.

Attorney Ishihara spoke re:  section 10 of the Bylaws & how it pertains to this case for a Variance.  (Attorney Ishihara was very hard to hear).  She stated in order for the applicant to place a reasonably sized structure on the property, it is necessary to have (on at least one side line) it be w/in the 10 ft. setback.  She noted the floor plan of the proposed home.  She spoke re:  no substantial increase in detriment to the neighborhood.  She noted some sections of section 130 of the Bylaws.  The proposed use is permitted.  The side setback will be increased.  There is adequate off-street parking.  She noted section 11 of the Bylaws.

Mr. Lockwood stated the total square footage of the new home will be 1,387 sq. ft. of enclosed area plus 404 sq. ft. of porch.

M.Martin commended Mr. Lockwood & Attorney Ishihara for their presentation for a Variance.  He noted they both explained & met the four Variance requirements.  Mr. Secher concurred.

M. Scarsciotti asked if there is a full basement.  Mr. Lockwood stated it is & this is one of the reasons for the reconstruction.

Audience members were asked for questions or comments.

Present before the Board:	Sharon Josephs

Ms. Josephs asked if the front porch will extend beyond the existing house presently.  Mr. Lockwood explained it will be approx. 1 ft. back from the existing house.

K.Ferreira also commended Mr. Lockwood & Attorney Ishihara for their presentation & taking into consideration the comments the Board made previously.

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

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved & R. Secher seconded to grant a Variance for setbacks shown on plan #827822708 for petition #25-08 – 59 South Boulevard – Danielle Franzen w/ the finding that the Variance requirements have been met being that the shape is unique & not common to the zoning district, the hardship is not self-imposed, the reconstruction is less non-conforming vs. the existing structure, & it will not be a substantial detriment to the character of the neighborhood nor infringe on the intent of the zoning ordinance.

K.Ferreira asked how much deviation would the Building Inspector allow that would be reasonable if there is a mistake.  Mr. Misiasek, Building Inspector stated when foundations go in, they are usually only off a few inches, for small lots.  He would allow two to three inches.

VOTE:  Unanimous (5-0-0)

B.	#28-08 – 6 Thatcher Lane – Navionics, LLC & W/S Wareham Properties

Present before the Board:  Mr. Lou Masiello
			      Mr. Perry, Representing Navionics

The public hearing notice was read into the record.

Mr. Masiello explained the plans submitted.  He explained the original design which called for the installation of two piling signs.  The Board previously granted Variances for both of these signs.  One was along Rte. 28 & has been constructed & in the Strip Commercial District & the other was constructed in the Industrial District.  It was contemplated to be visible from Rte. 195 after completion on landscape clearing of a large tree filled hill between the property & Rte. 195.  The hill is actually on the Commonwealth of MA property.  Permits were obtained from this Board & the Planning Board to clear the hill, re-vegetate it, & install a piling sign which exceeded the area & height requirements of zoning.  It was approx. 35 ft. high & zoning code area of 125 ft. was exceeded.  K. Ferreira stated that the Industrial District has no sign codes.  Mr. Masiello discussed issues relative to the sign in the Industrial District due to there being no sign codes.  The Board had asked to have the application amended to include the sign & to document the area more accurately.  The end result was a Variance.  Since this time, they have pursued the clearing issue w/ MA Highway.  They have worked w/ MA Highway to obtain a curb cut to work w/in the highway right of way to clear the hill & take down the trees so the sign will be visible.  Now, MA Highway has stated they will not allow the clearing of the hill.  MA Highway also expressed this may be precedent setting if they start allowing private property that is not directly on the highway to start clearing.  

Mr. Masiello explained there is a situation now where the sign needs to be delivered, but would be virtually invisible.  The proposal now is they have approached Navionics & entered into an agreement to rent rights to piling signage on their property.  He discussed the part of property they would be renting.  The proposal is to not build the second sign & instead, build a sign that is almost identical on the Navionics property.  One of the conditions of the arrangement w/ Navionics is the applicant’s provision of permits for the installation of a smaller sign.  He discussed a free standing sign.

Mr. Masiello stated there are a series of lease arrangements w/ other tenants at the new mall that preceded JC Penny that occupy all the available slots of the pilon plan to be permitted.  He discussed the proposed sign & instead of increasing the height of the sign any higher, they have removed a small stone base (4 ft. high).  The last remaining area left will incorporate the JC Penny panel sign.  The documented area which has been requested for the Variance is inclusive of this new addition of signage.  Again, the structure as a whole is not bigger, but the area available for the tenant sign is a bigger.

Mr. Masiello explained another difference which is a sign in advance of the exit sign.  K. Ferreira feels this is a better choice.  Brief discussion ensued.  Mr. Masiello displayed photographs of where these signs will be placed.  Brief discussion ensued re:  who is responsible for the Wareham Welcomes Industry signage & non-permitted signs on stretches of roadway in Town.  K.Ferreira expressed concern w/ having an intersection of signage in any one area.  

Discussion ensued again about the Wareham Welcomes Industry signage which is old.  Mr. Masiello stated he spoke w/ Ms. Whalley, CEDA Director & she didn’t know if there was any legal agreement w/ re:  to the placement of the signage.  

Mr. Perry stated there is no legal agreement.  They do not want the Wareham signage there.  Brief discussion ensued.  K. Ferreira strongly encouraged the old Wareham signage be taken down, especially when it will be next to a newer, nicer sign.

K.Ferreira stated he likes the stone at the bottom of the sign.  T. Weare concurred.  They both stated they wouldn’t mind the stone being higher.  Mr. Masiello explained how the JC Penney sign will be incorporated into the signage.  There will be panel space available.  Discussion ensued.

Mr. Masiello stated the Navionics sign is illuminated.  It is approx. 15 ft. x 5 ft. = 75 sq. ft. & is 10 ft. above grade.

M.Martin asked re:  the location of the signage in relation to coming off Rte. 495 onto 195.  He asked if it could be relocated to another area & have it more towards the dirt road.  Mr. Masiello explained why they have chosen the location area for the sign & its advantages.  Discussion ensued re:  the property lines & traffic concerns relative to the sign.   K. Ferreira asked if there is a need for an outdoor advertising permit from the Commonwealth (advertising signage off-premise on a state highway).  Mr. Masiello doesn’t think so.  K. Ferreira feels this issue should be looked into.  As for the sign for Navionics this is their property & they can put the sign anywhere on their property.

K.Ferreira suggested the Economic Development Commission consider taking the Wareham sign down & not putting it on the highway.  He asked if Navionics plans on taking down their building sign.  Mr. Perry stated they are not.  The intent is to take it down eventually because in the future a building may be built on lot 2.  K. Ferreira asked when this building is built in the future, will this proposed sign take the place of having to have an additional similar sign on the building again.  Discussion ensued.  Mr. Perry will look into this.  M. Scarsciotti asked if the new mall sign obstruct the existing sign on the building.   Mr. Perry stated it doesn’t.  They want to get the Variance now for the signage prior to the building being built.  The Navionics sign is approx. 75 sq. ft.  K. Ferreira stated if the Board approves this 75 sq. ft. sign, he doesn’t want to see another 75 sq. ft. sign on the building.  A condition may be placed that any new structure built on lot 2 shall have no signage facing Rte. 195 on the wall of the building because the pilon sign takes its place facing the highway.

Mr. Masiello stated they have a right to represent the property.  Navionics obligation to allow them to put the sign there is contingent upon receiving a permit for this sign.  Brief discussion ensued re:  having a monument base & landscaping around the sign.  He suggested the Board condition it so that it is up to Navionics acceptance of this.  Mr. Perry doesn’t feel this would be a problem, but the non-allowance of a building sign may be.  M. Martin feels in time, this building sign will be addressed.  Mr. Misiasek stated there are no sign codes for the industrial area, thus signs are prohibited.  In the past, the Strip Commercial sign code has been implemented in the industrial area.  It wasn’t until the mall came into play that it was realized there are no sign codes for the industrial area.  The sign issue would be something to address when the project comes before site plan review.

Audience members had no questions or comments.

Mr. Cronan clarified that the Wareham Crossing sign will be on Navionics property.  He asked how far back is the sign from the pavement to the property line.  K. Ferreira feels it is 75 ft. to the property line & 15 ft. to the sign, thus 90 ft. from the edge of pavement.  From the property line, they will be in approx. 15 ft.  Mr. Cronan has a concern re:  the distance between the pavement & the property line.

Mr. Cronan asked where the Wareham Crossing sign & Navionics sign is in relation to each other.  K. Ferreira stated they are perpendicular to each other.  He is concerned about the distance between signs.  He doesn’t want the sign(s) too close to the road.  He doesn’t feel there should be a lit sign 90 ft. from pavement (especially at night).

D.Sharkey asked that the old sign be addressed.  K. Ferreira could add a condition re:  this.  It is an illegally placed sign on private property.

MOTION:	M. Martin moved to close the public hearing for petition #28-08 – 6 Thatcher Lane – Navionics, LLC & W/S Wareham Properties.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved & D. Sharkey seconded to grant a Variance for two (2) signs in accordance w/ the site plan presented & find that the document submitted to the Town Clerk dated 2/1/08 will be utilized as the rationale for granting said Variance, further, the Variance is granted per plan except as modified w/ the following conditions:

•	The existing non-illuminated wooden sign, will be removed from the premises, borrowing any legal prohibition to do this.
•	The Wareham Crossing sign will be allowed to be raised by 4 ft. to allow for a stone monument base & landscape, similar in style to the one that exists at the entrance to Wareham Crossing.
•	The Navionics sign will be modified by installing a 4 ft. stone monument base & landscaping.

Brief discussion ensued re:  brightness of the signage.

•	The lighting of the sign shall be similar to the illumination at the entrance of Wareham Crossing.
•	The sign shall be no closer to Rte. 195 than as per the site plan.  The intent of this condition is to allow the sign to be moved in a westerly direction.

VOTE:  Unanimous (5-0-0)

K.Ferreira stated the construction manager on the Wareham Crossing project seems to have done an excellent job.

NOTE:	Brief discussion ensued w/ the Building Inspector re:  outstanding issues/cases.

VI.	CONTINUED PUBLIC HEARINGS
.

A.	#27-08 – 4 Sea Street – Patsy Cheney, c/o Attorney Edward Kiernan

Present before the Board:	Attorney Edward Kiernan

K.Ferreira stated the Board has questions re:  what transpired w/ this project relative to dates, times, who was involved, etc.  The Board was attempting to establish a timeline.  The work has already been done & the Board needs to act.

The Building Inspector understands there was a permit to put in windows & do some roofing.  He feels the applicant went overboard on what was done w/ the roofing.  Framing was also done.  There was a complaint & a stop work order was given.  The Building Dept. went out & looked at the project & the roof was open & the home would be damaged.  The applicant was told to close the roof, put the roofing material on, & then stop at that point.  The applicant was also told the shingling could go on to close it in so there wouldn’t be damaged.

The Building Inspector stated at the time when the project was reviewed by the Building Dept., there was no siding & roofing on it.  The decision was made to allow the applicant to finish it to make it weather tight.  He noted the pictures he has seen.

K.Ferreira stated a denial letter was issued 1/11/07.  The question is when the denial letter was issued & the applicant realized they needed a Variance for what they were doing, how much work went on after the denial through last summer.  The Building Inspector understands they put on the shingling & weather-tight the roof.  Brief discussion ensued.

T.Weare asked if there is separate attic space.  She asked if the second floor is contiguous w/ the attic or is there an attic area.  Mr. _________(representing applicant) stated there is an attic area up over the bathroom area.  Brief discussion ensued.  Attorney Kiernan stated as of right now, when you look up from the second floor, you see rafters & the roof.  There is no ceiling.

D.Sharkey sees that it went from a dormer window to a full dormer & the roof line increased by 4 ft.  

K.Ferreira explained that the stop work order was issued in 1/07 & the project was denied.  The pictures the Board reviewed were dated 8/07.  It seems rather than just fixing the roof & shingling, a lot more work was done between 1/07 & 8/07.  There seemed to be a lot of work & changes made in between this time period.  There was also no application submitted.

Audience members were asked for comments or questions.

Present before the Board:	Harry Gardner, 67 Warr Avenue

Mr. Gardner went to the Building Dept. office around 6/06.  He asked to see the building permit on this project.  It was shown to him & he was told it was for a roof only.  He told the Building Inspector at the time that they were putting a second floor on & it was all framed in.  The Building Inspector at that time told him that someone was going to go & inspect it.  If they were putting a second floor in, the Building Inspector had said he doesn’t believe they had the frontage in front of their house to the street to do so.  He went back to the Building Dept. a second time & was told that a stop work order had been issued.  At that time, there was sheeting over the roof, nothing on the sides, no windows, no chimney.  This was in 2006.  Continuously, on holiday weekends, Friday through Sunday, crews came in & eventually through to 12/06, it was all enclosed.  There had been no chimney.  A hole had to be cut through the roof to put it in.  This is a direct violation of what the Building Inspector had told him.  At the Building Inspector’s office, there is a list of rules/citations that can be given when there are violations of a work permit.  He asked if any of these citations were given.  The Building Inspector needs to see the specific file.  Mr. Gardner stated this matter has been going on for almost two years.  The Building Inspector was aware of the issue in 2006.  Work still commenced even after a stop work order was issued.  He feels the Building Inspector allowed the applicant to put a second floor on the house, close it in beyond the timeframe the Building Inspector was aware of the issue.  He doesn’t feel the Building Inspector did his job.  

M. Martin feels that Mr. Gardner’s complaints need to be directed to Administration.  The Board is limited to the question at hand which is if it is a Variance or Special Permit.

Present before the Board:	Mrs. Gardner????

Mrs. Gardner doesn’t feel the applicant should have the right to do what they want.  The applicant shouldn’t be given an appeal when they have done wrong.  M. Martin stated the applicant has the right.  He understands the Gardner’s concerns.  The forum to deal w/ complaints needs to be directed to Administration.  The Board is confined to what the zoning ordinance is.

M. Martin discussed the conditions to be met to grant a Special Permit under section 1335 & guidelines.   Discussion ensued.

R.Secher feels this project is substantially more detrimental to the neighborhood.  Mrs. Gardner stated there was no second floor to the house to begin with.  R. Secher stated the project is already completed & that is what the Board needs to deal with.  K.Ferreira explained the Board doesn’t protect views.  The project may have been somewhat detrimental to the Gardner’s view, but it isn’t detrimental in general to the Town & the neighborhood.  He agrees that someone shouldn’t do something illegally & then come after the fact for approval.  The Board needs to look at it now as if it wasn’t done.  Discussion ensued.  K. Ferreira stated that the Board has no enforcement power, they cannot issue fines, & they can’t send people to court.  
Mr. Gardner asked how the Board can prevent this from happening in the future.  K. Ferreira clarified that the Board doesn’t set the rules.  This is an administrative issue.

M.Martin explained why this project is not a Variance.  He cited several sources.  T. Weare explained there are two separate matters.  One is what the applicant has done & if it was what the permit authorized.  This isn’t something this Board decides or has power over.  The second matter is the Special Permit being considered.  The Board can’t take into account whether or not it was already built, whether or not it was done the way it was supposed to be, etc.  

The Building Inspector stated the applicant will be fined.  His experience w/ court, is judges never issued fines.  If they do they are small.  The judges don’t want to deal w/ zoning issues.  His intent was to direct the applicant to the Board first to avoid legal issues.  The Building Inspector discussed the cease & desist order procedure (legal).  It is a slow process.

MOTION:	R. Secher moved to close the public hearing for petition #27-08 – 4 Sea Street – Patsy Cheney.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved to grant a Special Permit for petition #27-08 – 4 Sea Street – Patsy Cheney w/ the finding that the reconstruction does not add any new non-conformities nor does it intensify any existing non-conformities & the reconstruction will not be substantially more detrimental to the neighborhood as provided for in section 1335, procedure #2 & guidelines item #4 & #6.  R. Secher seconded for discussion.

K.Ferreira asked the Building Inspector if he is comfortable w/ allowing the applicant to complete the interior work & there would be no further alteration of structures, dormers, heights, extensions, etc. of the structure from the outside. He wants to make sure there are no more exterior alterations.  The Building Inspector is confident there will be no more exterior alterations.

Mr. Cronan stated this matter will be going before the Town Administrator for discussion w/ the Building Inspectors.  There were no plans for the Building Inspector to go by.  The Building Inspector went to inspect after it was built.  The Building Inspector had no indication of the prior structure.  There may have to be changes.  The Building Inspector stated if the applicant has to change the construction to make it safe, he would be in favor of a change to reduce it or bring it down.  Plans will need to be provided.  Brief discussion ensued.

The following conditions apply to the Special Permit:

•	There will be no further exterior alterations except those required by the Massachusetts Building Code as determined by the Building Inspector & said modifications shall be made in such a way as to not expand what has already been built.
D.Sharkey asked why the condition can’t specify exterior & interior.  The Building Inspector stated the Board has no control relative to interior.

•	None of the above conditions shall be implied as to provide relief in any way, for example, interior or exterior for the Massachusetts Building Code.

ROLL CALL VOTE:	M. Martin – Yes
				R. Secher – Yes
				M. Scarsciotti – Abstained
				D. Sharkey – Yes
				K. Ferreira – Yes

VOTE:  (4-0-1)
M. Scarsciotti abstained

M. Martin questioned the abstention by M. Scarsciotti.  He asked if an Associate member should be voting instead.  Brief discussion ensued.

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

MOTION:	M. Martin moved to continue the public hearing for petition #20-08 – Avenue A – Access Partners Development, LLC to March 12, 2008.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

C.	#21-08 – 8 Tyler Avenue – Carmen Stroscio, Stroscio Realty Trust, c/o Charles Rowley & Associates (DONE)

VII.	NEW BUSINESS/DISCUSSION

A.	Upcoming Hearings:

1.	#029-08 – Andrew Potito – 31 Onset Avenue – Special Permit
2.	#030-08 – 12 Lookout Lane – Special Permit/Variance

VIII.	ADJOURNMENT

MOTION:	R. Secher 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:  _______________________