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:  March 12, 2008

I.	CALL MEETING TO ORDER

M. Martin called the meeting to order.

M. Martin explained the procedures for this meeting & the hearing process.

II.	ROLL CALL

Members Present:	Ken Ferreira, Chairman (Arrived at 9:30 P.M.)
			Mike Martin, Vice Chairman
			Mary Scarsciotti, Clerk
			Richard Secher
			David Sharkey
			Ticia Weare, Associate Member
			Wilma Engerman, Associate Member
			John Cronan, BOS Liaison (Arrived at 10:00 P.M.)

III.	PRELIMINARY BUSINESS

A.	Minutes to be approved:  February 13, 2008

MOTION:	M. Scarsciotti moved to approve the meeting minutes of February 13, 2008.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

B.	Draft minutes to be reviewed:  February 27, 2008

MOTION:	M. Scarsciotti moved to table the draft minutes of February 27, 2008.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

IV.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES

A.	#3 Charge Pond Road – YMCA – Seeking waiver of administrative fee for a sign.

No-one was present to represent this waiver.

M.Martin explained it is not a customary procedure of this Board to grant waivers of fees.  He suggested the YMCA pay the fee along w/ the application, & at the conclusion of the hearing, apply to the Board of Selectmen for an abatement of said fees.  He doesn’t recall the Board ever waiving fees.  The Board members concurred.

M.Martin asked that the ZBA’s secretary send a letter or call the YMCA indicating that the Board has declined the waiver of fees & suggest they apply to the Board of Selectmen, at the conclusion of the proceedings, for an abatement of fees.

V.	PUBLIC HEARINGS

A.	#29-08 – 31 Onset Avenue – Andrew Potito

The public hearing notice was read into the record.

Present before the Board:	Andrew Potito

M. Scarsciotti noted that the Board of Health would require plans be submitted for the citing, design, & construction of an on-site sewage treatment & disposal system.

Mr. Potito submitted photographs & additional information to the Board.

M.Martin read the denial letter into the record dated 1/30/08 from the Building Inspector.

Mr. Potito explained the addition he is proposing.

Mr. Potito discussed the need for a new septic.  Both his engineer (J.C. Engineering, Inc. & the Board of Health have spoken & they both feel that there would be no problem fitting the new system on site.

M.Martin spoke re:  sections 1334 & 1335 which allow for the extension or the squaring up of existing structural lines.  This proposed addition is creating a new non-conformity which is the side setback of 3.6 ft.  Unfortunately, this is a Variance.

Audience members had no questions or comments.

W. Engerman asked re:  the area where the addition will be placed.  Mr. Potito explained.  He submitted the architectural plans of the proposed addition.    He again explained where on the house the addition will be.  T. Weare doesn’t feel the documents (drawings) being shown are accurate.  Mr. Potito discussed that his property is pie shaped.  M. Martin feels it is more rectangular.  Discussion ensued re:  location of the driveway.  
Ms. Weare asked what the square footage of the addition is.  M. Martin stated it is 492 sq. ft. is for the existing structure & the new is approx. 736 sq. ft.  

D.Sharkey expressed concern re:  no rationale being given for furthering the violation that is already in effect.  He sees no rationale for the extension.  The Board can’t grant anything w/out good reason.  Mr. Potito stated the reason is he & his family like Onset & want to stay there.  His family is growing & he needs a bigger house.  He has no technical rationale that he can offer.  M. Martin explained for a Variance there is a four part statutory test.  Mr. Potito understands the four part test.  He noted what he was told by the engineer & the Building Inspector.

M.Martin doesn’t understand why a rear setback would be needed as noted by the Building Inspector.  T. Weare feels he is speaking about the total area.  M. Martin stated that the side setback would require a Variance.  Again, he doesn’t see where he is violating the rear setback.  Mr. Potito doesn’t believe he is.  Brief discussion ensued.

M.Scarsciotti feels this proposal is problematic because it is creating a new significant non-conformity.  She would like to hear the argument supporting that this is a Special Permit.  R. Secher concurred.  There is already a non-conformity.  The expansion will create a much larger non-conformity.  M. Martin explained that “grandfathering” doesn’t really apply to the expansion of a structure.  “Grandfathering” is usually for use or vacant land.

M.Martin suggested continuing the hearing & having Mr. Potito come back w/ information re:  a Variance or submitting another plan that is not so non-conforming.  There will be an issue re:  the expansion of a non-conforming use.  Mr. Potito expressed concern re:  meeting the four parts of a Variance.  M. Martin suggested he obtain a legal opinion for help.

MOTION:	R. Secher moved to continue the public hearing for petition #29-08 – 31 Onset Avenue – Andrew Potito to April 9, 2008.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

B.	#30-08 – 12 Lookout Lane – Larry & Nancy Edwards

The public hearing notice was read into the record.

Present before the Board:	Larry & Nancy Edwards
				Charles L. Rowley, Charles L. Rowley & Associates

The Board of Health will require plans be submitted for the citing, design, & construction of an on-site sewage treatment & disposal system.

M. Scarsciotti recused herself from this hearing.

T.Weare read a letter date 3/2/08 from Mr. & Mrs. Bicki (abutter) relative to this hearing.  The letter asked for a 30 day postponement of the hearing because they are the most direct abutters to be impacted by the proposed alterations.  They would like to be present at the hearing to review the proposed plans & the project’s impact on their property.  They will be back in Town by April 5, 2008.

M.Martin noted the request from an abutter to postpone the hearing.  The Board can entertain the request, but since they have already given testimony in their letter about what their issues are, this would leave the decision to postpone or not to postpone up to the applicant.  Ms. Edwards stated she would not like to postpone the hearing.  M. Martin polled the Board whether or not to postpone.

R. Secher – No
D. Sharkey – No
T.Weare – Yes
W.Engerman – Yes

M.Martin asked the applicant to convince him why the hearing should be postponed.  Brief discussion ensued re:  if a certified abutters card was returned by the opposing abutter.  M. Martin stated it only has to be proved that the letter was sent, not received.  He feels the letter submitted indicates that they had knowledge of this hearing.

Mr. Rowley noted the letter from the abutter.  The concern re:  sea breezes & view is not an issue the Board can deal with.  Any issues that deal w/ potential access/emergency access already exist.  The project wouldn’t make this any worse.  He discussed the layout of the road & the conditions of the road will not be impacted by the project.  

M.Martin feels due consideration has been given to the Bicki’s issues at hand.  While the issues at hand may have some validity re:  this application (which is a Special Permit), they are not substantial nor relevant enough to warrant a postponement.  This, however, does not preclude their right to appeal a decision of the Board in accordance w/ MGL c. 40A.

MOTION:	R. Secher moved to proceed w/ petition #30-08 – 12 Lookout Lane – Larry & Nancy Edwards.  D. Sharkey seconded.

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

Mr. Rowley explained plans submitted.  One deals w/ the existing site & the second deals w/ the location of a natural addition to the first floor, a deck on the back of the lawn, & elevation plans of the building that is proposed to be added to the existing structure on the second floor.  The house was built in approx. 1948.  This pre-dated zoning.  There is a 10 ft. setback to the street line.  The addition to the house would go straight up.  It would be closer to the street.  It is a second floor addition.

M.Martin clarified that the intensification of the existing non-conformity is not the proposed first floor addition.  There is a 20 ft. setback.  The second floor addition would intensify the existing non-conformity (10 ft. setback in the front).  A few audience members came up to review the plans.  Mr. Rowley stated the total height from ground to the peak of the roof was approx. 29 ft. 

Mr. Rowley explained a Special Permit is being sought.  Brief discussion ensued re: letter from the Board of Health requiring plans be submitted for the citing, design, & construction of an on-site sewage treatment & disposal system.

R.Secher asked what the second floor addition will hold.  Mr. Edwards explained he & his wife are looking to turn this into their retirement home.  In doing so, they would take the existing first floor & expand some of the living space there.  The first floor would be made livable for the two of them & the three bedrooms would be located on the second floor addition.  They currently have three bedrooms.

T.Weare asked if there are other two-story homes in the neighborhood.  Mr. Edwards stated there are.  She commented on the letter submitted from the Bicci’s.  Relative to the concern re:  fire trucks, she doesn’t know if this makes any difference relative to putting on a second floor.  Mr. Edwards discussed where his home is located on the street.  On one piece of the street, there is only a 20 ft. right of way.  That is where the issue is relative to the road.

M.Martin explained what the requirements are for the granting of a Special Permit under the alteration, reconstruction, & structural changes to pre-existing non-conforming single family residential structures are.  The Board needs to determine if the intensity of any non-conformity result in any additional non-conformities in which the Building Inspector may issue a permit.  The Building Inspector has determined that the 10 ft. front setback w/ the addition, is the expansion of an existing non-conformity.  The Board thus, must determine if there is no substantial increase in the conforming nature of the structure & such reconstruction, alteration, or extension will not be substantially more detrimental to the neighborhood than the existing non-conforming structure or use.  These are the two standards in which the Board will be making a decision.

Audience members were asked for questions or comments.

Present before the Board:	A gentleman

The gentleman asked re:  bathrooms & septic issues.  M. Martin stated that is not relative to this Board.  The Board of Health will ask these questions.    T. Weare noted it is bedrooms that drive the septic matter.

Present before the Board:	Ms. Mercier, 15 Lookout Lane

Ms. Mercier is an abutter.  She wants to know if this expansion/addition will decrease the value of her property.  M. Martin stated the Board can continue the hearing to allow her to obtain further information.  

Ms. Mercier fears that the taking a way of her view will decrease the value of her property.

M.Martin noted the argument Ms. Mercier would have to make.  He suggested she may want to seek legal counsel to formulate this argument.  Her second concern is not relevant.  The Board can consider it, but the Board wouldn’t weigh it significantly because it is an existing structure.

Ms. Mercier stated when the old house was being built, there were three cars all along the fire lane.  She is concerned re:  new construction & the fire lane (road) being blocked.  M. Martin acknowledged it may be a valid concern, but it does not pertain to the Board’s decision.  The applicant’s will need to obtain a building permit & maintain the standards of the Town for construction.

Mr. Rowley addressed the concern of the abutter relative to the view of the ocean.  M. Martin noted under MGL, views & vistas are not necessarily protected.  However, section 1335 of the Town’s ordinance does have a small notation re:  views & vistas.  

M.Martin spoke re:  the existing garage.  As he understands, they won’t be extending anything vertically relative to the garage.  Mr. Rowley stated this is correct.  

M. Martin stated he would accept a motion to continue the public hearing to allow an abutter to review plans & prepare arguments against granting the permit.  He explained the difference between a postponement & a continuance.

MOTION:	R. Secher moved to close the public hearing for petition #30-08 – 12 Lookout Lane – Larry & Nancy Edwards.  T. Weare seconded.

VOTE:  (4-1-0)
M. Martin opposed

MOTION:	R. Secher moved & D. Sharkey seconded to grant a Special Permit for petition #30-08 – 12 Lookout Lane – Larry & Nancy Edwards based on the fact that it meets the requirements of section 1335, it is not a substantial expansion of a non-conforming use, & will not be substantially detrimental to the character of the neighborhood & further, said permit shall be granted w/ the following conditions:

•	Shall meet all requirements of the Board of Health & other applicable boards & commissions.
•	The construction shall be according to the architectural & sites plans submitted March 12, 2008.

ROLL CALL:	W. Engerman - Yes
R. Secher – Yes
			T. Weare – Yes
			D. Sharkey – Yes
			M. Martin - Abstained
			
VOTE: (4-0-1)
M. Martin abstained

M. Martin explained if audience members oppose the decision of the Board, they have 21 days to file an appeal.  He suggested seeking the advice of legal counsel to help w/ this.

M. Martin noted there were no forms available for the applicant’s to sign re:  the 21 day appeal period.  The Board acknowledged that the applicant’s have been advised of the 21 day appeal period.  They provided a written copy of form for the applicant to sign. 

VI.	CONTINUED PUBLIC HEARINGS

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

No-one was present to represent this petition.  

M.Scarsciotti noted that K. Ferreira was to speak w/ Jon Witten about this.  She suggested placing this on the agenda one more time & she will speak w/ Jon Witten.

MOTION:	M. Scarsciotti moved to continue the public hearing for petition #20-08 – Avenue A – Access Partners Development, LLC to March 26, 2008.  D. Sharkey seconded.
VOTE:  Unanimous (5-0-0)

B.	#21-08 – 8 Tyler Avenue – Carmen Stroscio Realty Trust

Present before the Board:	Charles L. Rowley, Charles L. Rowley & Associates

Brief discussion ensued re:  waiting for K. Ferreira to arrive who has sat in on this case.  M. Martin explained to Mr. Rowley that the hearing can move forward w/out K. Ferreira, but he will need an affirmative vote of four members.

The Board concurred to put this hearing aside to discuss other business until K. Ferreira arrives.  A brief recess was taken at this time.

NOTE:	K. Ferreira arrived at this time.

The Board proceeded to discuss the petition.

Mr. Rowley explained that the Board of Sewer Commissioners turned the project down re:  sewer.  This meant they had to go back & reconsider the project in terms of the density that had been shown on the plans.  After rethinking the project,  he concurred that there may be some room in the middle of the horseshoe for a septic system, but he would need to review the setbacks & other information.  He held a meeting w/ Mr. Ethier, Health Agent & showed him the plans & what the proposal is.  He told Mr. Ethier that a septic system could get in between 100 ft. – 150 ft. from the wetlands.  This would be compliant w/ the Town’s Wetland Bylaw & the rules & regulations of the BOH.  Mr. Ethier told him this was routine for the BOH to do, provided the nitrogen reducing system was incorporated into the design.

Mr. Rowley stated the issue of density still needs to be dealt with.  He submitted a summary dealing w/ his belief that ten units are possible & it would be in keeping w/in the Town Bylaws & w/in the purview of the ZBA to grant a Variance for said ten units.  Included in the summary are supplementary plans as well as a general configuration of ten units.

MOTION:	R. Secher moved to accept the summary & its contents to become supplements to the file.  M. Scarsciotti seconded.

 (A VOTE WAS NOT TAKEN ON THIS MOTION)

Mr. Rowley proceeded to discuss the summary in length (for example, how the project complies w/ requirements of the Town Bylaws, soil samples, how the project would meet the requirements of a Variance & arguments pertaining to such, density issues, placement of septic system & reserve,etc.).

K.Ferreira noted the argument re:  soils.  He also noted the project will improve the length of Tyler Avenue.  Mr. Rowley stated they would improve Tyler Ave. for the length of the property.  This would help w/ runoff.

K.Ferreira stated the Board, in a final analysis, needs to take two votes.  One would be to grant a Variance for the number of units & the second would be for the site plan review w/ conditions.

M.Martin reviewed the development standards, specifically 824.3 as it relates to section 612.  Mr. Rowley explained that 824.3 states that the number of multi-family dwelling units may not exceed the number of dwellings that would be allowed for a conventional single family residential subdivision.  He proceeded to discuss how this relates/impacts the proposed project.  There is nothing in the Bylaw that states a portion of wetland can’t be dedicate a portion of wetland as open space & that the proposed eight units can’t be put on 64,000 sq. ft.  The issue is a multi-family development which doesn’t have a restriction on it.  M.Martin clarified what Mr. Rowley is stating is that under 820, multi-family dwellings do not apply under sections 612 & 615.  Mr. Rowley stated they don’t apply because it is not a single family subdivision being created.  K. Ferreira noted that the soils create a unique condition w/in the district.
M.Scarsciotti asked how many bedrooms there will be in each unit.  Mr. Rowley stated two each.  M. Scarsciotti asked if the location of the system & reserve would be swapped, what would it look like & what would the area look like.  Mr. Rowley stated irrespective of if a wall was built, it would be dedicated for the use of a septic system.  His thought in switching the location was that the wall wouldn’t need to be built at first.  Discussion ensued.  K.Ferreira stated if the areas are swapped (relative to septic), nothing could be planted w/ roots that could damage the system.  Brief discussion ensued re:  landscaping over the septic & leaching field.  

D.Sharkey asked re:  parking concerns & excess parking w/ the new drawings.  Mr. Rowley has showed two places on the present plan where overflow parking can be located.  There can be a total of ten extra spaces in addition to the two parking spaces per unit.

Brief discussion ensued re:  the location of the dumpster.  Mr. Rowley explained that there can be some adjustments to the plan being reviewed. K.Ferreira stated there will be a one-way configuration & the dumpster should be located upon leaving the complex.  Mr. Rowley will look into placement of a dumpster.

K.Ferreira asked if the project can meet all the other regulations of the Bylaws, for example, design criteria required, landscaping, buffering, etc.   Mr. Rowley explained that discussion will be needed re:  the entire frontage.

Brief discussion ensued again re:  parking.  K.Ferreira expressed concern re:  not having excess parking spaces in proximity to the units & parking on Tyler Ave.  Mr. Rowley explained where additional spaces may be located.  T. Weare noted that the parking for the condos will be more of a common space.  She expressed concern re:  overflow parking.  She feels the extra parking is very important for this layout.  Mr. Rowley is looking into two-car garages for some of the units.  Discussion ensued re:  other suggestions for parking.

K.Ferreira discussed an area near this property that had been recommended to become a Wareham Village District.  Unfortunately, this was pulled off the table.

M.Martin can see the hardship re:  clustering of eight units.  There are three standards involved in the hardship argument which he explained.  As of right now, he is not convinced a substantial hardship has been established.  Discussion ensued.  Mr. Rowley explained his argument for the ten units is partially due to improvements for better access, parking, flow, etc.  There are additional costs involved.  He discussed density issues.

K.Ferreira asked what the additional costs will be for a de-nitrification system.  Mr. Rowley feels it will double the cost of a septic system.  Brief discussion ensued re:  Conservation standards.  K. Ferreira stated the additional costs that have been arbitrarily added to the development results in a financial hardship to many projects.

M.Martin suggested Mr. Rowley providing documentation showing the two additional units will offset the off-site improvements.  Mr. Rowley feels this argument could be made.  T.Weare feels another argument would be the benefit to the Town would be greater than the cost it would cost the Town to do it.

The Board members concurred that they may be in favor of ten units w/ further information.

K.Ferreira summarized what Mr. Rowley needs to do from this point (finish a design plan that meets all criteria, construction details, site plan review, & proceed w/ the Conservation Commission).  He noted that relative to review by the Town’s consultant, the applicant submitted $2,500 & $1,759 has been expended.  This leaves $800 for further reviews.  He doesn’t want the Town consultant doing work over what is left for the review.  He would like to know how much more work the Town consultant needs to do so the money matters can be handled.  Mr. Rowley asked that the Town consultant not include any construction in Tyler Ave. since he will have to review this w/ the Municipal Maintenance Director.

There were no audience members in favor or opposition to this application.  K.Ferreira suggested the Board’s secretary contact some of the abutters know when the hearing is continued to.

MOTION:	M. Scarsciotti moved to continue the public hearing for petition #21-08- 8 Tyler Avenue – Carmen Stroscio Realty Trust to April 9, 2008.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

VII.	ADJOURNMENT

MOTION:	A motion was made & seconded to adjourn the meeting at 10:55 P.M.

VOTE:  Unanimous (5-0-0)

Attest:  _________________________
	Mary Scarsciotti, Clerk

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