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

Date of Meeting:  April 23, 2008

I.	CALL MEETING TO ORDER

The meeting was called to order.

A.	Roll Call

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

Also Present:		Ted Misiasek, Director of Inspectional Services
			John Cronan, BOS Liaison (Arrived at 7:35 P.M.)
			Ilana Quirk, Kopelman & Paige

II.	EXECUTIVE SESSION

MOTION:	M. Scarsciotti moved at 7:10 P.M. to enter into Executive Session to discuss potential litigation re:  Point Independence Yacht Club & return to open session upon conclusion of Executive Session.  R. Secher seconded.

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

VOTE:  Unanimous (5-0-0)

NOTE:	The Executive Session concluded and returned to the Regular Session meeting.

III.	PRELIMINARY BUSINESS

A.	Minutes to be approved:  March 26, 2008 – Regular Session & March 26, 2008 – Executive Session.
MOTION:	R. Secher moved to approve the Regular Session meeting minutes of March 26, 2008.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	R. Secher moved to approve the Executive Session meeting minutes of March 26, 2008.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

NOTE:	K. Ferreira stated a request has been received for petition #35-08 – 3162-3166 Cranberry Highway – Calvin & Diane Carnes to continue the public hearing to May 14, 2008.

MOTION:	R. Secher moved to continue the public hearing for petition #35-08 – 3162-3166 Cranberry Highway – Calvin & Diane Carnes to May 14, 2008.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

K. Ferreira received a call from Charles Rowley re:  petition #21-08 – 8 tyler Avenue – c/o Charles Rowley.  Hancock Associates had not submitted a bill for $500.00.  They only submitted a bill for $1,700.00.  Thus, another $800.00 is needed from the applicant is needed for Hancock Associates to complete the review.  A request for a continuance has been made to May 14, 2008.

MOTION:	M. Scarsciotti moved to continue the public hearing for petition #21-08 – 8 Tyler Avenue – c/o Charles Rowley to May 14, 2008.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

Present before the Board:	John Cronan, BOS Liaison

Mr. Cronan asked re:  the billing process for peer review.  He asked if there is a policy w/ the Zoning Board re:  the account needing to be kept up & prepaid.  There has been a concern w/ the Planning Board that the fees weren’t correct, the checks weren’t on time, & bills never went out.  K. Ferreira understands that the Town Administrator has instituted a new policy for the ZBA, Planning Board, Conservation, & Board of Health for peer review processes & how the money has to be posted.  This is why the money for the Tyler Ave. engineering review is being requested up front.  There is also a new form that needs to be signed by the applicant relative to peer review monies.  This was not followed in the past.  The ZBA secretary has a copy of this new written policy.

IV.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES

A.	Correspondence received from Freeman, Davis & Stearns, LLC dated 4/14/08 re:  815 Main Street & 809 Main Street.

Present before the Board:	Attorney Peter Freeman

K. Ferreira explained a letter dated 4/14/08 was received from Attorney Freeman relative to a determination of whether the requested change is a substantial change.

Attorney Freeman explained the Comprehensive Permit called for specific percentages.  It called for 12.25 units to be one bedroom units up to 31.85 units could be no more than two bedrooms & 4.90 to remain up to three bedrooms.  He is asking approval for the minor change of percentage of one bedroom, two bedroom, & three bedroom units.  He noted the changes which were slight.

T.Weare understands Attorney Freeman is stating the only significant change is the 12.25 one bedroom units would be 11 units.  She is looking at the more significant change of having no more than having 31.85 two bedroom units.  Attorney Freeman is stating this will now be 35 two bedroom units.  The operative wording is “no more than”.  Attorney Freeman noted issues w/ financing relative to the change of units.  K. Ferreira noted that Cornerstone provided the percentage mix.  This was a statement based on 88 units.  This percentage mix changed when it went down to 49 units.  The main issue is there can only be a 9,900 gallons of sewerage for the project’s sewer.  He feels the proposed change in numbers represents this 9,900 gallons.

K.Ferreira explained the Board needs to decide whether or not this is a substantial change requiring a public hearing to debate the issue or decide whether it is an insubstantial change & doesn’t require a public hearing to require this modification.  

Attorney Freeman discussed the guidelines relative to requests for changes/modifications.  Relative to the number of units, if there is a change in the total number of units less than 10% (which is the case here), it is typically considered an insubstantial change.

MOTION:	R. Secher moved that the modification request re:  815 & 809 Main Street be granted & to find that said request is an insubstantial change & to allow condition #29 to be struck & restated.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

Discussion ensued re:  engineering fees & legal fees.  K. Ferreira noted that estimates were received for the total peer review on this project.  Attorney Freeman has this information.  K. Ferreira stated that since construction is down the road, the applicant only had to post money for item C1 & C2.  He understands from Attorney Witten that one of the conditions also states that the applicant will also pay for the legal review of the final condo documents, deed rider, regulatory agreements, etc.  In addition to the peer review monies that will be due, there will also be money needed for legal review.  He will contact Attorney Witten to supply an estimate for said legal review.  With regard to the modification, Attorney Freeman stated he will provide a statement that the ZBA can sign & it will be  filed w/ the Town Clerk.

V.	CONTINUED PUBLIC HEARINGS

A.	#34-08 – 2855 Cranberry Highway – Wareham Lodge of Elks #1548, c/o Robert Levangie, Board of Trustees (This is a continued hearing).

Present before the Board:	Robert Levangie

Mr. Lebangie discussed what transpired at the last meeting.  He spoke re:  the dimensions of the proposed sign, other signage in the area (from abutting businesses), & the dimensions of the existing sign.

K.Ferreira noted that several members went out to the site to see the existing sign & abutting signs.  He understands the existing sign is in a hollow.  The total extent of the sign being asked for is (16 ft.).  It seems that one of the posts goes up 2 ft. high.  Mr. Levangie stated it is a 4x4 piece of wood strapped to the side.  The actual sign currently is 7 ft. above street level. 

K.Ferreira expressed concern w/ giving the full 16 ft.  He doesn’t feel it needs to be this high.  The sign will be new, lit, etc.  He doesn’t know if 16 ft. is needed.  He asked Mr. Levangie for a compromise on the height.  Mr. Levangie explained the proposal is only going up 5 ft. above the height of the existing sign.  He again noted the hollow the sign is placed in.  T.Weare stated the existing sign is quite clear, even though it is located in a hollow.  

Mr. Levangie stated he would go w/ a compromise of 13 ft. vs. 16 ft.  M. Scarsciotti noted the existing sign is visible from the lights at Glen Charlie Rd.  If the sign is made higher, she feels it will reduce the sign’s visibility.  It would be obstructed by the other signs there.  She would be in favor of going w/ a wider sign vs. a higher sign.  Mr. Levangie asked if there is a requirement relative to width of a sign.  The consensus was that it is 120 sq. ft.  M. Martin would also prefer the sign be wider vs. higher.  Discussion ensued re:  the height requirement & the 120 sq. ft. width requirement.

Discussion again ensued re:  how high the sign should be.  The Board concurred w/ a 12 ft. high sign w/ the addition of approx. eight inches for the emblem.  Mr. Levangie stated this would put the bottom of the sign one foot above the sidewalk.  

MOTION:	R. Secher moved to close the public hearing for petition #34-08 – 2855 Cranberry Highway – Wareham Lodge of Elks #1548.  D. Sharkey seconded.

NOTE:	Audience members were asked for questions or comments.

Present before the Board:	John Cronan, BOS Liaison

Mr. Cronan asked if two more feet will be given than the existing sign.  The Board concurred.  M. Martin stated it will average out to about 13 ft. w/ the emblem.  Mr. Cronan suggested the sign could be wider.  Discussion ensued re:  the sign being wider.  Mr. Levangie stated the sign will be 8 ft. wide.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved & D. Sharkey seconded to approve a sign Variance for petition #34-08 – 2855 Cranberry Highway  - Wareham Lodge of Elks #1548 w/ the following conditions:

•	The sign will not exceed 13 ft. from ground level to the emblem.
•	The sign shall not exceed 12 ft. for the top of the sign.
•	The sign shall be in the design & dimensions as shown in Exhibit A & B.
•	The illumination shall not flash or move.  The letters shall be stationary.

VOTE:  Unanimous (5-0-0)

VI.	PUBLIC HEARINGS

A.	#32-08 – 27 Leisure Lane – Daniel G. Doherty, Sr.

The public hearing notice was read into the record.  There are no comments from the Board of Health.

Present before the Board:	Attorney Len Bello

Attorney Bello discussed information submitted.  He read a petition on behalf of the applicant into the record.  In short, it states that the applicant & his wife have retired due to medical conditions & wish to build a home on the parcel in question.  On 2/12/03 the lots were purchased.  The lots were joined together.  Initially, it was thought this parcel qualified for a small lot exemption, however, it was then determined that these parcels were once held in common ownership w/ Lot 224.  Lot 224 is located behind & to the left of Lot 197.  Lot 224 comes in contact w/ the rear corner of Lot 197.  There is an approx. 18 ft. overlap.  Lot 224 has been owned by the Town since the mid-1980’s.  The applicant attempted to purchase Lot 224 from the Town.  For the past four years the applicant’s name has been placed on a land sale list.  It appears the Town has not sold any land for quite some time.  The purchase of Lot 224 would add nothing to the aesthetics of suitability of Lots 197 & 198 due to the location.  However, owning all three lots would allow for the qualification of a small lot exemption.  The Town has classified this parcel as a Class Code 131 which means potentially buildable.  It has assessed & taxed this parcel accordingly as well as being assessed a water betterment.   Due to the above reasons, the property in questions stands in a unique & different position than the other properties in the area.  The hardship is financial as the parcel that is not allowed to be built upon would have minimal if any value.  The land itself would be rendered useless.  The taxes paid to the Town over the years as well as the water betterment assessment would have been a total loss in addition to the initial investment for the property.  Granting the requested Variance is not in derogation in the intent & purpose of the zoning Bylaw.  The parcel is zoned residential.  In light of the location & character of the neighborhood, the construction will not be more than a two-bedroom home on a combined lot of 13,040 sq. ft. w/ 136.4 ft. of frontage.  It poses no detriment to the public good.  The home constructed across the street was as a result of the Board granting a Variance.

K.Ferreira stated in the petition that at one time it was thought this parcel may have qualified for a small lot exemption.  It doesn’t seem like a lot of money was paid for this lot in 2003.  He asked if it was known (the small lot exemption) before or after the purchase.  Attorney Bello explained when the initial person purchased it, they purchased it w/ the understanding that it qualified for a small lot.  This person purchased it prior to the applicant.  When the applicant purchased the lot, it wasn’t purchased under the assumption that it qualified as a small lot.  It was purchased w/ the idea that it would qualify for a Variance.

K.Ferreira feels the merger of the lots would have deleted the small lot exemption that existing for the lots.  Attorney Bello explained when the lots are split, the small lot exemption is gone.  Brief discussion ensued.

Attorney Bello explained that a Mr. Murphy owned the three lots.  He had grandfathered status.  He let one of the lots go into tax title.  He then puts them back together again.  His position hasn’t changed.  K. Ferreira feels this position is different because if it went into tax title & paid off the back taxes to get the land back, the tax title would be cleared up.  Brief discussion ensued re:  why the Town hasn’t had a land auction in quite some time which would be beneficial to the Town.  

M. Martin discussed why the Town took tax title of one of the lots.  The issue was there were different addresses.  Mr. Cronan can obtain information as to why the Town hasn’t held a land auction in some time.  Mr. Misiasek stated if it was grandfathered, whether there were the two lots or three lots, the use would still be only for one dwelling.  Attorney Bello stated the acquisition of the Town owned lot doesn’t enhance the applicant at all, but it satisfies the requirements.

Audience members were asked for questions or comments.

Mr. Cronan doesn’t see any reason why a house can’t be put on the two existing lots.  He discussed other homes in the neighborhood that are on single lots.  Mr. Misiasek, the Assessors office & the Conservation Agent have been looking into land of low value.  The Town owned lot in question could be considered as land of low value.   There is a list of land of low value.

MOTION:	R. Secher moved to close the public hearing for petition #32-08 – 27 Leisure Lane – Daniel G. Doherty, Sr.  M. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved & D. Sharkey seconded to grant a Variance for petition #32-08 – 27 Leisure Lane – Daniel G. Doherty, Sr. with the finding that not granting a Variance for relative to this particular piece of property will serve no legitimate public purpose in that there is no other reasonable use for this property other than residential & not granting a Variance would result in a substantial hardship financial or otherwise to the petitioner & said Variance shall apply to area as well, & further, the following conditions shall apply:

•	All other standards, conditions, rules & regulations of other applicable boards & commissions shall be met.
•	Parking off street adequate to the use shall be provided.

Discussion ensued re:  setback requirements for an R130 district.  K. Ferreira stated if this qualified for a small lot exemption, the requirements would be 10 ft. from the street & 4 ft. from the sides on a 5,000 sq. ft. lot.  The requirements that apply to this petition is 100 ft. from the front & 30 ft. from the sides & rear.  This would wipe out this lot.  If this lot needs a Variance for frontage & area, than it may need it for setbacks.

•	Front setbacks shall be a minimum of 20 ft. & side & rear setbacks shall be a minimum of 10 ft.

VOTE:  Unanimous (5-0-0)

Discussion ensued re:  setback requirements under zoning.

B.	 #35-08 – 3162-3166 Cranberry Highway – Calvin & Diane Carnes (DONE)

NOTE:	The meeting went back to item V.  Continued Public Hearings.

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

No-one was present to represent this application.  Brief discussion ensued re:  timeframe left & how to proceed.  No-one has shown up for the last two hearings.

MOTION:	R. Secher moved to deny w/out prejudice petition #29-08 – 31 Onset Avenue – Andrew Potito.   M. Martin seconded.

VOTE:  Unanimous (4-0-0)

C.	#21-08 – 8 Tyler Avenue, c/o Charles Rowley (DONE)

VII.	NEW BUSINESS/DISCUSSION

A.	Any outstanding enforcement issues.
K. Ferreira asked re:  the trailer issue on Sandwich Road.  Mr. Misiasek stated the matter of the trailers & fence have gone to court.  The Clerk of the Court continued the case for six months, but the defendant needs to do something w/in six months re:  moving the trailers.  As far as the fence goes, Mr. Misiasek sent a letter to MA Highway.  MA Highway sent a letter to the defendant requesting the defendant appear before them.  MA Highway wants the fence moved back off the highway, but he has a year to do it.

Mr. Cronan spoke re:  the proposed YMCA sign at the beginning of Charge Pond Rd.  He asked if the land the sign would be on is owned by A.D. Makepeace, not the owner of the house.  K. Ferreira noted that A.D. Makepeace only owns a sliver of the property.  Mr. Cronan noted the sidewalk that was put in on the other side of Charge Pond Rd.  He feels the sign could be put on this side instead.  He asked where the sign will be placed if the front of the property owner’s house is on State highway & the side is Town property.  K. Ferreira stated the applicant is looking into this.  Discussion ensued.  Mr. Cronan expressed concern re:  the existing Municipal Maintenance sign which he feels is a safety issue for traffic.  He has asked several times over the years for that sign to be taken down.  Nothing has been done about it.  

VIII.	ADJOURNMENT

MOTION:	M. Martin moved to adjourn the meeting.  M. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

Attest:  _________________________
	Mary Scarsciotti, Clerk

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