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

Date of Meeting:  June 11, 2008

I.	CALL MEETING TO ORDER

K.Ferreira called the meeting to order.

K.Ferreira explained the procedure for this meeting.

II.	ROLL CALL

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

Member Absent:	Mike Martin

III.	PRELIMINARY BUSINESS

A.	Minutes to be approved:  May 14, 2008

MOTION:	M. Scarsciotti moved to approve the meeting minutes of May 14, 2008.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

B.	Legal Services Invoice

K.Ferreira noted invoice# 74221 the Board needs to review from Kopelman & Paige, Town Counsel.  This invoice relates to discussions & court appearances by Town Counsel for the Point Independence Yacht Club.  The invoice total is $2,400.00.  Point Independence is coming before the Board for a remand on July 9th @ 7:00 P.M.  As part of the settlement negotiations, discussions had been held re:  Point Independence picking up the tab for the Town’s legal expenses.  K.Ferreira feels any action on this invoice should be tabled until the remand is held on July 9th.  

MOTION:	M. Scarsciotti moved to table action on invoice #74221 from Kopelman & Paige until July 9, 2008 as part of the negotiations w/ Point Independence Yacht Club.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

IV.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES
		      (NONE)

V.	PUBLIC HEARINGS

A.	#38-08 – 6 Anchorage Drive – John Smith

Present before the Board:	Attorney Perry
				John Smith
				Chris Smith

The public hearing notice was read into the record.

Attorney Perry stated the Board of Health has approved the septic system plan which is under appeal by an abutter.  Conservation has given approval as well which is also under appeal in Superior Court (for the Town Bylaw).  There had been an appeal to DEP who issued a superceding order.

K.Ferreira clarified the appeals.  The Conservation Commission issued an Order of Conditions, it was appealed by an abutter, a superceding order was issued by DEP, this was also appealed, & is pending an ad judicatory hearing in Boston.  The Board of Health approved a septic system design & this was appealed to Superior Court as well as an appeal of the Conservation Commission’s (Town) Wetland Bylaw.

Attorney Perry explained Mr. Smith purchased the property in question for his son w/ the purpose of building a home.  Mr. Smith has lived in the neighborhood for many years.  Mr. Smith received all the appropriate approvals except from the ZBA.  He applied for a Variance before the Board.  It was withdrawn based on the intent to acquire abutting properties which didn’t work out.  Thus, he is back seeking a Variance for the property.  

Attorney Perry feels the property satisfies the conditions for a Variance.  The lot is unique compared to the neighborhood, primarily topography.  He explained it backs up onto one of the drainage areas in the subdivision.  He feels this is the reason this lot was never built upon.  He feels Mr. Smith is stuck w/ the uniqueness & hardship of the lot.  The lot was not advertised as un-buildable, although there were some internal documents found that stated the lot was un-buildable due to Conservation, but Conservation has given its approval of the lot.  Mr. Smith paid $35,000 to the Town for the lot & pays real estate taxes on it.  

Attorney Perry noted there have been other Variances approved in the neighborhood.  The Board has found consistently, that the lots in this neighborhood do satisfy or apply to the statute; the granting of a Variance.  

Attorney Perry stated the lot in question has virtually no effect on the neighborhood.  There would be a three-bedroom single-family dwelling.  Both Conservation & the Board of Health are satisfied w/ the proposals.  There are no other issues that would result in any detriment to the public good.  He asked that the Variance be granted.

R. Secher noted the Building Inspector’s letter that states the lot is not-buildable due to a grand-fathering law.  Attorney Perry explained that the application for this lot came in simultaneously w/ zoning changes, most notably, the 60,000 sq. ft. requirement vs. a 30,000 sq. ft. requirement.  The Board made a decision that affected the old 40A, in which there would only be seven years protection.  There would be no grand-fathering.

K.Ferreira clarified that the lot is 30,000+ sq. ft.  There had been some question re:  combining three lots into one.  Attorney Perry explained that the intent was to acquire the drainage easement.  The Building Inspector initially rejected this.  The Building Inspector felt that if Mr. Smith had ownership of the drainage easement along w/ the Town-owned lot, & an abutting piece of land, everything would have been merged.  This was looked into, but the abutting land could not be obtained.  

K.Ferreira asked what percentage of the property is upland & wetland out of the 30,000 sq. ft.  Attorney Perry estimates the wetland piece is approx. 50%.  Mr. Smith explained that there is enough land there that all the setbacks were met.  It is in an R-60 district.

K.Ferreira clarified that the applicant is looking for an area Variance to come to the 60,000 sq. ft. needed.  K.Ferreira noted that Mr. Smith said all the setbacks are met, but he doesn’t think they are because setbacks in an R-60 district are 60 ft. off the street & 20 ft. off the sideline.  This 60 ft. cannot be met, mostly due to the wetlands.  Thus, the applicant is looking for a Variance for area & street setback.  The lot was created prior to the Bylaw requiring a certain percentage for upland.

K.Ferreira noted that M. Martin is on National Guard duty, thus, T. Weare will sit in his place.

M.Scarsciotti would like to see a copy of a court decision on a property near this lot relative to the seven year protection.

T.Weare asked when the lot was purchased by the applicant.  Attorney Perry stated approx. two years ago (5/06).  T. Weare asked how the lot was assessed. Attorney Perry noted that the lot was not sold as un-buildable.  T. Weare again asked how the lot was/is assessed.

Present before the Board:	John Cronan, BOS Liaison
Selectman Cronan stated the tax assessment is an approximation.  Mr. Smith stated the taxes are less than $100 for the quarter.  T. Weare feels this assessment seems like it is for an un-buildable lot.  K.Ferreira noted that the assessment at the time of the auction was $16,000.00.  A buildable lot in Town would go for more than $16,000.00.  

T.Weare clarified that the applicant knew the lot was not buildable, but he felt the hurdle was due to the wetlands & if it passed the wetlands test, everything would be fine.  Attorney Perry doesn’t feel this is correct.  Mr. Smith was never told by anyone that this lot was not buildable.  It was not advertised as non-buildable.  At the auction it was not announced that it was non-buildable.  Mr. Smith purchased the property in good faith as a buildable lot.

Mr. Smith knew the lot was listed as un-buildable as is every lot in the sub-division.  He did research on the lot to see if he could build a home on there.  He only wanted to build a home for his son.  He did nothing underhanded as he has been accused of.  He has met the requirements of the BOH & Conservation.  DEP also reviewed the site.  This process has taken two years.  He was never told the lot was un-buildable due to wetlands.  There is nothing on his deed that states the lot has any restrictions.  

K.Ferreira stated whether or not Conservation or BOH approves is not what is before this meeting.  Zoning is before this meeting.  If Mr. Smith had done research, he would have contacted an attorney & asked if the lot is buildable under zoning.  The highest bar to get over re:  building when there are issues are not usually technical.  There is now a legal issue.  This Board looks to see if the application passes the test for granting a Variance.  He asked Mr. Smith if he did any due diligence to determine if this was a buildable lot under zoning.  Mr. Smith thought it was only un-buildable due to size.  He discussed the issue he encountered in 1984 when he wanted to build his current home in the neighborhood.  It was stated then that his lot was un-buildable, he did research, presented said research, & received a permit.  Brief discussion ensued.  He discussed lot 65 being buildable in 2002.

T.Weare noted a paper that was given out at the auction.  She read a portion of what was written as follows:

“ The purchaser hereby waives any claims of rights he might otherwise have by reason of error or mis-description.  The sale will not be invalidated by error in this description of the size of the parcel sold or of the improvements that may thereon.  Parcels shall be sold & conveyed without representation of warranty as to the condition, construction, or fitness for habitation or whether it conforms to applicable State or local building zoning codes or complies w/ MA General Laws.”  Mr. Smith stated the paper didn’t say it was un-buildable.  T. Weare stated it doesn’t say it is buildable either.  Brief discussion ensued.

K.Ferreira asked if Mr. Smith had consulted w/ an attorney as to what would be the potential issues w/ this property.  Some issues would be wetlands, sanitary/sewer, & zoning.  He wants to know if he looked into the zoning issue which would be the biggest hurdle.  He discussed the history of this subdivision & none of these cases set precedent for this case.  Mr. Smith asked what makes his case different than any other Variance issued for size of a lot.  K.Ferreira explained that every lot stands on its own.  The ZBA has to make a finding on a Variance.  The ZBA needs to determine what is unique about a lot that sets it different from other lots & how does this unique characteristic cause a hardship.  Each lot is handed individually & stands on their own merit.

Audience members were asked to speak in favor of the application.

Present before the Board:	William St. Lawrence, 6 Maritime Dr.

Mr. St. Lawrence sees no reason this lot can’t be built upon.

Present before the Board:	Jim Barry, 28 Maritime Dr.

Mr. Barry asked the Board to utilize good judgment & passed ____________.

Present before the Board:	Mr. Kashner

Mr. Kashner is in favor of the application.

Audience members were asked to speak in opposition to the application.

Present before the Board:	Gene Guimond, Representing several residents appealing
						the matter in Superior Court

Mr. Guimond distributed documents to the Board.

Mr. Guimond discussed the granting of permits by Conservation & the BOH.  The Conservation decision was appealed.  He discussed what transpired w/ these permits.  He discussed grandfather protection.  Brief discussion ensued re:  grandfather protection.  K. Ferreira agreed that if an individual lot doesn’t have grandfather protection & lots are combined w/ no grandfather status, the combined lots don’t have it.  In this case, enough land was going to be purchased which would have been more than the area & frontage required needed.  He asked why this wouldn’t be a buildable lot.  Mr. Guimond stated it is due to the fact that a new lot would be created.  All new applicable zoning provisions would apply, including wetland issues.  Brief discussion ensued.

Mr. Guimond made the argument that due to the fact that there is no grandfather protection on this property, all zoning provisions as of the current zoning Bylaw apply.  He discussed decisions made in Supreme Judicial Court relative to appeals.  He discussed decisions made by the ZBA on other lots in this subdivision.  The Supreme Judicial Court made a finding that the lot size is a Variance.  To obtain a Variance, you need to prove issues w/ soil, shape, & topography.  These issues are not tied into this application.  The economic hardship is not tied into this case either.  The applicant knew there was a buildable issue.  He explained how some abutters came together to make an offer for this property to Mr. Smith.  The offer may not have been for the asking price, but no counter offer was ever made.  The property is not unique.  It is a self-created hardship from a creditor, assessor, & title.  He noted after the zoning freeze ended, the two adjacent properties (the drainage area & the lot) merged for purposes of zoning because they were under the same ownership.  These two properties were taken in tax title by the Town.  In 1997 the Town foreclosed on a right of redemption, therefore, the two lots became fabricated & now there is an undersized lot being made even greater in its non-conformity relative to lot size.  He submitted information on assessment of properties in this area.  He noted that documentation states that Variances should only be sparingly granted.

Present before the Board:	Rick Kelsch, Abutter

Mr. Kelsch stated he moved here in 2005.  He paid a premium for his home & is directly across the street from the property in question.  He paid premium based on the fact that he would have privacy.  It was represented that way by the real estate agents & the Assessors office.  It was never represented as a possibly buildable or potentially buildable lot.  It was represented as a non-buildable lot.  He was never informed of the land auction to be held.  He objects to Mr. Smith purchasing the property on the basis of him claiming he had no knowledge that it wasn’t a buildable lot.  This puts him (Mr. Kelsch) at a disadvantage.  It subtracts from his property, wealth, & assets.  He came into the neighborhood wanting to make friends, but he blames Mr. Smith for what has happened because he knows better.  He feels Mr. Smith has violated him.

Present before the Board:	Bill Colleary, Abutter

Mr. Colleary lives directly across the street from the lot in question.  He purchased his property 25 years ago.  He knew then the property in question was not buildable due to its condition & size.  He concurs w/ many of Mr. Kelsch’s points.  If the lot does get developed, it will have an adverse effect on existing property values.  If the lot does get developed & the elevation is raised above the street grade, there will be adverse effects to other properties due to runoff issues.

Present before the Board:	Theresa Tello, Abutter

Ms. Tello is an abutter & lives diagonally across the street from the property in question.  Her issue is that this piece of property is a beautiful piece of wetland in a beautiful neighborhood.  It is on a bad corner.  The septic will be 5 ft. off the road & it will be raised.  She doesn’t feel there is enough buildable upland in the lot.  It is mostly wetland & sinks down.  The engineer keeps changing the amount of fill that will be needed.  The amount of fill will need to be 5 ft. laterally in all directions which would put it in the road.  There will be an issue w/ water & runoff & adverse effects to abutters.  It doesn’t fit w/ the neighborhood or aesthetics.  It has caused issues in the neighborhood.  She is not in favor of this application.  She also wasn’t notified about the land auction.  She was told by the Treasurer/Collector that the lot was classified as Code 132 – un-developable land.
Present before the Board:	Ms.___________________, 8 Anchorage Dr.

Ms. ____________discussed this lot being a drainage area.  She feels it is a vernal pool.  K. Ferreira stated this doesn’t make any difference in zoning laws, although it may be of importance to Conservation.  Ms. ______________ noted that setbacks for vernal pools & wetlands are the same.  She discussed various species that inhabit this property.  She has an issue w/ the number of Variances needed for this property from various boards.  She displayed pictures to the Board of her property vs. the property in question.

Present before the Board:	A woman

The woman stated that the lot is not large enough to build on & it is too small to build a house on.

Present before the Board:	A gentleman, Tarpaulin Lane

The gentleman feels badly for opposing a neighbor who has invested $35,000 in a piece of property.  The neighborly thing to have done would have been to go to abutters & explained what was being proposed.  This was not done.  

K.Ferreira summarized a letter from Christy & William LaGue dated 4/18/08 stating they have an issue w/ the amount of Variances needed.

Mr. Chris Smith stated the septic system will not be 5 ft. from the road, but 5 ft. from the property line.  The septic system will be 17 ft. off the edge of the pavement.  It is set back quite a ways from the road.  He discussed assessment of the lot.  There was no un-buildable quote about the property.  He spoke re:  case law relative to being economically beneficial.  They had proposed to put a nice house on the lot.  If it is denied, he may be forced to look at things that are less sightly & don’t need requirements.

Attorney Perry explained w/in the zoning district, why this lot is unique & how this creates a hardship.  He noted that there were no Variances from Conservation & there were some waivers from the BOH.  He explained how this lot meets all four requirements of a Variance.

Mr. Smith again stated the intent is to put a house on the lot.  There is a lot of anger underlying this whole matter.  He purchased the property, checked it out, & felt they could build a house on it for their son.  He never thought it would be so difficult to get this approved by neighbors & the Town.  He asked the Board to review this matter carefully & he feels everything that needs to be met has been.

MOTION:	R. Secher moved to close the public hearing for petition #38-08 – 6 Anchorage Drive – John Smith.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	R. Secher moved to deny the application for petition #38-08 – 6 Anchorage Drive – John Smith.  T. Weare seconded for discussion.

K.Ferreira stated this home would be extremely close to the road.  He discussed other topography issues w/ the lot.  This lot wouldn’t have been a “good” lot when this subdivision was created.

NOTE:	A member of the audience asked for a point of order.

Present before the Board:	Ms. Rose

Ms. Rose understands that an Associate member is not allowed to vote.  K. Ferreira stated this doesn’t apply to the Zoning Board. (T. Weare is sitting in for M. Martin).  This Board is entitled to have three Associate members.  These Associate members are allowed to vote in place of an absent regular member.  Ms. Rose understood this to be true as well, but was told it is not valid.  K.Ferreira stated this matter has been reviewed by Town Counsel & the Chair is empowered to appoint an Associate member if a member is absent.

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

VOTE:  Unanimous (5-0-0)

B.	#40-08 – 69-73 Leonard Street – Wareham Boatyard & Marina – One year review – Don Dugan

Present before the Board:	Don Dugan

Mr. Dugan submitted approvals from DEP & the Governor per changes made last year to the plan.  The only item not completed in the water exactly as shown on the plan is a small dock from the gas area to the middle.  The reason is this is tied in w/ the Federal funding for the pump out station.  These funds are to be released shortly.  Assuming the funds are released, this will be completed next year.

Mr. Dugan noted that he called the Conservation agent who did not get back to him.  He contacted DEP & they will not review the as-built until three years is up.  He spoke re:  the Order of Conditions.  The only issue may be item #3.  He doesn’t know where or how to post the signage for parking.  He sent out notice/letter to all members of the marina relative to parking & other issues, such as discharge.  He read said letter into the record.

K.Ferreira explained the purpose of this meeting is to determine whether or not there was compliance w/ the ZBA’s conditions, to determine if everything was completed per plan, & to determine if there were any complaints filed re:  violations of said conditions.  This will also give neighbors an opportunity to state how they view the past year relative to the operations of the marina.

The audience were asked for comments or questions.

Present before the Board:	Victor Johnson, Abutter

Mr. Johnson expressed concern re:  the end of the street & two  _________compactors that come in.  They have to back down Leonard St.  There are children in the area.  He is concerned w/ them backing down this street due to safety.  The marina is still conducting work in the street.  There just isn’t enough room for his operations.  He submitted pictures to the Board. Traffic & speeding are problems.  It is too much for the area.

Present before the Board:	Lucy Furlong

Ms. Furlong can see the docks from her property.  There is a rule that children under the age of 12 are supposed to wear life jackets on the docks.  She sees children often w/out life jackets on the docks.  

Ms. Furlong spoke re:  the original license authorized  _________boats on the dock.  She spoke re:  the increase in boats at the marina to the present.  She asked for an extension of this one-year review to judge how this summer goes.

Present before the Board:	____________, 28 Leonard Street

Mr. ____________ submitted pictures to the Board.  Some pictures show that at low tide, the dock is sitting in the mud.  The proposed pumping station that will go off the gas dock may be difficult to utilize due to the tides.  He doesn’t know if all the upgrades have been made, such as No Smoking signs & all electrical requirements to sustain the dock.  Another issue is he has chained up the boat ramp that only members can access when Mr. Dugan had promised residents of Rose Point could also utilize it.

Ms. Furlong submitted a letter that Mr. Dugan sent to the president of the Rose Point Improvement Association last summer relative to the use of the boat ramp.  It states very strongly that “use of the ramp for free by paid members of the Rose Point Improvement Association”. Mr. Dugan stated he means only friends of the marina that are members of the Rose Point Association.  K. Ferreira reviewed said letter & read a portion of it into the record.  He asked what a “friend” of the marina is.  Mr. Dugan stated they are customers.  He will not allow anyone that is outside Rose Point to utilize the ramp.  He has stopped this.  The reason for the chain is because Mr. Johnson stated he (Mr. Dugan) wasn’t there 24 hours a day & people were blocking his property.  When he leaves, he chains it off.  He has the keys.  K. Ferreira felt the intent was to allow the ramp to be utilized by the members of Rose Point – people that belonged to Rose Point & longtime residents.  Mr. Dugan again explained why he has limited access to people to utilize the ramp.  He explained pictures he submitted documenting changes he has made.
Mr. Dugan explained why the docks were not completely put in.  Mr. Johnson & Ms. Furlong went to Conservation & attempted to get the Commission to redo the approval & deny it.  They created enough of an issue that Conservation delayed their decision & it took another month for approval.  Unless he purchased the docks again before approval, he would have been in violation of the regulations, thus, he chose to wait until he received Conservation approval before purchasing the extra docks he needed.

Mr. Dugan noted the docks are in for 50 boats except for the one area where the pump out will be located.  He will review the life jacket regulations again & will put signs up.  The pumping of gas & the issue of equipment has been reviewed by the Fire Dept.  The Fire Dept. reviews the signage & signs off on it.  Without their approval, he cannot pump gas.

A review of the pictures Mr. Johnson submitted proceeded.  Mr. Dugan, after looking at some of the pictures he noted that it is his property where there is a boat shown.  Leonard St. ends before this.  He showed where Town land ends & his begins on a map.  Discussion ensued re:  where the street layout ends.  K. Ferreira stated the engineer has indicated that some of the tar on the road ends on Mr. Dugan’s property & is the correct property boundary.

K.Ferreira asked Mr. Johnson, after all the time & effort made by the Board on conditions imposed, has the situation improved from what it was previously.  Mr. Johnson stated the docks have improved, but the streets have not.  His problem is the street.  Boats should not be on the street.  Boats are being worked on in the street.  Mr. Dugan argued that it is on his property.  Discussion ensued.

K.Ferreira wants to determine if there has been any violation of occupation of the public street & the non-public street.  He can’t determine anything from the pictures.  He suggested a rough survey be done to establish the layout as to where the property boundaries of Leonard St. ends.  Brief discussion ensued re:  the dates of the photographs.  

Present before the Board:	A gentleman

The gentleman asked what happened to Mr. Dugan’s actions from last year vs. this year.  Last year, if you were a member of the Rose Point Improvement Association there wasn’t any problem utilizing ______________.  This year it doesn’t count.  Mr. Dugan stated he was reprimanded by the Conservation Commission when people refused to accept the compromise established when before the ZBA.  He lost an entire years worth of additional revenue because he couldn’t put the docks in.

Present before the Board:	A gentleman

The gentleman asked re:  the pump out station that will be installed.  He asked where it will be tied into.  Mr. Dugan stated he has Town water & sewer.  He believes either the State or the Federal government will install the station.  These entities will determine how it is installed.

Present before the Board:	A woman

The woman spoke re:  the complaints made before the Conservation Commission.  She noted that they haven’t been to a Conservation meeting since 2004 since this issue started.  Mr. Dugan explained after a compromise was reached, he had to go back before Conservation Commission to get approval of the compromise & the original approval at the same time.  This was in 2007.  Brief discussion ensued.

R. Secher feels the only issue is where the road ends.  D. Sharkey suggested a certified copy of the exact property line & where the road ends, even a marker of some sort.

T. Weare suggested possibly issuing one card per household to those who are a members of the Rose Point Association to utilize the ramp.  She suggested maybe having them being able to utilize it a few days per week.  Brief discussion ensued.  Mr. Dugan stated not many of his patrons utilize the ramp.

K.Ferreira instructed Mr. Dugan to provide some sort of survey of the property line & Leonard St..  This way it will show where Leonard St. ends.  He also asked Mr. Dugan to think about how the ramp could be made available to the Rose Point members.  

MOTION:	R. Secher moved to continue the public hearing for petition #40-08 – 69-73 Leonard St. – Wareham Boatyard & Marina – Don Dugan to July 23, 2008.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

C.	#41-08 – 83 Glen Charlie Road – Jeffrey T. Fisk, c/o Westgate Land Survey

The public hearing notice was read into the record.

K.Ferreira noted that W. Engerman will sit on this case for M. Martin who is absent.

Present before the Board:	Frank Westgate, Westgate Land Survey
				Jeffrey T. Fisk

Mr. Westgate explained there are two non-conforming lots.  There are two existing non-conforming dwellings.  One of the dwellings goes over the dividing line between the two lots.  His client owns both lots & both dwellings.  His client has a disabled foster person living w/ him that utilizes a wheelchair.  He is looking to take in another foster person w/ handicaps.  He will need room.   The proposal is to connect the dwellings & House A will be raised up another floor.  It is not a Variance, but a Special Permit.

K.Ferreira noted that a new septic system may need to be installed.  The Board of Health is stating a new septic system will need to be cited or show that the existing septic system is conforming.  M. Scarsciotti read the memo from the Board of Health relative to this application & a septic system.

Brief discussion ensued re:  the proposed addition to House A.  K.Ferreira questioned how it will be determined that this will not be a duplex when both dwellings are connected.  He suggested a condition stating it had to meet the satisfaction of the Building Inspector that this was a single family dwelling & not a duplex.

K.Ferreira noted that the Building Inspector states that a Special Permit is required under Sec. 1334 because it is an alteration & pre-existing, non-conforming structures.  Thus, this is a Special Permit.  There shouldn’t be any external projections or alterations of the footprint.  

Mr. Westgate stated there will be approx. two parking spots, a possible one on the side, & if there will be a need for handicapped parking.  K. Ferreira would like to see three off-street parking spaces.

Mr. Westgate stated one of the dwellings is rented presently, but the dynamics will change once the dwellings are merged.  Discussion ensued re:  the entrance way to the properties.  

K. Ferreira noted the total square footage when completed will be approx. 2,000 sq. ft.  T. Weare questioned if there is a State imposed restriction on how many foster adults Mr. Fisk can have.  Mr. Fisk stated he cannot have more than two w/ the agency he works for.

Audience members had no questions or comments.

M. Scarsciotti expressed the importance of designing parking that doesn’t look like a  parking lot on the side.  She would like it to appear residential. 

D.Sharkey asked what the existing sheds are used for.  Mr. Fisk stated mostly garden equipment.  D. Sharkey asked if there are any proposals for a garage.  Mr. Fisk stated on one of the dwellings there had been a portable garage, but there is none at this time.  Eventually, he would like to have a carport.  Discussion ensued.

Mr. Fisk discussed the placement of handicapped ramps & location of the main entrance.

Discussion ensued re:  an 81X plan.

MOTION:	R. Secher moved to close the public hearing for petition #41-08 – 83 Glen Charlie Road – Jeffrey T. Fisk.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	R. Secher moved & D. Sharkey seconded to grant a Special Permit under section 1334 for petition #41-08 – 83 Glen Charlie Road – Jeffrey T. Fisk w/ the following conditions:

•	An 81 X plan to combine the lots into one lot shall be filed at the registry of deeds.  
•	The addition should be substantially as shown per plans submitted for this permit.
•	There shall be no other external projections or alterations of the footprint except for handicapped accessible ramps as required.
•	The Board of Health condition be met in that a Title V inspection & upgrade as necessary be completed.
•	A residential looking driveway be provided for the off-street parking of three (3) cars.
•	The interior remodeling & alterations are to the meet the satisfaction of the Building Inspector in that this will be in all appearances a single family dwelling & not a duplex.
•	All other pertinent boards & committee requirements must be met.

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

VOTE:  Unanimous (5-0-0)

VI.	CONTINUED PUBLIC HEARINGS

A.	#31-08 – 2786-2788 Cranberry Highway – R.B. Machine (Scott Burr)

Present before the Board:	Attorney Perry
				Dave Crispen, Civil Engineer/Land Surveyor

Mr. Crispen described the property in question.  The site was subdivided in 1920.  The property has three paper streets.  The questions before the Board are one of frontage (there is 115 ft. of frontage + a paper street & half a paper street).  The area of the lot including the paper streets is 28,000 sq. ft.  

Mr. Crispen described in detail how the paper streets impact the property.  He discussed the different types of streets/roads.  There is no evidence that any funding/money spent by the Town to protect the private ways on this property.  He discussed easements relative to lot area.  He feels paper streets are easements.  He discussed case law relative to “overburdening”.  Brief discussion ensued re:  the interpretation of “overburdening”.  

Mr. Crispen noted the property has been zoned commercial since 1951.  He spoke re:  abutters lots.

K.Ferreira asked which areas are being included in the 28,000 sq. ft.  Discussion ensued re:  areas included.

Discussion ensued re:  easements, abutters’ properties, & roadways.

K.Ferreira feels the neighbors’ concerns are the use of the property commercially in a residential neighborhood.

Audience members were asked for questions or comments.

Present before the Board:	Robert Troy, Attorney for Garden Homes Estates

Mr. Troy feels the presentation by Mr. Crispen was a very creative effort, but not on point.  The issue is can the applicant satisfy the State law requirements for a Variance.  The idea that you can appropriate someone else’s property & include it in a calculation for your lot is a concern.

Mr. Troy spoke re:  the Bylaw, sec. 611 & 621 & the definition of lot & lot front. & what the requirements are.   He doesn’t feel any of the reasons being given meet the requirements for a Variance.  He feels one requirement that the applicant will violate is the derogation of the intent of the Bylaw & the hardship factor.  He spoke that the property abuts a residential district which is a concern.

Mr. Troy respectfully asked that the Board deny the Variance because it doesn’t comply w/ the statutory requirements.

Present before the Board:	Jeffrey Callahan, Part owner of Garden Homes

Mr. Callahan spoke re:  photos submitted & the paper street (Gonsalves Ave.) that divides the Garden Homes property from the property in question.  He stated the street is in use up to a certain point.  It is blocked by a fence by Garden Homes at one point due to dirt bikes cutting through.  The plan shows egress from the proposed development onto Gonsalves Ave.  K. Ferreira feels this goes beyond a Variance & gets into Site Plan Review.  Brief discussion ensued.

Mr. Callahan spoke re:  the proposal for a propane filling station at the property.  He doesn’t feel the Bylaw regulations would allow this.

K.Ferreira feels the Board needs to get through the Variance issue first before moving forward w/ Site Plan Review.  Brief discussion ensued re:  parts of the Variance that need to be met.

Mr. Crispen discussed the hardship relative to the shape of the lot as created prior to zoning.  Discussion ensued.

Discussion ensued re:  the paper streets.

K.Ferreira stated if Attorney Perry wants a continuance to go to the Building Inspector to convince the Building Inspector that this is not a Variance under dimensional regulations, but a Special Permit for an alteration, extension, or change of use from a pre-existing use, he can do so.  Attorney Perry requested a continuance of this hearing.

Mr. Troy expressed concern relative to a constructive granting.  K. Ferreira stated the Board will request an extension of time waiver.  Mr. Troy suggested withdrawing the request for a Variance so the Board isn’t entertaining two methods of relief w/out having a decision on either.

MOTION:	R. Secher moved to continue the public hearing for petition #31-08 – 2786-2788 – Cranberry Highway – R.B. Machine (Scott Burr) to July 23, 2008 w/ the condition that a time waiver extension be submitted to the Planning office w/in the next two days & further, when the package application is re-submitted, advanced notice will be granted to the abutters’ counsel & there will be a formal motion to w/draw the Variance & apply for the Special Permit. D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

VII.	NEW BUSINESS/DISCUSSION

A.	DHCD Seminar.

M. Scarsciotti stated that a DHCD seminar will be held in the Town Hall auditorium June 18, 2008 @ 6:30 P.M. to discuss the new 40B regulations & guidelines.

VIII.	ADJOURNMENT

MOTION:	A motion was made and seconded to adjourn the meeting.

VOTE:  Unanimous (5-0-0)

Attest:  _________________________
	Mary Scarsciotti, Clerk

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