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

Date of Meeting:  July 9, 2008

I.	CALL MEETING TO ORDER

The meeting was called to order at 7:10 P.M.

II.	ROLL CALL

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

Also Present:		Dick Heaton, Consulting Engineer
			Jim Potter, BOS Chairman
			Tony Scarsciotti, Wareham Housing Partnership Chairman

III.	PRELIMINARY BUSINESS
(NONE)

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

V.	PUBLIC HEARINGS

A.	Remand for petition #132-05 & #007-06 – Point Independence Yacht Club, 15-17 Independence Lane.

The public hearing notice was read into the record.

K.Ferreira explained the BOS gave the ZBA permission to work w/ Town Counsel on this issue.  The matter is being appealed by the yacht club.  Town Counsel drafted the  public hearing notice.  The last sentence of the notice read “application shall be heard pursuant to an Order of Remand expected in litigation pending upon Superior Court”.  He noted the word “expected” is the problem.  There needed to be, although discussed in chambers, an Order of Remand signed by the judge hearing the case.  This judge is on vacation this week.  Town Counsel looked for this signed document & could not find it.  After researching the matter, she found the paperwork had been submitted by the attorney for the yacht club, but it was never signed.  He read a statement drafted by Ilana Quirk, Town Counsel, into the record explaining what has transpired.  (Attached as reference).

K.Ferreira noted that Attorney Quirk has suggested 9/3/08 for the continuation of the hearing.  He had contacted one of the abutters, Andrew Harrington who suggested 9/3/08 was an inappropriate date because it was two days after Labor Day & many interested parties may not be in Town due to school, etc.  Subject to Attorney Quirk being available, the Board can decide any date.  He noted the normal meeting dates of the ZBA in September.  Point Independence will pay for the new advertisement.  He suggested the Board pick a date, an alternate date, & make a motion on both.  Brief discussion ensued re:   how to proceed.

MOTION:	R. Secher moved to continue the public remand hearing for Point Independence Yacht Club to August 20, 2008, subject to Attorney Quirk being available or September 17, 2008.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

Audience members were asked for questions or comments.

Present before the Board:	Ms. Maynard

Ms. Maynard asked for clarification as to why the hearing is being continued.  K. Ferreira explained & emphasized that the paperwork was not signed by the judge.  Thus, the Board cannot commence the remand hearing until this paperwork is signed because they have no jurisdiction to do so.  It was of no fault of the yacht club or the Town of Wareham.

Present before the Board:	Mr. O’Brien

Mr. O’Brien asked to see a copy of the letter Attorney Quirk drafted that K. Ferreira read into the record.  K. Ferreira offered to share his copy.

Present before the Board:	A gentleman

A gentleman asked if a representative of the yacht club was present.  K. Ferreira questioned the audience & no-one was present to represent the yacht club.  He explained he had notified the yacht club that there was no reason to have their attorney present this evening since the hearing would not commence.

The gentleman asked this question because he wanted to give them some information.

Present before the Board:	A gentleman
The gentleman asked for a copy of the judge’s order.  K. Ferreira stated this order will go to Town Counsel, it will then be sent to the ZBA secretary, & it will then be filed in the Planning Office.

VI.	CONTINUED HEARINGS
(NONE)

VII.	NEW BUSINESS/DISCUSSION

NOTE:	K. Ferreira explained that Marilyn Whalley invited  Jim Potter, BOS Chairman & himself to meet w/ Springborn Laboratories because they are planning a major expansion at their facility which will include new jobs.  They will have to go before the Board for non-conforming permits, they will need BOS approval, & Conservation approval.  The laboratory asked for a preliminary meeting to figure out the logistics of meetings & timing.  The laboratory will first give a presentation before the BOS.  Brief discussion ensued.

A.	Discussion re:  40B Comprehensive Permit submittal for Union Pond Limited Partnership, c/o The Gatehouse Group, LLC, Brian J. McMillin, Vice President.

Mr. Heaton, Selectman Potter, & Mr. Scarsciotti were present for this discussion.

K.Ferreira updated the Board on what needs to transpire relative to this application.  When the hearing is opened, the Board needs to vote to hire Mr. Heaton as the ZBA’s 40B coordinator for this project.  The applicant has put up ($22,000) for review costs.  There is still an open issue re:  legal fees.  The applicant is stating they don’t have to pay the legal fees.  Attorney Witten feels that legal fees could be paid for, even under the new regulations.  The $22,000 is for peer review costs.  Attorney Witten is also on board for this application.  Payment for Attorney Witten will come from either the developer or the Town’s legal fund.

K.Ferreira noted timeframes that need to be followed for this application.  

Mr. Heaton explained the issue that makes this project different is DHCD just announced a new set of rules in 2/08 that sets a very specific time limit of 180 days from the day the hearing is opened to render a decision.  If a decision isn’t rendered w/in 180 days, there is a risk that the applicant will go to the Housing Appeals Committee & claim a defacto approval.  He will attempt to get all the housekeeping matters done ahead of time, so the Board can open the hearing & get right into the “strategic” issues.

Mr. Heaton has spoken to Hancock Associates to make them aware of what is happening.  Hancock is ready to sign on & be approved.  They will be at the first hearing.  They will bring a proposal for the Board to consider relative to conducting the peer review.
Mr. Heaton explained that the new regulations state the Board isn’t entitled to ask for a pro-forma until such time as a tentative decision is made.  At that time the applicant has the option to provide it.  Brief discussion ensued.  K. Ferreira noted that a Freedom of Information Act request has been sent out to DHCD relative to information & the pro-forma should be included.  Discussion ensued re:  the pro-forma.

Mr. Heaton expressed the importance of focusing on the waivers that will be presented by the applicant.  Many different Town entities, such as the Board of Health, need to review the waivers.  He had suggested the applicant go & see the relevant Town boards to obtain a report from them relative to the waivers.  He will be drafting a letter for K. Ferreira to send to all respective boards in Town, along w/ a copy of the waivers & a set of two or three questions to answer so that the Board will have a report from said boards.

T.Weare noted the preliminary waivers the applicant has filed.  She asked if it would be possible for the applicant to be more specific re:  the waivers.  Mr. Heaton explained that the Town’s experts need to review the waivers first.  These experts need a meeting w/ the developer to go through the requests, show the plans, explain what is being asked for, & ask the experts to submit a report to the Board as to whether or not the request is reasonable.  A peer review is then done to look at the requests & an opinion is offered to the Board.  He discussed the procedure from this point, such as meeting w/ other respective boards.

Mr. Heaton spoke re:  the Sewer Capacity Analysis.  The applicant has done this & they would like it reviewed by CDM, the Sewer Commissioners, or Hancock Associates.  They are asking the Board to make the decision as to whether to grant or not grant them a sewer connection & they are asking the Board for clarification who they should be working w/ on the sewer issue (entities noted above).  K. Ferreira feels it should be CDM.  Selectman Potter spoke re:  sewer capacity issues.  He noted the seven remaining neighborhoods that need to be sewered & will fulfill the Town’s entire obligation of capacity.  Therefore, if this project happens, at least one neighborhood on the list to be sewered may not be.  T. Weare asked re:  an alleged sewer decree.  Selectman Potter asked this when he first became a Selectmen relative to sewering 12 needs areas of Town.  There are seven remaining areas.  The Town is going out to bid shortly.  He had always been told there was a decree of some type.  After research was conducted on said decree, no such decree ever existed.  He informed the BOS of this.   K. Ferreira spoke re:  concerns the Board had w/ the 815 Main St. project & their connection to sewer. 

T. Weare asked if there is some sort of an agreement w/ the financing the Town is receiving to do the upgrades.  M. Martin stated there was only a letter of acceptance of the plan for the purpose of seeking State revolving loan funding.  Selectman Potter explained that this project is adjacent to the force main.  The project would like to tie into the force main.  CDM, the BOS’s consultant has stated year after year to not tie into force mains.  It disrupts the way the system works.  M. Martin explained why tying into a force main isn’t good practice.   Discussion ensued re: technical aspects of sewer pertaining to a 144 unit development.

Mr. Heaton explained that if the Town doesn’t grant a sewer connection, the State would step in & grant it.  DHCD has a history of overriding decisions of local communities & forcing towns to allow sewer connections.  This is a possibility in this case.  The Town isn’t in a strong position.  If there is a way to reach a compromise re:  sewer, it would be more beneficial.  Discussion ensued.  Selectman Potter spoke re:  if the applicant were able to mitigate their impact on the system.  There may be a situation where mitigation is good for today, but may not be good down the line.  

K.Ferreira stated in the last three to four years, every project that needed to tie into sewer, there was a problem as to who grants the sewer connection permit.  The Board & Attorney Witten knew it was the ZBA that made this decision.   The Board backed down & sent it to the Board of Sewer Commissioners to do it.  He discussed what happened w/ two projects when this was done.   He is concerned re:  negotiating a good project then it goes to DHCD for sewer, DHCD requires the connection, & then gives them more than what was negotiated.  Discussion ensued.

K.Ferreira asked Selectman Potter relative to what consultant the BOS will hire relative to this project & the sewer.  He feels it will be CDM.  Selectman Potter spoke re:  the development on Tyler Ave. in which the BOS denied a sewer tie in.  The BOS policy on sewer tie-ins charges the most recent betterment cost times the number of units.  Thus, this project would look at paying close to $1 million to tie in.  K. Ferreira feels if the tie in was granted w/ this condition, they would appeal it.  M. Martin spoke re:  the application fee vs. the betterment fee.  The betterment is a tax, the application is a fee.

K.Ferreira would like the Board of Selectmen to decide whether or not the ZBA are the sewer commissioners for this project.  He doesn’t want the two boards to clash.  Mr. Heaton stated one option is the ZBA & the normal permitting board (BOS) can make an informal agreement that the Zoning Board will ratify the decision the BOS makes so there won’t be a conflict.  Discussion ensued re:  this option.

K.Ferreira noted another issue relative to curb cuts & earth removal.  The curb cuts would be issued by Mass Highway.  The Board doesn’t give out earth removal permits.  Selectman Potter stated that safety & traffic will be another issue.  The BOS has already have had MA Highway in to discuss this road which is the deadliest road in Town.  Adding 144 units to this roadway is a concern.  K.Ferreira stated whomever will be doing a traffic survey needs to be decided.  Discussion ensued re:  issues w/ this roadway.

K. Ferreira asked if there is a formal plan in place that would allow the Town to deny a project because it has reached the ¾ production quota of affordable housing.  Discussion ensued re:  the procedure for this & if the Town has reached this quota.  It was noted that some affordable units may have already expired & new DHCD rules/regulations may impact the present quota.

K.Ferreira asked if w/in 15 days they notify the applicant that the Town has met their production needs & will exercise that, does the Board continue w/ the hearing to see if they like the project.  M. Martin feels the hearing should be opened even though it is stated that production is met.    K.Ferreira stated the Board needs to find out if the Town qualifies for meeting their production needs.

Brief discussion ensued re:  if the applicant would consider on-site sewer or not & traffic issues, which most likely will result in traffic mitigation.  

Selectman Potter expressed the importance of having everyone (boards) going in the same direction, having the same information, & having the same respect.  It wouldn’t offend him personally if he isn’t making a decision if he knows he can trust the people making the decisions that have the relevant information.

Brief discussion ensued re:  the importance of receiving input from all relevant departments.  

K. Ferreira expressed the importance of having the BOS liaison attend ZBA meetings to relay information back to the BOS.  Brief discussion ensued re:  the Oakdale project & issues that transpired.  Brief discussion ensued re:  BOS liaison to the ZBA & that the liaison should relay the sewer information back to the BOS.

Mr. Heaton explained that the 180 day rule could be changed if the applicant is doing things to delay the hearing, such as requests for continuances.  If a request for a continuance is made, the Board should ask the applicant to sign a letter agreeing to continue the hearing by another 30 days.

Mr. Heaton spoke re:  the applicant’s request for exceptions from most of the zoning rules & regulations.  It is not clear as to their right to do this.  The way DHCD has written the regulations gives them the right to do this, however, this is under 40B.  The Town’s zoning rules/regulations are written under 40A.  Under DHCD’s new regulations, the Town has no rights to write any regulations of their own.  Brief discussion ensued.

Mr. Heaton suggested the Board preserve & exercise their rights to not grant the regulations if they so choose to, but open the hearing & proceed preserving the right to object to the regulations.  There are many waivers.  T. Weare again stated that the waivers are very ambiguous.  Mr. Heaton stated the applicant’s attorney has indicated they will be willing to go through the waivers w/ the local boards & they will provide all the information.  The local boards can then send a report defending their position on the waivers.  A future meeting can then be scheduled.

Brief discussion ensued re:  list of abutters & on-site treatment options for the project.

Present before the Board:	Anthony Scarsciotti

Mr. Scarsciotti feels if the project had to do on-site treatment, they couldn’t do the number of units being proposed.  They would have to cut back the number of units.  There is only 10 acres of upland out of 14 acres.  The leaching field vs. the wetlands would be an issue.  K. Ferreira stated that adjoining land could be leased or an easement garnered for a leaching field.  Brief discussion ensued.

Brief discussion ensued re:  why the BOS didn’t respond to the site eligibility letter w/in the 30 day timeframe.  Selectmen Potter stated it was never discussed, thus no response was made.  The importance of responding to these letters was noted.  T. Weare suggested the BOS still draft a letter to send even though the 30 day timeframe has passed.

B.	Any other business.

A.	Review & initial invoice #74221 from Town Counsel.

Discussion ensued.  K. Ferreira explained the Board is holding off on voting this bill because of on-going discussions w/ the entity involved to pay this bill.

VIII.	FUTURE PUBLIC HEARINGS

A.	July 23, 2008 – Petition #43-08 – 40B Comprehensive Permit, 2880 Cranberry Highway, Wareham, MA, Union Pond Limited Partnership, c/o The Gatehouse Group, LLC, Brian J. McMillin, Vice President.

IX.	ADJOURNMENT

MOTION:	M. Martin moved to adjourn the meeting at 9:00 P.M.  D. Sharkey seconded. 

VOTE:  Unanimous (5-0-0)

Attest:  _________________________
	Mary Scarsciotti, Clerk

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