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

Date of Meeting:  August 27, 2008

I.	CALL MEETING TO ORDER

K. Ferreira called the meeting to order

II.	ROLL CALL

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

Member Absent:	Mike Martin

K. Ferreira proceeded to explain the meeting/hearing procedure for this evening.

III.	PRELIMINARY BUSINESS

A.  Approve minutes of meetings:	July 9, 2008 & July 23, 2008

Not handled.

IV.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES

A.	#10-08 – One Year Review – 2 Burfield Drive, c/o Sandi Butler

This is a one year review for the permit issued 9/07.

MOTION:	R. Secher moved to have the Board’s secretary send a letter to Ms. Butler stating that she needs to file for the one year review, pay the application fee, advertisement fee, & notify the abutters so this matter can be placed on the agenda.  D. Sharkey seconded.

VOTE:  Unanimous (6-0-0)

B.	Request for fence – Mrs. Mann – Carlton Place abutter

Mrs. Mann is still looking for her fence.  K. Ferreira understands the general manager/project manager, Wayne Delpico is no longer employed by Mulligan Homes.  He was the contact person.  There was also correspondence that indicated Mrs. Mann has not signed off on the easement.  There is an easement to the Town of Wareham that needs to be signed.  

K. Ferreira feels a letter should be drafted to Mulligan Homes & a copy sent to Mrs. Mann relative to the status of what is happening w/ the agreement.  The interim Administrator should also get a copy of this letter.

MOTION:	R. Secher moved to have the Board’s secretary send a letter to Mulligan Homes w/ copies sent to Mrs. Mann & the interim Administrator re:  the Board would like to conclude the agreement made & that Mrs. Mann needs to sign the easement & Mulligan Homes needs to install the fence & further, notice be sent to the Building Inspector that no more occupancy permits should be issued until this issue is resolved.  D. Sharkey seconded.

VOTE:  Unanimous (6-0-0)

NOTE:	Brief discussion ensued re:  new request for an 18-unit development for a parcel next to Shaw’s.  K. Ferreira noted that a commercial project generally cannot enter in a residential zone.  He noted case law relative to this. 

V.	PUBLIC HEARINGS

A.	#46-08 – 2 Circle Drive – Donna Haigh

The public hearing notice was read into the record.

Present before the Board:	Donna Haigh
				Peter Mahon

Ms. Haigh wants to construct a deck.  There is supposed to be a 20 ft. setback from the street & she only has 18 ft.   

K. Ferreira asked if there was anything there before the deck.  Ms. Haigh stated just the driveway.  She will not be tearing anything down.

Mr. Mahon stated they are moving the driveway to the other side of the house & tearing the existing asphalt up.  Crushed stone will be used for the new driveway.  The deck will be open.  At some point they may apply for a permit to close it in.  The only access will be from the outside.

M. Martin asked why a deck can’t be built that meets the zoning setback.  Mr. Mahon stated it is for aesthetic value.  M. Martin doesn’t feel a matter of 2 ft. has a detriment on aesthetics.  Mr. Mahon discussed the roof line.

Audience members had no questions or comments.

M. Martin feels this request is creating a non-conformity, thus it should be considered a Variance.  K. Ferreira stated the deck is an addition to the structure & the entire structure is non-conforming.  Thus, it is an expansion of a non-conforming.  He agrees that if the applicant’s took off two ft., a Special Permit wouldn’t be needed.  He doesn’t feel it is a Variance.  The Building Inspector has ruled that a Special Permit would be needed under section 1334.  T. Weare questioned if there is a total area issue as well.  Brief discussion ensued.  M. Scarsciotti stated the deck will have no foundation nor a roof; it is just open.  Brief discussion ensued re:  not considering the deck in lot coverage.  K. Ferreira noted that in MR30, building coverage is 25%.  He noted the definition of lot coverage.  He doesn’t feel decks are considered an impervious cover.  Thus, he doesn’t feel lot coverage is an issue, but he feels it is a Special Permit.

R. Secher asked if moving the driveway to the other side impacts anything.    K. Ferreira stated only to the extent that there is adequate parking for the lot.  R. Secher asked what will go in place of the ripped up tar.  Mr. Mahon stated they are thinking of putting a patio there, under the roof.  T. Weare feels a patio would be considered impervious.  M. Martin still feels to keep in conformity, the deck should be slid back 2 ft.  Brief discussion ensued.  K. Ferreira doesn’t see any reason why it can’t be slid back 2 ft.  

Mr. Mahon stated the deck will come up to the roof line.  In the front, the roof is flat.  In the center it is pitched.  The back goes back to a flat roof.  He is trying to match the deck to the roof line.  The deck will match in directly opposite the pitched roof.  If the deck were to slide back 2 ft., it would be near the flat roof & look out of place.

M. Scarsciotti feels this request is a significant increase & she would be opposed to any enclosure of any type.  

K. Ferreira explained that if the Special Permit is granted, Mr. Mahon will need to come back before the Board if he decides to enclose it.  M. Martin stated there is a price to be paid w/ the Board to allow the applicant to deviate from the ordinance.  K. Ferreira explained that anything that will alter the deck in the future will required the applicant come back before the Board.  If it was conforming, he wouldn’t have to come back.

D.Sharkey feels the only basis the applicant is making to defend the request is aesthetics.  He doesn’t feel this is a proper defense to grant the change.

T. Weare feels if the applicant decides at some point to enclose the deck, it will turn into a lot coverage issue.  Brief discussion ensued again re:  lot coverage percentage.

W. Engerman feels the deck is too close to the lot line.
T. Weare explained that if it was moved back two feet, it can be built as long as there are no more non-conformities.  Proposing it as is, there will be conditions on the project.    T. Weare feels the deck is too big for the house & neighborhood.  Brief discussion ensued.

K. Ferreira noted the new building code regulations.  He asked how the applicant wants to proceed (1. Move ahead w/ a vote of the Board or 2.  Move the project back 2 ft.).  The applicant asked if he moved it back 2 ft., could he get the building permit ASAP.  K. Ferreira stated that this Board doesn’t make decisions for the Building Inspector.  The Building Inspector sent the applicant to the Board is because of the deck setback.  He interprets the denial letter to state if the deck met the 20 ft. setback, it wouldn’t have come before the Board.  He can’t guarantee if the applicant withdraws the application this evening & goes to the Building Inspector tomorrow, there may be more issues.  The Board can table action (continue the hearing) on this application so the applicant can have time to review what he wants to do.  If the applicant wishes to withdraw, he should send a letter to the Board.

MOTION:	D. Sharkey moved to continue the public hearing for petition #46-08 – 2 Circle Drive – Donna Haigh to September 10, 2008.  R. Secher seconded.

VOTE:  Unanimous (6-0-0)

B.	#48-08 – 19 Juniper Street – Roberta & Richard Mann

The public hearing notice was read into the record.

Present before the Board:	Richard Mann
				Bill Moray, Contractor

Mr. Mann would like to connect a breezeway between the garage & the existing house.  They are year-round residents & would like to make it more comfortable.  They will be retiring there.

The Board reviewed the plot plan.  Mr. Moray explained what the colors mean.  He discussed issues w/ setbacks for the proposed breezeway to the garage.   Discussion ensued re:  what the non-conformity is.  Brief discussion ensued re:  setbacks for a separate accessory structure.  Brief discussion ensued re:  access to the garage.

Audience members had no questions or comments.

K. Ferreira noted that the house expansion has been approved.  The breezeway makes the house non-conforming because it is one structure.

MOTION:	R. Secher moved to close the public hearing for petition #48-08 – 19 Juniper Street – Roberta & Richard Mann.  D. Sharkey seconded.

VOTE:  Unanimous (6-0-0)
MOTION:	M. Martin moved & R. Secher seconded to grant a Special Permit for petition #48-08 – 19 Juniper Street – Roberta &  Richard Mann w/ the finding that the proposal will not substantially increase the non-conforming nature of the structure nor be detrimental to the character of the neighborhood & to impose the following conditions: 

•	Construction needs to meet all proper regulations.
•	Any modifications or alterations substantially deviating from the plan submitted will need a new public hearing.

VOTE:  Unanimous (6-0-0)

C.	#47-08 – Off of Standish Avenue – Bartlett Pond Village – Comprehensive Permit, c/o Attorney Robert L. Devin

The public hearing notice was read into the record.

Present before the Board:	Attorney Robert Devin
				Richard Heaton, H & H Associates
				________________, Civil Engineer

K.Ferreira explained that this is a comprehensive permit under Chapter 40B.  The rules are different than traditional permits.

K. Ferreira stated the Board has decided to hire Richard Heaton of H&H Associates to assist them in going through the application & technical requirements.

K. Ferreira stated he needs a motion to hire Richard Heaton of H&H Associates, retroactively, to August 1, 2008 to work w/ the Board on this application.

NOTE:	Attorney Devin stated he received a copy of a proposal from Hancock Associates.  He has not received a copy of Mr. Heaton’s proposal.  Mr. Heaton was under the impression a copy was sent.  Attorney Devin stated he never received it.  Discussion ensued.  K. Ferreira stated there is time to handle the paperwork, but there is limited time to open the public hearing.  Mr. Heaton spoke re:  the new rules & regulations relative to hiring a consultant & the applicant’s right to appeal this.  Attorney Devin stated _____________________________?? (Attorney Devin was very difficult to hear – almost inaudible).    Attorney Devin stated in terms of consultants, he encouraged the Board to exercise the full ___________________.

MOTION:	R. Secher moved to hire Richard Heaton of H&H Associates, retroactively, to August 1, 2008 to work w/ the Board on this application. D. Sharkey seconded.

VOTE:  Unanimous (6-0-0)

MOTION:	M. Scarsciotti moved to hire Jon Witten of Daley & Witten as legal counsel to assist the Board in reviewing this application, retroactive to August 1, 2008.  R. Secher seconded.

NOTE:	Attorney Devin stated he doesn’t object to the Board’s decision of hiring Attorney Witten.

VOTE:  Unanimous (6-0-0)

K. Ferriera discussed the need for peer review.  The Board has usually allowed the peer reviewer to deal directly w/ the applicant to save time.  The Board asks that all correspondence needs to be copied for the file.

MOTION:	R. Secher moved to hire Hancock Associates to conduct peer review for this application.  D. Sharkey seconded.

VOTE:  Unanimous (6-0-0)

Mr. Heaton proceeded to discuss the status of this application & his review.  The regulations require a Board render a decision on this project w/in 180 days of opening the initial hearing.  A decision on this project will need to be rendered on February 23, 2008.  The applicant has requested nine waivers from the Zoning Bylaws.

Mr. Heaton has reviewed the Town’s regulations & DHCD requirements, the application contains all information required.  Some notations are as follows:

•	The architectural drawings are not signed by the architect.  This should be done.  
•	There is no landscape plan which is a requirement.
•	There is no financial projection provided in the pro forma.
•	A traffic report is required.  The Board can request the applicant provide one.

Mr. Heaton stated other than the outstanding items above, he considers the application complete.  He suggested the Board request the above information.

K. Ferreira noted the Town’s Housing Plan.  The Town has a production schedule of units which provides for 1 half of 1% of the total housing units in Town as affordable units in a particular year.  He discussed Safe Harbor decisions.  This Board has made this determination.  He asked that the Housing Partnership Chair come before the Board so a further determination if they are still w/in their Safe Harbor provisions.

Present before the Board:	Anthony Scarsciotti, Housing Partnership

Mr. Scarsciotti stated that the Housing Partnership has not met w/ the applicant to discuss their project.  They would like to meet w/ the applicant.

Mr. Scarsciotti explained that the Partnership has spoken w/ DHCD & have found that the Town has been refused Safe Harbor certification.  Attorney Witten is preparing to file an appeal w/ DHCD re:  this decision which he explained.

Mr. Scarsciotti stated the Housing Partnership believes that Safe Harbor is an opportunity to enhance the Town’s ability to obtain the highest quality project that meets the Town’s needs.

Mr. Scarsciotti noted that the Housing Partnership was unaware of this project so a proposal to meet w/ them was not done.  Attorney Devin stated on two separate occasions a representative spoke to Marilyn Whalley re:  a meeting.  They are willing to meet w/ the Partnership.   Discussion ensued re:  why the applicant wasn’t scheduled to go before the Housing Partnership.  K. Ferreira noted the intent of the Housing Partnership.  The Board would like to get the Housing Partnership’s comments.  

K. Ferreira stated DHCD has made a determination that the Town does not have Safe Harbor Status.  He expressed confusion about this.  He feels there is more than enough units for this year to meet this status.  Mr. Scarsciotti stated that some of the permits for this year re:  815 Main St. were pulled, but pulled back due to issues.  He feels DHCD are holding the Town to a previous set of rules.  K. Ferreira stated the new rules came out in February, thus, the Town should be going by the new rules for this hearing.  Brief discussion ensued.  Mr. Scarsciotti stated the Partnership feels this hearing should move forward until the appeal is over.  Mr. Heaton explained that the Board will notify the applicant that they believe the Town is w/in the Safe Harbor statute.  The applicant has a specific course of action he may take.

MOTION:	M. Martin moved to direct Attorney Witten to advise the applicant that the Town claims Safe Harbor Status under appropriate codes & regulations.  M. Scarsciotti seconded.

VOTE:  Unanimous (6-0-0)

Brief discussion ensued re:  the 815 Main St. project.  Attorney Devin asked for the written determination that the Town does not have Safe Harbor Status.  K. Ferreira stated that Mr. Heaton can get him a copy.

K. Ferreira discussed the status of the 53G account.  The Board’s secretary has stated that Attorney Devin has submitted $9,500.  This account needs more money in order to pay for Mr. Heaton.  He doesn’t know if the estimate for Hancock Associates of $8,600 will all be spent.  Mr. Heaton has already submitted a bill for $5,500.  The traffic report is $2,500, but a traffic report may not be needed.  He feels another $7,500 is needed for the account.  Attorney Devin explained what the $9,500 is for.  He feels it is premature to put another $7,500 in now.  He feels $9,500 is sufficient for now until the process moves along.  K. Ferreira expressed concern re:  waiting to obtain more money.  He noted the tight timeframe.  He doesn’t want to hire the consultants until he knows there is money to pay them.  Attorney Devin stated __________________.  K. Ferreira asked what if he receives an invoice between now & Oct. 8 & more than $9,500 has been spent.  He stated that he would instruct the consultants to stop immediately.  He likes a buffer in this account.   M. Martin suggested getting more money when the account is down 50%.  Attorney Devin concurred.  He stated when the account gets to 50%, the Board’s secretar should call him & he won’t have a problem w/ getting the money.  Brief discussion ensued re:   contracts.

K. Ferreira expressed concern re:  the lot that will benefit of the road system w/ waivers is not part of the comprehensive permit.  Attorney Devin explained a property transfer will commence in return for a ____________ & access to the new road.  K.Ferreira asked for this documentation for the Board’s review & consultants.  He is concerned re:  what the future uses may be.  He stated that some conditions may need to be placed as to what can be done at this parcel.

The civil engineer gave a brief overview of the plan proposed based on 40B regulations.  This is not a fully nor final plan.  It is preliminary plan & meets the regulation requirements for 40B submittals.  

The civil engineer stated the property is approx. nine acres of wooded land.  A portion of the property will remain w/ the present home.  This will not be part of the subdivision or the 40B submittal, but will have access to the roadway.  18 lots are proposed & vary in size (from 12,500 sq. ft. to 16,000 sq. ft.) & varying frontages.  There is approx. 1.5 acres of open space proposed divided up into different locations which he discussed.  He discussed the subdivision road.  It will gain access off of Standish Ave.  A gravel access road would be provided for emergency purposes through a paper street.  There will be five affordable units/lots.

The civil engineer stated there will be underground utilities serving the subdivision.  A water line will tie into the existing water line on Standish Ave.  Three new hydrants will be installed.  Each lot would be served by its own individual septic system.  A stormwater drainage system will be installed in the new roadway which he explained.

The civil engineer explained the proposed dwellings, roadway, sidewalks, street trees, & the open space to be provided.

The civil engineer noted that they are requested several waivers from the subdivision regulations & some of the adjoining Bylaws relative to lot area & frontage.

K.Ferreira asked what the waiver is being requested re:  the Title V Board of Health regulations, section 14.  The civil engineer stated the requirement is that septic systems be designed for one more bedroom than there will actually be.  If the homes will be three bedrooms, the regulation requires it to be for a four bedroom.

Brief discussion ensued re:  stormwater drainage.  K. Ferreira feels that the drainage lot seems small for what is being proposed.  The proposal is for a retention pond.  He asked whey there would be an issued making the septic system a bit larger for a four bedroom.  The civil engineer stated they are trying to reduce lot size.  Brief discussion ensued.  K. Ferreira expressed concern re:  the depth of the retention pond & safety issues w/ it.  The civil engineer suggested fencing be put around it.  K. Ferreira stated fences can be climbed.

K.Ferreira asked if the applicant is confident they have the legal right to utilize a paper street (South St.) & to utilize Fourth St. as an emergency right-of-way coming out of the property.  Attorney Devin stated ________________________________??????  M. Martin believes Fourth St. & South St. if laid out on a approved plan as a subdivision of land, they would have the right to pass over them.  Discussion ensued. 

K.Ferreira noted other issues that should be waivers.  For example, South St. is only 30 ft. wide.  M. Martin feels that Fourth St. will need to be opened as a public way.  He doesn’t feel South St. will be adequate.  K. Ferreira noted that all streets for subdivision purposes are to be 40 ft. wide.  Attorney Devin explained that Fourth St. is already an approved way.  Attorney Devin stated that there is the legal status of Fourth St. vs. the physical status.  M. Martin feels what is being proposed is inadequate relative to the physical aspects.  K. Ferreira noted that the approved plan at the Registry of Deeds for Fourth St. doesn’t indicate how Fourth St. will be improved.  If there are to be 18 houses on small lots, there should be adequate access for fire/safety vehicles.

Discussion ensued re:  waivers relative to setback requirements.

Attorney Devin submitted copies of Certificate of Organization for LLC’s, including an amended Certificate of Organization & other pertinent standard documentation.  M. Scarsciotti will make sure everyone obtains copies of said documentation. (Documents were handed out during a brief break)

Audience members were asked for questions or comments.

Present before the Board:	Jim Abaire

Mr. Abaire described where he lives.  He expressed concern re:  construction & traffic issues on the roadways.   He spoke re:  a well on his property.  K. Ferreira will have the Town engineer take note of the well location.  He noted w/ projects like these, nothing can be done on an abutters property to damage it.  Mr. Abaire stated the house across the street has a new septic & they are having problems w/ it due to ground water (Lot 50 & 64).

Present before the Board:	Ms. Frank, 69 Standish Ave.

Ms. Frank would like a traffic report done.  There are a lot of children on the street & there are already problems w/ traffic on Standish Ave.  With this project, there will be more cars traversing it.  K. Ferreira will discuss w/ Hancock Associates relative to possibly having a traffic report & if it is needed.  He noted the intent of a traffic report & it doesn’t form a basis for denial.

Present before the Board:	Peter Bartlett, Standish Ave.
Mr. Bartlett stated he still owns the easement __________(Fourth St.)???? (Inaudible)

Mr. Bartlett stated that Fourth St. is not a road.  It is an accessible way to get to various houses.  M. Martin stated it was laid out as a way some time ago as part of a subdivision of land.  K. Ferreira stated Mr. Barlett may own the way.  Discussion ensued.

Present before the Board:	Dan Ronalds, Standish Ave.

Mr. Ronalds expressed concern re:  only having a single access to this development & expansion of the project to the lot they have claimed will not be part of the development.  K. Ferrreira will speak to Town Counsel re:  if the project is approved, the lot can’t gain the benefit of adding additional houses.

Mr. Ronalds asked re:  frontage for some of the lots.  Brief discussion ensued.  K. Ferreira explained the applicant is asking for 25 ft. frontage & a 12 ft. driveway.  They are only going back 100 ft.  The driveway will go 100 ft. back to the house.  Letters from the Fire Dept. & Police Dept. are being sought re:  their comments.

Present before the Board:	Joe Minardi, Standish Ave.

Mr. Minardi asked re:  the road & if it will be private.  K. Ferreira stated the Town will never be responsible for paving or maintaining it.  It will be a private road.  The regulations now have more teeth relative to homeowner’s associations & private ways.

Present before the Board:	A gentleman

The gentleman asked re:  minimum lot size.  K. Ferreira explained that this project is a 40 B project; a comprehensive Special Permit to build 18 homes of which the law requires 25% of them to be affordable.  Thus, five homes will be affordable for this project.

The gentleman spoke re:  usage of the street by children.  He is opposed to ______________.  There are safety issues which he is concerned about & would like traffic report information.

The gentleman expressed concern re:  Fourth St.  Discussion ensued.  K. Ferreira explained that the two homeowners who live on this street have legal rights to the center line, subject to the rights of others to utilize it for access.  It is not much of an ownership.  You couldn’t fence it off, for example.  Legal opinion will be sought as to whether it can be used for rights to one house or rights for many. K. Ferreira feels that any resident in this area feels they have legal rights over Fourth & South St. that protects them from a development like this, then the should speak to a lawyer.  Discussion ensued.

Present before the Board:	George Laury, Standish Avenue

Mr. Laury has studied biology for many years.  He feels there are endangered species of insects in the woods.  He has seen them & identified them.  All the existing homes have septic systems.  There are enough problems w/ keeping these septic systems drained.  The proposed new houses will be higher than the existing homes.  He is concerned re:  increased sewerage draining onto his property.  K. Ferreira stated the applicant has stated stormwater will drain down the street.  Mr. Laury wants assurance that no water/sewer will drain down onto his property.  He is on a fixed income & can’t afford to have this septic tank pumped if there is additional runoff from the project.  K. Ferreira explained that the design of the septic systems will need to be reviewed by the BOH & conform to Title V.  He understands Mr. Laury has problems w/ his septic system & feels the Town engineer should keep this in mind.  

Present before the Board:	A gentleman

The gentleman stated____________________________(Inaudible).  K. Ferreira stated there may be a need for a traffic report to address some issues.

M. Martin asked re:  utility lines.  It was stated there is a gas line.  M. Martin asked that a GIS overlay be obtained.

MOTION:	M. Scarsciotti moved to continue the public hearing for petition #47-08 – off of Standish Avenue – Bartlett Pond Village, c/o Attorney Robert L. Devin to October 8, 2008.  D. Sharkey seconded.

VOTE:  Unanimous (6-0-0)

VI.	NEW BUSINESS/DISCUSSION

A.	Discussion – Set public hearing dates for three cases.

Discussion ensued re:  starting the meeting at 7:00 P.M. on 9/10/08.  The Board members concurred.  The ZBA office will notify Attorney Winoker of meeting on 9/24/08)

B.	Oakdale Heights matter.

M. Scarsciotti stated this matter needs to be remedied.  M. Scarsciotti will speak w/ Attorney Witten to see when he is available to come speak about this (possibly 10/22/08).  There also needs to be a discussion on re-opening or requesting audits on all 40B projects that have come before the ZBA.  The status of these projects need to be known.

C.	Case #31-08 – R.B. Machine Co. - Scott Burr

M. Scarsciotti read letter dated 8/13/08 into the record requesting a withdrawal of this petition w/out prejudice.

MOTION:	R. Secher moved to accept the withdrawal of petition #31-08 – R.B. Machine Co. – Scott Burr w/out prejudice.  D. Sharkey seconded.

VOTE:  Unanimous (6-0-0)

VII.	ADJOURNMENT

MOTION:	R. Secher moved to adjourn the meeting.  D. Sharkey seconded.

VOTE:  Unanimous (6-0-0)

Attest:  _________________________
	M. Scarsciotti, Clerk
	WAREHAM ZONING BOARD OF APPEALS

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