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

Date of Meeting:  September 10, 2008

I.	CALL MEETING TO ORDER

M. Martin called the meeting to order.

II.	ROLL CALL

Members Present:	Mike Martin
			Mary Scarsciotti
			Richard Secher
			Ticia Weare, Associate Member
			Ken Ferreira (Arrived at 7:40 P.M.)
			Wilma Engerman, Associate Member
			Ted Misiasek, Building Inspector/Zoning Enforcement Officer

Member Absent:	David Sharkey
			John Cronan, BOS Liaison

III.	PRELIMINARY BUSINESS

A.	Approval of Minutes:  July 9, 2008 & July 23, 2008.

The July 9, 2008 minutes will be tabled pending revisions.

MOTION:	R. Secher moved to approve the meeting minutes of July 23, 2008.  M. Scarsciotti seconded.

VOTE:  (3-0-2)
T. Weare & M. Martin abstained

NOTE:	A gentleman asked to speak.  The gentleman identified himself as Mr. Belluche.  He had submitted a letter to the Board relative to the Retreat at Union Pond project.  M. Martin stated this matter will be handled later in the meeting.

IV.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES

A.	Petition #31-08 – R.B. Machine Co., Scott Burr – 2786 & 2788 Cranberry Highway (Endorse decision sheet).

Present before the Board:	A gentleman

The gentleman stated there was a letter that asked Attorney Perry to supply Attorney Troy w/ all correspondence.  It has not been supplied.  He asked if the petition has been withdrawn w/out prejudice & if this is the decision.  M. Martin understands the decision to withdraw w/out prejudice has already been rendered.  Tonight, the Board will only be signing said decision.  This decision was rendered at the last meeting of the Board.  The case is closed & the petition has been withdrawn.  If a project for this property comes back, it would be a completely new hearing, new notices, etc.  Without prejudice means the applicant is not prohibited from coming back w/ a similar petition w/in two years.  

NOTE:	K. Ferreira arrived at this time.

Board members proceeded to endorse the decision sheet.

B.	Petition #46-08 – 2 Circle Drive – Donna Haigh – Request to withdraw petition (Endorse decision sheet).

M. Martin indicated a letter was submitted requesting withdrawal of this petition.

MOTION:	R. Secher moved the Board accept the request to withdraw petition #46-08 – 2 Circle Drive – Donna Haigh without prejudice.  M. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

The Board members proceeded to endorse the decision sheet.

V.	PUBLIC HEARINGS

A.	#49-08 – 13 Atlantic Avenue – c/o Richard Chiasson

The public hearing notice was read into the record.

Present before the Board:	Richard Chiasson

Mr. Chiasson explained that his house originally was a cottage on Agawam Beach.  It was turned into a year-round home in 1974.  Part of the roof on the house is quite flat.  Every three or four years, this part of the roof has to be repaired or replaced.  This year, he & his wife decided to utilize the house as a retirement home & fix the roof & make it steeper to avoid the current problems.  When the contractor evaluated the situation, he suggested if they did something different other than just putting the roof on, for example, putting the existing first floor bedrooms & put them on a second floor it would be more desirable for them.  He would like to put a second floor on the house.  Thus, this would fix the roof problem & move the existing two bedrooms on the first floor to the second floor.

Mr. Chiasson submitted engineered drawings.

M. Martin asked what the existing non-conformity is.  Mr. Misiasek stated it is the rear setback.  Brief discussion ensued re:  rear setback figures.  

Mr. Chiasson explained his intention is to go straight up.  There will be no external alterations to make the house wider.  It will be the same footprint as is there now.

Brief discussion ensued re:  the septic system.  K. Ferreira asked if the septic had any restrictions placed by the Board of Health.  Mr. Chiasson stated there was a deed restriction placed that it must be maintained as a two-bedroom.  He explained that the existing two-bedrooms will become a living area & a dining area.  M. Scarsciotti asked where the driveway is.  Mr. Chiasson stated there is no driveway.  He parks on Atlantic Ave.  Everyone that lives on Atlantic Ave. parks on the road.  

Audience members were asked for questions or comments.

Present before the Board:	David Walton, Gladstone Ave.

Mr. Walton explained the house in question has been there for over 50 years.  It has always been in the same family & has been well taken care of.  All the neighbors have seen the plans.  He is in favor of this project.

MOTION:	R. Secher moved to close the public hearing for petition #49-08 – 13 Atlantic Avenue – c/o Richard Chiasson.  M. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved to grant a Special Permit for petition #49-08 – 13 Atlantic Avenue – c/o Richard Chiasson in accordance w/ section 1335 of the Wareham Zoning Bylaws w/ the finding that the alteration does not significantly intensify the existing non-conformity (which is a 5.3 ft. rear setback) nor does it result in any new non-conformities, nor shall the alteration be substantially more detrimental to the neighborhood, & further the following conditions apply:

•	Construction of second floor addition shall be in substantial conformance w/ architectural plans prepared by Mark Jones, Jones Design Group & set of plans shall be marked Exhibit A & on file w/ the ZBA.
•	Required to meet all standards & conditions of all applicable boards & commissions.

VOTE:  Unanimous (5-0-0)

VI.	CONTINUED PUBLIC HEARING

A.	#43-08 – 2880 Cranberry Highway – The Retreat at Union Pond – The Gatehouse Group, c/o Brian J. McMillin, Vice President.

K.Ferreira noted that D. Sharkey is not present.  M. Martin & T. Weare has reviewed the meeting tapes/minutes from the meeting they missed.

Present before the Board:	Mr. Belluche

Mr. Belluche asked for a point of order.  He submitted a letter to the Board.  He asked if he can read the letter.  K. Ferreira stated there is an agenda to follow.  There will be an opportunity for public comment later on.  Mr. Belluche asked re:  traffic consultants.  K. Ferreira spoke re:  who the traffic consultants are.  The traffic study has been reviewed by a consultant paid for by the applicant for the Town.  Mr. Belluche expressed concern re:  lack of traffic safety w/in the review submitted.  Traffic safety is extremely important for the Town.  This is why he needs to read his letter & make a protest.  K. Ferreira stated the hearing hasn’t been closed yet & the Board hasn’t done a traffic study review yet.  There is a schedule being followed.  Mr. Belluche read the last sentence of his letter into the record.  In short, it states SRPEDD should provide a traffic safety review.  He asked the ZBA to request SRPEDD to provide a written traffic safety review.  M. Martin asked who would pay for this review by SRPEDD.  He feels this request should be brought to the BOS.  K. Ferreira stated the ZBA doesn’t have the authorization as a volunteer board to authorize SRPEDD to provide any assistance.  This request needs to be brought before the BOS.  He doesn’t see the need for SRPEDD.

MOTION:	M. Martin moved that Mr. Belluche’s letter be entered into the record as well as Mr. Belluche’s request relative to SRPEDD & further, that the Board table this matter for future discussion.  M. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

K. Ferreira noted that no presentation of traffic issues has been given yet relative to this hearing.  Mr. Belluche is welcome to comment when the audience participation portion of the hearing commences.

K. Ferreira noted since D. Sharkey is absent, he would like to allow him the privilege to vote under the Mullin Rule.  

Present before the Board:	Attorney Paul Wilson

Attorney Wilson agreed relative to D. Sharkey voting.

K. Ferreira updated the Board relative to Safe Harbor status.  He spoke to Attorney Jon Witten.  Attorney Witten & Attorney Wilson have spoken as well.  The status is the Town properly gave notification to the applicant that the Town was seeking Safe Harbor status.  An application was filed w/ DHCD for certification.  It came back that DHCD felt the Town did not have Safe Harbor status.  Attorney Witten has appealed this decision.  Attorney Wilson wrote a brief letter relative to his issues.  There is now a certain time frame in which the proponent can file a response to the appeal.  This becomes a lengthy legal situation between the applicant & the Board.  There is an additional issue of the Town seeking Safe Harbor status on a second 40B project being proposed.  Attorney Witten feels the Board should keep the appeal going during the process of this hearing.  However, he indicated if the Board feels this is an application which has true merit & could be a successful 40B providing housing stock, the Board could offer an extension of time to the applicant in which they don’t have to respond to the appeal.  An option the Board has is to suspend this hearing until all the appeals are over & DHCD renders a final decision.  Another option is to continue the hearing.  If the hearing was suspended, it would suspend the six month period.  Attorney Witten has indicated the statute give the opportunity to pick & choose which cases to appeal.  Either the Town has Safe Harbor status or it doesn’t.  This appeal has nothing to do w/ the other 40B case.  

Discussion ensued re:  status of the 815 Main Street 40B & getting the units counted.  Mr. Misiasek noted what he has received from 815 Main Street thus far.  T. Weare will contact Mr. Fantoni relative to the status of 815 Main Street.

K.Ferreira stated the Board needs to direct Attorney Witten how they want to proceed relative to the appeal.

Attorney Wilson stated there are two different issues being discussed.  The first one is whether 815 Main St. has been included in the Wareham subsidized housing inventory.  The problem is what safe harbor would be given.  DHCD has ruled in Gatehouse’s favor.  The paperwork wasn’t done & the Town never asked to have Safe Harbor protection as a result of the 815 Main St. project.  He noted what the regulations state, most notably, when Safe Harbor status begins (date permit is issued).  Brief discussion ensued.

K.Ferreira asked if Attorney Wilson would feel comfortable, if an extension of time is offered to respond (by his client).  He stated if this happens, there is no reason why this appeal should sit in limbo.  Attorney Wilson would feel comfortable w/ caveats.  One caveat would be that there be no extension of the 180 day period.  Discussion ensued re:  a 90 day extension.  K. Ferreira stated that Attorney Wilson would do nothing re:  the appeal for 90 days & the Board would continue w/ the hearing for the next 90 days.  

MOTION:	M. Scarsciotti moved to authorize Attorney Witten to seek an extension w/ DHCD in conjunction w/ The Gatehouse Group to suspend any necessary filings that need to be done under the current appeal & further, that the Board continue w/ the hearing.  T. Weare seconded.

VOTE:  Unanimous (5-0-0)

Present before the Board:	Jim Koningisor

Mr. Koningisor updated the Board on their meeting w/ the BOS relative to sewer issues.  The BOS authorized the Board’s consultant, CDM to work w/ The Gatehouse Group to examine sewer issues & discuss mitigation concepts.  These discussions are under way.  They will be going back to the BOS on 9/23/08 w/ a report.  Thus, he hopes to have a report for the Board on 9/24/08.

Present before the Board:	Steve Findlen, McMahon Associates

NOTE:	MR. FINDLEN WAS VERY HARD TO UNDERSTAND ON TAPE.

Mr. Findlen discussed report submitted & response to comments.  There have been conversations relative to report comments.  The Board has received the report/comments from 9/3/08.

Mr. Findlen proceeded to discuss the traffic report.  The original report did not include the East Wareham bypass.  He discussed the proposal for a new intersection.  He discussed existing traffic details & intersections in the area.

K.Ferreira stated in the responses, it is suggested that the timing of the signals be adjusted to maintain or make better the level of service to the intersections.  He spoke re:  build mitigation.  He questioned why the report shows things get worse on the eastbound lane.  Mr. Findlen stated this gets worse because more time is allowed for traffic to get from Depot St. in the other direction.  K. Ferreira stated this may be an acceptable mitigation because there is acceptable level of service & improves all the other intersections.

K. Ferreira if the BOS decide Depot St. should become a one way (near Cumberland Farms) it would alter Mr. Findlen’s adjustments.  He feels Mr. Findlen should look into this.  Brief discussion ensued.  

Several members expressed concern re:  Depot St. becoming one-way (near Cumberland Farms) & traffic being redirected to Tyler Ave.

Present before the Board:	David Walton

Mr. Walton stated the Depot St. issue has been on before the Selectmen previously.  People from Glen Charlie Rd. complained.

K.Ferreira spoke highly of the traffic signals at Wareham Crossing.  It works extremely well.

Mr. Findlen discussed possible mitigation to relieve issues at Tyler Ave.   Discussion ensued re:  exiting the development’s driveway.  Mr. Findlen discussed safety issues, such as speed limit, site distance, location of the development’s driveway & impact on westbound traffic.

K. Ferreira summarized that The Gatehouse Group is stating the design of the driveway exiting the site for the number of units & Tyler Ave. being 100 ft. away & that nothing needs to be done in terms of additional signage, etc.  He discussed some safety signage that will be placed by the driveway.  Mr. Findlen stated they will be involved w/ MA Highway relative to the curb cut, etc.  

K.Ferreira expressed concern w/ speed on this roadway & taking a right into the development.  Brief discussion ensued.

Present before the Board:	Donna Gauvin, 18 Tyler Ave.

Ms. Gauvin is familiar w/ how people utilize the roadways in this area.  She expressed concern re:   the small section of Tyler Ave. connecting the east & west bound lane in front of Abbey Glass.  People tend to utilize this section of road & think it is a one-way.  Those who utilize this small section of Tyler utilize it for parking.  Having people coming out of the development & trying to cut across will be difficult.  There are issues w/ Depot St. in the summer & those trying to avoid Depot St. utilize Tyler Ave. to cut across.  Brief discussion ensued re:  these concerns & suggestions on how to diminish them.

The Board concurred to have The Gatehouse Group look at Tyler Ave. & Depot St. & see if there is a recommended suggestion.  This suggestion(s) could then be presented to the BOS.

K. Ferreira asked for public input.

Present before the Board:	David Belluche

Mr. Belluche asked if Hancock Associates received a copy of his letter.  K. Ferreira doesn’t believe so, but he will supply it to them.  Mr. Belluche asked the applicant make a response to his letter.  K. Ferreira asked the applicant to do so.  

Mr. Belluche did not hear any discussion/report re:  the u-turn (by the Jack Conway building).  There is only 300 ft. between the u-turn & the project driveway.  He understands the applicant will rely on gaps in traffic to yield to the driveway.  He spoke re:  the danger of a left hand merge on this stretch of highway.  He spoke re:  what MA Highway requires for a highway (distance of 1,000 ft. between the entrance & exit ramps).  Brief discussion ensued re: gaps in traffic on this highway.  K. Ferreira understands Mr. Belluche’s concern & the Board has asked the applicant to re-review this information & if there is any mitigation necessary to ensure people can turn into this project safely.

Mr. Belluche feels the only way to solve the entire issue on Cranberry Highway is to add two lanes to the existing bypass.  This would be a four lane road & be expensive.

K.Ferreira stated at the next meeting, he has asked the applicant to come back w/ a response to Mr. Belluche’s letter.  Mr. Belluche asked if his request re:   SRPEDD will be done.  K. Ferreira noted that the Board took this under advisement.  He asked Mr. Belluche why he feels the SRPEDD engineers will provide better insights than the two traffic consultants.  Mr. Belluche stated it is his experience that peer reviews are “one hand washing the other”.  Nothing was mentioned in the report re:  three major traffic safety issues he pinpointed in his letter.  M. Martin stated the traffic consultant is working on behalf of the Board.  Mr. Belluche again feels SRPEDD is inherently independent.  

K.Ferreira explained the 40B statute gives the BOA authority to act as the local board in granting permits that normally would be under the purview of other boards.  He doesn’t believe the statute gives the Board power to request or do things that other boards can do, for example, spending money.  He will request of the BOS Chair whether or not the BOS wants to utilize some of the 50 hours allocated to each town by SRPEDD to review this project & information submitted.  There is a tremendous amount of information relative to traffic review.  This information could be given to SRPEDD for review.  

K.Ferreira asked that the consultants make comments on Mr. Belluche’s letter.

Present before the Board:	Joe Peznola, Hancock Associates

K. Ferreira explained Mr. Peznola has done a peer review of engineering issues, compliance issues, & waivers.  

Mr. Peznola explained the report is structured into three sections.  The first section is a request for additional information.  The second section is a review of the actual
submission.  The third section is a review of the waiver requests.

Mr. Peznola stated re:  the request for additional information, they have asked that the waiver requests include more information re:  how the project does not comply w/ certain aspects of the regulations or Bylaws.  The applicant has indicated they intend to comply w/ submission of more information.  Another request for additional information relates to right of ways for Old County Rd. & Old Plymouth Rd.    They are considered ancient ways.  One runs through the site & one runs in the back of the site.  The intent is to understand the existence & ownership of the right of ways.  K. Ferreira asked if the applicant can provide, through their entrance, a gravel connection to Old County Rd.  Mr. Peznola feels this is a legal question & may require an easement.  Brief discussion ensued.   Mr. Peznola stated that zoning information/summary should be added to the plans.

Mr. Peznola explained the applicant proposes to separate parcel into two lots describing a two-phase approach to the project.  He is asking the applicant to explain this to the Board.  The applicant has indicated they are proposing doing it this way due to funding.  K. Ferreira understands that a project that is built & certified can only have two year protection.  Attorney Wilson clarified only if is 1% of the Town’s housing stock.  K. Ferreira asked if this project can be structured, if permitted, to provide a three year Safe Harbor status.  Attorney Wilson doesn’t think so, but he will look into it.  He doesn’t feel there will be an answer.  He explained the Safe Harbor regulations are new.  Brief discussion ensued.

Mr. Peznola stated the information requested on the phasing is to make sure proper infrastructure was installed in Phase I to support Phase II.  He discussed various infrastructure components, such as parking that should be included in Phase I.  He discussed construction plan information.  Discussion ensued.

Mr. Peznola discussed the applicant has provided information on the preliminary sewer layout.  He expressed concern re:  the ability to gravity sewer the whole system.  He noted the sewer layout briefly & what is required.

Mr. Peznola discussed the review of the actual materials.  He explained in length comments that have been made relative to what should be addressed on the final construction plans, such as number of parking spaces based on bedroom ratios, & landscaping issues.

Mr. Peznola explained the waivers the applicant is seeking.  The main waiver is under the local Bylaw.  The ConCom can prohibit work in the zone about 200 ft. from a wetland.  This would impact the project.   The applicant is providing a 30 ft. non-disturbance area & no resource areas will be impacted.  Brief discussion ensued re:  the ConCom’s Bylaw dealing w/ a buffer zone.  K. Ferreira feels information should be submitted of exactly what continuous undisturbed strip they are providing & then the Board can grant that.  Brief discussion ensued.

Mr. Peznola discussed grading & access plans.  

Discussion ensued re:  coming back at the next meeting w/ a list of changes/conditions relative to waivers for the Board’s review.

Mr. Peznola has asked the applicant to address snow storage.  He briefly discussed issues relative to water supply.

Brief discussion ensued re:  waivers & compliance waivers.  Mr. Peznola has asked the applicant to consider a raised crosswalk near the front of the development.  He noted permits that will or will not be required.

K. Ferreira noted a letter turned in previously from Attorney Don Angus, Cranberry Highway.  He read said letter into the record.  Attorney Angus represents Cran-Way Realty Trust which has access rights in & to Old County Rd.  The Trust doesn’t oppose the project, they do respectfully object to the placement of improvements, buffer zone, setbacks, or public amenities w/in the layout.  Any integration of Old County Rd. as the project’s road system should be designed according to future uses by its abutters.  Discussion ensued.

K. Ferreira asked re:  a proposed lot 3 that has been cut out of the site. Mr. Peznola spoke re:  an ANR plan & this lot will not be under 40B.  Discussion ensued.  Attorney Wilson will look into how this will be handled.

M. Scarsciotti asked re:  plans for accessibility to Union Pond, safety plans, recreation, etc.  Mr. Peznola doesn’t know enough about this pond currently to comment.  There will be a 30 ft. no activity zone buffering the project from this pond.  He doesn’t know if there are any plans to utilize the pond.  K. Ferreira stated if there are plans to utilize it, there should be a buffer zone that allows activity.  Attorney Wilson stated presently, there are no plans to do anything in the buffer area & utilize the pond.  In the future, they may approach the ConCom w/ proposals/options.

T. Weare asked why the clubhouse is not more centrally located.  She expressed concern re:  a bottleneck situation w/ cars at this location.  Attorney Wilson gave reasons why they favor the clubhouse location as proposed.  Discussion ensued re:  number of parking spaces at the clubhouse & extra garages.

Discussion ensued re:  public transportation & information provided by the applicant’s analysis.  This will be reviewed.

Brief discussion ensued re:  the meeting schedule & topics to be discussed.

MOTION:	M. Scarsciotti moved to continue the public hearing for petition #43-08 – 2880 Cranberry Highway – The Retreat at Union Pond – The Gatehouse Group to September 24, 2008.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

VII.	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:  ____________________