TOWN OF WAREHAM
ZONING BOARD OF APPEALS
MEMORIAL TOWN HALL
54 MARION ROAD
Wareham, MA 02571

Zoning Board of Appeals – Special Meeting – December 2, 2009
“The Retreat at Union Pond”
Town Hall Auditorium
6:30 p.m.

I.	CALL MEETING TO ORDER

The meeting was called to order at 6:30 P.M.

II.	ROLL CALL

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

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

IV.	DISCUSSION RE:  RETREAT AT UNION POND

Present before the Board:	Jim Konsignisor, The Gatehouse Group
				Joe Peznola, Hancock Associates
				A representative of Union Pond
				Richard Heaton, H&H Associates

Chairman Ferreira indicated that this meeting was called primarily to take care of open business that is before the Board as opposed to a public hearing and there are no public hearings scheduled for this evening.  The first matter that the Board will take is a review of the changes to determine if a public hearing is necessary for the Union Pond project in East Wareham.  The Board has received several documents from both the Board’s Engineering Consultant and from the Board’s Technical Consultant, Mr. Richard Heaton.  
The Chairman turned the floor over to the representative(s) of Union Pond to present the changes that have occurred since the approval process which took place almost a year ago.  The chairman pointed out that the Town Hall Auditorium does not have good acoustics, however, the Board does not have any microphones due to a Conservation meeting taking place in the Cafeteria, so, the Chairman requests that the representative speak up as loudly as he can without screaming so that the tape can pick up the information.

Jim Konsignisor, representing The Gatehouse Group, explained to the Board that The Gatehouse Group had hoped to get underway very quickly, however, due to the financial market they have struggled for the past year to put a financing package together and this package has to “close” by the end of the year.  There are minor changes that have been made.   The Board was shown the improved site plan (from a year ago) indicating the concept has not changed at all.  It is still 144 rental apt units, 100% affordable, the same amount of apartment spaces as agreed to, and additional space(s) or more spaces if it is needed and as agreed to.  The unit mix has changed slightly.  They have increased the number of 1 bedroom units by 3 (three), decreased the number of 2-bedroom units by 1 (one), and decreased the number of three bedroom units by 2 (two). Thus, there is a net decrease of 5 bedrooms. 

Mr. Konsignisor explained the “phasing” discussed a year ago.  It was not certain whether/how the financial package would come in and there may be phases or not.  If there were to be phasing, they expect it to be 74 units in the 1st phase and 70 in the second phase.  As it has worked out there are phases.   The 1st phase is noticeably bigger. It is 104 units and 40 in the 2nd phase.  The 1st phase includes the clubhouse, buildings 1,2,3 and  4, and the entire infrastructure will be built (as part of Phase 1).  The only thing left in Phase 2 are two buildings with 40 units and the applicant will simply not develop this portion of the land & they won’t clear it.   There will be no construction of pavement or anything else when Phase 2 is built.  

Chairman Ferriera feels this is an odd number.  Originally, 74 units and 70 units made a lot of sense.  Now the proposal is to build almost 80% of the project and leave off that little section.  He asked Mr. Konsignisor to elaborate & what the thought is in the finance projection as to why they are doing this. He feels that one building would not make a difference to a financer, whether it be a bank or whatever.   It seems they would say, get it all done from an economic standpoint or from a scale, just keep going.

The two site plans show parking on the building side and it shows no parking between two buildings.   The Fire Department actually had a series of several meetings with Chief McDuffy, Captain Dykas, and the Assistant Chief.  The intent was to get the most access  they could so they asked the applicant to put the parking on the other side.  It is a better distribution of parking and it meets the Fire Department’s need and actually makes a better development.  The plans also have fire lanes as requested.   

Chairman Ferreira asked if the applicant was before the Conservation Commission to amend the Order of Conditions.  He also asked the applicant to state for the record if the plans submitted this evening are exactly the same plans.  The applicant stated they are and there is now access to the pond.  

M. Scarsciotti asked the applicant to explain how many units, bedrooms, etc.  The applicant responded that  in Phase 1, there are a total of 104 units, consisting of 26 (1-bedroom units), 52 (2-bedroom units) and 26 (3-bedroom units) for a total of 104 units.  In Phase II there are 6 (1-bedroom units), 27 (2-bedroom units) and 7 (3-bedroom units).  M. Scarsciotti asked if the 1-bedroom units are actually a bedroom unit or are they a studio unit.  Mr. Konsignisor stated they are full bedroom unit.  He stated the applicant met with the Conservation Commission re:  access to the pond, knowing this was something important to the Board. 
 
Mr. Konsignor stated there is an access point to the pond which has a kayak launching area.   The vegetation will be cleared and there will be a sandy path for launching kayaks and a viewing area next to the pond with a wooden deck and a gazebo on top of the deck. There will be a picnic table and also benches accessible to sit on.  M. Scarsciotti asked if there would be privately owned kayaks or will the complex provide them.  The applicant stated he doesn’t think the complex would provide kayaks.  M. Scarsciotti asked how are you going to keep track of people in and out and who is going to use it.  She expressed concern re:   liability and liability on the part of the Town.  She asked if there is some kind of monitoring or a registration process if you have kayaks.  This needs to be known in case there are too many people out there. The representative indicated one of the reasons they wanted to put a launching area here is so that it is monitored by on-site personnel and there will be control of the launching area.  It was stated they will not provide kayaks.  We will allow people who have kayaks, but they will be responsible for using it.

M. Scarsciotti noted Union Pond will need to have some sort of liability insurance.  She asked if it is possible that the Town be included as being named as the insured should something come up.  R. Secher asked if only residents can utilize the pond & kayaks.  The applicant gave the Board a copy of the indemnification document agreement which has been filed with the Town.  M. Scarsciotti asked if they are going to be allowed to swim there.   The representative replied the intention is not to swim there.  M. Scarsciotti asked if people will be allowed to store the kayaks or are they going to have to take them and don’t leave them all sort of piled every which way.  The representative said there are very strict rules and that is part of the documentation that will be provided.  He also stated they have an access to the pond, indicating the area on the plans.  This will all be done as part of Phase 1.  The concept is identical, it has not changed, just refinement as would be anticipated when going from preliminary to final plans.  There is a comprehensive permi.   It has a 193 conditions and subconditions in order to define and organize all that is required.  There will be a final version of the letter and the package of documents of all that is required.    

Chairman Ferreira asked Mr. Peznola for his prospective.  Chairman Ferreira stated he has read the comments from Mr. Peznola as well as the comments from Dick Heaton (H & H Associates)  He asked if there is anything else that needed to bring forward.  Mr. Richard Heaton stated no, they have done an outstanding job and have provided what is required.  Chairman Ferreira stated as difficult as it is to hear, the Zoning Board becomes the local board for all issues under a Comprehensive Permit, however, normally under special permits and variances, we do not have a performance bond type of issue: it’s usually the Planning Board.  He asked Mr. Heaton if they are going to provide this bond to the Town and if there will be time as they go through stages.  He asked if the Board is   ok as accepting this as a Zoning Board and releasing it on a periodic basis.  Mr. Heaton stated yes.  He noted this has been done before as a Board and this is a much bigger project.

Chairman Ferreira stated Mr. Heaton had mentioned there will be a set of plans that need to be signed.  The representative has a fully stamped set of plans with mylars and they are ready to be signed. Chairman Ferreira was aware of a meeting on December 4th and did not know whether the Board was to condition the vote until December 4th.  He asked Mr. Heaton what was happening on December 4th?  Mr. Heaton replied there are several housekeeping things that need to be verified.  They are getting together with Hancock Associates and Gatehouse Group tomorrow and all open issues will be cleared up.  There are a couple of checks that need to be cleaned up.  

Chairman Ferreira pointed out the point of this meeting is two-fold.   One, to determine if a public hearing is necessary in the future or two, no public hearing is necessary and everything has been done in accordance with the conditions.  If they have met all those conditions as part of the permit, if there were outstanding issues, the Board could condition their vote tonight or the Board could wait until another night.  However, if they are done, they are done and we say, good luck and break ground.  

Chairman Ferreira said good luck to closing the whole financing package by December 31st, most commercial loans do not go that smooth.  

The representative indicated that the motion has been drafted.   M.  Scarsciotti commented that this is dated July 23, 2008 and asked if he has the documents that are needed to take to the Registry of Deeds.  The Chairman and the Clerk have signed the documents that needed to be endorsed prior to the filing with the Town Clerk and recording at the Registry of Deeds.  The Chairman read the document, conditions and subconditions, exhibits and all other pertinent information.  

Chairman Ferreira asked if the Board or consultants have any questions of the applicant. R.Secher asked what is the Massachusetts Public Shade Tree Act.  Discussion ensued.

Chairman Ferreira informed the Board that he needs a motion to deem the changes presented tonight as far as the phasing and parking lot changes to be insubstantial and that these do not require a public hearing.

MOTION:	R. Secher moved that the requested changes to the decision set forth in paragraph E for the attached letter from James Konsignor dated December 2, 2009 and summarized below are deemed to be insubstantial changes as defined by 760 CMR 56 and are modified as requested relative to Union Pond.  D. Sharkey seconded.
VOTE:  Unanimous (5-0-0)

MOTION:	R. Secher moved to accept the attached relative to Item 2.  Mr. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	R. Secher moved to accept & endorse the subdivision plans submitted relative to Union Pond.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

Chairman Ferreira thanked the applicant in preparation of the project.  He noted the consultants worked very diligently and effectively to pull this project all together quickly and easily.  He offered his compliments to both the applicant, Hancock Associates and Mr. Heaton for the work that they have done.  

MOTION:	R. Secher moved to recess the meeting to sign the plans & that the Board will come back into Regular Session.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

The Regular Session resumed and Chairman Ferreira announced the Board has a document that was emailed by Mr. Heaton where he is proposing the Board of Selectmen follow through with a housing plan which expired.  The original one that was done by the Housing Partnership Committee and filed and approved by DHCD has expired.  Thus, we are no longer protected under that plan.  The funds come from the CPA, $15,000.00.   The CPA cannot approve it until Town Meeting approves the expenditure from the CPA funds.  The plan takes 3 to 6 months to update, as defined by the regulations, approved by the Planning Board and the Board of Selectmen, and must be signed by the BOS Chair.  In addition to and as required by the regulations, the plan will be reviewed by the Zoning Board and the Housing Authority.  The Board of Selectmen have to issue an RFP to obtain a Housing Consultant to develop the plan.  This application enables the CPC to review the request, eligibility, and application for funding must be completed.  Chairman Ferriera and M. Scarsciotti would like this Board to write a letter to the BOS urging them to follow through.  

MOTION:	R. Secher moved to authorize the Clerk of the ZBA to submit a letter to the BOS urging rapid approval & following through w/ the preparation of an Affordable Housing Plan to protect the Town’s safe harbor status.  D. Sharkey seconded.

NOTE:	Chairman Ferreira noted to let the record show that since the Clerk will be writing the letter, the Clerk will abstain.

VOTE:  Unanimous (4-0-1)
M. Scarsciotti abstained

M. Scarsciotti announced that on December 10th, in recognition of the hard work and commitment to the Town, the Board of Selectmen is offering an opportunity to celebrate with them.  The BOS would like an answer on December 4th, with the Chairman to respond.  

Chairman Ferreira discussed additional “housekeeping issues” with the Board re:  the Terry Smith application/petition and the 815 Main Street project and the status of each.    

MOTION:	D. Sharkey moved the Board approve a bill from Kopelman & Page in the amount of $6,322.68 through August 31, 2009.  M. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

V.  DISCUSSION RE:  BARTLETT POND LLC

Chairman Ferreira announced the Board voted three weeks ago to deny this project for several reasons.  The decision has been prepared by Special Counsel, Jon Witten and a draft copy had been sent in advance to the Board members to review.  He discussed the reasons for denial and asked if the applicant had any questions.  The reasons for scheduling this meeting is so the decision was timely to get the decision filed with the Town Clerk and so the applicant could get started with the Housing Appeal Committee.

MOTION:	R. Secher moved the Board accept the decision for denial for Bartlett Pond LLC as written by Attorney Jon Witten.  D. Sharkey seconded.

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

VOTE:  Unanimous (5-0-0)

VI.	 DISCUSSION RE:  CROMESETT LANDING & CARLETON PLACE

Present before the Board:	Mr. Heaton, H & H Associates

Discussion ensued re:  Cromesett Landing & Carlton Place.
MOTION:	R. Secher moved the Board authorize Mr. Heaton of H & H Associates to look into the final financial accounting of Cromesett Landing/Wanco Management for purposes of highlighting any violations to be submitted to Counsel Jon Witten and further to contact the Board of Selectmen to determine whether or not at the Board of Appeals request, the BOS did write a letter to extend the time for the Town to respond to MA Housing regarding this audit & if in fact, at the request of M. Scarsciotti they had asked for an extension for November 15, 2009 & did they go back and ask for a further extension.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

.
NOTE:	Discussion ensued re:  sewer pump station petition received in Board member packets.  M. Martin commented on exemptions.  Discussion ensued.  

VII.	ADJOURNMENT

MOTION:	R. Secher moved to adjourn the meeting at 8:15 P.M.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

Attest:  __________________________
	Mary Scarsciotti, Clerk
	WAREHAM ZONING BOARD OF APPEALS

Date signed:  _____________________

Date copy sent to Town Clerk:  _______________________