TOWN OF WAREHAM
ZONING BOARD OF APPEALS
MEMORIAL TOWN HALL
54 Marion Road
Wareham, MA 02571

ZONING BOARD OF APPEALS MEETING MINUTES

Date of Meeting:  March 11, 2009

I.	CALL MEETING TO ORDER

The meeting was called to order at 7:00 P.M.

II.	ROLL CALL

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

Also Present:		Ted Misiasek, Director of Inspectional Services
			John Cronan, BOS Liaison

K. Ferreira discussed the procedure to be followed for this evening’s meeting.

III.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES

A.	Discussion:  Avenue A Status.

M. Scarsciotti explained there was a court hearing.  There was a favorable ruling.  There will be another meeting Attorney Witten wants the Board to approve re:  whether or not they want a representative to go to the mediation.  She also had spoken to Attorney Witten re:  other outstanding matters.

MOTION:	M. Scarsciotti moved to allow Attorney Witten to participate in the settlement discussions re:  Avenue A.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

M. Scarsciotti stated after she hears back from Attorney Witten, she will advise the Board on the date of continuation so an Executive Session can be held on this matter.

NOTE:	The meeting proceeded w/ item VI.  Continued Public Hearings.

B.	#47-08 – Bartlett Pond Village – Off Standish Avenue

K.Ferreira briefly explained the hearing & the extensions given.  The applicant has asked for another extension/continuance to 4/8/09 subject to receipt of 53G funds prior to the meeting.

MOTION:	R. Secher moved to continue the public hearing for petition #47-08 – Bartlett Pond Village to April 8, 2009 subject to the receipt of 53G funds prior to the meeting.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

Brief discussion ensued re:  the procedure for updating the units on the affordable housing stock list.

IV.	PRELIMINARY BUSINESS

A.	#50-08 – Wareham Plaza Associates, LLC – 127R Marion Road – Hathaway Estates, c/o Attorney Lawrence Winokur.

Present before the Board:	Attorney Serkey

K.Ferreira noted that M. Martin has certified in writing that he has listened to an audiotape of the Board meeting held on 12/10/08 relative to this case & has reviewed all materials submitted that evening, & further, he is prepared to sit on subsequent meetings on this case & vote on the matter at the close of said hearing.

Attorney Serkey briefly gave an update on this petition.

K. Ferreira stated the Board had been waiting for this case to go back before the Planning Board, see if the plan would change substantially, if there were any major conditions, etc.  He spoke to the Planning Board Chair & reiterated that the Board was satisfied w/ the plans shown & there were no additional concerns.  At the conclusion of the last hearing, a poll of the Board was taken & it was decided it met the criteria for a Special Permit.  It was also decided that Attorney Winokur would prepare the conditions for the Board’s review.  Attorney Serkey submitted said conditions to the Board.  Brief discussion ensued re:  filing a decision w/in 14 days of a hearing being closed & a possible extension of time.  

Audience members had no questions or comments.

MOTION:	R. Secher moved to close the public hearing for petition #50-08 – Wareham Plaza Associates, LLC – 127R Marion Road – Hathaway Estates, c/o Attorney Lawrence Winokur subject to receiving written consent to extend the date to file a decision to 14 days after April 8, 2009.  M. Martin seconded.

VOTE:  Unanimous (5-0-0)

V.	PUBLIC HEARINGS

K.Ferreira explained that two hearings tonight are appeals of the Building Inspector’s decisions.  There are conditions to allow someone to come before the Board, provided for in Chapter 40A.  They need to be an aggrieved party & a party in standing.  In both cases, they are both & have the right to be here.

K.Ferreira explained the Board’s powers & decision making roles on both these cases.  The role of the Board will be to decide if the Building Inspector made the correct decision or incorrect decision.  This is unlike a Variance of Special Permit.  There will be no conditions attached.

K.Ferreira stated the law provides, in order to go to court or to further appeal a Building Inspector’s decisions, it has to start off at the ZBA.  The ZBA is the first process to go through to see if it can be settled.

A.	#005-09 – BOS Appeal of the Building Inspector’s decision dated for January 6, 2009.

M. Martin read a disclosure letter into the record from himself addressed to the BOS.

MOTION:	D. Sharkey moved to receive & place on file the disclosure letter read into the record by M. Martin & said letter will be made part of the public record of this hearing.  M. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

M. Scarsciotti read the public hearing notice into the record.

Present before the Board:	Attorney Ilana Quirk, Town Counsel
				Brenda Eckstrom, BOS

NOTE:  ATTORNEY QUIRK WAS DIFFICULT TO HEAR AT VARIOUS TIMES ON THE TAPE.

Attorney Quirk submitted documentation to the Board.  

Attorney Quirk stated the BOS filed an appeal on January 22, 2009.  They are appealing a January 6, 2009 determination of the Building Inspector/Zoning Enforcement Officer (ZEO).  The determination the ZEO made on January 6, 2009 was in regards to an earth removal project proposal for property located in an R130 district, Assessors Map 127,Lot 1000 – 290 Glen Charlie Rd., East, Wareham.  The nature of the appeal is they feel there was insufficient evidence to support the determination made.  

Attorney Quirk stated the property owner needs to show that the earth removal use is central to the primary use allowed at the property, which would be agricultural.   There was concern whether there is an earth removal operation going on vs. earth removal for profit activity incidental to bog use.  When the ZEO questioned this issue, new information was provided re:  profits for removal operations, for example, which were different than information provided previously.

Attorney Quirk stated it was suggested hiring a consultant to look into how much earth removal typically needs to occur in order to accomplish the desired goal.  This didn’t happen.  Ultimately, the ZEO issued his determination w/out this information on January 6, 2009 based on the contradictory information he had.  The BOS have thus appealed this determination & are asking the ZBA to overturn the determination of the ZEO.  The BOS believes the burden of proof is important in this matter & there is a need to make sure that accurate information is being put forward.  Without the information re:  not for profit vs. for profit earth removal activity, the BOS feels it is not possible to make the determination that the property owner is entitled ________________.

Attorney Quirk stated the ZBA could make the determination that the burden of proof wasn’t satisfied & the ZEO’s determination should be overturned.  The ZBA could also request further information, such as any information from a consultant.

K.Ferreira stated the zoning Bylaws discuss earth removal operations.  They state if it is an earth removal operation, the Town Bylaws are followed for the procedure.  Attorney Quirk stated the zoning Bylaw indicates that earth removal can be done if it is incidental to a primary ____________.  K. Ferreira stated if it is specific to the R-130 district.  There is another area which speaks re:  earth removal in general.  It states “earth removal industry is regulated separately by section 7 of Article 1 Division 4 of the Town Bylaws.”  Once it is determined that it is earth removal operation, then you go to the Town Bylaw.  Attorney Quirk stated not necessarily.  Once it is determined that there is an earth removal operation, you need to see if the operation conforms to the requirements of the Bylaw & in the event the earth removal general Bylaws ______________.  K. Ferreira surmised that if earth removal is not allowed in a certain district, then a Variance would be needed.  If a Variance was granted to allow earth removal, it would then be sent to the BOS for authority of Division 4.

K.Ferreira asked how you reconcile the third paragraph of the General Bylaws notably cranberry bogs.  Attorney Quirk spoke re:  case law.  In this case law, in the event a party has to ability to get a license under the General Bylaw, they still need to comply w/ zoning.  The ZBA needs to look at what is & what is not allowed in an R-130 district.  It states earth removal activities are not allowed except incidental to a primary use that is allowed.  As she understands, the only primary use allowed that could possibly be incidental is agricultural.

Attorney Quirk stated initially, the property owner was given an earth removal permit under the General Bylaw w/out re:  to zoning.  She noted what transpired when the permit was up for review relative to zoning & use.  She feels expert advice is needed.

R. Serkey stated there are two studies of financial analysis done.  He questioned who these were done for.  Attorney Quirk stated they were both done by the property owner & in turn, given to the ZEO which indicated a $500,000 profit.  Brief discussion ensued.

M. Scarsciotti clarified the BOS issued an earth removal permit.  Attorney Quirk explained that the jurisdiction of the BOS is separate from zoning.  When the BOS issued the permit, they gave it under the General Bylaw without an inquiry as to zoning.  

K.Ferreira stated if gravel is to be removed, the General Bylaws for the Town is looked at for the process to obtain a permit.  Zoning is a separate issue from the General Bylaw.  Discussion ensued re:  the status of the property owner’s permit.  The question of zoning came up while the permit was being utilized.  When this question was raised, the ZEO was asked for an opinion/determination.

Attorney Quirk gave an analogy re:  the issuance of liquor licenses.  K. Ferreira stated the BOS don’t issue liquor licenses or fuel storage permit licenses until it has gone through the ZBA or Planning Board.  People cannot apply for these types of permits until they go through zoning.  Discussion ensued re:  this policy.

K. Ferreira explained what his opinion is of this type of appeal.  Either the ZBA upholds the ZEO’s decision & it moves on to another jurisdiction or the ZBA overturns the jurisdiction.  Attorney Quirk again discussed several options the ZBA has, such as requesting more evidence on the matter.  K.Ferreira stated if the ZBA chose this option, the information is received, & the ZEO makes a new decision whether or not it is incidental to the cranberry operation, someone most likely will still appeal this decision.  In order to appeal this decision, it needs to go to the ZBA before it goes to court.  Discussion ensued.  

Present before the Board:	Ted Misiasek, ZEO

Mr. Misiasek stated not all the figures were given to him by the property owner.  He spoke to P.A. Landers relative to sand & costs.  He also received a price from a cranberry grower.  He obtained information re:  creating & maintaining a bog for the first few years.  When he made his determination, he only looked at 8.5 acres of bog that were created.  He didn’t take into account what would be made from the 26 acres of bog that are already there.  He gave his estimate of what would be made on the 8.5 acres.  His initial decision was back in August.  He wrote a letter to the Interim Town Administrator on the finding.  His decision at that time & reiterated it in January was in his opinion it was incidental to the cranberry bog operation.  He is satisfied that he had enough evidence to made a determination which he did on his own.  The only information he received from the property owner was the plot plan.  He feels he has enough information.

M. Martin reviewed the Bylaw at length.  The key word is “incidental.”  

K. Ferreira noted even if an expert was hired,  the ZBA would have to make a determination on what “incidental” is & other factors (such as time frames) until it went to court.  M. Martin feels the ZBA needs to focus on the definitions in the zoning book.  He spoke re:  Article 5.  Attorney Quirk stated the earth removal permit is valid, but it is a question of when it is validly being used.

M. Scarsciotti questioned what is “incidental.”  She feels the ZEO did do the work he needed to do to quantify.  There wouldn’t be any other way to do it.  She feels he came up w/ reasonable figures w/ what he had to work with.  M. Martin agrees, but feels there is case law (Henry case) gives more evaluation on what should be included in the determination.  If the Town’s Bylaw utilizes the word “incidental”, then the ZBA needs to fall back to the Henry case for a clear understanding of what the zoning Bylaw is trying to say.  M. Scarsciotti feels the word “incidental” is still a relative concept.

M. Martin discussed the Old Colony case & that agricultural exemptions comes into question once the gravel starts being sold as a commercial operation.  Once this material starts being transported off the property for a profit or exchange of goods/services, it now becomes a commercial operation that does not have the same protections. 

M.Scarsciotti feels the ZBA needs to decide whether or not the ZEO has reasonable information to make the determination or render an opinion.  K. Ferreira stated this has been going on for over a year.  The ZBA are not lawyers.  This is an opportunity tonight to make a decision based on this type of appeal & let it move on.  More evidence can be sought, but he doesn’t see the point.  Attorney Quirk feels w/out the expert independent consultant’s report, the ZBA is w/out a basis to go forward.  There are two conflicting sets of numbers from the same source (the property owner).  Mr. Misiasek stated one set of numbers was initially done based on the information he obtained before & the other set is based on a different kind of cranberry (hybrid).  Discussion ensued re:  the figures & where the profit numbers came from.  Attorney Quirk discussed the facts that are missing in the Henry case.

T. Weare feels that “incidental” is a relative term.  There has to be concern about the amount of material.  If you are moving that much and your entire land area is eight acres, that is a bigger effect than if your entire land area is 800 acres.  For example, if the entire land area is 800 acres, eight acres may be incidental but if the entire land area is nine acres, eight acres is not going to be incidental. 

M. Martin stated the Henry case doesn’t speak about acreage & money and it doesn’t do that for a purpose.  It defines the word “incidental” as “subsequent to & subordinate.”  In other words, the earth removal cannot preceed the building of the bog.  It has to be minor & subsequent.  To claim the exemption, it’s got to follow the establishment of the bogs.  K. Ferreira added, “No, these are new bogs”.  T. Weare answered, “Well, yes but you are creating a larger area of bogs…..to create 8 1/2 more acres of bogs.  Correct. So, the question is to look very specifically, at the volume of earth that needs to be excavated, the duration of the project and the funds involved, that is something that needs to be looked at, and the overall effects of the neighborhood and whether ………. And that this is not incidental to the bogs themselves and my point is and the Selectmen’s point is in this appeal is that you are unable to make a determination without expert advice to tell you when it comes to create 8 ½ more acres of bogs and how much money would be realized from this creation.  K. Ferreira stated he sees Attorney Quirk’s point and it seems anything that lasts for a considerable period of time has an affect and whether its incidental in terms of volume almost doesn’t really matter.  So, what you are saying is if you had 100 acres of bogs and you had a 100 acres of woods that you wanted to turn into bogs and we are going to remove millions and millions of cubic yards to create another 30 acres out of that 100 if you had extra that would only be incidental does not make sense.  It would probably be a big number.  

K. Ferreira stated the ZEO may have made the determination, either way, that this was still an agricultural use.  It does not determine whether it is or it isn’t at this point.  He asked how many speakers there will be for this case (with a show of hands)  He stated he will give this another fifteen minutes of public input & if there is a lot more discussion, the hearing will need to be continued because we have another case of a similar nature and two other public hearings.  

Present before the Board:  Bill Madden, G.A.F. Engineering, Inc.

Mr. Madden informed the Board he did the permit applications for the Maple Park property and the earth removal applications.   He is familiar with all the terms that M. Martin and Attorney Quirk are using.  When there was discussion re:  a location that was in jeopardy, that was a tree line.  Someone was looking to take 500,000 yards to make a tree farm out of cranberry bogs.  It was also seeking to take that 500,000 yards under agricultural exemption allowed by Chapter 40A zoning.   Mr. Tucy wasn’t operating under a local Bylaw.  The permit application under the local Bylaw is not seeking an exemption.  When he hears the term exemption being stated, never once was it ever said this project was exempt from any permitting whatsoever.  Thus, that is a misunderstanding on someone’s part.  The permit application was filed under the local Bylaw.  People have been talking about experts and cranberry bogs.   He thinks he would have to qualify himself as one of those people.  He has permitted probably the vast majority of all cranberry bogs in this State.  He has worked in Minnesota, Maine, the largest projects in the state of Maine, the Dept of Agriculture, etc.  All of them involved earth removal activities involving bogs.  When there is talk about the incidental use component of the Bylaw, once again, ---- talks about an exemption, but the test is an important thing to discuss because since he does so much work in southeastern Mass.  He was given a memorandum prepared by Kopelman & Paige in 1995 that clearly outlines what one looks for when they try make a test on incidental.  This falls back to incidental as it pertains to exempt activity.  He noted that the removal of 300,000 or more cubic yards of earth would be characterized as a major undertaking & under most circumstances not incidental.  Courts have not yet addressed how to characterize small _________.  

Mr. Madden stated the primary use of Mr. Tucy’s property is agricultural w/ 26 acres of existing bogs w/ eight more acres planned.  He feels the duration of the activity was dictated by the earth removal permit.  The scope of the project needs to be evaluated.  The removal of material at this site does bear a reasonable relationship to the agricultural use of the land.  This property has been mined for sand/bog operations for many years.

Mr. Madden stated the ZEO emailed some questions to him & he provided him w/ answers based on his experiences on the questions asked.  He responded by saying that the cost of building a bog is estimated at $250,000 to $ 339,000.  Approx. $50,000 per acre.  He estimated revenue from cranberry operations which requires a long-term investment. 

Mr. Madden stated through the application process they discussed whether this would be an exempt activity.  He didn’t feel it qualified as an exempt activity so the permit requirements were fulfilled.  He feels under the Town’s zoning use regulations, this is permitted.  Discussion ensued re:  the use regulations for the zone in question.

Present before the Board:	 A gentleman

The gentleman stated the applicant before the Board this evening is the Board of Selectmen.  The BOS granted the license under the earth removal Bylaw & renewed it in the past.  It seems ironic that the same entity that granted & renewed the permit for a given operation is now the entity that is challenging whether or not this licenses activity applies w/ zoning.

Present before the Board:	John Cronan, BOS

Mr. Cronan stated the permit was not removed.  Every review that came up, neighbors came in & complained.  Prior to the permit coming up for renewal, he reviewed the zoning & found there was an issue.  Attorney Quirk understands that a number of neighbors brought the matter of zoning before the BOS.  She noted the jurisdiction of the BOS relative to the general Bylaw & its criteria only.

Brief discussion ensued re:  how to proceed.

Present before the Board:	Bob Brady

Mr. Brady expressed concerns.  He noted the Chair determined that there was an aggrieved party.  The BOS are representing the Town as is Town Counsel.  He questioned who is aggrieved.  He spoke re:  the explanation Mr. Madden gave.  He has never known any cranberry bog development that did not have to first, incidentally, move earth.  Clearly this is incidental.

Present before the Board:	Frank DeFelice

Mr. DeFelice stated the reason this operation started is because there was a new bog to be built.  It definitely was incidental; moving the dirt.  He has been a ZEO for ten years.  He feels he is an expert & the Town’s ZEO is an expert as well.  In his years as a ZEO, never has the amount of money come to an instance being “incidental.”

Present before the Board:	Roseanne Degrenier

Ms. Degrenier feels strongly that the Board should stand behind Mr. Misiasek’s decision.  She is a cranberry grower & whenever there is an activity, there is always disturbance.  

Present before the Board:	Brock Tucy, Maple Park Properties

Mr. Tucy was called in by the BOS.  He was issued a cease & desist order.  He already had a letter from __________________________________________(inaudible).   He stated he was granted the permit by the BOS, but two days later he was told he couldn’t have it because he had to go to zoning.

Present before the Board:	Ed Pacewicz

Mr. Pacewicz stated that this activity is taking place in Zone 2 – recharge area.  A recharge area is where water from the sky falls down, the water goes down into the aquifer.  The sand being removed is a filter that filters & cleans the water going down to the aquifer.  This type of activity has the possibility of adversely affecting the Town’s drinking water.  That is why the ground protection overlay district doesn’t allow mining in Zone 2.  

Present before the Board:	A gentleman

The gentleman stated (totally inaudible on tape)___________________________.

Present before the Board:	Lisa Bindas, Maple Springs Road

Ms. Bindas spoke re:  her disagreement w/ Mr. Misiasek’s decision.  She spoke re:  Mr. Tucy making money on the removing of earth.  She expressed concern re:  the operations effect on the drinking water & the amount of earth being taken off the property.  She feels this operation is “sand for profit.”

Present before the Board:	A gentleman

The gentleman stated his attorney brought the zoning matter of the earth removal forward to the BOS.  He spoke re:  the amount of earth being taken out of the property.  He doesn’t feel Mr. Tucy’s primary use of the property is cranberry growing; it is a campground.  This is the primary use.  He feels information should be sought from a proper entity on earth removal operations.

Present before the Board:	Linda Griff

Ms. Griff works as a bog planner for cranberry bogs in contract w/ the USDA.  She spoke re:  the building of bogs.  She stated the money from the selling of sand is used to build the bog.  Unless there is sand, you can’t afford to build a bog.

Present before the Board:	Jackie Barnett, Maple Springs Road

Ms. Barnett stated the reasoning for the zoning Bylaw is that everyone can be protected.  She encouraged the Board to review the case law before them & come to a decision on this matter.

Brief discussion ensued re:  use of an expert for information & the word “incidental & exemption.”

K.Ferreira acknowledged receipt of a letter submitted on behalf of the applicant from David Wordell dated 3/11/09.  In summary, the letter claims that the operation is exempt under 40A, section 3 & the primary use is cranberry related.  He requested the BOS’s appeal be denied.

MOTION:	R. Secher moved to close the public hearing for petition #005-09 – BOS Appeal of the Building Inspector’s Decision dated January 6, 2009.  M. Scarsciotti seconded.

ROLL CALL:	R. Secher – Yes
			M. Martin – Yes
			M. Scarsciotti – Yes
			D. Sharkey – Yes
			K. Ferreira - Yes

VOTE:  Unanimous (5-0-0)

MOTION:	M. Scarsciotti moved the Board uphold the decision of the Building Inspector made on January 6, 2009 re:  Maple Park Properties, 290 Glen Charlie Road, East Wareham, MA.  D. Sharkey seconded.

NOTE:	K. Ferreira clarified a super-majority vote is needed to uphold the Building Inspector’s decision.

M. Martin is unsure he understands the term “incidental” being used in this matter.  He feels the issue is the ZEO’s interpretation of the building ordinance.  He feels the word “incidental”, while not defined in the ordinance, has to fall back on the basic meaning found in the dictionary.   Thus, he feels the word incidental means, minor & subsequent to.

D.Sharkey feels the way the Town has written the use of “incidental” needs to be reviewed.  It is an untenable use of this word in this application.  He stated if the word is devised for the purpose of the cranberry business, all the cranberry bog owners would be out of business.

Discussion ensued re:  how to proceed.

M. Scarsciotti & D. Sharkey w/drew their motions.

MOTION:	M. Martin moved to overturn the decision of the Building Inspector made on January 6, 2009 re:  Maple Park Properties, 290 Glen Charlie Road, East Wareham, MA.  M. Scarsciotti seconded.

ROLL CALL:	M. Martin – Yes
			R. Secher – No
			M. Scarsciotti – No
			D. Sharkey – No
			K. Ferreira – No

VOTE:  (1-4-0)
R. Secher, M. Scarsciotti, D. Sharkey, & K. Ferreira opposed

NOTE:	The motion failed, thus, the Building Inspector’s decision of January 6, 2009 stands.

M. Scarsciotti departed at this time.

B.	#008-09 – Robert Barry – Sherwood Road, c/o Charles Rowley & Associates

Present before the Board:	Charles Rowley, Charles Rowley & Associates

The public hearing notice was read into the record.

Mr. Rowley stated that Mr. Barry is desirous of obtaining a building permit for combined lots 55 & 56 Sherwood Rd.   In 12/08, Mr. Barry received a letter from the Director of Inspectional Services indicating that the two lots being combined would not meet the requirements of MGL c.40A, sec. 6 due to the fact that lots R55 &R56 were held in common ownership at the time of zoning changes.  

Mr. Rowley discussed review & history of records relative to these two lots.

Ms. Angus continues to own lot R56.  She did own Lot R55 & in 1977 gave lot 55 to Elaine Giormori.  At the time this lot was conveyed to Ms. Giormori, Ms. Giormori owned lot 53 which is not a part of the subdivision.  In 1983, Ms. Giormori conveyed lot 55 out again; after the expiration of the subdivision protection against the zoning change.  Thus, it appears that lot 55 may now have lost its zoning protection.  He spoke re:  the ownership of lot R56 & lots R21-R27.

Mr. Rowley stated the application seeks to combine Lot 55 w/ Lot 56.  Discussion ensued re:  the Variance being applied for, if any grandfathered exemption is being asked for, what transpired w/ these lots, & the zoning changes made.

K.Ferreira read a letter into the record dated 3/9/09 from Joseph & Barbara Pocaro.  The letter, in short, states they are in favor of the application.

Audience members were asked for questions or comments.

Present before the Board:	A gentleman

The gentleman stated _________________.

Present before the Board:	 A woman

The woman stated she is in favor of the application.

Present before the Board:	Ms. Monroe

Ms. Monroe stated he is in favor of the application.  

Brief discussion ensued re:  condition language & the fact that the land is registered land.

MOTION:	R. Secher moved to close the public hearing for petition #008-09 – Robert Barry – Sherwood Road.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved & R. Secher seconded to grant a Variance for a small lot exemption based on the fact that the application meets the four criteria for a Variance & moves towards more conformity and to grant said Variance w/ the following conditions:

1.	The land is to be held as one lot and never separated.
2.	Record an affidavit at the Registry of Deeds that Lots R55 & R56 are to be held as one lot and are not to be separated.

Brief discussion ensued re:  setbacks.

VOTE:  Unanimous (5-0-0)

NOTE:	The meeting proceeded w/ item VI.  Continued Public Hearings – B.  #004-09 - Ryan Correia – 361 Main Street.

Present before the Board:	Attorney Margaret Ishihara
				Ryan Correia

Ms. Ishihara stated this application is for site plan issues.  She discussed proposed plans for drainage & parking.

K.Ferreira read letter into record from the Wareham Historical Commission dated 2/23/09.  The letter, in short states what Mr. Correia has agreed to do relative to historic matters involved w/ the building.

Ms. Ishihara spoke re:  letter submitted from Lt. Brightman & Mr. Sylvester dated 2/24/09 which states police records show only one motor vehicle accident in front of the building in the past three years.

Present before the Board:	George Barrett, Planning Board Chairman

Mr. Barrett stated the Planning Board has no objections to this project.

K.Ferreira stated the plan submitted this evening addresses contouring & drainage & reviewed by an engineer.  It still needs to go before the ConCom.  He noted that if the ConCom made any substantial changes, the permit will need to be modified.

MOTION:	R. Secher moved to close the public hearing for petition #004-09 – Ryan Correia – 361 Main Street.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved & R. Secher seconded to grant a Special Permit under Article 3, section 320 & Article 15 to renovate an existing structure and create a building w/ commercial/retail space on the first floor w/ eight (8) residential units in the rear and upper floors w/ the following conditions:

1.	Approval will be required by the Conservation Commission and any substantial changes will require a review by the ZBA to determine if a new hearing will be required..
2.	All work to be in accordance w/ the plans submitted on March 11, 2009, including lighting, grading & drainage.
3.	Footprint and elevation views to remain the same.
4.	Approval required by all applicable boards, committees, etc.
5.	All lighting to be per Zoning Bylaws.
6.	Plans must be submitted to the Board of Selectmen for review in accordance w/ the grant application.
7.	No occupancy permits for the residential units shall be allowed until a proper deed rider accepted by DHCD is recorded to ensure that the units will be counted in the Town’s affordable housing inventory.

Brief discussion ensued re:  plans submitted vs. plans submitted to the BOS & the CEDA grant for the project.
VOTE:  Unanimous (5-0-0)

NOTE:	The meeting went back to item V.  Public Hearings.

C.  #009-09 – Richard Janey – Appeal of Occupancy Permit issued for 21 Crescent Place.

Present before the Board:	Richard Janey
				Mr. Dillon, Attorney

The public hearing notice was read into the record.

K.Ferreira stated he has reviewed all the paperwork for this case.  He agrees, from the paperwork submitted by Mr. Janey, that there appear to be issues relative to the issuance of the building permit in question.

K.Ferreira understands the matter needs to come before the Board before it goes to court, however, the decision or the appeal is well beyond the 30 days.  It is jurisdictional that a decision of a zoning officer must be appealed w/in 30 days.  Mr. Janey responded by stating he was told in early 11/08, prior to the Occupancy Permit being issued, that the Town Administrator had issued explicit instruction to the Building Inspector not to issue an Occupancy Certificate until the issue went before the Board.  

M. Martin doesn’t feel this matter can be appealed.  The neighboring landowner has no right to appeal for a vote to appeal on Occupancy Permit.  He doesn’t feel Mr. Janey has the right to file & the Board has no authority to hear it.  He noted paperwork submitted.  M. Martin explained he drafted the ad for the newspaper.  The appeal is strictly for the Occupancy Permit.  The appeal needs to be w/in 30 days.  There is also a need for a letter of refusal from the Building Inspector.  

Mr. Janey stated he went to the Building Inspector’s office in 9/08 & asked to see a copy of the building plan.  Jay Collins of the Building Dept. stated there were building plans, but he couldn’t have a copy of them.  Mr. Janey asked Mr. Collins if the Building Permit from 2006 was still valid.  Mr. Collins replied it was still valid.  He believes he has not received honest, good faith input from the Inspectional Services Dept.  He feels it will show in court there has been a scheme, since 1993 when the Town took ownership of Lot 1057 which this Occupancy Permit is issued against.  There is only 1,900 sq. ft.  10,000 sq. ft. is the minimum requirement for a buildable lot on OV2 district in Onset.

M. Martin stated the Board is not questioning what Mr. Janey is stating.  The Board is questioning the procedural ability to be here.  There are several things lacking which he noted.  There are timeliness questions & there is no written letter from the Building Inspector to go forth w/ an appeal.  He stated this letter may be obtained by being ordered by the court.  Without this document, the Board cannot hear this matter.  Mr. Janey stated he will get this letter & will bring this matter to court.  He noted that Mr. Cronan & now M. Martin are stating to sue the Town.  He will.

K. Ferreira explained the problem w/ these types of cases are the mechanics of the procedure has to be perfect.  If the mechanics of the procedure fails, the whole matter fails.  The Board doesn’t handle a lot of these.  He sees a problem w/ the procedure.  This can’t be known prior to filing, but is known once the process has commenced & data is reviewed.  He acknowledges that it seems Mr. Janey has been given different information from different boards/entities.   If all Mr. Janey’s facts are correct, then he agrees the Building Inspector made a mistake & shouldn’t have combined three individual lots to make into a grandfathered lot.  They were combined in title, not a plan.  They should have been combined on a plan.  This is a minor thing.  They were clearly owned by one entity.  The Merger Doctorine applies that once they are put into the same entity, they merge; the title has merged.  However, a plan would have been good.  Mr. Janey stated even if the lots were combined, there is still only 7,000 sq. ft.  K. Ferreira stated this would require a Variance.  All the issues Mr. Janey is claiming were never appealed to the property entities.  The mechanics of case are very clear.  The appeal must be taken w/in 30 days of the date of the Zoning Officer’s decision under Section 7.  The 30-day appeal is jurisdictional & failure to timely appeal results in dismissal of the action.  The process needs to be done right.  The Board doesn’t have all the facts & the Board is not going to say to the Building Inspector issue a cease & desist to demolish the house & tear it down.  He doesn’t know what the solution is at this time.  He wants to make sure the procedure is done right.

Mr. Janey questions if the mechanics of the Building Permit were followed in the first place correctly.  M. Martin explained there was a time period to appeal this.  When this time runs out, so does the right to appeal.  Mr. Janey asked if a Building Permit expires after six months.   K. Ferreira stated Building Permits expire & need to be renewed.  Brief discussion ensued.  K. Ferreira doesn’t want to hear the case until he knows what the jurisdiction is.

Attorney Dillon feels the problem arose because Mr. Janey received advice from the Town Administrator to do this (appeal).  There was also a conversation w/ another member to do this & Mr. Janey filed the appeal.  There may be some procedural issues to address.  Mr. Janey was under the impression the Building Inspector was not going to disobey the Town Administrator & issue a Building Permit for a house.  In order to go to court, the process needs to be followed.  There are allegations of fraud & misbehavior which contributed to Mr. Janey’s inability to do things in a timely manner.  This will be determined at a further time.  No-one told Mr. Janey about obtaining a letter from the Building Inspector relative to a denial.  Mr. Janey was also told he couldn’t look at the plans for the house.  He noted that information was on the Town website, & then it disappeared.  Mr. Janey has a jaundiced view of the assistance he will receive from the Building Inspector.  He understands the Board’s position.  He will advise Mr. Janey on what course he wants to take.

M. Martin is not passing judgment or the credibility or merits of Mr. Janey’s case.  The Board is trying to set Mr. Janey on the right path.

K. Ferreira asked Mr. Janey’s counsel if he feels the Board should rule no jurisdiction to allow Mr. Janey to go straight to court.  He questioned what the point of this hearing is if the hearing is not untimely.  K. Ferreira noted that from the information Mr. Janey has provided, it looks like the Building Permit should not have been granted w/out a Variance.  Mr. Janey stated these facts are correct & he will prove it in court.  K. Ferreira feels this case needs to go to court.  Discussion ensued.  M. Martin doesn’t believe the Town Administrator has any authority to direct the Building Inspector to correlate his duties on specific matters.  T. Weare concurred.  K. Ferreira stated that the procedure was flawed & the information was bad.  It is the applicant’s responsibility to make sure  things are proceeding correctly.  Mr. Janey stated he is present because the Town Administrator told him to proceed this way.  K. Ferreira doesn’t want to take evidence for the case if there is no jurisdiction to begin with.  Attorney Dillon explained his position.  K. Ferreira stated since there is no jurisdiction, Mr. Janey can go straight to court or start the process over again.  He noted zoning regulations that state “someone who fails the 30-day period & fails to achieve finality as evidence by the tension between the 30 day appeal period applicable to appeals by the zoning statute & the 6-year statute, the failure of an abutter to appeal the issuance of a permit, has not absent of showing of bad faith, preclude that same abutter from later bringing enforcement action w/in 6 years.”  Thus, anyone can appeal a case w/in 6 years of a zoning violation which is different than this appeal.  Mr. Janey has the right to appeal under the 6 year statute if he didn’t get w/in the 30 days.  

K.Ferreira clarified that the Board should not take evidence on this case, they should rule no jurisdiction which will allow Mr. Janey to hire an attorney & file the case in Superior Court.

Present before the Board:	A woman

The woman expressed anger that citizens are supposed to follow the mechanics to the letter of the law when the people who are supposed to be doing their jobs, overseeing permits, etc. are not doing theirs.  Discussion ensued.

The woman stated that she couldn’t get the dept. to post the permit for two months.  They were denied several times.  K. Ferreira stated this will all be heard in court.  The Board is trying to follow the procedure as it should be.

Present before the Board:	Jerry Smith, Owner of 21 Crescent Place

Mr. Smith bought the lot.  The foundation was there.  There was a building permit for it.  He had no idea what was going on.

K.Ferreira noted that the public hearing was opened in a timely manner, w/in a 65-day period.  No evidence was taken, other than the public documents on file presented w/ the application.  Debate was held re:  jurisdiction.

MOTION:	M. Martin moved to close the public hearing for petition #009-09 – Richard Janey.  D. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	M. Martin moved the Board make a determination that the Board lacks jurisdiction due to the un-timeliness of the appeal made by petition #009-09 – Richard Janey.  R. Secher seconded.

VOTE:  Unanimous (5-0-0)

VI.	CONTINUED PUBLIC HEARINGS
		      
A.	#60-08 – Terry Smith – 83 Sandwich Road

Brief discussion ensued re:  this petition.

MOTION:	R. Secher moved to deny with prejudice petition #60-08 – Terry Smith – 83 Sandwich Road.  T. Weare seconded.

VOTE:  Unanimous (5-0-0)

B.	#004 -09 – Ryan Correia – 361 Main Street (DONE)
C.	#47-08 – Bartlett Pond Village – Off of Standish Avenue (DONE)

VII.	ADJOURNMENT

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

VOTE:  Unanimous (5-0-0)

Attest:  _________________________
	Mary Scarsciotti, Clerk
	ZONING BOARD OF APPEALS

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