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

Date of Meeting:  May 13, 2009

I.	CALL MEETING TO ORDER

K. Ferreira called the meeting to order at 7:05 p.m. 

MOTION:	A motion was made and seconded to enter into Executive Session for the purpose of discussing litigation on the Janey matter. 
	
			ROLL CALL VOTE:  M. Martin – Yes
			   M. Scarsciotti – Yes
			   D.  Sharkey – Yes
			   R. Secher – Yes
			   W. Engerman – Yes
			   K. Ferreira  - Yes

Also attending the Executive Session will be Ted Misiaszek, Building Inspector and Attorney Deborah Ecker of the law firm of Brody, Hardoon, Perkins & Kesten. 	   	    
			
MOTION:	A motion was made and seconded to come out Executive Session.

VOTE:  Unanimous (5-0-0)

NOTE:    The Open Session of the ZBA meeting resumed at 7:40 p.m. 	
	
K. Ferreira explained the meeting procedure for this meeting.

II.	ROLL CALL

Members Present:	Ken Ferreira, Chairman
			Mary Scarsciotti, Clerk
			Michael Martin
			David Sharkey
			Richard Secher
			Wilma Engerman, Associate Member
			Ticia Weare, Associate Member
			
III.	PRELIMINARY BUSINESS

A.	 Minutes to be approved:  December 17, 2008; December 10, 2008 and September    17, 2008

MOTION:	A motion was made and seconded to approve the meeting minutes of December 17, 2008. 
		
VOTE:  (4-0-1)
M. Martin abstained

MOTION:	A motion was made and seconded to approve the meeting minutes of December 10, 2008.

VOTE:  Unanimous (5-0-0)

MOTION:	A motion was made and seconded to approve and resign the meeting minutes of September 17, 2008.

VOTE:  (4-0-1)
M. Martin abstained

IV.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES
	
A.  Correspondence received from Kopelman and Paige, P.C. dated May 6, 2009 

V.	PUBLIC HEARINGS

A. #19-09 –  21-23 Crescent Place – Richard H. Janey, Jr., c/o Julie C. Molloy, Esq.  

Notice of public hearing was read into the record re:  a request to reverse the decision of the Building Inspector issued on March 31, 2009 to Jerry L. Smith, Trustee for property located at 21-23 Crescent Place, Onset, MA on Assessors Map 1, Lot 1057, 1058 and 1059.  

Present before the Board:	Mr. Richard Janey
				Attorney Julie Molloy.

Attorney Molloy presented a brief history of the parcels consisting of Lots 1057, 1058 and 1059.   The Town of Wareham acquired the lots through a tax taking and the existing structures which were on each parcel were subsequently demolished, the last structure demolished in 2001.   From 2001 to the summer of 2006, the parcels were vacant of any structures.  The previous owner, Nazih Elkalassi (who purchased the property through a Town Auction as ‘potentially buildable’) was issued a building permit on August 26, 2006.  A foundation was placed on the property shortly after the building permit was issued in August.  The foundation sat there with no additional work being performed until September 2008.   Attorney Molloy cited sections of the Zoning By-laws regarding required lot size for obtaining a building permit.   

Chairman Ferreira explained the Zoning By-laws refer to uses of property.  He further explained an interpretation of the word use as used in the By-law.  Attorney Molloy disagreed with the Chairman’s interpretation.   A discussion continued with regard to the By-law that was in existence at the time of the issuance of the first building permit and that the current structure falls with the required setback requirements, but is deficient in the areas frontage and lot size.  

Mr. Janey stated there never were any single family homes on any of the lots in comparison to the existing structure. 

Chairman Ferreira raised the question if the By-law at the time of the issuance of the first building permit required that the petitioner provide the Building Inspector with facts and information or would it make sense that the Building Inspector could rely on his personal knowledge of the property history rather than require the submittal of facts and documentation from the petitioner.   A petitioner might not be able to provide such documentation if at the time of his application for a building permit, the petitioner would have a difficult time proofing what previously existed on the property other than affidavits of neighbors.   The Building Inspector’s personal knowledge and recollection of the previous structures and the issues pertaining to their non-conformity along with documentation of demolish could have been a factor in the decision to issue a building permit. 

Attorney Molloy expressed doubt the Building Inspector could rely on personal memory alone of the properties in Town.  The requirement of documentation in the files could support a person’s memory.  She stated this is the contention of her client; that the lot does not confirm dimensionally in terms of lot area and that the Zoning Board of Appeals take enforcement action.  The recommended enforcement action would be to issue a letter to the property owner (Mr. Smith) that, in light of zoning violations, any and all activities on the property cease and desist until such time as zoning relief has been accorded. 

The Chairman recalls a brief discussion with Mr. Janey after a previous meeting, in which Mr. Janey indicated that he wanted the new house be torn down.   

The issue before the Zoning Board is in re:  to why the building permit was issued.  

A question was raised by a Board member as to which By-law should be used, the By-law in effect at the time of the issuance of the building permit or the current By-law.  

Attorney Molloy continued her presentation re:  all three lots being in single ownership.   She noted the Town’s tax taking of each lot was taken at different times.  The question of abandonment by the original owners was also raised.   Mr. Janey stated he and his family had tried since the early 1990’s to get the Town to clean up the property because of health and fire safety issues before the structures were finally demolished. 

Present before the Board:	Nazih Elkallassi

Mr. Elkallassi spoke briefly.

Present before the Board:	Brian Wall, Attorney for Mr. Smith

Attorney Wall (attorney for Mr. Smith,the current owner) stated his research revealed the lots came into single ownership around 1976 under the family of Mary Blye.  He also produced a copy of the notice for the Town Auction in which it stated that ‘can build a single family if combined lots”.  Attorney Wall stated the point he is offering is to show the intent; that it was clearly not the intent to abandon the ability to build on this property.  Mr. Elkalassi purchased the property, secured a building permit and put in a foundation.  When Mr. Smith purchased the property, there was an existing building permit and foundation in the ground.  Mr. Smith has invested over $200,000 in the property which is currently rented to a single parent with four children.  

Attorney Wall expressed that the permit was issued and exercised properly and the building was constructed in conformity with the permit.  He feels Mr. Janey fails to show the permit was issued in error. 

Attorney Molloy reiterated her previous argument re:   prior structures that had been demolished were not in conformity with zoning and cited a section of the Zoning By-law which stated that a restoration shall not exceed the original floor area, original height or no nearer to the street line than the prior structure.  

Discussion continued re:   interpretation of the Zoning By-law. 

Attorney Malloy further argued the Town did not offer the property for auction until several years later.  Mr. Janey offered information that he and his father tried several times to purchase the property from the Town. 

Present before the Board:	Ted Misiaszek, Building Inspector

Mr. Misiaszek stated the granting of a building permit was based upon the Zoning By-law book of April 2005.  There were no other available Zoning By-law books.  In his opinion, the use was not non-conforming and a more conforming use would be to go from three non-conforming units to one conforming unit.  The renewal of the permit was granted as the applicant had invested a considerable amount of money in the permit and had substantial construction (foundation).  He stated he made a determination to allow a building permit to be issued based on 40A, Section 15 of the Zoning By-law available at that time. 

Attorney Molloy commented about the 1st building permit not being renewed until 2 years later. 
Mr. Elkalassi stated that he renewed the building permit every six months.  

In summary, Attorney Molloy requested a continuance as she would submit additional material that had been requested by Mr. Janey which showed that the property was vacant, was overrun, was abandoned, and wasn’t being used.  She further stated there were no letters in the file at the Building Department which indicated requests for an extension of the building permit on a 6- month basis.   She also indicated the Building Inspector made a determination of the build-ability of the property before the auction in June 2006.  She stated that the Zoning-By-law had changed in April of 2006. 

MOTION:	A motion was made and seconded to continue the hearing to May 27, 2009 at 7:30 P.M.
VOTE:   Unanimous (5-0-0)

VI.	CONTINUED PUBLIC HEARINGS

A.#012-09 – Wareham Fire District – Wireless Facility – 281 Glen Charlie Road
B.#013-09 – Wareham Fire District – Public Utility Structure/Water Tank – 281 Glen Charlie Road.  

NOTE:   M. Martin and T. Weare recused themselves from participating in the following hearings and departed the meeting. 

Chairman Ferreira announced for the purpose information and discussion, the hearings will be combined, closed, and voted on separately. 

Present before the Board:	Attorney Markey

Attorney Markey spoke briefly in essence that the Board is to decide whether a Special Permit be granted to allow the water tank initially and use of a public facility in this zoning district is allowed with a Special Permit provided under the statute that the use is in harmony with the general purpose intent of the ordinance or by-law.  The Zoning By-laws virtually in the entire Town public utilities are allowed.  This gives the Town the discretion to find a location that balances a variety of interests – costs, environmental needs, and the least impact.  The Fire District, after an exhausted search for a site, realizes that there is a significant sacrifice from the neighborhood.  The reality is in balancing all the factors, the District believes that this proposal is in the best interest of the District when all factors are weighed – environmental, close to utilities, close to roads, keeping costs reasonable, being able to complete the project in a timely manner. 

A member of the Board did visit the proposed site and found that the distances are actually further away than what he originally thought. 

M. Scarsciotti questioned how the District proposed to keep the tower clean.  Will the exterior finish have some component that would repel mold, rust, etc?  Will it be washed annually as opposed to being painted annually?  The response is the tank would have a baked enamel finish that would not require painting.  It could be cleaned by power washing.  If in the manufacturing process of the tower there is an option to make it as mold resistance as possible, the District would have that type of finish applied.  If the ZBA wants to place a condition on the Special Permit regarding the cleaning of the tank, that would not pose a problem.

D. Sharkey visited the site and observed the area for the proposed water tower would not be a terrible impairment to the surrounding properties.  Most of the properties are well treed so that the water tower would not be as visible as if it were an open field. 

W. Engerman also visited the site and noted the small size of the area for the proposed tower.  She believes the base of the tower would not be visible from Lori Lane.  

Audience members were asked for comments or questions.

Present before the Board:	James Thomas, 5 Lori Lane

Mr. Thomas questioned why the District is looking to place the tower in a residential neighborhood; whereas the Town of Marion has their tower in the area of the landfill transfer station and the Town of Lakeville has their tower placed in the industrial park. There are three other sites available.   He expressed concern that the proposed site is not suitable.  He also questioned why the tower cannot be placed in the same area as a proposed well site.  

Chairman Ferreira explained there was significant information provided at the first public hearing as to why the proposed location was selected.   The Fire District completed an extensive  
testing procedure where points were awarded to the potential different sites which resulted in this site as the best in terms of infrastructure, connections to the water main, costs and environmental impact.

Present before the Board;	Ken Jordan, 9 Rickey Lane

Mr. Jordan stated he would be able to see the tower from his property.   

Brief discussion ensued. 

Present before the Board:	Mrs. Alexadner, 6 Lori Lane

Mrs. Alexander informed the Board that the tower will be visible from her front window and it would be an ugly site. 

Present before the Board:	A gentleman

A gentleman who lives in the area asked what impact there would be to the value of the properties when the tower is installed.  He raised the issue if there would be an increase of e-coli problems when the tower is erected.  

Present before the Board:	A gentleman

The gentleman asked from an engineering standpoint, what sort of contingency would happen should there be another e-coli concern whereas the tower would need to be drained.  Where would the water go?  

A representative of the Wareham Fire District responded that if an e-coli source from the tank, the tank would not need to be drained.  The tank could be chlorinated from the piping going into the tank.  The design of the tank includes ‘chlorination taps’.  The proposed tank will be smaller than other tanks in Wareham and would hold approximately 250,000 gallons.  The tank could be drained down and there is a State requirement that the District have the capability to drain a water tank.   
 
Present before the Board:	Charles Gately, 12 Dana Lane

Mr. Gately asked why the tower can’t be placed across the street in the area of the Yogi Bear Park and the proposed well site area. 

The response was the development of a well site is still ongoing partly due to environmental issues that DEP issues every month.  It may take 2 years or 10 years before the approval for the well is received.  Hopefully, it can be done in six (6) months.   The factors which make the Yogi Bear Park location not desirous include costs, time, wetland issues and endanger species issues.  To be able to utilize some of the Federal Stimulus funds, the project must proceed within a short period of time. 

Discussion ensued.  

Counsel for the Fire District reiterated that the request for the cell tower attachment to the water tank.  Before seeking bids for the potential providers, there needs to be a determination of a need in the area.   The determination had been already been made by the Zoning Board through another application.  Seeking approval of a Special Permit subject to the further review by the Board the type of attachment once of a specific carrier has been chosen. 

Chairman Ferreira edified the public that nothing can or will be installed before a public hearing is held. 

Present before the Board:	A gentleman

The gentleman stated previously, the ZBA voted to not allow a cell tower be placed on this location.  

Chairman Ferreira explained that a previous application for a specific location was not approved as not being acceptable and the applicant moved the location further back which was more acceptable to the neighbors.  The Board approved the application on the new location.  

MOTION:	A motion was made and seconded to close the public hearings for petition  #012-09 and #013-09.

VOTE:  Unanimous (5-0-0)

MOTION:	A motion was made and seconded to grant the issuance of a Special Permit for petition #013-09 for a public utility structure (a water storage tank) on the property located on 281 Glen Charlie Road, Wareham, MA with the conditions that (1) the construction be in accordance with the plans provided; (2) the exterior of the tank be maintained; (3) a mold resistant component, if available, be applied to the exterior finish at the manufacturing level; and (4) there be a constant diligence tour be conducted annually and power washing be done, if necessary. 

	Roll Call Vote: Richard Secher – Yes
			   Mary Scarsciotti – Yes
			   David Sharkey – Yes
			   Wilma Engerman – Yes
		               Kenneth Ferreira – Yes

VOTE:  Unanimous (5-0-0)

MOTION:	A motion was made and seconded to grant the issuance of a Special Permit for petition #012-09 for a wireless communication facility intended to be attached to a water storage tank on the property located on 281 Glen Charlie Road, Wareham, MA with the condition that before any device is installed a public hearing is required under Sec. 545.2 of the Zoning By-law.

	Roll Call Vote: Richard Secher – Yes
			   Mary Scarsciotti – Yes
			   David Sharkey – Yes
			   Wilma Engerman – Yes
		               Kenneth Ferreira – Yes

VOTE:  Unanimous (5-0-0)

VII.	NEW BUSINESS/DISCUSSION

M. Scarsciotti expressed foot dragging in the terms of South Shore Housing, attorneys for the owner, attorneys for the former owner, attorney for the title insurance company, attorney for the mortgage holder.  An inspection was conducted on April 27th at the Avenue A property.  Attorney for South Shore Housing asked if the Zoning Board needed to expedite the process.  It was requested that the broken windows be repaired.  As of this date, the windows are still broken.  Course of action is to have B. Sampson send a demand letter via certified mail to South Shore Housing to repair the windows immediately. 

M. Scarsciotti would like the Board to have the applicants of two (2) 40B projects come before them to address violations of the permit. The violations include lots being switched, driveways not install properly causing water to seep into a home.   The projects are at Cromesett Landing and Carleton Place.  The condo fees at Carleton Place have been raised from $90.00 to $176.00.

VIII.	CORRESPONDENCE

A.  Subpoena was served by Constable today to Brenda Sampson indicating a lack of 		      standing to Lisa Bindas’ appeal in the Brock Tucy matter which is scheduled to be                	      heard on June 24th.    The subpoena requesting that the Zoning Board not hear the matter.

X.	ADJOURNMENT 

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

			VOTE:  Unanimous (5-0-0)

Attest:  _________________________
	Mary Scarsciotti, Clerk

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