MINUTES OF MEETING OF WAREHAM ZONING BOARD OF APPEALS

Date of Meeting:	January 13, 2010

I.	CALL MEETING TO ORDER

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

II.  ROLL CALL

Members present:  Kenneth Ferreira, Chairman (Arrived at approx. 8:00 PM)
		        Michael Martin, Vice Chairman
		        Mary Scarsciotti, Clerk
		        Wilma Engerman
		        Richard Secher
		        David Sharkey

Also Present:		Jon Witten, Special Counsel

III.  PRELIMINARY BUSINESS

A.  Approval of Meeting Minutes:  January 28, 2009 & December 2, 2009.

The minutes were received via email, but not printed out.  The minutes were tabled.

B.  Announcements.

     1.  Mr. Martin announced if anyone was present for the discussion of 815 	Main Street, this will take place at approximately 8:00 p.m. this evening.

2.	Petition #35-09 - 83 Sandwich Road.   There is a request for continuance from an attorney and the applicant is asking for either the next meeting in January or a subsequent meeting in the last two weeks of February.

MOTION:	Mr. Secher moved to schedule petition #35-09 – 83 Sandwich Road – People Helping People, c/o Terry Smith to February 24, 2010.   Mr. Martin seconded,  noting there is a letter in the file from legal counsel making that request and the reason for the continuance is outlined in the correspondence.  

VOTE:  (4-1-0)

IV.	REQUEST FOR PLAN WAIVERS & OTHER ADMINISTRATIVE ISSUES
	     (To be held at 8:00 P.M. – 815 Main Street)

V.	PUBLIC HEARINGS

A.	#39-09 – 41 Gibbs Avenue – Frank Maniglia

Present before the Board:	Frank Maniglia

A letter was provided to the Board by the applicant stating he has done more research of which he would like to submit.  Mr. Maniglia stated he has been a resident of Wareham for 25 years and just purchased 41 Gibbs Avenue about a year ago.  There is an existing carriage house and he wishes to turn that into an additional dwelling unit to an existing structure.  The building has a separate 200 amp elect system, heating system, & plumbing with water and sewer to an existing bathroom on the first level.  It has a hot water heater and he is just finishing it off.  He and his wife are expecting their second child.  Both children will require daycare and it will be cheaper for his wife to stay home rather than put them in full time daycare.  The thought is to renovate the carriage house to supplement their income with a tenant.  He is a full time real estate professional.  He will be onsite full time.  There is an existing multifamily within the neighborhood and he understands a lot of it is pre-existing.  The driveway is a horseshoe driveway and he has access to Bodfish and Gibbs Avenue.  He spoke to the Wareham Post Office and both 39 and 41 Gibbs Avenue are available for addresses.  He followed up with Peter Murphy at the Wareham Police Dept. and he was fine with it, however, he said he would need a landline at the proposed dwelling in case of an emergency.  He believes at one time someone ran a business out of it.  

Ms. Scarsciotti asked what kind of a business was there previously.  Mr. Maniglia thinks it was a woodworking business.  

Mr. Martin asked if the applicant knew what he needed from the Board and indicated he will need multiple variances and this application is a very high hurdle to overcome.  He noted the applicant will need at least three variances.
  
Mr. Secher advised the applicant that he needs a frontage, area, and a multi-use variance.  Mr. Martin said the applicant can have multi-family units, but they cannot be detached; they have to be attached.  

Mr. Martin suggested the applicant obtain counsel to make this happen.   He suggested the applicant ask for a continuance to talk to legal counsel.  The Board cannot grant an illegal variance.   The Board has to make findings on all three variances based on factors and he noted the applicant has to address those factors because they are not here.  He stated the applicant has not even made an attempt to address those factors.  Mr. Maniglia stated he was under the impression that he was short in square footage.  Mr. Martin stated no.  He indicated the applicant is essentially creating a second dwelling unit on a substandard lot and there can only be frontage on one place.  

Mr. Maniglia asked for a continuance to seek legal counsel to support the granting of a variance. Mr.  Martin indicated that MGL Chapter 40A, Section 10 outlines four statutory requirements that need to be address and this Board has to issue legal findings on information submitted.   He noted if the applicant doesn’t present the evidence, the Board can’t issue the findings.  Thus, the criteria is very specific – hardship, uniqueness of the land, shall not be detrimental to the character of the neighborhood, and shall not derrogate from the spirit and intent of the ordinance.  Those findings are usually given to the Board in writing.  

Mr. Secher asked how long the applicant has owned the house.  Mr. Maniglia replied one year and the carriage house came with it.  Mr. Martin stated the applicant is calling this a carriage house, but the pictures look more like a garage with a bathroom.  There was a loading dock there as well.  He stated it doesn’t appear from the pictures that he saw that it appears to have been a carriage house in the sense that it was previously used as a residential dwelling unit.  He noted the applicant is creating a new dwelling unit which will require multiple variances.  He added he was not passing judgement on the merits of the applicant’s case, but the Board has legal requirements that have to be met and it is up to the applicant to meet them.  Mr. Secher agreed.  

Ms. Scarsciotti stated the previous use complicates the answer.  If it had been a residential dwelling there would be a lot more likelyhood that the applicant could find a reason to return to that, but it was some sort of home business and that changes the nature of the use and needs to be further evaluated.

Mr. Sharkey agreed with the other members and suggested the applicant get counsel; one with experience re:  this matter.  Mr. Martin agreed and told the applicant this is a high hurdle to overcome.  

MOTION:	Mr. Secher moved to continue the public hearing for petition #39-09 – 41 Gibbs Avenue – Frank Maniglia to February 24, 2010.  Mr. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

B.	#40-09 – 30 West Boulevard – Thomas & Kathleen Callahan, c/o Lockwood Architects

Present before the Board:	William Lockwood, Lockwood Architects

Mr. Lockwood noted there is a typographical error in the ad, of which, does not diminish or take away in any way shape or form from any abutters right to make an appeal.  Notices were sent out to abutters properly by certified mail.  The Board acknowledged that a typographical error (2009 rather than 2010) was & said error was made part of the record.  

Mr. Lockwood explained the proposal is to demolish the existing structure and replace w/ a new dwelling essentially in the same footprint as shown on the site plan.  The new house will be within the zoning setbacks with the exception of the proposed screened-in front porch which is within the footprint of the existing front porch.  The shed shown will be located in a different location.  The setback for an accessory setback should be 5 feet.  There is crawl space and no cellar.

Present before the Board:  Martin Murphy, Abutter 

Mr. Murphy asked to look at the plan to ascertain the boundaries.  Discussion ensued.  

Mr. Sharkey is interested in the flood zone provisions and what the applicant will do underneath the building to ensure that it meets the criteria.  Mr. Lockwood explained there is a crawl space, a solid foundation located in the “A” zone, & the slab elevation will be about 13.  

Section 331 was read into the record by Mr. Martin concerning accessory structures.  

MOTION:	Mr. Secher moved to close the public hearing.  Ms. Scarsciotti seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	Mr. Secher moved to grant a Special Permit for petition #40-09 – 30 West Boulevard – Thomas & Kathleen Callahan w/ the finding that the relocated shed shall be grandfathered to the previous zoning ordinance setbacks of 5’ from any property line & further based on the plan dated 9-3-09 and the plan meets the requirements of Section 1334 Section I thru VI.  Mr. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

C.	#37-09 – 9 Beach Plum Lane – Sandra M. Stowe

Present before the Board:	Sandra Stowe

Mr. Martin asked if the applicant knew why she was before the Board.  Ms. Stowe stated because of the reasons she finds difficult to understand, the right of way is considered a road and for that reason it is non-conforming, also, because she needed to have a certain setback from the road, but, in fact, basically it is a path.  It’s a path and it’s a path access to the beach, so she does not consider it a road.  Ms. Scarsciotti indicated that it is a right of way that is owned by others/shared ownership right of way, thus it falls under the same definition almost as a road under zoning.  Mr. Martin clarified that in Massachusetts there are only (3) three “ways”; highways, private ways and public ways.  Ms. Stowe stated this is a private way and that is the reason she is here.  The neighbors and herself all agree that its perfectly ok for her to do.  The neighbors have all seen the plans and they have all signed off.  Discussion ensued. 

Mr. Martin stated the applicant is in an R-60 zoning district.  The required front setback for any structures in the R-60 district is 60’.  He explained to the applicant that there is no way to make that (60’) (referring to the plan submitted).  The zoning ordinance does allow to extend the existing footprint along or parallel to the property line at a distance no greater than the existing nonconformity.  The existing nonconformity is 12’5”.  He noted the applicant is asking to make that nonconformity 10’.  The bump-out shows 8.8 and 9.  If the (proposed) addition could move back, the applicant will be facing a special permit and not a variance.  

Ms. Stowe said that she was here because the Building Inspector gave her an automatic rejection and that he said she should come to the Board to appeal and they both though that because she is over 20’ from the next property line (since she owns part of the right of way and that she has the approval of all the people who own the right of way) that it should not be a problem because they do not have any trouble with it and she thought she was here for a variance.  

Mr. Martin explained the legal requirements for the Board to grant a special permit are significantly less stringent than what is required to grant a variance.  Looking at the plan and the dimensions on the plan, the applicant is asking for a variance.  He explained & made reference to the plan submitted, that, if the applicant extended the line one way it would be a special permit, however, because the applicant is bumping this (proposed addition) out, it has reduced or is creating a new non conformity by going from 12.5 to 10.0, which, requires a variance. A variance requires an applicant to meet a 4-part statutory test – hardship, that the granting of the variance would not be detrimental to the character of the neighborhood, and that the granting of the variance would not derrogate from the spirit and the intent of the ordinance.  He explained the applicant has to make a case for all of those criteria and then the Board will make a finding based on that case.  Ms. Stowe stated that she could do that within minutes.  She stated the intent of the ordinance is to allow people to have a proper access to a road so that it can be plowed, have emergency access, etc. She stated that is not the case here, so, she thinks the intent does not apply when you are dealing with an access or path to the beach.  The hardship issue is the fact that she has a septic site specific and is somewhat restricted and she also has a restriction that was built into this development where she cannot build 30’ from the area shown on the plan.  The reason she cannot put the proposed addition back further is because she has a picture window that was put in a couple of years ago and it would mean tearing that all out in order to do this (proposed addition).  

Mr. Martin indicated the hardship has to be related to the uniqueness of the land and not the circumstances of the owner, so, if you could move the proposed addition back 2’ then the Board will ---------.  If you cannot move the proposed addition back 2’, then you run a risk of possibly getting a denial.   

Ms. Stowe asked if the Board would consider the the coastal bank and flood zone because this makes changes somewhat restricted.  Discussion ensued.  

Mr. Martin stated that it appears that the proposed addition can certainly be moved back and the applicant would have to convince the Board that there is no way possible that she could remove to either reduce the proposed structure by this amount or move it back 2’.  Ms. Stowe stated to reduce the structure by 2’8” essentially taking 3’ off making it a 10’ structure because she cannot tear up the front of the house to take out the picture window and the Board is suggesting that because of the roadway statute that she is not able to do this.  She questioned if this is what is being suggested.  Mr. Martin stated no.  He again explained that the proposal is increasing the nonconformity and that is not allowed.  It’s allowed with a variance.  Again, Ms. Stowe felt that’s why she is here.  She stated by what she is doing and all her neighbors who have signed this: each one of her neighbors, who owns the right of way have suggested that she will do no harm.  They understand that everytime they come by the right of way the whole front of my house is exposed and its very hard when we don’t have any privacy on the front of the house so they are not objecting.   She owns part of the right of way.  Its’ not harming anyone; its not a road that the Fire Dept. has to get down or plows or any other reason for safety.  She has problems building anywhere else without tearing down a substantial part of her house.  She is restricted by her septic, by the 30’ setback, floodzone and she wants a sunroom.   She doesn’t want to put it on the wrong side of the house.

Mr. Martin questioned the picture window on the plans and discussed the options and location.  Ms. Stowe does not see the point of building a 10’ room when she has a 1200sf cottage.  Mr.  Martin indicated the applicant could still build a 13’ room, but it would just have to moved back 2’.  Ms. Stowe stated she would have to tear out the front of my house, that’s the problem.  She doesn’t feel any harm will be done.   She doesn’t see how this is harming her neighbors, there will be no public safety issues, it’s not harming the environment, and she doesn’t think the intent of the ordinance was to prevent this type of thing because her guess is the ordinance was intended for safety reasons.  She knows in many towns, they own several feet on each side of the road in order to put gas lines, electric and sewer lines and so forth.  In fact, most of these roads are not allowed to have vegetation within 2’ of the road so there is a clear view going around the curbs, although that’s not the case in Wareham.  She thinks the ordinance and the intent of the ordinance is purely safety therefore, this is a harmless thing.  Discussion ensued regarding the plans viewed by the Board.

NOTE:   Chairman Ken Ferreira arrived at this time.

Mr. Ferreira informed the applicant that he was not voting on this application, however, he was looking at the plans.  He indicated where Beach Plum Lane is and then there is the right of way to the beach.  It’s not part of the layout of Beach Plum Lane, so, he doesn’t think that’s the front yard.  

Mr.  Martin explained, for the purposes of measuring setbacks, the Board takes what the property bounds are.  Ms. Stowe may own to the middle of the road, but for the purposes of zoning, it goes to where your property bounds are.  This is about Section 1334 of the Zoning By Law which provides for a special permit.  There are certain criteria in there that says for this section to apply you have to meet this 6-part test.  One of those requirements is you cannot extend an existing non conformity.  Discussion ensued.  

Mr. Ferreira explained it is good that the neighbors do not have a problem with what the applicant is doing, but its not a public opinion poll as to whether we (the Board) grant the variance.  It’s really looking at the community and the rules in general.  

MOTION:	Mr. Secher moved to close the public hearing for petition #37-09 – 9 Beach Plum Lane – Sandra M. Stowe.  Mr. Sharkey seconded
.  
VOTE:  Unanimous (5-0-0)
MOTION:  Mr. Secher moved to grant a Variance for petition #37-09 – 9 Beach Plum Lane – Sandra M. Stowe with conditions.  Mr. Martin seconded for discussion.   

Mr. Ferreira stated he did not like the 8.8 on the plan shown, however, after reviewing the revised plan, before any of the rewrites of the Zoning By Laws and the new setbacks, for years and years it was 20’ front yards and 10’ side yards and 10’ sideyards were the rule in Wareham since 1950 to 1995.  So, given that it is a 10’, he would consider that more of a side yard than a front yard setback so the fact that the applicant is meeting 10’ he thinks is something that was the norm in Wareham for 50 years.  

Ms. Scarsciotti does not agree with the request.  It’s a two story addition.  It’s not just a sunroom, its two stories.  Ms. Stowe asked where this came into play. Ms. Scarsciotti answered on the application.  The application was read into the record.  Ms. Stowe stated that’s the old application.  All the material was given when she revised the plans and that’s why she is surprised the Board has the old ones.  It’s just a single story.  Discussion ensued.

Mr. Martin stated that a Motion has been made and seconded to grant with conditions.

ROLL CALL VOTE:

Mr. Secher – In favor
Ms. Scarsciotti – Opposed
Mr. Sharkey – Opposed
Mr. Martin – In favor
Mr. Engerman – Opposed

VOTE:  (2-3-0)
Ms. Scarsciotti, Mr. Sharkey, & Ms. Engerman opposed

Mr. Martin informed the applicant the motion did not pass.  Ms. Stowe asked what the next step is.

Mr. Martin suggested the applicant either use Ms. Scarsciotti’s suggestion to extend out to the ocean side to get the square footage or bring legal action against this Board by appealing the decision at Superior Court.  The applicant stated she understood the Board has to stick to the letter of the law, but she felt she had to say the Board did not stick with the spirit of the law.

D.	#38-09 – 12 Doherty Street – Bruce Dias

To be handled later in the meeting.
  
The meeting was turned over to Mr. Ferriera at this time by Mr. Martin.

NOTE:	The meeting continued w/ item IV.  Request for Plan Waivers or Other Administrative Issues – A.  Discussion w/ representatives re:  the 815 Main Street project update.

Mr. Ferreira stated for the record, Special Town Counsel, Jon Witten, has joined the Board for discussion of JK Scanlon’s 815 Main Street project formerly owned by Cornerstone. 

Present before the Board:	  Stephanie Keifer, Attorney from Freeman Law Group
			           Anissa Leon, JK Scanlon  

Mr. Ferreira explained the purpose of this meeting is to get more information about what has transpired, what’s expected to happen, & to be sure that all the “I”s have been dotted and the “t’s” have been crossed.  

Attorney Witten stated what had transpired two weeks ago is that he received an email from Brenda Sampson, ZBA Secretary suggesting that the project group wanted to break ground which started a series of emails back and forth between Mr. Ferreira and himself, including Dick Heaton.  The most important thing is the confirmation of the tax credit issuance.  It had been issued in the first phase and the property was being transferred from one entity to another.  If the applicant wants to move forward with construction, the Board needs to be sure the conditions of the Comprehensive Permit as approved, have been complied with.

Mr. Ferreira said one of his concerns ( he did receive confirmation from Hancock Associates) was if the appropriate reviews had been done.  This was a rather complicated septic on-site sanitary system being designed and he felt this was beyond the expertise of the local Board of Health.  Hancock Associates did review that and he feels a lot did not get done after the mediation, but he has  received information that it did get done and he is comfortable with this.  The other concern is any/all technical and legal details that have not been complied with and as Attorney Witten pointed out, the tax credit issue is ok.  The issue or concern is that the proper deposit money gets put on account for the proper inspections that need to be done & also a schedule of events so the Board can make appropriate steps to make sure that the consulting engineer meets with the project mgrs and const. superintendents on site to ensure when the detention/drainage facilities are built, they need to be inspected (the detention pond base or the bioretention areas).  All those areas need to be inspected.  They cannot just build them, backfill them, and then later hope that someone will inspect them.  It is the Board’s responsibility to ensure the Town’s consulting engineer does the reviews at the appropriate times and a schedule of events is determined along w/ who the players are.  

 Attorney Keifer stated, for the record and to clarify, this is not a public hearing and she is just here to provide the Board with information.  She proceeded to explain that JK Scanlon/JKS Village LLC is the entity that is created to develop this and the Board should have that information.  Town Counsel had a question in regard to the tax credits from DHCD re:  if they were accepted and all that has all been satisfied.  The propenent has lined up everything inas far as the timeline, however, last Monday (the 4th or 5th) JKS Village started to ask for the preconstruction meeting under the Comprehensive Permit that was granted in the 48 hours prior to construction beginning.  On the 8th they received confirmation and a preconstruction meeting was held on the 11th and from what she understands, there were representatives from zoning, the Water Dept., & Conservation.   She stated the purpose of that meeting was to answer any questions and how to go forward.  When she spoke with Andrew Baker today, he said that everything went fine and no-one raised any questions, so she is uncertain what it is that may not be resolved.  In terms of the payment of fees, they have been deposited.  An $8,000.00 check was submitted along with the other fees.  Mr. Ferreira asked if those fees were outstanding or were they new fees.  Ms. Leon stated she is not sure.  Mr. Ferreira stated he understood there were some outstanding fees due the Town from Cornerstone Properties because they had been in some financial difficulty and there were some fees that had not been paid.  Discussion ensued.  

Attorney Witten said the way the decision was originally written and even after the mediation, it had a series of conditions precedent to and one was to obtain a building permit, one was to start construction, & the third was pertaining to occupancy.  He feels what has to happen between the applicant, the Building Department and the Board, is the entities need to be comfortable w/ those conditions at least for the first two, prior to receipt of a building permit and prior to construction taking place.  For example, this is a 20+ page decision, but for example, does the Board have the Regulatory Agreement, the deed rider, monitoring agreement, marketing plan?  All of these are part of what was reached at settlement.  Those aren’t even big ones relative to construction, but the decision is painfully full of conditions precedent that you voted.

Attorney Keifer said she did go through this with a fine tooth comb to make certain that these were satisfied.  Mr. Ferreira said there is a Conservation Restriction for instance.  Attorney Keifer said actually, there is no Conservation Restriction, its not principal to this project.   Attorney Witten said some of it is standard ZBA language, but there was the requirement and the Board can always decide to change those requirements and make substantial changes.  The way the decision was settled in mediation and the Town spent quite a bit of money on mediation, was the decision and those are the condition precedents to construction and were suitable.  Mr. Ferriera had concerns about the plans, but he is now convinced that according to Hancock Associates, the concerns have been satisfied.   Discussion ensued.  

Mr. Ferriera briefly discussed Conservation Restrictions.   He thought this project stayed out of jurisdictional items of the Conservation Commission, but it’s not completely.  There are certain land areas that are to be left completely alone and in a natural vegetative state.  A Conservation Restriction is to ensure that it stays untouched, not because there is a Conservation Order of Conditions.  He feels there does have to be a Conservation Restriction to ensure protection.   It gives the Town an extra punch that suddenly construction vehicles won’t go into that area that you carefully crafted to say if we stay here, we are 100 feet away from the wetlands which is our land, but we are not going to touch anything.   This is to make sure the area shown on the plans is to be untouched & will stay untouched.  

Ms. Scarsciotti noted the DHCD letter point 5 site details at 10.33 units.  She asked has there been some change that includes the 2 parcels.   Originally there was 809 and 815 Main Street.  809 Main Street was not part of the Comprehensive Permit.  Attorney Keifer stated it was.  Ms. Scarsciotti said it was not.  It was taken out.  Originally, they were going to build a project with a church facility.  She has the deeds and the deeds are two, 815 and 809 and the Robbins property did not include the 809 site.  The total site that was developed for 815 Main Street was 8.9 acres.  Ms. Leon said she believed Mr. Fantoni had a contract with the 813 property (in the middle) and it all ended up falling apart.  A man in the audience stated he had that contract.  Ms. Scarsciotti said two pieces of property are involved, one is 815 main Street, which is the Robbins property. It is 8.9 acres and the other is a small ranch house that Mr. Fantoni and Mr. Hupp purchased from the owner which is a 2 acre site.  It’s a totally separate site and it was not going to be developed as part of this.  They had fencing and we had discussed a great deal of traffic plans and how the buses were going to come in and out and that little site was going to be developed seperately as a church owned and church run day care center (809 Main Street - $331,000). 

Present before the Board:	Jane Gleason, Architect

Ms. Gleason said that was the property between, referring to the plans, clarifying the 809, 815, 813 Main Street.  It indicates Mr. Stinson still owned his property.  Mr. Ferreira asked if there was any litigation pending of adverse possession.

Present before the Board:	Mr. Stinson

Mr. Stinson indicated he had a contract, but has no litigation pending now.  

Attorney Keifer stated in July 2008, Hancock had gone through a very thourough comprehensive review.  The Hancock review is the engineering, drainage analysis, and other items and it goes through conditions.  

Attorney Witten said there is the original permit and then the mediation permit. Mr. Ferreira indicated he is trying to accomplish conditions precedent to commencement of project (refer to pg 10 of 26 - 45A).  Some of these may have been completed.  Attorney Keifer believes they all have been adhered to.  Mr. Ferreira said this is what the Board needs to determine.   It is a difficult forum to go through this list.  Attorney Witten stated with respect to the applicant, it is not the Board’s burden to go through (in an evening meeting) whether or not the mediated agreement has been complied with.  This was not the decision of the Board of Appeals.  This was an agreement by the developer signed by the HAC.  It was an agreement without further litigation that this would be the decision.  He stated his advice to the Board is that the Board could go through the conditions or the applicant could provide the Board with a response to each of the conditions, those of which have been complied with, and those that haven’t and provide the documentation.  For example, he is not aware whether the Board has the deed rider, the monitoring agreement, or the regulatory agreement.  Mr. Ferreira stated the Board has what has been provided in the last few days, with confirmation by the secretary via email, inclusive of the DHCD letter.  Attorney Keifer said that condition 35 is being incorporated into the final plans which were already reviewed and approved.  Mr. Ferreira indicated there was no question and there are some things that the Board is comfortable with, for instance, B.  He is comforatable with B & with F (final landscaping approved).  He questioned if there is an operation maintenance plan provided & if a stormwater pollution prevention plan has been filed.  Attorney Keifer stated yes.

Mr. Ferreira indicated he is looking for engineering and construction because it is precendent to commencement of the project.  Attorney Witten is looking to monitoring agreements, selection of the monitoring agent, the deed rider, etc.  He stated none of these are inconsistent with every decision the Board has written as long as he has been working with the Board (40B).   There are several areas that should be reviewed by either himself or Town Counsel.  He feels the easiest approach is the applicant provide the Board and Counsel and the Building Dept. with their response to the decision.   If they are completed, then we take that off the list and move forward.  They are standard conditions precedent and he feels this all arose because the Board and the Town has been asked to allow the construction to commence or if the construction cannot commence until these conditions have been met.   He feels that leads to the more focal issue which is the Board needs to make a decision at some point re:   the transfer of the permit.  He spoke with Attorney Quirk about this and she also has the opinion, the same as mine.  It’s the Board’s decision whether the conveyance of the interest from one entity to another (even though the original entity is holding onto a small piece) whether that constitutes a change that the decision contemplated which is no transfer of the  permit without prior approval from the Board.  Attorney Keifer addressed condition 45C.   The Board decided at the time, “it is understood and approved by the Board that the Comp. Permit shall be assigned by the applicant to a new limited liability company in which the applicant will be a member of”…  Once the applicant was provided with that information, it is somewhat disingenuous to reopen that issue.  It is there, it is done, it has been resolved and likewise in terms of the conditions, those are the various points I think that during the preconstruction meetings, if there were any issues, so construction should proceed in a timely and efficient manner.  She expressed confusion why no issues were raised when this meeting was requested and then when the meeting actually transpired on the 11th.   Mr. Ferreria stated that Ms. Sampson in our office actually is the one who called the meeting and get everybody together.  Attorney Keifer stated she had contacted Ms. Sampson and she was going to help me contact everyone.   That’s condition 53 and that’s fine that this has taken place already.  Condition 53 (pg 16 of 26) states “at least 48 hours prior to initial sitework, a pre-construction meeting shall be held with the applicant, its contractor, representative of the ZBA, its consulting engineer, rep of town depts.,etc. having an interest in the plan having familiarization with the project”.   The next condition, condition 54 says name and email addresses, business telephone numbers of every individual responsible, etc.  Thus, that’s done.  She is not saying that the Board has not done some of the things in here.   40B is a very strange animal.   You can’t at one time say we don’t want to reopen these issues with the Board because that’s all been taken care of and then on the other hand say later on when something goes wrong, this is the Board that issued the permit so we need to know what is going on.  We met in December and because of the Christmas holidays, we didn’t meet as often, but if this transfer took place in November, we would have happily met in December to try and get some of these issues resolved.  At that time, perhaps representatives could have been chosen so that this meeting to be held 48 hours in advance would have the right people there.  He doesn’t think the Board’s consulting engineer was there.  He doesn’t know that he was invited to attend.   He wants to make sure they set up an inspection schedule.  We as a Board have to worry that everything is going right because when it goes wrong, we are the ones the Town’s agencies is going to look to and say this is 40B.  He wants to make sure these things are all being done and in all fairness we had a similar meeting in December that we all came in for on a special night with another 40B applicant.   The Board is not the stumbling block.   He has no interest in stopping a good 40B project.  If it’s a good 40B project and it helps the Town reach its goal and it’s a good contractor and everything is moving nicely, it is what it is and we will go forward with it.  We mediated from 88 units to 49 units and I am happy with that, that’s how it worked out, no problem.  But, that contractor came in with a stack of papers, we had a stack of paperwork to make sure all of the conditions precedent and related to the project were handed in.  The applicant for that project paid for our consultant, H & H Associates to sit down with that applicant and their counsel to go through everything.  With all due respect, it doesn’t seem like we know for sure all of these things are ready and he just wants to see them.   He doesn’t want to call a public hearing to reopen the matter to say that there is a modification because of this permit, maybe this permit isn’t an issue because 45C allows it.   Attorney Freeman told him that several times.  He doesn’t think the Board thought the original entity was going to keep a little 1 percent interest.   He thought it was just so they could establish new entities of themselves.  This is clearly a whole new organization.  But, he is a minor member of it, but, if it meets the criteria, the applicant will be a member of the newly created development organization under this program and no further approval of the Board is required.  The reason why we review these things, or a transfer of permit is to make sure it’s a substantial company and we know that JK Scanlon is a substantial company so it probably meets the criteria.  

Mr. Ferreira asked if there is a monitoring agreement in place.  Attorney Keifer said all the agreements were forwarded.  Mr.  Ferreira said he did not think there was anything new and maybe these documents were submitted.  He spoke re:  another 40B project where documents were said to have been submitted, but a month later the applicant found they did not submit all documentation.  Attorney Witten asked if these documents were recorded.  It was stated if they were, they should be available and provided to the Board by the applicant and again, the theory was the Board would review, mark the plan, deed rider, regulatory and monitoring agreement before the applicant because the Board had the desire and had the right to review the documents.  The Board wanted a  provision, for example, that CHAPA would not be the monitoring agent.  It was stated that no-one has any idea who the monitoring agent is so the Board retains the right which was to stipulate on the agreement to read those documents before they come before them and that is the Board’s opportunity to make sure they are current.

Mr. Ferreira indicated there is another document, the Management Document of the project; a copy of which shall be on file with the Wareham Planning Department and the Clerk’s office.  Attorney Keifer asked which condition this was and Mr. Ferriera indicated 39.  

Mr.  Ferreira stated the Board specifically disapproved CHAPA and South Shore Housing.  He asked who JK Scanlon will use. so who are you going to use? Ms. Scarsciotti  asked who was selected if it has already been recorded.  

Mr. Ferreira stated we as a Board have to take a vote on the permit transfer.  Attorney Keifer said the permit has been issued, but there is no vote to be taken on the permit.  Mr. Ferreira clarified that a vote needs to be taken on the transfer.  The Board accepts the 45C as being legal.  Attorney Keifer stated again that the permit is clear.   It has already been approved.  Attorney Witten commented when the Board was mediating 45C, the understanding that he had and he suspects the Board had and he thinks the mediator had was it was suggested that it was going to be transferred to another LLC.   The question before the Board is whether Cornerstone’s holding is less than 1 percent , so nominal as to it being in defeat of being what the intent of 45C was, if the Board feels that transferring from Cornerstone to Scanlon in and of itself is good enough, then the Board could vote that as a minor modification and not have a public hearing.  This could be done correctly with the paperwork.  If the Board concludes the transfer isn’t the intent of what 45C was, without the written consent of the Board, this permit is nontransferable and nonassignable, then the Board should hold a hearing and determine whether or not the Board’s proforma review that was done previous to the project is still valid today.   it’s the transfer of the interest that’s the bottom line on the proforma.  If there is return of money to the Town, then the Town is entitled to get that money.  Attorney Keifer feels that’s going far afield because if the profit exceeds the 20 percent, of course its going to be -----.   Attorney Witten stated it starts with the basis that the Board review the proforma and that’s why the Board has rendered the decision and reached the decision and hired Dick Heaton to do that analysis. There is a basis for the original calculation and the Board is entitled to the profit based on that original calculation.  Attorney Keifer disagreed.  Attorney Witten stated if it’s transferred to a new entity then the game will be that the new entity will start with a new basis.  

Mr. Martin said that 760, 54 where it talks about (section 12) transfer of permits, transfer of permits shall not by itself constitute a substantial change.  Attorney Witten indicated that the Board is outside the 760, 56 by doing the mediation in itself.  This is settled.  There is an order and a stipulation from the HAC, so, you have the right to rely on the terms.

Mr. Martin asked if the applicant’s attorney agreed with that.  Attorney Keifer indicated no, they do not agree with that.  Attorney Witten said Counsel is agreeing that the entire mediated stipulation is off the table and you can’t have it both ways.  Attorney Keifer said stipulation does not say we are going to take the State Regulations and throw them out the window.  Attorney Witten indicated  the stipulation speaks to the transfer of the interest and that decision is also approved as an order of the HAC.  The decision doesn’t say one must have a majority interest nor does it say one cannot have a minority interest.  The decision is clear.

Mr. Ferreira stated the next decision the Board will write will say the applicant must be a majority member.   This is why these documents get so big because everytime something slips by we say…..oops we got to write a new condition to make sure that one doesn’t slip by the cracks again.  Attorney Witten said he wouldn’t say that it slipped by, if it’s diminished and irrelevant, then the Board should let it go, but he feels the Board shouldn’t feel as if it should be “snookered” by a transfer that is in fact a transfer.  If the nominal interest retained by Cornerstone is less than a tangible interest, then it is a transfer to the new “permittee” and the Board has the right to approve that for the very reasons as the Chairman articulated.

Attorney Keifer stated Attorney Witten has no authority. Atty Witten said that there is as much authority for that position as anything Attorney Keifer has said tonight.  The Board has the right to inquire to make sure the receipient of the permit is a qualified entity.  If you have reached that conclusion and you can reach that conclusion with the right documentation, then you modify the permit as an insubstantial change.  You need to have the paperwork to follow where the project is going to go, because five years from now the question is going to be “I thought Cornerstone was the recipient” so at some point, you do need to change it.  The issue is whether it is a substantial change.  The regulations deem any transfer of interest as a substantial change.  Mr. Martin said he read some documents yesterday and to him the language was clear and there is no determination of what interest Cornerstone would have.  Then when he read section 760, 54, it seemed to him that it would be a minor change and that’s what he feels Attorney Keifer is referring to.  Atty Witten said the Board has to make that decision because the paperwork needs to be updated.  

Mr. Ferriera clarified the Board has to determine that it is insubstantial or a minor modification & it does not require a public hearing.  Mr. Martin said based on the language in the permit, there has to be evidence to back that up.  If it’s a minor modification then he feels it’s relatively easy.  Attorney Witten questioned what is the retaining interest of the original applicant.  Mr. Martin asked if it matters.  Attorney Witten stated it matters if you go back to the original proforma and to the number crunching that was done.  The reason it matters in the 40B world is because density is based on purchase price, construction cost, etc.  If now, all those numbers are off the table, then why did the Board settle at 49, maybe it should have been 52.  That’s when it becomes relevant.  Attorney Keifer stated again this is not relevan.  The language on the permit says the Board acknowledges and approves……it’s not just acknowledges, it’s acknowledges and approves, and you have to disregard the plain language of that.  Secondly, any entity, they didn’t even have an ownership ---- under the regulations it would be deemed an insubstantial change.  We provided this Board with documentation that DHCD has issued re:   final approval on this project to JKS Village, LLC.   She thinks this Board would be going in dangerous unchartered water if it tried to take a position other than the fact that it has expressly approved this and further, the whole discussion about the proforma sets the ground work, that’s not correct.   The proforma is done based on projections and numbers always change, based on when something is issued and when its built, things arise.  What’s relevant over the numbers, if anyone is concerned about the numbers and possibility, is what was required at the end of the day is still cost certification.  That’s where you get the actual numbers, the projected numbers for any project.  

Mr. Ferreira stated assuming there is a proforma by the original developer who purchases the property from someone and it is stated; here is my purchase price and here is my projected costs, hard costs and soft costs and I have to do x amount of units to make this amount of money and I am going to make 16 percent, etc.  Now suddenly you sold the permit, there is an extra amount of money, there could be a million dollars, there could be 2 million dollars or it could be whatever, suddenly the profit margin shrinks and the proforma changes drastically.  It’s not just because there was inflated prices over the cost of the cabinets or inflated prices because sand cost more money for the septic system.  This is a chunk of money that comes right off the top and changes the whole budget.    Attorney Keifer disagreed because the budget is what the costs are and what the profits were from selling the individual lots, units, etc.  Mr.  Martin stated the new applicant or the new owner may have a smaller margin, but there is no guarantee that they make a profit if they have entered into a business agreement where that the cost of assuming this permit causes him……Mr. Ferreira stated part of the Board’s review is to ensure it will be profitable and will actually go to completion and will not go belly up.  Mr. Martin indicated he heard that, but there is no way the Board can guarantee this.  Attorney Keifer said that’s the role of DHCD.  Discussion ensued.  

Attorney Witten explained, for example, the sale from A to B constitutes a sale.  There is profit and that profit is being realized by some developers some.  Attorney Keifer is well aware of it where the profit has been captured twice and the Inspector General has that number.  The Board has the right to protect itself against that.   It’s the law.  It’s called fraud and the Board has the right to investigate to be sure that in any 40B it’s reviewing, that doesn’t happen.  Mr. Martin said that would take place at the end of the project.  Attorney Witten said no.  If you wait until the end of the project then the Board has been told one set of numbers on the proforma and then a different set of numbers after the project has been built.   The proforma is what led the Board to being forced into the uneconomic part at the original hearing.  The review that is done by DHCD, the post construction audit is based on the actual numbers of the project, not what the Board was led to believe was required in this case it was 88 units.  In other cases it was triple the density that was actually built so for purposes of whether this project should move forward its really to check this.  The Board does have the right and Attorney Keifer can disagree with me to make sure that the transfer that is taking place is to an eligible entity and that the documentation of the sale price from Cornerstone to Scanlon is reflected in the final audit, that is not disputable or a choice.  Mr. Martin agreed and stated the matter at hand needs to be addressed to move in one direction or another & someone needs to review the conditions outlined in the permit.  The Planning Dept. where this kind of work is normally done by professional staff has been lacking in Wareham for a considerable period of time.  That’s where this kind of work is supposed to be done and since we don’t have anybody up there to take care of this, we have to rely on consulting engineers.  He suggested the applicant contact the Town’s  consulting engineer.  Mr. Ferreira stated in this case, because if the engineering has been reviewed, he would agree with Attorney Keifer that there is a letter from Hancock and an email was received today from Joe Peznola that the engineering details, the architectural details have met his concerns.  Now we need a technical consultant like Dick Heaton to go through these things and pay for it out of the 53G under a deposit that is made to ensure that all of these conditions have been met.   Once he gets that letter he will be satisfied.  We may still bounce around this 45C, but Attorney Keifer makes a very convincing argument; it is what it says.  He doesn’t know what the conditions of the limited liability company say.  He questioned if minor stockholders have the right to acquire or do they not have rights if you own less than 1 percent.   Maybe there are no rights and a little profit is made, but you can’t stop the project or call for a stockholder meeting.   This is getting beyond this.  

Mr. Ferreira expressed concern re:   the conditions because of the time & effort spent to put this together.   When the originals are done and then the mediated ones get mediated again and people pay for this, there are all these pages and we are so proud of ourselves to say we did a good job, we have everything covered and then all of a sudden it’s like, oh by the way the backhoe is coming in.  He feels the applicants need to agree to go through these things with a consultant of the Board’s choice so there can be assurance that all the items have been met.  He discussed the problem w/ the Town not having a planner to go through this process.  He noted this is not a public hearing.

Mr. Ferreira asked if there are any Town represenatives that would like to comment on this matter.

Present before the Board:	Mark Andrews, Town Administrator  

Mr. Andrews introduced himself and informed the Board that the Town should be afforded the ability to understand what is going to happen.  He would like some proactive outreach so the neighbors understand what exactly is going to happen.  We have talked about this, knocking on some doors, and he would be happy to do this with the applicants.   He thinks it’s important to do.  The neighbors are taxpayers and they deserve the ability to have an interaction.  What he has learned it is important to be proactive, you come to the table and say, listen heres the list of contacts, he/she, the Town Administrator, if something goes wrong in the middle of the night and you get a phone call that the kids, someone got onto the site and got hurt or something, you want to be able to respond. There is a lot to be done to meet the needs of the Town as it relates to making sure that everybody goes forward in the same direction.  

Attorney Keifer stated she feels there may have been some miscommunication.  JKS Village did seek to adhere to the terms and doesn’t think anyone is accusing them of not adhering to the terms.  To the extent the Town Administrator said re:  the Town should have been included, she feels that is what JK Scanlon did was they contacted, what they deemed to be, the authorities to help set up a meeting.  If there was an oversight and someone was not invited, it was surely just an oversight.  There was an effort made to do as required.  She noted the decision called for a 48-hour pre-construction meeting and that was held.   Chairman Ferreira explained that was just before construction and all the other items haven’t been done yet either.  Atty Keifer agreed.

Chairman Ferreira asked Attorney Keifer if the $20,000.00 advance deposit has been made;  Condition 71.  Mr. Andrews stated it clearly states in 53 that notification is needed at least 48 hours prior to any initial site work.  There is already heavy equipment at the site today.  Why would the equipment be on site before we had the meeting.  Attorney Keifer stated the meeting was held on the 11th.  Mr. Andrews stated a preconstruction meeting shall be held with the applicant, the applicant’s contractor, a representative of the Board of Appeals, the consulting Engineer and any other Town departments having interest.  He doesn’t know of any other Town department that has more interest than the Town Administrator’s office.  Thus, he should have been at the previous meeting. He should have been included and a certified letter sent re:  said meeting.  Equipment should not have been out there today.  Attorney Keifer stated the Town was asked to help organize the meeting.  There were no issues identified during that meeting.  Mr. Andrews stated he would give an organizational chart so the for the next time they meet. 

Mr. Andrews doesn’t feel the meeting being spoken about was a pre- construction meeting.  It was an informational meeting for documents and information to be conveyed and exchanged.  He doesn’t feel the work is in the spirit of section 53 for the purpose of familiarization of the project, the conditions of approval, and sequential construction of the project as well as timetables.  The timetable has changed.  Attorney Keifer informed Mr. Andrews this was brought up at the meeting.   They will adhere to what is stated & they don’t intend or plan to work all weekend.  

Brief discussion ensued re:  the new schedule.  Attorney Keifer stated there will be multiple contractors & superintendents working there to make sure everything is going as planned.  Mr. Andrews asked if this was only discussed with the Planning office and did they understand it.  He asked if the Inspector understood it because inspectors have to be out there and asked in advance.  The Conservation Agent has been asked to go out tomorrow morning to inspect haybales.  He asked if the permit was signed off on.  He explained the meeting happens first and then you request the Conservation Agent.  He will not assign the agent to inspect the particular project until all the signoffs are done.  He feels the residents of that area should understand the consequences of what is being suggested and the Town should have the ability to understand fully what is commencing.  So, once again, he stated he has serious reservations as to the spirit and intent of that particular section.  He wants to see a real pre-construction meeting happen with the appropriate people involved & the right questions asked.  He questioned the timeframe of eight months and if this means 20 truckloads vs. 12 a day.  He asked about the residents & feels they deserve the right to have representation and the process has to be complete.  Attorney Keifer stated she understands and apologized.  She was under the impression that they were set to go.  If the Board is aware of any other departments or committees that were at that meeting and raised issues, she asked to be informed. 

Mr. Martin gave his opinion of the meeting that was held.  There really was not anyone in charge from the Town.  What Mr. Andrews is trying to convey is some of these problems could be avoided by going through his office and he can disseminate. Discussion ensued.  

Mr. Andrews added it was indicated to him that when Mr. Dishman went to the sight today, he was told he had permits in hand (15), but they are not even typed up yet.  He has a receipt for a permit that is being evaluated and he reiterated the previous discussion.  He stated it shouldn’t be like this.  The Town shouldn’t be chasing after this stuff.  

Chairman Ferreira said that is his point.  The last project the Board reviewed of this nature, everything was comprehensivelly reviewed, signed off on, everything was there, we looked at some final drawings, we were told what was going on, told of a phasing change, etc.  We have taken about an hour and a half and really haven’t accomplished anything.  He suggested both entities start again.

Attorney Witten stated the decision on remand/ the mediated decision has 20 pages of condition precedents.  The applicant should go through the decision, send a memo to him, a copy to the Town Administrator, and the Board explaining how they have complied with those 20 pages of conditions and then the Board will have a record.  The Board on its own, after consultation with the Town Administrator and others in Town, can determine whether they have been met to satisfaction (of the Board).  he will provide a memo and Counsel with his opinion and that is how these projects move forward.  This will never move forward in this kind of forum unless the applicant puts forward responses to the conditions precedent.  Attorney Keifer feels the suggestion made is effectively trying to add an additional condition onto the permit that doesn’t exist.  To take a further step & go through Town Hall, that’s not in the permit.  Attorney Witten stated it is in the decision.   He stated there is a role for legal review of the legal documents.  That’s not an extra step.  It’s been in here since we this case was mediated a year and a half ago.  Attorney Keifer stated she can provide the Board w/ a memo & copies of the documents that go along w/ the memo.  Chairman Ferreira stated when the Board receives memo and information, the Board can meet w/ the representatives again so everyone can get off on the right foot.  The Board now knows the owners are ready for construction & there is a need to go through all the conditions.  There are precendent setting matters that need to be done first, prior to construction & prior to a building permit being issued.  He doesn’t think it’s overburdening or adding anything to the permit to add that the Board is asking that the mediated settlement documents be provided to the Board.  The Board just does not have them.  

Chairman Ferreira noted the need to get a consultant on board.  The Town doesn’t have any money to pay the consulting engineer.   The Town needs to have the money on deposit by the owner.  Attorney Keifer stated the amount had been reduced to $16,000.00; $8,000.00 had been partially paid previously and then on December 15th the other $8,000.00 was paid.  

Present before the Board:	Selectman John Cronan

Selectman Cronan introduced himself and informed the Board that Kopelman & Paige have also been called.   There is a concern re:  the amount of complaints relative to the transfer and the fact that the project started without the proper get go as well as the Planning Office not having the regulatory agreement and they did not have it so.  He doesn’t think the conditions have been satisfied. Counsel is confused as to whether the monitoring agreement was in place.  Selectmen are very much in favor of this project taking off, but it’s taking off on the wrong foot, plain and simple.  

Chairman Ferreira stated he thinks the representatives should take everything that has been said here tonight, discuss how they want to handle it, move forward again, get these things in place, etc.   

A recess was called by the Chairman at this time.  The Board discussed the beginning of the meeting with the Chairman.
NOTE:	The meeting went back to Item V.  Public Hearings – D.  #38-09 -12 Doherty Street – Bruce Dias.

The applicant never showed up.  The hearing was advertised & the Board has  65 days to open the public hearing, he wants to build an addition.  The public hearing ad was read into the record.  Chairman Ferreira stated the public hearing was opened.  He asked that the record reflect it is now 9:50 P.M. and there is no applicant.  

MOTION:	Mr. Martin moved to continue the hearing for petition #38-09 – 12 Doherty Street – Bruce Dias to January 27, 2010.  Mr. Secher seconded.

VOTE:  Unanimous (5-0-0)

VI.	CONTINUED PUBLIC HEARINGS

A.	#35-09 – 83 Sandwich Road – People Helping People, c/o Terry Smith.
(DONE)

VII.	ANY OTHER BUSINESS

A.	53G – Release of Funds – Gatehouse Group

Brief discussion ensued re:  authorizing the release of funds for the Gatehouse Group.  Mr. Heaton has already spoken to Gatehouse.  There are two invoices.  One from H&H Associates & one to Hancock Associates for the Union Pond project.

MOTION:	Mr. Martin moved the Board authorize payment of invoices to H&H Associates & Hancock Associates for consulting work done in conjunction w/ the review of final plans for Union Pond c/o the Gatehouse Group as soon as the money is submitted to the 53G account for this project.  Mr. Secher seconded.

VOTE:  Unanimous (5-0-0)

B.	Habitat For Humanity Home

Ms. Scarsciotti asked if anyone has received complaints re: the Habitat for Humanity house on Minot Avenue where the transformer is.  There is a huge transformer right in the back yard.  The people shouldn’t be or live next to a transformer like that.  Mr. Martin stated he knows the lot & the transformer had been mentioned and how huge it was.  Mr. Sharkey stated he knew it was a bad location, but the Board did not know what it was going to look like.  Ms. Scarsciotti stated she has had more people complaining about that house and asking what is the matter with the Board.

VIII.	ADJOURNMENT

MOTION:	A motion was made & seconded to adjourn the meeting at 10:00 P.M.

VOTE:  Unanimous (5-0-0)

Respectfully submitted,

_____________________________
Brenda Sampson, Transcriptionist

Date signed:  ______________________

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

Date copy sent to Town Clerk:  ________________________