MINUTES OF MEETING OF WAREHAM ZONING BOARD OF APPEALS

Date of Meeting:  May 26, 2010

I.	CALL MEETING TO ORDER

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

II.	ROLL CALL

Members Present:	Ken Ferreira (Arrived at 7:45 P.M.)
			Mike Martin, Acting Chairman
			Mary Scarsciotti, Clerk
			Richard Secher
			David Sharkey
			Wilma Engerman, Associate Member

III.	PRELIMINARY BUSINESS

A.	Minutes to be approved from previous meetings:  September 9, 2009, September 23, 2009, October 14, 2009, & May 12, 2010.

MOTION:	A motion was made & seconded to approve the meeting minutes of September 9, 2009.

VOTE:  Unanimous (5-0-0)

MOTION:	A motion was made & seconded to approve the meeting minutes of September 23, 2009.

VOTE:  Unanimous (5-0-0)

MOTION:	A motion was made & seconded to approve the meeting minutes of October 14, 2009.

VOTE:  Unanimous (5-0-0)

MOTION:	A motion was made & seconded to approve the meeting minutes of May 12, 2010.

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

B.	Discussion:  Signs on Cranberry Highway – Town Sign Bylaws vs. State.

This discussion was tabled until later in the meeting.

IV.	REQUEST FOR PLAN WAIVERS OR OTHER ADMINISTRATIVE ISSUES

A.	Request for reconsideration on petition #14-07 – 86 Wareham Lake Shores Drive, c/o Judy Yetman/Judy Herron.

This request was tabled pending the arrival of the individual representing the request.

V.	PUBLIC HEARINGS

A.	#04-10 – John & Karin Van Der Wal – 29 Oak Street

The public hearing notice was read into the record.

Present before the Board:	John Van Der Wal
				Karin Van Der Wal
				Gary D. Brackins, Gary D. Brackins & Associates

Mr. Martin indicated for the record that there are two letters of support for this project included in the file.  

Mr. Martin noted that the existing cottage on the property is a pre-existing non-conforming structure of which the petitioner is increasing the setbacks from the original setbacks.  He noted that this is not a request for a Variance, but for a Special Permit.

Mr. Brackins informed the Board that he can easily move the structure w/in all the setbacks, but then they will be blocking all the abutters which is not the intent.

Mr. Martin explained the difference between a Variance and a Special Permit.  Discussion ensued.

Present before the Board:	A resident at 14 Oak Street

The resident asked that the Board place a condition on landscaping as to not block the resident’s view.

Ms. Scarsciotti asked if the flood maps were the most recent & if this project is impacted by the FEMA regulations based on the dollar value of the renovation as it relates to the property.  It was stated this property is not in a special flood hazard zone.  Ms. Scarsciotti feels the property is close to it.

Ms. Engerman asked if this will be a one-story or two-story structure.  Mr. Van Der Wal stated it will be a two-story structure.  Ms. Engerman asked if this project has gone before the Conservation Commission.  The answer was no.  Ms. Engerman asked if the petitioner has flood insurance and the answer was no.

Mr. Martin asked the Board if this petition meets the definition of a Special Permit, Section 1335-II.  Ms. Scarsciotti stated the petitioner has no argument w/ the idea that this is moving toward more conformity & improving setbacks.  She feels this project would be the definition of a Special Permit vs. a Variance.  Mr. Sharkey feels it is still a non-conforming structure & if a new structure is to be built, then it should be put in conformity w/ existing rules.  Ms. Engerman feels the setbacks should be met if the house is being torn down.  She feels the petitioner should be moving towards the correct setbacks.  Mr. Secher feels the project is making the non-conformity less.

Mr. Martin spoke re:  Section 1334, alteration, reconstruction, extension or structural changes to pre-existing non-conforming single or two family residential structures.  Under Section 1335, the procedure for making that decision as provided (six part test) the Board finds, which means there has to be a decision, that there is no substantial increase in the non-conforming nature of said structure.  He discussed guidelines that should apply to this petition, for example, side setback on the north side, minimum lot size, frontage, front setback, etc.  He noted the existing non-conformities under the current Bylaw.  The question for the Board is if the project will be substantially increasing the non-conforming nature of the existing non-conformities.  If the Board determines that the proposal will not substantially increase the non-conforming nature of the structure or lot, the petitioner will also be required to show that the change will not be more substantially detrimental to the existing structure or uses to the neighborhood.

It was stated that two abutters are concerned that if built, the extension of the new structure to the south will block the abutters’ views.  Mr. Martin noted that in State law or the courts, there is no protection of views & vistas, but under #6 in the Bylaw, it does give some protection.

Mr. Martin stated there is no landscaping on plan that the Board can make a judgment on.  The petitioner explained the intent.  

Mr. Martin explained the benefit of seeking legal advice & coming back to the Board due to the nature of the proposed project.  Discussion ensued.

MOTION:	A motion was made & seconded to continue the public hearing for petition #04-10 – John & Karin Van Der Wal – 29 Oak Street to June 23, 2010.

VOTE:  Unanimous (5-0-0)

B.	#05-10 – David Fisher – 166 Sandwich Road

The public hearing notice was read into the record.

Present before the Board:	David Fisher

The Board reviewed the packet of information submitted.  Mr. Martin indicated there was no plan prepared by a surveyor or an engineers stamp & the petitioner may have to come back to the Board w/ an actual plan that can be recorded at the Registry of Deeds & the Board cannot approve a hand-drawn sketch.  

Mr. Fisher stated last year he installed a patio door w/ a permit & this year he wishes to install a deck.  Mr. Martin asked how far the deck would be from the property line when complete.  Mr. Fisher stated approx. 5’.0.  Ms. Scarsciotti doesn’t feel the petitioner needs to be before this Board.  Mr. Martin stated the petitioner needs a Special Permit because it is still non-conforming & the side setback is 10’.0.  The deck is coming in 1’.0 & going back 10’.0.  The deck will be 16’.0.  The stairs are 4’.0 & then a bulkhead.  The deck overall will be 16’.0 x 10’.0.  The rear setback will be 31’.0.  The side will be 6’.0.  Exhibit A.

Ms. Engerman asked if the petitioner was in a flood plain zone.  Discussion ensued.

Ms. Engerman asked if the petitioner planned to go before the Conservation Commission.  Mr. Fisher stated he spoke w/ the Conservation Agent & the Agent will go to his property for a site visit.

Mr. Martin again stated the petitioner needs a Special Permit under section 1335.  It is a deduction/diminishing of the non-conformity on the side setback & there does not appear to be any evidence this will be substantially more detrimental to the neighborhood.

MOTION:	A motion was made & seconded to close the public hearing for petition #05-10 – David Fisher – 166 Sandwich Road.

VOTE:  Unanimous (5-0-0)

MOTION:	A motion was made & seconded to grant a Special Permit for petition #05-10 – David Fisher – 166 Sandwich Road w/ to construct a deck w/ the following conditions:

•	Construct a 10x16 deck as shown on Exhibit A in accordance w/ Section 1335 and with no roof.

Discussion ensued.  Mr. Secher & Ms. Engerman would like to see a plan for the deck.  Ms. Scarsciotti expressed concern re:  the cost to someone just trying to improve his house for $500.00 & w/ a required plan it will cost $700.00.

Mr. Martin would like to see a plan.  The plan should be 8x11 & it should show that the structure will be built in accordance w/ the requirements.  Any local engineer can do this.

Ms. Engerman emphasized the condition that no roof be put on the deck.  

Mr. Fisher understands there is a 20-day appeal period & this period starts when the Town Clerk stamps the decision.  Ms. Scarsciotti indicated she will write a note to the Zoning secretary asking to expedite the process for the petitioner.

•	An 8x11 as-built plan to be submitted upon completion of construction.

VOTE:  Unanimous (5-0-0)

NOTE:	Mr. Ferreira arrived at this time.

The meeting proceeded w/ item III.  Preliminary Business – B.  Discussion:  Signs on  Cranberry Highway.

Mr. Ferreira explained to the Board that the ZBA & the Planning Board met for a whole winter previously to place an article in the Warrant for a sign ordinance.  It protected people’s grandfathering rights, especially anyone w/ an existing sign would be allowed to keep what they had, but the minute the property changes hands & there was a new use or the property went into disuse/abandoned, etc., the new owner would have to bring the sign into compliance; the size of the sign, illumination, lighting, flashing, etc.  Every sign that was permitted would get a plaque that would be affixed to the sign & they would have to go to the Building Inspector & get a permit number & they could be tracked.  

Mr. Ferreira stated the Cranberry Highway Association came out in force saying this could not be done to them & they would come up w/ something else.

Present before the Board:	Alan Slavin

Mr. Slavin noted a meeting held previously w/ Mass Highway.

Discussion ensued re:  existing signage & setbacks, for example, CVS, Home Depot, etc.

NOTE:	The tape stopped at this time then restarted at this point in the discussion.

Mr. Martin asked that the Board contact the new Building Commissioner & advise him relative to signs on Cranberry Highway.  He stated the signs ought to comply w/ the current zoning or come before the Board of Appeals.  It should also be explained to the Building Commissioner that grandfathering on property that they do not own is not an issue.  There is no grandfathering on property you do not own.  New signs that have to be moved would have to comply.  Mr. Martin & Mr. Ferreira requested that the Zoning Office draft a letter delegating this to the Planning Board.

Discussion ensued re:  Cranberry Highway.  Mr. Ferreira would think the plan they designed shows this already.  Mr. Martin stated the plans do.  Discussion ensued re:  the New Bedford Rte. 18 reconstruction & the Whale Oil Refinery building.

VI.	NEW BUSINESS/DISCUSSION

A.	Discussion:  40B Audit/Legal invoices.

Discussion ensued.  Mr. Ferreira expressed concern re:  the payment of invoices to Attorney Jon Witten being held up & not getting paid.  These bills are small, less than $10,000.00.  Discussion continued.

MOTION:	A motion was made & seconded to authorize the payment of legal invoices to Attorney Jon Witten relative to the 40B audit.

VOTE:  Unanimous (5-0-0)

B.	Discussion:  SHI update.

Discussion ensued re:  SHI units, 361 Main Street, modifications & submissions &/or non-submission of necessary paperwork re:  other 40B projects to DHCD.  The 815 Main Street 40B, Swifts Beach, Hunter Estates, etc. were also discussed.

It was stated that the audits submitted are filled w/ glaring holes & Attorney Witten knows a CPA auditor who does these particular types of projects & will be able to dissect this because if there are any profits above 20%, this should come back to the Town & be used for other affordable projects.

Ms. Scarsciotti explained what has happened re:  a developer completing a project & submitting a report back to MA Housing, MA Housing reviews it, & sends the Town a letter.  When the Town receives the letter, it has it reviewed.  There was one attempt to have Dick Heaton review, but it wasn’t successful, thus, they have subsequently been turned over to Attorney Witten.  Attorney Witten has reviewed three particular projects & has found legal issues.  Another piece of the review is to support those findings w/ the financial component that relates to it.  Attorney Witten has an auditor/CPA that works w/ the IG who has worked in other communities.  This auditor has recovered over $1 million for the Town of Braintree for a project w/ over 300 units.  This auditor has credibility.  Attorney Witten has asked for permission to contact this auditor to look over the Town’s projects.

Mr. Martin stated the Town Administrator was going to speak w/ Attorney Witten.  Mr. Ferreira stated that the Town Administrator was going to contact Attorney Witten & get the proposals going.  He indicated frustration that Ms. Scarsciotti has put a lot of time & effort into this matter & nothing happens.  He feels if the town has to pay a CPA & an attorney $10,000.00 to collect $100,000.00 then this money can be used for affordable projects & is worth it.

NOTE:	The meeting proceeded w/ item IV.  Request for Plan Waivers or Other Administrative Issues – A.  Request for reconsideration on petition #14-07 – 86 Wareham Lake Shores Drive, c/o Judy Yetman/Judy Herron.

No-one was present to represent the request.  Discussion ensued.  The Board concurred that petition #14-07 was previously denied w/out prejudice & the applicant would have to start over w/ a new application.

C.	Discussion:  Special Municipal Employee Status.

Not discussed.

VII.	ADJOURNMENT

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

VOTE:  Unanimous (5-0-0)

Attest:  ________________________________
	Mary Scarsciotti, Clerk
	WAREHAM BOARD OF APPEALS

Date signed:  ___________________________
Date copy sent to Town Clerk:  ___________________________