MINUTES OF MEETING OF WAREHAM ZONING BOARD OF APPEALS

Date of Meeting:  June 9, 2010

I.	CALL MEETING TO ORDER

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

II.	ROLL CALL

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

Also Present:		Steve Holmes, BOS Liaison (Arrived at 6:50 P.M.)

Mr. Ferreira read the procedure for public hearings into the record.

III.	PRELIMINARY BUSINESS

A.	Minutes to be approved from previous meetings:  August 26, 2009 & October 28, 2009.

MOTION:	Mr. Secher moved to approve the meeting minutes of August 26, 2009 and October 28, 2009.  Mr. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

B.	Reorganization of the Board.

To be handled later in the meeting.

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

V.	PUBLIC HEARINGS

A.	#06-10 – Equity Trust Co., Custodian, FBO Michael L. Mihalec, IRA, c/o Michael L. & Gail M. Mihalec – 25 Wildwood Avenue.

The public hearing notice was read into the record.

Present before the Board:	Gail Mihalec

Mr. Ferreira stated that the Board sits as a Zoning Board to hear these cases, but has no jurisdiction over the Building Inspector who is by statute in the State of MA the Zoning Enforcement Officer in every community.

Mr. Ferreira explained the applicant is seeking to take an existing dormer and widening it out just a bit.  Discussion ensued re:  the plans submitted & the intent to expand a second floor dormer to an existing dwelling.

No-one from the audience had any questions or comments.  It was noted that no letters in favor or opposition of the application have been received.

MOTION:	Mr. Martin moved to close the public hearing for petition #06-10 – Equity Trust Co., Custodian, FBO Michael L. Mihalec, IRA, c/o Michael L. & Gail M. Mihalec.  Mr. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	Mr. Martin  moved & Mr. Sharkey seconded to grant a Special Permit for petition #06-10 – Equity Trust Co., Custodian, FBO Michael L. Mihalec, IRA, c/o Michael L. & Gail M. Mihalec – 25 Wildwood Avenue to expand a second floor dormer on an existing dwelling under the provisions of Chapter 1335 & further, w/ the following conditions:

•	Allow the extension of the dormer per plan submitted.
•	Cannot extend beyond the existing first floor roof line.

VOTE:  Unanimous (5-0-0)

Mr. Ferreira noted the appeal period for awaiting the receipt of the Special Permit

NOTE:	Selectman Holmes arrived at this time.  Mr. Ferreira welcomed Mr. Holmes.

The meeting proceeded w/ item III.  Preliminary Business – B.  Reorganization of the Board.

MOTION:	Mr. Martin moved to nominate Mr. Ferreira as Chairman of the ZBA.  Ms. Scarsciotti seconded.

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

MOTION:	Mr. Secher moved to nominate Mr. Martin as Vice Chairman of the ZBA.  Mr. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

MOTION:	Mr. Martin moved to nominate Ms. Scarsciotti as Clerk of the ZBA.  Mr. Sharkey seconded.

VOTE:  Unanimous (5-0-0)

NOTE:	Mr. Ferreira explained to Selectman Holmes that this current ZBA works well together.  He noted the Board is short two Associate members.  If any applications come before the BOS, the Board would appreciate the BOS’s review because there are times when there is a conflict of interest & the Board is supposed to have two Associate members.  Right now, Ms. Engerman is the only Associate member.  

Mr. Ferreira stated the Board is working on several matters that Selectman Holmes should be aware of.

Ms. Scarsciotti discussed the 40B audit matter.  She explained that normally when dealing w/ 40B’s, at the end of a 40B project, the developer is required to submit an audit of the project to MA Housing, CHAPA, & DHCD in order to assure their project is in compliance w/ the financial requirements, affordability requirements, & the profit requirements.  After this is done, the Town receives a letter back.  She noted that the Town has neglected responding in any way.  There has been a situation where not too many years ago, one of the projects was reviewed by the Inspector General & some irregularities were found.  Had it been looked at, reviewed, & responded to, the Town may have found these irregularities.  If there are irregularities that result in a developer making more than the allowed profit, the Town is entitled to recover.  Mr. Ferreira added  anything above a 20% profit.  He explained every 40B project has a separate independent limited dividend company even though the developer may have a huge development company.  That corporation has to set up a smaller corporation just for a 40B project.  At the end of the project, this small corporation disappears.  The profits are looked at & it cannot exceed 20%.  

Since then, the Board has been utilizing Attorney Jon Witten as special counsel.  40B is very complex, thus, Attorney Witten comes to the ZBA meetings & works w/ the Board to get through the pro-forma through the hearing process.  Mr. Ferreira explained Attorney Witten has made a career out of defending towns against 40B & at Housing Court as special town counsel for towns.  He does a great deal of these.  He has represented Braintree & Middleboro for example.  He stated Attorney Witten has reviewed three of the Town’s 40B projects & he has found legal questions that he would like to put into a response to CHAPA, but he needs the financial component that contributed to this situation in order to respond properly.  The Board voted to give Attorney Witten permission to contact & hire a CPA (that is recognized by the Inspector General & recognized by DHCD, CHAPA, & MA Housing) that is qualified to do this kind of work.  One part had been reviewed by Dick Heaton, but the Board never received the information, so the Board requested that Attorney Witten be allowed to follow through w/ this.  It will cost approx. $5,000 (for three projects) & the Town may be able to recover twice that much or more.

Ms. Scarsciotti has worked for w/ Attorney Witten for a long time.  She noted the recovery of $58,000 for one of the Town’s housing units in Oakdale Heights that was sold & was lost as an affordable unit.  She explained a woman purchased an affordable unit & sold it for market value & kept the profit.  The deed rider w/ the affordability restriction was right in the deed.  The title insurance company & the lawyers closing the loan ignored this deed rider & the woman was allowed to sell the unit.  The Board pursued this matter by holding public hearings & utilizing Attorney Witten.  The insurance company finally settled & the Town received $58,000.  The Board also requested this $58,000 be earmarked for further affordable units.

Ms. Scarsciotti stated the Board has been in discussions w/ MA Housing & DHCD because units that were in that project of which there were four, were never counted on the Town’s subsidized housing inventory list.  Part of the reason why these units were refused, even though they were approved under a 40B back in 1990, the rules were different & now there are newer regulations.  Thus, the judgment for the Oakdale Heights unit will be the foundation for getting the three other units that are still present counted.  An attempt will be made to correct the errors that are in the deed riders & remove South Shore Housing as the monitoring agent.  South Shore Housing was partly liable in the whole Oakdale Heights unit court case because they failed to monitor the sale & getting the other three units counted.

Mr. Ferreira also noted that there was another judgment re:  money that was paid from the insurance company for South Shore Housing & there also is a judgment against the woman who made the excess profit.  Through the statute of limitations, the Town can go after these sources.  Ms. Scarsciotti stated the Town could also file a lien on the woman or on her credit report that would assure a recovery.

Mr. Ferreira noted another matter re:  the Town is about to lose another affordable unit at Carleton Place which is a 40B condo complex in Onset.  Ms. Scarsiotti explained one of the units is about to be sold from under the Town.  There is an attempt to make sure the monitor in this case CHAPA, is following the deed rider.  Another matter Attorney Witten is working on is a proposed project called Bartlett Pond.  The Board denied this project because of problems, for example, no access & the applicant immediately went to HAC, thus, Attorney Witten is working on this as well.

Discussion ensued re:  invoices from Attorney Witten that need to be paid.  Ms. Engerman stated these bills are getting paid.  She explained that the Town Accountant told the Zoning Board secretary this today.  She stated these invoices will be paid out of the 53G accounts.  Ms. Scarsciotti stated the Town Accountant has no right to utilize the 53G account monies for this purpose.  Mr. Martin stated that 53G accounts belong to specific projects.  Mr. Ferreira stated that the Board is all volunteer & they don’t make the rules & don’t hire the employees, but there have been problems.  He stated Attorney Witten has submitted a bill for a total of $7,800.00 for three different projects that he has represented the Board on.  These projects were ones where Attorney Witten was defending the Board against denials made on 40B projects & protecting the affordable unit at Carleton Place.  He noted that the Board has approved payment of these invoices, but they have yet to be paid.  He understands that Brenda Sampson the Zoning Board Secretary is holding these invoices back.  He spoke to the Town Administrator who stated they should be given to the Town Accountant.  As he understands, Ms. Sampson is holding back on these invoices & questioning why the developer is not paying these bills.  Attorney Witten comes to the hearings & assists the Board & then drafts up the decisions.  Once that is over & if the Board denies a project & Attorney Witten has to defend the Board, the developer is not going to pay for legal bills.  Thus, you cannot expect the developer to pay the legal bills after the Board has denied the developer’s project.  It is one thing to pay the legal bills for review of the project during the hearing process.  The developer also pays for engineers to review the work & any consultants needed during the process to better understand the project.  Ms. Scarsciotti stated the Board is allowed to set up an account for specified monies to assist the Board since the Board is volunteer & none of the members are experts on these kinds of matters.  The Board (Town) is allowed to collect funds in advance to pay for those support services during the process, but when it is over, it’s over.  Mr. Ferreira explained that once it’s over, if the Board denies the project or there is an issue w/ the project that the Board needs to have legal counsel for to defend themselves, it’s like any other legal appeal.  You cannot expect the other side to pay the legal bills.  Attorney Witten charges the Town a discount rate as he does all the municipalities he works for vs. his private rate.

Mr. Ferreira spoke re:  receiving documents on the Selectmen’s policy relative to utilizing Town Counsel.  He noted every time they have utilized Attorney Witten, they have obtained approval from the Town Administrator ahead of time.

Mr. Ferreira spoke re:  approval to utilize Attorney Witten to defend the Board’s denial for the Bartlett Pond project.  He stated the Board had good reason to deny it.  It is meandering up at the Housing Court.  Attorney Witten is at the Housing Court defending the Board.  He doesn’t understand why these bills are not getting paid.  He noted Ms. Engerman has stated they are going to get paid out of the 53G accounts, but he doesn’t think they should be paid out of the 53G accounts.

Ms. Scarsciotti stated that any engineering money that hasn’t been spent, the engineering portion gets refunded back to the developer who provided these funds.  Mr. Martin understands that this money needs to be refunded w/in a certain period of time or the Town needs to pay 12% interest.  It is not Town money.

Mr. Ferreira stated that he & Ms. Scarsciotti met w/ the Town Administrator a few months ago.  The Town Administrator directed Chris Reilly, CEDA Director to “take the ball” relative to 66 units that should have been counted on the Wareham Subsidized Housing Inventory List.  Ms. Scarsciotti explained that prior to Mr. Reilly taking the position as CEDA Director, Marilyn Whalley, former CEDA Director always managed all the 40B projects, for example, kept track of the subsidized housing unit inventory.  Part of the reason she did this was because she had a program that used various grant money to rehab homes.  She would get an affordable deed rider, attach it to that particular property, & she took it upon herself to do this.  The 815 Main Street project which has 49 units was approved.  The application was sent to DHCD in order to get the units put on the affordable housing list.  Because the building permits were not issued w/in a years time frame (which is a requirement), these units became zero & the units no longer counted.  This project was in limbo for some time because the original property owner had a bankruptcy.  There was a situation w/ the original developer who went bankrupt & a new developer got involved in the project who was able to get the project started.  All the permits were obtained & the project has commenced.  Those units needed to be re-submitted, but they hadn’t been for months.  He thinks they may have been by now, but he is unsure.

Mr. Ferreira discussed the matter of the old Majestic Mattress building project.  This building is being renovated w/ some affordable housing & some commercial space.  This was done under a LIP which is considered a friendly 40B.  Somehow either the application wasn’t filed properly or the decision wasn’t completely written correctly, but not all of the affordable requirements in the decision & in the application were included.  Either the developer who submitted the project application didn’t fill it out properly or for some reason it fell through the cracks.  Thus, the Town is gaining eight units, but the project is counting six.  He spoke to Attorney Witten about this & was advised that the Board can re-open & amend this decision so that it is written correctly which the Board plans to do this summer.  He also noted either six or seven Habitat for Humanity homes to be included in the inventory.

Mr. Ferreira stated that the Town is trying to get to its 10% criteria of affordable housing.   He doesn’t have a problem saying no to a bad 40B project.  He stated that the Union Pond project is a good project.  It is difficult to deny a bad 40B project because there needs to be solid reasons & usually Housing Court overturns the Town’s reasoning.  The Board feels these matters are important & there is a need to work w/ someone who can get things done.   When these bills are not getting paid, it is upsetting.

Selectman Holmes asked why it seems things have changed re:  payment of invoices to Attorney Witten.  Discussion ensued.

Discussion ensued re:  the use of 53G accounts.  Mr. Ferreira stated that the way the Town’s Comprehensive Rules & Regulations were established are to utilize a sliding fee schedule so the developer comes in w/, for example 100 units.  There is a fee schedule for engineering review, a deposit needs to be made for a legal review, & another deposit for other technical review or misc. technical review.  Once this account goes down below 50%, the consultant, lawyer, or engineering firm submit bills & more money is required to be submitted to conduct reviews.  At the conclusion of a project, the Board either approves or denies it.  Whether the Board approves or denies the project & there is still money in this account, it is supposed to be returned to the applicant w/in 30 days.    Mr. Martin stated this money cannot be utilized to defend the Board’s decision against the applicant.

Again, Mr. Ferreira reiterated that Attorney Witten has worked on the Board’s behalf & has submitted invoices totaling $7,800.00 & he should be paid.  Relative to the 53G accounts, if projects (requiring a 53G account) are done & this money has not been released back to the developer, the Town is required to pay it back w/ 12% interest.  He noted when the Town had a Town Planner, the Town Planner had the responsibility of paying back this money & monitor these 53G accounts.  Presently, there is no Town Planner.  Mr. Martin stated this money shouldn’t be given back until the Town is sure there is a full accounting of consulting costs for the project.  These accounts are separate & not part of the general fund.

Ms. Scarsciotti wants to make sure that Attorney Witten has permission to utilize the CPA to conduct the audit because there may be a timing deadline to address the potential issues. 

Mr. Ferreira noted that there are certain ways developers write up reports that for some reason DHCD approves.  Once there is an audit of a project, the developers put in a percent of profit they made, but when you look into the details, it usually is full of irregularities.  Some developers inflate the fair market value & the land.  There tends to be a lot of job security w/ these developments.

Mr. Ferreira noted that no 40B project in Town has been audited before.  The Board found out that the IG’s office audited some projects & one of them was the Town’s.  There were irregularities found.  

Brief discussion ensued re:  the estimate to hire the CPA.  Ms. Scarsciotti stated she was told approx. $5,000.00 for three projects.  Mr. Ferreira clarified that Attorney Witten has found irregularities w/ three projects.   He would like to have a CPA review for more credibility in court.  Mr. Sharkey stated that if the Town proceeds w/ this, it will send a message to other 40B developers that the Town of Wareham will be checking & reviewing.

Selectman Holmes asked if there is a statute of limitations on researching projects.  Ms. Scarsciotti stated not necessarily, but there are some time frames.  There are a few projects that are very old, but they never submitted the original audit.  Mr. Ferreira feels there may be a statute of limitations on projects, but if the developers never submit audit paperwork the clock never started.  

Mr. Ferreira gave instances of sneaky development projects.  Developers are getting sharper so it has gotten to the point where the Town needs Special Counsel to deal w/ these matters.

Discussion ensued re:  policy relative to the Building Inspector being the inspector for 40B projects & enforcement of this policy.

Discussion ensued re:  the hiring of a Town Planner & the possibility of sharing one w/ the Town of Rochester.

Mr. Ferreira discussed the Special Municipal Employee Status statute.  He understands that approx. three years ago in the effort of “transparency”, the BOS decided to rescind this status to every Town board & commission.  This caused immediate resignations of several people.  For the record, he feels this was intentional.  There were certain people the BOS wanted to get rid of.  When this happened, he called the State Ethics Commission.  He discussed what he was told by the Commission.  He noted all the other surrounding towns that have this status because they recognize how difficult it is to find volunteers for a board w/ professional credentials.  He discussed the problems w/ not having this status in Town at length.

Mr. Martin discussed an issue where he has just heard that the Town Administrator directed the Building Inspector to issue a permit to an individual that the Board denied.  He doesn’t feel the Board will allow this to stand.  He asked Mr. Holmes to look into this matter.  Discussion ensued.  Mr. Martin stated for the record that if the Town Administrator interferes w/ the Board’s business, there will be problems.  This matter (the individual) came before the Board some time ago & just two weeks ago a reconsideration was requested.  Mr. Ferreira stated this is the first he has heard of this matter.  He noted that the Board cannot reconsider something that is three years old w/out a new permit application being filed.  He noted the Board works hard to help people out & to offer information to them if they are unaware.

VI.	ADJOURNMENT

MOTION:	Mr. Secher moved to adjourn the meeting at 8:30 P.M.  Mr. Martin seconded.

VOTE:  Unanimous (5-0-0)

Respectfully submitted, 
_________________________________________
Brenda Sampson, Transcriptionist	

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

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