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Case #8/9/00–1 — Reasons for the Decision
Based on the testimony received at the hearing, the Zoning Board found the following facts in the case:
- In 1942 and 1943, an original lot of approximately sixteen acres, lying along the south side of Curtis Farm Road to the east of Pead Hill Road was subdivided into several smaller lots, including the lots now identified (from west to east) as B-42, B-42-1, and B-42-2.
- The sum of the dimensions described in the deeds for the subdivided lots is greater than the size of the original lot. The error apparently arose as a consequence of a discrepancy between dimensions given in a 1909 deed and a subsequent 1937 deed. This error was to go unnoticed for over fifty years.
- The applicants, John and Sharon Fuller, purchased lots B-42-1 and B-42-2 in 1998. They built a house on lot B-42-1, approximately 37 feet from the line between the two lots, and sold the house and lot to Robert Dolinak and Kathleen McDonald in 1999.
- In March of 2000, the Fullers obtained a building permit to build a house on lot B-42-2, “35 feet from the nearest lot line.” When they began clearing land for the construction, Mr. Dolinak contacted Mr. Fuller and expressed a concern that the house was being constructed too close to the lot line.
- In April, Mr. Fuller and Mr. Dolinak, armed with their deed descriptions and a tape measure, together walked the bounds of both their lots, agreed on the locations of the lot lines, and marked them with spray paint. This was the last time that the Fullers heard anything about the lot boundaries until late July.
- Shortly afterward, Mr. Dolinak was contacted by Kenneth Stickney, the owner of lot B-42, who wanted to know what this spray paint on his property was about. Mr. McDonald explained, and Mr. Stickney asserted that the painted line was actually ten feet inside lot B-42.
- Between April and July, Dolinak and McDonald repeatedly expressed concerns about the Fullers' construction, including the belief that the house was being built too close to the actual lot line, to the Wilton Building Inspector and the Board of Selectmen, in writing, by telephone, and/or by personal contact. The Selectment at some point suggested that they get the lots formally surveyed.
- Dolinak and McDonald had the lots surveyed by Colonial Survey of Londonderry on June 23. A copy of this survey was faxed to the Wilton Board of Selectmen on July 21.
- The survey revealed the original measurement error. Because lot B-42-2 was the last lot deeded out from the original subdivision, the missing land is subtracted from that lot, effectively moving the western lot line of B-42-2 (between B-42-2 and B-42-1) about ten feet to the east. This leaves the house being constructed by the Fullers 26 feet from the adjusted lot line, instead of the required 35 feet.
- After receiving the survey on July 21, the Selectmen asked the Fullers to attend a meeting to discuss the situation. The meeting occurred on Monday, July 24, and the Selectmen told the Fullers that they would be unable to obtain a Certificate of Occupancy for the house unless they either rebutted the Dolinak/McDonald survey or obtained relief from the Zoning Board. This application to the Zoning Board for an equitable waiver under NH RSA 674:33-a followed.
The Zoning Board found that these facts satisfied the requirements of the four subparagraphs of RSA 674:33-a, I, as follows:
I. When a lot or other division of land, or structure thereupon, is discovered to be in violation of a physical layout or dimensional requirement imposed by a zoning ordinance enacted pursuant to RSA 674:16, the zoning board of adjustment shall, upon application by and with the burden of proof on the property owner, grant an equitable waiver from the requirement, if and only if the board makes all of the following findings:
(a) That the violation was not noticed or discovered by any owner, former owner, owner's agent or representative, or municipal official, until after a structure in violation had been substantially completed, or until after a lot or other division of land in violation had been subdivided by conveyance to a bona fide purchaser for value;
All the testimony received was consistent with the finding that the applicants were never informed of the problem with the lot lines until July, when the house was substantially complete. We find that theviolation was not “noticed or discovered” by the municipal officials — the Building Inspector and the Selectmen — until they received a copy of the new survey at the end of July. Prior to that time, they had received complaints and allegations, but nothing that would have justified them in taking formal action.
(b) That the violation was not an outcome of ignorance of the law or ordinance, failure to inquire, obfuscation, misrepresentation, or bad faith on the part of any owner, owner's agent or representative, but was instead caused by either a good faith error in measurement or calculation made by an owner or owner's agent, or by an error in ordinance interpretation or applicability made by a municipal official in the process of issuing a permit over which that official had authority;
It is true that the problem might have been averted if the applicants had had a survey of the property done beforethey had begun construction. However, we do not find that failure to obtain a survey prior to construction rises to the level of “failure to inquire,” nor do we expect that the owners should have traced the deeds back to 1909 to discover the original error. We find that the owners' reliance on the property description in their deed constituted a “good faith error.”
(c) That the physical or dimensional violation does not constitute a public or private nuisance, nor diminish the value of other property in the area, nor interfere with or adversely affect any present or permissible future uses of any such property; and
The Zoning Board does not find that a nine foot reduction from the 35 foot setback requirement will have any of the consequences described in this paragraph. In particular, we note that th\ e spacing between the houses on lots B-42-1 and B-42-2 is the same spacing that would have been legal given the original idea of the lot line location. The house as placed on lot B-42-2 will not interfere with the use of lot B-42-1, nor is it unreasonably close to the house on B-42-1.
(d) That due to the degree of past construction or investment made in ignorance of the facts constituting the violation, the cost of correction so far outweighs any public benefit to be gained, that it would be inequitable to require the violation to be corrected.
The house had been under construction for between two and three months before the error was brought to the owners' attention. The owners estimate that the cost of correcting the error would be approximately $150,000. Even if this were greatly exaggerated, we fail to find any substantial public benefit to be gained by requiring the correction.