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Case #12/16/03–1 — Decision
You are hereby informed that Corinne Blagbrough’s request that the Wilton Zoning Board of Adjustments hold a new hearing to reconsider its decision in Case 12/16/03–1 has been denied.
On September 29, 2003, the Wilton Board of Selectmen, acting pursuant to RSA 674:41, I, authorized the issuance of a building permit on Lot A–30, a 12.8 acre lot located on Stiles Farm Road / Frye Mill Road, which is not a Class V or better road. On December 2, the Blagbrough Family Realty Trust, an abutter, filed an appeal of the Selectmen’s decision with the Wilton Zoning Board of Adjustments in accordance with RSA 676:5. On December 16, the Zoning Board held a hearing on the appeal and decided by a 3–1 vote to uphold the Selectmen’s decision and deny the appeal. On January 12, 2004, Corinne Blagbrough submitted a letter requesting that the Zoning Board reconsider its decision, in accordance with RSA 677:2. The Zoning Board considered the request in a meeting on February 10, and voted to deny the request for reconsideration.
The Zoning Board has only those powers that have been granted to it by State law. The Zoning Board’s power to hear appeals of actions of the Board of Selectmen arises from RSA 674:33
- The zoning board of adjustment shall have the power to:
- Hear and decide appeals if it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of any zoning ordinance adopted pursuant to RSA 674:16
and RSA 676:5
- Appeals to the board of adjustment concerning any matter within the board's powers as set forth in RSA 674:33 may be taken by any person aggrieved … by any decision of the administrative officer.
- For the purposes of this section:
- The “administrative officer” means any official or board who, in that municipality, has responsibility for issuing permits or certificates under the ordinance, or for enforcing the ordinance, and may include a … board of selectmen ….
- A “decision of the administrative officer” includes any decision involving construction, interpretation or application of the terms of the ordinance. It does not include a discretionary decision to commence formal or informal enforcement proceedings, but does include any construction, interpretation or application of the terms of the ordinance which is implicated in such enforcement proceedings.
Thus, the Zoning Board’s jurisdiction in an appeal of an action of the Board of Selectmen is limited to the determination of whether the Selectmen’s action is consistent with the Town Zoning Ordinance. The Zoning Board has no authority to judge whether the Selectmen have acted in accordance with State or Federal laws or regulations.
Paragraphs (a) and (b) of the original letter of appeal argue that the Selectmen did not have the legal power to issue a building permit for Lot A–30, regardless of any action that they might take with regard to RSA 674:41, since Lot A–30 does not satisfy Section 14.3.2 of the Wilton Zoning Ordinance, which requires that a lot in the Watershed District have “a minimum of three hundred feet [of frontage] on a Class V or better road.” This clearly raises a question of interpretation of the Ordinance, which the Zoning Board has the power to resolve under RSA 674:33 and 676:5. After consideration, the Zoning Board dismissed the appellant’s argument, finding that issuance of a building permit for the lot is permitted by Section 17.2 of the Ordinance, which specifies that “Where a lot of record at the time of the effective date of this Ordinance has less area and/or frontage than herein required in the District in which it is located: (a) The lot may be used for a single family dwelling if permitted in that district subject to New Hampshire Water Supply and Pollution Control Division approval and subject to all district regulations applicable to lots within the district wherein the lot is located with the exception of lot size and/or frontage.” Lot A–30 clearly has less frontage than the 300 feet required in the Watershed District, and use of lots for single family dwellings is permitted in that district.
Contrary to the claims in the Request for Reconsideration, the Zoning Board did not grant a variance, special exception, or any other form of relief to the owner of Lot A–30. Rather, the Board found that construction of a single-family residence is, according to Section 17.2 of the Ordinance, a use permitted by right on that lot. In other words, the Zoning Board did not give permission for the issuance of a building permit for Lot A–30; it simply found that no permission from the Zoning Board was needed for the issuance of a building permit.
We note that the attempt in the Request for Reconsideration to invoke Section 23 of the Ordinance, which states that “the more stringent standard shall apply” in the event of conflicts between sections of the Ordinance, is not relevant here. There is no conflict between Sections 14.3.2 and 17.2, since Section 17.2 explicitly overrides the area and frontage requirements in all Zoning Districts as applied to lots of record.
Paragraph (c) of the original letter of appeal argues that the Selectmen’s decision is inconsistent with the intent of RSA 674:41. Since the Zoning Board has no jurisdiction to determine whether decisions of the Selectmen are in conformity with state law, the Board properly disregarded this argument in making its decision.
Paragraph (d) of the original letter of appeal asserts that Stiles Farm Road / Frye Mill Road is not a town road, and a major part both of the testimony at the December 16 hearing and of the Request for Reconsideration was addressed to this claim. However, the Wilton Zoning Ordinance makes no distinction between Class VI town roads and private roads, so this argument is irrelevant to the Zoning Board’s decision that the issuance of a building permit for Lot A–30 is permitted by Section 17.2 of the Ordinance. As noted above, the Zoning Board has no jurisdiction to determine whether the Selectmen’s decision ought to have been formulated as authorizing the issuance of a building permit on a Class VI road pursuant to RSA 674:41,I(c) or on a private road pursuant to RSA 674:41,I(d).
With regard to paragraph (e) of the original letter of appeal, questions of what decisions the Selectmen may have made in the past and the extent to which those decisions might be binding on them in the present circumstances are again outside the jurisdiction of the Zoning Board.
Finally, paragraph (f) of the original letter of appeal, and a major part of the Request for Reconsideration, address the intended access to Lot A–30 by a private driveway over Lot A–21–1. We find nothing in the Zoning Ordinance to suggest that such access would be inconsistent with the Ordinance, which is the only aspect of the claim over which the Zoning Board has jurisdiction. Claims that the access plan is inconsistent with State forestry and wetland laws and regulations are clearly outside the authority of the Zoning Board, and claims that it is inconsistent with the subdivision plan for Lots A–21–1 and A–21–2 are a matter that should be brought up before the Planning Board rather than the Zoning Board.
The claim in the Request for Reconsideration that the driveway on Lot A–21–1 has been constructed in such a way as to be in violation of the Zoning Ordinance was not raised in the original appeal to the Zoning Board, and has nothing to do with the subject matter of the appeal. A complaint that a driveway has been constructed in violation of the Zoning Ordinance needs to be brought to the Board of Selectmen, not to the Zoning Board, which has no enforcement authority.
The Zoning Board finds nothing in the Request for Reconsideration that would lead it to the conclusion that its decision of December 16 is likely to have been legally erroneous; nor does the Request for Reconsideration offer new evidence which, if it had been available at the original hearing, might have affected that decision. The Zoning Board therefore declines to hold a new hearing to reconsider its original decision in this case.