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Case #8/8/06–1 — Reasons for the Decision
Findings of Fact
The Board found the following facts, based on testimony and evidence submitted at hearings on August 8 and September 12, 2006, and a site visit on September 5, 2006.
- Lot A–64 (“the Lot”) is located on the south side of Burton Highway, a Class V road. It has an area of almost 20 acres, and 546 feet of frontage on Burton Highway.
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The Lot is located in the Watershed Protection District, which imposes the following restrictions:
- 14.3.1 Area. Minimum lot size six (6) acres per dwelling unit excluding wetlands, land within the 100 year floodplain and land within the deeded flowage rights to the State of New Hampshire Flood Control System. (Amended March 1992.)
- 14.3.1.1 Alternative lot requirements. Alternative lots (See Section 6.3) shall have a minimum area of ten (10) acres per dwelling unit and meet the established six (6) acre requirement of this section. (Amended March 1992.)
- 14.3.2 Frontage. A minimum of three hundred (300) feet on a Class V or better road. (Amended March 1992.)
- 14.3.3 Setbacks. No residence, building, structure, feed lot, outflow from building drainage, septic system or its containment area shall be located less than two hundred (200) feet from open water and perennial streams nor less than one hundred-fifty (150) feet from intermittent streams, the 100 year floodplain, the deeded flowage rights to the State of New Hampshire Flood Control System, or any wetland. (Amended March 1992, March 2003.)
- 14.3.4 Erosion and Sediment Control. Any disturbance of slopes of fifteen (15) percent or more shall require an erosion and sediment control plan approved by the Planning Board.
- The Lot has an easement permitting access from Burton Highway over Lot A–61, immediately to its east.
- The Lot is located on the side of a hill that rises from Mill Brook. The proposed location for the construction of a house is on a terrace which is roughly 150 feet from Mill Brook at its closest and 225 feet from Mill Brook at its furthest.
Criteria for Granting a Variance
Property Values
The Board found that the proposed house is not likely even to be visible to any neighbors, nor will it diminish surrounding property values for any other reason.
Public Interest and Spirit of the Ordinance
The Board found that the purpose of the setback requirement of Section 14.3.3 is to protect the quality of the water in Mill Brook. After considering extensive comments from members of the Wilton Water Commission, members of the Wilton Conservation Commission, and members of the public, the Board concludes that the permitted 25-foot reduction in the required setback, accompanied by the restrictions imposed with the variance, will not have an effect on the water quality. In particular, the impact of the house construction in the setback area will be mitigated by restrictions on otherwise permitted uses in the setback area.
Hardship and Substantial Justice
Since the proposed use is a residential use which is permitted in this district, the Board applied the hardship standards for an area variance.
- Because Mill Brook runs along the northern edge of the Lot, any access to the lot other than by way of the easement over Lot A-61 would require construction of a bridge over Mill Brook at substantial expense to the applicants and with the resulting impact in the immediate vicinity of the stream.
- Because of the steepness of the slope behind the terrace, setting the house 25 feet further back to satisfy the 200-foot setback requirement would require significant excavation into the hillside, at substantial additional expense to the applicant and with the consequent environmental impact.
- Moving the house location to a part of the lot that both met the setback requirements and did not require construction on steep slopes would require construction of a very long driveway, at substantial additional expense, and with consequent slope impacts from the driveway construction.
The Board therefore found that the variance is necessary to enable the proposed use of the property given the special conditions of the property, and that the benefit sought by the applicant cannot be achieved by some other method reasonable feasible for the applicant to pursue.