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JANUARY 8, 1997
VOTING BOARD: Chairperson Nell Faiman; members Steve Blanchard, Tom Mitchell, Carol
Roberts & Jim Tuttle alternate member Joanna Eckstrom.
CLERK: Diane Nilsson
AGENDA: Aleksei Sukarev - Special Exception Continuation
William & Shirley Haas - Variation or Equitable Waiver
Mr. Faiman called the meeting to order at 7:32 p.m.
Case# 12/11/96-1 SUKHAREV
Aleksei Sukharev (applicant) and Howard W. Wagener (owner), Lot H- 12-3, intersection of Potter Road & Captain Clark Highway in the Residential/Agricultural District, requested a special exception under the terms of Section 11.4 of the Wilton Zoning Ordinance to place a culvert and fill in order to construct a driveway through a wetland area.
Mr. Faiman explained that the Board heard the case last month but because it involves a wetland crossing must consider it in two consecutive months, therefore will continue the hearing this evening. He further stated that at the last meeting he was requested by the Board to contact the Hillsborouoh County Conservation District and ask them to review the proposal. He wrote a letter to Helen Castles of the District and received a reply just yesterday. Mr. Faiman read Ms. Castles' letter dated 1/6/97 into the record (see file). In the letter, Ms. Castles suggests that a wetland crossing to the southwest of the proposed location could reduce the area of wetland impact and she marked the area on the map. She further suggested that if another house site location were chosen, perhaps the wetland impact might be reduced further.
Ms.Tuomala of Monadnock Survey presented a letter from Aleksei Sukharev authorizing, her to represent him regarding this case. She next presented a letter from the NH Natural Heritage Inventory (see file), dated 12/27/96 stating that a search of their database turned up no recorded occurrences of sensitive species and plant communities near the project area. She also presented a letter that the Board requested at the last meeting, from the soil scientist who had reviewed the crossing area. The letter, dated 1/3/97 was from Richard W. Bond with T.F. Moran. Inc. (see file). She also presented the map showing the proposed wetland crossing and a second sheet showing plans for erosion and sediment control.
Ms. Tuomala stated that she went out to the site to see the crossing that Ms. Castles recommended. She acknowledged that this crossing would be shorter in length, but it would be wider because it would need a larger culvert and more sideslopes, bringing the size to 5200', the same size as the proposed site.
She further stated that she took photos of both sites from all angles. There was a large area of standing water at Ms. Castles' site and hardly any at the proposed site. Further, she saw footprints in the snow at Ms. Castles' site but none at the proposed site, leading her to wonder if Ms. Castles may have missed looking at the correct site. (photos in file). Ms. Tuomala stated that she offered to walk the site with Ms. Castles but was not contacted.
Mr. Faiman stated that it is possible that Ms. Castles did not review the correct site when she went out there.
Mr. Sukharev stated that the driveway proposed by Monadnock Survey is much more logical than Ms. Castles' mostly because of all the standing water he has seen over the last 7 months at her site. Also, he thought damage would be done to the stone wall if her site were used. He further stated that her location would pass by his house and since he works at home and has a lot of delivery traffic going in and out he was worried about his three children possibly getting hurt by the traffic.
MOTION: Mr. Mitchell moved to accept the application as presented on 1/8/97, seconded by Mr. Tuttle with all in favor.
Mr. Faiman stated that the application was unanimously approved and Mr. Sukharev will receive a Notice of Decision within a few days. He further stated that the selectmen, any party to the action or proceedings, or any person affected thereby may apply for a rehearing of this decision. A request for a rehearing must be filed in writing with the Zoning Board of Adjustment on or before Tuesday, January 28, 1997 and must fully specify all grounds on which the rehearing is requested. (N.H. RSA 677:22)
Case# 1/8/97-1 HAAS
William & Shirley Haas, Lot A-075, 558 Burton Highway (Tallman Stables) in the Residential/ Agricultural/ Watershed/ Aquifer Protection Overlay Districts have requested either a variance or an equitable waiver to section 14.33 of the Wilton Zoning Ordinance to permit constructi on of a home with less than the required setback from perennial streams and deeded flowage rights to the State of New Hampshire in the watershed district, the foundation of which has already been poured in the incorrect location.
Mr. Blanchard stepped down from the Board and Ms. Eckstrom replaced him to hear this case.
Mr. Faiman read the language of RSA 674:33-a, Equitable Waiver of Dimensional Requirement (see file). And also stated that the Board had the choice of granting the the equitable waiver or a standard variance or neither.
Mr. Haas stated that the foundation was unintentionally poured 30' too close to the easement. This was discovered when Monadnock Survey came out to do a survey for the bank loan.
Mr. Faiman read ordinance 14.3.3 which states that no residence shall be located less than 200' from open water and perennial streams nor less than 150' from intermittent streams, the 100 year floodplain, the deeded flowage rights to the State of N.H. flood control system or any wetland. The Haas's were granted a variance in June, 1995 to allow the house to be built 100' from the perennial stream and 100' from the deeded flowage rights to the state of N.H. flood control system.
Jeff Ela, the Haas's contractor, stated that he moved the location of the house because a.) the actual house plans were for a larger house than what was shown on the septic plan and b.) to build the house and garage exactly where they were shown on the plan would have required huge concrete walls because of the unstable soils there. Moving it in the direction of the stream solved that problem. 3.) He wasn't aware that the 100' measurement on the plan, from the corner of the house to the stream was something he was supposed to pay attention to. There was no mention on the plan that this distance had to be kept by him.
Ms. Haas stated that when they had the septic plan made, they didn't know what the house would look like. The house on the plan was just a general rectangle.
Mr. Ela stated that it would cost $10,000 to $12,000 to re-do the foundation.
Mr. Faiman stated, in playing devil's advocate, that one could argue that in view of the rather lengthy process the Haas's have gone through in getting to this point, it takes an exceptional degree of carelessness to fail to adhere to the requirements that had been achieved at such an exertion. In this case, the 100' setback was the result of considerable negotiation and someone should have been on top of it. This is a part of what the Board should consider... is this the sort of error this law is intended to allow us to forgive?
Mr. Haas stated that at the time the septic plan was done (before the original variance hearing for the 100' setback requirement) they, along with Monadnock Survey, estimated that the 100' setback request would be adequate. In hindsight, he said, perhaps they should have asked for a 75' requirement instead.
Mr. Faiman stated that he did not know if the Board would have granted a 75' setback requirement. He further stated that he would have no problem with the conclusion that the magnitude of the cost to replace the foundation substantially outweighs the public benefit. But he was not that comfortable with the contractor "not knowing that the house was supposed to be built 100' from an easement area". He was not sure that this wouldn't count as "ignorance of the ordinance."
Mr. Mitchell asked who is responsible for following the indications on the plan and the ordinances of the town, the contractor or the owners? A discussion followed.
Ms. Eckstrom asked about the Town's responsibility as far as the building permit process went and the foundation being poured in the wrong place.
Wilton Building Inspector Frank Millward stated that 1.) he did not have a plan of exactly where the building should be and 2.) the builder was supposed to call him as soon as the footings were in place so he could measure things before the foundation was poured. In this case. he was called after the foundation was poured. He further stated that he had no idea that the foundation was in violation of any ordinance.
Mr. Faiman stated that if the Board denied the request the owners and the contractor would have to settle between them who is out $10,000.
Ms. Eckstrom asked if on the building permit application there is a place to check whether the building meets all setback requirements. Mr. Faiman answered that it only asks if the building meets setbacks from property boundaries, but not setbacks from streams, flowage rights etc.
Mr. Millward stated that because of the depth of the stream, he didn't see that there would be any flooding problems in the future, and therefore didn't see any problem with the current location of the house.
Mr. Faiman stated that it's clear we have a good faith error but it's not clear that it's the kind of good faith error that this law was intended to respond to. However, looking at all the factors in this case, it looks like granting this waiver is the fair thing to do.
Ms. Eckstrom stated that there mi ght be two good faith errors in that the Town's application for a building permit only addresses setbacks from property boundaries and not setbacks from open water, streams, deeded flowage rights, 100 year floodplain, etc. If that information had been asked, then the building inspector would have been aware of it and could have measured for it.
Mr. Faiman concurred, stating that if the building permit specifically required attention to all setbacks relevant to construction and all variances or any other factors involved in permitting construction, then it would have been much harder to make this mistake. Although he couldn't call this an error on the part of the Town, the Town could do something in the future to reduce the chances of this happening again.
Mr. Mitchell concurred saying that there should be a place on the building permit application asking applicants whether they have ever applied for a variance regarding this property. If the answer is yes, what was it and what was the result.
Mr. Faiman pointed out that the variance question on the building permit application isn't the only problem in that without the granted variance in this case, this construction would need to be 200' from the perennial stream and 150' from the deeded flowage rights, which would make this foundation even less conforming than it is now with the variance. According to the building inspector, he did not have access to the plans and did not know that the foundation was in violation of any setback requirements. But, he continued, we can try to make it easier for applicants but according to the law, it is the owners and builders who are responsible for knowing the law.
MOTION: Mr. Mitchell moved to grant the equitable waiver to permit the construction of the house on the already-poured foundation as indicated on the plan, seconded by Ms. Eckstrom with all in favor.
Mr. Faiman stated that the Haas's would receive written notice of approval in a few days. He further stated that the selectmen, any party to the action or proceedings, or any person affected thereby may apply for a rehearing of this decision. A request for a rehearing must be filed in writing with the Zoning Board of Adjustment on or before Tuesday, January 28, 1997 and must fully specify all grounds on which the rehearing is requested. (N.H. RSA 677:22)
FINDINGS OF FACT:
The Board was satisfied that the following four requirements to grant the Equitable Waiver of Dimensional Requirement were met.
- 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.
- The violation was not an outcome of i gnorance 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.
- 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.
- 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.
MINUTES - December 11, 1996
MOTION: Mr. Blanchard moved to approve the 12/11/96 minutes as written, seconded by Ms. Roberts with four in favor and Ms. Eckstrom abstaining.
MOTION: Ms. Roberts moved to adjourn the meeting, seconded by Mr. Mitchell with all in favor.
The meeting was adjourned at 9:10 p.m.
Diane Nilsson, Clerk