Town of Wilton, NH

Zoning Board Minutes

May 12, 1999

Case #5/12/99-1

PVA - EPVA, Inc. has applied for a special exception under the terms of section 11.4(c) of the Wilton Zoning Ordinance, to reclassify soils on lot B-110, 19 Stony Brook Drive, which have been incorrectly designated as being "poorly drained" or "very poorly drained" on the Town of Wilton Wetland Conservation District Map.

Lorne Fienberg, of the McLane Law Firm in Nashua, legal counsel for PVA - EPVA, began the presentation explaining that Pete Basalier of PVA - EPVA was also in attendance as well as wetland scientist Robert Prokop of Wetland Consulting Services, Merrimac, MA. He gave some background information, stating that PVA - EPVA had gone before the Planning Board to request a permit to locate three temporary trailers on the site. During that process it was found that a gravel parking lot on the SW side of the property was located within the setback. PVA - EPVA has decided to reconfigure the parking lots, and loam and reseed the areas that are now within that setback. It was further discovered that these same parking areas are located on lands that are designated, on the site plan, as poorly drained or very poorly drained soil, hence they were wetlands, and the parking lots were an impermissible use. PVA - EPVA believes that these areas are not wetlands and that the mapping that was used is incorrect. They would like to correct the error and provide a fully accurate plan which can be recorded.

Wetland Scientist Robert Prokop presented a series of maps showing essentially that sometime before 1979, most wetlands areas on the site were filled and the land was made flat. A 1979 site plan shows a wetland area where there is currently a fire pond. A 1976 aerial photo, which Hillsborough County used to create their 1985 Soil Survey Map shows no building and no fire pond. A 1981 USGS map shows the building and the fire pond. Since PVA - EPVA moved in in 1980, these maps all make sense.

Mr. Faiman stated that if wetland soils existed at the time this ordinance was passed, and the land was subsequently dredged, filled and graded without town approval, then that would be a violation which should be corrected somehow. The board must decide if it wants to investigate whether the site work was permissible at the time it was done, or does the board want to accept that history is history, and simply determine the status of the soils today. The board agreed to simply determine the status of the soils today.

Mr. Faiman asked Mr. Prokop if he was a certified soils scientist. Mr. Prokop replied that he was not, but that Jim Gove, of Gove Environmental Services was, and he would review the study and put his seal on it. He also stated that typically NH certified soil scientists produce high intensity soil survey maps. This report is a medium intensity soil survey map.

Mr. Faiman explained that the ordinance calls for an adequate onsite soil investigation and soil analysis conducted by a certified soil scientist. That will then be reviewed by a wetland or soil scientist certified by the NH Board of Natural Scientists and selected by the Planning Board or the Zoning Board. The board agreed to submit Mr. Prokop's plans as is to a consultant chosen by Mr. Faiman, after consulting the Planning Board. Mr. Prokop will provide the map signed by the certified soil scientist at the June meeting.

Frank Millward, the only abutter in attendance, had no objection to the special exception request.

Case #5/12/99-2

Victor Lushear has applied for a variance to section 5.2.3 of the Wilton Zoning Ordinance to permit the construction of an addition to an existing house that will be closer to the lot line than is permitted by the ordinance, on Lot D-106-3, 15 Seagroves Street.

Mr. Faiman explained that Mr. Lushear was granted the same variance he is presently requesting in August of 1995, but since he did not act on the variance within two years, it expired. So he is again requesting relief.

Mr. Lushear explained that even though he has room on his property to build somewhere else, the existing house is in a small corner of the land, and the only place to add an addition onto the house is near the right of way between his property and Bill Abbot's property, 5' into the 15' setback.

Mr. Faiman and Ms. Eckstrom both stated that they had viewed the property and felt that the house was so small that it could be considered substandard.

Attorney Wil Sullivan, representing abutter Bill Abbot objected to the variance request stating that if the house is too small for the applicant's needs, that is a personal hardship. He stated that you don't give variances just because people want them. If you do, it puts the issue of hardship right on it's head. The house has served a viable economic use for the last 100 years. That proves there is no hardship.

Mr. Faiman felt that a person has the right to have a house of a reasonable size and felt that the unique condition of the property provides a hardship. Ms. Roberts agreed.

Mr. Faiman stated that Mr. Lushear will receive written notification of approval within a week. 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, June 1, and must fully specify all grounds on which the rehearing is requested. (N.H. RSA 677:2)

Justifications for the Decision

1. The proposed use will not diminish the values of surrounding properties because it could improve surrounding property values.
2. Granting the variance will not be contrary to the public interest because it will allow a reasonable use of the property.
3. Denial of the variance would result in unnecessary hardship because of the following special circumstances which make this property unique when compared to other properties in the same zone: The house in subminimal and could be made more adequate if it were not for the configuration of the lot.
4. Granting this variance would do substantial justice because it would allow a reasonable use of the property with no corresponding impact to anyone.
5. The proposed use is consistent with the spirit of the ordinance because section 5.2.3 explicitly recognizes the need to make exceptions in cases of unusual lot configurations.

OTHER BUSINESS

Minutes - March 10, 1999

A motion to adjourn was made and seconded and all were in favor. The meeting was adjourned at 9:25 p.m.

ATTEST:
Diane Nilsson, Clerk