Town of Wilton, NH

Zoning Board Minutes

October 13, 1999

Voting Board Chairperson Neil Faiman; members Jim Tuttle and Bob Spear; alternate members Joanna Eckstrom and Ron Hanish.
Clerk Darlene Bouffard
  • Robert A. Bragdon and Barbara E. Bragdon for an Application for Variance
  • Richard H. Keyes for an Appeal of Administrative Decision

The meeting was called to order by Chairman Faiman at 7:35 p.m. Mr. Faiman explained that two cases are on the agenda this evening.

Case #10/13/99-1 Bragdon

Mr. Faiman explained this is a variance for two lots to allow the construction of a driveway. The members of the ZBA were introduced and the Chairman explained that the Board will ask the applicant why they need this ZBA hearing and why the variance should be granted, the Board will then ask questions, and then the public will be able to ask questions. The Board will then deliberate and a decision reached.

Dawn Tomala, on behalf of the applicants, read to the ZBA a letter stating she will be representing the applicants this evening. The plan shows that the Bragdon’s would like to do a lot line adjustment. They would like to build a house on lot F31-2. Presently it is in the commercial zone. The driveway is for residential purposes. It would eliminate a curb cut on Route 101. The 101 slope is very steep and would require a lot of fill. Ms. Tomala presented photos of the site to depict the slope of the area.

Joanna Eckstrom questioned photo number 1, and if it is looking toward 101? Ms. Tomala answered that it is. Joanna Eckstrom asked how wide is the tree line there? Ms. Tomala answered it is about 40 feet. Neil Faiman explained that the Bragdon’s would prefer to take access on Intervale Road versus Route 101. Dawn Tomala explained she spoke with Mr. McGettigan and he has provided approval. Also, a letter from the sewer Commissioner will be provided. A letter from Ray Dick, regarding fire requirements, will also be provided and a letter from the Water Company will be provided.

Bob Spear asked about the note regarding an access and utility easement, is there any existing access? Ms. Tomala answered that it is basically flat. Bob Spear asked if this is an existing lot line? Ms. Tomala — yes they want to move it. Bob Spear — is the intent to sell the property and keep the easement so the new owners would have to accept the easement? Ms. Tomala answered yes the easement would stay in effect. The utility easement is for sewer and water, but does not go out to Route 101. Bob Spear -—in the future, if there is a problem with the sewer or water, does this mean the driveway will need to be dug up? Ms. Tomala — the pipes could go on either side of the driveway to avoid that situation. Dick Tuttle, abutter, asked about the water that comes down through that lot in the spring? Ms. Tomala stated that culverts would be required so as not to back up the water — we have not designed the house yet. Bob Spear asked Dick Tuttle to show him where the water flow is that he is talking about. Dick Tuttle explained the water flow which goes across the lot, and that there is a natural dip in that area where the water passes. Bob Spear asked how often does the area get flooded? Dick Tuttle answered that it has happened more than he could count.

Neil Faiman asked Ms. Tomala if this flooding has been taken into consideration? Ms. Tomala answered no, because she generally does not do residential buildings or site plans. Ron Hanisch — granting the easement for the utilities does not grant the easement for the driveway? Ms. Tomala — the easement is for utility only. Mr. Faiman stated that the town usually does easement language. Ms. Tomala — if we need to make it a new document or we need to get a new deed, I think we go to the Planning Board.

Mr. Faiman — we denied a driveway on this lot for commercial use. Four of the 5 ZBA members here tonight were involved in that decision (excluding Bob Spear). Ms. Tomala — but this is for residential use, not commercial. Joanna Eckstrom — the denial was in April 1998. Mr. Faiman — the subdivision to the two lots was in 1992. Bob Spear — access use of easement was denied because it was commercial use, not residential. Mr. Faiman — but we need to look for the 1992 application to identify if any language was in the application regarding the access. Bob Spear — this F31-2 lot has not been reclassified to residential, if a residence was built on this commercial lot, that would not prevent a commercial business from buying it for use in the future? Mr. Faiman — if someone else bought it, they would be able to use the site for commercial use if they have access only from Route 101. They would have to come back to the ZBA for a change of use.

Ron Hanisch — if they give each other access, the lot has two access points, which in the ordinance, it states does not require a variance, therefore we are giving access to the lot from an area other than the road with frontage. Mr. Faiman — that is correct. Bob Spear — in the application, it states the lot will be residential. Ms. Tomala — that should be the “lot usage”. Mr. Faiman — this proposal is for access to a residential use of lot, it just happens that the lot is zoned commercial. Bob Spear — I am concerned that at some time in the future, the residential use goes away, and then the lot will have access to a commercial use from Intervale Rd. Mr. Faiman — but for a change of use such as that, the owner will need to come back to the ZBA for approval. Ms. Tomala — we could add that in the notes to be filed in the town records. Mr. Faiman — it seems to me that it makes sense to grant the variance because to put in a driveway where the slope is doesn’t make sense. Bob Spear — I would be more comfortable re-zoning it to residential. Mr. Faiman stated this Board cannot do that.

MOTION: Ron Hanisch motioned to grant the variance for access to a residential use only on Lot F31-2 from Intervale Road over the easement indicated on Lot F31-1 on the plan submitted to the ZBA labeled “Lot Line Adjustment Plan of Land Lots F31-1 and F31-2 Robert & Barbara Bragdon 9/24/99”. Access for any non-residential use on Lot F31-2 of the proposed easement is not permitted without a future variance from the Wilton ZBA. The proposed driveway construction and grading not to adversely affect drainage to or from existing abutting properties. The easement placement and language must be reviewed and approved as part of the lot line adjustment. A vote was taken, those for approval of variance: Jim Tuttle, Joanna Eckstrom, Ron Hanisch, Neil Faiman. Those against approval: Bob Spear. The vote ended 4-1 in favor, approval will be sent in the next few days.

REASONS: Ron Hanisch motioned to accept the reasons in the application. Joanna Eckstrom seconded. All were in favor, except Bob Spear who opposed the approval.

Chairman Faiman noted that a written notice of the ZBA decision will be sent and that any person affected by the decision may request another meeting in writing within 20 days and file in the town offices. In the absence of such a request, the decision will be final. There was no further discussion.

Case #10/13/99-2 Keyes

Richard Keyes, applicant, is trying to correct a clerical error in the final version of the warrant articles. After they were written up and the town passed them, a phrase was omitted in the text of the ordinance (clerical error). It was not the intent of the town for this to be omitted. Mr. Faiman read the relevant portions of the zoning ordinance prior to the change. The “description” of the warrant article was read. The actual text of the revised ordinance left out some verbiage which includes “initial construction”.

Will Sullivan, attorney representing 3 abutters, stated that he does not think this Board has any jurisdiction in what they are doing tonight. If it is incorrectly done, it is for another party to fix. The notice sent out to abutters identifies an appeal on 4.7.1 which is fatally wrong and the ZBA notice was posted wrong. You should be aware that there are restricted covenants on the property. What is the point of this application? It is improper for this discussion, you cannot re-write the zoning ordinance. Mr. Faiman responded by stating it is appropriate for the ZBA to interpret that a clerical error was made in the ordinance. Mr. Sullivan — the notice did not reflect this. Mr. Faiman read the notice which states there will be an appeal on 4.7.1 of the ordinance and a clerical error was made in the new ordinance. Mr. Sullivan stated his notice does not say anything about a clerical error. Mr. Faiman read from the town ordinance regarding notices. Joanna Eckstrom asked if the ordinance states what is required in the notice? Mr. Faiman — the ZBA is required to interpret the ordinance and the intent of it. If we decide to grant relief, Mr. Sullivan will obviously request another hearing and bring his evidence regarding what we were going to discuss tonight. We the ZBA can wait another month and allow the abutters to come prepared, or we can vote tonight and possibly come back to discuss the issue again next month.

Bob Spear — can we hear from the abutters? Doreen Clark, abutter, asked why they only got a couple of days notice for this meeting? She also stated that Mr. Sullivan represents all the abutters. Mr. Sullivan then stated that the abutters agree with his statements. Mr. Faiman stated that the legal requirement is that the notice is sent out 6 days prior to the meeting. We are discussing whether the language in the ordinance should be the way it is written or if it should be corrected to the way it was intended to be. Mr. Keyes — if you read the ballot from 3/99, it shows you what should have been put into the ordinance.

Neil Faiman — we need to answer two questions: 1) do we have a right to make a decision tonight? 2) if we have the right to make a decision, then what will it be? Mr. Sullivan’s opinion is that the abutters were not properly notified for this hearing. Bob Spear — there should be 6 days for the abutters to respond. With the holiday this weekend, they did not have enough time. Ron Hanisch asked if there is a procedure where if an error has been made in the ordinance, the error gets pointed out and corrected by a certain body? Mr. Faiman — there is no statutory rule for that — I would feel that the first body of appeal would be the ZBA. Bob Spear — but there was not sufficient time for the abutters to respond to review what is being proposed. Joanna Eckstrom — I believe the certified mail date is the one the ZBA is concerned with and we mailed them out timely. Mr. Faiman — we mailed them according to the law and if the date is moved, then the date for everything must be moved. Will Sullivan stated he is upset because of what was posted and it is not what is being discussed. Mr. Faiman stated the evidence we have available before us on this issue shows us that it is a clerical error. I find it unlikely that there will be further evidence that will change our opinion.

Joanna Eckstrom — I feel we have all the evidence including the ballot and the language in the ordinance last year, paragraph 4.7.1 in the ordinance now and that the description of the change shows that the wording was omitted. Mr. Faiman — if the public notice is defective, the Board cannot hold a hearing because the public notice is a part of creating the case, whether we feel it has been adequately noticed or not. We need someone to make a motion.

Joanna Eckstrom requested the following be read again: the notice and the notice for the previous case tonight. Mr. Faiman obliged. Ms. Eckstrom commented that if we are to consider that this notice is defective, then I would state that any other notices sent were defective. Will Sullivan — you are discussing something that is no longer in the ordinance. The 4.7.1 paragraph currently states this is a prohibited use. Mr. Keyes stated (regarding the proper notices), wasn’t it written the same as the previous case? Will Sullivan — no, it was defective.

MOTION: Joanna Eckstrom motioned to hear the case, that we have complied and provided notice to abutters in a timely manner and we should discuss it tonight. Ron Hanisch seconded the motion. In favor of proceeding: Jim Tuttle, Joanna Eckstrom, Ron Hanisch and Bob Spear. Against proceeding: Neil Faiman.

Therefore the Board proceeded with the case

Bob Spear asked what kind of wording would be appropriate in the notice? I feel the notice is adequate. Mr. Faiman — we have all read the text, and Betty Castro is the Chairperson for the Wilton Planning Board and she is here to assist with this issue. Betty Castro said she does have some information on the drafts of the words. All the Board wanted to do was keep the section the same as it was, and add the same language for an office park. What was put in the ordinance was not what the Board intended. It is going to have to be corrected. Joanna Eckstrom — so the section 4.7.2 will also have to be fixed? Betty answered yes, it was a clerical omission. Mr. Faiman — the description on the ballot is clear that the intent was that the ordinance read as it did last year with the changes noted.

MOTION: Ron Hanisch motioned, Jim Tuttle seconded to grant the appeal requested as shown in the town ballot and the previous copy of town ordinance. The language of the 4.7.1 prior to the 3/99 meeting was as it was here:

1-Amend existing Section 4.7 Temporary Placement of Manufactured Homes by recodifying it in two subsections, one of which (Section 4.7.1) shall contain the current ordinance for the temporary placement of manufactured homes as dwellings, and the second (Section 4.7.2) Temporary Placement of Office Facilities (which shall constitute an ordinance for the temporary placement of office facilities while a permanent structure is reconstructed after damage by fire or other natural cause, and which requires a site plan review for the permanent replacement of damaged office facilities.)

Which would be added to the section

2-The warrant article #6 voted on by town meeting in 3/99 stated that the revised Paragraph 4.7 was to include the existing text on section 4.7.

Therefore, that the language printed in the ordinance does not reflect the intent of the town meeting or of the Planning Board, therefore the ZBA grants the applicant’s appeal and finds that he is permitted to place a manufactured home on the property for no more than 12 months, with a possible extension of 6 months in case of hardship, while building a permanent home.

Joanna Eckstrom commented that the Zoning Board feels that there may also be a defect in paragraph 4.7.2 of the ordinance.

All were in favor of the motion.

Chairman Faiman noted that a written notice of the ZBA decision will be sent and that any person affected by the decision may request another meeting in writing within 20 days and file in the town offices. In the absence of such a request, the decision will be final. It was recommended to the applicant to wait 20 days prior to placing a manufactured home on the property, until it is known whether a re-hearing will be held on this issue.


MINUTES 9/8/99 — change Renville to Grenville Clark throughout.

MOTION: Ms. Eckstrom moved to approve the minutes, Jim Tuttle seconded. All were in favor.

A motion was made and seconded to adjourn the meeting. All were in favor and the meeting was adjourned at 9:20 p.m.

Respectfully submitted

Darlene Bouffard, Clerk

Posted: 10/19/99