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Minutes posted at this web site have not been checked for consistency with the printed minutes that are available in the Wilton Town Offices. If you need the definitive minutes of a ZBA meeting, please obtain the printed minutes from the town offices.

August 9, 2000

Voting Board Chairperson Neil Faiman; members Carol Roberts, Bob Spear & Jim Tuttle; alternate members Joanna Eckstrom & Ron Hanisch.
Clerk Diane Nilsson
Agenda
  • Ron Fournier - special exception (continued)
  • John & Sharon Fuller - equitable waiver
  • Alexander & Cynthea Frongillo - special exception

Mr. Faiman called the meeting to order at 7:37 p.m. and explained that the board members would be sitting in different combinations on the three cases this evening.

Case # 7/12/00-1 FOURNIER (continued)

Ron Fournier has applied for a special exception under the terms of section 17.3 of the Wilton Zoning Ordinance, to permit the construction of a garage 5 feet from the rear lot line and 4 feet from the side lot line on lot K-82, 180 Main Street.

Sitting on this case are members Carol Roberts, Bob Spear & Jim Tuttle; alternate member Joanna Eckstrom and chairperson Neil Faiman. All of the above visited the site at 7 p.m. and saw where Mr. Fournier wishes to build his garage.

Mr. Fournier stated that he wants to build a two-car garage which would hold two antique cars and a car trailer. Presently one of the cars is housed in a tent on the spot where he would like to build the garage. The other car is in the backyard under a canvas and the trailer is in the driveway. Next to the tent there is a metal garden shed which he would also like to remove. The size of the planned garage is 24' X 26' and it would have a peaked roof to provide attic space for storage. He stated that the garage will improve the neighborhood because it will consolidate all of the things in his yard now under one roof. He also felt that building it close to the property lines is in keeping with other properties in the area. He cited lots K-79, K-80, K-83 and K-87 all having out buildings either on the property lines or very close to the property lines. He said that the garage needs to be located where it is so that he can get in and out of it.

Mr. Fournier presented the board with a to-scale drawing of his property which showed the garage located 6 feet from the rear property line, 4 feet from the side property line and 22 feet from the rear of his deck. He said that he would like the garage to be 8 feet tall on the inside, with an attic tall enough to be able to stand upright in the center. He didn't know what the exterior height would be. He realized that his neighbors to the rear, the Bergin's, were concerned that snow would fall on their fence. He offered to add dormers to the rear to stop the snow from sliding. He also said that he could move the garage 2 feet closer to his deck, but would prefer not to. He reiterated that he would be fixing or improving the french drain that comes down through the properties in the rear and ends right where he wants to build the garage.

Abutter Chris Bergin asked what happened to the idea from last month of turning the garage sideways and placing it in the left side of his yard so that it wouldn't block her view from her deck. Mr. Spear responded that it looked like it would be a very tight fit to place it there and it would be difficult to back the 21' trailer around the curve to get into the garage. Mr. Spear also pointed out that there were quite a few tall trees between the two properties. Mr. Fournier said that he was not planning to cut any of them down.

Abutter James Martin pointed out that the Bergin's property is about 16 feet higher than Mr. Fournier's, so the Bergin's will be looking over the garage rather than at it. He also stated that if the garage were sited 15' from the rear property line, as required by the ordinance, the view for the Bergin's would actually be more obstructed than having it closer to the line. There was discussion about the fact that the design would require a 12 pitch roof which would make the overall height of the garage about 16 feet high. And there were discussions about various siting and/or design requirements that the board might want to impose.

Motion Mr. Tuttle made a motion to grant the special exception with the stipulation that the height of the garage is not to exceed 22 feet above ground. The garage is to be constructed in the position as shown on the plan except that the rear setback is to be increased to 8 feet from the 6 feet shown on the plan. The motion was seconded by Mr. Spear. There were four votes in favor and Ms. Roberts voted no.

Mr. Faiman stated that the special exception has been granted. Mr. Fournier will receive formal notice by mail in the next 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, August 29, 2000, and must fully specify all grounds on which the rehearing is requested. (N.H. RSA 677:2)

Case #8/9/00-1 JOHN & SHARON FULLER

John and Sharon Fuller have applied for an equitable waiver, as provided for in RSA 674:33-a, under the terms of section 6.2.4 of the Wilton Zoning Ordinance, to allow a newly constructed home on lot B-42-2, Curtis Farm Road, to remain after a survey found that the home was built 25.9 feet from a side lot line.

Sitting on this case are members Bob Spear & Jim Tuttle; alternate members Joanna Eckstrom and Ron Hanisch; and chairperson Neil Faiman.

Mr. Faiman read RSA 674:33-a and then invited the Fuller's to explain the situation. Ms. Fuller drew on the chalkboard four lots adjoining each other on Curtis Farm Road. She explained that in 1998 she and Mr. Fuller purchased the two lots on the right; B-42-1 and B-42-2. B-42-2 being the lot farthest to the right is bordered by a stone wall, as described in the deed. In 1999 the Fuller's built a house on B-42-1 and sold it to Kathleen McDonnell and Robert Dolinak. On March 16, 2000, the Fuller's took out a building permit in order to build a house for themselves on lot B-42-2. Meanwhile, Mr. Dolinak wanted to build a fence around his property. He and Mr. Fuller went over the deeds, made all the measurements together and put stakes in the ground to mark where Mr. Dolinak's property boundaries were. Subsequent to that, Mr. Dolinak decided to hire a surveyor to find out more precisely where the boundaries were. At that point, both parties agreed on the location of the boundaries. The survey, done by Colonial Survey Asso., Inc. and completed on 6/23/00, showed that the parcel on the far left, of the four drawn on the chalkboard, had been given more land in the deed than it should actually have had. So, since the law states that survey corrections must be made to the last deed registered, it ended up being the Fuller's lot B-42-2. And the correction ended up cutting off 16 feet from the bottom left corner of the lot, 4 feet from the top left corner and 9 feet at the spot where the Fuller's house is closest to the side lot line, leaving only 25.9 feet to the lot line, rather than the required 35 feet.

Ms. Fuller presented copies of the deeds for both lots and a copy of the surveyor's report that had been given to her by Ms. McDonnell.

Atty Robert Shepard, representing Ms. McDonnell and Mr. Dolinak, stated that his clients and some of the abutters present would seriously dispute that this is an innocent, good faith error on the part of the Fuller's. Mr. Fuller is a professional builder and should have known to have a survey done rather than relying on where he thought the boundaries were. As soon as the chippers arrived on the Fuller's lot, his clients felt that the house was being laid out too close to their property line. He stated that Mr. Dolinak disputed with Mr. Fuller where the property line was well before any foundation was put in. His clients also reported their concerns to the town building inspector and the board of selectmen, who suggested that they have a survey done. His clients feel that the Fuller's should have had a survey done at that point. Instead they continued with their plans and built their house. Mr. Shepard said that the board should question how much of the house was built after the Fuller's discovered the proximity of the house to the lot line. He further stated, that in his opinion, the purpose of this law is to protect an innocent person who makes a minor mistake. He doesn't consider a 10' setback mistake minor. Typically you would be looking at a couple of inches. He also argued with Mr. Fuller's statement that this error will not affect property values. These two houses will be the closest of any houses in the area, and Mr. Fuller has not brought in an expert to back up that claim.

He then read a sentence from part IV of RSA 674:33-a which states that this section shall not be construed to alter the principle that owners of land are bound by constructive knowledge of all applicable requirements. Meaning that in regards to the setback requirements, the buyer has to do the research required before building. He also read d. of part I and claimed that the Fuller's rushed to complete their house so that the zoning board would conclude that the cost of correction would outweigh any public benefit gained. He concluded that it is his clients' position that the Fuller's case does not meet the criteria outlined in the statute for an equitable waiver.

The board then tried to establish some facts:

Mr. Faiman stated that if the Fuller's had been clearly informed that there was a dispute about the property line then perhaps an argument could be made that the Fuller's should have stopped building. But no one has convincingly claimed to have informed the Fuller's.

Abutter Jack Pollock raised the issue of adequate willingness to inquire 674:33-a (b). He felt that if builders aren't required to do surveys before building, a precedent is being set which encourages builders on sub-standard lots to skip the survey so that they don't have to find out anything they might not want to know about.

Mr. Faiman stated that in a normal zoning dispute, where the zoning board would have been the arbitrating body, the dispute would have been brought to the zoning board and the process would have called for a cease and desist until the dispute was resolved. In this instance there was no process for arbitration, so the building was allowed to continue.

The board discussed various options it could take, such as continuing the hearing for a month in order to consult the town council on his interpretation of some of the wording in the RSA, or asking the building inspector and/or the board of selectmen to appear in order to offer testimony about what was said and done relating to this dispute. The board decided to make a decision this evening.

Motion Mr. Spear moved to close the public portion of the hearing, seconded by Mr. Tuttle, with all in favor. The board discussed the four criteria needed to be met in order to grant the waiver and decided that they had been met.
Motion Mr. Spear moved to grant an equitable waiver based on the fact that the four criteria, as enumerated in RSA 674:33-a I(a)-(d) have been satisfied. The motion was seconded by Mr. Hanisch with all board members in favor.

CRITERIA

  1. No one present has claimed that they have any knowledge that the owners were informed that there was a measurement error before July 24, and the owners claim that they were not informed until July 24. The error was not discovered or noticed by municipal officials until they received, on July 21, a survey that showed them that the deeds and other information that they had relied on, up to that point, were incorrect.
  2. The only applicable part of this criteria is the failure to inquire question. The board found that relying on the language of one's deed is sufficient inquiry.
  3. Yes, the house is 9 feet closer to the property line than it should be, but the board saw no reason to expect a measurable decrease in property values in the area as a consequence.
  4. To correct this error would require a major expense. The board felt that 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.

Case # 8/9/00-2 FRONGILLO

Alexander and Cynthea Frongillo have applied for a special exception under the terms of section 17.3, of the Wilton Zoning Ordinance, to permit the construction of a garage approximately 3 to 9 feet from the front lot line on lot A-48-2, 77 Stagecoach Road.

The voting board for this case was: member Jim Tuttle; alternate members Joanna Eckstrom & Ron Hanisch; and chairperson Neil Faiman.

Mr. Faiman explained that with a four member board, the applicants could choose to postpone their case in hopes of having a five member board next month. The Frongillo's chose to go ahead with the hearing.

Ms. Frongillo presented a check in the amount of $4 to cover the cost of one abutter left off the list. She then showed the board a very large site plan which showed the house location very near the corner of the lot that borders the juncture of Stagecoach Road and Davisville Road. She explained that the obvious spot for a garage that would meet the 35' setback requirement, would be where the leachfield is located. She said that she spoke Mr. Duquette, who installed the septic system before the Frongillo's purchased the property, and he advised against building anywhere over the septic pipes. She also explained that there is a single car garage attached to the northern end of the house, but to add on to that garage would mean possibly destroying french drains that direct the water from the hillside to the west away from their cellar. The land west of the leachfield is too wet and to the north is too far to be practical.

The board questioned why the leachfield was placed where it was and was satisfied that state requirements probably allowed for little other choice. Mr. Faiman stated that the request seemed reasonable to him but that placing the garage 1 foot from the stone wall seemed just too close. Mr. Hanisch questioned why there were not other places on the property that would be acceptable. Mr. Faiman answered that, in the past the board has generally felt that it is reasonable to property owners to build garages. That said, what is considered reasonable placement for a garage? You need to be able to get from the house to the garage in some reasonable distance. Right now, the Frongillo's show the garage being 60 feet from the house, that is pushing the limits of convenience already, he felt.

After looking at the plan and the leachfield location more carefully, the board felt that the garage could be moved 5 feet closer to the leachfield without causing any problems.

Motion Ms. Eckstrom moved to grant the special exception in the location shown on the plan with the exception that the garage be placed at least 6 feet from the stone wall, seconded by Mr. Tuttle with all in favor.

Mr. Faiman said that the Frongillos will receive formal notification in the mail. The Frongillo's must begin construction within 24 months for this special exception to be valid. 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, August 29, 2000, and must fully specify all grounds on which the rehearing is requested. (N.H. RSA 677:2)

OTHER BUSINESS

Minutes - July 12, 2000

Motion Ms. Eckstrom moved to accept the 7/12/00 minutes as written, seconded by Mr. Spear. All were in favor except Mr. Hanisch who abstained.

Minutes - March 8, 2000

Motion Mr. Hanisch moved to accept the 3/8/00 minutes as written, seconded by Mr. Tuttle. All were in favor except Mr. Spear who abstained.

A motion was made and seconded to adjourn the meeting. All were in favor and the meeting was adjourned at 10:45 p.m.

ATTEST:
Diane Nilsson, Clerk
Posted: 8/15/00