Town of Wilton, NH

Zoning Board Minutes

November 11, 2000

Voting Board Chairperson Neil Faiman; members Bob Spear & Jim Tuttle; alternate member Joanna Eckstrom.
Clerk Diane Nilsson
  • William & Kelly Hoff- Equitable Waiver and Special Exception
  • W. Anthony Mason - Special Exception

Mr. Faiman called the meeting to order at 7:32 p.m. and explained to the applicants that only four members could be found to hear the cases. He explained that four members is a quorum but that for any positive decision to be reached, three members must vote in favor. He further explained that if an applicant chooses to go ahead with a four member board, then that applicant cannot later say that the decision was not valid because it was made by a board smaller than five members.

Case # 11/8/00-1 WILLIAM & KELLY HOFF

William & Kelly Hoff have applied for an equitable waiver, as provided for in RSA 674:33-a, or alternatively for a variance from the terms of section 6.2.4 of the Wilton Zoning Ordinance, to legitimize a garage which was built too close to a side lot line on Lot H-93, 1001 Mason Road.

Attorney Daniel Donovan, representing one of the Hoff’s abutters, raised the issue of a possible conflict of interest with board member Jim Tuttle, since Mr. Donovan is the legal council for the Wilton Water Commission and Mr. Tuttle is a member of that board. Mr. Tuttle stated that he had no personal relationship with Mr. Donovan, but felt that the board should decide the issue. The board took a non-binding advisory vote and decided that Mr. Tuttle had no conflict and should sit on the case.

The Hoff’s chose to go ahead with the hearing. Mr. Hoff explained that in July, 1996, they had decided to build a garage on their property. They asked Frank Millward, town building inspector, what the setback requirement was from the side lot line and were told erroneously that it was 15 feet. On August 9, 1996 they filed their application which stated that the garage would be 20 feet from the nearest lot line. They received approval within two weeks and started building the garage. Mr. Millward saw the footings, foundation and then the completed structure and never mentioned any problem with the location. The garage is 1248 square feet on a full foundation with 8 inch walls and would be impossible to move. Mr. Hoff had a copy of the building permit stating that the property is located in the Residential/Agricultural district, but it was not signed by Mr. Millward.

Board members looked up the permit in the 1996 Town Report and saw that it was there. Mr. Faiman stated that he spoke to Wilton Town Counsel Silas Little and asked him if a structure, constructed in good faith, based on a permit erroneously granted by a town official would be sufficient justification for RSA 674:33-a. Atty. Little thought it would be.

Motion Mr. Spear moved to grant the equitable waiver based on the good faith error of the applicant and the issuance of an erroneous permit by a town official. The motion was seconded by Ms. Eckstrom and all were in favor.

Mr. Faiman stated that the Hoff’s would receive a Notice of Decision in the mail. 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, November 28, 2000, and must fully specify all grounds on which the rehearing is requested. (N.H. RSA 677:2)

Case # 11/8/00-2 WILLIAM & KELLY HOFF

William & Kelly Hoff have applied for a special exception under the terms of section 6.6.1 of the Wilton Zoning Ordinance to permit a machine shop as a home occupation in a garage on Lot H-93, 1001 Mason Road.

Mr. Faiman read sections 6.6.1, 5.3 and 4.6 from the Wilton Zoning Ordinance.

Mr. Hoff stated that he would like to put in a machine shop into half of his garage. He stated that no noise, smoke or vibrations would be created from this use. He also stated that the garage is not situated in a wetland but that the garage floor will be coated with a sealer in any case. The garage will be insulated for sound, he does not plan to hire any employees, he does not plan to send or receive more than five deliveries per week, he does not plan to erect a sign and there is currently space for seven cars to park outside the garage. Mr. Faiman asked about the potential for noise in a machine shop. Mr. Hoff answered that it’s not like a sheet metal shop, but comprised mostly of turning and milling, not stamping or pounding, it shouldn’t sound any louder than if someone were mowing a lawn (inside the garage with the doors closed.) Mr. Hoff’s hours of operation would be 6 a.m. - 8 p.m.

Attorney Dan Donovan, representing abutters Ellen O’Shea and Joanne Dufour explained that his clients and the Hoff’s share a driveway that cuts across his clients’ property. The driveway enters Mason Road at a very sharp angle with limited sight visibility in both directions, but especially to the right. It is difficult for a car to negotiate this turn and a truck even more so. There is also the question of whether the expansion of the use of the easement for a commercial purpose would be legal. The abutters feel that the hours of operation are excessive and are also concerned about noise during the day because Ms. O’Shea works nights and sleeps during the day. They feel that a machine shop is an inappropriate use in a residential/agricultural neighborhood which is becoming more and more solely residential and wish to voice their objection.

Mr. Hoff was asked whether he would consider putting in his own driveway to Mason Road. He answered that he has considered it but cannot afford to do so at present.

Abutter O’Shea claimed that she has put thousands of dollars into the maintenance of the shared driveway and has not been compensated by the Hoff’s. She is very concerned that any increase in truck traffic in the spring will ruin the driveway.

Abutter Christine Polonsky was interested in seeing where the potential new driveway might be located and Mr. Hoff pointed it out.

Mr. Faiman pointed out that the role of the zoning board, in granting this special exception, is to follow the many requirements laid out in the ordinance that are there to protect the public. One of the major objections from abutters O’Shea and Dufour is based on a private matter, which is the applicants right to use the property of the abutters and the limits and extents of that right. What they are objecting to is the extent to which the applicants proposed use will impinge on a driveway which they have a right to use by easement, and whether that use is within the bounds of the rights that the easement grants them. His inclination is to say that this is a private matter that needs to be resolved between the applicant and the abutters through sources other than the ZBA.

Atty. Donovan agreed with Mr. Faiman on the issue of the shared driveway easement language and wanted to bring the board’s attention to the introduction to section 5.3.1 which states that when considering an application for a home occupation, the board shall consider the location of the proposed use, the area of the lot, the type and density of surrounding development, existing buffers and screens between the proposed use and surrounding development, and the compatibility of the proposed use with the surrounding neighborhood.

Abutter Dufour stated that she doesn’t really know anything about machine shops and would like to know more specifics about exactly what she will be experiencing once the shop is there. Mr. Hoff answered that he will be cutting metal and operating lathes, surface grinders, a milling machine and welding equipment.

Audience member Dorothy Cleaves offered that her son runs a machine shop with various milling machines and they are fairly quiet. You can have a conversation while they are in use.

Abutter O’Shea reiterated that she is concerned about noise during the day when she is trying to sleep. She stated that she can hear someone talking at the Hoff’s garage, so is not convinced that the noise level will be quiet enough for a residential neighborhood such as theirs. She is especially concerned about the summer when Mr. Hoff plans on having the doors open while working in the shop. She also stated that she believed that there is some type of federal requirement regarding appropriate ventilation when welding. These are the types of things that are looked at in industrial uses, and when an industrial use such as this is allowed in a residential neighborhood, these safeguards tend to be overlooked.

Mr. Faiman stated that the proposed use that has been described sounds reasonable, but I would like to see more information so that I could understand at what point the use would be something that I would not consider reasonable. I would like to continue the case for a month and ask the applicant to come back with a thorough description of the use; what equipment will be used; what noise levels will be reached, etc.

Motion Mr. Tuttle moved to continue the hearing with a request to the applicant to provide a more detailed description of the proposed use. The more information and the more detail that the applicant provides, the easier it will be to satisfy the board’s concerns. The motion was seconded by Mr. Spear and all were in favor. The hearing will continue on December 13th.

Case #11/8/00-3 W. ANTHONY MASON

The Fountain House LLC (applicant) and W. Anthony Mason (owner) have applied for a special exception under the terms of sections 5.3.2 and 6.1(a) of the Wilton Zoning Ordinance, to permit the operation of a Bed and Breakfast at Lot J-133, 55 Burns Hill Road (“The Fountain House”).

Mr. Faiman read section 5.3.2.

Attorney Bobbie Hanz represented owner Tony Mason, who was also present, and presented a to-scale drawing of the lot which allows for 10 parking spaces: 2 for the resident owners, 2 for the non-family employees, 4 for the guests & 2 extras. This plan allows access to the garage and room for cars or a delivery truck to pass around the circular drive. (5.3.1f) Atty. Hanz went over the rest of the requirements for a home occupation special exception. She then read through the requirements for a special exception (4.4) and added that this residence has been used as a restaurant, and inn, and most recently as a dance studio.

Mr. Tuttle asked about parking spaces eliminating lawn area. Ms. Hanz said that spaces 1, 2 and 3 are located on the lawn but the lawn would not be replaced, these would simply be the last spaces used and would serve as overflow parking. Mr. Tuttle also stated, as a water commissioner, that the owner should have a backflow device installed to protect the water system, since the use will intensify from its precious residential use.

Abutter Spencer Brooks stated that where parking space #7 is located on the drawing, there is actually a propane tank, so that leaves seven spaces.

Abutter Dorothy Cleaves stated that the propane tank is about 10 feet from her property line and 20 feet from her front porch. She asked if a propane tank is allowed in the setback. She didn’t receive a clear answer from the board and Mr. Faiman suggested that she take the problem to the selectmen. Atty. Hanz said that she was not sure about parking space #7 being displaced by the tank. She thought that there was most likely still room for four cars along the driveway even if space #7 has to move down. There are also two parking spaces in the garage.

Abutter Brooks asked for clarification about the zoning ordinance definition of a Bed and Breakfast. He asked if it was appropriate for private parties, wedding receptions, family reunions other than the owner’s family to be held there during the day. He stated that last weekend there was a party of some kind during the day and there were many more cars there than could fit in the driveway so there were cars parked on the street. He said that he has no objection to family gatherings a couple of times a year like many people have, but he is concerned that the owner is planning to rent the facility for weddings, gatherings and reunions. He presented the board with a brochure for The Fountain House with a paragraph intimating that this is indeed what the owner is offering. Mr. Faiman stated that his understanding of the definition for a Bed and Breakfast is that this type of use would not be allowed. The use of a Bed and Breakfast pertains to letting out rooms to overnight guests and providing facilities for those guests.

In reference to the aforementioned party, audience member Kathleen MacNamara stated that Mr. Mason allowed her to use the house for a private party.

Mr. Faiman stated that, in his opinion, commercial use of the facility for groups of people other than the immediate guests would be outside of the use as a Bed and Breakfast and would not be a permitted use. He then reread section 5.3.2 Bed and Breakfasts. Up to four lodging units may be created and rented in an existing dwelling, and meals may be provided to the persons renting the lodging units.

Mr. Faiman asked about plans for signage. Mr. Mason stated that the sign will have four square feet of lettering but the sign itself will be larger than that.

Motion Ms. Eckstrom moved to grant the special exception, seconded by Mr. Tuttle with all in favor. Mr. Faiman stated that the applicant would receive a Notice of Decision in the mail. 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, November 28, 2000, and must fully specify all grounds on which the rehearing is requested. (N.H. RSA 677:2)


Minutes - October 11, 2000

Motion Ms. Eckstrom moved to approve the 10/11/00 minutes as written, seconded by Mr. Tuttle and all were in favor.

A motion was made to adjourn the meeting. All were in favor, and the meeting was adjourned at 9:50 p.m.

Diane Nilsson, Clerk