Town of Wilton, NH

Zoning Board Minutes

March 12, 2002

Voting Board Chairperson Neil Faiman; members Carol Roberts, Bob Spear & Jim Tuttle; alternate member Joanna Eckstrom.
Clerk Diane Nilsson
  • Hope For Homes – Special Exception
  • Daniel Luter – Variance
  • Carol A. Handy – Special Exception

Case #3/12/02-1 — HOPE FOR HOMES

Mr. Faiman called the meeting to order at 7:35 p.m. and explained that he had received a letter from the applicant of the first case to be heard this evening-Hope for Homes- requesting that the board continue its case to the April ZBA meeting. The applicant will be applying for variances as well as a special exception at that time.

Motion Ms. Roberts moved to continue the Hope for Homes case until the April meeting. Mr. Spear seconded the motion and all were in favor.

Mr. Faiman noted that the application for the special exception will be continued, but there will also be an additional application for the variance requests to be heard at the April meeting.

Mr. Faiman then explained to the audience that the process for hearing an application is 1) to ask the applicant to explain what it is that he or she wants to do 2) why he needs permission from the zoning board to do it and 3) why he thinks the zoning board should give that permission. Once the board has a description from the applicant, members of the zoning board will be able to ask questions and get additional information that they may feel is missing in order to clarify what is being proposed. Once the zoning board is satisfied that they know what is going on, then any members of the public or abutters who may be present will have the opportunity to ask questions, provide additional information or offer opinions. Once all the information is in, the zoning board will then consider the case and, under normal circumstances, reach a decision the same evening.

Case #3/12/02-3 — CAROL A. HANDY

Carol A. Handy has applied for a special exception under the terms of section 5.3.6(b) of the Wilton Zoning Ordinance, to permit an increase in the number of children permitted in her in-home day care on Lot B-146, 1060 Isaac Frye Highway.

Ms. Handy gave the clerk a check in the amount of $45 to cover the application fee balance due. She then explained that she would like to expand her current special exception which allows for six preschool and three school aged children. The state has recently licensed her to have up to 13 children. She can have no more than four under the age of 3 and must have an aide if she has more than nine, except that the state allows her to go over that number without an aide 21 times per year. She said that she does not plan to have more than nine children except on school vacation days when some school aged children may need to come.

Abutter John Griffith said that because Isaac Frye Highway is so heavily used and people drive so fast on it now, he would not be in favor of any increase in use at Ms. Handy’s location. He suggested that the current special exception be changed to nine children total so that any combination of ages would be allowed.

Ms. Handy said that she would also like to be able to have her three grandchildren visit occasionally, and on these days the number would go over nine.

Motion Ms. Roberts moved to grant a special exception to permit an increase in the number of children permitted in Ms. Handy’s in-home day care to no more than ten children unrelated to the applicant plus no more than three of her own grandchildren. Mr. Spear seconded the motion and all were in favor.

Mr. Faiman said that the request had been granted and the applicant will receive notice of such in the mail. He further stated, 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 Thursday, April 11, 2002, and must fully specify all grounds on which the rehearing is requested. (N.H. RSA 677:2) This decision shall expire on Friday, March 12, 2004 if application to the State of New Hampshire for a license to care for that many children has not been submitted by that date. (Wilton Zoning Ordinance section 17.4)

Case #3/12/02-2 — DANIEL LUTER

Daniel Luter has applied for a variance to section 6.2(d) of the Wilton Zoning Ordinance to permit conversion of the existing single-family residence on Lot K-2, 6 Livermore Street, for use as a two- family residence.

Mr. Faiman explained that Mr. Luter came before the Zoning Board with essentially the same request in 1999 and was turned down by the board. Zoning law in the state of New Hampshire states that once a request has been decided, the decision is final, unless there is new information that makes this a different request. He asked Mr. Luter to justify why he believes the board is entitled to reconsider this request at this time.

Mr. Luter explained that his house is on Livermore Street, which is in the Res/Ag district, so to be able to change from a single-family use to a two-family use, he is required to have a two acre lot. His lot is 1/3 of an acre. He said that he decided to come before the Zoning Board again because he felt that the board initially denied his request because of a lack of hardship, and in 2001 the State Supreme Court redefined hardship so he thought that perhaps his request would meet the hardship requirements now.

Mr. Faiman said that in order for a variance request to be granted, the request must meet all five criteria. In the original denial, the board found that the request failed to meet two of the criteria: hardship, and spirit of the Ordinance. Then he read from that decision: The Zoning Board found that permitting a two-family use of the lot would be inconsistent with the spirit of the Zoning Ordinance, which establishes Livermore Street as a boundary between the Residential and Residential/Agricultural Districts, and excludes the lots on the north and east sides of Livermore Street from the Residential District, and makes specific provisions for the multi-family use of existing dwellings on substandard lots only in the Residential District (Section 5.3.7).

He further stated that he had spoken with the Town Attorney who said that when a denial is based on multiple grounds, each of the grounds is presumed to be sufficient, in and of itself, for the denial. A change in status in regard to hardship would not invalidate a denial based on some other consideration such as spirit of the Ordinance.

He then asked the board to make a determination, before addressing the substance of the application, as to whether the board believes that it is entitled to reconsider the request given the previous denial. He stated that his opinion is that the board is not entitled to rehear the request because the previous denial based on the spirit of the Ordinance can not be overturned at this point.

In response to a question from the audience as to why Livermore Street is zoned Res/Ag, while the surrounding streets are zoned Residential, Mr. Faiman said that after Mr. Luter’s original request to the Zoning Board in 1999, he went to the Planning Board and requested that the board support a zoning change, from Res/Ag to Residential on Livermore Street. The board declined to do so, citing among other reasons, the fact that Livermore Street abuts the elementary school and the board felt that the increased traffic that would result from two-family or three-family residences would not be a good idea.

He then reiterated that the first question this evening for the Zoning Board was whether it is even entitled to hear this request given the previous denial. He added that there is an appeals process that is set up for applicants if they wish to avail themselves of it. It consists of first appealing the decision to the ZBA and then to the Superior Court. Mr. Luter did not appeal the Zoning Board denial.

Ms. Eckstrom stated that she felt that a substantial change has been made in the redefining of the hardship issue and thus felt the request warranted a second look.

Ms. Roberts asked if the board is to understand that each reason for denial stands on its own? Mr. Faiman responded yes – since the board must find five separate criteria to be satisfied before it can grant a variance, a finding that any one of those criteria is not satisfied requires denial of the variance. And in this case the board found two individual, independent criteria were not satisfied, each of which, standing alone, justified denial of the variance.

It was noted that there are currently no multi-family homes on the north side of Livermore Street.

Mr. Faiman suggested that the Board could find that circumstances have changed in such a fashion that, in fact, it is a different case now. And because it is a different case, the board can hear it. But if the Board does not believe that the circumstances have changed to make it a different case, then legally the Board does not have the power to reconsider a prior decision.

At this point the Board spent some time studying the minutes from the original 1999 request and the new standard for unnecessary hardship. In response to a question from a Board member, Mr. Faiman explained that there are two ways that a zoning amendment can be placed on the ballot for consideration:

The Planning Board can place it there, or it can be placed there by petition. Mr. Luter could have tried to convince the Planning Board to change the zoning on North Livermore Street or he could have filed a petition to do so. And he could have done either or both of these things in 2000, 2001 and 2002.

Ms. Roberts stated that she felt that the scope of the power of the Zoning Board does not include rezoning an area, and that’s what granting this request would seem like.

Motion Ms. Ekstrom made a motion to hear the case on the grounds that the definition of unnecessary hardship has changed substantially so as to allow this Board to consider the request.

There was no second to the motion so the motion died.

Motion Mr. Spear made a motion to find that the request for a variance to permit multi-family use in the home on Lot K-2 is barred from being heard because the request is substantially the same as a requested variance which the Zoning Board denied on February 10, 1999. The motion was seconded by Ms. Roberts. Four members voted yes and Ms. Eckstrom voted no.

Mr. Faiman stated, 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 Thursday, April 11, 2002, and must fully specify all grounds on which the rehearing is requested. (N.H. RSA 677:2)


Minutes – December 11, 2001

Motion Mr. Tuttle moved to accept the 12/11/01 minutes as written. Motion was seconded by Ms. Eckstrom and four were in favor with Mr. Spear abstaining.

A motion was made and seconded and all were in favor of adjourning the meeting. The meeting was adjourned at 8:50 p.m.

Respectfully submitted,
Diane Nilsson, Clerk
Posted: 3/18/02