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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.

September 10, 2002

TOWN OF WILTON

ZONING BOARD OF ADJUSTMENT

September 10, 2002

Voting Board Chairperson Neil Faiman; members Joanna Eckstrom, Carol Roberts & Bob Spear; alternate Ron Hanisch.
Clerk Diane Nilsson
Agenda
  • Greeley – special exception (continued)
  • Sanders – special exception
  • Glines – special exception
  • Tatro/Talisman – rehearing

Mr. Faiman called the meeting to order at 7:35 p.m. and explained to the audience that the process for hearing an application is 1) to ask the applicant to explain what the proposed used is 2) why they need approval from the zoning board to permit that use and 3) why they think the zoning board should give that approval. 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 understand the request, 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 has been collected, the zoning board will then consider the case and, under normal circumstances, reach a decision the same evening.

Case #8/13/02—2 — GREELEY (continued from 8/13/02)

Richard D. and Marilyn R. Greeley, Trustees, have applied for a special exception under the terms of section 11.4(a) of the Wilton Zoning Ordinance, to permit construction of a driveway which would cross a wetland area on proposed new lot C—24—1, to be subdivided from Lot C—24, Goldsmith Road.

This is the second in the required two-meeting wetland crossing special exception. Dawn Tuomala represented the Greeley’s and presented the same wetland crossing plan as was presented on 8/13/02. The plan calls for crossing two wetland areas with three crossings. Mr. Faiman, Mr. Spear and Ms. Roberts visited the site and reported that it looked good. The Spencer Brookes of the Conservation Commission had no objection to the plan. No one in the audience had any comments or questions.

Motion Ms. Eckstrom moved to approve the special exception as presented. The motion was seconded by Mr. Spear. The vote was unanimous in favor.

Mr. Faiman stated that the request had been granted and the applicant will receive notice of such in the mail. He further stated, the selectmen, the applicant, any party to the action or proceedings, or any person directly affected by the decision 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, October 10, 2002, and must fully specify all grounds on which the rehearing is requested. In the absence of such a request for reconsideration the decision becomes final. (N.H. RSA 677:2) This decision shall expire on Friday, September 10, 2004 if construction of the wetland crossing has not begun by that date (Wilton Zoning Ordinance section 17.4)

Case #9/10/02—1 — JANICE E. AND ROYDEN C. SANDERS

Janice E. and Royden C. Sanders, Trustees have applied for a special exception under the terms of section

11.4(a) of the Wilton Zoning Ordinance, to permit the construction of two driveways that cross wetland areas in order to access proposed building sites on Lot A—31—2, Tighe Farm Road.

Dawn Tuomala, of Monadnock Survey, presented a letter of authorization allowing her to present the case for the applicants. She presented a subdivision plan for Lot A—31—2 which showed the property being divided into 3 house lots: A—31—3, 25 acres; A—31—4, 23.8 acres and A—31—5, 23.4 acres. The driveway begins as a shared driveway with Susan Bradley, Lot A—31 Tighe Farm Road. Then a driveway to Lot A—31—5 veers off to the right and does not cross a wetland. The shared driveway for the remaining two lots comes up through Lot A—31—4 and then splits with one going to the left and one going straight. Each one will cross the same wetland. One impact is 320 square feet and the other is 500 square feet. There will be one regular frontage lot and two reduced frontage lots.

Mr. Faiman said that he has walked the land in conjunction with Planning Board subdivision review.

Abutter Jim LaBreck, 87 Stiles Farm Road asked for confirmation that there would not ever be any access from any of the lots to Stiles Farm Road. Ms. Tuomala said that at this time there are no plans to access Stiles

Farm Road but she would not rule out the possibility of future access. Mr. Faiman said that the three lots are required to have access to Tighe Farm Road because it is a class V road, but it is possible that an additional driveway could access Stiles Farm Road but they would need permission from the Stiles Farm Road Association.

The Conservation Commission has not visited the site. The Zoning Board scheduled a site visit for Sunday,

October 6 at 9 a.m. Mr. Faiman stated that the site walk is a public meeting so anyone who is interested has the right to attend.

Motion Ms. Eckstrom moved to continue the hearing to the October meeting. The motion was seconded by Mr. Hanisch. The vote was unanimous in favor.

Case #9/10/02—2 — DAVID AND JANE GLINES

David and Jane Glines have applied for a special exception under the terms of section 11.4(a) of the Wilton

Zoning Ordinance, to permit the replacement of an existing bridge with a culvert, as part of a wetlands crossing, on Lot F—145, 454 Isaac Frye Highway.

Dawn Tuomala, of Monadnock Survey, presented a letter of authorization allowing her to present the case for the applicants. She presented a Wetlands Impact Site Plan and four color photographs showing the small wooden bridge from four directions. She explained that the applicants would like to replace the bridge to provide better access to the new building for Jon’s Cycle Center. Proposing to put a 36” 45’ long culvert there.

Spencer Brookes, with the Conservation Commission, asked about drainage issues relating to the flow through Route 101 to Isaac Frye Highway. Mr. Glines said that the culverts under 101 are 36” and the culverts under Isaac Frye are 24”.

Mr. Brookes also raised the issue of drainage in relation to the proposed commercial operation across Route 101. the Tatro/Talisman proposal, saying that a lot of pavement in that operation will create new drainage problems. Ms. Tuomala said that the drainage issues on that property will have to be addressed as part of the site plan review process when it gets to the Planning Board.

Motion Ms. Eckstom moved to continue the hearing to the October meeting. Ms. Roberts seconded the motion. The vote was unanimous in favor.

A site visit was scheduled for 8:30 a.m. on Sunday, October 6, 2002.

Case #6/11/02—2 — PHILIP TATRO & TALISMAN PROPERTIES, LLC – Reconsideration Hearing

Philip Tatro and Talisman Properties, LLC have requested that the Wilton Zoning Board reconsider its denial of a requested variance to the terms of section 8.2.8 of the Wilton Zoning Ordinance, to permit an ingress-only entrance from NH Route 101 to a proposed service station and car wash on Lot F-12-6, NH Route 101, where the ordinance would require that all access to the lot be taken from Industrial Drive.

Mr. Faiman added that the applicant has also asked that the Zoning Board reconsider the question of whether the Town has authority or whether the Zoning Ordinance is preempted by the State regulation with regard to the proposed driveway.

The Zoning Board voted to grant a rehearing of this case to allow the applicants to enlarge on the points raised in their written request for consideration (see file) or to allow the Zoning Board to elaborate on its reasons for denial.

Attorney Donald Gartrell represented the applicants and stated that the principal issue that is raised in the Motion for Rehearing has to do with the matter of jurisdiction of the Board and goes to the question of whether section 8.2.8 of the Wilton Zoning Ordinance is within the jurisdiction of the Town under the enabling statutes for zoning.

Mr. Gartrell reiterated that his clients have been issued a State highway permit, issued by the Commissioner of Transportation to permit a one-way egress for westbound traffic off of Highway 101 onto the applicants’ property. He summarized RSA 236:13, which he said states that the regulation of access to State highways is governed by a written permit issued by the Commissioner of Transportation of the State. He also said that 236:13V confers the same powers of regulation onto the Planning Board with regard to roads that are not State highways.

He cited the case of J.E.D. Associates vs. the Town of Sandown which states: The State has preempted the control of State highways. Towns may not regulate a field that the State has preempted. Planning Boards are allowed, under the statute, to regulate arrangement and coordination of streets in subdivisions in relation to their other existing planned streets but that does not give municipalities control over access to State highways.

Mr. Spear questioned why the towns along Route 101 and Route 101A adopt access management guidelines when they are not allowed to use them.

Ms. Roberts said that the reason 8.2.8 limits curb cuts along Route 101 is to decrease driver confusion as well as congestion. If this driveway is allowed to be built, there will be two exits for westbound traffic off

Route 101 and into the property within a couple of hundred feet of each other. Mr. Faiman added that this will mean that cars will be slowing down to make the first right entrance and other cars will be trying to go around that potential line of traffic to get to the next right entrance at Industrial Drive.

Ms. Eckstrom felt that Zoning Ordinance 8.2.8 is ambiguous in that the last sentence says “Access to any Town or State highway shall require Town or State permit approval.”

Mr. Gartrell stated that the question before the Board should be whether the Board has jurisdiction to deny the request of the applicant, based on what the Board knows over jurisdiction to the State highway as defined in the statutes and as defined in the cases which have interpreted it.

Mr. Faiman said that the Zoning Board has a collection of standards by which it may grant a variance. To suggest that a zoning board’s does not have jurisdiction to deny a variance because the zoning ordinance it pertains to is invalid is something he has never seen in any case law or commentary on the powers of zoning boards. He said that the Zoning Board is presented with a request which is presumed to be a valid good faith request and the request is in the context of an ordinance. For the Zoning Board to say “we can’t deny this variance” is unheard of. If the ordinance is indeed invalid, then there is no need for a variance to that ordinance. If the ordinance is valid, then the process for the variance is the traditional five-point test.

Mr. Gartrell said that if the Board chooses to ratify its original decision, what you would be saying is you are reaching that conclusion only because the language is in your ordinance and you feel that you are absolutely bound to enforce language in the ordinance notwithstanding the legal mandate which limits the authority and jurisdiction of the Zoning Board in this matter. Again, the threshold question here is whether you have jurisdiction to restrict the access which has been granted by the State Commissioner of Highways.

Mr. Faiman pointed out that in the booklet entitled The Board of Adjustment in New Hampshire: A Handbook for Local Officials, published by the Office of State Planning, on page 40 it states… Boards of adjustment should remember that, although they have quasi-judicial powers, they are not a duly constituted court and cannot rule on points of law. That is, the board cannot declare an ordinance invalid because it appears to be improperly drawn or enacted or violates state or federal law. It must assume that the ordinance is legal unless declared otherwise by a court.

Mr. Faiman said that he would reject the applicant’s position on this point for two reasons:

• He believes it is not within the statutory powers of a zoning board to find a zoning ordinance inapplicable or unenforceable.

• He believes that even if it were, that that particular point would not be legally before the board because it was not raised in the application nor was it properly noticed.

Therefore he felt that the only legitimate action for the board to take with respect to this argument is to decline to issue a judgement on it one way or the other. This is not a matter over which the Zoning Board has jurisdiction.

Mr. Faiman said that the Board does have jurisdiction to consider a request for a variance to a provision of the Town Zoning Ordinance, under the presumption that the Ordinance is valid. If an applicant wishes to maintain that an ordinance is not valid and that a variance was never required in the first place, then the courts are the appropriate place to raise that point.

Mr. Gartrell, in responding to the second point in Mr. Faiman’s reasons for rejecting the jurisdiction argument, said that during the first hearing the applicants said that they were there under a reservation of rights. They have preserved their right to challenge the jurisdiction from the beginning.

Ms. Eckstrom felt that the Board agreed to rehear the case based on what was written in the Motion for Rehearing and the jurisdiction argument is a large part of that document.

Attorney Andrew Sorrell, representing abutter Monadnock Mountain Spring Water, said that he has never heard of a case where a town zoning board of adjustment held that the town’s own ordinances are invalid. Nor has he ever heard that a court has held that a zoning board has that authority. And there is no state statute that holds that a town zoning board has the authority to declare the town’s own ordinances invalid. The applicants had two choices as to how to proceed. If they believed that the ordinance was invalid, they could either have done what they did here, which was apply for a variance, if the variance if denied, go to court and ask the court to declare that the ordinance is invalid. Or they could have chosen initially to go to court, file a declaratory judgement action and ask the court to declare that the state law preempts the town ordinance. The appropriate forum to address whether or not the town ordinance is valid is a court, not this board.

The board asked Mr. Faiman to reread the section on page 40 of The Board of Adjustment in New Hampshire: A Handbook for Local Officials.

Motion Ms. Roberts moved to deny the applicant’s request that the board find the Ordinance to be invalid or inapplicable to the lot in question, because the Zoning Board has no authority or jurisdiction to make such a determination. Mr. Hanisch seconded the motion. The vote was

4 in favor and Ms. Eckstrom voted no.

The Board then took up the Rehearing of the Variance Request.

Mr. Gartrell said that ingress-only driveway promotes public safety, is in line with what the Wilton Master Plan calls for and is in line with access management goals. More detailed arguments are contained in the Motion for Rehearing. (See file)

Mr. Faiman said that to find a hardship, the board must find:

• That the zoning restriction, as applied to the applicant’s property, interferes with the applicant’s reasonable use of the property considering the unique setting of the property in its environment.

Mr. Faiman stated that the applicants’ arguments centered around public safety and traffic flow on Route 101.

No evidence has been presented that denying the additional driveway would interfere with the ability to conduct the business of a gas station and a car wash.

• Mr. Faiman said that the applicants claim that there are two unique characteristics of their lot: The proximity to NH Route 31 and the long frontage.

He felt that while the proximity to Route 31 may be relevant to public safety and traffic flow, those are not issues having to do with the applicants’ use of the property. He didn’t see any way in which the proximity to Route 31 makes the hardship unique to the property. It may be an unusual characteristic of the lot, although 650’ isn’t all that close, but it didn’t seem to him that not having an extra driveway is more of a problem to this property, within 650’ of Route 31, than it would be if they were 2000’ from Route 31.

Regarding the length of frontage of the lot, which is 560’, Mr. Faiman said there were over a dozen lots in the Industrial and Commercial Districts on Route 101 with frontage of 500’ or more. He didn’t see that the frontage was a unique characteristic of the lot either. Ms. Eckstrom asked if these lots had been developed.

Mr. Faiman answered that some have been and most have not.

Mr. Faiman said that to find a hardship the board must also find:

• That no fair and substantial relationship exists between the general purposes of the Zoning Ordinances and the specific restrictions on the property.

Mr. Faiman said that the Town Master Plan expresses a reason for adopting this particular restriction. The restriction is clearly the expression of an intention having to do with traffic flow. That’s enough to establish a fair and substantial relationship between the purpose of the Ordinance and the specific restriction.

Mr. Faiman said that granting the variance would be inconsistent with the spirit of the Ordinance for the same reason as above.

Mr. Faiman concluded by saying that substantial justice would not be done by granting the variance because the subdivision is only 5 years old and Industrial Drive, as part of the subdivision, was discussed at great length at the time of the subdivision. Clearly the subdivision was designed to be consistent with section 8.2.8, which required a single point of access for all 5 lots in the subdivision. There was no indication of reservation of rights nor questions about future access raised at that time. Now to say that one of the lots that we created really should have an additional access to it, to the extent that there may be a hardship there, he would see that as a self-created hardship and thinks that granting the variance would not do substantial justice for that reason.

Spencer Brookes, of the Conservation Commission, said that there is going to be a huge amount of paved area already in this proposed development. The additional driveway will create even more paved area and therefore less area for water absorption. In addition, trees will have to be removed to build this road and there will not be a way to buffer the site from view with this additional entry road in place.

Ms. Eckstrom said that she felt that the issue of safety is connected to the applicants’ reasonable use of the property. She also stated that although she agrees with Mr. Brookes that this road will create environmental concerns, she feels the Planning Board will address them, and as to the lack of a buffer where the additional roadway will be built, she felt that an adequate buffer can be provided on the rest of the lot.

Mr. Spear stated that he has a concern about safety if this road is allowed to be built. When the other four lots have occupants, and people want to get to those lots via Industrial Drive from the east, there is the potential for bottlenecks to develop at the proposed additional road that people will want to swerve around to get to the Industrial Drive entrance.

Ms. Roberts felt that there was not sufficient evidence to prove hardship and to grant the variance would not be within the spirit of the Ordinance.

Mr. Hanisch agreed with the above statement and said that it is pretty clear that the Ordinance calls for limiting curbcuts on Route 101 and this lot already has access via Industrial Drive.

Motion Mr. Spear moved to uphold the original denial of this variance request on the grounds that there is no hardship, it is inconsistent with the spirit of the Ordinance and that substantial justice would not be done because the hardship was self-created by the original subdivision. Ms. Roberts seconded the motion. The vote was 4 in favor and Ms. Eckstrom voted no.

Mr. Faiman stated that the applicants will receive a Notice of Decision in the mail.

The board decided to meet on Thursday night, September 12, 2002 at 6: 30 p.m. to write the Notice of

Decision for the Tatro/Talisman rehearing.

Motion Mr. Spear moved to approve the 8/23/02 minutes as written. The motion was seconded by Mr. Faiman. The vote was 3 in favor. Ms. Eckstrom & Mr. Hanisch abstained.
Motion Mr. Spear moved to approve the 8/13/02 minutes as written. Ms. Eckstrom seconded the motion. The vote was 4 in favor and Mr. Hanisch abstained.

The meeting was adjourned at 10 p.m.

Respectfully submitted,
Diane Nilsson, Clerk