Town of Wilton, NH

Zoning Board Minutes

May 13, 2003

Mr. Faiman called the meeting to order at 7:30 p.m.

Case #5/13/03–1 BLAGBROUGH

Corinne Blagbrough has appealed the decision of the Wilton Building Inspector to grant a building permit to Ronald Shattuck (doing business as Shattuck Homes, LLC) for the construction of a new home on Lot A–21–2, Burton Highway.

Mr. Faiman explained that there are two separate processes for appealing a decision of the Building Inspector.

One is RSA 674:33, which allows the ZBA to hear appeals of administrative decisions where it is alleged that there is an error in the interpretation of the Zoning Ordinance. The other process is provided by the Wilton Building Code, and provides for a Building Code Board of Appeals with the power to hear appeals specifically of Building Inspector decisions where it’s alleged that there is an error in the interpretation of the Building Code. The Blagbrough appeal, he said, clearly alludes to both of these processes. In Wilton, the ZBA has been appointed as the Building Code Board of Appeals so the board has the ability to sit as both of those bodies simultaneously. He suggested that the board sit as both bodies and consider the appeal under both Article VII of the Building Code and under RSA 674:33, and consider whether there are valid grounds for appeal under either of these procedures. Neither the board nor the applicant had any objections to this approach.

Ms. Blagbrough alleged that the Building Inspector issued a building permit for Lot A-21-2 while Lot A-21-2 does not meet all zoning ordinances, building codes and Planning Board regulations. (RSA 676:13 (I)

She invoked the Savings Clause, Section A 23.0 and RSA 676:14 to ensure that the stricter interpretation and “the provision which imposes the greater restriction or higher standard shall be controlling,” in regards to implementation of zoning ordinances and regulations.

She said that the Building Inspector failed to investigate her objections to the issuance of a building permit, which were outlined in letters received by the Town on 2/27/03 and 4/24/03. Shattuck Homes, LLC, applied for a building permit on 2/13/03 and one was issued on 2/28/03.

She listed a number of Federal and State rules that she claimed the Building Inspector should have investigated. (See Objections to Building Permit on Lot A 21-2, dated 4/22/03, in file.)

She objected to the fact that Michael Davidson, as head of the Planning Board, signed the plat for the subdivision of Lot A 21, when he might not have been a resident of Wilton.

She claimed that there is a boundary on the plat that is inconsistent with her deed and that easements are not shown on the plat.

She objected to the construction of the driveway, with slopes greater then 15% and was concerned about the runoff, erosion and sedimentation flows into Mill Brook. She objected to the fact that Mill Brook and Barker Pond were not located on the plat. She claimed that a private way must be 16’ wide with 2’ shoulders and that the logging road shown on the plat is only 14’ wide. She objected to the fact that at the time of the signing of the plat on 6/19/02 and its recording on 6/28/02, there is no signed letter from the Fire Chief. She claimed that there is no driveway permit for access to Lot A 21-2 and a safe sight distance of 400’ in each direction had not been established.

She asked a number of questions regarding the private way, the driveway, drainage structures and excavation for the house. (See Objections to Building Permit on Lot A 21-2, dated 4/22/03, in file.) And she asked that all construction on the house cease until her objections are investigated and her questions answered.

Resident Jerry Greene stated that Ms. Blagbrough was actually not an abutter to Lot A 21-2 because Lot A 21-1 was in between her lot and A 21-2.

William Condra, Wilton Building Inspector and Code Officer, was asked by the board to speak. He said that when Mr. Shattuck applied for the building permit, it was noted that he was not the owner of the property. He has a letter on file from the owner, Mr. Stevens, recognizing Mr. Shattuck as his agent in applying for the permit and constructing the house. When he received the first complaint from Ms. Blagbrough, the Selectmen instructed him to hold the building permit in abeyance, which he did. When Mr. Stevens and Mr. Shattuck asked if the building permit could be released before the results of the Superior Court hearing on the previous “culvert issue” were decided, Silas Little, Town Counsel, suggested that they both sign a “Hold Harmless” agreement, which they did. The building permit was released on 3/17/03. He presented the board with a packet of documents related to the complaint and appeal including a photo of a partially constructed house.

In response to the issue of whether Ms. Blagbrough is an abutter, the board looked at the subdivision map which showed that Ms. Blagbrough was an abutter to the original Lot A-21 before it was subdivided. She is currently an abutter to Lot A 21-1 and to the shared private way which is located on Lot A 21-1. Mr. Faiman said that, in his opinion, because Ms. Blagbrough’s property abuts the shared private way, she has sufficient right to bring this action.

Kenton Blagbrough, son of Ms. Blagbrough, read from Ms. Blagbrough’s deed. Mr. Stevens argued that her deed is incorrect. Mr. Faiman said that disagreements about private easements can not be cleared up by the ZBA; they are private issues that need to be resolved some other way. The board agreed.

Mr. Condra explained that Mr. Stevens applied for a driveway permit, which allows for a curbcut & a 20’ fan out to connect to the Town road. He added that the driveway permit is examined when the applicant applies for an occupancy permit. Mr. Stevens said that the Fire Chief came to the property and approved the road and said he would write a letter to the Planning Board stating such approval.

Mr. Blagbrough brought up the issue of the road not being as wide as required in the subdivision regs. Mr. Faiman said that the Planning Board has the ability to grant waivers in this area. Mr. Blagbrough also said that the culvert (s) under the newly realigned town road and the new public way are not designed properly and are not working properly.

Mr. Faiman offered his opinions via a written document that he had prepared after studying the appeal request. He stated that if he had heard any new evidence at this hearing, he would not offer the document, but stated that he had not heard anything new. The document discusses the history, jurisdiction, specific issues, private easements, issues outside the Zoning Ordinance and Building Code, open-ended questions, and Building Code “section 5.”

Mr. Spear asked about the timeline and what kind of investigation should have been done by the Building Inspector after receiving the initial complaint from Ms. Blagbrough and before issuing the building permit.

Mr. Faiman said that this is the first time the Town has received a request to not issue a building permit, as far as he knows, and he doesn’t know what the responsibility of the Building Inspector is, in this regard. Mr. Spear asked if it is legal for the Town to grant a building permit when there is a lawsuit pending regarding the subdivision. Mr. Faiman said since there was no injunction placed on the Town to halt any building, the issuance of the permit was legal.

Mr. Spear also wanted to know if after the building permit was released on March 17 and construction was begun, did construction cease after Ms. Blagbrough’s Appeal from Administrative Decision was received on April 24. Mr. Faiman said that construction did cease after the appeal was received.

Mr. Spear was satisfied that the Building Inspector didn’t do or not do anything to benefit the owner of Lot A 21-2 or to harm the applicant.

Mr. Faiman stated that the ZBA has voted to deny the appeal and uphold the granting of the building permit.

The applicant will receive notice of the decision in the mail. He further stated, the selectmen, any party to the action or proceedings, or any person directly 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, June 12, 2003, and must fully specify all grounds on which the rehearing is requested. (N.H. RSA 677:2)

Case #5/13/03–2 FAIRBANK

Andrew Fairbank has applied for a special exception under the terms of Section 17.3 of the Wilton Zoning Ordinance, to permit the construction of an addition on the existing house on Lot D – 80, 104 Dale Street, which would be closer to a lot line than is otherwise permitted by the ordinance.

Mr. Fairbank is proposing to build a two-story addition to his home by adding 9' toward the side lot line, but not encroaching into the 35' side setback. He needs a special exception because his front setback is only 25' from the road and the ordinance calls for a 35' front setback. The original house was built in 1954 before current setbacks were adopted. Mr. Fairbank said that the proposed addition is in keeping with the neighborhood as there are other houses closer to the road than his, and the construction will be in a similar style to the existing house. He said that the addition will increase the size of the house by 189 sq. ft. but the house will remain one of the smallest houses in the neighborhood.

Mr. Spear pointed out that Mr. Fairbank was granted a special exception a year or so ago to build a 24' addition to the house under the same circumstances.

No one from the audience spoke for or against this request.

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 directly 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, June 12, 2003, and must fully specify all grounds on which the rehearing is requested. (N.H. RSA 677:2) This decision shall expire on Friday, May 13, 2005 if construction on the addition has not begun by that date. (Wilton Zoning Ordinance section 17.4)

OLD BUSINESS

Minutes — April 8, 2003

Minutes — April 15, 2003

adjourned at 9 p.m.

Respectfully submitted,
Diane Nilsson, Clerk
Posted: 5/20/03