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December 16, 2003
|Voting Board||Chairperson Neil Faiman; members Joanna Eckstrom & Bob Spear; alternate member Ron Hanisch.|
|Agenda||Blagbrough Family Realty Trust – appeal of decision of the Selectmen.|
Meeting called to order by Chairperson Neil Faiman. Other members present were Joanna Eckstrom Bob Spear, Ron Hanisch.
Case #12/16/03–1 — BLAGBROUGH
Tonight’s meeting is an appeal by Blagborough Reality Trust. They are appealing the Selectmen’s decision to approve the issuance of a building permit on Lot A-30, which is not on a Class V road or better.
The chairperson proposed to the Board to agree in advance that a split 2-2 vote would continue the appeal to next meting. The Board and Attorney Bill Previs, who is representing the Blagborough’s, unanimously agreed.
Attorney Previs asked the Board to overturn or consider a decision made by the Wilton Selectmen concerning AT&T Forest Product’s application for a building permit for Lot A-30, which is on a Class 6 road and located in watershed district. Here is his statement.
674:41 procedure under New Hampshire law states you can’t build on anything less than a Class 5 road. There are two ways this can be accomplished.
1. Go to selectmen and ask for a waiver to build on a Class 6 road and that appears what AT&T did.
2. 14.3.2 - to build in the watershed district the lot requires 300 ft. of frontage on a Class 5 or better road.
Two ways to get relief:
1. Get it changed
2. Seek a variance. The Selectmen don’t have status to grant relief from the ZBA.
In their opinion the Selectmen extended to offer relief from the Zoning Ordinance and the Blagborough’s believe they overstepped their boundaries.
They are concerns how lot A-30 has been treated in the past. In August 2000 (matter of records) Andre Vanderhaden came to the town and asked to build on a Class 6 road. Mr. Previs read a letter written by secretary Margaret S. Arn in response to his application.
“Your application for a building permit is denied and is based on not having 300 feet frontage on a Class 5 or better road. Singed the Selectmen.
Mr. Faiman read 17.2 from the Zoning Ordinance regarding lot size or frontage.
Abutter Kenton Blagborough questioned how prior Boards has made decisions on lot A-30 and the road and question of the status of the road. In his opinion it is hard to argue if you don’t know what the road is. Prior boards have made decisions on the status of the road.
Harley Savage from E.B. Frye & Son believes the road is discontinued and abandoned. In the past, Mr. Sanders came before the Board with a fleet of corporate lawyers. He wanted to road to be declared a Class 6 road so it could be use. Mrs. Whitney Frye (70 yr. old widow) presented documents that stopped the use of a Class 6 road. The Boards have said they can’t find that information. Would it be hard to reconstruct the Sanders subdivision and find out what information Mrs. Frye had? If I happen to be right, then the waters get muddied and if this is allowed someone in the town is going to say it is a Class 6 road. E.B. Frye and the Blagborough’s buildings are on the National Register Property and anytime a road is going through a Registery Property a hearing has to happen. In 1981.had to be a national review. If it is declared a Class 6 road the folks at the other end have had to maintain, update and plow the road all these years and should they get relief.
Selectman Jerry Greene stated his office consulted an attorney on the status of the road and there was no evidence the road has ever been abandoned (under 3 different names). It is a lot of record.
Mr. Blagborough disagrees and said in 1940 the lots were combined and after that it was not a lot of record occording to his research. He presented documents (see file) In 1984 the Planning Board said A-30 was not a lot of record. In 1976 the Planning Board said the road was discontinued. In July 1976 they discontinued the road and ownership reverted back to the abutters and A former owner could not sell the lot as a separate building lot.
Alan Stevens presented a deed based back to 1914. The Chairperson said he presented a deed that says lot A-30 is a separate track. (see file)
If you look at the statue of 671-11 it states the local governing body has a right to issue a building permit after review of the Planning Board and after that to produce legal documents to release the town of liability.
Corrine Blagborough present a 1940 map which showed where the lots were joined. Circa 1968 see division of the Dylans and Blagborough pieces A-21 and A-30 were all one lot at a time. She is not sure when it changed but it did. It has been a discontinued road.
The Board questioned what the status of the lot is on the town tax maps and it was confirmed it is two lots.
Mr. Blagborough asked how the road was established. Mr. Greene said the Selectmen consulted an attorney and they said it was a Class 6 road and it will be maintained by AT&T Forest Products. Mr. Savuage asked for copies of the documents. Mr. Stevens won’t be using Stiles Farm Road.
The Board looked at a survey map from 1940 Hillsborough Country Reg. Of Deeds Book 2, page 59.
Grenville Clark from Stiles Farm Road. Not sure what the Selectmen did from which we are now appealing but I’m looking at RSA 671:41 subdivision 1C and that provides that the governing body of town may permit construction of a building on a Class 6 highway and with the recommendation of the Planning Board. Did the Planning Board get involved? Mr. Greene said yes.
Alan Preston presented a deed from 1897 of a transfer deed from John Stiles to the Whiting Bros. And in the deed there is a description of lot lines and of the old county road and it states “now discontinued” and discussed road to Cregon place and the only way to discontinue a road is by town vote so somewhere there should be a record. He also mentioned that Sanders Farm and Susan Bradley were denied access from this road.
There is substantial different between a subdivision and a single home.
Mike Basterello-Stile Farm Rod. The issue of Sanders was not a subdivision it was for access to a single house…another request was a small parcel of the Sanders property to create a single building lot and it was denied for a number of reason but also the Class 6 road. At some point the town allowed Mr. Sanders to create a subdivision on the road and to create an association to maintain the road. The neighborhood is not able to spend the money needed to keep Stiles Farm Road maintained, which is an unpaved gravel road. I’m the last guy on the road and pay the highest per ratio rate. Now we have the possibility of another house that will benefit from the paving that we are paying for and more wear and tear on the road. Sure it was the roll of our dice so we may have to live with it.
The Board questioned if a variance should be required in the watershed.
Selectman Greene mentioned the Selectmen recently authorized an issuance of a building permit for a lot on Burton Highway on Bennington Battle Road (Class 6) and no one opposed it
The Chairperson’s opinion is going back to the original letter of appeal because there are a couple of things that are getting mingled here and the majority are outside the RSA 674:41-statustory of the Selectmen and the ZBA can only review them. He discussed RSA 674:41 and 17.2 which allows access to a land-locked property.
The Board discussed the road frontage issue. It sets a requirement and if the owner wanted to subdivide the town would say “no” but he has a lot and has the right to put a house on that lot. It says if you have a lot and was it there before the frontage requirement then 674:41 says you need to go to the Selectmen and they decide if it is not a burden of the town to build there.
RSAs 674:33 and 675:5 were read by the Chairperson to address Mr. Kenton’s question regarding the ZBA’s power.
The Chairperson was concerned because the Planning Board took a lot of time reviewing the road and driveways, while examining the easement to the lots and considering the placement of the road and it does trouble him and in this case (it is part of the A-20-21 subdivision) to run the easement over A-21-1 without any further subdivison review.
If the proposal is not to use Stiles Farm Rd. then the Chairperson wonders if the Planning Board should review the driveway since the whole situation has been reviewed and this new driveway has not. Discussion continued. The Board noted the deed does address access to lot A-30 through A-21-1 and A-21-2 and would like to see it included with the Planning Board plan and recorded, then everything is together.
Alan Stevens presented the driveway easement for A-30 (see file). Members and abutters came forward and reviewed the documents.
Kenton presented a plat that indicated the proposed driveway would go over a septic area.
Attorney Previs stated that the easement that has been registered and it is not landlocked any more. Lets assume it is a lot of record that “less means absolutely nothing” is not in the spirit of the ordinance and wrong way to interpret, less should be half or a third. Discussion continued about the spirit of the ordinance and road frontage.
Attorney Previs stated when the Planning Board considered a two-lot subdivision it didn’t consider this third lot and the subdivision was approved upon a certain fashion and now it is going beyond that.
VOTE: Joanne Eckstrom made a motion that the Wilton Selectmen acted properly by authorizing the issuance of a building permit on lot a A-30 is justified by paragraph 17.2 of Wilton Zoning Ordinance and the other issues raised in the letter of appeal is not in the jurisdiction of the Zoning Board to pass judgment on. Bob Spears seconded the motion. Vote: Yes is to approve the motion the authorization of the permit is granted. Bob Spear voted yes, Ron Hanisch voted no, Neil Faiman voted yes and Joanna Eckstrom voted yes.
A vote of 3-1, the ZBA has upheld the authorization of the issuance of a building permit on lot A-30.
The Selectmen, the applicant or any party in the decision can ask for reconsideration. Reconsideration has to be filed within 30 days in the town office.
Attorney Previs added that he does not agree with the decision of the Board but respectfully thanked them for their time and service.Other Business VOTE: Bob Spear made a motion to approve the minutes of the November 11, 2003 minutes. Joanna Eckstrom seconded the motion. Motion passed unanimously. Meeting adjourned at 9:43pm.
Kathleen Baglio Humphreys