Town of Wilton, NH

Zoning Board Minutes

September 14, 2004

Voting BoardChairperson Neil Faiman; members Carol Roberts, Jim Tuttle & Bob Spear; alternate member Eric Fowler.
ClerkDiane Nilsson
AgendaSamuel and Constance Devine – variance

Mr. Faiman called the meeting to order at 7:30 p.m., introduced the board members and explained the procedure for hearing applications.


Samuel and Constance Devine have applied for a variance to sections 5.2.1 and 5.2.2 of the Wilton

Zoning Ordinance, to permit the use of Lot M – 45 – 1, Abbot Hill Acres, as a building lot, although it does not meet the required area and frontage requirements of the residential district.

Ms. Devine stated that she has a sale pending on Lot M – 45 – 1 but has discovered that the lot is not legally a buildable lot and she wanted the Zoning Board to somehow fix the problem.

Mr. Faiman, in advance of the hearing, contacted Town Counsel and he was able to do some research into the background of the Devine’s situation:

• In April of 1972 the Devine’s purchased Lot M – 46 from Samuel Proctor, Sr. This was one of the last lots available in Abbot Hill Acres and this is where they built their home.

• In December of 1972, Samuel Proctor, Sr. sold the Devine’s the piece of land abutting Lot M – 46, measuring .4 acres, for consideration of less than $100.00. No subdivision ever went through the Planning Board and no deed was recorded at that time. Town Counsel interprets that to be an addition to Lot M – 46.

• In 1985 a deed was recorded and filed with the Registry of Deeds.

• In 1986 The Devine’s sold their house on Lot M – 46.

Sam Proctor, Jr. said that from what he can remember of his father’s agreements having to do with

Abbot Hill Acres, he recalls that his father agreed to give unbuildable parcels of land to the Testa’s, the Williams’ and the Devine’s. He pointed out on the tax map where the Williams and Testa parcels are located.

Ms. Devine said that she could not recall how much, if anything, was paid for the lot in question.

James Devine, son of Ms. Devine, said that the Devine’s have been paying property taxes on the lot since it was recorded in 1985, and the builder who is trying to buy the lot was able to get a building permit from the town.

Abutter Norman Burger – Lot M – 46, current owner of the original Devine home, said he came just to listen.

Abutter Edmund Sadowski – Lot M – 44, said that Lot M – 45 – 1 is always swampy and is too small for a house. He felt that the owners should not be able to sell the lot.

Abutter Mike Cooley, Lot M – 33, 47 Robbins Road, said that he has the lot directly behind Lot M – 45 – 1 and he has a problem with water draining onto his property. He was very concerned about what would happen to his property after the lot is filled. He presented recent photos of Lot M – 45 –1

showing standing water on the lot. (See snapshots A1 – A5 in file.)

Abutter Christine Hartley, Lot M – 71, 55 Abbot Hill Acres, also voiced concern about one of the culverts emptying onto her property and causing a lot of water to end up in her yard.

Conservation Commission Chair Spencer Brooks said that he viewed the site at 10:30 a.m. and took

4 photos (see digital images I – IV in file). He said that there are wetlands on the site but he couldn’t say if a wetlands violation had taken place.

Conservation Commission member Leslie Talarico agreed with Mr. Brooks that there are wetlands on the site. He also said that there is standing water there and that even if you fill the lot, the water level will remain and it will be in the cellar of a house, if it is built there.

Someone asked how much land is needed for a buildable lot. Mr. Faiman answered .5 acres of dry land. He said that if the wetlands on the property are classified as wetlands, that would have to be subtracted from the .4 of an acre. Mr. Talarico explained that a soil scientist or wetland scientist would need to map the lot in order to determine if wetlands actually exist.

Mr. Faiman summed up the issues by saying the following: Lot M – 45 – 1 was created without subdivision approval, therefore it does not have legal existence as a separate lot. The lot is owned by someone different than anyone else in the area. There is a request to be allowed to build on that lot. Is it legal to get a building permit for an illegally created lot?

Board members wanted Mr. Faiman to talk again with Town Counsel now that the Board knows that the Devine’s no longer own Lot M – 46.

MotionMr. Spear moved to table this case for a month so that the Chairman can consult further with Town Counsel on the status of the lot. The motion was seconded by Mr. Tuttle and all were in favor.


Visitor – Ms. Roberts introduced David Laponse who may be interested in joining the board.

Minutes — August 10, 2004

MotionMr. Spear moved to approve the 8/10/04 minutes as written, seconded by Mr. Tuttle. Four were in favor and Mr. Fowler abstained.

There was a discussion about drawings and sketches that often need to accompany applications, and how to clarify the board’s expectations up front for applicants. Mr. Faiman suggested adding the following to the instructions: a to-scale sketch, on a piece of 8 1/2 x 11 graph paper, drawn with a ruler is fine. There should be sufficient information to understand the issues of the particular request.

There was a discussion about rehearing requests and the best way to deal with the fees. Mr. Faiman said that he would ask Jane and anyone else in the office for their opinions and he would also ask Town Counsel about it.

MotionMr. Spear moved to adjourn the meeting, seconded by Mr. Tuttle with all in favor.

The meeting was adjourned at 9:15 p.m.

Minutes submitted by Diane Nilsson

Posted: September 20, 2004