Town of Wilton, NH

Zoning Board Minutes

October 12, 2004

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

Case #9/14/04–1 — SAMUEL & CONSTANCE DEVINE (continued)

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.

Alternate member Eric Fowler sat on this case as he had in September. Member Joanna Eckstrom did not participate as a voting member. Mr. Faiman stated that he had spoken with the Town Attorney and the Attorney’s opinion was that the ZBA did have jurisdiction to hear this case, so the Board could go ahead and make a decision with regard to the variance requests. The applicants had no additional information to add to the previous hearing.

Sam Proctor, Jr. said that he researched the 1972 Wilton Zoning Ordinance and found that at the time that the Devine’s purchased the .4 acre parcel of land from his dad, zoning in Abbot Hill Acres called for 200’ of frontage and 1 acre of land.

Conservation Commission Chairman Spencer Brooks said that the Commission has great concern about drainage to properties both above and below the lot in question.

Ms. Roberts said that with the possibility of wetlands existing on this .4 acre lot, it is too much of a stretch to consider this a buildable lot, in her opinion.

Mr. Faiman said, given the history, the lot was created after the institution of zoning but without subdivision review. Based on the testimony we have heard, he couldn’t believe that a reasonable person, in 1972, could have supposed that this was a buildable lot. As zoning changed, it may have begun to look more like a buildable lot, but the lot doesn’t have any grandfathered status and any hardship there is is self created. It is substantially smaller than other lots in the area so he didn’t think that granting the variance would do substantial justice.

Abutter Norm Berger – Lot M – 46, asked a hypothetical question about selling some land to the Devine’s in order to make their lot larger. Questions arose about an engineering study to determine if wetlands exist on the lot. Board members agreed that it would probably make sense for the Devine’s to invest in such a study if a lot line adjustment were to go before the Planning Board some time in the future.

Case # 10/12/-4 – 1 NADEAU

Donald and Maria Nadeau have applied for a special exception under the terms of Section 17.3 of the Wilton Zoning Ordinance to permit the construction of a garage on Lot F – 48 – 3, 86 Intervale Road, which would be closer to a lot line than otherwise permitted by the Ordinance.

Alternate Member Eric Fowler stepped down and Member Joanna Eckstrom became a voting member for the remainder of the meeting.

Donald Nadeau presented packets of information and began to give a presentation when Mr. Faiman discovered that Mr. Nadeau had applied for the wrong thing. What Mr. Nadeau needed to apply for was a variance to Section 5.2.3. Since Mr. Faiman felt that it may have been partly his fault, he said that Mr. Nadeau would not have to pay another application fee, but a new Public Notice will have to be written and abutter notices will have to be sent. Mr. Nadeau will bring in a new application with a set of three labels for the abutter notices.

The case will be continued to the November 9th meeting.

Case #10/12/04–2 — GARABRANT

John and Jessie Garabrant have applied for a special exception under the terms of Section 5.3.7 of the Wilton Zoning Ordinance, to permit the conversion of the home on Lot F – 31 – 1, 107 Intervale Road, for two-family use.

John Garabrant explained that he would like to re-establish a small studio apartment for 1 tenant in his home. It will involve adding an internal partition and purchasing a stove and refrigerator. The kitchen sink, cabinets and bathroom are in place from a previous studio apartment that was in the home. He said there is room for 6 or 7 cars to park. His site plan shows parking spaces for 5 cars.

All Board members except Mr. Spear viewed the property. No abutters or members of the public spoke.

Mr. Faiman reminded the applicant that he needed to go before the Planning Board for Site Plan approval as the next step.

Case #10/12/04–3 — HAMLIN

Charles and Mary Ann Hamlin have appealed a decision of the Wilton Planning Board that the access to the home on Lot H-114, 629 Abbot Hill Road, by a circular driveway (accessing Abbot Hill Road at two points) is a non-conforming use which is not permitted by the Wilton Zoning Ordinance. The applicants argue that there is nothing in the Zoning Ordinance to support such a decision.

Surveyor David O’Hara represented the applicants, who were also present. He explained that when the applicants went before the Planning Board for a 3-lot subdivision, they were informed that they would either have to come to the ZBA for a variance in order to keep their circular driveway, or close off one of the curb cuts. However, this request was not reflected in the Planning Board minutes, nor was any Planning Board member present to explain exactly what the problem was. Mr. O’Hara searched the Ordinance and couldn’t find anything which disallowed a circular drive.

Mr. Faiman explained that he believed that when a subdivision comes before the Planning Board, one of the requirements is that only one access to each home is allowed, even if one of the accesses, such as the circular drive, has been in existence for many years.

The Board studied the plans, which showed two new driveways to the two new lots which are each over 100’ from the circular drive.

Mr. Faiman added that he was not pleased by the fact that the Planning Board, in this case, required an applicant to get a variance, made no written record of that fact, made no indication as to what the specific legal requirement was that that they were supposed to get a variance from, and didn’t even bother to attend the ZBA meeting to explain themselves on the matter.

Case #10/12/04–4 — SOODAK

Victoria and William Soodak have applied for a variance to Section 5.1 of the Wilton Zoning Ordinance to permit them to keep a miniature horse as a pet on Lot L – 45, 52 Island Street.

Victoria Soodak said that she wasn’t aware that she was breaking any zoning rule when she purchased the horse. After receiving a complaint, the Select Board issued a Cease & Desist Order to the Soodak’s and that is why they came to the ZBA. She was prepared for health issues and deals with the smell by removing the horse’s bedding and taking it to the landfill, and she controls flies by medicating the horse so that flies can’t breed. She stated that “Cappuccino” stands 9.3 hands tall and is probably actually a cross between a pony and a miniature horse. He has a wooden fenced paddock with an electric fence inside of that. He goes into a stall in the barn at night. He is also allowed to graze on the right-of-way along the canal.

Mr. Faiman said that he spent some time watching the horse running around its yard. The other Board members drove by the property. Mr. Faiman also discussed A NH Supreme Court case dealing with accessory uses. These are uses that are not listed in the ordinance but that would be traditional in a particular district such as garages, swimming pools and pets.

Abutter Colette Paro said that she made the complaint not because she has a problem with the pony but simply because she felt this residential area was too heavily populated and heavily traveled to have an animal such as this. The pony got out once when the Soodak’s were not at home and the neighbors had to stop tractor trailers from hitting the pony. She felt it should be in an agricultural area. She also stated that the animal is a pony and not a miniature horse.

Abutter Grayson Parker, who owns the home at 42 Island St., asked his 3 tenants how they felt about the horse at the Soodak’s and none had any objection, they like it, find it quaint. One tenant said it was much preferable to the two large dogs that belonged to the tenant who lived previously in the house that the Soodak’s now own. “Those dogs created a nuisance at the neighbors’ house every day”, he said.

Conservation Commission Chairman Spencer Brooks said that there has been an ongoing problem for a number of years with high bacteria in the Souhegan River in the downtown area.

In answer to a question, Ms. Soodak said that the horse I not aggressive and will not come near the electric fence. He is also relatively quiet, neighing at meal time in the morning and evening.

Mr. Faiman said that having a horse, even a small one, on a .2 acre lot is a little incongruous, but noted that the house, as well as others on Island Street, has a barn where they kept horses in the past.

In answer to a question, Mr. Soodak explained that they do have electrical fencing on the right-of-way along the canal for when the horse grazes. Ms. Paro pointed out that she is unable to get to the canal because of the fencing. Mr. Soodak said he could easily move the fencing so it does not block anyone from gaining access to the canal.

Case #10/12/04–5 — PEP-DIRECT,INC.

PEP Direct, Inc. has applied for a variance to the terms of Section 16.3.1.1 of the Wilton Zoning Ordinance, to permit the erection of a second sign on Lot B – 110, 19 Stoney Brook Drive.

Guy Snyder, Facility Manager of Pep Direct, Inc., represented PEP-Direct and Guadrigia Arts. He explained that PEP-Direct would like to put up a second sign that will be at least 300 feet from Forest Road and will only be partially visible from Forest Road. The sign is a large letter “Q” that will be 8’8” wide x 8’3” high and will stand on 17” legs made of steel tubing. There will be no lighting of the sign.

Mr. Faiman read the definition of a sign from Section 3.1.30. He then asked if there were any abutters or interested parties present. There were none.

Mr. Faiman said that the applicant will have a Decision Notice in time to go before the Planning Board and request a Sign Permit.

Case #10/12/04–6 — JORDAN/BRAVO

William Jordan and Linda Bravo have applied for an equitable waiver to Section 5.2.1 of the Wilton Zoning Ordinance, to permit the conversion of the existing home on Lot J – 84, 17 Pleasant Street, to two-family use, where all of the construction necessary for such conversion has already been completed.

Ms. Eckstrom, because she is almost an abutter, did not sit on this case and Eric Fowler took her place.

William Jordan said that he and his wife purchased the house in May. They had been looking for a house that they could convert & update that they could keep as a rental or sell. He said that their real estate agent showed them this house, showed them the Zoning Ordinance and said that they could convert this house to a two-family. He said they then went to the Building Inspector and asked him if the property could be converted to a two-family. He reviewed the Ordinance and said that it could be converted to a two-family. Based on that, the applicants bought the property. They immediately filed for a building permit and it was granted, it stayed on file for two weeks and they proceeded to renovate the house in accordance with the plans. When it was complete, an abutter noticed that it was for sale as a two-family and knew that it was not zoned for a two-family home.

The abutter brought it to the attention of the Building Inspector, who called the applicants and told them that the abutter was correct, it is not zoned correctly for a two-family. He said that that he and his wife had misread the Zoning Ordinance, but they had no idea that they had misread it because both the real estate agent and the Building Inspector led them to believe that what they were doing was legal. He said that they have spent $55,000 on the conversion.

Mr. Faiman, Mr. Tuttle and Ms. Roberts drove by the house.

Lot J – 84 is in the Residential/Agricultural District which requires 1 acre per dwelling unit. Lot J – 84 is only .3 acres. The applicants mistakenly thought their property was in the Residential District and qualified for a Special Exception 5.3.7 without coming before the Zoning Board and asking for it.

Abutter Kyra Brennan stated that she is the abutter that alerted the Building Inspector to the problem. She said she also has a problem with the way that this case was noticed: the applicants should be applying for an equitable waiver to Section 6.2.1, not 5.2.1, because the property is in the Res/Ag District.

Mr. Faiman read RSA 674:33a from page 332 which spells out Equitable Waivers.

Abutter Keith Frolke presented two deeds showing that he has a right-of-way onto the applicant’s land which may interfere with the driveway and four potential parking spaces.

Abutter Kyra Brennan said that she feels that the Equitable Waiver should be based on use rather than dimensional requirements.

The Board discussed whether it would be helpful to have a meeting with the Town Attorney to learn more about this RSA and how it applies to this case. Board members agreed to continue this case and try and meet with him as soon as possible.

Mr. Faiman explained to the applicants that the burden of proof falls on them and that they need to hire a professional engineer or surveyor to study the deeds and survey the property in order to find out whether and where parking spaces exist.

The Board agreed to continue the case until November, will meet with the Town Attorney within the next week and will do a site visit with the applicant after they have the results from the surveyor or engineer.

OTHER BUSINESS

Minutes — September 14, 2004

Ms. Roberts pointed out that David Laponsee’s name was misspelled in the minutes.

The meeting was adjourned at 10:55 p.m.

Minutes submitted by Diane Nilsson

Posted: October 19, 2004