Town of Wilton, NH

Zoning Board Minutes

May 10, 2005

Voting BoardChairperson Neil Faiman; members Joanna Eckstrom, Carol Roberts, Jim Tuttle & Bob Spear; alternate members Eric Fowler & David Laponsee.
ClerkDiane Nilsson
  • Chalet Susse International, Inc. – appeal of administrative decision con’t.
  • Cynthia Salisbury – special exception or variance

Mr. Faiman called the meeting to order at 7:35 p.m. and explained that the meeting actually convened at 7 p.m. when the Board met with legal counsel to obtain advice on the interpretation of the Ordinance, its options etc. with regard to the first case on the agenda. He further explained that because, as a Planning Board member, he was a participant in the meeting that made the decision, he was going to disqualify himself from the first hearing. He then introduced the Board members and said that Carol Roberts would be chairing the hearing.

Ms. Roberts appointed alternate member Eric Fowler as a voting member to replace Mr. Faiman. She said that the other voting members would be Bob Spear, Joanna Eckstrom, Jim Tuttle and herself.

Case #4/19/05–1 — CHALET SUSSE INTERNATIONAL, INC. (continued)

Chalet Susse International, Inc. has appealed the Wilton Planning Board’s denial of an application for a subdivision of Lots C – 128 – 1 – 1 and C – 128 – 1 – 2. Keyes Hill Road. The applicant challenges the Planning Board’s interpretation of Section 6.3 of the Wilton Zoning Ordinance with regard to the proposed subdivision.

Ms. Roberts said that the Board met with Attorney McNamee, who was appointed by the Selectmen, before the hearing. She also said that he was in attendance.

Applicant Fred Roedel said that he applied for and received a special exception under the terms of Section 11.4 in May, 2004. He doesn’t feel that the Planning Board should be able to deny an application for the exact reasons that he requested and received a Special Exception. He also felt that the Planning Board had every right to apply for a rehearing and they did not.

Ms. Eckstrom asked “What is the connection between your denial based on the reduced frontage lots are only permitted upon site plan review etc. What is that relationship to the wetland? How did you come to that decision?”

Planning Board representative Bruce Johnson said that the wetlands were a factor in the PB decision to deny the reduced frontage lots. PB did not deny the application based on the wetlands themselves, but based on the fact that making the reduced frontage lots was not in the best interest on the neighborhood. Reduced frontage lots did not better serve the neighborhood.

Ms. Eckstrom asked “How will the neighborhood be better served by 3 or 4 driveways and what thoughts were taken into consideration when making that decision? I know that the PB is charged with defending the public interest, public safety etc. and I know that this board was concerned with there being only one entrance that would serve the 5 lots. Can you tell me how the board found that 4 entrances or 3 entrances to the lot is better than just one and what evidence you may have to support that finding?”

Mr. Johnson said that denial of reduced frontage lots does not preclude the applicant from having a common drive, so that is still a possibility. But given the nature of Keyes Hill Road, there are no sight line issues, so from a safety standpoint the PB did not feel that more than one driveway posed a safety concern, in fact separate driveways is the norm on Keyes Hill Road.

Ms. Eckstrom asked “What is the connection between the number of curb cuts and the potential impact on the wetlands?”

Mr. Johnson answered that the PB felt that the number of lots had an impact on the wetlands. He wasn’t sure that the PB established that the number of curb cuts had a direct impact on the wetlands. He said that with normal frontage lots, the applicant would only be allowed three lots.

He reminded the board that under Section 6.3, the onus is on the applicant to convince the PB that reduced frontage lots better serve the neighborhood than normal frontage lots.

Mr. Fowler asked “In the PB Notice of Decision, in paragraph 3 it states ‘… this use of reduced frontage lots unacceptably increases the number of lots in an area not suited for increased residential development.’ What criteria did you use to come to that decision based on the fact that there is still the potential for some increased residential use in that area?”

Mr. Johnson responded that the PB could only review the application based on the number of lots presented to it and the number of lots that would traditionally be available. He said that although the applicant has mentioned cluster housing possibilities, that’s not an application that has come before the PB, so he couldn’t comment on that type of development.

Mr. Fowler asked “What type of information did you apply to make the determination that this was an unacceptable ___________?”

Mr. Johnson said that there were a number of factors; the disturbance of the wetlands by the number of houses and the large wetland disturbance by the one driveway crossing. He said he wasn’t able to list all the other factors.

Ms. Eckstrom asked what the public attendance was at the PB hearings over the last 18 months.

Mr. Roedel said that the ZBA hearings were well attended but that after the variance and special exception were granted, abutters did not attend PB hearings.

Mr. Roedel’s attorney, Beth Fernald, said that what would better serve the neighborhood is best determined by the neighbors actually living in the neighborhood surrounding this property, and the abutters that came the ZBA hearings had no objections to the wetlands crossing.

Mr. Roedel’s Soil Scientist, Dawn Tuomala, said that one comment from abutters that she remembered is that they wanted one driveway. She also wanted to state that each of the five lots does contain 2 acres of upland soil.

Mr. Johnson asked if the abutter comments were made at a ZBA hearing, because he couldn’t recall any such comments at a PB hearing? Ms. Tuomala confirmed that they were at the ZBA.

Neighbor Jeanne Stagel said that she thought there was not room for more than 3 driveways on applicant’s property.

Neil Faiman said that he couldn’t speak for the PB, in fact had voted against the majority, but his perception of the primary concern of the PB was that while each lot meets the letter of the law requirements, the key phrase is interlaced wetlands. The PB felt that 5 houses were just too many because of the interlaced wetlands throughout the property. Mr. Johnson agreed with this assessment.

Ms. Eckstrom asked “If they did feel this strongly that the wetlands could not support 5 lots, why did the PB not appeal the decision a year ago? And it’s a question I’m just throwing out there, I don’t expect to get an answer but why did the PB not raise an appeal back then either for the special exception for the wetlands crossing and impact or for the variance that allowed the 5 lots to be accessed by one drive?”

Mr. Johnson said that he didn’t recall at any time that the PB found fault with the ZBA decisions or disagreed with the granting of either the special exception or the variance. It was not just a matter of these two components of the plan that the PB found the application too much for the property, so he couldn’t see where the PB would have appealed the ZBA decision.

Ms. Eckstrom asked “But isn’t access to the lots and the impact on the wetlands, aren’t those two major criteria or two major points of the whole application?”

Mr. Johnson said that he would not term access to the lot as a major point of the application. He said he didn’t recall during PB hearings that the board felt strongly that the lot could only be served by one driveway. As stated before, the PB didn’t feel that more than one driveway posed a safety hazard.

Ms. Roberts restated the decision that the ZBA needs to make this evening: it is to determine whether the PB correctly interpreted Section 6.3 of the Ordinance in relation to the Chalet Susse case. It is not whether the ZBA likes the PB decision, but whether the PB interpretation was correct.

MotionMs. Eckstrom moved to grant the appeal because the PB did not correctly interpret the Ordinance. Although it had the right to deny the application, the PB did not correctly describe the connection between the proposed reduced frontage lots and the wetlands. There was no second. Motion died.

Ms. Eckstrom said that she wants to see a better example of how a larger number of curb cuts is better than one as it relates to the impact on the wetlands.

Mr. Fowler said that as he reads the PB Decision Notice, it says… the potential for adverse impact upon the wetlands, regardless of how many curb cuts there are, is greater and unacceptable.

Mr. Spear said that the PB also found that fewer lots better served the neighborhood. He said that whether he agreed with that or not, the PB had the right to make that determination.

Mr. Laponsee said that he would be very reluctant to have another board second guess the ZBA on a decision and therefore he is very reluctant to see this board second guess the PB. He said “I did not hear the arguments from the previous month, but Joanna I’m hearing you… I don’t hear anyone else on this board second guessing the PB so I don’t know why there should not be a motion to uphold.”

MotionMr. Spear moved to uphold the decision by the Planning Board to deny the application for a subdivision by Chalet Susse International for the reasons that the Planning Board stated in its Notice of Decision, and because the Zoning Board found that the Planning Board had the right to deny the application based on its interpretation of Section 6.3 of the Wilton Zoning Ordinance. Mr. Fowler seconded the motion. Four voted in favor and Ms. Eckstrom voted no.

Attorney Fernald asked Ms. Roberts if she was aware that Attorney McNamee had represented the Planning Board in this case in the past. Attorney McNamee stated that he did not work for the Planning Board. Mr. Spear wanted it noted in the minutes that Attorney McNamee answered some questions that would help the board make a decision, but he did not counsel the board regarding making a decision one way or the other.

Case #5/10/05–1 — SALISBURY

Cynthia Salisbury has applied for a special exception under Section 17. 3 of the Wilton Zoning Ordinance, or alternatively, a variance to the terms of Section 5.2.3 of the Wilton Zoning Ordinance, to permit the construction of a garage addition on Lot K – 106, 71 Maple Street, which would be closer to a lot line than is otherwise permitted.

Mr. Faiman explained that Ms. Salisbury initially applied for the variance only, not realizing that her home predated zoning and she qualified for Section 17.3. The applicant couldn’t be reached in time to change the abutter notices to include the special exception, so Mr. Faiman contacted Town Counsel, who suggested that the applicant could get signed waivers from all the abutters and Mr. Faiman could change the public notice to include the amended proposal.

Ms. Salisbury said that she received waivers from all of her abutters except for William Abbott of Hudson, NH.

Mr. Faiman said that the voting board would be himself, Ms. Eckstrom, Ms. Roberts, Mr. Spear and Mr. Tuttle. Everyone except Mr. Spear looked at the property.

Ms. Salisbury explained that her house is very close to the lot line of Priscilla McGrath’s property (K – 96) and she has a very small lot – .19 acres. The opposite lot line is actually in a stream. She wants to build a garage attached to her house that would be one foot from Priscilla’s lot line.

Currently her house is five feet at one spot from Priscilla’s lot line. She said that she has a number of physical disabilities in her upper body that make it difficult for her to clean off her car in the winter and to lug out of season things to the cellar and back. It would be a great help to have a garage with storage above. She said that she feels the garage would add value to the neighborhood, it will be nice looking, not an eyesore, and certainly better looking than the shed.

She said that she spoke to Priscilla about it and she had no problem with it.

Abutter Eva McGettigan said she had no problem with it and said it would not be an eyesore.

Abutter Don McGettigan said that he had no problem either. The applicant takes care of things and is very neat.

Mr. Spear asked where Priscilla’s house is on Lot K – 96? Mr. Faiman and Mr. Tuttle said it is located down near the numbers 96 on the map (see file), nowhere near Ms. Salisbury’s house.

Ms. Salisbury said that the house was built in 1940, so it definitely does predate zoning.

Mr. Faiman summed up the facts: the applicant has requested to build an addition on Lot – 106.

The existing house and porch are already closer to the lot lines than permitted. The proposal is to build a garage that would come within a foot of the lot line, on the other hand the nearest neighboring house is actually at least 50 feet from the new construction. The only abutters who spoke, spoke in favor of the application and we have it on record that the house and the lot predate zoning.

Mr. Faiman closed the public hearing.

MotionMr. Spear moved to grant the special exception under the terms of Section 17.3 of the Wilton Zoning Ordinance with the implicit finding that all the requirements for that special exception are satisfied. Ms. Eckstrom seconded the motion and all were in favor.


Minutes — April 19, 2005

Ms. Eckstrom said that she was not happy with the narrative quality and the length of the April minutes. She said that she wants to see the name of the board members asking questions, the entire question, and the answer to the question.

MotionMs. Eckstrom moved to enlarge, and specifically enumerate the people who ask and answer questions, the April 19, 2005 minutes. Mr. Spear seconded the motion. Ms. Eckstrom, Mr. Spear, Mr. Fowler & Mr. Tuttle were in favor. Mr. Faiman, Ms. Roberts & Mr. Laponsee voted no.
MotionIt was moved and seconded to postpone the approval of the April minutes until the amended minutes have been prepared. All were in favor.

Future Minutes

There was discussion about how much detail board members want in minutes in general. Board members requested the clerk do the enlarged approach to the minutes for the Chalet Susse case for the May minutes. Otherwise, no decision was made about minutes in the future.

MotionMr. Spear moved to adjourn, seconded by Ms. Roberts. All were in favor.

Meeting adjourned at 9:15 p.m.

Minutes submitted by Diane Nilsson