Town of Wilton, NH

Zoning Board Minutes

July 12, 2005

Voting BoardChairperson Neil Faiman; members Joanna Eckstrom, Carol Roberts, Jim Tuttle & Bob Spear; alternate member David Laponsee.
ClerkDiane Nilsson
  • Hubbard/Warren – variance or special exception (continued)
  • Bryan & Angel Berkebile – variance or special exception
  • Richard R. Tuttle Jr. & Richard R. Tuttle Sr. – variances

Mr. Faiman called the meeting to order at 7:33 p.m. He then introduced the Board members

Mr. Faiman explained the Board procedure for hearing cases to the audience.

Case #6/14/05–1 — Hubbard/Warren

Reed Hubbard (owner) and Jamin Warren Applicant) have applied for a variance to section 5.2.3 of the Wilton Zoning Ordinance, or alternatively for a special exception under Section 17.3 of the Ordinance, to permit the construction of a house on Lot J – 112 – 1, at the corner of Island Street and Mill Street, which would be closer to Mill Street than otherwise permitted by the Ordinance.

Mr. Faiman explained that the case was continued from a previous meeting so that the applicant could provide the Zoning Board with copies of the deeds to Lots J – 112 & J – 112 – 1 and copies of the Town tax assessor’s cards for both lots, and can obtain an approval from the Town Road Agent for the proposed driveway location; and so that Zoning Board member Joanna Eckstrom can attempt to obtain a copy of the minutes of a Zoning Board meeting that granted a variance on Lot J – 112 in 1979, and a copy of the 1979 Zoning Ordinance.

Mr. Faiman explained that since this is a continuation, the Board will not be starting at the beginning. He asked that all participants refrain from re-covering material that was already covered. He also noted that he sent a letter to Mr. Warren on July 7th suggesting to the applicant that he obtain documentation showing that Lot J – 112 – 1 was actually a lot of record as of the date of enactment of the Wilton Zoning Ordinance – 1971. (see file)

Ray Shea, of Sanford Survey, represented the applicant and presented a Survey of Lots #19 & #20 surveyed 9/10/51 by Norman Draper & numbered 988. Lot 19 is J – 111 and Lot 20 is J – 112. Mr. Shea pointed out that the lot that is currently J – 112 – 1 is shown as a separate lot. However, it does not have a lot number on it. He also presented a deed from 1951 which refers to Lots 19 & 20. Mr. Shea believed that the reason Lot J – 112 – 1 is not mentioned in the deed is that that particular lot never left the group of lots it was with until 1979, so there was no reason to prepare a deed. He presented the earliest deed he could find which was 9/28/79 when J – 112 – 1 was sold to Gordon & Elizabeth Billipp.

Ms. Eckstrom asked Mr. Shea if, when he looked at the 1933 deed, did he see if perhaps J – 112 – 1 was actually Lot 22? He said he did not see that.

Ms. Eckstrom presented a 16 page report to the Board and Mr. Warren as well as the Wilton Zoning Ordinance as amended through March 5, 1974. (See file for both documents.) She said that she was unable to locate minutes from the 10/8/79 hearing. She also did a search of the property and was unable to locate a deed for J – 112 – 1 prior to 1979.

Mr. Faiman said that he found a 1972 deed that refers to what is now J – 112 – 1 as a distinct parcel. (See notes in file.)

MotionRoberts/Spear to close public hearing and enter Board deliberations. Unanimous.

Ms. Eckstrom felt that a precedent has been set in that the two properties have been transferred together to the same owner since 1933. The fact that the tax card for each lot had a note on it that said “goes with the other lot” also had some significance to her.

Ms. Roberts asked if separate tax bills were sent for each lot. Ms. Eckstrom said yes, they were.

Mr. Spear said then he is in conclusion that the separate tax bills support Lot J – 112 – 1 being a lot of record.

Mr. Faiman said that because he cannot see any evidence for J – 112 – 1 ever having been characterized as a distinct lot prior to 1972, he doesn’t think it meets the definition of a lot of record. He then read the definition of a lot of record: Land designated as a separate and distinct parcel in a legally recorded deed filed in the records of Hillsborough County, NH. Mr. Spear asked when the Ordinance was adopted. Mr. Faiman answered 1971. Mr. Faiman said that if this is not a legal lot of record, he didn’t see how the Board could grant variances for setbacks.

Mr. Spear asked if the owner had the right to sell the lot? Mr. Faiman said he can sell it as a non-buildable lot. Also the owner or applicant would have the option of applying for a variance from the lot size requirements as well. Mr. Faiman said that his personal reading is that in the absence of that variance, it’s not a buildable lot. He urged the Board to make a decision.

MotionEckstrom/Tuttle to deny the request for variance to Section 5.2.3 or special exception under Section 17.3 because the Zoning Board found that Lot J – 112 – 1 had not been demonstrated to have been a lot of record at the effective date of the Zoning Ordinance, that Section 17.2 of the Ordinance is therefore not applicable, and that it is therefore not a buildable lot. Since construction of a home on the lot is not permitted at all, a variance or special exception to permit reduced setbacks for such construction would be irrelevant. The decision is without prejudice to an applicant who might present compelling evidence regarding the lot-of-record status of the lot or who might obtain a lot size variance to permit residential construction on the lot. Vote was unanimous.


Minutes — June 14, 2005

MotionSpear/Tuttle to approve 6/14/05 minutes as written. Unanimous.

Case #7/12/05–1 — Berkebile

Bryan and Angel Berkebile have applied for a variance to Section 6.2.4, or alternatively for a special exception under the terms of Section 17.3, of the Wilton Zoning Ordinance, to permit the construction of a deck on the existing house on Lot B – 133, 93 Burton Highway, which would be closer to a lot line than otherwise permitted by the Ordinance.

Mr. Faiman explained the rules of procedure and also said that he had sent the Berkebile’s a letter suggesting that they obtain documentation showing that Lot B – 133 existed as a lot of Berkebile record prior to the establishment of the zoning restriction, probably 1971. (See file.)

Mr. Berkebile said that he was unable to research his deed and thus had no documentation. Ms. Eckstrom suggested looking up his tax card for the date the house was built. This she did and the tax card said the home was built in 1968.

With the documentation established, Mr. Berkebile presented a sketch of his property and existing house and explained that after removing a three season room from the back of his house, he would now like to build a deck on the back of his home. His house sits 5’ into the 35’ setback, so in order for the deck to run the full length of his house, he needs a variance or special exception.

Ms. Eckstrom and Mr. Faiman drove by the property.


This is a lot which predates zoning, a house which was built on that lot prior to the imposition of zoning, and is only 30’ from a side lot line. The applicant desires to build a deck which would be continuous with the dimensions on the house and which would therefore also be only 30’ from the lot line and is requesting relief either in the form of a setback variance or a setback special exception.

MotionEckstrom/Tuttle to close public hearing & enter Board deliberations. Unanimous.

Mr. Faiman read Section 17.3 special exception requirements.

MotionEckstrom/Tuttle to grant a special exception under the terms of Section 17..3. The special exception will permit the construction of a deck extending across the full width of the back of the house, and encroaching into the setback 5’ as shown on the plan submitted with the application. All were in favor.

Case #7/12/01–2 — Tuttle & Tuttle

The Richard R. Tuttle Jr. Revocable Trust 1-2-2001 and the Richard R. Tuttle Sr. Trust have applied for a variance from the terms of Sections 5.2.2 and 3.1.10 of the Wilton Zoning Ordinance, to permit the subdivision of Lot F – 32, Intervale Road, into three lots, one of which would have its frontage on NH Route 101 but would take its access from Intervale Road.

Jim Tuttle disqualified himself as a voting member of the Board and Mr. Faiman named David LaPonsee to vote in his place.

Attorney Wil Sullivan represented Richard Tuttle Sr. and explained that half of the property, abutting NH Route 101, is in the Commercial Zone and the other half is in the Residential Zone.

The applicants intend for all three lots to be residential. Atty. Sullivan pointed out that the Ordinance actually prohibits using Route 101 as an access point if there is another side road – Section 7.2.4. He said this request is similar to the Bragdon property next door that the Board approved.

Abutter Ken Smith, who lives directly across the street from the proposed development expressed his concern about drainage issues. He said that he has a lot of water to deal with now and can’t handle any more. He felt that three houses were too many on that particular lot and that two would be better tolerated.

Land surveyor Dawn Tuomala said that she did not do a drainage analysis because these houses will be on Town water and sewer and the plan doesn’t call for a common drive.

Mr. Faiman read a letter from Road Agent Steve Elliot in which he requests an adjustment in the location of one of the driveways. Ms. Tuomala said that the adjustment was made on the plan.

Deb Ducharme, 1 Riverbend Way, said that Intervale Road used to be one of the prettiest roads in town and this parcel is the last large open pieces left. Putting three homes here will take away from the country look and feeling and will make a big impact on this very old road.


This is a lot of slightly more than 2 acres in an area that is zoned for 1/2 acre minimum residential development. The proposal is to subdivide the parcel into three lots, one of which would abut NH Route 101 but would take its access from Intervale Road. This is inconsistent with the requirements of the Ordinance which says that a lot take its access from the road that it has its frontage on, therefore the ZBA has been asked to grant a variance. The development is consistent with existing development in the area and it is more practical for that lot to take its access from Intervale Road than from Route 101. Concerns that have been raised are the concern about drainage patterns and whether they will be affected by the proposed development and new driveway, and the visual affect on the neighborhood of turning what’s now an open field into three houses.

MotionEckstrom/Spear to close public hearing & enter Board deliberations. Unanimous.

Ms. Roberts was concerned about the # of driveways relative to sight distances and safety issues. Ms. Eckstrom asked what the line of sight was like there, was it relatively straight?

Mr. LaPonsee said that his experience is that it is a very dangerous stretch and there are lots of kids in the neighborhood and in the street as well. Ms. Roberts said that she would feel more comfortable with the project if there were a common drive rather than the three shown on the plan.

Mr. LaPonsee said that he had planned to vote no but would reconsider with this change. Ms. Eckstrom also felt there was too much congestion with the three driveways.

MotionLaPonsee/Eckstrom to reopen the public hearing. All were in favor.

Mr. Faiman expressed the concerns of the Board regarding the three curb cuts. Atty. Sullivan said that the applicants would be willing to accept the one driveway limitation. Ms. Tuomala explained that the driveway would have to be 20’ wide and wider at the bottom. Both abutter Smith and neighbor Ducharme said they would prefer one driveway to three also.

MotionRoberts/Eckstrom to close public hearing & return to deliberative session. Unanimous
MotionEckstrom/Spear to grant variance request to permit the subdivision of Lot F – 32, Intervale Road, into three lots, where the proposed Lot F – 32 – 3 will have its frontage on NH Route 101 but will take its access from Intervale Road by an easement over Lots F – 32 – 1 and F 32 – 2, as shown on the plan submitted to the ZBA, titled “Subdivision Plan of Land, Lot F – 32, Richard R. Tuttle, Jr. Revocable Trust and Richard R. Tuttle, Sr. Trust, dated June 28, 2005.” The following conditions apply:
  • No access from Intervale Road is permitted for any non-residential use on Lot F – 32 – 3.
  • Proposed driveway construction and grading is not to adversely affect drainage to or from adjoining properties.
  • Access from all three proposed lots is to be by a single shared driveway to a single point of access on Intervale Road.
  • The placement of the easement and the easement language must be approved by the Planning Board as part of their review of the proposed lot line adjustment.


There was a discussion about how the Chairperson advises applicants regarding their applications before finalization of applications. There was also a discussion about extending the deadline from two to three weeks before a meeting to allow more of this type of coordination to take place. There was discussion about requiring applicants to provide documentation that their lots predate zoning if grandfathered use is the point of the request. Mr. Faiman will write an addendum to the ZBA instructions for the Board to look at. The Board will decide on the 3 week deadline at the next meeting.

MotionSpear/Tuttle to adjourn. All were in favor. The meeting adjourned at 9:47 p.m.

Minutes submitted by Diane Nilsson

Posted July 19, 2005