Town of Wilton, NH

Zoning Board Minutes

September 27, 2005

Voting BoardChairperson Neil Faiman; members Joanna Eckstrom, Carol Roberts, Jim Tuttle & Bob Spear; alternate member Eric Fowler.
ClerkDiane Nilsson
AgendaHousehold of Faith – variance

Faiman called the meeting to order at 7:41 p.m. and explained that this was a special meeting called for the purpose of making a decision on the case. He said that this is not a hearing, in that no testimony would be taken. The board would make a decision based on testimony taken at the previous two hearings. He then introduced the Board members.

Case #8/9/05–1 — Household of Faith (continued from August 9, 2005)

Household of Faith has applied for a variance to section 5.3.7 of the Wilton Zoning Ordinance, to permit the creation of seven dwelling units in the existing building on Lot J – 038, 16 Maple Street.

Eckstrom handed out a one page summary of her thoughts (see file) and stated that the thing that was most striking to her was that the opponents to the project presented more convincing arguments and concrete evidence than did the applicant. She also felt that granting 7 units would be stretching the ordinance to more than double what is currently allowed. She said she would prefer to see a change in the ordinance to permit such a use rather than granting the request now and potentially opening a Pandora’s Box for everyone else in the neighborhood.

Speer said that the Abbot house is very unique and it’s the only house of its kind in the neighborhood. He felt granting the variance would not be opening a Pandora’s Box nor would it set a precedent. He also felt that because Household of Faith has put money into the property and improved the property and because HOF is an organization with financial resources behind them that they have a better opportunity to keep the property as a showpiece than would a single individual or someone interested in pure economic gain. He said he was in favor of granting the variance.

Fowler said that he has concerns about the fact that even with 7 units, HOF would still be operating at a loss, and what will that mean for the property down the line. He said he was confident that the intentions of the applicant are good, but he couldn’t help feeling that the board was being asked to bail the applicant out of a poor investment, and he wasn’t sure that was something the board should be trying to do. He also felt that granting 7 units would be too far a stretch from what the ordinance currently allows.

Roberts said that although the board asked for an analysis of rents for various numbers of units from the applicant, the only information that came back was for 7, which, she assumed, was barely break even for them. She agreed with Fowler that the board was being asked to bail the applicant out of a poor investment. Thinking about the spirit of the ordinance and reasonable use of property, she noted the B & B ordinance: B & Bs are allowed in the Residential District and can have up to 4 guest rooms and none with kitchens. She felt that allowing 7 units would be a major change to the character of the neighborhood and there would also be a traffic impact. She felt a more reasonable use would be 4 units. She felt that the Town was not obligated to provide a variance for 7 units.

Tuttle said he shared the concerns about the numbers of units but said that if you look at the projected rents in the analysis that the applicant provided, what the applicant is trying to do is provide affordable housing and also be able to support the property. He said if there are fewer units, obviously the rents would have to be much higher. He felt that the 14 cars from the tenants would have some influence on the traffic in the neighborhood, but he couldn’t see the projected 90 trips a day from the traffic studies. He said if you look at the combination of the uniqueness of the building, how many units you need to many the numbers work and the fact that the applicant is going to change the exterior very little, he would be inclined to vote for the variance.

Faiman quoted from the Harrington v. Town of Warner court case related to the first prong of the Simplex test: whether the zoning restriction as applied interferes with a landowner’s reasonable use of the property. “This factor includes consideration of the landowner’s ability to receive a reasonable return on his or her investment. It does not require that he or she has been deprived of all beneficial use of the land but mere conclusory and lay opinion concerning the lack of reasonable return is not sufficient; there must be actual proof, often in the form of dollars and cents evidence.”

He said that the board has received some information; their budget analysis showing what it’s costing them to run the property today and what they suppose it would cost in the proposed configuration. But the board doesn’t know what they paid for the property so it’s hard to know what a reasonable expectation would be. He said there is a plausible argument that it is not feasible to operate that property as a single family home and so something else needs to be done with it.

Faiman quoted from Harrington v. Town of Warner re second prong of Simplex test: whether the hardship is a result of the unique setting of the property. “This factor requires that the property be burdened by the zoning restriction in a manner that is distinct from other similarly situated property. It does not, however, require that the property be the only such burdened property, Rather, it cannot arise as a result of the zoning ordinance’s equal burden on all property in the district.” He said that there certainly is an argument that this property is qualitatively different than most properties in the district. He also said there is the question of self created hardship – did the owners know what they were doing when they purchased the property?

“Finally, Simplex requires consideration of the surrounding environment,” Faiman quoted. “This includes evaluating whether the landowner’s proposed use would alter the essential character of the neighborhood. Indeed, because the fundamental premise of zoning laws is the segregation of land according to uses, the impact on the character of the neighborhood is central to the analysis of a use variance.” He then said that in his opinion the Wilton Zoning Ordinance makes it pretty clear that it considers a multi family of 3 units to be the largest “healthy use” in the Residential District. He asked: Is there something about this property that would ameliorate that reasoning?

Roberts said that this property was a single family residence for decades until 2002 when the applicant purchased it and was then given a variance for transitional housing for up to 4 women and a building manager. She felt that allowing 7 full dwelling units would be a tremendous leap and she didn’t think that this is what the planning board meant by multifamily conversion. She felt that perhaps a zoning ordinance change is required rather than something this board can provide.

Eckstrom agreed that the property might be difficult to sell and/or operate as a single family but she felt that what made the property the most unique was the indoor swimming pool.

Spear said it was most comparable to the Fountain House, was had operated as a B & B for a short time, but was now a single family again.

Roberts said that the board should think of the property as consisting of a 6000 sq. ft. house with 4000 sq. ft. added on. She said it’s a self induced hardship when you add on the 4000 sq. ft. pool and barn area.

Eckstrom asked Roberts if she was thinking of a maximum number, Roberts answered a maximum of four. Eckstrom said that she was bothered by the fact that the applicant projected a loss of $3,500/year.

Eckstrom felt that the applicant should have had a revenue source lined up before purchasing the property, rather than hoping that the ZBA would grant their request for recreational after school care. Faiman said that their hardship claim now is questionable. But, he continued, the board doesn’t know the applicant’s original intention for the property, but it should be no surprise that it is expensive to operate.

MotionSpear/Tuttle to approve variance for 7 units as submitted.
VoteYES: Spear, Tuttle NO: Eckstrom, Faiman, Roberts
MotionEckstrom/Roberts to approve a variance for four dwelling units within the existing footprint of the building.
VoteYES: Eckstrom, Faiman, Roberts NO: Spear, Tuttle

Reasons for Denial

By the terms of the Ordinance and by the reasoning of the court’s Harrington Decision, it was clear that: A 7 unit dwelling residence is qualitatively different than that of the permitted 3 unit dwelling residence, that it would have a different affect on the neighborhood than that of a permitted use, there were not mitigating factors that the board was satisfied would justify that differing effect on the neighborhood and that therefore the application failed to meet the hardship standard as set forth by the Supreme Court and was inconsistent with the spirit of the Ordinance.

In addition, to some extent the hardship was self created because the applicant purchased the property with full awareness of the practical difficulties that would be associated with the ownership of that property and of the zoning restrictions on that property.

MotionEckstrom/Roberts to adopt the above reasons for denial. Motion passed 3 – 2.

Reasons for Approving Four Unit Variance

• A four unit residence is more consistent with the special exception which allows a three unit multifamily conversion, and with existing uses in the neighborhood.

• It’s a compromise between the permitted 3 units and the requested seven units, taking into consideration the size of the building and the lot, and balancing the effect of the use on the neighborhood.

MotionEckstrom/Roberts to adopt the above reasons for approving variance. Motion passed 3 – 1 with 1 abstention.
MotionTuttle/Spear to adjourn. All in favor

The meeting adjourned at 9:05 p.m.

Minutes submitted by Diane Nilsson

Posted October 6, 2005