Town of Wilton, NH

Zoning Board Minutes

May 9, 2006

Voting BoardChairperson Neil Faiman; members Joanna Eckstrom, Carol Roberts, Jim Tuttle and Bob Spear; alternate member Eric Fowler.
  • John Zavgren & Bridget Mooney – special exception
  • K.M. Zahn and Sons (applicant) and Harold E. Kennedy (owner) – variances
  • William Jordan and Linda Bravo and Keith Frolkey – variances

Faiman called the meeting to order at 7:45 p.m., announced the three cases and introduced the board members.

Minutes — April 11, 2006

MotionTuttle/Spear to approve 4/11/06 minutes as printed. Five in favor, Eckstrom abstained.

Faiman introduced the Board members, the case, and the procedures.

Case #5/9/06–1 — ZAVGREN/MOONEY

John Zavgren and Bridget Mooney have applied for a special exception under the terms of Section 5.3.1 of the Wilton Zoning Ordinance, to permit the use of Lot C – 136, 16 West End Highway, for a wedding venue business.

Faiman noted that the five regular board members would be voting on this case.

John Zavgren handed out information sheets and posted an architectural drawing of the portion of his property where he proposes to be able to park 100 cars. On the small locus map he indicated the parking area in green and the picnic area, where the weddings will actually take place, in blue. His proposed hours of operation are 10 a.m. to 11 p.m. Saturday and Sunday mid May to the end of September. He said that the wedding venue is more than 200' from the nearest abutter and that the terrain and the trees will attenuate the sound. He will provide portable toilets and outdoor sinks. He is proposing to extensively landscape the proposed parking area, which will be maintained as grass. He said that the wedding venue itself is not visible from the street. He said that he and his family are proposing only to rent out the property and supervise the events, they will not provide food or sound or anything for the weddings.

Eckstrom asked if there would be any lighting? He said he will install landscape lights, which will be 3' off the ground and pointing down, that will go from the picnic area to the parking lot. She asked if he would be on site for every event, he said that he would. She asked if he would be employing the parking attendant, he said he would and it would usually be him. Roberts asked if he was flexible on the Sunday night hours of operation and willing to end any sooner than 11 p.m. He said he was.

Ann Carlsmith, Bennington Battle Trail, suggested hiring the Police if necessary for overflow parking. Mr. Zavgren said they don’t plan on having any overflow parking, but if the board feels the Police might be needed to direct traffic when people leave, he would do whatever the board feels is necessary.

Abutter Judy Grace, 89 Temple Road, Lot C – 141, said she feels that if this proposal is granted, for her it will be like living next to a state park. The peace, quiet and privacy she moved to Wilton for will no longer exist. Instead she will hear music and see people running around and slamming car doors from 10 a.m. until 11 at night. She also felt the proposal would hurt her property value. She said her property abuts the brook, as does his. She had a concern about liability, should a child get injured in the brook or come onto her property. She also had a concern about overuse of West End Road, a very narrow road. In summary she felt the property is too small for this proposal.

Abutter Joseph Roberge, owns Lot C – 137, 10 West End Highway, lives in CT. He wanted to know if the applicant was going to get a liquor license, he was concerned about his property value and concerned about his well becoming contaminated from the portable toilets, he wanted to know how many there would be. He said that the driveway from the proposed parking area down to West End Highway is pitch black. At the end are two granite posts four or five feet high, and his house is right next to one of the posts. He was concerned that people consuming too much alcohol may hit the posts or his house. He would like to see lighting all the way down to the main road and also policed for the two-drink minimum (.08) if that’s possible.

Abutter Wayne Nichols, Lot C – 140, 77 Temple Road, said he lives at the bottom, down near the brook and can see the Zavgren house from his property, He said he moved to West Wilton from downtown Wilton for the peace and quiet there. He said his only day off is Sunday and if this proposal is granted, he will sit in the yard and listen to a bunch of noise instead of the peace and quiet that he looks forward to all week.

Faiman read a letter from abutter Nancy Clark, Lot C – 123, 7 West End Road, dated May 8, 2006, wherein she stated her support for granting the special exception.

Mr. Zavgren answered questions that had been raised. He said the portable toilets are self-contained units and nothing goes into the ground, so he couldn’t see how they could contaminate a well. He said they would be rented for each event and picked up after each event. He wasn’t sure exactly where they would be placed, but he thought they would be closer to the parking lot than the picnic area. He said he would not be providing alcohol, so would not get a liquor license. He said that caterers or bartenders that the wedding couple may hire could have a liquor license. Spear asked if he was aware of the new liability law. Zavgren said that he was.

Eckstrom asked if he had done a traffic study as to the number of cars that go around the Temple Road/West End Road Corner. Mr. Zavgren said he has read traffic counts on the internet but he didn’t bring them with him.

Tuttle asked about the waterfall and brook area as far as liability – was the applicant going to provide any ropes or restraints of any kind. Mr. Zavgren said that he has young children that play in that area quite vigorously and there have never been any problems. He said that the water in those areas is rather shallow – a child could slip and get bruised but not drown in the waterfall. He said the water in the brook is 3' – 4' deep. Eckstrom said that a child can drown in a bathtub in less than 6" of water. He said that he probably made an overstatement there, but he said that he wasn’t very concerned about those safety issues.

In response to Mr. Roberge’s question about the 200' distance, Mr. Zavgren said he meant that the picnic area was at least 200' from all abutters.

Roberts asked about the state of the proposed parking area at present. Mr. Zavgren said he cut down most of the trees a few years ago and none of the landscaping has been started. Eckstrom said she drove by the property and felt that she would benefit from a site visit.

Ms. Carlsmith asked that the board ask the applicant to come back with a more complete plan.

Ms. Grace asked how the applicant would keep guests from coming onto her property. Mr. Zavgren said that the brook would serve as a natural boundary, and he didn’t think there was an attraction on her property that would draw guests to it, but if it happened, he would find a way to deal with it.

Spencer Brookes, Wilton Cons Com, asked the board, if they do have a site visit, to observe the location of the brook. He said that keeping the shore covered with trees keeps the brook cool, which is healthy for the Souhegan river downstream.

Tenant of Lot C – 137, 10 West End Highway, Henriette Isene, said she is most concerned with the noise and the exhaust from all of the cars.

Dennis Orsi, Isaac Frye Highway, said that if the board approves this, it should require some kind of study to find out how many portable toilets are needed for 200 beer drinkers on a hot summer day, so that there will be enough.

Andy Hoar, Isaac Frye Highway, observed that the applicant said the brook should keep people from trespassing on abutting properties, but he also said it was so shallow that you couldn’t drown in it. He said it just seems like the details have not been thought through.

Keith Frolkey, Pleasant Street, said that the applicant hadn’t mentioned lighting at the picnic area itself and that coolers and DJs etc. would probably require a generator. Mr. Zavgren answered that they actually hosted a wedding for friends last fall and used a 20 amp circuit which worked fine.

Board members decided to schedule a site visit for Monday, June 12, 2006 at 6:30 p.m. at the Zavgren/Mooney property, 16 West End Highway. Faiman explained that the site visit is open to the public but is not part of the public hearing, and no testimony or discussion will occur.

Board members also asked the applicant to have marked, before the site visit, the parking area, driveway, venue site, and where the toilets and lighting will be. For the next meeting, board members asked the applicant to bring information on traffic studies on Temple Road/West End Highway, the Host Responsibility Law, an emergency vehicle access plan and paid security.

MotionSpear/Eckstrom to schedule a site visit on Monday, June 12th at 6:30 p.m. at the Zavgren/Mooney property, and to continue the hearing to Tuesday, June 13th at 7:30 p.m.


William A. Jordan and Linda J. Bravo (Lot J-84), and Keith A. Frolkey (Lot J-85) have applied for variances to Sections 17.1 (c), 6.2.3, and 6.2.4 of the Wilton Zoning Ordinance, to permit an adjustment of the lot line between Lot J – 84, 17 Pleasant Street, and Lot J – 85, 19 Pleasant Street. The variances are necessary because both lots are nonconforming with respect to frontage and setbacks, and would continue to be nonconforming after the adjustment.

The five regular board members voted on this case.

Dawn Tuomala, with Monadnock Survey, represented the owners and explained they are presently making application also to the Planning Board for a lot line adjustment between Lots J – 84 and J – 85. They would like to adjust the line between them by 498 square feet. The area shaded in green, on the plat, came from Lot J – 85 and will go to J - 84, and the area in yellow came from Lot J – 84 and will go to J – 85. The lot areas will remain exactly the same as they are now. The existing driveway on J – 84 is actually partially on J – 85. Both lots are nonconforming lots. The zoning district is Res/Ag – you need 2 acres, 200' of frontage and 35' setbacks. It’s also partially in the Aquifer Protection District. J – 84 has frontage of 59.65' right now and it will have 70.2' after the adjustment. Lot J – 85 has a frontage of 129.03' at present and will have 118.48' after the adjustment.

They are asking a variance from 17.1 (c) nonconforming uses. They would like to adjust the lot lines between the two lots. For the variance to 6.2.3 frontage – they would like to be allowed 118.48’ on Lot J – 85. For the variance from 6.2.4 setbacks, they would like to be allowed a setback of 11' on Lot J – 85. She then read through the variance criteria. (See application in file).

Abutter Kyra Brennan, Lot J – 83, 11 Pleasant Street, wanted to know if granting these variances would allow the owners of Lot J – 84 to have a two-family dwelling. Ms. Tuomala said that these variances only allow for a lot line adjustment between the two lots, and for Lot J – 85 to have slightly less frontage and setback on one side than it had before the adjustment. She said Lot J – 84 will pick up 10 extra feet of frontage, but that’s not near the 200' needed.

Matthew Cabana, Temple Road, said he was the realtor for the sale of J – 84 and is familiar with the property and felt that cleaning up the lot lines will be a good thing for both properties.

Eckstrom asked if this adjustment will allow for trash receptacles to be set back into the property rather than jutting out into the road. Linda Bravo answered that the driveway currently belongs to J – 85. After the adjustment it will be belong to them and they will have more room for rubbish bins etc.

Tuttle asked Mr. Cabana how a sale could go through with the driveway of one property actually on the deed of the property next door. Mr. Cabana said that it happens quite frequently on older properties. Ms. Tuomala added that there was no survey until this one was done.

Faiman said a key statement from the application is there is nothing to be gained by denying it. He added that it simplifies the lot lines and regularizes the property somewhat. It doesn’t make anything possible that wouldn’t have been possible before.

MotionRoberts/Spear to grant the variances for the reasons stated in the application. Four were in favor. Tuttle voted no.

Faiman explained that the bylaws call for the meeting to end at 10:30 p.m. unless there is a unanimous vote by the board to extend it. He then announced the next case:

Case #5/9/06–2 — ZAHN/KENNEDY

K.M. Zahn and Sons (applicant) and Harold E. Kennedy (owner) have applied for variances to Sections 9B.6.1 and 9B.6.2 of the Wilton Zoning Ordinance to permit the removal of gravel from

Lot F – 3, 536 Isaac Frye Highway. The requested variances are necessary for the proposed use because the lot is not in the district in which gravel excavation is permitted, and the proposed excavation would not satisfy the setback and buffer requirements of the ordinance.

Faiman then announced that he would recuse himself from the case because of his involvement in the drafting and passage of the gravel ordinance as a member of the planning Board within the last couple of months. He said this does not necessarily mean that he will always recuse himself from future cases involving this particular ordinance, but given the proximity to a fairly tight, hotly contested campaign on the issue, he thought it would be appropriate to step down. He reserved his right to speak as a private citizen from the audience. Roberts also recused herself and reserved the right to speak as a private citizen from the audience. Faiman appointed alternate member Eric Fowler to take Roberts’ place and said that Vice Chair Joanna Eckstrom would be chairing the hearing in his place.

Eckstrom explained that there would only be a four-member board and gave the applicant the choice of waiting in hopes of convening a five-member board. The applicant chose to go ahead. She explained that the procedure for the hearing would be that the applicant would present the application; anyone in the audience in favor of the project could speak; then anyone in the audience opposed to the project could speak.

Attorney Gerald Prunier explained that this property is on Isaac Frye Highway, about 800’ from Route 101 and is comprised of 12+ acres. It is bordered by the New England Forestry Foundation property on the west, the Anne Jackson Memorial Girl Scout Camp on the north and east and the Town of Wilton/South Yard Cemetery on the south. He said there is a large hill on the property that must be altered to allow for residential use and his clients would like to remove gravel down to a level 210 as shown on the plan that he posted on the wall. He said his clients are before the board because the Town, at its last meeting, passed an ordinance that left them on the wrong side of Route 101, as far as removing gravel is concerned. They are proposing to remove the gravel with conditions that the trucks will enter from Route 101 and return to 101, but they will use 800 ‘ of Isaac Frye Highway to get to and from 101. He said there would be 8 trucks making 4 trips each which would total 32 trips a day. Hours of operation would be 7 a.m. to 4:30 p.m. M – F. He said there might be some reclamation done on Saturday but there wouldn’t be any removal of gravel on those two days.

They feel that it is a reasonable use of the property, and in relation to the ordinance, they feel that they are so close to it that it should be considered. They are requesting the variance to the 300’ buffer requirement from all lot lines because the property is only 500’ wide. They are proposing 50’ buffers around the whole property or the ridgeline.

Spear asked how long the operation would take, including reclamation, and what is planned for the property after it has been completed. Atty Prunier said the gravel removal would take about 8 years and the plan is for residential housing.

Eckstrom asked about noise, blasting etc. Karl Zahn said there will be no blasting, regardless of whether they hit ledge. The equipment they would use is a loader to load the trucks, a dozer part-time, and a screener a few days a year. He said the way the operation would work is that the trucks would be loaded first thing in the morning and then they would be gone for three hours, they would come back, get loaded again, and be gone for another three hours. During those three hours, he said, not much is going on.

Spear asked about the contours. Zahn said their goal is to end up with a field that will actually grow crops and that is at about the same level as the Kennedy house. He said the sloping ratios are more gentle than what the Town or State requires. In response to a question, he said all the materials for reclamation are on site, including 12” of loam.

Ralph Jelenick, Properties Administrator for the Swiftwater Girl Scout Council, Bedford, NH, said the abutting property is Camp Anne Jackson on Wilson Road, which the Council owns. He said there are two main areas of the camp: The upper area is the Lodge area which is used all year around. The eastern area is the lower camp which consists of Adirondack shelters, consult composting toilets, a pavilion, and a pond. This area is primarily used in the spring, summer and early fall. He said he did a walk-through of the property with Tracy Gillick, Operational Vice President for Property Management at the Council, and the principals of the project. At that time they found five areas of concern:

After the site visit and discussion, he met with the Council CEO. She took it to the Board of Directors, who decided not to support or oppose the application, as long as the applicants hold to the agreements they made.

Spear asked him if he was happy with the plan for how it will look after the operation. He said yes, because it has been logged and it looks pretty bad right now and will for a number of years, it’s also dangerous if kids do get down on the property because of the rocks and general upheaval.

Paul Buffam, 618 Isaac Frye Highway, said that he voted for an ordinance at Town Meeting, which was that gravel and sand excavation were supposed to be done in another part of town, not in this zone. And what the applicant is looking for is a variance so they can do graveling in this particular area. He said he understood that with a variance you have to prove there is some hardship with your land and he hadn’t heard anything about a hardship on this particular parcel of land. He said it seemed to him if you were surrounded by other pre-existing gravel pits and you couldn’t have a house there or something else, then that would be a hardship, but this is just a regular house lot or piece of property in Wilton. And, he said, there’s a lot of land in Wilton just like this, so if the Board grants this variance, there are a lot of gravel companies around here with their eyes on Wilton gravel and sand, what is going to distinguish any other lot from this lot? He said it looks like a can of worms to him.

Eckstrom read the hardship criteria that Attorney Prunier had written in the application. Then she said that the way to do an excavation, anywhere in town other than the new Gravel Excavation District, is by making an application to the Zoning Board. Buffam said the question remains what makes this lot different than any other residential lot that may come before the board with the same request? Eckstrom responded that each case is treated individually. Buffam said that if this variance is granted, a precedent will be set which will essentially throw the Gravel Excavation District ordinance out the window.

Eckstrom read a letter, dated May 8, 2006, from the Wilton Board of Cemetery Trustees with reference to the South Yard Cemetery abutting Lot F – 3. In it the Board asks that should an area variance be granted, the buffer not be reduced beyond one hundred and fifty feet. It notes that the natural, undisturbed wooded buffer required under Section 9B.6.1 of the ordinance has already been cut and the Trustees have determined that allowing excavation to intrude further into the buffer would adversely affect the tranquility of the cemetery. (See file)

Jim Nelson, Board of Cemetery Trustees Chair, said that he walked the area near the stone wall with the applicants and discussed with them the need for the 150’ buffer.

Eckstrom read letters from neighbors who had no objection to the gravel operation:

Carolyn Quinn, Lot F – 001, dated May 8, 2006

William Beard, Wilson Road, dated May 5, 2006

Isaac Blanchard, 220 Wilson Road, dated May 8, 2006

Winifred R. Blanchard, 221 Wilson Road, dated May 8, 2006

Wendy Blanchard, 221 Wilson Road, dated May 8, 2006

Clint Wilder, 100 Wilson Road, dated May 8, 2006

Heidi G. Wilder, 100 Wilson Road, dated May 8, 2006

Eckstrom read a letter dated May 5, 2006 from David Deysher, owner of Historic and Distinctive Properties, 74 Stagecoach Road wherein he says, in part, that Wilton Center is one of the most beautiful and picturesque spots in southern NH. Should this variance be granted, he writes, the Gateway to Wilton Center as you drive up Isaac Frye Highway will be an absolute eyesore and will be viewed as a reason not to live in Wilton Center. He also says he can’t imagine heavy truck traffic coming up Isaac Frye into Wilton Center, the road will quickly be destroyed. (See file)

Bill Carnduff, 195 Wilson Road, said he is directly across the street from the Anne Jackson Lodge and he is, in fact, one of the people that Mr. Deysher sold a house to in Wilton Center. He said he is, to put it mildly, highly distressed by the possibility that the will of the people, as expressed at the March election in Wilton, could be overturned at the very first moment by an application for a variance being successful. He said the will of the people was to contain willy nilly gravelling to a certain area of town that already has gravelling operations. He asked for a show of hands of people who were not in favor of this project and who lived within 300 yards of it. There were about 10 people. Then he asked how many lived within 750 yards and an additional 12 went up. He spoke about safety – the poor visibility at the bottom of Isaac Frye Highway for making left turns onto Route 101; trucks – 32 truck trips a day on a road not meant to take heavy truck traffic; environment – water tables in the area should be studied to see if they will be involved; peace & quiet – he said he can already hear beeping from gravel pits on Route 31, he does not want to hear loaders at 7 a.m. 300 yards away, In closing, he said he thought it would be a bad precedent to give the very first applicant for a variance, after a vigorously fought zoning ordinance, a free pass. He said it would open the ZBA up to some serious incursions from anyone else in town who would like relief from that same zoning ordinance. That zoning ordinance is there because the will of the Town wanted it there and does not want a gravelling operation on Isaac Frye Highway.

Neil Faiman, 24 Putnam Hill Road, pointed out that the applicant only applied for 9B.6.1 Setbacks and Buffers and 9B.6.2 Transportation but did not apply for 9B.2 District Location. Atty Prunier said he was willing to do whatever was required. Eckstrom asked Faiman what the protocol was and Faiman said the applicant needed to fill out a new application, pay the application fee, submit abutter labels and pay those fees.

Gail Hoar, 578 Isaac Frye Highway, said she lives 300 yards from the proposed operation and is concerned about reclamation, among other things. Tuttle said that the Planning Board requires a reclamation plan and that it be bonded. She said we are opening ourselves up to a future of lawsuits if we allow gravelling on this piece of property because variances will be demanded on every other piece that comes up.

Spencer Brookes, Wilton Cons Com, wanted to speak on two issues:

Tuttle asked if he could make a comment, Brookes said yes. Tuttle said, “you’re so concerned about the wells you didn’t mention the pond or the flowing brook at the Girl Scout Camp, which are probably in more immediate danger from siltation and erosion controls. But you talk about the gravel operation being shifted to Route 31 South and the Town’s water supply is within that newly created district and I wish that more people had realized that in March.”

It was now past 10:30 p.m. Board members decided to continue the hearing and to schedule a site visit for Sunday, June 11th at 10 a.m.

MotionSpear/Tuttle to continue the hearing to June 13, 2006 at 7:30 p.m. All in favor.

Bylaw Amendment

MotionSpear/Eckstrom to incorporate amended Applicant’s Failure to Appear language into bylaws. All in favor.
MotionTuttle/Spear to adjourn. All in favor. Meeting adjourned at 11:15 p.m.

Minutes submitted by Diane Nilsson
Posted May 16, 2006