Town of Wilton, NH

Zoning Board Minutes

June 13, 2006

Faiman called the meeting to order at 7:35 p.m., announced the continuation date of Monday, June 19th, since he didn’t expect the Board to conclude all four cases this evening. He explained that the secretary may not complete the minutes within the usual 6 day time frame due to the extra meetings of this board and the Temple Zoning Board. He then explained the Board’s procedure for hearing cases and introduced the Board members.

Case #5/9/06–1 — ZAVGREN/MOONEY (continued from May 9)

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 all of the Board members except Bob Spear, and some of the abutters, attended a site visit at Mr. Zavgren’s on Monday evening where they were able to observe where the proposed locations were where the various activities were to be carried out.

Mr. Zavgren handed out an updated proposal and Power Point presentation and said that there were three issues of concern: Traffic and Parking, Sanitation and Lighting. He said although there would be 100 parking spaces, typical occupancy would be 50; arrival and departure will be supervised. He had traffic count information from nearby intersections. (See file) He has proposed reducing his operating hours to 10 a.m. to 9: 30 p.m. on Saturdays and 10 a.m. to 7:30 p.m. on Sundays with a five hour limit per event. He has proposed building a stone wall at the end of the driveway to address an abutter’s safety concern. On the advice of Dave’s Septic Service of Manchester, NH, Zavgren is proposing to have three portable toilets that would be serviced between events. They would be contained in a façade, not visible from the road and more than 300’ from the closest abutter’s well. He is proposing subtle, low-voltage, downward pointing lighting along the driveway, along a path that connects the parking to the venue and near the portable toilets.

Roberts asked about employee parking. Zavgren said that if only 50 cars are planned, then there is room to mark a number of employee spots.

Eckstrom said that a number of abutters asked about how noise would be restricted. Zavgren said that when they had the wedding there last fall, the music was inside the pavilion which attenuated the sound. In addition, the waterfall competes with the sound, he said he would monitor the sound and if necessary would install sound projecting boards to move the sound away from abutters.

Abutter Lori Ledger asked if Zavgren will have a liquor license and who will be liable for any alcohol-induced accident or behavior. Zavgren answered that he will not have a liquor license, alcohol will be served by a bartender hired by the wedding party/caterer, but he will ultimately be liable because he is the property owner. He said he will be on site at all times monitoring the event.

Amanda Krug, 18 Petty Road, asked if this were to be granted would it be for a year to see how it goes? Faiman answered that neither the Zoning nor Planning Boards are in the habit of granting probationary approvals. They decide whether something should be approved or not, typically with various restrictions and limitations. Violation of the terms of approval would be grounds for revocation.

Abutter Judy Grace asked who would be responsible for parking and how will trespassing be stopped.

Zavgren answered that he would be responsible for parking assistance and he will be planting landscaping between his property and the next property and if he needs to he will erect a fence. He said he will not allow any swimming in the brook.

Abutter Jean Scagel, Keyes Hill Road, asked if the applicant had considered renting security to direct traffic if there was a large gathering. The applicant said he has considered it and would do it if the need was there.

Christy Lilley asked if the applicant had taken into consideration how 50+ cars coming to and leaving from the applicant’s property would affect the neighborhood safety, especially the intersection of West End Road and Temple Road. The applicant said he had considered it and said it might require special considerations like a policeman at that intersection but he said he really doesn’t know what has to be done at this time.

Gail Hoar and Len Peterson both live very near the Red House in Wilton Center and said they have never been bothered by wedding receptions that have been held there. Dennis Orsi lives next door to the Red House and said there is no comparison between the two venues. He said no one brings bands to the Red House, everyone is gone by sundown, it’s more like an AARP outing.

Ms. Grace said that the applicant has no experience in this business.

Ms. Ledger said her property is directly across West End Road from the applicant’s. She has a pool in her yard and was concerned that someone from a wedding event would wander into her yard and into her pool.

Zavgren said that he is well aware that he is liable for anything that might go wrong, he said he takes that responsibility very seriously, so he will be keeping a close eye on the activities. He said he does not have experience in this particular business, but he has been working professionally for 30 years and thinks he can handle this business. He said it all comes down to whether you trust me to act responsibly.

Roberge said that he was a health commissioner in a large city and knows what it’s like to be remembered years later for your vote. He said it will be the Zoning Board members that will be remembered if they vote to allow this use.

Krug said that she moved to this neighborhood from MA because it is beautiful and rural. She said she just didn’t see how the combination of traffic, alcohol and children would work.

Eckstrom said that the applicant is willing to do everything in his power to control things on his property and respect public safety.

Tuttle felt that 150 people were going to be too many for the neighborhood between the congestion of the traffic and the possible noise factor. Roberts agreed with that but wanted other restrictions, like perhaps the hours. She said it was a congested area with a lot of children, and after being there last night, this doesn’t feel like a comfortable use of the property.

Faiman said he is not convinced that a wedding venue is really a home occupation even though the ZBA approved one in the past. He said he was uncomfortable about it then and is uncomfortable about it now. The essence of a home occupation, he said, is that it is not a major intensive commercial activity, it is something that is well defined as minimal impact on the neighborhood, it shouldn’t bother the neighbors.

He said that he lives a few hundred feet from Mill Brook, and on summer afternoons a half dozen to a dozen kids play by Mill Brook. There are trees in between the brook and his house and he hears them clearly, they’re not being raucous or rowdy, they’re being kids. He said that’s not 100 people having a party with amplified music. It seemed to him that in the nature of things it will at the very least be distinctly noticeable to the neighbors and so he couldn’t see it as the kind of thing that he believes a home occupation special exception is designed to accommodate.

Board members discussed the differences between the wedding venue on Curtis Farm Road and this request. Although there was a similar traffic congestion issue at the intersection of Dale St. and Curtis Farm Road, apparently the venue itself is on a larger more open property. Tuttle said that right now the brook on the Zavgren property is very loud, but he can imagine that when water levels are lower the banking will reflect the sound downstream to the neighbors.

Eckstrom wanted to grant the request with restrictions and limitations. Roberts said there were just too many limitations; the number of months, days and hours of operation and the alcohol and security issues. Faiman said his primary concern is the direct affect on the neighborhood; the parking, the people gathering and he wasn’t terribly convinced that guests would not wander off the site and invade neighbors’ properties. Spear said he felt the traffic that would be generated by this business goes against the spirit and the letter of the ordinance (5.3.1g). Board members discussed whether , if the special exception was denied, the applicant could reapply with a smaller version. They agreed it depended on the grounds that the application was denied.

After some discussion Faiman withdrew his second on the above motion.

Eckstrom asked if a favorable vote to deny preclude the applicant from coming back with an application that has a reduced impact. Faiman answered that in his opinion if the applicant brought back another proposal and made the claim that by differences in the revised proposal that the concerns that the Board has raised here would be satisfied, then that would be sufficient justification to consider such a revised proposal. Each Board member would have to make their own decision in that case.

Eckstrom asked about what Fountain House was allowed to do in addition to being allowed to have a Bed & Breakfast. Faiman looked up the minutes and found that they were only granted a special exception for a Bed & Breakfast.

After a short break Faiman called the meeting to order at 8:55 p.m. He explained that the Board will not begin a new case after 10 p.m. and since he could not imagine the next case finishing before 10 p.m. he said that that the applicants for the two new cases, O’Leary and Griffin could leave if they wanted to and their cases would be automatically continued to Monday, June 19th. Mr. Griffin did choose to leave.

Case #5/9/06–2 — ZAHN/KENNEDY (continued from May 9)

K.M. Zahn and Sons (applicant) and Harold E. Kennedy (owner) have applied for variances to Sections 4.1, 6.1, 9B.2, 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 said he would be disqualifying himself from the hearing as he did last month. He said he reserved the right to participate as a member of the public and he said that he makes no statement about what his action might be in the case of any future application pertaining to variances or appeals relating to the same section of the Zoning Ordinance. He said that Board member Carol Roberts has also disqualified herself. He announced the Vice Chairperson Joanna Eckstrom would be chairing the meeting and alternate member Eric Fowler would be sitting as a voting member of the Board.

Eckstrom asked the applicants’ attorney, Gerald Prunier, if he would like to continue with a four-member board. He answered in the affirmative. He then handed Board members copies of the preliminary excavation plan and a Hydrogeological Assessment done by Aries Engineering, Inc.

He handed Eckstrom three letters that she read into the record. The first from Jim Spellman, Realtor-Broker with Carlson GMAC Real Estate in Amherst, NH, dated June 9, 2006. The second from Lori Worrall with RE/MAX Country Properties in Amherst, NH, dated June 9, 2006. Both letters are positive about the project. The third was an email from Karl Zahn, dated June 12, 2006, explaining the history of a project he was involved with in Lyndeborough. See file.

Andrew Fulton, with Aries Engineering, said that he walked the site property as well as the Girl Scout property. He looked at both wells and noted that they were both deep drilled bedrock wells. Spear asked how far the wells were from the Kennedy property line. Fulton said they were each 500’

from the property line. Fulton then read the conclusions of the assessment, based on site observations and review of available information as described in the preceding text.

1. The Camp Anne Jackson public water supply wells are located hydraulically upgradient of the site.

2. The proposed sand and gravel removal operations would not likely adversely affect the Camp Anne Jackson public water supply wells.

3. The proposed sand and gravel removal operations would likely result in a negligible hydraulic impact beyond site boundaries.

4. The proposed sand and gravel removal operations would likely result in a negligible adverse impact to aquifer water quality.

5. While the proposed sand and gravel removal operations could potentially result in the discharge of diesel fuel, gasoline, hydraulic fluid, grease, and the constituents of these products to the site aquifer, employing best management practices and properly maintaining equipment would reduce the potential for petroleum contaminant discharge to the aquifer.

Fulton said that Aries recommended the adoption of best management practices in order to reduce the potential for aquifer degradation due to the proposed sand and gravel removal operation.

Bill Carnduff asked if the assessment looked at the impact the operation would have on any other wells in the area and to the aquifer serving Monadnock Water. Fulton said this report did not look beyond the wells at the Girl Scout Camp. Tuttle asked if those wells were the closest to the proposed operation. Fulton answered except for the dug well on the Kennedy property.

Jerry Aubel, who lives just below the cemetery, asked if Fulton could give him any information about how the proposed operation might affect his dug well. Fulton said there are two things to consider: the quality of the water and the quantity of the water. He suggested that because Mr. Zahn is not proposing to remove water or add water to the site – a dry operation – there should be no impact on the water quantity in that dug well. He said the only risk to the quality would be a spill of some kind.

Aubel asked what recourse he would have if his water quality was ruined. Tuttle said he would have to prove that it was ruined by an operation or that there was some sort of a spill.

Spear asked Mr. Zahn how close to the water table his proposed operation would go. Zahn answered anywhere from 8’ to 30’ above the water table. Spear asked Fulton if that was sufficient protection for the aquifer. Fulton said in his opinion it is common to have such a situation left in a gravel excavation and he said it is uncommon to have an aquifer polluted by petroleum products from the gravel excavation. Spear asked why is that. Fulton said given the very permeable materials that are being excavated, those who are digging in that material very much have it in their interest to avoid a spill that would quickly get into the groundwater.

Spencer Brookes, Wilton Cons Com, asked if Zahn would consider biodegradable fluids. Fulton said that all fluids are biodegradable.

Chris Owen asked “Wouldn’t Mr. Aubel’s well be safer with a six-month housing construction project on the site, rather than an eight year gravel operation?” Zahn said the proposal will operate 5 days a week except when the road is closed or the weather is too bad and he said 8 years is an estimate. ________ Gibbons said that he takes very good care of his machines so that leaks don’t develop.

Attorney Prunier read the variance criteria from the application. See file.

Raymond Shea with Sanford Survey gave a short presentation of the preliminary excavation plan. He said the pit area would be approx. 4.5 acres and it would be slightly bowl shaped to prevent any runoff. Eckstrom pointed out that the plan now shows a 50’ buffer on the cemetery side and a 25’ buffer on the Girl Scout side. Andy Hoar asked how can we be presented with this plan when the cemetery is asking for 150’ buffers and that is not shown on the plan. “How do we know what it’s really going to look like,” he asked. Eckstrom said because it is a preliminary plan, it is subject to change. If the Zoning Board should grant the request, then the Planning Board would deal with the specifics of the gravel operation. She added, as to the request from the Cemetery Trustees for a 150’ buffer, the Zoning Board hasn’t taken any action. Zahn said he understands that people want to see a finalized plan but that can’t happen until he knows exactly what both the Zoning and Planning Boards want him to do, but he added that there is no reason to think that the plan will change dramatically.

Eckstrom read a letter from New England Forestry Foundation, an abutter, dated June 12, 2006. See file.

Chris Mellor, CEO, Swift Water Council Girl Scouts, said they have three main issues of concern: safety, erosion control and wells. She said her BOD has not yet met so they cannot take an official stand for or against the project. She did state a concern about the 25’ buffer. She understood from the minutes of the previous meeting that the buffer was 50’ and now she’s been told that it’s only 25’. She didn’t feel that was enough of a buffer. Eckstrom asked Zahn to respond. He said perhaps that calls for another site visit. He wants to accommodate whatever is comfortable for them.

Wilton Cemetery Trustee Jim Nelson spoke as a concerned citizen and said that the land in question could be graded out to accommodate some very nice house lots near Wilton Center and it would hopefully still leave quite a tree buffer between the lots and the cemetery. He said that the gravel ordinance that the townspeople voted on in March should be seriously considered by the Board. As a Cemetery Trustee he reiterated the request for a 150’ buffer of trees between the stone wall and the hillside.

Eckstrom said that granted, the Town did vote to establish a Gravel Excavation District, but the Town did not vote to restrict a person’s right to seek a variance from the Zoning Board. And as long as everyone has a right to seek a variance, special exception or appeal from administrative decision, the place to come is the Zoning Board of Adjustment. The Board can’t deny that legal right.

Jed Callen, of Baldwin, Callen & Ransom, Concord, NH, stated that he represented, at latest count 84 neighbors to the proposed excavation. On behalf of his clients he first requested that ZBA member Jim Tuttle disqualify himself. He said the reason for that request is that RSA 673:14 defines the conditions under which a ZBA member is disqualified to sit on a permit or variance hearing (a quasi judicial decision). The grounds include, by explicit reference, the “juror standard.” By this criterion, a

Board member may not sit on a variance request hearing if it appears that s/he is not indifferent or neutral. He said his clients believe that Tuttle is not indifferent or neutral because of comments he made at the May 9th ZBA hearing and the May 3rd Planning Board work session indicating his criticism of the passage of what is now section 9B of the Zoning Ordinance. Callen said that because Tuttle has made it a very strong point that passage of this gravel district was a mistake and a poor idea and should not have been enacted, it is reasonable to conclude that Mr. Tuttle, in opposing limiting graveling to a particular district, would not be indifferent to the question of the very first request being made to say… this isn’t essentially the law here and we can grant variances from that limitation and allow gravelling elsewhere. Callen said that Mr. Tuttle’s commitment to a strong position regarding the new district is at least as strong a position as those who were proponents and were formerly sitting on the Board used as a reason to disqualify themselves. He noted that he was making this request at the earliest possible moment and that he is relying on his letter for the record.

Spear asked about 673:14 and what reason Callen had for asking for Tuttle’s disqualification. Spear read 673:14 where it said… may not be requested by persons other than Board members. Callen said it means a vote may not be requested by persons other than Board members. Spear said he didn’t interpret the sentence that way. Callen said that in Fox v. Green 151, NH 600, that very question was raised and the answer is that the concerned abutter loses the opportunity to appeal on the basis of disqualification if s/he fails to raise the question at the earliest possible moment. He said the person in Fox failed to ask for a disqualification. Spear asked if, hypothetically, he had already made up his mind that he was in favor of this project, should he disqualify himself? Callen said yes, because he had not heard all of the testimony yet. He said a Board member needs to be as open minded as a juror or a judge and listen to all of the testimony and the facts before making a decision, and if that’s not possible, or it appears that that is not possible then that Board member should disqualify him or herself.

Eckstrom allowed Attorney Prunier to speak. He said that some of the 84 people on the list that Attorney Callen represents were present at the May 9th hearing. They should have raised the disqualification issue at that time or at least it should have been raised at the beginning of the meeting. He said he’s spent time making presentations to the Board and has gone ahead with a four-member board and should have known in the beginning if there was a problem with one of the members.

Callen said that this is the first public meeting on the current application for variances. The meeting on May 9th was a meeting on a defective application. It didn’t list the key section of the Zoning Ordinance from which a variance is required and as a result, the applicant was sent away and told to reapply for the correct variances. He said this is the first night there has been any public comment on this application. He also said that he faxed his letter to Ms. Eckstrom at the town office earlier in the afternoon. Eckstrom acknowledged that she did receive it by fax from the town office in the afternoon. Other Board members received copies before the hearing began this evening.

Mr. Callen said that he raised the question of Mr. Tuttle’s disqualification at the earliest moment that he felt he could in this meeting. He said he has done his legal duty for his clients to the best of his ability and felt the ball now rests in Mr. Tuttle’s court. Mr. Tuttle said that his opposition to the gravel district is as a member of the Water Commissioners concerned over the recharge area being destroyed for the town wells by this new gravel district that was created. “Since it was created in March representatives of the Planning Board and the Water Commission have agreed that there are some serious concerns about the quality of the water and the fact that this gravel operation is over the recharge area of the town wells. That’s what the opposition was in the newspaper. And some of it was misquoted, both sides were misquoted in the paper. A lot of the facts are yet to come out because people don’t know all the facts about this and we’ve agreed as a combined board that we need to do some more exploration down there, we need to define the wellhead protection area and the recharge area of the wells so that we don’t damage the aquifer that the wells are in. And that’s what the opposition to the gravel district is.”

There was no motion from the Board requesting that Tuttle disqualify himself from the Board.

Attorney Callen continued his presentation stating that the Zahn application is legally deficient in that it requests one use variance, where two and possibly three separate use variances are required and one area variance is required, so on its face it’s inadequate.

• Variance from Section 9B.6.1 Setbacks and Buffers. Callen notes that the applicant fails to identify, in the application, the width of the buffer it proposes in lieu of the 300’ requirement. He said that in order for the Board to be able to analyze whether the buffer is adequate, it would be useful for the applicant to disclose what they are actually proposing. He said that a request for a reduction in a dimension is an area variance – he cites court cases in his letter – and the applicant didn’t even fill out that section of the application. The applicant mentions not being able to meet the setback requirement in two places on the application, but Callen says this falls short of meeting the seven part test of the area variance. He suggested that the first test – no diminution of property values – cannot be met by active gravelling within 50’ or 60’ of these buffers.

Eckstrom said it was past 10:30 and time to stop the hearing.

Spear said that after the Board met with Town Counsel, they were advised to consider the application a use variance with supplemental provisions in the Ordinance.

Eckstrom said that all the material relative to this case is available for inspection in the town office including the application and all the letters that have come in. She explained that originally she thought that applications were not a part of the public record until abutters were noticed. Actually, they are available for inspection as soon as they come in. She said she also thought letters from concerned parties did not get entered into the public record until the hearing, but they are also available for inspection as soon as they arrive. She said she has made copies of all letters that have arrived so far and she read a list of everything relating to the Zahn case that people might want to read or copy.

There was a unanimous vote of the board to continue the meeting at 10:45 p.m.

OTHER BUSINESS

Minutes — May 9, 2006

Faiman thought it should be noted in the minutes that Eckstrom had, in fact, read the request for disqualification prior to the opening of the hearing.

Minutes submitted by Diane Nilsson
Posted June 26, 2006