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June 19, 2006
|Voting Board||Chairperson Neil Faiman; members Joanna Eckstrom, Carol Roberts, Jim Tuttle and Bob Spear; alternate member Eric Fowler.|
Faiman called the meeting to order at 7:32 p.m. and explained that this was a continuation of the hearing of June 13th. He said the first 90 minutes of the meeting would be set aside for the continuation of Case 5/9/06-2. At 9 p.m. the Board will suspend that case and will hear the Griffin and O’Leary cases. If there is time after these cases, the Board may choose to continue with the gravel excavation case later in the evening. He said once again he and Carol Roberts would be stepping down from the Board for the first case and retaining their rights to speak as private citizens.
He said Joanna Eckstrom will be the acting Board chairperson for this case.
Eckstrom introduced Board members Jim Tuttle, Bob Spear and Eric Fowler. She said that most likely the case would not be completed this evening, so a continuation date of Monday, June 26, 2006 at 7:30 p.m. was set for Case # 5/9/06 – 2. She said there are close to three hours worth of letters to be read into the record as of 3 p.m. today, which was the last time she made copies of the latest letters to come in. According to Town Counsel, as long as the letters are made available to the public, which they have been, the Board satisfies the condition that information has been received and considered by the Board. It is each Board member’s obligation to read every item that has been received. Instead of reading every letter into the record, the Board can, by motion, accept the letters that have been received to date.
|Motion||Fowler/Tuttle to accept the communications that have been received as of 3 p.m. June 19, 2006 related to Case 5/9/06 – 2 as received and considered and part of the public record, the list of communications to be updated at each meeting. All in favor.|
Eckstrom passed three packets of these communications out to the audience to peruse during the hearing. She said they would be back in the town office after the hearing for people to read or make copies from if they chose. She said that two letters have come in since 3 p.m., one from Jim Spellman, Carlson GMAC Real Estate, and one from Michael and Karen Demers. She explained that one person wanted to take her letter back but Eckstrom said she couldn’t remove it because once submitted, it was part of the public record, however she could write a retraction if she wanted to. Gerry Wroe asked what the 3 p.m. deadline meant, or what the window was for receiving letters. Fowler clarified that there is no deadline for letters. 3 p.m. today was just the last time that new letters were copied and put into the folders and inventoried.
Case #5/9/06–2 — ZAHN/KENNEDY (continued from June 13)
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.
Jed Callen, of Baldwin, Callen & Ransom, Concord, NH, said he now represents 91 neighbors of the proposed gravel excavation. He did not have an updated list from the June 13th list of 71 clients, but he said that he represents at least 12 who live on Isaac Frye Highway and other roads near enough to the proposed operation to have standing.
He corrected case law that he quoted at the last hearing in reference to who may object to the participation of a board member. Instead of Fox v. Greenland, he instead meant Bayson v. Lebanon. See file.
Attorney Callen said that he stands by the statement he made last week which is that in order to receive a variance from a specific zoning ordinance provision, the applicant has the burden of convincing a majority of board members that the application meets all six or seven criteria, for each provision that he is seeking a variance from. He said it is clear under the law that a single argument is unlikely to meet all criteria for all variances, certainly in this case it does not. For the following arguments he addressed the variance to Section 4.1.
Surrounding Property Values
He said that towns impose a certain order through the creation of different zoning districts so that people living in a neighborhood, for example, can be assured that a factory won’t be built next door to them. In the case of areas in existence before zoning, sometimes there will be a residence next to an auto repair shop and it might make sense to grant a variance to the owner of the residence to have a commercial use on his property if that’s what fits in the neighborhood. If the Kennedy property were surrounded by three other gravel pits, it might make sense to grant a variance to allow another gravel pit there, but it’s not, it’s surrounded by a Girl Scout Camp, a cemetery, a forest and a residential area. He said allowing a gravel pit in this spot will diminish surrounding property values almost by definition. The noise, the dust, the truck traffic caused by the gravel pit is not compatible with residential use.
Attorney Callen referred to Chester Rod and Gun Club v. Town of Chester 2005 N.H. (2004 – 857) and read: The first step in analyzing whether granting a variance would be contrary to the public interest or injurious to the public rights of others is to examine the applicable zoning ordinance. “As the provisions of the ordinance represent a declaration of public interest, any variance would in some measure be contrary thereto.” Thus, to be contrary to the public interest or injurious to the public rights of others, the variance must “unduly and in a marked degree” conflict with the ordinance such that it violates the ordinance’s “basic zoning objectives.” He said the board members must ask and answer the following two questions: Will the activity alter the essential character of the area? If it will do so, a variance must be denied. He maintained that it would for the same reasons stated earlier. The noise, the dust and the truck traffic generated by a gravel operation will certainly alter a quiet residential area. Will granting the variance threaten the health, safety or welfare? He asked if gravel trucks turning left onto 101 from Isaac Frye Highway were a danger or if gravel trucks turning onto Isaac Frye Highway from the Kennedy property were a danger. If so, the variance must be denied. See file.
Use Variance Hardship Test
From Harrington v. Town of Warner 152 N.H. 74: First, Simplex requires a determination of whether the zoning restriction as applied interferes with a landowner’s reasonable use of the property. Next, Simplex requires a determination of 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, the burden cannot arise as a result of the zoning ordinance’s equal burden on all property in the district. Thus the landowner must show that the hardship is a result of specific conditions of the property and not the area in general.
Callen said that there is nothing unique about the Kennedy property. It is residential property surrounded by other residential property. There are gravel operations a couple of miles away, but not in this district. Back to the Harrington argument:
Finally, Simplex requires consideration of the surrounding environment. 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 segregation of land according to uses, the impact on character of the neighborhood is central to the analysis of a use variance.
He asked the board: Is the hardship being proposed by the applicant the result of the unique setting of this property? Is it burdened in a manner distinct from similarly situated properties? Unless the answer is yes, the board can’t grant this variance. Would the variance alter the essential character of the neighborhood? If it would, no variance can be granted. The court is saying… we will give you relief if your land is unfairly, uniquely burdened and disadvantaged and if giving you relief will not affect your neighbors adversely. See file.
Substantial Justice and Spirit of the Ordinance
From Bacon v. Town of Enfield 150 N.H. 468 wherein a resident illegally constructed a 4’ x 5.5’ shed in a 55’ setback of Crystal Lake. The ZBA found that the variance violated the spirit of the ordinance. In its review of the ZBA decision, the trial court stated: there was a “clear relationship between the purposes of this ordinance and the 55’ setback restriction.” As such the court found that granting the variance would have “some effect on the public rights of others in that it increases congestion along the shoreline.” Consequently, the court agreed with the ZBA that the variance “was not within the spirit of the ordinance.” In this case, the fifty foot setback restriction addresses not just the potential peril of construction on a single lot, but also the threat posed by overdevelopment in general. While a single addition to house a propane boiler might not greatly affect the shoreline congestion or the overall value of the lake as a natural resource, the cumulative impact of many such projects might well be significant. For this reason, uses that contribute to shoreline congestion and overdevelopment could be inconsistent with the spirit of the ordinance. See file.
Callen asked if that tiny shed, individually and cumulatively increasing crowding, is inconsistent with the spirit of that ordinance which was clear about not wanting congestion, how is allowing a 13.5 acre gravel pit where this town has voted not to allow gravel pits not inconsistent with the spirit of this town’s ordinance?
He listed the other variances that the applicant has applied for:
9B.6.2 The section that prohibits transportation of earth materials from gravel pits on any roads
except the roads listed in that section. He said that the applicant did not fill out the application for the seven part use variance test needed for this variance. The questions and answers for this variance are very different than for the location of the gravel operation.
9B.2 He said his arguments for 4.1 would apply here as well.
6.1 Permitted Uses in Residential/Agricultural District. Arguments for 4.1 apply here also.
He said that at the last meeting Aries Engineering provided a US Geological Survey map of the area that shows that part of the town’s protected aquifer is in the eastern part of the lot in question. If there weren’t already so many reasons that the application doesn’t qualify for a variance, that is a factor that you ought to consider.
Neil Faiman, 24 Putnam Hill Road, said he lives about a mile north of the proposed excavation site. He said that those who live in the area know that Frye Highway is a beautiful, scenic, historic road. It’s also a narrow, steep, twisting road, and perhaps most significantly, the intersection of Isaac Frye Highway with Route 101 is atrocious. You have heavy traffic coming along 101, typically in both directions, the intersection is straddled by the two entrances to Brookside gas station, one on each side of the intersection, with traffic turning in and out of the gas station and it has unbelievably bad sight lines to the west. He said he couldn’t believe that running some number of gravel trucks up and down that road almost every day for some number of years can possibly be consistent with the public interest.
He says that the ordinance actually writes out its spirit in this particular case. Section 9B.1 The purpose of the gravel excavation district says quite explicitly what the spirit of the ordinance is here. It says the town has to allow gravel excavation, but gravel excavations are generally undesirable neighbors, so we’ll compromise. We’ll find an area of town that is sparsely populated, has lots of gravel, has been used for gravel excavation in the past, and we will set that area of town aside for gravel excavation and we’ll say nowhere else. He said that area is a large area, it is known to contain large deposits of easily extractable gravel, it permits excavation without significant impact to the public welfare because it’s in a rural, sparsely populated part of the town with convenient access to a State highway. The topography of the area, substantial buffer requirements, and the limitation on maximum open excavation areas minimize the detrimental effect of excavations on the visual character. The neighborhood attendance alone at the hearings on this application makes it clear that this lot is not in the sort of sparsely populated area that was deliberately chosen for the Gravel Excavation District.
In addressing hardship, Faiman said that he didn’t see anything unique about this property. The property has gravel and the applicants want to dig it. He said many similar lots, outside the Gravel Excavation District, in Wilton have gravel deposits, if he had gravel on his lot, he might want to dig it too, but it’s just not allowed. The applicants claim that “the fact of the hill on the property would have to be altered for any residential use,” but the sort of alteration that would be necessary to place two, or even three additional houses on the lot clearly bears no relationship to the proposed 8 years of the excavation and essentially removing a hill from the property. The applicants argue that they have a unique hardship because they are very close to the gravel district. In other words, if only the line had been drawn a third of a mile to the northeast the lot would have been in the district, so it’s unreasonable to exclude them from the benefits of that district. He said in this case the line was not randomly or arbitrarily drawn, it was very carefully thought out. He concluded that, at least for the issues of public interest, spirit of the ordinance and hardship, he believes this application does not meet the requirements and should be denied.
Wil Sullivan said that he, his brothers, their spouses and kids own probably the biggest chunk of Wilton Center there is and it is full of gravel. He said if he could take the gravel out of there he could retire tomorrow, but he didn’t want to rape the land and was happy when this ordinance passed. He said his understanding is that loaded gravel trucks will be traveling down Isaac Frye Highway. He said he has been driving down Isaac Frye Highway from the time he was 16 and he is now 57. He handed out part of a subdivision plan done by T.F. Moran in 2002 (see file) that shows the oblique angle that Isaac Frye Highway makes as it comes down onto 101. He said if you stay to the right of the center line on Isaac Frye when you get to the bottom, you really can’t see what’s coming from the west on 101, you really need to cross the center line and block traffic that might be entering IFH to see west on 101.
He then handed out a document titled policy for the Permitting of Driveways and other Accesses to the State Highway System, dated march 10, 2000, which shows that you would need a 90º cut if you were building a road today for the trucks to enter 101 from. It also shows the turning radius’ of various vehicles. See file. He said because the ordinance calls for gravel trucks to access Route 31, he feels it would be a dereliction of their duties if the Zoning Board approved the application without proof that the materials he gave them, and his 40 years of driving experience on that road, are wrong. But he assured them they’re not. He said the best thing to do would be to test it out by trying it yourself in a big truck
William Condra, Wilton resident, said that Mr. Sullivan and the attorney for his neighbors addressed the difficulties of the approach to and from the intersection at Route 101 and IFH and the Mobil Station across the street. He said he would like to address time periods through that intersection. He did an unofficial traffic survey at that intersection today between 6:45 and 7 a.m. He said 75 vehicles passed westbound on 101, 103 passed eastbound, 11 entered IFH from 101, 4 exited IFH onto 101 and 22 entered and exited the gas station. The total is 203 motor vehicles during that 15 minute period traveling through that intersection. He said he spends a lot of time on the road in Wilton, clocking 20 – 25 miles a day, so he’s in and out of that intersection at various times of the day. He’s observed it from 6:30 – 8:30 a.m.; from 11 a.m. – 1 p.m. and from 3 p.m. – 6 p.m. and said that the traffic pattern he observed this morning is consistent with what he sees Monday through Friday at the other time periods. He said believes we would be remiss in our duty to the public if we allow the truck traffic that is suggested by this applicant to be injected into that traffic flow.
Carol Roberts, Wilton resident, said that the Zoning Ordinance was amended by a town wide voting process when the gravel overlay district was adopted in March, 2006. This vote followed several months of deliberations on the part of the Planning Board as well as the required number of legally noticed hearings prior to placing the change on the ballot. Everyone had a chance to hear about this information, to comment on it or to alter it. She said she sat in on a couple of the hearings, Mr. Sullivan offered a couple of changes that needed to be made to make the language more clear. Ultimately the people of Wilton voted to approve the change in the ordinance which addressed the need for the gravel district. This gravel overlay district does prohibit gravel operations such as the one proposed by Mr. Zahn and Mr. Kennedy. This operation is commercial in scope and duration and it’s on a relatively small piece of property. She said that the applicant must demonstrate hardship, whether for a use or area variance, and she believes that Board members cannot, in all good conscience, believe that hardship here is anything but self-created.
Chris Owen, 634 Isaac Frye Highway, said he lives half a mile north of the lot in question. He lives 2.5 miles from the gravel operation on Route 31 N. and he can hear that with his windows closed so he said he has good reason to believe that a half mile away a gravel operation is going to substantially interfere with my right to the enjoyment of my property. He added that he is a minister, and standard practice in his profession would be to maintain a library and a study in his residence and indeed he does that and he works at home, which is standard practice for a minister of a small church. So not only is his right to the enjoyment of his property in jeopardy by this proposed use, but his right to pursue his profession is also put in jeopardy by this proposed use, he said. The applicant states in the application that the variance would not injure the public or private rights of others, he says this statement is false. So this is another reason why this application fails to meet the conditions it needs to meet.
David Alley, 503 Isaac Frye Highway, said he is probably the closest taxpaying abutter there is to this proposal. He said his driveway runs right up along the cemetery. He bought the 12 acres because he has 5 horses and he can easily access the trails in Wilton Center from Isaac Frye and because of the peace and serenity in that area. He said he never thought in his wildest dreams there would ever be a gravel pit there. He feels that it would impinge upon the safety of his being able to access those trails in Wilton Center when he’s riding. The volume of proposed truck traffic is unacceptable and it’s just not safe, he said.
Dennis Orsi, 605 Isaac Frye Highway, listed a number of items in 9B, the Gravel Extraction District. He said to approve this request, the Board would have to ignore the ordinance. He felt if you can overcome, by hardship, the overlay district, then there’s no point in having the district. He felt that for the Board to grant the variance it would be placing itself above the law, which he said is contrary to the current statutes in NH which authorize these type of boards to act and the court precedent which enforces the action. But more important than that, he continued, to grant this request and ignore the vote of the citizens would just be plain wrong.
Eckstrom read from Planning Board Public Hearing minutes of 2/1/06 referring to the Gravel Excavation District: “This is a first draft at the ordinance because the Board felt that the existing ordinance was vague. Other proposed ordinances can be made in the future to expand upon this ordinance if it is adopted, which is not an uncommon practice. Other landowners can file for a special exception or a variance.” She wanted to make the point that the applicants have the right to seek the variance they are seeking and the neighbors have the right to oppose it, and it’s the job of the Zoning Board to listen to all of the testimony before making a decision.
Ann Carlsmith, Wilton resident, said that she has landscaping experience and knows that there are very sophisticated Computer Aided Design (CAD) systems now that make it possible to build houses on difficult slopes without doing as much cutting and filling as used to be needed. It’s a way to protect the slopes somewhat and still be able to build houses.
Bill Carnduff said he would like to thank the Board for the consideration given to all the parties to the hearing and to reemphasize that the neighbors who are in opposition to the variance request are totally supportive of Mr. Zahn’s and Mr. Kennedy’s right to request the variance. That doesn’t mean that we think it should be granted, but we certainly recognize that they have every constitutional right to make the request.
Eckstrom said it was time to stop the hearing. She said that rebuttal by the applicant will begin on Monday and noted that traffic and noise were the two issues raised more than any others by the opposing parties and she said it would be prudent for the applicant to bring in information to support that their proposal will not cause the traffic and noise problems that the opponents claim. The applicant was asked if he wanted to wait around in case there was time left after the next two cases. Attorney Prunier said no.
|Motion||Tuttle/Fowler to continue the hearing to Monday, June 26, 2006 at 7:30 p.m. All in favor.|
Faiman and Roberts took their seats at the Board table and Faiman called the meeting back to order after a short break. He introduced the five regular Board members that would be voting on the next two cases.
Case #6/13/06–1 — O’LEARY
Margaret O’Leary has applied for a variance to Sections 5.1(d) and 6.2.1 of the Wilton Zoning Ordinance, to permit the use of an existing cottage on Lot H – 37, 540 Abbot Hill Road, as a second dwelling on the lot.
All Board members except Fowler drove by the property. Meg O’Leary explained that she has owned the property for 10 years. She said the property is unusual because it has a cape and a smaller cape ( a cottage) on the same lot and was apparently built that way 30 years ago. She said she was told that it was built to be an antique store. When she bought it, it was being used as an office for an electrician and a carpenter. She has made some improvements and used it as guest housing, an art studio and a woodworking shop. She would like to use the building for something, and since the area is residential, she thought using it for a residence would be the most attractive. She thought that if she could fix up the cottage by insulating it, replacing the windows, adding closets, a kitchen etc., perhaps she could rent it and justify the upkeep. She has one well and one septic system that services both houses.
There was discussion about the septic system. Faiman said that even if the Zoning Board were to approve this cottage as a separate dwelling, that wouldn’t waive the sanitation standards of the State of NH, and it’s likely that the existing system would not get certified for two dwellings. Tuttle added that she would have to take the total number of bedrooms involved and have a new design that is 75’ away from existing well.
O’Leary’s lot is 3.94 acres and the houses are 40’ to 50’ apart. Faiman noted that if she did have 4 acres, she couldn’t subdivide because she wouldn’t have 35’ setbacks between the houses. O’Leary said she didn’t want to subdivide the lot.
Eckstrom cited several cases that had requested variances to 5.1(d) and were not granted in the past by the ZBA, and were similar to this case: Richard Kahn had two houses on one lot and chose to apply for a lot line adjustment to solve his problem. Linda Vanetti had a detached garage and wanted to put a rental unit in the upstairs. It was denied. William McKeown also had a detached garage that he wanted to use as a rental unit that was denied. Ann Roy had two houses, the second, smaller house was treated as an extension of the main house and a member of the family was allowed to live in it. There was a restriction that it could not be rented out to someone that was not a member of the family. Eckstrom said she would be more inclined to consider a variance for setback reductions in relation to a lot line adjustment.
Faiman said he didn’t know if he would be in favor of that or not. But as to the application before the Board, he didn’t see a hardship. He said there’s no indication that the second structure was built as a residence, even if it was, it wouldn’t be grandfathered because it appears to be post-zoning. He said the only hardship is that somebody built a building which is now not as useful as it could be.
Board members looked at the tax map and observed that the lot is triangular in shape and the frontage on Abbot Hill Road is 563’.
|Motion||Eckstrom/Tuttle to deny the requested variances on the grounds that the proposal is inconsistent with the spirit of the Ordinance which strictly prohibits more than one dwelling unit on single lot and because the applicant failed to demonstrate any hardship - the applicant has use of the main building as a residence and the second building for accessory uses. All in favor.|
Case #6/13/06–2 — GRIFFIN
Richard Griffin has applied for a special exception under Sections 4.4 and 5.3.7 of the Wilton Zoning Ordinance, to permit the conversion of the existing house on Lot J – 33, 28 Park Street, for use as a two-family residence.
Mr. Griffin said that he would like to convert his house back to a two-family dwelling, it was a two-family when he purchased it, plumbed, wired, separate utilities, but he was unable to get a construction loan for rehabilitation if it remained a two-family, so he converted it to a single-family following the purchase. He needs relief from 5.2.1 under Lot Requirements as he has .9 acres where 0.5 acres per dwelling unit is required. He meets the frontage and setback requirements of 5.2. He said there would be no change in the footprint of the house nor the impermeable area of the lot.
He read through the requirements of Section 4.4 and explained how he met them all. See file. He read through the requirements of Section 5.3.7 and explained how he met all of these. See file.
|Motion||Tuttle/Spear to grant the application for a special exception as presented. All in favor.|
The secretary informed the Chairperson that earlier that evening, as she was preparing for the meeting, she found two letters meant for the Zavgren/Mooney hearing of June 13th in an “original letters” folder for the Zahn/Kennedy case that Eckstrom had given her on June 13th. One letter was from Jane B. Wisan and the other was from a Ms. Conaway. Both arrived in June before the hearing on the 13th and both letters were in favor of the application that was denied on the 13th.
After reading the letters out loud, Faiman polled the Board members who voted in favor of the denial to ask whether the availability of the letters might have affected their decision. The four members who voted to deny stated that these letters did not address any of the reasons that they denied the application and thus would not have had any effect on their decision had they been read on June 13th.
Faiman said that he would contact Town Counsel to find out if there was any mandatory action the Board must take. He said he would contact Mr. Zavgren and inform him about the two letters.
Faiman said that he would be out of town from June 24th to July 4th. The secretary will write the public and abutter notices for any new cases that come in by the June 27th deadline. Eckstrom wanted to know if it was OK to approve minutes from June 13th and June 19th on June 26th. Faiman said as long as there is a quorum of people who were voting members at those hearings, he couldn’t think of a reason why not.
|Motion||Spear/Tuttle to adjourn the meeting. All in favor. The meeting adjourned at 10:25 p.m.|
Minutes submitted by Diane Nilsson
Posted July 3, 2006