Town of Wilton, NH

Zoning Board Minutes

September 12, 2006

Voting BoardChairperson Neil Faiman; members Joanna Eckstrom, Bob Spear & Jim Tuttle; alternate members Andy Hoar and John Jowders.
  • Barbara A. Pinet and Leslie J. Thigpen – variance
  • Nancy Millward/Stephen Buonamano – variance
  • Matthew R. Harwood – variances

Faiman called the meeting to order at 7:30 p.m.

Minutes — August 8, 2006

MotionJowders/Tuttle to approve 8/8/06 minutes as written. Four in favor. Eckstrom and Spears abstained.

Faiman introduced the Pinet/Thigpen case. Board member Jim Tuttle again disqualified himself and took a seat in the audience. Faiman introduced the sitting board members: Joanna Eckstrom, Andy Hoar, John Jowders, Jim Tuttle, and himself. He said that the applicants, the applicants’ engineer, Alec MacMartin, Jim Tuttle, and all board members except for Bob Spear attended a site visit on September 5th.

Case #8/8/06–1 — Pinet/Thigpen (continued)

Barbara A. Pinet and Leslie J. Thigpen have applied for a variance to section 14.3.3 of the Wilton Zoning Ordinance, to permit the construction of a house on Lot A – 64. Burton Highway, which would be closer to Mill Brook than is permitted by the Ordinance.

Les Thigpen presented a new proposed house location plan based on suggestions from the zoning board at the site walk. The new site location had the closest side of the foundation to the brook, or the N. side approx. 150’ from the brook. He also provided a topographical map of the entire lot. He provided two excavation estimates for the difference in cost in locating the house outside the 200’ buffer vs. the 150’ location. One estimate was from Grant Jones Services, a Presby Septic approved contractor, for $ 42,000. The other estimate was from Sean Johnson, who would only do site work not involving the septic system, for $8,850. The septic system will be installed outside the 200’ buffer regardless of where the house is built.

Mr. Thigpen proposed a 225’ wide area around the house as the area to be disturbed in addition to the house and driveway. He stated that they are willing to abide by the Shoreline Protection Act to protect the brook and the water supply. He said they would erect a silt fence for erosion control during construction, and once the slope stabilizes they would let natural vegetation take over. Permanent erosion control would involve culverts and catch basins designed by their engineer.

Faiman summarized a letter that was received from Corinne Blagbrough, 293 Burton Highway, in which she states that Mill Brook runs through her property and she has easement rights to use the water from the pond. She states that Mill Brook is classified as “Waters of the United States” and is governed by the Clean Water Act. She attached the Regulations of the State Board of Health for the Protection of the Purity of the Water of Mill Brook. She also stated that Lot A – 64 has sufficient acreage for building purposes so there is no need for a variance due to hardship for placement of a house in the setback area. She said how this project is being accessed from Burton Highway also causes concern, such as with snowplowing/snow dumping and lot frontage. For all of the above reasons, she did not feel a variance should be granted.

Lynn Draper, Chair of the Wilton Conservation Commission, presented the board with a letter with some requests if the board decides to grant the variance:

Alec MacMartin said he was concerned that there was no permanent erosion control plan to review at this time and the ZBA has no review process. He wanted to know how this would be dealt with. He also suggested that the house location stay below the 310 topo line on the site map. He said there will be a disturbed area of at least 80’ including the decks and with room for the equipment to move around. He wanted to know how the erosion of that area would be dealt with both during construction and over time, because there is no plan. He suggested that using the logging road that is already in place would be less disruptive to the land and a better choice for the driveway, if possible. He said if the board is inclined to approve the request he urged the board to look closely at the recommendations of the Cons. Com. because they have tried to strike a balance between use of the land and protection of the water resource, which is the purpose of the ordinance. He added that no deicing chemicals should be allowed on the driveway since it is so close to a wetland.

Chris Guida, engineer for Ms. Pinet and Mr. Thigpen stated that he believes that the driveway may exceed 15% in some spots, which means that they will need to come before the Planning Board.

Mr. MacMartin suggested that if the board does approve the application, it incorporate the specific sections of the Shoreline Protection Act that the applicant suggested. He listed the sections as RSA 483-B:9V(a)(1) and V(a)(2)(A).

Barbara Pinet, responding to the letter from Ms. Blagbrough, said she didn’t know anything about the pond that the letter refers to. She said with regard to this case setting a precedent, that the ZBA granted a variance in 1997 for stables to be built 100’ from the brook just down the road from their property.

Faiman said that what the board needs to decide ultimately is whether to grant this area variance, which consists of the hardship test: Is it excessively difficult for the applicant to comply with the ordinance? Public Interest and Spirit of the Ordinance: Would granting the variance be consistent with the things that the ordinance is trying to accomplish? He said if the ordinance is placing an unreasonable burden on the applicant, and the board can weaken the restrictions of the ordinance without damaging what the ordinance is trying to accomplish, then it’s probably appropriate to grant the variance. But if the ordinance isn’t putting an excessive burden on the applicant in the first place, or if it is putting a burden on the applicant, but that burden is necessary to accomplish what the ordinance is trying to achieve, in terms of protecting the public water, etc., the board would presumably not be able to grant the variance.

Faiman said, if the board does decide it is possible to grant the variance but that doing so requires imposing a collection of restrictions, then what is the procedure for doing so. He suggested it would be possible to make a decision that would say… the variance will be granted once the following information is provided, but it won’t become final until that information is available.

MotionEckstrom/Jowders to close the public hearing in order to deliberate. All in favor. The public hearing was closed at 8:53 p.m.

Eckstrom felt that the applicants new chosen location for the house site was a good one. She was concerned about the size of the 225’ envelope and would want to see restrictions about what could and could not be done within it.

Faiman said he was persuaded that it would be a hardship for the applicants to locate the house totally outside the 200’ buffer, but would like to hear more about public interest and spirit of the ordinance.

Hoar said he would feel more comfortable if the house were located more in line with what the Cons. Com. recommended, 175’ – 180’ away. He drew a suggested location on the map.

MotionEckstrom/Hoar to reopen hearing in order to ask the applicant a question. All in favor. The hearing was reopened at 9:00 p.m.

Faiman asked Mr. Thigpen if he would like to describe the decks. Mr. Thigpen said the plans call for 10’ decks on each side of the 40’ octagonal house, to be supported by sonotubes. Mr. MacMartin said that the 80’ of disturbed area that he spoke of referred to 40’ for the house 10’ for the decks and the rest for machinery to move about.

MotionEckstrom/Spear to re-close hearing. All in favor. The hearing was closed at 9:05 p.m.

Spear said he didn’t believe it was in the public interest to vary the 200’ distance required by the ordinance for the watershed protection at all. He said the 200’ buffer was chosen for a reason and should be adhered to.

Jowders said that he sees a hardship and if the board puts some restrictions on the use, all parties can be served.

Faiman was not convinced that the difference between 200’ and 180’ is such as to make the difference between protected and unprotected, particularly if the board restricts activities between the house and the brook.

Board members agreed on an intention to grant a variance such that the foundation of the house is to be no closer than 175’ from Mill Brook.

MotionEckstrom/Spear to reopen the public hearing. All in favor. The hearing reopened at 9:22 p.m.

There was a discussion about wetlands. Jim Tuttle said that where the easement and the corner of the stone wall come together there are black & pink wetlands flags. Spencer Brookes said that it is important that the wetlands be mapped on the property. Mr. Guida said he hadn’t seen anything that has met the definition of jurisdictional wetlands.

There was discussion of the restrictions that will accompany the variance and it was decided that after the variance is finally granted, the Notice of Decision will be recorded with the Registry of Deeds.

The following are the restrictions that the board members came up with:

The Board intends to issue a final approval for the variance if it is satisfied with the presented plans, which would then be incorporated into the terms of the variance.

MotionEckstrom/Spear to continue the case. All in favor.

Case #9/12/06–1 — Millward/Buonamano

Nancy A. Millward (owner) and Stephen A. Buonamano (applicant) have applied for a variance to section 6.2.5 of the Wilton Zoning Ordinance, to permit the installation of a septic system disposal field in the setback on Lot B-131, 956 Isaac Frye Highway.

MotionTuttle/Spear to waive the rule not to hear a new case after 10 p.m. and to waive the rule that the meeting must end at 10:30 p.m. All in favor.

Faiman introduced the board members sitting on this case: Joanna Eckstrom, John Jowders, Bob Spear, Jim Tuttle, and himself.

Mr. Buonamano explained that he is in the process of purchasing the home on IFH and had the septic system inspected by Kent Kleen Septic Service. He was told that it was a drywell, it was in failure, and he would need to install a new system. His lot is .33 acres. He presented a plan showing the “Enviro-Septic” leach bed system designed by David O’Hara & Assoc. in the northeast corner of the property. The plan also showed the failed drywell on the east side of the property, an existing drilled well in the southeast corner of the property, and a dug well on the west side of the property.

Mr. Buonamano read his variance criteria. He stated that he is applying for an FHA loan and can’t qualify without a working septic system. Because of the dimensions of his lot and the locations of the house, driveway, the wells and the drywell, the setback is the only viable location for the leach bed.

Abutter Robin Maloney, 962 Isaac Frye Highway, said that she walked the property with permission from the property owner. She said she had a copy of the septic system plans with her and she took measurements from the house to the stakes in the ground and from the corner of the property to the stakes, and she found that the system is actually much closer to the house than shown on the plan and also closer to the corner of the property. She also said that the area of the plan that says “seasonal ponding” is actually quite extreme and flows in the direction of the proposed septic system and her driveway. She said that the location of the proposed septic system is the lowest of the property.

Abutter Terrianne Dold said that he was concerned about the digging affecting his dug well.

Faiman asked Ms. Maloney if she thought the proposed septic system would pose a greater hazard or problem for her property than the existing drywell system. She answered that the drywell system had not caused any problems. He then asked her if she had any reason to believe that the septic system would be worse than the drywell system. She said that she was concerned because it is so close to her property and it points right down the slope of the property. She asked if the board would consider walking the property.

Mr. Buonamano added that during the house inspection he noticed that the washing machine grey water was not hooked up to the drywell, but was being fed into a sump pump and out into the yard somewhere. Spencer Brookes said that pumping grey water onto the land is not a good thing to do environmentally.

Faiman summarized the issues so far. He said the applicant is trying to purchase a property with a failed and not conforming septic system. The existing system would not be permitted for use in any case. Furthermore it’s not possible to obtain a mortgage on the property with that system. The applicant has a plan by a certified septic designer for a new septic system. Due to the conditions, shape and size of the property it’s necessary to locate the system in the setback, closer to the property line than the ordinance would otherwise require. The applicant contends that granting this variance would be better for his property and also for everyone in the area because it is a better designed, non-failed septic system. Neighbors have voiced their concern that the proposed system is too close to their property, that there is a lot of water in the area and on the property and are concerned that this would lead to additional runoff or possible contamination to their property from the new septic system.

MotionEckstrom/Tuttle to close the public hearing in order to deliberate. All in favor. The public hearing was closed at 10:30 p.m.

Board members felt that since a licensed engineer had designed the system, and due to the constraints of the lot, there was no choice but to grant the variance so that the applicant can live in the house.

MotionTuttle/Jowders to grant the variance as requested. All in favor.
MotionTuttle/Eckstrom to adopt the reasons as submitted by the applicant. All in favor.

Case #9/12/06–2 — Harwood

Matthew R. Harwood has applied for a variance to sections 5.2.1 and 5.2.2 of the Wilton Zoning Ordinance, to permit the subdivision of Lot L-28, 235 Gibbons Highway, into two lots, one of which would have less area and frontage than required by the ordinance.

Faiman introduced the board members sitting on this case: Joanna Eckstrom, Andy Hoar, Bob Spear, Jim Tuttle, and himself.

Dawn Tuomala represented the applicant and explained that the applicant would like to subdivide a 1.96 acre property into two parcels. there is a total of 186’ of frontage on Route 101. Because of the location of the house on one of the proposed lots, one lot will have 111’ of frontage while the other one has 75’. Ms. Tuomala was of the understanding that since part of the parcels were in the Aquifer Protection District, she needed double the lot sizes in order to do what she wanted, but Faiman pointed out that if she had access to town water and sewer, that rule did not apply. So that eliminated the need for a variance to section 5.2.1 lot size. All that appeared to remain was 5.2.2 frontage.

Abutter David Hoagland said that the lot that the applicant wants to build on is probably 80% organic. He said that the previous owner, George Fox used to fill the land with stumps for years. So the land really isn’t suitable for building on because it’s organic.

A question arose as to the grandfathered status of the house (being able to be a two-family) if the property that it sits on gets subdivided. The board felt it needed more time to ponder this.

MotionSpear/Eckstrom to continue the case to the October meeting. All in favor.
MotionSpear/Tuttle to adjourn. All in favor. The meeting adjourned at 11:05 p.m.

Submitted by Diane Nilsson

Posted September 19, 2006