Town of Wilton, NH

Zoning Board Minutes

January 9, 2007

Voting BoardChairperson Neil Faiman; members Joanna Eckstrom, Carol Roberts, Bob Spear & Jim Tuttle; alternate members Andy Hoar & John Jowders.
  • Richard and Cynthia Keyes – appeal of administrative decision
  • Ronald and Karen McKinstry – appeal of administrative decision
  • The T. Arthur Babineau Irre Trust and Marie Sirois – special exception and
  • variance.

Faiman called the meeting to order at 7:30 p.m. and introduced the board members.

Minutes — December 12, 2006

MotionEckstrom/Tuttle to accept 12/12/06 minutes as written. Six were in favor; Spear abstained because he did not attend the meeting.

Case #1/9/07–1 — Keyes

Richard and Cynthia Keyes have appealed the decision of the Wilton Building Inspector to issue a building permit to Kenneth and Suzanne Beers for the construction of an addition to the house on Lot C-23-2, 6 Mountain Meadow Trail.

Case #1/9/07–2 — McKinstry

Ronald and Karen McKinstry have appealed the decision of the Wilton Building Inspector to issue a building permit to Kenneth and Suzanne Beers for the construction of an addition to the house on Lot C-23-2, 6 Mountain Meadow Trail.

Faiman explained that since the two appeals address the same building permit and are similar in content, the board will hear them as a single hearing. He said that all parties to the case will be allowed to speak and the board will come to a single decision, either to uphold the granting of the building permit or to reverse the granting of the building permit. He said that the five regular board members will vote on the case. He then explained the rules for hearing and presenting a case.

Richard Keyes presented a packet of information which included a tax map, the Beers’ tax card, the Beers’ building permit application, 2 DES septic approvals for the Beers property, and various letters from attorneys. He also presented Beers addition plans revised 11/3/06. He stated that Mr. Beers is planning to build an apartment, thus creating a duplex on property where a duplex would be illegal. He stated that Mr. Beers may have submitted plans to the Building Inspector showing only an addition to his home, but Mr. Beers plans to build an apartment nevertheless.

Cynthia Keyes said that Mr. Beers came to them and the McKinstrys and told them that he was planning to build a duplex that he could eventually rent out for added income. She said that when their attorney and the McKinstry’s attorney and the building inspector told him that he wasn’t allowed to do that, Mr. Beers simply resubmitted the plans and called it an addition to a single family home. Mr. Keyes pointed out the two septic approvals: one for a 4 bedroom home and 1 bedroom in-law apt., dated 11/6/06; and one for a 5 bedroom dwelling, dated 11/16/06. Mr. Keyes added that there is a separate driveway going to the proposed garage, and all Mr. Beers would have to do to make the addition into a rental would be to seal off the one door to the kitchen of the main house.

Eckstrom said that a large house and two garages don’t necessarily mean that someone is building a duplex.

Mr. Beers asked where the Keyes’ got the plans that they presented. Mrs. Keyes answered that they got them from Roger Clapp, the manager of the subdivision and the covenants that go with it.

Building Inspector, William Condra, said that the building file for Lot C-23-2, with the plan that was submitted with the application, was on the zoning board table and might be helpful to view.

Mr. Keyes ended his presentation by saying that he feels that Mr. Beers is trying to bypass the Wilton Zoning Ordinance by building one thing now and planning something else in the future.

Karen McKinstry said that she and her husband had a conversation with Mr. Beers on October 21 wherein he told them that he was going to begin logging in order to build an apt. for his father-in-law. When Mrs. McKinstry told him that two-family dwellings were not allowed in their subdivision, Mr. Beers responded, “Don’t worry, you can do anything you want in Wilton.” She said in addition to the concerns brought forward by the Keyes’, she also was concerned about wetlands that might be disturbed by the addition or the new septic system. She said logging and stumping have already occurred and when she spoke with DES representatives, they suggested that the wetlands should be mapped before construction begins.

Ken Beers provided copies of plans that were submitted and approved by the Building Inspector, dated 11/12/06, but he was not willing to allow the ZBA to keep a copy for its files. Therefore Faiman, feeling that it was not appropriate for the Board to consider plans in a hearing that interested parties could not reference in the files, asked board members to return the plans to Mr. Beers. Board members did see Mr. Beers’ plan that was approved by the Building Inspector in the file for Lot C-23-2. The plan is available for inspection in that file in the Building Inspector’s office.

Mr. Beers said that originally he was planning to build a duplex before his mother-in law died. The approved plan has reduced the footprint by 6’, took a dormer off the back, took gables off the front and removed the medicine treatment area compared with the previous plan. He also said he has no plans to finish the attic and noted that the bathroom was removed from the new plans. The current plan calls for a handicapped bedroom and bathroom, a sitting room, a hallway, a garage, and a 12 x 12 screened porch. He said the addition will share all utilities except there will be a separate furnace.

He said the finished sq. ft. on the plan is 832.

Asked the size of the garage, Mr. Beers said it would be 24 x 24. He noted that his parents, who are also handicapped, will also be using the garage to gain entrance to the home. He was asked if he could use the space over the garage. He said he could but for storage only.

Mrs. Keyes asked where the stairs go. Mr. Beers said one set goes down to the basement the other to the attic which will be used for storage. He said because the attic no longer has the dormer and gables, there is not the height to do anything but store things there.

Mrs. McKinstry asked if there were any windows on the second floor. Mr. Beers answered that there are windows on the end facing out toward the street.

Mr. Beers provided documents from Roger D. Clapp and C. Wilson Sullivan showing that his plans had been accepted by Roger Clapp and a Certificate of Approval recorded in the Hillsborough County Registry of Deeds.

Building Inspector Condra was asked what type of interior work requires a building permit. He answered that the only type involves work that disturbs a load bearing wall. He was also asked why Mr. Beers is claiming he is building 832 sq. ft. of living space but he had to pay $.15 on 3264 sq. ft. Mr. Condra said that the Town of Wilton building permit fee structure is such that an applicant is charged $.15 for every sq. ft. built – that’s everything, basements, porches, garages, attics – in addition to living space, which is defined as rooms that are able to be heated to 68º 5’ off the floor.

Mrs. McKinstry asked if heat will be provided to the attic. Mr. Beers said it is not envisioned at this time.

Mr. Keyes stated that he is concerned that somewhere down the line Mr. Beers will want to turn the addition into an apartment and they don’t want to live across the street from a duplex.

Mrs. McKinstry wished to add a letter addressed to her and her husband from C. Wilson Sullivan, dated 12/18//06. See file.

Faiman summarized the case: There is a proposal to build an addition, which the person proposing to build the addition characterizes as living space for one additional person in an existing home. The neighbors, the appellants in this case, believe constitutes a de facto potential additional dwelling unit in the existing house, thus creating either a duplex if you look at it from one point of view, or a building which could easily be turned into a duplex under cover of night in the future, from another point of view. The question before the board is, is the addition being proposed in fact permitted? Or does it fall within the non-permitted uses? In particular does it constitute a two-dwelling unit building, which would be prohibited, or is it simply a single family dwelling, which is permitted?

MotionEckstrom/Spear to close the public hearing in order for the board to deliberate. All in favor. 8:45 p.m.
MotionSpear/Roberts to reopen the public hearing in order to ask the Building Inspector a question. All in favor. 8:50 p.m.

Faiman asked Mr. Condra if a building permit would be required if sometime in the future Mr. Beers decided to add a kitchen to the addition. Mr. Condra answered yes, because he would be creating a second dwelling which is taxed differently and so is treated differently than other interior renovations.

MotionEckstrom/Tuttle to re-close the hearing. All in favor. 8:53 p.m.

Faiman said that the question to him is, is he building something which is not permitted by the zoning ordinance i.e. is he creating a two-family dwelling. He felt that he was not, that he was simply adding an addition for someone in his family to live in the same house, sharing the cooking facilities and would have his own bathroom.

Spear felt confident that safeguards such as the needed building permit and the letter from Roger

Clapp would prevent Mr. Beers from turning the addition into an apartment at a later date.

Faiman said that the board has consistently taken the view that the fact that someone might do something illegal in the future is no reason to prohibit them from doing something legal today. He then read the definitions for Duplex and Dwelling Unit. He added that If Mr. Beers should apply for a variance in the future, it would certainly be denied, as it is a self-created hardship.

Roberts raised the issue of the Beers plans not being available in the zoning board files. Most board members felt comfortable that they could be accessed through the Building Inspector, but Roberts wanted to ask Mr. Beers again if he would provide a copy to the ZBA. She agreed to wait until after the vote to make the motion.

MotionEckstrom/Spear To uphold the Building Inspector’s decision to issue a building permit to Kenneth and Suzanne Beers for the construction of an addition to a single-family home, because the board found that the proposed addition does not constitute a separate- dwelling unit. Four were in favor and Roberts voted no.
MotionRoberts/Faiman To ask Mr. Beers if he would consider giving one copy of his house plans for the ZBA files. Roberts & Faiman voted yes; Eckstrom & Tuttle voted no; Spear abstained. The motion failed.

Roberts asked Mr. Beers is he would consider putting a set of his plans in the zoning board file. He declined.

Case #1/9/07–3 — Babineau Irre/Sirois

The T. Arthur Babineau Irre Trust and Marie L. Sirois have applied for a special exception under the terms of Section 17.3 of the Wilton Zoning Ordinance, and for a variance to the terms of Section 6.2.5 of the Ordinance, to permit the construction of a single-family house on Lot D-39, Holt Road, where the house and its septic system would be closer to the lot line than otherwise permitted by the Ordinance.

Samuel Proctor represented the owners and provided a packet of information. He introduced Ray Sirois who explained that he purchased the land in the 80s and it has always been taxed and assessed at a relatively low rate. But on the November tax bill, he continued, the parcel was assessed at $64,800. When he requested an abatement, the Tax Assessor denied it, explaining that it was a buildable lot. He suggested that Mr. Sirois seek relief from the ZBA because the lot is so small.

Mr. Proctor said that the lot has been in existence since at least 1963, based on his research at the Hillsborough County Registry of Deeds. He provided a sketch of a possible proposed 30’ x 40’ house with a 24’ x 24’ attached garage and a 14’ x 14’ deck and 15’ setbacks on all sides. He explained that the proposed 3 bdr. septic leachbed would take up 12’ to 15’.

Faiman had two concerns: reducing the setbacks from 35’ to 15’ all around is kind of extreme; and he was a little uncomfortable about a speculative relief – not for a particular structure, not even with a particular septic system location, but just in case.

There was discussion about other homes on Holt Road – many are small, many do not have garages, many do not have 35’ side setbacks but most do have 35’ front setbacks.

Board members felt the 15’ setback in front was too little and needed to be larger. Mr. Proctor suggested a 24’ x 36’ house, which would add 4’. Board members felt that was not enough. He then said that they could put a 14’ x 56’ mobile home on the property, which would not make him happy, but would allow for larger setbacks.

Board members began talking about the possibility of the owners combining Lot 40 with Lot 39. Mr. Proctor was interested and wanted to know how to proceed. Faiman suggested a lot line adjustment at the Planning Board considering that both lots are non-conforming lots of record, and the LLA would be creating a more conforming lot out of Lot 39. If that doesn’t fly with the Planning Board, the applicants can apply to the ZBA for a variance for the frontage requirement.

MotionRoberts/Tuttle to withdraw the application without prejudice. All in favor.
MotionEckstrom/Spears to adjourn the meeting. All in favor.

The meeting adjourned at 10:30 p.m.

Submitted by Diane Nilsson

Posted January 18, 2007