Town of Wilton, NH

Zoning Board Minutes

May 8, 2007

Faiman called the meeting to order at 7:30 p.m. and announced that he had received an email from Dawn Tuomala, the representative for the Degroot/Chappell case, stating that the applicants have chosen to withdraw the case at this time. He introduced the board members and said that the regular board members would sit on the cases this evening unless there was a conflict of interest.

Minutes — April 10, 2007

Spear asked that the words specifically forfeiting .com for .org or some other non-commercial name be added after the word website on page 6, paragraph 6.

Election of Officers

Case #3/20/07–2 — Poitras

Daniel and Judy Poitras have applied for a special exception under the terms of section 11.4 of the Wilton Zoning Ordinance, to permit the construction of a driveway, which would cross two wetland areas for a subdivision of Lot C-147, 39 Town Farm Road. (Continued from March 27)

Spear, Tuttle, Eckstrom and Faiman participated in the site walk on April 14. Spear took digital photographs and presented a CD for the files. Faiman loaded the photos into his laptop so that people who had not been on the site walk could see the photos.

Earl Sanford, with Sanford Surveying and Engineering said that the upper crossing is 70 sq. ft. and the lower is 260 sq. ft.

Steve Sergamaki, speaking for abutter Linda Pajanen asked if the drainage would be more free-flowing with a culvert in the lower wetland rather than the natural absorption from the wetlands. Mr. Sanford said there is a chance that it could, although in his opinion it was unlikely. Mr. Sergamaki the said that a culvert under the road has dumped huge amounts of water on Ms. Pajanen’s property in

last few years and it has eroded her land and has damaged her well. Spear and Tuttle said that the town selectmen should be contacted about repairing the culvert.

Faiman said he did not see the justification for the lower wetland crossing. Mr. Sanford said that it was a privacy issue and the idea was to keep the road farther away from the house. Faiman said that the new road is only 5 – 10 feet further away from the house, but he said that the new road is further away from the barn. He said that there is an existing crossing, which can handle the traffic to the new lot, the proposal is to add a totally new crossing just for the sake of being able to diverge the driveway 100 feet earlier.

Mr. Poitras said that it’s a safety, privacy and convenience issue to have the roads separated at the mouth of the driveway. Mrs. Poitras said that financially it would be less expensive for them if they didn’t have to build the second lower driveway, but she felt it was the right thing to do. Mr. Poitras said it shouldn’t make any difference whether you cross the brook once or twice. Faiman said that he is asking for nearly twice as much wetland impact.

Eckstrom said that the Conservation Commission submitted a letter at the March hearing stating they had no objections to the proposal. Spencer Brookes, Con Com member said that the plan they saw initially had two separate driveways. When the road agent said the applicants could not have the second curb cut, the Con Com felt it was a better plan.

Faiman said that he felt that the upper crossing was necessary to access the second lot and that it was reasonable for the applicants to subdivide their property. He then read section 11.4a. “Streets, roads and other access ways and utility right-of-way easements including power lines and pipe lines if essential to the productive use of land not so zoned and if so located and constructed as to minimize any detrimental impact of suck uses upon the wetlands. ” He said that he couldn’t see the lower crossing as being essential to providing access to the new lot. He said he understands that it is desirable by the applicant, but he doesn’t see it as essential.

Eckstrom felt that a safety issue might be created if the current drive, in its present state, is used as the access to the new lot because it is so close to the barn and it is very narrow.

Tuttle made some suggestions for how the applicants could improve the current driveway in order to eliminate the proposed driveway.

Spear said he would like to see a new plan that eliminates the second lower driveway and improves the current driveway. Roberts wanted to ask for that as well.

Mr. Sanford said that they will work on an alternate plan.

Case #2/13/07–3 — The Pierre E. Provost 1993 Trust and the Lura S. Provost 1993 Trust (Continued from March 20)

The Pierre E. Provost 1993 Trust and the Lura S. Provost 1993 Trust have applied for a special exception under Section 11.4 of the Wilton Zoning Ordinance, to permit the construction of driveways and drainage improvements impacting 9544 square feet of wetlands as part of a proposed subdivision of Lot B-14 (accessed from Cram Hill Road, Lyndeborough).

Faiman said that he, Spear and Eckstrom participated in a site walk on the property on April 14 along with members of various land use boards in Lyndeborough and members of the public. Spear took photos of the site walk and presented a CD for the file.

Attorney Bob McKenney introduced Steven Keach, of Keach-Nordstrom Associates, Inc., and said that after hearing input from different boards and abutters to the property, Mr. Keach has prepared proposed changes to minimize the wetland impact by 1800 sq. ft.

Steven Keach elaborated on the revisions to the plan as stated in the Memo, dated May 8, 2007, in file.

Hoar asked if impact area #3 could be moved slightly to the north. Mr. Keach said that there is a huge hillside to the north that would have to be taken down in order to do that and he didn’t think anyone would be happy with the results.

Spear asked if Mr. Keach thought there was gravel in the hillside. Mr. Keach said he thought there was probably gravel on top of bedrock. Spear asked if the applicants were proposing to remove gravel off site. Mr. Keach answered no.

Spencer Brookes, a Wilton Con Com member asked if the culverts that are designed for this project would withstand storms like the one on April 16th of this year and Mothers Day last year. Mr. Keach said they are designed for 50 year floods.

Faiman summarized the information: There is a proposed subdivision and a proposed road to access the lots in the subdivision. The road, in the town of Wilton, is proposed to impact wetlands in three areas. The board looked at an initial proposal then the board got its own review by Dennis LaBonbard. The board discussed this further with the applicants and the applicants have made modifications to reduce the impacted area by almost 20%. There are still three areas of impact with the impact pretty elaborately documented in the information the board has received.

Spencer Brookes asked the board members to consider, before they made their decision, that if they approved the wetland crossings they would be allowing a subdivision that would impact a large amount of wetlands (he pointed to page 1 of the subdivision plans which delineate the wetlands areas on the entire property). He said that all of the houses will have fertilization going into the wetlands that will end up in the major wetlands complex to the east on Dale Street. He asked board members to look at the entire region and at the individual lots in the wetlands areas, not just at the three impacts.

Eckstrom said that her greatest concern was impact area #3, but she was impressed with the new design, while it’s never going to be a gentle slope, said what he has come up with is the best plan as far as safety of the big hill is concerned. She felt that the more you cut into the hill, the more potential damage there could be. She said he has done a reduction of the impact on the wetland in a way that promotes the safety of passage on the road as well as promotes easier maintenance of the road. And overall she was impressed that impact to the wetlands has been reduced by almost 20%.

Faiman asked board members permission to reopen the hearing to ask Mr. Keach a question about the slopes on the new plans. Board members agreed. Faiman asked if Mr. Keach thought the Planning Board would approve the 1.5:1 pitch of the new designs when the subdivision regulations require a 2.5:1 grade. Mr. Keach said he thought that if the zoning board recommended this design, the planning board would likely see the benefit in it. He said that one of the crossings requires a retaining wall no matter what the grade is.

Spear said this is the clearly the largest application for a wetlands impact that has come before the zoning board. Usually the board approves crossings in the hundreds of sq. ft., not in the thousands of sq. ft. He said he has personally suffered considerable damage over a number of years from development on an otherwise rural road. He said the storm on April 16th reminds him that we don’t know what effect granting this special exception will have in the future because it’s a lot of area to impact. He said he is not comfortable with granting an impact this large.

Tuttle said this is probably the wettest piece of property the board has ever had to look at, and when you look at 11.4 a. where it says “if essential to the productive use of the land,” how many lots equal productive use of the land? Is it 19? Should it be 10? If it’s 10 they wouldn’t need as much road, the lots could be bigger and there would be less impact on the wetlands.

Hoar said that that land, with these particular wetlands, has been there for a long time and the wetlands act as a natural swale for the flood control dam below, and sometimes the land is just what it is. Maybe there isn’t another productive use for that land.

Tuttle said that Andy hit the nail on the head; the land is the land is what it is. Because you can create something on a piece of paper doesn’t justify necessarily the extent of the construction that’s going to take place. He said that the water goes from the wetlands to the flood control dam and eventually goes into the Souhegan River. So even though there are 2.4 acre lots, vegetation and trees will be removed, in addition to the wetlands impact, to construct the road, and then there will be driveways and lawn fertilizers and vehicles and that’s going to end up in this watershed no matter how careful you are.

Board members looked at page 1 of the plan and saw that if the seven lots in the southern portion of the property were eliminated there would be no need for any wetland crossings at all.

Faiman asked Mr. Keach what the total area of wetland on the property was. He answered 12.5 acres.

Eckstrom asked how many sq, ft. were in an acre and he said 44,000.

Faiman said that he hears what board members are saying, on the other hand the drafters of the ordinance could have put quantitative limits on the amount of permissible impact and they didn’t. Maybe it simply never occurred to them that somebody would dream of impacting a fifth of an acre of wetlands in a single project and maybe the intent of the ordinance was what the literal language of the ordinance says – that is if you have land, whose productive use requires impacting wetlands, then you’re allowed to impact as much wetlands as you absolutely must but no more, to accomplish that.

Eckstrom said that 1.5% of the wetlands on the property being used for crossings is a small enough to allow so that this property can be developed. Otherwise, if you can’t use it what happens to it? Hoar said it could remain in its natural state. Roberts said perhaps a portion is developed rather than the entire 70 acres.

Board of Selectmen

The Board of Selectmen has requested that the Zoning Board hold a rehearing of its decision that the dog breeding activity conducted by Roger and Sabrina Hatfield on Lot C-4-1, 1 Victoria Lane, is not a commercial activity in the sense of the Wilton Zoning Ordinance, and that the Cease and Desist Order issued to the Hatfields by the Wilton Board of Selectmen was erroneous and should not have been issued. (Request for reconsideration of Case #4/10/07-1)

Faiman stated that a Joinder To and Support of Motion for Rehearing was received, signed by seven neighbors and dated May, 8, 2007. See file.

Faiman read parts of the original letter and Cease and Desist Order from the Selectmen: The dog breeding business is a commercial enterprise. Commercial enterprise is not allowed in the GRAD district. Land Use Laws and Regulations requires compliance with this order. The conduct of a commercial enterprise is not listed as a permitted use in the GRAD. You are required to immediately stop all commercial operations.

Faiman said the letter from the Selectmen requesting rehearing says the zoning board conducted an incorrect analysis. The issue is not whether the activity is a commercial activity but rather whether the dog breeding activity is a legitimate accessory use. Faiman said he didn’t think the accessory use question was ever raised at the original hearing and it wasn’t part of the Cease and Desist Order. He said the zoning board made a finding on an order of the selectmen that the use was not permitted because it was a commercial use. The zoning board found that it was not a commercial use and that therefore the selectmen’s order was incorrect. If there had been an order from the selectmen that it was not a permissible accessory use, then this letter would be an appropriate request for a rehearing, but he didn’t think this was a request to rehear the case that the zoning board heard.

Board members agreed with Faiman’s comments. Eckstrom presented a two-page document with her comments. (See file)

REASONS FOR DECISION

The application was denied for the following reasons:

The magnitude of the affected wetland area was excessive in absolute terms. It was significantly larger than any wetland crossing that the board has ever approved. The alteration of surface area within the affected wetland areas will potentially have a significant effect on the entire wetland complex which dominates that area of the Town. Almost all the water flowing through the wetlands on the property would have to pass through the impact areas 2 and 4. It is not in the public interest to disturb that large an area. Granting the special exception is not essential to the productive use of the land, because the majority of the total lot is still usable without crossing the wetlands.

The meeting adjourned at 10:55 p.m.

Submitted by Diane Nilsson

Posted May 15, 2007