Town of Wilton, NH

Zoning Board Minutes

August 14, 2007

BOARD MEMBERS: Chairperson Neil Faiman; members Joanna Eckstrom, Carol Roberts, Bob Spear & Jim Tuttle; alternate members Andy Hoar and John Jowders.

Faiman called the meeting to order at 7:35 p.m.

Case #7/10/07–1 — Beverly Koster and Eric and Sophia Fowler (continued)

Beverly Koster and Eric and Sophia Fowler have applied for a special exception under section 17.3 of the Wilton Zoning Ordinance, to permit the construction of a shed on Lot J-136, 37 Burns Hill Road,

Faiman read a letter from Eric Fowler in which the applicant asked to withdraw his application because he found that after locating the boundary markers on his property, he no longer needed a special exception to erect his shed.

Case #7/10/07–2 — Hillside of Wilton, LLC (continued)

Hillside of Wilton, LLC, has applied for a variance to section 6.3.5(a) of the Wilton Zoning Ordinance to permit six lots to be accessed by a single private way in connection with a proposed subdivision of Lot D-84, Pead Hill Road, and also for a special exception under section 11.4 of the Ordinance, to permit the private way and driveways to cross wetland areas on the property.

Faiman said that a site visit was attended by him, Tuttle, Spear and Roberts as well as abutters and members of the public on August 4th. He also presented a letter from Stefan Toth, of Toth Engineering, requesting the board continue the case until the September meeting to give him more time to prepare the information that the zoning board has requested and to have that information reviewed by the zoning board’s consultant.

Faiman introduced members of the board.

Minutes — July 10, 2007

Case #7/10/07–3 — Kevin J. Degroot (continued)

Kevin J. Degroot has applied for a special exception under section 5.3.7 of the Wilton Zoning Ordinance, to permit the conversion of the existing building on Lot J-16, 9 Dale Street (“The Odd Fellows Hall”) for three-family residential use, and also for variances to sections 5.3.7(a), to allow three dwelling units where the ordinance would only allow two; to section 5.3.7(c), to allow the use of the existing paved parking area which is within the lot setback; and to section 5.3.7(d), to allow less open space on the lot than would otherwise be required by the ordinance.

Faiman said that a site visit was held at 6:30 p.m. attended by all board members with the exception of Tuttle. He said that there was a preliminary presentation last month, there were comments by a number of abutters and the applicant was going to continue his presentation this evening. Voting board members were Faiman, Spear, Eckstrom, Jowders and Hoar.

Attorney Gregory Michael, representing the applicant, spoke about three issues that were raised by Congregational Church members and/or audience members at the last meeting:

1. The concern about the effect on the neighborhood of three units vs. two. He said there would either be three 2 bedroom apartments or two 3 bedroom apartments and he didn’t see that the effect would be much different.

2. Fire protection. He said that this needs to go before the planning board where they will be looking at the turning radiuses and the access to the building. He said because the building is so close to the street, he didn’t think there was a need for a fire lane, and he didn’t believe that other multi-family homes in the area had fire lanes.

3. Use vs. area variance. He said it had been suggested that the Simplex case should apply because a use variance is what is needed for section 5.3.7(a) vs. the Boccia standard which relates to area variances. He suggested that the focus is the lot size issue. If the applicant had .5 acres he could have 3 units, but he has .272 acres which is the deficiency that restricts his use. He cited the Harrington v. Warner case wherein the Supreme Court decided that adding any number of mobile homes to a mobile home park, where the ordinance specifies a finite number of mobile homes are allowed no matter the size of the property, would change the character of the neighborhood and is thus a use, not an area variance. He presented the board with a list of 31 tax map numbers all in the J area. He argued that because there are 12 multi-family uses on the list, his client’s request would not change the character of the neighborhood, is actually an area variance based on the incidental physical limitation of the lot size.

• He said the application meets the Simplex standard for a use variance as well: He argued that the zoning restriction as applied interferes with the applicant’s reasonable use of the property, considering the unique setting of the property in its environment because the building is already built and if his client had .5 acres he’d be all set. He argued that no fair and substantial relationship exists between the general purposes of the ordinance and the specific restriction on the property because 3-family use is allowed and the reason the ordinance requires .5 acres is probably to keep things spread out. He argued that one more two bedroom unit in this building, in this location, with other multi-family uses in the area would not injure the public or private rights of others.

• Dawn Tuomala, with Monadnock Survey, said that she was able to speak with the fire chief that afternoon. He said he would like to see a fire access lane on one side of the building in order to reach the back of the building. She indicated where that might be possible on the right side of the building. She said that she also spoke to the road agent who indicated that he would approve the use of the curb cut on the left side of the property for a fire lane only, if that was required.

Faiman said that he had reviewed the ordinance, and he regretted that he did not catch this last month, and he realized that the applicant had applied for a special exception under the terms of section 5.3.7 which allows multi family uses of dwellings in existence as of March 14, 1989. He said that it did not appear to him that that building qualifies as a dwelling. A dwelling is a building that people live in, it’s not an assembly hall. Attorney Michael said he couldn’t really disagree with Faiman. He asked to speak with his client in another room. Attorney Michael returned and asked the board if it would be possible to continue the case for another month to allow the applicant time to decide how to proceed.

Eckstrom felt that it was partially the fault of the board that the error on the Degroot application was not caught sooner.

Faiman did not agree that the application fee should be waived. He said that the fee covers all the costs associated with processing a new application. In addition he said that the applicant is responsible for determining what to apply for. If an application comes in at least a week early, he will go over it and see if everything seems in order. But when applications come in on the last day, there is no time for that.

Spear did not feel that the board was responsible for not catching the error earlier. He said that during the course of hearings sometimes things are discovered.

NEW BUSINESS

Faiman reminded board members about the fall planning and zoning conference on Saturday, October 13th at Loon Mountain. Also Nashua RPC is looking for nominations for “Great Streets” in your town. Deadline is 9/14/07.

Tuttle will be absent for the 9/11/07 meeting.

Submitted by Diane Nilsson

Posted August 21, 2007