Town of Wilton, NH

Zoning Board Minutes

September 25, 2007

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

Faiman called the meeting to order at 7:30 p.m. and explained that this meeting was a continuation of the meeting that was held on September 11. He announced the four cases that would be heard this evening. Faiman then introduced the board members and said that the regular members would be voting on the cases and the alternate members would be participating in the discussions.

Case #9/11/07–1 — Kenneth Cadrain (continued from September 11)

Kenneth Cadrain has applied for a special exception under section 17.3 of the Wilton Zoning Ordinance, or alternatively for a variance to section 5.2.3 of the Ordinance, to permit the residential use of a portion of an existing barn on Lot L-5, Seagroves Road, which is closer to a lot line than is permitted by the Ordinance.

Attorney Brian Major represented the applicant and presented a plot plan showing the 0.427 acre property. He said Mr. Cadrain purchased the property in 2005; there is a circa 19th century, 5100 SF barn on the property in need of major structural work. Mr. Cadrain currently uses the barn for storage for his general contracting business.

Mr. Major said that the lot was originally owned by Hillsborough Mills, and was conveyed to William Abbott in December, 1979. When Hillsborough Mills subdivided the property, ZBA approval was required because the lot was undersized. A variance was granted on May 21, 1979, Case 1979 – 1, to allow the subdivision and the creation of the lot with the stipulation that the barn never be used as a dwelling or residence. The ZBA decision was recorded in the deed, but the minutes of the ZBA meeting cannot be found.

Mr. Major said that in 1983 sewer and water were brought to Burns Hill Road. He felt that this fact makes a difference in his client’s ability to use his lot for a residence. He said what his client would like to do is remodel 1200 SF of the barn and use it as a residence. He said that his application is contingent on three things: 1) Mr. Lushear, the applicant’s abutter, has agreed to convey enough land to the applicant to bring the total to 0.5 acres; 2) property must be able to be served by town water and sewer; 3) the town attorney must agree that the deed restriction is no longer in effect because it doesn’t benefit anyone anymore.

Sam Proctor asked about the footprint of the barn. Mr. Cadrain answered that one part is 36’ x 50’ and consists of 4 floors, another part is 23’ x 29’ and has 3 floors.

Sam Proctor, speaking as co-trustee of S & G Realty Trust, said that the Trust was not an immediate abutter but owns lots near the Horseshoe that are within 100’ of Mr. Cadrain’s lot. He said the Trust is asking the ZBA to uphold the 1979 decision. He submitted planning board minutes from 10/18/79,

11/15/79 and 12/20/79 as well as the William Abbott deed, dated 12/28/79. He said that he recalls the 1979 subdivision and the reason that the lot with the barn is so small is because Bill Abbott wanted to keep the barn to store all of his things, however the rest of the family wanted to sell the rest of the land, so they made the lot with the barn substandard with the understanding that it would not be a residential lot, so that they could sell as much of their land as possible. According to Mr. Proctor’s research, the zoning ordinance in 1979 required 1 acre for a residential lot in the Residential District. He said the Abbott’s could have made the lot any size they wanted to; they chose to make it as small as they did because they intended for it to be non-residential. He asked the board members to keep it that way.

Attorney Major stated that all the applicant is asking the board for is a special exception or a variance for an encroachment into the side setback because the applicant wants to build the residence in the side of the barn that is 10’ to 15’ from the setback. He can’t go ahead with he project unless he can satisfy the three criteria listed earlier, he said.

Faiman summarized the case: There is a lot that was created by subdivision in 1979, at which time it was non-conforming with respect to lot size, and received a deed restriction at the requirement of the zoning board at that time, that it would never be used for residential purposes. The lot can now potentially be brought up to conforming size and the applicant is requesting either a special exception or variance to permit the residential use of the lot after bringing it up to the required 0.5 acre and after adding the town sewer and water, which would make half an acre a conforming lot size. There are no facts as to what was the original reason for the requirement the zoning board imposed. Mr. Proctor has observed that the lot was simply not intended to be usable as a residential lot, it was not created to be potentially useful as a residential lot and perhaps that the deed restriction was simply to make sure that nobody would ever make the mistake of thinking it could be used as a residential lot, or try to do so.

The applicant was asked whether there was any king of deed restriction that he was aware of on Lot 6. The answer was no.

Board members felt that Faiman should contact Town Counsel and ask him if the deed restriction is still effective even if the non-conformity has gone away. If it is, does the ZBA have the power to release it or to grant the requested relief in this case despite the restriction and what would be the consequences.

Case #9/11/07–2 — Richard L. Sharkey (continued from September 11)

Richard L. Sharkey has applied for a variance to section 8.2.2 of the Wilton Zoning Ordinance to permit a lot line adjustment and subdivision of Lots F–23 and F–24, 369 Gibbons Highway, where one of the resulting lots would have less than the required frontage, and for variances to sections 8.1

and 8.5 of the Ordinance to allow the residential use of both lots, which is not a permitted use in the Industrial District.

Faiman explained that a similar variance was requested and granted by the zoning board in 2004. It was never exercised and therefore has expired and that’s why the applicant is here. He also noted that he and Eckstrom visited the site in 2004.

Patrick Sharkey, Richard Sharkey’s son, represented the applicant and presented notes from Richard Sharkey, color photos of the property and the farmhouse and plot plans showing the current layout of Lots F-23 and F-24 and the proposed lot line adjustment.

Mr. Sharkey explained that his father would like to build a ranch style house on the new Lot F-23 while the son would purchase the farmhouse on the new Lot F-24. The proposed Lot F-23 would have 18 acres and the proposed Lot F-24 would have 45 acres. He went through the criteria for the variances stating that because of the topography of the land, the steep driveway and the dangerous entrance onto Route 101, the land does not lend itself to industrial use. In addition, he stated that the farmhouse on Lot F-23 was built circa 1770 and is one of the oldest homes in Wilton. He said Lot F-24 has 700’ of frontage on Route 101 and the driveway is about 2000’ long to the spot where the second driveway will veer off to the right.

Charlie McGettigan said that Mr. Sharkey has been a good steward of the land and if he wants to build a house next door he should be able to.

Faiman read the decision that the board wrote in 2004 and board members were satisfied with the language.

Case #9/11/07–4 — Victor Lushear

Victor Lushear has applied for a variance to section 5.2.3 of the Wilton Zoning Ordinance, or alternatively for a special exception under section 17.3 of the Ordinance, to permit the constructing of an addition to an existing house on Lot D-106-3, 15 Seagroves Street, which would be closer to a lot line than is allowed by the Ordinance.

Jim Tuttle and Bob Spear chose to act as non-voting alternate members for this case so that Andy Hoar and John Jowders could become voting members.

Victor Lushear explained that when he bought his house 12 years ago he knew it was too small so he requested a variance to add an addition within the setback. The variance was granted but he could not afford to build the addition within two years so the variance lapsed. He requested the same variance again in 1999, and again the board granted the variance, however circumstances beyond his control intervened and, again he was not able to build the addition. At this time he is ready to build the addition which will be a 14’ x 15’ family room and a 4’ x 8’ doghouse for an oil tank that will necessarily be 5’ in the setback on the north side of the house. Although Mr. Lushear’s property is 2 acres in size, the house is located in a corner pushed right up near the setbacks.

Sam Proctor, Trustee with S & G Realty Trust, asked if the addition would impact the ROW. Mr. Lushear said that it would not. Faiman added that it would be at least 10’ from the ROW.

Case #9/11/07–5 — Priscilla F. McGrath

Priscilla F. McGrath, Trustee has applied for a variance to section 5.2.3 of the Wilton Zoning Ordinance, to permit the construction of a house on Lot K–96–1, at the corner of Russell and Maple Streets, which would be closer to both streets than is allowed by the Ordinance.

Bob Spear and Joanna Eckstrom chose to act as non-voting alternate members for this case. Voting members were Roberts, Tuttle, Jowders, Faiman and Hoar.

Dawn Tuomala, Monadnock Survey, represented the applicant and presented a plot plan showing the location for the proposed house and garage. She also showed a small envelope where something could be built without encroaching on the 35’ front setbacks or the 50’ wetland setback from the brook. She said the applicant wants to build a single family home within the front setbacks on both Maple and Russell Streets. The 0.178 acre lot can be serviced by town sewer and water. She presented a letter from Road Agent Steve Elliot approving the curb cut on Russell Street. She presented title research showing that Lot K- 96-1 and the lot next door, K-96, which is where Ms. McGrath lives, have been separate lots of record since at least 1914. The proposed house will have a 15’ setback on Russell Street and a 30’ setback on Maple Street. She then read through the variance criteria.

Abutter Don McGettigan asked how close to maple Street the proposed driveway was. Ms. Twomala said the distance from the center of Maple Street to the center of the driveway is 65’. He said he was concerned about the location of the driveway being so close to Maple Street.

The meeting adjourned at 9:15 p.m.

Submitted by Diane Nilsson

Posted October 3, 2007