Town of Wilton, NH

Zoning Board Minutes

October 9, 2007

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

  • Kevin J. DeGroot – variances
  • Kenneth Cadrain – special exception or variance
  • Steven Moheban/Lisa Ann Edenfield – special exception
  • Peter and Stephanie Ouellette – variances
  • E&T’s United Venture, Inc./L.A. Limousine

Faiman called the meeting to order at 7:30 p.m. Board members decided that Tuesday, October 16 would be the continuation date if needed. Faiman then introduced the board members and said that the voting members would likely vary on each case but would be announced before the case is heard.

Minutes — September 11, 2007

Regarding the addendum to the August 14th minutes, that Eckstrom read into the minutes of September 11, she would like to have seen the addendum typed into the September 11th minutes, rather than described as it was. Board members suggested that the addendum could have been attached to the minutes. Eckstrom was satisfied with that solution. It was decided that Eckstrom’s addendum, dated September 11, 2007 would be attached to these minutes.

MotionHoar/Roberts To accept the 9/11/07 minutes as amended. Five were in favor, Spear abstained.

Minutes — September 25, 2007

MotionSpear/Roberts To accept the 9/25/07 minutes as amended. All were in favor.

Case #9/11/07–3 — Kevin J. Degroot (continued from September 11)

Kevin J. Degroot has applied for variances to section 5.2.1 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, where the ordinance would only allow a single family home, and to section 5.2.3 of the Ordinance, to permit parking in the lot setback area (or alternately for a determination from the Zoning Board that parking is permitted in the setback area). (This is a new application requesting different relief from the Zoning Ordinance, to allow essentially the same use originally proposed in the application for Case 7/10/07 – 3).

Board members voting on this case were Roberts, Jowders, Faiman, Eckstrom and Hoar.

Faiman explained that the board has tabled the original application (Case 7/10/07-3) and is hearing the request for an area variance from the standard lot size density requirement for the residential district. If the board turns down the request, the applicant has the option to un-table the previous application and ask the board to grant that request.

He said that this case was continued from last month when the board requested substantiation of the assertions that had been made with regard to the relative costs of converting the property for two- the family use rather than three-family use and the assertion that it would not be financially viable to do the project if it were only done as a two-family. That documentation was submitted in a letter from Gregory Michael, dated October 4, 2007. Members of the board have received copies of the letter and abutter Dwight Sowerby received a copy of it. There were extra copies that Faiman offered to anyone in the audience but there were no takers.

Attorney Michael said that Mr. DeGroot has all the paperwork to back up the numbers in the letter and Mr. Michael spoke with Centrix Bank to get the interest and amortization numbers. He pointed out that for some of the items – fire alarm/sprinklers, fire sprinkler design/engineer/consultant, exterior stairs (fire), and curbing – the cost is not yet known, but would likely be the same under either analysis.

Mr. Michael claimed that the cost, amortized over 20 years, to renovate the bldg. for three 2 bdr. units would be $463,180.31 vs, $422,892.22 for two three bdr. units. He said the expected rental revenue for a 2 bdr. unit would be between $1,000 and $1,300 per month. The expected rental revenue for a 3 bdr. unit would be $1,200 to $1,400 a month. Assuming the higher figures, he said the three 2 bdr. units would yield $3,900 per month, while the two 3 bdr. units would yield $2,800 per month. He went on to explain that the purchase price, amortized over 20 years, plus the renovation costs for three 2 bdr. units, would equal $663,751.31 or $5,551.88 per month minus the rental income of $3,900 leaves a deficit of $1,651.88. The purchase price plus the renovation costs for two 3 bdr. units would equal $623,463.22 or $5,214.90 per month minus the rental income of $2,800 leaves a deficit of $2,414.90.

Dawn Tuomala presented a new parking plan with a fire lane on the east side of the bldg. and six parking spaces on the east side of the lot 10’ into the setback.

Hoar wanted to know what the taxes might be after the renovation was complete. The applicant didn’t have any idea.

Eckstrom wanted to know what the value of the building would be after the renovation was complete. Mr. Michael said they were not asked to look into that so they didn’t have anything to compare the building to.

Eckstrom asked if there would be more open space on this new parking plan. Ms. Tuomala answered that with the fire lane it is about the same. If they are not required to have the fire lane then there would be more open space.

Jim Cutler, member of 2nd Congregational Church, asked about the stream that runs beside the bldg. where the fire lane is proposed. He wanted to know whether a special exception for a wetland crossing would be required. Ms. Tuomala said she has not done a full wetlands analysis yet because she is awaiting the decision of the ZBA. If a full fire lane is required and if the soils are determined to be wetland soils then they will have to come back for wetland permits. She showed on the plan where she would want to place a catch basin and she said she would want to look at the back of the lot as well to see if anything was needed there. She said she would want to pipe the water into the existing drainage system in the street.

William Condra, member of 2nd Congregational Church, commented that the numbers put before the board are probably good factual information, it costs a lot of money to do a project like that. It cost a lot of money to do a project like that before that property ever changed hands and it seemed to him that the board was being asked to make a decision to assist someone with a pretty hefty profit-motivated issue. The discussion is, we can’t make money if we don’t do it this way, and his opinion was that the purpose of the ZBA is not to help somebody turn a profit.

Mr. Michael said it’s not really a question of profit but what’s reasonable and the Supreme Court has indicated that what is reasonable can be based on economic factors. Is there another reasonable way to handle the property for a zoned-for purpose, this one being residential. He asked the board to look at the totality of the facts, two vs. three, this is a reasonable, rational approach based on the numbers and the applicant isn’t making much of a profit, the numbers bear that out.

Faiman summarized the case: The applicant has a small lot with a large, existing, somewhat historical building on it. He wishes to renovate the building and place 3 dwelling units in that building. The zoning ordinance would allow 1 dwelling unit on the property because it is a grandfathered lot, less than _ acre. The applicant is requesting a variance to allow 3 dwelling units, he is also requesting either a variance, or a finding from the zoning board that no variance is required, to permit the placement of parking places in the setback along the side lot line with the church. The applicant’s essential argument is that it would be economically unfeasible, it would be a money losing proposition to convert the building to a 2 dwelling unit property. The income from 3 dwelling units is necessary to be able to make money on the conversion and development of the property for residential purposes. Members of the 2nd Congregational Church have stated that 3 dwelling units would be inconsistent with the character of the neighborhood and would be detrimental to the neighborhood and to the Church in particular.

MotionEckstrom/Hoar To close the hearing in order to deliberate. All were in favor.

Faiman said that this is an area variance… 3 family use is allowed in the Residential District, but the lot size is not adequate for 3 family use. The applicant can argue a hardship on the area variance standard by saying that a proposed, permitted use is not practical without a waiver of the dimensional requirements by reason of some unusual characteristic of the property.

Eckstrom said that there is no adjacent property that the applicant could purchase to increase the size of the lot.

Faiman said it’s the building that has to be taken into consideration. It seemed to him that multi-family use of the existing historic building on the property is a reasonable residential use of the lot.

Hoar said that where he starts running into a problem is with the spirit of the ordinance. The spirit of the ordinance is to control population density. If the board allows two units, the lot will be providing 27% of the area that is required by the ordinance. If the board allows three units, the lot will be providing 1/6 of the area that is required. He also felt that the economic hardship was a self-created hardship.

Both Faiman and Eckstrom read from different area variance court cases relating to hardship and how similar requests have been granted.

Roberts felt that 3 units might fit well into the building but it will be an overuse of such a small property and will have an adverse effect on the neighborhood. She also referred to the spirit of the ordinance.

Jowders was concerned about the proposed parking in the setback but didn’t say what he would like to see instead.

Spear said that there would be no changes made to the outside of the building so if he were voting, he would vote in favor of the variance request.

MotionEckstrom/Faiman To grant the variance request to section 5.2.1, to allow three 2 bedroom dwelling units on Lot J-16, 9 Dale Street.
VoteHoar No Eckstrom Yes Roberts No Jowders Yes Faiman Yes

Section 5.2.3 – variance request to allow parking in the side setback.

MotionEckstrom/Roberts To grant the variance request to section 5.2.3, to allow parking for six cars in the setback, as shown on the plan titled “Proposed Parking Concept ‘B’, Lot J-16, 9 Dale Street, Wilton, NH,” dated October 8, 2007, or as it may be amended to comply with requirements imposed by the planning board. Four in favor. Jowders was opposed.

Case #9/11/07–1 — Kenneth Cadrain (continued from September 25)

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.

Case #10/9/07–4 — Kenneth Cadrain

In conjunction with the application in ZBA Case #9/11/07–1 for a variance or special exception to permit a reduced setback for a proposed residential use of the existing barn on Lot L–5, Seagroves Road, Kenneth Cadrain has requested a variance or finding from the Zoning Board to release the deed restriction on the property, imposed by the ZBA as part of a decision in 1979, that the barn could never be used as a residence.

This request will be consolidated with and heard together with Case #9/11/07–1.

Voting board members on this case were Roberts, Spear, Faiman, Eckstrom and Hoar.

Faiman explained that the reason that this case was continued was so that Town Counsel could be consulted about whether the ZBA has the power to release the deed restriction that was imposed on the property in 1979, and if so, what would be the procedure for doing so. He said he talked with Silas and his advice was that the board has the authority to release that restriction subject to the finding that 1) the proposed use is, in all other regards, conforming (and that would include conforming as a result of a variance or special exception); 2) The applicant would have to specifically request that relief from the board and the board would have to grant it in a properly noticed public hearing. He said the abutters were notified of the new request.

Attorney Brian Major represented the applicant and formally requested that the board release the deed restriction on the applicant’s property subject to the following conditions: That sufficient land be added to the lot, by a lot line adjustment, to bring the lot size up to the 0.5 acres required for a single-family residence, and that any residence on the property makes use of town sewer and water.

He also said that his client spoke with his abutter to the west, Sam Proctor, of S&G Realty Trust, and if the board grants the special exception, his client would like a restriction added that states that there will be no storage of construction material, equipment, or debris on the property west of the barn (except during the conversion of the barn to residential use). He said that he believes that Mr. Proctor will not have a problem with the project if this language is added and his client is willing.

Sam Proctor, speaking for S&G Realty Trust, said that he did speak with the applicant and no longer is averse to granting the variance as long as the language restriction for the west side of the property, as detailed above, is included in any decision. He also requested, in relation to the board releasing the deed restriction, that the board be specific if they do release it and specify that the property is only allowed to have one dwelling unit.

Someone asked about the square footage of the barn. Mr. Cadrain answered that the residence would be 1,200 sq. ft. the remaining barn would be 3,800 sq. ft., not counting the two basements.

MotionSpear/Hoar To release the deed restriction, that was placed as a result of the 1979 variance, subject to 1) the addition of sufficient land via a lot line adjustment to bring it up to 0.5 acres; 2) the granting of a special exception to allow reduced setback on the north side of the lot; 3) any residence on the property makes use of town sewer and water. The ZBA found that, due to changes in conditions since 1979, residential use of the barn would conform to the zoning ordinance, and that the deed restriction therefore serves no purpose. All voted in favor.

Discussion of special exception to section 17.3. Reduction of side setback by 10’ – 15’.

Board members were in agreement – all wanted to grant the special exception.

MotionSpear/Hoar To grant the special exception subject to the requirement that there be no storage of construction material, equipment, or debris on the property west of the barn (except during the conversion of the barn to residential use). All were in favor.

Case #10/9/07–1 — Moheban/Edenfield

Steven Moheban / Senator Development LLC (owner) and Lisa Ann Edenfield (applicant) have applied for a special exception under the terms of Section 6.6.1 of the Wilton Zoning Ordinance, to permit child care as a home occupation at Lot F–98–1, 195 Isaac Frye Highway.

The applicant was not present and there was no one representing the applicant present. According to the Wilton ZBA Rules of Procedure, which Faiman read, “If an applicant fails to appear at a scheduled hearing, without informing the chairperson in advance, the application will be deemed to have been withdrawn without prejudice. The applicant may re-submit the original application but must repay all fees.”

Case #10/9/07 – 2 — Peter and Stephanie Ouellette

The Peter and Stephanie Ouellette Family Revocable Trust has applied for a variance to Sections 4.2.1 and 6.2.5 of the Wilton Zoning Ordinance, to permit the replacement of an existing sewage disposal system which is located within the building setback and Wetland Conservation District setback lines.

Faiman announced that Eckstrom would be leaving to go home. Board members voting on the remaining cases were Roberts, Spear, Jowders, Faiman, and Hoar.

Dawn Tuomala, with Monadnock Survey, represented the applicants and presented plans. She explained that the current system is not in failure but the applicants are trying to sell their home, currently have a buyer, but must replace the system to meet state standards in order for a bank to mortgage the property. The design is for a combination 1,500/500 gallon septic tank and a 1,000 gallon SeptiTech septic tank near the house and for an effluent disposal system using Enviro-Septic pipe near the bottom of the driveway.

Ms. Tuomala stated that the house was built before zoning was adopted in Wilton. She presented the chain of title to corroborate that fact. She presented color photos, which showed the ledge outcroppings dominating most of the eastern edge of the property and the brook dominating the lower part of the western side of the driveway. The applicant wants to place the effluent disposal system in the southeast corner of the lot, which is relatively ledge-free, but is within the building setbacks and the Wetland Conservation District setback lines. The tanks are also within the building and Wetland Conservation District setbacks.

Spear asked if there was a required maintenance agreement. Ms. Tuomala said yes, it is required to be signed and on file with the state. Spear asked what happens to the SeptiTech system during a power outage. Ms. Tuomala said, unless you hook it up to a generator, it will stop working until the power comes back on, then pick up where it left off.

Ms. Tuomala read through the criteria for an area variance. In summary, due to the shape, size and topography of the lot, along with the existing brook located in the center of the lot, no other location for the placement of the system exists.

MotionSpear/Jowders To grant the requested variances to sections 6.2.5 and 4.2.1 for the reasons set forth by the applicant in the application. All voted in favor.
MotionJowders/Spear To extend the meeting to 11 p.m. All were in favor.

Case #10/9/07–3 — E&T’s United Venture, Inc./L.A. Limousine Service, Inc.

E&T‘s United Venture, Inc. (owner) and L.A. Limousine Service, Inc. (applicant) have applied for: (1) variances to sections 5.2.3 and 11.6 of the Wilton Zoning Ordinance, to allow the parking of one bus along the property line, and the placement of drainage structures within the wetland setback area, on Lot L–27, 223 Gibbons Highway; (2) variances to sections 5.2.3 and of the Ordinance, to allow for the construction of a sign on the property larger than allowed by the Ordinance; (3) a variance to section 5.1 of the Ordinance, to allow the use of a parcel of land recently added to Lot L–27 in accordance with the variance granted in ZBA Case #7/11/97–2, which allowed the use of Lot L–27 “for an office and garage for the rental of motor vehicles and transportation services (limousine service) and light vehicle repairs.”

Variance to Section 5.1

Dawn Tuomala, with Monadnock Survey, represented the applicant and presented a number of plans showing the lot line adjustment that L – 27 has undergone in August of 2007. The town sold approximately .447 acres to the applicant that abuts the back of her land, increasing her property to .807 acres. Ms. Tuomala explained that the applicant would like to expand the business to the newly acquired land but for the same use as was approved in a variance in 1997 – an office and garage for the rental of motor vehicle and transportation services, limousine service, and light vehicle repair. She said the property is in the Residential District, some of the new land in the back is in the Wetland Protection District. She read through the use variance criteria.

Faiman said the business looks quite different from what the board approved in 1997. Back then the minutes reflect that the business had four limousines and two town cars, and the owner, Christine Benson said that no more than one more car could be added to the fleet or the business would have to move.

The site plan from 1997 shows 17 parking spaces. The new proposed site plan shows 39 parking spaces and a storage area. Roberts asked what the storage area was for. Ms. Benson said that she is hoping to store her father’s concession trailers, that are now on the back of the lot, in a covered area.

Faiman said storage of concession trailers was not allowed as part of any variance that the ZBA has granted.

Spear suggested some kind of wooden screening so that the trailers couldn’t be seen from the road or abutting properties. He asked Ms. Benson how many there were. She said there was a truck and three trailers.

Hoar asked how many vehicles the applicant currently has. She answered 13 with the bus, and not including her father’s trailers.

Faiman said that when the board granted the variance in 1997, board members had a picture of what they were approving based on what Ms. Benson told the board back then. And one of the things that she said back then was that she had six cars and she could imagine going to seven, but there wouldn’t be any room for anything more than that. Now you’ve just told us that you’re running 13. So the operation is twice as big as you told us it could possibly become, he said.

Spear asked if there had been any complaints from neighbors. Faiman said there had been. He looked up the minutes from a hearing in 2003 and read one excerpt from an abutter who claimed that Ms. Benson did not maintain the fence.

Board members decided a site visit would be a good idea. Saturday, November 3, 2007 at 9 a.m. was chosen as the date.

MotionSpear/Jowders To continue the case to the November 13th meeting. All were in favor.
MotionSpear/Roberts To adjourn the meeting. All were in favor.

The meeting adjourned at 11:15 p.m.

Submitted by Diane Nilsson

Posted October 18, 2007