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Minutes posted at this web site have not been checked for consistency with the printed minutes that are available in the Wilton Town Offices. If you need the definitive minutes of a ZBA meeting, please obtain the printed minutes from the town offices.

March 9, 2010

Board MembersChairperson Neil Faiman; members Andy Hoar, Joe Poisson, Carol Roberts, Jim Tuttle and Alternate Joanna Eckstrom.
  • 3/9/10 - 1 David and Merrilee Schwanke
  • 3/9/10-2 DJF Properties, LLC

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

Minutes — February 9, 2010

A MOTION was made by Ms. Roberts and SECONDED by Mr. Hoar to approve the minutes of February 9, 2010 as amended.

Voting: 5 ayes; motion carried with Ms. Eckstrom abstaining.

Case #3/9/10–1 — David and Merrilee Schwanke

Chairman Faiman explained that David and Merrilee Schwanke have applied for a variance to section 5.1(d) of the Wilton Zoning Ordinance, to permit the construction of a second dwelling unit in a detached garage on Lot H-110-2, 378 Captain Clark Highway. He also explained that the application noted that the district is residential but actual this lot is in the residential/agricultural district. He also reviewed the procedure that the Board will be following for this application.

Mr. Schwanke explained that they are requesting a variance to allow a dwelling on top of a garage that is not attached to the house and therefore considered a separate dwelling. He explained that they need to construct the garage 20 to 30 feet away from the house because of ledge that surrounds the house and construction of an attached garage would have required blasting. He stated that the garage will not affect the character of the neighborhood because the abutters cannot see it and it is so close to the house it seems like it is attached. He also noted that the apartment is consistent with the spirit of the ordinance and is secondary and subordinate to the main house.

Mr. Faiman noted that the hardship standards have changed as of January 1st and the current standard is essentially the Simplex standard that has been used for years restated.

In response to a question from Mr. Faiman, Mr. Schwanke stated that the hardship is the amount of ledge on their site and noted that the existing dwelling has a half basement and half crawl space due to the ledge and blasting the ledge would put the main house at risk.

In response to a question from Mr. Hoar, Mr. Schwanke stated that they are proposing a three car garage with a studio apartment that includes a bedroom, bath, and kitchenette. He noted that this apartment would not be used for rental but rather for their children and grandchildren.

In response to a question from Ms. Roberts, Mr. Schwanke stated that there is not an existing garage.

In response to a question from Ms. Eckstrom, Mr. Schwanke explained that, in theory, one could put the rooms of the side of the house but would be costly because the site drops off there.

In response to a question from Mr. Tuttle, Mr. Schwanke stated that the house is 99 feet across and 3800SF in area.

In response to a question from Ms. Eckstrom, Mr. Schwanke stated that he believes that the septic is adequate.

In response to a question from Mr. Tuttle, Mr. Schwanke stated that he is not sure how many bedrooms the leach field can handle.

Mr. Tuttle suggested that the septic system should be examined as it may require another tank and noted that there are hydraulic hammers that could chip the ledge away without blasting. Mr. Schwanke stated that this would be very costly and would be a hardship in and of itself. Mr. Tuttle noted that the ZBA does not consider cost as a hardship.

Ms. Roberts noted that there is 200' of frontage and the surrounding lots are not inhabited.

In response to a question from Mr. Faiman, Mrs. Schwanke stated that the house is 600 or 700 feet from the property line.

Mr. Faiman explained that a duplex would be allowed in the ordinance and if the applicant wanted to they could put another house in the current house. He further explained that the issue is the separate second dwelling unit that is prohibited. Mr. Faiman also read the definition of a dwelling. Mr. Hoar noted that the applicant's plans definitely fall into the definition of dwelling.

In response to a question from Ms. Roberts, Mr. Schwanke stated that it is their intention to use the dwelling for visiting children.

Mr. Faiman noted that the Board has to consider the application assuming that it could be sold or rented out.

In response to a question from Ms. Roberts, Mr. Schwanke stated that the apartment is 50' x 24' or 1200SF.

Ms. Eckstrom noted that the Board did allow another such dwelling but only for someone who primarily lived in the main house.

Mr. Tuttle noted that the applicant could put another dwelling on the second lot they own and also suggested that the septic and life safety issues be reviewed.

In response to a question from Ms. Eckstrom, Mr. Schwanke stated that the leach field is on the left side of property just past the house.

Ms. Roberts noted that she would be more comfortable with a plan that had measurements on it.

Mr. Faiman stated that while the application is casual he is willing to accept the representations that the structure is no less than 100' from anything else and noted that the site is over 10 acres.

Mr. Tuttle suggested the applicant could submit an as-built plan.

Dick Rockwood stated that he is an abutter and he can walk his property line and not see the applicant's house. Mr. Rockwood stated that any future conditions the Zoning Board puts on the site are worthless and asked who is going to police the conditions if the house were to be sold. He also noted that there have been some inconsistencies as to when a separate dwelling has been allowed and suggested that the Zoning Board should ask the Planning Board to change the ordinance with certain conditions. He further stated that as an abutter he has no objection to the proposal.

John Shepardson, Building Inspector, stated that the town may hold a septic plan for this house.

Mr. Hoar stated that the conditions need to be noted on the deed but he feels that a more formal drawing with dimensions and information about the septic system is needed before making a decision. Ms. Roberts agreed.

Mr. Faiman noted that the applicant would still have to go to the Building Inspector who would not issue a permit without the proper requirements such as the septic system.

Discussion ensued as to whether the Board needed to consider the septic system at all.

Discussion ensued as to whether it is appropriate to restrict the use of the separate dwelling to family only.

A MOTION was made by Ms. Roberts and SECONDED by Mr. Poisson to grant the variance to allow a dwelling in a detached garage as described in the drawing and application with the inclusion of a formalized as built septic plan.

Voting: 5 ayes; motion carried unanimously.

Case #3/9/10–2 — DJF Properties, LLC

Ms. Roberts noted for the Board and the applicant that she is married to the Building Inspector and questioned whether this is a conflict of interest. Mr. Faiman noted that the library, which Ms. Roberts of the director of, is also a very close abutter. Mr. McKenney, who appeared for the applicant, stated that the applicant is not concerned about a conflict of interest. The Board was polled and they did not feel that Ms. Roberts should recuse herself.

Mr. McKenney presented a memorandum to the Board and explained that this is an investment property for the applicant and his intent was to purchase a multi-family property. He stated that the applicant thought he was purchasing a building with three units plus two individual rooms that share a bathroom. He stated that the purchasing agent contacted the town and the Building Inspector looked at the tax card which reflects three units and two rooms. Mr. McKenney explained that there have been two prior requests for building permits, over the last ten years, which increased the access and bathrooms to the property. He also explained that if the Building Inspector had not made the representations he did, his client would not have bought the building.

Mr. Shepardson explained that when he was contacted he told the applicant that he was very new and at the time he did not know that the tax card was not a legal description of the property and it was not his intention to mislead anyone. He further explained that after more investigation he found that the former owner applied for building permits and described the property as a two apartment dwelling and permits and expansions were granted and but the applications never said that the owner was increasing the number of apartments. Mr. Shepardson explained that the ordinance states that the most stringent codes apply and the International Building Code is more stringent and needs to be applied. Lastly he noted that there was a request to work without permits which should not be allowed.

Mr. McKenney stated that the sewer card shows three apartments and he understands that certain work needs a permit but some remodeling or repairing work can be done without a permit. He noted that this building has been in existence for a long time and has been in the same use for some time.

Mr. Tuttle noted that the Water Department has recorded that building as having two residences and the Sewer Department shows it as having three residences.

In response to a question from Ms. Roberts, Mr. Fuse explained that he is trying to upgrade the apartments so they are efficient and people can afford to live there. He explained that the drywall was beat up and many rooms had no insulation; no structures have been taken out but the drywall has been removed. He also noted that he removed a lot of garbage that was left in the house when they purchased it.

Mr. Faiman stated that he talked to Town Counsel and his advice was that if it were a question as to whether the use in question is a legal use such as a preexisting use, that would fall within the authority of the Zoning Board, however if the legal argument is that the owner has a right to do something despite it not being allowed then the issue falls outside the Zoning Board prevue.

In response to a question from Ms. Roberts, Mr. Faiman stated that presumably the governing body for this matter is the superior court.

Mr. McKenney stated that the Zoning Board is the only local body of law and the applicant had to appeal to the Zoning Board in order to preserve his rights and he is hoping to resolve this matter at the town level and avoid litigation. He further noted that the applicant is new to town and wants to come to a resolution. He suggested that RSA 674.33 would allow the Board to make a determination on the issue.

Mr. Hoar stated that he is not comfortable going against the advice of town counsel.

Ms. Eckstrom noted that the Board has previously relied on the tax assessment cards.

Mr. Faiman noted that one cannot make a use legal by issuing a permit that doesn't agree with the zoning and the Zoning Board's authority is to apply the zoning ordinance.

Mr. McKenney suggested that a possible resolution would be for the Board to continue the appeal and discuss informally what relief it would be willing to grant.

Mr. Faiman explained that if the appeal is denied the applicant has 30 days to go to court but if the Board left the issue open it would hold off the start of the 30 day countdown. He also noted that it seems that it would not be unreasonable to file a variance for a three family use.

In response to a question from Mr. Faiman, Mr. Shepardson stated that a 1997 application stated that the house has two apartments and no subsequent applications for additional dwellings were filed.

Mr. Faiman suggested that the applicant could use 5.3.7 for four dwellings or just apply for a variance to 5.1.C. He also noted that 5.2.1 would allow for the Zoning Board to permit any number of units.

Mr. Tuttle noted that the applicant can proceed for a permit for the two apartments and then rent those out until the rest of the issues are resolved.

Mr. Faiman explained that they are being asked to continue the application for the appeal to allow the applicant to take whatever action they find appropriate and meanwhile they can continue on getting a permit to work on the two apartments.

In response to a question from Mr. McKenney, Mr. Faiman stated that a new application will require new fees.

A MOTION was made by Mr. Hoar and SECONDED by Mr. Tuttle to continue the application for Administrative Appeal to April 13, 2010.

Voting: 5 ayes; motion carried unanimously.


A MOTION was made by Mr. Hoar, and SECONDED by Mr. Tuttle to adjourn the meeting.

Voting: 5 ayes; motion carried unanimously.

Chairman Faiman declared the meeting adjourned at 10:00 p.m.

Respectfully Submitted,
Heather Loewy Nichols
Page 2 of 4
Wilton ZBA
Draft Minutes Revision 2