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April 13, 2010
|Board Members||Chairperson Neil Faiman; members Andy Hoar, Joe Poisson, Carol Roberts, Jim Tuttle and Alternate Joanna Eckstrom.|
Chairman Faiman called the meeting to order at 7:35 p.m. and explained that the Board will not begin any new cases after 10:00 p.m. and they will adjourn at 10:30 p.m. unless the Board decides to do otherwise. He noted that they any remaining cases can be continued to the next meeting or to a special meeting. Chairman Faiman then introduced the Board Members and explained that Ms. Eckstrom will sit on three of the cases but on the others she will not be voting.
Minutes — March 9, 2010
A MOTION was made by Mr. Tuttle and SECONDED by Ms. Roberts to approved the minutes of March 9, 2010 as amended.
Voting: 5 ayes; motion carried unanimously.
Case #4/13/10–1 — Donald H Sienkiewicz
Mr. Faiman explained that Donald H. Sienkiewicz has applied for a special exception under the terms of section 6.6 of the Wilton Zoning Ordinance, to permit a law practice as a home occupation on Lot H-66, 110 Isaac Frye Highway.
Donald Sienkiewicz appeared before the Board and explained that he is asking for a variance of 6.6, 4.4, 4.6, and 5.3.1 at 110 Issac Frye Highway at which he is the home owner. He explained that he has been practicing out of his house for a year since he was laid off and he sees three or four clients every month there. He explained that there is a room off the back of the house that has a separate entrance off the driveway. He also noted that the only employees would be himself and a possible secretary.
In response to a question from Mr. Faiman, Mr. Sienkiewicz stated that clients only come during the week between 9:00 am and 5:00 pm and occasionally on Saturdays.
In response to a question from Mr. Hoar, Mr. Sienkiewicz submitted a picture of his proposed sign and noted that it is a little bigger than a mailbox.
In response to a question from Mr. Faiman, Mr. Sienkiewicz explained that there is parking in front of the garage and he can fit three extra cars in the driveway. He noted that the most he has had is two client cars at the same time.
Mr. Faiman noted that the applicant would need to find a permanent parking spot if he were to get a secretary.
Mr. Sienkiewicz stated that there are two spots in garage, two spots in front of the garage, two spots on the side of the driveway and one higher up on the driveway.
In response to a question from Mr. Poisson, Mr. Sienkiewicz stated that if he gets enough business to necessitate hiring another lawyer he will look for space out of his home.
In response to a question from Ms. Roberts, Mr. Sienkiewicz stated that the office cannot be seen from the street.
In response to a question from Mr. Hoar, Mr. Sienkiewicz stated that the office makes up 1/7th of the house area.
In response to a question from Ms. Eckstrom, Mr. Sienkiewicz explained that the space is only used by him as an office now.
Mr. Tuttle suggested that no lighted signs be allowed.
In response to a question from Ms. Eckstrom, Mr. Sienkiewicz stated that his business is very unobtrusive as one cannot tell if he has a friend or a client at the house and he would like to have the ability to meet with a client on Saturday in an emergency.
A MOTION was made by Mr. Tuttle and SECONDED by Ms. Roberts to grant the special exception subject to the following conditions:
- Business hours are restricted to Monday through Saturday from 9:00 a.m. and 5:00 p.m.
- Three parking spaces shall be provided in the driveway
- The configuration of the site is as shown on the plan
Voting: 5 ayes; motion carried unanimously.
Case #3/09/10–2 — and 4/13/10-2 DJF Properties, LLC
Mr. Faiman stated that DJF Properties, LLC, has appealed the issuance of a Cease and Desist Order by the Wilton Building Inspector which finds that the existing dwelling on Lot J-23, 14 Whiting Hill Road, is limited to two dwelling units, requires the applicant to cease work on the building without a building permit, and indicates that no building permit will be issued for work on more than two apartments in the building. He noted that this case was continued from last month's meeting. He also explained that DJF Properties, LLC, has applied for variances to sections 5.1(c) and 5.2.1 of the Wilton Zoning Ordinance, to allow four dwelling units in the existing dwelling on Lot J-23, 14 Whiting Hill Road.
Mr. Faiman explained that Ms. Roberts is the head of the library which is an abutter on the property and is therefore stepping off the case.
Joan Tuttle stated that she feels that Ms. Eckstrom should also step down because she is in cohorts with the library.
Mr. McKenney stated that the applicant has no objection with the formation of the Board if Ms. Roberts recuses herself and Ms. Eckstrom is a voting member.
Ms. Tuttle stated that Ms. Eckstrom could be prejudiced and her vote would be negligent.
Mr. McKenney noted that legally the library is not an abutter but they were noticed.
Ms. Eckstrom asked for a poll of the Board and all members felt it was appropriate for her to sit on the case.
Carol Roberts left the Board as a voting member.
Mr. Faiman noted that the Zoning Board has received a letter from the library and he will read it into the record during the public input part of the process.
Mr. McKenney asked that the cases be heard separately with the appeal following the variances and the Board agreed.
Mr. McKenney submitted a plot plan and an amended reasoning for the variance to the Board. He explained that the applicant is requesting relief from two ordinances as the property has been assessed as a five unit property as the tax card reflects, the building permit files shows permits from 1996 and 1997 suggesting that the site has been multi unit, and water services has the site as having three units. He further explained that the applicant purchased the property in December of 2009 with the understanding that the property consisted of five units; three apartments and two one room apartments that share a bath. He noted that the ordinance does not allow for five units but the real estate agent contacted the Building Inspector prior to the sale to verify that there were indeed five units and the Building Inspector referred to the tax card which indicated that there are five units. Mr. McKenney stated that it was not until after the sale that they discovered that the property has only been approved for only two units. He noted that the applicant has agreed to go from five units to four units and that is why they are before the Board tonight. He explained that there are four parking spaces in a garage and two currently existing spaces at the end of the driveway. He also noted that they are proposing four additional parking spaces so there will be a total of 10; allowing for two guest spots. Mr. McKenney stated that the structure now is not in very good shape so the applicant is currently renovating, with a building permit, two of the units. He explained that the foot print will not change nor will the exterior façade except for painting and residing but it will stay the same architecturally and will fit with the neighborhood as it does now. He stated that the ordinance allows for one dwelling per half acre which is more appropriate for a more rural area rather than downtown.
In response to a question from Mr. Hoar, the applicant's real estate agent explained that the property will have one three bedroom apartment and three two bedroom apartments each with their own bath and laundry facilities.
In response to a question from Ms. Eckstrom, the agent stated that each apartment has its own entrance.
In response to a question from Mr. Faiman, the agent stated that there is about 4700 SF.
Ms. Eckstom stated that the tax card shows 3971 SF of living space.
In response to a question from Ms. Ecstrom Mr. McKenney explained that there is an existing gravel driveway currently that would access the four parking spaces, which would be to the left of the driveway, and there is sufficient area for cars to back out and turn around.
Ms. Tuttle noted that the third floor and second floor apartments share an entrance through the porch.
The applicant's real estate agent stated that the second and third floor share access through the porch and also down the stairs to the Whiting Hill Road side of the house. He stated that on the first floor there is a one bedroom and a two bedroom apartment, on the second floor there is a three bedroom apartment and there is a two bedroom apartment on the third floor.
Mr. McKenney explained that the plan is to take the two individual rooms and convert them into one unit.
In response to a question from a Library Trustee, Mr. McKenney stated that the there will be four parking spots in the garage on Gregg Street and tenants would be required to park in the garage. He further explained that the garage is in terrible disrepair and not useable at the moment but tenants would have to be inside the garage to be legal.
In response to a question from Ms Eckstrom, Mr. McKenney stated that the applicant will draft the leases so that the unit itself will be assigned a garage space and they will not be able to gain access to their own space if they park in front of the garage doors.
In response to a comment from Ms. Tuttle, Mr. McKenney confirmed that the garage is one slab with no dividers.
In response to a question from Mr. Poisson, the applicant's real estate agent stated that there are two electrical two sockets but only one is currently in use and originally they were going to have one common socket for fire alarms, etc., and individual sockets for five units. He further explained that now there will be a total of five meters, one for each unit and one for common areas of the building. In response to a question from the public he stated that there were no tenants at the time of the closing.
In response to a question from Ms. Eckstrom, Mr. McKenney stated there are three water meters currently, so on additional meter would be needed so that each apartment has individual electric, water, and sewer metering.
Mr. McKenney reviewed the following criteria for granting the variance.
1.) Granting the variance would not be contrary to the public as the use will keep the taxation relatively the same and the public will be serviced by the maintaining of a rental property close to downtown.
2.) The use is not more intensive than the existing use, and in fact would be a little less, and will not create any additional impact on the neighborhood as it is will be four units instead of five.
3.) The applicant is requesting that the Board employ equitable and pragmatic considerations as the applicant had no knowledge of the constraints on the property.
4.) The building is being renovated and the exterior is going to be repaired so there will be no diminution in value.
5.) The building has been utilized in this manner for the last 13 years.
In response to a question from Mr. Faiman, Mr. McKenney explained that the building is unique to the extent that it's already a multi unit property and it is a very irregular shaped lot. He stated that there not similar lots in the areas.
Ms. Eckstrom noted that Lot 19 and 65 are both two family buildings and Mr. McKenney qualified his statement noting that there are no other four of five unit buildings in the area.
Ms. Eckstrom stated that she agrees that the proposal will not diminish the values in the area or the property as it will be reassessed for correct tax figures.
In response to a question from Mr. Tuttle as to green space requirements, Mr. Faiman stated that if the Board was considering this case as an exception for multi-family use the amount of green space would not be allowed but the Board is not being asked to consider that.
In response to a question from Mr. Tuttle, Mr. McKenney stated that the gravel driveway will remain gravel.
Ms. Tuttle noted that the building did not contain five apartments for the last 13 years as the last apartment was built two or three years ago. She stated that it was originally a single family home but was built up for family members. She also stated that she thinks the exterior is nice as it has brand new siding and windows.
In response to a question from Ms. Tuttle, the applicant's real estate agent stated that there was a furnace for the second floor and the third floor used electric. Mr. McKenney noted that the intention is for all the apartments to use electric heat.
Spencer Brookes, of the Conservation Commission, stated that he was concerned about the lot with regard to water and confirmed the importance of the gravel driveway remaining as gravel.
In response to a question from Stan Young, Library Trustee, Mr. McKenney stated that it will be the responsibility of the landlord to deal with snow removal. He stated that he does not know where the snow goes now but the structure has been there for decades and there will be a professional snow removal company. He stated that there is no place to store snow except at the very end of the driveways.
Mr. Faiman read a letter from the Library Trustees that expressed their concern that their parking area not be used during business hours for tenant parking. Mr. Faiman stated that he believes the applicant has addressed their intent with regard to parking.
In response to a question from Ms. Tuttle, the applicant's agent stated that the plan for garbage has not been solidified but he recommended that the tenants use the recycling center and he noted that the current dumpster is for construction debris. Ms. Tuttle noted that the garbage should not be on Gregg Street as the address of the property is Whiting Hill Road.
Mr. Faiman stated that he is concerned about a big house and a small lot on a unique intersection with two or three points of access. He stated that it is manageable but it feels tight. Mr. McKenney stated that the history is there and there have been five dwellings at that location previously.
The applicant's agent stated that this situation will be much better as everything will be uniform and more organized. He stated that he understands that previous tenants have been using the library parking lot but that will not happen anymore and any risk or hazards will be decreased. Mr. McKenney noted that four more parking spaces will be created.
In response to a question from Ms. Eckstrom, Mr. McKenney stated that the applicant plans on putting a sign that says "no parking in front of the garage doors" and this will all be defined in the leases with assigned parking and two guest parking spots.
Ms. Roberts stated that with regard to the "equitable and pragmatic analysis", not having knowledge of the zoning regulations is not an excuse. Mr. Faiman noted that this is the polite way of saying please take into account the issues that have nothing to do with the property but that the applicant relied on information from the town that now has him in this situation.
Ms. Tuttle stated that before the Gibbons bought the property it was a two family house.
Mr. Tuttle noted that there are only two buildings up the street and there is some traffic on Whiting Hill Road because of the school but that traffic is all going towards Carnival Hill on that side of the street.
In response to a question from Ms. Eckstrom, Mr. Faiman stated that there is an existing curb cut.
A MOTION was made by Ms. Eckstrom and SECONDED by Mr. Hoar to close the hearing.
Voting: 5 ayes; motion carried unanimously.
Mr. Poisson stated that when the Gibbons lived at the property cars were scattered and the way that the applicant is trying to organize the property now is a good thing but he does not really like the options for when people visit.
Ms. Eckstrom explained that previously there was not an application for these dwellings but the applicant is taking steps to provide control.
Mr. Faiman noted that the Abbot house was a larger building with a much larger lot and allowing that variance was a hard decision for the Board and he questioned how this application could be a hard decision if they are only looking at the building.
Mr. Hoar noted that the situation all depends on the tenants.
Mr. Faiman explained that if the Board disregards the personal circumstances and considers just the variance he does not see a hardship in the classical sense and questioned if there is something about the lot that makes it special. He further explained that he is reluctant to say that the situation should be continued because of an illegal use.
Ms. Eckstrom noted that on the corner of Maple and Whiting Hill Road is a 1/10 acre lot with 7 to 10 apartments.
Mr. Tuttle noted that the yellow apartments have 18 units and the parking is all on the Whiting Hill Road side of the building. He also noted that the Abbot house is not as affordable as these units will be.
Mr. Hoar stated that he would not allow the variance if he were to just consider the lot and noted that the traffic is going to be an issue even if there is only three apartments as it is very dense.
Ms. Eckstrom stated that she would not allow this building as a new unit but this building has a history of this density.
Mr. Hoar stated that legally this property has been a two unit dwelling and questioned whether the Board wanted to cauterized any illegal situation that has been existing for a period of time.
Mr. Faiman stated that his choice would be to split the difference, make everyone unhappy, and agree to three units. He stated that he cannot see the justification for allowing four units and he is reluctant to find hardship or special circumstances. He also explained that that the applicant's claim that they did not have knowledge of the prohibitive zoning regulations is not valid as it is public knowledge. He stated that he does not see hardship or special circumstance so he would not approve the variance.
Mr. Tuttle stated that the Board's decision should be based on the neighborhood specifically and the applicant can follow up on the tax card issue with the town.
Ms. Eckstrom stated that the applicant could have gone through the ordinances but he did speak to the Building Inspector and look at the tax card.
Mr. Faiman stated that it is his understanding that the Building Inspector said that he did not know about the number of units and he referred the applicant to the tax card.
Ms. Eckstrom read the minutes from last month and explained that the applicant did rely on the information from the town and she feels the town needs to accept some responsibility.
Mr. Hoar stated that Ms. Eckstrom's point is not a concern of the Zoning Board.
Ms. Eckstrom stated that there is a variance to be considered and the Board can deal with the situation.
A MOTION was made by Ms. Eckstrom to grant the variance for four units. The motion was NOT SECONDED.
A MOTION was made by Mr. Tuttle and SECONDED by Mr. Hoar to reopen the hearing and ask the applicant if they would prefer a denial or an alternative variance for three units.
Voting: 5 ayes; motion carried unanimously.
In response to a question from Mr. Faiman, Mr. McKenney stated that he would prefer that the Board would not issue an outright denial and asked, regardless of the vote, that the Board continue the Administrative Appeal.
A MOTION was made by Ms. Eckstrom and SECONDED by Mr. Tuttle to grant the variance with three units and require that six of the parking spaces provided and that there be no off premise parking.
Voting: 4 ayes; motion carried with Mr. Hoar opposed.
A MOTION was made by Ms. Eckstrom and SECONDED by Mr. Hoar to continue the Administrative Appeal application.
Voting: 5 ayes; motion carried unanimously.
Mr. Faiman noted that any plan with more with than two units requires Planning Board site plan approval.
Mr. McKenney stated that section C, which required the variance, does not require site plan approval.
Mr. Faiman explained that section C does not say that there are circumstances where one can have three dwelling units without Planning Board approval.
Mr. McKenney stated that, as the Board knows, the applicant has done as much as he can to make this work before the Board and it is non-sensical to have to go through the Planning Board to go from five units to three units and suggested that Town Counsel be consulted.
Case #4/13/10–4 — Deborah and Gary Jensen
Carol Roberts stepped off the Board as a voting member.
Mr. Faiman stated that Deborah and Gary Jensen have applied for a special exception under section 17.3 of the Wilton Zoning Ordinance, to permit the replacement of an existing mobile home on Lot L-16 and L-17, 14 Seagroves, with a larger mobile home that will be closer to a lot line than otherwise permitted by the Ordinance.
Mr. Jenson explained that their mobile home sits 8' off the lot line and there is no other way to put their new house as they want to change their 14' x 66' single wide to 28' x 60' double wide. He stated that the existing house is 8' off the lot line and he cannot move the house anywhere else to get the full 15' of set back. He also noted that they own Lot 16, Lot 17, and Tract 2.
In response to a question from Mr. Eckstrom, Mr. Jennings stated that currently the garage exists on the lot.
In response to a question from Mr. Faiman, Mr. Jennings stated that if they move the home they would not have enough room off the roadway.
In response to a question from Mr. Faiman, Mr. Jennings stated that the mobile home would be too close to the boundary with Lot 6, although he noted that they would not be encroaching any closer than they are currently.
In response to a question from Mr. Faiman, Mr. Jennings stated that the mobile home has been there since 1975 and the septic system was replaced seven years ago.
A MOTION was made by Mr. Tuttle, and SECONDED by Mr. Eckstrom to grant the special exception allowing the applicant to replace the existing home.
Voting: 5 ayes; motion carried unanimously.
Case #4/13/10–3 — T. Arthur Babineau 1997 Trust
Chairman Faiman stated that The T. Arthur Babineau 1997 Trust (Marie L. Sirois and Patricia Babineau, Trustees) has applied for a variance to section 6.2.3 of the Wilton Zoning Ordinance, to permit a reconfiguration of the lot lines of lots D-20, D-21, D-22, D-70, D-71, and D-83, on Holt Road and/or Putnam Hill Road, which would result in six lots, none of which would have the class V road frontage required by the ordinance.
Chairman Faiman noted that this case is for Lot B 083 not D 083 as it was on the application. He stated that it is a mis-notification but heard no objections from the public or the applicant with hearing the case this evening.
Will Sullivan appeared for the applicant and explained that the applicant owns six parcels of land and currently one lot has some Class 5 road frontage and one has both Class 5 and Class 6 frontage. He explained that the applicant is asking for relief in order to reconfigure the existing six lots into six lots. The applicant is asking for a variance from the frontage requirement for four of the lots. He noted that the application will put in the stipulation that five out of the six lots can never be subdivided and the fifth lot cannot be sold for five years except to the High School.
Sam Proctor, appeared for the applicant, and presented a current map, noting that three of these lots were the subject of a sale to the Wilton Lyndeborough Coop in 2005. Since then they have been looking at ways to develop the land and they are proposing taking the same plan, consolidating and reconsolidating the site into six lots, one of which would be 56 acres and configured as an ideal lot for the school. He explained that the applicant would like to give the opportunity for the town to buy the lot if they want to. He noted that four of the proposed lots would have no frontage as four do not have frontage now.
In response to a question from Ms. Eckstrom, Mr. Proctor explained that one lot would come off of Putnam Hill Road and they have received permission from the Selectman to use this road. They would then propose a private way to the four non frontage lots.
In response to a question from Mr. Hoar, Mr. Proctor explained that the school only has one way in and out and with the additional lot they could put a road all through the land out to Holt Road as secondary access.
Mr. Sullivan submitted his argument to the Board noting that the application started with six lots and will end up with six lots with a different configuration that would not alter the neighborhood and in fact the applicant would be severely limited by not allowing any subdivision on five of the six lots.
He noted that one of the main reasons for this restriction is to prevent density in perpetuity. He also noted the Wilton Master Plan makes several references to keeping green space which this plan provides for. Further this plan would not change the value of the area because the number of lots would not change. Mr. Sullivan presented a calculation of the maximum number of lots that potentially the site could be subdivided into and noted it to be 35 lots and possibly 76 units.
In response to a question from Stanley Young, and abutter, Mr. Sullivan noted that the applicant needed a waiver from the Board of Selectman to use Putnam Hill Road before building and the applicant has received permission.
In response to a question from Jennifer Cassidy, Mr. Sullivan stated that the other lots would be taking access off of Holt Road.
In response to a question from LoVerme, Mr. Faiman explained that zoning ordinances are done with a broad brush, but sometimes they do not make sense when applied to individual lots and without variances some people may be deprived of the use of their property which is a unconstitutional restriction so variances allow for the Board to relax the rules as long as there are not a negative effects.
Pat Townsend, of Putnam Hill Road, stated that a road association is responsible for maintaining that part of the road and partnership to the association is limited to the lots that existed in 1980. She stated that the association should not be responsible for another land owner.
In response to a question from Scott Thompson, an abutter, as to who will maintain the private road for the four lots off of Holt Road, Mr. Sullivan explained that the applicant will have to go through Planning Board approval and whatever the Board says that has to be done will have to be done or the applicant will not get approval. Mr. Faiman explained that the applicant would still have to go through the Planning Board process which is typically involves quite a few months of review.
In response to a question from Mr. Thompson, Mr. Faiman explained that the applicant would have to come back for a wetland crossing variance.
The Board and the public discussed the permission granted by the Board of Selectman to take access from Putnam Hill Road.
Susan Manhort stated that she wanted to be sure the five smaller lots cannot be subdivided.
In response to a comment from Ms. LoVerme, Mr. Faiman explained that she was informed by the abutter notice she received and she will be informed again when the applicant goes before the Planning Board. Mr. Faiman further explained that the ZBA is like the function of a court, it applies the laws to particular situations and if someone disagrees the ZBA decision can be appealed to a higher court. An interested party can ask the ZBA to reconsider and then they can appeal to the Superior court and then to the New Hampshire Supreme Court.
In response to a Ms. Manhort, Mr. Faiman explained that one cannot develop a lot without road frontage and what the applicant is really asking for is the ability to access houses on those lots.
In response to a question from Ms. Manhort, Mr. Faiman stated that the applicant has submitted a document, signed by the Board of Selectman, that says that the applicant is allowed to gain access from Putnam Hill Road, and he noted that the Board of Selectman have the power to grant that right. He further explained that if the Zoning Board grants the variance it would not create the right to access if the applicant does not already have it, it would simply create a lot without access. He stated that the right to use Putnam Hill Road is provided by the Board of Selectman not the Zoning Board.
Linda Farington, of Putnam Hill Road, raised concern about construction damage on Putnam Hill Road and Ms. Eckstrom stated that the Planning Board would have jurisdiction over that issue.
Mr. Hoar that the applicant has permission to access a lot from Putnam Hill Road and there is an 83 acres lot there now.
Charlie McGettigan stated that he was a Selectman at the time that the Planning Board approved the subdivision the issue was taken to court to stop the subdivision but it failed and the court approved the subdivision.
In response to a question from Steve Perrell, an abutter, Mr. Sullivan explained that the applicant is proposing a lot on each side of the brook by Holt Road.
In response to a question from a member of the public, Mr. Faiman explained that today the applicant has six lots, most of which do not have any useful road frontage, and they want to still have six lots but in a more useful configuration. He further explained that most of the new lots will not have road frontage either and creating new lots which do not have road frontage requires a variance.
In response to a question from the public, Mr. Sullivan stated that the applicant is willing to legally bind the five lots from subdivision.
In response to a question from Gail Proctor, an abutter, Mr. Sullivan stated that the site will have private wells.
In response to a question from Darrell Markevance, of Holt Road, Mr. Sullivan stated that the private road would be 1100 to 1200'.
Mr. Faiman noted that there is a 600 foot rule but it applies to common drives.
Ms. Eckstrom stated that the applicant is not asking for the Zoning Board to determine the exact lengths or the roads rather only to be allowed to have an access point.
Mr. Faiman stated that he thinks that Mr. Markevance raises a good point, which does not mean that the Board has to decide about the lengths but rather the Board just needs to be specific that they are not waiving any other items.
Ingrid Howard stated that the land is beautiful and the applicant has been paying taxes since 1988. She also stated that land has been really creatively with dividing and they have been doing a really good job. She noted that she is concerned about Holt Road.
A MOTION was made by Mr. Hoar and SECONDED by Mr. Tuttle to continue the application to May 11, 2010.
Voting: 5 ayes; motion carried unanimously.
A MOTION was made by Mr. Hoar and SECONDED by Mr. Poisson to adjourn the meeting.
Voting: 5 ayes; motion carried unanimously.
Chairman Faiman declared the meeting adjourned at 11:00 p.m.
Heather Loewy Nichols
Draft Minutes Revision 1