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May 11, 2010
|Board Members||Chairperson Neil Faiman; members Andy Hoar, Carol Roberts, Jim Tuttle and Alternate Joanna Eckstrom.|
Chairman Faiman called the meeting to order at 7:30 p.m.
Chairman Faiman noted that due to a computer issue there are no minutes from last meeting so the appeal deadline for cases that were decided last month is extended for 30 days after the minutes become available and the Board will be approving the minutes during the June meeting. He then introduced the Board Members noting that Ms. Eckstrom is sitting tonight as a full Board Member.
Case #3/09/10–2 — 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 heard in detail during the March meeting and continued from the April 13th meeting.
Mr. McKenney appeared for the applicant and asked that the Board act on the appeal as he has no more information to add.
Carol Roberts left the Board as a voting member.
Chairman Faiman called for public comment and heard none.
In response to a question from Mr. Hoar, Mr. Faiman explained that the appeal has two components the first being that of municipal estoppel and it is Town Counsel's opinion that this component is not in the jurisdiction of the Zoning Board. He further explained that the second component was that no building permit was required for the renovation work.
In response to a question from Ms. Eckstrom, Mr. Faiman confirmed that it is Town Counsel's opinion that this Board has no authority to decide an estoppel argument and should deny the appeal, not because it is without merit, but rather because they have no authority.
In response to a question from Ms. Eckstrom, Mr. Faiman stated that the authority lies with the Superior Court of New Hampshire.
Mr. Faiman stated that the Wilton Zoning Ordinance states that a building permit is not required for existing construction but the state law says that it is and the ordinance says that the stricter of the two standards will be enforced.
In response to a question from Mr. Tuttle, Mr. Faiman stated that the applicant has received a variance that allows for three units and granting the appeal would give them more then what the variance gave them.
Mr. Faiman suggested that the Board deny the Appeal of Administrative decision because the Board does not have any authority to decide on the estoppel issue and because the language in the ordinance that does not require permits is superseded by the state law that does required one.
The Board reviewed the specific language in the law including RSA 676.11 and 676.13.
A MOTION was made by Mr. Hoar and SECONDED by Mr. Tuttle to deny the Appeal of Administrative Decision due to the Board's lack of authority and the fact that the language in section 19.3 of the Wilton Ordinance is inconsistent with and therefore overruled by language of state statue.
Voting: 4 ayes; motion carried unanimously.
Chairman Faiman declared the appeal to be denied.
Case #4/13/10–3 — T. Arthur Babineau 1997 Trust
Chairman Faiman explained that this case was continued from the April 13th meeting and the Board spent close to an hour at the April meeting hearing comment. He explained that the applicant has six lots, some with no road frontage, some with substandard road frontage, and none of which that have enough road frontage to meet the ordinance, however some of them are buildable lots. He further explained that the applicant would like to reconfigure the lots so that they still end up with six lots that still do not have the road frontage, so the applicant is asking for a variance to inherit their current grandfather status.
Mr. Faiman explained that last month there was a lot of conversation regarding Putnam Hill Road and the effect that new houses would have on the existing residences. He stated that if there is new information the Board will hear it but they do not need a repeat of the comments from last month.
Mr. Sullivan agreed with Mr. Faiman's synopsis noting that he does not have much more to say as last month he thoroughly covered whatever needed to be covered and asked the Board if they had any questions.
Mr. Faiman read a letter from Mr. Hurley, of 67 Holt Road, stating that Holt Road is a well developed dead end road that is quite narrow and in ill repair presently. The letter stated that any extra cars would add to a less than desirable situation and he would like to see a completed plan.
Mr. Faiman noted that, if the variance is approved, five of the lots will not be subdividable and no development will on occur on the remaining large lot for 5 years to allow for the town to purchase the land for the school.
In response to a question from the public, Mr. Sullivan stated that there are no plans to ever connect Route 31 to Holt Road and noted that if the 50 acre tract were to be subdivided again the Planning Board would require a lot of road upgrades.
In response to a question from Ms. Eckstrom, Mr. Sullivan stated that there are currently four houses using Holt Road, but the state would like to have a secondary ingress and egress to the high school and Holt Road could provide that emergency access.
Chairman Faiman called for public comment.
In response to a question from Tori Clarkson, an abutter, Mr. Faiman stated that, with the exception of the big lot, the lots cannot be further subdivided.
In response to a question from Ms. Clarkson, Mr. Sullivan stated that he has not discussed with the applicant whether single family homes would be put on the lots.
Mr. Faiman explained that essentially the applicant is trying to pass on the current grandfather situation and the ordinance requires a single family building if the lot existed before Zoning and it does not have area or frontage, providing that all the other requirements are met.
Al LoVerme, of Holt Road, stated that he has lived on Holt Road for 50 years and he bought the last house. He stated that the road got extended and the people who bought the last house paid to have the road extended. He further explained that he is scared of what could happen if the lot was subdivided as the road would have to be wider. He stated that children walk up and down the road and a potential $12 to15 million dollars could have a gated community with their own roads that connect to the highway. He stated that the abutters do not have the money to fight this plan.
Darrell Markevance, of Holt Road, explained that there are places where the road is only 14 feet wide and four new houses bring the potential of eight vehicles and more kids. He stated that speeding is already an issue on the road and he thinks that someone has to pay for the improvements to the road as the road was never meant to have more houses on it.
Ms. Loverme stated that when the applicant bought the property they knew that it was land locked and now they have gotten a bunch of people together and the applicant is saying they are going to build whether the public agrees or not and it's not fair.
Mr. Hurley questioned whether the fire department had been consulted as he thinks there is a footage limit on how long a private road can be. He also asked for assurances in the deed that the five lots cannot be subdivided.
Mr. Faiman stated that if no future subdivision is a condition of approval then that is a permanent restriction, but anyone can always come back to the town and ask for a change.
Mr. Sullivan stated that once the applicant sold the first lot they are locked into the Zoning Board approval and they would have to come back before the Zoning Board to get a new variance although, he noted, he cannot imagine the person presenting that would get a warm reception.
Mr. Hurley questioned what would happen if the land was not sold to the school as has already been tried.
Mr. Faiman explained that what the Board is being asked to approve is a reconfiguration of six lots and to sweeten the pot the offer is being made that five of the lots have no future subdivision and for five years the remaining lot would be offered to the town and not subdivided.
In response to a question from Mr. Hurley, Mr. Faiman explained that the applicant is not being granted a future subdivision and five years from now they would be in the same state as they are currently, and they will need to apply for a subdivision approval from the Planning Board. He further noted that the Planning Board would require that the applicant provide town standard roads.
Ms. Eckstrom explained that the Zoning Board is not being asked for the placement of any road or house sites but rather they are just being asked to allow the reconfiguration of the six lots with reduced frontage. She explained that the next step would be the more lengthy Planning Board approval and noted that the Planning Board will require items such as a layout of the roads, additional utility services, and wetland crossings.
Mr. Faiman further explained that the Planning Board goes into a much more in depth process, for instance they would never sign off on a plan without fire department approval and appropriate roads.
In response to a question from Ms. LoVerme, Mr. Faiman explained that anyone can come to the Zoning Board and ask for anything but that does not mean that they will get it.
Ms. Eckstrom stated that in the future applicants can come back to the Zoning board but the Board is not being asked to approve 65 lots now, rather they are being asked to approve six lots and the applicant already has six buildable lots.
In response to a question from Ms. LoVerme, Mr. Faiman explained that the applicant can build on the site because the Zoning Ordinance allows them to.
Ms. Eckstrom explained that the applicant has the legal right in the town of Wilton to put a single residence on the lot and to find access.
Stanley Young stated that the Board would be setting a dangerous precedent if they granted the variance; without extra ordinary circumstances they would be opening the door for more of the cases which would go against the wishes of the town's people who voted for the ordinances.
Archie Thompson, an abutter, stated that he has lived on Holt Road for 40 years and he paid the town to bring the road and the water down. He noted that there are quite a few little kids going down that road and if trucks roll in and out of that place at 5 or 6 AM there is going to be trouble. He further noted that there are 10 to 15 children waiting on the corner for the bus. He stated that the applicant can build their own house but does not think they need to subdivide.
A MOTION was made by Mr. Hoar and SECONDED by Mr. Tuttle to close the hearing.
Voting: 5 ayes; motion carried.
Mr. Faiman explained that now that everyone has had the opportunity to express their opinion, at this point the Board will be consider the application with the possibility of reopening if they have questions.
Ms. Roberts stated that the applicant has six lots that are inaccessible by legal road.
Mr. Faiman stated that a couple of the lots have nominal frontage on Holt Road and with the reconfiguration they will have the same frontage as they have now.
Mr. Roberts questioned why the applicant would want a variance to reconfigure the lots but not to change the way the lots are accessing frontage. She also noted that it does not seem rational to agree to six lots without the required frontage.
Mr. Faiman stated that it seems that there are two ways to look at the situation; on the one hand they have six lots which are awkward but legally buildable. The applicant would have to run a private access road and grant an easement over the lots that do have frontage to build on the lots that do not have frontage and they would have to build private drives but the ordinance gives them the right to do that so the applicant is not asking for anything that they don't have today. Mr. Faiman further explained that the other way to consider the situation is that the lots, as they stand today, are not really very plausible lots; technically they could be on but would they be. If he stated that if the answer is no then the Board would be effectively allowing for more development than would take place without the variance.
In response to a question from Ms. Eckstrom, Mr. Faiman stated that the big lot has 60 acres currently but he is not sure how the applicant would gain access to it.
In response to a question from Mr. Tuttle, Mr. Sullivan stated that nothing has happened on Lot D 40 at this point.
Mr. Faiman stated that practically speaking there are three large usable lots.
Ms. Roberts stated that she thinks that approving the variance would make a bad matter worse.
In response to a question from Ms. Eckstrom as to whether the Planning Board could require that the applicant use part of Lot D-70 to build a public road to town standards, Mr. Faiman explained that the applicant will have to propose a configuration of access and driveways which will make all the lots accessible.
In response to a question from Ms. Eckstrom, Mr. Faiman stated that he is not sure that the Planning Board would require that roads be built to town standard for a subdivision of this size.
In response to a question from Ms. Eckstrom, Mr. Faiman explained that the Planning Board could require a bond for the protection of the road and the town almost always requires some offsite improvements generally for improvements on the road they are using for access.
Ms. Eckstrom stated that the Board could enforce a condition of no further subdivision on D-70 without access from somewhere other than Holt Road.
Mr. Faiman stated that he feels that the proposal is a more desirable lot configuration and he thinks that approving the variance will be allowing for more development on these lots.
Ms. Eckstrom feels that the proposal allows the applicant to access their property and she would like to see less development on all the lots, such as offered by the applicant. She stated that she feels that the proposal is a more reasonable alignment of the lots.
Mr. Faiman stated that while there are other land lock lots in town, he does not know if there is another area with this much area of land that has no reasonable access.
The Conservation Commission stated that they have no problem in the reconfiguration of the lots; they did discuss this site at a recent meeting but it had nothing to do with the current application.
Mr. Hoar expressed concern that Holt Road is very narrow with a very narrow right of way and some of the houses are built very close to the road.
Mr. Faiman explained that the problem is not just the size of lot, or the land locked issue, but also that there is no good access point to the lots. He further noted that the applicant could extend Holt Road at their own expense.
Mr. Hoar questioned whether the applicant would then run into length requirement issues and also noted that he is concerned about fires happening on the back lots.
Ms. Eckstrom noted that as it stands today, the applicant could cut a driveway through the woods to Lot D-70.
A MOTION was made by Mr. Eckstrom to grant the variance to permit reconfiguration of the lot lines of on 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; such variance would be conditional on no future subdivisions of anything but Lot D-70 on which a subdivision may occur after 5 years, and further subdivision of lot D-70 be such that access is anywhere other than Holt Road or it may not be granted. The motion was NOT SECONDED.
A MOTION was made by Ms. Roberts and SECONDED by Mr. Hoar to deny the variance for the reconfiguration of lot lines of on D-20, D-21, D-22, D-70, D-71, and D-83, on Holt Road and/or Putnam Hill Road.
Voting: 4 ayes; motion carried with Mr. Eckstrom opposed.
Chairman Faiman declared the variance request denied.
The Board agreed to the following reasons for the denial:
- The dead-end road length from Burns Hill Road to the new lots D-20-2 and D-71 would be excessive.
- Given the condition of Holt Road, new development at the end of the road would be disadvantageous to the people already living on the road. While the proposed variance superficially replaces six existing buildable (grandfathered) lots with six other buildable lots, the new lots would, in practice, be far more likely to be built on than the existing grandfathered lots, thus, the variance could be expected to have the effect of increasing the amount of development at the end of Holt Road.
- The "hardship" for the property is, in essence, its terrible access, but this is not something that can be remedied through a variance.
A MOTION was made by Ms. Roberts and SECONDED by Mr. Tuttle to adopt the preceding as the statement of reasons for denial.
Voting: 4 ayes; motion carried with Ms. Eckstrom opposed.
Case #5/11/10–1 — Sylvia W. Horsley
Chairman Faiman explained that Sylvia W. Horsley has appealed a decision of the Wilton Building Inspector that an apartment in the dwelling at Lot J-13, 21 Dale Street, is not a legal nonconforming use due to discontinuance.
Will Sullivan appeared for the applicant and explained that she purchased the property in 1992, as a duplex, and it still remains structurally the same way. He stated that it's an up and down duplex and the duplex unit still remains with separate entrances for each. He further noted that the two units have never been connected as it is quite difficult to connect the two. He explained that the applicant's sister moved into the house, after it was purchased, with her nine person family, two of which who where children over the age of 18 children that lived in the duplex.
Ms. Horsley explained that her sister was living in an apartment and she was evicted because she had too many people living there including two older boys from a previous marriage and four little children. She stated that while the duplex is a four bedroom, they are small bedrooms, so the family used the whole house but the two units were never joined. She explained the second unit is small and only fit for one person; more like a mother in law addition. She stated that the two older boys lived there and the whole family moved out in July. She further explained that she wants to sell the building but in order to do so she had to rehab the building so she went to the last Building Inspector who did not say she could not rehab the building but then the current Building Inspector said there were issues after most of the work was done such as not having an egress for the bedroom and the lot being too small. She stated that she put in an egress and had the lot surveyed but the Building Inspector said the building still did not qualify as a duplex and now she wants to sell but the building it is not sellable.
In response to a question from Ms. Eckstrom, Ms. Horsley stated that there is a kitchen in the second unit but the older boy was 21 when he died in the apartment and the other kids were 23, 21, 19 and 16 so she is not sure how much the kitchen was used.
In response to a question from Ms. Eckstrom, Ms. Horsley stated that second unit is on the left; the two units share a porch but have separate doors.
Mr. Tuttle stated that the issue of having a two unit building as opposed to a one unit house came to the Water Commissioners three to five years ago and the owner stated that the building is not a duplex anymore and she wanted to only pay for one unit.
Ms. Horsley stated that her sister might have asked the Commissioners for the change but she was the owner and was not aware that her sister did that.
Mr. Tuttle stated that the Water Commissioners agreed to reduce the charges to the building because the woman said she would discontinue the second kitchen.
Ms. Horsley stated that she was not aware that that had happened until now.
After discussion, Ms. Roberts decided that she needed to recues herself from the case and Mr. Sullivan asked to be heard next month before a full Board.
A MOTION was made by Ms. Eckstrom and SECONDED by Mr. Tuttle to continue the application to the next meeting.
Voting: 4 ayes; motion carried with Ms. Roberts abstaining.
Case #5/11/10–2 — Lincoln Geiger
Chairman Faiman explained that Lincoln Geiger (applicant) and Senator Development, LLC (owner) have applied for a variance to section 5.3.1 of the Wilton Zoning Ordinance to permit the use of a portion of the apartment on Lot F-98-1, 195 Isaac Frye Highway (Four Corners Farm) as a café.
Lincoln Geiger appeared before the Board and explained that the apartment in question is the downstairs apartment of the duplex that is the main house. He stated that the cafe would be in the downstairs and they would like to make a parking area which would be shared with the main farm activity customers. He stated that he has received a letter from LCHIP, as they gave money towards the easements which are held by the Town of Wilton, which states that they have no problem as long as he stays within the present structural nature of the building.
The Conservation Commission stated that as long as the change does not affect the exterior of the building and the parking does not affect the wetlands the Conservation Commission is fine with the plan.
In response to a question from Mr. Hoar, Mr. Geiger stated that presently there will be 14 seats as allowed by the septic system.
Ms. Eckstrom stated that this plan is not a home occupation, as was noticed, but rather it is commercial operation. Mr. Hoar agreed.
In response to a question from Mr. Tuttle, Mr. Geiger stated that there will still be living space over the café.
Mr. Faiman stated that he is hearing that the Board feels that the appropriate form of the variance should be the permitted uses in the district for a commercial operation, and this is important because the Board sent out a notice saying that they were considering a home occupation, but the Board does not believe that a home occupation applies.
In response to a question from Mr. Hoar, Mr. Geiger stated that the farm part of the farm rents the farm building but not the apartment, as it would be $1,000 a month for the next 99 years, rather the Planning Board required that Senator Development give the farm the right to build a duplex. He further explained that the apartment, for which Mr. Geiger recently came before the Board, was for the farm help and to put the farm help in the cafe apartment would be $1,000 which is unreasonable for that purpose.
Mr. Geiger stated that he is looking for lighter activity for the farmers to do after 30 years of farming and he thinks it would create a nice community. He noted that previously the Board has considered a bed and breakfast as a home occupation so they could also consider the ability for a farm to have a café.
Mr. Hoar stated that there is a big difference between a bed and breakfast is limited to the amount of rooms that can only be turned over once a day and a cafe turns over much more.
In response to a question from Ms. Eckstrom, Mr. Geiger stated that the farm serves 100 families and then another 30 have pick up at Pine Hill and could come visit. He stated that he might add some people from the hill and maybe from the town but probably not.
Mr. Faiman questioned whether the notice was adequate or if the case should it be re-noticed as a variance to the section that specifies permitted uses in the Residential Agricultural district.
Mr. Hoar and Ms. Eckstrom felt that it should re-noticed and Mr. Faiman agreed although he noted that he feels that it is appropriate to re-notice without any additional charge to the applicant.
In response to a question from Mr. Shepardson, Mr. Geiger stated that he has looked at the state licensing requirements and there are some things he has to do.
Paul Levaque stated that it seems like the farm is already a commercial operation and the applicant is just asking for an expansion.
Mr. Faiman noted that actually it is an agricultural operation and the laws are very different.
Stanley Young stated that he believes that the house is on the state register of historic places and suggested that Mr. Geiger notify the historic register.
Mr. Tuttle noted that previously on this site have required that the outside of the building remain unchanged.
A MOTION was made by Mr. Hoar and SECONDED by Mr. Tuttle to re-notice the application and waive the fees.
Voting: 5 ayes; motion carried unanimously.
Chairman Faiman asked the applicant to complete a new application for a variance of uses allowed in the residential agricultural district.
A MOTION was made by Mr. Tuttle and SECONDED by Ms. Roberts to adjourn the meeting.
Voting: 5 ayes; motion carried unanimously.
Chairman Faiman declared the meeting adjourned at 10:15 pm.
Heather Loewy Nichols
Draft Minutes Revision 1