Town of Wilton, NH

Zoning Board Minutes

July 8, 2010

Board MembersChairman Neil Faiman; members Andy Hoar, Jim Tuttle, Joe Poisson, Alternates Joanna Eckstrom.
Agenda5/11/10 - 1 Sylvia Horsley

Chairman Faiman opened the meeting at 7:05 p.m. and explained that this was a special meeting to discuss a request for rehearing. He explained that the meeting is an open meeting; however it is not a public hearing so the Board will not be taking input. He stated that the Board will make a decision based on the request letter they received. He further noted that they will not be making a decision on the case itself this evening, but rather they will be deciding whether or not to hold a new hearing, presumably in August. He noted that the Board can schedule a new hearing to reconsider particular pieces or to reconsider the entire case. Chairman Faiman explained that the Board received a request for rehearing from John Shepardson, in which he has expressed very fully why he believes that the Board made an incorrect decision. He noted that the Board has to decide whether there is a significant likelihood that they made the wrong decision in order to hold a new meeting.

Mr. Hoar stated that Mr. Shepardson made some very valid points, the main one of which was that the Board granted the decision as if there was a legal apartment prior and there was not. He stated that by using evidence that was not legal documentation, such as the tax card, the Board is jeopardizing all the zoning ordinances.

Ms. Eckstrom stated that the Zoning Board does not grant a rehearing to consider evidence that could have been presented at the hearing and Mr. Shepardson had ample time to gather the evidence to support his case including the additional evidence presented and the legal opinion to be presented at the original hearing. She stated that she does not see any new evidence in the request.

Mr. Faiman stated that he did not think there were any documents in the request that were not presented at the June meeting.

Ms. Eckstrom noted that the property inventory from 1989 is new evidence.

Mr. Hoar noted that the property inventory is not germane to the issue anyway.

Ms. Eckstrom stated that Mr. Shepardson presented the evidence as new evidence and it was available at the time of the meeting. She also noted that Mr. Shepardson made a statement that one of the forms has no date and explained how one can deduce that the document was from 1982. She further stated that the tax card states that the number of living units is two and does not say that anyone ever came to the Zoning Board for a variance. She noted that she is relying on the tax card just as banks do. She explained that to say that the tax card is not a legal document is to say that one does not owe their taxes as the tax bill is based on the tax card.

In response to a comment from Mr. Hoar, Ms. Eckstrom stated that she has made changes to her tax card through an abatement request.

Mr. Faiman stated that he agrees that there is nothing new presented in the argument but he feels that Mr. Shepardson pointed out flaws in the Board's decision and he does not see how the Board could have seen the duplex as a legal non conforming use. He stated that the burden of proof is on Ms. Horsley to prove that the duplex was a legal non conforming use when she purchased the property, which means that it existed before 1971 or a variance has been granted in the meantime. He explained that Mr. Shepardson's letter states that the 1985 Building Permit application states that the owner wanted to convert the L into a small apartment and, based on the testimony at the time, the owner stated that no apartment existed prior to 1985. He stated that just because the Building Inspector approved the application does not make it a legal conforming use. Mr. Faiman stated that the duplex was not a legal non conforming use in 1985, and no variance was granted, so therefore there never was a legal non conforming use. He also noted that there was no evidence of any construction until three years later and Building Permits expire after in a year.

Ms. Eckstrom noted that the documentation states that the construction was 30% completed in 1986.

Mr. Poisson noted that the documentation notes an "income apartment" in 1989.

Mr. Faiman stated that the fact remains that there was not a legal income apartment as it was constructed under an illegal Building Permit, was never issued a Certificate of Occupancy, and was never brought into compliance with the Building Code.

In response to an observation by Ms. Eckstrom that the notification letters were sent to the incorrect address, Mr. Faiman stated that the only point of the letters is not that the owner was notified but that the error was noticed four years later.

Mr. Tuttle stated that he was under the impression that the Zoning Board agreed to go along with the situation provided that the owner came into compliance with the safety issues. He stated that he feels the owner did not do everything that they were supposed to do but neither did the town.

Mr. Faiman stated that there was not a legal second dwelling unit in 1985 and no variance has since been granted.

Ms. Eckstrom stated that Mr. Faiman's position discounts the fact that there was a Building Permit that allowed the conversion and it has existed for many years. She stated that she is concerned about fixing a mistake from that long ago.

Mr. Hoar stated that he is concerned that the Board has not followed the law and Ms. Eckstrom stated that the whole town has not followed the law.

In response to a question from Mr. Hoar, Ms. Eckstrom stated that the Board can fix an error made that long ago through an equitable waiver.

Mr. Faiman noted that the applicant did not apply for an equitable waiver rather they asked that the Board find that the current use is legal.

Mr. Hoar stated that if the applicant asks for an equitable waiver then he thinks that the Board should hear it but an equitable waiver is not what the applicant asked for.

Mr. Faiman stated that there is not any convincing evidence that there was a legal non conforming use prior to 1985, that a variance was granted, or that the Building Permit was legal and a failure to enforce the rules does not give the applicant a right to keep doing what they are doing.

Mr. Poisson wondered why the Board of Selectmen did not deal with the situation previously and Ms. Eckstrom noted that they continued to tax the property as a multiple unit.

Mr. Faiman pointed out that Ms. Eckstrom is arguing for an equitable waiver but the Board's job is to decide if there was a legal use and the only two ways for the use to be legal is if it existed prior to zoning or a waiver was granted.

Ms. Eckstrom stated that she does not feel comfortable making the current owner pay for prior owner's mistakes.

Mr. Faiman stated that the Board cannot make a situation correct by making an illegal decision.

Ms. Eckstrom stated that people rely on the tax card.

Mr. Faiman stated that neither the Board of Selectmen, the Building Inspector, nor anyone in the town has the ability to make a legal non conforming use, where one does not exist previously, except the Zoning Board and just because people rely on the information on the tax card does not mean it is legal.

Mr. Hoar stated that Ms. Eckstrom makes a good case for an equitable waiver but what was applied for cannot be granted. Mr. Faiman stated that the Board cannot grant what was not asked for and they were asked to find that the applicant's non conforming use is legal.

A MOTION was made by Mr. Hoar and SECONDED by Mr. Faiman to grant the request for a rehearing to address the question as to whether the property was a legal two family dwelling at the time that Ms. Horsley purchased the property.

Ms. Eckstrom suggested an amendment stating that she is concerned about the date and whether the building permit was a legal building permit.

Mr. Faiman stated that the question has two parts, whether it was a legal use when she bought the property and did she do anything to lose that use. He explained that the Board has decided to not consider whether she did anything to lose the use but rather concentrate on just the first question.

Voting: 3 ayes; motion carried with Mr. Hoar, Mr. Poisson and Mr. Faiman in favor and Mr. Tuttle and Ms. Eckstrom against.

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 8:00 p.m.

Respectfully Submitted,
Heather Loewy Nichols
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Wilton ZBA
Draft Minutes Revision 1