Town of Wilton, NH

Zoning Board Minutes

August 10, 2010

Board MembersChairman Neil Faiman; members, Carol Roberts, Andy Hoar, Jim Tuttle, Joe Poisson, Alternates Joanna Eckstrom, and Eric Fowler.
  • 5/11/10 - 1 Sylvia Horsley
  • 6/8/10-3 Babineau
  • 6/8/10-4 Marois Joint Revocable Trust
  • 8/10/10-1 Marois Joint Revocable Trust

A MOTION was made by Mr. Hoar and SECONDED by Mr. Tuttle to approve the minutes of July 8, 2010 amended as follows:

- Change "In response to a comment from Mr. Hoar, Ms. Eckstrom stated that the town has made changes to her tax card through an abatement request" to "In response to a comment from Mr. Hoar, Ms. Eckstrom stated that the town has made changes to her tax card through an abatement request by her."

Voting: 5 ayes; motion carried with Mr. Fowler and Ms. Roberts abstaining.

A MOTION was made by Ms. Eckstrom and SECONDED by Ms. Roberts to approve the minutes of July 13, 2010 with the following amendments:

- Change "Springer" to "Spring" throughout

- Change "Priest" to "Pries" throughout

- Change "Ms. Eckstrom" to "Ms. Eckstrom" throughout

- Change references to a "Wilton Conservation Commission Member" to "William Mahar"

- Change "Marilyn Shelly" to "Marilyn Ciaidelli"

- Change references to "Mr. Marrow " to "Mr. Marois"

- Insert in the approval of the minutes topic: "Ms. Eckstrom approved all of the corrections that Ms. Roberts had, however she did not feel that it was appropriate for Ms. Roberts to approve the minutes because she was not sitting on the Board for the case and the Board does not take public input with regard to the minutes.

Voting: 5 ayes; motion carried with Mr. Faiman and Mr. Hoar abstaining.

Case #5/11/10–1 — Sylvia Horsley

Mr. Faiman noted that in June the Board approved the appeal submitted by the applicant but they then received a rehearing request and on July 8th the Board voted to hold a rehearing specifically with regard to the grandfathered status but they are going to set aside the issue as to whether the applicant did anything to change the status of the property.

Mr. Faiman explained that he, Ms. Eckstrom, Mr. Tuttle, Mr. Poisson, and Mr. Hoar would be voting on the case.

Mr. Faiman stated that the motion for this case this evening will be to reconfirm, revoke, or amend the original decision. He noted that the request for rehearing was submitted with a large packet that has been made available to the entire Board. He stated that per the Board's discussion at the last meeting he solicited Town Counsel's opinion and was told that no agent other than the ZBA can make a non conforming use legal with the limited exception that the courts might grant municipal estopal. He further explained that there is no way that a non permitted use can become permitted except by an action by the ZBA. He also stated that Town Counsel stated that no lapse of time can make a non legal use grandfathered therefore if the use was not legal it does not become legal because no one did anything about it for 20 years.

In response to a question from Ms. Eckstrom, Mr. Faiman stated that if the Board was given evidence that a special exception were granted in 1989, then that would be acceptable.

Mr. Faiman stated that, in his opinion, in order to uphold their original decision the applicant would need to be able to show the Board when the second dwelling was made a legal use.

Mr. Shepardson noted that the Zoning Ordinance was adopted in 1971 and Ms. Streeter, the owner at the time, obtained a permit to create the second apartment in 1985 which would indicate that the property was not a two family structure before 1971.

Ms. Eckstrom stated that the until 1989 the owner could have converted a property to a two family home with a variance and then the regulations changed and after March of 1989 an owner could do the conversion but had to do so with a Special Exception. She stated that it was a failure on the Building Inspector's part for recommending that the owner get a Variance instead of a Special Exception.

Mr. Shepardson stated that his understanding was that the non legal use had to have been in existence before 1971 or required an application to the ZBA for something to be granted.

In response to a question from Chairman Faiman, Mr. Sullivan, the applicant's Counsel, stated that he had nothing further to add.

Mr. Hoar stated that prior to 1992, when the property was purchased, no variance prior to 1989 or special exception after 1989 was ever granted. He stated that the property was never a legal two family property and the Board based their previous decision on a misconception.

Ms. Eckstrom stated that she agrees but she feels that there was a failure by the Building Inspector as a Certificate of Occupancy should have been issued but never was and a property inventory was turned in with documentation that the site was a two family with no follow up. She stated that the Board could remedy the situation with an equitable waiver, which has not been sought, and noted that on December 20, 2006 the income tax card clearly indicates that the building includes 570SF for the efficiency apartment. She stated that she thinks that Ms. Horsley has placed a good faith reliance on the documentation that was in the town.

Mr. Hoar stated that Ms. Eckstrom's arguments have nothing to do with the current discussion as they Board is trying to look at their prior decision.

Ms. Eckstrom stated that she is trying to remedy the issue.

Mr. Faiman stated that an error on the part of the town does not make a legal use and if it is bad enough there are legal ways to remedy the situation.

In response to a question from Ms. Eckstrom, Mr. Faiman stated that permits do not make something legal however the exception is that a court may grant relief.

Ms. Eckstrom asked about Certificates of Occupancy from 1985 and in response to a question about the relevance Ms. Eckstrom stated that this would show a deficiency in the Building Inspector and Zoning Board.

Mr. Faiman stated that Certificates of Occupancy do not show a deficiency by the Zoning Board and the Zoning Board does not solicit business.

Mr. Poisson stated that he was under the impression that the applicant thought she was abiding by the rules with good faith.

Mr. Faiman stated that the parties involved have had the opportunity to add additional information but must feel that the Board has all the information there is to have.

In response to a request from Ms. Eckstrom, Mr. Faiman read the original decision and noted that the decision had two parts, that the use was a legal use and that it was not abandoned and noted that the purpose of this meeting was to reconsider the decision that the use is a legal non-conforming use.

In response to a question from Mr. Tuttle regarding the gap in documentation between 1989 and 1992, Mr. Shepardson stated that he scoured the file and submitted what he found.

In response to a question from Mr. Poisson, Ms. Horsley stated that the bank gave her income information from the two different apartments.

Mr. Faiman stated that the Building Permit states that the owner will be converting the L portion of the building but the permit that was issued was never valid.

A MOTION was made by Ms. Eckstrom and SECONDED by Mr. Tuttle that the ZBA affirm its original decision believing that the use throughout the years supports the decision and because there have been deficiencies in upholding the building code which is why the Board put the original stipulations on the motion.

Voting: 2 ayes; motion failed with Ms. Eckstrom and Mr. Tuttle in favor and Mr. Poisson, Mr. Hoar, and Mr. Faiman against.

A MOTION was made by Mr. Hoar and SECONDED by Mr. Poisson to vacate the original decision on the grounds that it was not a legal two family dwelling at the time that Dr. Horsley bought the property.

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

Case #6/8/10–3 — Babineau

Mr. Faiman explained that this case was continued from June 8th and is a request for a special exception for a wetland crossing that mandatorily requires two meetings. He stated that a site visit was held on July 31st and several Board Members, abutters, Conservation Committee members and representatives for the applicant were present.

He stated that Mr. Hoar, Ms. Roberts, Mr. Possion, Mr. Tuttle, and Mr. Faiman will be voting on this case.

Will Sullivan appeared before the Board for the applicant and stated that the Board has seen the site, the Conservation Commission has favorably looked at the plan, and the dredge and fill permit will be approved by the state shortly. He explained that the applicant has no immediate plans to do anything except remove timber and the reason they have applied for the crossing they did is because one can only apply once to the state for a crossing. He explained that any road crossing has to be constructed to minimize any impact on the wetland, which they have shown, and the road is necessary for the productive use of the property as two thirds of the property is on the other side of the stream.

Tony Basso, of Keach Nordstrom, explained that in June they applied for the standard dredge and fill permit, for minor impact due to the intermittent stream, to access a large junk of otherwise inaccessible land. He explained that they picked the point that would have the least impact and they will be creating a stream bed within the pipe and putting back the habitat contained in the pipe.

Mr. Faiman noted that if the Board were to approve the application he would like to make sure that the approval specifically notes that they are approving access for lumbering.

Mr. Basso explained that in New Hampshire when you get a dredge and fill permit for any purpose no further wetland impact is allowed for that site, an applicant has one opportunity to get a permit. He further noted the owners understand that the Planning Board approval is necessary for further access.

In response to a question from Ms. Eckstrom, Mr. Basso stated that the permit includes all the properties on the application.

In response to a question from Ms. Roberts, Mr. Tuttle confirmed that the Board is not being asked if Holt Road is an appropriate road for this kind of activity.

Al LoVerme, an abutter, stated that on the site walk those present noted that the road is as narrow as 15' as times and the town refuses to upgrade or repair it. He stated that what they didn't get to see was the kids riding bikes, mothers with carriages, and people walking their dogs. He stated that the trucks are going to damage the road, prevent them from walking and that the applicant should gain access somewhere else and leave Holt Road alone.

Mr. Sullivan explained that the applicant tried to create five lots but that application was denied mostly due to public input and logging is allowed on town roads. He noted that they would have to be bonded and if they did a major subdivision they would need to find other access.

Janette LoVerme stated that she was confused as to how the applicant can still apply for an exception from the Zoning Board and stated that the abutters want to be left in piece.

Mr. Faiman explained that the application is for Special Exception to permit a wetland crossing for an access road over lots D-20 and D-21 and taking access from Holt Road in order to provide access to the lots on the far side of the stream. He noted that the applicant has no immediate plans for the development other than lumbering which would require approval from the Board of Selectman.

A MOTION was made by Mr. Tuttle and SECONDED by Ms. Roberts to close the public hearing.

Voting: 5 ayes; motion carried.

Mr. Tuttle noted that the applicant could put in a culvert that is half the size but they are putting in a bigger one because they can only apply once. He also noted that the Board is only talking about the crossing not whether they agree with the rest of the situation or not as this is for the Board of Selectmen to decide.

In response to a question from Ms. Eckstrom, Mr. Faiman stated that the Board of Selectmen will produce a logging operation permit and could put limitations on the permit.

Mr. Faiman stated that the Board has a letter from the Conservation Commission noting that the members are comfortable with what is on the plan.

Mr. Tuttle requested that the state approvals be included in the file.

In response to a question from Ms. Eckstrom, Mr. Faiman stated that the 60" pipe is that size to allow for two feet of stream bed to be placed in the culvert.

A MOTION was made by Mr. Tuttle and SECONDED by Ms. Roberts to grant the special exception noting that the approval is only for access for permitted uses and the state approvals need to be included in the file.

Voting: 5 ayes; motion carried unanimously.

Case #6/8/10–1 — & 8/10/10–4 Marois Joint Revocable Trust

Mr. Faiman explained there are currently two applications for this applicant and the Board is going to combine them into a single hearing since they are very closely related and both pertaining to the proposed use. However he noted that the Board can choose how they want to vote on them and he will chair the case but will not be voting.

Mr. Faiman stated that Mr. Fowler, Ms. Roberts, Mr. Poisson, Ms. Eckstrom, and Mr. Tuttle will be voting on the case.

Mr. Faiman explained that The Marois Joint Revocable Trust and Florida Tower Partners have applied for a variance to section 15.3.4 and of the Wilton Zoning Ordinance, to permit the erection of a 114 foot "monopine" personal wireless service facility (cell tower) on Lot B-39-3, 303 Curtis Farm Road, which is higher than would be permitted by the ordinance.

Mr. Faiman explained that this case has been discussed in June and July.

Mr. Springer reviewed the changes that have been made to the plan including removing correcting the co-location note to reflect the correct number of antenna arrays. He also explained that Section 15.3 says that ground mounted facilities should not be located in open areas that are clearly visible from public roads, abutting properties, or recreation areas and should be place in a stand of trees. Mr. Springer explained that there are two variance requests, one which would allow the tower to go higher than normally allowed and a second to allow them to not have to measure every tree 20' and higher. He explained they have measured all the trees 40' and higher and in Greenville they had the same issue and had to redo their measurements which caused the average tree height to change from 67' to 36'. He stated that enforcing this clause will not achieve anything and will just create more work for the applicant.

In response to a question from Ms. Eckstrom, Mr. Springer stated that in Greenville some of the trees were over 100',

Mr. Springer stated that he sent in copies of the Daniels case with regards to the relaxed hardship needs for telecommunication cases and recognizes that these are unique facilities that have to be located in the gap of coverage that they are trying to fix. He stated that the Daniels case recognizes that they must place the facility in specific locations and it may still be considered unique even though it may be like other sites around it.

Regarding an email the Board received, Mr. Springer stated that the author had two points; they criticized the comparables because some were over seven years old but he feels that all the comparables were current considering that that the telecom act is only 15 years old, and she did not identify any comp where she found diminution of value. He also noted that they are not seeking a use variance, as this is a permitted use on the site rather they are looking for additional height. Mr. Springer explained that this is a very passive use with very limited vehicle traffic and he does not believe that this traffic will cause a diminution of values. He stated that this variance is not against the public welfare, is a very passive use and is a permitted use. He also noted that granting the variance will not be contrary to the ordinance as it is a wooded lot and they will be accommodating three additional co-locators. He stated that the ordinance recognizes that the antennas have to be above tree height but then they are forced to go into a heavily wooded area and remain below the tree height.

Ms. Eckstrom stated that based on their calculations of trees 40' and above the average is tree height is 63' tall and the ordinance states that the tower can be 20' above that.

In response to a question from Ms. Eckstrom, Mr. Springer stated that the tower is 114'.

In response to a question from Mr. Fowler, Mr. Springer confirmed that the last array is at 114' but actually the unit is 116' tall.

The Board discussed abutting town notification requirements and continuing the case to August 31st.

A MOTION was made by Ms. Roberts and SECONDED by Mr. Fowler to take testimony tonight continue the application to August 31, 2010 and notify the abutters in the mean time.

Voting: 5 ayes; motion carried unanimously.

Walter Pries, of Curtis Farm Road, explained that this site may not get the applicant the coverage that they would like to have as there is a blockage of coverage and while one may expect 360 degrees of coverage this site is going to get less than 200 degrees. He stated that this site is set up more as a protection site than a distribution site and questioned if the applicant requires 114' and if this would we create a snowball effect of four or five towers that this site is supposed to cover. He stated that it will take a 1250' tower to get down into one of the proposed areas and if they remove those unattainable areas the tower does need to be more than the 83' tall. He stated that he feels that the coverage map is deceptive and includes areas that are 6.5 miles away. He noted that the areas of interest do not have the taller trees in the way.

John Weaver, appeared before the Board and explained that he represents the Blacks of 309 Curtis Farm Road. He explained that the access easement runs through 309 Curtis Farm to 303 Curtis Farm and the two properties are joined together by value. He stated that it is impossible for this variance to be passed without devaluing 309 Curtis Farm. He stated that in real estate valuation, as the value of the receiving lot increases the value of the easement increases. He further explained that a significant amount of value will be added to 303 Curtis Road by the tower and the increasing value of the easement decreases the value of the bearing lot. He stated that it is impossible for the variance to pass with the diminution in value as the multiple visits to the tower will decrease the value of 309 Curtis Farm Road.

The Board and Mr. Weaver discussed the easement parameters and Mr. Faiman explained that self created hardship generally means that one has created the conditions on the land.

A MOTION was made by Ms. Roberts and SECONDED by Mr. Tuttle to adjourn the meeting.

Voting: 5 ayes; motion carried unanimously.

Chairman Faiman declared the meeting adjourned at 11:00 pm.

Respectfully Submitted,
Heather Loewy Nichols
Page 6 of 6
Wilton ZBA
Draft Minutes Revision 2