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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.

September 14, 2010

Board MembersChairman Neil Faiman; members, Carol Roberts, Andy Hoar, Jim Tuttle, Joe Poisson.
Agenda
  • 9/14/10 - 1 Donald Sienkiewicz
  • 9/14/10 - 2 Kerri Jones

Chairman Faiman opened the meeting at 7:25 p.m.

A MOTION was made by Ms. Roberts and SECONDED by Mr. Tuttle approve the minutes of August 10, 2010 with the following amendments:

Voting: 4 ayes; motion carried with Mr. Hoar abstaining.

A MOTION was made by Ms. Roberts and SECONDED by Mr. Poisson to approve the minutes of August 31, 2010 as written.

Voting: 4 ayes; motion carried with Mr. Hoar abstaining.

Case #9/14/10–1 — Donald Sienkiewicz

Chairman Faiman explained Donald Sienkiewicz has appealed the denial by the Wilton Planning Board and the Wilton Board of Selectmen of a permit for a sign on Lot H-66, 110 Isaac Frye Highway, which would be located on the front lot line in the Isaac Frye Highway right-of-way. The appeal invokes the interpretation of sections 3.1.16, 3.1.18, 6.2.4, and 16.1(d) of the Wilton Zoning Ordinance.

Chairman Faiman noted that he is also a member of the Planning Board and while he did not vote on the application he did participate in the discussions regarding this application. He asked if anyone objected to him remaining on the Board this evening and heard none.

Donald Sienkiewicz appeared before the Board and submitted pictures of the proposed sign location. He explained that he had received a special exception from the Zoning Board and Planning Board site plan approval to have a home law office at 110 Issac Frye Highway for himself and a part time secretary. He further explained that while the dimensions and construction of the sign met the requirements the location was not approved. He stated that the proposed location is hanging over the mailbox and noted that the submitted pictures show how out of the travel way the sign is. He explained that it is not clear where the right of way is as the stone wall is of varying widths up and down Isaac Frye Highway and it is clear that the stone wall has been moved. He stated that he is not sure that anyone can know where the right of way is as there may not be any surviving records. Mr. Sienkiewicz explained that there is supposed to be a 35' setback for all structures that require a building permit but he does not think that this has been literally enforced around town. He noted that the pictures show several oak trees that block the line of sight of the sign if it were placed somewhere other than the proposed location.

In response to a question from Mr. Hoar, Mr. Sienkiewicz stated that although the right of way may be 35 feet from the center line no one knows where the center line is.

In response to a question from Ms. Roberts, Mr. Faiman explained that the mailbox is an exception that is allowed. Mr. Sienkiewicz noted that he has not seen the law that states that mailboxes are allowed in the right of way.

In response to a question from Ms. Roberts, Mr. Sienkiewicz stated that the sign would not be lit, will be exactly within the dimensions, and will be gold with green writing.

In response to a Ms. Roberts, Mr. Sienkiewicz explained that if he hangs the sign from the trees that are within his property then the trees would obscure it.

In response to a question from Mr. Hoar, Mr. Sienkiewicz stated he could put the sign on a post but it would be inside the stone wall and still not be visible.

Mr. Faiman stated that he went on a drive by and agrees with Mr. Sienkiewicz that there is no other place to put the sign that would be visible,

Mr. Sienkiewicz stated that the sign has to be near the stone wall to be visible and any place on the stone wall will be in the right of way.

In response to question from Ms. Roberts, Mr. Sienkiewicz stated that the application went through the Zoning Board, the Planning Board, and the Board of Selectmen.

In response to a question from Mr. Hoar, Mr. Faiman explained that the Board is being asked to pass judgment on the decision by the Planning Board and the Board of Selectmen to deny the permit.

Mr. MacMartin, Vice Chairman of the Planning Board, appeared before the Board and submitted a copy of the letter the Planning Board received from Town Counsel and explained that due to Town Counsel's opinion the Planning Board did not feel that they could approve a site plan that had a sign within the town right of way. He further explained that Isaac Frye Highway has been surveyed a number of times and convention is that the stone walls are the edge of the right of way until someone determines otherwise. He stated that the sign is in front of the wall and historically the Planning Board has made sure that signs are out of the set back so that there are not any line of sight issues. He suggested that the Zoning Board might want to get clarification from Town Counsel but he believes that the Board cannot overturn the Planning Board decision without being against New Hampshire law. Mr. MacMartin further explained that Bernie Law, who has had several extensive law articles on these issues, has stated that, other than mailboxes or things permitted by federal law, the Board cannot permit things in the right of way.

Mr. Tuttle questioned whether there is a reference in the law to a suspended sign versus a sign on posts.

Mr. MacMartin explained that the Planning Board did not discuss the set back as the proposed sign is not near the setback, it is in the road.

Mr. Sienkiewicz stated that one of the purposes of the Zoning Board is to step in when the interpretation of the law is one that prevents the common sense outcome from prevailing. He stated that the sign is not obstructing anyone and there are similar signs around town. He stated that putting the sign back would hinder people knowing that he has a law office at his home and the sign is not creating any hazards, not blocking the plow, not creating sight issues, he does not know where the lot line is, and there are bigger obstructions like solid oak trees that are also in the setback.

In response to a question from Selectman Rockwood, Mr. Sienkiewicz stated that if the plow were to knock the sign down the town would not be liable and he would just hang the sign back up.

In response to a question from Ms. Roberts, Selectman Rockwood explained that the Board of Selectmen denied the sign permit application based on the opinion from Town Counsel.

After discussion, a MOTION was made by Mr. Hoar and SECONDED by Ms. Roberts to close the public hearing.

Voting: 5 ayes; motion carried unanimously.

In response to a question from Ms. Roberts, Mr. Hoar stated that when a home occupation is granted the applicant is not entitled to have a sign.

Mr. Faiman stated that applicants tend to regard a sign as an accessory use to the home occupation and the ordinance allows for a sign that is related to the use of the lot with restrictions. He further stated that to his knowledge the Planning Board did not have any other issues with the sign and while there is an expectation that the home occupation will get a sign that does not give the applicant a right to have a sign in a particular location.

Mr. Hoar stated that if the stone wall is usually used as the property bound then it should be used even if the right of way is regarded as variable.

Mr. Faiman stated that there are two issues, state law and the setbacks and he does not see anything in the ordinance that says there is a 35' setback for signs however he thinks the Zoning Board always looks at another parties' interpretation of Zoning Ordinance.

Mr. Hoar noted that this appeal deals with the interpretation of state law.

Mr. Faiman stated that he thinks the interpretation of state law is not within the Zoning Board's jurisdiction.

Mr. Hoar questioned whether the Zoning Board was in the position to make a decision on this appeal.

Mr. Faiman stated that he thinks the sign is attractive and that it is in the right location to serve its purpose but he does not think that it is the Zoning Board's place to change another Board's application of state law rather the Zoning Board is where you go if another board has misapplied the Zoning Ordinance.

In response to a question from Ms. Roberts, Mr. Faiman explained that Planning Board decisions can be appealed in Superior Court.

A MOTION was made by Mr. Hoar and SECONDED by Mr. Poisson to find that the Zoning Board finds no support in the ordinance for denial of the sign application and to find that the Zoning Board has no jurisdiction and takes no position on the Planning Board and Board of Selectmen's application of the state law.

Voting: 4 ayes; motion carried with Mr. Hoar, Mr. Poisson, Ms. Roberts, and Mr. Faiman in favor and Mr. Tuttle against.

Case #9/14/10–2 — Kerri Jones

Mr. Faiman explained that Kerri Lee Jones has applied for a special exception under the terms of section 5.3.1 of the Wilton Zoning Ordinance, to allow her to run a family daycare in her home on Lot H-29-1-2, 22 Pierce Lane.

Ms. Jones appeared before the Board and explained that she hoped to have a small inhome daycare on the third floor of her home, she believes that state licensing would only allow her to have six children, and her home is in the residential/agricultural district.

In response to a question from Mr. Faiman, Ms. Jones stated that she would have six kids including her own.

Mr. Faiman explained that the application includes the main items of the checklist and the Board noted that they individually did drive bys of the site.

In response to a question from Mr. Faiman, Ms. Jones stated that the hours would be 7:00 am. to 6:30 pm.

In response to a question from Ms. Roberts, Ms. Jones stated that the third floor is 1000SF.

In response to a question from Mr. Poisson, Ms. Jones stated that the area has an open concept and there is only one bedroom on that floor other than the main area. She further explained that the she will be using the bathroom on the middle floor and the kitchen on the bottom floor. In response to further questions, Ms. Jones stated that she would predominantly have toddlers and there are stairs between the floors.

Mr. Faiman explained that he does not know whether the third floor will meet state approval but that Zoning Board does not concern themselves with that.

In response to a question from the public, Mr. Faiman explained that sections 5.3.1, 4.4, and 4.6 of the Zoning Ordinance has a list of specific requirements.

In response to a question from Selectman Rockwood, members of the public stated that a former daycare in the area is now closed.

Mr. Faiman read the list of requirements including location, compatibility, that the business be incidental in nature, carried out by the residents or family members as the owner can have up to two non family employees, no changes can be made to the home that will be irreversible, and exterior storage or equipment is prohibited. He also explained that there are parking requirements including that the traffic increase cannot be substantial. Mr. Faiman explained that section 4.4 states that the occupation must not be permitted without a special exception, must not be against the character of neighborhood, must not diminish the value of surrounding properties, and water and sewer must be available as well as off street parking. He further explained that the increase in traffic must be at an acceptable level, the occupation must be within the spirit of the ordinance and the ordinance also includes performance standards regarding noise, odors, and smoke.

In response to a question from Ms. Roberts, Mr. Faiman explained that there are no specific requirements regarding the percentage of usable space allowed for the home occupation, just that it be incidental and secondary in nature which means that the occupation exists because of the residence and that the residence is the primary use.

In response to a question from Ms. Roberts, Ms. Jones stated that she will be running the daycare and she will not have any employees on site except for the possibility of a substitute.

In response to a question from Ms. Roberts regarding the storage of equipment, Ms. Jones stated that she has a garage that is empty and that is where the items would be stored when they are not being used.

In response to a question from Ms. Roberts, Ms. Jones explained that clients would not really be parking rather just idling and also they would not all be there at the same time. She stated that they can easily park four cars while allowing them to get in and out easily.

Mr. Faiman explained that the ordinance makes strong cautions about parking being off the street but this driveway looked a couple hundred feet long.

Mr. Hastings, of 17 Pierce Lane, stated the application states that the increase in traffic will be four to six cars Monday through Friday and questioned whether the number should be doubled for drop off and pick up.

Ms. Jones stated that families could have more than one child and with her biological child she stated that there could be a maximum of five cars in and out morning and night.

Ms. Hastings noted that many times she has had to park at the head of the driveway due to snow.

Ms. Jones stated that she will take that into consideration.

In response to a question from Mr. Laura Tires, or 489 Abbot Hill, Ms. Jones stated that according to the state licensing requirements there is no need for fencing. Ms. Tires explained that she is concerned about the tractors on their lot attracting toddlers and Ms. Jones noted that there is still a significant amount of trees that provide a natural barrier.

Dave Hubbard, of 485 Abbot Hill, stated that he is concerned about safety with regard to traffic entering Pierce Lane as there is supposed to be a 200' line of site and it does not exist. He also noted that between 7:45 and 8:30 am it becomes a speedway and he is concerned about additional traffic.

Mr. Faiman noted that at this point the Board is looking just for clarification questions.

Ms. Hasting questioned whether people will be parking on the hill of the shared driveway and stated that she would be very concerned about having people parked there. Ms. Jones stated that clients would not park there as there is a flat section of the driveway with two spots next to the basketball hoop and two spots by the garages. She stated that since she is going to have a maximum of five kids the chances of having five cars at the same time is slim and if needed the chicken coop could be moved.

In response to a question from Mr. Fisher, of 525 Abbot Hill, Ms. Jones stated that she would have five children plus her own and they would have outside playtime but it is her understanding that the last family had 11 children and she would have less children than that.

Mr. Faiman read a letter from the owner of Lot H-016 which stated that due to limited parking, the shared driveway, and the traffic the abutter feels that an inhome daycare is not a good idea.

Mr. Hastings stated that Abbot Hill is a busy road and according to Chief Hauten, since 2004 there have been approximately 2,600 calls to police of which 799 where directly related to motor vehicle issues. He also stated that the visibility is less than 200' in both directions and he has to nudge his truck out into the lane to get a clear view as it is a treacherous intersection. He also noted that Pierce Lane is a shared drive.

Mr. Hastings questioned who assumes the responsibility of the increased wear and tear on the driveway and increased weather maintenance to allow cars to pass safely.

In response to a question from Mr. Tuttle, Mr. Hastings explained that the deed delineates that the responsibility is split and previously he just shared the work to take care of the drive with the previous owner. He explained that the weather is worse at this site than even downtown and there is a certain amount of risk to the families. He questioned where people will park if they cannot get down the driveway due to weather and he questioned, if the special exception is granted, who will assume the risk and responsibility for cars sliding down the drive. Mr. Hastings further noted that he spoke to his home owners insurance and their legal office will require some clarifications regarding the responsibility of the shared right of way.

Mr. Guile, of 523 Abbot Hill, explained that in 1985 he purchased 33 acres and at some point did a subdivision based on the back lot provision and the burden of the drive belongs to the back lots. He questioned how if one has a common driveway, and both lots have responsibility, one of the properties can put more wear in tear on the driveway and noted that Mr. Hastings should not have to perform more maintenance due to the daycare.

Ms. Hastings stated that the drive is 15' wide at the widest and at some points 13' wide and in the snow sometimes someone has to pull into a snow bank to let the others past.

Mr. Fisher, stated that there will actually be 20 additional trips, when one includes the cars going in and then out and he has experienced the same sight distance issues. He noted that one of the requirements is that the occupation be consistent with and will not affect the character of the neighborhood.

Mr. Hastings stated that the more upsetting aspect is that the applicant never spoke to them about the application.

Mr. Faiman stated that he can understand Mr. Hastings concern but that it is not something that the Zoning Board has any business taking into account. He stated that the Board is concerned about safety and the affect on the neighborhood but not concerned about the neighborhood relations.

Mr. Hastings stated that he is the Director of Emergency Management at Southern NH Medical Center and he spends hours a year designing hazard vulnerability analysis and using the same applications he found three major risks that the Zoning Board should consider including motor vehicle crashes, weather risks for emergency responders and the customers.

Mr. Jones stated that she thinks the road leading up to Abbot Hill and Isaac Frye Road are twice as steep as their driveway and she does not see the driveway as being anything more than a slight hill. She stated that she does not see it as a real risk, does not understand the level of concern, and noted that the prior owners had up to 11 children living there and a preschool situation going on that was acceptable. She explained that their intention was to purchase this house and have a home daycare and it was not their intention to make enemies as she feels that it is a reasonable request.

In response to a question from Ms. Roberts, Ms. Jones stated that the previous owners informed her that they were caring for children with special needs from the outside.

Mr. Hastings noted that they were allowed to have up to two daycare children by state law without licensing,

In response to a question from Mr. Fisher as to the liability of the common driveway, Mr. Faiman stated that that is a legal matter between the owners of the lots.

Members of the public also questioned the accessibility of emergency vehicle access in inclimate weather.

A MOTION was made by Ms. Roberts and SECONDED by Mr. Hoar to close the public hearing. Voting: 5 ayes; motion carried unanimously.

In response to a question from Mr. Tuttle, Mr. Faiman stated that if there is something in the easements it is between the neighbors but the Board is supposed to look at the affect of traffic on the neighborhood.

Mr. Poisson stated that the Board needs to take into consideration the burden the occupation would put on other people and noted that it is pretty icy on Abbot Hill.

Ms. Roberts stated that the introduction to the ordinance talks about the spirit of the ordinance and she is concerned about the section on traffic. She stated that the occupation should not create a safety issue or create significantly more traffic and she does not think it is a good idea to have a business there that will generate that much traffic.

Mr. Faiman questioned if there were not a shared driveway whether the Board would be concerned with the driveway or if they would consider only that which is above 17 Pierce Lane.

The Board discussed their concerns about the safety of extra traffic on Pierce Lane specifically that of the shared driveway and therefore the fact that other people would be affected by the extra traffic created.

A MOTION was made by Ms. Roberts and SECONDED by Mr. Poisson to deny the special exception due to traffic and safety concerns in the area, with regard to section 5.3.1.g, that a home occupation should not create. Also with regard to section 4.4.e, the motion includes a finding based on testimony that the intersection of Pierce Lane and Abbot Hill Road is already dangerous because of site distances and the intersection is hazardous as is travel on Pierce Lane itself, particularly in the winter time. The Board finds that the proposed use would be inconsistent with section 4.4.e and 5.3.1.g.

Voting: 5 ayes; motion carried unanimously.

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 9:45 pm.

Wilton ZBA

9/14/10

Draft Minutes Revision 1