Town of Wilton, NH

Zoning Board Minutes

October 12, 2010

Board MembersChairman Neil Faiman; members, Carol Roberts, Andy Hoar (arrived late), Jim Tuttle, and Joe Poisson.
Agenda10/12/10 - 1 Sylvia W. Horsley Trust

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

A MOTION was made by Ms. Roberts and SECONDED by Mr. Poisson approve the minutes of September 14, 2010 as written.

Voting: 4 ayes; motion carried unanimously.

Case #10/12/10–1 — Sylvia W. Horsley Trust

Chairman Faiman explained that the Sylvia W. Horsley Trust has applied for an equitable waiver under RSA 674:33-a, to allow the continued use of the dwelling at Lot J-13, 21 Dale Street, as a duplex, where the lot does not meet the acreage requirements of section 5.2.1 of the Wilton Zoning Ordinance for two dwelling units.

Wil Sullivan appeared for the applicant and explained that Elizabeth Streeter owned the building in the 1980's at the time that the building inspector issued a building permit for a duplex which Ms. Streeter constructed. He further explained that Ms. Horsley bought the property in the 1990's for her sister, however recently her sister moved out and Ms. Horsley tried to prepare the property for sale but the building inspector found that it was not a legal duplex. He noted that the applicant appealed that decision of the Building Inspector but the Board upheld the decision. He stated that the property has been used this way for 25 years and while they recently discovered the issue, the violation was not out of an ignorance of the law. He explained that his client always thought the property was a duplex as it has a separate bath and kitchen and no connection between the two sides. Mr. Sullivan noted that the applicant has been before the Board several times and there has never been an abutter present so he does not think anyone is concerned about a diminution of value and it would be inequitable to require that it be made into a single family house and the site cannot meet the requirement of .5 acres per dwelling.

In response to a question from Ms. Roberts, Mr. Sullivan explained that the ordinance requires .5 acres per unit which does not exist so that is what they are basing their request on.

Mr. Faiman explained that the Board can find that the violation has existed for 10 years or more and that no enforcement action has commenced during that time. He noted that at previous meetings a letter from the Board of Selectmen from 1988 was presented however he questioned whether the time period in the ordinance refers to the last 10 years. He explained that if the ordinance does refer to the last ten years then no such notice has taken place but there was notice from the Board of Selectmen in the 1980's which was within 10 years of the original violation.

Mr. Sullivan explained that his client knew nothing of the issue for the last 10 years and while there was a letter from the Board of Selectmen, that was sent 22 years ago, it was not much of an enforcement action as nothing happen as a result of ignoring the letter. He stated that it is inequitable to say that what the Building Inspector did in 1988 has bearing on what has happened since the 1990s when the applicant bought the property.

In response to a question from Ms. Roberts, Mr. Faiman stated that while he does not remember exactly when, he knows the work on the house was completed by 1990.

In response to a question from Ms. Roberts, Dr. Horsley stated that there is a closet under the stairs so the bedroom is now on the main floor.

In response to a question from Mr. Tuttle, Dr. Horsley explained that the previous egress issues are no longer applicable because the bedroom is now downstairs.

In response to a question from Ms. Roberts, Dr. Horsley explained that a window was put in upstairs but it does not meet the dimensions of an egress, however it no longer matters because the bedroom is now downstairs.

In response to a question from Ms. Roberts, Dr. Horsley stated that no certificate of occupancy has ever been granted.

Mr. Sullivan noted that he does not think that the town was issuing certificates when this building was modified.

In response to a question from Mr. Poisson, Dr. Horsley explained that since she has owned the building her sister's older children lived in the apartment and her younger children lived in the main house but the bank told her that they were receiving $400 in rent from the apartment separate of the main house when she bought the building.

Ms. Roberts expressed concern about the request for a dimensional waiver and with the way the applicant wants to use the property. She also noted concern about the egress and parking.

Dr. Horsley stated that she had the property surveyed and there is room for four parking spaces but she does not anticipate the need for that many as she assumes that only one person would live in the small apartment.

Mr. Faiman stated that this section of the ordinance deals with dimensional requirements and he feels that the .5 acre per dwelling requirement is clearly a dimensional requirement.

Mr. Tuttle expressed concern about life safety issues and green space.

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

Voting: 5 ayes; motion carried unanimously.

Ms. Roberts explained that she sees how some of the applicant's points make sense but she is hesitant because she does not feel it is a good idea as it is an overuse of the property. She questioned whether agreeing to the waiver means that the Board agrees to the use of the property.

In response to a question from Ms. Roberts, Mr. Faiman explained that this application will not require site plan review but he does feel that the Board can still state that the finding does not waive the life safety and parking requirements. He further explained that the Board Members could feel that the proposal rises to the level of a public or private nuisance or find that the cost of the correction does not outweigh the public benefit to be gained.

Mr. Tuttle stated that it does not seem as if the neighbors have an issue with the proposal and the house has been updated thereby improving the neighborhood.

Mr. Faiman stated that the Board has to consider if it is unfair to impose the restriction because of the history involved and balance that against the reason for the requirements.

Mr. Poisson stated that this situation has been in existence for a number years and it has never been an issue in the past.

Mr. Tuttle stated that everything outlined in the original building permit has been completed and the town dropped the ball.

Mr. Fowler stated that he feels that the town dropped the ball twice.

Mr. Poisson stated that he does not feel that the applicant was trying to do anything deviant.

Mr. Faiman stated that he feels that the language in the ordinance is ambiguous and considering the situation he is inclined to be lenient in interpreting the language.

Mr. Fowler stated that he feels that the town's actions play a part in the decision and he wonders if a variance would have been granted for this in 1985.

Mr. Faiman stated that he does not like the idea of the little lot size but as long as parking and life safety codes are met he does not feel that this is a public or private nuisance.

Ms. Roberts questioned whether the Board had heard at prior meetings that the use of this property as a duplex had lapsed because it was used by one family.

Mr. Faiman stated that he feels that the Board has heard that since the applicant has owned the property the family has used both the units.

Ms. Roberts noted that the water and sewer service had been reduced to a charge of one unit for the entire property.

Mr. Faiman noted that in previous testimony the Board heard that the change of water charge was initiated by the owner's sister unbeknownst to the owner.

A MOTION was made by Mr. Tuttle and SECONDED by Ms. Roberts to grant the equitable waiver and allow two dwelling units. The Board noted that this decision does not exempt the apartment from the building code requirements with regard to emergency egress and parking requirements. The Board also asked that the applicant submit a diagram demonstrating that four parking spaces are available, within three weeks, for the file.

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 8:30 pm.

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