Town of Wilton, NH

Zoning Board Minutes

July 12, 2011

Chairman Faiman opened the meeting at 7:35 p.m.

Minutes

A MOTION was made by Mr. Hoar and Ms. Eckstrom to accept the minutes of June 14, 2011 with the following amendments:

- Page 1, Line 29: change "as question" to "a question"

- Correct "Mr. Hoar" throughout

- Note that Ms. Eckstrom left the meeting prior to the second case

Voting: 4 ayes; motion carried with Mr. Tuttle and Mr. Jowders abstaining.

Case #7/12/11–1 — Denis R. Viens

Wil Sullivan appeared before the Board for the applicant and presented a subdivision plan from 1946 for the site in question. He explained that Mr. Viens bought the property in early June, and being an electrician by trade, he went to get a permit for electrical work to his home and was denied due to the fact that the duplex use had been abandoned. He further explained that originally the Gregoire's bought the property and rented it as a duplex but due to family needs they cut a door through the upstairs to reach the upstairs bedrooms and combined the electricity and furnace. Mr. Sullivan noted that the house still contains two of everything else including water meters, porches, bulkheads, and a brick firewall between the buildings in the basement. He noted that the only connection between the two dwellings is the upstairs door. Mr. Sullivan submitted pictures of the prior mentioned items including the two porches, meters, bulkheads and brick wall in the basement. He also submitted tax cards from 2003 and 2004 in which the property was noted as a duplex. He further stated that it would take a considerable amount of work to make this property a one family home but it would only take a few hours to turn it back to a duplex by covering the hole and separating the electricity.

In response to a question from the Board, Mr. Sullivan explained that there is 32? on one side of the building to the property line and 19? on the other side of the building. He explained that one could stack cars or put parking spots side by side on either side of the building.

In response to a question from Ms. Eckstrom, Mr. Sullivan stated that when the Viens bought the property it had two functioning kitchens.

In response to a question from Mr. Poisson, Mr. Viens explained that there were two heating systems and four flues but currently one furnace heats the whole house. He noted that he has an appointment with a contractor to convert the heating back to a two family set up.

Mr. Hoar noted an objection to Mr. Sullivan's letter that stated that Carol Roberts should not be on the Board for this case.

Mr. Chowers, of 3 Gregoire Circle, stated that he had an objection to Mr. Tuttle and Mr. Jowders voting on the application because they have a professional conflict of interest by virtue of being Wilton Water and Sewer Commissioners.

Mr. Jowders stated that he does not feel there is any conflict.

Mr. Faiman explained that the Board Members themselves ultimately have the decision as to whether they feel there is a conflict of interest or not but they can ask the opinion of the other Board Members.

Mr. Tuttle stated that anything that may have been discussed at the water and sewer meetings does not apply to this case.

In response to a question from Mr. Hoar, Mr. Sullivan stated that it has probably been 40 years since this property was used as a duplex.

In response to a question from Curt Schnare, of 11 Gregoire Circle, Mr. Faiman stated that a house cannot be zoned as a duplex or single dwelling however duplexes are a permitted use in the residential district as long as the lot is at least an acre in area or a half acre if the lot is on town water and sewer.

In response to a question from Ms. Murray, of 3 Gregoire Circle, Mr. Sullivan stated that he believes the water company quit billing for the second meter because it was not being used.

In response to a question from Mr. Chowers, Mr. Viens explained that the house was originally wired for a duplex which has been updated with a 3 gang meter box that provides one meter for each side of the building and one house meter for a well or other shared items. He noted that at this point they are only using one meter.

In response to a question from Mr. Chowers, Mr. Viens explained that there is currently one refrigerator and one stove but there are hook ups for two of each.

Mr. Tuttle explained that the Water and Sewer departments require separate kitchen facilities, which is defined as separate sinks, and functioning bathrooms. He noted that the Board reduced the bill for the past owner because they knew she was living there by herself but to revert to a single dwelling home, according to the Water and Sewer departments, one would need to remove the second kitchen.

Bob Duquette, of the Water Commission, explained that there are currently two active meters but the Water Department does not read them both because of the reduced usage. He also noted that other houses in town have abated water and sewer bills because they are not in use even if they still have active units.

In response to a question from Linda Schnare, Mr. Faiman explained that the Board will be making a judgment on the non-conforming or grandfathered use of the lot under discussion. He further explained that the basic rule is if something existed before it was restricted by zoning and it was legal at the time and has continued in existence then it may continue to be used legally in the same way. He stated that the Board will make a decision as to whether the use was continued and therefore also the legal status.

In response to a question from Ms. Eckstrom, Mr. Viens explained that there is currently no access from unit to unit on the first floor and one "kitchen" is used as a laundry and the other "kitchen" as a kitchen.

In response to a question from Mr. Jowders, Mr. Viens stated that the property has been taxed as a two family home.

Mr. Faiman reminded the Board that Town Counsel advises that tax records are how the town views the property but they are not a legal representation.

Ms. Eckstrom disagreed noting that she will be petitioning the town so that the ZBA can note decisions on the tax card as it is not fair to prospective buyers not to.

In response to a question from Mrs. Schnare, Ms. Eckstrom explained that, at the time the building was built, the original owners legally built it as a two family home on the one lot.

Mr. Duquette stated that he received a call from Pam Woodward, in reference to a building on the adjacent lot, and he and Mr. Tuttle met to walk the street and have a discussion regarding water and sewer lines running across private property.

In response to a question from Mr. Spencer, Mr. Duquette stated that by current standards the lot is substandard as are many other lots in town which are not required to apply for a lot line adjustment.

In response to a question from Ms. Murray, Mr. Viens explained that any new work has to meet current code.

Mr. Jowders and Mr. Faiman noted that the building code is not what the Board is discussing regarding this case.

In response to a question from Deb Jenson, of 14 Seagroves Road, Mr. Viens stated that he only owns the duplex under discussion.

Mr. Faiman noted that the Board received two letters in opposition from Ron Conlon, of 60 Burns Hill Road, and Spencer & Mary Brookes, of 56 Burns Hill Road.

Ms. Eckstrom stated that she does not feel that a kitchen without appliances qualifies as abandoning a use.

In response to a question from Mr. Jowders, Mr. Faiman stated that there is a duplex on a non conforming lot next door and Mr. Sullivan noted that there are many duplexes on non confirming lots in town.

In response to a concern expressed by Mr. Brookes regarding emergency vehicle access, Mr. Faiman explained that the Board's decision will be whether the non conforming use is valid or not valid but not necessarily with regard to the effect on the neighborhood.

In response to a question from Ms. Eckstrom, Mr. Brookes explained that Mrs. Gregoire had been living in the home and she usually leaves for four months in the winter but this year she did not come back.

In response to a question from Mr. Poisson, Mr. Sullivan stated that the dwellings are mirror images of each other and have two bedrooms in each.

In response to a question from Mr. Brookes, Mr. Tuttle stated that the water and sewer capabilities are adequate.

Mr. Chowers stated that the house is a tight squeeze whether it is a one family or two family and parking as well as the substandard street is a concern. He stated that the duplex use was abandoned as a wall was torn down so that the owner could care for her husband. He further stated that no one has raised any opposition to the Building Inspector's decision that the purpose has been abandoned. He also noted that this house was advertised as a one family house.

Mr. Chowers continued by reading from the May 26th Water Commissioners meeting minutes regarding paving for Lot 6 and Mr. Faiman stated that he could not see how the minutes were relevant. Mr. Chowers stated that the water and sewer lines run through Lot 3. Mr. Faiman stated that he does not hear any specific allegations of a conflict of interest. Ms. Eckstrom noted that the RSAs allow for people to be on more than one Board.

Mr. Sullivan noted that no wall was torn down but rather a door was put in and that he spent 20 minutes making opposing arguments to the Building Inspectors decision. He also submitted the Purchase and Sales agreement noting that it states "being a two family home serviced by municipal town and sewer."

Mr. McGettingan stated that he remembers this house as always being a two family home and noted that the Water and Sewer Boards agreed to charge for one water hook up because the owner was not using as much but not because it was a one family house. He stated that in his opinion the house has always been a two family house.

In response to a question from Mr. Hoar, Mr. Viens stated that one driveway is paved and the other is grass and one can fit two cars on each side.

Mr. Brookes stated that there is only room for one car on one of the sides and he is concerned about bringing the house up to 2011 codes.

Mr. Faiman summarized the positions that had been presented.

A MOTION was made by Mr. Poisson and SECONDED by Ms. Eckstrom to close the public hearing.

Voting: 5 ayes; motion carried unanimously.

Ms. Eckstrom stated that she questions if the use was really abandoned and noted that if it had been then a wall would have been taken down on the first floor.

Mr. Hoar noted that there have not been any tenants.

Ms. Eckstrom noted that there are two kitchens and four flues among other duplicated features.

Mr. Faiman questioned whether a duplex is about the physical shape of the building or the way it is used. He stated that it is clear that the building can easily be made back to a two family but the house was being used as a single home.

Discussion ensued as to whether the Board should be considering how the building was used or whether the building itself has maintained its duplex qualities. The Board noted that a single family used both of the two dwelling units.

A MOTION was made by Mr. Tuttle and SECONDED by Mr. Poisson to grant the relief as requested and determine that the building has retained its status as a duplex because the building itself has not been altered to change that fact. The building was built as a duplex and has never been altered in a way that makes it not a duplex so therefore the appeal is granted.

Voting: 4 ayes; motion carried with Mr. Hoar voting not in favor.

Mr. Sullivan thanked the Board and noted that the applicant will upgrade the electrical and make four parking spaces and asked that the equitable waiver be tabled indefinitely in case an appeal is sought.

A MOTION was made by Mr. Hoar and SECONDED by Mr. Tuttle to table the equitable waiver decision until September 13, 2011 with the understanding that it will be withdrawn if no appeal request is sought.

Voting: 5 ayes; motion carried unanimously.

Other Business

Mr. Faiman noted that the Board has received a request for a re-hearing that the Board will discuss at the August meeting.

Adjournment

A MOTION was made by Ms. Eckstrom and SECONDED by Mr. Hoar to adjourn the meeting.

Voting: 5 ayes; motion carried unanimously.

Chairman Faiman declared the meeting to be adjourned at 9:45 p.m.

Respectfully Submitted,
Heather Loewy Nichols
Clerk
Final Draft Approved 8/9/11