Town of Wilton, NH

Zoning Board Minutes

April 10, 2012

Chairman Faiman called the meeting to order at 7:30 p.m., introduced the Board Members, and noted that the secretary was absent and the meeting was being recorded.

Minutes

A MOTION was made by Ms. Roberts and SECONDED by Mr. Carnduff to approve the minutes of March 20, 2012 as amended.

- Change "Field Stone" to "Fieldstone" throughout.

- Page 3, Change "therefore they are posing" to "therefore they are proposing"

Voting: 4 ayes; motion carried with Ms. Eckstrom abstaining.

Case #4/10/12–1 — T Arthur Babineau 1997 Irrevocable Trust

Chairman Faiman explained the T. Arthur Babineau 1997 Irrevocable Trust has requested an extension of a special exception granted in ZBA Case #6/08/10-3, as authorized by section 17.4 of the Wilton Zoning Ordinance. The special exception, under section 11.4(a) of the Ordinance, permits the construction of an access drive off of Holt Road that would cross a wetland area in order to access lots D-20, D-21, D-22, D-70, D-71, and B-83. It was approved on August 10, 2010 and will expire on August 10, 2012.

Wil Sullivan appeared before the Board for the applicant and explained that the applicant is requesting a two year extension due to the slow economy. He stated that the economy is out of the applicant's control and unforeseeable. He also noted that this extension is non prejudicial to the ordinance because neither the local or state requirements that apply to this application have changed.

In response to a question from Ms. Roberts, Patricia Babineau stated that she is a trustee for the Babineau Trust and she authorized Mr. Sullivan to speak on her behalf.

In response to a question from Ms. Roberts, Ms. Babineau stated that no work has been done on the site as of yet.

In response to a question from Stanley Young, Mr. Faiman explained that the Zoning Ordinance does not allow one to do anything in a wetland except what a wetland is meant for, such as being a habitat for frogs, unless the Board finds that the only reasonable access to a property is through the wetland, in which case the Board will grant a Special Exception to cross the wetland with minimal disturbance for the purpose of getting to the property on the other side. He further explained that the wetland in question is basically a stream that runs through the property. He stated that the Board visited the site with the engineer who designed the crossing.

In response to a question from Jason Markaverich, a Holt Road resident, Mr. Faiman explained that there was no through road proposed rather the applicant proposed an access that starts at the northern end of Holt Road and takes off easterly towards the high school which would provide access to the various lots on the other side of the stream. He noted that no specific building has been proposed.

Al Loverme, of 11 Holt Rd, stated that he feels that the Planning Board has no business making decisions based on the economy because it is out of the reach of the Board. He stated that the applicant now has access to the lot through a recently purchased site and he feels like the residents of Holt Road are still being held hostage waiting for the trucks to start going down the road. He stated that he does not feel that the economy is a good enough excuse.

Mr. Young stated that he thinks that the Board needs to be very careful about wetlands. He explained that a house across the street from him was allowed a wetland crossing and for 50 years prior to the crossing he had a blueberry patch that is now waterlogged post construction. He stated that he had to spend $4000 on drainage to keeps his crops and the only thing that was different was that the wetland was disturbed. He stated that he thinks one needs to look closely at wetlands before disturbing them.

In response to a question from Ms. Roberts, Mr. Mahar, of the Wilton Conservation Commission, stated that he went on the site walk and he remembers that there was no real change to the wetland as the crossing in question crosses a stream that has dry land on either side of it. He reiterated that there was no real change in the wetland and this proposal was just about getting from non-wetland area to non-wetland through the stream.

Ms. Roberts explained that the Planning Board was mentioned and noted that the Planning Board will evaluate much different items such as roads and access. She explained that the Zoning Board has a very narrow jurisdiction. She also explained that what the Board saw for wetland impact was reasonable for what was the applicant had planned at that point. She noted that when the original approval was granted no houses were planned and if the applicant goes before the Planning Board that will be the time to talk about access and house positions.

Ms. Eckstrom noted that the different boards may have different roles but they have the same goals of protecting the wetlands, people's rights, and people's rights to use their property in a meaningful way. She stated that after the walk and all the evidence was presented she found that the crossing was located in such a spot so as to minimally impact the wetland area and that it was the best place to put the crossing. She stated that the decision tonight is just to reaffirm the approval.

Mr. Markaverich stated that the applicant now has access off another property and he feels that the access through Holt road should be removed as he feels that the residents of Holt Road have been held hostage for these past two years.

Mr. Sullivan and Ms. Babineau stated that the two properties are two separate legal entities as one property is owned by the trust and the new property was purchased individually by two people who are not the same entity as the trust.

Mr. Sullivan stated that he does not think that the newly acquired property is relevant to the criteria stated in the ordinance. He explained that the standards for an extension are that the circumstances are out of the control of the applicant and the proposal does not violate the intent of the ordinance.

Mr. Faiman stated that if there has been a change in the circumstances that justified the special exception in the first place than it would be relevant for the Board to consider when contemplating an extension of the special exception and therefore he thinks it is appropriate to consider these circumstances. The criteria of the special expectation is that it is necessary to access the property but if this is no longer the case then he thinks that this is something the Board should take into account.

In response to a question from Ms. Roberts, Ms. Babineau confirmed that the two sites under discussion are owned by different owners and there is no existing partnership.

In response to a question from Mr. Faiman, Ms. Babineau confirmed that there is no existing easement across the newly purchased lot to access the lots that the wetland crossing is proposed for.

A MOTION was made by Bill Hoar and SECONDED by Mr. Poisson to close the public portion of the hearing.

Voting: 5 ayes; motion carried unanimously.

Mr. Carnduff stated that the original special exception was granted in August of 2010 when the country was already in a steep economic malaise and since that time the economy has bottomed out and is hopefully getting better. He questioned why the applicant applied in the first place in the depths of the economic issues and questioned whether therefore the economy is an appropriate reason for an extension.

Mr. Poisson explained that it was not the intent of the applicant, at the time of approval, to develop the site but rather they just wanted access for logging.

Mr. Hoar stated that, to a certain extent, no one expected the economy to take this long to clear up from 2008.

Mr. Poisson stated that he would like to see the wetland crossing closed off if a second access point becomes available.

Mr. Faiman stated that he does not think that the Board can put qualifications on the extension.

Mr. Hoar noted that the real question is whether the applicant qualifies for the extension and noted that it was a contentious case the first time around.

Mr. Faiman explained that the ordinance language is sufficiently open ended so that it is a judgment call on the part of the Board to determine if the applicant qualifies for an extension. He noted that almost universally applicants come to the Board for an extension due to economic reasons; they intended to complete the project but it has not been practical to do so yet and they still want to complete the project so they apply for an extension.

Mr. Carnduff questioned whether the extension should start today or at the extension of the last approval.

In response to a question from Mr. Carnduff, Mr. Faiman explained that the Board will need to decide if the extension starts today or at the end date of the original approval but he feels that the applicant should not be penalized for not waiting till the last moment.

Ms. Eckstrom stated that she feels that the extension should begin on August 12, 2012 not today.

The Board agreed.

Ms. Roberts stated that if the economy is an acceptable reason for an extension and the Board approved the crossing originally she does not see what else there is to discuss.

Mr. Faiman stated that the Board may want to consider if anything has changed since the original approval that would cause the Board to change their mind on the approval but noted that he does not see anything for this case.

Ms. Roberts noted that it seems to be murky in the minds of the public as to what the Zoning Board does versus the other Boards.

In response to a question from Ms. Roberts, Mr. Faiman stated that the Planning Board and Board of Selectmen may get involved in this case if the applicant decides to build on the lots because the lots are landlocked.

Mr. Hoar noted that items like the appropriateness of Holt Road would be reviewed by the Planning Board.

A MOTION was made by Ms. Roberts and SECONDED by Mr. Carnduff to extend the special exception which was approved on August 10, 2012 to August 10, 2014.

Voting: 5 ayes; motion carried unanimously.

Other Business

- Election of Officers

Mr. Faiman explained that normally at this time of the year the Board would elect officers for the upcoming year but that Ms. Eckstrom has pointed out that this is usually done with current Board Members and Mr. Hoar's and Ms. Roberts' appointments expire this year. He stated that they will need to request re-appointments from the Board of Selectmen and then at the next meeting the Zoning Board will elect officers with a full Board of current members.

Policy Change: Requests for Extensions

Mr. Faiman stated that at the last meeting the Board talked about adopting procedures for requesting an extension as none have been formally approved. He suggested that request for extensions get treated as any other application including, fees, abutter lists and notifications, a full application form, public hearing, and notice. He noted that this change would require that a new page be included with the application for extension requests and that the Board would also need to modify the instruction page to include this kind of application.

Ms. Eckstrom suggested that request for extensions be accepted no more than 90 days prior to the expiration date.

Mr. Hoar suggested that the hearing should occur no later than the month of the expiration but noted that the same month would be acceptable.

Mr. Carnduff suggested that the application should be received at least 30 days prior to the expiration.

Mr. Carnduff stated that he thinks that the applicant should be allowed to come to the Board early enough so that if they are denied they have the opportunity to do the construction.

Mr. Faiman stated that the burden should be on the applicant and he does not want to be too picky about timing.

The Board discussed different timing options.

A MOTION was made by Mr. Carnduff and SECONDED by Mr. Poisson that the Board adopt a policy that extension request applications must be filed prior to, but no more than 90 days prior to, the expiration of the original approval.

The Board discussed stating that no work should commence after the expiration prior to extension.

The Board discussed whether they should allow the applicant to come in until the date of expiration or 30 days prior.

Mr. Faiman expressed concern that the applicant would not know that they needed to come in 30 days prior to the expiration of their original approval.

Voting: 5 ayes; motion carried with Ms. Eckstrom against.

Mr. Faiman noted that he will work on the policy further and bring it back to the Board next month to be voted on.

Adjournment

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

Voting: 6 ayes; motion carried unanimously.

Chairman Faiman declared the meeting adjourned.

Respectfully Submitted,
Heather Loewy Nichols
Zoning Board Secretary
Page 2 of 4
Wilton ZBA
Final Revision
Final Revision Approved 5/08/12