Town of Wilton, NH

Zoning Board Minutes

July 8, 2014

Board MembersChairman Neil Faiman; members, Andy Hoar and Joanna Eckstrom and Alternates Bob Spear, John Jowders, and Paul Levesque.
  • Minutes of June 10, 2014
  • Case #3/11/14-1 NTV, LLC
  • Adjournment
  • Minutes

A MOTION was made by Ms. Roberts and SECONDED by Ms. Hoar to accept the minutes of June 10, 2014 with the following amendments:

- Change "Mr. Hurlihy" to "Mr.Herlihy" throughout

- Change "Maggey" to "Maki" throughout

- Correct Mr. Boram's representative's name

Voting: 5 ayes; motion carried with Mr. Jowders abstaining.

Case # 3/11/14 NTV, LLC

Mr. Faiman explained that NTV, LLC has appealed a decision of the Wilton Building Inspector prohibiting the reconstruction of a building on Lot D-155, Forest Road, on the grounds that it does not meet the lot area, width, and setback requirements of section 6.2 of the Wilton Zoning Ordinance. The applicant asserts that the building is a fishing camp and therefore, according to Article II of the Wilton Building Code, does not require a building permit.

Mr. Faiman noted that he has handed out packets of RSAs he felt pertained to this case as well as a monograph on appeals from the Local Government Center.

Mr. Griffith appeared before the Board and explained that the property under discussion is on Route 31, extending from the road underneath the river and onto the other side of the river. He submitted a picture of the building as it exists in 2012 and noted that in July of 2012 NTV, LLC had an idea to restore the property to its former glory because he had used the site for fishing in the past. He explained that he did not file an application with the Building Inspector but rather someone else asked the Building Inspector for his opinion. He further stated that the Zoning Board hears appeals on decisions but a decision is based on an application and in this instance no application was filed and therefore this case is out of the jurisdiction of this Board. Mr. Griffith also read RSA 672.1: Declaration of Purpose for Planning and Zoning; 3b and 3c to the Board noting that "such fisheries are worthwhile and should not be discouraged."

In response to a question from Chairman Faiman, the Board decided to address the question as to if the Zoning Board has jurisdiction in the case first.

Mr. Shepardson stated that Mr. Griffith and his contractor, Mr. Valente, had been in his office and verbally told him what they wanted to do and then he was contacted by the contractor who said he was there at NTV's request to see what hurdles would have to be overcome. He stated that the contractor asked that he write a letter explaining these issues to NTV.

In response to a question from Ms. Eckstrom, Mr. Shepardson stated that he had not written a letter in any other case but he was trying to accommodate them and by being helpful and cooperative.

In response to a question from Mr. Spear, Mr. Shepardson stated that the letter was advisory in nature.

Mr. and Mrs. Griffith stated that they had not met Mr. Shepardson before the date on the letter.

Mr. Valente stated that he also had not met Mr. Shepardson until after the letter was received. He further stated that when he met with Mr. Shepardson he suggested that Mr. Shepardson produce a Cease and Desist document. He also noted that Mr. Valente stated that Mr. Shepardson stated that the proposed contradicted with his personal opinions of land ownership.

Mr. Shepardson stated that his original testimony was incorrect as he did not meet with Mr. Griffith or Mr. Valente until August 20th. He further stated that they did ask that he issue a stop work order but no work had been started so he declined to do so.

A MOTION was made by Mr. Hoar and SECONDED by Mr. Jowders to close the public hearing.

Voting: 5 ayes; motion carried unanimously.

Ms. Eckstrom stated that she does not feel that a letter qualifies as an actual denial.

Mr. Faiman noted that Mr. Griffith stated that there would never have been an application.

Mr. Hoar and Mr. Jowders noted a Cease and Desist could have been issued.

Mr. Faiman stated that the Building Inspectors letter was on letterhead, signed "John Shepardson Building Inspector", stated his decision, and that it appealable to the Zoning Board. He also referred to the Bernard Waugh monograph included in the packet handed out at the beginning of the meeting and stated that he thinks one would start with a letter before producing a Cease and Desist order; so he believes that the letter is still a decision.

Ms. Eckstrom stated that she does not believe that the letter is specific enough.

A MOTION was made by Mr. Spear and SECONDED by Mr. Jowders to find that the letter in question is an appealable administrative decision.

Concern was expressed that the contractor was not the legal representative of NTV, LLC.

Mr. Spear stated that what lead up to the letter is less important than the fact that the Building Inspector made a decision.

Voting: 4 ayes; motion carried with Ms. Eckstrom voting against.

Mr. Griffith stated that Mr. Faiman needs to recuse himself as well as a whole new board needs to be found because this Board has received prejudicial and irrelevant information from him.

Mr. Faiman noted that a portion of the information Mr. Griffith finds prejudicial was provided by the clerk, not himself, and he asked that the record show that Mr. Griffith believes that Mr. Faiman is biased and his request that Mr. Faiman recuse himself is denied.

Mr. Griffith explained that the letter written by the Building Inspector stated that the Zoning Code does not allow residences on this lot but he explained the fishing camp is allowed as it is an exception. He also stated that the Building Inspector stated that the lot does not meet the minimum width requirements but the lot is 1/4 mile wide. He further stated that the letter stated that the set back requirements for a residential use with a permit is 35? and and he stated that this lot has 50? of setback. Lastly, he explained, that the letter stated that a nonconforming use may not be re-continued after being abandoned for a year, but he stated fishing is allowed everywhere.

In response to a question from Mr. Jowders, Mr. Griffith stated that the use is "fishing" and the building was still in use. Mr. Griffith noted that there is nothing in the letter about the building being discontinued.

The Board reviewed Section 17.1 of the Wilton Ordinance.

Mr. Griffith stated that there is nothing in the letter about demolition.

Mr. Faiman stated that the letter clearly talks about a building.

Mr. Griffith stated that there is an exception in the Building Code for fishing camps.

Mr. Shepardson noted the preamble to the Zoning Ordinance and the Clerk noted that this is the current preamble not the preamble from 2012.

Discussion ensued with regard to the setback in reference to not including the right of way of Forest Road when measuring for the setback.

In response to a question from Mr. Hoar, Mr. Shepardson stated that only the remnants of an unusable building remained with no floor. He noted that it has not been used in a long, long time.

Mr. Spear stated that in his opinion a camp is a place where you sleep overnight, not just tie a few flies.

Mr. Shepardson submitted a picture of the building in question which showed it to be falling down building and noted that in his letter he stated that there could be other problems such as flood plain regulations.

Ms. Eckstrom noted that as long as the applicant built on the same footprint they would not invoke the Shoreline Protection Act.

Mr. Shepardson noted that there are two additional structures currently in violation that need to be dealt with.

Mr. Griffith explained that one shed was dropped there for use during the building process and was intended to be moved but since the court injunction was issued nothing can be changed.

Mr. Valente noted that there is also a second building on the property that has been started.

Mr. Faiman stated that there are two wood type cabins in addition to the remains of one that can be seen on the property.

Mr. Griffith stated that that all of that happened before July 30, 2012.

Mr. Valente explained that the shed in the front was put on the original foot print and will be staying and the one on skids will be leaving.

In response to a question from Carol Roberts, the Board explained that the Department of Environmental Services monitors wetlands and floodplains are a town issue.

Mr. Griffith explained that wetlands are under local as well as state jurisdiction and locally there are no wetlands shown on that property and the floodplain is in the same place as before. He further noted that the building has never come down and it is a non residential use.

Mr. Faiman summarized the testimony so far stating that there was a misconstrual of what is and what is not allowed, the restrictions apply to residences and not fishing camps, the setbacks are for residences or structures with building permits, and there is a belief that non conforming structures only lose their grandfather status when they are demolished or destroyed.

Mr. Griffith noted that the letter does not say anything about the building being destroyed or abandoned, just about the use.

Ms. Eckstrom noted that if one wanted to put in a 10? x 10? shed the current ordinance would not allow it to be put in the setback.

A MOTION was made by Mr. Hoar and SECONDED by Mr. Jowders to close the public hearing.

Voting: 5 ayes; motion continued unanimously.

The Board reviewed Section 16.2 of the Wilton Ordinance and noted that most do not apply because the cabin is not a dwelling.

Mr. Hoar stated that the Department of Environmental Services and the state regard the cabin as an existing structure and he feels that it should be allowed to stay, although he noted that he is not sure he would say the same thing given the state of the ordinance if another building were to show up. He further stated that it makes sense, under the old building code, to call it a fish camp and noted that the state considered it non-discontinued.

Ms. Eckstrom agreed, noting that the state cautioned them to stay within the original footprint.

Mr. Faiman stated that the argument about the fishing camp is irrelevant because the Zoning Ordinance supersedes the Building Ordinance. He also explained that the setback would be an issue but if the lot is grandfathered that's not relevant.

Mr. Spear stated that a camp is a place where you could live short term and he could not imagine doing that in the building he saw in the picture. He also stated that he does not remember a lot of activity happening at the site. He feels that there are holes in the law.

Mr. Faiman noted that Section 17.1 says uses can be abandoned but structures have to be demolished or destroyed.

Discussion ensued as to what qualifies as demolished or destroyed.

Discussion ensued as to if the building was grandfathered.

A MOTION was made by Mr. Hoar and SECONDED by Mr. Spear to find that Section 17.1.d, which allows for rebuilding on the same footprint within one year, is applicable to the property in this case and the Board does not find that the building has been demolished or destroyed.

Voting: 5 ayes; motion carried unanimously.

The Zoning Board has overturned the ruling that a Building Permit cannot be issued.

Mr. Jowders noted that the Board respects the decision of the Building Inspector and understand what he was trying to do.


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

Voting: 5 ayes; motion carried unanimously.

Chairman Faiman declared the meeting to be adjourned.

Respectfully Submitted,
Heather Loewy Nichols