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ZBA grants equitable waiver for foundation that encroached 2 feet on Winnipesaukee Drive side setback
Summary
The Zoning Board granted an equitable waiver for a Winnipesaukee Drive foundation that was found to sit 23 feet from the side line where 25 feet is required. The board concluded the encroachment resulted from a measurement error discovered after foundation work was completed and that correcting it would be inequitable.
The Wolfeboro Zoning Board of Adjustment on Feb. 3 granted an equitable waiver for an encroaching foundation at Winnipesaukee Drive (case 04EW-25), after finding that the side-setback violation (23 feet observed vs. 25 feet required) resulted from a good‑faith measurement error discovered after the foundation was poured and the structure was substantially completed.
Why it matters: Under Wolfeboro’s equitable-waiver process the board may excuse a technical, inadvertent setback violation when the owner or contractor shows the violation was not caused by bad faith and when the public benefit of correcting it is outweighed by the cost and disruption of correction. The applicant provided documentation and a narrative describing survey activity, the use of septic as‑built information in locating the foundation, and subsequent verification that the foundation encroached two feet into the side setback.
Peter Meeves of Triple M Renovations said his crew used available septic plans and an approximate property pin to set forms; after pouring the foundation and completing an as-built for the septic, the as-built survey showed the foundation sat at 23 feet from the side line instead of the required 25 feet. Meeves told the board the error was not the result of bad faith, that the contractor has built many houses in town without this issue, and that the nearest abutters had not raised objections.
The board reviewed the equitable‑waiver checklist and applied the statutory factors: the violation was not discovered until after the structure had been substantially completed; the record showed a good‑faith measurement error (rather than bad faith or deliberate concealment); the two‑foot encroachment did not create a demonstrated nuisance or materially impair neighboring property use in the board’s review; and the cost and disruption of requiring demolition or reconfiguration at this stage would outweigh any public benefit.
The ZBA voted unanimously to grant the equitable waiver and read standard conditions and appeal rights into the record. The board noted that an aggrieved party may appeal to the county superior court within 30 days.
Next steps: The board instructed the applicant to record the decision (as required in some cases) and reminded contractors to obtain foundation certification or survey confirmation before pouring forms in the future.
