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01/10/08 ZBA Minutes

February 7th, 2008

Carroll Board of Adjustment
Meeting Minutes January 10, 2008



“These minutes of The Town of Carroll Board of Adjustment have been recorded by its Secretary. Though believed to be accurate and correct they are subject to additions, deletions, and corrections by The Board of Adjustment at its next meeting when the Board votes its final approval of the minutes. They are being made available at this time to conform to the requirements of New Hampshire RSA 91-A:2”

Members of the Board present: Joan Karpf, John Goodney, Leslie Bergum, Pam Walsh, Paul Bussiere

Members of the Public present: Edith Tucker, Dan Tucker, Walter Elander, Erik McMurray, Matt Dieterich,

Meeting called to order at 7:15 PM.

The minutes for December 13, 2007, were reviewed. Leslie Bergum noted that on page 2, it was she who had asked about the fireplace and that it was Paul Bussiere who had asked about future use of the attic. Leslie Bergum made a motion to accept the minutes as corrected. John Goodney seconded, and the motion was passed.

Chairman Karpf declared the Public Hearing to be in session and noted the order would be that the applicant would present the appeal and then the abutters, general public and Board could speak. Walter Elander of Horizons Engineering, representing BW Resort Management Co. and BW Land Co.,LLC, advised the request for the Area Variance was for height over the allowed 33 feet, as the new Story/Sales Center is 44 feet at its highest point. Mr. Elander described the building location and said it had been revised from a month ago in that they raised the slab level 1½ feet to get it above the flood plain. He pointed out that the Sports Center is 1,570.5 feet, which is 6” above the 100 year flood elevation. The corner of the building near the intersection of Rt. 302 and Ski Area Road has an elevation of 1,579 feet. In further comparisons between the two buildings, Mr. Elander stated the height of the Sports Center tower is 52 feet and when added to the base of 1,570.5 feet gives it a total of 1,622 feet elevation, and the Story/Sales Center when adding the ridgeline of 44 feet to its base of 1,579 feet totals 1,623 feet—one foot higher than the Sports Center. He said the footprint of the building is 5,000 square feet, with 11,000 square feet of useable space on two floors. The main entrance faces Ski Area Road and there are two entrances on the north elevation. Mr. Elander asked if there were questions on the use of the building.

At this point, Chairman Karpf read two letters that had been received regarding this. The first was from Richard Donadio, President of Mount Washington Place Association. Mr. Donadio expressed concern about the impact that the height of buildings can have on existing homes both in his Association and near the ski area. He also referred to the new ordinance that is being discussed and reiterated his concern particularly about views that may be affected by buildings that are higher than 33 feet.

The second letter was from Nancy Hardaway and Larry Peterson from So. Yarmouth, MA, and owners of 89 Rivers Edge, Riverfront. They advise that they are abutters to the Overlay District that is proposed and of which this building will be a part, but that they were not notified of the variance hearing. They wanted to express their concerns about the height and size of the building affecting the character and charm of the area and that the building may be setting a standard for the rest of the village. They also questioned its impact on the safety of the entrance road, which is the access to their property. They posed the question of what the hardship would be if this were to be smaller or put somewhere else.

As there were no abutters present, Mrs. Karpf stated that she had questions about fire that she had hoped Jeff Duncan would be available to answer. She’s been investigating what the fire department is capable of handling and was hoping to have help understanding the ISO rating system. She understands the rating is low in town and believes it has to do with equipment and number of volunteers as well as other reasons. She asked if the 33 feet height was for safety. John Goodney explained that he is a firefighter, not the spokesman for the Fire Department, and went on to explain that the trucks had 35 foot ladders, making a maximum of 33 feet to reach the roof. Mr. Goodney noted the eaves on the Sports Club are fairly low and it was pointed out that the tower on the building is unoccupied. It was stated that ladder size was the reason for the height restriction. Mrs. Karpf suggested the restriction was also for views and Mr. Goodney responded that as far as he knew it was just safety. It was stated that when height variances were being sought and approved for the Highland Center and the Nordic Center, safety was the only reason given at that time. Ms. Bergum asked about the height limit in relation to the spirit of the ordinance. Chairman Karpf said it doesn’t state in the ordinance that ladder length was the reason for the restriction. Matt Dieterich said he had just read the ordinance and it doesn’t give any reason for the height restriction, it just says that it is 33 feet. Mrs. Karpf said all the ordinance is based on the purpose of safety and she has issues with proximity to the National Forest. It is her opinion from the Bretton Woods Motor Inn and the Mooseland Grill experiences that fire is a concern in this town. Walter Elander said he had reviewed the plans with the Fire Chief, Jeff Duncan, and he is okay with it. There are three hydrants (one at Chief Duncan’s request) within several hundred feet, the building will be sprinklered and the eaves at 24 feet are well below the 33 feet maximum. There will also be a sprinkler booster, so they can get water from the sprinkler system. When it came up again, Mr. Dieterich noted that ISO rating is based on the distance from the fire station. He also said that Mr. Goodney could speak to the water pressure and quantity there.

It was suggested that the developer might be narrowing the road. Mr. Dieterich said that they will be removing the second island and will stripe part of the road for emergency vehicles, and that it will remain one way as it is now.

Ms. Bergum asked what the distance from Route 302 is. Mr. Elander responded that it is out of the Department of Transportation right-of-way but talked about the building being over the lot line of CNL. He noted that a Planning Board condition for approval is they must get a lot line adjustment.

Chairman Karpf asked about the attic space and if the three windows were part of it. It was stated that from the eave there is 20 feet of attic space, or 5,000 square feet of space. Mr. Dieterich said there will be no access and the ceiling for the second floor is at the eave level. There will be no floor in the attic—just rafters. Pam Walsh asked about future use of the attic and Mr. Dieterich replied that they have no plans. When Ms. Walsh asked about ten years or so down the road and someone different, Mr. Dieterich reminded that anyone wishing to use it would have to come back for a variance.

As there were no other questions, Chairman Karpf closed the Public Hearing, saying she would entertain what the Board would like to do.

Leslie Bergum asked about Planning Board conditions, that there was no mention of a variance from the ZBA. It was noted that John Birknes, Chairman of the Planning Board had stated that it was not a Planning Board issue, only a ZBA issue. Paul Bussiere pointed out that without it they can’t get a building permit anyway. After further discussion, the Chairman again asked what they wished to do regarding deliberating now or at the next meeting. Paul Bussiere and John Goodney suggested that they go ahead and deliberate now. To that end, Paul Bussiere made a motion that they deliberate and vote tonight and John Goodney seconded. Chairman Karpf stated that she still had fire questions, reiterating that she understands there will be a sprinkler system and that these are very good, but stated she wants to be sure all the fire issues are addressed and said if John Goodney could give assurances, at which point Mr. Goodney stated he is a firefighter and cannot guarantee what Jeff might. Ms. Bergum stated that the fire questions could potentially affect one or more of the criteria. Chairman Karpf called for a vote on the motion on the floor. There were four yeas with Leslie Bergum abstaining. The motion passed.

Chairman Karpf suggested they use the worksheet from the NH BOA for procedure to help with their discussion as they would follow the criteria thereon when going through each item on the application.

1. Regarding whether the proposed use would not diminish surrounding property values. Pam Walsh mentioned the two letters that had been read earlier and Leslie Bergum said views could be in jeopardy.

Mr. Bussiere asked if they had done any market survey regarding values having to do with this building, and Mr. Dieterich said they had not. Chairman Karpf said she would have liked to have seen comments regarding aesthetics and other things that affect value, such as distance from other buildings and that it is not close to residences. Mr. Elander stated that the only close ones are the Sports Center and Sales Building. Mr. Dieterich said the response was regarding the height thus they only mentioned the Sports Center.

2. Regarding whether granting the variance would not be contrary to the public interest. Ms. Walsh stated that the previously-read letters express concern. Mr. Dieterich said one of the letters addressed the building while the other addressed the Overlay District. Chairman Karpf said they both mentioned buildings of 33 feet and therefore she felt they were both appropriate. Ms. Bergum said she would interpret this from a safety and harm issue.

3. Regarding whether denial of the variance would result in unnecessary hardship to the owner.
a. Conditions that make an area variance necessary. Both Messrs. Elander and Dieterich responded that it is to make the inside functional as it is designed to use regarding various spaces and ceiling height.

b. That the same benefit cannot be achieved by some other method. Mr. Elander said they require 11,000 square feet and to get that they must have two stories as the land is not of sufficient size for one floor. Pam Walsh asked why so much space in the attic is necessary. Mr. Dieterich said it is to keep consistent with the architectural style, which Mr. Elander went on to say is a style common to the area at least in part because of snow load. Leslie Bergum said her interpretation is that unnecessary hardship stems from uniqueness of property. Mr. Bussiere interjected that at one time NH said hardship is very hard to prove because of finding some other reasonable use for the land. Since then they’ve changed it to say reasonable use of the land the way the owner would like to develop it. Thus it could be unreasonable to make the owner do something else, which could make it a financial hardship. Chairman Karpf noted that the state had recently divided the Use and Area Variance which she said she hoped would alleviate some of the questions and confusion and that is why she made sure this Board had the updated material and information. Thus, this is now an Area Variance and the part dealing with hardship, #3 which is being dealt with at this point, has new criteria which is as stated and, of course, up for interpretation. She went on to say that she had asked what the uniqueness of the property is and felt they didn’t have anything – no wetlands, no setbacks, no property use restrictions, so she cannot see a hardship regarding the condition of the property. Further, with the unused attic space, she feels finances are not a problem and therefore they could do something else. Mr. Bussiere said without the variance they would have to do a smaller building or put a roof with dormers instead of the higher roof. He also stated that he views this as a classic two-story New England pitched roof. Chairman Karpf asked what makes this property any different than anyone else’s—the whole town has the restriction of 33 feet, and this can’t be changed unless there is a reason, based on the uniqueness of the property, which she does not see here. She went on to say that there are fewer restrictions for Bretton Woods than in other parts of the town, so she views it more as something they simply want to do. Therefore, she feels they have to meet the criteria until the Overlay District is approved.

Mr. Dieterich stated that he was not aware the definition of unique property required wetlands or some other specific item to be present. He said this property could certainly be considered unique because of its boundaries on some sides and its slope and topography and because of existing structures, there are limits as to where they can go horizontally. He feels it may be not appropriate to say it is not unique because it lacks wetlands or some other criteria to make it very different, and went on to say that every property is different in that it is not flat, etc. He further stated that based on the Chairman’s interpretation, which is having different characteristics than its surrounding property, it would be impossible to find a unique property in the north country, as every property has something whether it’s that it is not flat or has wetlands or streams, etc., so they would no longer be unique from each other. Mr. Dieterich stated that there would be hardship if they had to redesign the building -- the square footage would grow, the site work would grow, and that’s if they could even get it to fit on the site. Chairman Karpf thanked Mr. Dieterich for this added information for the Board. However, she still questions the 5,000 square feet of empty space in the attic. Mr. Dieterich stated that it would be a safety issue if it were to be used. It was stated that they are looking for a variance for empty space. Mr. Elander explained that it is not the attic, it is the second floor that they are seeking it for. He reiterated that they need 11,000 square feet to do the business they are trying to do and the land is not large enough to put it all on one level, and they need the pitch of the roof or something close to it for architectural and structural (snow load) reasons. Mr. Dieterich reiterated the use they have planned, which includes specific requirements for the theater, a high ceiling 10 feet or more, on the first floor sales center. The second floor is office space for the business. Mr. Bussiere stated that even if they had a flatter roof, it would still be 5,000 square feet of space in the attic. When the extra space was still questioned, Mr. Bussiere said as he sees it, to be rid of it they would either have to change the pitch of the roof or eliminate the second story. Leslie Bergum read from the handbook that the ZBA should determine if special conditions of the property make the area variance necessary for the proposed use and that existence of special conditions on the property are essential.

4. Regarding whether granting the variance would do substantial justice. Mr. Bussiere agreed that it would allow the architectural consistency in the immediate surroundings and that it would add to the appeal of the area. Leslie Bergum stated it would be consistent with the existing sales center but not with the Sports Center and assumes future development will be like this. Chairman Karpf likes the architectural style but thinks there would be an injustice if the variance is granted if they don’t prove hardship.

5. Regarding whether the use is not contrary to the spirit of the ordinance. Pam Walsh asked what this meant. As a new member of the Board, she said she hadn’t had enough time or information to learn about everything. Leslie Bergum read Section 102, which is the purpose of the ordinance. Chairman Karpf believes it fits into the character of the town, however, because she also believes she is required to meet the criteria, she still can’t see how a hardship can be proven. Mr. Bussiere reiterated that he is sees it differently and opined that they should look at #3 again.

There being no further discussion, Chairman Karpf suggested they could go through each item listing their reasons and vote if that is what they would like to do. As there was no motion to do that, Mr. Bussiere said they could vote or table the matter to take time to digest the information. Pam Walsh made a motion to table and Paul Bussiere seconded. The motion passed on a 3 to 2 vote. After discussion, it was decided to continue deliberations to Thursday, January 31, at 7 p.m. It was noted that Chief Duncan be asked to attend.

Based on statements made at the beginning of the meeting when the Pledge of Allegiance was not said, Chairman Karpf asked for a motion. Leslie Bergum made a motion that from now on The Pledge of Allegiance be said at the beginning of each Zoning Board meeting. Paul Bussiere seconded and it passed unanimously.

There being no further business, Paul Bussiere made a motion to adjourn and Pam Walsh seconded. It was approved unanimously.

The meeting was declared ended at 8:55 p.m.

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