Bay Side Inn expansion wins ZBA approval

Stephen and Raquel Rogers, the owners of The Bay Side Inn on Route 11D, won approval from the Zoning Board of Adjustment (ZBA) this week to move ahead with their plans to expand the rental capacity of the over-50-year-old lodging facility by putting a new building across the street.

But the decision to grant the Rogers both a zoning variance and a special exception came after a long session at Thursday’s ZBA meeting in the Town Hall, in which several abutters raised objections — and following the board’s June rejection of a request from the Rogers to use the proposed new building for condominium units that they could sell.

The couple still has to appear before the Planning Board for site plan approval.

During Thursday’s hearing, Stephen Rogers acknowledged he did not have a specific plan for the new building at this time. The ZBA members did not mind that as long as the structure conforms to the town’s zoning ordinances regarding “lodging” facilities, which will limit the number of people sleeping in the structure to 10.

At the hearing, attorney Scott Hogan of Manchester, who represented the Rogers, argued that even though the couple wanted to put up a lodging structure that was, strictly speaking, not allowed in the lakefront residential zone, there were good reasons to permit it.

One was that although the zoning regulations forbade the operation, its construction fit perfectly into the town’s Master Plan goal of developing more rental rooms in the Alton Bay area.

Hogan also said the density requirements for a facility like the Rogers want to build requires at least 10 acres, yet there is no lot that size available in the neighborhood anymore. “Here, we’re asking for three acres, four units,” he said.

“The Rogers have always run the inn well, they’ve always been an asset to the neighborhood, good stewards to the Bayside Inn and will continue to be,” Hogan added. “(The use) is consistent with other (small lodging establishments) uses in the neighborhood. It will have a positive effect on property values in this area.”

The lawyer noted that the Rogers’ immediate abutters supported their efforts to expand and that those abutters who did not were without the necessary “demonstrable facts” that would indicate they would somehow suffer from the new building construction. He said the structure would harm no one’s view of Lake Winnipesaukee or create any significant traffic issues on the road.

Finally Hogan said the Rogers were eligible for a special exemption under the “hardship” clause of the zoning regulations because there was nowhere else they could reasonably be expected to put an enlargement of the Bay View Inn.

“This business, it’s really a poster child for this kind of industry in this kind of town,” he concluded. “It’s in the public interest (to allow the construction) because there’s a shortage of rooms for exactly this kind of use. And it will increase property values which will increase property taxes for the town.”

But speaking for the Woodbury Family Trust, attorney James Cassidy of Concord said the Rogers new building proposal was virtually the same as the condominium idea the ZBA rejected in June, “only in a different color.”

Cassidy said the ZBA was responsible for enforcing the current zoning regulations, not goals listed in the Master Plan.

And he said the Woodburys’ don’t feel it’s their responsibility to somehow make the Bayside Inn look like an inferior operation. “We really don’t have to say that this project its simply awful or that this building will lead to rack-and-ruin. We’re here to convince you that you (ZBA members) simply have to follow the law (by following the written ordinances).”

Cassidy said legal precedence in the state does not allow for a property owner to seek a “hardship” variance if they’ve created the situation themselves, which is what the Rogers did. He said the couple had sold property adjacent to the lot they want to use to other people for single family homes when that land could have been used to help created the required 10-acre lot for a lodging structure.

“If a hardship is self-created, you have no grounds to grant relief under the zoning ordinance,” the lawyer told the board.

Finally Cassidy presented a letter for the Gagnon Real Estate company in Gilford stating that the proposed new structure would have a detrimental impact on property values in the area.

Representing another abutter, attorney Michael Donavan told the board that it did not have jurisdiction to decide the case. He said that even if the Rogers were applying for a “lodging” establishment what they were really seeking was a motel operation.

“They’re not renting rooms, they’re selling dwelling units,” he said. “We all know what a lodging establishment is. It’s where rooms are rented, there’s a shared bath or something like that, and it’s for transient, temporary people. I would submit to you that if it walks like a duck, sounds like a duck and looks like a duck, it’s a duck. This duck is for four multifamily dwellings and you’ve already denied a variance for that.”

Before the public portion of the hearing ended, another resident of the neighborhood, John Tibbs, who identified himself as a real estate broker, disagreed with the remarks made in the letter from Gagnon Real Estate. “I’m assured that my property value will increase as that lot is developed (by the Rogers),” he said.

When the board began its pubic deliberations, Chairman Tim Kinnon quickly dismissed the idea that the board did not have jurisdiction to rule on the issue. The three other sitting members — Steve Hurt, David Schaffner and alternate Pam McLeod — agreed with him.

Kinnon also said that the “hardship” exemption could apply because the Roberts case was a special one since they wanted to open a lodging facility where the “office operations” would be directly across the street.

Again, the other board members concurred.

When the board reviewed its checklists for variances and special exceptions, it could find no substantial reason to turn down the Rogers’ request. Their request for approval passed unanimously.