INTRODUCTION TO MANCHESTER ZONING BOARD OF ADJUSTMENT
The Zoning Board of Adjustment serves as an intermediate step when a property owner would otherwise seek a zoning amendment from the legislative body or take court action when they feel the ordinance is invalid. The ZBA provides a satisfactory resolution without burdening the courts. The Manchester Zoning Board of Adjustment is authorized by Statute and established by Ordinance. The ZBA has the authority to act in separate and distinct categories: an Administrative Appeal, a Special Exception, a Variance, an Equitable Waiver of Dimensional Requirements, an Appeal of the Planning Board’s Decision (if their decision is based on the terms of zoning ordinance and approved by the Director of Planning and Community Development) and an Appeal of the Heritage Commission’s Decision.
The ZBA is "Quasi-Judicial", which means that they are given the legal status to hold public hearings and make decisions to vary the provisions of the Zoning Ordinance, not changing the ordinance nor the zoning districts and more importantly, not to practice law. The Board may consult with the Planning and Community Development Department, the Aldermen and other departments when carrying out their function. Since the Board's decisions are subject to review by the courts, the ZBA may be inclined to consult with the City Solicitor's office before making their decision.
The Zoning Board of Adjustment cannot act on an appeal that is before them without a public hearing. At this time, all concerned parties will have the opportunity to be heard. All hearings are recorded and tapes may be available thereafter, by contacting the office. The cases are heard in the order that they are received in the department although the order may be subject to change on the call of the Chairman. Any material submitted at the hearing could be a basis for the case to be tabled. The applicant does not have to be present at the public hearing to have the case decided on but it is preferred, should there be questions of the Board Members or concerns of the abutters that should be addressed. When sufficient evidence is presented to the Board and they are ready for a vote, a decision will be rendered.
Variances stay with the property even though the property may change ownership. Financial hardship in itself does not warrant the granting of a variance. "Applicants for a variance may establish unnecessary hardship by proof that: (1) a zoning restriction as applied to their property interferes with their reasonable use of the property, considering the unique setting of the property in its environment; (2) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restrictions on the property; and (3) the variance would not injure the public or private rights of others" (Simplex Technologies, Inc. vs Town of Newington - 1/29/01).
The ZBA cannot take the following into consideration: the physical or economical condition of the owner, the fact that you did something without a permit, the fact that the property is not providing you with adequate return, the fact that the property was misrepresented at the time of the sale and personal reasons such as the house is not big enough, neighborhood feuds, etc.
The Zoning Board of Adjustment has the right to attach stipulations or conditions that must be adhered to, otherwise the variance or special exception may be revoked. Any deviation in the appeal application, plot plan or public testimony than what is presented to the Board could be a basis for denial.
When the Board grants a request, the applicant must obtain a permit from the Planning and Community Development Department within one year (even if Planning Board approval is required as well). If the permit is not secured within the specified time, the variance will expire and the applicant would then have to return to the ZBA. It is suggested that a 30-day waiting period be observed before starting construction just in case an abutter challenges the request or other evidence arises.
Any case requiring additional information may be "Tabled" by the Board for 30 days, unless the applicant requests in writing that the time be extended, but not longer than 90 days. Anyone who wishes to appeal the decision of the Board has 30 days to do so from said decision. When asking for the case to be reheard, the applicant must show sufficient cause as to why the case is subject to review. Some reasons for a rehearing would be the introduction of new evidence to be considered or a change in circumstances that considerably alter the case. If the request for rehearing is denied, the applicant has 30 days to appeal to Superior Court. After 30 days, the decision is final.
If a property has had a previous variance or special exception denied by the ZBA, appeals that are similar in nature are processed through the Planning and Community Development Department and reviewed by the Board at their Business Meeting as “Subsequent Applications”. The Board will then make the determination whether to accept the application for public hearing if the applicant can sufficiently prove that the circumstances has changed or a use differs in nature from the previous application. This policy was adopted to deter the same appeals from coming to the Board.
Addition information can be found in the By-Laws and Rules for the Transaction of Business, which can be found in the ZBA Office.
The Manchester Zoning Board of Adjustment is committed to accessibility for people with disabilities. Please contact the office should you need a sign language interpreter, materials in an alternate format or other accommodations.