Listed below are the various Zoning Board Applications along with a brief narrative of the by-laws for each application.
NOTE: For all applications to the Zonning Board, please provide on a separate piece of paper proposed findings of facts you would like the ZBA to base its decision. Proposed findings of facts can be three to five very brief points.
Under RSA 676:5, the Zoning Board of Adjustment has the power to hear and decide on appeals from a written administrative decision involving interpretation or application of the terms of the Zoning Ordinance within 30 days* of said decision. The appeal will be granted if the applicant can prove that the decision of the Planning and Community Development Director was made in error. A copy of the decision appealed from must be attached to the application. *Amended by the Board on 4/11/94.
The Zoning Board of Adjustment may reverse or affirm, wholly or in part, or may modify the order, requirement, decision or determination appealed from and may make such order or decision as ought to be made and to that end, shall have all the powers of the administrative official from whom the appeal is taken.
Article 13 of the Zoning Ordinance deals with impact fees. Section 13.06 provides for appeals as follows: "Any aggrieved party may appeal the provisions of this Article to the Zoning Board of Adjustment, as established in Article 14 of the Zoning Ordinance". Where the appeal is on the amount of the fee to be paid, the party shall first have exhausted its options available through the Planning Board under Section 13.08 B. In such cases, the party shall prepare an independent fee calculation study for the new development activity, which is proposed and shall provide a copy of the action to the Planning Board. All costs incurred by the City for the review of such study shall be paid by the party." (Per Zoning Ordinance, adopted 2/07/01)
Under RSA 674:33-a, the Zoning Board of Adjustment has the authority to grant an "equitable waiver" for a pre-existing violation of a dimensional requirement imposed by the Zoning Ordinance. (Effective 1/01/97). Waivers shall be granted under this section only from physical layout, mathematical or dimensional requirements and not from use restrictions. The applicant may choose the option of completing Part I or Part II as applicable.
Upon application by and with the burden of proof on the property owner, the Board must find that:
- The violation was not discovered by any owner, owner's agent or municipality official until after any structure that is in violation was substantially completed or until after a lot or other division of land in violation had been sold to an innocent buyer.
- The violation was caused by either a good faith error in measurement or calculation made by an owner or owner's agent or by error in applying the ordinance made by a municipal official who issued a permit that should not have been issued.
- The physical or dimensional violation does not constitute a public or private nuisance, does not diminish the value of other property in the area and does not interfere with any present or permissible future uses of other property.
- Due to the investment made in ignorance of the violation, the cost of correcting it so far outweighs any public benefit to be gained that it would be inequitable to require the violation to be correct.
In lieu of findings required by the Board under items I (a) and (b), the owner may demonstrate to the satisfaction of the Board that the violation has existed for 10 years or more.
Under state law, terms of a zoning ordinance and its self-described purposes establish the test for granting special exceptions. Special Exception is a permitted use if it meets each of the following criteria:
- Appropriate location.
- The use will not adversely affect the neighborhood.
- The use will not cause undue nuisance/serious hazard to vehicles/pedestrians.
- Structure/Operation will ensure proper operation
There are two types of variances, a use variance, which permits the use of the land that is prohibited by the Zoning Ordinance and area variances that involve matters such as setbacks, lot area, frontage, etc.
Relief granted by the Board cannot be limited to a particular individual nor can it be limited to a specific period of time. Variances stay with the property and can be used by the present and subsequent owners as long as the use remains uninterrupted, is not expanded or changed to a different use and is not terminated due to abandonment or intentional destruction.
To obtain a variance, an applicant must make a persuasive showing to each item in a five-part test that:
- No diminution in values of surrounding properties would result.
- Granting the variance would not be contrary to the public interest.
- Denial of the variance would result in unnecessary hardship.
See RSA 674:33 for definition of hardship
- Granting the variance, substantial justice would be done.
- The use would not be contrary to the Spirit of the Ordinance.
The Zoning Board of Adjustment may grant a variance from the terms of the zoning ordinance without finding a hardship arising from the condition of a premises subject to the ordinance, when reasonable accommodations are necessary to allow a person or persons with a recognized physical disability to reside in or regularly use the premises provided that (a) any variance granted be in harmony with the general purpose and intent of the zoning ordinance and (b) the variance shall survive only so long as the particular person has a continuing need to use the premises. RSA 674:33 V (Effective 8/17/98). Amended by the ZBA 7/20/00.
New construction on lots fronting on unaccepted streets or streets without proper status may also be eligible for relief under RSA 674:41 Erection of Buildings.