Town of Jackson, NH - ZBA Facts A

The following is only a quick reference of various zba issues. This information is taken directly from state manuals prepared by planners and attorneys on zoning issues. Information on each topic is not quoted in its entirety and interested parties should read the entire document. The information is not intended as an interpretation of complex zoning issues and it is always wise to consult an attorney for confirmation on a particular case or topic.

Abutter - RSA 672:3- "Abutter" in New Hampshire means any person whose property adjoins or is directly across the street or stream from the land under consideration by the local land use board. For purposes of receiving testimony only and not for purposes of notification, the term "abutter" shall include any person who is able to demonstrate that his land will be directly affected by the proposal under consideration.

Burden of Proof - . RSA 677:6 states In an appeal to the court, the burden of proof shall be upon the party seeking to set aside any order or decision of the Zoning Board of Adjustment or any decision of the local legislative body to show that the order or decision is unlawful or unreasonable.

Chairman's Summary of Facts and Opinions - At the end of public testimony and prior to closing the Public Hearing, the Chairman should summarize the case, stating both the known and agreed facts and the alleged facts and opinions. If anyone wishes to dispute the accuracy of the summary, he should be given an opportunity to do so as this will be an important record in the event the decision is appealed.

Conditions Attached by the ZBA to an Appeal - RSA 674:33 -The Board of Adjustment may attach conditions to a permit if it grants an appeal. Conditions must relate to the land and are usually designed to remove features of the proposed use which are legally objectionable. While conditions may be attached to modify objectionable features, all other requirements for a variance or special exception must be present. The appeal cannot be granted simply because, by attaching the condition, "no harm will be done."

Constitutionality of Zoning Ordinance - Boards of Adjustment should remember that, although they have quasi-judicial powers, they are not a duly constituted court and cannot rule on points of law. That is, the Board cannot declare an ordinance invalid because it appears to be improperly drawn or enacted or violates state or federal law. It must assume that the ordinance is legal unless declared otherwise by a court.

Court Appeals - All administrative remedies, including the request for a rehearing by the Board of Adjustment must be exhausted before an appeal can be taken to superior court. RSA 677:4 - Appeal from Decision on Motion for Rehearing states that an aggrieved party may file by petition, to the court within 30 calendar days after the date upon which the Board voted to deny the motion for rehearing. See section on Court Appeals above for more details.

Decisions- RSA 674:33 states - The concurring vote of 3 members of the Board shall be necessary to reverse any action of the administrative official or to decide in favor of any applicant on any matter on which it is required to pass. Before making its decision, the Board must determine the facts of the case and apply what it understands to be the proper meaning and intent of the zoning ordinance and map. When the Board exercises its power of interpretation, it must be guided by the letter and spirit of the ordinance.

Disqualification of a Member - RSA 673:14 - Any member of a Board of Adjustment who has a direct personal or financial interest in an appeal brought before the board should excuse himself from participation in that hearing.

Effect of an Appeal - RSA 676:6 states - The effect of an appeal to the Board shall be to maintain the status quo. An appeal of the issuance of any permit or certificate shall be deemed to suspend such permit or certificate,and no construction, alternation, or change of use which is contingent upon it shall be commenced.

Evidence - RSA 677:10 states- All evidence transferred by the Zoning Board of Adjustment or the local legislative body shall be, and all additional evidence received may be considered by the court regardless of any technical rule which might have rendered the evidence inadmissible if originally offered in the trial of an action at law.

Executive Session - Roll Call Vote Required - RSA 673:17 Open Meetings:Records, states - Each local land use Board shall hold its meetings and maintain its records in accordance with RSA 91-A. Executive Sessions must be approved by a recorded roll call vote of the majority of the members present and may be held for deliberation only. The reason the exception to the open meeting requirement contained in RSA 91-A:3 under which the closed session is justified, must be recorded in the minutes. The discussion during the executive session must be confined to matters stated in the motion for the session. Any session at which information, evidence, or testimony is presented to the Board must be an open meeting. Final approval cannot be given in executive session to any order, rule, regulation or other official action, except as provided in RSA 91-A:3, II.

Findings of Facts - After the public hearing is closed, the Board should deliberate, in public, and in a manner such that all discussion can be heard by the public, on the essential facts that the testimony has established. The Supreme Court cited Anderson, American Law of Zoning - "In general, a Board of Adjustment must, in each case, make findings which disclose the basis for its decision.

Grandfathered Rights - "Grandfathered" rights are protected not only by the constitution, but by RSA 674:19,Applicability of Zoning Ordinance. A zoning ordinance adopted under RSA 674:16 shall not apply to existing structures or to the existing use of any building. It shall apply to any alteration of a building for use for a purpose or in a manner which is substantially different from the use to which it was put before alteration. (1)

Interpretation of Zoning Ordinance - Before making its decision, the Board must determine the facts of the case and apply what it understands to be the proper meaning and intent of the zoning ordinance and map. When the Board exercises its power of interpretation, it must be guided by the letter and spirit of the ordinance.

Issuance of Decision - The written decision, along with the minutes of the meeting at which the vote was taken must be on file for public inspection within 144 hours (RSA 676:3) or 5 business days (RSA 91- A: 2, II) whichever is less, of such vote. It is good practice not only to give a copy of the decision to the applicant as required, but also to notify the public by posting in two places and publication in a newspaper of general circulation in the town.

Joint Hearings - RSA 676:2 allows joint hearings by Planning Board and ZBA - When the situation requires permits or approvals from more than one Board, holding a joint meeting can provide the Boards with an opportunity to hear the same presentation and perhaps get a more complete picture of what is proposed. Each land use Board retains responsibility for rendering a decision on the subject matter within its jurisdiction. RSA 676:2 requires that the Planning Board Chairman shall chair the joint hearing.

Limits of Authority - Boards of Adjustment should remember that, although they have quasi-judicial powers, they are not a duly constituted court and cannot rule on points of law. That is, the Board cannot declare an ordinance invalid because it appears to be improperly drawn or enacted or violates state or federal law. It must assume that the ordinance is legal unless declared otherwise by a court.

Notice Requirements - (Public Hearings)- RSA 676:7 - The appellant and every abutter and holder of conservation, preservation or agricultural preservation restrictions shall be noticed of the hearing by certified mail stating the time and place of the hearing and such notice shall be given not less than 5 days before the fixed date of the appeal. A public notice of the hearing shall be placed in a newspaper of general circulation in the area not less than 5 days before the date fixed for the hearing of the appeal.

Notice Requirements - (All Meetings) - RSA 91-A In addition to statutory requirements, notice must be given 24 hours in advance of all meetings of the ZBA either by posting the notice in two public places or by publishing it in a newspaper readily available in the community. The calculation of the 24 hour time period does not include Holidays or Sundays.

Planning Board Appeals - Certain decisions of the Planning Board must be appealed to the courts while others may be submitted to the ZBA as administrative appeals. See Appeals of Planning Board Decisions on the Planning Board page for more details.

Rehearings - Within 30 days after an initial decision has been made by the Board of Adjustment, any person directly affected by the decision has the right to appeal that decision. The 30 day time period is counted in calendar days beginning with the date following the date on which the board voted to approve or disapprove the application. However, if it can be shown that the minutes and written decision were not filed within 144 hours (RSA 676:3) or 5 business day (RSA 91-A:2,II) whichever is less, then person applying for the motion for rehearing shall have the right to amend the motion within 30 days after the date on which the written decision was filed.

The reasons for granting a rehearing should be compelling ones; the Board has no right to reopen a case based on the same set of facts unless it is convinced that an injustice would otherwise be created, but a rehearing should be seriously considered if the moving party is persuasive that the Board has made a mistake. The NH Court has ruled " The rehearing process is designed to afford local Zoning Boards of Adjustment an opportunity to correct their own mistakes before appeals are filed with the courts." (Bourassa V. Keene, 1967)

Removal of Members - RSA 673:13 - After public hearing, appointed members and alternate members may be removed by the appointing authority upon written findings of inefficiency, neglect of duty, or malfeasance in office.

Restraining Order - RSA 677:9 - (Appeal to Superior Court) - If a decision is appealed to Superior Court, that does not prevent the applicant from utilizing the approval unless the person appealing obtains an order from the court restraining or preventing the applicant from using the approval. An applicant who proceeds to use the approval when an appeal has been filed is doing so at his own risk because the appeal may ultimately be granted and the decision reversed requiring the applicant to undo anything done under the approval.

Statement of Reasons for Decision - General fairness to all parties concerned, reinforced by the New Hampshire Supreme Court decisions, strongly indicates that the Board should prepare a statement of its reasons. The Court has stated it does not feel the entire record should have to be reviewed to determine whether or not the action of an administrative board is appropriate. As a source of documentation for the community's position in a given case, the Board should state all of the reasons for its decision to allow for proper review if that should be necessary.

Time Limit for Filing Appeals to the ZBA - RSA 676:5 - Appeals to the Board of Adjustment states - Appeals to the Board of Adjustment concerning any matter within the Board's power as set forth in RSA 674:33 may be taken by any person aggrieved or by any officer, department, board, or bureau of the municipality affected by any decision of the administrative officer. The Jackson Board of Adjustment By-Laws state that appeals from Administrative Decisions must be filed no later than 30 calendar days from the date following the date of the decision. The 30- day time limit does not apply to variances. See Administrative Appeals and Variances on the ZBA page for more details.

Time Limit for ZBA to Publish Decision and Minutes - RSA 676:3 Issuance of Decision, states - Whenever a local land use board votes to approve or disapprove an application or deny a motion for rehearing, the minutes of the meeting at which such vote is taken, including the written decision containing the reasons therefor, shall be placed on file in the Board's office and shall be made available for public inspection within 144 hours (RSA 676:3) or 5 business days (RSA 91- A : 2,II) whichever ever is less of such vote.

Time Limit to Request ZBA Rehearing - RSA 677:2 - Within 30 days after an initial decision has been made by the Board of Adjustment, any person directly affected by the decision has the right to appeal that decision. The 30 day time period is counted in calendar days beginning with the date following the date upon which the board voted to approve or disapprove the application. However, if it can be shown that the minutes and written decision were not filed within 144 hours ( RSA 676:3 ) or 5 business days (RSA 91-A:2,II ) which is less, of the vote, the person applying for the motion for rehearing shall have the right to amend the motion within 30 days after the date on which the written decision was actually filed.

Time Limit for ZBA to either grant or deny the Rehearing Application - RSA 677:3 states - Upon filing of a motion for a rehearing, the Board of Adjustment, a board of appeals , or the local legislative body shall within 30 calendar days either grant or deny the application, or suspend the order or decision complained of pending further consideration. When a rehearing is held, all legal actions, such as public notice,required for the first hearing must be followed.

Time Limits Attached by ZBA for Variances and Exceptions - The zoning ordinance may contain a provision that a special exception must be acted upon within a certain time period, such as six months to one year, or the approval will be lost. Commonly, the ordinance may provide that variances will lapse unless construction pursuant to the variance is begun within a certain time period.

For the purposes of determining whether vested rights exist, Courts will examine the facts as they were when the relevant zoning ordinance amendment took affect and the landowner who claims a vested right bears the burden of proving all necessary elements establishing that right. Healey v. New Durham ZBA, 140 N.H. 232, 665 A.2d 360, (1995).

Voting - RSA 674:33 states that three votes are necessary to change any administrative decision or to decide in favor of any matter legally before the Board. If there is not a full Board, even with alternates serving, the Chairman could give the applicant the option of postponing the hearing until all members are present.

The vote should be made on a motion to approve or disapprove the appeal and should incorporate all of the reasons for the decision. If a motion to approve does not receive three votes, the application is not automatically denied. A further motion, with reasons for denial, should be offered and another vote taken.

Witnesses - RSA 673:15 states - Whenever the Board exercises its regulatory or quasi judicial powers it may, at its sole discretion, compel the attendance of witnesses. All expense incurred under this section for compelling the attendance of a witness shall be paid by the party or parties requesting that a witness be compelled to attend a meeting of the Board.

Zoning Ordinance Reviews - Planning Board and ZBA Joint Meeting - The Board of Adjustment and the Planning Board should meet periodically (at least once a year) to review the zoning ordinance to keep it current and maintain administrative efficiency. By analyzing the types of cases that come before it, the ZBA can advise the Planning Board on weaknesses or inconsistencies within the ordinance itself that might otherwise not be recognized.

Under otherwise indicated, all information is quoted from the NH Office of Energy and Planning manual, The Board of Adjustment in New Hampshire, and RSAs. (See specific manual page number in parentheses for additional details). For a complete copy of this manual, go to www.nh.gov/oep/resourcelibrary/HandbooksAndOtherPublications.htm

(1) " Grandfathered" The Law of Nonconforming Uses and Vested Rights, H. Bernard Waugh, Jr., Esq. Gardner & Fulton, Lebanon, N.H., presented as part of the Municipal Law Lecture Series of the N.H. Municipal Association