The NH Office of Energy and Planning publication, The Board of Adjustment in New Hampshire gives detailed instructions on how appeals for variances should be handled. Some of this information is printed below. A complete copy of this manual is available from the NH Office of Energy and Planning at www.nh.gov/oep/resourcelibrary/HandbooksAndOtherPublications.htm
RSA 673:33 Powers of Zoning Board of Adjustment - "Authorize upon appeal in specific cases such variance from the terms of the zoning ordinance as will not be contrary to the public interest,if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done. "
A variance is an authorization, which may be granted under special circumstances, to use your property in a way that is not permitted under the strict terms of the zoning ordinance.
Effective January 1, 2010 the following criteria must be met in order to obtain a variance.
1. The variance will not be contrary to the public interest.
2. The spirit of the ordinance is observed.
3.Substantial justice is done.
4.The values of the surrounding properties are not diminished.
5.Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship.
For the purposes of this section,"unnecessary hardship" means that, owing to special conditions of the property that distinguish it from other proprieties in the area;
(A) No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property
(The Relationship Test); and
(B) the proposed use is a reasonable one (The Reasonable Use Test)
If the criteria in (A) and (B) are not established, an unnecessary hardship will be deemed to exist if, and only if, owing to special conditions of the property that distinguish it from other properties in the area, the property cannot be reasonably used in strict conformance with the ordinance, and a variance is therefore necessary to enable use of it.
The definition of unnecessary hardship set forth under section 5 shall apply whether the provision of the ordinance from which a variance is sought is a restriction on use, a dimensional or other limitation on a permitted use, or any other requirement of the ordinance.
When a case for a variance comes before the Board of Adjustment, it is helpful to discuss the following questions:
1. Would granting the variance not be contrary to the public interest?
2. Could the variance be granted without violating the spirit of the ordinance?
3. Would granting the variance do substantial justice?
4. Could the variance be granted without diminishing the value of abutting properties?
5.Would denial of the variance result in unnecessary hardship to the owner?
If the applicant fails to meet any one of the five variance requirements, it cannot be legally granted and should be denied.
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