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.
New Hampshire law now distinguishes between a "use" or "area" variance as noted below:
When looking at such distinctions, a "use" variance is one which permits a use of land for a purpose that is not allowed by the zoning ordinance such as a commercial use in a residential zone.
An "area" variance (also called a "dimensional variance"), on the other hand, is one which involves physical aspects of the development such as building height, setback or size; the number of parking spaces required; frontage or lot size; etc.
For a variance to be legally granted,you must show that your proposed use meets the following conditions specified in the Jackson Zoning Ordinance Section 16.
16.2.3.1 The variance will not be contrary to the public interest.
16. 2.3.2 Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship.*
1) To establish unnecessary hardship for a use variance, an applicant must prove that:
a. The zoning restriction as applied interferes with a landowner's reasonable use of the property, considering the unique setting of the property in its environment.
b. No fair and substantial relationship exists between the general purpose of the zoning ordinance and the specific restriction on the property.
c.The variance would not injure the public or private rights of others.
2) To establish an unnecessary hardship for an area variance, an applicant must prove that:
a.An area variance is needed to enable the applicant's proposed use of the property given the special conditions of the property.
b. The benefits sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance.
16..2.3.3 The variance is consistent with the spirit of the ordinance.
16.2.3.4 Substantial justice is done.
16.2.3.5 The value of the surrounding property will not be diminished.
*Hardship, as the term applies to zoning, results if a restriction, when applied to a particular property, becomes arbitrary, confiscatory, or unduly oppressive because of conditions of the property that distinguish it from other property under similar zoning restrictions.
The restrictions on one parcel are balanced by similar restrictions on other parcels in the same zone. When the hardship so imposed is shared equally by all property owners, no grounds for a variance exist. Only when some characteristic of the particular land in question makes it different from others can unnecessary hardship be claimed.
If you are applying for a variance, you must first have some form of determination that your proposed use is not permitted without a variance. Most often, this determination is a denial of a building permit.
ZBA Checklist- The Board of Adjustment must act on the evidence presented and base its decision on legal grounds. The Board cannot deny or approve an application based on a judgment of what it considers the best interest of the area or neighborhood.
The legislative body, in passing the ordinance and map, has already decided what zoning controls it believes to be best for the municipality and has determined what restrictions will be applied. The board of adjustment cannot be given legislative powers. It cannot do anything that would in effect, be rezoning.
When a case involving a request for a variance comes before the Board of Adjustment, it might be helpful to run through the following checklist.
1. Could the variance be granted without diminishing the value of abutting property?
2. Would granting the appeal not be contrary to the public interest?
3. Would denial of the permit result in unnecessary hardship to the owner?
4.Would granting the permit do substantial justice?
5. Could the variance be granted without violating the spirit of the ordinance?
If the answer to all questions is yes, the variance should be granted.
If the applicant fails to meet any ONE of the variance requirements it cannot be legally granted and should be denied.
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