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Municipal and Regional Planning Assistance |
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Zoning Board of Adjustment (ZBA) Frequently Asked Questions
(also see the OEP publication The Board of Adjustment in New Hampshire: A guidebook for Local Officials) |
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- What are the conditions that must be found before a variance can be approved by the ZBA?
RSA 674:33, I. The zoning board of adjustment shall have the power to: (b) 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.
The local ordinance cannot limit or increase the powers of the board to grant variances under this authority, but this power must be exercised within bounds. In several decisions from 1952 to the present, the Supreme Court has declared that each of the following conditions must be found in order for a variance to be legally granted:
(1) no diminution of value of surrounding properties will be suffered;
(2) granting the permit would be of benefit to the public interest;
(3) denial of the permit would result in unnecessary hardship to the owner seeking it;
(4) by granting the permit substantial justice would be done; and
(5) the use must not be contrary to the spirit of the ordinance. (See Gelinas v. Portsmouth 97 NH 248 [1952])
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- One of the findings that a ZBA must make before a variance is issued is that, "Denial of the permit would result in unnecessary hardship to the owner seeking it". What is the definition of "unnecessary hardship"?
The term "hardship" has caused more problems for boards of adjustment than anything else connected with zoning, possibly because the term is so general and has so many applications outside of zoning law. By its basic purpose, a zoning ordinance imposes some hardship on all property by setting lot size dimensions and allowable uses.
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.
The fact that a variance may be granted in one town does not mean that in another town on an identical fact pattern, that a different decision might not be lawfully reached by a ZBA. Even in the same town, different results may be reached with just slightly different fact patterns. "This does not mean that either finding or decision is wrong per se, it merely demonstrates in a larger sense the home rule aspects of the law of zoning that are at the core of New Hampshire’s land use regulatory scheme." Nestor v. Town of Meredith Zoning Board of Adjustment, 138 NH 632, 644 A.2d 548, (1994)
On January 29, 2001, the NH Supreme court issued an opinion in Simplex Technologies, Inc. v. Town of Newington, which dramatically changed the standard for granting zoning variances. The court refined the long-held standard for unnecessary hardship and established 3 conditions, which must be used by boards of adjustment when determining if a hardship exists. (See Appendix F for background information about this significant court decision.)
On May 25, 2004, the NH Supreme Court issued an opinion in Boccia v. City of Portsmouth, which further refined variance law to distinguish between use and area (dimensional) variances. In Boccia, the Court concluded that it must distinguish between use variances and dimensional variances, observing that the hardship criteria of Simplex could only logically be applied to uses of land. (See Appendix G for background information about this significant court decision.)
When faced with a variance application, the ZBA must first determine if it is a "use" or "area" variance. If it is a "use" variance, the Simplex analysis applies. If it is an "area" variance, the Boccia analysis applies.
Simplex Analysis
Rather than having to establish that the ordinance prevents the owner from making any reasonable use of the land in order to demonstrate unnecessary hardship, a landowner can now establish unnecessary hardship by satisfying the following three conditions:
(1) The zoning restriction as applied to the applicant's property interferes with the applicant’s reasonable use of the property, considering the unique setting of the property in its environment.
Rather than having to demonstrate that there is not any reasonable use of the land, landowners must now demonstrate that the restriction interferes with their reasonable use of the property considering its unique setting. The use must be reasonable. The second part of this test is in some ways a restatement of the statutory requirement that there be something unique about this property and that it not share the same characteristics of every other property in the zoning district.
(2) No fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restrictions on the property.
Is the restriction on the property necessary in order to give full effect to the purpose of the ordinance, or can relief be granted to this property without frustrating the purpose of the ordinance? Is the full application of the ordinance to this particular property necessary to promote a valid public purpose?
This test attempts to balance the public good resulting from the application of the ordinance against the potential harm to a private landowner. It goes to the question of whether it creates a necessary or "unnecessary" hardship.
(3) The variance would not injure the public or private rights of others.
This is perhaps similar to a "no harm - no foul" standard. If the granting of the variance would not have any negative impact on the public or on private persons, then perhaps this condition is met. Stated differently, would the granting of the variance create a private or public nuisance*?
[*Comment: A nuisance arises from use of property, either actively or passively, in an unreasonable manner. Shea v. Portsmouth, 98 NH 22 (1953). A nuisance can be either public or private. A private nuisance is defined as an activity which results in an unreasonable interference with the use and enjoyment of another’s property, Urie v. Laconia Paper Co., 107 NH 131 (1966); while a public nuisance is an unreasonable interference with a right common to the general public. A public nuisance is behavior which unreasonably interferes with the health, safety, peace, comfort or convenience of the general community. Conduct which unreasonably interferes with the rights of others may be both a public and private nuisance. Robie v. Lillis, 112 NH 492 (1972). In order for a nuisance to exist, the interference complained of must be substantial, that is, the harm alleged must be in excess of the customary interference a land user suffers in an organized society, however, not every intentional and substantial invasion of a person's interest in the use and enjoyment of land is actionable. Id. at 496.]
This requirement, to some degree, overlaps with the requirement that the granting of a variance not result in a diminution of value of surrounding properties.
All three conditions must be satisfied for unnecessary hardship to exist under this standard.
Boccia Analysis
An applicant seeking an area variance can demonstrate unnecessary hardship by establishing that:
(1) Special conditions of the property make an area variance necessary in order to allow the applicant to construct the development as designed; and
(2) The applicant cannot achieve the same benefit by some other reasonably feasible method that would not impose an undue financial burden.
In applying the first prong, the owner does not need to establish that without the variance the property would be valueless - rather, that practical considerations make it difficult or impossible to implement a permitted use, given the special conditions of the property. In the Boccia case, the Court found that this prong had been met by the developer, owing to the configuration of the property and the presence of wetlands.
The second prong calls for an examination of other reasonably feasible alternatives. The Court clearly stated that the developer's financial considerations do indeed become part of the calculus of what is reasonable. Undue financial burdens should not be imposed upon a landowner, so the relative expense of alternatives must be examined.
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- The ZBA is empowered to act in four separate and distinct categories: appeals from administrative decision; approval of special exception; grant of variance; and grants of waivers of dimensional requirements. What is the difference between a Special Exception and a Variance?
Unless a particular use for which an application is submitted is stated in the ordinance as being explicitly allowed by special exception, the board of adjustment is powerless to grant a special exception for that use. If this fact can be kept in mind, there should be no confusion between the meaning of "special exception" and "variance." A special exception is a use of land or buildings that is permitted, subject to specific conditions that are set forth in the ordinance. A variance is a waiver or relaxation of particular requirements of an ordinance when strict enforcement would cause undue hardship because of circumstances unique to the property.
A variance is permission granted to use a specific piece of property in a more flexible manner than allowed by the ordinance; a special exception is a specific, permitted land use that is allowed when clearly defined criteria and conditions contained in the ordinance are met. Providing for special exceptions makes it possible to allow uses where they are reasonable in a uniform and controlled manner, but to prohibit them where the specified conditions cannot be met. Requirements, in this sense, are measurable qualifications that are the same at all times and places and can be expressed in specific terms.
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- If a proposed project requires the review and approval of both the Planning Board and the ZBA (such as a development that involves a subdivision of land and the use of an open space or cluster concept), which board should go first?
This particular question depends upon the manner in which the local codes are structured. For example, if the zoning ordinance states that a cluster development is approvable as a special exception and one of the conditions is that subdivision approval must be obtained before the special exception can be approved, then the Planning Board would have to act before the ZBA could take final action.
However, if the Subdivision Regulations provide for submission of an open space or cluster development to the Planning Board and the approval of such a development would require action by the ZBA on a specific variances or special exception prior to final action by the Planning Board, then the ZBA would have to act before the Planning Board.
Finally, the related question of who takes the lead in a situation where two boards with regards to public hearings is provided for in RSA 676:2 Joint Meetings and Hearings. This section of the Statute was added in 1983 to reduce the demands on citizens where two or more Boards might be involved in a hearing process. By holding a joint meeting it was anticipated that all the information would be presented a one time, rather than exposing abutters and other interested citizens to several hearings each of which presented a portion of the project in question. When the Planning Board is involved, it chairs the joint session. It is presumed that the individual boards would have responsibility for their own portion of the hearing. In a like manner, the notice and decision requirements that might be unique to each board would be coordinated by the individual board.
(For additional information, see "The volleyball effect: handling projects requiring action by both planning board and zoning board of adjustment," H. Bernard Waugh, Jr., Esq., NH Town & City, September 1986)
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- If a legal non-conforming use wishes to expand and the expansion normally would require a variance, does the nonconforming use require a variance?
"The legal right to continue a nonconforming use and the practical ability to maintain a nonconforming use as viable in changing economic climates can be two very different things. Nonconforming uses are not required to remain frozen in the state of activity that existed on the date the prohibitive ordinance became effective. Business circumstances may well encourage them to change and grow. While nonconforming use status does not confer special privileges such that an expansion or change in use would be permitted without obtaining a variance where one would be required for a permitted use, nonconforming uses do have the same right as do permitted uses to engage in customary incidental and accessory uses." New Hampshire Land Use Law Willard G. Martin, Jr.,Editor, Nighswander, Martin & Mitchel, P.A. (Sub section 5-27, pg 146.) (See this reference, which contains an extensive discussion of this question and related Supreme Court cases, for more information.)
(For additional information, see Grandfathered! The Law of Nonconforming Uses and Vested Rights - A Guide for New Hampshire Officials,, H. Bernard Waugh, Jr., Esq., NHMA Municipal Law Lecture Series #3, Fall 1989; Grandfathered! The Law of Nonconforming Uses and Vested Rights Tim Bates, Esq. and H. Bernard Waugh, Jr., NHMA Municipal Law Lecture Series #3, Fall 1994; and Vested Property Rights and Changes in Use, John J. Ratigan, Esq., Douglass P. Hill, Esq., and Clay Mitchell, Esq., NHMA lecture #3, Fall 1997)
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- Can conditions be attached to a variance approval (i.e., a time limit?)
The ZBA may grant reasonable conditions to the granting of a variance. These conditions must relate to the operation or continuation of the specific use for which the variance was requested and not to matters of ownership. Conditions relating to hours of operation and matters of health and safety have been found acceptable by the Court. (See New Hampshire Land Use Law (supra) sub-section 7-13, pages 176-7 for a more complete discussion.)
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. For example, the board could not grant a variance to reduce the lot size requirements on the condition that the applicant build a house with a cost in excess of a certain figure. That condition would not serve a legal purpose under the zoning statute. A board could vary the requirements of a lot size on condition that the applicant limit the height of the structure. This would ensure that abutters are not deprived of light and air - the preservation of which is a legal purpose of zoning and one of the reasons for requiring a minimum lot size.
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".
The New Hampshire Supreme Court, in Sklar Realty Inc. v. Merrimack and Agway, Inc. 125 NH 321, (1984), discussed planning board procedures when conditions are set as part of approval of an application. While implications for a board of adjustment are not clear, it is worth summarizing the major points made in the case. The Court distinguished between "conditions precedent" that must be fulfilled before approval is final and "conditions subsequent" that deal with issues in effect after development has occurred such as hours of operation, control of traffic, noise levels, and emissions.
The Court said, "In a functional sense, when an applicant claims to have fulfilled a condition attached to an application, that condition has become a part of the application itself. An opportunity to testify on the applicant’s fulfillment of such a condition is in reality, then, an opportunity to testify on the factual basis for the application as it must finally be approved or denied. Without that opportunity, the statutory right to be heard would be a limited right indeed". A compliance hearing was required to give abutters an opportunity to be satisfied that all the conditions precedent were met.
The Legislature modified the decision in 1986 by amending RSA 676:4 to say that a compliance hearing is not required if the conditions are minor or administrative or involve permits issued by other agencies or boards.
A board of adjustment is authorized to place conditions on a variance and failure to comply with those conditions may be a violation. (See Healey v. New Durham ZBA, 140 NH 232, 665 A.2d 360 [1995])
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. A provision can also be included which outlines the conditions under which a use allowed by special exception may be lost due to abandonment.
Commonly, the ordinance may provide that variances will lapse unless construction pursuant to the variance is begun within a certain time period. To avoid lapsing of the approval, there should be substantial construction on the property or the owner must have incurred a substantial liability that is directly related to the project.
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- Following the close of a public hearing on a particular case, must the ZBA immediately arrive at a decision or can the final decision be deferred?
There is no Statutory requirement that the ZBA arrive at a decision immediately upon completing a hearing upon a specific case. The ZBA with a heavy caseload may not be able to consider arriving at a decision even on the day at which the hearing has been held. The ZBA might consider establishing the procedure of holding a separate meeting a week later a which time a decision could be agreed upon. If such a process is appropriate the ZBA should announce and post the time and place at which such a public meeting would be held. Since this would not be a Public Hearing, no additional information nor public input would be appropriate. However, the public is entitled to attend the meeting and the record of the decision must be available to the public within 72 hours.
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- In arriving at a decision on a requested variance, should the final vote be to approve or disapprove or should the final vote involve votes on each individual finding?
The ZBA may utilize any process it wishes to get to the point of the final decision. The final decision is a decision of the full ZBA. This means that each of the findings necessary for the ZBA to grant approval must be voted on by the ZBA as a Board. For the record each vote should be recorded and the specific finding written out carefully for inclusion in the minutes. In this manner a clear record is maintained of the ZBA’s procedures and position in the event additional action is to be taken.
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- When a decision of the ZBA is appealed to the Superior Court, is the Court required to hold a new hearing or does the Court rely on the records of the Board?
The prior response addressed the issue of developing a clear and careful record on which to base the decision of the ZBA. One of the primary reasons for this record is to provide Court with sufficient information so that it does not have to hold a new hearing. It is important to note that the Statute presumes that the actions of a ZBA are lawful and reasonable. The court will not set aside the decision unless the evidence before it would suggest that the decision was unreasonable. Therefore, it is critical that the ZBA provide a clear and complete record.
(For more information, see Conduct of a Public Meeting, Including Compliance with RSA 91-A, Conflicts of Interest and Preservation of a Defensible Record, Bernard H. Campbell, Esq., NHMA Municipal Law Lecture Series #1, Fall 1992 and Making Local Land Use Decisions Enforceable, Daniel D. Crean, Esq., Timothy Bates, Esq., NHMA Municipal Law Lecture Series #2, fall 1996)
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- When must a ZBA member be disqualified? What is the process for disqualification, and what is the role of a member relative to that case … and with regards to other non-related cases?
New Hampshire Statute addresses conflict of interest for local boards under RSA 673:14 Disqualification of Member, as follows.
673:14 Disqualification of Member.
I. No Member of a zoning board of adjustment, building code board of appeals, planning board, heritage commission, or historic district commission shall participate in deciding or shall sit upon the hearing of any question which the board is to decide in a judicial capacity if that member has a direct personal or pecuniary interest in the outcome which differs from the interest of other citizens, or if that member would be disqualified for any cause to act as a juror upon the trial of the same matter in any action at law. Reasons for disqualification do not include exemption from service as a juror or knowledge of the facts gleaned in the performance of the members official duties.
Section II includes a non-binding procedure under which a board may take a vote on whether a particular member has a conflict.
Section III requires that the chairman appoint an alternate to sit on any case where a member is disqualified.
It is important that boards and board members be careful regarding the presence of potential conflicts. A potential conflict might include a special financial, legal, or family relationship; abutter status; or any similar special interest that might affect the objectivity of the member. The board might consider addressing the issue of conflict of interest and the use of the non-binding vote option provided by RSA 673:14 II, as part of its procedural rules. In addition, the individual board member should consider the following steps when evaluating the possibility of conflict of interest.
- Does the board member have, "… a direct personal or pecuniary interest in the outcome which differs from the interest of other citizens…"? (RSA 673:14 I). (Such an interest would extend beyond the knowledge that might have been gained as part of being a board member.)
- If the answer is positive, the member, before consideration on the proposal commences, should:
a. Inform the chairman that the member has a conflict;
b. Generally state what the conflict might be i.e. financial; special knowledge; legal; etc; and
c. Step down from any discussion of the proposal.
- The chairman should then appoint an alternate to participate in the disqualified place for the duration of case.
- The minutes of the board should:
a. Indicate that the member was disqualified and why;
b. Indicate that the member did not participate in any discussion of the case;
c. Should note that the member was absent from the vote; and
d. Should indicate when the member returned to the board.
Relative to when the member should return to the board, there is no reason for the member to be absent from any case other that the one involving the disqualification. It should be noted however that each future time that particular case is considered or reconsidered, the member should be excused from the board and the record should indicate that action.
(For more information, see Conduct of a Public Meeting, Including Compliance with RSA 91-A, Conflicts of Interest and Preservation of a Defensible Record, Bernard H. Campbell, Esq., NHMA Municipal Law Lecture Series #1, Fall 1992; Public Official Ethics and Conflicts of Interest, H. Bernard Waugh, Jr., Esq., NHMA Municipal Law Lecture Series #2, Fall 1993; and Harmonious Land Use Regulation: Are We all Singing in the Same Key?, Walter L. Mitchell, Esq. & Timothy Bates, Esq., NHMA Municipal Law Lecture Series #1, fall 1997)
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