Zoning Board of Adjustment Frequently Asked Questions

Frequently asked questions relative to zoning boards of adjustment in New Hampshire.

(also see The Zoning Board of Adjustment in New Hampshire: A Handbook for Local Officials)

What are the conditions that must be found before a variance can be approved by the ZBA?

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?

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?

If a legal non-conforming use wishes to expand and the expansion normally would require a variance, does the nonconforming use require a variance?

Can conditions be attached to a variance approval (i.e., a time limit?)

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?

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?

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?

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?

Should the board dispense informal advice on whether or not a particular development would be approvable or not or if it would comply with the zoning ordinance?

If the last day to file a Motion for Rehearing falls on a Saturday, does it have to be filed the day before (Friday) or can it be filed on Monday?

What are the conditions that must be found before a variance can be approved by the ZBA?

RSA 674:33,I(b)

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.

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 to grant a special exception prior to final action by the Planning Board, then the ZBA would have to act before the Planning Board.

RSA 676:2 "Joint Meetings and Hearings" 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 and The Basic Functions of The NH Zoning Board of Adjustment (September 2003), H. Bernard Waugh, Jr., Gardner Fulton & Waugh)

If a legal nonconforming use wishes to expand and the expansion normally would require a variance, does the nonconforming use require a variance?

See ZBA Basic Function #2 - Deciding "Grandfathering" Claims from The Basic Functions of The NH Zoning Board of Adjustment (September 2003), H. Bernard Waugh, Jr., Gardner Fulton & Waugh

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;
Vested Property Rights and Changes in Use, John J. Ratigan, Esq., Douglass P. Hill, Esq., and Clay Mitchell, Esq., NHMA lecture #3, Fall 1997; and
Nonconforming Uses and Vested Rights, H. Bernard Waugh, Jr., Esq., NHMA lecture #3, Fall 2002

Can conditions or a time limit be attached to a variance approval?

The board of adjustment may attach conditions to a permit if it grants an appeal. "While there is no express statutory provision permitting a zoning board to place conditions on the granting of a variance, we have previously held that a board's extensive powers include the authority to attach reasonable conditions where they are necessary to preserve the spirit of the ordinance." Michelle J. Robinson v. Town of Hudson No. 2005-687, December 20, 2006.

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 builds 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.

For a more in-depth discussion, see "Attaching Conditions and Time Limits" in Chapter III, "Procedures", in the The Board of Adjustment in New Hampshire - A Handbook for Local Officials.

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.

For a more in-depth discussion, see "Decisions" in Chapter III, "Procedures", in the The Board of Adjustment in New Hampshire - A Handbook for Local Officials.

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 board can simplify matters by considering each requirement necessary for the granting of a variance or special exception separately rather than treating the question as a whole. With this done, there should not be any confusion as to whether the final decision was based on legal grounds. Caution, however, should be exercised not to treat the decision making process merely as a tabulation of votes on the various approval requirements by each member. Failure to satisfy any one of the review criteria is grounds for denial and that "passing" on 3 of the 5 variance criteria should not result in an approval of the appeal. There should be one clearly stated motion to "approve for the following reasons…" or to "disapprove for the following reasons…", duly seconded, discussed and voted upon by the whole board. If the motion fails, members have the ability to make a different motion to then act upon. Failure of a motion does not mean that the opposite prevails. The board should make every effort to propose a motion that a majority of board members can agree on. In other words, if a motion to grant a variance fails by a 2 in favor - 3 opposed margin, that does not mean that the variance is automatically disapproved.

In this case, one of the three members who disapproved the motion should now propose their own new motion to disapprove the application stating the reasons for denial. The board should then vote on that motion which would likely pass, 3-2. This is especially important when there are fewer than 5 board members present since motions could result in a tie. Alternate motions should be put forward but if the board truly cannot find something at least 3 members can agree on, the meeting should be continued until a fifth member can be present.

For a more in-depth discussion, see "Decisions" in Chapter III, "Procedures", in the The Board of Adjustment in New Hampshire - A Handbook for Local Officials.

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

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?

RSA 673:14 Disqualification of Member

Section II includes a non-binding procedure under which a board may take a vote on whether a particular member has a conflict and 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:
1. Inform the chairman that the member has a conflict
2. Generally state what the conflict might be i.e. financial; special knowledge; legal; etc; and
3. 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:
1. Indicate that the member was disqualified and why;
2. Indicate that the member did not participate in any discussion of the case;
3. Should note that the member was absent from the vote; and
4. 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

Should the board dispense informal advice on whether or not a particular development would be approvable or not or if it would comply with the zoning ordinance?

No. The board should never issue advisory opinions or render informal advice regarding any particular development proposal. The board only acts when there is a formal application for a variance, special exception, appeal of an administrative decision or application for an equitable waiver or if being asked to act on any other statutory responsibility as outlined under "Other Responsibilities" in Chapter II of The Board of Adjustment in New Hampshire - A Handbook for Local Officials. In contrast to the planning board, there is no preliminary review process as outlined in RSA 676:4, II for the zoning board of adjustment.

If the last day to file a Motion for Rehearing falls on a Saturday, does it have to be filed the day before (Friday) or can it be filed on Monday?

RSA 677:2, which includes a reference to RSA 21:35, specifies that the filing is timely if received by the next business day when a deadline falls on a Saturday, Sunday or legal holiday.