The Zoning Board of Adjustment in New Hampshire A Handbook for Local Officials Updated: 2022 100 North Main Street, Suite 100 Concord, New Hampshire 03301 603 271 2155 visitnh.gov nheconomy.com choosenh.com THE ZONING BOARD OF ADJUSTMENT IN NEW HAMPSHIRE A HANDBOOK FOR LOCAL OFFICIALS Current Through The 2022 Legislative Session NH DEPARTMENT OF BUSINESS AND ECONOMIC AFFAIRS OFFICE OF PLANNING AND DEVELOPMENT Permission is granted to reproduce this handbook and subsequent updates, citing the source as the NH Office of Planning and Development. SUMMARY OF CHANGES The following table summarizes the substantial changes that have been made in this 2022 version of the Zoning Board of Adjustment in New Hampshire: A Handbook for Local Officials since the 2021 Handbook update. IMPACTED CHAPTER DESCRIPTION OF CHANGE PAGE #S Global All Year references on the cover page and in the footer. Updated links throughout. Changes Changes related to taking out Appendix D to make it a separate document. This edition incorporates statutory changes enacted through the 2022 legislative session and additional supreme court decisions that further concern the authority of zoning boards of adjustment. Starting in 2023 information on Planning and Zoning Case Law (formally Appendix D) is published in a separate document titled Federal and State Planning and Zoning Case Law for New Hampshire Local Officials. Preface iii Throughout this book, state statutes are presented in 10 pt. Arial font and citations are provided for New Hampshire Supreme Court decisions. See Appendix D of this book for summaries of case law relevant to boards of adjustment. Information regarding this handbook, Federal and State Planning and Zoning Case Law for New Hampshire Local Officials document, as well as other related resources and publications are available to download for no charge from NH OPD’s website at: www.nh.gov/osi/planning/resources/publications.htm. Addition of the new Supreme Court case to section “Special Exceptions” 2nd to last paragraph before the box. In Avanru Development v. Town of Swanzey, Case No. 2021-0015 (2022) the New Hampshire Supreme Court ruled that special exception provisions that permit additional uses in certain zoning districts in effect declare such special exception uses II-8 Chapter II to be essentially desirable subject to a determination that the proposed location must be considered in light of special restrictions or conditions tailored to fit the unique problems which the use may present. The proposed special exception use in some Powers and places or in some respects might be incompatible with the uses permitted as of right Duties of in the particular district. the Zoning Board of Deletion of obsolete reference in section “Equitable Waiver of Dimensional Adjustment Requirements” last paragraph. For an additional explanation of this power of the zoning board of adjustment, II-18 readers are encouraged to review the article in Town and City Counsel contained in the December 1996 edition of the New Hampshire Municipal Association magazine, New Hampshire Town and City by H. Bernard Waugh, Jr., Esq. Court-related addition to the section “Application: previous application (the Fisher Doctrine), last paragraph: In Transfarmations, Inc. v. Town of Amherst , Case No. 2021-0214 (2022) the New Hampshire Supreme Court reiterated that when a denial identifies a lack of III-3 Chapter III information as the deficiency in the initial application, the court has held that a reapplication proposing a project substantially identical to the prior proposed project Procedures is materially different under Fisher if the new application provides the information missing from the prior application. Legislative-related addition to the section “Collection and Expenditure of Fees by the Board of Adjustment” last paragraph and box. III-10 III. Any fee which a city or town imposes on an applicant pursuant to this title shall be IMPACTED CHAPTER DESCRIPTION OF CHANGE PAGE #S published in a location accessible to the public during normal business hours. Any fee not published in accordance with this paragraph at the time an applicant submits an application shall be considered waived for purposes of that application. A city or town may comply with the requirements of this section by publicly posting a list of fees at the city or town hall or by publishing a list of fees on the city or town's Internet website. A separate document labeled as “Notice of Land Use Board Fees under RSA 673:16, III” should be created that provides a complete listing of fees charged for land use board applicants before the planning board, zoning board of adjustment, historic district commission, building inspector, and building code board of appeals. Legislative-related addition to the section “Findings of Fact” 1st paragraph. RSA 676:3, I Written Findings of Fact I. The local land use board shall issue a final written decision which either approves or disapproves an application for a local permit and make a copy of the decision available to the applicant. The decision shall include specific written findings of fact that support the decision. Failure of the board to make specific written findings of fact supporting a disapproval shall be grounds for automatic reversal and remand by the superior court upon appeal, in accordance with the time periods set forth in RSA 677:5 or RSA 677:15, unless the court determines that there are other factors warranting the disapproval. If the application is not approved, the board shall provide the applicant with written reasons for the disapproval. If the application is approved with conditions, the board shall include in the written decision a detailed description of all conditions necessary to obtain final approval. III-14 The degree to which a local land use board should make detailed findings of fact in support of an approval may vary based on the level of controversy associated with the application. In general, the board should be clear with identifying how the application meets their regulations and checklist requirements for the findings of fact portion of the approval. Findings of fact should not replace conditions of approval. For denials, a local land use board should consider what are the things about the application that is preventing it from saying yes. These things should be anchored in the standards of the regulations and describe how the application does not meet the standards of the regulations; but may also include the exercise of independent judgment, experience, and knowledge of the area by the board. The findings of fact should be complete, so that (1) a reviewing court knows all of your reasons, and (2) the applicant has instructions if they want to try a second time. The board should always enlist their town counsel to aid in the issuance of the findings of fact. Legislative-related additions and revisions to the section “6. Decision: Recommendation on the Timing, the Writing, and the Vote” 674:33 90-Day Timeline VIII. Upon receipt of any application for action pursuant to this section, the zoning board of adjustment shall begin formal consideration and shall approve or disapprove such application within 90 days of the date of receipt, provided that the applicant may waive this requirement and consent to such extension as may be mutually agreeable. If a zoning board of adjustment determines that it lacks sufficient information to make a final decision on an application and the applicant does not consent to an extension, the board may, in its discretion, deny the application without prejudice, in which case the applicant may submit a new application for the same or substantially similar request for relief. III-20-22 RSA 674:33, VIII stipulates that a upon receipt of an application a ZBA has 90 days to begin formal consideration and approve or disapprove of an application, unless the applicant agrees to an extension. If the ZBA determines that it lacks sufficient information to make a final decision on an application and the applicant does not consent to an extension, the board may deny the application without prejudice, allowing the applicant to reapply for the same relief. RSA 676:3 Issuance of Decision I. The local land use board shall issue a final written decision which either approves or disapproves an application for a local permit and make a copy of the decision available to the applicant. The decision shall include specific written findings of fact that support the decision. Failure of the board to make specific written findings of fact supporting a disapproval shall be grounds for automatic reversal and remand by the superior court IMPACTED CHAPTER DESCRIPTION OF CHANGE PAGE #S upon appeal, in accordance with the time periods set forth in RSA 677:5 or RSA 677:15, unless the court determines that there are other factors warranting the disapproval. If the application is not approved, the board shall provide the applicant with written reasons for the disapproval. If the application is approved with conditions, the board shall include in the written decision a detailed description of all conditions necessary to obtain final approval. Though not required by the statute By statute, the board should also provide written findings of fact reasons for approval. The degree to which a local land use board should make detailed findings of fact in support of an approval may vary based on the level of controversy associated with the application. In general, the board should be clear with identifying how the application meets their regulation and checklist requirements for the findings of fact portion of the approval. The board would be better able to defend their position if appealed by an abutter, would instill public confidence and would allow future boards and interested parties a better understanding of how the decision was reached. When an application is approved with conditions, those conditions must be included in the written decision and included with or on any plat recorded to memorialize an approval as contained in RSA 676:3, III. Findings of fact should not replace conditions of approval. For denials, a local land use board should consider what are the things about the application that is preventing it from saying yes. These things should be anchored in the standards of the regulations and describe how the application does not meet the standards of the regulations; but may also include the exercise of independent judgment, experience, and knowledge of the area by the board. The findings of fact should be complete, so that (1) a reviewing court knows all of your reasons, and (2) the applicant has instructions if they want to try a second time. The board should always enlist their town counsel to aid in the issuance of the findings of fact. Failure of the board to make specific written findings of fact supporting a disapproval shall be grounds for automatic reversal and remand by the superior court upon appeal, unless other grounds exist for disapproval. The written decision, along with the minutes of the meeting at which the vote was taken, must be on file for public inspection within 5 business days of such vote. If the application is not approved, the board shall provide the applicant with written reasons for disapproval. If the board does not maintain an office with regular business hours, the municipal clerk should be given a copy of the decision in order to assure the required public access. The board’s Rules of Procedure should specify the distribution of the decision and the posting/publication requirements. 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. Legislative-related addition to the section “Appeal to Superior Court” – last paragraph. RSA 677:20 Fee Shifting and Posting Bond I. Whenever an appeal to the superior court is initiated under this chapter, the court may in its discretion require the person or persons appealing to file a bond with sufficient surety for such Chapter IV: a sum as shall be fixed by the court to indemnify and save harmless the person or persons in whose favor the decision was rendered from damages and costs which he or she may sustain in case the decision being appealed is affirmed. Appeal IV-6 from A II. In any appeal initiated under this chapter the court may, subject to the provisions of this paragraph or any other provision of law, award attorney's fees and costs to the prevailing Board’s party. Costs and attorney's fees shall not be allowed against a local land use board unless it Decision shall appear to the court that the board, in making the decision from which the appeal arose, acted with gross negligence, in bad faith, or with malice. Costs and attorney's fees shall not be allowed against the party appealing from the decision of a local land use board unless it shall appear to the court that said party acted in bad faith or with malice in appealing to court. This statute allows the superior court to require a bond from the appealing party whenever an appeal is filed and allows the court to award attorney’s fees and costs to the prevailing party. However, attorney’s fees and costs are not allowed against the IMPACTED CHAPTER DESCRIPTION OF CHANGE PAGE #S party appealing the land use board’s decision or the local land use board unless that person or body acted with gross negligence, in bad faith, or with malice in either filing the appeal or making the decision. Legislative-related addition to the paragraph “Decisions”. Decisions: The board shall decide all cases within 90 days of receipt of Appendix A application_days (30 recommended) of the close of the public hearing and shall approve, approve with conditions, or deny the appeal the application. Notice of the decision will be made available for public inspection within 5 business days, as Suggested required by RSA 676:3, and will be sent to the applicant by certified mail. The Rules of A-4 decision shall include specific written findings of fact that support the Procedure decision. Failure of the board to make specific written findings of fact supporting a for Local disapproval shall be grounds for automatic reversal and remand by the superior court Boards of upon appeal, in accordance with the time periods set forth in RSA 677:5 or RSA Adjustment 677:15, unless the court determines that there are other factors warranting the disapproval. If the appeal is denied, the notice shall include the reasons therefore. The notice shall also be given to the planning board, the board of selectmen, town clerk, property tax assessor and other town officials as determined by the board. Legislative-related addition to the Notice of Decision - Granted template before Conditions: Appendix C Findings of fact: Suggested C-12 Forms Summary of the facts of the case discussed at the above public hearing: 1._____________________________________________________ 2._____________________________________________________ 3._____________________________________________________ Appendix D Appendix D-Zoning Board of Adjustment Case Law removed from the Zoning ZBA Handbook to be made into a separate document titled Federal and D1-D69 Board of State Planning and Zoning Case Law for New Hampshire Local Adjustment Officials. Case Law Appendix E Simplex. v. Newington E1-E3 Appendix E renamed Appendix D due to removal of Appendix D. Background Information TABLE OF CONTENTS Preface ..................................................................................................................................... iii Caution ..................................................................................................................................... iv Introduction ............................................................................................................................... v New Hampshire Municipalities Without a Zoning Ordinance ..............................................vii New Hampshire Village Districts With Zoning Ordinances ............................................... viii CHAPTER I: Organization ............................................................................................... I-1 Establishing the Board of Adjustment ............................................................................................ I-1 Board Members and Alternate Members ........................................................................................ I-1 Organizing the Board ..................................................................................................................... I-4 Rules of Procedure .......................................................................................................................... I-5 CHAPTER II: Powers and Duties of the Zoning Board of Adjustment........................... II-1 Authority to Regulate the Use of Land .......................................................................................... II-1 Authority of the Board of Adjustment ........................................................................................... II-2 Appeal from Administrative Decision ........................................................................................... II-3 Special Exceptions ......................................................................................................................... II-5 Variances ....................................................................................................................................... II-9 Equitable Waiver of Dimensional Requirements ........................................................................ II-17 Expansion of Nonconforming Uses ............................................................................................ II-18 Abandonment of Nonconforming Uses ...................................................................................... II-21 The ZBA Acting as the Building Code Board of Appeals ........................................................... II-23 Other Responsibilities of the Board of Adjustment .................................................................... II-25 What the Board of Adjustment Should Not Do ........................................................................... II-27 CHAPTER III: Procedures .............................................................................................. III-1 1. Application ................................................................................................................................III-1 Previous Applications (The Fisher Doctrine) ............................................................................. III-3 Plot Plan Requirements ............................................................................................................... III-4 Effect of the Appeal ..................................................................................................................... III-5 2. Notification .............................................................................................................................. III-5 3. Public Hearing ......................................................................................................................... III-7 Consideration of Evidence and Testimony ................................................................................. III-9 Collection and Expenditure of Fees by the Board of Adjustment.............................................. III-10 Disqualification .......................................................................................................................... III-12 4. Findings of Facts .................................................................................................................... III-14 5. Statement of Reasons .............................................................................................................. III-15 6. Decision .................................................................................................................................. III-16 Special Considerations when Voting on a Variance ................................................................... III-19 Recommendation on the Timing, the Writing, and the Vote ................................................... III-20 Attaching Conditions and Time Limits .................................................................................... III-22 Joint Meetings and Hearings .................................................................................................... III-24 Nonpublic Sessions ................................................................................................................... III-25 Records ...................................................................................................................................... III-25 Integrated Land Development Permit ...................................................................................... III-26 Summary .................................................................................................................................... III-26 CHAPTER IV: Appeal From A Board’s Decision ............................................................ IV-1 Rehearing ...................................................................................................................................... IV-1 i THE BOARD OF ADJUSTMENT IN NH 2022 – NH OPD Appeal to Superior Court .............................................................................................................. IV-4 Appeal to Housing Appeals Board ............................................................................................... IV-6 Appeal of Planning Board Decision ............................................................................................. IV-7 APPENDICES APPENDIX A: Suggested Rules of Procedure for Local Boards of Adjustment .................... A-1 APPENDIX B: Instructions to Applicants Appealing to the Board of Adjustment ............... B-1 APPENDIX C: Suggested Forms ........................................................................................... C-1 APPENDIX D: Simplex v. Newington Background Information .......................................... D-1 ii THE BOARD OF ADJUSTMENT IN NH 2022 – NH OPD PREFACE The Office of Planning and Development (NH OPD) – formerly the Office of Strategic Initiatives (and before that, the Office of Energy and Planning) – provides assistance to New Hampshire citizens and municipalities in their planning efforts. As part of that assistance, NH OPD staff responds to numerous requests for information and assistance from cities and towns concerned about zoning and the duties and responsibilities of the board of adjustment. This handbook is a guide for board members and others on the procedures, organization, powers, and duties of the board of adjustment. The Board of Adjustment in New Hampshire: A Handbook for Local Officials was first prepared by Robert C. Young, Planning Associate, under the auspices of the New Hampshire Planning and Development Commission in 1959. The handbook was revised in 1961, 1964, 1969, 1972, and 1979. It was rewritten in 1985 and additional revisions took place in 1988, 1993, 1994, 1997, 2001 and 2002 to reflect changes in state law and statutory interpretations. The handbook has been updated annually since 2002.1 This edition incorporates statutory changes enacted through the 2022 legislative session. Starting in 2023 information on Planning and Zoning Case Law (formally Appendix D) is published in a separate document titled Federal and State Planning and Zoning Case Law for New Hampshire Local Officials. Throughout this book, state statutes are presented in 10 pt. Arial font and citations are provided for New Hampshire Supreme Court decisions. Information regarding this handbook, Federal and State Planning and Zoning Case Law for New Hampshire Local Officials, as well as other related resources and publications are available to download for no charge from NH OPD’s website at: www.nh.gov/osi/planning/resources/publications.htm. 1 Special recognition and appreciation is given to all who have assisted in the preparation of this publication over time, including but not limited to Attorneys Timothy Bates, Benjamin Frost, Peter Loughlin, and H. Bernard Waugh for their review of and comments on the 2002 edition and for the valued use of their materials listed herein. iii THE BOARD OF ADJUSTMENT IN NH 2022 – NH OPD CAUTION This handbook is designed to serve as an introduction to the organization, powers, duties and procedures of boards of adjustment in New Hampshire. However, given the unique nature of individual parcels of land across the state and the wide variety of development proposals, this material should be taken only as a guide. Obviously, all principles outlined herein may not be entirely applicable to every parcel or proposal in the state. Accordingly, this guide should be used as a starting point for discussions regarding a particular parcel or proposal. Cases, treatises, statutes, court rulings and the like referred to in this guide should be checked to determine whether they have been reversed, distinguished, amended, or whether they are even applicable to the unique parcel under consideration. This material is being offered as a service to users and is considered “as is” without any expressed or implied guarantee or warranty by the State of New Hampshire or any subdivision thereof pertaining to the operation and administration of the board or for the accuracy of the information provided. It is strongly suggested that your board always seek legal counsel whenever there are any procedural or substantive legal questions. iv THE BOARD OF ADJUSTMENT IN NH 2022 – NH OPD