INSTRUCTIONS TO APPLICANTS APPEALING TO
THE BOARD OF ADJUSTMENT
IMPORTANT: _READ ALL INSTRUCTIONS CAREFULLY BEFORE FILLING OUT ATTACHED APPLICATION.
The board strongly recommends that, before making any appeal, you become familiar with the Zoning Ordinance, and also with the New Hampshire Statutes TITLE LXIV, RSA Chapters 672-677, covering planning and zoning.
Four types of appeals can be made to the Board of Adjustment.
VARIANCE:
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. For a variance to be legally granted, you must show that your proposed use meets all five of the following conditions:
The proposed use would not diminish surrounding property values.
Granting the variance must not be contrary to the public interest.
Denial of the variance would result in unnecessary hardship to the owner. 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 properties under similar zoning restrictions. Hardship, under zoning law, has nothing to do with the physical or economic condition of the owner. The NH Supreme Court has established a new test for unnecessary hardship.
If your application is for a “USE” variance, please answer a-c.
a. that the zoning restriction as applied to the property interferes with the reasonable use of the property, considering the unique setting of the property in its environment.
b. that no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and
c. that the variance would not injure the public or private rights of others.
If your application is for an “AREA” variance, please answer aa-bb.
aa. An area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property.
bb. The benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance.
Granting the variance would do substantial justice.
The proposed use is not contrary to the spirit of the ordinance.
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. A copy of the determination must be attached to your application.
APPEAL FROM AN ADMINISTRATIVE DECISION:
If you have been denied a building permit or are affected by some other decision regarding the administration of the New Boston Zoning Ordinance, and you believe that the decision was made in error under the provisions of the ordinance, you may appeal the decision to the board of adjustment. The appeal will be granted if you can show that the decision was indeed made in error.
If you are appealing an administrative decision, a copy of the decision appealed from must be attached to your application.
SPECIAL EXCEPTION: Certain sections of the zoning ordinance provide that a particular use of property in a particular zone will be permitted by special exception if specific conditions are met. The necessary conditions for each special exception are given in the ordinance. Your appeal for a special exception will be granted if you can show that the conditions stated in the ordinance are met.
If you apply are applying for a special exception, you may also need a site plan for planning board approval, and/or approval from the planning board. Even in those cases where no planning board approval is needed, presenting a site plan to the planning board will assist in relating the proposal to the overall zoning. This should be done before you apply for a special exception.
EQUITABLE WAIVER OF DIMENSIONAL REQUIREMENTS: The board may grant an equitable waiver only for existing dimensional nonconformities provided the applicant can meet the required standards.
a. The nonconformity was not discovered until after the structure was substantially completed or after a vacant lot in violation had been transferred to a bona fide purchaser,
b. the nonconformity was not an outcome of ignorance of the law or bade faith but was instead caused by a legitimate mistake;
c. the nonconformity does not constitute a public or private nuisance nor diminish the value or interfere with future uses of other property in the area; and
d. the cost of correction would far outweigh any public benefit to be gained. In lieu of the requirements in paragraphs (a) and (b), the violation has existed for 10 years or more with no enforcement action, including written notice, commenced by the town.
For any appeal, the application form must be properly filled out. The application form is intended to be self-explanatory, but be sure that you show:
WHO owns the property? If the applicant is not the owner, this must be explained.
WHERE is the property located?
DESCRIBE the property. Give area, frontage, side and rear lines, slopes and natural features, etc.
WHAT do you propose to do? Attach sketches; plot plans, pictures, constructions plans, or whatever may help explain the proposed use. Include copies of any prior applications, concerning the property.
WHY does your proposed use require an appeal to the board of adjustment?
WHY should the appeal be granted?
The NEW BOSTON ZONING BOARD OF ADJUSTMENT meets the third Tuesday of each month as needed. Applications must be into the Zoning Board Clerk per the SUBMITTAL SCHEDULE or call Laura Todd, Clerk.
FOR ALL APPLICATIONS YOU MUST:
Prepare a list of all abutting property owners and attach it to your application. If you have difficulty, consult the assessor’s office, but the accuracy of this list is your responsibility.
Mail or deliver the completed application, with all attachments to the clerk of the board or to the office of the board of selectmen. A fee is charged sufficient to cover the cost of preparing and mailing legally required notices. Application fee is $50.00, plus $7.00 for each abutter including applicant and owner if not the applicant. Make a check payable to the Town of New Boston and remit with your application.
Provide a plan showing the location of the property in question. This may be a copy of tax map with property highlighted. Legal abutters names should appear on abutting properties, roads should be shown, building location shown if applicable.
IF THE APPLICATION IS FOR A SPECIAL EXCEPTION, you may need a site plan for PLANNING BOARD APPROVAL. Please refer back to instructions for applying for a “SPECAIL EXCEPTION”.
The board will schedule a public hearing within 30 days of your properly completed application. Public notice of the hearing will be posted and printed in a newspaper, and notice will be mailed to you and to all abutters and to parties whom the board may deem to have an interest, at least five days before the date of the hearing. You and all other parties will be invited to appear in person or by agent or counsel to state reasons why the appeal should or should not be granted.
After the public hearing, the board will reach a decision. You and all other parties to the case will be sent a notice of decision.
If you believe the board’s decision is wrong, you have the right to appeal. The selectmen, or any party affected, have similar rights to appeal the decision in your case. To appeal, you must first ask the board for a rehearing. The motion for rehearing may be in the form of a letter to the board. The motion must be made within 30 days after the decision is filed and first becomes available for public inspection in the board’s office, and must set forth the grounds on which it is claimed the decision is unlawful or unreasonable.
The board may grant such a rehearing if, in its opinion, good reason is stated in the motion. The board will not reopen a case based on the same set of facts unless it is convinced that an injustice would be created by not doing so. Whether or not a rehearing is held, you must have requested one before you can appeal to the courts. When a rehearing is held, the same procedure is followed as for the first hearing, including public notice and notice to abutters.
These instructions were revised 09/21/04.
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