TITLE LXIV
PLANNING AND ZONING

CHAPTER 674
LOCAL LAND USE PLANNING AND REGULATORY POWERS

Zoning Board of Adjustment and Building Code Board of Appeals

Section 674:33

    674:33 Powers of Zoning Board of Adjustment. –
    I. The zoning board of adjustment shall have the power to:
       (a) Hear and decide appeals if it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of any zoning ordinance adopted pursuant to RSA 674:16; and

[Paragraph I(b) effective until January 1, 2010; see also paragraph I(b) set out below.]


       (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.

[Paragraph I(b) effective January 1, 2010; see also paragraph I(b) set out above.]


       (b) Authorize, upon appeal in specific cases, a variance from the terms of the zoning ordinance if:
          (1) The variance will not be contrary to the public interest;
          (2) The spirit of the ordinance is observed;
          (3) Substantial justice is done;
          (4) The values of surrounding properties are not diminished; and
          (5) Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship.
             (A) For purposes of this subparagraph, ""unnecessary hardship'' means that, owing to special conditions of the property that distinguish it from other properties in the area:
                (i) No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property; and
                (ii) The proposed use is a reasonable one.
             (B) If the criteria in subparagraph (A) are not established, an unnecessary hardship will be deemed to exist if, and only if, owing to special conditions of the property that distinguish it from other properties in the area, the property cannot be reasonably used in strict conformance with the ordinance, and a variance is therefore necessary to enable a reasonable use of it.
       The definition of ""unnecessary hardship'' set forth in subparagraph (5) shall apply whether the provision of the ordinance from which a variance is sought is a restriction on use, a dimensional or other limitation on a permitted use, or any other requirement of the ordinance.
    II. In exercising its powers under paragraph I, the zoning board of adjustment may reverse or affirm, wholly or in part, or may modify the order, requirement, decision, or determination appealed from and may make such order or decision as ought to be made and, to that end, shall have all the powers of the administrative official from whom the appeal is taken.
    III. The concurring vote of 3 members of the board shall be necessary to reverse any action of the administrative official or to decide in favor of the applicant on any matter on which it is required to pass.
    IV. A local zoning ordinance may provide that the zoning board of adjustment, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance. All special exceptions shall be made in harmony with the general purpose and intent of the zoning ordinance and shall be in accordance with the general or specific rules contained in the ordinance.
    V. Notwithstanding subparagraph I(b), any zoning board of adjustment may grant a variance from the terms of a zoning ordinance without finding a hardship arising from the condition of a premises subject to the ordinance, when reasonable accommodations are necessary to allow a person or persons with a recognized physical disability to reside in or regularly use the premises, provided that:
       (a) Any variance granted under this paragraph shall be in harmony with the general purpose and intent of the zoning ordinance.
       (b) In granting any variance pursuant to this paragraph, the zoning board of adjustment may provide, in a finding included in the variance, that the variance shall survive only so long as the particular person has a continuing need to use the premises.

Source. 1983, 447:1. 1985, 103:20. 1987, 256:1. 1998, 218:1, eff. Aug. 17, 1998. 2009, 307:6, eff. Jan. 1, 2010.