RSA 674:33 states (among other things) that the Board of Adjustment (ZBA) shall have the power to hear and decide appeals if is is alleged there is error in any order, requirement, decision, or determination by an administrative official in the enforcement of any zoning ordinance adopted pursuant to RSA 674:16
The Jackson Board of Adjustment By-Laws state that such appeals may be filed no later than 30 calendar days from the date following the date of the decision. (RSA 676:5,I)
The 30-day time limit applies only to those situations where anyone having a right to appeal, feels that a decision interpreting the Zoning Ordinance, made by the Board of Selectmen, Planning Board or other administrative officer is incorrect, and he wishes to appeal that administrative decision. While a variance may also be requested at the same time as an appeal, there is no time limit for applying for a variance. The Board, by a majority vote, may waive this period if the person appealing can demonstrate to the Board's satisfaction that he did not know, and could not reasonably have known, that the decision had been made.
The Board of Adjustment decides cases where a claim is made that the administrative officer has incorrectly interpreted the terms of the ordinance such as a district boundary or the exact meaning of an article or term. Most zoning ordinances contain terms that may be confusing and are, therefore, open to interpretation.
In another situation, a person may, rightly or wrongly, question the administrator's reason for withholding a permit. Because the Board of Adjustment has the power to referee such cases, every person is afforded a timely hearing and decision without the expense of going to court.
Although this is a relatively simple power, there are several pitfalls to be avoided. In determining the intent and meaning of a provision of the ordinance and map, the board is restricted to a fairly literal interpretation.
When an appeal is made to a Board of Adjustment under this provision, the board must apply the strict letter of the law in exactly the same way that a building inspector must. It cannot alter the ordinance and map or waive any restrictions under the guise of interpreting the law.
The petitioner may, of course, ask for a variance after the Board of Adjustment has defined the law, but this must be done by filing an application for a variance and considered by the board on the standards required by a variance.
Decisions made by the administrative officer involving what the ordinance says and means are appealable. This includes situations such as a decision by the Board of Selectmen to issue (or deny) a building permit because of their belief that the proposed use is permitted (or not) in a particular zone. The same applies to decisions by the Planning Board or any other "administrative officer" regarding the terms of the ordinance.
ZBA Checklist - The Board of Adjustment must act on the evidence presented and base its decision on legal grounds. The Board cannot deny or approve an application based on a judgment of what it considers the best interest of the area or neighborhood.
The legislative body, in passing the ordinance and map, has already decided what zoning controls it believes to be best for the municipality and has determined what restrictions will be applied. The Board of Adjustment cannot be given legislative powers. It cannot do anything that would, in effect, be rezoning.
When a case involving an appeal from an Administrative Order comes before the Board of Adjustment, it might be helpful to run through the following checklist:
- What is the meaning of the provision in question?
- Does the appellant meet the terms?
The NH Office of Energy and Planning publication, The Board of Adjustment in New Hampshire, gives detailed instructions on how ZBAs should handle an appeal of an administration decision. Click here for a complete copy of this manual.