A variance is relaxation or a waiver of any provision of the ordinance authorizing the landowner to use his or her land in a manner that would otherwise violate the ordinance and may be granted by the board of adjustment on appeal.
RSA 673:33 Powers of Zoning Board of Adjustment - "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."
The following criteria must be met in order to obtain a variance:
- The variance will not be contrary to the public interest.
- The spirit of the ordinance is observed.
- Substantial justice is done.
- The values of the surrounding properties are not diminished.
- Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship.
For the purposes of this section, "unnecessary hardship" means that, owing to special conditions of the property that distinguish it from other proprieties in the area;
- 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
- Tthe proposed use is a reasonable one (The Reasonable Use Test)
When a case for a variance comes before the Board of Adjustment, it is helpful to discuss the following questions:
- Would granting the variance not be contrary to the public interest?
- Could the variance be granted without violating the spirit of the ordinance?
- Would granting the variance do substantial justice?
- Could the variance be granted without diminishing the value of abutting properties?
- Would denial of the variance result in unnecessary hardship to the owner?
If the anwer to all five questions is yes, the variance should be granted.
If the applicant fails to meet any one of the five variance requirements, it cannot be legally granted and should be denied.
The NH Office of Energy and Planning publication, The Board of Adjustment in New Hampshire gives detailed instructions on how appeals for variances should be handled. Click here for a complete copy of this manual.
Updated March 25, 2013