Waiver of Dimensional Requirements

Equitable Waiver of Dimensional Requirements addresses the situations where a good faith error was made in the siting of a building or other dimensional layout issue.

When a lot or structure is discovered to be in violation of a physical layout or dimensional requirement, the ZBA may grant a waiver only if each of the four findings as outlined in the statute are made:

  1. Lack of discovery;
  2. Honest mistake;
  3. No diminution in value of surrounding property and
  4. Cost of correcting the mistake outweighs any public benefit.

In lieu of the ZBA finding that the violation was not discovered in a timely manner and that the mistake was made in good faith, the owner can meet the first two parts of the four-part test by demonstrating that the violation has existed for ten or more years and that no enforcement action was commenced against the violation during that time by the municipality or by any person directly affected.

The application and hearing procedures for equitable waivers are governed by RSA 676:5-7. Rehearings and appeals are governed by RSA 677:2-14. The burden of proof rests with the property owner seeking an equitable waiver.

Jackson Zoning Ordinance Section 16.2.4 specifies " Waivers shall be granted only from physical layout, mathematical or dimensional requirements. An equitable waiver shall not be construed as a Non-Conforming Use, and shall not exempt future use, construction, reconstruction, or additions on the property from full compliance with the Zoning Ordinance. This Section shall not be construed to impose  upon municipal officials any duty to guarantee the correctness of plans reviewed by them."

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 a request for an Equitable Waiver of Dimensional Requirements comes before the Board of Adjustment, it might be helpful to run through the following checklist:

Does the request involve a dimensional requirement, not a use restriction? If the answer is yes, the Board can move on to the specific findings to grant the waiver:

Has the violation existed for 10 years or more with no enforcement action, including written notice, commenced by the town,

- or -

Was the nonconformity discovered after the structure was substantially completed or after a vacant lot in violation had been transferred to a bona fide purchaser, and was the violation not an outcome of ignorance of the law or bad faith but as a result of a legitimate mistake? If the answer is yes to either, the Board can move on to the additional findings to grant the waiver:

Does the nonconformity not constitute a nuisance or diminish the value or interfere with future uses of other property in the areas?

Would the cost of correction far outweigh any public benefit to be gained?

If the answer to each of the above is yes, the Board shall grant an equitable waiver.

The power to grant appeals should be treated with respect and with the knowledge that the task of the Board of Adjustment is to correct inequities, not to create them.

The NH Office of Energy and Planning publication, The Board of Adjustment in New Hampshire gives detailed instructions on how ZBAs should handle a request for an Equitable Waiver of Dimensional Requirements. Click here for a complete copy of this manual.