Obtaining a Zoning Variance in New Hampshire

Zoning Variance in New HampshireUnder New Hampshire law, all towns and cities are required to institute zoning ordinances. The purpose of zoning is to regulate the use of land and keep neighborhoods organized and compatible. More generally, ordinances are designed to promote the public health, safety, and general welfare of a municipality’s inhabitants.

Typically, a town will be divided into several zoning districts, or “zones.” Each zone has particular limitations and requirements. Most importantly, each zone has limitations on “permitted uses.” For example, the “Residence ‘A’ District” in Milford allows only single-family dwellings, telecommunications facilities, and farm stands as permitted uses. Things like commercial or business uses are not permitted under the zoning ordinance in this zone. Zones also have other property requirements such as minimum frontage and setbacks. There are also zoning regulations which apply universally to all zones in the town.

Residents may petition the Zoning Board of Adjustment, a town-level committee, to obtain a “Variance,” which allows a use not otherwise permitted by the zoning ordinance. There are five criteria for the granting of a variance, set by New Hampshire state law:

  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;
  5. Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship.

These five criteria are closely related and overlap considerably. The most difficult criterion to meet is generally considered the “unnecessary hardship” requirement. The case law and statutes relevant to variances have also undergone major changes in the past two decades, so variance requests are rarely cut and dry.

Any variance, or other Zoning Board decision, may be appealed to the Superior Court. The party appealing must first file a motion for rehearing with the Zoning Board within 30 days of the decision being made.
Often, residential zoning matters are presented to the Zoning Board by the residents themselves, without an attorney, because of cost considerations. For commercial and business matters with more financial ramifications, an attorney is often retained.

If you need an experienced land use and zoning attorney to handle your Zoning Board matter or appeal, please call Welts, White & Fontaine at 603-883-0797, or use the contact form at the very bottom of this page.

Israel F. Piedra

This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice, a legal opinion, or forming an attorney-client relationship.