INSTRUCTIONS
TO APPLICANTS APPEALING TO
THE
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IMPORTANT: READ |
The
board strongly recommends that, before making any appeal, you become familiar
with the zoning ordinance, and also with the New Hampshire Statutes TITLE LXIV,
RSA Chapters 672- 677, covering planning and zoning.
Four
types of appeals can be made to the board of adjustment:
VARIANCE:
A variance is an authorization, which may be granted under special
circumstances, to use your property in a way that is not permitted under the
strict terms of the zoning ordinance. For a variance to be legally granted, you
must show that your proposed use meets all five of the following
conditions:
l.
The proposed use would not
diminish surrounding property values.
2.
Granting the variance must not be
contrary to the public interest.
3.
Denial of the variance would
result in unnecessary hardship to the owner. Hardship, as the term
applies to zoning, results if a restriction, when applied to a particular
property, becomes arbitrary, confiscatory, or unduly oppressive because of
conditions of the property that distinguish it from other properties under
similar zoning restrictions. The NH
Supreme Court has established a new test for unnecessary hardship for a use
variance consisting of 3 elements:
a. that the zoning restriction as applied to the property
interferes with the reasonable use of the property, considering the unique
setting of the property in its environment;
b. that no fair and substantial relationship exists between
the general purposes of the zoning ordinance and the specific restriction on
the property; and
c. that the variance would not injure the public or private
rights of others.
For
an area variance, an applicant can demonstrate unnecessary hardship by
establishing that:
a.
special conditions of the property make an area variance necessary in order to
allow the applicant to construct the development as designed; and
b. the applicant cannot achieve the same benefit by some
other reasonably feasible method that would not impose an undue financial
burden.
4.
Granting the variance would do substantial
justice.
5.
The proposed use is not contrary
to the spirit of the ordinance.
If
you are applying for a variance, you must first have some form of determination
that your proposed use is not permitted without a variance. Most often, this
determination is a denial of a building permit. A copy of the determination
must be attached to your application.
APPEAL
FROM AN ADMINISTRATIVE DECISION: If you have been denied a building permit
or are affected by some other decision regarding the administration of the
If
you are appealing an administrative decision, a copy of the decision appealed
from must be attached to your application.
SPECIAL
EXCEPTION: Certain sections of the zoning ordinance provide that a
particular use of property in a particular zone will be permitted by special
exception if specified conditions are met. The necessary conditions for each
special exception are given in the ordinance. Your appeal for a special
exception will be granted if you can show that the conditions stated in the
ordinance are met.
If
you are applying for a special exception, you may also need site plan or
subdivision approval, or both, from the planning board. Even in those cases
where no planning board approval is needed, presenting a site plan to the
planning board will assist in relating the proposal to the overall zoning. This
should be done before you apply for a special exception. The Board of Adjustment will request a
recommendation from the Richmond Planning Board and the Richmond Conservation
Commission concerning the proposed use.
EQUITABLE
WAIVER OF DIMENSIONAL REQUIREMENTS: The board may grant an equitable waiver
only for existing dimensional nonconformities provided the applicant can meet
the required standards.
a) The nonconformity was not discovered
until after the structure was substantially completed or after a vacant lot in
violation had been transferred to a bona fide purchaser;
b) The nonconformity was not an outcome of
ignorance of the law or bad faith but was instead caused by a legitimate
mistake;
If
these conditions are satisfied, the board can move on to the additional
findings to grant the waiver:
c) The nonconformity does not constitute a
public or private nuisance nor diminish the value or interfere with future uses
of other property in the area; and
d) The cost of correction would far
outweigh any public benefit to be gained.
In
lieu of the requirements in paragraphs (a) and (b), the violation has existed
for 10 years or more with no enforcement action, including written notice,
commenced by the town.
For
any appeal, the application form must be properly filled out. The application
form is intended to be self-explanatory, but be sure that you show:
WHO
owns the property? If the applicant is not the owner, this must be explained.
WHERE
is the property located?
DESCRIBE
the property. Give area, frontage, side and rear lines, slopes and natural
features, etc.
WHAT
do you propose to do? Attach sketches, plot plans, pictures, construction
plans, or whatever may help explain the proposed use. Include copies of any
prior applications concerning the property.
WHY
does your proposed use require an appeal to the board of adjustment?
WHY
should the appeal be granted?
Prepare
a list of all abutting property owners, and attach to your application. If you
have is required. Public notice of the
hearing will be posted and printed in a newspaper, and any difficulty, consult
the selectmen’s office, but the accuracy of the list is the applicant’s
responsibility. If the abutter’s list is
incomplete the application will not be accepted. Enclose two sets of self adhering addressed mailing labels (1”x3”) for
the abutter’s lists.
Mail or deliver the completed application, with all
attachments to the office of the board of selectmen. A fee is charged
sufficient to cover the cost of preparing and mailing the legally required
notices. Make check payable to TOWN OF
RICHMOND and remit with your application.
Zoning Board
Application………………………$50.00
Abutters
notification……………………………..$6.00 per abutter
Regular meetings are
held on the second Wednesday of each month.
The deadline for applications is the 15th of each month.
The
board will promptly schedule a public hearing upon receipt of your properly
completed application. The
applicant/property owner should be present. If necessary, a signed and dated letter by
the property owner authorizing an agent to represent the owner notice will be
mailed to you and to all abutters and to other parties whom the board may deem
to have an interest, at least five days before the date of the hearing. You and
all other parties will be invited to appear in person or by agent or counsel to
state reasons why the appeal should or should not be granted.
After
the public hearing, the board will reach a decision. You will be sent a notice
of decision. If you believe the board
decision is wrong, you have the right to appeal. The selectmen, or any party
affected, have similar rights to appeal the decision in your case. To appeal,
you must first ask the board for a rehearing. The Motion for Rehearing may be
in the form of a letter to the board. The motion must be made within 30
calendar days beginning with the date following the date upon which the board
voted to approve or disapprove the application, and must set forth the grounds
on which it is claimed the decision is unlawful or unreasonable.
The
board may grant such a rehearing if, in its opinion, good reason is stated in
the motion. The board will not reopen a case based on the same set of facts
unless it is convinced that an injustice would be created by not doing so.
Whether or not a rehearing is held, you must have requested one before you can
appeal to the courts. When a rehearing is held, the same procedure is followed
as for the first hearing, including public notice and notice to abutters.
See
RSA chapter 677 for more detail on
rehearing and appeal procedures.
Reference materials are available at the