Derry City Zoning Code
ARTICLE XV
Zoning Board of Adjustment
§ 165-122 Appointment.
The Town Council shall appoint a Board of Adjustment pursuant to the provisions of RSA 673:1.
§ 165-123 Membership; terms of office.
The Board of Adjustment shall consist of five members, whose terms shall be for three years. When the Board is first organized, appointments shall be staggered so that no more than two appointments occur annually, except when required to fill vacancies. Said members shall be removable by the appointing authority upon written charges and after a public hearing. Vacancies shall be filled for the unexpired term.
§ 165-124 Rules of procedure, meetings and minutes.
The Board shall adopt rules in accordance with the provisions of RSA 676:1. Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. Such Chairman or, in his absence, the Acting Chairman may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings showing the vote of each member upon each question and, if absent or failing to vote, indicating such fact and shall keep records of its examinations and other actions, all of which shall be immediately filed in the office of the Board and shall be a public record.
§ 165-125 Appeals.
[Amended 2-21-2025]
A.
Appeals to the Board of Adjustment concerning interpretation or administration of this chapter may be taken by an abutter or by any officer, department, board or bureau of the municipality affected by any decision of the administrative official. Such appeal shall be taken within a reasonable time as prescribed by the rules of the Board by filing with the administrative official from whom the appeal is taken and with the Board a notice of appeal specifying the grounds thereof. The administrative official from whom the appeal is taken shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from was taken.
B.
An appeal stays all proceedings under the action appealed from, unless the administrative official from whom the appeal was taken certifies to the Board of Adjustment, after notice of appeal shall have been filed with him, that by reason of the facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board or by the Superior Court on notice to the administrative official from whom the appeal is taken on due cause shown.
C.
The Board of Adjustment shall fix a reasonable time for the hearing of the appeal, give the public notice thereof as well as notice to parties in interest, and decide the same within a reasonable time. Upon hearing any party may appear in person or by agent or attorney.
§ 165-126 Powers.
A.
The Board of Adjustment shall have the following powers:
(1)
To hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by an administrative official in the enforcement hereof or of any ordinance adopted pursuant to RSA 674:16.
(2)
To authorize upon appeal in specific cases such variance from the terms of this chapter as will not be contrary to the public interest if, owing to special conditions, a literal enforcement of the provisions of this chapter will result in hardship, and so that the spirit of this chapter shall be observed and substantial justice done.
B.
In exercising the above-mentioned powers, such Board may, in conformity with the provision hereof, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and make such order or decision as ought to be made and, to that end, shall have all the powers of the administrative official from whom the appeal is taken.
C.
The Board of Adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of this chapter. All special exceptions shall be made in harmony with the general purpose and intent of this chapter and shall be in accordance with the general or specific rules contained herein.
D.
The concurring vote of three members of the Board shall be necessary to reverse any action of such administrative official or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter.
§ 165-127 Disqualification of member.
A.
No member of the Board of Adjustment shall participate in deciding or shall sit upon the hearing of any question which the Board is to decide in a judicial capacity if that member has a direct personal or pecuniary interest in the outcome which differs from the interest of other citizens or if that member would be disqualified for any cause to act as a juror upon the trial of the same matter in any action at law. Reasons for disqualification do not include exemption from service as a juror or knowledge of the facts involved gained in the performance of the member's official duties.
B.
When uncertainty arises as to the application of Subsection A above to a Board member in particular circumstances, the Board shall, upon the request of that member or another member of the Board, vote on the question of whether that member should be disqualified. Any such request and vote shall be made prior to, or at the commencement of, any required public hearing. Such vote shall be advisory and nonbinding and may not be requested by persons other than Board members, except as provided by local ordinance or by a procedural rule adopted under RSA 676:1.
C.
If a member shall be disqualified or unable to act in a particular case pending before the Board, the Chairman shall designate an alternate to act in her/his place.
§ 165-128 Motion for rehearing.
[Amended 2-21-2025]
A.
Within 20 days after any order or decision of the Zoning Board of Adjustment, the Town Council, any party to the action or proceedings, or any abutter, may apply for a rehearing in respect to any matter determined in the action or proceeding, or covered or included in the order, specifying in the motion for rehearing the ground therefor, and the Board of Adjustment may grant such rehearing if, in its opinion, good reason therefor is stated in the motion.
B.
A motion for rehearing made under Subsection A of this section shall set forth fully every ground upon which it is claimed that the decision or order complained of is unlawful or unreasonable. No appeal from any order or decision of the Board of Adjustment shall be taken unless the appellant shall have made application for rehearing as provided for in Subsection A of this section, and, when such application shall have been made, no ground not set forth in the application shall be urged, relied on or given any consideration by a court unless the court, for good cause shown, shall allow the appellant to specify additional grounds.
C.
Upon the filing of a motion for rehearing, the Board of Adjustment shall, within 10 days, either grant or deny the application or suspend the order or decision complained of pending further consideration. Any order of suspension may be upon such terms and conditions as the Board of Adjustment may prescribe.
§ 165-129 Appeal from decision on motion for rehearing.
Any person aggrieved by any order or decision of the Board of Adjustment may apply to the Superior Court within 30 days after the action complained of has been recorded, by sworn petition, setting forth that such decision or order is illegal or unreasonable, in whole or in part, and specifying the grounds upon which the same is claimed to be illegal or unreasonable.
A.
Burden of proof. In an appeal to the Court, the burden of proof shall be upon the party seeking to set aside any order or decision of the Zoning Board of Adjustment to show that the order or decision is unlawful or unreasonable. All findings of the Zoning Board of Adjustment upon all facts properly before the Court shall be prima facie lawful and reasonable. The order or decision appealed from shall not be set aside or vacated, except for errors of law, unless the Court is persuaded by the balance of probabilities, on the evidence before it, that said order or decision is unreasonable.
B.
Certifying record. An order of the Court to send up the record may be complied with by filing either the original papers or duly certified copies thereof, or of such portions thereof as the order may specify, together with a certified statement of such other facts as show the grounds of the action appealed from.
C.
Hearing. The Court may take evidence, or appoint a referee to take such evidence, as it may direct and report the same with its findings of fact and conclusion of law.
D.
Restraining order. The filing of an appeal shall not stay proceedings upon the decision appealed from, but the Court may, on application and notice, for good cause shown, grant a restraining order.
E.
Judgment. The Court shall direct the records in the matter appealed from to be laid before it, hear the evidence and make such order approving, modifying, or setting aside the decision appealed from as justice may require and may make a new order as a substitute for the order of the Board.
F.
Costs. Costs shall not be allowed against the municipality unless it appears to the Court that the Zoning Board of Adjustment acted with gross negligence, or in bad faith, or with malice in making the decision appealed from.
G.
Priority. All proceedings under this section shall be entitled to a speedy hearing.