Rochester City Zoning Code
ARTICLE 4
Zoning Board of Adjustment and Building Code Board of Appeals
§ 275-4.1 Powers of Board.
The powers of the Zoning Board of Adjustment and Building Code Board of Appeals shall include those prescribed in RSA 674:33, 674:33-a, and 674:34, as amended.
A.
Administrative appeals. In accordance with RSA 676:5, the Board shall hear and decide appeals where it is alleged that there is an error in any order, requirement, decision or determination made by any officer, department, board, or bureau of the City of Rochester in the administration, interpretation, or enforcement of this chapter.
B.
Variances.
(1)
The Board may authorize, upon appeal in specific cases, a variance from the terms of this chapter if it determines that all of the following conditions are met:
(a)
The variance will not be contrary to the public interest;
(b)
The spirit of this chapter is observed;
(c)
Substantial justice is done;
(d)
The values of surrounding properties are not diminished; and
(e)
Literal enforcement of the provisions of this chapter would result in an unnecessary hardship, as follows:
[1]
For purposes of this condition, "unnecessary hardship" means that, owing to special conditions of the property that distinguish it from other properties in the area:
[2]
If the criteria in Subsection B(1)(e)[1] above are not established, an unnecessary hardship will be deemed to exist if, and only if, owing to special conditions of the property that distinguish it from other properties in the area, the property cannot be reasonably used in strict conformance with this chapter, and a variance is therefore necessary to enable a reasonable use of it.
(2)
The Board shall determine whether to grant a variance by voting on each of the criteria in Subsection B(1) separately. The Board shall grant a variance only if each of the five criteria receives at least three votes in the affirmative.
[Added 12-5-2017]
(3)
Each criteria receiving at least three votes in the affirmative or negative must include findings of fact to support such vote; said findings of fact must each receive at least three votes in the affirmative.
[Added 12-5-2017]
(4)
Notwithstanding Subsection B(1) and (2), the Board may grant a variance from the terms of this chapter without a finding of a hardship arising from conditions of a premises subject to this chapter when reasonable accommodations are necessary to allow a person or persons with a recognized physical disability to reside in or regularly use the premises, provided that:
[Amended 12-5-2017]
(a)
Any variance granted under this subsection shall be in harmony with the general purpose and intent of this chapter; and
(b)
In granting any variance pursuant to this subsection, the Zoning Board of Adjustment may provide, in a finding included in the variance, that the variance shall survive only so long as the particular person has a continuing need to use the premises.
C.
Special exceptions.
(2)
The Board shall grant a special exception only if it reasonably determines that all of the following base criteria are met (in addition to those criteria and conditions included for specific uses in Article 22):
(a)
Location. The specific site is an appropriate location for the proposed use or structure;
(b)
Neighborhood. The proposed use would not be detrimental, injurious, obnoxious, or offensive to the neighborhood;
(c)
Traffic. The proposed use would not create an undue hazard or nuisance to vehicular or pedestrian traffic;
(d)
Public facilities. Adequate and appropriate facilities and utilities would be provided to ensure the proper operation of the proposed use or structure; and
(e)
Master Plan. The proposed use or structure is consistent with the spirit of this chapter and the intent of the Master Plan.
D.
Equitable waivers.
(1)
When a lot, other division of land, or structure is discovered to be in violation of a physical layout or dimensional requirement of this chapter, the ZBA shall, upon application by the property owner, with the burden of proof being on the property owner, grant an equitable waiver from that specific requirement only if the Board makes all of the following findings:
(a)
Late discovery. The violation was not noticed or discovered by any owner, former owner, owner's agent or representative, or municipal official until after a structure in violation had been substantially completed, or until after a lot or other division of land in violation had been subdivided by conveyance to a bona fide purchaser for value;
(b)
Good faith error. The violation was not an outcome of ignorance of the law, failure to inquire, obfuscation, misrepresentation, or bad faith on the part of any owner, owner's agent or representative, but was instead caused by either a good faith error in ordinance interpretation or applicability made by a municipal official in the process of issuing a permit over which that official had authority;
(c)
No adverse impact. The violation does not constitute a public or private nuisance, nor diminish the value of other property in the area, nor interfere with or adversely affect any present or permissible future uses of any such property; and
(d)
Cost of correction. Due to the degree of past construction or investment made in ignorance of the facts constituting the violation, the cost of correction so far outweighs any public benefit to be gained that it would be inequitable to require the violation to be corrected.
(2)
Ten years passage. In lieu of the findings required under Subsection D(1)(a) and (b) immediately above, the owner may demonstrate to the satisfaction of the Board that the violation has existed for at least 10 years and that no enforcement action, including written notice of violation, has been commenced against the violation during that time by the City or any person directly affected.
E.
Administrative appeals under the Building Code. The Zoning Board of Adjustment functions as the Building Code Board of Appeals. Upon an appeal filed by any person aggrieved by a decision of the Building Inspector dealing with the Building Code, the ZBA may vary the application of any provision of the Building Code in any particular case when, in its opinion, the enforcement of the Building Code would do manifest injustice and would be contrary to the spirit and purpose of the Building Code and the public interest.
§ 275-4.2 Additional provisions.
A.
Minimum vote to approve. The concurring vote of at least three members of the Board is required to approve any application or to overturn any decision of an administrative official (RSA 674:33, III).
B.
Assuming powers of administrative official. In exercising its powers under § 275-4.1A and B above, the Board may reverse or affirm, wholly or in part, or may modify the order, requirement, decision, or determination appealed from and may 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.
Setting conditions. In granting any approval under § 275-4.1 above, the Board may stipulate any reasonable conditions it deems necessary as part of that approval.
E.
Stay of proceedings. The effect of an appeal, including suspension of permits and stay of proceedings, shall be as stated in RSA 676:6.
F.
Submitted materials. Any documentation, drawings, renderings, or other physical materials submitted to the Board by the applicant or his/her agent concerning features of proposed buildings, structures, sites, parking, uses, signage and other elements shall be deemed conditions of the approval (subject to appropriate adjustment and modification) where:
G.
Submission requirements. The ZBA may stipulate what particular information is required in order to properly review an application. The Board may continue or postpone any review where insufficient information or documentation is submitted.
§ 275-4.3 Procedures.
A.
Public hearings.
(1)
The Zoning Board of Adjustment shall hold a public hearing on every application that comes before the Board. A public notice of the public hearing shall be posted and notification of abutters shall be mailed for each application according to the process described in RSA 676:7.
(2)
The Board shall hear all abutters; holders of conservation, preservation, or agricultural preservation restrictions; and all non-abutters who can demonstrate that they are affected directly by the proposal under consideration. The Board may hear non-abutters as it reasonably deems appropriate.
(3)
Any party may appear in person or be represented by his/her agent or attorney at the public hearing.
(4)
Any interested party may also submit comments to the Board, either in advance of the hearing or at the hearing.
B.
Rehearing procedures. Procedures for rehearings before the ZBA are prescribed in RSA 677:2 and 677:3.
C.
Appeal process. The process for appealing ZBA decisions is prescribed in RSA 677:4 through 677:14 and 677:16.
§ 275-4.4 Administration.
A.
Membership.
(1)
Pursuant to RSA 673:3 and 673:6, the Zoning Board of Adjustment shall consist of five members plus up to five alternates. In accordance with Section 74 of the Rochester City Charter, the Mayor shall appoint members annually for staggered three-year terms. Vacancies shall be filled for any unexpired terms.
(2)
A member may be removed from the Board for cause in accordance with RSA 673:13.
B.
Rules of procedure. The ZBA shall adopt rules of procedure/bylaws to govern its business in accordance with the provisions of this chapter and RSA 676:1.
C.
Conflict of interest. Members shall be disqualified from participating in the hearing of any issue where there is a conflict of interest in accordance with RSA 673:14 and the Board's rules of procedure.
D.
Fees. The City Council shall set fees for applications submitted to the ZBA.