Property owners sought an equitable waiver from the zoning board of appeals when after they had begun construction pursuant to a building permit to construct a detached garage a stop work order was issued but then lifted when they made adjustments to the proposed garage and then abutters subsequently convinced the zoning board that the property was located in the Wetlands Watershed Protection Overlay District which prohibits the construction of the garage and the permit was withdrawn. The zoning board granted the equitable waiver and the abutters appealed to the Court arguing that the relief granted by the zoning board constitutes a waiver of a use restriction which cannot be waived under state statute. Both the Superior Court and the Supreme Court agreed that the zoning board was without authority to provide the requested relief.
New Hampshire RSA 674:33-a allows the zoning board to grant an equitable waiver for physical or dimensional violations, not from use restrictions. Although the property owners argued that they were seeking a setback provision, the court explained that the “critical distinction between area and use variances is whether the purpose of the particular zoning restriction is to preserve the character of the surrounding area and thus is a use restriction.” Citing, Harrington v. Town of Warner, 152 N.H. at 78-79 (2005). Explaining that the Town’s zoning ordinance establishes the Wetlands Watershed Protection Overlay District (WWPD) which is superimposed over the existing zoning district imposing specific requirements in addition to those applicable in the underlying zone, the Court found that the WWPD “expressly prohibits the construction of permanent buildings in the WWPD.” Because of this express prohibition, which does not depend on the size of the structure nor its placement on the property or the amount of the property owner’s land located within the WWPD, the zoning board lacked authority to issue an equitable waiver from a use restriction.
Schroeder v. Town of Windham, 2008 WL 5245564 (N.H. 12/18/2008).
The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2008/schro138.pdf
