A zoning variance denial can put your expansion, multifamily project or waterfront development on hold, affecting your timeline and development budget. New Hampshire law provides a process for asking the zoning board of adjustment to reconsider its decision and, if necessary, seeking review in superior court.
If you are considering challenging the denial, the process generally involves three key steps:
1. Identify why your variance was denied
New Hampshire requires five findings before a zoning board can grant a variance. Your proposal must:
- Not conflict with the public interest
- Follow the purpose of the ordinance
- Do substantial justice
- Avoid diminishing surrounding property values
- Satisfy the unnecessary hardship requirement
For unnecessary hardship, the focus is on special conditions that distinguish your property from others in the area. These may include its shape, topography, waterfront features, required distances from property lines or existing structures. Plans, surveys, engineering reports or expert analysis may help show how those conditions affect your proposed use and create the claimed hardship.
2. Address each issue in a motion for rehearing
If you want the board to reconsider its decision, you generally have 30 calendar days to file a motion for rehearing. The deadline generally begins the day after the board votes on the application. However, if the written decision and meeting minutes are not filed within five business days, state law provides additional time to amend, or update, the rehearing motion after the written decision is filed.
The motion should identify each reason you believe the decision was unlawful or unreasonable. A court generally will not consider a reason you did not first raise in the rehearing motion unless it allows the issue for good cause.
3. Understand the superior court appeal process
If the board denies rehearing, RSA 677:4 generally gives you 30 days after the board votes to deny the motion to petition the superior court. You would need to show that the decision was unlawful or unreasonable.
The court does not decide the variance application again from the beginning, so the record and the board’s reasons for denial can play an important role.
Assess the next step before the deadline
A zoning variance denial does not necessarily end your project. Understanding the board’s concerns, the evidence supporting your hardship claim and the cost of review can help you assess your options. Legal guidance can help you identify which issues must be raised and understand the deadlines before deciding how to proceed.