Guidelines for Equitable Waivers

Guidelines for Equitable Waivers

NH RSA 674:33-a

September 19, 2000

Effective January 1, 1997, the New Hampshire Legislature passed legislation designed to address situations where, through good faith, there were errors in meeting dimensional requirements of a zoning ordinance, e.g., siting a structure too close to a boundary. See NH RSA 674:33-a. The following guidelines provide a structured approach for a ZBA to determine the applicability of this statute.

What is an Equitable Waiver?

An equitable waiver is a statutory tool which, under certain narrow circumstances, requires the ZBA to grant a landowner relief from the physical layout and dimensional requirements of the zoning ordinance. It does not apply to land uses and use restrictions.

What must be proven for an Equitable Waiver to be granted?

In order to qualify for an equitable waiver, a landowner must prove ALL of the following facts to the Board:

That the violation of the ordinance was not noticed or discovered by:

any owner;

any former owner;

owner's agent;

owner's representative, or

any municipal official,

until after:

	a structure in violation had been substantially completed; or
	a lot or other division of land had been subdivided by conveyance to a bona fide purchaser for value; AND

That the violation was not an outcome of:

ignorance of the law or ordinance;

failure to inquire;

obfuscation;

misrepresentation; OR

bad faith

on the part of:

	any owner;
	owner's agent; or
	owner's representative

BUT was instead caused by EITHER

a good faith error in measurement or calculation made by:

	an owner; or
	owner's agent, OR

by an error in ordinance interpretation or applicability made by a municipal official in the process of issuing a permit over which that official had authority; AND

That the physical or dimensional violation does not:

constitute a:

	public nuisance; or
	private nuisance AND

diminish the value of other property in area;

adversely affect any present or permissible future uses of the property; AND

That 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.

Is there an Alternative Form of Proving the First two Factual Requirements?

Yes. Instead of proving the first two factual requirements, the owner may demonstrate to the satisfaction of the Board that:

the violation has existed for ten (10) years or more; AND

that no enforcement action, including written notice of violation, has been commenced against the violation during that time by:

	the Town; or
	any person directly affected.

What procedures apply to application and hearing?

The procedures and hearing are governed by RSA 676:5 through 7. This includes a requirement that the Board notice and hold a public hearing.

How does the Board determine whether or not to grant an equitable waiver?

If the owner proves each of the factors set forth above, the Board is required by law to grant the waiver. If the owner fails to prove any of the factors, the equitable waiver should be denied.

Is there a right of appeal?

Yes. However, any appeal must be preceded by a Motion for Rehearing. The same procedures for other appeals apply to an appeal from an equitable waiver.

Are there limitations on the relief granted through an equitable waiver?

Yes. An equitable waiver is not available for relief from a land use requirement.

It is not considered to be a nonconforming use. The grant of a waiver does not relieve the owner from compliance with any other aspect of the ordinance.