Agenda - Planning Commission - 03/05/2009

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/~ \ '\ ! {I Zoning Bulletin . February 10, 20091 Volume 31 No.3 Thereafter, the Lanes obtained an equitable waiver from the ZBA. The waiver permitted the garage-which had been built by the time the town withdrew the construction permit-to remain at its location, despite its infringement into the WWPD. Schroeder a'nd Letizio appealed the town's decision to grant the Lanes the. waiver. They brought an action in superior court, arguing that the waiver was a waiver of a use restriction,' and under state law, a use re- striction could not be waived. State law (RSA S 674:33) allowed a landowner to obtain an equita- ble waiver when "a lot or other division of land, or structure thereupon, . [wa]s discovered to be in violation of a physical layout or dimensional requirement imposed by a zoning ordinance," if certain criteria were met. That statute further provided that equitable waivers could only be granted "from physical layout, mathematical or dimensional requIre- ments, and not from use restrictions." The court agreed with Schroeder and Letizio. It reversed the ZBA's de- cision to grant the equitable waiver. The town appealed, and the Lanes intervened in the matter. The Lanes argued that the town ordinance establishing the WWPD was a setback provision. They said that such a dimensional requirement was an area restriction, which could be waived under state law. DECISION: Affirmed. The Supreme Court of New Hampshire held that the town ordinance . establishing the WWPD was a use restriction, not an area restriction. As such, the court concluded that, under state law, the Lanes could not be entitled to an equitable waiver for the garage. The court explained the distinction between area and use restrictions: If the purpose of the zoning restriction was to "preserve the character of the surrounding area," then it was a use restriction. With respect to vari- ances, a use variance "allow[ed] the landowner to engage in a use of the land that the zoning ordinance prohibit[ed]." An area variance involved a use permitted by the zoning ordinance, but granted the landowner "an exception from strict compliance. with physical standards, such as set- backs frontage requirements, height limitations and lot size restrictions." An area variance "[wa]s generally made necessary by the physical char- acteristics of the lot." . The court said that whether a variance sought was an ,area or use vari- ance required a case-by-case determination based upon the language and purpose of the zoning restriction at issue. Here, the court found that the town's zoning ordinance establishing the WWPD expressly prohibited the construction of permanent buildings within the WWPD. Contrary to the Lanes' assertions, the restriction did not depend on the garage's placement on the property. Nor did it depend on the size of the structure or the amount of the Lanes' land located within the wwPD. Moreover, @ 2009 Thomson Reuters 3 93