Agenda - Planning Commission - 04/04/2019

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February 25, 2019 I Volume 13 I Issue 4 the Dietzes' arguments and affirmed the ZBA's grant of the equitable waivers to Sawyer Point. The court first held that, contrary to the Dietzes' asser- tions, RSA 674:33-a did not expressly require the ZBA make written factual findings as to each element of the eq- uitable waivers statute. The court found that the language of the statute required that the ZBA "simply set forth 'the basis' for its decision in the minutes." Here, the court found that the ZBA's meeting minutes reflected that the ZBA "discussed and analyzed the four equitable waiver requirements." Next, the court held that, contrary to the Dietzes' asser- tions, RSA 674:33-a, I(d) does not allow for an equitable waiver only if past construction was made because of the applicant's ignorance of the facts constituting violation. The court explained that the statute also allows for an equi- table waiver based on an error made by a municipal official without the applicant also having erred in measurement or calculation. The Dietzes had argued that because Sawyer Point was not ignorant of the facts, but was aware that the additions were within the setback, the equitable waivers were issued in error. The court disagreed. The court concluded that, due to its reliance on "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," Sawyer Point was "ignoran[t] of the facts constituting the violation," and thus met that equitable waiver requirement under RSA 674:33-a, I(d). Finally, the court also rejected the Dietzes' argument that the trial court erred in its application of the equitable waiver statute's balancing test since Sawyer Point had not presented evidence of the cost of correcting the zoning violation. The court held that the ZBA members could properly use "their own knowledge and experience —as well as their common sense —to conclude, as they did, that the cost of tearing down portions of the 1999 and 2008 Ad- ditions would 'far outweigh[ ] any public benefit.' " More- over, the court held that, contrary to the Dietzes' assertions, the equitable waiver statute's balancing test did not require the ZBA to consider the "cumulative effect of the failure to enforce lakefront setback throughout the Town," but rather, the statute clearly limited the scope of the cost -benefit anal- ysis to the specific zoning violation at issue. (See RSA 674:33-a, I(d).) See also: Property Portfolio Group, LLC v. Town of Derry, 163 N.H. 754, 48 A.3d 937 (2012). See also: Biggs v. Town of Sandwich, 124 N.H. 421, 470 A.2d 928 (1984). Zoning News from Around the Nation NEW HAMPSHIRE The State House Judiciary Committee has "kill[ed]" a bill (House Bill 104), which would have established a Zoning Bulletin three -member state Housing Board of Appeals to "hear ap- peals of final decisions by municipal boards involving housing development." Currently, appeals can only be heard in court. A similar bill is expected to be introduced in the Senate. Source: New Hampshire Business Review; www.nhb r: com Republican state Rep. Dave Testerman reportedly "plans to sponsor legislation to clarify municipal regulation of [tiny houses.]" Source: Concord Monitor; www.concordmonitor.com OHIO In December, the Ohio House of Representatives and Senate agreed to modifications to House Bill 500, which would make a number of changes to Ohio's township laws, including: • giving a board of township trustees the authority to charge a fee against those appealing a zoning deci- sion; • giving a board of township trustees authority to suspend a member of a township zoning commission or township board of zoning appeals after charges are filed against a member, but requiting a hearing for removal no later than 60 days after the charges are filed; • in limited home rule townships, making optional the current requirement that a township must submit a proposed zoning amendment or resolution to a plan- ning commission. Source: Ohio's Country Journal; www.ocj.com OREGON To address a housing shortage, the Oregon legislature will take up a bill (House Bill 2001) that seeks to "require cities with populations larger than 10,000 to allow up to four homes to be built on land parcels currently zoned exclusively for single-family housing." Source: Willamette Week; wwwwweek.com Source: Portland Mercury; www.portlandmercury.com WYOMING Pending in the state legislature is a bill (Senate File 49) that would remove county zoning law application to the construction or expansion of private schools. A recently introduced amendment to the bill would subject private schools to "the same rules currently regulating public and charter school facilities" and would only apply to schools registered as nonprofit corporations in Wyoming. The amended bill has passed out of the legislature's Education Committee. Proponents of the bill argue that it helps ensure all students a "right to an `education.' "Opponents of the bill had argued that it takes away local input on site plan- ning, economic vision, and environmental and quality of life issues. The bill next goes to the full Senate for a first reading. Source: Casper Star Tribune; https://trib.com 8 © 2019 Thomson Reuters