Zoning Variances

Live Free or Die! Okay, maybe not so free. Over the years we have enacted numerous ordinances attempting to socially engineer our neighborhoods and keep out the riffraff. One of Durham, NH’s ordinances is a prohibition on drive-thru windows/service for all non-financial businesses. At the time enacted, this college community didn’t want to have their main thoroughfare littered with McDonald’s, Burger Kings, Dunkin Donuts, etc. You might not like it, but the people spoke. If you still don’t like it, then petition the Planning Board for a change in the specific ordinance language. However, normally people address those concerns to the Zoning Board of Adjustment who holds court over all variance requests.

As noted in my prior post, the purchase and sale agreement for the ‘old’ Town Hall will be reduced by $200,000 if a drive-thru pharmacy window variance is not granted. There are 5 reasons (a recap of the New Hampshire law is at the bottom of this post) that a variance may be granted:

1) Variance is not contrary to public interest

The prohibition on non-financial drive-thru windows is a long-standing ordinance and given the lack of requests to the Planning Board to amend the ordinance it seems that the variance should be denied on this point.

2) The spirit of the ordinance is observed

I suppose if the buyer agreed to put in a bank of ATM machines then someone with a straight face could posit that it really is a financial institution that just happens to sell drugs. Personally $200,000 wouldn’t stop me from laughing uncontrollably.

3) Substantial justice is done

None of the coffee shops in Town have a drive-thru nor do the sandwich or donut stores, the only pharmacy in Town doesn’t have a drive-thru and the closest competitor in Dover doesn’t have one either. It is hard to find an injustice when everyone is forced to follow the same rules; it also seems that granting a variance would create an injustice for the other convenience stores in Town.

I’ll let the lawyers argue this out, but it does seem to me that an injustice must exist before ‘substantial justice’ can be granted. Given the prohibition on non-financial drive-thru windows is a long-standing ordinance and that the buyer, as evidenced by the purchase and sale agreement, knew full well of the ordinance’s restriction, determining an injustice exists seems a stretch.

4) The values of surrounding properties are not diminished

Rumor on the street is Route 108, from Court House corner to Beard’s Creek, will be rezoned becoming the “new” downtown core commercial district supplanting the Historic District along the way. In the here and now, that hasn’t happened. I can’t see how a pharmacy drive-thru window would enhance the surrounding properties’ value, at best it would be neutral, and given that projects rarely work out to the best, it seems highly unlikely the variance could survive solely on this condition alone.

5) Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship

Given this is a long-standing ordinance and that the buyer, as evidenced by the purchase and sale agreement, knew full well of the ordinance’s restriction, and will save $200,000 if the variance fails, I don’t see how this condition could apply. The only party that could claim financial distress might be the Town of Durham, who I believe also knew of the zoning restriction, the fact the property is in the Historic District, and should have known that the variance request had no material basis to succeed.

One thing that has me puzzled is why the Town’s attorney didn’t review the purchase and sale agreement and come to the same conclusions that I have over the likelihood of a successful variance request? If the attorney did actually do this, then why was the headline number $1,300,000; $200,000 more than reasonably believed would be collected? The timing of the Town purchasing the bank building, starting renovations, the ‘old’ Town Office buyer just recently starting discussion with the Historic District Commission, and who knows when a variance may or may not be filed is all puzzling. Who was party to the details and involved in making the decisions?

Did anyone consider taking the over $2,100,000 spent on renovating the bank building and using that instead to make a nice historic style remodel/addition to the ‘old’ Town Offices? I agree that it is very easy to second guess, especially when not all of the facts are in evidence. I have been wrong before, there is some precedence. However, in the spirit of open government, it sure would be nice to know who was involved in the decision-making, what they knew and when they knew it. What alternatives were considered? Did this follow the Kaisan principles and procedures that the Town staff has been thoroughly trained on? Should the public demand an independent management audit? So many questions, so little data.

New Hampshire has specific laws regulating the powers of a Zoning Board of Adjustment: Title LXIV Planning and Zoning, Chapter 674:33 Zoning Board of Adjustment and Building Code Board of Appeals:

674:33 Powers of Zoning Board of Adjustment.
I. The zoning board of adjustment shall have the power to:
(a) Hear and decide appeals if it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of any zoning ordinance adopted pursuant to RSA 674:16; and
(b) Authorize, upon appeal in specific cases, a variance from the terms of the zoning ordinance if:
(1) The variance will not be contrary to the public interest;
(2) The spirit of the ordinance is observed;
(3) Substantial justice is done;
(4) The values of surrounding properties are not diminished; and
(5) Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship.
(A) For purposes of this subparagraph, “unnecessary hardship” means that, owing to special conditions of the property that distinguish it from other properties in the area:
(i) No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property; and
(ii) The proposed use is a reasonable one.
(B) If the criteria in subparagraph (A) are not established, an unnecessary hardship will be deemed to exist if, and only if, owing to special conditions of the property that distinguish it from other properties in the area, the property cannot be reasonably used in strict conformance with the ordinance, and a variance is therefore necessary to enable a reasonable use of it. The definition of “unnecessary hardship” set forth in subparagraph (5) shall apply whether the provision of the ordinance from which a variance is sought is a restriction on use, a dimensional or other limitation on a permitted use, or any other requirement of the ordinance.
II. In exercising its powers under paragraph I, the zoning board of adjustment may reverse or affirm, wholly or in part, or may modify the order, requirement, decision, or determination appealed from and may make such order or decision as ought to be made and, to that end, shall have all the powers of the administrative official from whom the appeal is taken.
III. The concurring vote of 3 members of the board shall be necessary to reverse any action of the administrative official or to decide in favor of the applicant on any matter on which it is required to pass.
IV. A local zoning ordinance may provide that the zoning board of adjustment, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance. All special exceptions shall be made in harmony with the general purpose and intent of the zoning ordinance and shall be in accordance with the general or specific rules contained in the ordinance.
V. Notwithstanding subparagraph I(b), any zoning board of adjustment may grant a variance from the terms of a zoning ordinance without finding a hardship arising from the condition of a premises subject to the ordinance, when reasonable accommodations are necessary to allow a person or persons with a recognized physical disability to reside in or regularly use the premises, provided that:
(a) Any variance granted under this paragraph shall be in harmony with the general purpose and intent of the zoning ordinance.
(b) In granting any variance pursuant to this paragraph, the zoning board of adjustment may provide, in a finding included in the variance, that the variance shall survive only so long as the particular person has a continuing need to use the premises.
Source. 1983, 447:1. 1985, 103:20. 1987, 256:1. 1998, 218:1, eff. Aug. 17, 1998. 2009, 307:6, eff. Jan. 1, 2010.
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