The powers of the Zoning Board of Adjustment and Building Code Board of Appeals shall include those prescribed in RSA 674:33, 674:33-a, and 674:34, as amended.
A.
Administrative appeals. In accordance with RSA 676:5, the Board shall hear and decide appeals where it is alleged that there is an error in any order, requirement, decision or determination made by any officer, department, board, or bureau of the City of Rochester in the administration, interpretation, or enforcement of this chapter.
B.
Variances.
(1)
The Board may authorize, upon appeal in specific cases, a variance from the terms of this chapter if it determines that all of the following conditions are met:
(a)
The variance will not be contrary to the public interest;
(b)
The spirit of this chapter is observed;
(c)
Substantial justice is done;
(d)
The values of surrounding properties are not diminished; and
(e)
Literal enforcement of the provisions of this chapter would result in an unnecessary hardship, as follows:
[1]
For purposes of this condition, "unnecessary hardship" means that, owing to special conditions of the property that distinguish it from other properties in the area:
[2]
If the criteria in Subsection B(1)(e)[1] above 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 this chapter, and a variance is therefore necessary to enable a reasonable use of it.
(2)
The Board shall determine whether to grant a variance by voting on each of the criteria in Subsection B(1) separately. The Board shall grant a variance only if each of the five criteria receives at least three votes in the affirmative.
[Added 12-5-2017]
(3)
Each criteria receiving at least three votes in the affirmative or negative must include findings of fact to support such vote; said findings of fact must each receive at least three votes in the affirmative.
[Added 12-5-2017]
(4)
Notwithstanding Subsection B(1) and (2), the Board may grant a variance from the terms of this chapter without a finding of a hardship arising from conditions of a premises subject to this chapter 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:
[Amended 12-5-2017]
(a)
Any variance granted under this subsection shall be in harmony with the general purpose and intent of this chapter; and
(b)
In granting any variance pursuant to this subsection, 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.
C.
Special exceptions.
(2)
The Board shall grant a special exception only if it reasonably determines that all of the following base criteria are met (in addition to those criteria and conditions included for specific uses in Article 22):
(a)
Location. The specific site is an appropriate location for the proposed use or structure;
(b)
Neighborhood. The proposed use would not be detrimental, injurious, obnoxious, or offensive to the neighborhood;
(c)
Traffic. The proposed use would not create an undue hazard or nuisance to vehicular or pedestrian traffic;
(d)
Public facilities. Adequate and appropriate facilities and utilities would be provided to ensure the proper operation of the proposed use or structure; and
(e)
Master Plan. The proposed use or structure is consistent with the spirit of this chapter and the intent of the Master Plan.
D.
Equitable waivers.
(1)
When a lot, other division of land, or structure is discovered to be in violation of a physical layout or dimensional requirement of this chapter, the ZBA shall, upon application by the property owner, with the burden of proof being on the property owner, grant an equitable waiver from that specific requirement only if the Board makes all of the following findings:
(a)
Late discovery. The violation was not noticed or discovered by any owner, former owner, owner's agent or representative, or municipal official until after a structure in violation had been substantially completed, or until after a lot or other division of land in violation had been subdivided by conveyance to a bona fide purchaser for value;
(b)
Good faith error. The violation was not an outcome of ignorance of the law, failure to inquire, obfuscation, misrepresentation, or bad faith on the part of any owner, owner's agent or representative, but was instead caused by either a good faith error in ordinance interpretation or applicability made by a municipal official in the process of issuing a permit over which that official had authority;
(c)
No adverse impact. The violation does not constitute a public or private nuisance, nor diminish the value of other property in the area, nor interfere with or adversely affect any present or permissible future uses of any such property; and
(d)
Cost of correction. 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.
(2)
Ten years passage. In lieu of the findings required under Subsection D(1)(a) and (b) immediately above, the owner may demonstrate to the satisfaction of the Board that the violation has existed for at least 10 years and that no enforcement action, including written notice of violation, has been commenced against the violation during that time by the City or any person directly affected.
E.
Administrative appeals under the Building Code. The Zoning Board of Adjustment functions as the Building Code Board of Appeals. Upon an appeal filed by any person aggrieved by a decision of the Building Inspector dealing with the Building Code, the ZBA may vary the application of any provision of the Building Code in any particular case when, in its opinion, the enforcement of the Building Code would do manifest injustice and would be contrary to the spirit and purpose of the Building Code and the public interest.