[HISTORY: Adopted by the Board of Adjustment of the Town
of Rye 6-5-2013, as amended through 1-8-2020; codification approved 2-5-2020.
Subsequent amendments noted where applicable.]
These rules of procedure are adopted under the authority of
New Hampshire RSA 676:1 and RSA 676:2, the Rye Zoning Ordinance ("ordinance")[1] and Town Zoning Map, as each may be amended from time
to time.
To establish rules guiding all Rye Board of Adjustment ("Board")
functions such as conduct of meetings, duties of officers, conflict
of interest, etc. Each member and alternate shall have his/her own
copy of this document and become familiar with its content. Unless
otherwise described, the "Board" shall mean five members of the Rye
Board of Adjustment, but no fewer than three, and, when applicable,
such duly designated alternates ("alternate member") assigned on a
particular case, session or matter.
A.
Election of officers. The Board shall elect annually by a majority
vote of the Board at its first meeting following the Rye Town Meeting
a Chair, Vice Chair and Clerk. All officers shall serve for one year
and shall be eligible for reelection.
B.
Duties.
(1)
Chair. The Chair shall preside over all meetings of the Board and
may act on behalf of the Board on matters specifically authorized
by the Board and shall affix his/her signature in the name of the
Board when so authorized.
(2)
Vice Chair. The Vice Chair shall preside in the absence of the Chair
and shall have the full powers of the Chair on matters which come
before the Board during the absence of the Chair.
(3)
Clerk. In the absence of both the Chair and Vice Chair, the Clerk
will preside and shall have the full powers of the Chair on matters
which come before the Board. The Clerk shall review and sign all agendas.
(4)
If the Chair, Vice Chair and Clerk are unavailable, the primary Board
member with the most seniority shall exercise the duties of the Chair.
A.
Members. Members of the Board shall be elected and shall serve for
a term provided under RSA 673:5, II, of three years. All terms shall
begin at the first meeting following Town elections. Appointments
shall be staggered in accordance with RSA 673:3 and RSA 673:5 so that
no more than two appointments occur annually, except when required
to fill vacancies. The commencement term and the holdover provisions
must be consistent with the requirements set forth in NH RSA 673:3
and RSA 673:5. Board members, both primary and alternate, must reside
full time in Rye, New Hampshire, and be registered voters of Rye.
B.
Alternates. In accordance with RSA 673:6 a minimum of three and up
to five alternate members shall be appointed by the Board and shall
serve a term of up to three years. Such terms shall be staggered.
Anyone wishing to become an alternate member shall submit a letter
of intent to the Board for its approval. Any existing alternate member
desiring an additional term must submit a letter of intent to the
Board.
C.
Attendance. Any member unable to attend a meeting shall notify the
Planning and Zoning Administrator and Chair as soon as possible in
advance of such meeting. The Planning and Zoning Administrator and
Chair will notify the alternate members that a primary member or scheduled
alternate member will be absent from a meeting and secure a new alternate.
Alternate members not sitting in place of a primary member are encouraged
to attend the meetings.
D.
Recusal/conflict of interest. Disqualification of Board members is
governed by RSA 673:14. If any member finds it necessary to recuse
or disqualify himself/herself from sitting in a particular case, as
provided in RSA 673:14, he/she shall notify the Chair as soon as possible
so that an alternate member may be asked to sit in his/her place.
When there is uncertainty as to whether a member should be disqualified
to act on a particular application, that member or another member
of the Board may ask the Board to vote on the question of disqualification.
Any such request shall be made before the public hearing gets underway.
The vote shall be advisory and nonbinding. Either the Chair or the
member recusing/disqualifying himself/herself before the beginning
of the public hearing on the case shall announce the disqualification.
The disqualified member shall absent himself/herself from the Board
table during the public hearing and during all deliberations on the
case, but may participate as a member of the public.
E.
Vacancies. Vacancies for primary Board member(s) occurring at other
than at the expiration of a term shall be filled by the Board appointing
an alternate to the position until the next election.
A.
Building Code Board of Appeals. These rules shall govern the procedures
by which the Rye Board of Adjustment shall conduct its business. In
accordance with RSA 673:1, V, the Board shall also act as the Building
Code Board of Appeals.[1] These rules are adopted to guide the procedures of the
Board when acting in either capacity as applicable. The powers of
the Board shall be those authorized under RSA 674:33, as modified
by RSA 674:34. The powers of the Building Code Board of Appeals shall
be those authorized under RSA 674:34. No person holding at the same
time the office of Selectman shall serve on the Board.
B.
Building Code appeals. For the purposes of this code, the powers
of the Building Code Board of Appeals are vested in the Board of Adjustment
established under the terms of the Zoning Ordinance of the Town of
Rye. Any person aggrieved, or any Town official, may take an appeal
to the Board of Adjustment from any decision of the Building Inspector
dealing with the Building Code, to vary the application of any provision
of the Building Code to 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. In exercising its powers in such appeals the Board
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.
C.
Administrative appeals. The Board may hear and decide applications
for administrative appeals, variances, special exceptions and equitable
waiver of dimensional requirements in accordance with the provisions
of RSA 674:33-a, as amended.
A.
Regular meetings. Regular meetings of the Board shall customarily
be held in the courtroom of the Rye Town Hall, 10 Central Road, at
7:00 p.m. on the first Wednesday of each month. The Chair may cancel
a regular meeting if there are no applications pending for reasons
of no filings or requests to withdraw or to otherwise defer a public
hearing on an application have been filed by each applicant. The Chair
may also cancel a meeting if a quorum of Board members will not be
present or due to inclement weather. The Board may schedule its monthly
meeting on other than the first Wednesday of a particular month for
cause such as conflicts with holidays or other meetings of local interest
or an anticipated unavoidable absence of a quorum.
B.
Other meetings. Other meetings, whether to hear applications or for
other work, may be held on the call of the Chair or at the request
of three primary Board members, provided public notice and notice
to each member is given in accordance with RSA 91-A:2, II.
C.
Quorum.
(1)
A quorum for all meetings of the Board shall be three members, including
alternate members sitting for primary members. If any primary member
is absent from any meeting or hearing or disqualifies himself/herself
from sitting on a particular case, the Chair shall designate an alternate
member to sit in place of the absent or disqualified member. Such
alternate member shall be in all respects a full member of the Board
while so sitting.
(2)
The Board will make every effort to ensure that a full five-member
Board is present for the consideration of any appeal/petition. If
for any reason there are fewer than five members, the applicant shall
have the discretion to accept less than the five-member Board or to
defer the case without prejudice to a date certain, with the understanding
that concurring vote of at least three 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, per RSA 674:33, III. Sitting members on any application
may be different upon rehearing or continuation of the application.
D.
Public meetings. Every attempt will be made by the Board to receive
testimony at a public hearing and render a decision on all applications
in a timely manner. The Board will not ordinarily commence consideration
of an application or other matter filed by an applicant or other member
of the public after 10:00 p.m. and the meeting shall end no later
than 11:00 p.m. unless the Board unanimously votes to waive these
provisions. However, if the applicant or any abutter objects to the
Board hearing a specific case after 10:00 p.m., then the Board may
table that application until the next regularly scheduled meeting.
E.
Nonpublic meetings. All meetings of the Board shall be open to the
public except for nonpublic sessions which shall be held in accordance
with RSA 91-A:3 (the Right-to-Know Law). Before entering into a nonpublic
session, the Board shall cite one of the specific statutory reasons
for the nonpublic session by a motion with the roll call vote to be
recorded. While in nonpublic session, the Board is limited to consideration
of the subject which was the reason for entering the nonpublic session.
Minutes of nonpublic sessions must be maintained and be disclosed
to the public as prescribed by statute, unless 2/3 of the members
vote to seal the minutes after a determination that divulgence of
the information likely would affect adversely the reputation of any
person other than a member of the Board itself or render the proposed
action ineffective.
A.
Order of business. The Chair reserves the right to modify the order
of agenda items as appropriate; however, the order of business for
regular meetings shall normally be as follows:
(1)
Call to order.
(2)
Pledge of allegiance (voluntary per intent of RSA 194:15-c).
(3)
Roll call/introduction of members.
(4)
Minutes of prior meeting(s).
(5)
Meeting conduct explained
(6)
Public hearings.
(7)
Unfinished business.
(8)
New business.
(9)
Communications.
(10)
Miscellaneous.
(11)
Public comment.
(12)
Other.
(13)
Adjournment.
B.
Public. Any member of the public shall be permitted to observe, record,
film and/or videotape meetings so long as they are not disruptive
and do not unreasonably interfere with the conduct of the Board's
business. In the event of disruptions, the Chair, with the consent
of a majority of the Board, may order the offending person(s) to leave
the meeting room and cease the activities causing the disturbance.
C.
Persons with standing. At the hearing, any party may appear in person
or by agent or by attorney. The Board shall hear all abutters desiring
to submit testimony and all nonabutters who can demonstrate that they
are directly affected by the proposal under consideration. The Board
may hear other persons as it deems appropriate.
D.
Time limits. The Chair may institute time limits for presentations
and/or comments by the applicant and members of the public as the
Chair deems necessary or desirable to ensure efficiency and an opportunity
for fair presentation.
A.
Administrative appeal. An applicant aggrieved by a decision of an
administrative official has the right to appeal under RSA 676:5.
B.
Application for relief form. Each application for relief to be heard
by the Board shall be submitted on forms approved by the Board. The
forms are available from the Planning and Zoning Administrator.
(1)
Application.
(a)
The application form(s) with instructions can be obtained from the building and planning offices or from the Town website. (If the application requires relief from the Wetlands Conservation District, the applicant is required to attend a Conservation Commission meeting for its opinion first.) The application shall be presented to the Planning and Zoning Administrator who shall record the date and time of receipt. The application shall set forth in reasonably complete detail all matters for which relief is being requested and the reasons supporting the same. All prior actions by the Board shall be cited and copies of decisions or orders attached. Relief cannot be granted by the Board unless specifically requested. All materials to be considered by the Board shall be included with the application or in accordance with § 200-10A. Except for good cause shown, the Board will not normally grant relief unless the applicant is in substantial compliance with all prior grants of relief and/or a condition attached thereto affecting the subject parcel and, further, demonstrates to the satisfaction of the Board that all taxes, assessments, or fees due or owing to the Town have been timely paid.
(b)
The application shall include all required fees and all items
on the Board's Checklist for Application Submittal. The Planning
and Zoning Administrator shall determine if an application is complete.
Incomplete applications shall not be placed on the Board's agenda.
(2)
Submittal. Applicants shall enclose an original and seven copies
of all communications to the Board. All original communications/documents
shall be kept in the permanent Town records.
(3)
Expenses. All expenses incurred by the Board in connection with any
application shall be borne solely by the applicant, unless otherwise
waived by the Board for reason of special circumstance, upon written
request of an applicant (RSA 676:5, IV). The Board may request that
the applicant, at the applicant's expense, provide additional
technical information and/or testimony by qualified experts deemed
necessary by the Board for it to make an informed decision (RSA 673:16,
II). Fees due must be submitted at the time of the filing of the application
or the application will not be accepted. If any remittance is dishonored
by a financial institution, the filing will be deemed null and void.
(4)
Abutters. Abutters, persons with a direct interest in the application,
and Town officials or their agents may submit evidence relating to
the application.
C.
Public notice. Public notice of all Board meetings shall be posted
on the Town website and in at least two public places, such as at
the Town Hall, library and Rye post office, not less than seven calendar
days before the date fixed for the hearing. Newspaper publications
of notice as prescribed by statute shall be posted in the Portsmouth
Herald. The posting notice shall be in the name of the Clerk. All
persons identified in RSA 676:7 as persons who have an interest in
a matter shall receive notification of a public hearing prepared by
the Planning and Zoning Administrator as herein prescribed.
D.
Signs. The applicant shall post at the subject property, in clear
view from the street (if on a corner lot, from the most travelled
street), the sign provided to them by the Rye Zoning and Planning
Office. If the site contains frontage of more than 250 feet, additional
signs shall be posted such that signs are no greater than 200 feet
apart. The sign shall contain, at a minimum, the date and time of
the meeting of the Board at which the application is scheduled to
be considered and its case number. The sign shall be posted at least
the seven consecutive days immediately before the scheduled hearing.
If the sign is not so posted, the Board may disqualify the application
(without prejudice). The applicant shall pay the cost of such sign(s)
to the Rye Board of Adjustment at the time their application for relief
is submitted. If the applicant's hearing is continued to a later
date, the applicant shall post a new sign with the changed hearing
information. The applicant shall not be again assessed a sign fee
if the continuance was due to the Board's schedule (but shall
pay for new signs for any other reason).
E.
Notice to abutters. Notice shall be made by certified mail, return
receipt, to all abutters not less than seven calendar days before
the date of the hearing. Notice shall also be given to the Planning
Board, Town Clerk and other parties deemed by the Board to have special
interest, including but not limited to the Conservation Commission.
F.
Site visits. Upon the filing of an application, an applicant expressly
agrees that any member of the Board may, during normal business hours,
visit, enter upon, inspect, or make observations of the site which
is the subject of the application for relief, provided that such visit(s)
shall not include entry into the primary dwelling without further
approval of the applicant. Members are encouraged to make such site
visits before the public meeting. The Board may vote to continue the
hearing of an application to allow members an opportunity to perform
a site visit. Observations on such site visits may form, in whole
or in part, grounds for a decision of the Board. At no time shall
more than two members of the Board be present simultaneously during
a site visit unless the site visit has been called as a public meeting
and proper public notice as required by New Hampshire statutes has
been given. Other than observations of the site, no evidence shall
be taken and there shall be no discussions among the two Board members
of the evidence or deliberations at such site visits. There shall
be no discussion with the applicant or his/her agents, abutters or
others who may be present of any aspect of the application.
G.
Public hearing. Public hearings shall be considered in the following
manner:
(1)
The application summary is read.
(2)
Applicant/designee presents his or her case.
(3)
Those in favor speak.
(4)
Those opposed speak.
(5)
Applicant/designee may rebut opposition testimony.
(6)
Those opposed may rebut any new rebuttal testimony.
(7)
The Board will hear any evidence that pertains to the facts of the
case or how the facts relate to the provisions of the ordinance and
state zoning law.
(8)
If there are no further questions, the public hearing on that docketed
item is closed and the Board deliberates.
H.
Deliberations.
(1)
Any Board member may at any time request of the Chair the right to
make inquiry of the applicant, the applicant's representative,
or any other persons speaking to the matter. Abutter(s) and other
persons whom the Board deems appropriate may be recognized to speak
by the Chair at the public hearing and/or may testify in person at
the public hearing. Persons requesting to speak shall direct all comments
to the Chair. All speakers shall state their name and address in the
case for the record. The Chair may refer comments or questions to
any other Board member for response.
(2)
When a motion related to the disposition of a case is made and seconded,
it shall be stated by the Chair before debate. At the request of the
Chair or any member of the Board the motion shall be in writing. A
motion may not be withdrawn or amended by the mover without the consent
of the second and approval of a majority of the Board. Determinations
on any matter before the Board shall require the concurrence of a
majority of the members present and voting. If the Board is unable
to take action, it shall continue the matter to a date certain for
further consideration.
I.
Decisions. The Board shall rule on all applications within 30 days
of the close of the public hearing and shall approve, approve with
conditions, or deny the application. Notice of the decision will be
made available for public inspection within five business days, as
required by RSA 676:3. If the application is denied, the notice shall
include the reasons therefor. In its discretion, the Board may reserve
making a decision on an application on the night of the public hearing
based on the need to seek additional evidence or testimony, in which
case the matter will be continued to a date certain.
(1)
Notice. The Chair will notify the applicant of the decision of the
Board and his/her right to appeal. Notice of the decision will be
made available for public inspection within the time limits as specified
by RSA 676:3. If the appeal is denied, the notice shall include the
reasons therefor.
(2)
Conditions. The Board has the authority to attach reasonable conditions
in the granting of any relief. The reasons for conditions include,
but are not limited to, those necessary to preserve the spirit of
the ordinance, such as conditions to protect the adjacent landowners
and wetlands buffers, preserve the essential character of neighborhoods,
secure the basic values of the Master Plan, and attempt to provide
that substantial justice is done. Reasonable conditions shall also
include the authority to make the decision conditional on placing
on deposit with the Town, in the manner provided by RSA 673:16, II,
sums of money to ensure compliance with such conditions. The conditions
must be adhered to; otherwise the granting of the relief will be revoked.
If the Board finds it necessary to attach conditions, they must be
spelled out in detail in the Board's decision.
(3)
Applicant's withdrawal or request for continuation. If the Board
decides to continue an application due to time constraints or the
need for additional information from an applicant, a date, time and
location will be established. If the applicant withdraws without prejudice,
or continues their application more than once, they will be responsible
for the application and abutter notification fees.
(4)
Time limits. Time limits for an applicant to meet conditions of approval
may be imposed by the Board as a condition of such approval. Such
determinations will be made on a case-by-case basis as the Board deems
necessary and appropriate.
A.
Recording. All meetings are recorded in one form or another. All
recordings shall be preserved for at least three months unless the
minutes have not yet been approved or a request for a rehearing has
been submitted or there is a court appeal. The approved minutes will
become the official record of the hearing and filed with the Town
Clerk within five business days of the meeting in accordance with
NH RSA 91-A:4.
B.
Rehearing. The Board may grant a motion for rehearing provided such
motion is filed within the appeal period of the original decision,
which is 30 calendar days from the day the decision was made. The
motion must be made in accordance with RSA 677:2 and RSA 677:3.
(1)
Rehearing discussion.
(a)
The Board shall discuss the rehearing motion request at a public
meeting but shall not take testimony at the meeting. The Board will
make a decision whether or not to grant the rehearing. If the rehearing
request is granted, the applicant's decision is no longer valid.
There is no time frame for the applicant to come back before the Board,
but when they do it is considered a new application and all applicable
fees and notification are in effect. Any person aggrieved by any order
or decision of the Board may apply by petition to the Superior Court
within 30 days after the date upon which the Board voted to deny the
motion for rehearing.
(b)
The Board may consider written objections to a motion for rehearing
which are filed with the Board at least three days prior to the date
on which the Board will be considering the motion for rehearing.
A.
Written communication.
(1)
All communications from the applicant to the Board shall be in writing
and submitted to the Planning and Zoning Administrator. Persons wishing
to address the Board and/or present evidence are encouraged to submit
their comments in writing, signed, to the Board at least seven days
in advance of the meeting at which the matter is to be considered.
(2)
The Board may refuse to consider any written communications submitted
less than seven days prior to the meeting at which the matter is to
be addressed or may continue an application to a future meeting to
allow for sufficient time to review such materials.
B.
Availability. All communications from an applicant, an abutter or
interested person shall be available to the Board and public at the
Town Hall within 24 hours of receipt by the Planning and Zoning Administrator.
C.
Board packets. A copy of any such material shall be given to each
primary Board member and/or alternate member. In addition, one copy
shall be placed in the Conservation Commission mailbox at the Town
offices of any applications that involve its jurisdictional interests.
D.
Ex parte communications. Primary Board members and alternate members
shall bear in mind the quasi-judicial nature of their duties and shall
avoid and/or report any attempts by the applicant(s) or other interested
persons or parties to hold ex parte communications.
E.
Board member to member communication. Other than for scheduling,
administration, or exchange of publicly available documents not produced
or generated by or for the Board, primary Board members and/or alternate
members shall not communicate in person, by written communication
or by e-mail as to the Board's active applications and/or decision
making.
F.
E-mail. E-mail as well as written communications shall be considered
unsworn testimony until attested by its author. Any e-mails from abutters
or interested parties will be shared with the applicant.
A.
Records. The minutes of the Board shall be kept on file by the Town
Clerk and made available for public inspection at the Town offices
in accordance with RSA 673:17.
B.
Applications. Original application, correspondence, and all submitted
documentation by the applicant and/or abutters will be maintained
in the files kept in the Building Department. The Town's Planning
and Zoning Administrator shall maintain and preserve a record of all
meetings, transactions and decisions of the Board and perform such
other duties as the Board may direct by resolution.
C.
Official minutes. The official minutes, notice of decisions and agenda
will be maintained by the Town Clerk.
D.
Transcriptions. Any person desiring a transcript of the recording
must pre-pay the expense of the transcription.
A.
Amendments. These rules of procedure may only be amended or revised
by a majority vote of the primary Board members, and only upon due
notice to all Board members. A primary Board member may waive his/her
right to vote on an amendment and be replaced by an alternate, provided
that the primary Board member notifies the Chair. Any such waiver
shall be recorded in the minutes of the Board.
B.
Exception. Any portion of these rules of procedure may be waived
in such cases where, in the opinion of the Board, strict conformity
would pose a practical difficulty to the applicant and waiver would
not be contrary to the spirit and intent of the rules.
RSA 676:2 provides that the Board may hold joint meetings or
hearings with other land use boards, including the Planning Board.
Each Board shall have discretion as to whether or not to hold a joint
meeting with any other land use board.
