[Amended 2001; 2003; 2013; 3-10-2020 by Art. 3]
The Board of Adjustment, as established, is hereby continued as such. The word "Board" when used in this section shall be construed to mean the Board of Adjustment. The Board shall consist of five members elected by Town voters, each to be elected for three years as the terms of appointed members expire. The Board of Adjustment shall appoint not more than five alternate members to the Board.
A. 
Meetings. Regular and special meetings of the Board shall be held at the call of the Chair or of a majority of the members of the Board at such time or times as the Chair or majority of the members of the Board may determine. The presence of three members shall be necessary for a quorum.
B. 
Organization. The Secretary shall keep minutes of the proceedings, showing the vote of each member upon every question or, if absent or failing to vote, indicating the fact. The Board may adopt, from time to time, such rules and regulations as may be deemed necessary to carry into effect the provisions of this chapter. The Board shall elect from the membership a Chair and Vice Chair each year whose term shall run for the following calendar year and until his successor is elected.
[Amended 1994; 1997; 3-9-1999; 3-11-2014; 3-18-2017; 3-10-2020 by Art. 3; 3-14-2023 by Art. 3 (Am 8)]
The powers and duties of the Board shall be in all respects as prescribed by NH RSA 674:33, with any amendments thereto.
A. 
The Board's powers and duties are:
(1) 
Appeals. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by any administrative official in the interpretation, application, and construction of this chapter. Pursuant to RSA 676:5, III, a decision or determination of the Planning Board during subdivision or site plan review which is based upon the terms of this chapter, or upon any construction, interpretation or application of this chapter, may be appealed under this section.
(2) 
Variances. To authorize upon appeal in specific cases such variances from the terms of this chapter, provided each of the criteria set forth in RSA 674:33.1(a)(2) are satisfied.
(3) 
Special exceptions.
(a) 
To hear and decide special exceptions to the terms of this chapter upon which such Board is required to pass under this chapter. To grant a special exception, the Board shall determine that the grant of a special exception satisfies:
[1] 
The specific criteria established under the provisions governing the grant of the special exception;
[2] 
In the absence of such specific criteria or where the provision identifies that the general criteria set forth herein shall apply, upon any application for a special exception, the following criteria:
[a] 
The grant of the special exception will not be injurious or detrimental to the neighborhood;
[b] 
The special exceptions will be in harmony with the general purpose and intent of this chapter; and
[c] 
The special exception is in accordance with the general or specific rules contained therein.
(b) 
Special exceptions shall be heard as appeals under this chapter, and all procedural requirements for appeals hereunder shall apply thereto, in addition to any special provisions prescribed hereunder.
(4) 
Equitable waivers. To hear and decide applications for equitable waivers of dimensional requirements in accordance with the requirements of RSA 674:33-a.
B. 
Extension of district boundaries. The Board may permit the extension of a district by not more than 50 feet where the boundary line of a district divides a lot in a single ownership at the time of the passage of this chapter.
C. 
Exercise of powers. In exercising the above-mentioned powers, such Board may, in conformity with the provisions hereof, reverse or affirm, wholly or partly, 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 officer from whom the appeal is taken.
D. 
Special conditions. In granting any special exception or variance to the above requirements, the Board of Adjustment may establish conditions or requirements which are considered necessary to carry out the spirit and intent of this chapter.
E. 
Expiration of variances and special exceptions. An approved special exception or variance shall expire two years from the date of approval unless substantial construction relative to the special exception or variance has begun on the site or unless the Board of Adjustment has approved an extension for good cause, provided that no such special exception or variance shall expire within six months after the resolution of a Planning Board application filed in reliance upon the variance.
(1) 
For the purposes of this provision, the following are examples of "substantial construction":
(a) 
For a building, completion of a weathertight structure.
(b) 
For a septic system, completion to the point of being ready for DES's inspection for operational approval.
(c) 
For a road or driveway, completion of the base course and ditches to final grade and installation of all drainage facilities.
(2) 
A variance to dimensional or other requirements for a lot shall expire two years from the date of approval unless a subdivision plan depicting the lot has been recorded.
A. 
Filing of appeals. An appeal shall be taken within such time as shall be prescribed by the Board, by general rule, by filing with the officer from whom the appeal is taken, and with the Board, a notice of appeal, specifying the grounds thereof, together with a notice and filing fee. Such notice of appeal shall specify the names of all abutting owners to the premises concerned, to all of whom the Board shall give notice by mail of such appeal, insofar as practicable. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
[Amended 1992; 1996; 3-10-2020 by Art. 3]
(1) 
Deadline for filing administrative appeals. Applications for administrative appeals pursuant to § 190-7.1A(1) shall be filed not later than 30 days from the date of decision in the following two circumstances:
(a) 
Any final decision of the Planning Board on a subdivision, site plan review or lot line adjustment application.
(b) 
Any decision of the Building Inspector which denies a permit.
(2) 
Other administrative appeals shall be filed within a reasonable period of time of the decision being appealed.
B. 
Effect of appeal to Board. The effect of an appeal to the Board shall be to maintain the status quo. An appeal of the issuance of any permit or certificate shall be deemed to suspend such permit or certificate, and no construction, alteration, or change of use which is contingent upon it shall be commenced. An appeal of any order or other enforcement action shall stay all proceedings under the action appealed from unless the officer from whom the appeal is taken certifies to the Board of Adjustment, after notice of appeal shall have been filed with such officer, that, by reason of facts stated in the certificate, a stay would, in the officer's opinion, cause imminent peril to life, health, safety, property, or the environment. In such case, the proceedings shall not be stayed other than by a restraining order which may be granted by the Superior Court on notice to the officer from whom the appeal is taken and cause shown. See RSA 676:6.
[Amended 1997; 3-14-2023 by Art. 3 (Am 8)]
C. 
Hearings and notice. The Board shall fix a reasonable time for the hearing of appeal and give due notice thereof to the parties and decide the same within 90 days of the date of receipt of the appeal, provided the applicant may waive this requirement and consent to such extension as may be mutually agreed. Notice of hearing shall be published at least once in a newspaper of general circulation in the Town of Rye and mailed, by registered or certified mail, to the parties and all abutters not less than seven days prior to such hearing. Failure of the party filing such appeal to disclose in his notice of appeal the names of all abutting owners to the premises concerned shall be cause for continuation for new hearing on proper notice to all concerned; willful failure of the party filing such appeal to disclose in his notice of appeal the names of all abutting owners to the premises concerned may be cause for the denial of the appeal, at the option of the Board. Upon 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 affected directly by the proposal under consideration. The Board may hear such other persons as it deems appropriate. If the Board determines that it lacks sufficient information to make a final decision on the application, and the applicant does not consent to an extension, the Board may, in its discretion, deny the application without prejudice.
[Amended 3-10-2020 by Art. 3; 3-14-2023 by Art. 3 (Am 8)]
D. 
Decisions of Board.
(1) 
The Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order or decision as in its opinion ought to be made, and to that end shall have all the power of the officer from whom the appeal is taken.
[Amended 3-10-2020 by Art. 3; 3-14-2023 by Art. 3 (Am 8)]
(2) 
The concurring vote of three members of the Board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant any matter upon which the Board is required to decide under this chapter, or to effect any variation in this chapter.
[Amended 3-14-2023 by Art. 3 (Am 8)]
(3) 
The Board shall issue a final written decision which either approves or disapproves an application. If the application is not approved, the Board shall provide the applicant with written reasons for the disapproval.
(4) 
Board decisions and minutes shall be placed on file with the Town Clerk and made available for public inspection within five business days after the decision is made.
[Amended 2001; March 2011]
[Amended 2001; March 2011; 3-8-2022 by Art. 3]
Every decision of such Board shall be subject to review upon motion for rehearing filed with the Board of Adjustment within 30 days after any order or decision of the Board, and to appeal to the Superior Court or the Housing Appeals Board in accordance with the terms of the statute. Such motion or appeal may be taken by any person aggrieved or by an officer, department or board of the Town. This thirty-day time period shall be counted beginning with the first day following the date upon which the Board voted to approve or disapprove the application and may be amended if minutes and notice of decision are not filed within the five-business-day requirement of § 190-7.2D(4), per RSA 677:2.
The Board of Adjustment may conduct joint meetings or hearings on applications requiring permits from both the Board of Adjustment and Planning Board, as provided by NH RSA 676:2.