Originally Posted by Riviera
I disagree.
There is a fairly big legal hurdle to obtain a variance. Essentially (and overly simplistically) there must be a hardship inherent in the land for the ZBA to grant a variance. (Amongst other criteria) This is a tough burden to overcome, because the applicant needs to show a reason why the land can’t reasonably be used under the criteria as currently zoned. If the ZBA did grant a variance, an appeal of the variance through the court system often stands a good chance of getting overturned.
A special exception has a lower legal burden, because the zoning ordinance specifically allows the use, provided the applicant can demonstrate that the use is appropriate for the specific parcel of land.
Also, both the ZBA and the Planning Board are legally obligated to take testimony from any abutter, and any member of the public that can demonstrate a direct impact attributable to the proposed development. Nearly every community in NH takes a very liberal view of this provision, and they generally allow testimony from any member of the public. If they didn’t take that testimony, they would have no way of determining whether or not a party is directly impacted.
Lastly, the Planning Board is probably the least likely approval that can be successfully appealed. If the ZBA grants approval, and there is no appeal to that approval, the variance runs with the land, and gives the applicant the right to build the use contemplated under the variance, subject to good engineering practice, suitable aesthetics, and a host of other criteria that the Planning Board can oversee. However, the Planning Board will have no right to deny the use itself, if the ZBA grants the variances/exceptions, and there is no successful appeal.
If the parties aggrieved by this development want to stop the development, they would be well served to hire a top notch land use attorney NOW, so that the attorney can review the application, and provide sound testimony during the ZBA proceedings, that will support a future appeal. Trust me, the applicant is represented by legal counsel, and they know full well that if they can get to the Planning Board without a ZBA appeal, they are likely to prevail in the long run. The last thing those in opposition want to do is wait until the Planning Board proceedings.
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