Article VIII: Board of Adjustment

Source: Current official PDF (pages 182-189 of the March 11, 2026 edition).

Section 800 Establishment of Board of Adjustment.

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.

800.1 Membership.

The Board shall consist of five (5) members appointed by the City Council, each to be appointed for three (3) years. The terms shall be arranged so that no more than two (2) appointments occur annually.

800.2 Alternate Membership.

The City Council may appoint not more than five (5) alternate members to the Board.

800.3 Meetings.

Regular and special meetings of the Board shall be held at the call of the chairman or of a majority of the members of the Board at such time as the chairman or majority of the members of the Board may determine. The presence of three (3) members shall be necessary for a quorum.

800.4 Organization.

  • A. Rules of Procedure: As required by NH RSA 676:1, the Board shall adopt Rules of Procedure.
  • B. Minutes: The City's Recording 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.
  • C. Annual Election of Officers: The Board shall annually elect a Chairperson and Vice-Chairperson.

Section 801 Powers and Duties.

The powers and duties of the Board shall be as prescribed by NH RSA 674:33, as amended. The powers and duties are:

801.1 Administrative Appeals.

As set forth in RSA 676:5, I, appeals to the Board concerning any matter within the Board’s powers as set forth in RSA 674:33 may be taken by the applicant, an abutter as defined by RSA 672:3, or by any officer, department, board, or bureau of the municipality affected by any decision of the administrative officer. In exercising this power, 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 ought to be made, and to that end shall have all powers of the officer from whom the appeal is taken.

For the purposes of this section:

  • (a) The "administrative officer" shall mean the Zoning Administrator.
  • (b) As set forth in RSA 676:5, II, a "decision of the administrative officer" includes any decision involving construction, interpretation or application of the terms of the Zoning Ordinance. It does not include a discretionary decision to commence formal or informal enforcement proceedings, but does include any construction, interpretation or application of the terms of the Zoning Ordinance which is implicated in such enforcement proceedings.

An appeal under this section shall be made within 30 days of the date of the administrative decision being appealed, or within 30 days of the time that the person filing the appeal knew or had reason to know that the administrative decision had been made. The effect of an appeal shall be as set forth in RSA 676:6.

801.2 Variances.

    • 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
        • (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 conformity with the ordinance, and a variance is therefore necessary to enable a reasonable use of it. The definition of "unnecessary hardship" set forth above 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.
  • B. The above standards shall be administered in such a way as to fulfill the statement of intent of the Legislature in Chapter 307 of the N.H. Laws of 2009, and the construction placed upon the standards by the N.H. Supreme Court.
      • a. If a site plan review application is not submitted to the Planning and Development Department and accepted as complete by the Planning Board within two (2) years of the date of the variance approval;
      • b. If and when the site plan approval expires or is deemed void; or
      • c. If the variance is abandoned.
      • a. If the variance has not been exercised within two (2) years of the date of variance approval by the Zoning Board of Adjustment; or
      • b. If the variance is abandoned.

801.3 Special Exceptions.

    • 1. That the special exception is specifically authorized by a provision of this Ordinance.
    • 2. That all special conditions required of the special exception have been met.
    • 3. That there are no existing violations of this Ordinance on the property that the granting of this special exception would not remedy.
    • 4. That the character of the area shall not be adversely affected.
    • 5. That no hazard or nuisance will be created.
    • 6. That the capacity of existing or planned community facilities and services (including streets and highways) will not be adversely impacted.
    • 7. That granting the special exception will not result in undue municipal expense.
    • 8. That the proposed special exception will be developed in a manner compatible with the spirit and intent of the Ordinance.
    • 9. That the general welfare of the City will be protected.
      • a. If a site plan review application is not submitted to the Planning and Development Department and accepted as complete by the Planning Board within two (2) years of the date of the special exception approval;
      • b. If and when the site plan approval expires or is deemed void; or
      • c. If the special exception is abandoned.
      • a. If the special exception has not been exercised within two years of the date of special exception approval by the Zoning Board of Adjustment; or
      • b. If the special exception is abandoned.

801.4 Other Matters.

  • A. To hear and decide such other matters as are lawfully referred to them by other Ordinances of the City.
  • B. To authorize equitable waivers of dimensional requirements if the applicant satisfies the burden of proof upon all criteria set forth in RSA 674:33-a.
    • (I) any variance granted under this paragraph shall be in harmony with the general purpose and intent of this Ordinance; and
    • (ii) in granting any variance under this paragraph, the 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.

Section 802 Board Procedures.

802.1 Applications.

Applications to the Board for an administrative appeal, variance, special exception or equitable waiver shall be made on forms provided by the Board in compliance with procedures established by the Board.

  • A. Fees: The application shall be accompanied by whatever fees are required by Chapter 68 of the City Code.
  • B. Plans and Information: The application shall be accompanied by whatever plans and other information are required by the Board including but not limited a scaled plan of the subject property identifying existing and proposed conditions and improvements, and a business operations plan, if applicable.
  • C. In all cases, the applicant shall provide, either as part of the application or through evidence at the public hearing, information sufficient to demonstrate that the application conforms to the criteria as set forth in this Ordinance for the type of appeal or relief being requested. The decision of completeness of an application shall be made by the Board of Adjustment.
  • D. Environmental Impact Assessment: The Board may require the applicant to submit an environmental impact assessment when necessary to evaluate an application made under this section. The cost of this assessment shall be borne by the applicant.
  • E. Special Studies: The Board shall have the right to require that the Applicant pay necessary and reasonable fees to cover expenses for the costs of investigative studies, review of documents, and other matters that may be required by particular applications.

    Before imposing such additional fees upon an Applicant, the Board shall determine what special investigative studies, review of documents, or other matters are required for the application. The Board, by motion, shall determine the necessity of additional review and shall provide the applicant with an estimated cost of such additional review. The Board shall require the Applicant to pay the amount of estimated fees to the City in advance. Failure to pay the additional review fee may result in disapproval of the application for lack of adequate information. If the estimate of the additional fees is less than the actual cost, then the Board shall send the Applicant a description and the reasons for the additional cost. The Applicant shall then pay the total actual costs. If the estimate of the additional fees is greater than the actual cost, the difference shall be refunded to the Applicant.

    In the event that it is necessary for the City to take legal action against an Applicant to collect unpaid fees, the City shall be entitled to an award of reasonable attorney's fees incurred in collection of the unpaid amount.

802.2 Hearings and Notice.

The Board shall hold a public hearing on each application.

  • A. Abutters Notice: The applicant and all abutters shall be notified of the public hearing by certified mail. Such notice shall be given not less than five (5) days no more than thirty (30) days before the date of the hearing.
  • B. Public Notice: A public notice of the hearing shall be posted in at least two (2) public places and shall be published in a newspaper of general circulation in Lebanon not less than five (5) nor more than thirty (30) days before the date of the hearing.

802.3 Hearing Procedure.

All hearings shall be conducted in accordance with the Rules of Procedure adopted by the Board.

  • A. Witnesses: The Chairman shall have the power to administer oaths and compel the attendance of witnesses.
  • B. Testimony: The Board shall hear all abutters who desire to testify and all non-abutters who can demonstrate that they are affected directly by the application under consideration. The Board may hear such others as it deems appropriate.
  • C. Burden of Persuasion: The applicant bears the burden of introducing sufficient evidence, through testimony or otherwise, to persuade the Board that the application should be granted.
  • D. Conflicts of Interest: Conflicts of interest are governed by RSA 673:14, the City of Lebanon Ethics policy (ADM-108, as amended), and the Board's Rules of Procedure. No member of the Board shall sit upon the hearing of any question which the Board is to decide in a judicial capacity if that member would be disqualified for any cause to act as a juror upon the trial of the same matter in any action at law. Reasons for disqualifications do not include exemption from service as a juror or knowledge of the facts involved gained in the performance of the member's official duties. If a member is disqualified or unable to act in any particular case pending before the Board, the chairman shall designate an alternate to act in his place.
  • E. Joint Hearings with Planning Board: In accordance with NH RSA 676:2, as amended, the Board of Adjustment and the Planning Board may hold joint meetings and hearings when the subject matter of an application is within the responsibilities of both Boards. Each Board shall be responsible for rendering a decision on the subject matter which is within its jurisdiction.

802.4 Decisions of the Board.

  • A. Majority Vote: 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 or any matter on which it is required to pass.
    • 1. Increasing the required lot size or yard dimensions in order to protect the adjacent properties.
    • 2. Limiting the coverage or height of building because of obstruction to view and reduction of light and air to adjacent properties.
    • 3. Controlling the location and number of vehicular access points to the property.
    • 4. Increasing the street width adjacent to the property.
    • 5. Increasing the number of on-site off street parking or loading spaces required.
    • 6. Requiring suitable on-site landscaping and screening where necessary to reduce noise and glare and to maintain the property in character and keeping with the surrounding area.
    • 7. Specifying a time limit for initiation of construction, alteration, or enlargement of a structure to house an exception.
    • 8. Providing for specific layout of facilities on the property such as location of the building, parking areas, access to the building so as to minimize effect on adjoining property.
    • 9. Specifying standards for operation of this special exception so that it will be no more objectionable to the neighborhood by reasons of noise, odors, vibrations, flashing lights or hours of operation than will be the operation of a permitted use at that site.
    • 10. Specifying the length of time of the special exception and time of occupancy during the year, or hours of operation.
    • 1. Written Decisions: The Board shall issue a written decision which either approves or disapproves any application for an appeal of an administrative decision, a variance, a special exception, an equitable waiver, or any other relief. The decision shall provide written reasons for either an approval or disapproval, making reference to the applicable Ordinance provisions or criteria involved.
    • 2. Filing of Decisions: Whenever the Board issues a decision, it shall be placed on file with the City Clerk and made available for public inspection within 144 hours after the decision is made.

802.5 Rehearings and Appeals.

As provided by NH RSA 677:2, as amended, within 30 days after any order or decision of the Board, any party to the action or proceeding or any abutter as defined by RSA 672:3 may apply for a rehearing.

A rehearing may be granted if in the opinion of a majority of the Board there is good reason therefor, such reasons including, but not limited to: (1) the petitioner has new, relevant evidence to submit; (2) the petitioner raises new, relevant legal issues that were not considered at the original hearing; or (3) the Board feels it may have made a prejudicial technical or legal error in its original decision.

The Board shall either grant or deny a rehearing within thirty (30) days of receiving the request or may suspend the order or decision complained of pending further consideration. Any order of suspension may be upon such terms and conditions as the Board may prescribe. Appeals to the NH Superior Court may be taken pursuant to NH RSA 677:4, as amended, within thirty (30) days after the action complained of has been recorded.

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