“Substantial Justice & Spirit of the Ordinance”… The ZBA puzzle….

zonning-puzzle-size-ii  The NH court system has established, through intense litigation, Five criteria that need to be fully satisfied  to be granted  a variance by your local Zoning Board. Those five criteria are:

  1. Hardship
  2. Public Interest
  3. Spirit of the Ordinance
  4. Substantial Justice
  5. No Diminution of Value

Clearly,  these five criteria must be considered by the town’s  Legislative Body when all new Zoning Ordinances and subsequent amendments are being drafted, debated and enacted into local law.

I would like to focus in on criteria #’s 3 & 4.  One of the best reviews of the five criteria was written Henniker resident Cordell Johnston (Attorney and Lobbyist for the Municipal Association) entitled The Five criteria in the 21st Century. (read here)

Let’s consider Criteria #4: Substantial Justice. One of the hardest concepts to understand by beginning board members is Substantial justice. In short I will refer to Mr. Johnston’s clear and concise definition;

         “The limited case law that exists on this factor indicates that granting a variance
will be deemed to achieve substantial justice if, in the absence of the variance, there would
be a loss to the property owner that is not outweighed by a gain to the general public;23 stated differently, substantial justice is done if granting the variance would not cause a harm to the general public that outweighs the benefit to the property owner.”

Certainly one can see that by drafting and approving a zoning ordinance, we the voters most certainly could not approve laws that harm property owners and cause harm to the general public. Yet the current ZBA obviously feel that the two amendments approved by the Legislative Body in March, have no benefit to the general public and therefore are being VETOED by their recent decisions. No substantial Justice can be done by hurting a farmer, Mr. Forster, and by denying the town and the state, the increased tax monies generated by a successful business. No, I think that it is pretty clear that the legislative Body wants the additional tax money from a successful farm.

Regarding Criteria #3, it is clear that the March 2016 amendments, voted on by the Legislative Body , “will not be contrary to the public interest”. In fact both the private property owner and the general public are being harmed by the ZBA’s refusal to acknowledge the wishes of the legislative Body.

In doing so we expect the ZBA to honor the Spirit of the ordinance as constructed and amended!

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