A landowner may obtain an “equitable waiver” from a zoning requirement when a lot or a structure “is discovered to be in violation of a physical layout or dimensional requirement” under a zoning ordinance, if certain other criteria are met. RSA 674:33-a, I. However, an equitable waiver may only be granted from physical layout, mathematical or dimensional requirements, and not from use restrictions. RSA 674:33-a, IV
.The Court was asked whether a zoning board of adjustment (ZBA) could grant an equitable waiver for the construction of a garage within the town’s wetlands and watershed protection overlay district. The central issue was how to characterize the prohibition against building in the wetland overlay district. Was it a dimensional restriction, for which an equitable waiver might be available, or a use restriction, for which an equitable waiver is never available?
Drawing upon the line of cases that distinguish area (dimensional) variances from use variances, the Court noted that “the critical distinction between area and use variances is whether the purpose of the particular zoning restriction is to preserve the character of the surrounding area and is thus a use restriction.” This issue must be decided in each case based on the language of the zoning ordinance.
The Court looked for guidance to Harrington v. Warner, 152 N.H. 74 (2005), involving a use restriction intended to preserve the character of the area. That ordinance restricted the number of manufactured homes that could be placed in a park regardless of the size of the lot, or the size or location of the structures on that lot. Similarly, the Windham ordinance in this case prohibited the construction of any permanent buildings within the wetland overlay district, regardless of the size of the lot, or the size or location of the structures within the district.
In addition, the stated purpose of the wetland overlay district was, in part, to “[p]revent the development of structures, or other land uses within the [district] that would contribute to surface and groundwater contamination or reduce surface and groundwater supplies….” The Court viewed this language, along with the headings and other references in the ordinance to buildings as “uses,” as sufficient evidence that the issue involved a use rather than a dimensional requirement.
Finally, the Court made very clear that Windham’s ordinance created “an autonomous overlay district mandating its own restrictions above and beyond those of the underlying district.” Thus, the prohibition against building within the boundaries of the district was not simply a physical limitation or setback requirement incidental to the underlying residential district’s permitted uses, but rather a use restriction for which the ZBA could not issue an equitable waiver.
This case demonstrates that a required setback from wetlands is not the same thing as a wetlands overlay district in which structures are prohibited. Under the correct circumstances, a ZBA may be able to grant an equitable waiver from a setback. On the other hand, a ZBA may not issue an equitable waiver from a prohibition against building within a distinct overlay district. It is, therefore, quite important to structure a zoning ordinance carefully to accomplish the municipality’s goals.