ZBA Variance Denial Overturned by Housing Appeals Board; Conversion of Obsolete Office Structure to Market Rate Apartments Permitted

Chelmsford Hooksett Properties, LLC v. Town of Hooksett
Housing Appeals Board Case No. ZBA-2022-10
Monday, November 14, 2022

Chelmsford Hooksett Properties, LLC sought a use variance from the Hooksett ZBA to convert a 100,000 sq. ft. commercial office building to market rate residential apartments. The building was vacant for several years due to the obsolete nature of the existing structure built in 1986.  The property is in a zoning district reserved for a blend of commercial and retail uses but prohibiting residential uses. 

In denying the variance the ZBA found the proposed residential apartments would be contrary to the public interest as the use would be inconsistent with the character of the surrounding neighborhood.  The ZBA also ruled substantial justice would not be done as the loss to the applicant was outweighed by the harm to the public interest.  On the question of hardship, the board ruled there were no special conditions that differentiated the property from others in the same area, and that the zoning prohibition was substantially related to public purposes of the ordinance making the proposed residential use not reasonable under the circumstances. 

Housing Appeals Board (HAB) examined the certified record to determine if there was evidence in the record to support the ZBA’s decision.  On the contrary to public interest issue the HAB primarily focused on whether the ZBA acted unreasonably in finding the requested variance would alter the neighborhood’s essential character.  The crux of that question turned on traffic impacts and that weighed in favor of Chelmsford since the only professional traffic assessment found the proposed residential use would generate considerably fewer vehicle trips than the former office use. Since the ZBA instead relied upon their own judgment and experience, the HAB ruled the ZBA’s decision on the public interest issue was not supported by substantial evidence. 

On the question of substantial justice, because the ZBA did not articulate what the public would gain if the property was not converted to a residential use, the HAB ruled the potential loss to Chelmsford would not be outweighed by potential harm to the public.

When the HAB examined the ZBA decision on the issue of hardship, it first concluded the obsolete office structure by itself created special conditions, even though the parcel itself was similar to surrounding properties.  Even though the zone where the Chelmsford office structure was located was intended for commercial and retail uses, the unique burden of the obsolete office structure severed the relationship between the permitted commercial and retail uses of the property and their application to the property.  The HAB ruled that because the proposed use seeks to renovate a vacant building on a large lot without expanding its footprint, that proposal  will serve as a transition between the existing single-family homes to the south and west and the mixed uses to the north and east, and that the Hooksett ZBA acted unreasonably in concluding that the proposed use was not reasonable.

The decision denying the variance was reversed by the HAB.



Additional Information: 

Practice Pointer:  When denying a variance a ZBA must ensure each of its rulings is supported by evidence in the certified record.  Whether a variance would be not contrary to the public interest and be consistent with the spirit of the ordinance, assess (1) whether the variance would alter the essential character of the neighborhood; and (2) whether the variance would threaten the public health, safety, or welfare.  If a board concludes traffic will alter the essential character of the neighborhood, be sure to support that conclusion with a traffic study or direct personal observations.  When ruling on substantial justice, the potential loss to the applicant must be outweighed by the potential harm to the public.  Special conditions of the property, the first step in the hardship analysis, can arise from the property itself and not require a showing of how the property is different from surrounding properties.  An applicant can demonstrate no fair and substantial relationship between the permitted uses of the property under the ordinance if the special conditions of the property itself sever the relationship between the ordinance’s purpose and its application to the property.