Of late there has been a very disturbing trend in the Portsmouth residential real estate market. In a number of recent instances, out-of-towners with lots of money have purchased homes that have been standing in their neighborhoods for generations, purchasing them with the intention of demolishing the existing homes and building new ones forged in the new owners’ own images. (Or, alternatively, the buyers bought the property with the intention of demolishing a garage and/or shed and extending the main structure–the dwelling–with a massive addition which would have hugged the property line and hovered over their neighbors’ properties.) The proposed new structures have frequently been designed in a modernistic style which was inconsistent with the architecture of the surrounding homes and clashed with the character of the neighborhood.
I am certainly not the only one who has noticed this unfortunate trend. The Portsmouth Herald itself has made the same observation (“City Board Rejects Latest Home Rebuild Plan,” Portsmouth Herald, July 3, 2023, p. A1; “Building New Homes, Making Lightning Rods?” Portsmouth Herald, October 2, 2023, p. A1), as have many other observers.
Typically, the new owners have needed variances from the Zoning Board of Adjustment or other, similar relief from one of the other land use boards, such as the Historic District Commission, in order to carry out their ambitious plans. In two recent instances–the properties at 168 Lincoln Avenue and 281 Cabot Street–their plans were scuttled after a number of neighbors and other city residents (including myself) rose up and spoke against the projects at public hearings. But in at least two other instances–199 Clinton Street and 9 Kent Street–the projects were approved. (“City Board Rejects Latest Home Rebuild Plan,” op. cit.; “Building New Homes,” op. cit.; “Rebuild, or Renovate?,” Portsmouth Herald, April 5, 2023, p. 1A; “Plans for Home Cause Backlash,” Portsmouth Herald, April 4, 2023, p. 1A.)
The variances for the properties at 199 Clinton Street and 9 Kent Street should never have been granted, at least not without substantial modifications, and approval of the projects at 168 Lincoln Avenue and 281 Cabot Street was rightly denied, as there was no basis for granting variances for either of the latter two properties and only the thinnest basis for granting them for the former two. The variance applications submitted by the new buyer-owners of all four properties were similar to a great many other variance applications that come before the Board of Adjustment for approval, at least in one respect: When you tear away all of the fluff and pierce through all of the nonsense, the applicants’ justifications for their variance requests boiled down to something like this:
“I don’t want to obey the Zoning Ordinance.”
Or, “I don’t want to have to comply with the requirements of the Zoning Ordinance.”
Or, “I can’t do what I want to do if I have to conform to the requirements of the Zoning Ordinance.”
Or, to cite a frequent variation of that same theme: “I can’t make as much money as I would, if only I didn’t have to comply with the requirements of the Zoning Ordinance.”
But if, as an applicant, that’s all that you have to offer by way of justification for your request, then there is no occasion for granting any variance, for that’s what zoning is: You don’t always get to do what you want to do.
Zoning is the reason why Walmart cannot build a Walmart Supercenter in the middle of a residential neighborhood. It is the reason why you can’t open a strip club or an adult video store next to an elementary school or a middle school. It is the reason why you can’t open a pig farm next to a row of waterfront restaurants. It is the reason why you can’t erect a building that is too big on a parcel of land that is too small.
And, more generally, it’s the reason why you can’t use your property in a manner that is going to infringe upon your neighbor’s rights or upon those of the rest of the property owners in the neighborhood.
The oft-repeated, specious argument that “I’m entitled to do what I want with my own property” swiftly disintegrates upon even the most minimalist analysis. It’s nice to talk about property rights. Property rights are great. Everybody loves them. But property rights only get you just so far, and they stop at the point where you encroach upon your neighbor’s rights and interfere with his peaceable and quiet enjoyment of his property.
Sometimes it’s difficult to draw the line between your property rights and your neighbor’s property rights. The question can fairly be asked, How and where do you draw the line between where your property rights end and where your neighbor’s property rights begin?
But that’s what zoning is and does. It’s the Zoning Ordinance that draws the line between where your rights end and where your neighbor’s rights begin.
It draws that line by imposing setback requirements, which require that all of the buildings on your property be a certain number of feet away from your property’s boundary line, and that your neighbor’s buildings similarly be a certain number of feet away from his property’s boundary line, so that there can be adequate air, light, and space between buildings, which is one of the express goals of the Master Plan.
It draws that line by imposing building coverage limitations, so that properties will not become overcrowded and so that there will similarly be sufficient light, air, and space between buildings and between properties.
It draws that line by imposing height limitations on buildings, so that your building or buildings will not loom over your neighbor’s property and cast shadows over it, and so that the buildings themselves will not become too massive.
But that’s what zoning is: You don’t get to simply do whatever you want to, and you don’t always end up getting what you want. And if, as an applicant, all that you can say is that you can’t do what you want to do if you have to comply with the requirements of the Zoning Ordinance, then you’re not entitled to any variance.
In order to qualify for a variance, you have to show that there are “special conditions” inhering in your property. Those “special conditions” are frequently referred-to by the somewhat archaic and highly misleading term “hardship”–a term which has spawned much confusion. In the world of zoning, the kind of “hardship” that you have to show in order to obtain a variance does not consist of the personal circumstances of the owner, such as “we just had a new baby and our house is not going to be big enough for our family”; or, “we frequently entertain friends and relatives, and our house doesn’t really have enough room for us to entertain or to house overnight guests.” Rather, the type of hardship which is required for a variance is a hardship in the land itself. There must be something unique about your property–or, to use the term of the relevant statute, there must be “special conditions”–which distinguish it from the rest of the properties in your neighborhood, such that it would be unfair to force you to follow the same rules that everybody else does.
A classic example of such a hardship would be an oddly-shaped lot, which is so bizarrely configured that if you had to comply with all of the setback requirements imposed by the Zoning Ordinance you would have to build a three-sided building or some other grotesque-looking structure. Or, to cite a second example, your lot is abnormally small in comparison to the other parcels in your zoning district, such that if you had to comply with all of the setback requirements you would only be able to erect a building the size of a garage–or perhaps you wouldn’t be able to erect any building at all.
But the fact that you just had a new baby and you need to build an additional bedroom, or that you frequently entertain out-of-town guests and you need a bigger house to accommodate them, or that you want to build a detached studio for your in-home crafts manufacturing business so that your family will be insulated from all of the noise, does not qualify. These are not the kinds of hardships that justify the granting of a variance. These particular “hardships” consist entirely of the personal circumstances of the owner. They are not “hardships” (or “special conditions”) that are associated with the land itself, and therefore no variance may be granted on those bases.
These fundamental concepts and principles should be part of every Board of Adjustment member’s manifesto. Yet, in the past these tenets seemed to have escaped many of those members’ understandings, particularly the distinction between a “hardship” to the land and a “hardship” relating only to the property owner’s personal circumstances. In the past, some board members have been oblivious to the requirement that there be something unique about the owner’s property which puts it at a disadvantage relative to the other properties within the same zoning district, making it unfair to require him to follow the same rules. Back in the free-wheeling, Wild West days of the Zoning Board of Adjustment, when Charlie LeBlanc and David Witham were the chairmen, if you came before the board and gave any good reason why you wanted a variance, and if there was no serious opposition to it by any of the neighbors (or oftentimes even if there was), chances were that the board would somehow figure out a way to find a hardship and would grant the variance.
However, this was totally wrong. The way that the system is supposed to work is that the Zoning Ordinance is supposed to be the rule, and the variance is supposed to be the exception–not the other way around. The goal of “getting to yes,” an attitude which has been adopted by some land use board members, is an approach which has no place on the Zoning Board of Adjustment. (As far as I’m concerned, it has no place on any of the other land use boards, either. Rules are rules, and the applicant is almost always required to meet specified criteria of some kind, no matter what board he is appearing before or what kind of relief he is seeking.)
Another method by which certain property owners are known to abuse the Zoning Ordinance–a technique employed more commonly by developers and commercial real estate investors than by residential property owners–is the unscrupulous practice that has been aptly referred-to as “demolition by neglect.” (See “City Board Rejects Latest Home Rebuild Plan,” op. cit.) You buy a piece of real estate that has a perfectly sound, suitable, serviceable dwelling erected on it, one which has been standing there for decades, and you intentionally refrain from maintaining it over period of years so that it soon deteriorates and becomes an eyesore, looking like an abandoned building. You then use its dilapidated, unsightly condition as an excuse for going before the land use boards and getting something that you’re plainly not entitled to, using the argument that your proposal is a radical improvement over what’s there now. This argument was used successfully to obtain permission to erect two multi-unit condo/apartment buildings at the corner of Dennett Street and Woodbury Avenue (across from the Holiday Inn), an area which is otherwise zoned only for single-family dwellings, and it is currently being used to demolish the house at 12 Boyd Road (at the corner of Boyd and Woodbury).
The Zoning Board of Adjustment should not countenance this devious ploy. (Ditto, the Historic District Commission, when the property happens to be situated within the Historic District, and the same goes for the Demolition Committee and the Planning Board.) The board should have the guts to stand up and say “No” whenever a property owner attempts to use his own intentional neglect as an excuse for demolishing a building and getting concessions to which he is not entitled under the Zoning Ordinance. Let him be forced to live with the monster that he has created, and let him eat the cost of paying taxes on it. If he suffers economic hardship as a result, that is a fair penalty to pay for trying to circumvent the rules and to intentionally create an eyesore.
Unfortunately, in the past our land use boards have not been vigilant in recognizing this unsavory practice where it has been employed, or if they recognized it they lacked the spine or the sense of principle to do anything about it. The property at Boyd Road and the buildings at the corner of Dennett Street and Woodbury Avenue are examples, and there have been others. The relevant boards in the above examples should have held the line and simply refused to allow the demolitions.
Fortunately, however, things are much better now. The Board of Adjustment of 2020-2022, before David MacDonald and Jim Lee left it, was the best it’s ever been in the last twenty-five years, and the current board is pretty good, too. (Mr. MacDonald reportedly resigned for reasons of health, and Mr. Lee, much to my chagrin, was not reappointed by Mayor Deaglan McEachern.) Board member Beth Margeson is conspicuous for doing her homework and analyzing each variance application in terms of the required statutory criteria. Though I have sometimes disagreed with her decisions, I cannot say that any of the ones that I consider to have been erroneous was reached through lack of conscientious study and thoughtful consideration on her part. Mr. MacDonald and Mr. Lee were notable for applying good, down-home common sense. Paul Mannle and Tom Rossi are often known to make perspicacious, insightful observations that everyone else has missed.
I hope that the current membership of the ZBA will continue to apply the rules as written and that it will continue to reject applications whose only real basis is that the property owners do not wish to follow those rules. The Zoning Ordinance should be enforced according to its terms, and variances should not be lightly granted. That’s the only way to strike a balance between the rights of property owners and the property rights of their neighbors, to curb abuses by unprincipled developers and self-centered carpetbaggers, to prevent the overcrowding of properties, and to preserve the character of our residential neighborhoods.
Duncan J. MacCallum
