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Bar Journal - Fall 2005

THE NEW ZONING VARIANCE CASES: Analyzing Unnecessary Hardship Under RSA 674:33

By:


INTRODUCTION

           

If a landowner in New Hampshire wants to build or add onto a structure or change the use of his or her property, that landowner must ensure his or her plans conform to the local zoning ordinances.  A typical ordinance may prohibit a multi-unit dwelling on land that is zoned for single-family units or may require a structure to be set back a certain distance from a boundary.  For example, if a parcel of lakefront property included a small cottage, and the landowner wanted to replace it with a small marina, the local ordinances would likely prohibit the owner from building within a certain distance from the shore and changing to commercial use.  Thus, the local code enforcement officer will deny a request for a building permit for this proposal.  However, the landowner is not completely without an opportunity to construct the marina because he or she can apply for a variance from the zoning board of adjustment (“ZBA”) to allow the proposed nonconforming use.  A variance is a waiver of the strict letter of the zoning ordinance without sacrificing the ordinance’s spirit and purpose.1 

 

            RSA 674:33I(b) permits a ZBA to:

 

authorize upon appeal in specific cases such variance from the terms of the zoning ordinance as will not be contrary to the public interest, if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.2 

           

In addition, a variance will only be granted if the proposed construction or use will not diminish the value of surrounding property.3 

           

In some instances, it is necessary for a ZBA to authorize a landowner to disregard a strict zoning requirement because the New Hampshire Constitution guarantees to all persons the right to acquire, possess, protect,4 and enjoy property.5  Thus, variances, which are often referred to as a constitutional “safety valve,” prevent the government from restricting an owner’s reasonable use of his or her land.6  If variances did not achieve a balance between the rights of New Hampshire municipalities, which are authorized by statute to adopt (or amend) a zoning ordinance “for the purpose of promoting the health, safety, or the general welfare of the community,”7 and those of property owners, who are constitutionally guaranteed enjoyment of their property, the ordinance itself may be unconstitutional. Recent decisions have shown that establishing the criteria which must be met in order to grant a variance has not been without controversy.

           

The second factor of the variance analysis, the unnecessary hardship factor, is usually the hardest factor for an applicant to meet, and thus the crucial factor upon which the variance decision is based.8  The purpose of this article is to explain how and why the New Hampshire Supreme Court has made it easier for a landowner to show an unnecessary hardship exists.  Also, I will use a hypothetical situation to predict the likely result of applications of the new rules to give context to a discussion into whether these changes were appropriate.

 

EVOLUTION OF THE CURRENT UNNECESSARY HARDSHIP STANDARD

           

Recent New Hampshire Supreme Court decisions have collectively laid out the unnecessary hardship tests which an applicant must meet to obtain a variance.  However, potential confusion may exist for zoning board members, property owners, and attorneys not closely following the trends and the tests coming from these decisions.  A variance application which may be disapproved today could become the next fact pattern illustrating a refinement in this area of law a year from now.

           

To understand how the unnecessary hardship test evolved and the reasons for the changes, one should understand the old rule used in Governor’s Island Club, Inc. v. Town of Gilford,9 the new line started by Simplex Technologies v. Town of Newington10 (a landmark decision overruling Governor’s Island), the Bacon v. Town of Enfield special concurrence,11 which laid a foundation for the area variance test established in Boccia v. Town of Portsmouth12 (distinguishing Simplex), and the dissenting arguments in Bacon and Shopland v. Town of Enfield.13  Also, during this term, the Court decided Vigeant v. Town of Hudson and Harrington v. Town of Warner, two cases that illustrate applications of both variance tests, further refining them.14  The tests developed in these cases are summarized in the chart at the end of this article.  

           

Before Simplex, an unnecessary hardship on a landowner only existed when an ordinance unduly restricted the use to which land could be put.15  The hardship had to arise from a special condition of the land that distinguished it from other land in the same area with respect to its suitability for the use for which it was zoned.16  It was not enough that the application of the ordinance would cause the landowner to suffer some financial loss; rather, for a hardship to exist, the deprivation resulting from the ordinance must have been so great as to effectively prevent the owner from making any reasonable use of the land.17  If the land was reasonably suitable for a permitted use, then no hardship existed and the landowner was not entitled to a variance, even if the other four parts of the five-part test had been satisfied.18  If the land could not be distinguished from others in the surrounding area, a general, non-specific injustice had occurred and the only remedy was an ordinance amendment, not a variance.19  However, Governor’s Island was expressly overruled in Simplex.20  Applicants are no longer required to show that zoning ordinances deprive them of any reasonable use of the land.21

 

In Simplex, the Court held that applicants for a variance may establish unnecessary hardship by proof that: (1) a zoning restriction as applied to their property interferes with their reasonable use of the property considering the unique setting of the property in its environment; (2) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and (3) the variance would not injure the public or private rights of others.22  Citing a dissenting opinion from Justice Sherman Horton almost a decade earlier in Grey Rocks Land Trust v. Town of Hebron, the Supreme Court decided the rule used by Governor’s Island deprived landowners of constitutional property rights and was both inconsistent with earlier decisions and failed to recognize a town’s character can change.23  Until Harrington v. Town of Warner (decided more than four years after Simplex) only one case had minimally interpreted any of the Simplex prongs.24 

           

The reasoning of Harrington is instructive in how to analyze the first Simplex prong, which is the critical inquiry for determining whether an unnecessary hardship has been established.25  In Harrington, a mobile home park owner in the town of Warner wanted to expand the number of mobile home sites in his park.26  The applicant owned 46 acres but only 26 acres were being used for 33 mobile home sites.27  The applicant wanted to expand the park onto the remaining 20 acres, but Warner’s ordinance prohibited more than 25 mobile home sites on any one lot without regard to the size of the lot.28  The variance application to expand the park was granted by the ZBA.29 

           

The Court separated the first Simplex prong into three elements: (1) whether the zoning restriction interferes with the reasonable use of the property; (2) considering the unique setting of the property; (3) in its environment.30 

           

First, interfering with an owner’s reasonable use considers whether the owner is able to receive a reasonable return on the investment.31  While preventing an owner from a maximum return is not interference, the landowner need not to demonstrate that he or she has been deprived of all beneficial use of the land to show interference.32  Rather, a landowner must show the interference has resulted in more than mere inconvenience.33  Also, mere conclusory and lay opinions concerning the lack of reasonable return is not sufficient; there must be actual proof, often with monetary figures, such as evidence of cost, current market value, and decline in value.34  Here, the Court found that the landowner’s statement that without the variance he would have to return the park to the previous owner failed to show more than mere inconvenience since it was unsupported with financial evidence.35  However, the Court still found hardship in this element:  since a mobile home park was permitted in this zone the ordinance interfered with the landowner’s reasonable use.36  If the use is permitted in the particular zone that fact is given considerable weight towards finding the use reasonable.37 

           

Next, a determination of whether the hardship is a result of the unique setting of the property is required.38  This factor requires that the property be burdened by the zoning restriction in a manner that is distinct from other similarly situated property. It does not require, however, that the property be the only such burdened property.39  Rather, the burden cannot arise as a result of the zoning ordinance’s equal burden on all property in the district—the landowner must show that the hardship is a result of specific conditions of the property and not the area in general.40  The Court also found this element was met because the landowner was unable to subdivide since he lacked sufficient road frontage and a new road could not be constructed because of the configuration of the owner’s campground, existing mobile homes, and swampland.41  Moreover, improvements to the road that serviced the park would not remedy the lack of road frontage.42

           

Finally, Simplex requires consideration of the surrounding environment.  This evaluates whether the landowner’s proposed use would alter the essential character of the neighborhood.43  Here, the Court found that the ZBA’s permission of a gradual expansion of five lots per year would not adversely affect the character of the neighborhood taking into consideration the impact on schools, traffic, and availability of affordable housing.44

 

BOCCIA BASES UNNECESSARY HARDSHIP ANALYSIS ON VARIANCE TYPE

           

In May 2004, the Court split the application for a variance into two types based on whether the landowner was asking for a use or area variance.  Use variances, like the one in Simplex, allow a landowner to engage in a use that is prohibited by the zoning ordinance, while area, or dimensional, variances allow a landowner to deviate from the zoning ordinance’s specific dimensional requirements while still complying with a permitted use.45  In Boccia, a landowner needed six area variances from required setbacks on seven acres of undeveloped land in Portsmouth to construct a 100-room hotel.46  The petitioners, abutting landowners, argued that the landowner could not meet the unnecessary hardship test because a 60-room hotel could be constructed instead of a 100-room hotel, eliminating the need for the variances.47  However, the Superior Court determined that under the Simplex rule a 100-room hotel is not unreasonable just because a 60-room hotel could be built without the requirement of a variance.48  Yet the Supreme Court believed it was a problem to apply the Simplex test to determine whether an applicant whose intended use is permitted should be granted a variance from area restrictions.49  Thus Boccia held that in order for unnecessary hardship to exist when the landowner is seeking an area variance, the landowner is required to show: 

 

(1) whether an area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property; and

(2) whether the benefit sought by the applicant can be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance.50 

           

Under the first factor, a landowner does not need to show that without the variance, the land will be valueless.  Rather, the landowner must show that the proposal would be difficult or impossible to implement given the ordinance’s restrictions and that these difficulties are unique to the landowner’s property, not the area in general.51  Here, the Court evaluated the 100-room proposal and determined the first factor was met because wetlands on the property and the property’s narrow shape were special conditions unique to that property and made compliance impossible with the present 100-room design.52  Justices Duggan and Dalianis had introduced this factor in their earlier special Bacon concurrence.  To meet the first factor, the property must be uniquely burdened as compared to other similarly situated properties because zoning imposes hardship on all property.53  The Bacon concurrence revived a concept from Governor’s Island: when an ordinance equally imposes a hardship on similarly situated landowners, the proper remedy is an ordinance amendment, not a variance.54   

           

The second Boccia factor evaluates whether reasonable alternatives exist to accomplish the landowner’s proposed plan, taking into consideration whether an undue financial burden would be imposed by denying the variance55 and forcing the landowner to adopt an alternative if he or she wants to continue with his or her plan.  The landowner does not need to show the hardship amounts to a taking,56 but must show an adverse effect amounting to more than financial inconvenience.57  The Court remanded to the trial court the determination of the second factor, and suggested that examining underground parking or adding another story to the hotel to achieve the 100-room hotel without the variances were the type of alternatives it had in mind.58  Determining the undue financial burden appears to be very similar to determining a reasonable return under Harrington.

           

This new rule was based on the earlier concurring opinion in Bacon which was written to provide guidance to trial courts and zoning boards for future variance requests. It follows other jurisdictions in recognizing a distinction between use and area variances where each has a different impact on a zoning scheme.59  The distinction is necessary because use variances pose a greater threat to the integrity of a scheme whereas an area variance is a relaxation of one or more incidental limitations to a permitted use and does not alter the character of the district as much as allowing a prohibited use.60  Accordingly, courts are less likely to affirm a use variance than an area variance.61  Although the Court had previously stated it would not make the distinction, it felt RSA 674:33, I(b) Although the Court had previously stated it would not make the distinction, it felt RSA 674:33, as written, did not prevent the distinction from being recognized.62  The Simplex analysis will continue to apply to use variances.63       

           

The Court upheld its new area variance test in Shopland, a case decided less than two months after Boccia.  There, landowners applied for a variance from the Town of Enfield ZBA to expand their one-room, one-bathroom lakefront cottage by adding two bedrooms and another bathroom.64  A variance was required because the zoning ordinance prohibited structures within 50 feet of the seasonal high-water mark and this addition would not conform as the original cottage was already nonconforming within that setback.65  Also, due to the unique land problems (a stream and septic system on certain sides of the cottage and a pylon support structure) expansion was only possible to the north of the cottage because the pylons could not support a second story.66  The ZBA denied the variance because (1) the addition potentially endangered the lake’s health, contrary to public interest; (2) denying the variance did not result in an unnecessary hardship because other lots in the area suffered the same topographical problems; and (3) substantial justice provided to Shopland was outweighed by the potential loss suffered by the general public.67  The Superior Court vacated the ZBA’s decision, granting the variance using the Simplex test, but the Supreme Court reversed and remanded the case to have the Superior Court and ZBA, if necessary, analyze the situation using Boccia.68  Shopland was a 3-2 decision; retired, but specially assigned, Chief Justice Brock and Justice Nadeau dissented.  The disagreements were resolved by Vigeant and Harrington.  

 

IS THE USE/AREA DISTINCTION NECESSARY OR EVEN PERMITTED UNDER RSA 674:33?

           

In Shopland and Bacon, Justices Brock and Nadeau dissented, raising several arguments opposing the distinction between use and area variances.  First, after Simplex, comparing an applicant’s property to other property in the area is unnecessary; rather, the decision must be based on the special conditions of the property itself.69  First, after Simplex, comparing an applicant’s property to other property in the area is unnecessary; rather, the decision must be based on the special conditions of the property itself without considering any similar or even identical characteristics of other properties in the zoning district.  Because this requirement was unnecessarily read into the first prong of the Simplex test, the second prong of the area variance test was developed, but there is no need to consider alternatives in deciding whether the proposed use is reasonable because zoning boards are not permitted to consider alternatives when deciding on the proposed use.70  Considering alternatives does not respect landowners’ constitutional rights,71 undermining the strides made to safeguard those rights.72

           

Furthermore, the statute’s language has foreclosed the need for a distinction because the statute states that a showing of unnecessary hardship is always required whenever a landowner asks for a variance, regardless of the type sought.73  Lastly, adding this distinction may lead to more categories of variances, each with their own tests, providing no guidance to zoning boards and certainty to landowners.74

           

Vigeant v. Town of Hudson, decided in early 2005, resolved some of these issues and refined the new area variance distinction, but left some issues unanswered.75  First, the Court gave meaning to proposed use in the first factor of the area variance test—a proposed use is presumed reasonable if it is a permitted use under the ordinance.76  In this case, the landowner, Vigeant, wanted to build a five-unit multifamily dwelling on the property and since the ordinance permitted this type of building in a district zoned for business, the first prong was met.77  The rest of the first prong was met as the court upheld the trial court’s finding that the property was unique not only in its setting but in its very character and description, meaning that without the variance, only 200 feet of the 770 feet in length and 20 to 25 feet of the over 100 feet in width could be developed due to the setbacks and a wetland on the property.78  This suggests the Court no longer considers any similarities of surrounding properties, or general area in its analysis, as laid out in earlier decisions, but opposed by Justice Nadeau in his Bacon dissent.  In the Court’s analysis there is no mention why Vigeant’s lot was uniquely set in the environment. 

           

For the second factor, the Court clearly stated that for area variances, it does not consider a smaller or different project to be an “other method reasonably feasible for the applicant to pursue.”79  The Court suggested that modifying the proposal in a way that will achieve the same benefit as the original proposal is the only viable alternative.  As demonstrated below, this might suggest only a poorly planned project and variance application will be subjected to a dimensional restriction. 

 

A HYPOTHETICAL

           

Perhaps the simplest way to understand these tests is to analyze a possible scenario and likely outcomes.  For example, what if a landowner owns almost 50,000 square feet of shorefront property with over 300 feet of lake frontage and wants to subdivide the property into two separate properties, but the town ordinance requires all shorefront properties to have 150 feet of lake frontage and a minimum lot of 30,000 square feet.  Also, consider the property is unlike properties in the area because the shoreline indents into the property resulting in it being narrower.  If this situation sounds familiar, it should, because it is nearly identical to the situation in Governor’s Island, where under the pre-Simplex rule, the variance was denied because application of the ordinance did not prevent the owner from making any reasonable use of the land.  However, under the current tests, a variance might be granted (assuming the other four factors used in determining whether to grant a variance are met). 

           

First, is this application for a use or an area variance?  Up until Harrington, an applicant was without clear guidance from the Court because two requests are being made.  Assuming the town has residential designations based on density, this application may be asking to change the permitted density.  However, for this hypothetical situation, assume there are no designations distinguishing the residential density, so the applicant is requesting an area variance.  Thus, under the first factor of the Boccia test applying the Vigeant case, since the applicant’s proposed use is permitted under the ordinance, it is presumed reasonable.  Also, as Vigeant suggests, the Court no longer looks at similarly situated properties in the general area to determine the uniqueness of the landowner’s property.  Here, the property has special conditions since it is nearly 20,000 square feet larger than the minimum lot size and due to the shoreline, the property was narrower in some places, thus compliance with the subdivision ordinance would be impossible without the variance. Thus, the first factor is satisfied.  Under the second factor, without the area variance, the landowner will not be able to achieve the benefit sought.  As required by Vigeant, only alternatives that will achieve the same benefit the landowner seeks will be considered. Here no alternatives exist that will allow the landowner to achieve the benefit of subdividing the property in two (maybe this means an area variance analysis was not appropriate because it is impossible for a ZBA to deny a variance in this situation if the first factor is met and no possible alternative exists to achieve the same benefit of subdividing).  Also considered in this factor is that the landowner must show the hardship amounts to more than a financial inconvenience.  Denying someone an opportunity to subdivide a property may fall into this category, although it does probably not come close to an unconstitutional taking.  But, if no alternative to subdividing exists, it does not make sense to consider this part of the second factor.  Thus, an area variance should be granted in this hypothetical.

           

Harrington provides guidance on determining whether an area or use variance was requested and is now the threshold question for the court.80  Under Harrington, if the purpose of the particular zoning restriction is to preserve the character of the surrounding area it is a use restriction.  If, however, the purpose of the restriction is to place incidental limitations on an otherwise permitted use, it is an area restriction.81  The Court must interpret the zoning ordinance to determine the purpose of the restriction.82  These propositions reduce uncertainty in New Hampshire variance law because prior to Harrington, it was unclear whether some nonconforming parcels required a use or area variance.83  Thus, it seems like a more appropriate analysis may be to apply the Simplex test in the above hypothetical.

           

Simplex and Harrington guides the use variance analysis but it is somewhat similar to analyzing the first prong of Boccia.  I believe a court would find the landowner in this situation would likely meet the unnecessary hardship test.  First it would be easy for a landowner to present to a board or court the approximate cost of prohibiting the subdivision, which the landowner could have done in Harrington, had he known this would be a considered factor in a court’s decision.  As required by both the use and area variance tests, the landowner needs to show more than mere inconvenience. Here, it is likely a court will find the subdivision would be the maximum return on the investment.  Thus, because lakefront property usually appreciates, preventing the landowner from subdividing likely will still allow his investment to grow in value.  However, like Harrington, where the landowner wanted to increase the number of mobile homes over the number allowed by the ordinance in a zone permitting mobile homes, here the landowner wants to add a residential home in an area zoned for residential homes.  As stated in Harrington, this fact provides considerable support in finding the use reasonable, hence likely satisfying the first factor of the first prong in the use variance analysis.

           

Second, I believe the area variance analysis used above will hold for the second prong of the first factor of the use variance test. 

           

Finally, one property nonconforming to the square footage requirement by 10,000 square feet, will not likely alter the essential character of the neighborhood.  In Harrington, adding five mobile home sites each year was found not to alter the character.  Similarly, adding one permanent residential home will not adversely affect the neighborhood.

           

The second Simplex factor might be tougher to predict because there is no case law interpreting it, even after Harrington.  Generally, zoning ordinances contain general purpose statements.84  So, if the general purpose of the zoning ordinance is to control density to certain lot sizes, a relationship exists between it and the restriction in the above scenario.  But, the test also requires a fair and substantial relationship to exist between the density restriction and property in question.  Here, the proposed subdivision does not result in a substantial shortage of the required square footage, unlike if the proposed subdivision was for three or four lots.  Thus, the restriction may not be fair.  The last factor, also not yet interpreted by the Supreme Court, would not seem to be violated as others’ public and private rights would not be injured.  It is not clear how subdividing a piece of property like this could adversely affect another’s rights and how it could be quantified, except in reduced property value.  It is unknown how a court would treat this scenario, but it seems an argument can be made to support a variance under either type.  Given the absence of any analysis by the Court in either Harrington or Rancourt, it is hard to give clear guidance to landowners or town officials how the second and third Simplex factors are to be applied in concrete cases.   

           

The uncertainty on this issue is a concern, especially given that the special concurrence in Bacon urged that a distinction was necessary to give boards and trial courts guidance.  This case-by-case guidance from the New Hampshire Supreme Court has arguably prevented zoning boards from making well-informed and confident decisions.  Perhaps it would be more appropriate for the Legislature to define what the appropriate tests should be.  This may be what Justice Nadeau was referring to in his Simplex dissent when he said RSA 674:33, I(b) requires a showing of unnecessary hardship whenever a landowner asks for a variance regardless of the type of variance, as some states allow an area variance to be granted using a “practical difficulty” standard instead of an “unnecessary hardship” standard and in some of these states, practical difficulty is a lower standard to meet.85  The Bacon concurrence could be interpreted to mean that the area variance should be judged using a lower standard.  The outcomes of recent Supreme Court decisions on the issue also suggest the variance is being granted on a lesser standard than unnecessary hardship traditionally required.  This question was clearly answered by Harrington—”a use variance requires a greater showing of hardship than an area variance because of the potential impact on the overall zoning scheme.”86  Accordingly, the Court has established different degrees of “unnecessary hardship” under RSA 674:33, I(b).

           

Coincidently, the New Hampshire House of Representatives introduced a bill to overrule the Boccia decision which would amend RSA 674:33I by adding a paragraph (c).  The bill as amended by the House read:

(c)(1)  For purposes of this subparagraph, “unnecessary hardship” shall mean that because of the unique and particular characteristics of a property, its setting, and environment, the board finds that:

(A)  The property cannot be reasonably used in strict conformance with the ordinance and a variance is necessary to enable a reasonable and economically viable use of it; or [sic]

(B)  No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of the provision to the property, and the proposed use is a reasonable one.

(C)  The variance will not injure the public or private rights of others.

(2) “Unnecessary hardship” as defined in subparagraph (c)(1) shall apply to both use variances and area variances.87

           

According to the House Record published on March 25, 2005, the purpose of the bill was to reverse recent decisions of the New Hampshire Supreme Court.88  The view was that the decisions have created unnecessary complexity in variance law and have made area requirements nearly impossible to enforce.89  The House committee agreed that the legislature, not the courts, must make land use policy.90  However, on June 2, 2005 House Bill 359 was killed in the Senate.91 

 

CONCLUSION

           

“Over time and when added together, the body of decisions made by a city or county on zoning variances have a decided impact on the entire community.”92  It could also be said a court’s actions in reducing a town’s ability to plan its community can also have a decided impact on the entire community.  Although only two area variance cases have been decided since Boccia, it is not unreasonable to suggest that zoning boards may be losing their power to hold landowners to area restrictions imposed by local zoning ordinances. 

           

New Hampshire RSA 674:16, I authorizes municipalities to adopt ordinances for the purpose of promoting the health, safety, or general welfare of the community.93  Accordingly, as long as a municipality has not exceeded its delegated police powers, either by ensuring the ordinance is substantially related to the purpose for the grant of power or by protecting the constitutional rights of the landowner, the ordinance or denial of a variance is valid.94  The Simplex decision set the new constitutional test for granting variances, but the Court arguably exceeded its authority in Boccia by shifting power too far away from zoning boards without constitutional justification.  And since the Legislature has lawfully delegated its police power to towns to reasonably preserve their character and control development, it is not surprising the House of Representatives tried to expedite a bill to overrule Boccia.

           

Landowners should not forget that three other statutory tests95 and one other judicial test96 must be met in addition to the unnecessary hardship factor before a ZBA will grant a use or area variance.  These other four factors may potentially receive more attention if the unnecessary hardship factor no longer remains the hardest factor for an applicant to meet.


A table titled Unnessary Hardship Under RSA 674:331(b) accompanies this article and can be found on page 47.

Endnotes

1          15 Peter J. Loughlin, New Hampshire Practice Land Use and Planning, § 24.02, 295 (Lexis 2000).

2          RSA 674:33, I(b) (1998) (emphasis added). 

3.         Simplex Technologies, Inc. v. Town of Newington, 145 N.H. 727, 729 (2001).

4.         N.H. Const, pt. 1, art. II. 

5.         Id. at pt. 1, art. XII.

6.         Bacon v. Town of Enfield, 150 N.H. 468, 477 (2004) (Duggan & Dalianis, JJ., concurring).

7.         RSA 674:16 (1996).

8.         Bacon, 150 N.H. at 475.

9.             Governor’s Island Club, Inc. v. Town of Gilford, 124 N.H. 126, 130 (1983).

10.        145 N.H. at 731.

11.        Bacon, 150 N.H. at 475.

12.        151 N.H. 85, 94 (2004).

13.          Shopland v. Town of Enfield, 151 N.H. 219, 223 (2004) (Nadeau, J. & Brock, C.J., dissenting); Bacon, 150 N.H. at 480 (Nadeau, J. & Brock, C.J., dissenting).

14         Vigeant v. Town of Hudson, 867 A.2d 459 (N.H. 2005); Harrington v. Town of Warner, ___ N.H. ___, 2005 Lexis 48 (Apr. 4, 2005).

15         Governor’s Island, 124 N.H. at 130 (denying subdivision into two lots (each lot would have lacked the ordinance’s 30,000 square footage requirement by only a few thousand square feet) because one 49,683 square foot lot was a suitable use of the property).

16.        Id.

17.        Id.

18.        Id.

19.        Id.

20.        Simplex, 145 N.H. at 731.

21.        See Rancourt v. City of Manchester, 149 N.H. 51, 53 (2003).

22.        Simplex, 145 N.H. at 731-732.

23.        Id. at 730-731 (citing Belanger v. City of Nashua, 121 N.H. 389, 393 (1981) (vacating denial of a variance to expand non-conforming commercial use in residence, because the surrounding area had changed since it was originally zoned for residential use)).

24.       See Rancourt, 149 N.H. at 53-54 (finding because the property was in a country setting, larger than other surrounding lots, rear of lot was uniquely larger than front, and proposed 1.5 acres where horse would stay was enclosed by woods, granting of variance to stable the horse was affirmed).

25.         Harrington, 2005 N.H. LEXIS 48 at *11.

26.        Id. at *2.

27.        Id.

28.        Id. at **2, 9.

29.        Id. at *2.

30.        Id. at **11-14.

31.        Id. at *12.

32.        Id.

33.        Id.

34.        Id.

35.        Id. at *16.

36.        Id. at *17.

37.        Id.

38.        Id. at *13.

39.        Id.

40.        Id.

41.        Id. at *17

42.        Id.

43.        Id. at *14.

44.        Id. at *18.

45.        Bacon, 150 N.H. at 476.

46.        Boccia, 151 N.H. at 88.

47.        Id.

48.        Id. at 89.

49.        Id. at 91.

50.        Id. at 92.

51.        Id. at 92-93.

52.        Boccia, 151 N.H. at 93.

53.        Bacon, 150 N.H. at 478 (Duggan & Dalianis, JJ., concurring).

54.        Id. at 479.

55.        Boccia, 151 N.H. at 92.

56.        Bacon, 150 N.H. at 468, 478.

57.        Boccia, 151 N.H. at 93.

58.        Id. at 94.

59.        Bacon, 150 N.H. at 475, 477.

60.        Id. at 477.

61.        Id.

62.        Id. (citing Ouimette v. City of Somersworth, 119 N.H. 292, 295 (1979)) (The Bacon concurrence is also illustrative of how to apply the Boccia test.  Bacon requested a variance for a shed to hold a propane boiler to heat the cottage because the shed was constructed next to the cottage within a 50-foot setback from the seasonal high water mark.  The concurrence would have denied it using the soon to be established Boccia test.  First her property was not unique compared to others in the area affected by ordinance, thus they were all similarly burdened.  Second, alternatives though arguably not as “practical, saf[e], and . . . cost efficient,” existed.  The boiler could have been installed inside the house or garage, which only amounted to an inconvenience, not a hardship.).

63.        Boccia, 151 N.H. 94.

64.        Shopland, 151 N.H. at 220.

65.        Id.

66.        Id. at 220-21.

67.        Id. at 221.

68.        Id. at 221-23.

69.        Bacon, 150 N.H. at 481-82 (Nadeau, J. & Brock, C.J., dissenting)

70.        Id. at 482.

71.        Id.

72.        Shopland, 151 N.H. at 224 (Nadeau, J. & Brock, C.J., dissenting).

73.        Id. (citing Ouimette v. City of Somersworth, 119 N.H. 292, 295 (1979)).

74.        Id.

75.       Vigeant, 867 A.2d 459 (plaintiff landowner sought variance for required setbacks (including one wetland) to build a five-unit multifamily building on property roughly 770 feet long by 129 feet wide).

76.        Id. at 464.

77.        Id.

78.        Id. at 465.

79.        Id.

80.        2005 LEXIS 48 at *7.

81.        Id.

82.        Id. at *9 (applying a plain-meaning test to determine the ordinance’s purpose).

83.       It should be noted the situation in Harrington seemed to fall into that category because even though the use was permitted in the zone, a use variance was still necessary because the ordinance limited the number of mobile homes. 

84.       See, e.g., Concord Mun. Code, § 28-2-2(b)(1) (2001) (“The Open Space Residential (RO) District is established to accommodate single-family dwellings at densities not exceeding one-half (1/2) of a dwelling unit per acre, as well as cluster developments, agricultural, forestry, and low impact outdoor recreational uses outside of the Urban Growth Boundary adjacent to environmentally sensitive areas and where municipal utilities are generally not present or anticipated.”).

85.        3 Edward H. Zieglar, Rathkopf’s The Law of Zoning and Planning, § 58, at 58-100 (West 2001).

86.        2005 LEXIS 48 at *11.

87.        N.H. H. 359, 159th Leg., (Mar 30, 2005).

88.        N.H. H. Rec. Vol. 27, No. 24, 159th Leg., (Mar 24, 2005).

89.        Id.

90.        Id.

91.        N.H. Sen. J. 159th Leg., 432 (2005).

92.      David W. Owens, The Zoning Variance:  Reappraisal and Recommendations for Reform of a Much-Maligned Tool, 29 Colum. J. Envtl. L. 279, 280 (2004).

93.        RSA 674:16.

94.        3 Zieglar, Rathkopf’s The Law of Zoning and Planning at §§ 2:2-2:9, 2-2-2-22.

95.        RSA 674:33I(b) ((1) zoning ordinance can not be contrary to the public interest, (2) the spirit of the ordinance shall be observed, and (3) substantial justice shall be done).

96.        Simplex, 145 N.H. at 730 (ZBA may not grant a variance if it diminishes the value of surrounding properties). 

Jeremy HarmonJeremy Harmon is a third-year student at Pierce Law Center, Concord, New Hampshire.

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