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Bar Journal - Fall 2005

Unnecessary Hardship under RSA 674:331(b)

By:


The following accompanies the article The New Zoning Variance Cases: Analyzing Unnecessary Hardship Under RSA 674:33 on page 40.

 

Simplex/Harrington: USE VARIANCES

 

(1) A zoning restriction as applied to their property:

            (a) interferes with their reasonable use of the property;

                        (i) Whether the owner is able to receive a reasonable return on the investment must be considered.

                                    (A) Preventing an owner from a maximum return is not interference, but, the landowner does not need to show he or she has been deprived of all beneficial use of the land to show interference either.  Rather, a landowner must show the interference has resulted in more than mere inconvenience. Also, mere conclusory and lay opinions concerning the lack of reasonable return is not sufficient; there must be actual proof, often with monetary figures, like evidence of cost, current market value, and decline in value.

                        (ii) If the use is permitted in the particular zone that fact is given considerable weight towards finding the use reasonable.

            (b) considering the unique setting of the property;

                        (i) This factor requires that the property be burdened by the zoning restriction in a manner that is distinct from other similarly situated property, but, it does not, require that the property be the only such burdened property. 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.

            (c) in its environment;

                        (i) Cannot adversely affect the character of the neighborhood.

 

(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.

 

 

Boccia/Vigeant: AREA VARIANCES

 

(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

            (i) A proposed use is presumed reasonable if it is a permitted use under the ordinance.

            (ii) The property must be uniquely burdened as compared to other similarly situated properties.  Or does it (see Vigeant)?

 

(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.

            (i) Modifying it in a way that will achieve the same benefit as the original proposal is the only viable alternative; in other words if it doesn’t achieve the same benefit, it is not considered to be an alternative; then

            (ii) Considers if an undue financial burden would be imposed by denying the variance.  The landowner does not need to show the hardship amounts to a taking, but must show an adverse effect amounting to more than financial inconvenience

 

 

 

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