A NH SUPREME Court ruling on Jan. 29 has created a much less stringent standard for obtaining a zoning variance and, in so doing, may make it easier for property owners to make changes to their property.

In Simplex Technologies, Inc. v. Town of Newington & a., the Supreme Court reversed a Superior Court decision upholding the town’s denial of a variance request from Simplex. Both the town’s zoning board and Superior Court Judge Richard E. Galway had determined that Simplex had not proven a hardship would exist if the variance were denied.

Simplex was seeking a variance to develop 6.2 acres of its land, zoned industrial, into commercial property on which to locate a bookstore and family restaurant. The Simplex land is located along highly developed Woodbury Ave., across from a mall and neighbored by a mini-mall, car dealership, bank and other commercial buildings.

The Supreme Court ruled that under these circumstances, the standard for "hardship" that was applied in this case and has long been used by NH zoning authorities has been too high. "We believe our definition of unnecessary hardship has become too restrictive in light of the constitutional protections by which it must be tempered," wrote Justice Joseph P. Nadeau in the court’s decision.

"In consideration of these protections, therefore, we depart today from the restrictive approach that has defined unnecessary hardship and adopt an approach more considerate of the constitutional right to enjoy property," Nadeau said.

The Supreme Court had established the once-stringent hardship standard through recent case law. Included were Governor’s Island Club v. Gilford in 1983, in which the court overturned a zoning board grant of a variance, finding that no hardship was demonstrated. The court ruled that for hardship to exist, "the deprivation resulting from application of the ordinance must be so great as to effectively prevent the owner from making any reasonable use of the land."

Later, in Grey Rocks Land Trust v. Town of Hebron, the court again overturned the granting of a variance, this time stating that "[t]he uniqueness of the land, not the plight of the owner, determines whether a hardship exists." Justice Sherman Horton dissented in Grey Rocks, criticizing the court’s restrictive definition of necessary hardship. In his dissenting opinion, Horton suggested that the court revisit its hardship standard in the appropriate case.

Simplex v. Newington, it seems, was that appropriate case, said Portsmouth attorney Peter Loughlin, who represented the Town of Newington in the case. Loughlin believes that the court’s decision had little to do with the actual variance and more to do with the hardship issue.

Loughlin said that since Grey Rocks in 1992, the Supreme Court has heard only two zoning cases, both of which resulted in the granting of a variance. The court, Loughlin said, appeared ready to take a less restrictive approach to zoning and was able to establish a more liberal hardship standard in Simplex. "This case came along at the right time for the court," said Loughlin.

Loughlin believes that zoning changes currently being recommended in Newington should address the Simplex land use issue, allowing commercial use of the proposed property, so the new hardship standard will likely not affect the final outcome of the case.

But it will affect zoning boards across the state, according to attorney H. Bernard Waugh Jr., of Gardner & Fulton in Lebanon. Waugh was chief legal counsel for the New Hampshire Municipal Association (NHMA) for 15 years and is known as one of the state’s municipal law experts. He filed an amicus curiae brief for the NHMA in Simplex v. Newington.

The Supreme Court’s new definition of unnecessary hardship (see box) may create more confusion than clarity, according to Waugh. "It creates a lot of chaos. You had 30 to 35 years of fairly consistent and well-settled rules in terms of what you have to show for a (zoning) variance, now that standard has been set aside," he said.

"I think that’s unfortunate, especially since the court hasn’t cited a lot in terms of unnecessary hardship to guide zoning boards with this new standard," said Waugh. "I think it could have been a good thing if it had been clearer."

Waugh said that there is already some confusion over the new standard: many are putting the emphasis on a zoning restriction interfering with the property owner’s "reasonable use of the property," but are glazing over the second half of part 1 of the standard—"considering the unique setting of the property in its environment."

"People are not looking carefully at what this standard means and, I believe, are putting the emphasis in the wrong place," said Waugh. "Still under this definition of hardship, you have to show something different about this property that exempts it from the zoning ordinance. It’s still a property-specific decision," he said.

Waugh said that the new standard is written in such a way that people are misinterpreting, or ignoring, its "unique setting" component. He believes that it will take a period of trial and error—and perhaps a few more zoning cases in front of the Supreme Court—before the unnecessary hardship standard takes the affect that the court intended. "There will be a shakedown period before they get this to where they want it to be," Waugh said.

Loughlin agreed. "I suspect it’ll take two or three more Supreme Court cases before we all get a handle on it. In the meantime, we have to do our best to divine what’s really intended," he said.

Although his client technically lost the case, Loughlin feels that it was, in a sense, for a good cause. He believes that the Supreme Court’s decision is pointing NH zoning law in a more liberal direction, which he considers a welcome change. "The standard for granting variances needed to be loosened. Since 1983, the standard has been so strict as not to afford a reasonable opportunity to obtain relief," Loughlin said.

He agreed with Waugh that applying the new hardship standard will likely be difficult for zoning boards and other planning authorities initially, "because it’s not as precise and hasn’t stood the test of time," he said. "But there was a growing consciousness that the hardship test needed to be revisited," said Loughlin.

"I see this as giving [zoning] boards the flexibility to deal with situations in an appropriate manner. The court is saying boards should be more focused on private property rights rather than having a ‘no way do you qualify [for a variance]’ attitude," Loughlin said.

"The hardship test was just too tight."

Waugh said that it’s too early for towns to be feeling the impact of the Simplex decision, but that "word is getting around." He expects that the more liberal hardship standard will result in a flood of variance applications—from new applicants and from those whose variance requests were previously turned down. "It’s easy to argue ‘reasonable use’—a lot of applicants will probably do so and disregard the other elements of the standard," Waugh said. "I don’t think that’s what the court intended."

Waugh added that the change will likely also raise the question of whether a variance application can be revisited once rejected. Case law such as Fisher v. Dover states that unless there has been a material change of circumstances or the variance application is for a substantially different use, a rejected application can’t be revisited, said Waugh. "It’s an open question. Usually the law is that you can’t come back and open an old variance case with new case law, but people will try," he said.

Waugh agrees that the unnecessary hardship standard used for years in NH was perhaps too strict, but believes that the new case law set forth by the Supreme Court in Simplex v. Newington isn’t quite the answer. "The law of variances could have been widened by an inch, instead it was widened by a foot," Waugh said.

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