"UNNECESSARY HARDSHIP," the most debated concept in the law of zoning variances, gained a measure of clarity late last month with a seven-page Supreme Court decision specifying that zoning boards must now, for the first time, apply different standards for hardship depending on whether an applicant requests a use or an area variance.

Further, the 4-0 decision expressly authorizes lay boards to look at the financial cost of the proposal, in comparison with the cost of development alternatives; see Boccia v. City of Portsmouth, No. 2003-493 (May 25, 2003).

Whether the new approach favors towns or landowners depends in part upon whom you ask, and also upon whether the new approach is compared to traditional New Hampshire variance law, or to the state of the law since the watershed hardship ruling in Simplex Technologies, Inc. v. Town of Newington, 145 NH 727 (2001).

The Boccia decision was authored by the newest Supreme Court justice, Richard E. Galway, joined by Justices Linda S. Dalianis and James E. Duggan, who signaled the Boccia result earlier this year in a concurrence in Bacon v. Town of Enfield, 150 NH 468 (Jan. 30, 2004). Chief Justice John T. Broderick, who wrote the plurality opinion in Bacon, resolving that case on the "spirit of the ordinance" prong of the variance test, was the fourth justice joining the Boccia opinion.

Justice Joseph P. Nadeau did not sit, because his daughter, Superior Court Associate Justice Tina L. Nadeau issued the underlying ruling upholding the hardship finding made by the Portsmouth Board of Adjustment (BOA).

The Boccia controversy began more than 15 years ago when would-be hotel developer Raymond Ramsey petitioned to rezone his vacant residential Portsmouth lot, which is adjacent to Route 95 and directly across Market Street Extension from a 125-room Marriott Hotel.

The Superior Court eventually granted the petition to rezone, and Ramsey applied for six area variances (to front, side and rear setbacks) to fit his proposed 100-room hotel on the site and maintain existing wetlands as conservation area. Twice the BOA granted all six variance requests. A group of objectors, including the named plaintiff, Michael Boccia, and also the individual who owns the land under the Marriott, appealed the first approval to the Superior Court, and won a remand for reconsideration under the then newly released Simplex decision.

After the second BOA approval, Superior Court Judge Nadeau concluded that the BOA had considered the reasonableness of Ramsey's proposal in the context of his particular site, and that Ramsey's 100-room proposal was not made unreasonable by the city's assertion that a 60-room hotel would be permissible without the six variances.

Nadeau's ruling may have been a proper application of the Simplex test, according to Galway's Boccia opinion, but Simplex involved a request for a use variance, and additional issues become important in the context of a request for an area variance. Galway cited the Bacon concurrence several times, admittedly using it for guidance in establishing the new area variance test.

Bacon involved the construction of a 4-foot by 5-foot shed to hide a propane tank within a lakeside residential setback. A plurality of the Supreme Court affirmed the zoning board's refusal to grant a variance, noting that the homeowner could have located the tank in the attic or garage without violating the setback.

The Bacon concurrence, authored by Duggan, concurred in the result, but would have based the decision squarely on the issue of hardship. The concurrence distinguished Simplex, which involved a commercial use variance, and urged that area variances should be treated differently.

First, the Bacon concurrence argued, use variances pose a greater threat to the integrity of a zoning scheme because "the fundamental premise of zoning laws is the segregation of land according to uses." In contrast, area variances involved permitted uses that are given exception from strict compliance with physical standards like setbacks.

Second, the Bacon concurrence urged that the economic impact of the zoning restriction on the landowner is a proper factor for consideration of whether the proposed use is reasonable.

"[I]n considering whether to grant an area variance, courts and zoning boards must balance the financial burden on the landowner, considering the relative expense of available alternatives, against the other factors enumerated here and in Simplex," Duggan wrote.

In dissent, state Supreme Court Justice Nadeau, joined by former Chief Justice David A. Brock (retired, sitting by special appointment), argued that the concurrence had improperly read additional requirements into the Simplex test. "Zoning boards are not permitted to consider whether other alternatives exist in deciding whether the requested use itself is reasonable," Nadeau wrote.

But, in Boccia, the new majority of the Supreme Court adopted, and further refined, the Bacon concurrence. "[W]e believe that distinguishing between use and area variances will greatly assist zoning authorities and courts in determining whether the unnecessary hardship standard is met," Galway wrote.

"Accordingly, when the unnecessary hardship prong of the variance test is applied to use variances, we apply Simplex. When the unnecessary hardship prong is applied to area variances, we apply the test developed below."

Galway then set out the five statutory variance criteria, and under the statutory hardship language, inserted:

1. Applicant seeking use variance - Simplex analysis
1. The zoning restriction as applied interferes with a landowner's 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.
3. The variance would not injure the public or private rights of others.
2. Applicant seeking area variance - Boccia analysis
1. An area variance is needed to enable the applicant's proposed use of the property given the special conditions of the property.
2. The benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance.

Because the record before the Supreme Court did not contain sufficient information about feasible alternatives to Ramsey's 100-unit hotel plan, the court remanded to the BOA for further proceedings using the new test.

Attorneys React

Portsmouth attorney Charles A. Griffin argued Ramsey's case to the Supreme Court. Since the decision came down, he has presented other proposals to two separate zoning boards and seen them both struggle to understand and apply the new test.

"They are feeling their way along," Griffin said. "We will all be learning as we go." For developers, the new test may mean bringing an economist along on the bigger proposals, Griffin said. "If the issue is: Can you achieve the same result with an extra story or underground parking? You would need to present some kind of cost analysis."

BOA counsel Robert P. Sullivan, notes that zoning boards are made up of non-lawyers and that most do not have access to professional staff, as does the Portsmouth BOA. "I have a concern," Sullivan said, "that no matter how clearly these decisions are written, they are becoming really complicated for the uninitiated to follow."

Sullivan expects that the court will further refine the variance tests. "At oral argument there were a lot of questions about the financial aspects of Ramsey's application. If the history of this case is any indication, I expect to see it go back to the Supreme Court after this remand and we will see more clarification on this point."

Portsmouth attorney Thomas M. Keane, who represented Boccia, et al., before the BOA and the trial court, sees the decision as an important and useful, if imperfect, clarification. "Simplex attempted to relax the variance standard, but Simplex could be read two ways, and it was read two ways by the court. The new definition is a good one; it is a much more practical approach."

Land use attorney Randall F. Cooper sees the Boccia opinion as more complex. "At first blush, the strict language of the Boccia test for an area variance appears to be a step backwards from the "reasonable use" standard of Simplex, and returning to the "special condition peculiar to the subject parcel" hardship standard of Rowe v. N. Hampton, 131 N.H. 424 (1989) and Carbonneau v. Town of Exeter, 119 N.H. 259 (1979)."

"But," Cooper added, "dicta in the Boccia opinion also seems to allow more flexibility, in that the court refers to special conditions that make it 'difficult or impossible to comply with applicable setbacks or other restrictions....' "Only time-and more case law-will tell what degree of difficulty is sufficient to permit an area variance."

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer