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Bar News - August 13, 2004 Supreme Court Again Wrestles with "Unnecessary Hardship" Decision By: Deborah A. Fauver Shopland v. Enfield Decision  A ZONING VARIANCE case that lay pending for months while the Supreme Court hammered out the new unnecessary hardship test announced this spring in Boccia v. City of Portsmouth was released July 15, reversing a variance approval and directing that the superior court work through the Boccia analysis in the context of a request by shoreline cottage owners to nearly double their seasonal residence. In dissent, Justice Joseph P. Nadeau, joined by former Chief Justice David A. Brock, argued that Boccia [pronounced BO-sha] was wrongly decided, and trampled on landowners' constitutional rights. Unnecessary hardship has been the subject of three Supreme Court opinions in the last 13 months. The court remains sharply divided on the issue, with Nadeau and Brock (who is now retired and sits only by special appointment) increasingly in the minority. "There has been very little change in New Hampshire zoning law over the last 20 years, but clearly we are now in a very difficult period," said Barry Schuster, attorney for Russell and Lindsay Shopland, who own the shore-side cottage at issue in the latest case. The Shoplands' 378-square-foot seasonal cottage on Crystal Lake in Enfield is almost entirely within the 50-foot setback from the lake; behind the house, the land slopes sharply upward to the road. The Shoplands applied for a variance, seeking to add a 338-square-foot addition for two bedrooms and a bathroom, roughly parallel to the shoreline. A second-story addition would have been allowed by the zoning ordinance, but the cottage is on pylons, and the Shoplands argued that putting in a foundation to support the second story would be too expensive, result in a greater environmental impact, and make the house more visible from the lake. The Enfield ZBA concluded that the Shoplands had not shown an unnecessary hardship. Superior Court Judge Peter W. Smith vacated the variance denial, finding that the Shoplands had met the then-controlling test announced by a unanimous court in Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001). Meanwhile, another Enfield homeowner, Maureen Bacon, had appealed the ZBA's denial of her variance request for a small boiler shed addition to her home, which is also substantially within the lakefront setback. Judge Robert K. Morrill upheld the ZBA. The Bacon case was argued to the Supreme Court first, in June 2003, with the ZBA's attorney, Barton Mayer, arguing that the Simplex test is so easily met by applicants that it substantially undermines the very concept of zoning. For Bacon, Schuster argued that the new boiler was a reasonable upgrade to a nonconforming pre-existing structure, and that the new shed would be barely visible from the lake and abutting properties. In October 2003, with the Bacon decision still pending, Schuster and Mayer argued the Shopland appeal to the Supreme Court. The Bacon decision was released first, with a lead opinion by Justice John T. Broderick Jr., concluding that the Bacon variance request did not pass the spirit of the ordinance prong of the statutory variance test; Justices James E. Duggan and Linda S. Dalianis concurred in the result, but set the course for the future by squarely confronting the unnecessary hardship issue and laying out a new distinction between use and area variances. Justices Nadeau and Brock dissented, ar guing that the Bacon boiler shed met the Simplex test, and the zoning board, in the face of a reasonable request, had no business considering whether the boiler could have been put within the existing structure. The Boccia case, involving a hotel developer's request for six area variances on a single commercial lot in Portsmouth, was argued two months later, in March 2004, and released on May 25, establishing a new test for unnecessary hardship, based on the reasoning of the Bacon concurrence. The court's newest judge, Justice Richard E. Galway, wrote the Boccia decision, joined by Justices Broderick, Dalianis, and Duggan. Neither Nadeau nor Brock sat on the Boccia case. Two more months passed before the court issued the Shopland decision, on July 15; the majority opinion, written by Justice Duggan, joined by Broderick and Dalianis, does little more than remand for consideration under Boccia. Shopland DissentDissenting in Shopland, Justices Nadeau and Brock continued to support the Simplex test. "I believe that the court erred by creating this needless [Boccia] test and constructing this arbitrary distinction between variances, unintended by both Simplex and RSA Ch. 674," Nadeau wrote. "By restricting the application of Simplex to use variances, the court undermines the substantial strides we made to better safeguard the constitutional rights of all landowners and to more properly balance those rights against the necessity of zoning ordinances," Nadeau wrote. "Unlike the majority, I do not believe that Boccia and Simplex can co-exist harmoniously; for the protections afforded in Simplex to have weight, I believe that case, alone, must govern all requests for variances," Nadeau wrote. In Boccia, the court specifically retained the Simplex test for use variances, and established a new test for area variances, to be granted when: 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. Attorneys Comment How zoning boards will interpret the new test is anyone's guess. But Schuster is hopeful that having more concrete criteria will be better for boards, and applicants, in the long run. "The Supreme Court [in Simplex] was overdue in loosening the unnecessary hardship standard, because what was happening was that zoning boards had recognized the need for a safety valve, and had been going around it in practice," Schuster said. "Now there is an obvious effort [on the part of the court] to come up with more specific standards." Mayer, who represents multiple zoning boards, remembers that many developers interpreted Simplex as more than just a loosening of the traditional variance test. It also appeared to Mayer, in the context of the Bacon oral argument, that "several members of the court were really concerned about what they had wrought with the Simplex test." The recent opinions, in Bacon, Boccia, and Shopland, represent an ongoing debate within the court, and within the municipal bar. "I have never seen such an effort on the part of the court to be educational," Mayer said of the recent spate of variance cases, noting in particular the carefully enunciated Boccia test. "But this is an evolutionary phase; we need to wait and see how the court will apply this test to different fact patterns." Municipal attorney Bernard Waugh suggests that the two-prong Boccia test "will be extremely difficult for local boards to apply until the Court gives further clarification." "There are two basic problems with the test," Waugh said. "First, an applicant can manipulate the details of the application such that the first prong of the test is virtually impossible to flunk." "I can't help but think that there was meant to be some implication in the court's decision that the physical scope of the proposal must be an otherwise reasonable one for the size of the lot, but that concept does not actually appear in the test as written," Waugh said. "When is the proposal one which is simply too big for this lot?" "Second, the use vs. area categories are not always clear cut," Waugh said. "For example, in which category do we put applications relating to a wetlands setback zone, which restricts certain uses, but which is defined by an area measurement?"
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