2005 Fall, 40. THE NEW ZONING VARIANCE CASES Analyzing Unnecessary Hardship Under RSA 674 33.

AuthorBar Journal Author - Jeremy Harmon

New Hampshire Bar Journal


2005 Fall, 40.

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

New Hampshire Bar Journal Volume 46, No. 3, Pg. 40 Fall 2005 THE NEW ZONING VARIANCE CASES Analyzing Unnecessary Hardship Under RSA 674 33 Bar Journal Author - Jeremy Harmon


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.(fn1)

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.(fn2)

In addition, a variance will only be granted if the proposed construction or use will not diminish the value of surrounding property.(fn3)

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,(fn4) and enjoy property.(fn5) 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,"(fn7) 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.(fn8) 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.


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,(fn9) the new line started by Simplex Technologies v. Town of Newington(fn10) (a landmark decision overruling Governor's Island), the Bacon v. Town of Enfield special concurrence,(fn11) which laid a foundation for the area variance test established in Boccia v. Town of Portsmouth(fn12) (distinguishing Simplex), and the dissenting arguments in Bacon and Shopland v. Town of Enfield.(fn13) 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.(fn14) 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.(fn15) 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.(fn16) 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.(fn17) 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.(fn18) 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.(fn19) However, Governor's Island was expressly overruled in Simplex.(fn20) Applicants are no longer required to show that zoning ordinances deprive them of any reasonable use of the land.(fn21)

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.(fn22) 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.(fn23) Until Harrington v. Town of Warner (decided more than four years after Simplex) only one case had minimally interpreted any of the Simplex prongs.(fn24)

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.(fn25) In Harrington, a mobile home park owner in the town of Warner wanted to expand the number of mobile home sites in his park.(fn26) The applicant owned 46 acres but only 26 acres were being used for 33 mobile home sites.(fn27) 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.(fn28) The variance application to expand the park was granted by the ZBA.(fn29)

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.(fn30)

First, interfering with an owner's reasonable use considers whether the owner is able to receive a reasonable return on the investment.(fn31) 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.(fn32) Rather, a landowner must show the interference has resulted in more than mere inconvenience.(fn33) 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.(fn34) 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.(fn35) 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.(fn36) If the use is permitted in the...

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