2005 Fall, 47. Unnecessary Hardship under RSA 674 331(b).

AuthorBar Journal Author - Jeremy Harmon

New Hampshire Bar Journal


2005 Fall, 47.

Unnecessary Hardship under RSA 674 331(b)

New Hampshire Bar Journal Volume 46, No. 3, Pg. 47 Fall 2005 Unnecessary Hardship under RSA 674 331(b) Bar Journal Author - Jeremy Harmon

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...

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