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NHOEP
RSA 674:33, I. The zoning board of adjustment shall have the power to: (b) 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.
The local ordinance cannot limit or increase the powers of the board to grant variances under this authority, but this power must be exercised within bounds. In several decisions from 1952 to the present, the Supreme Court has declared that each of the following conditions must be found in order for a variance to be legally granted:
(1) no diminution of value of surrounding properties will be suffered;
(2) granting the permit would be of benefit to the public interest;
(3) denial of the permit would result in unnecessary hardship to the owner seeking it;
(4) by granting the permit substantial justice would be done; and
(5) the use must not be contrary to the spirit of the ordinance. (See Gelinas v. Portsmouth 97 NH 248[1952])
The term "hardship" has caused more problems for boards of adjustment than anything else connected with zoning, possibly because the term is so general and has so many applications outside of zoning law. By its basic purpose, a zoning ordinance imposes some hardship on all property by setting lot size dimensions and allowable uses.
The restrictions on one parcel are balanced by similar restrictions on other parcels in the same zone. When the hardship so imposed is shared equally by all property owners, no grounds for a variance exist. Only when some characteristic of the particular land in question makes it different from others can unnecessary hardship be claimed.
The fact that a variance may be granted in one town does not mean that in another town on an identical fact pattern, that a different decision might not be lawfully reached by a ZBA. Even in the same town, different results may be reached with just slightly different fact patterns. "This does not mean that either finding or decision is wrong per se, it merely demonstrates in a larger sense the home rule aspects of the law of zoning that are at the core of New Hampshire=s land use regulatory scheme." Nestor v. Town of Meredith Zoning Board of Adjustment, 138 N.H. 632, 644 A.2d 548, (1994)
On January 29, 2001, the NH Supreme court issued an opinion in Simplex Technologies, Inc. v. Town of Newington, which dramatically changed the standard for granting zoning variances. The court refined the long-held standard for unnecessary hardship and established 3 conditions, which must be used by boards of adjustment when determining if a hardship exists. (See Appendix F for background information about this significant court decision.)
On May 25, 2004, the NH Supreme Court issued an opinion in Boccia v. City of Portsmouth, which further refined variance law to distinguish between use and area (dimensional) variances. In Boccia, the Court concluded that it must distinguish between use variances and dimensional variances, observing that the hardship criteria of Simplex could only logically be applied to uses of land. (See Appendix G for background information about this significant court decision.)
When faced with a variance application, the ZBA must first determine if it is a "use" or "area" variance. If it is a "use" variance, the Simplex analysis applies. If it is an "area" variance, the Boccia analysis applies.
Simplex Analysis
Rather than having to establish that the ordinance prevents the owner from making any reasonable use of the land in order to demonstrate unnecessary hardship, a landowner can now establish unnecessary hardship by satisfying the following three conditions:
(1) The zoning restriction as applied to the applicant's property interferes with the applicant's reasonable use of the property, considering the unique setting of the property in its environment.
Rather than having to demonstrate that there is not any reasonable use of the land, landowners must now demonstrate that the restriction interferes with their reasonable use of the property considering its unique setting. The use must be reasonable. The second part of this test is in some ways a restatement of the statutory requirement that there be something unique about this property and that it not share the same characteristics of every other property in the zoning district.
(2) No fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restrictions on the property.
Is the restriction on the property necessary in order to give full effect to the purpose of the ordinance, or can relief be granted to this property without frustrating the purpose of the ordinance? Is the full application of the ordinance to this particular property necessary to promote a valid public purpose?
This test attempts to balance the public good resulting from the application of the ordinance against the potential harm to a private landowner. It goes to the question of whether it creates a necessary or "unnecessary" hardship.
(3) The variance would not injure the public or private rights of others.
This is perhaps similar to a "no harm - no foul" standard. If the granting of the variance would not have any negative impact on the public or on private persons, then perhaps this condition is met. Stated differently, would the granting of the variance create a private or public nuisance*?
[*Comment: A nuisance arises from use of property, either actively or passively, in an unreasonable manner. Shea v. Portsmouth, 98 N.H. 22 (1953). A nuisance can be either public or private. A private nuisance is defined as an activity which results in an unreasonable interference with the use and enjoyment of another's property, Urie v. Laconia Paper Co., 107 N.H. 131 (1966); while a public nuisance is an unreasonable interference with a right common to the general public. A public nuisance is behavior which unreasonably interferes with the health, safety, peace, comfort or convenience of the general community. Conduct which unreasonably interferes with the rights of others may be both a public and private nuisance. Robie v. Lillis, 112 N.H. 492 (1972). In order for a nuisance to exist, the interference complained of must be substantial, that is, the harm alleged must be in excess of the customary interference a land user suffers in an organized society, however, not every intentional and substantial invasion of a person's interest in the use and enjoyment of land is actionable. Id. at 496.]
This requirement, to some degree, overlaps with the requirement that the granting of a variance not result in a diminution of value of surrounding properties.
All three conditions must be satisfied for unnecessary hardship to exist under this standard.
Boccia Analysis
An applicant seeking an area variance can demonstrate unnecessary hardship by establishing that:
(1) Special conditions of the property make an area variance necessary in order to allow the applicant to construct the development as designed; and
(2) The applicant cannot achieve the same benefit by some other reasonably feasible method that would not impose an undue financial burden.
In applying the first prong, the owner does not need to establish that without the variance the property would be valueless - rather, that practical considerations make it difficult or impossible to implement a permitted use, given the special conditions of the property. In the Boccia case, the Court found that this prong had been met by the developer, owing to the configuration of the property and the presence of wetlands.
The second prong calls for an examination of other reasonably feasible alternatives. The Court clearly stated that the developer's financial considerations do indeed become part of the calculus of what is reasonable. Undue financial burdens should not be imposed upon a landowner, so the relative expense of alternatives must be examined.
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