New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Further Clarification of the Test for a Use Variance

Robert L. Garrison v. Town of Henniker
No. 2005-471, 8/2/2006

The line of recent Supreme Court cases interpreting the “unnecessary hardship” element of the legal test for a use variance continues with the opinion in Robert L. Garrison v. Town of Henniker, No. 2005-471, decided August 2, 2006. Local zoning boards of adjustment will want to read the opinion closely, as it provides specific guidance on how to determine that a property is unique for zoning purposes, and the type and amount of evidence required from applicants for a use variance.

The plaintiffs aggregated 18 separate lots into a single large parcel of 1,697 acres for the commercial purpose of storing and blending industrial explosives. Pursuant to federal regulations, the actual explosive manufacturing site must be surrounded by a large unoccupied buffer zone. While the site was ideal for the plaintiff’s purposes, the land was zoned for residential use, and activities such as explosive manufacturing are prohibited. Plaintiffs sought two use variances through the local zoning board of adjustment (ZBA). The variances were granted, and abutters appealed to the Superior Court. The trial court reversed the ZBA decision, finding that the plaintiffs failed to demonstrate unnecessary hardship.

On appeal, the Supreme Court affirmed the decision of the trial court. The opinion discusses the “unnecessary hardship” element of a use variance. Pursuant to Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001), an applicant must show, in part, that “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.” The court held that expert testimony is not required from the applicant to prove this element, but that the evidence presented must be factual. Mere conclusory opinions are not sufficient; there must be an underlying factual basis to support the determination that the property is unique.

A property is “unique” for zoning purposes when some specific condition of the property distinguishes it from the area in general, and from other property that is burdened with the same zoning restriction. The condition that makes it unique must arise from the property and not from the plight of the landowner. In this case, the court determined that the applicant had not shown that its property was different from other property located within the same zone. While the parcel was ideal for the proposed use of the applicant, it was not different from other parcels in the area, and thus it was not “unique” for zoning purposes.

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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