New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

ZBA’s Denial of Area Variance to Self-Storage Facility Overturned on Appeal

Malachy Glen Associates, Inc. v. Town of Chichester
Nos. 2004-886 and 2006-111, 3/20/2007

In March of 2000, an applicant received site plan approval to construct a self-storage facility. In 2003, the town enacted a wetlands ordinance, which imposed a 100-foot buffer zone around all wetlands. The applicant had not begun development of the site, and the placement of the proposed buildings in the original site plan violated the wetlands buffer ordinance, as the improvements would have been located within the buffer zone.

The applicant sought an area variance from the zoning board of adjustment (ZBA) but was denied. An appeal to Superior Court resulted in a remand back to the ZBA where relief was again denied. Once again, the matter was appealed to Superior Court, which ordered the ZBA to grant the variance. The town appealed, arguing that four of the five required criteria were not met by the applicant. The Supreme Court upheld the trial court, ruling that the ZBA had failed to properly consider the evidence before it. The opinion by Justice Hicks is helpful, as it contains discussions of the elements of variance law beyond the “unnecessary hardship” factor, which has so dominated the cases decided in recent years by the Supreme Court.

The Court restated the principle, originally set forth in Chester Rod and Gun Club v. Town of Chester, 152 N.H. 577 (2005) that the “variance not be contrary to the public interest” element is related to the requirement that “the variance be consistent with the spirit of the ordinance.” To be contrary to the public interest, the variance must violate the basic objectives of the zoning ordinance. To find such a violation, the variance must either “alter the essential character of the locality” or “threaten the public health, safety or welfare.”

Here the Court found that the proposal was for a commercial use in a commercial area, and that the character of the locality would not be altered. It then found that the encroachment of buildings and improvements into the wetland buffer would not injure public health, safety or welfare because there was “credible and uncontroverted evidence” from the applicant’s consultant that the project was specifically designed not to injure the wetlands. Although the town argued that the ZBA was not compelled to accept the opinion of the applicant’s expert, citing Vannah v. Bedford, 111 N.H. 105 (1971), the court found that the record was devoid of contrary evidence. Thus, as a matter of law, “…the mere fact that the project encroaches on the buffer, which is the reason for the variance request, cannot be used by the ZBA to deny the variance.”

The court also discussed the “substantial justice” element, finding that the applicant must show that the proposed use is “consistent with the area’s present use” and that a denial of the requested variance would cause a “…loss to the individual that is not outweighed by a gain to the general public.” The ZBA in this case actually determined that there was “no evidence that scaling the project down would make it economically unviable.” The court rejected this analysis, upholding the trial court’s determination that this commercial use in a commercial area, designed not to injure the wetlands, would not cause harm to the public interest was, as a matter of law, appropriate in this circumstance.

Zoning boards of adjustment should study the case carefully to assure that they are in fact utilizing the proper legal analysis in their consideration of area variances. The case is a reminder that there are five legal requirements for the grant of a variance, and that while “unnecessary hardship” is often the focus of presentations, the other four requirements are just as important, and just as difficult to learn and apply in practice.

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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