New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

‘Special Conditions’ for Variance Are Property’s ‘Unique Setting’

Rancourt v. City of Manchester
No. 2002-0208, 1/10/2003

The opinion in this case is one of the first since the New Hampshire Supreme Court enunciated its new unnecessary hardship standard for granting variances in Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001), and it provides a useful lesson for zoning board members on how a variance application should be analyzed under one of the three new prongs required to prove unnecessary hardship.

Remember that an applicant for a variance from the zoning ordinance is required to meet five criteria, and unnecessary hardship is only one of the five criteria.

In order to prove unnecessary hardship before Simplex, an applicant for a variance had to show that the zoning regulation deprived him or her of any reasonable use of the land. The Court said that standard was too restrictive and didn’t properly balance the municipality’s right to zone with the landowner’s constitutional right to use his or her property.

Under Simplex, a property owner can establish unnecessary hardship by showing:

In Rancourt v. City of Manchester, the Gatelys were granted a variance to build a barn on their three-acre residential lot where they would keep two horses. Abutters appealed, arguing that there were no “special conditions” warranting the granting of a variance. Note that RSA 674:33, I (b) says the zoning board of adjustment is authorized to grant a variance from the terms of the zoning ordinance … “if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship …”

The Court explained how “special conditions” were determined before Simplex and are now determined after Simplex:

“Whereas before Simplex, hardship existed only when special conditions of the land rendered it uniquely unsuitable for the use for which it was zoned …, after Simplex, hardship exists when special conditions of the land render the use for which the variance is sought ‘reasonable.’”

What are “special conditions?” The Court said, “In the first prong of the Simplex test, ‘special conditions’ are referred to as the property’s ‘unique setting … in its environment.”

In this case, the Court held that the zoning ordinance precluding horses from the R-1A district (a low-density residential zone) “interfered with the [Gatelys’] reasonable proposed use of their property, considering its unique setting.” This is where the specific facts of the case come in to play. The Gatelys purchased a three-acre residential lot. At the time, livestock (including horses) were permitted in the R-1A zone. Before they applied for a building permit to build the barn, however, the zoning ordinance had been amended to prohibit livestock from the R-1A zone. When they were denied a building permit for the barn, they applied for a variance, which the Manchester ZBA granted. The abutters appealed, and the trial court upheld the ZBA’s decision. The Supreme Court also held that the ZBA was correct in granting the variance.

In analyzing “special conditions” and the property’s “unique setting,” the Court pointed to the following factors:

The Court said these factors are the “special conditions” that make it reasonable for the Gatelys to have a barn and two horses on their residential lot “considering its unique setting.”

As an interesting side note, the abutters argued that a use is not reasonable unless “it is established in the neighborhood or customarily associated with or consistent with established uses in the neighborhood.” The Court noted that this argument relies on the law of accessory uses but the abutters had cited no legal support for it. In dismissing this argument the Court said, “We decline the plaintiffs’ invitation to extend the law of accessory uses to variances.”

The Rancourt opinion was a 5-0 decision by the Supreme Court, so it looks as if this analysis of unnecessary hardship and special conditions is settled law for the foreseeable future.

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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