New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Confusion Over the Application of the Simplex Unnecessary Hardship Standard

Maureen Bacon v. Town of Enfield
No. 2002-591, 1/30/2004

This case represents the continued struggle the New Hampshire Supreme Court is having with defining the variance criteria following Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001). In Simplex, the Court redefined the unnecessary hardship element of the five variance criteria. In order to establish unnecessary hardship, an applicant for a variance must prove:

(1) 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;
(2) (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 public or private rights of others.

Simplex, 145 N.H. at 731-32.

The first of these criteria was at issue in Bacon v. Town of Enfield. In this case, the plaintiff owned a home on the shore of Crystal Lake in Enfield. The home was located in the Rural Residential District and, as such, it was subject to a provision of the Town of Enfield zoning ordinance that prohibited structures within fifty feet of the seasonal high water mark of Crystal Lake. Nearly all of plaintiff’s home was located within the fifty-foot setback and, therefore, it was considered a preexisting, nonconforming use. The Town of Enfield had interpreted its ordinance to require a variance if the owner of such a home wished to undertake any new construction that would add to the footprint of the structure.

The plaintiff sought a variance from the Enfield ZBA in order to construct a four by five-and-a-half foot shed to house a propane furnace. The plaintiff wanted to convert her home’s heating system. She sought the variance after the shed had been constructed and discovered by a neighbor.

The ZBA denied plaintiff’s variance because it: (1) did not meet the “current criterion of hardship”; (2) violated the spirit of the zoning ordinance; and (3) was not in the public interest. Plaintiff’s motion for rehearing was also denied, and she appealed the ZBA’s decision to the superior court.

At trial, the court heard evidence that the exterior location of the shed and furnace was the “‘most practical, safest, and most cost-efficient location to install the new heating system.’” The court also heard testimony that the plaintiff had “pre-selected the site, and that it would have been possible to install a unit—albeit less efficiently—in other locations, including inside the house, in the garage, or in the attic.” The trial court ruled that the ZBA acted lawfully and reasonably in denying the variance because the plaintiff had not demonstrated unnecessary hardship under the Simplex standard. The court also found that the proposed variance was not within the spirit of the ordinance and that granting the variance would not do substantial justice. The plaintiff appealed to the Supreme Court.

While a majority of the Court agreed to affirm the trial court’s decision, the Court was divided as to the reasons for affirming the decision. In delivering the opinion of the Court, Chief Justice Broderick wrote that it was necessary to agree with only one of the trial court’s reasons for upholding the denial of the variance. In other words, it was not necessary to review each of the variance criteria if the denial of the variance could be supported in just one of them. The Chief Justice focused on the spirit of the ordinance. He wrote that the general purpose of the fifty-foot setback was to protect water bodies and that the purpose of the Enfield ordinance, in general, was to: “‘prevent the overcrowding of the land’”; “‘assure proper use of natural resources and other public requirements’”; “‘provide for harmonious development of the land and its environs’”; and “‘conserve [the town’s] rural residential character, its air and water quality . . . and its freedom from noise and traffic congestion.’” Based on these principles, the Chief Justice concluded that a use such as that proposed by the plaintiff could contribute to shorefront congestion and overdevelopment and, therefore, it could be considered inconsistent with the spirit of the ordinance. Thus, the trial court’s decision was affirmed on that basis.

Traditionally, an appellate court will not go out of its way to complicate a case or decide a case on the basis of complex legal arguments when a simpler route to its decision exists. The Chief Justice’s opinion certainly represented the most direct route to affirming the trial court. In delivering the concurring opinion, however, Justice Duggan wrote that the trial court should be affirmed on the basis of its finding that plaintiff failed to prove unnecessary hardship under Simplex. His rationale for analyzing the case under the Simplex standard was that “the decision to grant or deny a variance usually turns on the hardship condition.” Justice Duggan also wanted to use this case to “provide guidance to trial courts and zoning boards when reviewing requests for variances.” In providing guidance, however, the concurrence seems to have complicated the Simplex criteria by adding two additional factors that should be considered in determining unnecessary hardship. The first factor is the distinction between a use variance and an area variance. The second factor is the economic impact of the zoning ordinance on the property owner. Justice Duggan wrote that both factors should be considered in determining whether a zoning restriction interferes with a landowner’s reasonable use of her property (i.e., the first criterion under the Simplex analysis).

Plaintiff’s request in this case was for an area variance. In considering whether to grant such a variance, Justice Duggan wrote that courts and zoning boards must balance the financial burden on the landowner, considering the expense of alternatives, against the Simplex standard. He further wrote:

[T]he mere fact that alternatives exist to accomplish the same goal without a variance does not necessarily mean that no hardship exists. Rather, several factors must be considered in determining whether a variance is warranted, including the type of variance requested, the economic impact of the variance and other available alternatives, and the existence of special conditions of the property creating the hardship.

Applying this economic impact analysis to the Simplex standard and the facts of this case, Justice Duggan (joined by Justice Dalianis) concluded that the reason for the variance request was convenience and not because of any unnecessary hardship. The plaintiff also failed to demonstrate how the property was “unique” relative to other lakeside homes affected by the zoning ordinance. Therefore, these two justices concurred that the trial court’s decision should be affirmed.

Justice Nadeau (joined by retired Chief Justice Brock) delivered a dissenting opinion. The dissent disagreed with Chief Justice Broderick’s conclusion that plaintiff’s proposed use violated the spirit of the ordinance. The dissent considered the Chief Justice’s interpretation of this prong of the variance test too stringent, writing that under such a strict standard no lakefront homeowner would ever be entitled to a variance, regardless of how minimal the footprint of the home is to be expanded.

The dissent next addressed the concurring opinion of Justice Duggan. The dissent reasoned that after Simplex, the first prong of the hardship test is met when special conditions of the property itself render the proposed use “reasonable.” The concurring opinion improperly added additional requirements to this test. Specifically, the concurring opinion gave weight to available alternatives in applying the unnecessary hardship test. The dissent argued that zoning boards are not permitted to consider other alternatives when deciding whether a proposed use is reasonable. Therefore, the dissent concluded that the plaintiff satisfied the first prong of the unnecessary hardship test. The dissent did not address the two remaining prongs of the Simplex analysis because they had not been addressed by the concurring opinion.

While it is clear that there is a division among the members of the Court regarding the application of the unnecessary hardship test following Simplex, it is unclear exactly how the issue will ultimately be resolved. The concurring justices plainly believe that other factors should be considered in the Simplex analysis, and the dissenting justices do not. One of the dissenters, retired Chief Justice Brock, no longer sits as a regular member of the Court. The new Chief Justice did not comment on the unnecessary hardship aspect of the case. The issue could very well turn on the opinion of the newly appointed justice when the next variance case comes before the Court.

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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