New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Applicant for a Variance Need Not Affirmatively Plead the Threshold Question of Whether Variance Is Necessary; Trial Court Must Consider It when Ruling on Variance Issues

Bartlett v. Manchester
No. 2012-176, 2/25/2013

This case clarifies that a superior court may rule on whether a variance is necessary at all, even if the applicant doesn’t ask the court that question.  However, this may only be done if the record developed at the ZBA level contains enough facts on which the court can base its decision.
 
The applicant, a church (“Brookside”), sought a permit to allow a “work-based, self-help organization” to occupy a portion of the carriage house on the property.  The City denied the application, saying the proposed use violated a portion of the City’s zoning ordinance.  The denial letter noted that further action on the application could only be taken under RSA 674:33.  (This is the statute giving the Zoning Board of Adjustment the authority to grant variances from the zoning ordinance.)  Brookside applied for a variance from the ZBA, which was granted.  Bartlett, an abutter, appealed the grant of the variance to the superior court.
 
The superior court reviewed the ZBA’s approval of the variance and found that the evidence did not support the ZBA’s conclusion that Brookside had satisfied all five of the criteria necessary to obtain a variance.  In particular, the court ruled the ZBA had unlawfully found that literal enforcement of the provisions of the ordinance would cause Brookside unnecessary hardship (this is the fifth criteria for a variance).  RSA 674:33, I(b).
 
This is where it gets interesting.  The superior court then went on to find that the proposed use was actually a “lawful accessory use” under the City’s zoning ordinance and the common-law accessory use doctrine.  Based on this finding, the court ruled that no variance had been necessary in the first place. In essence, Brookside was free to obtain its permit and go ahead with the plan.  Bartlett appealed that decision to the N.H. Supreme Court.
 
The Supreme Court had two questions to answer.  First, did the superior court have “subject matter jurisdiction” to find that the variance wasn’t necessary?  The applicant had never raised that issue.  Second, was the proposed use a lawful accessory use?
 
As to the first question, the Court held that the superior court did have subject matter jurisdiction to consider whether the proposed use was permitted as a matter of right as an accessory use.  Unnecessary hardship may only be found if literal enforcement of the ordinance would cause such a hardship.  Therefore, in deciding whether the variance application satisfied the requirement for unnecessary hardship, the court correctly determined that the superior court had to consider the permissible uses of the property under the ordinance, including the accessory use provision.  As a result, the superior court could rule on the necessity of the variance even if the applicant had not raised that specific question in its appeal.
 
On the second question, the Court found that the record before the ZBA did not include enough facts for the superior court to have decided that the proposed use was a lawful accessory use.  As a result, it remanded the case back to the superior court, with orders that it be sent down to the ZBA for a further hearing on the accessory use issue.  This underscores the importance of the record developed during the initial proceedings before a ZBA or Planning Board.
 

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