New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Court Establishes New Test for ‘Area’ Variances

Boccia v. Portsmouth
No. 2003-493, 5/25/2004

The much anticipated decision has finally come in this case. New Hampshire zoning boards and courts will now apply different analyses when reviewing requests for area variances and use variances. This case got the ball rolling when a property owner in Portsmouth applied for six variances from the dimensional standards of the Portsmouth zoning ordinance to build a 100-unit hotel. There were a number of decisions and appeals but ultimately, the ZBA reviewed the request and, when deciding on the hardship prong of the variance criteria, the board applied the standard articulated in Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001) and granted the variances. The abutters appealed all the way to the Supreme Court.

The Supreme Court reviewed the superior court’s use of the Simplex test and concluded that when seeking an area variance a different test should be applied to decide the unnecessary hardship prong. The rationale behind this conclusion is that the Simplex standard was developed to apply to use variances. The Simplex test is geared toward determining whether the “use” that requires a variance is reasonable considering the unique setting of the property. The Court, in this case, concluded that this inquiry does not allow the board to address factors that are more specifically relevant when an applicant is seeking a variance of dimensional or spatial type requirements, as opposed to a variance of limits on the type of business or use that is permitted.

The Court laid out the manner in which a variance application should now be reviewed. It will be helpful to zoning boards that are now left perplexed by the recent lengthy opinions of the Court on these variance issues. All applicants must still satisfy the five statutory criteria to obtain a variance. RSA 674:33, I(b). If an applicant seeks a “use” variance, the board should apply the Simplex test with respect to the unnecessary hardship prong of the variance criteria. If the applicant seeks a non-use or “area” variance (for example, seeking deviations from restrictions on the size, height, coverage or placement of buildings on a lot), then the board should apply the Boccia test to the unnecessary hardship criterion.

Here is the variance analysis as set forth by the Court:

I. The variance will not be contrary to the public interest.

II. Special conditions exist such that literal enforcement of the ordinance result in unnecessary hardship.

A. Applicant seeking use variance – Simplex analysis

i. The zoning restriction as applied interferes with a reasonable use of the property, considering the unique setting of the property in its environment.

ii. No fair and substantial relationship exists between the general purpose of the zoning ordinance and the specific restriction on the property.

iii. The variance would not injure the public or private rights of others.

B. Applicant seeking area variance – Boccia analysis

i. An area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property.

ii. The benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance.

III. The variance is consistent with the spirit of the ordinance.

IV. Substantial justice is done.

V. The value of surrounding properties will not be diminished.

Although the test itself has now been clearly set forth, it is not so clear how this new two-part test for area variances will be applied and interpreted in the future. We can envision that some litigation is bound to result from the finding by the ZBA of other “reasonably feasible” methods to achieve the “benefit sought by the applicant” where the applicant may not agree that those methods achieve the benefit sought.

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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