New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Court Interprets Area Variance Standard

Vigeant v. Town of Hudson
No. 2004-126, 2/23/2005

In May 2004, with its Boccia v. City of Portsmouth decision, the New Hampshire Supreme Court created a new unnecessary hardship standard for area variances, while limiting the application of the Simplex unnecessary hardship standard to use variances. In this case, involving the denial by the Hudson Zoning Board of Adjustment of a setback variance, the Court interprets the application of the new area variance criteria.

A developer proposed construction of a five-unit multifamily dwelling in a business zone where multifamily dwellings, defined by the ordinance as three or more attached dwelling units, are permitted. The 1.6 acre parcel was described as “long, narrow, [and] mostly rectangular.” An area of wetlands was located on the parcel's southerly boundary, “created by drainage from Route 111 and failure to maintain the drainage ditch.” The zoning ordinance required a 50-foot setback from Windham Road, which bounds the property, as well as from any wetlands.

The developer sought a variance to allow development within 30 feet of Windham Road, as well as a special exception to allow temporary encroachment 10 feet into the wetlands during construction. The ZBA unanimously denied the variance request, finding no evidence of hardship, that the multifamily dwelling proposal was not consistent with the spirit of the zoning ordinance, that there would be a diminution of surrounding property values and that it would be contrary to the public interest. The special exception request was also denied.

The ZBA denied the developer's request for a rehearing, which was accompanied by a letter from a real estate appraiser who stated that the multifamily development would not have an impact on the value of surrounding property. The developer appealed to the superior court, which overturned the ZBA's denial of the variance. The trial court applied the Simplex variance standard because the Supreme Court had not yet reached its decision in Boccia, which established the new unnecessary hardship standard for area variances.

The trial court noted that the proposed five-unit multifamily dwelling was a permitted use of the property and found that the lot was “unique, not just in its setting, but in its very character and description.” The trial court wrote, “It would be difficult to envision any reasonable permitted use which could be made of this parcel of real estate. Any reasonable permitted use of this real estate would probably require at least similar relief from the setback requirements.”

The trial court also found no evidence that surrounding property values would be adversely affected by the variance, or that the variance would not be consistent with the spirit of the zoning ordinance, or that the variance was contrary to the public interest.

The town appealed the trail court's decision to the Supreme Court, which noted that since Simplex it had “further refined” the unnecessary hardship standard in Boccia. The Boccia unnecessary hardship standard requires the applicant for an area variance to satisfy two factors: “(1) whether an area variance is needed to enable the applicant's proposed use of the property given the special conditions of the property; and (2) whether the benefit sought by the applicant can be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance.”

Under the first factor, the Court explained, “the landowner need not show that without a variance the land would be valueless. Rather, assuming that the landowner's plans are for a permitted use, but special conditions of the property make it difficult or impossible to comply with applicable setbacks or other restrictions, then the area variance might be necessary from a practical perspective to implement the proposed plan.”

The Court said that under the first factor “it is implicit … that the proposed use must be reasonable. When an area variance is sought, the proposed project is presumed to be reasonable if it is a permitted use under the [t]own's applicable zoning ordinance.” An area variance cannot be denied because the ZBA disagrees with the proposed use of the property, the Court said.

Because multifamily housing was a permitted use in the business zone, the court said, “the issue is whether the plaintiff has shown that to build five multifamily dwelling units it is necessary to obtain a setback variance, given the property's unique setting in its environment.” The Court pointed out the fact that the trial court had found that “[b]ecause of the setback from Windham Road and the wetlands buffer zone … there would be an area of only approximately 20 to 25 feet in width and less than 200 feet in length which could be developed.” The Court agreed with the trial court that “[i]t would be difficult to envision any reasonable permitted use which could be made of this parcel of real estate.”

Under the second factor, the Court said, “the question is whether there is a reasonably feasible method or methods of effectuating the proposed use without the need for variances. … Whether an area variance is required to avoid an undue financial burden on the landowner is determined by a showing of an adverse effect amounting to more than mere inconvenience. … The applicant is not, however, required to show that without the variance the land will be rendered valueless or incapable of producing a reasonable return.”

The Court explained that “there must be no reasonable way for the applicant to achieve what has been determined to be a reasonable use without a variance. In making this determination, the financial burden on the landowner considering the relative expense of available alternatives must be considered.”

The Court said the Hudson ZBA incorrectly focused on whether fewer than five dwelling units were more suitable. “In the context of an area variance, however, the question whether the property can be used differently from what the applicant has proposed is not material,” the Court wrote.

The Court held that the developer satisfied the two Boccia hardship criteria for an area variance. Because the setback requirements from Windham Road and the wetlands buffer zone would leave a buildable space of only 20 to 25 feet wide and less than 200 feet long, the Court wrote, “The evidence supports the conclusion that there is no reasonable way for the plaintiff to achieve the permitted use without a variance. We hold that the plaintiff's proposed use is a permitted use and that special conditions of the property make it impossible to comply with the setback requirements. From a practical standpoint, an area variance is necessary to implement the proposed plan."

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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