New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

First Supreme Court variance decision since recodification of RSA 674:33

Harborside Associates, L.P. v. Parade Residence Hotel, LLC
No. 2010-782, 9/22/2011

Parade sought a variance to allow it to install two parapet signs on its property, even though such signs are not permitted in the district, and two marquee signs, each with a sign area of approximately 35 square feet, even though the maximum sign area allowed per marquee sign is 20 square feet. The zoning board of adjustment (ZBA) granted Parade's variance requests, and Harborside appealed to the superior court. The trial court ruled that the ZBA erred when it granted the variance for the two parapet signs, but that its grant of the variance for the two marquee signs was not error. Both parties appealed to the Supreme Court. This is the first New Hampshire Supreme Court opinion discussing the criteria for zoning variances since the legislature restated the five criteria in a recodified version of RSA 674:33, I(b), effective January 1, 2010. The court discussed each of the five elements in disposing of this appeal, with the following rulings.

A. "Public interest" and "spirit of the ordinance" are to be considered together. The correct test is "for a variance to be contrary to the public interest and inconsistent with the spirit of the ordinance, its grant must violate the ordinance's 'basic zoning objectives.' … Mere conflict with the terms of the ordinance is insufficient." The Court cited to Farrar v. Keene, 158 N.H. 684, 691 (2009), and Chester Rod & Gun Club v. Chester, 152 N.H. 577, 581 (2005).

B. "Substantial justice." "'Perhaps the only guiding rule on this factor is that any loss to the individual that is not outweighed by a gain to the general public is an injustice.' … We also look 'at whether the proposed development [is] consistent with the area's present use.'" Malachy Glen Assocs. v. Chichester, 155 N.H. 102, 109 (2007).

C. "Unnecessary hardship":

[T]o establish unnecessary hardship under the first definition set forth in RSA 674:33, I(b)(5), Parade merely had to show that its proposed signs were a "reasonable use" of the property, given its special conditions. See RSA 674:33, I(b)(5)(A); see also Rancourt v. City of Manchester, 149 N.H. 51, 54 (2003) ("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.'" (citation omitted)). Parade did not have to demonstrate that its proposed signs were "necessary" to its hotel operation.

Importantly, the court found that the sheer mass of the building itself was a "special condition" relevant to this analysis. Thus, "special conditions" might be found not only in the land itself, but also in existing improvements placed upon the land.

D. "Diminution in value." The court found that the only evidence on the issue was an assertion from Parade's attorney that not diminish the values of surrounding properties, which was not controverted or contested in the record. In the face of unchallenged and uncontroverted testimony, the court allowed the ZBA to determine whether or not the assertions were credible, citing Continental Paving v. Litchfield, 158 N.H. 570, 575 (2009), for the assertion that it was up to the ZBA to adjudge the sufficiency and credibility of evidence.

We now have a decision of the New Hampshire Supreme Court describing in detail the tests to be used by a ZBA to evaluate each of the five criteria for a variance under the new 2010 recodification of the statute. Each ZBA should carefully review this case, as well as the cases cited with approval by the Court, as the most current statement of the law of variances in New Hampshire.

Please be advised that the foregoing case summaries are based upon Supreme Court slip opinions. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify an opinion without motion. The final version of the Court's opinion is that which appears in the New Hampshire Reports. A yearly compilation of municipal law cases is presented each fall at LGC's annual conference. The 2011 Court Update will be available in mid-November.

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