A change in the legal criteria to obtain a variance is a ‘material change of circumstances’

Brandt Development Company of NH, LLC v. Somersworth
Brandt Development Company of NH, LLC v. Somersworth
No. 2010-641
Wednesday, October 12, 2011

It is well settled that a zoning board, having rejected one variance application, may not review subsequent applications for the same project absent a material change of circumstances affecting the merits of the application. This rule was set forth in the 1980 case of Fisher v. Dover, 120 N.H. 187. The rule exists because zoning boards should not be required to reconsider an application based on the occurrence of an inconsequential change, when the board inevitably will reject the application for the same reasons as the initial denial. In New Hampshire, successive variance proposals must demonstrate either (1) material changes in the proposed use of the land or (2) material changes in the circumstances affecting the merits of the application.

This case involves the second factor—material changes in circumstances. The plaintiff applied for a variance to turn a building from a duplex into four residences, and the application was denied. Fifteen years later, the plaintiff applied again for a variance for the same project. Normally, the second application would be barred under the rule explained in Fisher v. Dover. However, in this case, the Court found that the law regarding variances had changed enough to create a “reasonable possibility” that the board’s decision on the second application would be different.

To obtain a variance, an applicant must satisfy each of five factors: (a) the variance will not be contrary to the public interest; (b) special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship; (c) the variance is consistent with the spirit of the ordinance; (d) substantial justice is done; and (e) the variance must not diminish the value of the surrounding properties.

In the years between the first application and the second, the law regarding “unnecessary hardship” had changed substantially, mainly through two court decisions, Simplex Technologies v. Newington, 145 N.H. 727 (2001), and Boccia v. Portsmouth, 151 N.H. 85 (2004). Although this was but one of five criteria, the Court found that unnecessary hardship is “central to the very concept of a variance.” It also stated that the other four criteria were “refined and clarified” by other court opinions during the 15-year interval between applications. As a result, there had been a material change in circumstances affecting the application, sufficient to permit the applicant to file substantially the same application again. [NOTE: The legislature in 2010 established a uniform standard for variances in RSA 674:33, I(b)(5), overriding Boccia and substantially codifying Simplex. The amended law applies only to applications submitted after January 1, 2010. The application in this case was filed before that date and is thus subject to the variance criteria as they existed before the statute was changed. It appears that the new statute would also justify a second application by the reasoning of this case.]