The New Hampshire Supreme Court recently affirmed the validity of the new unnecessary hardship test enunciated in Boccia v. City of Portsmouth, 151 N.H. ___ (2004), as part of obtaining an area variance.
In Shopland v. Town of Enfield, the plaintiffs, Russell and Lindsay Shopland sought approval from the defendant, Town of Enfield, to build an addition onto their seasonal, waterfront cottage. The Town’s zoning ordinance prohibits structures within fifty feet of the seasonal high water mark of the nearby lake. Pursuant to the ordinance, any expansion of the footprint of a nonconforming use requires a variance.
The Zoning Board of Adjustment (ZBA) denied the variance request, and the applicants appealed. Applying the standard set forth in Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001), the trial court “found that the [applicants] had proved the existence of unnecessary hardship in accordance with the Simplex standard and, therefore, the ZBA erred in denying their request for a variance.”
On appeal, the Supreme Court retroactively applied the Boccia standard and reversed and remanded the lower court’s decision. It its decision, the Court stated, “In light of our decision in Boccia, the Shoplands’ variance application must be reviewed under the two factors for establishing unnecessary hardship in an area variance application.”
As previously reported, the Boccia decision sets forth different legal standards for non-area (or use) and area variances. The Simplex standard still applies to non-area variances. However, in order to establish the unnecessary hardship factor for an area variance, an applicant must show: (1) an area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property; and (2) the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than by an area variance. See Town & City, Court Update, July/August 2004 issue.
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.