Variance Denial Based in Part on “Cumulative Effect” Upheld

Perreault v. New Hampton
New Hampshire Supreme Court No. 2017-0225
Friday, July 20, 2018

The plaintiffs, the Perreaults, were denied a variance to build a permanent shed within the twenty-foot side setback of their property. The ZBA found that the slope of the property was “not . . . egregious” compared to other lots in the same area, and that it was therefore possible to build the permanent shed in a location that conformed to the setbacks. The ZBA also considered the cumulative effect of allowing such variances and found that “[t]he spirit of the ordinance, in terms of wanting to control overbuilding, is important because allowing many sheds to be built on a small lot within those setbacks creates overcrowding and is contrary to the spirit of the ordinance.”

The ZBA granted the plaintiffs’ motion for rehearing but once again denied the variance, finding that the plaintiffs had failed to establish four out of five the criteria. Even though the plaintiffs demonstrated that other properties on the same street had received variances for storage structures that violated the setback requirement, the ZBA found that those properties were distinguishable from the plaintiffs’ property. The ZBA also determined that  “[g]ranting the variance would be contrary to the public interest because the essential character of the neighborhood and the cumulative impact of granting this and similar variances to others in the neighborhood jeopardizes the goals of the setback requirements in the zoning ordinance,” which the ZBA identified as “preventing safety issues and, in this case, overbuilding on lots.” They also found that the plaintiffs had failed to meet the substantial justice and unnecessary hardship criteria. On appeal, the superior court upheld the ZBA’s findings on public interest, spirt of the ordinance, and substantial justice; the judge did not address unnecessary hardship.

In part, the superior court judge determined that the ZBA had reasonably considered the cumulative effect that these types of variances would have on the area. The New Hampshire Supreme Court said that although the “cumulative effect” standard was mentioned in the case of Bacon v. Town of Enfield in 2004, it has never been officially adopted by the Court. However, because the plaintiffs did not object to the superior court judge’s reliance on the Bacon case or consideration of “cumulative effect,” the Court determined, without deciding, that it was a proper consideration.

Given that determination, the Court agreed that the ZBA’s decision was not unreasonable or unlawful. Preventing overcrowding is a legitimate zoning purpose, as is preventing safety issues that come from overcrowding. Furthermore, the Court agreed that the aesthetic environment and the appearance of overcrowded lots are proper factors to be considered; these considerations were, in fact, underlying reasons for the setback requirement from which the plaintiffs were requesting a variance. Finally, the Court agreed that evidence that other properties had similar outbuildings did not require the ZBA to grant the variance. In fact, the ZBA had specifically found that the other outbuildings either were granted before the variance criteria were, were on lots distinguishable from the plaintiffs’ lot, or were not actually within the setback.