Court clarifies ‘hardship’

In Maureen Bacon v. Town of Enfield – a case decided Jan. 30 — the special concurrence of Justice Duggan, with whom Justice Dalianas joined, articulated a proposed analysis of the “unnecessary hardship” standard in an effort to provide guidance to municipal boards when reviewing requests for variances.

Justice Duggan’s special concurrence stated that “use” variances, as opposed to “area” variances, generally pose a greater threat to the integrity of a zoning scheme. While the concurring opinion in Bacon proposed new and helpful guidance, it did not have the full force of a Supreme Court holding.

The Supreme Court has again visited the legal analysis required for variances. In Michael Boccia, et al. v. City of Portsmouth, et al. (opinion issued May 25), a majority of the Supreme Court distinguished the elements required to obtain a “use” variance and an “area” variance.

This clarification should provide zoning boards of adjustment and landowners with clearer parameters of the legal requirements necessary to obtain variances.

In the Boccia opinion, the Supreme Court bluntly stated, “This case presents a paradigm of the problem faced by zoning boards and courts when they attempt to apply the Simplex standard to area variances.”

In Simplex Technologies v. Town of Newington (2001), the court established a standard for demonstrating hardship that is revisited for “use” variances in Bacon and for “area” variances in Boccia.

In Boccia, several abutters to a property owner in Portsmouth appealed the Portsmouth Zoning Board’s grant of six “area” variances. “Area” variances, the Supreme Court said “… relate to deviations from restrictions that relate to a permitted use, rather than limitations on the use itself, that is, restrictions on the bulk of buildings, or relating to their height, size, and extent of lot coverage, or minimum habitable area therein, or on the placement of buildings and structures on the lot with respect to the required yards. Variances made necessary by the physical characteristics of the lot itself are nonuse variances of a kind commonly termed ‘area variances.’”

Having earlier successfully petitioned to rezone the property to “general business” to permit a hotel use, the property owner decided to construct a 100-room hotel. In order to construct the hotel, the landowner needed several alterations to setback requirements, or “area,” variances. The abutters claimed the setback variances were not required because the parcel could accommodate a 60-room hotel without them; the property owner could still enjoy a reasonable use of the property for a hotel, albeit a smaller one.

The Supreme Court found that the Simplex and Bacon analysis are most relevant to “use” variances and ultimately remanded the case back to the ZBA. In so doing, the court distinguished between the analysis required between “use” and “area” variances.

The Boccia factors that should be considered in the area variance hardship analysis are:

• Whether an area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property.

• Whether the benefits sought by the applicant can be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. This second factor includes consideration of whether the variance is necessary to avoid an undue financial burden on the owner.

The Supreme Court literally offered an outline of the “framework” required in what it describes as “this often convoluted area of the law.”

As part of its framework, the court has set forth two different and mutually exclusive tracks of analysis with respect to the unnecessary hardship requirement. These must be followed in attempting to obtain either a “use” variance or an “area variance.”

Clarification makes sense In issuing the Boccia opinion, the court has gone further and has set forth the standards an applicant must satisfy when seeking a variance, as follows:

• The variance will not be contrary to the public interest.

• Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship.

• The benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance.

• The variance is consistent with the spirit of the ordinance.

• Substantial justice is done.

• The value of surrounding properties will not be diminished.

A few months ago it appeared that municipal boards, especially zoning boards of adjustment, might face interpretive difficulties in squaring Simplex and Bacon with “area” variance applications. The Supreme Court in the Boccia case has clarified the hardship analysis required for both types of variances. This clarification makes sense, given the difference in effect between a change of use and a deviation from an “area” or dimensional requirement.

This opinion should be helpful to zoning boards as well as property owners. Of course, the Boccia opinion makes it clear that, more than ever, it is vital to create a thorough and supportive record before the zoning board to increase the likelihood of obtaining a variance or prevailing on appeal. NHBR

Andrew B. Eills, a shareholder-director at the Concord law firm of Gallagher, Callahan & Gartrell, represents a wide range of business clients before state regulatory agencies, including the Public Utilities Commission, the Health Planning Services and Review Board and the Department of Revenue Administration.

Categories: News