Defining Unnecessary Hardship — Again

Development of real estate begins on a local level.  Although there are numerous state building codes, a critical step in the development process is a comprehensive review of the impact of local ordinances.  Often, the proposed development requires the relaxation of certain requirements.

The standard to obtain a variance from the impact of a local land use ordinance has always been defined, although somewhat ambiguously, by state law.  That standard has been left to local zoning boards to interpret with the assistance of reported decisions from the New Hampshire Supreme Court.  The Court created different standards between a “use variance” and an “area variance.”  A use various is required when a use not permitted by the zoning ordinance is proposed.  An example of an area variance would be when a lot proposed for development does not meet the minimum size required in the ordinance.

Apparently, the New Hampshire legislature disagreed with the historical approach taken by the Supreme Court and attempted to resolve the dispute through legislation.  Thus legislation was approved to eliminate the separate standards created by the Court but to otherwise codify the teachings of the Supreme Court.  Under the new statute, regardless of the type of variance sought, the applicant must show the following: (1) the variance will not be contrary to the public interest; (2) the spirit of the ordinance is observed; (3) substantial justice is done; (4) the values of surrounding properties are not diminished; and (5) enforcement of the provisions of the ordinance would result in unnecessary hardship.  Despite the vague requirements of the first three of the requirements, the statute defines only “unnecessary hardship.”

An unnecessary hardship exists when “owing to special conditions of the property that distinguish it from other properties in the area: no fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property; and the proposed use is a reasonable one.”  The statute goes further and provides a limited exception to the standard just articulated.  If the standard is not met, “an unnecessary hardship will be deemed to exist if, and only if, owing to special conditions of the property that distinguish it from other properties in the area, the property cannot be reasonably used in strict conformance with the ordinance, and a variance is therefore necessary to enable a reasonable use of it.”  Although the legislature debated the language at length, the end result is a standard with which Zoning Boards are familiar.

With this standard in mind, an applicant for a variance must establish that the property is different in a meaningful way from others in the area and the zoning restriction must more severely restrict the property.  Next, because of the special condition of the property, the specific application of the restriction to the property does not serve the general public purposes of the ordinance.  Finally, because of the special condition of the property, the proposed use is reasonable.  The reasonableness of the use is generally considered in light of how the proposal fits in with the surrounding area.

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