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Hardship Standard And The Variance

On Behalf of | Jan 8, 2009 | Land Use & Tax Abatement, Real Estate Law

The purpose of this article is to assist in the interpretation of the “hardship” standard within the variance application process. The hardship standard or test is one of 5 criteria to be demonstrated by the applicant in order to obtain the variance. Generally, the criteria are:

1) The variance will not be contrary to the public interest;

2) Special conditions exist such that a literal enforcement of the provisions of the ordinance will result in unnecessary hardship;

3) the variance is consistent with the spirit of the ordinance;

4) substantial justice is done; and

5) granting the variance will not diminish the value of the surrounding properties.

In 2001, the NH Supreme Court decided the Simplex case, which relaxed the definition of the hardship test, noting that:

“We believe our definition of unnecessary hardship has become too restrictive in light of the
constitutional protections by which it must be tempered. ……and we depart today from the restrictive approach that has defined unnecessary hardship and adopt an approach more considerate of the constitutional right to enjoy property.”

Before Simplex, the standard for demonstrating unnecessary hardship required the applicant to show that without the variance he or she was practically or effectively prevented from making any reasonable use of the lot. An often-cited example is the case of a triangular-shaped parcel with certain topographical features (for example, a portion of the lot is either steep and rocky, or has a lot of ledge) which limit the area within the lot which is buildable. If relief from the setback requirements were not granted in the form of the variance, the landowner would not be able to build any structure on its property. Strictly applied, this pre-Simplex hardship standard was a very difficult standard to meet and therefore, resulted in the denial of many variance applications.

In 2004 in the Boccia case, the Supreme Court continued to refine the law relating to the hardship standard of the variance process in which the Court noted that its Simplex ruling “established a new, less restrictive standard” for the hardship test, and then went on to create two different, but overlapping tests depending upon whether the landowner was seeking a Use Variance or an Area Variance.

However, both before and after Simplex and Boccia, the hardship standard or test was never about financial or economic hardship or burden to the applicant. That is, the hardship standard never included a showing by the landowner that he or she was somehow financially affected unless the variance was granted. For example, the value of his or her home would be greater if the variance allowing the construction or addition of a garage were granted, or conversely, that not granting the variance would affect the applicant’s pocketbook (as in, for example, building on and using the property for a particular commercial enterprise in a residential zone would provide a greater economic return to the applicant then building for residential use). Rather, the legal requirement to satisfy the hardship test was that there was something unique about or inherent in the property itself (its shape or configuration (in the Area variance context), or its particular use relative the uses around it (in the Use variance context).

In the 2006 Thomas case, the Supreme Court stated:

“In Simplex, we recognized that in seeking a variance, the hardship requirement had been historically the most difficult to meet. Accordingly, we adopted a less restrictive test of unnecessary hardship to better safeguard the constitutional rights of all landowners and to more properly balance those rights against the necessity of zoning ordinances. See Simplex, 145 N.H. at 731-32. Rather than require a showing that an ordinance unduly restricts the use of their land, applicants for a use variance could establish unnecessary hardship by proof that: (1) a zoning restriction as applied to their property interferes with their reasonable use of the property, considering the unique setting of the property in its environment; (2) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and (3) the variance would not injure the public or private rights of others. Id. At 730-32.”

Beth H. Davis is a director at Hamblett & Kerrigan, P.A.   Her present practice focuses on real estate and business transactions. You can reach Attorney Davis by e-mail at [email protected].