Thе petitioners, abutters to property owned by the intervenor, Raymond A. Ramsey, appeal an order of the Superior Court (T. Nadeau, J.) affirming the grant of six variances by the zoning board of adjustment (ZBA) for the respondent, City of Portsmouth (City). We reverse and remand.
Ramsey owns a seven-acre parcel of undeveloped land located at the intersection of Kearsarge Way and Market Street Extension in Portsmouth. When he purchased the land in 1985, it was zoned for residential use. Ramsey wanted to construct a 100-room hotel on the property. Accordingly, in 1987, he filed a petition for rezoning with the City, which was denied. His appeal of the original denial was unsuccessful.
Following a second unsuccessful attempt to have the property rezoned, he again appealed pursuant to RSA 677:4 (Supp. 2003). The Superior Court (McHugh, J.) granted his petition to rezone the property to “general business” to permit a hotel use. See Ramsey v. City of Portsmouth, No. 96-E-374 (Rockingham County Super. Ct., Nov. 23, 1998.) In reaching its decision, the court considered that the City had adopted a new zoning ordinance and a new master plan since Ramsey first applied for rezoning. In addition, major changes had occurred in the area, including the construction of a 125-room Marriott Hotel directly across from the subject property, which made the City’s denial of the rezoning petition unreasonable. The court’s order rezoning the property referred to Ramsey’s plan for a 100-room hotel.
After the rezoning, Ramsey filed applications with the ZBA seeking approval of six area variances in connection with the development of the 100-room hotel. The variances included: (1) a fifty-one foot front setback
The petitioners appealed the ZBA’s decision. They argued that the ZBA relied too heavily upon the court’s order rezoning the property as a basis for granting the variances needed to accommodate the 100-room hotel, аnd did not properly consider the evidence submitted at the hearing. The Superior Court (Abramson, J.) agreed, noting that “re-zoning [ijntervenor’s property ... was all the 1998 Order did.” The court further stated that “[i]ntervenor’s requested variances do not automatically satisfy the Simplex factors simply because his property has been rezoned.” The case was remanded to the ZBA for rehearing of the variance requests in light of the factors enumerated in Simplex Technologies v. Town of Newington,
On remand to the ZBA, Ramsey argued that he met the appropriate standards for a variance. He asserted that: no diminution in neighboring residential property values would result if the variances were granted; the public interest would not be adversely affected since he was redeveloping a blighted property and creating jobs; substantial justice would be done, as othеr hotel developers had received similar relief from the ordinance and that the variances would be consistent with the spirit of the ordinance because half of the property was being turned into conservation land which would serve as a buffer to residential properties. He offered several reports in support of these contentions. Ramsey also argued that he met the standard for unnecessary hardship due to the size and configuration of his property, noting that wetlands traversed the property. Thus, he asserted, the setback buffer requirements interfered not only with the reasonable use of the property but also with the permitted use of the property, thereby rendering the property in its setting truly unique.
The petitioners argued that Ramsey could not demonstrate hardship. They presеnted plans for a sixty-room hotel that they claimed could be constructed on the property without the need for variances. According to the petitioners, given that the zoning ordinance did not interfere with a reasonable use of the property, i.e., a sixty-room hotel, there could be no hardship justifying the grant of the six variances. Individual abutters also objected to the parking setback variances, arguing that these would have a negative impact on neighboring properties. After deliberating and
The Superior Court (T. Nadeau, J.) upheld the ZBA’s action on the applications, finding that it had properly applied the general standards fоr a variance, as well as the Simplex test for unnecessary hardship. The court noted that the intervenor had applied for variances for the specific purpose of building a 100-room hotel and the ZBA had considered the variances in that context, i.e., whether a 100-room hotel was a reasonable use of the property.
The court concluded that:
Under Simplex, the proposed 100-unit hotel is not unreasonable simply because аlternative uses exist that may require fewer or less drastic deviations from the zoning restrictions. Where, as here, the ZBA’s discussion of the intervenor’s requested variances makes clear it found the intervenor’s proposed use of the property to be reasonable, the first prong of Simplex is satisfied upon also finding, as the ZBA did, that the zoning restrictions interfere with the proposed use of the property, considering the unique setting of the property.
We will uphold the superior court’s decision on appeal unless it is not supported by the evidence or is legally erroneous. Rancourt v. City of Manchester,
The requirements that must be met for a variance to be granted are statutory in origin. See RSA 674:33, 1(b) (1996). In order to obtain a variance, the petitioner must show: (1) the variance will not be contrary to the public interest; (2) special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship; (3) the variance is consistent with the spirit of the ordinance; and (4) substantial justice is done. Robinson v. Town of Hudson,
For many years, our standard for unnecessary hardship required that the deprivation resulting from the enforcement of the ordinance had to be so great as to effectively prevent the landowner from making any reasonablе use of the property. Governor’s Island Club v. Town of Gilford,
The respondent’s original petition to the City involved a change in use from residential to general business. A use variance allows the applicant to undertakе a use which the zoning ordinance prohibits. Matthew v. Smith,
A nonuse variance authorizes deviations from restrictions which relate to a permitted use, rather than limitations on the use itself, that is, restrictions on the bulk of buddings, 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.”
Id. (quotation omitted).
On appeal to this court, the petitioners challenge the superior court’s interpretation and apрlication of the Simplex test for unnecessary hardship in the context of the grant of six area variances. They argue that the court interpreted Simplex too broadly, such that the unnecessary
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. Because Simplex was decided primarily in the context of a use variance, it established a test which is geared toward determining whether “the use for which [the applicants] seek a variance is reasonable considering the property’s unique setting in its environment.” Bacon,
Here, the court upheld the ZBA’s finding that the use of the property as a 100-room hotel was reasonable, given the uniquе setting of the property in its environment. In so doing, the court applied the Simplex test for unnecessary hardship to an area variance. The question remains, however, whether this Simplex test governs the unnecessary hardship prong when seeking an area variance. We do not believe it does.
Even this court divided recently on how to analyze unnecessary hardship in the context of an area variance. See Bacon,
As discussed in the Bacon concurrence, many States use different tests for use and area variances. Id. at 476. In some States, an owner seeking an area variance must only make a showing of “practical difficulty,” as opposed to a showing of “unnecessary hardship” for a use variance. See 3 A.H. Rathkopf & a., Rathkopf’s The Law of Zоning and Planning § 58:4, at 58-15 (2003). In Ouimette v. City of Somersworth,
Having clarified the role played by the unnecessary hardship standard, we now articulate factors for evaluating the unnecessary hardship, prong in the context of area variances, using the concurring opinion in Bacon for guidance. Bacon,
The first factor is whether the variances are necessary to enable the applicant’s proposed use of the property given the special conditions of the property. A landowner, however, need not show that without the variance, the land will be valueless. In other words, assuming that the landowner’s plans are for a permitted use, but special conditions оf the property make it difficult or impossible to comply with applicable setbacks or other restrictions, then the area variances might be necessary from a practical perspective to implement the proposed plan.
The second factor is whether the benefit sought by the applicant can be achieved by some other methоd reasonably feasible for the applicant to pursue, other than an area variance. Stated another way, this factor examines whether there is a reasonably feasible method or methods of effectuating the proposed use without the need for variances. In many cases, there will be more than one method available to implement a landowner’s proposed use. An apt illustration is provided by the physical accommodation for the desired propane boiler in Bacon. Although the property owner preferred to place the boiler in a shed adjacent to her home, which fell within the applicable setback for the lake, there were other reasonably feasible methods of accommodating the use, such as housing the boiler in the existing garagе or attic. Id. (Duggan and Dalianis, JJ., concurring specially).
Under the second factor, we also consider whether an area variance is required to avoid an undue financial burden on the landowner. “[Financial considerations, while not expressly mentioned in Simplex, have always been a part of variance determinations in New Hampshire.” Bacon,
In an effort to more accurately describe the function of the unnecessary hardship prong in its proper context, we now outline a framework we think
I. The variance will not be contrary to the public interest.
II. Special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship.
A Applicant seeking use variance — Simplex analysis
i. The zoning restriction as applied interferes with a landowner’s reasonable use of the рroperty, considering the unique setting of the property in its environment.
ii. No fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property.
iii. The variance would not injure the public or private rights of others.
B. Applicant seeking area variance — Boccia analysis
i. An area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property.
ii. 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.
III. The variance is consistent with the spirit of the ordinance.
IV. Substantial justice is done.
V. The value of surrounding properties will not be diminished.
In this case, it is unclear on the record whether there were reasonably feasible alternative methods to implement the proposed use, without
The superior court has considered and determined that the remaining four prongs of the variance test have been met. The question remains, however, whether the unnecessary hardship standard has been met, as articulated above. We find that the record is not sufficiently factually developed to determine whether the respondent has made an appropriate showing of hardship. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.