On
January 29, 2001 the new Hampshire Supreme Court released a significant
decision in the case of Simplex Technologies, Inc. v. Town of
Newington.
(1) In reversing the trial court's affirmation of a decision
of the Town of Newington Zoning Board of Adjustment denying Simplex's
Request for a Variance, the Supreme Court established a new definition
for the "unnecessary hardship," requirement for a variance.
The Court held:
We believe our definition
of unnecessary hardship has become too restrictive in light of the
constitutional protections by which it must be tempered. In
consideration of these protections, therefore, we depart today from the
restrictive approach that has defined unnecessary hardship and adopted
approach more considerate of the constitutional right to enjoy property.
Henceforth, applicants for a variance may 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.
The Supreme Court left intact the remaining four criteria for a
variance, to wit: (1) the variance will not be contrary to the public
interest; (2) the variance must be consistent with the spirit of the
ordinance; (3) substantial justice will be done by granting the
variance; and (4) the variance will not diminish the value of
surrounding properties.
1. ___ NH ___ (98-409 January 29,
2001).