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Supreme Court Changes
Variance Criteria
February 1, 2001
By Dean B. Eggert

 

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).

 

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