An amendment to RSA 674:33, I(b) eliminates the separate “unnecessary hardship” standard for “area” variances, that was established by the New Hampshire supreme court in the case of Boccia v. City of Portsmouth, 155 N.H. 84 (2004), and provides that the unnecessary hardship standard shall be deemed satisfied, in both use and area variance cases, if the applicant meets the standards established in Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001), as those standards have been interpreted by subsequent decisions of the supreme court. If the applicant fails to meet those standards, an unnecessary hardship shall be deemed to exist only if the applicant meets the standards prevailing prior to the Simplex decision, as exemplified by cases such as Governor’s Island Club, Inc. v. Town of Gilford, 124 N.H. 126 (1983).
Now when ZBA’s are considering the hardship criterion for a variance, Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship, they will consider the language used in the following two paragraphs:
A. For purposes of this subparagraph, “unnecessary hardship” means that, owing to special conditions of the property that distinguish it from other properties in the area:
(i) 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
(ii) The proposed use is a reasonable one.
B. If the criteria in subparagraph (A) are not established, 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.
Ch. 307 of the Laws of 2009 (SB 147), Effective January 1, 2010.
The new law can be accessed at: http://www.gencourt.state.nh.us/legislation/2009/SB0147.html
