In 2002, Merriam Farm purchased a three-acre parcel in the Town of Surry, New Hampshire, with frontage on a Class IV highway. In 1971, the Town had voted to close the parcel’s frontage “with gates and bars for the purpose of preventing development in the area” and had subsequently passed a zoning ordinance which required that, in order to build, a parcel have at least 200 feet of frontage on Class V or better highway. Despite these regulations, Merriam Farm applied in April 2009 for a building permit to construct a single-family residence on the property. The Town’s selectboard denied the permit because the property lacked frontage on a Class V or better highway. Merriam Farm appealed to the Town Zoning Board of Appeals (ZBA).
The ZBA ultimately determined that permitting the landowners to construct a home on a parcel without access to a maintained town road would create a hardship for future purchasers of the home. The ZBA declined to issue a variance for the Merriam Farm property, and upheld the building permit denial. Merriam Farm appealed the decision to the superior court, which upheld the selectboard and ZBA denials.
Merriam Farm here appeals, claiming first that the selectboard had erred by not consulting with the planning board before denying the building permit. However, the court dismissed that argument, finding that the ZBA had subsequently corrected the error, consulted the planning board, and decided against issuing the permit. In addition, Merriam Farm made an unconstitutional takings claim, arguing that application of the Town ordinance requiring frontage on a Class V or better highway constituted inverse condemnation. This claim was dismissed because Merriam Farm failed to preserve it for the higher court’s review.
Merriam Farm also argued that the ZBA had erred in failing to hold its application to the “practical difficulty” standard, rather than the “unnecessary hardship” standard, when deciding whether to allow a variance. The court noted that the New Jersey approach has been to treat the “practical difficulty” and “unnecessary hardship” standards as the same for both area and use variances. Further, the court noted that, prior to 2004, there was no distinction in New Hampshire law between area and use variances – obtaining either type of variance required proof of unnecessary hardship. It was in Boccia v. City of Portsmouth, 151 N.H. 85 (2004), that the New Hampshire Supreme Court established one “unnecessary hardship” test for use variances and another less stringent “unnecessary hardship” test for area variances. In 2009, the legislature eliminated the distinction between use and area variances and required application of a uniform unnecessary hardship test for both variance types, overturning Boccia. Despite these changes, the court noted that the terms “unnecessary hardship” and “practical difficulty” are used at different points throughout other state statutes. The New Hampshire court held that the “unnecessary hardship” and “practical difficulty” terms refer to the unnecessary hardship test and are interchangeable.
Therefore, Merriam Farm was required to show unnecessary hardship in order to obtain a variance, the test which the Town had applied. The court upheld the ZBA’s decision to deny the building permit request.
Merriam Farm, Inc. v. Town of Surry, 2012 WL 2913206 (N.H. 7/18/12)
The opinion can be accessed at: http://law.justia.com/cases/new-hampshire/supreme-court/2012/2011-311.html