Posted by: Patricia Salkin | June 9, 2009

Use Variance Upheld Permitting Mixed Use in Zoning District that Allowed Both Residential and Office Uses But Not Explicitly Mixed Use

Peter Hill applied to the Zoning Board of Adjustment for use and area variances for property that includes a historic building with 19 rooms and over 7000 square feet of living area. The street on which the property is located runs through two different zoning districts – an office district and the center business district. The property is located in the office district. Hill requested the area variance to reduce the number of required onsite parking spaces from 23 to 10. The Zoning Board granted a reduction to 14. With respect to the use variance, Hill sought to change the use from a single family residential dwelling to a mixed use with two residential units and office space. While the office district permits both multifamily and office uses, it does not specifically permit mixed use. The Zoning Board granted the use variance. Abutting property owners appealed the Zoning Board’s refusal to grant them a rehearing based on allegations that the vice chairperson of the Board had a conflict of interest and that the Zoning Board erred in granting the variance.

The Superior Court found no conflict of interest and upheld the granting of the area variance. The Court vacated the Board’s decision with respect to the use variance, finding that Hill failed to submit evidence that the zoning restriction as applied interferes with his reasonable use of the property.

The New Hampshire Supreme Court noted that to obtain a variance, a landowner 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; (4) substantial justice is done; and (5) granting the variance will not diminish the value of surrounding properties. Further, to establish unnecessary hardship for a use variance, the applicant is required to show: 1) the zoning restriction as applied interferes with the applicant’s 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. (Simplex Technologies v. Town of Newington, 145 N.H. 727, 766 A.2d 713 (2001)). agreed, found that the lower court properly vacated the decision of the Zoning Board of Adjustment granting a variance petition for a parcel of land on the ground that the record did not support the Board’s decision. However, the Plaintiffs did not prove that the Board acted unlawfully by granting the variance. The Court said that the record revealed that his was a close case and that the Court below should have given deference to the local board with respect to the finding of unnecessary hardship. Further, while the Court disagreed with the superior court’s initial finding that the variance would not interfere with the applicant’s reasonable use of the property, the Court agreed with the superior court’s ultimate conclusion that the variance would work substantial justice given the fact that the applicant resides at the property, has made substantial renovations to the property as a residence, and that the applicant is unable to sustain the property as his residence without the additional income from offices. Further, the zoning district allows for both uses. Lastly, the Court agreed with the superior court that the Zoning Board properly considered the value of surrounding properties when deciding to grant the variance.

Farrar v. City of Keene. 200 WL 1228874 (N.H. 5/7/2009).

The opinion can be accessed at:

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