An Update on the New Standard for Zoning Variances

By: Heather L. Devine, Esq.

As described in the firm’s prior article, “New Standard for Zoning Variances,” on January 1, 2010, the legislature enacted a new test for determining whether a party qualifies for a variance that eliminated the distinction between “use” variances and “area” variances. At the time the prior article was written, it was unclear how courts would interpret this new standard and many feared that it would make it more difficult for applicants for area variances to satisfy the unnecessary hardship prong of the test.

The recent case of Harborside Assocs., L.P. v. Parade Residence Hotel, LLC, 162 N.H. 508 (2011) provides some insight on how the new standard will be interpreted. In Harborside, Parade Residence Hotel, LLC, (“Parade”), sought an area variance from a provision of the zoning ordinance that limited the size of marquee signs. Parade also sought use variances from the provision of the zoning ordinance that prohibited parapet signs.

In regards to Parade’s use variance request for the parapet signs, the Supreme Court determined that Parade satisfied each of the five prongs of the new variance test – (1) the variance will not be contrary to the public interest; (2) the spirit of the ordinance is observed; (3) substantial justice is done; (4) the values of surrounding properties are not diminished; and (5) literal enforcement of the provisions of the ordinance would result in unnecessary hardship. The Court addressed only factors 1, 2, and 3 – the three factors the trial court ruled that Parade failed to meet. Under the public interest and spirit of the ordinance factors, the Court held that, contrary to the trial court’s analysis, Parade was not required to show that the variance would serve the public interest. The Court also found no evidence in the record that the signs would cause any harm to the public health, safety, or welfare. Under the third factor, the Court ruled that the substantial justice factor was met due to the large size of the building and the fact that the parapet signs actually helped aesthetics by blocking rooftops.

Turning next to Parade’s area variance request for the marquee signs, the Court again found that Parade satisfied all five factors. Under the unnecessary hardship factor, the Court held that the size of Parade’s building was a relevant factor to determining whether special conditions existed. In regards to the remaining factors, the Court rejected the opponent’s argument that Parade could have installed slightly smaller signs and achieved the same result. The Court explained that opponent’s argument was based on the now defunct unnecessary hardship test that formerly applied to area variances.

The Court’s ruling that an applicant can satisfy the unnecessary hardship requirement by relying on a property’s unique size is significant because it will likely make it easier for an applicant for an area variance with a uniquely sized lot or building to qualify for a variance. Accordingly, despite concerns, there is no evidence that area variances will now be more difficult to obtain.