Boccia: Court Distinguishes Between Use and Area Variances
Since the NH Supreme Court handed down its startling decision in Simplex Technologies, Inc. v. Town of Newington, 145 NH 727 (2001), in which it lowered the bar for property owners to demonstrate "unnecessary hardship" as part of a request for a zoning variance, planners in New Hampshire have watched the Court’s subsequent zoning decisions with wariness and fascination. On May 25, 2004, the other shoe dropped, in the form of the Court’s opinion in Boccia v. City of Portsmouth, __ NH __ (2003). In Boccia , the Court concluded that it must distinguish between use variances and dimensional variances, observing that the hardship criteria of Simplex could only logically be applied to uses of land.
The Boccia case involves a long and convoluted history, but the important elements can be summarized fairly simply. A Portsmouth property owner, Raymond Ramsey, wanted to develop his land for a 100-room hotel, opposite the existing Marriot Hotel on Market Street Extension. After a legal battle that resulted in a court-ordered zoning change allowing the hotel use, Ramsey then applied to the ZBA for six variances. These included lot size, frontage, front yard setback, two side yard setbacks, and rear yard setback. The ZBA granted the variances, which was appealed by the owner of the land underlying the Marriot Hotel, Michael Boccia. The superior court remanded the decision to the ZBA for further proceedings to clarify its opinion. Applying the Simplex hardship criteria the ZBA again granted the variances, which was again appealed by Boccia. The superior court upheld the ZBA’s decision to grant the variances. Boccia appealed to the Supreme Court.
The Boccia decision was written by the most recent appointee to the Court, Richard Galway. Recall that it was his superior court decision in Simplex that was reversed by the Supreme Court — not because Galway had misapplied the law, but because the Supreme Court had misstated the law of hardship and was attempting to correct it in Simplex. In Boccia, Galway borrowed heavily from the concurring opinion of Justices Duggan and Dalianis in the Court's confusing and complex decision in Bacon v. Town of Enfield, __ NH __ (2004). In their Bacon concurrence, Duggan and Dalianis advocated for a view of hardship that would distinguish between use and area variances. Five months later, that view became the law.
Writing for the Court in Boccia, Justice Galway said:
"Here, the [superior] court upheld the ZBA’s finding that the use of the property as a 100-room hotel was reasonable, given the unique setting of the property in its environment. In so doing, the court applied the Simplex test for unnecessary hardship to an area variance. The question remains, however, whether this Simplex test governs the unnecessary hardship prong when seeking an area variance. We do not believe it does."
Having already reviewed how it has looked upon area variances in the past, and especially focusing on the Bacon concurrence, the Court concluded:
"… we believe that distinguishing between use and area variances will greatly assist zoning authorities and courts in determining whether the unnecessary hardship standard is met."
Drawing on other jurisdictions, the Court developed the following two-prong test for finding hardship in area variances:
(1) whether an area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property; and
(2) whether the benefit sought by the applicant can be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance.
In applying the first prong, the Court said that the owner does not need to establish that without the variance the property would be valueless — rather, that practical considerations make it difficult or impossible to implement a permitted use, given the special conditions of the property. In this case, the Court found that this prong had been met by the developer, owing to the configuration of the property and the presence of wetlands.
The second prong, the Court explained, calls for an examination of other reasonably feasible alternatives. The Court clearly stated that the developer’s financial considerations do indeed become part of the calculus of what is reasonable. Undue financial burdens should not be imposed upon a landowner, so the relative expense of alternatives must be examined. The Court found that the record in this case was insufficient to determine if this prong had been met, and remanded for further proceedings.
This is a watershed case that will be discussed for years to come; its practical implications are yet untold. Although the first prong of the new area variance hardship test is legally thorny (exactly what constitutes "special conditions of the property"?), it seems that the second prong will be more problematic for zoning boards to apply. Each request for an area variance will have the potential to result in a fishing expedition, as angry abutters hire experts to develop "reasonable" alternatives to counter the "reasonable" proposal of the applicant. In the end, it seems that the side with the greater resources (meaning the capacity to hire the best experts) will win out.
Thus, the question that remains open is how to assess the use proposed by the applicant in light of the second prong of the area variance hardship test. In the Boccia case, the proposal was for a 100-unit hotel. The second prong identifies "the benefit sought by the applicant" as the measure of reasonableness-does this mean that the ZBA should be looking at all hotel alternatives, or just 100-unit hotel alternatives? Reading between the lines, my feeling is that the Court would prefer to start with 100-unit alternatives, but then look at others and review the financial impact. The test would be something like this: can you get the applicant an approximation of the specific use that’s proposed (rather than the general use allowed) without imposing an "undue" financial burden.
Also, in this case, the Court took pains to remind the reader that hardship is only one of five parts of the variance consideration. In this case, however, the lower court had already found that the other four parts of the variance test (which are not different for use or area variances) had been met. In Simplex, the ZBA had found against the applicant on several of the hardship criteria, but weirdly enough, only the hardship criterion had been appealed.
Ben Frost
"New Variance Criteria: Simplex and Boccia" 
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