Agenda - Planning Commission - 02/02/2012

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November 25, 201 1 1 Volume 51 No. 22 Zoning Bulietin November 1994, Brant applied for a variance form size and frontage require- ments to convert the property from a duplex into four dwelling units. Under New Hampshire statutory law, RSA 674:33, I(b), in order to ob- tain a variance, Brandt was required to satisfy a five -part test, showing: (1) the variance would not be contrary to the public interest; (2) special condi- tions existed such that literal enforcement of the ordinance would result in unnecessary hardship; (3) the variance was consistent with the spirit of the ordinance; (4) substantial justice was done; and (5) the variance did not diminish the value of the surrounding properties. The City's zoning board of adjustment (the "ZBA") denied Brandt's ap- plication. It found that Brandt's property failed to satisfy all five of the cri- teria for a variance set out under RSA 674:33, I(b). Brandt did not appeal the ZBA's 1994 denial of its variance application. However, 15 years later, in December 2009, Brandt again applied to the ZBA for a variance from the City's area, frontage, and setback require- ments. Brant again proposed to convert the dwelling into four units. The ZBA declined to consider Brandt's application on the merits. The ZBA based this decision on the basis that "circumstances [had] not changed sufficiently {since the 1994 variance application] to warrant ac- ceptance of the [2009] application." Brandt appealed to the superior court. The superior court affirmed the ZBA's decision. Brandt again appealed. DECISION: Judgment of superior court reversed, and matter remanded. The Supreme Court of New Hampshire held that material changes in circumstances occurred during the 15 years between Brandt's filing of the successive variance applications such that the ZBA was required to con- sider Brandt's second application on the merits. The court explained that it was "well settled that a zoning board having rejected one variance application, may not review subsequent applications ab- sent a `material change of circumstances affecting the merits of the applica- tion.'" In New Hampshire, said the court, successive variance proposals must demonstrate either: (1) material changes in the proposed use of the land; or (2) material changes in the circumstances affecting the merits of the application. on appeal, Brandt argued the latter. It maintained that the ZBA . was required to review its 2009 variance application on the merits even though it asked for essentially the same relief as the 1994 application. Brandt contended that material changes in circumstances occurred during the 15 intervening years. Although the governing statute, RSA 674:33, I(b), had not changed, Brandt noted that case law interpreting the five criteria for granting a variance had changed. Brandt maintained that the standards it needed to meet to obtain a variance were therefore now different. The court agreed. In 1994, the unnecessary hardship prong of the five - part test for obtaining a variance required applicants to show: "a depriva- tion `so great as to effectively prevent the owner from making any rea- sonable use of the land.'" By 2009, that standard had changed. In 2009, 10 © 2011 Thomson Reuters