Agenda - Planning Commission - 02/02/2012

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Zoning Bulletin November 25, 20111 Volume 51 No. 22 an applicant seeking a use variance could show unnecessary hardship by demonstrating: (1) a zoning restriction as applied to its property interfered with its reasonable use of the property, considering the unique setting of the property in its environment; (2) no fair and substantial relationship ex- isted between the general purposes of the zoning ordinance and the specific restriction on the property; and (3) the variance would not injure the pub- lic or private rights of others. An applicant seeking an area variance could show unnecessary hardship " by demonstrating that: (1) an area variance was needed to enable the applicant's proposed use of the property given the special conditions of the property; and (2) the benefit sought by the applicant could not be achieved by some other method reasonably feasible for the applicant to purse, other than an area variance. The City had countered that the ZBA had acted reasonably in denying the application, for even with a material change in circumstances under the unnecessary hardship prong of the five -part test, the other four prongs were unchanged and the ZBA had denied the 1994 application on those other four grounds as well. The court said that although only that one criterion was "uprooted," that major shift in the doctrine of unnecessary hardship constituted a ma- terial change in circumstances with respect to Brandt's 2009 application. Although it is only one of the five factors, unnecessary hardship is "central to the very concept of a variance," said the court. The five criteria are in- terrelated concepts. • Although the changes taking place in the 15 -year pe- riod between Brandt's application did not create an "absolute certainty of a different outcome from that obtained in 1994," they did "create a rea- sonable possibility" of a different outcome and that was sufficient for the ZBA to have to review Brandt's 2009 application on the merits. See also: Simplex Technologies, Inc. v. Town of Newington, 145 N.H. 727, 766 A.2d 713 (2001). See also: Boccia u City of Portsmouth, 151 N.H. 85, 855 A.2d 516 (2004). Case Note: In its decision, the court had also noted that although the other four criteria of the variance test under RSA 674 :33 have not changed (from 1994 to 2009) as much as the unnecessary hardship criterion, they have still been "refined and clarified" by case law. Zoning News from Around the Nation CALIFORNIA In an attempt to qualify for a referendum aimed at repealing San Jo- se's "new pot club rules," medical marijuana advocates have submitted 48,598 petition signatures. The "pot club rules" would "limit the number of medical marijuana collectives to 10 less than a tenth of the number © 2011 Thomson Reuters 11