Rancourt appealed the decision of a zoning board granting a variance to permit
the construction of a barn for two horses on a neighboring three-ace lot.
The trial court upheld the variance and in this opinion, the New
Hampshire Supreme Court held that the variance was justified on hardship
grounds. The zoning ban on horses
was enacted after the property owners bought their land--which they did only
after verifying that horses were then permitted on the property.
plaintiffs, Bonnita Rancourt and other abutters to land in Manchester owned by
the intervenors, Joseph and Meredith Gately, appeal the Superior Court's (Barry,
J.) order affirming the decision of the defendant City of Manchester's zoning
board of adjustment (ZBA), granting the intervenors a variance. We affirm.
intervenors own a lot approximately three acres in size, located in an R- 1A
zoning district, a lower-density residential zoning district. The rear of the
lot is much larger than the front. The intervenors purchased the property in
2000, after having confirmed that the city's zoning ordinance permitted them to
stable horses on the lot.
May 2001, after contracting to build a single-family home on the lot, the
intervenors applied for a permit to build a barn in which to stable two horses.
The barn was to be constructed on one and one-half acres located in the rear
part of the lot. The permit was denied, however, because the city had recently
amended its zoning ordinance to prohibit livestock, including horses, in an R-
1A zoning district. Accordingly, the intervenors applied for a variance, which,
following a hearing, the ZBA granted. The plaintiffs appealed to the superior
court, and the superior court affirmed.
will uphold the superior court's decision on appeal unless it is not supported
by the evidence or is legally erroneous. Morgenstern v. Town of Rye, 147 N.H.
558, 565, 794 A.2d 782 (2002). For its part, the superior court shall not set
aside or vacate the ZBA's decision "except for errors of law, unless the
court is persuaded by the balance of probabilities, on the evidence before it,
that said order or decision is unreasonable." RSA 677:6 (1996). "To
the extent the ZBA made findings upon questions of fact properly before the
court, those findings are deemed prima facie lawful and reasonable."
Morgenstern, 147 N.H. at 565, 794 A.2d 782; see RSA 677:6.
674:33, I(b) (1996) authorizes a zoning board of adjustment to grant a variance
if the following conditions are met: (1) the variance will not be "contrary
to the public interest"; (2) "special conditions" exist such that
"a literal enforcement of the provisions of the ordinance will result in
unnecessary hardship"; (3) "the spirit of the ordinance shall be
observed"; and (4) "substantial justice" will be done. Only the
second condition, "unnecessary hardship," is at issue in this appeal.
recently articulated a new definition of "unnecessary hardship." See
Simplex Technologies v. Town of Newington, 145 N.H. 727, 731-32, 766 A.2d
713 (2001). In so doing, we departed from our traditionally restrictive approach
to this requirement. Id. at 731, 766 A.2d 713.
Simplex, to establish "unnecessary hardship," an applicant for a
variance had to show that a zoning ordinance unduly restricted the use of their
land. Id. at 730, 766 A.2d 713; see Governor's Island Club v. Town of Gilford,
124 N.H. 126, 130, 467 A.2d 246 (1983). For hardship to exist, the deprivation
resulting from applying the ordinance had to be "so great as to effectively
prevent the owner from making any reasonable use of the land." Governor's
Island Club, 124 N.H. at 130, 467 A.2d 246 (emphasis added). The focus of the
prior test was on "[t]he uniqueness of the land, not the plight of the
owner." Grey Rocks Land Trust v. Town of Hebron, 136 N.H. 239, 243, 614
A.2d 1048 (1992).
Simplex, we held that our prior test was "too restrictive in light of the
constitutional protections by which it must be tempered ." Simplex, 145 N.H.
at 731, 766 A.2d 713. We thus adopted an approach that was more considerate of a
property owner's constitutional right to use his or her property. Id.
Simplex, to establish "unnecessary hardship," an applicant for a
variance must show that: (1) a zoning restriction applied to the property
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." Id. at 731-32, 766 A.2d 713. Under Simplex, applicants no longer
must show that the zoning ordinance deprives them of any reasonable use of the
land. Id. at 730-32, 766 A.2d 713. Rather, they must show that the use for which
they seek a variance is "reasonable," considering the property's
unique setting in its environment. Id. at 732, 766 A.2d 713.
plaintiffs assert that the intervenors were not entitled to a variance because
there were no "special conditions" that warranted it. See RSA 674:33,
I(b). To support their argument, however, they mistakenly rely upon case law
developed before Simplex. Whereas before Simplex, hardship existed only when
special conditions of the land rendered it uniquely unsuitable for the use for
which it was zoned, see Margate Motel, Inc. v. Town of Gilford, 130 N.H. 91, 94,
534 A.2d 717 (1987), after Simplex, hardship exists when special conditions of
the land render the use for which the variance is sought "reasonable."
In the first prong of the Simplex test, "special conditions" are
referred to as the property's "unique setting ... in its environment."
the trial court and the ZBA could rationally have found that the zoning
ordinance precluding horses in an R-1A district interfered with the intervenors'
reasonable proposed use of their property, considering its unique setting.
Evidence before the ZBA showed that the intervenors' lot was located in a
country setting. Evidence before the ZBA also showed that the lot was larger
than most of the surrounding lots and was uniquely configured in that the rear
portion of the lot was considerably larger than the front. The ZBA also had
evidence that there was a "thick wooded buffer" around the proposed
paddock area. Further, the area in which the intervenors proposed to keep the
two horses constituted an acre and a half, which, according to the city's zoning
laws, was more land than required to keep two livestock animals. The trial court
and the ZBA could logically have concluded that these special conditions of the
property made the proposed stabling of two horses on the property
plaintiffs argue that a use is not "reasonable" unless it is
established in the neighborhood or customarily associated with or consistent
with established uses in the neighborhood. They cite no direct legal support for
this argument, relying instead upon the law of accessory uses. We decline the
plaintiffs' invitation to extend the law of accessory uses to variances.
the plaintiffs do not otherwise challenge the trial court's rulings on the
Simplex unnecessary hardship test on appeal, we do not address them.
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