07-13-2010 Council Work Session Packet

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_ _ _ i � - � We recognize that the standard we apply today, while followed elsewhere, is not the universal rule.13 For example, in Si�nplex Technologies, Inc. v. Town of Newington, 766 A.2d 713 (N.H. 2001), the New Hampshire Supreme Court provided a thorough and I insightful review of the development of land use variance law, and its practical construction in modern times. T'he New Hampshire statute did not contain a specific definition of"unnecessary hardship," like our statute does, and the court concluded that its prior definition of the statutory term "unriecessary hardship" "ha[d] become too restrictive in light of the constitutional protections by which it must be tempered." Id. at ', 717. The New Hampshire Supreme Court framed the issue in the following terms: Inevitably and necessarily there is a tension between zoning ordinances and property rights, as courts balance the right of citizens to the enjoyment of 13 While most jurisdictions use the phrase "unnecessary hardship" rather than "undue hardship" as the applicable standard, many jurisdictions appear to require that the variance applicant establish real hardship if the variance is denied rather than simply requiring that the applicant show the reasonableness of the proposed use. See, e.g., Larsen v. Zoning Bd. of Adjustnzent of Pittsburgh, 672 A.2d 286, 290-92 (Pa. 1996) (holding that the"mere desire to provide more room for a family member's enjoymeizt" is insufficient to constitute "unnecessary hardship" under the statute and requiring applicants to show that, if the variance request is denied, the property will be "practically useless"); OK PropeT•ties v. Zoning Bd. of Review of Warwick, 601 A.2d 953, 955 (R.I. 1992) ("The court has determined that unnecessary hardship e�cists when restricting the property to the permitted uses within the zoning ordinance will deprive the property owner of all beneficial use of the property and that granting a variance becomes necessary to avoid an indirect confiscation of the property."); Cochran v. Fai�fax County Board of Zoning Appeals, 594 S.E.2d 571, 577 (Va. 2004) ("[T]he [Board of Zoning Appeals] has no authority to grant a variance unless the effect of the zoning ordinance, as applied to the piece of property under consideration, would, in tlie absence of a variance, interfere with all reasonable beneficial uses of the properry, taken as a whole.") (internal quotation marks omitted); 3 Anderson's Law of Zoning § 20.16 (Kenneth H. Young ed., 4th ed., 1996) (describing different states' approaches to the "unnecessary hardship" standard and suggesting that most states give the term a fairly restrictive construction). 18