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Senate committee hears debate over removing 'unnecessary hardship' from variance test
Summary
Senate committee testimony split over SB 435, which would drop the 'unnecessary hardship' prong from the five‑part zoning variance test; sponsors say it will reduce inconsistent application and litigation, while municipal officials warn it could erode property protections tied to a parcel's unique attributes.
Senate members and witnesses heard competing arguments over Senate Bill 435, a proposal to eliminate the 'unnecessary hardship' prong from the state’s five‑part variance test.
Senator Daryl Abbess, the bill’s prime sponsor, told the committee SB 435 would remove a criterion that he has seen applied inconsistently and which often confuses applicants and boards. "It's a 5 part criteria. You just make it 4; it eliminates the hardship criteria," Abbess said, arguing the remaining four criteria protect abutters and that removing the fifth prong would produce a cleaner, less litigious process.
Margaret Burns of the New Hampshire Municipal Association opposed the bill. Burns said variances are "a safety valve to prevent an unconstitutional taking of property" and described the unnecessary‑hardship test as the element that connects a variance decision to a property’s particular circumstances. "The unnecessary hardship part is a key component of the test because it is the part of the test that ties the zoning ordinance to the particular piece of property," Burns told the committee.
Committee members debated examples used by local zoning officials. A member who identified experience as a former zoning board chair described wetlands and frontage issues as classical hardship scenarios; Abbess countered that applicants can sometimes redesign or reduce scale to meet objective standards and that the other four criteria (character of the neighborhood, public safety, property devaluation, etc.) already address abutter impacts.
Representatives of the New Hampshire Association of Realtors and local planning officials described practical burdens. "Based on our experience, the most frustrating barrier to obtaining a variance is the hardship criterion," said Joni McIntyre, vice chair of advocacy for the Association of Realtors, who urged simplifying the test for ordinary homeowners. Diana Lush, a former planning‑board chair from Raymond, recommended expanded training for ZBA members and said recurring, identical variance requests are often better addressed by local zoning changes.
No final action was taken on SB 435 at the hearing. The public hearing was closed and senators indicated they would consider clarifying language or amendments rather than an immediate repeal; the committee later moved into executive session for further discussion.
The committee's next steps include possible drafting assistance to clarify the statutory tests and follow‑up conversations between the sponsor and stakeholders.
