Friday, September 14, 2012

Practical difficulties or unnecessary hardship?

Land use planning law has perhaps no other area of greater complexity than variances. And one of the interesting issues that comes up in the context of variances, is the actual standard by which the zoning board is supposed to judge whether a variance should be granted or not.

Many state statutes, including Tennessee’s, indicate that a variance should only be granted where there are “practical difficulties” or “unnecessary hardship.” But what do those two terms mean? Are they synonymous? Do they have some independent meaning each to their own? And what does it mean in the context of granting a variance?

Here in Tennessee we don’t have too many answers. Personally, I believe that it is easier to construe the two terms synonymously. But there are certainly a number of states who refuse to do that, or who will apply let’s say the “practical difficulty” standard in the context of bulk variances, and the “unnecessary hardship” standard in the context of use variances. The theory is that use variances should be more difficult to get, and that the “unnecessary hardship” standard requires a higher level of proof. Other states, such as New Jersey, construe the two standards as the same.

I don’t think use variances are legal in Tennessee, for the most part, and that makes the distinction between bulk variances and use variances pretty much academic, and there is therefore not much need for any distinction between the two standards, “practical difficulty” and “unnecessary hardship.”

The reason I bring this all up is the release of a new opinion from the state of New Hampshire discussing this very issue. The New Hampshire Supreme Court concluded that given recent legislative initiatives in their state, that the “unnecessary hardship” and “practical difficulty” terms refer to the unnecessary hardship test and are interchangeable. Merriam Farm, Inc. v. Town of Surry, 2012 WL 2913206 (NH 2012)

I’m hopeful that if the issue ever arises here in Tennessee, that our Supreme Court will reach a similar result.

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