New Hampshire Zoning Variances - Can You Win on a Theory Never Raised Before the ZBA?
In New Hampshire zoning appeals, failing to raise an argument at the ZBA level often prevents a party from raising the issue on appeal.
But when the issue goes to whether the use is permitted under a permissive zoning ordinance, and the denial is based on unnecessary hardship, the Supreme Court has made clear that it cannot be ignored just because it was not raised below.
Background
In a recent order, the New Hampshire Supreme Court addressed a zoning appeal arising from a variance request for short-term rental use in Claremont.
The applicants owned property spanning two zoning districts. In 2018, they placed a recreational vehicle on the property for personal use, and in December 2020, they began offering it as a short-term rental.
In May 2022, the City Planner advised that the use was not permitted without a variance. The applicants then applied to the Zoning Board of Adjustment (ZBA) for variances to continue the use and to construct an additional structure for similar use.
After hearings and a site visit, the ZBA denied the application for lack of unnecessary hardship. The applicants appealed to the Housing Appeals Board (HAB).
Housing Appeals Board
The HAB treated the case as a standard variance appeal and limited its review to the unnecessary hardship criterion.
The applicants argued for the first time their proposed use was permitted under the ordinance and that no variance was required.
The HAB refused to consider that argument. It concluded that the applicants had not raised the permitted-use issue before the ZBA and treated the issue as waived. It then affirmed the denial based solely on lack of hardship.
Supreme Court
The Supreme Court vacated and remanded.
In rendering its decision, the Court relied on its prior decision in Bartlett v. City of Manchester, which established a key principle in New Hampshire zoning law. In a variance case, a tribunal cannot evaluate unnecessary hardship without first determining what uses the ordinance permits. That question is embedded in every variance application because the hardship analysis depends on the owner’s baseline rights.
The Court also made clear that this issue is not waived simply because the applicant did not raise it before the ZBA. A tribunal must still determine what uses the ordinance allows when that determination is necessary to evaluate hardship.
This principle carries particular force under a permissive zoning ordinance. In that type of ordinance, the municipality lists the uses allowed in each district, and any use not listed is prohibited. That structure requires a threshold determination - whether the proposed use fits within a permitted category.
The HAB did not make that determination. It denied the variance based solely on lack of hardship without deciding whether the use was allowed.
The Court vacated the decision and remanded. On remand, the HAB must determine whether the proposed use is permitted under the ordinance. If the record is insufficient, the HAB must remand the matter to the ZBA for further fact finding.
Key takeaway
In short, when appealing a variance denial based on unnecessary hardship, a permitted-use argument is not lost simply because it was not raised before the ZBA, and under a permissive zoning ordinance the tribunal must decide whether the use is allowed before denying a variance on that ground.
But this rule has limits. It works only because the hardship analysis forces the tribunal to determine baseline permitted uses, and if the ZBA denies a variance on other grounds and hardship is not at issue on appeal, the argument still may be treated as waived.
The safer course is to identify and develop permitted-use theories at the ZBA stage whenever possible.
Appeal of Verbeek, No. 2025-0239 (non precedential order) (N.H. May 8, 2026). (Because the Court issued an “order” rather than an “opinion,” the ruling has no precedential authority over other cases, but it may provide guidance on how New Hampshire courts may approach similar issues in the future.)
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