2004-302, APPEAL OF NH DEPARTMENT OF TRANSPORTATION

board’s decision. exercise of the DOT’s administrative rulemaking authority and reverse the three driveway rule. We conclude that the three driveway rule is a valid the DOT. The respondent filed a cross - appeal contesting the validity of the pursuant to an exception to the so - called three driveway rule promulgated by David C. Dobbins. The permit would allow direct access to a State highway 21 - L:14 (2000), requiring that a driveway permit be granted to the respondent, Transportation (DOT), appeals a decision of the appeals board (board), see RSA BRODERICK, C.J. The petitioner, the New Hampshire Department of

orally), for the respondent. Barto and Puffer, P.A., of Concord (Mark H. Puffer on the brief and

petitioner. general, on the brief, and Lynmarie C. Cusack, attorney, orally), for the Kelly A. Ayotte, attorney general (Craig S. Don ais, assistant attorney

(New Hampshire Transportation Appeals Board)

No. 2004 - 302 Transportation A ppeals Board

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

again rejected his application, stating i n part: him then and are not possible now” since he no longer owned lot p. 2 2. District 5 suggested by District 5 in its 1999 denial of his permit “were not acceptable to permit for lot 3, stating that the alternative driveway access solutions In January 2000, the respondent renewed his request for a driveway

Jewett Road. and subsequently sold lot p. 2 2 without reserving any right of access for lot 3 to t he existing driveway on lot 2. The respondent did not appeal this decision, create a common driveway for lots 2 and 3, or create an easement for lot 3 from constructed.” It recommended that he either relocate the driveway for lot 2 to driveways allowable [for] the original parcel have already been permitted and District 5 denied the request, again reasoning that “the m aximum number of point for lot 3. In 1999, he sought a permit to construct a driveway for lot 3. He did so with the knowledge that District 5 had refused to grant a fifth access substantially reduced price, as compared to t he other lots in the subdivision. In April 1991, the respondent purchased lot 3 from the Jennings at a

3 for driveway use. and 3 share a driveway, or that either lot p. 2 2 or 4 grant an access easement to lot for lot 2 be changed to create a common dr iveway access with lot 1, that lots 2 access [would] be permitted to this property,” and suggested that the driveway than would be allowed normally. It ruled that “[n]o more than 4 points of District 5 noted that the four driveways it authorized in 1986 was one more own driveway permit, and sought relief from District 5. In denying the request, Jennings, who still owned lot 3, knew that the lot had not been provided its a permit to construct a driveway on to Jewett Road. By December 1988, Mr. In 1988, the respondent purchased lot 2 from the Jennings, and secured

to secure it is at the center of the dispute before us. Jewett Road. Lot 3 remains without such access, and the respondent’s ability various permits, District 5 granted four of the five lots direct driveway access to Jennings sold all five lots to various purchasers at different times, and through approved driveways had not been completed. In the 1980s and 1990s, t he permit, however, expired in June 1987 because construction of all the driveways was issued, with lots 1 and p. 2 2 to share a common driveway. The access points for the subdivision onto Jewett Road. A permit for four Maintenance District 5 (District 5) of the DOT to construct several driveway subdivided the parcel into five lots. Thereafter, they sought permission from frontage along Jewett Road, a State - maintained highway. In 1986, they Jennings owned a thirty - one acre parcel in Dunbarton, which had 1,678 feet of necessary to the resolution of this appeal. In the 1980s, Frederick and Sylvia The procedural history of this case is protracted but its recitation is

driveway rule was a valid exercise of administrative authority and was properly t he DOT hearings examiner affirmed the permit denial. He ruled that the three The respondent again appealed, an d following a hearing in June 200 p. 3 3,

exceeding the four points already permitted. which would satisfy conditions for the granting of a point of access parcel, no unusual circumstance or hardship was demonstrated this request and the h istory of driveway permitting to the original After careful consideration of the. . . documentation and review of

access . . . in light of this condition.” District 5 concluded: 5 determined that the subdivision had already received “[t]he fourth point of of an additional point” under the exception to the three driv eway rule, District highway frontage in excess of 1000 feet and thus “qualif[ied] for consideration request. Although noting that the original thirty - one acre parcel had State application for lot p. 3 3. Following its review, District 5 again denied the driveway In September 2002, the respondent submitted a complete permit

order to the board, which affirmed the hearings examiner’s decision. should a further hearing be required.” The respondent appealed this remand driveway permit policy] in order to permit a full review of the determinatio n findings of fact with respect to each item contained in Section 8 of [the DOT’s District 5 to apply the pertinent administrative rules and “make specific to allow the respondent to submit a complete pe rmit application, and for Rules,] Tra p. 3 302.08.” The hearings examiner remanded the matter to District 5 consideration of access limitations pursuant to [New Hampshire Administrative considering the full set of fac ts applicable to this property, and precluded a full “lack of information [was] material, because it prevented the District from face and should not have been considered by District 5. He concluded that the permit ap plications to construct a driveway for lot 3 were incomplete on their commissioner’s behalf, determined that the respondent’s 1999 and 2000 commissioner of the DOT. In 2001, the DOT hearings examiner, acting on the The respondent pursued an appeal of District 5’s decision to the

District 5 denied the responde nt’s request for reconsideration.

two or lot four. time. It is recommended lot three share a driveway with either lot restrictions in place. It would not be appropriate to change at this land transactions have taken place since 1986 with these aware of the need to share access before you sold [lot tw o]. Several needed to share an access before you bought it. You were also a maximum of four driveways. You were aware that lot three It has been clear since 1986 that this property would be served by p. 4 4

DOT with baseline parameters to consider when determining whether and highway (State highway). RSA 236:13, I, II (1993). The statute provides the a class I or class III highway or to the State - maintained port ion of a class II person to obtain a permit from the DOT before constructing driveway access to which is a former version of RSA 236:13). The driveway statute requires a Associates, Inc. v. Sandown, 121 N.H. 317, 319 (1981) (citing RSA 2 p. 4 49:17, I, complying with the terms of a permit obtained from the [DOT].” J. E. D. anyone to construct or alter any entrance onto a State highway without and other means of access to State highways and has made it unlawful for statute, RSA 236:13, which gives the DOT “broad power to regulate drivewa ys Within this comprehensive scheme, the legislature enacted the driveway

court, and the public for such administration.” RSA 21 - L: p. 4 4, I (2000). administration of its functions, and be “r esponsible to the governor, the general another state agency,” RSA 21 - L:2, II(c), “[r]epresent the public interest” in the transportation activities required by law which is not within the jurisdiction of RSA 21 - L:2, II (2000). The DOT must “[p]erform[ ] any regulation of

welfare of the citizens of the state. state growth and economic development and promote the general state by means of a system of highways . . . in order to support safe and convenient movement of people and goods throughout the maintaining a state transportation network which will provid e for shall be responsible for . . . [p]lanning, developing, and

RSA 21 - L:1, I (2000). The legislature provided that the DOT

single department responsible for transportation functions. citizens of New Hampshire are best secured by e stablishing a [and] that the economic well - being and physical safety of the transportation procedures, programs, and related functions . . . achieved by the consolidation and unified direction of the efficient administration of transpo rtation functions is best

the legislature declared that for the parties’ arguments and for resolution of this case. In creating the DOT, We first review the relevant statut es and regulat ions to provide context

res pondent cross - appealed. was compelled to grant a driveway permit for lot 3. The DOT appealed, and the the three driveway rule. It ruled that given the evidence presented, the DOT concluding that the hearings examiner erred by failing to apply the exception to applied to this case. The respondent appealed to the board w hich reversed, p. 5 5

for a parcel of land. In large part, this section mirrors the requirements set outlines the restrictions for the maximum number of access points allowable Section 8 of the Driveway Permit Policy, entitle d “access limitations,”

board examined in their respective decisions. N.H. DPP, supra § 8. contains the three driveway rule that both the hearings examiner and the “Drivewa y Permit Policy” or “N.H. DPP”). The 2000 Driveway Permit Policy no. 2000 - 01; issued March 10, 2000) (hereinafter referred to and cited as Other Accesses to the State Highway System at 1 (N.H. DOT declaratory ruling declaratory ruling by reference.” Policy for the Permitting of Driveways and Commissioner adopted New Hampshire Administrative Ru les, Tra 302 “as a the requirements of the APA, see RSA p. 5 541 - A:21(g) (1997). The DOT DOT to promulgate rules effectuating the driveway statute, RSA 236:13, from chapter 541 - A (A PA), the legislature thereafter exempted the authority of the adopted such rules in accordance with the Administrative Procedure Act, RSA Rules, Tra 302 to govern its issuance of driveway permits. While the DOT The DOT subsequently promulgated New Hampshire Administrative

be sa fest,” RSA 236:13, III(b). and this access shall be at that location which the commissioner determines to commissioner shall not permit more than one access to a single parcel of land, of 400 feet in both directions along the highway can be obtained, the considered a “single parcel of land,” and “[u]nless all seas on safe sight distance 236:13, IV(b) (1993). Further, under RSA 236:13, III (1993), subdivisions are parcel of land unless the frontage along that highway exceeds p. 5 500 feet.” RSA driveways, entrances, exits or appr oaches from any one highway to any one prescribes that: “No construction permit shall allow . . . [m]ore than 2 As to the number of access points allowed per parcel of land, the statute

safety of the traveling public. (d) Include any other terms and specificat ions necessary for the in all seasons of the year. drainage and permit a safe and controlled approach to the highway (c) Establish grades that adequately protect and promote highway ch annelization islands to be installed by the abutter. (b) Describe any drainage structures, traffic control devices and protect the safety of the traveling public. approach. The location shall be selected to most adequately (a) Describe the location of the driveway, entrance, exit, or

grants a permit, the permit shall: under what conditions to grant such a permit. For example, when the DOT p. 6 6

because the DOT relied solely upon the three driveway rule to deny his permit respondent challenges the validit y of the three driveway rule. He contends that number of access points for any particular parcel. In his cross - appeal, the and to provide the DOT with the discretion to determine the appropriate haza rd caused by the aggregate impact of access points along a State highway, contends that the driveway statute was designed to address the general safety that would be compromised before denying the respondent’s permit. The DOT unusual conditions exception as requiring it to identify specific safety concerns On appeal, the DOT argues that the board erroneously interpreted the

respondent’s application as a request for an additional exception. comprising an exception to the presumptive limit, and the board evaluated the granted the subdivision four access points, with the fourth driveway the three driveway rule to the subdivision as a whole. District 5 originally tract had more than 500 feet of State highway frontage, the DOT has applied property is considered as part of the entire subdivision tract. Because that permit is not reviewed based on the bounds of his particular lot. Rather, his Therefore, under the Driveway Permit Policy, his ability to secure a driveway The respondent’s land is part of a tract that was subdivided in 198 p. 6 6.

ex ception. See N.H. DPP, supra § 8(d). engineer to consider when deciding whether to grant a permit under the N.H. DPP, supra § 8(d). Particular factors are prescribed for the district which generally relate to some distinct characteristic of a particular property. the presumptive three driveway limit “if warranted by unusual conditions,” application, see N.H. DPP, § 4, the authority to grant a driveway permit beyond however, also reserves to the district engineer, who first reviews the permit evaluating the frontage requir ement under the three driveway rule. The rule, subdivision created after that date is considered as a single lot of record when recorded . . . on or before July 1, 1971,” N.H. DPP, supra § 3(q). Thus, a separately d escribed and delineated . . . on a locally approved subdivision plan DPP, supra § 3(t). A “lot of record” is defined as a “parcel of land that was or common ownership, including any proposed . . . subdivision . . . .” N.H. N.H. DPP, supra § 8(c). A “parcel” is defined as a “tract of land under a single

highway users, and to maintain the level of service of the high way. greater safety for the subdivision occupants as well as other highway right of way shall be utilized, if practicable, to provide const ruction of internal street systems or service roads outside the more than 3 driveways or accesses shall be permitted. The parcel of land or lot of record [exceeds] 152 meters, or 500 feet, no Except as provided in subsection (d), when frontage on a single

contains the three driveway rule, which provides: forth in the driveway statute. See, e.g., N.H. DPP, supra § 8(a), (b). I t also p. 7 7

drainage structures, see RSA 236:13, II(b), and proper driveway width, see RSA application. Instead, it provided basic parameters, such as concern for proper standards for the DOT to follow when reviewing a particular driveway permit respect to the driveway statute, the legislature did not provide comprehe nsive of developing and maintaining a safe statewide transportation network. With RSA 236:13, II. As noted above, the legislature charged the DOT with the duty (2000), as well as its authority for administering dr iveway permits, see, e.g., the statutes prescribing the DOT’s general authority, see, e.g., RSA 21 - L:2, I The policy of protecting the traveling public on State highways underlies

DOT’s authority, see Appeal of Brady, 145 N.H. 308, 310 (2000). Richard M., 12 p. 7 7 N.H. at 17, in the context of other statutes relevant to the 183. In doing so, we review the plain language of the driveway statute, In re the purpose of the driveway statute legislation, Appeal of Anderson, 147 N.H. at the rule - making power granted by the legislature to the DOT, see id. at 17, and of administrative rule - making authority, we look first to the intended scope of To discern whether the three driveway rule constitutes a proper exercise

invalid. See In re Richard M., 12 p. 7 7 N.H. 12, 16 - 17 (1985). beyond the limited discretion granted by the legislature, we will declare the rule 569. Accordingly, if the DOT in promulgating the three driveway rule acted legislature when, o ut of necessity, it delegates certain limited powers.” Id. at the responsibility “to insure that another will is not substituted for that of the any way modify statutory law,” Kimball, 118 N.H. at 568. Ultimately, we bear 1 81, 183 (2001) (quotation omitted), and cannot “add to, detract from, or in not possess the power to contravene a statute,” Appeal of Anderson, 147 N.H. Accountancy, 118 N.H. 567, 568 (1978). Administrative officials, however, “do details to effectuate the purpose of the statute.” Kimball v. N.H. Bd. of 88 N.H. 296, 298 (1936). This rule - making authority per mits “boards to fill in provision.” State v. Normand, 76 N.H. 541, 546 (1913); see Ferretti v. Jackson, regulations in aid of the successful execution of some general statutory administrative board or body to adopt ordinances, rules, by - laws, or It is well established that the legislature may “authorize an

modifies the statutory scheme.” the DOT’s attempt to limit such parcels to three driveways “clearly adds to and the number of drivew ays allowed for parcels which exceed 500 feet in length, He contends that because the driveway statute, RSA 236:13, does not address exceeded its rule - making authority when promulgating the three driveway rule. We turn first to the respondent’s cross - appeal. He argues that the DOT

his application, we should affirm the board’s decisio n. request and acknowledged that no specific safety concern warranted denial of p. 8 8

by any particular parcel by requiring that another traveler on the road.” Thus, the DOT minimizes conflict points created due to the increased number of opportunities for a traveler to conflict with examiner in its deci sion, “[a]s access points are increased, safety is decreased number of access points along a State highway. As noted by the hearing highway frontage. The DOT imposed this limitation in order to minimize the subdivision tract as it existed in 1971, with more than 500 feet of State presumptive limit of three driveways for any parcel, which includ es the entire from securing more than three access points. Rather, the rule creates a for any parcel, and the three driveway rule does not foreclose a property owner DOT retains discretion to determine wheth er multiple driveways will be granted access points for parcels with State highway frontage in excess of 500 feet. The N.H. at 1 p. 8 83 - 84. The driveway statute is silent as to a maximum number of granted to the DOT concerning driveway permits. See Appeal of Anderson, 147 the standards in the driveway statute nor oversteps the limited discretion We further conclude that the three driveway rule neither conflicts with

State highway frontage. driveway acces s points for parcels, including those with more than 500 feet of legislature granted the DOT rule - making authority to determine the number of highways not of particular means of access). Accordingly, we conclude that the (landowner’s vested right of access consists only of access to system of public roadway, see Merit Oil of N.H., Inc. v. State, 123 N.H. 2 p. 8 80, 281 (1 983) public, while affording landowners abutting State highways access to the Anderson, 147 N.H. at 183, which is to preserve the safety of the traveling must, of course, effectuate the purpose of the driveway statute, see Appeal of governing the number of access points that may be granted. Any such rules we conclude that the plain implication is that the DOT may promulgate rules constructing a driveway and the grant of multiple driveways is discretionary, Because parties must receive a permit from the DOT before lawfully

DOT, see, e.g., RSA 21 - L:2, I. 236:13, II, and the overarching promotion of public safety entrusted to the particu lar safety concerns outlined in the driveway statute, see, e.g., RSA many access points it will grant to a particular parcel, in keeping with the express restrictions, the DOT necessarily retains discretion to determine how prescribes a maximum number allowable in certain instances. Beyond the not entitle a landowner to any specific number of driveways, and simply have more than two driveways. RSA 236:13, IV(b). Notably, the statute does III(b). Second, all parcels with 500 feet or less of State highway frontage cannot distance” requirement, cannot h ave more than one access point. RSA 236:13, like subdivisions, which fail to satisfy the 400 - foot “all season safe sight statute establishes only two specific restrictions. First, certain types of parcels, 236:13, IV(a). Regarding the number of driveway access points, the driveway p. 9 9

We agree. by the respondent’s proposed driveway before denying his permit application. rule because it required the DOT to identify specific safety concerns presented in its interpretation of the unusual conditions exceptio n to the three driveway We next turn to the DOT’s appeal. The DOT argues that the board erred

address his argument on appellate review. every ground claimed to be unlawful or unreasonable). Thus, we will not under RSA chapter 541); RSA 541:3, :4 (1 p. 9 997) (rehearing motion must se t forth board. See RSA 21 - L:18 (2000) (appeal to board treated as rehearing motion before the hearings examiner, he failed to raise it in his notice of appeal to the argument. To the extent the respondent may h ave advanced this argument statute. The record does not establish that he properly preserved this parcels as they existed on July 1, 1971, the effective date of the driveway overstepped it s rule - making authority by applying the three driveway rule to We decline to address the respondent’s argument that the DOT also

legislative power. provided that the general court has viewed it as an improper usurpation of its (N.H. Dept. of Public Works and Highways) (June 1 p. 9 972). No evidence has been Other Accesses to the State Highway System, “Design Requirements” para. 1 been in place for over thirty years. See Policy and Procedure for Driveways and of statute in doubt). The pertinent provisions of the three driveway rule have statute by administrative entity without legislative interf erence when meaning 108 - 09 (1985) (court defers to long - standing practical interpretation given legislative intervention. Cf. N.H. Retirement System v. Sununu, 126 N.H. 104, the DOT’s rule - making authori ty is its long - standing existence without Finally, supporting our conclusion that the three driveway rule is within

convenient” movement of people and goods, see RSA 21 - L:2, II(a). and maintain a State transportation network which provides for the “safe and the very purpose of the driveway statute, as well as its duty to plan, develop when devising the presumptive three driveway limit, the DOT was effectuating N.H. DPP, supra § 8(c). Rather than infringing upon the legislature’s authority

of the highway. as other highway users, and to maintain the level o f service to provide greater safety for the subdivision occupants as well outside the highway right of way shall be utilized, if practicable, [t]he construction of internal street systems or service roads p. 10 10

1971, as amended . . . . (f) Maintain compliance with RSA 236:13, effe ctive July 1, and exits; and (e) Monitor the design and construction of driveway entrances could require alterations to the existing highway; (d) Maintain the serviceability of affected highways, which state mainta ined portion of class II highways; (c) Acquire appropriate sight distance on or to any class I, III or (b) Minimize conflict points; public through the orderly control of traffic movement[;] (a) Provide maximum safety and protection to the traveling

ac cordance with the following principles: requests for access to the state highway system shall be in submissions, and issuance of driveway permits. All review of throughout the state for receipt of applications, review of The purpose of this policy is to provide a uniform procedure

See N.H. DPP, supra § 8(d). That section provid es that: keeping with the Driveway Permit Policy, as described in the “purpose” section. driveway permit granted as an exception to the three driveway rule is in request. See N.H. DPP, sup ra § 8(d)(1), (2). The policy prong ensures that any or characteristics of the parcel which is the subject of the driveway permit consideration of several factors which generally relate to the physical features N.H. DPP, supra § 8(d)(1), (2). The unnecessary hardship prong requires intent of this policy as expressed in the Purpose section above” (policy prong). “[w]hether the grant of a driveway permit is consistent with the spirit and unnecessary hardship to the applicant” (unnecessary hardship prong); and (2) inquiries: (1) “[w]hether the literal enforcement of the poli cy will result in three driveway limit under the unusual conditions exception requires two Review of a permit application for an access point beyond the presumed

legislative intent). without legislative interference, is evidence that construction conforms with N.H. at p. 10 108 - 09 (long - standing practical and plausible agency interpretation, insight, it is not necessarily entitled to presumptive weight. Cf. Sununu, 126 practice. Therefore, while the board’s analysis may offer some persuasive nor suggested that its construction of such exception has been a long - standing us with the board’s prior interpretation of the unusual conditions exception, total.” I d. at 424 (quotation omitted). Here, the parties have neither provided accorded to an agency’s interpretation of its regulations, that deference is not of Flynn, 145 N.H. 422, 423 (2000) (quotation omitted). “While deference is possible, we ascribe the plain and ordinary meanings to words used.” Appeal “In construing [administrative] rules, as in construing statu tes, where p. 11 11

permit applicant. Cf. Harrington v. Town of Warner, 152 N.H. 74, 77 (2005) and establishing both prongs of the exception, however, properly lies with the distinct factual circumstances of a case. The burden of presenting evidence and unlike the three driveway rule its elf, requires the DOT to consider the driveway limit when particular, distinct characteristics of the land warrant it, exception, however, is designed to provide relief from the presumptive three for each subdivision tract. See N.H. DPP, supra § 8(c). The unusual conditions and threaten the safety of the traveling public with more than three driveways access system when possible, rather than burden the State highway system proposed driveway. Developers are required to construct an internal road particular safety impact that may or may not be created by any in dividual of multiple access points along a State highway, without regard for the The three driveway rule was designed to minimize the aggregate impact

esta blish the absence of specific safety concerns. driveway, the board erroneously placed the burden of proof upon the DOT to consideration of the specific circumstances presented by a particular proposed Permit Policy. We conclude, however, that although the policy prong requires create a specific safety issue in conflict with the stated purp ose of the Driveway on the record established, that the respondent’s proposed driveway would for failing to present any evidence, or make any specific findings that evidence the three driveway rule, in and of itself. The board essentially faulted the DOT safety concern was involved in the denial of the requested permit, other than with the “purpose” section, and (3) the record demonstrated that no specific specific evidence in dicating that the proposed driveway would be inconsistent implicated by the proposed driveway, (2) the hearings examiner failed to cite because (1) the DOT conceded that there was no specific safety concern The board determined that the policy prong was conclusively established

Policy] as set forth in the “Purp ose” section. inconsistent with the purpose and intent of the [Driveway Permit to make specific findings as to why the proposed driveway is order to deny the permit on safety grounds, the [DOT] is required Purpose clause of the [Driveway P ermit Policy]. Essentially in conclude that the requested exception is not consistent with the driveway presents a specific safety problem in order for the State to to make a specific determination as to whether the proposed

The board determined that the pol icy prong compels the DOT

prong. the policy prong was satisfied, we do not address the unnecessary hardship Because we conclude that as a matter of law the board erred in deciding that

N.H. DPP, supra § 1. p. 12 12

NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.

Accordingly, we reverse th e decision of the board. driveway permit application under the exception to the three driveway rule. that the board erroneously compelled the DOT to grant the respondent’s administrative rule - making authority granted to the DOT. We further conclude In sum, we conclude that the three driveway rule is a valid exercise of

application. concerns underlying the three driveway rule to deny the respondent’s permit unusual conditions exception, the DOT may rely upon the generalized safety prong. Accordingly, without demonstrable facts supporti ng both prongs of the that his proposed driveway would satisfy the concerns identified in the policy respondent makes no suggestion that he submitted any evidence to establish establish all requiremen ts to warrant the grant of an exception. The exception from the three driveway rule, and the burden remained with him to instance, to present such evidence. It is the respondent who sought an driveway. The board erred, however, by requiring the DOT, in the first to exhibit any evidence of specific safety concerns pertaining to t he proposed In this case, no one disputes the board’s statement that the record fails

zoning ordinance). (landowner bears burden of establishing certain factors to obtain variance from