dissenting. Ordinarily, I would concur with the result in this case, given the opinion in Boccia v. City of Portsmouth, 151 N.H. 85 (2004), which was argued and decided after this case was argued. Because this is my first opportunity to discuss the substance and significance of Boccia, however, I do so here and dissent, because I believe Boccia was wrongly decided.
In Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001), we revised our definition of unnecessary hardship. Recognizing that “our definition ... ha[d] become too restrictive in light of the constitutional protections by which it must be tempered,” we adopted an approach “more considerate of the constitutional right to enjoy property.” Simplex, 145 N.H. at 731. Departing from our earlier, more restrictive approach, we concluded that to satisfy the unnecessary hardship prong of the variance test, applicants must prove:
(1) a zoning restriction as applied to their property interferes with their reasonable use of the property, considering the unique setting of the property in its environment; (2) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and (3) the variance would not injure the public or private rights of others.
Id. at 731-32.
In Boccia, the court, for the first time, created a distinction between types of variances — area variances and use variances. Boccia, 151 N.H. at 91-92. Ruling that Simplex applied only to use variances, the court devised, for area variances, an entirely new unnecessary hardship test. Id. I believe the court erred by creating this needless test and constructing *224this arbitrary distinction between variances, unintended by both Simplex and RSA chapter 674. See Simplex, 145 N.H. at 732; RSA 674:33, I (b) (Supp. 2003).
By treating use variances and area variances differently, the court misinterpreted our holding in Simplex. In Simplex, we adopted an approach “more considerate of the constitutional right to enjoy property,” thereby signaling a relaxation of the definition of unnecessary hardship. Simplex, 145 N.H. at 731; see Bacon v. Town of Enfield, 150 N.H. 468, 481 (2004) (Nadeau, J., and Brock, C.J., dissenting). Simplex “was designed to loosen the strictures” that had long made the unnecessary hardship test virtually impossible for zoning boards to apply without violating landowners’ constitutional rights. Bacon, 150 N.H. at 481 (Nadeau, J., and Brock, C.J., dissenting).
Nothing in Simplex, however, rendered the moderation of the unnecessary hardship test contingent upon the type of variance sought, nor did that case even purport to distinguish between types of variances in the first instance. See Simplex, 145 N.H. at 731-32. By restricting the application of Simplex to use variances, the court undermines the substantial strides we made to better safeguard the constitutional rights of all landowners and to more properly balance those rights against the necessity of zoning ordinances. See id. Unlike the majority, then, I do not believe that Boccia and Simplex can co-exist harmoniously; for the protections afforded in Simplex to have weight, I believe that case, alone, must govern all requests for variances.
Furthermore, distinguishing between use and area variances is illogical given RSA 674:33, I (b). That statute makes clear that a showing of unnecessary hardship is always required whenever a landowner applies for a variance, irrespective of the type of variance sought. RSA 674:33, I (b). Indeed, based upon the wording of the statute, we have long said that we will not distinguish between use and area variances. See Ouimette v. City of Somerswortk, 119 N.H. 292, 295 (1979). As such, distinguishing between use and area variances, in my opinion, is both futile and impermissible. See RSA 674:33, I (b).
Finally, to permit zoning boards to distinguish between types of variances creates an ad hoc system of zoning, devoid of guidance for boards and predictability for landowners. I am concerned that the specific facts of each case will eventually lead to a limitless number of categories of variances, each provoking a different test for proving unnecessary hardship.
Because I disagree with the court’s holding in Boccia, I believe Simplex properly controls the instant case. The first prong of the unnecessary hardship definition established in Simplex requires applicants to prove *225that “a zoning restriction as applied to their property interferes with their reasonable use of the property, considering the unique setting of the property in its environment.” Simplex, 145 N.H. at 732. Based upon the record, I would conclude that the evidence supports the trial court’s ruling that the Shoplands satisfied the first prong of the unnecessary hardship definition. Although during the hearing in superior court, Edward Scovner, former vice-chairman of the ZBA, agreed that from his observations it would have been possible for the Shoplands to have located their home on another portion of their property, Russell Shopland testified concerning the specific conditions of the property that rendered the decision to build on the north side of the lot reasonable. See Rancourt v. City of Manchester, 149 N.H. 51, 54 (2003). To the east of the cottage is the lake, to the south is a brook flowing through the property, and to the west is a steep, thirty-five-foot slope that houses their septic system. These particular characteristics of the land itself rendered the Shoplands’ decision to construct their addition on the north side of the property reasonable. See id.
As to the second and third prongs of the unnecessary hardship inquiry, I would conclude the Shoplands established that no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on their property, and that the variance would not injure the public or private rights of others. See Simplex, 145 N.H. at 732.
At the first ZBA hearing to consider the Shoplands’ application for a variance, the minutes reflect that a member of the ZBA “asked Mr. Shopland why he couldn’t go up another story. Mr. Shopland said that the building is on pylons and there is no sturdy foundation. [James] Taylorf, the Town’s planning and zoning administrator,] said that this addition is the most environmentally sound thing to do with this piece of property.” (Emphasis added.) Although the Town asserts that Taylor provided subsequent testimony at trial which effectively contradicted his statement proffered at the ZBA hearing, I do not agree with that characterization.
Accordingly, the superior court reasonably could have found “that the general purpose of the ordinance is not served by the specific restrictions on this property.” The court also reasonably could have found that the public and private rights of others would be deleteriously affected by the alternative construction permitted by the ZBA, and could have concluded that those rights would not be appreciably injured by granting the variance. Thus, I would uphold the trial court’s ruling that the existence of unnecessary hardship was supported by the evidence and was not erroneous.
*226For these reasons, therefore, respectfully, I dissent.
BROCK, C.J., retired, specially assigned under RSA 490:3, joins in the dissent.