2009-023, THE HILL-GRANT LIVING TRUST v. KEARSARGE LIGHTING PRECINCT

The plaintiff, Hill-Grant Living Trust, appeals an order of the

the defendant. (William G. Scott and Leslie M. Leonard on the brief, and Mr. Scott orally), for Boynton, Waldron, Doleac, Woodman & Scott, P.A., of Portsmouth

brief and orally), for the plaintiff. Cooper Cargill Chant, P.A., of North Conway (Randall F. Cooper on the to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE HILL-GRANT LIVING TRUST

No. 2009-023 editorial errors in order that corrections may be made before the opinion goes Carroll Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as motion to dismiss, which we deferred ruling upon until after oral argument.

p. 2 moot.” In addition to briefing the mootness argument, the precinct filed a

by prohibiting any development on the subject property.”

application for consideration,” failing which, its “claim for damages is rendered property. The precinct asserts that the plaintiff “needs to submit a new and, therefore, the 900–foot restriction is no longer applicable to the plaintiff’s

depriving the Plaintiff of all economically beneficial use of those property rights

the ordinance merely limits its claim to one for a temporary taking. It also

[900-foot restriction] to the plaintiff’s property was a categorical taking, motion for summary judgment because “the adoption and application of the ZBA. It also contends that the trial court erred in failing to grant its cross- Constitution’s Fifth Amendment. the ground that a failure to pay compensation would violate the Federal

precinct’s contention that the plaintiff’s taking claim is now moot because the

The plaintiff disputes that its claim is moot, arguing that rescission of

denial of its variance application “was not a final, definitive position” of the

under the State Constitution and damages under 42 U.S.C. § 1983 (2006) on

Before addressing the plaintiff’s arguments, we first consider the the

On appeal, the plaintiff argues that the trial court erred in ruling that the

condemnation by regulatory taking. The plaintiff sought just compensation premature.” the Williamson standard, the court concluded that “this litigation is Williamson finality doctrine to state regulatory takings claims.” Applying plaintiff did not appeal that decision. this court, “when presented with the opportunity to do so, . . . [would] apply Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), agreeing with the parties that employed the federal finality doctrine espoused in Williamson Planning In granting the precinct’s motion for summary judgment, the trial court

more than 900 feet above sea level. parcel in Bartlett. The property lies within the district and almost all of it lies

Instead, the plaintiff commenced the instant action alleging inverse

adjustment (ZBA) requesting a variance. The ZBA denied the request and the commissioners, the plaintiff appealed to the precinct’s zoning board of above the 900-foot limit. Following denial of the application by the precinct’s The plaintiff sought a building permit to build a house at an elevation

structure more than 900 feet above sea level. The plaintiff owns a thirty-acre regulations. It enacted a zoning ordinance that prohibits the building of any permitted on the subject property. A court cannot determine

p. 3 determination of the type and intensity of development legally compensation.”

essential prerequisite to its assertion is a final and authoritative of our New Hampshire Constitution requiring the payment of just

circumstances.”

It follows from the nature of a regulatory takings claim that an order to benefit the public in some way constitute a taking within the meaning Frates v. Yolo County substantially deprive the owner of the economically viable use of his land in, 477 U.S. 340, 348 (1986): As the United States Supreme Court reasoned in MacDonald, Sommer &

Id.

far and becomes a taking. Each case must be determined under its own onerous.” Id. “There can be no set test to determine when regulation goes too property,” a taking occurs “[i]f the denial of use is substantial and is especially during which the taking was effective.” omitted). While “[t]he owner need not be deprived of all valuable use of his government can relieve it of the duty to provide compensation for the period

Burrows v. City of Keene, 121 N.H. 590, 598 (1981) (quotation

in the light most favorable to the non-moving party.”

Supreme Court stated in We recognize that “arbitrary or unreasonable restrictions which

federal opinions for guidance only, see id. at 232-33. constitutional claim first, see State v. Ball, 124 N.H. 226, 231 (1983), and cite state and federal constitutional claims, we address the plaintiff’s state novo.” Id. (quotation and citation omitted). Where the plaintiff has raised both matter of law. We review the trial court’s application of the law to the facts de issue of material fact, and if the moving party is entitled to judgment as a already worked a taking of all use of property, no subsequent action by the 158 N.H. 540, 542 (2009). “We will affirm if the evidence reveals no genuine

the affidavits and other evidence, and all inferences properly drawn from them, In reviewing the trial court’s grant of summary judgment, “we consider not moot an otherwise valid regulatory taking claim. As the United States Accordingly, we deny the precinct’s motion to dismiss. Lutheran Church for support in a state constitutional takings analysis). 321; see Smith v. Town of Wolfeboro, 136 N.H. 337, 345 (1992) (citing First

the Just Compensation Clause.” Thus, “where the government’s activities have taking into a ‘temporary’ one, is not a sufficient remedy to meet the demands of U.S. 304, 319 (1987), “[i]nvalidation of the ordinance . . . though converting the

We agree with the plaintiff that rescission of a challenged ordinance will

bringing this appeal.” asserts that “[a]t a minimum, [it] should be entitled to [its] fees and costs in been no change of circumstances affecting the merits of the application.”

p. 4 legally accept and consider a new variance application because “[t]here has vehicular access and state septic.” Second, it argues that the ZBA could not building site was the lowest point on the property that would support both 4

contained the following notation:

a takings claim is likely to have ripened.

First, it asserts that it submitted a plan that “clearly showed that the proposed

property at issue.” The plaintiff’s first contention is based upon a plan it submitted that

in turn. uses of the property are known to a reasonable degree of certainty, Fisher v. City of Dover, 120 N.H. 187, 190 (1980). We address each contention that the issue need be reached, before considering it.” See

been futile to submit another application for the ZBA’s discretionary review. Palazzolo, 533 U.S. at 620. The plaintiff asserts two reasons why it would have governmental entity] regarding the application of the regulations to the ripeness requirement of presenting “a final decision [of the applicable adequate record, and we now hold that a State taking claim must meet the regulations to the property at issue.” lacks the discretion to permit any development, or the permissible regulations has reached a final decision regarding the application of the to exercise its discretion, once it becomes clear that the agency developed record than this case now presents, as well as a reason to believe While a landowner must give a land-use authority an opportunity

533 U.S. 606 (2001), for the following proposition: the question whether a The plaintiff argues that its claim is ripe, citing Palazzolo v. Rhode Island,

132 N.H. at 506. The case now before us squarely presents the issue on an

plaintiff raising a State taking claim, stating that “we will need a more

the dismissal of federal takings and due process claims. We left open, however, Franklin, 132 N.H. 502, 505-06 (1989), we relied upon Williamson in affirming claim under our State Constitution. In Blue Jay Realty Trust v. City of we would adopt the reasoning of Williamson for purposes of a regulatory taking The trial court predicted that when presented with an appropriate case,

the application of government regulations effects a taking of a property interest Accordingly, the Court held in Williamson, 473 U.S. at 186, that “a claim that

regulation goes. whether a regulation has gone “too far” unless it knows how far the issue for trial.” RSA 491:8-a, IV (1997).

p. 5 requirement of “set[ting] forth specific facts showing that there is a genuine submitting a new variance application because it does not meet the that it is physically impossible to construct a road or driveway to a lower site insufficient to create a triable issue of fact on the question of the futility of

speculation.

factual basis, such as, for instance, steepness of grade or physical obstruction, the right-of-way giving access to the property.” We find this affidavit

forth specific facts showing a genuine issue for trial.”

right-of-way and support a septic system; any such conclusion would be mere 5 that there is no lower site on the property that would be accessible from the the right-of-way. Thus, we cannot draw a reasonable inference from the plan

this case, it is tantamount to assertion of the opinion, unsupported by any selected by the engineers was the . . . lowest site in elevation accessible from

affidavit must contain more than general allegations or denials. It must set

proposed homesite, and gives no indication that the area is not accessible from

inaccessibility is merely a conclusory allegation; under the circumstances of of the plaintiff who avers that he is “familiar with the land, and the house site New Hampshire, 136 N.H. 9, 16-17 (1992). The affiant’s assertion of show that the proposed building site is “the Gamble v. University of

To defeat a motion for summary judgment, “[t]he opposing party’s

between the right-of-way and the ravine that is lower in elevation than the ravine is also inaccessible from the right-of-way. The plan shows an area The plan’s notation states only that a portion of the lot which is cut off by a

We also note that the record contains the affidavit of one of the trustees the term “FIRST” implies that there are or may be others. Nor does the plan site meeting septic requirements that it is the only such site; in fact, the use of conclude from the description of the proposed site as the “FIRST” accessible

(emphasis added) that would be both accessible and support a septic system.

THE RAVINE SHOWN BY THE STEEP CONTOUR LINES[.] read more into this plan than can be reasonably inferred from it. We cannot PORTION OF THE LOT WHICH IS ALSO INACCESSIBLE DUE TO the non-moving party,” McGrath, 158 N.H. at 542, the plaintiff attempts to inferences properly drawn from [the evidence] . . . in the light most favorable to While we consider, on appeal from a grant of summary judgment, “all

HAMPSHIRE DEPARTMENT OF ENVIRONMENTAL SERVICES. OF WAY AND WILL MEET THE STANDARDS OF THE NEW 30 ACRE PARCEL THAT IS ACCESSIBLE BY THE DEEDED RIGHT THE PLAN SHOWS THE FIRST AVAILABLE HOUSE SITE ON THE

ROW DOES NOT GIVE ACCESS TO THE LOWER (SOUTHEAST) THIS LOT IS REACHED BY A DEEDED RIGHT OF WAY. THIS see granting a variance on that specific location. p. 6 but if the applicant came back with a specific location, he could McDonough stated he wouldn’t want to see the variance granted,

applicant is asking to build anywhere on the lot, but if the

foot [

Peter] Hastings answered in the negative and stated that the limitation of where they can build on that lot. [Precinct Counsel Commissioner, asked if the Board could grant an elevation . . . [ZBA member John] McDougall stated currently the

. . . . to construct at a lower elevation.

applicant’s application shows they want to construct at the 1200-

meeting record the following:

location” would likely meet the and that a new proposal “with a materially different building structure and. . . Thomas McDonough, Kearsarge Lighting Precinct “was willing to consider other, less ambitious plans for the [plaintiff’s] property”

Needham stated the Board should consider allowing the applicant board of adjustment.” motion). sic] mark. [Kearsarge Lighting Precinct Commissioner Peter] denial. Resolution of this issue must be made, in the first instance, by the a consideration of the circumstances which existed at the time of the prior [ZBA member Rob] Clark stated the plan submitted with the

petition.” subsequent application. Specifically, the minutes of the January 15, 2008 ZBA predecessor, the board of adjustment may not lawfully reach the merits of the application is not for a use that materially differs in nature and degree from its Fisher standard for consideration of a

The precinct argues that it has presented evidence showing that the ZBA

of whether changed circumstances exist is a question of fact which necessitates

Fisher, 120 N.H. at 190. We further stated that “[t]he determination

of circumstances affecting the merits of the application has not occurred or the a new variance application. In Fisher, we stated that “[w]hen a material change The plaintiff next argues that Fisher precludes the ZBA from considering

forth specific facts was insufficient to support conclusory assertions and Franklin, 141 N.H. 449, 454 (1996) (affidavit, even of expert, that failed to set is insufficient to defeat summary judgment. Cf. N.E. Tel. & Tel. Co. v. City of on the property between the right-of-way and the ravine. As such, the affidavit prohibition to construct above 900 feet.” p. 7 nothing at issue other than the fact that the application was contrary to a collateral estoppel to the ZBA’s prior findings. Specifically, the plaintiff asserts: the view, or the drainage or whatever,” but asserts that “in this case, there was

elevation than the first proposal, yet still above 900 feet.

were considered, its approval would be precluded by the application of about the proposal vis-a-vis its specific location and its impact on abutters, or

The minutes indicate that the ZBA would consider a different site at a lower

The plaintiff, nevertheless, argues that even if a new variance application contends that “[i]t would be one thing if there had been specific complaints

elevation, but that it was at or nearly at the highest elevation on the property. satisfying concern was not that the proposed building site was above 900 feet in We disagree. As the ZBA minutes quoted above indicate, the ZBA’s

invited by the ZBA and modified to address its concerns. “there was no real discussion” regarding the ZBA’s concerns. The plaintiff The plaintiff argues that this case differs from Morgenstern because here

Fisher.

application so modified to be materially different from its predecessor, thus applications, subsequent application modified to meet its concerns, it would find an 191. Thus, it is logical to presume that if the ZBA invites submission of a be made, in the first instance, by the board of adjustment.” Fisher, 120 N.H. at at 190, like the determination of whether changed circumstances exist, “must materially differs in nature and degree from its predecessor,” Fisher, 120 N.H. variance application . . . .” The determination of whether a subsequent application is “for a use that the superior court, the town essentially invited the plaintiff to file a new See id. at 564, 566. construct a house on the plaintiff’s lot. Indeed, in its pleadings submitted to consideration of a subsequent variance application explicitly or implicitly On the basis of Morgenstern, we conclude that Fisher does not preclude

id. at 564.

ruling that there was no material change between the previous and subsequent meet the town’s concerns,” id., and concluded that the trial court erred in variance, but, at the town’s invitation, submitted a new proposal in an effort to “the plaintiff did not merely resubmit substantially the same application for a the situation presented in Morgenstern from that in Fisher on the ground that

hearings “d[id] not suggest that the ZBA would never grant a variance to of Rye, 147 N.H. 558 (2002), in which we noted that the minutes of prior ZBA This case is therefore factually more analogous to Morgenstern v. Town

a Variance. applicant resubmits with a certain elevation, the Board may grant building proposed in the specific location proposed.

p. 8 estoppel. at a different location on the property would not be precluded by collateral into a change of zone.”). Thus, consideration of a variance application to build 8

multiple successive applications. As the Supreme Court noted in “this variance” refers to a variance to permit construction of the specific

require a further variance. . . . To hold otherwise would transform a variance

“Government authorities, of course, may not burden property by imposition of

however, that the ZBA may oppressively require a landowner to submit elevation roughly between 1028 and 1036 feet. We conclude that in context, variance application would not have been futile. We do not intend to imply, For the foregoing reasons, we conclude that the submission of a new the granting of the variance.

“this variance.” requested in the variance application and illustrated in the site plan would emphasis added.) The other proposed findings similarly referred specifically to of Appeals, 673 A.2d 1146, 1148 (Conn. App. Ct. 1996) (“A use outside that contemplated by the petitioner as a result of obtaining Cf. L&G Associates v. Bd. instance, the ZBA unanimously denied the proposed finding “that the use variance request, cannot be used by the ZBA to deny the variance”). For attachments include a plot plan showing the proposed house location at an the ZBA, attaching the building permit application and its attachments. Those appeal from administrative decision along with the request for variance with public interest, and that substantial justice would not be done by Moreover, after the denial of a building permit, the plaintiff filed an

to grant a variance). be contrary to the spirit and intent of the ordinance.” (Bolding omitted; satisfy); this variance would not

[violates a provision of the zoning ordinance], which is the reason for the Glen Assocs., 155 N.H. at 107 (noting that “the mere fact that the project variance,” not of generally building above the 900-foot elevation. Cf. Malachy Each of the findings referred to related to the consequences of granting “this the spirit and intent of the ordinance, would be contrary to the We disagree with the plaintiff’s characterization of the ZBA’s findings. that construction of a home above 900 feet would [be] contrary to value to the abutting property. The ZBA also voted unanimously

relating to conditions under which a zoning board of adjustment is empowered

cf. Laws 2009, 307:6 (repealing and reenacting RSA 674:33, I(b)

N.H. 102, 105 (2007) (outlining requirements an applicant for a variance must (Citations omitted.) See, e.g., Malachy Glen Assocs. v. Town of Chichester, 155

the property above p. 9 900 feet would cause a diminution of property The ZBA voted unanimously that the construction of the home on 9

that the plaintiff’s

concurred.

development [thereon].” We need not reach this argument because we hold economically beneficial use of th[e] property . . . by prohibiting any

BRODERICK, C.J., and DALIANIS, DUGGAN and CONBOY, JJ.,

Constitution. Affirmed.

the trial court. As per se taking claim is not ripe.

its property constitutes a categorical taking, “depriving the Plaintiff of all Council, 505 U.S. 1003 (1 p. 9 992), that imposition of the 900-foot restriction upon U.S.A., Inc., 544 U.S. 528 (2005), and Lucas v. South Carolina Coastal summary judgment, in which it argued, on the basis of Lingle v. Chevron The plaintiff also challenges the trial court’s denial of its cross-motion for

the same result under the Federal Constitution as we do under the State

186, the plaintiff’s state taking claim is not ripe and we affirm the decision of application of the regulations to the property at issue,” Williamson, 473 U.S. at Because the ZBA “has [not] reached a final decision regarding the

Palazzolo, 533 U.S. at 621. repetitive or unfair land-use procedures in order to avoid a final decision.”