2014-0702, Merriam Farm, Inc. v. Town of Surry

VI road. The property is approximately 1,000 feet from a Class V road. Under petitioner owns a n unimproved parcel of land in Surry with frontage on a Class The trial court found, or the record supports, the following facts. The

remand. the basis that the appeal was barred by claim preclusion. We reverse and Zoning Board of Adjustment (ZBA) of the respondent, Town of Surry (Town), on the Superior Court (Kissinger, J.) dismissing its appeal of a decision of the CONBOY, J. The petitioner, Merriam Farm, Inc., appeals a decision of

orally), for the respondent. Bradley & Faulkner, P.C., of Keene (Gary J. Kinyon on the brief and

Jr. and Michael A. Klass on the brief, and Mr. Tilsley orally), for the p etitioner. Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Roy W. Tilsley,

No. 2014 - 0 702 Cheshire

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any 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

that, “[e]ven if the Town did not waive its right to raise the issue of preclusion, rehearing before the ZBA. See RSA 677:3, I ( p. 2 2008). The petitioner also argues issue of cl aim preclusion because it failed to raise the issue in a motion for The petitioner first argues that the Town waived its right to raise the

Id. question of law, and we review the trial court’s ruling on such issues de novo. at 555. The interpretation and application of a statute or ordinance is a does not support it or it is legally erroneous. Brandt Dev. Co. of N.H., 16 p. 2 2 N.H. N.H. at 555. We will uphold the superior court’s decision unless the evidence unlawful or unreasonable. RSA 677:6 (2008); Brandt Dev. Co. of N.H., 162 the balance of probabilities, on the evidence befor e it, that the ZBA decision is set aside by the superior court absent errors of law unless it is persuaded by deemed prima facie lawful and reasonable, and the ZBA’s decision will not be of Somersworth, 162 N.H. 5 53, 555 (2011). Factual findings of the ZBA are Judicial review in zoning cases is limited. Brandt Dev. Co. of N.H. v. City

petitioner’s variance application. This appeal followed. a building permit under RSA 674:41 precluded the ZBA from considering the court then decided that the petitioner’s previously unsuccess ful application for determined that the Town did not waive its claim preclusion argument. The Following a hearing, the trial court issued an order in which it

statutory criteria governing variances under RSA 674:33, I(b). its claim preclusion argument and that the ZBA improperly applied the preemption. The petitioner argued, among other things, that the Town waived application for a variance was barred by the doctrines of claim preclusion and The Town asserted, among other arguments, t hat the petitioner’s

petitioner appealed to the trial court. denied the application. After unsuccessfully moving for rehearing, the family residence on the property. See RSA 674:33, I(b) (Supp. p. 2 2014). The ZBA frontage requirement in the Town’s zoning ordinance in ord er to build a single - In 2013, the petitioner applied to the ZBA for a variance from the

Merriam Farm, Inc. v. Town of Surry, No. p. 2 2011 - 0311 (N.H. Sept. 12, 2012). petitioner to the tria l court and to this court were also unsuccessful. See appealed to the ZBA, and the ZBA denied relief. Subsequent appeals by the lacked frontage on a Class V or better road. See RSA 674:41, I. The petitioner the property. The selectboard denied the application because the property RSA 674:41 (2008), for a building permit to construct a single - family home on In 2009, the petitioner applied to the Town’s selectboard, pursuant to

which is defined, in pertinent part, as a Class V or better road. establish that the property has at least p. 2 200 feet of frontage on a public street, the Town’s zoning ordinance, to build on its property, the petitioner must p. 3 3

We explained that the plaintiff’s constit utional and inverse condemnation from raising those claims in the declaratory judgment action. See id. at 544. appeal of the denial of her variance request, res judicata precluded the plaintiff with the town that, because t he plaintiff failed to litigate her other claims on constitutional and inverse condemnation claims. Id. On appeal, we agreed the superior court, but later filed a petition for declaratory judgment, raising decision. Shepherd, 1 p. 3 30 N.H. at 543. The plaintiff did not appeal the ruling of zoning board’s denial of a variance, and the superior court upheld that Westmoreland, 130 N.H. 542 (1988). In Shepherd, the plaintiff appealed the claim, the Town relies upon our decision in Shepherd v. Town of To support its argument that res jud icata precludes the petitioner’s

presented in the first action. Id. second action to present evidence or grounds or theories of the case not judicata will bar a second action even though the petitioner is prepared in the occurrence.” Sleeper, 157 N.H. at 5 p. 3 34 (quotation and brackets omitted). Res whether the alleged causes of action arise out of the same transaction or same cause of action for the purpose of applying res judicata, we consider (quotation omitted)). “Generally, in determining whether two actions are the relief could be claimed on the basis of the factual transaction in question” (2008) (defining “cause of action collectively to refer to all theories on which (quotation omitted); see Sleeper v. Hoban Family P’ship, 157 N.H. 530, 534 the theory of recovery. Meier v. Town of Littleton, 154 N.H. 340, 343 (200 6) The term “cause of action” is defined as the right to recover, regardless of

same cause of action as its prior building permit appeal. must determine only whether the petitioner’s variance appeal constitutes the are met and dispute only whether the second element is met. Accordingly, we The parties agree that the first and third elements of the res judicata test

omitted). judicata is a questio n of law, which we review de novo.” Id. at 5 p. 3 35 (quotation Bergquist, 166 N.H. at 534 - 35 (quotation omitted). “The applicability of res instances; and (3) the first action ended with a final judgment on the merits.” with one another; (2) the same cause of action was before the court in both applies if three elements are met: “(1) the parties are the same or in privity litigated and matters that could have been litigated in the first action, and it (2010). This doctrine prevents parties from relitigating matters actually Estate of Bergquist, 166 N.H. 531, 535 (2014); Gray v. Kelly, 161 N.H. 160, 164 as res judicata, applies here, we employ the familiar three - part test. See In re To determine whether the doctrine of claim preclusion, otherwise known

address whether the Town waive d its right to raise the claim preclusion issue. preclusion does not bar the petitioner’s variance application, we need not applicatio n for relief filed under RSA 67[ p. 4 4]:41.” B ecause we agree that claim the [p]etitioner’s appli cation for a variance . . . is not precluded by its prior 4

petitioner’s variance application. application. Under such circumstances, res judicata is inapplicable to the separate from its appeal to the trial court of the denial of its building permit petitioner needed to bring its variance application before the ZBA in an action made no findings as to certain variance requirements). Accordingly, the trial court erred, in part, by ordering ZBA to grant variance where ZBA h ad requirements necessary for grant of variance were met and determining that 583 - 8 p. 4 4 (2005) (remanding to ZBA to determine, in first instance, whether 2014); see also Chester Rod & Gun Club v. Town of Chester, 152 N.H. 577, in the first instance whether to issue a variance. See RSA 674:33 (Supp. application. This is so because the ZBA, as opposed to the trial court, decides issues in its trial court appeal of the ZBA’s denial of its building permit she appealed to the trial court, the petitioner c ould not have included variance should have brought her constitutional and inverse condemnation claims when requirements for a variance. I n contrast to the plaintiff in Shepherd, who ho wever, also need to demonstrate, at that time, that it met all of the statutory “practical difficulty or unnecessary hardship.” See RSA 674:41, II. It did not, that enforcement of the provisions in RSA 674:41 would have enta iled pursuant to RSA 674:41, II. Thus, the petitioner was required to demonstrate In its prior appeal, the petitioner sought a “reasonable exception”

“reasonable ex ception” for the applicant. RSA 67 p. 4 4:41, II. practical difficulty or unnecessary hardship” and permitting the ZBA to make a to the ZBA whenever enforcement of the statute’s provisions “would entail including allowing for an appeal from the decision of the administrative officer I(c). The statute also establishes exceptions to its various requir ements, frontage on a Class VI highway if certain conditions are met. See RSA 674:41, statute provides that a building permit may be issued when property has a building permit to be issued in oth er circumstances. For instance, the or better highway. See RSA 674:41, I(a). However, RSA 674:41 also allows for the lot upon which a building is proposed to be built has frontage on a Class V compliance wit h RSA 674:41. RSA 674:41 generally requires a showing that To obtain a building permit, the petitioner needed to demonstrate

building permit application. could not have added the variance claim to its appeal of the ZBA’s denial of its zoning board’ s denial of her variance, see id. at 5 p. 4 44 - 45, the petitioner here that could, and should, have been brought when the plaintiff appealed the Unlike the constitutional and inverse condemnation claims in Shepherd

action. Id. subsequent action, we concluded that res judicata barred the subsequent Because the plaintiff simply attached a new label to her cause of a ction in the judicata purposes because they arose out of the same factual transaction. Id. claims and her prior variance request were the same cause of action for res p. 5 5

D ALIANIS, C.J.