Merriam Farm, Inc. v. Town of Surry

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All rise to the Honors Supreme Court. Good afternoon. Good. This is Case 2014 0 7 0 2, Merriam Farm Incorporated versus Town of Surrey. Uh, the record should reflect the fact that Justice Lynn has been unavoidably called away from court today, but he will participate in this appeal and the others this afternoon except for the one in which he's disqualified. Alright, Go ahead counsel. Thank you. And also, by the way, we, we've only got three cases on this afternoon and we intend to hear all three without taking a recess. Okay. May it please the court. My name is Roy Tilly from Bernstein, shor Sawyer, and Nelson on behalf of the appellant and petitioner Marion Farm Inc. I would like to reserve two minutes for rebuttal and I'm happy to take questions at any time During the oral argument, this case presents the issue of whether an applicant for a building permit who seeks relief from a zoning board of adjustment is required to seek all possible forms of relief in its initial application to the ZBA. You're saying that Would be the practical effect of affirming Here? Absolutely. Absolutely. And it's very common in A-Z-B-A-I go for a building permit, I get denied. I go to the ZBA with an administrative appeal, even With same fact pattern behind you. Correct. I get denied, then I go back to the ZBA with a variance. I might even go back a third time for a special exception if that's allowed for what I'm trying to do. The court's decision here would say the ZBA is a one stop shop if you have multiple statutes that can provide you with relief, you have to bring all of those claims at once. Did You have to go to the ZBA? I just don't remember right now on the statutory construction issue. Was that the, the venue for the, the earlier Appeal, the the 6 74 41 appeal. Right. The venue for an appeal under 6 74 41 is the ZBA, which then consults with the planning board. So, So you were in the same place both times? Absolutely. And, and I don't dispute that it's essentially the same building permit. It's to build a single family house on this three acre lott. If you prevail here and we find that, uh, claim preclusion does not apply and you go back to seek a variance and you are successful in getting the variance, is your client still blocked by the prior decision concerning the lack of frontage on, uh, a class five or, or better wrote? I, I don't believe so. Under 6 74 41, which was the statute on the initial application, that statute says that it supersedes any less strict local regulations. That statute says you have to have access on an approved road in order to build, in this case, the town's zoning ordinance says you have to have 200 feet of frontage in order to build. So the town's zoning ordinance is not less stringent. It's more stringent, therefore it's not superseded by RSA 6 74 41. And in our opinion, we would have the option to get either permit and move forward with the commission. But you still don't have frontage. Right. But if I have a variance from the town to go ahead and we wouldn't, you're right, we would not have frontage. We would have a variance saying you don't need front edge in this case because you meet the criteria, the five part standard variance criteria. But Didn't, even though the, the, the ZBA probably shouldn't have gotten to it, didn't they already basically say, no, we're not gonna give you a variance In this case or the prior case. This one in this case, they, They, they, they, they seem to be not entirely sure whether issue preclusion was, or I'm sorry, the trial court, I have this backwards. The decision was, was reached on both issue preclusion and variance criteria. Right. The, The, the ZBA a's decision is on the five part variance criteria And they say you didn't qualify. Correct. So we did not meet the criteria. Okay. The ZBA did not say that we were precluded town co zba a's council asked them to do that, and they reached, they accepted jurisdiction. So now I understand my own question. The trial court then said issue preclusion and didn't address the variance issue. Correct. But let's say we agree with you that that issue preclusion should not lie here. Correct. The town has basically already told you we're not going to give you a variance. So isn't it sort of an exercise in futility to go back and try again? Well, no, because I would go back to the trial court and ask the trial court based on the evidence to review. To review, Review whether they properly denied the variance. Correct. And similarly, I I think the, I I, I think the, the issue that you asked me about, sorry, um, concerning whether I needed both permits so that the preemption issue, that was also an issue that the trial court did not reach. So assuming that, I see. So even if you prevail, I mean if you prevail on the claim preclusion Right, it's gotta go back to the trial court. Correct. And, and we had a full, I don't wanna call it trial 'cause you don't typically have witnesses in these case, but we had a full presentation of all the issues before the trial court in terms of an oral argument, and then the trial court decided the case on the limited issue of what they call claims preclusion. Okay. So you want another shot at the Superior court reviewing the merits of the variance denial. Correct? Correct. And my question is, how is that affected by the prior case, the 2009 case denying the building permit? I don't believe there's any effect because the criteria under RSA 6 74 41 are entirely different than the five standard variance criteria. So theoretically, theoretically you could convince the superior court that the ZBA was wrong in denying the variance and you would not be foreclosed from proceeding to build by the prior decision, is what you're telling me. That's our position. Now, I know the town has a different position And but that issue would then be further litigated. Correct. That needs to be litigated in the superior court, you say? Correct. The, the town raised the preemption issue down below in the trial court's decision. Uh, I See it, it, it basically, it expresses skepticism on my position, but it says yes, I don't reach it because I'm deciding this case based on fisher versus Door. So all you want is to be able to go back to the superior court And deal with those issues. Correct. So, so, so I understand that the preemption issue would be if, if you succeeded in getting a variance after, goes down to the trial court, maybe comes back here or not, but if you emerge from that process with a variance, then do I understand that you would then go to seek a permit under 6 74 41, or would you, is the issue of whether you can go back under 6 74 41 or whether it's required that the permit issue is that joined before the trial court? Right now, Our position, If, should we send it back Our position at the trial court and the town argued differently, our position is that because the town ordinance is more stringent than 6 74 41, a variance to the town ordinance is sufficient to allow us to build without getting the 6 74 41 permit. And But you're not asking, nobody's asking us to decide that. Now, I I'm not, I don't think the trial court hasn't decided it. Right. And I think whatever happens, the trial court has to make those decisions in the first instance. I think the only issue before the court today is the preclusion issue. Um, the trial court's decision is basically decided, it's not really the trial court calls, it claims preclusion, but it's really the subsequent application doctrine under Fisher v Dover, which says in the context of a zoning board of adjustment, if you bring an application for a variance from some section of the ordinance and you lose, you can't come back with the same request unless there has been a material change in circumstances affecting the merits of the application. And you would agree that there's no material change in the circumstances. So if if that doctor were to apply it might be a problem. I would not agree with that because it's a material change in circumstances affecting the merits of the application. In the first application, the merits, it's The same. You're looking for the same relief. Essentially you're Looking for the same building permit. But in the first application, the merits of the application are, do I meet the criteria under RSA 6 74 41? And the second application is, do I meet the criteria for variance under the five part test under 6 74 33? Those are different merits. It's the same thing as if I go with an administrative appeal and the issue is was the zoning code enforcement officer Ron, and then I come back with a second application for a variance. And the issue is, do I meet the five part test? The merits are different because I'm coming in under different statutes. And what exactly is the, um, variance that you're seeking? Only from the 200 foot requirement? Correct. That's the only variance. Correct. Correct. You could get the variant. Well, I guess your position is once you get the variance, you're entitled to a building permit, but the town is, well, wait a minute. Even if you get the variance, there are other procedures you have to go through And I'll let the town speak for itself. Yeah, but I, I know the, at least in this case, the town did articulate a position that I would still need the 6 74 41 permit, which I disagree. I Can you clarify something for me? Sure. That if, if you succeed in getting a variance of the 200 foot frontage on a public road requirement, how is it that that's more restrictive? I thought I heard you just say more restrictive than the, uh, prior, the reason you were denied in the prior application for building permit is 'cause you had zero frontage on a Class five or better road. The prior permit 6 74 41 requires that we basically have access to an appropriate road. So assuming that I've got Access as opposed to frontage. Correct. So assuming that I have access, I have just enough frontage, you know, I have 15 feet of frontage to get off my property onto this road, that's enough. Under 6 74 41, the town's ordinance is more restrictive because I know I I don't need just access. I need 200 feet of Frontage. I see. 'cause when I made notes on my reading of the briefs and the court's order, I thought the court said that it was focused on frontage in the, in the prior case. But you're saying there's a difference between frontage and access. I I'm saying I believe the 6 74 41 focuses more on access than frontage. But, but assuming that even if I'm wrong, you only would need enough frontage to provide access, you wouldn't need 200 feet of frontage. I see. Either way the zoning ordinance requires more, it's more restrictive. Does the parcel that we're talking about have fee simple access of less than 200 feet on a Class six road? Actually, actually I believe it. I believe like, I think it has fee simple access of more than 200 feet on a Class six road. The problem is it's a classics road. Okay. So, um, in terms of the Fisher Doctrine, what the court said in the Brant case wa in this case, that court allow the subsequent application for the same relief 15 years later because the law unnec on unnecessary hardship had changed so much. And this court said, because the law had changed, there was a reasonable possibility of a different outcome and therefore the subsequent application was allowed. Even if you feel that this 6 74 33 variance is somehow the same application, because it has different criteria in different statutory standards, there's a reasonable possibility of a different outcome under my variance request as opposed to my 6 74 41 request. And therefore, under the Brant case, under the Fisher Doctrine, it should be allowed. The court also I think cited to use the term it, uh, claims preclusion didn't really cite to any collateral estoppel cases. Um, the, in the zoning context, if a case goes to court, collateral estoppel can't apply. But when you look at collateral estoppel, it's looking at whether or not all claims that could be raised have been raised in the initial court action. The initial court case to superior court appeal to this court was an appeal under RSA 6 74 41. If attorney Michael who did that case had gotten up in front of the superior court or this court and started arguing the five variance criteria of 6 74 43, 6 74 33, it wouldn't have been relevant. It probably wouldn't have been admissible. It was not a claim that he could make because those criteria were not an issue in the 6 74 41 appeal and therefore raised judic card should not apply when raised Judic has applied in the zoning context, it's situations where somebody, this is the Khalil case where a person has gone for a variance, it's gone up to court, it's been denied. The person then turns around and fi and, and files, uh, a takings case, an inverse condemnation case based on the exact same variance saying my property's been condemned because I didn't get the variance that the court's already said, I can't have. In that case, the court has found raised judicata. This is a much different case, two different statutes. There should be no preclusion and the case should be remanded to the Superior Court for further proceedings on the other issues we've identified. Thank You. Thank you. May it please the court. My name is Gary Kenyon. I represent the appellant, the town of Surrey in this matter, I would just like to emphasize to the court the factual and legal procedural background we have in this case. It's somewhat unusual and it, it bears I think, very close attention as was discussed in the oral argument previously. We have a 2011 superior court decision based on an application under RSA 6 74 41 for a building permit on this lot to build a six, a single family residence. That 2011 Superior Court decision upheld the denial under 6 74 41 by the ZBA of that relief. That decision was appealed to this court and this court issued a decision in 2012 upholding the superior court's finding that RSA 6 74 41 governed the case and that the building permit application was properly denied. It should be noted that in 2009 when the applicant made its initial application under RSA 6 74 41 to the ZBA or to the town, it did so electing on its own to file under that. And I can guarantee this court that had the applicant been successful under RSA 6 74 41 in 2009, and had the town taken the position that the town that the applicant also needed a variance under the zoning ordinance, the applicant would have literally screamed legal bloody murder because the applicant took the position at that time that the only permission that was needed under RSA 6 74 41 was that relief and not a variance. And it's the town's position that that position, uh, has support in the statute itself. 6 74 41, uh, Roman numeral one states, no building shall be erected on any lot within, uh, within any part of the, the municipality. Nor shall a building permit be issued for the erection of a building unless the street giving access to the lot upon which such building is proposed to be placed is, in this case a Class six highway provided certain minimum conditions and standards are met under that statute. As has been discussed, this lot is, has frontage only on a Class six road and is 1000 feet from a Class five road. And so it squarely falls under 6 74 41. But if we were to uphold the trial court is, isn't it that the consequence that any, any prudent land use attorney would then every time they filed for a 6 74 41 um, application, uh, they'd also file for a variance. If the land use attorney felt that both items of relief are needed, then the land use attorney should do, should do that, your Honor. I agree. However, 6 74 41 roman numeral three states, this section shall supersede any less stringent local ordinance, code of regulation and no existing lot or tract land shall be exempted from the provisions of this section except in accordance with the procedures expressly set forth in this section. And those are the procedures set forth in paragraph one of 6 74 41. That is the basis of the applicant's initial application to the town. So, so help 2009 understand you're saying, uh, attorney Tilley told us that the 200 foot requirement was more stringent than the what was applicable in the prior case, right? Yes, your Honor, that's what he said. And You are telling us that if we read the words of the statute, that not withstanding that the requirement of the statute 6 74 i I don't have it in my head, 4 44 41 41 apply regardless of whether the ordinance is more stringent or not. Yes, your honor, this Court, so if you say, all we have to do is read the statute, I I believe read the statute and understand what is meant by the term less stringent in that statute. What the zoning ordinance of the town of Surrey talks about relative to 200 feet of frontage is 200 feet of frontage on a town road. Not 200 feet of frontage on a Class six road as we have here. So we are really talking about apples and oranges when it gets to more stringent or less stringent Mm mm-Hmm. What I think the court as the final arbiter of the statutory intent must be mindful of is the big picture of 6 74 41. And that is that if there was a town zoning ordinance that says you can build anywhere, even if you only have frontage on a class six row, clearly this is gonna supersede it and say that you have to get approval under this statute and talking about more stringent or less stringent in the context of a zoning ordinance that requires 200 feet of frontage on a Class five road and a state law that says you cannot build on a Class six road without approval under this statute is merely talking to the issue that this state law impliedly preempts the local ordinance if there is found. Do we decide that because the trial court said it wasn't going to address preemption, it was dubious about it, but it wasn't gonna address preemption. Um, if we conclude that this matter can't be resolved by claim preclusion, um, don't we have to send it back to the trial court? I don't believe so, your Honor. I cited law in my brief that talks about the ability of this court to, uh, affirm the finding of the trial court if the trial court made the correct decision, but on grounds that you don't agree with, I think especially in the context of an appeal of this nature where there's no issue really of fact, you have the certified record before you, you're dealing with ordinances and state law and undisputed facts. I think it's within the authority of this court to find that the trial court, even if it's analysis on claim pro preclusion doesn't dispose of this appeal analysis under preemption or res judicata can dispose it. And as far as the town is concerned, I gather the 2009 case should have been the end of it. Yes, your Honor. That's exactly what the town thought. And I would ask the court to consider what the implications of this case are for town boards in dealing with this issue. Here is a town ZBA that dealt in good faith with an application under 6 74 41 and 2009 was forced to defend its action in the Superior Court and in the Supreme Court prevail and thought, okay, we did what we needed to do and our position, uh, has been found to be valid. Well, In 6 74 41 isn't the, uh, it's an application made for a building permit that triggers the process. That's good. And so the building inspector or the selectmen make a decision after receiving input from the planning board and, and it's a whole different type of analysis than you have under, uh, variance law. Doesn't that make a difference? Well, it's not a whole different type of analysis I would suggest, your Honor, because there are key, uh, similarities. There's some Overlap, such Hardship and some overlap. Right. But that is the reason, your Honor, that I feel that you can't foist upon town boards dealing with this issue, the ability of a landowner to have two bites at an apple that require, but Only, but if we follow the trial court, aren't you forcing everybody to go through this two bites of the apple from the get go? You're gonna get an application that says that does both of these things in every application instead of dealing with 6 74 41, which may or may not be granted, and then only in certain occasions will somebody pursue a variance. So aren't we trading certainty of two bytes for the possibility of two bytes? Well, no, your Honor, because I think the unfairness to it is the res judicata doctrine that is set forth in the Shepherd View Westland case, which is a zoning case that came before this court and confirms that when an applicant in this case in 2009 goes before a town seeking relief, it must, it must, uh, assert all the causes of action or prayers for relief that it's gonna assert at that time and not just pick and choose and then come back at a later time when it hasn't gotten the relief it wants from its first application. And that's what I think is unfair to the town boards here in having to deal with this issue again and again. But do You, oh, I'm sorry. Just so do you agree that the inquiries are not identical? So if you got two applications, you'd have to go through one analysis and then go through the other analysis and you might say, well, like we said back there, but there, there is not in complete overlap, they're gonna be inquiries under one that don't have to be made under the other. Right. I agree, your Honor, the analysis is not identical, but in Shepherd v Westmoreland, the issue being dealt with were not similar but different applications. The issue being dealt with is can an applicant bring an inverse condemnation action after losing, uh, an appeal on its request for relief under his zoning ordinance? And the court said, no, it can't, it must bring it all at the same time. I, I wonder whether the lower court's use of the word claim preclusion may have been, uh, a misstatement because it's reasoning the court made a finding that the petitioner's previously denied application to the ZBA under ZBA under 6 74 41 should have precluded the ZBA from even considering the current various variance application. I wonder whether what the trial court was doing is saying, look, even if you get, you satisfied all the requirements for a variance, it would do you no good because you have already litigated the statutory claim and lost. And we're not gonna go back and re-litigate that. So I'm wondering whether perhaps, you know, the trial court just wasn't super clear about this. Instead of claim preclusion, I'm thinking, well, maybe what it really ruled on was preemption, but it didn't call it preemption. It, it in fact found that that preemption, the statutory, the the decision on the statutory claim preempted this claim. I don't know if that's true, but it just occurred to me that maybe that's what was going on here. That's certainly possible, judge. And that's why from the town's perspective, I think since it's before you, the court has the ability as the final arbiters and matters of statutory construction to decide these issues on a certified record. And undisputed facts as you have, By way of clarification, let's just suppose we send it back and um, the variance issue is, um, um, somehow the plaintiff prevails and gets a variance. Just suppose that is prevailing in getting a variance, is that, is that going to be, is he still gonna be able to bill, is he going to be able to build or not given our decision on the nine oh 2009 case? That is really the point I wanted to emphasize to you today is what I feel is the absurdity of this appeal because of that very idea That's, I mean, that's essentially a futility argument. They could get what they want and they're still not gonna, It's not gonna matter, right? Because we went through all of that before to the point of coming to this court and prevailed, and now the appellant is saying, well, none of that matters because now we're going To something else. But I understand attorney Tilly's argument to be that if he got his variance, um, it wouldn't be precluded, so to speak, by the ruling in the earlier case because the facts on the ground would have changed because he got a variance. That's his argument. And I think that argument is somewhat circular. And again, I would urge the court to look at the big picture and the, uh, history of court decisions interpreting the scope of 6 74 41 and the statutory language in that law. And the court history of interpretation of that law makes it clear that this law is a comprehensive law that is to address building permits on for lots on Class six roads period. And to suggest that, well, it says that, but it's really optional. We can go for it under that, but if we don't get it, instead we can go to the town for a variance. I, I think is an illogical analysis of it and would really turn the preemption doctrine, the implied preemption doctrine, uh, really on its head because you just have such clear language in the state statute about what it's trying to accomplish. And you would have a situation here where the applicant is doing an end run around 6 74 41 by again hypothetically getting a variance from the town. Thank you. Thank you Mr. Helsley. Thank You. Uh, to be clear, our, our position is because the town ordinance is more restrictive, either the 6 74 41 appeal or the 6 74 33 variance is sufficient for us to move ahead and get a building permit. The fact is the court trial court has not addressed that issue. I agree that the court, when it says claims preclusion meant something else, but if you look at It strikes me that it meant preempted. Well, I don't think so because if you look at the court's analysis, it's all under the Fisher Doctrine. The court cites the three cases, Fisher Brand, I can't think of the other one, but they, they all deal with the subsequent application doctrine. The court then says in the last paragraph of its decision that it's skeptical about my position on preemption, but it's not going to reach it. So the court has explicitly not reached the preemption. Why isn't It expressly preempted by the plain language of the statute? Again, because it's more restrictive. The other thing that we haven't talked about, 'cause we haven't really litigated it yet, is the appeal under RSA 6 74 41 2 is just one possible mechanism to meet the requirements of 6 74 41, for example, 6 74 41 1 C allows a town to allow building permits on Class six highways. Not on a lot by lot basis, but on a a, a determination by the Board of Selectmen. Okay, So, so let's say hypothetically, right, you get your variance, okay, alright. But the town takes the, the position, okay, now you've gotta prove your case under the statute and let's assume they, they allow you to prove your case, so to speak. What is your case going to be? I get another shot at 6 74 41 arguing. What If the, if the town gives me the variance, but the, the town and after court appeal says you need something under 6 74 41 2 Mr. Tinsley, right? Then I agree I can't go back under, under the appeal section. I could go back under one C and ask the local governing body to approve the issuance of building permits on Class six roads on certain terms and conditions. That's a separate mechanism for relief besides the appeal process that we took under 6 74 41 2. So 6 74 41. But, but what so substantively, and this is really important from my understanding of your substantively, you are gonna say it doesn't didn't matter. It doesn't matter that we lost the 2009 appeal 'cause now we're bringing something different to you. Correct. What is that difference? We are seeking a variance of the 200 foot footage requirements because No, no, you get your variance. Okay. Now you've got to be able to argue that even though you get your variance, you are not precluded by the 2009 decision. Correct. And I, I've made And What's your argument? My argument is I'm not precluded because this is not supersede 6 74 41 does not supersede the town ordinance in this case because the town ordinance is more restrictive, not less restrictive. So your entire argument really hinges on that point. If The trial court had addressed it, that's what it would, but the other piece of that argument, let's assume I'm wrong on that. I still have other ways of getting relief under RSA 6 74 41. So if I lose, I I, I get my variance. I go up, I lose on the 6 74 41 2 issue. Court says, you have to have both of these, you have to have relief under both statutes. I can then seek relief under 6 74 41 C one. Why didn't you seek that relief the first time around in 2009? That's a different type of relief. It requires a, a vote of the Board of Selectmen. It requires changing town policy. It's a little more daunting than just getting relief on my little three acre lot. Well, But isn't the whole idea then of, of claim preclusion that you should have made your whole pitch under that statute in 2009? Not piecemeal. That's not the way the statute's written. The statute is. I mean, I can make an appeal if, if I went to the ZBA in 2009 and said, we want the Board of Selectmen to, to allow development on Class six roads. The ZBA couldn't order the Board of Selectmen to do that. That's a whole separate process. It's not an appeal. It's a political process to put something on the town meeting ballot. All right. Understood. But there is another avenue open for me. If I, if Gary's right, there's still another avenue open for me to take my variance and try to turn it into a building permit. Thank you. Thank you. Okay. Submitted. Count.