Plaintiffs applied for and were denied building permits on land they own located in the Town’s conservation and conservation overlay zones and they were denied a variance so they could build a fish and game farm. The trial court remanded the matter to the zoning board finding that decision to deny the requests was “underdeveloped.” The New Hampshire Supreme Court agreed because the decision to deny the applications was not clear. The trial court subsequently determined that the denial of the permit was proper and affirmed the Board’s decision, after which the plaintiffs moved for reconsideration but the court denied the motion. Plaintiffs then filed a writ seeking damages for alleged inverse condemnation. The Town moved to have the writ dismissed on res judicata grounds and the trial court granted this request.
Plaintiffs argue that the trial court should not have permitted the Town to raise res judicata as an affirmative defense. Superior Court Rule 28 provides in part “[A]ll special pleas and brief statements shall be filed within thirty days following the return date of the writ; . . ..” Plaintiffs argue that the Town neglected to include the res judicata defense in accordance with Rule 28. The Court interpreted Rule 28 to mean that the trial court has authority to allow a late filing “as justice may require.” The Court went on further to state that “[W]e will not overturn that decision unless it is an unsustainable exercise of discretion.”
Plaintiffs also assert that their motion to amend their original appeal should not have been denied by the trial court. The Court notes, however, that the plaintiffs waited six months after the judgment became final before they moved to amend their motion. As such, the “denial of the plaintiffs’ motion to amend their original appeal was not an unsustainable exercise of discretion.” Plaintiffs also allege the dismissal of their writ on res judicata grounds was an error. Plaintiffs argue that this doctrine does not apply because “their appeal from the denial of a variance request is not the same cause of action as their inverse condemnation claim.” The Court disagreed and upheld the dismissal.
Kalil v. Town of Dummer Zoning Board of Adjustment, 2010 WL 455230 (NH 2/11/ 2010)
The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2010/2010012kalil.pdf
