Plaintiffs sued the Town of Hudson for monetary damages after being denied retail vehicle permits to display and sell vehicles because they failed to obtain site plan approval. Plaintiffs contend other Hudson residents had received the same permits without obtaining site plan approval, and therefore the town’s denial was based on unlawful race discrimination in violation of the Equal Protection Clause of the New Hampshire Constitution. The trial court dismissed the action, ruling that “courts disfavor the creation of a common law tort remedy for a constitutional violation, particularly where a statutory remedy exists.”
The issue on appeal was whether a violation of state constitutional guarantees of equal protection or due process could serve as a basis for a direct action for money damages. The Supreme Court of New Hampshire, in a similar case, recognized that a remedy for the denial of equal protection should first be based on the availability of a statutory, common law, or administrative remedy. Otherwise, the Court reasoned, the creation of a constitutional cause of action “would inevitably lead to the conversion of every road dispute into a constitutional tort action.” Here, the Court found the plaintiffs could have challenged the denial by appealing to the zoning board of adjustment first, and then to the superior court if they received an unfavorable result. The remedy provided by statutory law, although not as complete, was still held to be adequate, and therefore the judgment of the trial court to grant defendant’s motion to dismiss was affirmed.
Khater v. Sullivan, 2010 WL 2196514 (N.H. 6/3/2010)
The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2010/2010058khate.pdf
