Posted by: Patricia Salkin | November 19, 2015

NH Supreme Court Holds Owner’s Application for a Variance Was Not the Same Cause of Action as Its Application for a Building Permit

In 2009, the petitioner, Merriam Farm, Inc., applied to the Town’s Select Board, pursuant to RSA 674:41 for a building permit to construct a single-family home on the property. The Select Board denied the application because the property lacked frontage on a Class V or better road. The petitioner appealed to the ZBA, and the ZBA denied relief. In 2013, the petitioner applied to the ZBA for a variance from the frontage requirement in the Town’s zoning ordinance in order to build a single-family residence on the property. The ZBA denied the application, and the petitioner appealed to the trial court. The Town asserted that the petitioner’s application for a variance was barred by the doctrines of claim preclusion and preemption. The petitioner argued that the Town waived its claim preclusion argument and that the ZBA improperly applied the statutory criteria governing variances under RSA 674:33, I(b). The trial court held that the Town did not waive its claim preclusion argument, and the petitioner’s previously unsuccessful application for a building permit under RSA 674:41 precluded the ZBA from considering the petitioner’s variance application.

Claim preclusion would apply if: the parties are the same or in privity with one another; the same cause of action was before the court in both instances; and the first action ended with a final judgment on the merits. In determining whether two actions are the same cause of action for the purpose of applying res judicata, the court considered whether the alleged causes of action arose out of the same transaction or occurrence. In its prior appeal, the petitioner sought a “reasonable exception” pursuant to RSA 674:41, and was required to demonstrate that enforcement of the provisions in RSA 674:41 would have entailed “practical difficulty or unnecessary hardship.” However, the petitioner did not need to demonstrate that it met all of the statutory requirements for a variance in that appeal. The petitioner could not have included variance issues in its trial court appeal of the ZBA’s denial of its building permit application since the ZBA, as opposed to the trial court, decides in the first instance whether to issue a variance. Because the petitioner was required to bring its variance application before the ZBA in an action separate from its appeal to the trial court of the denial of its building permit application, res judicata did not apply. The court therefore reversed, concluding that the denial of the petitioner’s application for a building permit gave rise to a cause of action different from the denial of its variance application.

Merriam Farm, Inc v Town of Surry, 2015 WL 5559892 (NH 9/22/2015)


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