Posted by: Patricia Salkin | April 2, 2016

Fed. Dist. Court of NH Denies Motion to Dismiss Claims Against ZBA and Town Code Enforcement Officer Following the Denial of an Application to Install Electronic Religious Signs

Signs for Jesus and Hillside Baptist Church applied for a permit to install an electronic sign on its property to display daily Bible scriptures. Everett Hodge, the Town of Pembroke’s Code Enforcement Officer, denied the Church’s application. The Church appealed Hodge’s decision to the Town of Pembroke’s Zoning Board of Adjustment (“ZBA”), and filed a separate variance request. After a public hearing, the ZBA denied the Church’s administrative appeal and its request for a variance. The Church requested rehearing pursuant to N.H. Rev. Stat. Ann. § 677:2, but the ZBA denied the Church’s requests at a subsequent hearing. The Church then filed this complaint, alleging that the Town’s actions and its sign ordinance were unconstitutional, and violated federal and New Hampshire law. Specifically, the Church’s complaint included nine counts: four claims invoking the United States Constitution; two claims based on the federal Religious Land Use and Institutionalized Persons Act; one claim invoking the New Hampshire Constitution; and two claims based on N.H. Rev. Stat. Ann. § 677:4. The complaint named as defendants the Town of Pembroke, Pembroke’s ZBA, and Hodge, both individually and in his official capacity as the Town’s Code Enforcement Officer.

Defendants first argued that the court should dismiss plaintiffs’ claims against the ZBA, because the ZBA was merely a decision-making body of the Town, and therefore was not an appropriate separate defendant from the Town. While the ZBA appeared to be a mere subdivision of the Town, which could not provide any different or greater relief than the Town itself, the court found that there would be no meaningful difference in discovery, motion practice, or any other significant aspect of this dispute. Accordingly, the court denied the motion to dismiss these claims against the ZBA. However, the court noted that it was redundant for plaintiffs to sue both the Town and Hodge in his official capacity, and therefore it was appropriate to dismiss plaintiffs’ claims against Hodge in his official capacity here.

As to the claims against Hodge in his individual capacity, however, the Defendants contended that the court should dismiss all claims against Hodge in his individual capacity because the complaint “contains absolutely no reference to any action taken by Mr. Hodge in his individual capacity.” The court disagreed, finding that the fact Hodge allegedly caused injury while acting within the scope of his official duties did not bar an individual capacity suit against him. The court therefore denied the motion to dismiss the claims against Hodge in his official capacity.

Signs for Jesus v Town of Pembroke, 2016 WL 1171016 (D. NH 3/24/2016)

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