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Bergeron v. Town of Pelham

Supreme Court of New Hampshire

August 6, 2012

Jean-Guy Bergeron
v.
Town of Pelham

ORDER

The petitioner, Jean-Guy Bergeron, appeals the superior court's order granting the motion to dismiss filed by the respondent, Town of Pelham. We affirm in part, vacate in part, and remand.

The petitioner and the intervenor, John Mansur, both operate used car parts businesses in Pelham. The petitioner's property is located approximately 2.8 miles from the intervenor's property.

In 1996, the petitioner brought a code enforcement action against the intervenor. In July 1997, the intervenor and the Town resolved this action in a written agreement entitled "Consent Decree." The petitioner appealed the "Consent Decree" to the zoning board of adjustment (ZBA), alleging that the selectboard's decision reflected in the "Consent Decree" was unlawful. The ZBA determined that the petitioner lacked standing to appeal the "Consent Decree, " and denied his subsequent request for rehearing. The petitioner appealed the ZBA's decision to the superior court and, in 1999, the court ruled that the petitioner lacked standing to appeal the ZBA's decision.

In 2010, the intervenor applied to the selectboard for a junkyard license. The selectboard granted his application, and the petitioner appealed this decision to the ZBA. The ZBA determined that the petitioner lacked standing and denied his subsequent motion for rehearing. The petitioner appealed the ZBA's 2010 decision to the superior court. The Town moved to dismiss the petitioner's appeal of the ZBA's 2010 decision on standing grounds. The trial court granted this motion and also dismissed the petitioner's separate claim that the selectboard violated RSA chapter 91-A. This appeal followed.

In reviewing a motion to dismiss, our standard of review is whether the allegations in the petitioner's pleadings are reasonably susceptible of a construction that would permit recovery. Lamprey v. Britton Constr., 163 N.H. 252, 256 (2012). We assume the petitioner's allegations to be true and construe all reasonable inferences in the light most favorable to him. See id. We need not, however, accept allegations in the writ that are merely conclusions of law. Id. The threshold inquiry involves testing the facts alleged in the pleadings against the applicable law. Id. We will uphold the granting of the motion to dismiss if the facts pleaded do not constitute a basis for legal relief. Id.

I. ZBA Appeal

The petitioner does not challenge the trial court's determination that he lacks standing to appeal the ZBA's 2010 decision. His notice of appeal does not include any questions related to the trial court's decision on standing, and his appellate brief does not include any argument on this issue. Accordingly, we uphold this ruling.

Despite his lack of standing, the petitioner argues that dismissal of his appeal was error because the process by which the ZBA made its decision violated his constitutional rights to due process. Because the petitioner did not invoke a specific state constitutional provision in his petition or in his appellate brief, we construe his claims as being brought only under the Federal Constitution. See State v. Dellorfano, 128 N.H. 628, 632 (1986). Given that the petitioner lacks standing to challenge the ZBA's decision, we find no error in the trial court's dismissal of his appeal of that decision.

To the extent that the petitioner argues that his petition sought a declaration that the ZBA violated his federal constitutional rights to due process, we observe that his petition did not request this relief. The only declaration the petition sought was a declaration that the selectboard's action violated RSA chapter 91-A. Moreover, the petitioner has not argued or demonstrated that, notwithstanding his lack of standing to appeal the ZBA's decision, he had standing to seek a declaration that the ZBA's proceedings violated his federal constitutional rights. See Avery v. N.H. Dep't of Educ., 162 N.H. 604, 608 (2011).

II. RSA Chapter 91-A Claim

The trial court decided that the allegations in the petitioner's petition related to RSA chapter 91-A were intended only to demonstrate that the petitioner had standing to appeal the selectboard's decision to the ZBA. The trial court did not interpret the petitioner's petition to state a separate claim under RSA chapter 91-A.

On appeal, the petitioner argues that the trial court erred by failing to interpret his petition to raise a separate claim under RSA chapter 91-A. We agree. The petition specifically requested relief for the Town's alleged violation of RSA chapter 91-A and specifically alleged facts pertinent to this claim. The petition alleged that when the Town's selectboard decided to expand the permissible use of the intervenor's property, it did so in a "secret meeting" for which there was no public notice, no public participation, and no minutes. The petition alleged that by holding this "secret meeting, " the selectboard violated RSA chapter 91-A. For this violation, the petition sought a declaration that the Town violated RSA chapter 91-A and an award of attorney's fees and costs pursuant to RSA 91-A:8 (Supp. 2011). Given these allegations, we interpret the petition to raise a separate claim under RSA chapter 91-A.

Because the parties have not yet litigated the issue, we express no opinion as to whether the petitioner's allegations under RSA chapter 91-A are reasonably susceptible of a construction that would permit recovery. See Lamprey, 163 N.H. at 256. We conclude only that the petition includes a separate RSA chapter 91-A claim. Therefore, we vacate the trial court's dismissal of the ...


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