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Bosonetto v. Town of Richmond

United States District Court, First Circuit

May 31, 2013

Nicolas and Jill Bosonetto
Town of Richmond et al. Opinion No. 2013 DNH 080

Nicolas Bosonetto, pro se

Jill Bosonetto, pro se

Daniel J. Mullen, Esq. John T. Alexander, Esq.


Joseph N. Laplante United States District Judge

Procedural doctrines such as res judicata can be a source of great frustration to litigants, who sometimes view them as elevations of form over substance. But many of those doctrines have long occupied an important place in the law--in the case of res judicata, to ensure that “at some point litigation over the particular controversy come to an end.” Colebrook Water Co. v. Comm’r of Dep’t of Pub. Works & Highways, 114 N.H. 392, 395 (1974). Here, the controversy is between the plaintiffs, Nicolas and Jill Bosonetto, and certain boards and officials of the Town of Richmond, over their refusal to grant a building permit.

The Bosonettos, proceeding pro se in this court, have sued the Town, one of its former selectmen, and a former member of its Zoning Board of Adjustment (“ZBA”), claiming that this refusal violated a number of the Bossonettos’ rights under the United States Constitution. The problem is that Mr. Bosonetto already brought an action challenging the ZBA’s decision in Cheshire County Superior Court, which dismissed one of his claims and granted summary judgment for the Town on the others. He then appealed the Superior Court’s decision to the New Hampshire Supreme Court, which affirmed. Bosonetto v. Town of Richmond, 163 N.H. 736, 740 (2012).

Based on these prior adjudications of Mr. Bosonetto’s dispute with the Town its ZBA, the claims the Bosonettos have brought in this action are barred by the doctrine of res judicata, as the defendants argue in their motion for judgment on the pleadings. See Fed. R. Civ. P. 12(c). After hearing oral argument, the court grants that motion and directs the entry of judgment against the Bosonettos, as more fully explained below.

I. Applicable legal standard

Res judicata is an affirmative defense. See Fed. R. Civ. P. 8(c)(1). To grant a motion for judgment on the pleadings based on an affirmative defense, “the facts establishing that defense must: (1) be definitively ascertainable for the complaint and other allowable sources of information, and (2) suffice to establish the affirmative defense with certitude.” Gray v. Evercore Restructuring L.L.C., 544 F.3d 320, 324 (1st Cir. 2008). In ruling on such a motion, the court may consider not only the complaint itself, but also “documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice.” Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012) (quotation marks omitted). This includes “documents from prior state court adjudications.” Giragosian v. Ryan, 547 F.3d 59, 66 (1st Cir. 2008) (quotation marks omitted).

II. Background

The Bosonettos allege that, in May 2009, they “applied for a building permit to replace and relocate one of the single family dwellings (a mobile home) on their property, ” a 40-acre parcel in the Town that hosts four separate residences. The Bosonettos, who have seven children, live in one residence, rent out the others, and “further use their property as a homestead by raising livestock, fruits, and vegetables.” The Bosonettos allege that the Town’s Board of Selectmen, including defendant Sean McElhiney, denied their application for a building permit, “citing that the Town has no policy for allowing building permits on private roads.” See N.H. Rev. Stat. Ann. § 674:41, I(e) (preventing issuance of building permits for lots accessed only by private road unless, inter alia, “[t]he local governing body . . . has voted to authorize the issuance of building permits for the erection of buildings on said private road”).

The Bosonettos appealed this decision to the Town’s ZBA. By this point, the Bosonettos allege, the members of the ZBA had been named as defendants in a lawsuit by the Saint Benedict Center, where the Bosonettos attend church services and are “involved in fund raising and activities.” Thus, the Bosonettos say, the regular ZBA members “had to recuse themselves” from hearing the Bosonettos’ appeal, so the selectmen chose five new ZBA members to do so, including defendant Sandra Gillis. This reconstituted ZBA denied the Bosonettos’ appeal on the stated ground, they allege, that they “had no rights to obtain building permits on a private road.”[1]

In September 2010, Mr. Bosonetto, acting through counsel, commenced an action against the Town of Richmond and its ZBA in Cheshire County Superior Court. Among other relief, his petition sought to void the board of selectmen’s denial of his application for the building permit, or the ZBA’s decision rejecting their appeal from that denial, on several grounds. The petition also asked the Superior Court to reverse the ZBA’s decision pursuant to N.H. Rev. Stat. Ann. § 677:4, which provides for appeals from “illegal or unreasonable” local zoning decisions. Finally, claiming that the Town had acted in bad faith, the petition asked for an award of “double [] costs and attorneys’ fees for the necessity of bringing this action.” The petition alleged in part that “McElhiney has previously published his opposition to the traditional Catholic community in Richmond, a group [of] which the petitioners are a part, ” and that members of the ZBA that heard Mr. Bossonetto’s appeal “had admitted to being financial contributors” to “an organized political opposition that objects to the beliefs and practices of St. Benedict’s Center” (numbering omitted).

The Superior Court dismissed the petition’s “statutory appeal” of the ZBA’s decision under § 677:4. Bosonetto v. Town of Richmond Zoning Bd. of Adjustment, No. 09-E-159 (N.H. Super. Ct. July 3, 2010) (“Dismissal Order”). The court ruled that Mr. Bosonetto had not timely moved for rehearing before the ZBA, see N.H. Rev. Stat. § 677:2, and, ...

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