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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.


JOSEPH N. LAPLANTE, 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, as a result, could not appeal the ZBA's decision, see id. § 677:3. Dismissal Order at 10.

The Superior Court later granted the ZBA's motion for summary judgment, and denied Mr. Bosonetto's motion for summary judgment, on his remaining claims. Bosonetto v. Town of Richmond Zoning Bd. of Adjustment, No. 09-E-159 (N.H. Super. Ct. Jan. 21, 2011) ("Summary Judgment Order"). The Superior Court ruled that Mr. Bosonetto could not seek relief from the ZBA's decision by way of certiorari or mandamus because he had failed to properly avail himself of the statutory avenue of relief, § 677:4. Id. at 5-12. The court also rejected Mr. Bosonetto's claim that the Town's refusal to grant a building permit for his property due to its lack of access to a public road, despite his claim that a structure on the lot was a "pre-existing use, " worked "an unconstitutional taking under the Fifth Amendment of the United States Constitution as well as... the New Hampshire Constitution." Id. at 13-17. Finally, the Superior Court rejected Mr. Bosonetto's claim for attorneys' fees and costs, finding his allegations of "retribution against Mr. and Mrs. Bosonetto for belonging to a church that rejects the political agenda advocated by many of Richmond's current crop of town officials" to be "entirely speculative and unsupported." Id. at 23 (quotation marks omitted).

Mr. Bosonetto, still acting through counsel, appealed the Superior Court's decisions to the New Hampshire Supreme Court, which affirmed, though it vacated the Superior Court's ruling on the constitutional claim. The Supreme Court agreed with the Superior Court that Mr. Bosonetto could not appeal the ZBA's decision because he had not timely moved for rehearing. Bosonetto , 163 N.H. at 741-42. The Supreme Court also rejected Mr. Bosonetto's argument that the Town was equitably estopped from relying on the untimeliness of that motion to seek dismissal of his appeal because the Town Clerk had erroneously advised Mr. Bosonetto that he could seek rehearing within 30 days of the filing of the ZBA's written decision, rather than within 30 days of when the ZBA voted to approve that decision. Id. at 742-44.

The Supreme Court ruled further that Mr. Bosonetto could not challenge the constitutionality of disallowing a building permit for lack of a public road accessing a lot, even in the face of a pre-existing use of the lot, because his challenge was "based on a hypothetical premise not supported by the record, " i.e., "that his proposed use is, in fact, a continuation of his prior lawful conforming use." Id. at 746. The Supreme Court noted that the ZBA had reached a contrary conclusion, "finding that the proposed house would be on a footprint larger and at a different location than that of the existing mobile home, " but that Mr. Bosonetto could challenge that finding only by way of a statutory appeal from the ZBA's decision (which, as just discussed, the court ruled he could not take, because he had failed to seek timely rehearing before the ZBA). Id. at 745. So the Supreme Court "declined to address the [constitutional] issue and vacate[d] the [Superior Court's] ruling" on the ...

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