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Signs for Jesus v. Town of Pembroke

United States District Court, D. New Hampshire

March 24, 2016

Signs for Jesus, et al.
v.
Town of Pembroke, et al. Opinion No. 2016 DNH 059

          MEMORANDUM AND ORDER

          PAUL BARBADORO, District Judge.

         Signs for Jesus and Hillside Baptist Church applied for a permit to put up an electronic sign that would display religious messages on Pembroke Street in Pembroke, New Hampshire. When their application was denied, they filed this suit against the Town of Pembroke, the Town's Zoning Board of Adjustment, and the Town's Code Enforcement Officer, Everett Hodge. Plaintiffs allege that the defendants' actions violated the United States and New Hampshire constitutions, and federal and state statutes. After filing their answer, defendants responded with a partial motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), (3), and (6). Doc. No. 13.

         I. BACKGROUND

         In April 2015, Signs for Jesus and Hillside Baptist Church (hereafter, collectively "the Church") applied for a permit to install an electronic sign on its property on Pembroke Street in Pembroke, New Hampshire.[1] The purpose of the proposed sign was to display daily Bible scriptures. In April 2015, Everett Hodge, the Town of Pembroke's Code Enforcement Officer, denied the Church's application. Doc. No. 1 at 7. The Church then appealed Hodge's decision to the Town of Pembroke's Zoning Board of Adjustment ("ZBA"), and filed a separate variance request. Id . After a public hearing, the ZBA denied the Church's administrative appeal and its request for a variance. Id. at 8. In August 2015, the Church requested rehearing pursuant to N.H. Rev. Stat. Ann. § 677:2. Id . The ZBA denied the Church's requests at a subsequent hearing.

         In November 2015, the Church filed its complaint here, alleging that the Town's actions and its sign ordinance are unconstitutional, and violate federal and New Hampshire law. Specifically, the Church's complaint includes nine counts: four claims invoking the United States Constitution (brought pursuant to 42 U.S.C. § 1983); two claims based on the federal Religious Land Use and Institutionalized Persons Act ("RLUIPA"); one claim invoking the New Hampshire Constitution; and two claims based on N.H. Rev. Stat. Ann. § 677:4. The complaint names 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. The Church seeks declaratory, injunctive and monetary relief.[2] Id. at 24-25.

         II. ANALYSIS

         Defendants have filed a partial motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), (3), and (6). Doc. No. 13. In their motion, defendants argue that I should dismiss all claims against (1) the ZBA, (2) Hodge in his official capacity as the Town's a Code Enforcement Officer, and (3) Hodge in his individual capacity. I take up each argument in turn.

         A. Claims Against the ZBA

         Defendants first argue that I should dismiss plaintiffs' claims against the ZBA, because the ZBA is merely a decisionmaking body of the Town, and therefore is not an appropriate separate defendant from the Town. To support this argument, defendants point to two New Hampshire Supreme Court cases that suggest that a municipality, not the municipality's decisionmaking body, is the appropriate defendant in a zoning appeal case. See Kelley v. Hopkinton Village Project, 108 N.H. 206, 207 (1967); N.H. Highway Hotel, Inc. v. City of Concord, 119 N.H. 122, 124-26 (1979).

         In response, plaintiffs argue that cases involving federal claims "will frequently include both the town and the ZBA as separate parties." Doc. No. 17 at 2; see, e.g., Westchester Day School v. Village of Mamaroneck, 504 F.3d 338, 353-54 (2d Cir. 2007); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006); New Cingular Wireless PCS, LLC v. City of Manchester, 2014 DNH 044. Plaintiffs also point to RLUIPA's text, which provides that both municipalities and municipal departments are proper defendants to RLUIPA claims. See 42 U.S.C. § 2000cc-5(4)(A). They further note that RLUIPA grants a government discretion to change its policy or practice, or to create specific exemptions, in order to avoid RLUIPA's preemptive force, 42 U.S.C. § 2000cc-3(e), and argue that a conflict may arise between the Town and the ZBA regarding who has the authority to grant such an exemption.

         I need not decide whether the ZBA is an appropriate separate defendant here. Admittedly, the ZBA appears to be merely a subdivision of the Town, which cannot provide any different or greater relief than the Town itself. Yet, whether the ZBA remains a separate defendant or not, there will be no meaningful difference in discovery, motion practice, or any other significant aspect of this dispute. Because this is a purely academic debate, then, I decline to decide whether the ZBA is an appropriate separate defendant in this case. Accordingly, I deny defendants' motion to dismiss claims against the ZBA.

         B. Claims Against Hodge in his Official Capacity

         Next, defendants contend that I should dismiss all claims against Hodge in his official capacity because "the Plaintiffs do not and cannot seek relief against Mr. Hodge which is separate or distinct from that which they seek from the Town." Doc. No. 13 at 3. I agree.

         An official-capacity suit is "in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985); see Surprenant v. Rivas, 424 F.3d 5, 19 (1st Cir. 2005); Wood v. Hancock County Sheriff's Dep't, 354 F.3d 57, 58 n. 1 (1st Cir. 2003); Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 705 (1st Cir. 1993)). Put another way, "official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent." Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 690 n.55 (1978). Accordingly, "a string of Supreme Court cases holds that a suit against a government officer in his or her official capacity binds the agency or other governmental entity, not the officer ...


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