United States District Court, D. New Hampshire
Signs for Jesus, et al.
Town of Pembroke, et al. Opinion No. 2016 DNH 059
MEMORANDUM AND ORDER
BARBADORO, District Judge.
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.
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. 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
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. Id. at 24-25.
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
Claims Against the ZBA
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
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.
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.
Claims Against Hodge in his Official Capacity
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.
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 ...