Bel-Air Nursing Home and Rehab Center, Inc. v. Town of Goffstown

          MEMORANDUM ORDER

          JOSEPH N. LAPLANTE UNITED STATES DISTRICT JUDGE

         Plaintiff Bel-Air Nursing and Rehab Center, Inc. claims that the Town of Goffstown and its Zoning Board of Adjustment^[1]violated its federal constitutional rights to due process and equal protection when it denied Bel-Air's application for a permit or variance to place a sign on its property. Both denials were upheld by the New Hampshire Superior Court. The State Supreme Court affirmed the variance ruling; Bel-Air did not appeal the permit ruling. Invoking Fed.R.Civ.P. 12(b)(6), Goffstown argues that plaintiffs' claims are barred in whole or in part by the Rooker-Feldman doctrine, ^[2] res judicata and collateral estoppel, and that Bel-Air's Amended Complaint fails to state a claim for constitutional violations. After reviewing the parties' submissions and the relevant state court decisions, and conducting oral argument, the court finds that the factual and legal allegations Bel-Air levies in this case were conclusively resolved against it in the state court and are thus barred by res judicata or collateral estoppel. Alternatively, the allegations in the Amended Complaint fail to establish either a due process or equal protection violation.^[3] Goffstown's motion to dismiss is therefore granted.

         I. Applicable legal standard

         To state a claim for relief and withstand a motion to dismiss, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Martinez v. Petrenko, 792 F.3d 173, 179 (1st Cir. 2015). In ruling on such a motion, the court accepts as true all well-pleaded facts set forth in the complaint and draws all reasonable inferences in the plaintiff's favor. See, e.g., Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010).

         The court “may consider not only the complaint but also facts extractable from documentation annexed to or incorporated by reference in the complaint and matters susceptible to judicial notice.” Rederford v. U.S. Airways, Inc., 589 F.3d 30, 35 (1st Cir. 2009) (internal quotations omitted). The court “need not, however, credit bald assertions, subjective characterizations, optimistic predictions, or problematic suppositions, ” and “[e]mpirically unverifiable conclusions, not logically compelled, or at least supported, by the stated facts, deserve no deference.” Sea Shore Corp. v. Sullivan, 158 F.3d 51, 54 (1st Cir. 1998) (internal quotations omitted). In addition to relating the allegations in the Amended Complaint, the court also culls background facts from the judicial findings during the parties' prior proceedings. See Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990) (“It is well-accepted that federal courts may take judicial notice of proceedings in other courts if those proceedings have relevance to the matters at hand.”)

         Guided by these standards, the court turns first to Bel-Air's allegations and the prior proceedings.

         II. Factual background

         A. The first application

         Plaintiff operates a nursing home in Goffstown. The property is zoned for commercial uses, but is surrounded by residentially-zoned lots. In 2013, Bel-Air sought to erect a new, internally-illuminated sign on its property to replace two older signs.^[4] The new sign would be roughly the same height as one of the old ones, but would have a programmable LED display instead of illumination from external lights at its base, as the former signs had utilized.

         The relevant Goffstown zoning ordinance prohibits internally-illuminated signs within 250 feet of a residential district boundary, a demarcation that encompassed Bel-Air's property; Bel-Air proposed to erect the sign within 60 feet of the boundary.^[5] Accordingly, Bel-Air applied for a variance.

         The ZBA held three hearings on the variance application. One abutter spoke in favor of the sign, while several expressed concern that the sign would reflect a commercial nature out of touch with the residential character of the neighborhood. Bel-Air asserted that the proposed sign would be less intrusive than its existing signs, and that no variance would be necessary for it to construct significantly larger versions of its existing, externally-illuminated signs.

         In December 2013, the ZBA denied Bel-Air's application, finding that it had not established that enforcement of the ordinance would result in an “unnecessary hardship, ” as required by N.H. Rev. Stat. Ann. § 674:33 I(b)(5).^[6]

         After the ZBA denied its petition for rehearing, Bel-Air appealed to the New Hampshire Superior Court. See N.H. Rev. Stat. Ann. § 677:4. In addition to arguing that the ZBA incorrectly decided the hardship issue, Bel-Air asserted that the ZBA decision should be reversed due to an alleged conflict of interest wherein one board member owned a sign company that competed with the sign company that Bel-Air engaged to construct its proposed sign. Bel-Air also argued that the ZBA decision violated its constitutional rights to equal protection and due process because other businesses on commercial lots in Goffstown were allowed to install internally-illuminated signs.^[7]

         The Superior Court rejected all of Bel-Air's arguments and affirmed the ZBA's decision.^[8] First, the Court found no conflict of interest, as Bel-Air failed to demonstrate how the board member's company would benefit from denying the variance. The Court also noted that Bel-Air was not generally prohibited from constructing any sign and that it had later received approval for a different sign designed by the same contractor hired to construct the proposed sign.^[9]

         The Superior Court next rejected Bel-Air's argument that the ZBA erred in finding that it failed to establish an unnecessary hardship, as required by state law. The Court noted that the stated purpose of the Goffstown ordinance was related to aesthetics, and that Bel-Air had claimed that there was no evidence before the ZBA that the proposed sign would have a negative aesthetic impact. As the Court noted, however, several abutters testified as to the proposed sign's negative aesthetic impact, and such an impact is enough, even standing alone, to support the ZBA's decision.^[10] Accordingly, the Court found that there was a “fair and substantial relationship” between the ordinance and its application to Bel-Air, as required by N.H. Rev. Stat. Ann. § 674:33(I)(5)(A)(i).^[11]

         The Superior Court also rejected Bel-Air's constitutional due process and equal protection claims, finding that Bel-Air was not similarly situated to other businesses that it claimed received favorable treatment. The putative comparators, the Court observed, were in a “heavily commercialized” area, while Bel-Air is the sole commercial entity located in an area “characterized by its rural appearance.”^[12]

         The New Hampshire Supreme Court affirmed the variance denial, summarily rejecting Bel-Air's arguments that the trial court erred by: 1) failing to find a conflict of interest; 2) failing to grant a new trial based on new evidence of a conflict; 3) finding no unnecessary hardship; and 4) finding that application of the ordinance did not violate Bel-Air's substantive due process or equal protection rights.^[13]

         B. The second application

         While its variance case was pending before the state Supreme Court, Bel-Air submitted an application for a sign permit to Goffstown Planning and Zoning Administrator Brian Rose.^[14] The application proposed an electronic message center reader board comprised of LEDs, which Bel-Air described as similar to a “Lite-Brite.”^[15] Although the application described the sign as externally-illuminated, Rose disagreed, and denied the application. Bel-Air appealed to the ZBA.^[16]

         Before the ZBA, Bel-Air argued that the sign was externally-illuminated -- and thus allowed by the ordinance -- because the LEDs are located on the exterior surface of the sign. It also suggested that because each LED was surrounded by a metallic sheath, it complied with the ordinance's requirement of “shielded white light.” The ZBA rejected Bel-Air's characterization of the sign as externally-illuminated, upheld Rose's decision, and subsequently denied Bel-Air's motion for reconsideration.^[17]

         Bel-Air also appealed this ZBA decision to the New Hampshire Superior Court. It argued (1) that the ZBA incorrectly determined that the sign was not externally illuminated (2) that the distinction between internal and external illumination is unconstitutionally vague (3) that a ZBA member had a conflict of interest; and (4) that the ZBA decision violated its equal protection rights because, on the same day it denied Bel-Air's appeal of the permit denial, it granted a variance to St. Anselm College, allowing it to install an internally-lighted sign.^[18]

         The Superior Court rejected all of Bel-Air's arguments.^[19]First, the Court found that the sign is not externally illuminated because the light is emitted from the sign, rather than cast onto it.^[20] The Court next rejected Bel-Air's void-for-vagueness argument, relying on the New Hampshire Supreme Court's decision in Asselin, supra, which rejected a vagueness attack on a similar zoning ordinance, holding that “[a] person of ordinary intelligence reading the ordinance could understand that it proscribes all methods of sign illumination that cast light from within the sign out through the faces of the sign.”^[21] The Court also rejected Bel-Air's argument that technological changes after Asselin was decided in 1993 warranted a different result, observing that the “fundamental distinction between internal and external illumination” remained unchanged, and that “regardless of the technology used, light is either cast onto the sign or away from or by the sign.”^[22]

         The Superior Court also rejected the conflict of interest charge, noting that there was no record evidence that the board member in question or her company would benefit from the denial of Bel-Air's permit, and observing that Bel-Air already had a functional sign manufactured by one of her competitors and that the ZBA decision did not prevent Bel-Air from using the competitor to create a legally-compliant sign.^[23] Next, the Court rejected Bel-Air's equal protection argument, finding that Bel-Air was not similarly situated to St. Anselm, as the latter sought a variance -- implicitly acknowledging the non-compliance of its sign -- whereas Bel-Air sought a permit, arguing that its proposed sign was compliant.^[24] Finally, the Court rejected Bel-Air's claim that the distinction between internal and external illumination violated Bel-Air's equal protection rights, as towns are permitted to make decisions based on aesthetic concerns.^[25]Bel-Air did not appeal the Superior Court's permit decision.

         III. Legal analysis

         Bel-Air's Amended Complaint sets forth four counts: 1) violation of its equal protection rights under the 14th Amendment; 2) violation of its right to due process under the 5th and 14th Amendments; 3) a civil rights claim under 42 U.S.C. § 1983 for the above constitutional rights violations; and 4) a claim for permanent injunctive relief.

         The court first notes that 42 U.S.C. § 1983 is not a separate cause of action, but is instead a statutory vehicle through which a plaintiff can assert a violation of a federal right. See Albright v. Oliver, 510 U.S. 266, 271 (1994) (“Section 1983 ‘is not itself a source of substantive rights, ' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)); see also, Goldblatt v. Geiger, 867 F.Supp.2d 201, 203 (D.N.H. 2012) (citing Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 620 (1st Cir. 2000)). Accordingly, Count 3 must be dismissed, but this makes no practical or substantive difference to the plaintiff, as the court will construe Counts 1 and 2 as though they were properly brought pursuant to 42 U.S.C. § 1983.

         Similarly, count 4 of the Amended Complaint requests injunctive relief. As this request is not a separate cause of action, the Court will treat that count as a prayer for relief and dismiss Count 4. See Isaacs v. Trustees of Dartmouth College, 2017 DNH 230; see also Diamond Phoenix Corp. v. Small, No. 05-79-P-H, 2005 WL 1530264, at *4 (D. Me. June 28, 2005) (noting that “[i]njunctive relief is just that, relief; it is not a separate cause of action”). With those matters resolved, the court turns to Bel-Air's constitutional claims.

         A. Equal protection

         Bel-Air's equal protection claim is based on the allegation that the ZBA approved internally-illuminated sign applications submitted by St. Anselm College “and other ...