Merriam Farm, Inc. v. Town of Surry
168 N.H. 197
| N.H. | 2015Background
- Merriam Farm owns an unimproved parcel in Surry that fronts a Class VI road but lacks frontage on a Class V (or better) road as required by the Town zoning ordinance for a building permit.
- In 2009 Merriam Farm applied for a building permit under RSA 674:41; the selectboard denied it for insufficient frontage, the ZBA denied relief, and subsequent appeals to the superior court and this Court failed.
- In 2013 Merriam Farm separately applied to the ZBA for a variance under RSA 674:33 to build a single-family home; the ZBA denied that variance and the petitioner appealed to the superior court.
- The Town argued the variance appeal was barred by claim preclusion (res judicata) based on the earlier building permit litigation and also raised preemption and on-the-merits defenses.
- The superior court held the variance claim was precluded; the Supreme Court reversed, holding res judicata did not apply and remanded other issues (preemption and merits) to the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claim preclusion bars the variance application | Merriam Farm: res judicata does not apply because the variance is a distinct cause of action and could not have been litigated in the earlier building-permit appeal | Town: prior building-permit litigation put the same transaction in issue, so the variance appeal is precluded | Court held res judicata did not bar the variance; the two causes of action differ and the variance had to be brought first to the ZBA |
| Whether Town waived claim-preclusion defense by not raising it before the ZBA | Merriam Farm: Town waived the defense by failing to raise it in a rehearing request to the ZBA | Town: did not waive; may raise claim-preclusion defense in superior court | Court did not decide waiver because it resolved the appeal on res judicata merits in favor of Merriam Farm |
| Whether successive-variance doctrine (Brandt) applies | Merriam Farm: only one variance application was filed, so successive-variance precedent does not apply | Town: petitioner filed repetitive attempts and Brandt supports preclusion | Court: Brandt inapplicable because petitioner filed only one variance application |
| Whether preemption or merits defeat the variance (ZBA’s denial) | Merriam Farm: variance was properly before ZBA and merits require ZBA/trial court consideration | Town: argued preemption and that ZBA correctly denied the variance on statutory grounds | Court: declined to address preemption or merits and remanded those issues to the trial court |
Key Cases Cited
- Shepherd v. Town of Westmoreland, 130 N.H. 542 (N.H. 1988) (res judicata bars claims that should have been raised in earlier zoning/variance appeal)
- Brandt Dev. Co. of N.H. v. City of Somersworth, 162 N.H. 553 (N.H. 2011) (standard of review for zoning decisions and discussion of successive variance applications)
- Meier v. Town of Littleton, 154 N.H. 340 (N.H. 2006) (definition of cause of action for res judicata purposes)
- Sleeper v. Hoban Family P’ship, 157 N.H. 530 (N.H. 2008) (actions arising from same transaction are the same cause of action for res judicata)
- In re Estate of Bergquist, 166 N.H. 531 (N.H. 2014) (three-part test for res judicata applicability)