Banerjee v. Wilmot NH

2013 DNH 117

• Court: District Court, D. New Hampshire
• Decided: September 6, 2013
• Docket: CV-13-2030PB
• Status: Published

Opinion

Banerjee v . Wilmot NH CV-13-2030PB 9/6/13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Monica Banerjee

v. Case N o . 13-cv-203-PB Opinion N o . 2013 DNH 117 Town of Wilmot, NH

MEMORANDUM AND ORDER

The Town of Wilmot (the “Town”) issued a cease and desist

order barring Monica Banerjee from using a building she built on

her property until she reduced the height of the building so

that it was not higher than thirty-five feet when measured from

the lowest point surrounding the building. Banerjee challenged

the order in state court and prevailed. As a result, the order

was vacated and Banerjee was awarded attorney’s fees.

In this action, Banerjee has sued the Town for damages.

She asserts that the Town violated her right to substantive due

process (Count 1 ) , procedural due process (Count 2 ) , and her

rights under the Constitution’s Contract Clause (Count 3 ) . She

also presents several state law claims. The Town has filed a

motion to dismiss for failure to state a claim (Doc. N o . 9 ) . I

address each of Banerjee’s federal claims in turn using the

familiar standard that governs challenges to the sufficiency of

a complaint. See, e.g., Manning v . Bos. Med. Ctr. Corp., Nos. 12-1573, 12–1653, 2013 WL 3942925, at *5 (1st Cir. Aug. 1 ,

2013).

A. Substantive Due Process

Banerjee’s substantive due process claim fails because she

has not alleged facts that would support a determination that

the Town’s actions “shock the conscience.” See, e.g., Freeman

v . Town of Hudson, 714 F.3d 2 9 , 40 (1st Cir. 2013) (describing

the shock the conscience standard). Accepting as true all of

Banerjee’s claims for purposes of analysis, she alleges that:

(1) the Town adopted a vague building height ordinance; (2) the

selectmen arbitrarily interpreted the ordinance; (3) the Town

induced her to reasonably believe that her building project was

permissible by issuing building permits authorizing her to build

the building; (4) the Town unreasonably delayed its enforcement

action until construction activities had been substantially

completed; and (5) the Town failed to properly investigate the

matter before it issued the cease and desist order. As bad as

this conduct allegedly was, it does not come close to satisfying

the standard that is required to support a substantive due

process claim.

B. Procedural Due Process

I require further briefing before I can rule on Banerjee’s

2 procedural due process claim. The Town argues that it cannot be

held liable for the acts of the selectmen because the complaint

does not sufficiently allege that the cease and desist order was

the result of a municipal policy or custom. This argument fails

because “[a] single decision by a municipal policymaker

constitutes official policy . . . ‘only where the decisionmaker

possesses final authority to establish municipal policy with

respect to the action ordered.’” Id. at 38 (quoting Pembaur v .

City of Cincinnati, 475 U.S. 469, 481 (1986)). Here, because

the selectmen clearly are the Town’s final policymakers with

respect to the enforcement of the building height ordinance, the

Town’s argument necessarily fails.

The Town alternatively argues that the procedural due

process claim must be dismissed because state law provided

Banerjee with adequate post-deprivation due process. The

doctrine the Town relies o n , however, applies only when the due

process violation was the result of “random and unauthorized”

acts by state officials. See San Gerónimo Caribe Project, Inc.

v . Acevedo-Vilá, 687 F.3d 465, 479 (1st Cir. 2012); Mard v . Town

of Amherst, 350 F.3d 1 8 4 , 193-94 (1st Cir. 2003). Because the

Town has not briefed the issue of whether the issuance of the

3 cease and desist order was random and unauthorized, I cannot

determine whether its argument for dismissal has merit.

In reviewing the complaint, it appears that the procedural

due process claim nevertheless should be dismissed for a

different reason. The cease and desist order gave Banerjee ten

days to either move out or reduce the height of the building.

It did not enjoin her from engaging in construction activities.

The applicable law allows a landowner twenty days to answer a

cease and desist order. N.H. Rev. Stat. Ann. § 676:17-a(V)

(2008). If an answer is filed, the Town must go to court to

enforce the order. See id. § 676:17-a(VII). In court, Banerjee

has all of the procedural protections that are available to any

other party to litigation. See id. § 676:17-a(VII) (specifying

that proceedings in court will be governed by district court

rules). Thus, it appears that Banerjee had access to sufficient

pre-deprivation process to prevent her from maintaining a viable

procedural due process claim. Because this issue has not been

briefed, however, I will give Banerjee fourteen days to file a

memorandum showing cause as to why the procedural due process

claim should not be dismissed on this basis.

4 C. Contract Clause

Banerjee’s Contract Clause claim is based on the premise

that the building permits she was issued are contracts that the

Town interfered with when it issued the cease and desist order.

This argument is a nonstarter for three reasons. First, a

building permit is a government authorization to build; it is

not a contract. Second, the Contract Clause applies only to

legislative acts, Ross v . Oregon, 227 U.S. 1 5 0 , 161-62 (1913),

and Banerjee is challenging actions that the selectmen undertook

in an executive capacity. See Mabey Bridge & Shore, Inc. v .

Schoch, 666 F.3d 8 6 2 , 875 (3d Cir. 2012) (explaining that “[t]he

Supreme Court has rejected the argument that the Contract Clause

is violated when there is a new interpretation of an antecedent

state statute”). The building ordinance was adopted before

Banerjee obtained her building permits. Obviously, the adoption

of the ordinance could not interfere with contracts that were

not then in existence. If Banerjee has a claim, it is that the

selectmen acted arbitrarily in attempting to enforce the

ordinance. This is executive action that the Contract Clause

simply does not reach. Third, the challenged actions involved

an effort by the Town to exercise its routine police powers.

The Contract Clause does not bar a state from exercising its

5 legitimate police powers. See Allied Structural Steel C o . v .

Spannaus, 438 U.S. 2 3 4 , 241 (1978). Nor can it be used to

subject local officials to damages whenever they attempt to

enforce an erroneous interpretation of an otherwise legitimate

zoning ordinance. Banerjee does not cite any case in which a

court has held that a town’s overzealous attempt to enforce its

zoning ordinances has resulted in a violation of the Contract

Clause and I am aware of no such authority. Accordingly, I

agree with the Town that Banerjee’s Contract Clause claim must

be dismissed.

CONCLUSION

For the reasons set forth in this Memorandum and Order,

Banerjee’s substantive due process claim and her Contract Clause

claim are dismissed. Banerjee shall have fourteen days to show

cause as to why the procedural due process claim should not also

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro

United States District Judge

September 6, 2013

cc: Monica Banerjee, pro se Andrew B . Livernois, Esq. 6