Bel-Air Nursing and Rehab Center, Inc. v. Town of Goffstown, New Hampshire & Goffstown Zoning Board of Adjustment

2018 DNH 001

• Court: District Court, D. New Hampshire
• Decided: January 2, 2018
• Docket: 16-cv-259-JL
• Status: Published

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Bel-Air Nursing and Rehab Center, Inc.

v. Civil No. 16-cv-259-JL Opinion No. 2018 DNH 001 Town of Goffstown, New Hampshire & Goffstown Zoning Board of Adjustment

MEMORANDUM ORDER

Plaintiff Bel-Air Nursing and Rehab Center, Inc. claims that

the Town of Goffstown and its Zoning Board of Adjustment1

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

1 For convenience, the court refers to the defendants collectively as “Goffstown” or “the ZBA.” 2 The Rooker-Feldman doctrine prevents federal district courts from exercising jurisdiction over “cases brought by state-court losers complaining of injuries caused by state- 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

court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Tompson v. N.H. Dep’t of Health and Human Servs., No. 16-2010 (1st Cir. Dec. 5, 2017) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)); see also D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). 3 In light of these findings, the court does not reach the defendant’s arguments premised on the Rooker-Feldman doctrine.

2 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.”)

3 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.

4 Amended Complaint, doc. no. 10, ¶10. 5 Specifically, within the 250 foot range, “[a]ny sign . . . shall only be illuminated by a shielded external white light. No internal illumination is permitted.” Zoning Ordinance for Goffstown, New Hampshire, Section 6.6.3.

4 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.

6 The statute further provides that:

[An] “unnecessary hardship” means that, owing to special conditions of the property that distinguish it from other properties in the area:

(i) No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property; and

(ii) The proposed use is a reasonable one.

N.H. Rev. Stat. Ann. § 674:33 I(b)(5)(A)(i) and (ii). 5 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

7 It is unclear from the record whether Bel-Air asserted its rights under the state or federal constitutions, or both. 8 Bel-Air Nursing Home & Rehab Ctr., Inc. v. Goffstown Zoning Bd. Of Adjustment, No. 216-2014-CV-00054 (N.H. Super. Dec. 1, 2014) (Brown, J.) (“Bel-Air I”). 9 Bel-Air I, at 4. The Superior Court Order did not specify the location of the later-approved sign. That information is not 6 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

relevant for purposes of this ruling, however, as it is only offered to demonstrate the state Court’s resolution of Bel-Air’s conflict of interest argument. 10Id. at 6 (citing Asselin v. Town of Conway, 137 N.H. 368, 371- 72 (“We now conclude that municipalities may validly exercise zoning power solely to advance aesthetic values, because the preservation or enhancement of the visual environment may promote the general welfare.”)). 11 Id.

7 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

12 Id. at 7. 13Bel-Air Nursing & Rehab Ctr., Inc. v. Town of Goffstown, No. 2015-0046, 2015 WL 11079675 (N.H. Dec. 9, 2015). 14Amended Complaint, doc. no. 10, ¶ 21. The record is unclear as to whether this proposed sign was of the same design as the previous one for which Bel-Air sought a variance.

8 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

15Lite-Brite is a toy that was originally sold in 1967. It consists of an internally-illuminated light box with small colored plastic pegs that fit into a panel to create a lit picture, by either using one of the included templates or creating a freeform image on a blank sheet of black paper. Allie Townsend, All-TIME 100 Greatest Toys, Lite-Brite, Feb. 16, 2011, http://content.time.com/time/specials/packages/article/0,28804,20 49243_2048656_2049112,00.html (last visited Dec. 1, 2017). 16 Amended Complaint, doc. no. 10, ¶ 21. 17 Id., ¶¶ 22-23.

9 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

18 Id., ¶ 29. 19Bel-Air Nursing & Rehab Ctr., Inc. v. Goffstown Zoning Board of Adjustment, No. 216-2015-CV-00800 (N.H. Super. May 10, 2017) (Kissinger, J.) (“Bel-Air II”). 20 Id. at 3-4.

10 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

21 Id. at 4-5 (citing Asselin, 137 N.H. at 371).

22 Id. at 5. 23 Id. at 5-6.

11 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,

24 Id. at 6. 25 Id. at 7-8.

12 144, 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 businesses in

analogous matters,” but not its own.26

26 Amended Complaint, doc. no. 10 ¶ 36.

13 The Equal Protection Clause of the Fourteenth Amendment

requires that similarly situated persons are to receive

substantially similar treatment from the government. U.S.

Const., amend. XIV, § 1 (“No State shall . . . deny to any person

within its jurisdiction the equal protection of the laws.”);

Tapalian v. Tusino, 377 F.3d 1, 5 (1st Cir. 2004). Where, as

here, a plaintiff can not claim membership in a protected class

or group, an equal protection claim may be based on a “class of

one.” Donovan v. City of Haverhill, 311 F.3d 74, 77 (1st

Cir.2002) (quoting Village of Willowbrook v. Olech, 528 U.S. 562,

564 (2000) (per curiam)). When pleading an equal protection

claim based on a class of one, a plaintiff must allege that it

has “been intentionally treated differently from others similarly

situated and that there is no rational basis for the difference

in treatment.” See id. (quoting Olech, 528 U.S. 562 at 564).

Without even reaching the merits of Bel-Air’s equal

protection claim, it is beyond dispute that it is barred by the

doctrine of res judicata because the state court has already

ruled that Goffstown committed no equal protection violation in

denying either the variance or the permit.

“Under federal law, a state court judgment receives the same

preclusive effect as it would receive under the law of the state

14 in which it was rendered.” Dillon v. Select Portfolio Servicing,

630 F.3d 75, 80 (1st Cir. 2011). Under New Hampshire law:

Res judicata precludes the litigation in a later case of matters actually decided, and matters that could have been litigated, in an earlier action between the same parties for the same cause of action. For the doctrine to apply, three elements must be met: (1) the parties must be the same or in privity with one another; (2) the same cause of action must be before the court in both instances; and (3) a final judgment on the merits must have been rendered in the first action.

Brooks, 161 N.H. at 690. The defendant bears the burden of

establishing that res judicata bars Bel-Air claim, see Dillon,

630 F.3d at 80, and, as explained below, the defendants have done

so.

First, this action and both state-court actions feature Bel-

Air suing Goffstown and its ZBA. As to the second element, this

litigation presents the same cause of action as the state-court

proceedings. In applying res judicata, New Hampshire law defines

“cause of action” to include “all rights to remedies with respect

to all or any part of the transactions, or series of connected

transactions, out of which the [first] action arose.” Grossman

v. Murray, 141 N.H. 265, 269 (1996). Here, the “series of

connected transactions” giving rise to the state court

proceedings were the Town’s denial of the variance, and later the

sign permit, followed by the Superior Court affirmance, and, in

15 the case of the variance, affirmance by the New Hampshire Supreme

Court.

The final factor in the res judicata analysis also weighs

against Bel-Air, as both state-court proceedings ended with final

judgments on the merits of the same claims Bel-Air asserts here.

As previously noted, the Superior Court rejected Bel-Air’s equal

protection claims both with respect to the variance application

and the permit application, with the Supreme Court affirming the

former ruling, and the latter becoming final when Bel-Air did not

appeal. In both cases, Bel-Air asserted the same grounds that it

does here – that similarly situated applicants in Goffstown were

treated more favorably, and in both cases, the Court ruled

against it.

The only arguable difference between the issues litigated in

state court and now alleged here is a technical one: the

Superior Court decided the equal protection issue on state --

rather than federal -- constitutional grounds. The method of

analysis of state equal protection claims is identical to that

under the federal standard. See In re Wintle, 146 N.H. 664, 667

(2001) (“The first question in an equal protection analysis is

whether the State action in question treats similarly situated

persons differently.”) (citation omitted). The analysis of

16 whether parties are “similarly situated” is no different.

Compare Bayson Props., Inc. v. City of Lebanon, 150 N.H. 167, 176

(2003) (rejecting property owners’ equal protection claim

because, inter alia, they “failed to produce evidence that any

[alleged comparators] were similar in nature, location, and scope

to their application”), with Barrington Cove, LP v. R.I. Hous.

and Mortgage Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001) (noting

that a plaintiff must demonstrate that it was similarly situated

“in all relevant respects.”). Moreover, res judicata bars claims

that could have been raised in the earlier proceeding, including

plaintiff’s federal constitutional claim. Brooks v. Trs. of

Dartmouth Coll., 161 N.H. 685, 690 (2011). See Casa Marie, Inc.

v. Superior Court of Puerto Rico for Dist. of Arecibo, 988 F.2d

252, 262 (1st Cir. 1993) (observing that “a federal court must

presume that state courts, consistent with the imperatives of the

Supremacy Clause, see U.S. Const. art. VI, are fully competent to

adjudicate federal constitutional and statutory claims properly

presented by the parties.”).

Bel-Air does not explicitly respond to Goffstown’s res

judicata argument. Bel-Air does not dispute that it raised

constitutional (equal protection and due process) claims, and

certainly does not argue that anything prevented it from

17 asserting the equal protection argument or claims it brings here

before the state courts. The closest it comes is a general plea

that because ZBA proceedings and Superior Court reviews are

somewhat limited in scope -- including a proscription on jury

trials – “Bel-Air should now be given the opportunity to have

judicial review . . . with the benefits of full discovery and a

jury trial.”27 Bel-Air cites no authority for this proposition,

nor can the court locate any. In fact, our Court of Appeals has

cautioned that “federal courts do not sit as a super zoning board

or a zoning board of appeals.” Raskiewicz v. Town of New Boston,

754 F.2d 38, 44 (1st Cir. 1985). Accordingly, res judicata bars

Bel-Air’s equal protection claim.

Even if it was not barred by res judicata, Bel-Air’s equal

protection claim would not survive Goffstown’s Motion to Dismiss.

As previously noted to state an equal protection claim based on a

class of one, the plaintiff must allege that it has “been

intentionally treated differently from others similarly situated

and that there is no rational basis for the difference in

treatment.” See Donovan, 311 F.3d at 77 (quoting Olech, 528 U.S.

at 564). Bel-Air’s claim falters at the first step, as its

27 Pltff. Mem., doc. no. 20, at 2.

18 Amended Complaint fails to allege facts that support its legal

conclusion that it was treated differently from a similarly

situated entity.

Although the formula for determining whether certain

entities are “similarly situated” is not a bright line test,

Barrington Cove, 246 F.3d at 8, the First Circuit Court of

Appeals has explained that “[t]he test is whether a prudent

person, looking objectively at the incidents, would think them

roughly equivalent and the protagonists similarly situated.” Id.

(citation omitted). The relevant facts to consider “are those

factual elements which determine whether reasoned analogy

supports, or demands, a like result.” Id. (citation omitted).

Thus, to satisfy the “similarly situated” element, a plaintiff

must demonstrate that it was similarly situated “in all relevant

respects.” Id. (citation omitted). When a complaint cannot

reasonably be construed to permit such a finding, dismissal is

warranted. Id. “The ‘similarly situated’ requirement must be

enforced with particular rigor in the land-use context because

zoning decisions ‘will often, perhaps almost always, treat one

landowner differently from another.’” Cordi-Allen v. Conlon, 494

F.3d 245, 251 (1st Cir. 2007) (quoting Olech, 528 U.S. at 565

(Breyer, J., concurring)). Absent such rigor, “virtually every

19 zoning decision . . . would be a candidate to find its way to

federal court in the guise of an equal protection claim.” Id.

“It is inadequate merely to point to nearby parcels in a vacuum

and leave it to the municipality to disprove conclusory

allegations that the owners of those parcels are similarly

situated.” Id.

that the ZBA approved internally illuminated sign applications

analogous matters.”28 The vague and conclusory reference to

“other businesses in analogous matters” falls far short what is

necessary to survive a motion to dismiss. See SEC v. Tambone,

597 F.3d 436, 442 (1st Cir. 2010) (en banc) (“If the factual

allegations in the complaint are too meager, vague, or conclusory

to remove the possibility of relief from the realm of mere

conjecture, the complaint is open to dismissal.”); see also

Monadnock View Holdings, LLC v. Town of Peterborough, 2006 DNH

147, 19 (Barbadoro, J.) (dismissing equal protection claim where

plaintiff’s unsupported reference to “similarly situated

28 Amended Complaint, doc. no. 10, ¶ 36.

20 businesses” failed to identify the businesses or describe how

they were treated differently).

While Bel-Air does specifically allege that St. Anselm

College was treated differently, the factual allegations

underpinning this conclusory assertion are insufficient to defeat

Goffstown’s motion. First, Bel-Air was denied relief that St.

Anselm was not seeking. Compare Bel-Air I (variance) with Bel-

Air II (permit). This alone makes St. Anselm a poor comparator.

See Cordi-Allen, 494 F.3d at 251 (“[T]he proponent of the equal

protection violation must show that the parties with whom he

seeks to be compared have engaged in the same activity vis-à-vis

the government entity without such distinguishing or mitigating

circumstances as would render the comparison inutile.”).

Relatedly, while the ZBA decisions regarding Bel-Air’s

permit and St. Anselm’s variance were issued the same day, the

former was denied a permit because its sign did not comport with

the sign ordinance, while the latter implicitly conceded that its

sign did not meet the ordinance’s requirements, and thus sought a

variance. This, too, weakens Bel-Air’s claim that the two

entities are similarly situated. See Freeman v. Town of Hudson,

714 F.3d 29, 39 (1st Cir. 2013) (finding that plaintiff in land

use case alleging an equal protection violation was not similarly

21 situated from a neighbor where plaintiff admitted to violating a

conservation easement with which the neighbors complied).

Finally, other than the allegation that St. Anselm, like

Bel-Air, is in a residential zone and received relief that Bel-

Air was denied, the Amended Complaint contains no further factual

information that could support an argument that the two are

similarly situated, such as the aesthetics and character of the

neighborhood and abutters’ concerns, factors which played a

significant role in the denial of Bel-Air’s applications. This

lack of detail further supports dismissal. The First Circuit

Court of Appeals’s decision in Barrington Cove, supra, is

instructive. There, the court affirmed the district court’s

dismissal, inter alia, of an equal protection claim brought by a

developer who did not receive certain tax credits that other

developers received. Id. at 1-5. The district court found that

the plaintiff was not similarly situated to the other developers

and granted the defendant's motion to dismiss. Id. at 7-8. On

appeal, the plaintiff argued that its complaint was adequate

because it alleged that the plaintiff and the alleged comparators

all requested the same tax credits. Id. at 8. While the Court of

Appeals noted that such information was “certainly . . .

material,” it agreed with the district court that it was

22 insufficient. Id. The Court observed that the plaintiff alleged

certain characteristics that it possessed, but failed to address

whether the putative comparators possessed them. Id. Thus, the

Court posited, “the question reduces to whether it was necessary

that Barrington allege these correlations with reasonable

particularity. We conclude that it was incumbent upon Barrington

to do so . . . .” Id.; see Cordi-Allen, 494 F.3d at 252

(affirming grant of summary judgment where land-use plaintiff’s

allegations “fail[ed] to account for the fact that ‘[v]arious

factual traits, circumstantial nuances, and peculiarities can set

entities apart, rendering them, by virtue of their differences,

amenable to disparate treatment.’”) (quoting Racine Charter One,

Inc. v. Racine Unified Sch. Dist., 424 F.3d 677, 681 (7th Cir.

2005)).

Here, as did the Court of Appeals in Barrington Cove, the

court finds that Bel-Air has failed to “allege the[]

correlations” between itself and St. Anselm “with reasonable

particularity.” Thus, even if the result of the prior state

court proceedings did not bar Bel-Air’s equal protection claim,

it has failed to plead “factual content that allows the court to

draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Martinez, 792 F.3d at 179.

23 B. Due Process

Bel-Air’s due process claim is comprised of a facial

challenge to the ordinance prohibiting internally illuminated

signs.29 Bel-Air alleges that the ordinance is

unconstitutionally vague because it does not define “internal

illumination.”28.

“It is a basic principle of due process that an enactment is

void for vagueness if its prohibitions are not clearly defined.”

URI Student Senate v. Town of Narragansett, 631 F.3d 1, 13 (1st

Cir. 2011) (quoting Grayned v. City of Rockford, 408 U.S. 104,

108 (1972)). “For such a facial challenge to succeed, however,

the complainant must demonstrate that the law is impermissibly

vague in all of its applications.” Id. (Citation and internal

quotation omitted). To comport with the strictures of due

process, a law must define an offense “‘[1] with sufficient

definiteness that ordinary people can understand what conduct is

prohibited and [2] in a manner that does not encourage arbitrary

and discriminatory enforcement.’” Id. at 13-14 (quoting Skilling

v. United States, 561 U.S. 358, 403 (2010)).

29 Pltff. Obj to Motion to Dismiss, doc. 13, at 11. 28 Amended Complaint, doc. no. 10, ¶ 45.

24 In the first instance, as recounted supra, pp. 5-9, this

claim, like Bel-Air’s equal protection claim, was explicitly

rejected by the Superior Court and is barred by res judicata.29

Judge Kissinger, employing New Hampshire Supreme Court authority

that is directly on-point, rejected Bel-Air’s argument that the

phrase “internal illumination” was unconstitutionally vague. The

Court observed that Asselin, supra, rejected a “void for

vagueness analysis on an ordinance that stated: ‘Signs shall not

be illuminated from within; signs may be illuminated only by

external light.’”30 This language is almost identical to that of

the Goffstown ordinance at issue here, which mandates that,

within 250 feet of a residential district, signs may only be

illuminated by “shielded white light” and bars “internal

illumination.”31 The Court also rejected Bel-Air’s argument that

changes in technology called for Asselin to be ignored.32 Id.

While Asselin was decided under the state constitution, Bel-Air

has provided no authority to suggest that the issue would be

decided any differently under the federal constitution, nor has

29 Bel-Air II, at 5. 30 Bel-Air II, at 4 (quoting Asselin, 137 N.H. 371). 31 Amended Complaint, doc. no. 10, ¶ 11. 32 Bel-Air II, at 4-5.

25 the court located any. Indeed, the New Hampshire Supreme Court

analyzes void for vagueness claims under the same standard as the

First Circuit Court Appeals. Compare State v. Wilson, 169 N.H.

755, 770 (2017) (“A statute can be impermissibly vague for either

of two independent reasons: (1) it fails to provide people of

ordinary intelligence a reasonable opportunity to understand the

conduct it prohibits; or (2) it authorizes or even encourages

arbitrary and discriminatory enforcement”), with URI Student

Senate, 631 F.3d at 13-14 (an offense must be defined with “[1]

with sufficient definiteness that ordinary people can understand

what conduct is prohibited and [2] in a manner that does not

encourage arbitrary and discriminatory enforcement.”) (internal

quotation omitted). Moreover, lack of authority notwithstanding,

res judicata bars claims which could have been asserted in prior

proceedings, such as a federal constitutional claim. Kalil v.

Town of Dummer Zoning Bd., 159 N.H. 725, 729-30 (2010); see also

supra, n.25 (noting that federal constitutional claims can be

brought in state court).

Alternatively, the facts asserted in the Amended Complaint

to support Bel-Air’s due process claim can not withstand

Goffstown’s motion. Bel-Air argues that the terms “internal” and

“external” illumination are unconstitutionally vague "because

26 even [the Town] is not sure what is meant by internal

illumination."33 The court, however, agrees with the observation

of the Superior Court that the “fundamental distinction . . . [is

that] light is either cast onto the sign or away from or by the

sign.”34 See also Asselin, 137 N.H. at 371 (“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.”). While

the court has little doubt that there might be room for differing

opinions in some cases on the question of illumination, “words

are rough-hewn tools, not surgically precise instruments.

Consequently, some degree of inexactitude is acceptable in

statutory language.” URI Student Senate, 631 F.3d at 14.

“‘[T]he fact that a statute requires some interpretation does not

perforce render it unconstitutionally vague.’” Id. (quoting IMS

Health Inc. v. Ayotte, 550 F.3d 42, 61 (1st Cir. 2008)). Thus,

even if res judicata did not bar Bel-Air’s due process claim, it

would nevertheless be dismissed.35

33 Pltff. Obj., doc. no. 13, at 11. 34 Bel-Air II, at 5. 35While Bel-Air’s Amended Complaint referenced the ZBA member’s alleged conflict of interest in connection with its due process claim, doc. no. 10, ¶ 43-44, Bel-Air also indicated in its 27 IV. Conclusion

As this court noted in a factually analogous case in which

plaintiffs sued local zoning officials in federal court following

the denial of their application for a building permit:

Procedural doctrines such as res judicata can be a source of great frustration to litigants, who sometimes view them as elevations of form over substance. But many of those doctrines have long occupied an important place in the law—in the case of res judicata, to ensure that “at some point litigation over the particular controversy comes to an end.”

Bosonetto v. Town of Richmond, 2013 DNH 080, 1 (quoting Colebrook

Water Co. v. Comm'r of Dep't of Pub. Works & Highways, 114 N.H.

objection to the Motion to Dismiss that its due process claim “is comprised of a facial challenge” to the Goffstown ordinance. Doc. no. 13, at 11. Its objection only included the alleged conflict as evidence of bad faith in support of its equal protection claim. Id. at 7-9. While the court did not reach the conflict issue in its equal protection analysis because Bel-Air failed to allege that it was treated differently than a similarly situated comparator, both Superior Court decisions explicitly rejected the conflict-of-interest contention. Bel-Air I, at 4; Bel-Air II, at 5-6. As such, regardless of whether Bel-Air is asserting the alleged conflict as support for its equal protection count, its due process count, or both, Bel-Air is collaterally estopped from re-arguing the finding that there was no conflict of interest. See Warren v. Town of East Kingston, 145 N.H. 249, 252 (2000) (holding that collateral estoppel bars a party from re-litigating any matter actually litigated in a prior action involving that party).

28 392, 395 (1974)), aff’d, No. 13-1987 (1st Cir. Apr. 22, 2014).

So it is here. The preclusive effects of the state court

proceedings are clear. Defendants’ Motion to Dismiss36 is

GRANTED.

SO ORDERED.

____________________________ Joseph N. Laplante United States District Judge

Dated: January 2, 2018

cc: Kristin H. Sheppe, Esq. Matthew R. Braucher, Esq. Brian J.S. Cullen, Esq.

36 Doc. no. 11.