Merriam Farm, Inc. v. Town of Surry

Petitioner Merriam Farm, Inc. appealed a superior court decision dismissing its appeal of a Zoning Board of Adjustment (ZBA) decision of the respondent, Town of Surry (Town), on the basis that the appeal was barred by claim preclusion. Under the Town's zoning ordinance, to build on its property, petitioner had to establish that the property has at least 200 feet of frontage on a public street, which was defined, in pertinent part, as a Class V or better road. In 2009, petitioner applied to the Town's selectboard for a building permit to construct a single-family home on its property. The selectboard denied the application because the property lacked frontage on a Class V or better road. In 2013, petitioner applied to the ZBA for a variance from the frontage requirement in the Town's zoning ordinance in order to build a single-family residence on the property. The ZBA denied the application. After unsuccessfully moving for rehearing, the petitioner appealed to the trial court. The Town asserted, among other things, that petitioner's application for a variance was barred by the doctrines of claim preclusion and preemption. Petitioner argued, among other things, that the Town waived its claim preclusion argument and that the ZBA improperly applied the statutory criteria governing variances under RSA 674:33, I(b). "If, based upon res judicata, we were to bar a subsequent application for a variance after the denial of a building permit application, we would, as the petitioner notes, effectively require landowners to simultaneously apply for all potentially necessary land use permits, variances, and exceptions. Such would be costly and inefficient, and burden the zoning process by adding complexity to an already complicated process." Accordingly, the Supreme Court concluded that the denial of petitioner's application for a building permit gave rise to a cause of action different from the denial of its variance application, and, thus, res judicata did not preclude petitioner's variance application. Therefore, the Court reversed the trial court's ruling. View "Merriam Farm, Inc. v. Town of Surry " on Justia Law