Morrison Mahoney Partner Bill Staar and Associate Meredith Lasna recently won a motion for summary judgment on behalf of the Town of Lincoln, New Hampshire, and the town’s planning board in a zoning-dispute lawsuit brought by a resident. (Romprey v. Town of Lincoln Planning Board, et al.; New Hampshire Superior Court (Grafton County); No.-215-2018-CV-348; 9/30/19)

In 2016, the Town of Lincoln, New Hampshire, (“Town”), by vote of its residents, changed the zoning designation of a certain area within the town from “general use” to “residential.” The plaintiffs, who owned real property within that zone, claimed (1) that the vote had resulted from various bad acts of the defendants, including the defendants’ having made to Town residents material misrepresentations about the zoning history of the subject area, failing to conduct adequate historical research concerning the subject area, failing to maintain an accurate zoning map, and allowing a biased member of the planning board to deliberate and vote to support a warrant article that preceded the public vote, and (2) that, because of the change in designation, their real property became less desirable, causing them to lose money as a result of the 2018 sale of the property.

Via a motion for summary judgment, the defendants argued (1) that the plaintiffs had failed to exercise required administrative remedies, (2) that plaintiffs’ claims were time-barred, (3) that, because the rezoning did not amount to a taking, the plaintiffs had no vested right in challenging the rezoning, and (4) that the plaintiffs could not prove causation, i.e., that even if the alleged acts of the defendants were true, the plaintiffs could not prove that those acts played any role in affecting the decisions of any of the town voters, much less a majority of those who voted for the zone change in 2016. 

The Court (Hon Peter H. Bornstein) granted the motion and dismissed the plaintiffs’ lawsuit.   In so doing, it focused on the first three of the defendants’ four arguments: It held (1) that a zoning re-designation did not amount to a taking, (2) that no property owner has any right to a particular zoning designation because all real property is subordinate to the police power of a municipality, (3) that the state constitution does not permit the plaintiffs to bring a tort action against the defendants in Superior Court, and (4) that the plaintiffs failed to pursue their property remedy, i.e., an administrative appeal pursuant to RSA Section 677.