The following summary is based on an opinion of the U.S. District Court for the District of New Hampshire. Federal district court opinions apply federal law and sometimes New Hampshire law. Their interpretations of New Hampshire law are not binding on the New Hampshire Supreme Court.
The plaintiff obtained a building permit from the defendant town. After construction was nearly complete, a cease and desist order was issued to prevent use of the property until the height was reduced to comply with the ordinance as the selectmen interpreted its terms. The matter was litigated in the state courts, and the landowner prevailed, to the point that the cease and desist order was vacated, and the landowner was awarded her attorneys’ fees.
Acting as her own attorney, this additional litigation is brought in the federal court seeking damages for alleged violations of her constitutionally guaranteed rights to substantive due process, procedural due process, and rights under the Constitution’s contract clause.
This opinion is an interim order following consideration of the town’s motion to dismiss.
Although the Court has now dismissed the substantive due process claim and the contract clause claim, the procedural due process claim has survived. While we do not yet know whether the case will ultimately be found to have merit, the plaintiff’s claims suggest questions officials might ask before commencing an enforcement action against potential land use violations. These include: