This opinion helpfully clarifies that a violation of state constitutional guarantees of equal protection and/or due process may not serve as the basis for a direct action for money damages against a municipality.
The plaintiffs applied to the Town of Hudson for permits to display and sell vehicles. The applications were denied because the applicants had not obtained site plan approval. However, the plaintiffs alleged that the true reason for the denial was unlawful race discrimination in violation of the Equal Protection Clause of the New Hampshire Constitution. See N.H. Const. pt. I, art.12.
The Court addressed this issue once before, in the case of Rockhouse Mt. Property Owners Assoc. v. Conway, 127 N.H. 593 (1986). The plaintiff in that case alleged that the selectmen's refusal to lay out and maintain certain roads discriminated against vacation-home owners because of their seasonal residence. In that case, as in the present case, the Court noted that while constitutional violations demand a remedy in the law, that remedy does not need to take the form of a direct claim for money damages. The Court has the authority to create such a cause of action, but refused to do so in Rockhouse because the plaintiff in that case already had an adequate statutory remedy (de novo review of the selectmen's decision by a court). This remedy would have been available whether the selectmen's decision had been unconstitutional or "mere error." The Court's concern in that case was that the creation of a supplemental constitutional cause of action "would inevitably lead to the conversion of every road dispute into a constitutional tort action."
In the present case, the Court recognized that the same policy concerns applied, and again refused to create a separate constitutional claim because existing law provided the plaintiffs with an adequate remedy. The plaintiffs could have challenged the denial of the permits by appealing to the ZBA, and could have further appealed after that to the superior court. "This statutory remedy may not be as 'complete' as an additional constitutional tort would provide, but we, nevertheless, hold it to be adequate…. We believe that the likely multiplication of litigation resulting from a local squabble would be too high a price to pay for such a supplemental cause of action."