Merriam Farm v. Town of Surry

Variance Request Not Precluded by Building Permit Application
New Hampshire Supreme Court No. 2014-0702
Tuesday, September 22, 2015

In this case, the New Hampshire Supreme Court held that a denied building permit application did not preclude an applicant from subsequently requesting a variance.

The petitioner, Merriam Farm, first applied to the select board for a building permit to construct a single-family home on a Class VI road. The application was denied due to insufficient frontage, and the petitioner’s appeal to the superior court was equally unsuccessful. Thereafter, the petitioner sought a variance from the frontage requirement. The variance was also denied.

On appeal to the superior court, Surry argued that the petitioner was precluded from seeking the variance because it was the same type of relief requested, and denied, through the building permit application. The superior court judge agreed that the unsuccessful building permit application precluded the ZBA from considering the variance application.

The New Hampshire Supreme Court disagreed and held that the variance request was not precluded. For Surry to establish that the legal doctrine of “claim preclusion” (also known as “res judicata”) applied, it had to establish three elements: (1) the parties are the same or in privity with one another; (2) the same cause of action was before the court in both instances; and (3) the first action ended with a final judgment on the merits.

Because the parties agreed that elements one and two were met, the court needed to consider only whether the building permit application and the variance application were the “same cause of action” as required by element two. The court determined these were two separate claims because they did not arise out of the same transaction or occurrence. Here, it was impossible for the petitioner to add its variance claim to an appeal of the denied building permit, and establishing the statutory elements to obtain a variance is not part of the process for appealing a building permit. Furthermore, it is the ZBA, not the superior court, who must make the initial decision on a variance. Therefore, the petitioner’s only option was to bring its variance request separate from its appeal from the building permit denial.

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