Appendix — Torromeo v. Town of Fremont, New Hampshire (No. 06-112)

Supreme Court US.

O. -112 JUL 21 2006

OFFICE OF THE CLERK

No. 05-

IN THE

SUPREME COURT OF THE UNITED STATES

HENRY TORROMEO and MDR CORPORATION,

Petitioners,

TOWN OF FREMONT, NEW HAMPSHIRE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

Timothy S. Hollister

(Counsel of Record)

Allison M. McKeen

Shipman & Goodwin LLP

One Constitution Plaza

Hartford, CT 06103-1919

(860) 251-5000

July 21, 2006

Sumner F. Kalman

Thea Valvanis

147 Main Street

P. O. Box 988

Plaistow, NH 03865

(603) 382-4003

Duane J. Desiderio

Thomas J. Ward

Felicia Watson

National Association of

Home Builders

1201 15th Street, NW

Washington, DC 20005

(202) 266-8200

27)

H.

TABLE OF APPENDICES

Decision, 7orromeo, et al. v. Town of Fremont,

No. 04-2547 (1" Cir. Feb. 21, 2006)................ App. la

Office of the Clerk, U.S. Supreme Court, Letter

Granting Application for Extension of Time

to File Petition for Certiorari to July 21, 2006

(QUANG FE FE, FO sinc. sciseseovssintotspnctiivernocs App. 12a

Order Denying Petition for Rehearing and Suggestion

for Rehearing en banc, Torromeo, et al. v. Town of

Fremont, Civil No. 0442547

0 Cr Ae 1 icc App 14a

Order, Jorromeo, et al. v. Town of Fremont,

Civil No. 03-481-SM, Opinion No. 2004

DNH 148 (D. N.H. Oct. 12, 2004).......0000...... App. 15a

Complaint for Deprivation of Civil Rights Under

42 U.S.C. § 1983, Torromeo, et al. v. Town of Fremont,

Civil No. 03-481-SM (D. N.H.)

lees OU .5, FI ag cccncteerctsnccinnenauee App. 29a

Excerpt From Respondent’s Brief in Opposition,

to Petition for Writ of Certioran, Torromeo, et al.

v. Town of Fremont, No. 02-1507

EEF, BNA: neictncirscsscesstcsnssmtiaabianeeiaada App. 40a

December 13, 2002 Opinion of New Hampshire

Supreme Court, Denying Takings Liability .. App. 43a

September 26, 2001 Town of Fremont’s Notice of

Appeal to New Hampshire Supreme Court ... App. 50a

September 26, 2001 Order of Rockingham

Superior Court, Awarding Damages to

PTOI since dasdkidas occas eens eae App. 58a

TABLE OF APPENDICES

(continued)

March 19, 2001 Order of Rockingham Superior

Court, on Motion of Reconsideration

. June 26, 2000 Summary Affirmance of New

Hampshire Supreme Court

Writ of Summons and Attachment,

MDR Corporation v. Town of Fremont

[inverse condemnation action],

March 21, 2000

. Writ of Summons and Attachment,

Torromeo v. Town of Fremont,

{inverse condemnation action],

March 21, 2000

. January 31, 2000 Order of Rockingham Superior

Court, regarding Torromeo Industries’

Vested Lots

December 27, 1999 Order of Rockingham

Superior Court, Declaring Growth Control

Ordinance “Invalid Ab Initio”

New Hampshire Constitution, First

Part, Article 12

la

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 04-2547

HENRY TORROMEO and MDR CORPORATION,

Plaintiffs, Appellants,

V.

TOWN OF FREMONT, NEW HAMPSHIRE,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT

COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

(Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Selya, Lipez, and Howard, Circuit Judges.

Timothy S. Hollister with whom Patrick M. Fahey,

Shipman & Goodwin, LLP, Sumner F. Kalman, Thea S.

Valvanis, and Duane J. Desiderio were on brief, for

appellants.

John J. Ryan with whom Casassa and Ryan, Eric

Kane and Devine, Millimet & Branch, PA were on brief,

for appellee.

February 21, 2006

HOWARD, Circuit Judge. This appeal arises from

a dispute between Plaintiffs Henry Torromeo and MDR

2a

Corporation and Defendant Town of Fremont, New

Hampshire over the Town's delay in issuing certain

building permits for property owned by Plaintiffs. Plaintiffs

sued in federal court under 42 U.S.C. § 1983, claiming that

the Town's delay constituted both a violation of the Takings

Clause of the Fifth Amendment and a breach of the due

process and equal protection guarantees of the Fourteenth

Amendment.' The district court granted the Town's motion

to dismiss under Fed. R. Civ. P. 12 (b) (6) because the

complaint was barred by the Rooker-Feldman doctrine and

res judicata. We affirm.

The case has a somewhat involved factual and

procedural history. In the late 1990s, Plaintiffs received

approval from the Fremont Planning Board for planned

housing subdivisions. Subsequently, however, the Town

enacted a growth control ordinance empowering the Board

to limit the number of building permits that it would issue

for new residential housing. The Board thereafter

implemented such a limitation, which resulted in Plaintiffs

being denied the needed permits.

Displeased, Plaintiffs sued in New Hampshire

Superior Court, challenging the validity of the growth

control] ordinance and seeking an injunction compelling the

Town to issue the building permits. The court granted the

injunction because the Town had failed to satisfy a

statutory prerequisite before adopting the ordinance. After

the New Hampshire Supreme Court affirmed that ruling,

the Town issued the permits.

' The Takings Clause of the Fifth Amendment applies to

the states through the Fourteenth Amendment. See Dolan _v.

Tigard, 512 U.S. 374, 383-84 (1994).

3a

Plaintiffs then filed additional separate suits in the

New Hampshire Superior Court, seeking compensation for

the temporary taking of their property during the period in

which they were wrongfully denied the permits. Their

complaints referenced both the Takings Clause of the Fifth

Amendment to the United States Constitution and the

analogous provision of the New Hampshire Constitution,

Part 1, Article 12. In addition, the complaints cited United

States Supreme Court authority interpreting the federal

Takings Clause. The cases were consolidated.

The superior court ruled that Plaintiffs were entitled

to compensation to offset the losses from the wrongly-

denied permits. After a trial on damages, the court awarded

MDR $71,600 and Torromeo $23,800. The Town appealed

to the New Hampshire Supreme Court which reversed. See

Torromeo v. Fremont, 813 A.2d 389 (N.H. 2002). It

reasoned that compensation is due for a temporary taking

only where the losses are caused by a municipality's

enactment of an unconstitutional ordinance. Id. at 392.

Because the growth control ordinance had not been held

unconstitutional, but merely invalid due to the Town's

failure to follow statutory enactment procedures, no

compensation was due. Id. Plaintiffs petitioned for a writ

of certiorari in the United States Supreme Court, claiming

that the New Hampshire Supreme Court's opinion

conflicted with the Fifth Amendment's Takings Clause. The

petition was denied. See 539 U.S. 923 (2003).

After the state-court judgment became final,

Plaintiffs filed the present action. Their complaint claimed

that the Town failure to compensate them justly for a taking

violated the Fifth Amendment. They also alleged a

violation of their substantive due process rights on the

ground that the Town's denial of the building permits was

4a

“arbitrary and capricious," and a violation of their equal

protection rights because the Town treated them differently

from "other similarly situated property owners."

The district court dismissed the complaint on two

grounds. It first concluded that the complaint had to be

dismissed under the Rooker-Feldman doctrine because the

Plaintiffs’ "federal lawsuit [was] little more than a thinly

disguised effort to reverse the New Hampshire Supreme

Court's decision rejecting their claimed entitlement, under

the Fifth Amendment, to the damages for the temporary

‘taking’ of their real property." Torrorneo v. Fremont, No.

03-481, 2004 WL 2300481, at *4 (D.N.H. 2004). The court

alternatively held the complaint was res judicata because

the Fifth Amendment claim was in fact adjudicated in the

state-court proceeding, and the due process and equal

protection claims could have been adjudicated in that

proceeding. See id. at *6-7.

We review the district court's dismissal order de

novo. See Roth v. United States, 952 F.2d 611, 613 (lst

Cir. 1991). We will affirm only if the well-pleaded facts fail

to establish the Town's liability under some actionable legal

theory. See Rodi v. S. New England Sch. of Law, 389 F.3d

5, 13 (1st Cir. 2004).

After the district court dismissed Plaintiffs’

complaint, the Supreme Court decided Exxon Mobil Corp.

v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005), which

substantially limited the reach of the Rooker-Feldman

doctrine. See Federacion de Maestros de P.R. v. Junta de

Relaciones del Trabajo de P.R., 410 F.3d 17, 23-24 (Ast Cir.

2005) (describing the limitations placed on Rooker-

Feldman by Exxon Mobil). Because we agree that

Plaintiffs’ Fifth Amendment claim is res judicata, we

bypass the Rooker-Feldman issue and proceed to the

Sa

district court's alternative ruling.

Under federal law, "a federal court must give to a

state-court judgment the same preclusive effect as would be

given that judgment under the law of the state in which the

judgment was entered." Migra v. Warren City Sch. Dist.

Bd. of Ed., 465 U.S. 75, 81 (1984). This principle applies to

a § 1983 action brought in federal court following a state--

court judgment. Id. at 83-85. Thus, the effect of the New

Hampshire court's final judgment on Plaintiffs’ federal

action is determined by applying New Hampshire's res

judicata law.

In New Hampshire, "the essence of the doctrine of

res judicata is that a final judgment by a court of competent

jurisdiction is conclusive upon the parties in a subsequent

litigation involving the same cause of action." In _re

Juvenile, 888 A.2d 422, 425 (N.H. 2005). The. doctrine

precludes litigation in a later case of matters actually

litigated, and matters that could have been litigated, in the

earlier action. See Brzica v. Trustees of Dartmouth Coll.,

791 A.2d 990, 999 (N.H. 2002). For res judicata to apply,

three elements must be satisfied: (1) the parties must be the

same or in privity with one another; (2) the same cause of

action must be before the court in both instances; and (3) a

final judgment on the merits must have been rendered in the

first action. See id. "Cause of action” is broadly defined to

mean "the right to recover, regardless of the theory of

recovery.” McNair v. McNair, 856 A.2d 5, 16 (N.H. 2004).

At first blush, this case appears to fall squarely

within New Hampshire's res judicata rules. The parties to

the federal action and the state actions were identical. The

same cause of action was before the federal court as was

before the state court because both suits sought

compensation for harm caused by the Town's wrongful

6a

denial of the permits. And the New Hampshire court

entered final judgments on the merits of Plaintiffs’ state-

court actions.

There is, however, a complication. In 1985, the

United States Supreme Court held that a takings claim

under the Fifth Amendment is not ripe until the plaintiff has

sought compensation through available state procedures.

See Williamson County Reg'l Planning Comm'n v.

Hamilton Bank, 473 U.S. 172, 194-95 (1985); see also

Deniz v. Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002). In

1989, building on Williamson County, the New Hampshire

Supreme Court held that federal-takings and related federal

due-process claims raised in a state-court proceeding,

alongside state-law claims for compensation, had to be

dismissed without prejudice because they were not ripe

until the state-law claims were resolved. See Blue Jay

Realty. Trust v. Franklin, 567 A.2d 188, 190-91 (N.H.

1989).

invoking Blue Jay Realty, Plaintiffs argue that res

judicata does not bar their federal-court action because (1)

- their federal claims were not litigated in the state-court

action and (2) they were not required to raise these claims

in the state-court action because they were not ripe. See In

re lannochino, 242 F.3d 36, 43 n.4 (ist Cir. 2001) (res

? Last term, the Supreme Court decided San Remo Hotel, L.P. v.

San Francisco, -- U.S. --, 125 S.Ct. 2491 (2005), which calls

Blue Jay Realty into substantial doubt. The San Remo Court held

that Williamson County "does not preclude state courts from

hearing simultaneously a plaintiff's request for compensation

under state law and the claim that, in the alternative, the denial of

compensation would violate the Fifth Amendment of the Federal

Constitution.” Id. at 2506.

Ta

judicata does not apply where a claim could not have been

raised in the first litigation); see also Restatement (Second)

of Judgments § 26(1) (c) (1982) (res judicata does not bar a

claim for relief in a subsequent action where the claim was

not raised in the initial action "because of. . . restrictions on

{the court's] authority to entertain multiple theories... ina

single action").

But Plaintiffs’ argument fails because the federal

takings claim was actually litigated to a final judgment on

the merits in the state court. As noted above, Plaintiffs'

state-court complaints identified the Takings Clause of the

Fifth Amendment to the United States Constitution as a

basis for the cause of action. The complaints also cited First

English Evangelical Lutheran Church v. Los Angeles

County, 482 U.S. 304 (1987), a Supreme Court case

interpreting the Takings Clause. In addition, after losing in

the New Hampshire courts, Plaintiffs filed a writ of

certiorari with the United States Supreme Court claiming

that the New Hampshire decision violated their rights under

the federal Takings Clause. These filings demonstrate that a

federal takings claim was actually litigated in the state-

court action. See C. Wright, A. Miller & E. Cooper, Federal

Practice & Procedure § 4406, at 143 (2d ed. 2002) (stating

that forma! pleadings and other filings are relevant to

determining the claims that were advanced in a prior suit).

Indeed, Plaintiffs admitted as much in their federal

complaint, which states that the state-court proceedings

were actions "to obtain just compensation for a taking

under the U.S. and New Hampshire Constitutions."’ The

> Plaintiffs point to the fact that the New Hampshire

Supreme Court cited only cases interpreting the New Hampshire

Constitution as evidence that the litigation did not involve a

cr"

8a

district court thus correctly concluded that res judicata

barred Plaintiffs’ Fifth Amendment claim.’ See Peduto v. N.

Wildwood, 878 F.2d 725, 728-29 (3d Cir. 1989) (affirming

res judicata dismissal of a Takings Clause claim filed in

federal court where the claim was litigated to a final

judgment on the merits in a prior state-court proceeding).

We turn now to the Plaintiffs substantive due

process and equal protection claims. Whether res judicata

bars these claims presents a somewhat closer question.

These additional federal-law theories were not litigated in

federal takings claim. See Torromeo, 813 A.2d at 392. But the

New Hampshire Supreme Court has stated that where a plaintiff

raises state and federal takings claims in the same action, the

court need not consider the claims independently because the

Fifth Amendment's Takings Clause is no more protective than its

state analogue. See Sanderson v. Candia, 787 A.2d 167, 169

(N.H. 2001). Therefore, the court's decision that the Town did

not violate the takings provision of the state constitution means,

a fortiori, that, in its view, there was no unlawful taking under

federal law.

* Plaintiffs also assert that, even if the elements of res

judicata are satisfied, we should permit the Fifth Amendment

claim to proceed because New Hampshire law imbues courts

with discretion to decline to apply res judicata. We have not

found New Hampshire authority to this effect. The most that can

be said is that New Hampshire applies res judicata on a “case-by-

case basis." Cook v. Sullivan, 829 A.2d 1059, 1063 (N.H. 2003).

But even assuming that New Hampshire law affords courts some

discretion in applying res judicata, Plaintiffs have failed to

explain why their case is exceptional. See Sondel v. Northwest

Airlines, Inc., 56 F.3d 934, 941 (8th Cir. 1995) (doubting that res

judicata was a discretionary doctrine under Minnesota law, but

concluding that, even if discretion existed, res judicata barred a

claim where the plaintiff failed to show that applying the

doctrine worked an "injustice").

9a

the state-court action, and there is a plausible argument that

they are not res judicata because they could not have been

litigated in that action under Blue Jay Realty. See

Restatement of Judgments (Second), supra. On the other

hand because, as just explained, Plaintiffs ignored the Blue

Jay Realty rule by litigating their takings claim in the state-

court action, one could argue that the due process and equal

protection claims should have been raised along with the

takings claim. In any event, we need not decide how New

Hampshire's res judicata law would apply to this unique

situation because the due process and equal protection

claims fail as a matter of law. See Carroll v. Xerox Corp.,

294 F.3d 231, 241 (Ist Cir. 2002) (court of appeals may

affirm the dismissal of complaint on any ground supported

by the record).

We begin with the substantive due process claim.

We recently explained the limits on substantive due process

claims arising from land-use disputes:

This Court has repeatedly held that rejections

of development projects and refusals to issue

building permits do not ordinarily implicate

substantive due process. Even where state

officials have allegedly violated state law or

administrative procedures, such violations do

not ordinarily rise to the level of a

constitutional deprivation. The doctrine of

substantive due process does not protect

individuals from all governmental actions

that infringe liberty or injure property in

violation of some law. Rather, substantive

due process prevents governmental power

from being used for purposes of oppression,

or abuse of government power that shocks

10a

the conscience, or action that is legally

irrational in that it is not sufficiently keyed to

any legitimate state interest. Although we

have the left door slightly ajar for federal

relief in truly horrendous situations, the

threshold for establishing the requisite abuse

of government power is a high one indeed.

SFW_Arecibo Ltd. v. Rodriguez, 415 F.3d 135, 141 (lst

Cir. 2005) (internal citations omitted).

In Arecibo, real estate developers sued after a state

planning board incorrectly determined that their building

permit had expired. Id. at 137. When suit was filed, the

state court had already determined that the permit had been

wrongly revoked. Id. at 138. We affirmed the dismissal of

the substantive due process claim because the complaint

stated "[i]n its strongest form . . . that the [p]lanning board

made an erroneous decision in violation of state law,"

which is insufficient to establish a substantive due process

violation. Id. at 141. So too here. Plaintiffs allege that the

Town violated substantive due process by enacting the

growth control ordinance without following the procedures

mandated by New Hampshire law. But, as in Arecibo, the

claim is only that the Town's violation of state law caused

Plaintiffs harm. This is not enough. See id. at 141; see also

Licari v. Ferruzzi, 22 F.3d 344, 349 (Ist Cir. 1994)

(affirming dismissal of substantive due process claim based

on allegations that a town planning board improperly

revoked the developer's building permits and delayed

processing and approval of an application for an amended

permit); PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 32

(Ist Cir. 1991) (affirming dismissal of substantive due

process claim where developer alleged that government

agency failed to comply with agency regulations or

practices in the review and approval process of construction

plans).

The equal protection claim fares no better. Plaintiffs

contend that they stated a viable equal protection claim by

pleading that, in denying the permits, the Town treated

them differently from other "similarly situated property

owners.” But only in "extreme circumstances" will a land-

use dispute give rise to an equal protection claim. Arecibo,

415 F.3d at 142. It is insufficient for a plaintiff merely to

allege that the permitting entity violated state law in

denying a permit request. Id. "Absent facts reflecting more

fundamental discrimination, {a plaintiff] ha[s] not stated a

claim under the Equal] Protection Clause of the Fourteenth

Amendment." Id. Yet, that is all that is alleged here.

Affirmed.

12a

APPENDIX B

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

William K. Suter

Clerk of the Court

(202) 479-3011

June 28, 2006

Mr. Timothy Salo Hollister

Shipman & Goodwin LLP

One Constitution Plaza

Hartford, CT 06103-1919

Re: Henry Torromeo, et al.

v. Town of Fremont, New Hampshire

Application No. 05A1227

Dear Mr. Hollister:

The application for an extension of time within

which to file a petition for a writ of certiorari in the above-

mentioned case has been presented to Justice Souter, who

on June 28, 2006 extended the time to and including July

21, 2006.

This letter has been sent to those designated on the

attached notification list.

Sincerely,

William K. Suter, Clerk

by

/s/

Jeffrey Atkins

Case Analyst

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

William K. Suter

Clerk of the Court

(202) 479-3011

NOTIFICATION LIST

Mr. Timothy Salo Hollister

Shipman & Goodwin LLP

One Constitution Plaza

Hartford, CT 06103-1919

Clerk

United States Court of Appeals for the First Circuit

United States Courthouse

1 Courthouse Way

Boston, MA 02210

l4a

APPENDIX C

United States Court of Appeals

_ For the First Circuit

No. 04-2547

HENRY TORROMEO; MDR CORPORATION

Plaintiffs — Appellants

v.

TOWN OF FREMONT, NEW HAMPSHIRE

Defendant — Appellee

aoe Before

Boudin, Chief Judge,

Torruella and Selya, Circuit Judges,

Lynch, Lipez and Howard Circuit Judges,

ORDER OF COURT |

Entered: April 11, 2006

The panel of judges that rendered the decision in this

case having voted to deny the petition for rehearing and the

suggestion for rehearing en banc having been carefully

considered by the judges of the Court in regular active

service and a majority of said judges not having voted to

order that the appeals be heard or reheard by the Court en

banc,

It is ordered that the petition for rehearing and the

suggestion for rehearing en banc, be denied.

By the Court:

RICHARD CUSHING DONOVAN, Clerk

By:_/s/ Julie Gregg

Operations Manager

[cc: Duane Desiderio, Esq., Sumner Kalman, Esq., Thea

Vlvanis, Esq., Timothy Hollister, Esq., John Ryan, Esq.,

Eric Kane, Esq., Donald Gardner, Esq. Michael Berger,

Esq. }

lSa

APPENDIX D

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Henry Torromeo and

MDR Corporation,

Plaintiffs

Civil No. 03-481-

SM

Opinion No. 2004

DNH 148

Town of Fremont,

Defendant

ORDER

Plaintiffs, Henry Terrerseo and MDR Corporation,

bring this action against the Town of Fremont, seeking

damages for what they say was the Town's unlawful and

unconstitutional delay in issuing various building permits.

See generally 42 U.S.C. § 1983. According to plaintiffs, by

unlawfully delaying the issuance of building permits

requested by them, the Town temporarily effected a taking

of their property for public use, without paying them just

compensation. Additionally, plaintiffs claim the Town

deprived them of Due Process and Equal Protection, in

violation of the United States Constitution.

The Town moves to dismiss plaintiffs’ three-count

complaint, saying their claims are barred by the Rooker-

l6a

Feldman doctrine and res judicata. Plaintiffs object.

Standard of Review

When ruling on a motion to dismiss, the court must

“accept as true the well-pleaded factual allegations of the

complaint, draw all reasonable inferences therefrom in the

plaintiffs favor and determine whether the complaint, so

read, sets forth facts sufficient to justify recovery on any

cognizable theory." Martin v. Applied Cellular Tech., Inc.,

284 F.3d 1, 6 (1st Cir. 2002). Dismissal is appropriate only

if "it clearly appears, according to the facts alleged, that the

plaintiff cannot recover on any viable theory." Langadinos

v. American Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000).

See also Gorski v. N.H. Dep't of Corr., 290 F.3d 466, 472

(1st Cir. 2002). Notwithstanding this deferential standard of

review, however, the court need not accept as true a

plaintiffs "bald assertions" or conclusions of law. See

Resolution Trust Corp. v. Driscoll, 985 F.2d 44, 48 (1st Cir.

1993) ("Factual allegations in a complaint are assumed to

be true when a court is passing upon a motion to dismiss,

but this tolerance does not extend to legal conclusions or to

‘bald assertions.) (citations omitted). See also Chongr's v.

Board of Appeals, 811 F.2d 36, 37 (1st Cir. 1987).

Here, in support of its motion to dismiss, the Town

relies upon various state and federal court filings made by

plaintiffs in prior litigation, opinions issued by New

Hampshire state courts, and the United States Supreme

Court's denial of plaintiffs’ petition for writ of certiorari.

Typically, a court must decide a motion to dismiss

exclusively upon the allegations set forth in the complaint

(and any documents attached to that complaint) or convert

the motion into one for summary judgment. See Fed. R.

Civ. P. 12(b). There is, however, an exception to that

general rule:

17a

[Cjourts have made narrow exceptions for

documents the authenticity of which are not disputed

by the parties; for official public records; for

documents central to plaintiffs’ claim; or for

documents sufficiently referred to in the complaint.

Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (citations

omitted). See also Beddall v. State St. Bank & Trust Co.,

137 F.3d 12, 17 (1st Cir. 1998). Since plaintiffs do not

dispute the authenticity of the documents upon which the

Town relies, the court may properly consider those

documents without converting the Town's motion to

dismiss into one for summary judgment.

Background

Torromeo owns approximately 100 acres in the

Town of Fremont, and MDR owns approximately 50 acres.

Both parcels are zoned to permit residential construction. In

February of 1997, the Town approved Torromeo's

subdivision plan for "Mason's Corner," and that plan was

recorded with the county registry of deeds. Approximately

two and one-half years later, the Town approved MDR's

subdivision plan for "Glidden Hill Estates," and that plan,

too, was recorded in the county's land records.

In March of 1999, the Town adopted a growth

control ordinance (the "Ordinance") which authorized the

Fremont Planning Board to limit the number of building

permits issued annually for the construction of residential

units within the Town. Pursuant to that ordinance, the

Town implemented "Growth Control and _ Permit

Limitations,” which limited to 16 the number of building

permits that would be issued to property owners during the

one-year period between April 14, 1999, and April 13,

2000. Within that time frame, MDR applied for six permits

to construct single-family units at Glidden Hill Estates. The

18a

Town issued only five and informed MDR that it must wait

until April of 2000 before additional building permits

would issue for that development. Later, Torromeo sought

building permits for the five remaining lots at Mason's

Corner. That request was, however, denied since the Town

had already issued the maximum number of building

permits for that year under the Ordinance.

In August of 1999, MDR brought a petition for

declaratory judgment in Rockingham County Superior

Court, alleging that the Town's Ordinance was not enacted

in compliance with state law and was, therefore,

unenforceable. The state court agreed, and ruled that the

Ordinance was invalid dating back to its adoption. The New

Hampshire Supreme Court summarily affirmed the trial

court's decision. Accordingly, the Town stopped enforcing

the Ordinance against MDR and issued the requested

building permits.

Torromeo also filed a petition for declaratory

judgment in Rockingham Superior Court, claiming that

because the Town approved his subdivision plan prior to

adopting the Ordinance, it was exempt from the provisions

of the Ordinance. Again, the court agreed and ordered the

Town to issue the requested building permits. The Town

' Under New Hampshire law, municipalities are authorized to

"regulate and control" the timing of local development by, for

example, enacting growth control ordinances such as the one

adopted by Fremont. N.H. Rev. Stat. Ann. 674:22.

Importantly, however, "[a]ny ordinance imposing such a

control may be adopted only after preparation and adoption by

the planning board of a master plan and a capital improvement

program." Id. Fremont's ordinance was declared void ab initio

because the state court concluded that the Town failed to adopt

a valid capital improvement program.

19a

complied.

In March of 2000, plaintiffs joined forces and filed

an action in the Rockingham County Superior Court

seeking damages from the Town for inverse condemnation.

Pointing to the fact that the state court previously ruled the

Town's Ordinance invalid, plaintiffs claimed entitlement to

damages for the temporary “taking” of their property (1.e.,

the delayed issuance of the building permits). In support of

their view, plaintiffs invoked provisions of both the state

and federal constitutions. See Complaint at para. 21 ("On

March 21, 2000, Plaintiffs each filed actions in the

Rockingham County Superior Court to obtain just

compensation for a taking under the U.S. and New

Hampshire Constitutions." (emphasis supplied).

The state trial court agreed with plaintiffs, and

concluded that they were entitled to compensation for the

economic loss they suffered as a result of the Town's delay

in issuing the building permits. Accordingly, the court

ordered the Town to pay Torromeo damages in the amount

of $23,800, and MDR damages in the amount of $71,600.

os

The Town appealed those decisions to the New

Hampshire Supreme Court. In their joint brief, plaintiffs

cited both the state and federal constitutions in support of

their view that the lower state court had properly found that

they were entitled to compensation for the temporary

"taking" of their property. See, e.g. Exhibit D to

defendant's motion to dismiss, plaintiffs’ brief to the New

Hampshire Supreme Court, at 8 ("The Town, by imposing

the invalid Growth Ordinance, caused a ‘taking’ of

plaintiffs’ property violating their protected right to use and

enjoy their property as a fundamental right protected by

both our State and Federal Constitutions. . . The

Constitution prohibits takings without compensation."). See

20a

also id.-at 11 ("The right to use and enjoy one's property is

a fundamental right protected by both our State and Federal

Constitution. The Fifth Amendment of the United [States]

Constitution provides, ‘nor shall private property be taken

for public use without just compensation."’).

The New Hampshire Supreme Court concluded that

plaintiffs were not entitled to compensation and, therefore,

reversed the trial court's damages award. Torromeo_v.

Town of Fremont, 148 N.H. 640 (2002). Specifically, the

court held that while the Town's Ordinance had previously

been declared invalid, plaintiffs had not demonstrated that it

was unconstitutional. The court went on to discuss the

distinction between a _ local ordinance that is

unconstitutional and one that is merely unenforceable due

to a procedural defect in its enactment. It then noted that,

absent proof from plaintiffs that the Ordinance was

unconstitutional, rather than merely procedurally flawed,

"this case presents merely the type of municipal error for

which judicial reversal of the erroneous action is the only

remedy." Id. at 644. Accordingly, the court held that

"plaintiffs are not entitled to damages, and . . . their only

remedy is issuance of the erroneously-denied building

permits." Id.

Plaintiffs sought review by the United States

Supreme Court. Again, they relied upon the federal

constitution in support of their view that they were entitled

to compensation from the Town for the temporary taking of

their property. See, e.g., Exhibit F to defendant's motion,

plaintiffs’ petition for writ of certiorari at 2 ("Certiorari

should be granted to clarify that a municipality can violate

the Takings Clause when it enforces an illegal land-use law,

which a court declares was invalid from the start, and

refuses to provide the constitutional remedy of ‘just

compensation’ promised by the Fifth Amendment."). The

21a

Supreme Court denied plaintiffs’ petition for certiorari.

Torromeo v. Town of Fremont, 539 U.S. 923 (2003).

Having been denied relief by New Hampshire

Supreme Court (and the United States Supreme Court),

plaintiffs filed this federal suit against the Town. In their

three-count complaint, plaintiffs allege: (1) the "application

of the Town's Growth Control Ordinance . . . deprived

[them] of the economic use of their respective properties, in

violation of the Fifth and Fourteenth Amendments."

Complaint at para. 52; (2) the Town's denial of building

permits, "to which plaintiffs were entitled, constitutes a

denial of due process." Complaint at para. 37; and (3) they

were "treated disparately because they were not permitted

to receive building permits solely by virtue of the Town's

unreasonable application of the illegal Ordinance to their

respective projects." Complaint at para. 41. As noted above,

the Town moves to dismiss plaintiffs’ claims, invoking the

Rooker-Feldman doctrine and principles of res judicata.

Discussion

L. The Rooker-Feldman Doctrine.

The Rooker-Feldman doctrine precludes a federal

district court from reviewing a final judgment entered in a

state court, and from considering claims that are

inextricably intertwined with those raised in the state court

proceeding. See Rooker v. Fidelity Trust Co., 263 U.S. 413,

416 (1923); District_of Columbia Court of Appeals _v.

Feldman, 460 U.S. 462, 476 (1983). See also Wang v. New

Hampshire Bd. of Registration in Medicine, 55 F.3d 698,

703 (ist Cir. 1995). Federal claims are inextricably

intertwined with state court proceedings (even if precisely

the same claims were not raised previously in state

litigation) if the party had an opportunity to raise those

claims in the state court and if their resolution in federal

22a

court would effectively provide a form of federal appellate

review of the state court’s decision. See Pennzoil Co. v.

Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J.,

concurring).

Moreover, once a state court issues a final judgment,

a federal district court lacks jurisdiction to review that

decision even if the state judgment as patently wrong or

was entered following’ patently —_ unconstitutional

proceedings. See Feldman, 460 U.S. at 486. Thus, a litigant

may not seek to reverse a final state court judgment "simply

by casting his complaint in the form of a civil rights

action.” Ritter v. Ross, 992 F.2d 750, 754 (7th Car. [sic]

1993) (citation omitted).

Here, plaintiffs’ federal suit as little more than a

thinly disguised effort to reverse the New Hampshire

Supreme Court's decision rejecting their claimed

entitlement, under the Fifth Amendment, to damages for the

temporary “taking” of their real property. Consequently,

that constitutional claim is "foreclosed by a textbook

application of the Rooker-Feldman doctrine.”

' Picard v. Members of the Employee Ret. Board, 275 F.3d

139, 145 (1st Cir. 2001).

The same is true with regard to plaintiffs’ Fourteenth

Amendment claims (counts two and three), which are

"inextricably intertwined" with their Fifth Amendment

claim. As the court of appeals for this circuit has observed:

Where a party did not actually present its

federal claims in_ state court, Rooker-

Feldman forecloses lower federal court

jurisdiction over claims that are "inextricably

intertwined” with the claims adjudicated in a

state court. A federal claim is inextricably

intertwined with the state-court claims if the

23a

federal claim succeeds only to the extent that

the state court wrongly decided the issues

before it.

Sheehan _v. Marr, 207 F.3d 35, 39-40 (lst Cir. 2000)

(citations and internal punctuation omitted). In this case, to

rule in plaintiffs’ favor on their Fourteenth Amendment

claims would, in essence, require this court to reverse the

New Hampshire Supreme Court's holding that plaintiffs

failed to demonstrate that the Ordinance was

unconstitutional, that they "are not entitled to damages, and

that their only remedy is issuance of the erroneously-denied

building permits." Torromeo v. Town of Fremont, 148 N.H.

at 644. The Rooker-Feldman doctrine plainly provides that

this court lacks jurisdiction to issue such a ruling. See, e.g.,

Hill v. Town of Conway, 193 F.3d 33, 40 (Ist Cir. 1999)

("Appellants in the face of a Superior Court determination

that they ‘are not entitled to damages,’ have sought in their’

§ 1983 suit a ‘Judgment . . . awarding an amount of

damages that will fairly compensate . . . for the taking of

their real property.’ In short, . . . the relief for which the

plaintiffs prayed would, if granted, effectively void the state

court's judgment. As the district court properly determined,

Rooker-Feldman precludes such an adjudication.") (citation

and internal quotation marks omitted).

In support of their view that the Rooker-Feldman

doctrine does not preclude relitigation of their federal

constitutional claims in this forum, plaintiffs rely on Santini

v. Conn. Hazardous Waste Mgmt. Serv., 342 F.3d 118 (2d

Cir. 2003). That reliance is, however, misplaced. First,

unlike the plaintiff in Santini, these plaintiffs were not

precluded from litigating their federal constitutional claims

in state court. See id. at 129 ("Santini did not, and could

not, present his federal claim to the state court. . . . the

Connecticut state courts would not have adjudicated

24a

Santini's federal takings claim [even] if he had presented it

to them."). In fact; as they unequivocally assert in their

complaint, plaintiffs in this case actually advanced their

federal constitutional claims in state court. See Complaint

at para. 21.

Moreover, in Santini, the court of appeals held that a

plaintiff who must, pursuant to Williamson County Reg'l

Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985),

litigate his or her takings claims in state court, may

specifically notify the court that he or she is reserving any

federal constitutional claims for resolution by the federal

district court.

While we have not previously held that

parties may use the England [v. Louisiana

State Bd. of Med. Examiners, 375 U.S. 411

(1964)] reservation procedure in cases that

did not properly originate in federal court, we

deem it appropriate to permit parties like

Santini, who litigate state-law takings claims

in state court involuntarily, to reserve their

federal takings claims for determination by a

federal court.

* * *

[Pjarties may explicitly reserve their federal

takings claims, making clear _to the state

court and adverse parties that they intend to

bring a federal takings claim in federal court

once the litigation of the state-law claim has

been cornpleted.

Santini, 342 f Sd at 130 (emphasis supplied). Here,

however, plaintiffs never gave any indication to the state

courts (or opposing counsel) that they were expressly

25a

"reserving" their federal constitutional claims for resolution

in the federal forum. In fact, as noted above, plaintiffs

actually litigated those claims.’

If. Res Judicata.

Even if the plaintiffs' constitutional claims were not

precluded by virtue of the Rooker-Feldman doctrine, they

would be barred by the doctrine of res judicata.

The federal full faith and credit statute, 28 U.S.C. §

1738, commands federal courts to employ state rules of res

judicata when determining the preclusive effect, if any, to

be given to a prior state court determination. See Marrese v.

American Academy of Orthopaedic Surgeons, 470 U.S.

373, 380 (1985); Kremer v. Chemical Constr. Corp., 456

? It is, perhaps, worth noting that the Court of Appeals

for the First Circuit has expressly rejected the use of an England

reservation of federal claims in a condemnation/takings- case

quite similar to this one.

[Plaintiff] argues that the federal constitutional

issues were not raised in the state proceedings, but

rather were reserved under England v. Louisiana

State Board of Medical Examiners, 375 U.S. 411

(1964). The ru'e laid down in England is not

applicable to this case. Section 1983 does not

override state preclusion law by allowing

plaintiffs to first proceed to judgment in state

courts and then turn to federal courts for

adjudication of federal claims. Thus plaintiff's

argument re[garding]} England is meritless.

Griffin v. Rhode Island, 760 F.2d 359, 360 n.1 (Ist Cir. 1985)

(parallel citations omitted). That case was, however, decided

before the Supreme Court issued its opinion in Williamson.

26a

373, 380 (1985); Kremer v. Chemical Constr. Corp., 456

U.S. 461, 468 (1982). Accordingly, if the Rooker-Feldman

doctrine did not preclude this court from hearing plaintiffs’

constitutional claims, the principles of res judicata, as

developed by the New Hampshire Supreme Court, would

apply.

Under New Hampshire law, "[t]he doctrine of res

judicata precludes the litigation in a later case of matters

actually litigated, and matters that could have been

litigated, in an earlier action between the same parties for

the same cause of action." In re Alfred P., 126 N.H. 628,

629 (1985) (citations omitted). "In order for res judicata to

apply to a finding or ruling, there must be ‘a final judgment

by a court of competent jurisdiction [that] is conclusive

upon the parties in a subsequent litigation involving the

same cause of action." In re Donovan, 137 N.H. 78, 81

(1993) (quoting Marston v. U.S. Fidelity & Guar. Co., 135

N.H. 706, 710 (1992)).

In other words, for the doctrine of res judicata to

apply, "three elements must be met: (1) the parties must be

the same or in privity with one another; (2) the same cause

of action must be before the court in both instances; and (3)

a final judgment on the merits must have been rendered on

the first action.” Brzica v. Trustees of Dartmouth College,

147 N.H. 443, 454 (2002). The term "cause of action"

means the "right to recover, regardless of the theory of

recovery.” Eastern Marine Constr. Corp. v. First S. Leasing,

129 N.H. 270, 274 (1987) (citations omitted).

Here, each of those three essential elements is

present. As to the existence of the first and third elements,

there can be little doubt that the parties in the two

proceedings are identical and the state supreme court

resolved plaintiffs’ claims against them on the merits.

27a

Finally, the "causes of action" advanced (and the

underlying facts upon which those claims are based) in the

two proceedings are also identical. In both this proceeding

and the earlier state court proceeding, plaintiffs asserted

that the Town's delay in issuing the requested building

permits under an invalid local ordinance amounted to an

unconstitutional taking of their property and, therefore,

entitled them to compensation. While plaintiffs may not

have articulated their claimed entitlement to damages in

precisely the same way in this and the earlier state court

litigation, the "causes of action" are identical: claims for

compensation stemming from the allegedly unconstitutional

(albeit temporary) withholding of the requested building

permits.

Finally, even if one could reasonably conclude that

the causes of action advanced in the state court litigation

are not identical to the Fourteenth Amendment claims

advanced in this proceeding, it is beyond doubt that

plaintiffs could have advanced their Fourteenth

Amendment claims in the state court proceeding (and, as

noted above, it is equally clear that they did not reserve

those claims under England). Consequently, those claims

are barred by the doctrine of res judicata, which precludes

relitigation of all matters actually litigated and any matters

that could have been litigated in the same proceeding. See

Appeal of Univ. System of N.H. Bd. of Trustees, 147 N.H.

626, 629 (2002) (“Res judicata, or claim preclusion, bars

the relitigation of any issue that was or might have been

raised in respect to the subject matter of the prior litigation.

In determining whether two actions are the same cause of

action for the purpose of applying res judicata, we consider

whether the alleged causes of action arise out of the same

transaction or occurrence.”) (citations and _ internal

quotation marks omitted); Brzica, 147 N.H. at 455-56 (“Res

28a

judicata will bar a second action even though the plaintiff is

prepared in the second action to present evidence or

grounds or theories of the case not presented in the first

action.”); Radkay v. Confalone, 133 N.H. 294, 298 (1990)

(“Generally, once a party has exercised the right to recover

based upon a particular factual transaction, that party is

barred from seeking further recovery, even though the type

of remedy or theory of relief may be different.”).

Conclusion

For the foregoing reasons, as well as those set forth

in defendant’s memorandum and its reply memorandum,

defendant’s motion to dismiss (document no. 11) is granted.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

/s/

Steven J. McAuliffe

United States District Judge

October 12, 2004

cc: Duane J. Desiderio, Esq.

Sumner F. Kalman, Esq.

Michael A. Ricker, Esq.

John J. Ryan, Esq.

29a

APPENDIX E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Henry Torromeo and

MDR Corporation

Plaintiff(s)

J Civil No. 03-481-SM

Town of Fremont

Defendant(s)

- £2 4.4 2. 2 2 4 2. 2 2 82 @ 2

COMPLAINT FOR DEPRIVATION OF

CIVIL RIGHTS UNDER 42 U.S.C. § 1983

I. NATURE OF THE ACTION

:: This is an action to recover darnages under 42

U.S.C. § 1983 The Town of Fremont, New Hampshire,

through its “Town Meeting” (the local legislative body) and

Planning Beard (collectively, “the Town”), has acted under

color of state law and has made decisions resulting in the

illegal restriction of the use and development of Plaintiffs’

30a

respective parcels of land within the Town’s jurisdiction.

As a result of the Town’s actions, it has taken Plaintiffs’

property for public use without paying them just

compensation (in violation of the Fifth and Fourteenth

Amendments of the United States Constitution), and

deprived Plaintiffs’ Due Process and Equal Protection (in

violation of the Fourteenth Amendment of the United States

Constitution).

Ii. PARTIES

2. Plaintiff Henry Torromeo is a New

Hampshire resident and the owner of five (5) lots of a 27-

lot subdivision known as “Mason’s Corner.” Torromeo

previously owned and built homes on the subdivision’s

remaining 22 lots. The total acreage of the affected site for

Mason’s Corner comprises 97.4 acres.

3. Plaintiff MDR Corporation is a_ small,

family-owned business incorporated in the State of New

Hampshire, which is also its principal place of business.

MDR owns a 14-lot subdivision known as “Glidden Hill

Estates.” The total acreage of the affected site for Glidden

Hill Estates comprises 51 acres.

4. Defendant Town of Fremont (the “Town’) is

a municipal corporation of the State of New Hampshire.

Within its borders, the Town, through its Town Meeting

and Planning Board, is authorized to implement and

administer the Town’s planning and zoning laws, and to

review and approve development plans for the subdivision

of residential preperty. Moreover, the Town is permitted

by statute to regulate the growth of development through

the use of growth control ordinances, provided that such

ordinances are supported by validly enacted Capital

Improvement Programs (“CIP”). The Town applied a

growth control ordinance, which is the subject of this

Complaint, to Petitioners’ respective developrent projects.

3la

lif. JURISDICTION AND VENUE

5. This action arises under 42 U.S.C. § 1983, and

the Fifth and Fourteenth Amendments to the United States

Constitution. Accordingly, this Court has subject matter

jurisdiction pursuant to 28 U.S.C. § 1331 (federal question

jurisdiction) and § 1343 (original jurisdiction for Section 1983

actions). Plaintiffs have pursued, exhausted, ane been denied,

all available avenues for compensation provided by state law.

6. Venue is proper in this judicial district

pursuant to 28 U.S.C. § 1391(b).

iV. FACTUAL ALLEGATIONS

A. The Properties at Issue and Their Zoning

Classifications

7. Plaintiff Torromeo’s 97.4 acre property and

Plaintiff MDR Corporation’s 51 acre property are each

zoned to allow residential development.

8. Plaintiff Torromeo’s property for the

Mason’s Corner project was approved for subdivision by

the Fremont Planning Board on February 5, 1997. The

plan for Mason’s Corner was recorded with the county and

was eligible for building permits as of February 6, 1997.

9. Plaintiff MDR’s property for the Glidden Hill

Estates project was approved for subdivision by the

Fremont Planning Board on August 18, 1999. The plan for

Glidden Hill Estates was recorded with the county and was

eligible for building permits as of August 19, 1999.

10. The Fremont Planning Board fully reviewed

and approved both the Mason’s Corner and Glidden Hill

Estates projects to accommodate single-family homes.

B. Fremont’s Imposition of Growth Control

Ordinance on Plaintiffs’ Properties

32a

11. In March of 1999, the Town of Fremont

adopted a Growth Control Ordinance (the “Ordinance’”),

which gave the Fremont Planning Board authority to limit

the number of building permits allocated for the

construction of residential units in Fremont.

12. Acting on this authority, the Fremont

Planning Board, on April 14, 1999, implemented “Growth

Control and Permit Limitations,” which restricted the

number of building permits that would be issued to

property owners during the year April 14, 1999, through

April 13, 2000. Consequently, the Town of Fremont issued

a maximum of 26 building permits for residential

construction during the period April 14, 1999, through

April 13, 2000. Once a permit was issued under the

“Growth Control and Permit Limitations,” builders had 30

days to commence construction or the permit would

otherwise lapse.

13. | Subsequent to the Ordinance’s effective date,

Plaintiff MDR applied for six (6) building permits to

construct single-family homes at its site, Glidden Hill

Estates. The Town applied the Ordinance to the Glidden

Hill project, thereby issuing only five (5) permits and

informing MDR that it would have to wait at least a year,

until April, 2000, until additional permits for Glidden Hill

could issue. After the Town only issued the five (5)

permits for lots at Glidden Hill Estates, MDR nonetheless

applied for permits on the remaining nine (9) lots to fully

build-out the 14-lot subdivision. The Town denied these

permits in reliance on the Ordinance.

14. ‘Plaintiff Torromeo’s_ project, Mason’s

Corer, was recorded and eligible for building permits

more than two years hefore the Town adopted the

Ordinance. The recordation of Mason’s Corner prior to the

Ordinance qualified the project as a vested subdivision

under state law, and was therefore exempt from all

33a

subsequent zoning changes for a period of four years. See

New Hampshire Revised Statutes Annotated (RSA) 674:39.

15. In September 1999, Plaintiff Torromeo

applied for building permits on the five (5) remaining lots

for Mason’s Corner. Although those lots were vested under

New Hampshire law, the Town nonetheless applied the

Ordinance to Torromeo’s application and refused to issue

the requested building permits because the Town had

already issued the maximum number of permits allowed

under the Ordinance for that year.

16. _—_In addition to complying with all subdivision

requirements, Plaintiffs Torromeo and MDR Corporation

had built and paved necessary roadways, in compliance

with prior Town and state approvals. Costs associated with

the road building for Mason’s Corner totaled approximately

$225,000 for Torromeo. For Glidden Hill Estates, road

building costs for MDR Corporation totaled approximately

$775,000.

a Growth Control Ordinance Declared Invalid 4b

Initio by New Hampshire Courts

17. After having had their respective building

permit applications denied, Plaintiffs each filed lawsuits

against the Town for injunctive relief to compel permit

issuance. The New Hampshire Superior Court granted the |

requested injunction in a decision dated December 27,

1999. Exhibit 1. The court ruled that the permits should

have been issued because the Ordinance was invalid, ab

initio, for failure to meet requirements established by the

New Hampshire legislature. After an appeal by the Town,

the New Hampshire Supreme Court, on June 26, 2000,

summarily affirmed the Superior Court’s decision that the

Ordinance was invalid, ab initio. Exhibit 2.

18. The New Hampshire courts found the

Ordinance illegal after determining that the Town never

34a

enacted a valid Capital Improvements Plan (“CIP”) in

support of the Ordinance, a statutory prerequisite in New

Hampshire for any growth control ordinance enacted by a

municipality. See RSA 674:22. Additionally, the Town

was required by -statute to publish a “warrant article,” or

notice, informing the general public that the Planning

Board would be preparing a CIP. See RSA 39:2. The Town

never published such a warrant providing notice of the

preparation of a CIP.

19. Without a valid CIP, the New Hampshire

courts ruled that the Ordinance, the basis for which the

Town denied Plaintiffs’ their respective building permits,

was “invalid, ab initio” and never should have been

enforced.

20. Accordingly, the Town issued the nine

remaining building permits to Plaintiff MDR for the

Glidden Hill Estates project on June 26, 2000. The Town

issued five building permits for Plaintiff Torromeo’s vested

lots for the Mason’s Corner project in February, 2000.

D. Plaintiffs File Takings Lawsuits in State Court

for Just Compensation

21. On March 21, 2000, Plaintiffs each filed

actions in the Rockingham County Superior Court to obtain

just compensation for a taking under the U.S. and New

Hampshire Constitutions. Although Plaintiffs were

ultimately issued building permits, their takings claims

were filed to obtain just compensation for the period during

which the Town applied the illegal Ordinance to their

respective properties.

22. At the commencemert of the takings phase

of the lawsuits, Plaintiffs MDR and Torromeo filed motions

for summary judgment on the issue of liability. The New

Hampshire Superior Court initially denied the motions on

October 3, 2000. Exhibit 3. The Superior Court adopted

35a

the Town’s position that the Ordinance was “merely”

defective procedurally for failure to adopt a CIP, and that

unless the law itself was determined to be

“unconstitutional,” a taking would not arise.

23. Plaintiffs then filed a “Request for Ruling of

Law,” a procedure allowed under New Hampshire Superior

Court Rule 141, allowing parties to request

“interlocutory...order relative to proceedings preparatory

for a hearing on the merits.” In their Request for Ruling,

the Plaintiffs asserted that the Town’s refusal to issue

building permits in reliance on the invalid, ab initio Ordinance

was in and of itself an unconstitutional taking. On January 17,

2001, the Superior Court reversed itself, ruling that an award

of damages was appropriate and that Plaintiffs need not prove

that the Ordinance was “unconstitutional” to recover monetary

relief. Exhibit 4.

24. The Town of Fremont then filed a motion for

reconsideration in which it argued that the Superior Court’s

January 17, 2001, order was inconsistent with its previous

ruling that denied liability on summary judgment. In an

order dated March 19, 2001, the Superior Court formally

joined the Torromeo and MDR takings actions and ruled

that Plaintiffs were “entitled as a matter of law to recover

damages for economic loss due to the Town’s attempted

enforcement of its invalid Growth Control Ordinance.”

Exhibit 5, p. 1. The Superior Court further held that

“economic losses were compensable whether or not a

*taking’ ha[d] occurred under existing case law.” /d. pp. 3-

4.

25. A trial on damages came next. On

September 26, 2001, the Superior Court ruled that Plaintiff

Torromeo was entitled to $23,800, which equaled the

carrying costs and fair market value of his five unbuildable

vested lots from August 26, 1999, through February 2000.

Exhibit 6, p. 9. August 26, 1999 was the date that building

36a

permits were no longer available under the invalid

Ordinance. February 2000 was the date that building

permits were again issued for Mason’s Corner.

26. In the same September 26, 2001, opinion, the

Superior Court also ordered compensation for Plaintiff MDR

in the amount of $71,600, for the nine lots at MDR’s Glidden

Hill Estates subdivision. Exhibit 6, p. 9. These damages were

calculated from the period August 26, 1999 through June

2000, the dates that building permits were blocked, then

released, to MDR.

27. The Town appealed the Superior Court’s

decision. On December 13, 2002, the New Hampshire

Supreme Court reversed, ruling that the Town was not liable

to either of the Plaintiffs for damages. The New Hampshire

Supreme Court’s decision is reported at 813 A.2d 389 (N.H.

2002). The New Hampshire Supreme Court found as

erroneous the Superior Court’s failure to distinguish between

an ordinance that is unconstitutional and one that is merely

unenforceable due to a procedural defect in its enactment.

Moreover, the New Hampshire Supreme Court ruled that just

compensation is due only when a court “determin{es] that the

ordinance is unconstitutional and constitutes a taking...” and

that just compensation is not due for “an erroneous

planning board decision based upon an otherwise valid

regulation.” 813 A.2d at 392. Finally, the Supreme Court

held that judicial reversal of the erroneous action was the

only available remedy. /d. at 392.

CLAIMS FOR RELIEF

Count |: Taking in Violation of the Fifth and

Fourteenth Amendments

28. ‘Plaintiffs incorporate by reference each and

every allegation set forth in 4] | through 27 above.

37a

29. The Fifth Amendment of the United States

Constitution prohibits the government from taking private

property for public use without the payment of just

compensation. Through the Fourteenth Amendment, the

requirements of the Fifth Amendment, including the

Takings and Just Compensation Clauses, apply to the State

of New Hampshire.

30. 42. U.S.C. § 1983 states that any person

acting under color of state law who deprives any other

person of rights secured by the United States Constitution

shall be liable to the party seeking redress.

31. The application of the Town of Fremont’s

Growth Control Ordinance, which was never legal, to

Plaintiffs’ properties, failed to substantially advance any

legitimate governmental interest, in violation of the Fifth

and Fourteenth Amendments.

32. The application of the Town’s Growth

Control Ordinance, which was never legal, deprived

Plaintiffs of the economic use of their respective properties,

in violation of the Fifth and Fourteenth Amendments.

33. Accordingly, the Town must pay just

compensation to the Plaintiffs for the respective takings of

their properties.

Count 2: Deprivation of Due Process

34. ‘Plaintiffs incorporate by reference each and

every allegation set forth in J] 1 through 33 above.

35. The Fourteenth Amendment of the United

States Constitution provides that no State shall deprive any

person of their property without due process of law. The

guarantee of due process demands that property owners

have the right to be free from arbitrary, capricious, and

unreasonable land use decisions of government regulators.

36. Asa matter of law, Plaintiff Torromeo had a

cognizable property interest subject to due process

38a

protections because his recorded lots for the Mason’s

Corner subdivision were vested under New Hampshire

statute, RSA 674:39. With regard to Plaintiff MDR

Corporation, the only reason the remaining lots at Glidden

Hill Estates were not vested was because the illegal Growth

Control Ordinance was enacted after the lots’ recordation.

37. The Town never should have applied the

“invalid, ab initio” Ordinance to preclude issuance of the

building permits to Plaintiffs’ respective parcels. The denial

of permits, to which Plaintiffs were entitled, constitutes a

denial of due process. Application of the Ordinance, which

was invalid from its inception and was not rationally related to

a legitimate governmental interest, was an arbitrary and

capricious action of the Town that denied Plaintiffs’ due

process.

Count 3: Denial of Equal Protection

38. Plaintiffs incorporate by reference each and

every allegation set forth in {J 1 through 37 above.

39. The Fourteenth Amendment of the United

States Constitution provides that no State shall deny any

person within its jurisdiction the equal protection of the

laws.

40. Plaintiff MDR Corporation received different

treatment from other similarly situated property owners. It

was treated disparately because it was unable to vest its lots

for Glidden Hill Estates only because they were recorded after

the Town enacted the illegal Ordinance.

41. Both Plaintiffs Torromeo and MDR

Corporation received different treatment compared to other

similarly situated property owners. They were treated

disparately because they were not permitted to receive

building permits solely by virtue of the Town’s

unreasonable application of the illegal Ordinance to their

respective projects.

39a

42. Accordingly, Plaintiffs were denied equal

protection under the laws.

PRAYER FOR RELIEF

Wherefore, Plaintiff Torromeo and Plaintiff MDR

Corporation request that this Court: .

(1) Find the Town liable for unconstitutionally taking

Plaintiffs’ respective properties without paying them just

compensation;

(2) Order the Town to pay just compensation to

Plaintiffs, with interest, from the date of each respective

taking;

(3) Find the Town liable for depriving Plaintiffs due

process and denying Plaintiffs equal protection;

(4) Order the Town to pay damages to plaintiffs under

42 U.S.C. § 1983;

(5) Order the Town of Fremont to pay Plaintiffs’

attorneys’ fees and costs;

(6) Order the Town of Fremont to award Plaintiffs other

and further relief as this Court deems just and proper.

Date: November 5, 2003

Respectfully submitted,

Sumner F. Kalman #1303

Thea S. Valvanis #12214

147 Main Street, Box 988

Plaistow, NH 03865

(603) 382-4003

* * *

40a

APPENDIX F

No. 02-1507

In the

Supreme Court of the United

States

HENRY TORROMEO AND MDR CORPORATION,

Petitioners,

¥.

TOWN OF FREMONT,

Respondent.

RESPONDENT?’S BRIEF IN OPPOSITION

JOHN J. RYAN, Esq.

Counsel of Record

CASASSA AND RYAN

459 LAFAYETTE ROAD

HAMPTON, NH 03842

(603) 926-6336

Counsel for Respondent

4la

il

TABLE OF CONTENTS

PAGE

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COUNTER STATEMENT OF THE CASE.......................0000. . 1

REASONS FOR DENYING THE WRIT ...00000... eee eeeeeeee 3

I. Decision Below Does Not Present a Conflict............. 3

Il. No “Taking” OCCUTTED ....-esseecseeeesnecesteesteseneennnee iia: 6

lil. The Decision Below Was Correct..................ccsscreeee0- 7

I a eo sla iseniceia Govapiiinestirtedeuntirein 7

42a

oe eae

Furthermore, the Petitioner’s reliance on Nollan

(Pet. at 13), is misplaced. Nollan involved a permit

condition that required the landowner to dedicate land to

the public, and it holds only that such compelled

dedications warrant careful scrutiny because they present a

heightened risk that the government might be sidestepping

its constitutional obligation to acquire land upon the

payment of just compensation. Nollan provides no support

for Petitioners’ argument that a permit denial under a

procedurally defective land use ordinance engenders an

automatic takings clause.

Finally, the Petitioner’s reliance on Penn Central

Transp. Co. v. City of New York, U.S. 104 (1978), is

misplaced. The Petitioners fail to cite the Penn Central case

or its holding in its New Hampshire Supreme Court

proceedings; therefore any argument based on that case has

been waived and is not properly before this Court. In

addition the Petitioners fail to cite a single case from the

U.S. Supreme Court or any other Court in which the kind of

procedural defect found in this case was given any

significant weight in takings analysis under Penn Central’s

“character of government action” prong or test.

* * *

43a

APPENDIX G

THE SUPREME COURT OF NEW HAMPSHIRE

Rockingham

No. 2001-612

HENRY TORROMEO

V.

TOWN OF FREMONT

MDR CORPORATION

v.

TOWN OF FREMONT

Argued: July 11, 2002

Opinion Issued: December 13, 2002

Sumner F. Kalman, Attorney at Law, P.C., of Plaistow

(Sumner F. Kalman on the bref and orally), for the plaintiffs.

Casassa and Ryan, of Hampton (John J. Ryan on the

brief and orally), for the defendant.

Susan Slack, of Concord, by brief, for the New

Hampshire Municipal Association, as amicus curiae.

NADEAU, J. The defendant, the Town of Fremont

(town), appeals orders of the Superior Court (McHugh and

Abramson, JJ.), holding the town liable to the plaintiffs,

Henry Torromeo and MDR Corporation (MDR), for damages

caused by the town's denial of building permits pursuant to an

invalid growth control ordinance. We _ reverse.

44a

The trial court found, or the record discloses, the

following facts. Torromeo is the developer of Mason's Corner,

a twenty-seven lot residential subdivision in Fremont. The

subdivision plan was approved by the town ,:anning board

and recorded in the Rockingham County Registry of Deeds in

February 1997. In August 1999, when five lots in the

subdivision remained unsold, the town stopped issuing

building permits pursuant to its growth control ordinance.

Torromeo and a prospective purchaser sued the town,

seeking to require it to issue a building permit to the buyer.

The Trial Court (Galway, J.) determined that the

subdivision was exempt from the growth control ordinance

under RSA 674:39, which provides, in part, that an

approved and properly-recorded plat or site plan is exempt

from subsequent zoning ordinance changes, except those

expressly protecting public health standards, for four years

from the date of recording. See RSA 674:39 (1996). The

court enjoined the town from refusing to issue the requested

permit.

MDR is the developer of Glidden Hill Estates, a

fourteen lot subdivision in Fremont. MDR was issued five

building permits, but was informed by the town that under

the growth control ordinance, no more permits would be

issued until April 2000. MDR sued the town, challenging

the growth control ordinance. MDR argued that the

ordinance was invalid because the town never legally

adopted a capital improvement program (CIP), which is a

prerequisite to the adoption of a growth control ordinance,

see RSA 674:22 (1996). The Trial Court (Murphy, J.)

agreed, ruling, among other things, that because the subject

of the motion made at the 1987 town meeting regarding a

CIP was not stated in the warrant, the motion was invalid.

The court therefore ruled that a valid CIP was never

45a

adopted and that the growth control ordinance was invalid

ab initio. We summarily affirmed that decision on June 26,

2000. See MDR Corporation v. Town of Fremont, No.

2000-100 (N.H. June 26, 2000).

Following the dispositions of their respective cases

in superior court, the plaintiffs filed separate actions against

the town for damages caused by the temporary taking of

their property from the time building permits were denied

under the growth control ordinance until they were finally

issued. Each plaintiff filed a motion for summary judgment

on the issue of liability, arguing, among other things, that

the town's liability was established by the prior decision in

the MDR case that the growth control ordinance was

invalid ab initio. The town objected, arguing that the

plaintiffs had to show that the ordinance was

unconstitutional, not merely invalid or unenforceable. The

Trial Court (McHugh, J.) denied the motions.

MDR then filed a request for a ruling of law that the

decision declaring the ordinance invalid ab initio also

rendered it "unconstitutional per se," making it unnecessary

to further prove that the ordinance was arbitrary or

unreasonable. The trial court ruled:

As this Court understands the dispute, the

determination of whether or not the Growth

Control Ordinance is or _ is_ not

unconstitutional is not a prerequisite to the

plaintiff claiming monetary damages, but

those damages would be limited to economic

losses due to its inability to build homes for

the period of time that the Town refused to

grant building permits.

46a

The court ruled that MDR would have to prove

unconstitutionality, however, in order to recover attorney's

fees.

The town fiied a motion for reconsideration, which the

court addressed in an order dated March 19, 2001. In that

order, the court joined the MDR and Torromeo cases by

consent of the parties. It then sought to clarify its prior rulings

on the takings issue, noting in hindsight that it should have

granted the plaintiffs’ motions for summary judgment on the

issue of liability. It concluded:

Call it what you will, this Court finds and

rules that the plaintiff [sic] in both of these

cases are entitled as a matter of law to

recover damages for economic loss due to the

Town's attempted enforcement of its invalid

Growth Control Ordinance. In this Court's

view those economic losses are compensable

whether or not a "taking" occurred under

existing case law.

A trial was held on the issue of damages and the

Trial Court (Abramson, J.) awarded the plaintiffs the

carrying costs and fair rental value on their unsold lots

during the time the growth control ordinance prevented

them from obtaining building permits. The town now

appeals, contending that the trial court erred in ruling: (1)

that the plaintiffs did not have to prove the

unconstitutionality of the growth control ordinance in order

to recover for a taking; and (2) that the plaintiffs could

recover damages for loss of economic use of their property

based solely upon the finding in the previous MDR case

that the ordinance was invalid due to a procedural error.

47a

"We will uphold the decision of the trial court unless

it is unsupported by the evidence or is legally erroneous."

Smith v. Town of Wolfeboro, 136 N.H. 337, 342 (1992).

The town argues that the trial court erred in failing to

distinguish between an ordinance that is unconstitutional

and one that is merely unenforceable due to a procedural

defect in its enactment. We agree.

The ruling in the first MDR case, which the

plaintiffs claim establishes liability for damages, did not

find the growth control ordinance unconstitutional, but

rather void due to a procedural defect. The trial court stated

as much in its order on MDR's request for ruling of law:

"Declaring that the Ordinance cannot be applied to the

plaintiff because it was not procedurally enacted correctly

does not mean the Ordinance is __ substantively

unconstitutional." In ruling that the plaintiffs could

nevertheless recover damages, however, the trial court

erred.

We have held that “arbitrary or unreasonable

[zoning ordinance] restrictions which substantially deprive

the owner of the economically viable use of his land in

order to benefit the public in some way constitute a taking,

within the meaning of our New Hampshire Constitution

requiring the payment of just compensation." Burrows v.

City of Keene, 121 N.H. 590, 598 (1981) (quotation

omitted). We have, however, rejected claims for damages in

zoning ordinance challenges in which it was determined

that no taking or inverse condemnation occurred, see Soares

v. Town of Atkinson, 129 N.H. 313, 317 (1987), or where

the constitutionality of the regulation was not challenged,

see Smith, 136 N.H. at 345. We have also distinguished an

erroneous planning board decision based upon an otherwise

valid regulation from "the application of an invalid

regulation," and held that the former does not constitute a

48a

compensable taking even though it may subject the

property owner to a loss of value. Id. at 346; see also

Dumont v. Town of Wolfeboro, 137 N.H. 1, 10 (1993).

Rather, the owner's only remedy is reversal of the erroneous

decision on appeal. See Smith, 136 N.H. at 346; Dumont

137 N.H. at 10.

The plaintiffs argue that because the growth control

ordinance was found to be invalid ab initio, this is a case of

"the application of an invalid regulation" as discussed in

Smith. We disagree. The context in which that term is used

in Smith indicates that by "invalid regulation,” we meant an

unconstitutional one:

An erroneous planning board decision based

on sound authority must be distinguished

from the application oi an invalid regulation.

An appeal of a mistaken board decision is an

element of the governmental decision making

process under RSA 677:15 (amended 1991).

A declaration that an ordinance is

unconstitutional is an extraordinary measure,

designed to rectify a conclusory act of rule

making that stripped a property owner of his

or her rights.

Smith, 136 N.H. at 346.

Absent a determination that the ordinance is

unconstitutional and constitutes a taking, this case presents

merely the type of municipal error for which judicial

reversal of the erroneous action is the only remedy.

"Judicial, quasi-judicial, legislative or quasi-legislative acts

of a town ordinarily do not subject it to claims for

damages." Marino v. Goss, 120 N.H. 511, 514 (1980).

Accordingly, we hold that the plaintiffs are not entitled to

49a

damages, and that their only remedy is issuance of the

erroneously-denied building permits.

Reversed.

BROCK, C.J., and DALIANIS and DUGGAN, Jj.,

concurred.

App. 50a

APPENDIX H

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

OCTOBER SESSION

NO.

MDR CORPORATION

&

HENRY TORROMEO

VS.

TOWN OF FREMONT

NOTICE OF APPEAL

CASASSA & RYAN

459 Lafayette Road

Hampton, New Hampshire

By:

John J. Ryan, Esquire

App. Sla

kkk

CASE TITLE (Full Name) APPEAL FROM:

MDR Corporation v.

Town of Fremont Date of:

and (a) Clerk’s Notice: 9/26/01

(b) Sentencing (criminal):

ene Senay. Tews (c) Probate Court filing:

of Fremont Trial Judge; Master; Other:

Kenneth R. McHugh and

Gillian L. Abramson

Which side is the moving Court Reporter or Machine

party: Operator: Catherine Handel

Docket No. below:

nace 00-C-0256 and 00-C-0257

Trial counsel below:

For Plaintiff: Sumner

Kalman, Esq.

For Defendant: John J.

Ryan, Esq.

* * *

BRIEF DESCRIPTION OF NATURE OF CASE AND

RESULT:

These cases arose out of an earlier case, MDR

Corporation v. Town of Fremont, 99-E0444, decided 12/17/99,

Appendix at pp. 16-19 (appeal declined by Order of this Court

dated June 26, 2000, Appendix at pg. 52)

In that case the Lower Court held that at its annual Town

Meeting in 1987, the vote taken at that meeting did not properly

authorize the Planning Board of Fremont to prepare a Capital

Improvement Program, under RSA 674:5. The Court then held

that the statutory requirement under RSA 674:22 requiring a

Capital Improvement program as a basis for a growth control

ordinance had not been met despite the actual existence of

App. 52a —

Capital improvement programs since 1987, and invalidated the

Town's 1999 Growth Control Ordinance.

On March 21, 2000, the Plaintiffs in these cases brought

actions for damages claiming inverse condemnation temporary

loss of the use of the property during the period of April 1999 to

the above date of June 26, 2000. See Appendix at pp. 1-9 and 86-

97.

On August 24th and 25th, 2000 the Plaintiffs filed

Motions for Summary Judgment on the issue of liability (Appendix

at pp. 10-21 and 98-116) seeking an order that by reason of the

decision in the first MDR case the Defendant was liable for inverse

condemnation damages as a matter of law.

The Defendant responded with appropriate objections.

Appendix at pp. 22-60 and 117-157.

On 10/3/2000 the Lower Court denied both Motions

for Summary Judgment. Appendix at pg. 61 and 158.

In January 2001, the Plaintiff MDR filed a "Request for

Ruling of Law", et al again seeking a determination that the

Court rule that by reason of the 12/27/99 Order the 1999 Growth

Contro] Ordinance was unconstitutional per se, Appendix at pp.

62-72. The Defendant objected to that Motion, Appendix at pp.

73-75. On January 21, 2001 the Lower Court issued its Order on

Plaintiffs’ Request for Ruling of Law. Appendix at pp. 76-78. In

that Order the Lower Court held that the Plaintiff was not

required to prove that the Ordinance was unconstitutional and

that the 12/27/99 Order declaring the Ordinance procedurally

defective was sufficient for Plaintiff to proceed to a

determination of damages. The Defendant seasonably filed its

Motion for Reconsideration. Appendix at pp. 79-82.

On March 21, 2001, the Lower Court issued its "Order".

Appendix at pp. 159-165. In that Order the Lower Court

consolidated the two cases, clarified its previous Order of

January 17, 2001 and allowed the Plaintiffs to proceed to a

App. 53a

hearing on damages, while also preserving the Defendants nght

to contest the Court's findings regarding liability.

On June 27, 2001, the "damage" portion of the case was_

heard. On September 26, 2001, the Lower Court issued its

decision awarding the Plaintiff MDR, the sum of $71,600 and

- awarding the Plaintiff Torromeo the sum of $23,800. Appendix

at pp. 165-177. The Lower Court again noted the Defendant's

ability to appeal the issue of liability.

The Defendant has filed its Motion for Reconsideration

of Finding with regard to one factual issue. Appendix at pp. 178-

180. A ruling was issued on 10/15/01. Appendix at pp. 182-183.

The Defendant hereby appeals the findings and rulings of

the Lower Court regarding the issue of whether the Defendant

can be liable for inverse condemnation temporary taking

damages for loss of the use of property where there was no

finding that the 1999 Growth Control Ordinance was

unconstitutional.

STATUTE, ORDINANCE, REGULATION, RULE, OR

OTHER LEGAL AUTHORITY UPON WHICH THE

CLAIM OF CIVIL OR CRIMINAL LIABILITY WAS

BASED: -

Decision of Rockingham County Superior Court dated

12/27/00 MDR Corporation v. Town of Fremont, 99-E-0444.

Appendix at pp. 16-19.

(Deemed by Lower court in instant cases as the "law

of the case"). See Appendix at pg. 177.

SPECIFIC QUESTIONS TO BE RAISED ON APPEAL,

EXPRESSED IN TERMS AND CIRCUMSTANCES OF

THE CASE, BUT WITHOUT UNNECESSARY DETAIL.

SEE RULE 7(2). STATE EACH QUESTION "IN A

SEPARATELY NUMBERED PARAGRAPH. SEE RULE

16(3)(b).

App. 54a

The Lower Court found that the defect in the 1999

Growth Control Ordinance enactment process was rooted in a

1987 procedural error. The Lower Court also found that the Town

was not guilty of bad faith, and that the Plaintiffs were not

entitled to attorneys fees. The Lower Court did not find that the

1999 Growth Control Ordinance itself was unreasonable, arbitrary

or irrational and did not find that the Ordinance bore no

substantial relationship to the health, safety, morals or welfare of

the Town, or that the Ordinance was unconstitutional.

In light of the above, the issues raised in this Appeal are

as follows:

1. Was the Lower Court in error in its ruling that the

Plaintiff were not required to prove that the 1999

Growth Control Ordinance was unconstitutional in order

to recover inverse condemnation "taking" damages for

temporary loss of economic use of property.

Was the Lower Court in error in ruling that the Plaintiffs

were entitled to claim temporary loss of economic use of

property damages solely on the basis of the Court's

holdings in the first MDR case that the Ordinance

was invalid by reason of a procedural defect.

WITH REFERENCE TO EACH SPECIFIC QUESTION

RAISED ON APPEAL, IDENTIFYING THE QUESTION

BY ITS NUMBER, SPECIFY:

a

(A) The proper standard of review to be applied

by the court to the question, citing relevant authority;

(B) The parts of the proceeding you would

designate the court reporter to transcribe, or whether an

adequate written substitute could be provided in place of

a transcript; and

App. 55a

(C) The case(s) most relied upon to support the

moving party's position:

Question #1.

A. Whether the Lower Court's rulings are erroneous

as a matter of law. Unit Owners Association of Sumit Vista Lot 8

Condominium v. Miller, 141 NH 39 (1996)

Legal conclusions are reviewed independently for plain

error Olbres v. Hampton Cooperative Bank, 142 NH 227 (1997).

B. Adequate written substitute could be provided in

place of a transcript.

C. Burroughs [sic] v. Keene, 121 NH 590 (1981).

Plaintiffs must prove unconstitutional abuse of power as a pre-

requisite to a claim for "taking" damages, such as alleged by the

Plaintiffs, and awarded under Lower Court Order of 9/26/01.

Appendix at pp. 165-177.

Busky v. Town of Hanover, 133 NH 318 (1990). Under

New Hampshire constitutional law, Ordinances will not be

declared unconstitutional unless Plaintiff proves that the

Ordinance provisions themselves are arbitrary and unreasonable

and have no relation to the health, safety, morals or general

welfare of the community.

Opinion of the Justices, 117 NH 749 (1977). Laws

affecting economic interests which are directed to fulfilling the

public interest or general welfare are constitutional unless wholly

irrational.

Question #2

a

A. Whether the Lower Court's rulings are erroneous as

a matter of law. Unit Owners Association of Sumit Vista Lot 8

Condominium v. Miller, 141 NH 39 (1996).

App. 56a

Legal conclusions are reviewed independently for plain

error Olbres v. Hampton Cooperative Bank, 142 NH 227 (1997).

B. Adequate written substitute could be provided in

place of a transcript.

C. Dugas v. Conway, 125 NH 175 (1984).

Ordinances must be found to violate Part I Article 12 of the New

Hampshire Constitution in order to constitute a taking such as

alleged by the Plaintiffs, and awarded under Lower Court Order

of 9/26/01. Appendix at pp. 165-177. Mere procedural error is

not sufficient to establish unconstitutional taking. Finding of

unconstitutionality required in takings cases.

k*ek

A DIRECT AND CONCISE STATEMENT OF THE

REASONS WHY A SUBSTANTIAL BASIS EXISTS FOR A

DIFFERENCE OF OPINION ON THE QUESTIONS AND

WHY THE ACCEPTANCE OF THE APPEAL WOULD

PROTECT A PARTY FROM SUBSTANTIAL AND

IRREPARABLE INJURY, OR PRESENT THE

OPPORTUNITY TO DECIDE, MODIFY, OR CLARIFY

AN ISSUE OF GENERAL IMPORTANCE IN THE

ADMINISTRATION OF JUSTICE:

The New Hampshire Supreme Court has never held that

inverse condemnation damages can be recovered in land use

cases absent a finding that the Ordinance or Regulation in

question is unconstitutional. The Lower Court's rulings that a

finding of unconstitutionality is not a prerequisite to takings

cases is contrary to established New Hampshire precedent.

The Town of Fremont has been subjected to a Court

Order requiring it to pay $95,400 in takings damages solely on

the basis of a 1987 procedural defect in its capital improvement

enactment Warrant Article vote.

App. 57a

Acceptance of this Appeal will protect the Town from

the substantial and irreparable injury of liability to the Plaintiffs

for the above amount.

This Appeal is of great importance to all municipalities

in New Hampshire. Unless this Appeal is accepted, all towns and

cities in the State will be subject to a claim for inverse

condemnation damages where any procedural irregularity exists

in the enactment of any land use ordinance or regulation.

* * *

CERTIFICATIONS

1. I hereby certify that every issue specifically raised has

been presented to the court below and has been properly

preserved for appellate review by a contemporaneous objection

or, where appropriate, by a properly filed pleading.

/s/

Counsel

pS I hereby certify that copies of this notice of appeal have

been served on all parties to the case and have been filed with

the clerk of the court from which the appeal is taken in

accordance with Rule 26(2).

/s/

Moving Party or Counsel

58a

APPENDIX I

THE STATE OF NEW HAMPSHIRE

ROCKINGHAM, SS. SUPERIOR COURT

Henry Torromeo

Vv

Town of Fremont

00-C-0256

MDR Corporation

V.

Town of Fremont

00-C-0257

ORDER

In these consolidated cases, plaintiffs seek monetary

damages for lost development and real estate profit suffered

after the Town of Fremont imposed and maintained an

invalid interim growth control ordinance in March 1999.

In December 7000, the Court (Murphy, J.) ruled that

the Town's original growth control ordinance was invalid

ab_initio for failing to comply with ihe statutory

requirements of RSA 674:22. See MDR “orp. v. Town of

Fremont, Rockingham Co. Super. Ct. “Yo. 99-E-644.

Notwithstanding this Court order, the Towa continued to

implement its ordinance and refused to issue building

permits to both plaintiffs in these cases, which would have

allowed them to build residential homes on pre-approved

59a

subdivision lots for prospective buyers. These lawsuits

followed.

On March 19, 2001, the Court (McHugh, J.) granted

plaintiffs’ Motions for Summary Judgment on Liability,

finding that plaintiffs were entitled to recover damages for

their economic loss as a matter of law because defendants

continued to impose their invalid ordinance preventing

development. The Court ruled that the economic losses

were compensable whether or not a "taking" occurred under

existing case law and scheduled an evidentiary hearing on

the issue of plaintiffs’ economic damages. From the

testimony and exhibits presented at the evidentiary hearing,

the Court finds and rules as follows:

Plaintiffs are developers of two_ residential

subdivisions in the Town of Fremont. Henry Torromeo and

his company, Torromeo’ Industries (collectively

"Torromeo"), developed the Mason's Corner Subdivision,

which consists of 27 lots for single family homes. The

Fremont Planning Board approved this subdivision for

development. Torromeo then filed the approved plan in the

Rockingham County Registry of Deeds in February 1997.

Torromeo bought this subdivision and acquired its

development rights in August 1998.

In January 1999, Torromeo bonded the subdivision

project with the Town and began selling lots to builders.

The builders then found buyers for the lots, obtained

building permits, and began building on each lot in January

1999. By March 1999, when the Town imposed the

permanent growth control ordinance, Torromeo had sold 11

out of 27 subdivision lots, to three different builders.

However, the Town revoked previously issued building

permits on at least two of these lots for the builders’ failure

60a

to complete substantial construction. This revocation of

permits and new substantial construction policy for

retention of building permits, caused builders to be wary of

purchasing lots in the subdivision. The asserted reasoning

for this decline was that builders would not buy lots that

they could not develop according to their own timelines, or,

develop at all. Sales continued to gradually decline, and by

August 1999 five lots remained unsold. By August 26,

1999, the Town refused to issue further building permits,

because its growth control ordinance prohibited their

issuance and its maximum capacity for permits had been

reached. With no permits available, Torromeo was unable

to sell any of the five remaining lots until February 2000,

when building permits again were issued.

Torromeo now seeks damages consisting of the fair

rental value of his lots from March 1999, when the invalid

ordinance took effect, through February 2000, when his

remaining lots sold. He additionally seeks carrying costs for

each of the five lots, which consist of property taxes, fees to

extend letters of credit, insurance costs, accounting costs,

and opportunity costs.

Torromeo's project manager and cousin, Vincent

Iacozzi, also seeks damages in this action. He asserts that

Torromeo promised to sell him Lot #9 in the subdivision, at

an extremely discounted rate, and that this lot would be

available in May 1999. In reliance, Mr. Iacozzi applied for

a building permit for Lot #9 and placed his own home on

the market, expecting that the building permit would be

issued. Subsequently Mr. Iacozzi's home sold, but the Town

denied his building permit. This caused Mr. Iacozzi to incur

alleged damages for storing his possessions and renting a

home from December 1999 until August 2000, when his

home in Mason's Corner was finally completed.

6la

The evidence shows that Mr. lacozzi did not take

title to Lot #9 until June 2001, and that he knew of the

problems with the growth control ordinance throughout his

tenure as project manager for Torromeo Industries.

Moreover, the evidence shows that Mr. Jacozzi did not

purchase the lot for fair market value, and, he has never

intervened as a party in this case. Finally, Mr. lacozzi has

not alleged any actions by the Town that prevented him

from purchasing a lot for fair market value and obtaining a

building permit elsewhere. Accordingly, the Court rules

that Mr. Iacozzi's alleged damages are too speculative and

too tenuously connected to this case to be determined by

the Court.

MDR Corporation, in contrast, was developing a

subdivision in Fremont designated as Glidden Hill Estates.

The subdivision plan for Glidden Hill Estates consisted of

14 lots for single family homes. The Fremont Planning

Board approved this subdivision plan in May 1999. MDR

subsequently recorded the plan in the Rockingham County

Registry of Deeds in August 1999. After planning board

approval but prior to recordation, MDR obtained bonding

of the project with the Town, built and paved roads within

the subdivision, and began marketing the lots for sale to

builders. MDR then applied for, and was granted, five

building permits. However, the Town then informed MDR

that no further permits would be issued until April 2000 due

to the growth control ordinance.

The growth control ordinance ultimately prevented

MDR from selling the remaining nine lots in its subdivision

for almost one year. Again, the bar to selling the lots was

that builders would not buy land on which they could not

build. MDR subsequently brought suit in this Court to

enjoin the Town from enforcing this ordinance and to

62a

declare the ordinance unconstitutional. This suit led to the

above-referenced ruling, that the ordinance was invalid ab

initio, for failure to comply with statutory requirements for

its imposition. MDR_ Corp. _v. Town of Fremont,

Rockingham Co. Super. Ct. No. 99-E-644 (Murphy, J.)

(decided December 2000). MDR_ ultimatelv received

building permits and sold its nine remaining lots by

sometime in June 2000. MDR now seeks the fair rental

value of its nine lots from August 1999 through June 2000,

as well as the same carrying costs itemized by Torromeo

above.

The Court finds and rules that both Torromeo and

MDER are entitled to recover damages beginning on August

26, 1999, the date that building permits were no longer

available under the invalid growth control ordinance.

Contrary to plaintiffs’ position, the Court finds that the

existence of an invalid growth control ordinance itself does

not cause damage. Damage occurs only when the growth

control ordinance actually prohibits plaintiffs from

receiving building permits. Here, the undisputed testimony

shows the damage began on August 26, 1999. Because the

building permits were no longer available as of this date,

the properties were unmarketable to builders and plaintiffs

then suffered damage. See Prudhomme v. Flanagan, [sic]

138 N.H. 561, 575 (1994) (finding that damage occurs only

when plaintiff can take no further action to improve its own

position). Accordingly, the Court rules that Torromeo is

entitled to the carrying costs and fair rental value for his

five lots from August, 26, 1999 through February 2000 (six

months) and MDR is entitled to the same damages for its

nine lots from August 26, 1999 through June 2000 (ten

months).

63a

MDR and Torromeo retained Joseph G. Fremeau,

MAI, and Fremeau Appraisal, Inc., to provide the Court

with an expert assessment of their damages. Mr. Fremeau-

presented the Court with an expert appraisal of plaintiffs’

properties, calculating a fair rental value for each lot

involved and itemizing all relevant carrying costs. The

Town, in turn, retained John M. Crafts, MAI, and Crafts

Appraisal Associates, Ltd., to provide the Court with an

alternative analysis of plaintiffs’ damages.

Mr. Crafts reviewed tthe Fremeau report and used

substantially the same methodology as Mr. Fremeau in

arriving at his own appraisal. The only differences in the

two appraisal reports are the appropriate market rental rate

of return for single family homes and the appropriate time

period for which rental value should be calculated. The

Court finds that Mr. Crafts agrees with Mr. Fremeau, by not

presenting contrary data, on both the market values for the

MDR properties and the carrying costs of each plaintiffs’

properties. The Court previously ruled above on _ the

appropriate time period for damages sustained by each

plaintiff, finding that the rental period would begin for-each

plaintiff on August 26, 1999. Accordingly, the only

remaining issue in dispute is the appropriate rental value of

the properties. ‘

Both experts agreed that the proper method of

valuation for the undeveloped subdivision lots was the

income capitalization approach based upon the lots’ fair

market rental value. See In re City of Nashua, 138 N.H.

261, 265 (1998). They arrived at this determination due to

the temporary nature of plaintiffs’ damages. The experts

further agreed that single family building lots are not

typically rented on the open market. Thus, comparable

rentals were unavailable for comparison in their damage

analysis. Accordingly, the experts agreed that the

64a

appropriate market rental value must be calculated by

applying the appropriate rate of return to the actual fair

market value of the property. k

The parties agree that the fair market value of

MDR's nine Glidden Hills Estates subdivision lots was

$660,000. Accordingly, the Court will not disturb this

valuation. However, Mr. Fremeau found the value of

Torromeo's five Mason's Corner subdivision lots to be

$250,000, while Mr. Crafts found their value to be

$230,000. Mr. Crafts’ estimation of fair market value is

derived from the actual sales prices of the five Mason's

Corner lots in February 2000. In contrast, Mr. Fremeau's

estimation of their fair market value came from comparable

sales of similar lots at $50,000 per lot. The Court finds that

Mr. Crafts’ appraisal is based upon actual market data and

that Mr. Fremeau's opinion that one lot sold at less than fair

market value is not supported by raw data. Because the

expert appraisal values are close in number, the Court

presumes that the sale price of the fifth lot is a reasonable

estimation of its fair market value, and it is documented

with raw data. Accordingly, the Court adopts Mr. Crafts’

$230,000 fair market value estimate for the Mason's Corner

lots.

However, the Court adopts Mr. Fremeau's 12%

market rate of return, to be applied to these values _in

determining appropriate market rent. Mr. Fremeau clearly

and credibly explained his calculation of this percentage,

which was substantiated upon real data in the commercial

market. Mr. Fremeau looked to the-average rate of return

for retail and restaurant sites in the surrounding area, and

found that the average rate of return for commercial

property hovered somewhere around 10%. Specifically, he

compared fast food establishments to gas stations in the

surrounding area. Mr. Fremeau then looked to the rate of

65a

return on low-risk CD's and Treasury Bills, and learned that

this rate hovered around 7%. He further determined that

home and commercial mortgage rates in the Fremont area

hovered around 9.5%; higher risk stocks received a rate of

return greater than 12%; and the Standard and Poor's (S&P)

Index had increased more than 12% between mid 1999 and

mid 2000. Based upon these averages, and the booming

New Hampshire real estate market, Mr. Fremeau

determined that a residential lot would receive a slightly

higher rate of return, due to its slightly higher market risk

on the rental market than would commercial property.

Thus, he added two percent to the average commercial rate

of return, which also was consistent with the 12% increase

in the S&P annual index.

In contrast, Mr. Crafts found that a 7.5% rate of

return was more appropriate for the subdivision lots at

issue. Mr. Crafts looked to the Town of Fremont bond

rating, the commercial lending rate for the Town of

Fremont, and additional tax exempt issues within the Town.

Mr. Crafts then multiplied these numbers by a 30% tax

factor and arrived at an after-tax rate of approximately 5%.

Recognizing that the undeveloped lots under an approved

subdivision plan would require some sort of management

and upkeep, Mr. Crafts then added 2.5% to the 5% rate to

arrive at his final rate of return.

The Court finds Mr. Fremeau's analysis of rates of

return to be much more clear, credible, concise, and

substantiated upon, real data in the commercial real estate

market. Further, Mr. Fremeau's analysis comports with a

reasonable person's estimation in a real estate transaction

during a booming real estate market. The Court finds that

Mr. Crafts’ analysis is not premised upon any form of

66a

comparable rates of returns and is far too speculative to be

adopted. Accordingly, the Court adopts Mr. Fremeau's

application of 12% as the appropriate rate of return to apply

to the fair market values of the fourteen lots.

Applying this rate of return to the fair market value,

the experts testified that the resulting number must be

divided by twelve to arrive at a monthly rental rate. Then,

this monthiy rate is multiplied by the number of months

that each plaintiff is entitled to receive a fair rental value.

Under this analysis and the rulings enumerated above, the

following charts summarize the expert appraisals and the

Court's award consistent with the above findings and

rulings: Bs

; MDR PROPS. [TORROMEO IMDR - TORROMEO |

zi Rental Value (PRPS Costs Costs

f Rental Value

FREMEAU [$660,000*.12 $250,000*.12 [$5,600 $10,000 a

APPRAISALE$79,200/12mo-$30,000/12mo

$6,600*10mo =$2,500*6mo

$66,000 FRV $15,000 FRV -

“CRAFTS _{$660,000*.075 $230,000*.075 $5,600 $10,000 |

APPRAISAL £$49,500/12mo|=$17,250/12mo

=$4,125*10mo /$1,438*6mo

$41,250 FRV § $8,628 FRV

COURT —_ {$660,000*.12 $230,000*.12 $5,600 10,000

ORDER =$79,200/12mo=$27,600/12mo/UNDIS- |UNDIS.

=$6,600*10mo -$2,300*6mo PUTED PUTED

=$66,000 FRV =$13,800 FRV

67a

For the reasons stated, and based upon the above

calculations, the Town is ORDERED to pay Mr. Torromeo

$23,800.00 as the appropriate fair rer*al value and carrying

costs for his five unbuildable lots. The Town is further

ORDERED to pay MDR Corporation $71,600.00 as its

appropriate fair rental value and carrying costs for its nine

unbuildable lots. These damages are appropriate based

upon the Town's continued imposition of its invalid growth

ordinance, which prevented plaintiffs from selling or

developing their remaining lots.

Each party has submitted requests for findings of

fact and rulings of law. In light of the narrative discussion

above, the Court rules upon plaintiff's requests for findings

of fact and rulings of law on the Mason's Corner

Subdivision as follows:

GRANTED: 1-14; 19-22;

DENIED: 15-18; 24-25 (see decision);

NEITHER GRANTED NOR DENIED: 23 (see

decision).

The Court rules upon plaintiff's requests for findings

of fact and rulings of law on the Glidden Hill Subdivision

as follows:

GRANTED: 1-13; 17-20;

DENIED: 14-16;

NEITHER GRANTED NOR DENIED: 21-22 (see

decision). ‘

The Court rules on the Town's requests for findings

of fact and rulings of law as follows:

GRANTED: 3-7; 10; 12-13; 21; 26-27; 30;

DENIED: 1-2 (see Order March 19, 2001 (McHugh,

J.)); 8; 9 (see decision); 17-20; 28-29; 31-34;

68a

NEITHER GRANTED NOR DENIED: 14-16 (see

decision); 22-25 (see decision and Order (Murphy, J.) in

99-E-644).

The Court rules on the Town's requests for relief as

follows:

GRANTED: B;

DENIED: C-G;

NEITHER GRANTED NOR DENIED: A. (The

Court will not reverse the prior ruling of law relating to

liability in this case. Judge McHugh revisited this issue

three times and thoroughly explained his ruling. This ruling

is the law governing this case which the Town may appeal

at the conclusion of this litigation) (See Order (McHugh, J.)

(dated March 19, 2001)). ;

So ORDERED.

DATE: September 26, 2001

/s/ Gillian Abramson

GILLIAN L. ABRAMSON

Presiding Justice

69a

APPENDIX J

THE STATE OF NEW HAMPSHIRE

ROCKINGHAM, SS. SUPERIOR COURT

00-C-257

MDR Corporation

V.

Town of Fremont

00-C-256

Henry Torromeo

Vv.

Town of Fremont

ORDER

The purpose of the within Order is to clarify the

issues in these related cases. Although these two cases have

never been formally joined, the Court now does so by

consent of the parties. Counsel now agree that because the

issues raised in these two lawsuits are identical and because

the lawyers are the same as well as the witnesses, these

cases should be tried together.

Both of these lawsuits were brought as a direct result

of a ruling made in case number 99-E-444, MDR

Corporation v. Town of Fremont. In that case the Court

(Murphy J.) found and ruled that the defendant's Growth

Control Ordinance enacted in March of 1987 was invalid ab

initio for failing to comply with the statutory requirements

of RSA 674:22. Thus because of a procedural defect in the

70a

enactment of the Ordinance, it had no_ validity.

Notwithstanding that fact, the Town implemented the

Ordinance and refused both plaintiffs in these cases

building permits to enable them to construct residential

homes for their perspective buyers.

Both plaintiffs have brought lawsuits seeking

monetary compensation for the lost profits that they have

suffered as a result of the defendant’s implementation of its

invalid Growth Control Ordinance. Shortly after the

lawsuits. were brought, both plaintiffs filed Motions for

Summary Judgment on the issue of liability. They argued

that because Judge Murphy's determination that the Growth

Control Ordinance was invalid, said determination having

been affirmed on appeal to our Supreme Court, there were

no disputed issues regarding liability. In the defendant's

objection to both Motions for Summary Judgment, it took

the position that merely because the Growth Control

- Ordinance was defective procedurally did not mean that it

was substantively unconstitutional. The defendant argued

that unless a finding was made that the ordinance was

substantively unconstitutional then the plaintiffs were not

entitled to any monetary damages.

By order dated October 3, 2000, this Court denied

both plaintiffs’ Motions for Summary Judgment on

liability. It accepted the defendant’s argument that the

question of whether or not the ordinance was substantively

unconstitutional was still an open question because Judge

Murphy’s Order did not address it.

Upon receipt of this Court's Order denying the

Motion for Summary Judgment, the plaintiff in 00-C-257

filed a Request for Ruling of Law. In that pleading -the

plaintiff suggested that the fundamental question to be

Tla

addressed is not whether the ordinance was substantively

unconstitutional, but rather whether the defendants refusal

to issue building permits based upon the procedurally

invalid Growth Control Ordinance constituted a "taking" of

the plaintiff's property as that term is defined under case

law. The plaintiff suggested that under case law such a

taking did occur for which it was entitled to monetary

damages.

By Order dated January 17, 2001, this Court in part

agreed with the plaintiffs position. It ruled that "the

determination of whether or not the Growth Control

Ordinance is or is not unconstitutional is not a prerequisite

to the plaintiff claiming monetary damages but those

damages would be limited to economic losses due to its

inability to build homes in the period of time that the Town

refused to grant building permits". However the Court in

effect imposed a higher standard on the plaintiff if it sought

to recover other damages in addition to economic loss such

as attorney fees.

Upon receipt of the Court's January 17, 2001 Order,

the defendant filed a Motion for Reconsideration. In the

motion the defendant argued that the substance of the

Court's October 5, 2000 denial of the plaintiff's Motion for

Summary Judgment on liability and its Order of January 17,

2001, could not be reconciled. While the Court does not

agree with the defendant's interpretation of its two prior

Orders, it does agree that some clarification is necessary.

The parties have a dispute as to whether or not a

legal "taking" has occurred with respect to the defendant's

implementation of it [sic] what has been determined to be

its invalid Growth Control Ordinance back in 1987. The

plaintiff argues that under case law a "taking" did occur; the

72a

defendant argues that under the same case law no "taking"

resulted.

In the Court's mind, the issue transcends what

constitutes a legal "taking". The defendant concedes that for

a period of time it refused to allow either of these plaintiffs

to obtain building permits based upon what has later been

found to be an invalid implementation of its Growth

Control Ordinance. Call it what you will, this Court finds

and rules that the plaintiff in both of these cases are entitled

as a matter of law to recover damages for economic loss

due to the Town's attempted enforcement of its invalid

Growth Control Ordinance. In this Court's view those

economic losses are compensable whether or not a "taking"

occurred under existing case law. It is unconscionable for a

municipality to take the position that no damages should be

paid when its ordinance restricting building has been

determined to be invalid and when the implementation of

that Ordinance resulted in provable monetary losses to the

plaintiffs.

In retrospect the Court determines that the plaintiffs’

Motions for Summary Judgment on liability should have

been granted when they were initially filed. Under the

within ruling the plaintiffs shall be permitted to place

evidence before the Court on their respective claims for

economic loss without addressing at all the issue of

liability. The plaintiffs do not allege that the defendant is

guilty of bad faith in the implementation of its Growth

Control Ordinance, however bad faith does not have to be

proven if the damages sought are limited to economic loss.

Because of the potential for confusion as a result of

this Court's past Orders it determines that the defendant's

objection to its findings of liability as a matter of law is

73a

timely made and shall be ripe for appeal at the conclusion

of the damage phase of this litigation.

Both of these cases have been scheduled for a bench

trial with 00-C-257 scheduled on March 28, 2001 and 00-

C-256 scheduled on May 1, 2001. Both of those scheduled

trials are continued because counsel agree that the cases can

be heard together. This Court stands ready to try these cases

in either May or June. The Court will be presiding in

Belknap County for the month of July and August thus

counsel are requested to review their respective calendars

for the month of May and June and select a date certain for

the one-day trial of these cases and notify the Court within

the next ten days.

So ORDERED.

DATE: March 19, 2001

/s/ Kenneth McHugh

Kenneth R. McHugh

Presiding Justice

74a

APPENDIX K

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2000-100, MDR_ Corporation v. Town of

Fremont, the court upon June 26, ‘2000, made the following

order:

The court having reviewed the notice of appeal and

appendix, the decision below is summarily affirmed in

accordance with Rule 25(1)(b) on the basis that the trial

court has issued an opinion identifying and discussing the

issues presented, and the court does not disagree with the

opinion. Plaintiff's motion for summary affirmance or, in

the alternative, for dismissal or declination is, therefore,

moot.

Brock, C.J., and Horton and Broderick, JJ., did not

participate; Groff, Mangones, and Mohl, JJ., superior court

justices, participated by special assignment under RSA

490:3.

Distribution:

Clerk, Rockingham County Superior Court 99-E-0444

Sumner Kalman, Esquire

John J. Ryan, Esquire

Honorable Walter L. Murphy

Donna K. Nadeau, Supreme Court

File

Howard J. Zibel,

Clerk

75a

APPENDIX L

The State of New Hampshire

SUPERIOR COURT

ROCKINGHAM COUNTY (X) COURT

( )JURY

WRIT OF SUMMONS

MDR Corporation

163 Kingston Road

Danville, New Hampshire 03819

V.

_ Town of Fremont

PO Box 120, 295 Main Street

Fremont, New Hampshire 03044

76a

ATTACHMENT

In a plea of law, whereas, Plaintiff, MDR

Corporation ("Plaintiff!) is the owner of Lots 03-191.01,

03-191.02, 03-191.05, 03-191.06, 03-191.07, 03-191.08,

03-191.09, 03-191.11 and 03-191.12 located in Fremont,

New Hampshire;

That Defendant, Town of Fremont (“Defendant”)

as of August 1999 denied building permits to Plaintiff for

each of the said lots based on Growth Control Limitations

enacted by the Planning Board on April 14, 1999;

That on December 27, 1999 the Rockingham

County Superior Court (Murphy, J) decided in the case of

MDR Corporation v. Town of Fremont, Docket No. 99-E-

0444 that “the Growth Control Ordinance, therefore is

invalid ab initio for failing to comply with the statutory

requirements of RSA 674:22”;

That on February 23, 2000, the Fremont Planning

Board enacted restrictions for the issuance of building

permits to replace the restrictions enacted on April 14,

1999, pursuant to the “invalid” growth control ordinance

(see exhibit “A”, attached and incorporated by reference

herein);

That according to those restrictions, the Town will

not issue Plaintiff any permits until June 15, 2000, at the

earliest;

That if the total number of permits issued as of June

15, 2000 exceeds 26, Plaintiff will not be entitled to any

building permits for the year beginning March 15, 2000

and ending March 15, 2001;

That by applying the Growth Control Ordinance and

refusing to issue building permits, the Town has and

77a

continues to effectuate a temporary “taking” of Plaintiff's

property from the point in time when the building permits

were denied to the point in time when the permits are

ultimately issued;

Takings, whether permanent or temporary, entitle

Plaintiff to compensation. Burrows v. City of Keene, 121

NH 590(1981);

The Fifth Amendment of the United State

Constitution provides “nor shall private property be taken

for public use without just compensation.” Similarly, Pt.

1, Art. 12 of the New Hampshire Constitution states “All

men have certain natural, essential and inherent rights -

among which are...acquiring, possessing, and protecting

property...But no part of a man's property shall be taken

from him, or applied to public uses, without his own

- consent...”;

“Under the Just Compensation Clause, where the

government has “taken” property by a land-use regulation,

the landowner may recover damages for the time before it

is finally determined that the regulation constitutes a

“taking” of his property.” First Lutheran Church v. Los

Angeles County, 482 U.S. 304 (1987);

‘“..A landowner is entitled to bring an action in

inverse condemnation as a result of the self-executing

character of the constitutional provisions with respect to

compensation...” First Lutheran Church v. Los Angeles

County, 482 U.S. 304 (1987);

“The doctrine of inverse condemnation is predicated

on the proposition that a taking may occur without such

formal proceedings. “Temporary” regulatory takings

which, as here, deny a landowner all use of his property,

are not different in kind from the permanent takings for

which the Constitution clearly requires compensation...”

78a

First Lutheran Church v. Los Angeles County, 482 U.S.

304 (1987);

“Where the government's activities have already

worked a taking of all use of property, no subsequent

action by the government can relieve it of the duty to

provide compensation for the period during which the

taking was effective. Invalidation of the ordinance without

payment of fair value for the use of the property during

such period would be a constitutionally insufficient

remedy.” First Lutheran Church v. Los Angeles County,

482 U.S. 304 (1987); _

“A strong public desire to improve the public

condition is not enough to warrant achieving the desire by

a shorter cut than the constitutional way of paying for the

change.” First Lutheran Church v. Los Angeles County,

482 U.S. 304 (1987); :

That the Town has filed a Notice of Appeal with

the Supreme Court. As of the date of this writ, the appeal

has not been accepted or declined. As a result, the Town

continues to enjoy the enforcement of an illegal Growth

Control Ordinance.

Plaintiff continues to suffer substantial monetary

damages as a result of the Town's refusal to issue building

permits under these circumstances.

All to the damage of Plaintiff in an amount to be

determined as soon as ali of Plaintiff's building permits

have been issued and the outcome of the appeal determined

and within the jurisdictional limits of this Court.

79a

APPENDIX M

The State of New Hampshire

SUPERIOR COURT

ROCKINGHAM COUNTY (X ) COURT.

( )JURY

WRIT OF SUMMONS

Henry Torromeo

92 Pond Street

Methuen, Massachusetts 01844

V.

Town of Fremont

PO Box 120, 295 Main Street

Fremont, NH 03044

80a

ATTACHMENT

In a plea of law, whereas, Plaintiff, Torromeo

Industries, Inc. (“Plaintiff”) is the owner of Lots 12, 12-

01, 12-08, 12-09 and 12-20 in the Mason's Corner

Subdivision in Fremont, approved by the Fremont Planning

Board, recorded at the Rockingham County Registry of

Deeds on February 6, 1997 and “vested” pursuant to RSA

674:39;

That Defendant, Town of Fremont (“Defendant”)

denied building permits to Plaintiff for those lots based

on Growth Control Limitations enacted on April 14,

1999; ; ie

That the Town established an interim growth control

ordinance/building permit limitation at Town Meeting in

March of 1998. The Fremont Board of Selectmen stated by

letter that Mason's Corner is exempt from said ordinance.

Growth control and permit limitations were later enacted

on April 14, 1999 which place restrictions on “vested” lots;

That “vested lots” pursuant to RSA 674:39 “are

exempt from all subsequent changes in_...zoning

ordinances adopted by any .:.town...for a period of four

years...” (emphasis added);

In August, 1999 Plaintiff was denied building

permits for his five lots based on the Growth Control

Limitations enacted on April 14, 1999;

That on December 27, 1999 the Rockingham

County Superior Court (Murphy, J) decided in the case of

MDR Corporation v. Town of Fremont, Docket no. 99-E-

0444 that “The Growth Control Ordinance, therefore is

invalid ab initio for failing to comply with the statutory

requirements of RSA 674:22. This case is on appeal to the

Sla

New Hampshire Supreme Court, but is not dispositive to

this cause of action; ,

That on February 2, 2000 the Rockingham County

Superior Court (Galway, J) decided in the case of

Torromeo Industries, Inc., et al v. Town of Fremont, Docket

No. 99-E-0536 that “RSA 674:22 applies to growth

management generally, but not to those subdivisions

protected by the four year exemption period of RSA

674:39...”. No appeal has been taken flow this decision;

That by applying the Growth Control

Ordinance and refusing to issue any building permits,

the Town effectuated a temporary “taking” of Plaintiff's

property from the point in time when the building permits

were denied to the point in time when the permits were

ultimately issued. Permits for lots 12, 12-01, 12-08

and 12-20, though dated November 13, 1999, were not

issued until February 10, 2000; the permit for lot 12-09,

though dated September 29, 1999, was not issued until

February 5, 2000. (Permits marked exhibit. “A,” attached

and incorporated by reference herein);

Takings, whether permanent or temporary, entitle

Plaintiff to compensation. Burrows v. City of Keene, 121

NH 590(1981);

The Fifth Amendment of the United State

Constitution provides “nor shall private property be taken

for public use without just compensation.” Similarly, Pt.

_ 1, Art. 12 of the New Hampshire Constitution states “All

men have certain natural, essential and inherent rights -

among which are...acquiring, possessing, and protecting

property...But no part of a man's property shall be taken

from him, or applied to public uses, without his own

consent...”;

“Under the Just Compensation Clause, where the

82a

government has “taken” property by a land-use regulation,

the landowner may recover damages for the time before it

is finally determined that the regulation constitutes a

“taking” of his property.” First Lutheran Church v. Los

Angeles County, 482 U.S. 304 (1987);

“..A landowner is entitled to bring an action in

inverse condemnation as a result of the self-executing

character of the constitutional provisions with respect to

compensation...” First Lutheran Church v. Los

Angeles County, 482 U.S. 304 (1987);

“The doctrine of inverse condemnation is predicated

on the proposition that a taking may occur without such

formal proceedings. “Temporary” regulatory takings

which, as here, deny a landowner all use of his property,

are not different in kind from the permanent takings for

which the Constitution clearly requires compensation...”

First Lutheran Church v. Los Angeles County, 482 U.S.

304 (1987);

“Where the government's activities have already

worked a taking of all use of property, no subsequent

action by the government can relieve it of the duty to

provide compensation for the period during which the

taking was effective. Invalidation of the ordinance without

payment of fair value for the use of the property during

such period would be a constitutionally insufficient

remedy.” First Lutheran Church v. Los Angeles County,

482 U.S. 304 (1987);

“A strong public desire to improve the public

condition is not enough to warrant achieving the desire by a

shorter cut than the constitutional way of paying for the

change.” First Lutheran Church v. Los Angeles County,

482 U.S. 304 (1987);

Mason's Comer consists of approximately twenty-

83a

seven (27) lots. Substantial development has occurred

(twenty two building permits have been issued), and this

subdivision can not be affected by Growth Control

Ordinances enacted after its approval; i.e. February 6, 1997;

The Town, by applying the illegal Growth Control

Ordinance, effectuated a “taking” of all Plaintiff's use of

its property;

Plaintiff suffered substantial monetary damages as

a result of the Town's refusal to issue building permits

under these circumstances.

All to the damage of Plaintiff in an amount to

be determined within the jurisdictional limits of this

Court.

84a

APPENDIX N

STATE OF NEW HAMPSHIRE

ROCKINGHAM, SS. SUPERIOR COURT

Torromeo Industries, Inc.& Vincent lacozzi

¥-

_. Town of Fremont

99-E-536

ORDER

Before the Court is the Plaintiffs’ Petition for

Declaratory Judgment Pursuant to RSA 491:22; Bill in

Equity; Petition for Permanent Injunction; and Writ of

Mandamus. This case arises out of the Town of Fremont's

("the Town") decision to deny plaintiff Vincent Iacozzi's

request for a building permit. The Court conducted a final

hearing on January 27, 2000.

For purposes of this Order, the Court finds the

following facts. Plaintiff Torromeo Industries, Inc.

("Torromeo") owns a parcel of land located in Fremont,

New Hampshire known as Mason's Corner. The land is

subject to a subdivision plan that was approved by the

Town Planning Board and registered with the Rockingham

County Registry of Deeds on February 6, 1997. In March

1998, the Town enacted a one-year-long Interim Growth

Management Ordinance that restricted the number of

building permits to be awarded during that period. Since the

enactment of the Interim Ordinance, the Town has awarded

85a

building permits for twenty-two (22) of the twenty-seven

(27) lots that comprise Mason's Corner.

In a letter dated March 18, 1999, the Town Board of

Selectmen informed the plaintiffs that "it is our decision at

this time that the Mason's Corner Subdivision project off of

North Road in Fremont is exempt from the Interim Growth

Management Ordinance under RSA 674:39."_ Plaintiffs’

Exhibit 2. At the first session of the March 1999 Town

Meeting, the Town passed a Growth Management and Land

Use Control Ordinance that imposed permanent restrictions

on the number of building permits to be issued in any given

year.

On April 14, 1999, pursuant to the growth

management ordinance passed at-the March 1999 Town

meeting, the Town Planning Board enacted "Growth

Control and Permit Limitations." These limitations

provided that, for the period between April 14, 1999 and

April 13, 2000, three (3) permits would be issued to lot

owners "who do not have vested rights" and twenty-six (26)

permits would be issued to all other lot owners. See

Defendant's Exhibit B. In addition, the Planning Board

granted an unlimited number of building permits during the

period from April 14, 1999 until June 15, 1999 to any lot

owners with "vested" rights, provided that the permits must

be acted on within thirty (30) days of issuance. Id.

Plaintiff lacozzi sold his house in Londonderry,

New Hampshire on August 25, 1999, with the intention of

purchasing Lot 9 in the Mason's Corner subdivision and

building a new house there. To that end, Iacozzi applied for

a building permit on September 23, 1999. Citing the Town's

Growth Control and Permit Limitations, the Town denied

his request thirty days later, stating that all of the available

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permits for vested lots had already been issued. The

plaintiffs now appeal the Town's decision, seeking an

injunction to bar the. Town from denying the building

permit, or alternatively, a writ of mandamus to compel the

Town to grant the permit.

The plaintiffs assert that the Town's application of

the Growth Control and Permit Limitations against them

violates RSA 674:39, which provides in relevant part, that:

[e]very plat or site plan approved by the

planning board and properly recorded in the

registry of deeds shall be exempt from all

subsequent changes in __ subdivision

regulations, site plan review regulations, and

zoning ordinances adopted by any city, town,

or county ... for a period of 4 years after the

date of recording ... .

RSA 674:39. Only "those regulations and ordinances which

expressly protect public health standards, such as water

quality and sewage treatment requirements" may be applied

to subdivisions during the four-year exemption period. Id.

The Town does not deny that the growth control limits are

zoning ordinances and does not argue that the limits

"expressly protect public health standards." See Beck _v.

Town of Raymond, 118 N.H. 793, 797 (1978) (Supreme

Court rejected town's "public health" argument where

"slow-growth" zoning ordinance conflicted with RSA

674:39 predecessor statute). The Town, instead, claims that

RSA 674:22 and 674:23, which permit towns to exercise

growth management, supersede the four-year exemption.

The Town believes that the growth control statutes and the

four-year exemption statute are in conflict with each other,

and that the growth control statutes must take precedence or

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become void, since a significant portion of the Town's

growth comes from the development of subdivisions.

The Court first notes that RSA 674:23 pertains to

interim growth regulations only, and as such, has no

application to the present dispute, since the plaintiffs

applied for and were denied a building permit under the

permanent ordinance provision, after the expiration of the

Town's interim growth management ordinance. The

relevant language of RSA 674:22 provides that towns "may

further exercise the powers granted under this subdivision

to regulate and control the timing of development" and only

after the town prepares and adopts a master plan, a capital

improvement program, and a growth management process

to "assess and balance" the development needs of the

community and the region. Given these restrictions on the

manner in which a town might control growth, clearly RSA

674:22 does not accord unlimited power to the town to

manage growth.

"When interpreting two statutes which deal with a ©

similar subject matter, we will construe them so that they

do not contradict each other, and so that they will lead to

reasonable results and effectuate the legislative purpose of

the statute." Brosseau _v. Green Acres Mobile Homes, 135

N.H. 643; 646 (1992) (quotation omitted); see Sprague

Energy Corp. v. Town of Newington, 142 N.H. 804, 806

(1998); 73 Am.Jur.2d, Statutes, § 254 ("Where it is possible

to do so, it is the duty of the courts, in the construction of

statutes, to harmonize and reconcile laws, and to adopt that

construction of a statutory provision which harmonizes and

reconciles it with other statutory provisions"). The Court

notes that RSA 674:39 has been amended by the legislature

three (3) times (1989, 1991, and 1995) since RSA 674:22

took effect. In the 1991 amendment, (N.H. Laws 1991,

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331:4), the legislature announced that the purpose of the

amendment was "to confirm and re-emphasize the intent of

the general court at the time of the enactment" of RSA

674:39 in favor of protecting new subdivisions from zoning

ordinances. See Blue Mountain Forest Ass'n v. Town of

Croydon, 119 N.H. 202, 205 (1979) (amendment clarifying

former statute is strong evidence of legislature's original

intent).

Within the language of RSA 674:39, the legislature

specifically excepted from the four-year exemption any

regulations "which expressly protect public health

standards, such as water quality and sewage treatment

requirements," proving that they were capable of creating

exceptions to the four-year limit where they deemed

appropriate. Because the legislature has amended RSA

674:39 since the adoption of RSA 674:22, and RSA 674:39

contains a list of specific exceptions to its applicability, the

familiar axiom of statutory construction applies, expressio

unius est exclusio alterius: “normally the expression of one

thing in a statute implies the exclusion of another." St.

Joseph Hosp. of Nashua v. Rizzo, 141 N.H. 9, 11-12

(1996); see also Silva v. Botsch, 120 N.H. 600, 602 (1980)

("Unless there is evidence to the contrary, statutory

itemization indicates that the legislature intended the list to

be exclusive").

The Court finds and rules that the statutes do not

contradict each other, but rather that RSA 674:22 applies to

growth management generally, but not to _ those

subdivisions protected by the four-year exemption period of

RSA 674:39. The Town's concern over the unfettered

development of subdivisions might be addressed by

controlling the number and type of subdivisions approved

under the power granted by RSA 674:35, rather than by

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approving a subdivision and then placing zoning

restrictions on it later, during the four-year exemption

period, in clear violation of RSA 674:39.

The Town further claims that it satisfied RSA

674:39 by issuing an unlimited number of permits between

April 14, 1999 and June 13, 1999 in order "to reasonably

accommodate any common law or statutory vested rights

that any developer of a pre-existing subdivision might

have." Def.’s Answer at 4. At oral argument, the Town

made an offer of proof concerning school overcrowding in

the Town and the measures enacted to accommodate vested

property owners. Under the clear language of RSA 674:39,

however, it is not unreasonable zoning restrictions that are

prohibited, but rather all zoning restrictions, other than

those expressly excepted, for a period of four years. For

purposes of this action, the plaintiffs do not challenge, and

the Court need not address, the reasonableness of the

Town's actions, because the application of RSA 674:39 is

clear and dispositive.

To be entitled to an injunction, the plaintiffs bear the

burden of proving that there "is an immediate danger of

irreparable harm to the party seeking injunctive relief, and

there is no adequate remedy at law.” Unifirst Corp. v. City

of Nashua, 130 N.H. 11, 14 (1987) quoting Murphy v.

McQuade Realty, Inc., 122 N.H. 314, 316 (1982). In

addition, the court will balance the hardships to both

parties. N.H. Donuts, Inc. v. Skipitaris, 129 N.H. 774, 781

(1987). "The granting of an injunction ... is a matter within

the sound discretion of the Court exercised upon a

consideration of all the circumstances of each case and

controlled by established principles of equity." Varney v.

Fletcher, 106 N.H. 464, 467-68 (1965).

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Accordingly, the plaintiffs' request for Permanent

Injunctive Relief is GRANTED. The Town is hereby

enjoined from refusing to issue a building permit to

plaintiff Iacozzi on the basis of the Growth Control

Ordinance. The plaintiffs’ request for attorney's fees is

DENIED. The plaintiffs have submitted requests for

findings of fact and rulings of law; however, the Court's

findings and rulings are embodied in its narrative

discussion above. The plaintiffs' requests are GRANTED to

the extent that-they are consistent with this order; DENIED

to the extent that they are inconsistent with this order; and

NEITHER GRANTED NOR DENIED to the extent that

they are irrelevant to the determination of this issue. See

Geiss v. Bourassa, 140 N.H. 629, 632-33 (1996).

So Ordered.

DATE: January 31, 2000:

/s/ Richard Galway

Richard E. Galway

PRESIDING JUSTICE

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APPENDIX O

STATE OF NEW HAMPSHIRE

ROCKINGHAM, SS. SUPERIOR COURT

MDR Corporation

Vv.

Town of Fremont

99-E-444

ORDER

Before the Court is the Plaintiff's Amended Petition

for Declaratory Judgment and Injunctive Relief challenging

the validity of the Town of Fremont's ("the Town") Growth

Control Ordinance and its decision to deny certain building

permits to the plaintiff based on that ordinance. MDR

brought this action on August 27, 1999 and filed an

amendment to the Petition on October 21, 1999. This Court

denied MDR's request for temporary injunctive relief on

September 23, 1999. The Court conducted a final hearing

on the merits on December 6, 1999.

For purposes of this Order, the Court finds the

following facts. At the Town Meeting on March 11, 1987,

after the forty-three (43) Articles set forth in the warrant

_were voted on, an oral motion was made; seconded, and

passed:

To see if the Town will vote to authorize the

Selectmen to appoint a committee to prepare

and submit recommendations to the Planning

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Board for a Capital Improvement Program;

said committee to be composed of eight

members, including representatives from the

Planning Board, School Board, Police

Department, Fire Department, Selectmen,

Conservation Commission, Parks and

Recreation Commission and from the general

public.

MDR's Amendment to Petition at 4 7, 8. At the first session

of the March 1999 Town Meeting, the Town passed a

Growth Management and Innovative Land Use Control as

part of the Town Zoning Ordinance, replacing an Interim

Growth Management Ordinance passed in 1998. Pursuant

to the growth management ordinance passed at the March

1999 Town Meeting, on April 14, 1999, the Town Planning

Board imposed "Growth Control and Permit Limitations."

These limitations provide that, for the period between April

14, 1999 and April 13, 2000, three (3) permits would be

issued to lot owners "who do not have vested rights" and

twenty-six (26) permits would be issued to all other lot

owners.

The plaintiff, MDR Corporation ("MDR") owns a

parcel of land in Fremont, New Hampshire known as

Glidden Hill Estates, subject to a fourteen lot subdivision

plan approved by the Town Planning Board on May 5,

1999 and registered with the Rockingham County Registry

of Deeds on August 14, 1999. After the Ordinance had

taken effect, MDR applied for six (6) building permits to

construct single family homes on the property. The Town

granted five (5) permits and told MDR that no further

permits would be available until April 2000 at the earliest,

citing the Town's 1999 Growth Management Ordinance in

support of its decision to deny additional permits.

MDR challenges the legality of the Town's Growth

Management and Innovative Land Use Control Ordinance

("the Ordinance"), asserting that the Town has failed to

create a valid capital improvement program ("CIP"), as

requirea by RSA 674:22, which states, in relevant part:

The local legislative body may further

exercise the powers granted under this

subdivision to regulate and control the timing

of development. Any ordinance imposing

such a control may be adopted only after

preparation and adoption by the planning

board of a master plan and a capital

improvement program and shall be based

upon a growth management process intended

to assess and _ balance community

development needs and consider regional

development needs.

RSA 674:22 (emphasis added). The Town's "local

legislative body” is the Town Meeting. See RSA 672:8, V.

When properly authorized by a majority vote of the Town

Meeting, a planning board may "prepare and amend a

recommended program of municipal capital improvement

projects...." RSA 674:5. "The subject matter of all business

to be acted upon at the town meeting shall be distinctly

stated in the warrant, and nothing done. at any meeting, ...

shall be valid unless the subject thereof is so stated." RSA

39:2.

Since the motion to appoint a committee to make

recommendations concerning a CIP was not among the

forty-three (43) published Articles on the 1987 warrant (see

supra at 1, 2), the motion was, therefore, invalid. Even if

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the motion had complied with the notice requirements of

RSA 39:2, it did not authorize the creation of a CIP, but

rather, purported to authorize the Selectmen to create a

committee to make recommendations concerning the

substance of a future CIP. Since the motion was not valid,

and the Town has not set forth any other evidence that the

CIP is otherwise valid, the Town has never adopted a valid

or enforceable CIP.

The Growth Control Ordinance, therefore, is invalid

ab initio for failing to comply with the statutory

requirements of RSA 674:22. Accordingly, MDR's request

for Injunctive Relief is, GRANTED. The Town is hereby

enjoined from refusing to issue building permits to MDR

on the basis of the Growth Control Ordinance. MDR's

request for attorney's fees is DENIED.

MDR has submitted requests for findings of fact and

rulings of law; however, the Court's findings and rulings are

embodied in its narrative discussion above. MDR's requests

are GRANTED to the extent that they are consistent with

this order; otherwise, they are DENIED. See Geiss _v.

Bourassa, 140 N.H. 629, 632-33 (1996).

So Ordered.

Date: December 27, 1999

/s/ Walter Murphy

Walter L. Murphy

PRESIDING JUSTICE

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APPENDIX P

New Hampshire Constitution

*

First Part, Article 12

Protection and Taxation Reciprocal.--- Every

member of the community has a right to be protected by it,

in the enjoyment of his life, liberty, and property; he is

therefore bound to contribute his share in the expense of

such protection, and to yield his personal service when

necessary. But no part of a man's property shall be taken

from him, or applied to public uses, without his own

consent, or that of the representative body of the people.

Nor are the inhabitants of this state controllable by any

other laws than those to which they, or their representative

body, have given their consent.