1 Highland Springs, Inc., a wholly owned subsidiary of MVH

is also a named plaintiff. I refer to both plaintiffs

collectively as “MVH.”

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Monadnock View Holdings, LLC, et al.

v. Case No. 05-cv-449-PB

Opinion No. 2006 DNH 147

Town of Peterborough, et al.

MEMORANDUM AND ORDER

Monadnock View Holdings, LLC1 ("MVH") has struggled for

several years to commercially exploit properties it controls in

the Town of Peterborough, New Hampshire. Because its properties

are located in zoning districts that do not permit commercial

uses, it sought variances on several occasions to authorize what

it cannot do as of right. When this strategy proved less than

completely successful, it sought and failed to obtain approvals

to re-zone the properties.

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 1 of 33
2 MVH has sued the Town of Peterborough, its Board of

Selectmen (“BOS”), its Zoning Board of Adjustment (“ZBA”), and

its Planning Board.

3 Defendant Barking Dog Water, LLC. (“Barking Dog”) which

formed in May, 2003, is a New Hampshire corporation and a

competitor of MVH. (Complaint 2, 9). In its complaint, MVH

alleges that some of the Municipal Defendants have close ties

with Barking Dog. Specifically, MVH notes that: (1) Defendant

Roberta Bass serves as the Managing Member of Barking Dog and is

also a member of the Planning Board (Complaint 2); (2) Defendant

John Ratigan, Esq. is Peterborough Town Counsel and the

registered agent and counsel for Barking Dog (Complaint 2); and

(3) Defendant Elizabeth Thomas Marshall is a member of the

Peterborough Board of Selectmen and the Peterborough Water

Resources Committee, and she maintains a close relationship with

Roberta Bass.

-2-

In this action, MVH charges that Peterborough2 and several

Town officials (collectively “Municipal Defendants”) violated its

rights under the Constitution’s Equal Protection Clause, Due

Process Clause, and Takings Clause by illegally conspiring to

block MVH’s development plans. It also charges that the

Municipal Defendants and a business competitor3 violated the

Sherman Antitrust Act. Defendants have moved to dismiss on

several grounds. In granting their motions, I conclude that

MVH’s equal protection claim fails to state a viable cause of

action, its due process and takings claims fail because MVH

declined to pursue available state remedies, and its antitrust

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 2 of 33
4 MVH also asserts several state law claims: (1) tortious

interference with business relationships; (2) “abuse of office;”

(3) “violation of R.S.A. 91-A;” and (4) “bad faith conduct by

government officials.” Because I dismiss MVH’s federal claims, I

decline to exercise supplemental jurisdiction over these state

law claims and do not consider them here.

5 The facts in the background section are drawn primarily

from the complaint and, for purposes of these motions, will be

construed in the light most favorable to MVH. References to

relevant ZBA Minutes and other court actions brought by MVH or

its predecessors are included solely for contextual purposes. 

-3-

claim is barred by state action immunity and Noerr-Pennington

immunity.4 

I. BACKGROUND5

MVH is a New Hampshire corporation engaged in the spring

water bottling business. It owns a 300-acre tract of land in

Peterborough, New Hampshire, containing a 35,000 square-foot

stone barn of historical significance and two spring water wells 

(the “Stone Barn Property”). (Complaint 3). 

The Stone Barn Property spans two of Peterborough’s zoning

districts. Old Street Barn, LLC v. Town of Peterborough, 147

N.H. 254, 255 (2001). The stone barn and the two spring water

wells are located in the rural zoning district. Access to the

wells is obtained through a portion of the property located in

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 3 of 33
6 Although the Zoning Ordinance did not permit commercial

uses in either the rural district or the family district, the

town determined that the owner of the Stone Barn Property had a

common law right to make the approved withdrawals. Id. This

ruling was unsuccessfully challenged by abutters in Superior

Court. Id.

-4-

the family zoning district. Id. Although the State of New

Hampshire has issued a groundwater withdrawal permit for the site

that places no restrictions on water withdrawals (Complaint 3),

the town’s Zoning Board of Adjustment (“ZBA”) determined in 1990

that the town’s zoning ordinance limited the amount of water

MVH’s predecessor in title could withdraw from the property to

two 7,000-gallon tank truck loads per day. Id.6 In 1998, MVH’s

predecessor sought permission to modify the ZBA’s 1990 ruling to

permit the withdrawal of up to four 8,200-gallon tank truck loads

per day. The ZBA denied this request and MVH’s predecessor

challenged the ruling in state court. Id. In upholding the

town’s decision, the New Hampshire Supreme Court determined that

the plain language of the Ordinance simply

does not contemplate using the property for a

commercial venture involving pumping and

removing four 8,200-gallon tank trucks of

water per day. Because the proposed use is

not expressly permitted by the Ordinance, it

is prohibited as a matter of law unless the

plaintiff first obtains a special exception

or a variance.

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 4 of 33
7 The actual applicant was Peterborough Spring Water, Inc.,

MVH’s predecessor in interest to its contract to purchase the

Route 101 property. Monadnock Holdings, LLC v. Town of

Peterborough, et al, Hillsborough County Superior Court, North,

Docket No. 03-E-264 at 3 (Nov. 3, 2003).

-5-

Id. at 258 (internal citations omitted). 

MVH has made several efforts since 1998 to develop the Stone

Barn Property and to expand its spring water business. In the

sections that follow, I first describe developments that are

relevant to its current claims and then identify the allegations

of impropriety that MVH levies against the defendants.

A. Bulk Transfer Variance Requests

On April 2, 2003, MVH7 applied to the ZBA for a variance

(“Bulk Transfer Request 1”) to establish a water transfer station

on a property located on N.H. Route 101, which it had contracted

to purchase for this purpose (the “Route 101 property”). 

(Complaint 5-6). The ZBA denied Bulk Transfer Request 1 on April

2, 2003, citing diminution in property values and increased

traffic noise as reasons. (Complaint 7).

On May 2, 2003, MVH filed a motion for rehearing of Bulk

Transfer Request 1. Monadnock View Holdings, LLC, 03-E-0264 at 2

n.2. The ZBA unanimously denied the request on May 8, 2003,

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 5 of 33
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reasoning that no “new information [was] provided which could not

have been made available at the time of the public hearing of the

case.” (May 8, 2003 ZBA Minutes at 8-9). MVH appealed this

ruling to the Superior Court for the Northern District of

Hillsborough County, New Hampshire (the “Superior Court”),

challenging the ZBA decision and alleging that the ZBA had

violated its right to equal protection. Monadnock View Holdings,

LLC, 03-E-264 at 3. On November 3, 2003, the Superior Court

affirmed the ZBA’s decision. Id. at 13-14. With respect to

MVH’s equal protection claim, the Superior Court specifically

held that MVH was not “similarly situated” to the other landowner

at issue. Id. at 11.

MVH then brought a new, revised Route 101 variance request

(“Bulk Transfer Request 2"). (Complaint 8); (July 7, 2003 ZBA

Minutes at 2). The ZBA denied Bulk Transfer Request 2 on July 7,

2003, reasoning that the facts presented in the application were

“not materially different in nature and degree than the original

application.” (July 7, 2003 Minutes at 5). The record does not

reveal whether any appeal was taken from this ruling. 

B. Stone Barn Demolition Permit

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 6 of 33
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On April 10, 2003, a few days after the ZBA had denied Bulk

Transfer Request 1, MVH applied for a demolition permit to

dismantle the Stone Barn structure and sell it piecemeal. 

(Complaint 7). Although the town initially granted the permit on

April 11, 2003, it revoked the permit on April 23, 2003 because

of technical defects in MVH’s application. At the demolition

permit revocation meeting, the Peterborough Board of Selectmen

(“BOS”) instructed one selectmen to begin negotiating on the

town’s behalf to purchase the Stone Barn structure. (Complaint

7). (Doc. 19, Exhibit C). 

On April 28, 2003, the Peterborough Heritage and

Conservation Commissions (“Commissions”) met to discuss the

conservation factors and federal regulations implicated by MVH’s

demolition proposal, as well as possible future development of

the Stone Barn property. (Complaint 8). The Commissions then

began to assist MVH with data preparation in contemplation of a

variance request for the Stone Barn property. (Complaint 8). On

May 15, 2003 MVH submitted a revised demolition permit for the

Stone Barn structure. (Complaint 8). The BOS granted the

demolition permit on June 6, 2003, but MVH later decided not to

demolish the structure. 

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 7 of 33
8 The complaint states that MVH “put forward” two ballot

initiatives “including the development of an Inn/Restaurant at

Stone Barn and the Bulk Transfer Water Station.” (Complaint 11). 

I interpret this statement to mean that MVH sought to have the

Stone Barn and Route 101 properties re-zoned at a town meeting.

-8-

C. Rezonings

After MVH failed to obtain variances, it proposed two ballot

initiatives to be voted upon at the next town meeting. One of

the initiatives sought a re-zoning of the Stone Barn property to

enable MVH to convert the Stone Barn into a restaurant/inn

(“Restaurant/Inn Initiative”), and the other sought to re-zone

the Route 101 property so that MVH could operate a bulk water

transfer station there (“Bulk Transfer Initiative”).8 (Complaint

11). On December 11, 2003, the Heritage Commission decided to

support MVH’s ballot initiatives if MVH would agree to specified

conditions on its use of the land. (Complaint 11). On February

19, 2004, MVH agreed to the conditions. (Complaint 11-12). 

Specifically, MVH agreed to dedicate $100,000 per year to

improving the Stone Barn structure and to fund a $50,000 escrow

account to compensate neighbors in the event of adverse water

impact. (Complaint 12). Because MVH accepted these conditions,

the Heritage Commission agreed to support MVH’s ballot

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 8 of 33
-9-

initiatives. (Complaint 12). 

New Hampshire law requires the Peterborough Planning Board

(“Planning Board”) to hold a public hearing on all zoning

amendments and to note its approval or disapproval of each

amendment on the town meeting ballots. See RSA 675:4. At a

January 5, 2004 public hearing the Planning Board decided not to

support the initiatives. (Complaint 13). Accordingly, when the

initiatives were voted upon, the ballots indicated that the

Planning Board did not support them. (Complaint 12). On March

9, 2004, voters rejected both initiatives. (Complaint 13).

D. Restaurant Variance

On April 12, 2005, MVH requested a variance from the ZBA to

operate a restaurant/inn on the Stone Barn property.

(“Restaurant/Inn Request”). (Complaint 16). The ZBA discussed

the request over the course of its next three meetings, but

denied the variance on May 17, 2005, reasoning that such an

operation might diminish neighboring property values and that

granting the variance would be contrary to the public interest. 

(Complaint 17). The record does not reveal whether an appeal was

taken from this ruling.

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 9 of 33
9 MVH alleges that over the next several years the town

actively attempted to purchase the Stone Barn property with the

intention of using water revenues from its springs to restore and

maintain the Stone Barn structure. Specifically, MVH asserts

that the town took affirmative steps such as placing a phone call

to MVH’s attorney regarding a possible purchase of the property

and empowering a selectman to purchase the property at

foreclosure proceedings. (Complaint 11, 15).

-10-

E. MVH’s Allegations of Impropriety

MVH alleges that the adverse municipal decisions described

above resulted from conflicts of interest and biases of the

defendants. Specifically, MVH alleges that the defendants

engaged in the following improper conduct:

At a May 27, 2003 non-public executive session of the BOS,

Marshall stated that, in her opinion, a water transfer station

for MVH was not acceptable “under any circumstances.” (Complaint

9). The BOS also noted at this meeting that it would like to see

the town as the owner of the Stone Barn structure.9 (Complaint

9).

Prior to the July 7, 2003 meeting where the ZBA considered

Bulk Transfer Request 2, Ratigan advised ZBA on steps to quash

MVH’s application. (Complaint 10). At this time, he did not

disclose that he was counsel for Barking Dog. (Complaint 9-10). 

At this meeting, the ZBA did not allow testimony from MVH’s

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 10 of 33
-11-

expert witnesses or from members of the Commissions. (Complaint

10). Additionally, the ZBA refused MVH’s attorney’s request to

explain how Bulk Transfer Request 2 differed from Bulk Transfer

Request 1. (Complaint 10).

In December 2003, when the Planning Board discussed

Restaurant/Inn Initiative and Bulk Transfer Initiative, Bass, a

board member and manager of competitor Barking Dog, participated

in the discussions and did not recuse herself. Similarly, she

did not recuse herself on January 5, 2004 when the Planning Board

voted to oppose the ballot initiatives. (Complaint 12). MVH

alleges that this conflict of interest tainted its two ballot

initiatives.

On May 26, June 14, June 23, and July 8, 2004, Ratigan

appeared before the Town of Sharon Zoning Board of Adjustment on

behalf of Barking Dog and espoused many of the same ideas he had

rejected when advising the Municipal Defendants with respect to

MVH. (Complaint 13). On August 12, 2004, Ratigan appeared with

Bass on behalf of Barking Dog in front of the Town of Jaffrey

Zoning Board. (Complaint 13). In these meetings, Ratigan noted

that the Town of Peterborough was a “likely customer” for Barking

Dog’s water resources. (Complaint 14). A newspaper

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 11 of 33
-12-

advertisement also cited Ratigan as referring to Restaurant/Inn

Request as “illegal spot zoning.”

In February 2004, Ratigan said the conditions accepted by

MVH in exchange for the Commissions’ support of its ballot

initiatives did not “certify ‘intent and compliance’” and

demanded that escrow funds be in place immediately, or the

Commissions would not be permitted to support the initiatives. 

(Complaint 13).

Marshall, a regular contributor to the Peterborough

Transcript, used her newspaper column to sway public opinion

against MVH’s desired property uses. (Complaint 12). In one

instance, on April 14, 2004, Marshall inflated the potential

profits MVH could realize if it were able to exploit its

property. (Complaint 14). This column did not, however, mention

the projected or actual profits of Barking Dog or any of MVH’s

other competitors in the spring water business. (Complaint 14). 

Later, in the summer of 2004, Marshall contacted the New

Hampshire Department of Environmental Services to determine how

the town could stop MVH’s future water withdrawal plans. 

(Complaint 14).

Finally, prior to the May 17, 2005 ZBA meeting, Ratigan

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 12 of 33
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instructed the ZBA how to deny Restaurant/Inn Request. 

(Complaint 17).

II. STANDARD OF REVIEW

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), I must "accept as true the well-pleaded factual

allegations of the complaint, draw all reasonable inferences

therefrom in the plaintiff's favor and determine whether the

complaint, so read, sets forth facts sufficient to justify

recovery on any cognizable theory." Martin v. Applied Cellular

Technology, 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) (quotation omitted). 

Despite the liberal pleading requirements established by the

federal rules, I need not accept subjective characterizations,

bald assertions, or unsubstantiated conclusions. See Dewey v.

Univ. of N.H., 694 F.2d 1, 3 (1st Cir. 1982). The issue is not

"what the plaintiff is required ultimately to prove in order to

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 13 of 33
-14-

prevail on her claim, but rather what she is required to plead in

order to be permitted to develop her case for eventual

adjudication on the merits." Gorski v. N.H. Dep't of Corr., 290

F.3d 466, 472 (1st Cir. 2002) (emphasis in original). 

III. ANALYSIS

MVH contends that the Municipal Defendants violated its

rights under the Constitution’s Equal Protection Clause, Due

Process Clause, and Takings Clause. It also argues that the

Municipal Defendants and Barking Dog violated the Sherman

Antitrust Act. I address each claim in turn. 

A. Equal Protection

To state an equal protection claim, a plaintiff generally

must allege membership in a protected class or group. In certain

circumstances, however, an equal protection claim may be based on 

a “class of one.” Donovan v. City of Haverhill, 311 F.3d 74, 77

(1st Cir. 2002) (quoting Village of Willowbrook v. Olech, 528

U.S. 562, 564 (2000) (per curiam)). When pleading an equal

protection claim based on a class of one, a plaintiff must allege

that it has “been intentionally treated differently from others

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 14 of 33
-15-

similarly situated and that there is no rational basis for the

difference in treatment.” See id. (quoting Olech, 528 U.S. 562

at 564). 

The formula for determining whether certain entities are

“similarly situated” is not a bright line test. Barrington Cove,

LP v. R.I. Hous. and Mortgage Fin. Corp., 246 F.3d 1, 8 (1st Cir.

2001). The First Circuit has explained that “[t]he test is

whether a prudent person, looking objectively at the incidents,

would think them roughly equivalent and the protagonists

similarly situated.” Id. (citation omitted). The relevant facts

to consider “are those factual elements which determine whether

reasoned analogy supports, or demands, a like result.” Id.

(citation omitted). Thus, to satisfy the “similarly situated”

element, a plaintiff must demonstrate that it was similarly

situated “in all relevant respects.” Id. (citation omitted). 

When a complaint cannot reasonably be construed to permit such a

finding, dismissal is warranted. Id.

MVH offers three bases for its equal protection claim. 

First, it alleges that it was treated differently from a

competing water company--Upland Farms--because Upland Farms was

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 15 of 33
-16-

granted a special exception to operate a water transfer facility

while MVH’s Bulk Transfer Requests were denied. Next, MVH argues

that the Municipal Defendants treated it differently than another

competitor--Barking Dog--because they supported Barking Dog’s

application to a state agency for a water withdrawal permit. 

Finally, MVH alleges that it “was treated differently than other

similarly situated businesses during the same period and under

the same rules and requirements.” For the reasons set forth

below, none of these arguments support a viable equal protection

claim.

With respect to its first argument, MVH is collaterally

estopped from asserting that it was similarly situated to Upland

Farms because it previously litigated and lost on this issue in

Superior Court. For collateral estoppel to apply, the following

elements must be satisfied: “(1) an identity of issues (that is,

that the issue sought to be precluded is the same as that which

was involved in the prior proceeding), (2) actuality of

litigation (that is, that the point was actually litigated in the

earlier proceeding), (3) finality of the earlier resolution (that

is, that the issue was determined by a valid and binding final

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 16 of 33
10 The only arguable difference between the issues is a

technical one: the Superior Court decided the equal protection

issue on state--rather than federal--constitutional grounds. The

element under the state equal protection standard, however, is

identical to that under the federal standard. See In re Wintle,

146 N.H. 664, 667 (2001) (“The first question in an equal

protection analysis is whether the State action in question

treats similarly situated persons differently.”) (citation

omitted).

-17-

judgment or order), and (4) the centrality of the adjudication

(that is, that the determination of the issue in the prior

proceeding was essential to the final judgment or order).” 

Gonzalez-Pina v. Guillermo Rodriguez, 407 F.3d 425, 430 (1st Cir.

2005). 

The issue litigated in Superior Court--whether MVH and

Upland Farms were “similarly situated” for equal protection

purposes--is identical to the second element MVH must satisfy to

state an equal protection claim here.10 It is also clear from

the record that MVH actually litigated the issue. See Monadnock

View Holdings, LLC at 10 (“[MVH] next argues that ZBA violated

its right to equal protection under the laws. . . . The first

question in an equal protection analysis is whether the State

action in question treats similarly situated persons

differently”). Further, the Superior Court issued a final

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 17 of 33
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judgment on this issue, specifically holding that Upland Farms

and MVH were not similarly situated because Upland Farms’

property was the site of a prior existing non-conforming use,

whereas MVH’s was not. Id. at 11. Finally, this finding was

essential to the Superior Court’s judgment. See id. at 13-14. 

Thus, MVH is collaterally estopped from relitigating the

“similarly situated” element with respect to Upland Farms and

therefore cannot state an equal protection claim on this ground.

Next, MVH alleges that the Municipal Defendants treated it

differently than Barking Dog. Specifically, MVH asserts that the

Municipal Defendants “supported [Barking Dog’s] application to

[the] New Hampshire Department of Environmental Services” to

withdraw large quantities of water. (Complaint 16). MVH does

not allege, however, that any of the defendants opposed any

similar request it had made to the Department of Environmental

Services. Nor does MVH allege that Barking Dog sought or was

granted variances, demolition permits, or rezonings similar to

those denied MVH. In fact, MVH does not even allege that Barking

Dog ever attempted to conduct business in Peterborough. Under

these circumstances, MVH has failed to allege that it was

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 18 of 33
11 MVH also seems to claim that Peterborough’s taxation of

the Stone Barn Property as a commercial property gives rise to an

equal protection claim because the Town has prevented it from

using the property for commercial purposes. However, MVH admits

in the complaint that it is permitted to transport two truckloads

of water per day from the property--an inherently commercial use. 

12 MVH also asserts that the Municipal Defendants’ conduct

violated its substantive due process rights. I view this,

however, as merely an effort to recharacterize as substantive a

claim that is inherently procedural. “[R]ejections of

development projects and refusals to issue building permits do

-19-

“similarly situated” to Barking Dog “in all relevant respects.” 

Therefore, it has not stated a cognizable equal protection claim. 

Finally, MVH alleges that it “was treated differently than

other similarly situated businesses during the same period and

under the same rules and requirements.”11 MVH does not, however,

indicate which “similarly situated businesses” were treated

differently or describe the nature of this disparate treatment. 

Bald conclusions of this type are not sufficient to support a

claim. See Dewey, 694 F.2d at 3. Accordingly, MVH has again

failed to state an equal protection claim.

B. Due Process

MVH next alleges that the Municipal Defendants violated its

procedural due process rights by denying it an impartial decision

maker. (Complaint at 21).12 Specifically, MVH argues that the

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 19 of 33
not ordinarily implicate substantive due process.” SFW Arecibo,

Ltd. v. Rodriguez, 415 F.3d 135, 141 (1st Cir. 2005) (quoting PFZ

Properties, Inc. v. Rodriguez, 928 F.2d 28, 31 (1st Cir. 1991)). 

This is true even where “officials have allegedly violated state

law or administrative procedures. Id. To be sure, the First

Circuit has “left the door slightly ajar for federal relief

[based on substantive due process] in truly horrendous

situations,” but it has been clear that “the threshold for

establishing the requisite abuse of government power is a high

one indeed.” SFW Arecibo, Ltd., 415 F.3d at 141 (citation and

internal quotation marks omitted). Here, MVH has not pleaded

facts sufficient to satisfy this threshold. See SFW Arecibo,

Ltd., 415 F.3d at 141 (affirming dismissal of substantive due

process claim where plaintiffs alleged that a planning board made

an erroneous decision in violation of state law ); PFZ

Properties, Inc., 928 F.2d at 32 (affirming dismissal of

substantive due process claim where plaintiff alleged that a

permitting authority arbitrarily and capriciously refused to

process its approved construction drawings). MVH does not come

close to meeting this difficult standard.

-20-

alleged conflicts of interest of Bass, Ratigan, and Marshall

described above tainted the town’s decision making process at the

ZBA hearings, the Planning Board meetings, and derivatively at

the town meeting where MVH’s ballot initiatives were defeated. 

MVH also alleges that the selectmen and ZBA were biased because

they wanted the town to purchase the Stone Barn property.

To state a procedural due process claim, a plaintiff “must

allege first that it has a property interest as defined by state

law and, second, that the defendants, acting under color of state

law, deprived it of that property interest without

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 20 of 33
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constitutionally adequate process.” SFW Arecibo, Ltd., 415 F.3d

at 139 (quoting PFZ Properties, Inc., 928 F.2d at 30) (internal

quotation marks omitted). However, when a deprivation of a

property interest results from “random and unauthorized conduct

of state actors, the due process analysis is initially “limited

to the issue of the adequacy of the postdeprivation remedies

provided by the state.” Hadfield v. McDonough, 407 F.3d 11, 19

(1st Cir. 2005) (citations omitted). In other words, public

entities are shielded from federal due process claims where “the

denial of process was caused by the random and unauthorized

conduct of government officials and where the state has provided

adequate postdeprivation remedies to correct the officials’

random and unauthorized acts.” Id. at 19-20 (citations omitted). 

Conduct is considered random and unauthorized “when the

challenged state action is a flaw in the official’s conduct

rather than a flaw in the state law itself.” Id. at 20

(citations omitted). 

Here, MVH does not allege that the laws of New Hampshire are

flawed. Rather, it alleges only that the Municipal Defendants’

conduct constituted a violation or misapplication of state law. 

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 21 of 33
13 Additionally, MVH notes in its complaint that in

February 2002, the ZBA denied a request to create a circular

turnaround on the Stone Barn Property. (Complaint 4). To the

extent that MVH’s complaint can be construed to assert a due

process claim on this ground, the same post-deprivation remedies

described with respect to its other variance requests were

available.

-22-

In other words, MVH alleges essentially that the conduct was

random and unauthorized. Thus, I need only determine whether the

postdeprivation remedies available to MVH were adequate. See PFZ

Properties, Inc., 928 F.2d at 31. I hold that they were.

Under New Hampshire law, MVH had the right to apply to the

ZBA for a rehearing with respect to the ZBA’s denials of Bulk

Transfer Request 1, Bulk Transfer Request 2, and the Restaurant/

Inn Request. See RSA 677:2. Further, if MVH believed that the

ZBA’s decisions were “illegal or unreasonable,” it could have

appealed to a New Hampshire superior court, specifying the

grounds upon which the decisions were allegedly illegal or

unreasonable. See RSA 677:4.13 

With respect to the BOS’s revocation of the demolition

permit for the Stone Barn property, MVH was entitled to appeal to

the ZBA. See Peterborough Land Use Regulations, Chapter 207-10. 

In the event of an adverse ZBA decision, MVH could have applied

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 22 of 33
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first for a rehearing, and then--as described above--to the

superior court. See RSA 677:2, 677:4.

Finally, with respect to the defeat of MVH’s ballot

initiatives. MVH could have applied for rehearing to the BOS,

basing its complaint on the allegedly tainted ballots. See RSA

677:2. It could then have appealed an unfavorable ruling by the

selectmen to the superior court. See RSA 677:4.

The First Circuit has made it clear that a combination of

postdeprivation administrative and judicial remedies satisfies

due process in the context of local land use decisions. See SFW

Arecibo, Ltd., 415 F.3d at 140; PFZ Properties, Inc., 928 F.2d at

31. Thus, the New Hampshire postdeprivation remedies described

above were adequate, and MVH’s procedural due process claim

fails. See PFZ Properties, Inc., 928 F.2d at 31 (reasoning that

post-deprivation remedies virtually identical to the New

Hampshire procedures described above satisfy due process). 

C. Takings Clause

MVH next alleges that the actions of the Municipal

Defendants constituted takings of its properties without just

compensation. Specifically, MVH presents both a physical taking

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claim and a regulatory taking claim. With respect to its

physical takings claim, MVH alleges that the town’s construction

and continued use of a trailhead on the Stone Barn property over

an easement it owns constitutes a physical taking without just

compensation. With respect to its regulatory taking claim, MVH

alleges that the Municipal Defendants’ denials of its variance

requests diminished the values of the Stone Barn and Route 101

properties, effectively depriving MVH of the use of its

properties. Each of MVH’s takings theories are rooted in the

doctrine of inverse condemnation, which applies when a government

entity effectively takes property without formally exercising its

eminent domain power. For the reasons set forth below, neither

argument states a cognizable takings claim.

In order for a federal takings claim to be ripe for review,

a plaintiff must demonstrate that two prerequisites have been

met: (1) “the government entity charged with implementing the

regulations has reached a final decision regarding the

application of the regulations to the property at issue (the

‘final decision requirement’)”; (2) “the plaintiff sought (and

was denied) just compensation by means of an adequate state

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procedure (the ‘state action requirement’).” Pascoag Reservoir &

Dam, LLC v. Rhode Island, 337 F.3d 87, 91 (1st Cir. 2003) (citing

Williamson County Regional Planning Comm’n v. Hamilton Bank, 473

U.S. 172, 186 (1985)). In this case, both of MVH’s takings

claims fail because it has failed to satisfy the state action

requirement. 

The state action requirement mandates that “if state law

provides an adequate process for obtaining compensation, and

resort to that process holds out some realistic promise of

yielding just compensation,” a plaintiff may not seek

compensation in federal court without first exhausting the state

procedures. Id. at 92. Here, Article XII of the New Hampshire

constitution protects citizens from government takings of private

property, and New Hampshire state courts allow recovery through

inverse condemnation proceedings for both physical and regulatory

takings. See, e.g., Arcidi v. Town of Rye, 150 N.H. 694, 698

(2004) (“When [inverse condemnation] occurs, the governmental

body has committed an unconstitutional taking and the property

owner has a cause of action for compensation”); Rowe v. Town of

North Hampton, 131 N.H. 424, 430-33 (1989) (discussing New

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Hampshire regulatory takings proceedings). MVH does not allege

that it sought and was denied just compensation through the

available state inverse condemnation procedures. Thus, absent an

exception to the state action requirement, MVH’s takings claims

are not ripe for review.

MVH argues that its claims fall within a futility exception-

-recognized by some courts--to the state action requirement. 

However, MVH alleges no facts to suggest that New Hampshire state

courts would not have been receptive to its takings claims or

that those courts were infected with the same alleged biases as

the Municipal Defendants. In short, MVH has provided no

“compelling explanation for not using [New Hampshire’s] state

procedures.” Pascoag Reservoir & Dam, LLC, 337 F.3d at 93. 

Accordingly, MVH’s takings claims fail.

D. Antitrust Claim

MVH also brings a Sherman Act claim against the Municipal

Defendants and Barking Dog, alleging that they engaged in a

conspiracy to block its development plans. I consider MVH’s

antitrust claim against each set of defendants in turn.

1. The Municipal Defendants

Case 1:05-cv-00449-PB Document 44 Filed 12/19/06 Page 26 of 33
14 Although the Municipal Defendants do not raise it as a

defense, the Local Government Antitrust Act of 1984 (“LGAA”) also

immunizes them from MVH’s damages claims. 15 U.S.C. §§ 34-36;

GFC Gaming Corp. v. City of Black Hawk, Colorado, 405 F.3d 876,

884-85 (10th Cir. 2005). The LGAA bars recovery of damages,

interest on damages, costs, or attorney’s fees from any “local

government, or official or employee thereof acting in an official

capacity.” 15 U.S.C. § 35(a); GFC Gaming Corp., 405 F.3d at 885. 

Here, the Municipal Defendants are local government officials who

were acting in their official capacities. Thus, they are “immune

from damages for violations of the Sherman Act.” See GFC Gaming

Corp., 405 F.3d at 885.

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The First Circuit has recognized the general rule that “any

action that qualifies as state action is ipso facto exempt from

operation of the antitrust laws.” Fisichelli v. City Known as

Town of Methuen, 956 F.2d 12, 14-15 (1st Cir. 1992) (citation and

internal quotation marks omitted). This exemption has come to be

known as state action immunity.14 For state action immunity to

apply, two requirements must be met: (1) “the challenged

restraint [on trade] must be one clearly articulated and

affirmatively expressed as state policy” (the “authorization

requirement”), and (2) “the policy must be actively supervised by

the State itself.” Arroyo-Melicio v. Puerto Rican American

Insurance Co., 398 F.3d 56, 71 (1st Cir. 2005) (quoting Cal.

Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc, 445 U.S. 97,

105 (1980)) (internal quotation marks omitted). 

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The active state supervision requirement does not apply,

however, where, as here, the defendant is a municipality. Town

of Hallie v. City of Eau Claire, 471 U.S. 34, 46 (1985). Thus, I

need only determine whether the restraints on trade challenged by

MVH resulted from clearly articulated and affirmatively expressed

state policy. For the reasons set forth below, I hold that they

do.

In order for the authorization requirement to be satisfied,

the state need only “provide[] the municipality with a general

grant of authority to take actions of the sort in question.” 

Fisichelli, 956 F.2d at 14 (citation and quotation marks

omitted). If “municipal decisions represent, on their face, a

proper exercise of municipal authority, an antitrust court

normally should not examine whether the manner of its exercise

was improper.” Id. This principle extends even to situations

where the action is alleged to be unlawful due to “the influence

of an improper motive.” Id. In short, a municipal anticompetitive restriction satisfies the authorization requirement

as long as it is the “foreseeable result” of what a state statute

authorizes. Id. (citations and quotation marks omitted). 

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Here, Peterborough’s anti-competitive restrictions--zoning

and permitting regulations--satisfy the authorization

requirement. Not only could the New Hampshire legislature

reasonably foresee that these regulations would restrict

competition, but it explicitly acknowledged it. See RSA 672:1, 1

(“Planning, zoning and related regulations have been and should

continue to be the responsibility of municipal government.”); RSA

672:1, VI (“It is the policy of this state that competition and

enterprise may be so displaced or limited by municipalities in

the exercise of the powers and authority provided in this

[Planning and Zoning] title as may be necessary to carry out the

purposes of this title.”). Regardless of any improper motive,

the Municipal Defendants’ denials of variances, rezonings, and

demolition permits represent a facially proper exercise of

municipal authority. Thus, absent an exception to the doctrine,

defendants’ actions are protected by state action immunity.

MVH argues that state action immunity does not apply because

the Municipal Defendants’ actions fall within the market

participant exception. This exception applies when a

municipality acts as if it were a private business. See

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15 In addition to naming the Town its various boards in its

antitrust claim, MVH has named Marshall and Ratigan individually. 

However, a plaintiff cannot defeat state action immunity “simply

by substituting, for the name of the town, the names of the town

officials who approved the challenged municipal action.” 

Fisichelli, 956 F.2d at 15-16. Thus, MVH’s antitrust claims

against Marshall and Ratigan fail.

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Fisichelli, 956 F.2d at 14-15. However, MVH has not alleged that

the Municipal Defendants bought or sold spring water, or in any

other way entered the market for spring water. Rather, the only

actions MVH complains of were the denials of variance and permit

applications and the town’s contemplated purchase of the Stone

Barn property. MVH’s argument that the Municipal Defendants’

alleged conspiracy with Barking Dog somehow transforms them into

commercial participants also fails. City of Columbia v. Omni

Outdoor Adver., 499 U.S. 365, 374 (1991) (reasoning that “[t]here

is no such conspiracy exception”); see also Fisichelli, 956 F.2d

at 14 (“[I]n applying the [state action] doctrine, the courts

should recognize no exception for conspiracy, bribery, or similar

activity.”) (citation and internal quotation marks omitted). 

Thus, the Municipal Defendants are entitled to state action

immunity from MVH’s antitrust claim.15

2. Barking Dog

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Just as state action is immune from federal antitrust law,

so too is the conduct of “private individuals seeking

anticompetitive action from the government.” See City of

Columbia, 499 U.S. at 379-280. This has become known as the

Noerr-Pennington doctrine. Here, MVH alleges that Barking Dog--a

private entity--engaged in precisely this type of conduct in its

attempts to influence local land use controls. Thus, in the

absence of an exception to the doctrine, the Noerr-Pennington

doctrine immunizes Barking Dog from MVH’s antitrust suit.

MVH argues that the “sham” exception to the Noerr-Pennington

doctrine applies. I disagree. The “sham” exception only applies

where “persons use governmental process--as opposed to the

outcome of that process--as an anticompetitive weapon.” City of

Columbia, 499 U.S. at 380. Specifically, the exception applies

only where defendants engage in activities not genuinely directed

at seeking desired government action. Id.

In this case, MVH does not allege that Barking Dog used

government process, such as instituting meritless proceedings, as

an anti-competitive weapon. In fact, it was MVH that instituted

the municipal proceedings at issue here. MVH instead complains

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16 To the extent that MVH’s complaint can be read to

advocate an additional exception to the Noerr-Pennington doctrine

based on an illicit conspiracy between Barking Dog and the

Municipal Defendants, its claim still fails. The Supreme Court

has explicitly refused to recognize a “conspiracy” exception to

the Noerr-Pennington doctrine that would apply where, as MVH

alleges here, private parties conspire with government entities

for the purpose of stifling competition. City of Columbia, 499

U.S at 382-83.

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merely that the outcome of the government process was improper. 

Thus, the “sham” exception to the Noerr-Pennington doctrine does

not apply, and MVH’s antitrust claim against Barking Dog fails.16

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IV. CONCLUSION

For the foregoing reasons, I grant defendants’ motions to

dismiss MVH’s federal claims for failure to state a claim upon

which relief can be granted. (Document Nos. 20, 21, 22). I also

decline to exercise supplemental jurisdiction over MVH’s state

law claims. MVH’s federal claims are dismissed with prejudice. 

Its state law claims are dismissed without prejudice.

SO ORDERED.

/s/Paul Barbadoro 

Paul Barbadoro

United States District Judge

December 19, 2006

cc: Douglas Macdonald, Esq.

Gregg Frame, Esq.

Charles Bauer, Esq.

Lisa Lee, Esq.

William Saturley, Esq.

Lawrence Edelman, Esq.

Mark Porada, Esq.

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