UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Donna Boutin Real

Estate, LLC, et al.

v. Case No. 08-cv-291-PB

Opinion No. 2010 DNH 045

Town of Epping, et al.

O R D E R

Donna Boutin Real Estate, LLC and Boutin Food Service

Enterprises, Inc. (collectively “the Boutin Companies”) have sued

the Town of Epping, New Hampshire and its former Code Enforcement

Officer, Kevin Kelley. The defendants have moved for summary

judgment. 

FACTS1

The Boutin Companies own and operate the Pondside Motel in

Epping, New Hampshire. Kelley conducted several inspections of

the motel in February and March of 2005. During the inspections,

 Plaintiffs did not supply their own statement of material 1

facts, nor did they oppose the defendants’ statement of facts. 

Accordingly, defendants’ statement of material facts shall be

deemed admitted. See L.R. 7.2(b)(2) (“[a]ll properly supported

material facts set forth in the moving party’s factual statement

shall be deemed admitted unless properly opposed by the adverse

party.”).

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Kelley identified what he claimed were numerous potential code

violations. He directed Boutin to retain several consultants to

make a more detailed inspection of the property, identify

potential code violations, and propose a plan to remedy the

violations.

On June 8, 2006, Kelley sent the Boutin Companies a letter

identifying multiple alleged code violations. The letter also

stated that a cease and desist order barring further use of the

site would issue on June 30, 2006 if the code violations were not

corrected. Several extensions were later granted and an

independent company was brought in to inspect the property. By

March 1, 2007, the parties had agreed that any remaining

violations had been addressed to the Town’s satisfaction.

ANALYSIS

The Boutin Companies argue that their constitutional rights

have been violated, but they do not identify the alleged

constitutional violation with any precision. Viewing plaintiffs’

complaint generously, I understand them to assert a regulatory

taking claim. I reach this conclusion because plaintiffs’

complaint is focused on their claim that defendants deprived them

of “the full use and enjoyment of their property.” (Compl., Doc.

2

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No. 1-2, at 6.) Although plaintiffs do not explain the basis for

this charge, I understand them to assert that Kelley’s 

requirement that they retain consultants to identify and propose

remedies for any code violations, coupled with his threat to shut

down the motel, amounted to a regulatory taking.2

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’)”; and (2) “the plaintiff sought

(and was denied) just compensation by means of an adequate state

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

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

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

U.S. 172, 186, 194-95 (1985)). In this case, plaintiffs’ takings

claim fails because they have failed to satisfy the state action

requirement. 

 Plaintiffs allege in their complaint that defendants 2

ordered them to vacate two units in the motel. (Compl., Doc. No.

1-2, ¶¶ 17, 1, 19.) They also allege that Kelley refused to

grant requests for permits while the dispute was pending. (Id.

at 38.) The summary judgment briefs do not address these

assertions. Thus, I decline to consider them in my analysis.

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 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 state

procedures. Id. at 92 (quoting Gilbert v. City of Cambridge, 932

F.2d 51, 63 (1st Cir. 1991)). New Hampshire state courts allow

recovery through inverse condemnation proceedings for 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

Hampshire regulatory takings proceedings). 

Plaintiffs have not alleged that they sought and were denied

just compensation through available state inverse and

condemnation procedures, nor have they demonstrated that they are

not subject to this requirement. Accordingly, I determine that

they are not entitled to maintain their federal regulatory taking

claim in federal court. 

Defendants assume that plaintiffs are attempting to assert

either a procedural due process claim or a substantive due

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process claim. I cannot see how this is so given the fact that

plaintiffs make no mention of their right to “due process” in

either their complaint or in their objection to defendants’

motion for summary judgment. In any event, I agree with the

defendants that the facts will not support either type of due

process claim. A procedural due process claim could not possibly

succeed because plaintiffs fail to allege that they were denied a

reasonable opportunity to challenge Kelley’s allegedly illegal

orders. See SFW Arecibo, Ltd. v. Rodriguez, 415 F.3d 135, 140

(1st Cir. 2005) (availability of post-deprivation remedies

precludes procedural due process claim). A substantive due

process claim would also fail because the facts do not suggest

the kind of conscience-shocking conduct that is ordinarily

necessary to support such a claim. See J.R. v. Gloria, 593 F.3d

73, 79-80 (1st Cir. 2010).

CONCLUSION

Defendants are entitled to summary judgment to the extent

that plaintiffs assert procedural due process or substantive due

process claims that are distinct from their regulatory taking

claim. 

Plaintiffs are not entitled to maintain a regulatory taking

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claim in federal court without first exhausting available state

inverse condemnation procedures. Because Plaintiffs assert no

other viable federal claims, the case is remanded to state court. 

SO ORDERED.

/s/Paul Barbadoro 

Paul Barbadoro

United States District Judge

March 11, 2010

cc: Daniel J. Mullen, Esq.

Robert J. Walsh, Esq.

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