Town of Atkinson v. Michael Saviano

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0421, Town of Atkinson v. Michael
Saviano, the court on February 19, 2015, issued the following
order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The respondent, Michael Saviano, appeals an order of the Superior Court
(McHugh, J.) dismissing his constitutional claims brought against the petitioner,
the Town of Atkinson (Town), and imposing a statutory penalty of $50 per day for
each of the 1,375 days that he violated the zoning ordinance and awarding the
Town its reasonable attorney’s fees and costs. See RSA 676:17, I (Supp. 2014)
(providing that a person who violates a zoning ordinance “shall be subject to a
civil penalty of $275 for the first offense, and $550 for subsequent offenses, for
each day that such violation is found to continue after the conviction date or after
the date on which the violator receives written notice from the municipality that
the violator is in violation, whichever is earlier” and requiring that “[e]ach day
that a violation continues shall be a separate offense.”). We affirm.

On appeal, the respondent argues that the statutory penalty awarded in
this case was excessive. He also argues that res judicata does not bar his
substantive due process claim because, he asserts, when this court decided an
earlier appeal in which he raised or could have raised that claim, we did not
decide that claim “on its merits.” He contends that collateral estoppel does not
bar his claim because the issues in his zoning appeal case and in the Town’s
injunction action are different. He asserts that the Town is judicially estopped
from arguing res judicata because it opposed consolidating his zoning appeal and
the Town’s injunction action. Finally, he argues that he has been deprived of
procedural due process in this matter because, he asserts, his substantive due
process claim was not decided on the merits, and because he never received a
jury trial on it.

As the appealing party, the respondent has the burden of demonstrating
reversible error. See Gallo v. Traina, 166 N.H. ___, ___, 103 A.3d 1183, 1186
(2014). Based upon our review of the trial court’s narrative order, the
respondent’s challenges to it, the relevant law, and the record submitted on
appeal, we conclude that the respondent has not demonstrated reversible error.
See id. at ___, 103 A.3d at 1186.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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