Raynes v. City of Keene

Filing 11

///ORDER granting 4 defendant's motion to dismiss. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
John Raynes of North
Lincoln Street, LLC,
Plaintiff
v.

Case No. 11-cv-579-SM
Opinion No. 2012 DNH 096

City of Keene, New Hampshire,
Defendant
O R D E R
Plaintiff’s pro se complaint asserts two causes of action
against the City of Keene, New Hampshire.

In Count I, plaintiff

says the City inversely condemned property he owned on North
Lincoln Street and refuses to pay just compensation, all in
violation of his federal constitutional rights.

In Count II,

plaintiff says the City defrauded him in that it negligently or
intentionally made misrepresentations of fact upon which he
relied in selling the referenced property to the City.

The City moves to dismiss the complaint and plaintiff
objects.

While the facts pled in the complaint are somewhat sparse,
even construing them favorably to plaintiff, it is clear that
plaintiff actually sold the North Lincoln Street property to the
City.

The City did not exercise eminent domain power, it did not

encumber the property in any way, nor did it take the property
outside of eminent domain proceedings.

According to the

complaint, the City bought the property from plaintiff, and paid
the agreed upon price of $83,604.00.

But, says plaintiff, the City made a number of material
misrepresentations of fact, upon which he presumably relied in
deciding (he says he was “forced”) to sell.

For example, he

alleges that the City led him to believe that an access road
would be abandoned, thereby rendering his subdivided property
virtually worthless.

And, he claims the City fraudulently

represented that soil samples taken from the property suggested
contamination, when in fact the soil samples were taken from a
different site.

That is to say, plaintiff claims the sale was a

product of negligent or intentional misrepresentation and fraud.
Accordingly, he seeks damages measured by the difference between
what the City paid him and what he claims is the actual fair
market value of the property.

Discussion
The inverse condemnation count fails on several grounds, the
most prominent being:

1) a sale does not constitute a government

“taking” of property by condemnation, directly or inversely.

See

generally United States v. Clarke, 445 U.S. 253, 257 (1980) (“The

2

phrase ‘inverse condemnation’ appears to be one that was coined
simply as a shorthand description of the manner in which a
landowner recovers just compensation for a taking of his property
when condemnation proceedings have not been instituted.”); and 2)
plaintiff has not pled facts sufficient to satisfy the ripeness
requirements established in Williamson County Reg’l Planning
Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

Before a federal Takings Clause suit may be brought, a
plaintiff must plead (and eventually establish) that, among other
things, he “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, 473 U.S. at 186, 19495); see also Downing/Salt Pond Partners, L.P. v. Rhode Island,
643 F.3d 16 (1st Cir. 2011).

New Hampshire law provides an adequate process for obtaining
compensation with respect to inverse condemnation claims, and
resort to that process will likely yield just compensation for
regulatory takings that occur.

See Donna Boutin Real Estate, LLC

v. Town of Epping, 2010 WL 932774 (D.N.H. 2010) (citing Arcidi v.
Town of Rye, 150 N.H. 694, 698 (2004); and Rowe v. Town of North
Hampton, 131 N.H. 424, 430-33 (1989)).

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Because plaintiff does

not allege that he sought and was denied just compensation
through available state (inverse) condemnation procedures, or
that he is somehow excused from that obligation, his federal
claim is not “ripe” and must be dismissed.

Count II is essentially pled as a common law fraud-in-theinducement cause of action.

Because the federal claim is

dismissed, the court declines to exercise supplemental
jurisdiction over the remaining state law claim, which plaintiff
is free to pursue in state court.

See generally 28 U.S.C. §

1367; see also Camelio v. American Fed’n, 137 F.3d 666, 672 (1st
Cir. 1998).

Conclusion
Defendant’s motion to dismiss (document no. 4) is granted
for the reasons given in this order.

Counts I and II are

dismissed, but without prejudice.1

1

Parenthetically, the court notes that because
plaintiff’s complaint is somewhat ambiguous, it is unclear
whether he actually held title to the property at issue, or
whether it was owned by an limited liability company. If an LLC
owned the property, plaintiff would not ordinarily be permitted
to appear pro se on its behalf. See Local Rule 83.6 (“A
corporation, unincorporated association, or trust may not appear
in any action or proceeding pro se.”).
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SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
June 5, 2012
cc:

John Raynes, pro se
David P. Slawsky, Esq.
Thomas P. Mullins, Esq.

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