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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Carroll No. 2009-023 THE HILL-GRANT LIVING TRUST v. KEARSARGE LIGHTING PRECINCT Argued: September 24, 2009 Opinion Issued: December 16, 2009 Cooper Cargill Chant, P.A., of North Conway (Randall F. Cooper on the brief and orally), for the plaintiff. Boynton, Waldron, Doleac, Woodman & Scott, P.A., of Portsmouth (William G. Scott and Leslie M. Leonard on the brief, and Mr. Scott orally), for the defendant. HICKS, J. The plaintiff, Hill-Grant Living Trust, appeals an order of the Superior Court (Houran, J.) granting summary judgment to the defendant, Kearsarge Lighting Precinct, and denying its cross-motion for summary judgment, on the ground that the plaintiff's regulatory taking claim is premature. We affirm. The trial court's order recited the following facts. Kearsarge Lighting Precinct is a village district that has the authority to promulgate zoning

regulations. It enacted a zoning ordinance that prohibits the building of any structure more than 900 feet above sea level. The plaintiff owns a thirty-acre parcel in Bartlett. The property lies within the district and almost all of it lies more than 900 feet above sea level. The plaintiff sought a building permit to build a house at an elevation above the 900-foot limit. Following denial of the application by the precinct's commissioners, the plaintiff appealed to the precinct's zoning board of adjustment (ZBA) requesting a variance. The ZBA denied the request and the plaintiff did not appeal that decision. Instead, the plaintiff commenced the instant action alleging inverse condemnation by regulatory taking. The plaintiff sought just compensation under the State Constitution and damages under 42 U.S.C.

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New Hampshire Law