Morgenstern v. Town of Rye (New Hampshire Supreme Court)

After initially declining this case, the New Hampshire Supreme Court granted plaintiff’s motion for reconsideration and accepted an appeal in another regulatory takings challenge. Rye denied Morgenstern a permit to build a single family home on an approved lot in a single family residential subdivision. The Superior Court upheld the denial of the permit, relying in part on the self-created hardship theory described above. NELF filed an amicus brief arguing that the self-created hardship theory as espoused to date by the New Hampshire Court was not applicable and was, in any event, against public policy. In December of 2001 the Court remanded this case with instructions to the zoning board to reconsider Mr. Morgenstern's latest variance application in light of efforts to mitigate any wetlands impact. The Court avoided NELF's constitutional arguments regarding Morgenstern's rights as a post-regulation purchaser, but implied that it might consider an inverse condemnation claim well grounded if the Board were to deny the variance again.