2005-014, BLAGBROUGH FAMILY REALTY TRUST v. TOWN OF WILTON

property owned by the intervenor, A & T Forest Products, Inc., abutting the

In 2002, the town’s planning board approved a two-lot subdivision of

zoning ordinance. We affirm. Town of Wilton (town), was not precluded by State law from amending its appeals a decision of the Superior Court (Groff, J.) that the defendant, the BRODERICK, C.J. The plaintiff, the Blagbrough Family Realty Trust,

Products, Inc. E. Michael on the brief, and Mr. Michael orally), for the intervenor, A & T Forest Wiggin & Nourie, P.A., of Manchester (Patricia M. Panciocco and Gregory

brief and orally), for the defendant. Fernald, Taft, Falby & Little, P.A., of Peterborough (Silas Little on the

Mark S. Derby on the brief, and Mr. Pribis orally), for the plaintiff. Errors may be reported by E-mail at the following address: Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis and

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2005-014 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Hillsborough-southern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as does not preempt it.

p. 2 amended does not conflict with a State statute or regulation and that State law

“structure.” On remand, the superior court determined that the ordinance as zoning ordinance to exempt driveways and culverts from the definition of roads and culverts in the wetlands setback. determine whether the town was precluded by State law from amending its

initially constructed pursuant to a logging permit that forbade retention of the affirmed by order the superior court’s decision, but remanded the case to consider the argument that the driveway, culverts and outfall pipes were ordinance were not preempted by State law; and (2) when it declined to

act is preempted by state law or policy.”

the ordinance in effect at that time. The plaintiff appealed to this court and we decision” rule applied, thereby mandating that the case be decided according to the meaning of the town’s ordinance and that the amendments to the “structure.” The superior court denied the appeal, ruling that the “time of

and construction – whether local authority to regulate under a zoning enabling

board’s approval of the subdivision.

ruled that the driveway, culverts and outfall pipes were not “structures” within zoning ordinance to specifically exclude culverts from the definition of Bethlehem, 150 N.H. 606, 611 (2004) (quotation and ellipsis omitted). “State

“The state preemption issue is essentially one of statutory interpretation

driveway nor a culvert is considered a structure” and upheld the planning

On appeal, the plaintiff argues that the trial court erred: (1) when it Subsequent to the appeal but before the case was heard, the town amended its

pursuant to the “spirit and intent of the Wilton Zoning Ordinance, neither a ordinance, had never treated culverts as structures. The ZBA determined that presented stating that the board, as the enforcement agency for the zoning

The plaintiff appealed the ZBA’s decision to the superior court. land for a period of time in excess of thirty (30) days.” imply that it will remain in position indefinitely or which in fact remains on the combination of materials upon the land which is made in such a manner as to

floodplain or any wetland. perennial streams or less than 150 feet from intermittent streams, the 100 year that no structure could be located less than 200 feet from open water and a wetland. At the ZBA hearing, a letter from the town’s board of selectmen was structures, i.e., the culverts, in the driveway within the protected setback from arguing that the approval was illegal because it permitted the installation of The plaintiff appealed to the town’s zoning board of adjustment (ZBA),

structure was defined as “[a]ny construction, erection, assemblage or other

culverts. At the time of the approval, the town’s zoning ordinance provided plaintiff’s property. The subdivision provided for a shared driveway with two the public health and the waters of the State. p. 3 regulation that frustrates the legislative intent of RSA chapter 482-A to protect

shore. periodical flooding by fresh water including the surrounding such surface waters, and to any swamp or bog subject to

Env-Wt 101.87. Otherwise, the plaintiff contends, the town will have enacted a

water, including the portion of any bank or shore which borders breakwater, post, pile, building, bridge, culvert, and wall.” RSA 482-A:2, IX; XIV (2001). “Structure” is defined as including but not limited to “fence, dock, explicitly in RSA 482-A:2, IX and New Hampshire Code of Administrative Rules,

building, structure, feed lot, outflow from building drainage, septic system or

waters of the state as defined in RSA 485-A:2 which contain fresh

water courses, and other bodies of water, natural or artificial.” RSA 485-A:2, proposed culverts within its definition of “structure” just as the State did wetlands of the State, the preemption doctrine requires the town to include the 3 comprehensively regulates development in and adjacent to the waters and

The town’s amended zoning ordinance provides that “[n]o residence,

see also N.H. Admin. Rules, Env-Wt 101.87.

waters . . . [RSA chapter 482-A] shall apply . . . to all surface

state, including all streams, lakes, or ponds bordering on the state, marshes, 482-A applies is defined as follows: seasonal streams, lakes, ponds, and tidal waters within the jurisdiction of the RSA 482-A:4, II. “Surface waters of the state” are defined as “perennial and A (2001 & Supp. 2005). According to the plaintiff, because RSA chapter 482-A

Wherever fresh water flows or stands and in all areas above tidal

saturated soil conditions.” The waters and adjacent areas to which chapter sufficient to support . . . a prevalence of vegetation typically adapted for life in saturated by surface water or groundwater at a frequency and duration less protective than the definition of “structure” contained in RSA chapter 482- “Wetlands” is defined in RSA 482-A:2, X as “an area that is inundated or preempted by State law because it created a definition of “structure” that is

The plaintiff argues that the town’s amendment to its zoning ordinance is

Id. the legislature as expressed in the words of a statute considered as a whole.” 814, 817 (2004) (quotation omitted). “We are the final arbiter of the intent of regulatory scheme.” Town of Lyndeborough v. Boisvert Properties, 150 N.H. preempt a field when the legislature enacts a comprehensive, detailed local ordinance “frustrates the statute’s purpose.” Id. “We infer an intent to regulation permits that which a State statute prohibits or vice versa” or when a local regulation.” Id. “A conflict exists when a municipal ordinance or law preempts local law . . . when there is an actual conflict between State and from despoliation and unregulated alteration, p. 4 RSA chapter 482-A to protect and preserve submerged lands and wetlands

Finally, the court stated that the ordinance does not frustrate the purpose of

State’s purpose in regulating wetlands. does not conflict with the State’s jurisdiction over wetlands or interfere with the

pervasive or comprehensive that it would preclude municipal regulation.” There is no language in the statute to this effect and the state scheme is not so preempted local regulation wetland. The court found “no indication that RSA 482-A is to be exclusive.

town’s zoning ordinance. Accordingly, local regulation within the setback area

in the superior court’s ruling. Assuming, without deciding, that the State has contemplate an application process for, and regulation of, projects “within 100 chapter 482-A, which regulates the construction of a structure within a the setback area because administrative rules under RSA chapter 482-A We also disagree with the plaintiff’s argument that the State regulates in wetland.”

“adjacent” in regards to wetlands to include the setback areas covered by the regulation. We disagree with the plaintiff that the State has defined the term ordinances to further wetland protection in areas outside the State’s

stated, RSA chapter 482-A Having reviewed the applicable statutes and regulations, we find no error applied without conflict because they regulate two different areas. As the court the construction of a structure within a setback, does not conflict with RSA

submerged lands or wetlands, but is only applicable to a setback from a ordinance’s definition of ‘structure’ does not interfere with the regulation of not be permitted to build a culvert in a wetland. site plan.” see RSA 482-A:1, because “[t]he

“structure,” concluding that the town’s ordinance and the State statute may be In addition, the superior court found that the ordinance, which regulates

construct a culvert within a setback from state waters, but would drainage measures approved by the Planning Board as part of a subdivision or be applied harmoniously. A person would be permitted to within a setback from such wetlands. These two definitions may the Town ordinance regulates the construction of a structure from intermittent streams, the hundred year flood plain . . . or any wetland.” regulates the construction of a structure in a wetlands area while

The superior court found no conflict between the two definitions of

Id. § 3.1.31 (2003).

defined to exclude “driveways, fences, stonewalls, mailboxes, culverts, and Wilton, N.H. Zoning Ordinance § 14.3.3 (2003). “Structure” is then further

open water and perennial streams nor less than one hundred fifty (150) feet its containment area shall be located less than two hundred (200) feet from court or its appeal to this court.

p. 5 appeal to the ZBA, its motion to reconsider, its first appeal to the superior

specify additional grounds. regarding the logging permit. This issue was never raised in the plaintiff’s unless the court for good cause shown shall allow the appellant to otherwise. shall be urged, relied on, or given any consideration by a court grounds in a later appeal unless the court for good cause shown orders 5 with respect to the ZBA’s decision on the merits, the party may not raise those

appeal.” that the court may have the benefit of the board’s judgment in hearing the have the first opportunity to pass upon any alleged errors in its decisions so DALIANIS, DUGGAN and GALWAY, JJ., concurred.

ordinance and the State’s statutes and regulations. Affirmed. defined by the town, and thus there is no conflict between the town’s zoning hold that the State has not extended jurisdiction into the setback area as court did not err in refusing to consider it. unlawful. In its memoranda, the plaintiff raised, for the first time, the issue See id. Because this issue was not properly raised, the superior remanded: whether the town’s amendment to its zoning ordinance was shall have been made, no ground not set forth in the application parties filed memoranda with the superior court addressing the single issue omitted). If a timely motion for rehearing fails to set forth all alleged errors

Dziama v. City of Portsmouth, 140 N.H. 542, 544 (1995) (quotation

“The statutory scheme is based upon the principle that the local board should

regulate any lands outside the immediate area of wetlands. Consequently, we

made application for rehearing . . . and, when such application roads and culverts in the setback area. Following remand from this court, the adjustment . . . shall be taken unless the appellant shall have [n]o appeal from any order or decision of the zoning board of

RSA 677:3, I (1996) provides that

regulations cited by the plaintiff does the State indicate that it intends to

initially constructed pursuant to a logging permit that forbade retention of the consider its argument that the driveway, culverts and outfall pipes were The plaintiff next argues that the superior court erred in declining to

of tidal flow.” Other than for coastal waters, nowhere in the statutes or & Supp. 2005) for coastal waters as “a line defining the furthest landward limit The term “highest observable tide line” is defined in RSA 483-B:4, XVII(c) (2001 feet of the highest observable tide line.” N.H. Admin. Rules, Env-Wt 303.04(b).