2006-761, NH DEPARTMENT OF ENVIRONMENTAL SERVICES v. JOSEPH MARINO & a.

The respondents, Joseph and Rose Marino, appeal the

respondents. Harris and Rachel A. Hampe on the brief, and Mr. Harris orally), for the McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Scott H.

general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (K. Allen Brooks, assistant attorney

NEW HAMPSHIRE DEPARTMENT OF ENVIRONMENTAL SERVICES

editorial errors in order that corrections may be made before the opinion goes No. 2006-761 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Coos Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. 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 dishwasher, none of these fixtures are yet connected to an active water source. p. 2 three sink fixtures, two toilet fixtures, a shower stall, a washing machine and a DES approval. various plumbing fixtures, including a pressure tank with pipe connections,

construct their home. communications with DES, the respondents did not seek any State permits to requirements, the respondents had to seek a waiver from DES. Despite these the act prohibited any construction within fifty feet of the shoreline without septic design had to be obtained, and that because the lot did not meet setback twenty feet from the edge of Back Lake. Although the structure contains The home was completed in April 2005. It is located between fifteen and

respondents asked their builder to rush the project to completion. Pollution and Wetlands Acts. Immediately after being served with it, the penalties against the respondents for violating the Shoreland Protection, Water In January 2005, DES filed a petition for permanent injunction and civil

nonconforming lot of record, that their construction possibly violated the Shoreland Protection Act because the Shoreland Protection Act did not apply to their lot because it was a before a water supply could be connected to the structure, a state-approved there. Shortly thereafter, they received phone calls from DES informing them control measures.” In their letter in response, the respondents contended that DES sent the respondents a letter on November 8, 2004, confirming that Pittsburg. In October 2004, they began to construct a single-family home for a waiver to the setback requirements. until further notice” and requesting that they “submit all relevant information designer to design a septic system. The respondents were also advised to apply reiterating these points, advising them to cease construction “immediately, plastic holding tank, which they had purchased, but instead to hire a septic other things, DES advised the respondents not to install the 1000-gallon On November 2, 2004, the parties met to discuss these issues. Among

not to contact any of their contractors.

showing setbacks from the Back Lake reference line, and temporary erosion owned an approximately .13 acre lot with 150 feet of frontage on Back Lake in. . . regarding the project, including . . . your building plans, a site plan

B:6, I(c) (2001). At the end of October, DES sent a letter to the respondents the above issues were resolved, they should cease construction. See RSA 483that there was no septic system approval on file with the State and that until

See RSA 483-B:9, II(b) (Supp. 2006). They were also advised

The record supports the following: Since 1991, the respondents have

court imposed for their statutory violations. We affirm. 2006). Additionally, they appeal the civil penalties and injunctive relief the trial Dredge in Wetlands Act (Wetlands Act), see RSA ch. 482-A (2001 & Supp. civil penalty of $50,000 upon them.

the Water Pollution Act violations, the court fined the respondents $5,000. DES as to the proper size of the structure to be located on the property. For septic system that complied with the pertinent law and to submit to a review by because they did not violate the act, the trial court erred when it imposed a within fifty feet of Back Lake without authorization. They contend that claim and ruled that the respondents violated the act by building their home DES’ motion for partial summary judgment on DES’ Shoreland Protection Act The respondents first argue that the trial court erred when it granted

RSA 485-A:4 p. 3 3 (2001).

2006). The court also ordered the respondents to obtain DES approval for a represented $1,000 per day for each day of violation. See RSA 48 p. 3 3-B:18 (Supp. wastewater produced from their use of the home. Protection Act violations, the court imposed a civil penalty of $50,000, which and placed a holding tank on the lot to collect and contain sewage and banks of Back Lake.” See RSA 482-A:14, III (2001). For the Shoreland respondents had installed an artesian well and overflow drain on the property “after-the-fact authorization from . . . DES for any alterations made to the primary structure within fifty feet of Back Lake without DES authorization, imposed a civil penalty of $10,000 and ordered the respondents to apply for DES. See RSA 482-A:3, I; RSA 482-A:12 (2001). For these violations, the court and landscaping the property without obtaining a dredge and fill permit from that the respondents violated the Wetlands Act by installing an overflow drain Following a bench trial and a view of the property, the trial court ruled

motion for partial summary judgment in its entirety. its motion on its Wetlands Act claim. The court denied the respondents’ crossto DES on its Water Pollution and Shoreland Protection Act claims, but denied partial summary judgment. The trial court granted partial summary judgment RSA 48 p. 3 3-B:9, II(b), :10, I. The respondents objected and cross-moved for injunction. Before the preliminary injunction was granted, however, the see (amended 2006); and (3) the Shoreland Protection Act by constructing a without obtaining a dredge and fill permit from DES, see RSA 482-A:3, I (2001) see RSA 485-A:32, I (2001); (2) the Wetlands Act by installing an overflow drain building from which wastes will discharge before obtaining a permit from DES, that the respondents violated: (1) the Water Pollution Act by constructing a In September 2005, DES moved for partial summary judgment, arguing

In May 2005, the court granted the State’s petition for a preliminary

family home. But for the lack of water to the home, it would be a fully functioning single- p. 4 “functions statewide as an additional layer of regulation[,] which overlays chapter 48 p. 3 3-B].” RSA 483-B:6, II. In this way, the Shoreland Protection Act

obtain the necessary permits pursuant to other statutory schemes expressly requires “any person intending to” engage in certain activities to along the state’s shorelines.” RSA 483-B:1 (2001). RSA 483-B:6 (Supp. 2006) waters and preventing “uncoordinated, unplanned and piecemeal development

safety or welfare.” “Such conditions shall be related to the purposes of [RSA

its title suggests, aimed at protecting the state’s shoreland as well as its public

be advanced by the entire statutory scheme. listed in RSA 483-B:6, I, “to protect the public waters or the public health, authorizes DES to “grant, deny, or attach reasonable conditions” to the permits legislative power to the executive branch or because it is impermissibly vague. the development standards of [RSA chapter 483-B].” RSA 483-B:6, II unconstitutional because it constitutes an unconstitutional delegation of “demonstrate to the satisfaction of [DES] that the proposal meets or exceeds words that it did not see fit to include. and to

possible, construe that language according to its plain and ordinary meaning. The Shoreland Protection Act, of which RSA 483-B:10, I, is a part, is, as statute considered as a whole.

of the legislature’s intent in enacting them, and in light of the policy sought to The interpretation of a statute is a question of law, which we review DaimlerChrysler Corp., 153 N.H. at 666. Our goal is to apply statutes in light in the context of the overall statutory scheme and not in isolation. obtain this approval. Finally, they argue that RSA 483-B:10, I, is Id. Furthermore, we interpret statutes (2005). We will neither consider what the legislature might have said nor add subject to modification. Dalton Hydro v. Town of Dalton, 153 N.H. 75, 78 Id. When the language of a statute is clear on its face, its meaning is not

664, 666 (2006). We first look to the language of the statute itself, and, if

final arbiter of the intent of the legislature as expressed in the words of a Carlisle v. Frisbie Mem. Hosp., 152 N.H. 762, 773 (2005). This court is the

to build their home within fifty feet of Back Lake without DES authorization. We begin by analyzing whether RSA 483-B:10, I, allowed the respondents that they obtain DES approval, they cannot have violated the act by failing to They further contend that as there is no express requirement in RSA 483-B:10 application of the law to the facts de novo. Id. them to build their home within fifty feet of Back Lake without DES approval. of law. Stewart v. Bader, 154 N.H. 75, 87 (2006). We review the trial court’s issue of material fact, and the moving party is entitled to judgment as a matter favorable to the non-movant, our review of that evidence discloses no genuine the evidence and all inferences properly drawn therefrom in the light most We will affirm a trial court’s grant of summary judgment if, considering

Shoreland Protection Act is erroneous because RSA 483-B:10, I, permitted The respondents assert that the trial court’s ruling that they violated the constructed on a nonconforming undeveloped lot of record. p. 5 RSA 483-B:10, I, to require DES approval before a single-family home was use of the word “applicant” is further evidence that the legislature intended contingent upon conditions that DES may impose upon the construction. The

RSA 483-B:10, I, as these issues are not properly part of this appeal. threatened to impose upon them pursuant to the authority granted it under

nonconforming undeveloped lot of record, therefore, is not absolute, but is

respondents’ arguments regarding conditions that DES has since imposed or of Back Lake without obtaining DES approval. We do not address the undeveloped lot of record. The right to build a single-family home on a the respondents violated this provision by building their home within fifty feet conditions on any construction of a single-family home on a nonconforming RSA 483-B:10, I, we conclude that the trial court did not err when it ruled that authorization. The plain meaning of the provision allows DES to impose still accommodating the applicant’s rights.” Based upon our interpretation of owner, to determine how to “more nearly meet the intent of this chapter, while RSA 483-B:10, I, grants authority to DES, not the individual home

this chapter, while still accommodating the applicant’s rights.

the reference line ( structures be set back behind the primary building line, which is fifty feet from

build their home within fifty feet of the edge of Back Lake absent DES We disagree with the respondents that this provision allowed them to wildlife habitats, and to controlling development along the shoreland. public policies related to preserving shoreland and public waters, in addition to the opinion of the commissioner, more nearly meet the intent of provisions of this chapter. Conditions may be imposed which, in a single family residential dwelling on it, notwithstanding the successive owners of an individual undeveloped lot may construct Except when otherwise prohibited by law, present and

standards. Among other things, RSA 483-B:9: (1) requires that primary I, provides: RSA 483-B:10 pertains to nonconforming lots of record. RSA 483-B:10,

development standards of RSA chapter 483-B are intended to serve numerous See RSA 483-B:4, XVII (2001). RSA 483-B:2 (2001) explains that the minimum establishes specific requirements for septic systems and prevention of erosion. prohibits certain activities and substances within the shoreland; and (3)

RSA 483-B:9 (Supp. 2006) sets forth the minimum development

General, No. 04-0002 (Sept. 2, 2004). wetlands permits, and septic system approvals.” Opinion of the Attorney existing state and municipal permitting schemes, such as building permits, industries, freshwater and coastal wetlands, and public use of waters; (5) p. 6 archaeological and historical resources, commercial fishing and maritime

preventing and controlling water pollution; (4) protecting wildlife habitats,

assigned field of its activity.”

providing for the “wise utilization of water and related land resources”; (3) 483-B:2, they also include: (1) maintaining “safe and healthful conditions”; (2) negative impacts on the public waters of New Hampshire.” As described in RSA development along the state’s shorelines, which could result in significant

terms as to leave the agency with unguided and unrestricted discretion in the

benefit”; and (3) preventing “uncoordinated, unplanned and piecemeal controlling their use and that of adjacent shoreland “for the greatest public maintaining the “integrity of public waters”; (2) protecting public waters and Constitution. 483-B:1, these policies include: (1) protecting the state’s shoreland and delegate duties to an administrative agency if its commands are in such broad delegation of legislative authority in violation of Part I, Article 37 of the State definite to pass constitutional muster. As described by the legislature in RSA of the New Hampshire Constitution, the General Court may not create and reasonably definite policy and thus does not constitute an impermissible the policies underlying RSA chapter 483-B. These policies are sufficiently unlimited legislative authority to DES. “Under the separation of powers article The legislature has set forth, in detail, in RSA 483-B:1 and RSA 483-B:2,

483-B:1. must be consistent with the policies underlying RSA chapter 483-B. See RSA applicant’s rights.” The conditions imposed by the commissioner, therefore, that “more nearly meet the intent of this chapter, while still accommodating the RSA 483-B:10, I, permits the commissioner of DES to impose conditions

omitted). We hold that RSA 483-B:10, I, lays down such basic standards and a Article 37 of the State Constitution because it impermissibly delegates Union School District v. Comm’r of Labor, 103 N.H. 512, 516 (1961) (quotation standards and a reasonably definite policy for the administration of the law.” unlawfully delegated legislative power, [a] statute must lay down basic prescribed standard laid down by the legislature.” upon it alone, citing federal cases for guidance only. Id. “To avoid the charge of ruled unconstitutional statutes that are “devoid of either a declared policy or a 120 N.H. 856, 861 (1980) (quotation and ellipses omitted). Thus, we have not declare it invalid except upon inescapable grounds.”

The respondents first contend that RSA 483-B:10, I, violates Part I,

respondents argue only under the State Constitution, we base our decision

(2006). “In reviewing a statute, we presume it to be constitutional and we will

de novo. Gonya v. Comm’r, N.H. Ins. Dep’t, 153 N.H. 521, 524

unconstitutional. The constitutionality of a statute is a question of law, which We next address the respondents’ assertion that RSA 483-B:10, I, is p. 7 7

plain language of RSA 483-B:10, I, which permits DES to impose conditions building a home within fifty feet of the reference line of Back Lake, and the previously discussed, the plain language of RSA 483-B:9, which prohibits enforcement.” particular conduct was prohibited. See MacElman, 154 N.H. at 309. As or because it “authorizes or even encourages arbitrary and discriminatory provided the respondents with a reasonable opportunity to know that their intelligence a reasonable opportunity to understand what conduct it prohibits” applied to them. In an as-applied challenge, we examine whether the statute “economic development in proximity to waters.” The respondents assert that the statute was unconstitutionally vague as impermissibly vague. In re Justin D., 144 N.H. 450, 453-54 (1999). in the context of related statutes, prior decisions, or generally accepted usage.” contained in the statute itself, but rather, the statute in question may be read 154 N.H. 304, 30 p. 7 7 (2006). The specificity required by due process “need not be legislative power to DES. strong presumption favoring a statute’s constitutionality.” B:1 and RSA 483-B:2, it does not constitute an unlawful delegation of State v. MacElman, a statute as void for vagueness bears a heavy burden of proof in view of the

State v. Porelle, 149 N.H. 420, 423 (2003). “A party challenging

lot size and shoreland frontage. invalidate a statute either because it “fails to provide people of ordinary “the impacts of development in shoreland areas”; and (10) providing for See N.H. CONST. pt. I, art. 12. Vagueness may violates their state constitutional right to due process because it is The respondents’ final argument regarding RSA 483-B:10, I, is that it

forth in RSA 483-B:2. 483-B:9, as the legislature intended these standards to serve the policies set forth in RSA 483-B:9 and the reasonably definite policies set forth in RSA 483- Because RSA 483-B:10, I, impliedly incorporates the basic standards set

include requirements pertaining to erosion and siltation as well as minimum conditions. RSA 483-B:9, V(b). The minimum development standards also habitat, scenic beauty, and scientific study”; (9) anticipating and responding to leaching system must be set back from the shore depends upon certain soil estuaries and coastal waters in their natural state”; (8) promoting “wildlife Pursuant to the minimum development standards, how far back a new and “natural beauty and open spaces”; ( p. 7 7) preserving “the state’s lakes, rivers, line, which is fifty feet from the reference line. See RSA 483-B:9, II(b). other things, that primary structures be set back behind the primary building

much as possible, with the minimum development standards set forth in RSA The conditions imposed by the commissioner also must comport, as

conserving “shoreland cover and points of access to inland and coastal waters” controlling “building sites, placement of structures, and land uses”; (6) addition to the trial court’s view of the property, we uphold it. p. 8 supported it. As there is circumstantial evidence to support this finding, in

Cook v. Sullivan, 149 N.H. 774, 780 (2003). the credibility of witnesses, and determine the weight to be given evidence. See within the trial court’s discretion to resolve conflicts in the testimony, measure

fill on the banks of Back Lake was erroneous because no “direct evidence” The respondents contend that the trial court’s finding that they placed

Town of Barnstead, 139 N.H. 476, 479 (1995). the banks of Back Lake and installing an overflow drain from their well there. its sound discretion, particularly when a view has been taken.” Husnander v. respondents violated this act by failing to obtain a permit before placing fill on consonant with applicable law. Id. “[T]he findings of the trial court are within reasonably supports its findings, and then whether the court’s decision is inquiry is to determine whether the evidence presented to the trial court well as the application of law to fact, independently for plain error. Id. Our Research & Dev., 153 N.H. 446, 449 (2006). We review legal conclusions, as evidentiary support or are erroneous as a matter of law. Thompson v. C&C We will not disturb the findings of the trial court unless they lack

subject property. unlimited legislative authority to DES. See id. The trial court based its findings in part upon a view it took of the

without a permit from [DES].” RSA 482-A:3, I. The trial court found that the on any bank, flat, marsh, or swamp in and adjacent to any waters of the state “No person shall excavate, remove, fill, dredge or construct any structures in or they violated the Wetlands Act. The Wetlands Act provides, in pertinent part: The respondents next argue that the trial court erred when it found that

obtaining DES approval to do so. Accordingly, we conclude that RSA 483-B:10, single-family home within fifty feet of the edge of Back Lake without first challenge and their contention that the statute impermissibly delegates respondents’ facial challenge fails for the same reasons as their as-applied the vagueness claim must be evaluated as the statute is applied”). The Amendment freedoms are not infringed by the [criminal statute at issue], . . . Chapman v. United States, 500 U.S. 453, 467 (1991) (because “First challenge the statute facially. See MacElman, 154 N.H. at 307. But cf. vague on its face. We will assume, without deciding, that the respondents may The respondents also appear to argue that the statute was impermissibly

undeveloped lot, put the respondents on notice that they could not build a upon a lot owner’s construction of a single-family home on a nonconforming p. 9 9 appeal that were not presented in the lower court.”

and we see no plain error. See Sup. Ct. R. 16-A. claims under the plain error rule as the respondents do not invoke this rule raised their issues before the trial forum. Id. We also decline to consider these appealing parties, the respondents bear the burden of demonstrating that they fill[ing],” or “dredg[ing]” as those terms are used in the Wetlands Act. Jones Roofing Co., 151 N.H. 3 p. 9 91, 393 (2004) (quotation omitted). As the respondents was not unlawful. conclusions and to correct errors in the first instance.” trench and refilling it after it is dug constitutes “excavat[ing], remov[ing], Tiberghein v. B.R. hold that the trial court’s imposition of a civil penalty of $10,000 upon the time, because trial forums should have a full opportunity to come to sound Wetlands Act. RSA 482-A:3, I. We hold, as a matter of law, that digging a remov[ing], fill[ing],” or “dredg[ing]” damaged the wetlands. Accordingly, we A (plain error rule). “We require issues to be raised at the earliest possible court to find that a person’s failure to obtain a permit before “excavat[ing], Brooks, 154 N.H. 252, 258 (2006) (quotation omitted). But see Sup. Ct. R. 16-

“This court has consistently held that we will not consider issues raised on argued this assertion to the trial court and, thus, preserved it for our review. Article 18 of the State Constitution as they have failed to demonstrate that they contravened the Eighth Amendment to the Federal Constitution and Part I, We decline to address the respondents’ assertion that this civil penalty

permit from DES. RSA 482-A:3, I. “excavat[ing], remov[ing], fill[ing], [or] dredg[ing]” as those terms are used in the

violation.” Nothing in RSA 482-A:3, I, or RSA 482-A:14, III requires the trial violation. Each day of a continuing violation shall constitute a separate violates this chapter . . . a civil penalty in an amount not to exceed $10,000 per provides, in pertinent part, that the court may “levy upon any person who evidence that their conduct negatively affected the wetlands. RSA 482-A:14, III civil penalty of $10,000 upon them under the Wetlands Act absent any The respondents next argue that the trial court erred when it imposed a

“excavat[ing], remov[ing], fill[ing],” or “dredg[ing]” without first obtaining a Once they knew that one was needed, the Wetlands Act prohibited them from was dug. They contend, however, that none of this work constituted or after the well was dug that they needed an overflow drain is immaterial. also did not dispute that they refilled the trench for the overflow drain after it violated the act by failing to obtain one. Whether the respondents knew before trench that was approximately two feet wide and four feet deep. At trial, they anticipated a need for a permit and should not have been found to have needed an overflow drain when the well was first dug, they could not have The respondents also assert that because they did not know that they

artesian well installed into the bank of Back Lake, which required digging a The respondents concede that they had an overflow drain for their p. 10 10 natural person. to construct a building from which waste would discharge. them because they violated RSA 485-A:32, I, by failing to obtain prior approval connection with an application under the act. The trial court, however, fined

pursuant to this subdivision shall be guilty of a misdemeanor if a

they never disobeyed a DES order or made any misstatement of material fact in

BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred. person is personally responsible.”

them for violating the Water Pollution Act. I, :43. The trial court, therefore, did not err by imposing a $5,000 fine upon

misstatement of material fact for which said person is personally any order of [DES] . . . , or who shall knowingly make any The respondents contend that no fine should have been levied because

“for such violation, failure, neglect, refusal or any misstatement for which said approval to construct a building from which waste would discharge. RSA 485-A:43, III permits the trial court to levy a fine of not more than $5,000

subdivision or who shall knowingly fail, neglect or refuse to obey Any person who shall violate any of the provisions of this

485-A:32, I, :43. RSA 485-A:43, I, provides:

them $5,000 under the Water Pollution Act for their failure to obtain prior Finally, the respondents contend that the trial court erred when it fined