2006-577, MARIANNA CAYTEN & a. v. NH DEPARTMENT OF ENVIRONMENTAL SERVICES & a.

No. 2006-577 Carroll

Nixon Peabody LLP

Lake Realty Trust.

, of Concord (Bradford W. Kuster, of Laconia (Regina A. Nadeau

Kelly A. Ayotte

Lanagan on the brief), for Squam Lakes Association, as amicus curiae.

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 brief and orally), for intervenor Laurie J. Hall, Trustee of the Cambi Squam Normandin, Cheney & O’Neil, PLLC on the

Department of Environmental Services. attorney general, on the brief and orally), for respondent New Hampshire

brief and orally), for the petitioners. to press. Errors may be reported by E-mail at the following address: Conservation Law Foundation on the

NEW HAMPSHIRE DEPARTMENT OF ENVIRONMENTAL SERVICES & a.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as excavate 1064 [square feet] along 23 linear [feet] of shoreline to p. 2 dredge 45 [cubic yards] from 600 [square feet] of lakebed and

Bureau has reviewed and approved [Cambi’s] application to . . .

The Department of Environmental Services (DES) Wetlands

explaining:

In April 2003, the bureau granted Cambi a dredge and fill permit,

square feet. result was an overall increase in impacts on protected wetlands to 1,156

(4) adding 400 square feet of temporary impacts during construction. The net

amount of bank excavation to 156 square feet (twenty-three cubic yards); and lakebed dredging to 600 square feet (forty-five cubic yards); (3) decreasing the the bank of the lake rather than over the lake; (2) increasing the amount of

location of the boathouse so that it was located in an upland area landward of

submitted revised project specifications that included: (1) changing the

In response to the bureau’s request for more information, Cambi

inlet dredged into the shoreline as opposed to one located in or over the water.

918-square-foot dug-in boathouse. A dug-in boathouse is one located over an

excavation were part of a larger project, which included the construction of a rap, for a total impact of 640 square feet. The proposed dredging and square feet (thirty-six cubic yards) of bank, and install ninety square feet of rip-

dredge 310 square feet (twenty-three cubic yards) of lakebed, excavate 240

chapter 482-A and RSA 485-A:17 (2001). In its application, Cambi proposed to standard dredge and fill application with the wetlands bureau pursuant to RSA along the shore of Squam Lake in Bean Cove. In August 2002, Cambi filed a

The following facts are not in dispute. Cambi owns a parcel of real estate

reverse and remand.

appeals the trial court’s denial of its motion to strike certain parties. We

Court (O’Neill Cambi Squam Lake Realty Trust (Cambi), appeals a decision of the Superior

excavate a portion of the bank, and construct a dug-in boathouse. Cambi also permit would allow Cambi to dredge a portion of the Squam Lake lakebed, Environmental Services (DES) to issue a dredge and fill permit to Cambi. That

dug-in boathouse. Specifically, intervenor Laurie J. Hall, as trustee of the

bureau (wetlands bureau or bureau) of the New Hampshire Department of

challenge to the issuance of a dredge and fill permit for the construction of a RSA chapter 483-B (2001 & Supp. 2006), in the context of an abutter’s (2001 & Supp. 2006), and the Comprehensive Shoreland Protection Act (CSPA),

Council (wetlands council or council) to affirm the decision of the wetlands

, J.) overturning a decision of the New Hampshire Wetlands

relationship between New Hampshire’s wetlands statute, RSA chapter 482-A BRODERICK, C.J. In this case, we are called upon to delineate the p. 3 Caytens prevailed on the merits. Specifically, the trial court ruled that “the superior court pursuant to RSA 482-A:10, I, VIII. In the superior court, the

owners on Squam Lake within ¼ mile of the proposed project” petitioned the

Marianna L. and C. Gene Cayten, et al[.],” the Caytens and “other property motion for reconsideration. Then, in an action captioned “In re: Appeal of for Cambi’s boathouse. The council denied the appeal as well as the Caytens’

appeal with the wetlands council, asking it to rescind the dredge and fill permit

approximately forty “supporting individuals,” the Caytens filed a petition of Subsequently, and purportedly on behalf of themselves and

boathouse over a dredged inlet.”

402.09(b) [currently Rule 402.08(b)] relative to allowing the construction of a satisfied the requirements of [New Hampshire Administrative] Rule[s], [Env-]Wt approval. Among other things, the bureau ruled that “[t]he Applicant has

issue of inadequate notice to other alleged abutters. The bureau affirmed its

issuance of Cambi’s permit. The motion for reconsideration did not raise the

Cayten, who are abutting property owners, asked the bureau to reconsider its After the bureau approved Cambi’s application, Marianna and Gene

shall be in accordance with the Comprehensive Shoreland Protection Act, RSA In addition, as a condition of approval, the bureau required that “[a]ll activity

project.

Application Evaluation, has been considered in the design of the factor listed in [Rule Env-]Wt 302.04(a), Requirements for 4. The applicant has demonstrated by plan and example that each

[Rule Env-]Wt 302.03.

areas and environments under the department’s jurisdiction per this proposal is the alternative with the least adverse impact to 3. The applicant has provided evidence which demonstrates that

302.01. the applicant per [New Hampshire Administrative Rules, Env-]Wt 2. The need for the proposed impacts has been demonstrated by

bureau found, among other things: 140 square feet of storage/entry space. In its decision granting approval, the excavation; (2) 768 square feet for the footprint of the boathouse itself; and (3)

The 1,064 square feet of excavation includes: (1) 156 square feet of bank

edges of the dredged inlet . . . . boathouse, [and] install 30 linear [feet] of rip-rap to stabilize the

[square feet of] storage/entry space on the southeast corner of the construct a 1 slip 24 [foot] x 32 [foot] dug-in boathouse with 140 project. Among other relief, the Caytens asked that “[t]he permit proceedings p. 4 to all owners of waterfront property within a quarter mile of the proposed

statutory and regulatory notice requirements because it failed to provide notice

Abutters in Interest,” in which they claimed that Cambi had failed to satisfy filed a pleading titled “Appellants[’] Motion Challenging Lack of Proper Notice to individuals from the appeal and denied the motions to intervene, the Caytens

After the council granted Cambi’s motion to dismiss the supporting

reconsideration. outcome of [the] appeal.” None of the disputed petitioners moved for

“demonstrat[ing] how [his or her] rights might be directly affected by the

the disputed petitioners had failed to carry his or her burden of moved to intervene. The council denied those motions, explaining that each of individuals moved for reconsideration. Subsequently, the disputed petitioners

appellants in this appeal.” Neither the Caytens nor any of the supporting

that “Marianna and Gene Cayten are the only persons to be considered

requirements [of RSA 482-A:10, I, II and III].” Accordingly, the council ruled as appellants in this appeal, nor have they abided by the procedural listed as ‘supporting individuals’ do not have proper standing to be considered

motion to dismiss the supporting individuals, explaining that “[t]he persons

grant the permit. Over the Caytens’ objection, the council granted Cambi’s because they did not file with the bureau a motion to reconsider its decision to “aggrieved parties”; and (2) were not entitled to file an appeal with the council

(1) lacked standing because they were not abutters and, therefore, were not

filing an appeal. Specifically, Cambi argued that the supporting individuals: lack of standing and for failure to abide by the procedural requirements for to dismiss all the supporting individuals, including the disputed petitioners, for

While the Caytens’ appeal was pending before the council, Cambi moved

wetlands council. receive notice. However, the issue of notice was not raised in the petition to the approval, the disputed petitioners were not listed as abutters and did not

had listed as abutters and who had received notice of Cambi’s application and

However, only the Caytens signed the petition. Unlike the Caytens, who Cambi in and around the subject property of the proposed dug-in boathouse.” the supporting individuals as “lakefront owners in and around Bean Cove and

and Linda Hartrick (collectively “disputed petitioners”). The petition identified

Dr. Happy Craven Fernandez, Thomas S. and Cynthia S. Stewart, and Donald referred to a list of supporting individuals that includes Rev. Richard R. and following individuals, hereby appeal . . . .” The term “following individuals”

The petition of appeal to the wetlands council began by stating: “We, the

We now turn to the facts concerning the proper parties to this action.

in the plans for the . . . Cambi propert[y].”

laid out in the wetlands permitting regulations, to the upland areas indicated Bureau and the Council are required as a matter of law to apply the standards p. 5 482-A:10, XI, which provides:

The trial court’s review of wetlands council decisions is governed by RSA

failed to provide adequate notice to other abutters. the trial court’s decision not to strike the claim that Cambi and the bureau disputed petitioners to be parties. However, neither Cambi nor DES challenges

on the merits, and Cambi also challenges the trial court’s decision allowing the

On appeal, both Cambi and DES challenge the superior court’s decision

issue merits a further hearing on the merits.”

Cambi’s motion to strike the claim regarding notice, ruling “that the ‘notice’

petitioners, relying upon RSA 482-A:10, XII. The trial court also denied

to all abutters. The trial court denied Cambi’s motion to strike the disputed including the claim that Cambi and the bureau failed to provide proper notice disputed petitioners as parties to the appeal; and (2) two counts of the petition,

While the superior court appeal was pending, Cambi moved to strike: (1) the

standing to intervene, which is appealed below. for notice purposes, found by the Wetlands Council not to have

Lake within ¼ mile of the proposed project, defined as “abutters”

WtC. The Appellants also include other property owners on Squam 2003 the appeal to the Wetlands Council docketed as No. 03-08 participated in the permit proceedings below, and filed on June 24,

The Appellants Marianna L. and C. Gene Cayten, et al.,

Jurisdiction” further explains: C. Gene Cayten, et al.” The section of the petition titled “Parties and caption of the appeal, the appealing parties are identified as “Marianna L. and

abutters as required by the wetlands statute and applicable rules. In the

thus precluded from raising it on appeal to the council. See issue in their request for reconsideration before the wetlands bureau, and were

things, that Cambi and the bureau failed to provide proper notice to all In their appeal to the superior court, the petitioners argued, among other

The council denied the motion on grounds that the Caytens failed to raise the

order.

in a preliminary ruling. The Caytens requested a decision by the full council. regulations promulgated thereunder.” The Caytens’ motion was initially denied participate in the permitting process as required by RSA 482-A and the

The Caytens did not request reconsideration of the council’s decision and

proposed project [and that] [a]ll abutters be provided the opportunity to be re-opened by providing notice to all abutters of the permit application and may require.

p. 6 court may order such persons to be joined as parties as justice

outcome of the appeal may appear and become a party, or the XII. Any person whose rights may be directly affected by the

. . . .

appellant to specify additional grounds. the court unless the court for good cause shown shall allow the

application for reconsideration shall be given any consideration by

issuance of such decision. . . . No ground not set forth in the where the land in question is located by petition within 30 days of reconsideration may appeal to the superior court for the county

VIII. Any person aggrieved by a decision of the council after

. . . .

RSA 482-A:8 and RSA 482-A:9.

and any person required to be noticed by mail in accordance with

under this section shall include without limitation, the applicant the superior court as provided in this section. A person aggrieved department, and then may appeal to the wetlands council and to

under RSA 482-A:3 . . . may apply for reconsideration by the

I. Any person aggrieved by a decision made by the department

wetlands bureau provide, in pertinent part:

The statutory provisions governing appeals from decisions of the

by the evidence or legally erroneous. Greenland Conservation Comm’n v. N.H. We, in turn, will not disturb the trial court’s decision unless it is unsupported

A:10, XII in a manner that contradicts RSA 482-A:10, VIII. the evidence before it, that said decision is unjust or unreasonable. Cambi, the trial court committed legal error because it construed RSA 482motion to strike the disputed petitioners as parties to this action. According to

errors of law, unless the court is persuaded, by a preponderance of council’s decision shall not be set aside or vacated, except for We begin with Cambi’s challenge to the trial court’s decision to deny its show that the decision is unlawful or unreasonable. . . . The

Wetlands Council, 154 N.H. 529, 533 (2006).

upon the party seeking to set aside the decision of the council to On appeal to the superior court, the burden of proof shall be p. 7 Interpretation of a statute is a question of law, which we review de

N.H. Admin. Rules

proposed project.

move for reconsideration.

land located more than one-quarter mile from the limits of the as abutters. The term does not include the owner of a parcel of contiguous properties, owners of those properties are considered

been decided against them in a wetlands council decision of which they did not rights may be directly affected by the outcome of the appeal,” an issue that had necessarily determined that the disputed petitioners were “person[s] whose

by its configuration would cause the project to affect non-

the appeal [to] appear and become a party.” In so ruling, the trial court

place. If the project is located on waterfront or another area which 482-A:10, XII with the other paragraphs of RSA 482-A:10 that make a motion immediately adjacent to the property on which the project will take road. An abutter includes an owner of any flowage rights on or

absurd result. Id , 143 N.H. 122 (1998),

were entitled to be parties to the superior court appeal because the statute whole. In the Matter of Liquidation of Home Ins. Co. preceded by a motion to reconsider at the council level, the disputed petitioners

Cambi urges us to rule that the trial court erred by failing to reconcile RSA Citing Rye Beach Country Club v. Town of Rye take place. This does not include those properties across a public

. at 300-01.

statutory language in a literal manner when such a reading would lead to an Guardianship of E.L., 154 N.H. 292, 300 (2006). However, we will not interpret possible, we ascribe the plain and ordinary meanings to the words used. In re (2006). We first examine the language found in the statute, and where

legislature’s intent as expressed in the words of the statute considered as a notwithstanding the statutory requirement that a superior court appeal be Appeal of Lorette, 154 N.H. 271, 272 (2006). We are the final arbiters of the

adjacent and contiguous to the property on which the project will “Abutter” means any person who owns property immediately

“abutter” as follows:

Based upon the language of RSA 482-A:10, XII, the trial court ruled that

abutting landowners,” RSA 482-A:9. The rules of the department define comment and hearing phase of review, “notice shall be mailed to all known the rules of the department,” RSA 482-A:3, I, and that during the public

time of application, the applicant shall provide notice to “abutters, as defined in RSA 482-A:10. Regarding notice, the wetlands statute provides that at the p. 8 Bureau and the Council are required as a matter of law to apply the standards Cambi and DES both argue that the trial court erred by ruling that “the

petitioners to join the appeal is reversed.

erred by ruling to the contrary, and its decision to allow the disputed

statutory reconsideration and appeal process. Accordingly, the trial court to holding that the statute was not intended to provide a bypass around the legislature did intend to cover in RSA 482-A:10, XII. Rather, we limit ourselves

In the case before us, it is not necessary to determine precisely who the

intended such a result. in had they followed the statutory process. The legislature could not have

appeal process by placing them in a better position than they would have been

disputed petitioners for failing to follow the statutory reconsideration and

way it did, the trial court reached an untenable result: it rewarded the vacated by the superior court. Thus, by construing RSA 482-A:10, XII in the unreasonable decision by the council could have been properly set aside or

the council does not make the council’s decision unreasonable, and only an

channel, i.e.

disputed petitioners were “person[s] whose rights may be directly affected by reasonableness of the council’s fact-based decision; it decided for itself that the

directly affected by the appeal to become not have intended. RSA 482-A:10, XII allows a person with rights that may be petitioners’ right to be parties come to the superior court through the usual

reconsideration requirement, see 482-A:10, XII, the legislature intended to create a bypass around the statutory relying upon RSA 482-A:10, XII, the superior court did not review the the council. We do not believe that by using the phrase “[a]ny person” in RSA

multiple decisions to exclude them, would lead to a result the legislature could rights and obligations. Here, for example, had the question of the disputed How a party enters a case has a significant bearing upon his or her

their rights may be directly affected by the outcome of the appeal. However, by parties to the appeal; they regained a status that was expressly denied them by when it determined that the disputed petitioners had failed to demonstrate that the court would have been whether the council acted lawfully and reasonably

, in an appeal from a decision of the council, the question before

reenter this case, after they failed to move for reconsideration of the council’s Construing RSA 482-A:10, XII as allowing the disputed petitioners to decisions of the council.

under the trial court’s construction, the disputed petitioners did not “become”

court review. We agree. for reconsideration filed with the wetlands council a prerequisite to superior structure, or any part thereof, built over, on, or in the waters of the state

p. 9 meaning one which is a dock, wharf, pier, breakwater, or other similar RSA 482-A.” RSA 483-B:6, I(b). In addition, “[a] water dependent structure, replenish a beach shall obtain approval and all necessary permits pursuant to

[c]onstruct a water-dependent structure, alter the bank, or construct or

RSA 483-B:3. “Within the protected shoreland, any person intending to . . .

stringent standard shall control. chapter conflict with other local or state laws and rules, the more

required to apply the strict standards of the wetlands regulations [i.e. II. When the standards and practices established in this

extending jurisdiction to the upland areas of the project, the Bureau [was] only when consistent with the policies of this chapter. proposed project[ ], [and] did not end at the bank of the lake” and that “by permits for work within the protected shorelands shall be issued that “the Bureau’s jurisdiction extended to the entire area of [Cambi’s] manner consistent with the intent of this chapter. State and local minimization,” see RSA chapter 483-B, and includes regulations requiring “avoidance and RSA chapter 482-A permit process is more stringent than the requirements of

including the boathouse construction work landward of the bank of the lake, is

Based upon the foregoing statutory provisions, the trial court determined I. All state agencies shall perform their responsibilities in a

dependent structure requires a permit pursuant to RSA chapter 482-A; (4) the operational necessity and

CSPA’s “consistency” requirement in RSA 483-B:3, I, Cambi’s entire project,

waters.” RSA 483-B:4, XV. The CSPA further provides: waters and rivers, all land located within 250 feet of the reference line of public boathouse is a “water dependent structure”; (3) construction of a water activities that require direct access to, or contact with the water, or both, as an According to the Caytens: (1) Cambi wants to build a boathouse; (2) a Hampshire Administrative Rules, Env-Wt 302.03] to the upland areas.”

wall, or launching ramp.” RSA 483-B:4, XXVI (emphasis added). but not limited to a dock, wharf, pier, breakwater, beach, boathouse, retaining impoundments, for artificially impounded fresh water bodies, and for coastal that requires a permit under RSA 482-A, including

dependent structure’ [to] mean[ ] a structure that services and supports RSA 483-B:9, II(c) (emphasis added). Finally, the CSPA defines “‘[w]ater be constructed only as approved by the department, pursuant to RSA 482-A.”

shoreland’ means, for natural, fresh water bodies without artificial Under the Comprehensive Shoreland Protection Act, “‘[p]rotected

in the plans for the . . . Cambi propert[y].” We agree. laid out in the wetlands permitting regulations, to the upland areas indicated p. 10 402.09(b) (currently Rule 402.08(b)) as required by RSA 483-B:3, I. The 302.03, and approved the boathouse construction under the CSPA and Rule

approved the dredging and excavation under RSA chapter 482-A and Rule permit pursuant to RSA chapter 482-A, see over the water. Under the CSPA, such a boathouse would have required a

the water. The bureau foreclosed construction of the boathouse over the water, impacts: lakebed dredging, bank excavation, and boathouse construction over involved a water dependent structure; the boathouse was positioned partially statutes and regulations. Cambi proposed a project with three wetland

dredging and bank excavation. As initially proposed, Cambi’s project also The permitting process in this case unfolded properly under the relevant

Here, Cambi received a dredge and fill permit for its proposed lakebed requirements on the boathouse in this case. water level of public waters.” RSA 482-A:21, II(a). provision. In short, we discern no legal basis for imposing the Rule 302.03

subdivision “shall not apply to . . . [a]ny land above the natural mean high statutory conflict of the sort necessary to trigger the CSPA consistency

excavating and dredging in public waters provides that the provisions of that boathouse that was not a water dependent structure, there was never any RSA 482-A:4, II. Moreover, the portion of the wetlands statute pertaining to for applying the Rule 302.03 avoidance and minimization requirements to a including the portion of any bank or shore which borders such surface waters.” adjacent to any waters of the state”). Moreover, as there was no statutory basis

waters of the state as defined in RSA 485-A:2 which contain fresh water, construction of structures “in or on any bank, flat, marsh, or swamp in and

inlet, and no longer required an RSA chapter 482-A dredge and fill permit, see waters of the state,” RSA 483-B:9, II(c) – it was now located over a dredged

created by the raising of the water level of the same . . . and to all surface a permit under RSA 482-A”); RSA 482-A:3, I (requiring permits for the fill permit requirement applies “to those portions of great ponds or lakes 482-A:3, I. Geographically, and in the context of fresh water, the dredge and

water dependent structure because it was no longer located “over, on, or in the

against boathouses located over the water, see

RSA 483-B:4, XXVI (defining “water dependent structure” as one “that requires

bank, flat, marsh, or swamp in and adjacent to any waters of the state.” RSA

Once the boathouse was relocated landward of the bank, it lost its status as a the location of the boathouse so that it was entirely landward of the bank. 402.09(a) (currently Rule 402.08(a)), Cambi reconfigured the project, shifting

insistence of the bureau, which was enforcing the regulatory prohibition

one can “excavate, remove, fill, dredge or construct any structures in or on any Under the wetlands statute, a dredge and fill permit is required before

argument misapprehends the statutory and regulatory scheme. subject to the DES avoidance and minimization regulations. The Caytens’ the approval of boathouses constructed over dredged inlets. See

p. 11 banning boathouses located over state waters and establishing conditions for

but one that has already been answered by the promulgation of regulations 302.03. That argument presents an interesting legal and ecological question, subject to the more stringent requirements of RSA chapter 482-A and Rule Reversed and remanded

boathouse constructed above such inlet a structure constructed over the water,

instance, in the trial court. has standing to raise that issue, that is a question for resolution, in the first

the bank transforms a piece of upland into a protected wetland and makes the Caytens appear to argue that the dredging of an inlet into an area landward of water and become newly exposed lake bottom to Squam Lake.” Thus, the is not before us. While we are not certain that any party remaining in the case

completed, the “entire excavated area [landward of the bank] will fill with lake further hearing on the merits of the notice claim, the correctness of that ruling

In their brief, the Caytens observe that when Cambi’s project is because neither Cambi nor DES appealed the trial court’s decision to allow a 302.03 to the boathouse. Accordingly, its ruling on that issue is reversed. instructions to strike the disputed petitioners. In so doing, we note that trial court for further proceedings consistent with this opinion, and with DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

over the entire project required application of RSA chapter 482-A and Rule Based upon our disposition of the issues before us, we remand to the

Greenland Conservation Comm’n, 154 N.H. at 535. or the administrative rulemaking process to determine, not this court. See treating dredged inlets differently than the natural lakebed is for the legislature Rules, Env-Wt 402.08. Whether or not there is a sound ecological basis for

over the entire project, it erred in its conclusion that the bureau’s jurisdiction wetlands. While the trial court correctly ruled that the bureau had jurisdiction 302.03 requirements only to those portions of the project within protected

conducted wholly landward of the bank, but, correctly, it applied the Rule bureau retained jurisdiction over the entire project, including the portion