2008-247, LAKESIDE LODGE, INC. v. TOWN OF NEW LONDON

The petitioner, Lakeside Lodge, Inc. (Lakeside), appeals an

orally), for the respondent. Upton & Hatfield, LLP, of Concord (Barton L. Mayer on the brief and

the brief, and Mr. Bassett orally), for the petitioner. to press. Errors may be reported by E-mail at the following address: Orr & Reno, P.A., of Concord (James P. Bassett and Jeffrey C. Spear on

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

editorial errors in order that corrections may be made before the opinion goes No. 2008-247 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 p. 2 22 as 2 affirmed.

preexisting, nonconforming use existed. erroneous. fifteen boats prior to the 1991 ordinance. The Selectmen determined that no Selectmen (Selectmen) for an exemption, asserting that eleven users secured

proceed. The abutters appealed to the ZBA for clarification. but the Selectmen declined, citing the lack of clarity from the ZBA as to how to the preemption issue.

renovations.

“personal” use asserted by Lakeside’s three owners. The superior court time.” The ZBA intimated that renting dock space exceeded the scope of the may be no more than six (6) users and six (6) boats at the dock at any one Id. court’s decision unless the evidence does not support it or it is legally Temple, 157 N.H. __, __, 956 A. p. 2 2d 272, 279 (2008). We will uphold the trial use predated the 1991 ordinance, and applied to the New London Board of “Our review of zoning board decisions is limited.” Guy v. Town of

non-owner to use the dock. The abutters sought to enforce this ruling in p. 2 2004 On appeal, Lakeside raises several arguments, but we need address only

1995. The Town maintains that Lakeside’s use intensified after these

predated the 1991 ordinance and because users typically invite guests, “there In p. 2 2007, the ZBA ruled that, because use by Lakeside’s three owners

unrelated persons violated the 1991 ordinance. Lakeside maintained that such approval.

issued a ruling interpreting the ZBA’s decision to permit three owners and one least four users predated the enactment of the 1991 ordinance. The Selectmen Environmental Services (DES), Lakeside completed substantial dock repairs in Lakeside appealed and the ZBA ultimately reversed, concluding that at

In p. 2 2002, the Town asserted that the use of Lakeside’s dock by multiple, access except in compliance with its provisions and with planning board

Overlay District.”

After receiving approval from the New Hampshire Department of

subject to” special exception. Id. § E(3). “[a]ny use of a common area . . . for business or commercial purposes shall be consisting of [three] or more members.” Id. The ordinance also states that [three] or more unrelated persons or by an association, club or organization

Id. § D(3). A “common area” is defined as one “used by a group of

p. 2 2006). The ordinance prohibits the use of waterfront “common areas” for lake

in 1991 (the 1991 ordinance) designating Lakeside’s lot within a “Shore Land The respondent, Town of New London (Town), enacted a zoning ordinance serve the state’s purpose or interest.”

p. 3 addition to those otherwise applicable for the underlying zone.” 10 P. Rohan, more zoning districts . . . and . . . imposes specified requirements . . . in that created by the 1991 ordinance, is one “that is superimposed over one or

regulation. restrict” certain land uses. RSA 674:16 (2008). An overlay district, such as

statute’s purpose,” or “[t]he very nature of the regulated subject matter . . . Brewster v. Town of Amherst, 144 N.H. 364, 365 (1999). “Where the state has Zoning and Land Use Controls § 53C.08[2][a], at 53C-444.90 (2008); see, e.g., regulation.”

renovated dock. to repair the dock in 1995 conflicts with local regulation restricting use of the the legislature intended to share concurrent regulatory authority over wetlands The State has delegated to municipalities authority to “regulate and zoning enabling act is preempted by state law or policy.” State. Finally, it argues that, by defining “wetlands” within RSA 674:55 (2008), our holdings permitting municipalities to create more restrictive rules than the Id. (quotation omitted). words of the statute itself.

State law may preempt local regulation if such regulation “frustrates the permits that which a State statute prohibits or vice versa.” Id. In addition,

Id. “A conflict exists when a municipal ordinance or regulation

local law . . . when there is an actual conflict between State and local omitted). “Preemption may be express or implied.” Id. “State law preempts Servs. v. Town of Bethlehem, 150 N.H. 606, 611 (2004) (quotation and ellipsis goal of uniform regulation. Additionally, it argues that the State’s permission N. Country Envtl. interpretation and construction — whether local authority to regulate under a 510, 511 (2006). “The state preemption issue is essentially one of statutory bathrooms in addition to its authority to promote environmental ends. It cites Weare Land Use Assoc. v. Town of Weare, 153 N.H. We are the final arbiter of the meaning of a statute as expressed by the

Seidel, 143 N.H. 327 (1999). We disagree. ZBA’s authority, citing RSA 47:17, VII (2003) and our decision in Gray v. The trial court ruled that the six-user, six-boat restriction was within the

design and placement of docks over State-owned waters to achieve the State’s which it characterizes as a comprehensive regulatory scheme governing the use for boat storage on Lake Sunapee. Lakeside points to RSA chapter 482-A, access the dock. It asserts its interest in the availability of parking and the land. It maintains that dock users must cross the shorefront property to docks, leaving to the Town the authority to regulate their use as extensions of The Town argues that the State regulates only the construction of private

unlawful because the legislature has preempted local regulation of private dock Lakeside argues that the Town’s application of the 1991 ordinance is p. 4 270:1, II (1999).

benefit of all users, may diminish the value to be derived from them.” RSA

such steps as they deem necessary to ensure uniform statewide enforcement”).

that competing uses for the enjoyment of these waters, if not regulated for the

petition to the attorney general and the DES commissioner, “who may take

statutory framework is intended to safeguard public waters “in light of the fact Supp. 2008) (“Control of Marine Pollution and Aquatic Growth”). This broad & Supp. 2008) (“Water Pollution and Waste Disposal”); RSA ch. 487 (2001 &

remedy for violations of RSA chapter 482-A, and requiring notice of such (2001) (allowing municipality to petition superior court for enforcement as the and piecemeal development along the state’s shorelines”); RSA 482-A:14-b, II

Supp. 2008) (“New Hampshire Safe Drinking Water Act”); RSA ch. 485-A (2001

waters of New Hampshire]” and seeking to avoid “uncoordinated, unplanned

and Water Safety on New Hampshire Public Waters”); RSA ch. 485 (2001 & B (1999) (“Abandoned Boats”); RSA ch. 270-D (1999 & Supp. 2008) (“Boating and enjoy public waters by avoiding piecemeal on-water regulation. Carriers by Water”); RSA ch. 270-A (1999) (“Use of Houseboats”); RSA ch. 270-

483-B:1, II, IV (2001) (asserting State’s “interest in protecting [the public doctrine imposes limits upon municipality’s use of public waters); see also RSA Opinion of the Attorney General, No. 0-87-067 (August 2, 1989) (public trust steward of public trust rights, a bundle of “all useful and lawful purposes,” See As the steward of public waters, the State safeguards the right to use (“Supervision of Navigation; Registration of Boats and Motors; Common II (2003), in trust for public use.

whether the local attempt to restrict

adjacent shoreland for the greatest public benefit.”). The State is the exclusive

& Supp. 2008) (“Access to Public Waters”); RSA ch. 270 (1999 & Supp. 2008) controlled by the State, which holds these “valuable resources,” RSA 483-B:1, Numerous statutes regulate the right to boat. See RSA ch. 233-A (1993

Like in Inland Lakes, 57 A.L.R.2d 569, 577-78 (1958). 1991, 2005 repl. vol.); Annotation, Rights of Fishing, Boating, Bathing, or the (1958). See generally 6 Waters and Water Rights 801-12 (Robert E. Beck ed., personal use predated the 1991 ordinance. Thus, our inquiry is limited to right to boat recreationally, see Hartford v. Gilmanton, 101 N.H. 424, 425-26 State v. Sunapee Dam Co., 70 N.H. 458, 460 (1900), such as the common law

(The State has the “jurisdiction to control the use of the public waters and the

The use of lakes of ten or more acres, such as Lake Sunapee, is

permissible. See Cherry v. Town of Hampton Falls, 150 N.H. 720, 725 (2004).

The parties and proceedings below assumed that a nonconforming

2 K. Young, Anderson’s American Law of Zoning § 9:13, at 144 (4th ed. 1996). not preempted the area, a municipality may zone to protect its shorelines . . . .” p. 5 5 shoreline frontage in order

construction of facilities, provide adequate area for

received notice of its opportunity to participate in this process. the use of Lakeside’s dock for personal boating. Presumably, the Town requirements per “boating slip” for lots with more than seventy-five feet of

Env-Wt 402.12 (applicable to lots with less than seventy-five feet of frontage). N.H. Admin. Rules, Env-Wt 402.13 (emphases added); cf. N.H. Admin. Rules,

maneuvering, and protect health, safety and general welfare.

protect neighboring property values, provide sufficient area for [t]o lessen congestion, improve public safety and navigation,

Lakeside to repair its dock in 199 p. 5 5, the State has placed its imprimatur upon Importantly, the administrative regulations prescribe frontage

(“Dimensions”), 402.04 (“Setbacks”). Env-Wt 402.01 (“Configuration”), 402.02 (“Navigation Space”), 402.03 and classification, health and other public purposes.” administrative rules prescribe additional restrictions. See N.H. Admin. Rules, siting and construction requirements. See RSA 482-A:3, XIII (2001). The DES 2008); RSA 483-B:9, II(c) (Supp. 2008). RSA chapter 482-A prescribes detailed public waters is prohibited without a DES permit. See RSA 482-A:3, I(a) (Supp. A:3, I (Supp. 2008). Construction connotes use. Construction of docks on

Against this backdrop we first observe that, by expressly permitting ownership of lakeshore property.” N.H. at 97; see also RSA 483-A:3 (2001).

State to control them reasonably in the interests of navigation, water storage Such littoral rights, however, “are always subject to the paramount right of the for implementation.” RSA 483-A:7, I (Supp. 2008). recreational purposes . . . .” Id.; see also Stafford Company, 99 N.H. at 97. management and shoreland protection plans together with recommendations the right to use and occupy the waters adjacent to their shore for a variety of and ordering the “develop[ment of] detailed guidelines for coordinated lake London, 119 N.H. 839, 844 (1979) (quotation omitted). “These . . . include . . . more extensive than those of the public generally.” Sundell v. Town of New Stafford Company, 99 N.H. 92, 97 (19 p. 5 54), “littoral owners have rights which are (1979). While the State holds title to the bed of the great ponds, State v.

waterfront lot. “Littoral rights are incidental property rights associated with Lake Sunapee, Lakeside appears to own the littoral rights accompanying its In addition to enjoying the common law right to boat recreationally in

RSA chapter 483-A, creating the Lakes Management Protection Program (LMPP) Nowhere is the peremptory judgment of the legislature better expressed than in boat docking. The six-user, six-boat limit was an attempt to define and/or

the conditions on use within the 1991 ordinance apply to personal boating and

Lakeside.

(2008),

(quotation and brackets omitted));

to meet the user’s need.

Whether the ZBA acted with authority requires examination of whether law.”).

mooring permits on Lake Sunapee. (2008), it acted ultra vires by imposing the six-user, six-boat limit upon standards for facilities); see Ouellette v. Town of Kingston, 157 N.H. __, __, 95 p. 6 6 A.2d 286, 292 argument). Although the ZBA has broad authority to act under RSA 674:33 491, 501 (2007) (quoting language from Cherry in rejecting due process entire dock for personal boating and docking. Anderson v. Motorsports Holdings, 155 N.H. rules for wetlands issues than those required by the Wetlands Board” ordinance and that “municipality is not estopped from creating more restrictive together with the number of boating slips and explain why they are insufficient ordinance, but stating that DES permit does not prove compliance with But cf. Cherry, 150 N.H. at 725 (declining to address validity of and regulation of navigable waters within a state often is preempted by state The Law of Zoning and Planning § 48:16, at 48-37 to -38 (2008) (“Local control of Colebrook RSA 270:60, I(c) (1999). The department of safety is charged with issuing, 149 N.H. 767, 770-72 (2003); 3 A. H. Rathkopf et al., Rathkopf’s to DES and prescribed detailed “design, construction, operation and closure” regulation of Lakeside’s private dock. We disagree. See JTR Colebrook v. Town The Town argues that RSA 674:21, I(j) (2008) allows additional municipal

exhaust available watercraft storage before seeking a mooring permit. reveals the State’s expectation that private dock users will make use of the 408.0 p. 6 6(b)(12)-(13), (15)(d)(1). These provisions impel private dock users to

require the applicant to list the length and width of existing docking structures Rohan, N.H. Admin. Rules, Saf-C 408.04. Individual mooring permit applications

RSA 270: p. 6 60, I(a) (1999), by curtailing the “undue proliferation of moorings,” because the regulatory regime sought to achieve broad goals, delegated power jurisdiction to control the use of public waters for the greatest public benefit,” Supp. 2008). The provisions of RSA chapter 270 are intended to “maintain[] exercise of its common law and littoral rights. See RSA 270:59-:72 (1999 &

The statutory scheme regulating the “mooring” of watercraft further

use expressly permitted by state statute.”). supra § 3 p. 6 6.02[1][b], at 36-27 (“A municipality may not . . . prohibit a (1984) (ordinance preventing reconstruction of dam preempted by state law); 6

150 N.H. at p. 6 615 (holding that RSA chapter 149-M preempted local regulation

the entire repaired dock for personal boating and boat docking – a clear We find implicit within the permission to repair its dock the right to use p. 7 7 docking upon State-owned waters stretches its language beyond logic.

protection, Act, RSA chapter 483-B, which sets the minimum standards for shoreland protection authority is found within the Comprehensive Shoreland Protection

incidental to shoreland protection to regulate personal boating and boat see also N.H. Dep’t of Envtl. Servs. v. Marino, 155 N.H. p. 7 709, 713-17 (2007) the Town’s authority under RSA 674:21, I (2008) are not precisely drawn, use control ordinances . . . which are more stringent.” RSA 483-B:8, I (2001);

see RSA 483-B:2 (2001), and permits municipalities to “adopt land

Perhaps the clearest statutory grant of retained, local shoreland

reasonable result . . . .”); JTR Colebrook, 149 N.H. at p. 7 771. Weare Land Use Assoc., 153 N.H. at 511 (“We interpret a statute to lead to a

RSA 6 p. 7 74:16, II (2008), but to say that the statute confers general authority

of innovative land use control legislation). By any measure, the boundaries of Use Planning and Zoning § 15.0 p. 7 7, at 89-90 (Supp. 2007) (describing inception environmental objectives. See 15 P. Loughlin, New Hampshire Practice, Land enact on-water regulations within public waters. grant of authority to develop “innovative land use controls” to accomplish The Town enacted the 1991 ordinance by invoking RSA 674:21, I(j), a

York”). powers which are granted to them by the legislature.” because they “are within the sole jurisdiction and control of the State of New (holding that municipality’s zoning power did not extend into navigable waters 313 N.Y.S.2d 5 p. 7 76, 578 (App. Div.), appeal denied, 27 N.Y.2d 485 (1970) municipality’s action interferes with public trust rights); Erbsland v. Vecchiolla, Water Rights, supra at 807 (legislative grant of authority required if action infringes upon public trust rights in bodies of water); 6 Waters and because nonconforming use is the byproduct of regulation. General, supra (specific legislative authorization required if local municipality’s See Opinion of the Attorney authority to infringe upon the right to boat. Such authority is necessary to Conway, 125 N.H. 175, 181 (1984). The Town lacks specific legislative expressly permitted a ZBA to define and constrain nonconforming uses, Dugas v. Town of restricting the number of non-related waterfront lot users. Although we have “It is well established in this State that cities and towns have only those

reduce nonconforming uses to conformity as quickly as possible.”). Peabody, 142 N.H. at 493 (“[T]he ultimate purpose of zoning regulations is to enforcement of any zoning ordinance adopted pursuant to RSA 6 p. 7 74:16”); I(a) (zoning board has power to hear and decide appeals if error alleged “in the

from, and is coextensive with, the authority to enact the underlying ordinance Little Boar’s Head District, 101 N.H. 460, 464 (1958), such authority derives Peabody v. Town of Windham, 142 N.H. 488, 492 (199 p. 7 7); Vlahos Realty Co. v.

maintained that Lakeside had violated the provisions of the 1991 ordinance reasonably restrict a grandfathered use – one asserted only after the Town p. 8 “wetlands” either to facilitate wetland setbacks or for local wetland regulation

appreciable extent, the purpose of the statute.”

for life in saturated soil conditions.”). The legislature could have defined

“The legislature will not be presumed to pass an act . . . nullifying, to an waters held in trust for the public.

implies the exclusion of another.” (quotation omitted)).

lake” management. boating or boat docking on public waters. normal conditions does support, a prevalence of vegetation typically adapted groundwater at a frequency and duration sufficient to support, and that under (“‘Wetlands’ means an area that is inundated or saturated by surface water or preemption argument, grants towns only the authority to regulate See RSA 482-A:2, X (Supp. 2008) within the broader statutory scheme governing regulation of public waters. itself, suggest local authority to regulate personal boating and boat docking on State’s need and desire for uniform regulation, which is expressly manifested found within the provisions authorizing local land use regulation, does not, by water regulation of recreational boating and boat docking would threaten the Contrary to the ZBA’s assertion, the statutory definition of “wetlands,” legislature.”); 3 Rathkopf, purpose or implementation of a general or special law enacted by the state 141 N.H. 9, 11-12 (1996) (“Normally the expression of one thing in a statute nullifying rights which the State has the authority to grant”); 6 Rohan, St. Joseph Hosp. of Nashua v. Rizzo, owned public water and that dock and mooring regulations are considered “on- VII, implied local authority to regulate the use of private docks for personal established rules of statutory interpretation, we do not find within RSA 47:17, docks. See RSA 47:17, VII; Gray, 143 N.H. at 330. Consistent with our well-

RSA 47:17, VII, relied upon by the trial court in rejecting Lakeside’s

may not be exercised contrary to state statutory provisions or policy.”). 8.pdf. Indeed, vesting localities with broad authority to enact piecemeal on- supra at 48-37 (“[L]ocal regulation of wharves . . .

§ 36.02[1][a], at 36-25 (“[M]unicipal zoning ordinances cannot frustrate the

regulate navigable waters owned by the state “would have the effect of N.H. at 511-12; government[s] ha[ve] the authority to impose on-lake regulations” upon State- Erbsland, 313 N.Y.S.2d at 578 (allowing municipality to

enact [such regulations], it could have explicitly done so.”

boating or boat docking as part of shoreland protection. organization/commissioner/pip/publications/wd/documents/nhdes-wd-08- Shoreland Prot. Plans 53-54 (DES 2008), available at http://des.nh.gov/

The DES guidelines state that “only the federal . . . and state . . .

N.H. at 771-72.

(2001 & Supp. 2008). “Had the legislature intended to permit municipalities to

chapter 483-B, however, lacks any provisions regulating the use of docks for (discussing and upholding constitutionality of RSA chapter 483-B). RSA p. 9 9

concurred.

BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

appeal. Given our conclusion, we do not reach the other issues raised in this

regulation of wetlands is permitted when not in direct conflict with state law.”). compliance with local wetlands ordinance); 3 Rathkopf, supra at 48-37 (“Local areas outside the State’s regulation.”); Cherry, 150 N.H. at 725 (examining (“[M]unicipalities may adopt local ordinances to further wetland protection in Family Realty Trust v. Town of Wilton, 153 N.H. 234, 238 (2006) outside the sphere of any exclusive State wetland regulation. See Blagbrough