2010-806 Town of Newington v. State of New Hampshire & a.

No. 2010-806

Merrimack

of the Superior Court (McNamara LYNN, J. The petitioner, the Town of Newington (Town), appeals an order

Michael A. Delaney

Sheehan Phinney Bass + Green, P.A.

Department of Environmental Services. attorney general, on the memorandum of law), for respondent New Hampshire

Development Authority. and Robert P. Cheney on the brief, and Mr. Turner orally), for respondent Pease

Jed Z. Callen orally), for the petitioner.

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 to press. Errors may be reported by E-mail at the following address: 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 in the light most favorable to the non-moving party. Sabinson v. Trustees of p. 2 the affidavits and other evidence, and all inferences properly drawn from them, In reviewing the trial court’s grant of summary judgment, we consider

summary judgment. This appeal followed. wetlands designations and, therefore, granted PDA and DES’s motion for court concluded that PDA was not required to comply with the Town’s prime Determining that this was “actually a relatively straightforward case,” the trial the Town filed a petition for declaratory and injunctive relief in superior court. After the Wetlands Council dismissed its appeal for lack of jurisdiction,

therefore, required a wetlands permit. DES disagreed. fill within 100 feet of wetlands that the Town had designated as “prime” and, application was filed with DES. The Town objected, asserting that it involved land to expand an existing office building, an alteration of terrain permit Several months later, as part of a proposed construction project on PDA

boundaries, nor would the agency have statutory authority to do so.” legality of the Town’s designation of prime wetlands located within PDA Town’s request, but later clarified that it “did not purport to ‘approve’ the of which are located on the former Pease AFB. DES initially “approved” the subsequently submitted the designation of eighteen prime wetlands to DES, six wetlands within its borders, pursuant to RSA 482-A:15 (2001), and Shortly thereafter, the Town began the process of designating prime

2005. accepted title to the Pease AFB land in three title transfers between 1999 and several iterations of environmental documents and deed restrictions, PDA in a series of environmental impact analyses required by federal law. Following 2 Before the land was deeded to PDA, the United States Air Force engaged

AFB on the State’s behalf. discloses no genuine issue of material fact, and if the moving party is entitled Dartmouth College which, among other things, created PDA to accept title to the land of the Pease, 160 N.H. 452, 455 (2010). If our review of that evidence response, the legislature enacted RSA chapter 12-G (2003 & Supp. 2010), Commission on Base Realignment and Closure to close Pease AFB. In

1989, the Secretary of Defense approved the recommendation of the established the Pease Air Force Base (Pease AFB) in Rockingham County. In taken from the trial court’s order. In the 1950s, the federal government The following facts appear in the parties’ joint stipulation of facts or are

Environmental Services (DES). We affirm. Development Authority (PDA) and the New Hampshire Department of of the respondents, the State of New Hampshire through the Pease restrict’ certain land uses.” Lakeside Lodge v. Town of New London p. 3 “The State has delegated to municipalities authority to ‘regulate and

disagree. designation of prime wetlands is a state requirement, not a municipal one.” We plumbing, and fire codes.” RSA 12-G:2, XVI. The Town asserts that “the subdivision regulations, site plan review regulations, and building, electric, and improvement of property, including, but not limited to, zoning ordinances, ordinances and requirements or rules of [PDA] regulating the use, development, Pursuant to statute, “‘[l]and use controls’ means all municipal

prime wetlands under RSA 482-A:15 is a “land use control.”

exclusive

(Emphasis added.) The issue presented here is whether designation of

federal government or any agency thereof. [PDA] shall have the transferred, conveyed, or otherwise granted to the authority by the

government or any agency thereof.

procedures for enacting municipal zoning ordinances, see RSA 675:2, :3 (2008), boundaries.” (Emphasis added.) The local legislative body must then follow the undertake to designate, map and document prime wetlands lying within its which we review de not apply to any of the property at Pease Air Force Base The interpretation and application of statutes present questions of law, [A]ny and all land use controls of the town of Newington . . . shall 164, 168 (2008). Under RSA 482-A:15, I, “[a]ny municipality. . . may , 158 N.H.

conveyed, or otherwise granted to the authority by the federal

RSA 12-G:13, I, provides in pertinent part:

controls for the property at Pease Air Force Base transferred,

jurisdiction in adopting and establishing land use

authority to designate prime wetlands on PDA property. designations. PDA and DES counter that the statute removed the Town’s 12-G:13 exempts PDA from complying with the Town’s prime wetlands Manchester Sch. Dist. v. City of Manchester, 150 N.H. 664, 669 (2004). consistent with the spirit and objectives of the legislation as a whole.” City of The Town first argues that the trial court erred in concluding that RSA to the words used. Id. “We construe statutory provisions in a manner that is of the statute, and, where possible, we ascribe the plain and ordinary meaning words of the statute considered as a whole. Id. We first examine the language We are the final arbiters of the intent of the legislature as expressed in the

Id. We review the trial court’s application of the law to the facts de novo. Id. to judgment as a matter of law, we will affirm the grant of summary judgment. entitling him to seek equitable relief.” Shaff v. Leyland p. 4 “One seeking to enforce a restriction in equity must have a standing

to enforce the deeds’ covenants. designation. In response, PDA and DES contend that the Town lacks standing to the former Pease AFB property to abide by the Town’s prime wetlands The Town also argues that PDA is required by the covenants in the deeds

property owned by PDA. “land use control.” Thus, it cannot be applied to control development of any As the trial court determined, the designation of prime wetlands is a

is expressed in the language of the covenant.” Id. at 499. covenantee and is enforceable only by the covenantee, unless a contrary intent appurtenant to an interest in land, the benefit of which is personal to the (2006) (quotation omitted). In particular, “we construe restrictive covenants as

regulation. Title LXIV provided the exclusive legislative authority for local land use here. Id. Contrary to the Town’s contention, Green Crow did not hold that the legislature under Title LXIV,” a situation inapposite to the one presented specifically referring to “aspects of the planning and zoning scheme designed by The Town cites Green Crow Corp. v. Town of New Ipswich planning and zoning to occur within the confines of [Title LXIV],” we were rather expansive language that “the legislature intended for municipal land use could not. Green Crow, 157 N.H. at 355. Although Green Crow does include effectively conducting land use planning or zoning, and we concluded that it the layout or upgrade of a highway under RSA 231:28 (1993) as a vehicle for whether a board of selectmen could use its authority to determine occasion for asked, pursuant to an interlocutory appeal without ruling, see Sup. Ct. R. 9, case, however, is distinguishable from Green Crow. In Green Crow, we were under the authorities included in Title [LXIV – Planning and Zoning].” This (2008), as requiring that “all municipal land use control [must] be exercised

does not transform its municipal character. municipal government”). Similarly, the role of the State in enforcing the statute land use regulations “have been and should continue to be the responsibility of fluoride in public water systems); RSA 672:1, I (Supp. 2010) (underscoring that a (Supp. 2010) (establishing procedure for referendum regarding the use of authority does not alter the local character of the statute. See, e.g., RSA 31:17designation of prime wetlands by a municipality occurs pursuant to legislative wetlands designations filed with DES by municipalities. Id. That the is a passive one: accepting and maintaining for public access all prime II. This process is devoid of input from the State. The only role the State plays in deciding whether to adopt the prime wetlands designation. RSA 482-A:15, p. 5 Affirmed

in granting PDA and DES’s motion for summary judgment. compliance with the deed restrictions. Accordingly, the trial court did not err 482-A, without more, does not confer standing upon the Town to challenge

We therefore conclude that the reference in the deeds to RSA chapter

shall continue in full force and effect.

successors and assigns, with respect to such future performance reservations, or restrictions, and the obligations of the Grantee, its

performance of any such terms, covenants, conditions, shall not be construed as a waiver or relinquishment of the future

DALIANIS, C.J.