2012-255, Appeal of Lake Sunapee Protective Association & a.

public boat launch with parking on the State’s “Wild Goose Property,” located New Hampshire Department of Fish and Game (F&G), to construct a two - ramp Environmental Services (DES) of a s horeland i mpact p ermit to the respondent, The Wetlands Council upheld the grant by New Hampshire Department of and Town of Newbury, appeal a New Hampshire Wetlands Council decision. DALIANIS, C. J. The petitioners, Lake Sunapee Protective Association

attorney general, on the brief and orally), for the respondent. Michael A. Delaney, attorney general (Evan J. Mulholland, assistant

brief and orally), for petitioner Town of Newbury. Upton & Hatfield, LLP, of Portsmouth (Justin C. Richardson on the joint

Association. o n the joint brief and orally), for petitioner Lake Sunapee Protective McLane, Graf, Raulerson & Middleton, PA, of Concord (Gregory H. Smith

APPEAL OF LAKE SUNAPEE PROTECTIVE ASSOCIATION & a.

No. 2012 - 255 Wetlands Council

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, Concor d, 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 p. 2 22 as 2

described the analysis in depth. constraints and costs for alternative public access sites . . . .” An appendix Analysis focused on evaluating the environmental conditions, design . . . to determine if a more suitable site was available.” “The Alternatives had reviewed numerous “alte rnative access sites and [a] No - Build Alternative The report stated that, “during the decade - long planning process,” F&G

municipal, private and S tate - owned fee based facilities.” observed that “[p]ubl ic boat access to L ake Sunapee is currently limited to Rivers,’” published by the New Hampshire Office of State Planning. The report the 1991 . . . ‘ Public Access Plan for New Hampsh ire’s Lakes, Ponds, and unlimited powerboat access to Lake Sunapee, thereby fulfilling the mandates of The report explained that the project “was developed to provide public th o se applications, F&G submitted a detailed report describing the project. DES for the necessary permits to construct the boat launch. In support of needed. See RSA p. 2 233 - A:2, II (2009). On December 17, 2008, F&G applied to access to Lake Sunapee based upon its determination that such access was (PWAAB) formally advis ed F&G to develop the 3.3 - acre site for public boat In 2004, the New Hampshire Public Water Access Advisory Board

with carrying out the statewide public boat access program). p. 2 201 3). F&G manages the property. See RSA 233 - A:4 (2009) (F&G is charged Newbury v. N.H. Fish and Game Dep’t, 16 5 N.H. ___, ___ (decided June 28, Sunapee. See RSA 162 - C:6 -:7, :10 -:11 (2002), :8 -:9 (Supp. 2012); Town of Investment Program, specifically to provide public boat access to Lake The State acquired the prop erty in 1990 through its Land Conser vation

formerly the site of the “Wild Goose” cabins. acre site along the southwestern shore of Lake Sunapee. T he property was 13 5 acres of land in Newbury. It abuts Sunapee State Park and includes a 3.3 part of the certified record. The Wild Goose Property consists of approximately The following facts were found by the Wetlands Council, or are otherwise

I. Background

48 p. 3 3 - B:3, II ( p. 2 2001) by failing to enforce a local shoreland setback. We affirm. chapter 483 - B and other state law. They also argue t hat DES violated RSA permit that was neither necessary nor consistent with the purposes of RSA They argue that DES contravened RSA 483 - B:9, IV - b (Supp. 2012) by issuing a Quality Protection Act (the Act). See RSA ch. 483 - B (2001 & Supp. 2012). Comprehensive Shoreland Protection Act, now called the Shoreland Water uphold DES’s decision because DES violated two provisions of the on the shore of Lake Sunapee. The petitioners contend that it was error to 3

and intent of RSA [chapter] 48 p. 3 3 - B. provide sufficient evidence to meet the aforementioned purpose 5. [DES] finds that plans [submitted with F&G’s application]

public use of waters and recreation. and points of access to inland and coastal waters, and protect ing development in proximity to the water, conserving shoreline cover safety, and the general welfare by providing for economic state’s ro[le] as trustee of its waters and to promote public health, 4. The purpose and intent of RSA [chapter] 48 p. 3 3 - B is to fulfill the

mandates. Lake Sunapee and, therefore, would not meet the aforementioned selected because they would not provide adequate, safe access to prospecti[ve] site s. Alternatives to the current site were not p. 3 3. [F&G] conducted a 30 parameter analysis comparing 13

environmentally sound public boat access to waters of the state. Boat Access Program to provide adequate, safe, and bo ating access within the state and created the Statewide Public 2. RSA [chapter] 255 - A designates [F&G] as the lead agency for

the public with unlimited powerboat access to Lake Sunapee. mandated in 1991 that the state of New Hampshire was to provide Access Plan for New Hampshire’s Lakes, Ponds, and Rivers 1. The New Hampshire Office of State Planning (OSP) Public

findings: DES issued the permit on January 7, 2009, after making the following

V(b)(2)(A)(ii). vegetation within the “natural woodland buffer” be “unaltered.” RSA p. 4 48 p. 3 3 - B:9, Second, the project did not meet the requirement that fift y percent of the segments, one segment would be “irrevocably reduced below 50 points.” “[m]itigation plantings,” which would increase the tree count of the affected lower the tree point coun t below 50 points.” Although F&G planned to add count diminished during construction, and in three of these, construction will “[f]ive of the 16 Waterfront Buffer blocks on this site will have their tree point points shall be maintained.” RSA 483 - B:9, V(a)(2)(D). According to the report, of waterfront buffer, “a minimum combined tree and sapling score of at least 50 First, it did not meet the requirement that within each “50 by 50 foot” segment shoreland protection standards set forth in RSA 483 - B: 9, V (Supp. 2008). The report noted t hat the project did not meet two of th e minimum 4

us, “that such order is unjust or unreasonable.” Id. law, unless we are satisfied, by a clear prepond erance of the evidence before 5 p. 4 41:13. We must uphold t he Wetlands Council’s decision e xcept for errors of the Wetlands Council’s decision was “clearly unreasonable or unlawful.” RSA lawful and reasonable.” The petitioners have the burden of demonstrating that findings of fact of the Wetlands Council “shall be deemed to be prima facie 539, 541 (2009); RSA 21 - O:14, III (2012). Under RSA 541:13, all of the RSA 541:13 (2007). Appeal of Garrison Place Real Estate Inv. Trust, 159 N.H. Our standard of review of the Wetlands Council’s decision is set forth in

II. Analysis

petitioners unsuccessfully moved for reconsideration, and this appeal followed. complyi ng with the 50 point rule.” See RSA p. 4 483 - B:9, V(a)(2)(D). The Wetlands Council, “[t]here is no way to build a boat ramp on the site while still the minimum standa rds set forth in RSA 483 - B:9, V – a ccording to the “reasonable way to construct a boat ramp on the site” that complied with all of issue in this appeal. The Wetlands Council found that there was no appeal of the s horeland i mpact p ermit except as to a ground that is not at decision denying the appeal of the w etlands i mpact p ermit, and d enying the deliberating for ano ther four days, the Wetlands Council issued a single w etlands i mpact p ermit at a four - day consolidated evidentiary hearing. After Wetlands Council heard the appeals of the s horeland i mpact p ermit and the petitioners appealed this decision to the Wetlands Council as well. The Thereafter, DES issued a w etlands i mpact p ermit to F& G, and the

Currently, 5.6% of the lot is covered by impervious surface s. “paved, gravel, or crushed stone driveways, parking areas, and walkways”). modified surface t hat cannot effectively absorb or infiltrate water,” such as RSA p. 4 483 - B:4, VII - b (Supp. 2012) (defining “impervious surface” as “any with impervious surfaces,” unless F&G obtain s additional DES approval. See than 5.9% of the area of the lot within the protected shoreland [to] be covered the amended permit on May 22, 2009. The amended permit allow s “[n]o more In April 2009, F&G requested that DES amend the permit. DES issued

the Wetlands Council. local and state setbacks”). The petitioners appealed the grant of the permit to N.H. Admin. Rules, Env - Wq 1 p. 4 406.09(f) (plans must show “[a]ll. . . applicable the permit did not show the local shoreland setback of seventy - five feet. See installation of erosion and siltation control measures. The plans approved by an a lteration of terrain p ermit and w etland impact permit, and requires the car/trailers and 12 car top spaces.” The permit is contingent up on approval of “a 2 - ramp public boat launch with parking facilities for approximately 31 The permit allows F&G to a lter 80, p. 5 500 square fee t of the site to construct 5

protect the pub lic waters, while still accommodating reasonable levels of [s]tandards,” which are “designed to minimize shoreland disturbance so as to RSA 483 - B:9, V sets forth “[m]inimum [s]horeland [p]rotection

to ensure compliance with [RSA] chapter [483 - B].” activities within the protected shoreland without obtaining a permit from [DES] 2011), “[n]o person shall commence construction, excavation, or filling RSA 483 - B:3, II. Pursuant to RSA 483 - B: p. 5 5 - b, I(a) (Supp. 2012) (amended ot her local or state laws and rules, the more stringent standard shall control.” the standards and practices established in [RSA] chapter [483 - B] conflict with issued only when consistent with the policies of [RSA] chapter [483 - B].” “When “[s]tate and local permits for work within the protected shorelands shall be 483 - B:1, IV (Supp. 2012). Accordingly, RSA 483 - B:3, I (20 01) provides that significant negative impacts on the public waters of New Hampshire.” RSA piecemeal development along the state’s shorelines, which could result in (Supp. 2012). Control by the State prevents “uncoordinated, unplanned and and “adjacent shoreland for the greatest public benefit.” RSA 483 - B:1, II well as its public waters.” Id. It is intended to control the use of public waters the perm it at issue. The Act is “aimed at protecting the state’s shoreland as We consider the version of the Act in effect in 2009, when DES issued

of the policy sought to be advanced by the entire statutory scheme. Id. apply statutes in light of the legislature’s intent in enacting them, and in light context of the overall statutory scheme and not in isolation. Id. Our goal is to that it did not see fit to include. Id. Furthermore, we interpret statutes in the We will neither consid er what the legislature might have said nor add words of the statute is clear on its face, its meaning is not subject to modification. Id. language according to its pla i n and ordinary meaning. Id. When the language We first look to the language of the statute itself, and, if possible, construe that legislature as expressed in the words of a statute considered as a whole. Id. Marino, 1 p. 5 55 N.H. 709, 713 (2007). We are the final arbiter of the intent of the agency’s statutory interpretation de novo. See N.H. Dep’t of Envtl. Servs. v. Resolving these issues require s statutory interpretation. We review an

lawful. erred when it ruled that DES’s decision to grant the permit was reasonable and and RSA 483 - B:3, II. T hey contend, accordingly, that the Wetlands Council The petitioners argue that DES failed to comply with RSA 483 - B:9, IV - b

RSA 21 - O:14, II (2012). (2012). The Wetlands Council’s appeal hearings are “adjudicative proceedings.” the appeal may present.” RSA 21 - O:14, I - a (2012) (amended 2012), : p. 5 5 - a, V administrative record together with any evidence and testi mony the parties to decision [by DES] was unlawful or unreasonable by reviewing the For its part, the Wetlands Council must “determine whether the . . . p. 6 6

maintaining a waterfront buffer; another concerns maintaining a natural One of the minimum shoreland protection standard s concerns

RSA 483 - B:2 (Supp. 2012) (amended 2011).

XVI. Provide for economic development in proximity to waters.

shoreland areas. XV. Anticipate and respond to the impacts of development in

XIV. Conserve natural beauty and open spaces.

XIII. Protect public use of waters, including recreation.

XII. Promote wildlife habitat, scenic beauty, and scientific study.

in their natural state. XI. Preserve the state’s lakes, rivers, estuaries and coastal waters

coastal waters. X. Conserve shoreline cover and points of access to inland and

IX. Control building sites, placement of structures, and land uses.

VIII. Protect freshwater and coastal wetlands.

VII. Protect commercial fishing and maritime industries.

VI. Protect archaeological and historical resources.

erosion. V. Protect buildings and lands from flooding and accelerated

wildlife habitats. IV. Protect fish spawning grounds, aquatic life, and bird and other

III. Prevent and control water pollution.

resources. II. Provide f or the wise utilization of water and related land

I. Further the maintenance of safe and healthful conditions.

standards are intended to serve sixteen goals: development in the protected shoreland.” RSA 483 - B:9, I (2001). The p. 7 7

so large that it did not comply with the minimum standards of the . . . Act” or “necessary” and whether it was “necessary” for F&G “to build a proj ect that was 483 - B:9, IV - b, DES had to evaluate whether the boat launch itself was are correct. However, the petitioners contend that in order to comply with RSA B:9. For the purposes of this appeal, w e assume, without deciding, that they shoreland protection standards set forth in the other provisions of RSA 483 permits for “public water access facilities” that do not meet the minimum The petitioners concede that RSA 483 - B:9, IV - b allows DES to issue

1. Necessity

of RSA chapter 483 - B as well as other state law. findings regarding the project’s “necessity” and compliance with the purposes 233 - A:6 (2009) a nd RSA 162 - C:6, :10 (2011); and (4) did not make specific “purposes” listed in RSA 483 - B:2; (3) failed to find that the proje ct vio lates RSA the project or its size was “necessary”; (2) considered only two of the sixteen th at DES violated RSA 483 - B:9, IV - b because it: (1) failed to analyze whether purposes of [RSA] chapter [483 - B] and other state law.” The petitioners assert facilities,” such as the boat ramp, “as necessary and consistent with the which provides that DES “shall” issue permits for “public water access We first address the petitioners’ arguments regarding RSA 483 - B: 9, IV - b,

A. RSA 483 - B:9, IV - b

and (6) “public water access facilities, including boat ramps,” id. associated structures and facilities,” RSA 483 - B:9, IV - b; (5) “public roads,” id.; “[h]ydro electric facilities,” RSA 483 - B:9, IV - a; (4) “[p]ublic utility lines and (2) “[p]ublic water and sewage treatment facilities,” RSA 483 - B:9, IV; (3) DES “shall” permit are: (1) “[p]ublic water supply facilities,” RSA 483 - B:9, III; B] and other sta te law.” RSA 483 - B:9, II I, IV, IV - a (2001), IV - b. The facilities [of DES] as necessary. . . consistent with the purposes of [RSA] chapter [483 - Under the Act, certain facilities “shall be permitted by the commissioner

See RSA 4 p. 8 83 - B:9, V(a)(2)(B) - (D) (waterfront), V(b)(2) (woodland). for retaining vegetation within the waterfront and natural woodland buffers. B:9, V(b)(1). To achieve these purposes, the Act contains specific requirements respecting the overall natural condition of the protected shoreland.” RSA 483 healthy tree canopy and understory, preserving fish and wildlife hab itat, and chemical pollution, maintaining natural water temperatures, maintaining a siltation and turbidity, stabilizing soils, preventing excess nutrient and “to protect the quality of public wa ters by minimizing erosion, preventing design.” RSA 483 - B:9, V(a)(1). The purpose of the natural woodland buffer is discretion with regard to water access, safety, viewscape maintenance, and lot buffer is “to protect the quality of public waters while allowing homeowner woodland buffer. See RSA 483 - B:9, V(a), (b). The purpose of the waterfront 8

4 p. 8 83 - B:9, IV - b, it must evaluate the proposed public facility against all sixteen The petitioners assert that before DES may grant a permit under RSA

2. P urposes of the Act

without it, the project cannot be completed. necessary” to mean that a permit is necessary for the project – i.e., that power, public utilities, and public water access, we interpret the phrase “as governing public roads and facilities for public water, sewage, hydroelectric for, and design of, these public facilities. Given the complex array of statutes “super agency,” which oversees the myriad state agencies that decide the need 2012) (hydropower facilities). The phrase “as necessary” do es not make DES a (2009 & Supp. 2012) (certain state highways); RSA ch. 4 p. 8 81 (2001 & Supp. entities. See, e.g., RSA ch. 162 - H (Supp. 2012) (energy facilities); RSA ch. 230 legislature has specifically del egated such determinations to other state such as hydroelectric plant s, public road s, or public utility facilit ies. The necessity or design of facilities over which it lacks authority and expertise, The phrase “as necessary” cannot mean that DES must determine the

clearly shown.” (quotation omitted)). same meaning in other parts of the statute unless a contrary intention is (“Words used with plain meaning in one part of a statute are to be given the provisions. See Ocasio v. Fed. Express Corp., 162 N.H. 436, 451 (2011) other state law” – we must interpret it to have the same meaning in all four “as necessary. . . consistent with the purposes of [RSA] chapter [4 p. 8 83 - B] and Because RSA 483 - B:9, III, IV, IV - a, and IV - b all use t he same phrase –

which requires mandatory enforcement.” (quotati on omitted)). general rule of statutory construction is that the word ‘shall’ is a command a legislative mandate. See In re Christopher K., 155 N.H. 219, 229 (2007) (“The (hydroelectric), IV - b (public wat er access). The use of the word “shall” indicates state law.” RSA 4 p. 8 83 - B:9, III (public water supply), IV (sewage treatment), IV - a necessary. . . consistent with the purposes of [RSA] chapter [483 - B] and other access, publi c water supply, sewage tre atment, and hydroelectric power “as Under the Act, DES “shall” issue permits for facilities for public water

such a reading would lead to an absurd result” (quotation omitted)). (200 p. 8 8) (court “will not interpret statutory language in a literal manner when result when applied to such facilities. See Appeal of Geekie, 157 N.H. 195, 202 jurisdiction nor expertise. Th e petitioners’ interpretation leads to an absurd fact that it a pplies to numerous facilities over which DES has neither The petitioners’ interpretatio n of the phrase “as necessary” ignores the

petitioners assert that DES failed in this regard. “whether a small[er] [project] could comply with the intent of the Act.” The p. 9 9

A. Yes.

the Shoreland s Act? Q. In your opinion – is the plan consistent with the purposes of

disturbed aspects of the site. pervious pavement. The re’s the reseeding and re - vegetation of all A. There’s an erosion control plan. There is the use of the

. . . .

production, things like that? Q. Did you also consider things like erosion control and pollution

project. conserving as mu ch shoreline cover as you could on this particular And you are – I mean, you’re allowing for point of access while still more available to the general public of the state of New Hampshire. surface water by allowing people to utilize that water, making it You are providing for econ omic development in proximity to a recreation. You’re actually encouraging or enabling recreation. A. Because you’re protecting the public use of water, including

two locations, is consistent with the purposes of the statute? though it doesn’t meet the actual minimum standards in one or Q. Can you summarize for the Council how this project even

. . . .

A. It lists 16 standards.

Q. What does that s ay?

required. A. We actually look to [RSA] 483 - B:2, minimum standards

do you look for the[m] . . . ? Q. Now, when you look at . . . the purposes of the chapter, wh ere

follows: only two of those goals. The testimony upon which the petitioners rely is as petitioners contend that DES violated RSA 483 - B: p. 9 9, IV - b because it considered petitioners are correct. Relying upon the testimony of a DES staff person, the of the goals listed in RSA 483 - B:2. We assume, without deciding, that the p. 10 10

with “other state law,” DES had to analyze whether it violated RSA 2 3 3 - A:6 and The petitioners contend that to evaluate whether the project complies

3. Other State Law

listed in RSA 483 - B:2, we uphold it. reviewed the proposal against the purposes listed in RS A 483 - B:1 and the g oals Because there is evidence to support the Wetland Council’s finding that DES

of RSA [chapter] 483 - B. sufficient evidence to meet the aforementioned purpose and intent [DES] finds that plans [submitted with F& G’s application] provide

public use of waters and recreation. and points of access to inland and coastal waters, and protecting development in proximity to the water, conserving shoreline cover safety, and the general welfare by providing for economic state’s ro[le] as trustee of its waters and to promote public health, The purpose and intent of RSA [chapter] 483 - B is to fulfill the

considered the Act’s requisite purposes. DES specifically found: The text of DES’s permit decision also demonstrates that DES properly

tried to get the best of all 16. the habitat, the access, preventing flooding and erosion, have you the resources – the historic resources, the economic development, quality whi le still allowing the de velopment potential, protecting effort has been made to do the most you can do to protect water does the project[ ] fall in those 16, and do we believe a good faith shall serve a way to address these 16 issues, the question is where the overall intent in th ose 16 . . . standards, where our standards directed to develop standards for in [RSA 483 - B:2]. So looking at five items outlined in [RSA 483 - B:1] and 16 items that [DES is] it becomes a case - by - case review and balancing of the items, the In the context of consistent with the intent and purpose of the Act,

person testified: both RSA 483 - B:[1] Purpose and RSA 483 - B:[2] Standards.” T h e same staff The Wetlands Council found that DES “reviewed the proposal against

interpretation of th e tes timony, and we conclude that it did not err by so doing. goals listed in RSA 483 - B:2. The Wetlands Council specifically rejected that development, see RSA 483 - B:2, XVI, and did not consider the other fourteen considered only public access, see RSA 483 - B:2, XIII, and economic The petitioners contend that this testimony demonstrates that DES p. 11 11

developed in the context of adjudicated m atters is misplaced. See Appeal of it grants a permit application. The petitioners’ reliance upon case law that requires DES to make specific findings or to refer to specific statutes when t hese assertion s. There is nothing in the plain language of RSA 483 - B:9, IV - b other state law.” The plain language of RSA 483 - B:9, IV - b does not support “necessary” and “consistent with the purposes of [RSA] chapter [483 - B] and decision and for failing to make specific findings that the project was The petitioners fault DES for failing to refer to RSA 483 - B:9, IV - b in its

4. Findings

under RSA chapter 162 - C). N.H. at ___ (the petitioners ’ separate action regarding approval of the project b does not confer th at authori ty on DES. See N.H. Fish and Game Dep’t, 165 or enforcing the Land Co nservation Investment Program, and RSA 483 - B:9, IV - However, RSA chapter 162 - C does not make DES responsible for administering thi s deed provision and with the Land Conservation Investment Program itself. conservation purposes,” and that the proposed boat launch is inconsistent with specifically stated that the property was to be used “exclusively for The petitioners assert that the deed for the Wild Goose property

public trust and used and applied for the purposes of this subdivision.” acquired through the Land Conservation Investment Program “shall be held in high quality of life in New Hampshire.” RSA 162 - C:10 provides that lands preserve the natural beauty, landscape, rural character, natural resources, and acquired [through the Land Conservation Investment Program] so as to Investment Program. RSA 162 - C:6, III requires CORD to “manage the lands and Development (CORD). RSA 162 - C:6 pertains to the Land Conservation RSA chapter 162 - C governs the New Hampshire Council on Resources

not interpret RSA 483 - B:9, IV - b as conferring th at authority on DES. administering or enforcing the statewide public boat access program. We do areas.” However, no language in RSA chapter 233 makes DES responsible for F&G’s plans violate RSA 233 - A:6 because they do not contain “adequate buffer facilities” that “provide for adequate buffer areas.” The petitioners argue that required to “prepar e plans and designs for public boat acce ss areas and related Access Program. See RSA 233 - A:3 (2009). Under RSA 233 - A:6, F&G is RSA chapter 233 - A governs the New Hampshire Statewide Public Boat

RSA 483 - B:9, IV - b, as do we. RSA 16 2 - C:6 and :10. The Wetlands Council reje cted this interpretation of p. 12 12

CONBOY, LYNN and BASSETT, JJ., concurred.

321, 322 (1993). that they do not warrant extended consideration. See Vogel v. Vogel, 137 N.H. We have reviewed the petitioners’ remaining arguments and conclude

Accordingly, we uphold its decision that RSA 483 - B:3, II did not apply. the Wetlands Council’s first reason was unlawful or unreasonable. reason the Wetlands Council gave for its conclusion, they have not shown that RSA 483 - B:9, IV - b. Because the petitioners have challenged only the second – i.e., that RSA 483 - B:3, II does not apply to projects approved pursuant to restrictions. They do not challenge the first reason the Wetlands Council gave apply because state developers are generally exempt from local zoning Council gave for rejecting their argument – i.e., that the local setback does not On appeal, the petitioners challenge only the second reason the Wetlands

an intent that they shall.” (quotation omitted)). apply to the State or its agencies unless the legislature has clearly manife sted Town of Hampstead, p. 12 120 N.H. 88 5, 888 (1980) (“[Z]oning restrictions do not re strictions. See RSA 674:54 (2008); see also Region 10 Client Mgt., Inc. v. because state developers generally are exempt from local zoning ordinance W etlands Council ruled that the local setback did not apply to the project satisfied as RSA 483 - B:9 IV - b applies to this public boat ramp.” Second, the According to the Wetlands Council, “only RSA 483 - B:1 Purpose need be ruled that the statute – R SA 483 - B:3, II – does not apply to the project. The Wetlands Council rejected this arg ument on two grounds. First, it

approving F&G’s plans. shall control.” They contend that DES failed to enforce the local setback by fifty - foot setback and, under RSA 483 - B:3, II, “the more stringent standard required to enforce the local setback be cause it was more stringent than the parking lot and access roads for the project. They assert that DES was petitioners contend that the local seventy - five foot setback applies to the for “[p]erman e nt, temporary or portable buildings and structures.” The B:9, II(b) (Supp. 20 p. 12 12). T he local ordinance requires a seventy - five foot setback The Act requires a fifty - foot setback for “[p]rimary structures.” RSA 483 -

Appeal of Town of Bethlehem, 154 N.H. 314, 326 (2006). permit to F&G was not an adjudicative decision. See RSA 541 - A:1, I, IV (2007); Wetlands Council are adjudicative proceedings, DES’s decision to grant a City of Nashua, 138 N.H. 261, 263 - 64 (1994). Although the hearings before the