2017-0142, Appeal of N. Miles Cook, III

“a tidal docking structure to serve his private residence,” which pro vides Piscataqua River in Dover. In 2006, he obtained a wetlands permit to construct f rom the administrative record. The petitioner owns property on the The following facts were found by the Council, or are otherwise derived

remand. to reconstruct and extend his dock on the Piscataqua River. We vacate and Department of Environmental Services (DES) denying his request for a permit Wet lands Council (Council) upholding the decision of the New Hampshire LYNN, C. J. The petitioner, N. Miles Cook, III, appeals a ruling of the

Environmental Services. attorney general, on the brief and orally), for New Hampshire Department of Gordon J. MacDonald, attorney general (Mary E. Maloney, assistant

the brief and orally), for N. Miles Cook, III. Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael J. Tierney on

No. 2017 - 0142 Wetlands Coun cil

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

concluded that the petitioner did not meet his burden of demonstrating that that DES ’s decision was unlawful or unreasonable. Therefore, the Council favor, five against” whether the petitioner had met his burden to demonstrate Finally, t he Council explained that its members “split their vote five in

findings in sup port of denial. or had not specifically voted on the issues raised respecting DES’s other existing dock.” The Council further explained that it was either “evenly divided” that “there was no more usable water at the proposed dock compared with the petitioner had satisfied his burden of demonstrating that DES erred by finding of Env - Wt 30 p. 2 2.01(a). The Council also evenly split their votes on whether the failed to prove that he had a “need” for the expanded dock within the meaning to demonstrate that DES acted unlawfully or unre asonably by finding that he explained that it was evenly split on whether the petitioner had met his burden basis than he currently experiences with the existing dock.” The Council dock proposal based on hi s ‘need’ to access navigable water on a more frequent issue in [the petitioner’s] appeal . . . is whether [he] could justify the expand ed the petitioner’s appeal. In its decision, the Council noted that “[t]he central hearing and subsequent deliberations, the Council issued a decision denying The petitioner appealed to the Council. Following an adjudicatory

thereby minimize impacts.” the community dock was “constructed to serve many users in one location and 30 p. 2 2.01(a) because the use of the community dock structure was available and the petitioner ’s dock did not meet the “public good” requirement in Env - Wt the applicant with his current 107’ dock.” I t also determined t hat extending depth at the new proposed float location at 280’ from shore, than is available to DES found that the petitioner’s “plan shows that there will be no more water dock on the abutting property to access his mooring.” In that same paragraph, of the Brickyard Estates Dockowner’s Association and use the all - tide access Piscataqua River in front of the subject propert y, and the ability to become part because he “has an existing dock with partial tide access, a mooring in the 302.01(a) and 302.04(a)(1) (respectively, Env - Wt 302.01 and Env - Wt 302.04) demonstrate “need” pursuant to New Hampshire Administrative Rules, Env - Wt of its decision. As relevant here, DES found that the petitioner failed to In Octo ber, DES denied the application, citing seven findings in support

“access rights at this property.” contended that “a large r dock is needed” for him to reasonably exercise his problematic access during almost all of the tidal cycle.” As a result, he navigable public water over more [than] half of the tidal cycle, and provides m aintained that “[t] he existing dock .. . does not provide reasonable access to with “reasonable access to navigable water.” In his application, the petitioner to reconstruct and extend the existing dock for the purpose of providing him “partial tide access.” In March p. 2 2015, the petitioner applied to DES for a permit p. 3 3

(quotation and brackets omitted). “We first examine the language of the considered as a whole.” Petition of Sawyer, 170 N.H. 197, 20 p. 3 3 (2017) arbiters of the legislature’s intent, as expressed in the words of the statute administrative rules. Id. at 92. When interpreting statutes, “we are the final same principles of c onstruction when interpreting both statutes and novo. See Bach v. N.H. Dep’t of Safety, 169 N.H. 87, 91 (2016). We use the interpretation. We review the interpretation of statutes and regulations de Resolving this issue requires u s to engage in statutory and regulatory

reasonable rules to implement the purposes of” RSA chapter 482 - A. pursuant to “RSA 482 - A:11, which directs the Commissioner to adopt chapter as articulated in RSA 482 - A:1 (201 p. 3 3), and was properly promulgated scheme. DES counters th at the need requirement reflects the purpose of the Env - Wt 302.01(a) and Env - Wt 302.04(a)(1) impermissibly add s to the statutory require an applicant to show ‘need’” and, therefore, the need requirement in approval of his application. He contends that RSA chapter 482 - A “does not requiring that he demonstrate a need to expand his dock as a requirement f or We begin by addressing the petitioner’s argument that DES erred by

of the adjudicatory hearing as required by RSA 541 - A: p. 3 31, VII (200 7). part of the deliberations; and (3) fail ing to maintain a complete audio recording were split five to five; (2) allowing a council member to vote after attending only reaching a decision pursuant to RSA 482 - A:10, VI (2013) because the votes and deliberations.” Spe cifically, he contends that the Council erred by: (1) not “there were several procedural errors at the [Council’s adjudicatory] hearing applied the need requirement in this case. The petitioner further argues that Nonetheless, he maintains that, even if “need” is required, DES improperly chapter 482 - A (2013 & Supp. 2017), which governs fill and dredge in wetlands. demonstr ate a need for an expanded dock because need is not required by RSA On appeal, the petitioner argues that DES erred by requiring him to

Council’s rulings on issues of law de novo. Id. in the record. Appeal of Michele, 168 N.H. 98, 105 (2015). We review the rather, to determine whether the findings are supported by com petent evidence w hether we would have found differently or to reweigh the evidence, but, 541:1 p. 3 3. In reviewing the Council’s findings, our task is not to determine Council’s findings of fact are presumed prima facie lawful and reasonable. RSA preponderance of the evidence, that it is unjust or unreasonable. The Council’s order except for errors of law, unless we are satisfied, by a clear O:14, III (Supp. 2017). Under RSA 541:13 (2007), we will not set aside the RSA chapter 541 governs our review of Council decisions. See RSA 21 -

petitioner’s motion for reconsideration was denied, and this appeal followed. majority of the Council that DES acted illegally or unreasonably.” The DES erred by denying his permit because the petitioner “failed to convince a p. 4 4

in Env - Wt 302.01(a) and Env - Wt 302.0 p. 4 4(a)(1) is a reasonable rule for carrying statutory scheme as a who le, however, we conclude that the need requirement applicants seeking a wetlands permit under RSA chapter 482 - A. Viewing the accompanying statutes in the chapter do not specify need as a requirement for We agree with the p etitioner that the language of RSA 482 - A:1 and the

A: 1.” unless the department finds it to be for the public good as set out in RSA p. 4 482 tidal wetlands. No project shall be allowed that intrudes into a tidal wetland demonstrated by the applicant prior to department approval of any alteration of Env - Wt 302.01 (a) specifies that “[f]or tidal wetlands, need shall be

the interests of the general public. silting of open water channels, and will otherwise adversely affect flood waters and silt, thus increasing general flood damage and the will disturb and reduce the natural ab ility of wetlands to absorb stream channels and their ability to handle the runoff of waters, be detrimental to adequate groundwater levels, will adversely affect commerce, recreation and aesthetic enjoyment of the public, will wildlife of importance, will eliminate, depreciat e or obstruct the destroy habitats and reproduction areas for plants, fish and crustacea, shellfish and wildlife of significant value, will damage or affect the value of such areas as sources of nutrients for finfish, because such despoliation or unregulated alteration will adv ersely herein defined, from despoliation and unregulated alteration, waters and its wetlands, (both salt water and fresh - water), as to protect and preserve its submerged lands under tidal and fresh It is found to be for the public good and welfare of this s tate

p. 4 482 - A:1 states the purpose of the chapter: RSA chapter 482 - A as a whole regulates fill and dredge in wetlands. RSA

a governing statute exceed the agency’s authority. Id. (quotation omitted). Moreover, agency regulations that cont radict the terms of from, or modify the statute which they are intended to implement.” Id. (2011) (quotation omitted). “Thus, administrative rules may not add to, detract effectuate the purpose of the stat ute.” Appeal of Wilson, 161 N.H. 659, 662 authority “is designed only to permit the [agency] to fill in the details to to promulgate rules necessary for the proper execution of the laws, this While the legislature may delegate to administrative agencies the power

advanced by the entire statutory scheme.” Id. (quotation omitted). t he legislature’s intent in enacting them, and in light of the policy sough t to be words used.” Id. (quotation omitt ed). “Our goal is to apply statutes in light of statute, and, where possible, ascribe the plain and ordinary meanings to the p. 5 5

48 p. 5 5 - C, we looked to the plain and ordinary meaning of the term. Id. We Noting that the legislature had failed to define “need” in RSA chap ter

application.” Id. (quotation omitted). the efficient use of, and need for, the proposed withdrawal in the permit wat er conservation management plan and description of need to demonstrate Administrative Rules, Env - Ws 388.0 p. 5 5 required the applicant to “prepare a (quotation s and brackets omitted). In turn, former New Hampshire plans which demonstrate the ne ed for the proposed withdrawals.” Id. hour period,” including “r equ irements relative to conservation management relating to “new groundwater withdrawals of 57,600 gallons or more in a ny 24 version of RSA 485 - C:4, XII in effect at that time directed DES to adopt rules 2006) and DES’s rules. Appeal of Town of Nottingham, 153 N.H. at 553. The requisite showing of need as required by RSA 485 - C:4, XII(b) (2001) (amended under RSA chapter 485 - C, the Groundwater Protection Act, had made the context of whether an applicant seeking a large groundwater withdrawal permit In Appeal of Town of Nottingham, we interpreted the term “need” in the

and also an applicant’s common law right to wharf out.” context of dock permits in a manner that reflects the purpose of the statute, term need, bu t contends that it “has consistently interpreted [need] in the Nottingham. DES does not offer a clearly defined alternative meaning for the 302.04(a)(1) should be defined as we defined it in Appeal of Town of DES disagrees that need as used in Env - Wt 302.01(a) and Env - Wt

this definition. (Quo tation and bolding omitted.) and the Council erred by failing to apply a definition of need consistent with that the term “need” means “requisite, desirable, or useful,” and that both DES Appeal of Town of Nottingham, 1 p. 5 53 N.H. 539 (2006), the petitioner contends definition of need an d improperly looking at offsite structures.” Relying upon requirement for obtaining a permit, DES erred by “applying the wrong Nonetheless, the petitioner argues that even if need is a proper

the chapter’s purpose. See Ap peal of Wilson, 1 p. 6 61 N.H. at 662. Env - Wt 302.01(a) merely fills in the details of RSA chapter 482 - A to effectuate need for any alteration of those submerged lands and wetlands. In this way, that it is reasonable for DES to require a permit applicant to demonstrate a Given the stated purpose of RSA chapter 482 - A, see RSA 482 - A:1, we believe purpose. RSA 482 - A:11, I (2013); see also RSA 482 - A:2, I (2013). rules, pursuant to the rulemaking provisions of RSA p. 5 541 - A, to implement” th is charged the commissioner of environmental services with adopting “reasonable from despoliation and unregulated alteration.” RSA 482 - A:1. T he legislature [the state’s] submerged lands under tidal and fresh waters and its wetlands . . . RSA 482 - A:1. T he purpose of RSA chapter 482 - A is to “protect and preserve out DES’s function, see RSA 21 - O:1, II (2012), and that it does not conflict with 6

“need” as used in Env - Wt 302.01(a) and Env - Wt 302.04(a)(1) for determining Because DES did not have the benefit of our interpretation of the term

ambiguous. Motorsports Holdings, 155 N.H. 491, 502 (2007). Here, the term “need” is not precludes applica tion of the administrative gloss doctrine.” Anderson v. (quotation omitted). However, “a lack of ambiguity in a statute or ordinance without legislative interference.” Appeal of Stewart, 1 p. 6 64 N.H. 772, 77 6 (2013) manner and apply it to similarly situated applicants over a period of years those responsible for its implementation interpret the clause in a consis tent construction. Administrative gloss is placed upon an ambiguous clause when need. We disagree. “The doctrine of administrative gloss is a rule of statutory guidelines,” the doctrine of administrative gloss suppor ts its interpretation of DES further contends that, given its “fair an d consistent application of

found in the dictionary. See Appeal of Town of Nottingham, 153 N.H. at 555. construction, w e are ascribing to the term its plain and ordinary meaning as Town of Nottingham, in accordance with our rules of statutory and regulatory Appeal of Town of Nottingham in a different context. Rather, as in Appeal of A:1.” We are not, however, merely adopting the definition of “need” used in not be consistent with the purposes identified by the legislature in RSA 482 - “entirely different” chapters, and defining need as we did in that case “would Nottingham because RSA chapter 485 - C and RSA chapter 482 - A are two Env - Wt 302.01(a) and Env - Wt 302.04(a)(1) that we did in Appeal of Town of DES argues that we should not adopt the same definition of need for

wetlands. Id. requisite, desirable, or useful” prior to approval of any project that alters tidal Wt 302.04(a)(1) require an applicant to demonstra te “a want of something Dictionary, supra at 1512. Accordingly, Env - Wt 302.01(a) and, in turn, Env of something requisite, desirable, or useful.” Webster’s Third New International Nottingham, we conclude that t he most relevant definition of “need” is “a want also Petition of Hagenbuch, 1 p. 6 69 N.H. 555, 560 (2017). As in Appeal of Town of ordinary meaning. See Appeal of Town of Nottingham, 153 N.H. at 555; see When regulatory terms are undefined, we ascribe to them their plain and See N.H. Admin. R., Env - Wt 101; see also N.H. Admin. R., Env - Wt 302.04. 302.01(a) or in Env - Wt 302.04(a)(1) governing requirements for an application. Similarly, here, DES has failed to define the term “need” in Env - Wt

withdrawal was “requisite, desirable, or useful.” Id. (quotation omitted). Env - Ws 388.05 required DES to determine whether the applicant’s proposed held that RSA 485 - C:4, XII(b) and former New Hampshire Administrative Rules, Third New Interna tional Dictionary 1512 (unabridged ed. 2002)). Thus, we “‘ a want of something requisite, desirable, or useful. ’” Id. (quoting Webster’s concluded that the most relevant def inition of “need” in Webster’s D ictionary is p. 7 7

C.J., retired, specially assigned under RSA 490:3, concurred. HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred; DALIANIS,

v. Blackmer, 149 N.H. 4 p. 7 7, 49 (2003). or in his brief that are not adequately developed are deemed waived. See S tate error arguments. Finally, any issues raised in the petitioner’ s notice of appeal In light of our decision, we need not address the petitioner’s procedural

despoliation and unregulated alteration.’” (brackets and ellipsis omitted)). submerged lands under tidal and fresh waters and its wetlands from purpose of [RSA chapter 482 - A] is to ‘protect and preserve the state’s (“Instead of al tering the state of property rights under the common law, the common - law littoral right.”); see also Appeal of Michele, 168 N.H. at 103 - 04 the right to wharf out to navigable depth has long been recognized as a omitted)); Donaghey v. Croteau, 119 N.H. 320, 323 (19 p. 7 79) (“In New Hampshire, property rights associated with ownership of lakeshore propert y.” (quotation Town of New London, 158 N.H. 164, 169 (2008) (“Littoral rights are incidental desirable, or useful,” for further access on his property. See Lakeside Lodge v. whether he has demonstrated “need,” i.e., “a want of something requisite, ability to use an all - tide access dock on an abutting property is not relevant to ab utting property to access his mooring.” We agree with the petiti oner that his Estates Dockowner’s Association and use the all - tide access dock on the front of the subject property, and the ability to become part of the Brickyard existing dock with partial tide access, a mooring in the Piscataqua River in requirement in Env - Wt 302.01(a) and Env - Wt 302.04 (a)(1) because he “has an permit application, DES found that the petitioner failed to meet the need Turner Const r. Co., 164 N.H. 659, 673 (2013). In its denial of the petitioner’s a different property,” as t he issue may arise on remand. See Axenics, Inc. v. to demonstrate a need for the expanded dock because he could “use a dock on petitioner’s argument that DES erred by determining that the petitioner failed Although we have vacated DES’s decision, we nonetheless address the

her ein. to DES for further consideration in light of the definition we have adopted vacate DES’s decision and remand to the Council with instructions to remand more frequent basis than he currently experiences with the existing dock,” we e xpanded dock proposal based on his ‘ need ’ to access navigable water on a Council noted, the central issue was whether the petitioner “could justify the w he ther an applicant has met the permit requirements, and because, as the