2024 N.H. 71, Appeal of Port City Air Leasing, Inc.

on the brief and orally), for the intervenor. Preti Flaherty Beliveau & Pachios PLLP, of Concord (Nathan R. Fennessy

petitioner. Marvelley and Daniel Hoefle on the brief, and Jacob Marvelley orally), for the Hoefle, Phoenix, Gormley & Roberts, PLLC, of Portsmouth (Jacob

Citation: Appeal of Port City Air Leasing, Inc., 2024 N.H. 71 Case No. 2023 - 0278 Wetlands Council

THE SUPREME COURT OF NEW HAMPSHIRE

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

“clearly unreasonable or unlawful.” Id. We must uphold the Council’s decision the petitioner, has the burden of demonstrating that the Council’s decision was be deemed to be prima facie lawful and reasonable. RSA 541:13. Port City, as RSA p. 2 21 - O:14, III (2020). Under this statute, the Council’s findings of fact shall 541:13 (2021). Appeal of N.H. De p’t of Env tl. Serv s., 173 N.H. 282, 289 (2020); [¶5] Our standard of review of the Council’s decision is set forth in RSA

This appeal followed. motion for reconsideration and rehearing, which the Hearing Officer denied. unconstitutional if the y d o not afford Port City standin g. Port City filed a Hearing Officer also rejected Port City’s argument s that the statutes are mail under RSA 48 p. 2 2 - A:9 as an “abutting landowner.” RSA 482 - A:9. The the Hearing Officer rejected Port City’s argument that it is entitled to notice by entitled to notice by mail under RSA 482 - A:8 and RSA 482 - A:9. Specifically, A:10, I, which defines “person aggrieved” as the applicant and any person DES’s decision because Port City is not a “person aggrieved” under RSA 482 - [¶4] T he Hearing Officer ruled that Port City lack ed standing to appeal

standing. moved to summarily dismiss the appea l, arguing that Port City lacked (Supp. p. 2 2023) (establishing the Wetlands Council). Million Air subsequently appeals to coun cils established under RSA chapter 21 - O); RSA 21 - O:5 - a, I (Supp. 2023) (providing that attorney general shall appoint hearing officers for permitted Million Air to intervene in that proceeding. See RSA 21 - M:3, VIII issuance of the permit was unlawful and unreasonable. Th e Hearing Officer administrative appeal of that decision with t he Council, claiming that DES’s Wetlands Bureau issued the permit in June 2022. Port City filed an wetland s in order to construct an access road to the proposed facility. The application to the DES Wetlan ds Bureau for a permit to dredge and fill [¶3] In connection with this proposal, Million Air submitted an

also providing aircraft - related services. premises, from the Pease Development Authority to build and operate a facility has proposed to lease land, which abuts a portion of Port City’s leased City may use the property to offer certain aircraft - related services. Million Air Tradeport from the Pease Development Authority. The lease provides that Port undisputed. Port City leases land and buildings located at Pease International [¶ p. 2 2] The following facts are supported by the record or are otherwise

the statutes violate its state and federal due process rights. We affirm. a sserts that, if those statutes do not afford it standing to appeal to the Council, 48 p. 2 2 - A:10, I (2024) to appeal the wetlands permitting decision. Port City also p. 3 3

482 - A:9. See Lincoln, 172 N.H. at 247 - 48. The legislature has not expressly [¶9] We first consider the plain meaning of “landowner” as used in RSA

agree with Million Air. its interests in the leased premises are not equivalent to fee ownership. We “landowner.” Million Air counters th at Port City is not a “landowner” because lease grant it sufficient interests in the leased premises to make it a (2015), and Appeal of Town of Lincoln, 172 N.H. 244 (2019), the ter ms of its under RSA 482 - A:9. It contends that under Appeal of Michele, 168 N.H. 98 [¶8] Port City asserts that it is an abutting landowner entitled to notice

RSA 482 - A:8; and to “all known abutting landowners,” RSA 482 - A:9. local governing body, planning board, and municipal conservation commission, public hearing on a n RSA 482 - A: p. 3 3 proposal to: the applicant, property owner, RSA 482 - A:8 and RSA 482 - A:9 require DES to provide notice by mail of any

A:8 and RSA 482 - A:9. person required to be noticed by mail in accordance with RSA 482 aggrieved under this section shall mean the applicant and any supreme court as provided in RSA 21 - O:14 . . . . A person under RSA 482 - A: p. 3 3 may appeal to the wetlands council and to the Any person aggrieved by a decision made by the department

[¶7] RSA 482 - A:10, I, provides, in relevant part, that:

the context of the statute as a whole. Id. Moreover, we do not consider words and phrases in isolation, but rather within effectuate its overall purpose and avoid an absurd or unjust result. Id. not see fit to include. Id. at 248. We construe all parts of a statute together to what the legislature might have said or add language that the legislature did interpret legislative intent from the statute as written and will not consider language according to its plain and ordinary meaning. Id. at 247 - 48. We first look to the language of the statute itself, and, if possible, construe that we review de novo. Appeal of Town of Lincoln, 172 N.H. 244, 247 (2019). W e statutory interpretation. Statutory interpretation is a question of law, which interpreted RSA 482 - A:9 and :10. Resolving this issue requires us to engage in [¶6] On appeal, Port City first argues that the Hearing Officer erroneously

A. Interpretation of RSA 482 - A:9 and RSA 482 - A:10, I

105 (2015). the Council’s rulings on issues of law de novo. Appeal of Michele, 168 N.H. 98, evidence before us, “that such order is unjust or unreasonable.” Id. We review except for errors of law, unless we are satisfied, by a clear preponderance of the p. 4 4

inspect the levee “with a view to its proper maintenance and operation,” and holders in Lincoln had a limited and non - exclusive right to enter land only to land “tantamount to fee ownership.” Id. at 2 p. 4 49. By contrast, the easement whatever purpose the easement holders desired, making their interest in the easement at issue in Michele granted exclusive rights to use the land for holding in that case. See id. at 24 9 - 53. We explained that the expans ive distinguished the facts in Lincoln from those in Michele and clarified our that the easement holder in Lincoln was not the “owner” of the levee, we under RSA 482:11 - a (2024). See Lincoln, 172 N.H. at 24 5 - 47. In concluding constituted the “owner” of the levee responsible for its maintenance and repair Lincoln: whether the holder of a limited easement for inspection of a levee [¶12] We subsequently addressed a related but distinct question in

at 103 - 0 p. 4 4. holders had sufficient ownership interests to apply for a dock permit. See id. attendant to the grant of an express easement, that the shoreline easement on the broad scope of the easement at issue and the common law rights property interests “other than fee ownership.” Id. at 103. We concluded, based 10 0 - 0 1, 10 3 - 04. We interpreted “owner” and “ownership” as encompassing construct a dock in water adjacent to their easement. See Michele, 168 N.H. at under RSA 482 - A:11, II (2024) such that they could apply for a permit to whether parties who held title to a shoreline easement qualified as “owners” meaning of “landowner” as used in RSA 482 - A:9. In Michele, we addressed [¶11] Michele and Lincoln further inform our understanding of the

land or not. one that has the legal or rightful title to land whether the possessor of that omitted); see also Lincoln, 172 N.H. at 2 p. 4 48. Accordingly, “landowner” means the possessor or not.” Michele, 168 N.H. at 103 (quotation and emphasis related statutes, “owner” means “one that has the legal or rightful title whether previously explained in Michele and Lincoln when interpreting similar terms in webster.com/unabridged/landowner (last visited Dec. 1 7, 2024). And, as we Webster’s Unabridged Dictionary, https://unabridged.merriam - (2020). The plain meaning of “landowner” is “an owner of land.” Merriam usage, using the dictionary for guidance. Michele, 168 N.H. at 102; RSA 21:2 [¶10] When a term is not defined in the statute, we look to its common

S ee RSA p. 4 482 - A:2 (2024). legislature left undefined the term “landowner” as used in RSA chapter 482 - A. taken or to be taken, including tenants for life or years”). Instead, t he of eminent domain procedure act as, in part, “the owner of record of property the premises”); cf. RSA 498 - A:2, II (2010) (defining “[c]ondemnee” for purposes statute as including “an owner, lessee, holder of an easement, [or] occupant of (Supp. 2023) (defining “[l]andowner” as used in recreational use immunity as including a lessee, tenant, or occupant of the property. See RSA 212:34, I(b) define d “landowner” in this context — as it has in at least one other statute — p. 5 5

extend for additional five - year terms up to a maximum of thirty years. Nor are only for the duration of the lease, which has a five - year term with options to buildings and improvements on the leased premises. And it holds that title Trust, 147 N.H. 733, 737 (2002). In contrast, Port City holds title to only the Cricklewood on the Bellamy Cond o. Ass oc. v. Cricklewood on the Bellamy dominant estate — and be transferable and inheritable with it. See appurtenant easement would run with the non - waterfront property — the their non - waterfront property. See Michele, 168 N.H. at 100, 103. Such an the easement holders in Michele held title to a deeded easement appurtenant to [¶1 p. 5 5] Moreover, Port City does not hold title to the leased land, whereas

owner in Lincoln specifically retained ownership and control over the levee). at 249 (distinguishing Lincoln from Michele in part based on fact that fee easement, including the right to make improvements), with Lincoln, 172 N.H. takes by implication whatever rights are reasonably necessary to enjoy premises. C ompare id. at 103 (explaining that grantee of express easement lessor approval before making any improvements or alterations to the leased control over the leased premises by, among other things, requiring it to obtain express written consent” of the lesso r. The lease also circumscribes Port City’s engaging in “any use” not “specifically granted” in the lease “without the prior space to support th ose services. Indeed, the lease prohibits Port City from storage and maintenance of ground equipment, hangaring of aircraft, and office purposes enumerated in the lease: sale of aviation fuel, air cargo operations, (quotation omitted), Port City may use the leased p remises only for the limited could use the shore frontage “for whatever purpose s they may desire,” id. is where the similarities end. U nlike the easement holders in Michele who right to exclusive use of the leased premises, see Michele, 168 N.H. at 100, that true that Port City, like the easement holders in Michele, has the apparent it has interests in the leased premises tantamount to fee ownership. While it is [¶14] Based on the terms of the lease, w e do not agree with Port City that

determine.” (quotation and brackets omitted)). interpretation of a lease is ultimately a question of law for this court to Alexander v. Blackstone Realty Assoc s., 141 N.H. 366, 368 (1996) (“The proper sufficient interests in the leased premises to qualify as a “landowner.” Cf. must examine the terms of Port City’s lease to assess whether it possesses upon the scope of the interests held. See id. at 24 9, 2 p. 5 53. Accordingly, we “landowner” in this context is a fact - driven inquiry, depending in large part 249. These cases also demonstrate that whether a person is an “owner” or interests in the property “tantamount to fee ownership,” Lincoln, 172 N.H. at property to be an “owner,” Michele, 168 N.H. at 103, the person must hold RSA chapter 482 - A, although a person need not be the fee owner of the [¶13] R ead together, Michele and Lincoln e stablish that, for purposes of

levee. I d. (quotation omitted). the fee owner of the land specifically retained ownership and control of the p. 6 6

“as - applied” constitutional challenges. See Huckins v. McSweeney, 1 p. 6 66 N.H. declare it invalid except upon inescapable grounds. Id. Port City raises only id. In revie wing a legislative act, we presume it to be constitutional and will not a statute’s constitutionality — here, Port City — bears the burden of proof. See Deere & Co. v. State of N.H., 168 N.H. 460, 471 (2015). The party challenging deprivation hearing. We review the constitutionality of a statute de novo. injured party, of a right to a remedy; and (2) the statutes fail to provide it a pre unconstitutional on two due process grounds: (1) the statutes deprive it, as an 482 - A:10, I, preclude it from appealing to the Council, the statutes are [¶18] We n ext turn to Port City’s arguments that if RSA 482 - A:9 and RSA

B. Due Process Challenges

interpretation result ed in “disparate treatment of differently situated people”). identically situated” and rejecting claim of absurdity because our statutory absurd results when it makes untenable distinctions between persons who are N.H. 38, 43 - 44 (2022) (explaining that “a literal reading of a statute leads to Port City lacks that ability. Cf. Rudder v. Dir., N.H. Div. of Motor Vehicles, 175 qualify as a landowner with statutory standing to appeal to the Council while unconstitutional result that a tenant with different interests in leased land may person’s interests in the land. We do not think it an absur d, unjust, or “landowner” is a fact - intensive inquiry based on the nature and extent of the appealing to the Council. As explained above, whether a person is a not interpret RSA 482 - A: 9 and :10 as precluding all injured tenants from all “injured tenants” of the right to appeal to the Council, we disagree. We do leads to an absurd, unjust, or unconstitutional result because it would deprive [¶17] To the extent Port City asserts that this construction of the statutes

standing to appeal to the Council under RSA 482 - A:10, I. purposes of RSA 482 - A:9, and, consequently, not a “person aggrieved” with N.H. at 249. We t herefore conclude that Port City is not a “landowner” for interests in the leased premises “tan tamount to fee ownership.” Lincoln, 172 find these additional benefits and burdens sufficient to make Port City’s Port City’s interests and those of the easement holders in Michele, we do not leased premises. However, in light of the fundamental distinctions between Port City claims it is listed on the tax cards as the “[o]wner” of a portion of the pay municipal fees and taxes on the leased premises. We also observe that to mortgage its leasehold interest and seek tax abatement and the obligation to benefits and burdens arguably attendant to land ownership, such as the ability [¶1 p. 6 6] We acknowledge that Port City acquired through the lease other

therefore contingent upon its continued compliance with the lease terms. enduring nature. Its rights in the premises spring from the lease and are lessor’s approval. Ultimately, Port City’s interests are not of an expansive or sublease any part of the premises is, with limited exception, subject to the Port City’s interests in the property freely transferable: its ability to assign or p. 7 7

equ itable remedies and alternative statutory remedy). issue, their rights to a remedy were not violated because they had available although school support staff had no remedy under statutory provision at Goffstown Educ. Support Staff, 150 N.H. p. 7 795, 803 (2004) (concluding that, rights under Part I, Article 14 of the State Co nstitution. See Petition of remedy under RSA 482 - A:9 and :10 does not violate Port City’s due process property). Accordingly, we conclude that the absence of an administrative upon flow of contaminated water from defendant’s property to plaintiff’s involving claims of trespass and negligent creation of private nuisance based Calawa, 116 N.H. 676, 676 - 79 (1976) (affirming damages award in suit injuries, that does not mean it is without a remedy. See, e.g., Hauser v. avenue for appealing the permitting decision and redressing these claimed we have construed the statutes, Port City does not have an administrative triggering its environmental indemnity obligations to its lessor. Although, as claims, could spread to its leased premises, impacting its water supply and adding new contamination to the wetland s. That contamination, Port City Air’s proposed facility, pose the risk of disturbing existing contaminants and because construction of the access road, and ultimately operation of Million [¶20] Port City claims that issuance of the wetlands permit will injure it

(quotation omitted). that all injured persons will receive full compensation for their injuries.” Id. impairments of the right of access. Id. “Part I, Article 14 does not guarantee remedy is not a fundamental right, but is relative and does not prohibit all infringements upon access to courts. Huckins, 166 N.H. at 180. The right to a remedies available and to guard against arbitrary and discriminatory N.H. CONST. pt. I, art. 14. The purpose of this provision is to make civil

promptly, and without delay; conformably to the laws. being obliged to purchase it; completely, and wi thout any denial; property, or character; to obtain right and justice freely, without recourse to the laws, for all injuries he may receive in his person, Every subject of this state is entitled to a certain remedy, by having

Part I, Article 14 of the State Constitution provides: injured party, would have no avenue for challenging the permitting decision. rights under Part I, Article 14 of the State Constitution because it, as an preclude it from appealing to the Council, the statutes violate its due process [¶19] Port City first argues that, if RSA 482 - A:9 and RSA 482 - A:10, I,

withdrew that challenge. a facial challenge to the statutes. However, in its reply brief, Port City challenges). We note that Port City raised in its opening brief what it frames as 1 p. 7 76, 179 (2014) (explaining difference between facial and as - applied p. 8 8

protected property interest in continued possession of goods). (concluding that, under conditional sales contract, appellants acquired gives rise to a protected property interest. See Fuentes, 407 U.S. at p. 8 86 - 87 trigger that indemnity.” We construe this as an argument that Port City’s lease Million Air’s construction a nd operations in and near these wetlands will to its facility, particularly given its environmental indemnity and the risk that an abutting long - term tenant making long - term investments in improvements [¶24] Port City asserts that it has a legally protected property interest “as

(qu otation omitted). cause,” Duffley v. N.H. Interschol. Ath. Ass oc., Inc., 122 N.H. 4 p. 8 84, 491 (1982) State law,” Bethlehem, 154 N.H. at 329, which “cannot be removed except for a legally protec ted property interest is an individual entitlement grounded in goods constituted a “deprivation” for due process purposes). “The hallmark of (reasoning that application of replevin statutes to temporarily seize plaintiffs’ of which it will be deprived, Fuentes v. Shevin, 407 U.S. 67, 84 - 86 (1972) property interest, see Appeal of Town of Bethlehem, 154 N.H. 314, 328 (2006), procedural due process claim, Port City must establish a protected liberty or N.H. at 243 (outlining procedural due process analysis). To prevail on its that the party has suffered or will suffer an “injury in fact”), with Nguyen, 170 own personal rights have been or will be directly affected — in other words, (explaining that party has standing to raise constitutional issue when party’s claim. Compare Appeal of Richards, 134 N.H. 148, 154 (1991) (per curiam) claim is distinct from the burden of proof required to prevail on a constitutional clarify that a party’s burden to establish standing to pursue a constitutional [¶23] Given Port City’s extensive briefing on the issue of standing, we

determine what process is due.” Id. (quotation omitted). her to due process protection; and second, if such an interest exists, we first, we determine whether the individual has an interest that entitles him or engage in a two - part analysis in addressing procedural due process claims: of law.” Appeal of Nguyen, 170 N.H. 23 p. 8 8, 243 (2017) (quotation omitted). “We N.H. CONST. pt. I, art. 15. “Law of the land in this article means due process liberty, or estate, but by the ju dgment of his peers, or the law of the land . . . .” privileges, put out of the protection of the law, exiled or deprived of his life, part: “No subject shall be . . . deprived of his property, immunities, or [¶22] Part I, Article 15 of the State Constitution provides, in relevant

law only to aid in our analysis. See State v. Ball, 124 N.H. 226, 231 - 33 (1 p. 9 9 p. 8 83). address Port City’s claim under the State Constitution and rely upon federal injured party, of the opportunity for a pre - deprivation hearing. We first the State and Federal Constitutions in that the statutes deprive it, as a n under RSA 482 - A:9 and :10 violates its procedural due process rights under [¶21] Port City next argues that the absence of a right for it to appeal 9

appeal in its reply brief, s ee Panas v. Harakis & K - Mart Corp., 12 p. 9 9 N.H. 591, above, they are deemed waived because they were raised for the first time on appeal. To the extent Port City raises additional arguments not addressed herein. We therefore affirm the Hearing Officer’s dismissal of Port City’s to Port City does not violate its state or federal due process rights as discussed Council. We further determine that this construction of the statutes as applied A:9 and RSA 482 - A:10, I, to appeal the issuance of the wetlands permit to the [¶27] In sum, we conclude that Port City lacks standing under RSA 482 -

under the Federal Constitution as we do under the State Constitution. standard under Federal Constitution). We the refore reach the same result protections under State Constitution); Fuentes, 407 U.S. at 84 (applying same (requiring individual to establish protected interest triggering due process State Constitution under these circumstances. See Nguyen, 170 N.H. at 243 The Federal Constitution offers Port City no greater protection than does the 471 (party challenging constitutionality of statute bears the burden of proof). due process protection under the State Constitution. See Deere, 168 N.H. at establishing that it will be deprived of a protected property interest trigger ing [¶26] Accordingly, we conclude that Port City has not met its burden of

interest in property:. . . the right to continued residence in their homes”). that tenants evicted from public housing had “been deprived of a significant (emphasis added)); Greene v. Lindsey, 456 U.S. 444, 450 - 51 (1 p. 9 982) (observing property right that may not be denied without affording due process.” revocation of a license necessary for one’s occupation i s a legally protected protections. See, e.g., Nguyen, 170 N.H. at 243 (“This court has held that the approaching those that this and other courts have held trigger due process notice). In short, Port City does not allege a deprivation of a property interest plaintiff’s long - term lease of property adjacent to airport without written adequately alleged procedural due process claim where defendant terminated F. Supp. 2d 1179, 1183, 1188 - 90 (D. Colo. 20 p. 10 10) (concluding plaintiff not been terminated), with Cross Conti nent Development v. Town of Akron, 742 long - term lease, permitting it to provide aircraft - relat ed services at airport, had property interest warranting procedural due process protection because its Pa. 2013) (observing that plaintiff failed to establish deprivation of protected Chester County Aviation Authority, 967 F. Supp. 2d 1098, 1101, 1113 (E.D. occur as a result of the issuance of the wetlands permit. Compare CCAH v. property interest, it has not identified how a deprivation of such interest would [¶25] Setting aside the issue of whether Port City has a legally protected 10

vote. HANTZ MARCONI, J., sat for oral argument but did not participate in the final M AC DONALD, C.J., and DONOVAN and COUNTWAY, JJ., concurred;

Vogel, 137 N.H. 321, 322 (1993). 617 - 18 (1987), or otherwise do not warrant further discussion, see Vogel v.