Appeal of New Hampshire Department of Environmental Services, 052220 NHSC, 2018-0650

Docket Nº:2018-0650
Opinion Judge:HANTZ MARCONI, J.
Party Name:APPEAL OF NEW HAMPSHIRE DEPARTMENT OF ENVIRONMENTAL SERVICES (New Hampshire Wetlands Council)
Attorney:Gordon J. MacDonald, attorney general (K. Allen Brooks, senior assistant attorney general, and Joshua C. Harrison, assistant attorney general, on the brief, and Mr. Brooks orally), for the petitioner. Cronin, Bisson & Zalinsky, P.C., of Manchester (John G. Cronin and Daniel D. Muller, Jr. on the ...
Judge Panel:HICKS, BASSETT, and DONOVAN, JJ., concurred.
Case Date:May 22, 2020
Court:Supreme Court of New Hampshire
 
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APPEAL OF NEW HAMPSHIRE DEPARTMENT OF ENVIRONMENTAL SERVICES

(New Hampshire Wetlands Council)

No. 2018-0650

Supreme Court of New Hampshire

May 22, 2020

Wetlands Council

Argued: November 6, 2019

Gordon J. MacDonald, attorney general (K. Allen Brooks, senior assistant attorney general, and Joshua C. Harrison, assistant attorney general, on the brief, and Mr. Brooks orally), for the petitioner.

Cronin, Bisson & Zalinsky, P.C., of Manchester (John G. Cronin and Daniel D. Muller, Jr. on the brief, and Mr. Cronin orally), for the respondents.

HANTZ MARCONI, J.

The petitioner, New Hampshire Department of Environmental Services (DES), appeals a decision of the New Hampshire Wetlands Council remanding an administrative order issued by DES that directed the respondents, Bryan and Linda Corr, to cease and desist unpermitted work on their lakefront property. We affirm in part, vacate in part, and remand.

I

A. Underlying Facts

The following facts were found by the Council, or are otherwise derived from the administrative record. The Corrs own property in Moultonborough located on the shore of Lake Winnipesaukee. When they purchased the property, it contained a dry boathouse, positioned approximately two feet from the shore, which was partially collapsed as a result of snow load. The boathouse was considered a "grandfathered" or nonconforming structure for purposes of the Shoreland Protection Act, see RSA ch. 483-B, and DES regulations. The height of the nonconforming structure was approximately seventeen feet.

The Corrs made plans to replace the boathouse. They hired a land use consultant to assist them with the process, which required approvals from the Town of Moultonborough, as well as DES. First, the Corrs filed an application for a Wetlands Permit By Notification (PBN) with DES.[1] This permit was accepted by DES with the following project description: "Replace an existing shoreland structure which was collapsed by snow load with a new structure in exact location and height."

Prior to starting construction, however, the Corrs decided to set the boathouse back from the shoreline approximately ten feet. They sought and were granted a building permit from the Town based on plans that included the ten-foot added distance from the shoreline, as well as an increased height maximum of 27 feet for the structure. The Town zoning ordinance limits the height of structures to 32 feet.

The Corrs next sought to amend their initial PBN filed with DES. DES did not allow the amendment, and instead required the Corrs to file a new PBN, which they did. This Shoreland PBN2 was accepted by DES with the following project description:

A previously existing grandfathered structure collapsed from snow load. A previous wetlands approval was granted . . . to replace the structure in kind. This application is to replace the structure moving it back 10' as a result of a variance granted by the Moultonborough ZBA. The project would involve 1, 480 SF of temporary disturbance but result in no additional impervious area because the new structure will be the exact footprint of the original structure. The result would be a more nearly conforming structure.

The form an applicant must fill out to submit a Shoreland PBN application does not require the applicant to submit any information regarding the project's height.

After obtaining the building permit from the Town and the PBN from DES, the Corrs commenced construction. They spent over $100, 000 on the permitted structure. When the structure was framed and nearing completion, DES visited the site to conduct an inspection, purportedly in response to a complaint the department had received. Subsequently, DES issued a Letter of Deficiency to the Corrs informing them that the structure was 27 feet tall, and therefore not compliant with DES regulations.

After a series of communications between the Corrs and DES, the department issued an administrative order declaring that the Corrs' structure was not compliant with Env-Wq 1405.03(b)(1) because it was taller than 12 feet in height. See N.H. Admin. R., Env-Wq 1405.03(b)(1) (restricting the maximum height to 12 feet for accessory structures located within the shoreline and the primary building line). DES instructed the Corrs that, to be compliant with DES regulations, the building needed to be no greater than 17 feet, the height of the original boathouse. In addition, the order directed the Corrs to cease and desist construction on their property. In compliance with the order, the Corrs have not undertaken further work on the building and the structure remains unusable.

B. Proceedings Before the Wetlands Council

The Corrs notified DES that they planned to challenge the department's authority to restrict the height of the structure, and subsequently appealed DES' administrative order to the Council. In their appeal, the Corrs raised four alternative arguments as to how DES had acted unlawfully and unreasonably in issuing its order: (1) DES lacks statutory authority to restrict the height of buildings within the protected shoreland; should such authority exist, the lack of a standard for determining the height of a building renders that authority unenforceable; (2) DES' authority to restrict height is limited to "small" accessory structures, and the Corrs' structure is not "small"; (3) DES erred in applying its height restriction for small accessory structures to the Corrs' structure, which should have been evaluated by DES as a nonconforming structure under RSA 483-B:11, I (2013);3 and (4) DES' order should have applied a vested rights exemption or granted the Corrs a waiver of the rules.

After receiving notice of the appeal, the Council requested and received the assignment of a hearing officer from the New Hampshire Attorney General. Prior to a hearing before the Council, DES filed a motion to dismiss, in which it argued that the Corrs had failed to demonstrate that the department had acted unlawfully and unreasonably in restricting the height of the structure, and in failing to apply a vested rights exemption or grant a waiver. DES requested that the motion "be ruled on by the Hearing Officer pursuant to RSA 21-M:3, IX(e)."4 The Corrs filed an objection to DES' motion to dismiss, expanding upon the arguments raised in their initial petition.

The hearing officer issued an order (dismissal order) granting in part and denying in part DES' motion to dismiss. Assuming the facts alleged by the Corrs to be true, see Hobin v. Caldwell Banker Residential Affiliates, 144 N.H. 626, 627 (2000), and ruling on issues of law, see RSA 21-M:3, IX(d) (2012) (stating that the hearing officer is to "[d]ecide all questions of law presented during the pendency of the appeal"), the hearing officer determined that: (1) the Corrs' structure is an "accessory structure" as defined by RSA 483-B:4, II (2013); (2) DES has the authority to restrict the height of accessory structures pursuant to RSA 483-B:17, IV (2013); and (3) the Corrs' structure was not made "more nearly conforming" than the original nonconforming structure, see RSA 483-B:11, I; N.H. Admin. R., Env-Wq 1408.05, because the height of the structure was increased by ten feet. The hearing officer left the following factual determinations for the Council: (1) whether DES' methodology for measuring height in this case is arbitrary and subject to unfettered discretion; and (2) whether the Corrs were entitled to a vested rights determination or (3) whether the Coors were entitled to a waiver of regulations.

Following a hearing, 5 the Council issued an order (initial order), signed by the hearing officer, concluding that, once the Corrs' structure was set back from the shoreline, DES acted unlawfully in regulating it as a newly constructed "accessory structure," to which its 12-foot height restriction applied, see RSA 483-B:17, IV; N.H...

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