In re Michele

• Citation: 168 N.H. 98,123 A.3d 255
• Decision Date: 11 August 2015
• Docket Number: No. 2014–509,2014–509
• Parties: APPEAL OF Robert C. MICHELE & a. (New Hampshire Wetlands Council)
• Court: New Hampshire Supreme Court

168 N.H. 98

123 A.3d 255

APPEAL OF Robert C. MICHELE & a. (New Hampshire Wetlands Council)

No. 2014–509

Supreme Court of New Hampshire.

Argued: April 22, 2015

Opinion Issued: August 11, 2015

Cleveland, Waters and Bass, P.A., of Concord (David W. Rayment and Mark S. Derby on the brief, and Mr. Rayment orally), for the petitioners.

Johnson & Borenstein, LLC, of Andover, Massachusetts (Mark B. Johnson on the brief and orally), for the respondents.

LYNN, J.

The petitioners, Robert C. and Katherine L. Michele, trustees of the Robert C. Michele Revocable Trust (Micheles), appeal a ruling of the Wetlands Council (Council) upholding a decision of the New Hampshire Department of Environmental Services (DES) to issue a permit allowing the respondents, Joseph and Linda Bremner (Bremners), to install a seasonal dock in water adjacent to the Micheles' pond-front property over which the Bremners have an easement. We affirm.

I

The following facts are derived from the record. The Micheles own property in Jaffrey with approximately 750 feet of shoreline on Gilmore Pond. The Bremners own nearby property that does not directly adjoin the pond. At one time, the Bremners' and Micheles' properties were a single parcel, owned by George and Karen Rickley (Rickleys). When the Rickleys conveyed what is now the Bremners' property, they sought approval to subdivide a section of their 750 feet of shoreline to accompany the plot. The town planning board denied the request, and the Rickleys instead conveyed the plot with an easement over a 118–foot segment of their shoreline.¹ The relevant language of the deed states that the owner of the partitioned lot (now the Bremners) "shall have the right under this easement to the exclusive use of said parcel of shore frontage for whatever purposes they may desire." The Micheles bought their property with full knowledge of the easement.

In 2007, the Bremners applied to DES for a permit to install a seasonal dock in the pond, adjacent to their easement. See RSA 482–A:3 (Supp.2007) (subsequently amended). The Micheles objected to the application, arguing that the Bremners had no legal right to apply for a dock permit on the Micheles' land without their consent. In 2009, DES granted the permit, and the Bremners installed a dock. The Micheles promptly filed both a motion for reconsideration and an action in superior court seeking to invalidate the easement. DES took no further action pending the outcome of the lawsuit. The superior court determined that the easement was valid, and in a 2011 unpublished order, we affirmed the court's ruling. See Michele v. Bremner, No. 2010–0844 (N.H. Aug. 24, 2011). Thereafter, DES affirmed its grant of the permit. It found that the Bremners' dock qualified as a minimal impact project, see N.H. Admin. Rules, Env–Wt 303.04(a), and concluded that, because under its regulations only major shoreline structures require that the fee owner be the applicant, see id. 402.18(a), the Bremners could apply for a dock permit. DES also found that the Micheles failed to demonstrate that the seasonal dock unreasonably affected the value or their use and enjoyment of their property. The Micheles appealed to the Council, which affirmed the DES decision. This appeal followed.

II

The Micheles first argue that DES erred in granting the Bremners, as mere easement holders, a permit to install a seasonal dock over the fee owners' objection. Rather than argue that the Bremners lack a sufficient property interest to install a dock in the water adjacent to the easement, they contend that, under the relevant statutes, DES lacks the authority to issue dock permits to easement holders. In support of this argument, the Micheles advance several theories: (1) the plain meaning of the terms "ownership" and "landowner-applicant" as used in the statutory scheme compel the conclusion that only fee owners can apply for a dock permit, see RSA 482–A:11, II (2013); (2) DES, in interpreting the statute, impermissibly went beyond its plain meaning by examining DES regulations; and (3) the instructions and forms that DES uses to administer the statute demonstrate that only fee owners can apply for permits. Alternatively, the Micheles argue that even if the Bremners could apply for a permit under the statute, DES erred in granting a permit because it adversely affected the value and enjoyment of their land.

The Bremners counter that a plain reading of the statute shows that it does not prohibit easement holders from applying for dock permits. They also maintain that this reading is consistent with the statute's purpose, DES's regulations, and DES's forms and procedures. Additionally, the Bremners contend that the issuance of the permit in this case was reasonable, and that many of the Micheles' arguments are based upon unpreserved or irrelevant considerations.

To resolve these issues, we must engage in statutory and regulatory interpretation. Although we give some deference to an agency's interpretation of its own regulations or of a statute it administers, "our deference is not total." Appeal of Old Dutch Mustard Co., 166 N.H. 501, 506, 99 A.3d 290 (2014) (quotation omitted). Concerning statutes, "[w]e are still the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole." Appeal of Town of Seabrook, 163 N.H. 635, 644, 44 A.3d 518 (2012). As to regulations, "[w]e examine the agency's interpretation to determine if it is consistent with the language of the regulation and with the purpose which the regulation is intended to serve." Old Dutch Mustard, 166 N.H. at 506, 99 A.3d 290 (quotation omitted). "We use the same principles of construction when interpreting both statutes and regulations." Id.

"We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning." Appeal of Local Gov't Ctr., 165 N.H. 790, 804, 85 A.3d 388 (2014). "We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include." Id. "We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result." Id. "Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole." Id. "This enables us to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme." Id. Additionally, "[w]hen the language of a statute is plain and unambiguous, we need not look beyond the statute itself for further indications of legislative intent." Petition of Malisos, 166 N.H. 726, 729, 103 A.3d 793 (2014).

RSA 482–A:3, I, requires that "any person" who wishes to construct a dock must apply to DES for a permit, unless an exemption applies.² The statute further specifies other requirements that an "applicant" must fulfill. See RSA 482–A:3, I(d)(1) (notifying abutters). RSA 482–A:11, II then provides, in relevant part, that "[b]efore granting a permit under this chapter, the department may require reasonable proof of ownership by a private landowner-applicant. " (Emphasis added.) The Micheles rely primarily upon the legislature's use of the terms "ownership" and "landowner-applicant" in RSA 482–A:11, II to support their position that only fee owners can apply for dock permits. The legislature did not define the terms "owner," "ownership," "landowner," "landowner-applicant" or "applicant." See RSA 482–A:2 (Supp.2011) (amended 2012).

"When a term is not defined in the statute, we look to its common usage, using the dictionary for guidance." K.L.N. Construction Co. v. Town of Pelham, 167 N.H. 180, 185, 107 A.3d 658 (2014). Webster's Third New International Dictionary defines "ownership" as "the state, relation, or fact of being an owner: lawful claim or title"; and "owner" as "one that has the legal or rightful title whether the possessor or not ." Webster's Third New International Dictionary 1612 (unabridged ed. 2002) (emphasis added). We acknowledge that these are broad definitions. We see no reason, however, to limit the meaning of the terms when the legislature did not see fit to do so. Based upon the common meaning of the term, we conclude that "ownership," as used in the statute, neither is limited to fee ownership nor requires possession. We further conclude that parties who hold title to a shoreline easement, such as the Bremners, are "owners" under the statute. Because the term "owner" encompasses property interests other than fee ownership, the Micheles' citation to the repeated use of the terms "owner," "property owner," and "landowner" throughout the statutory scheme does not advance their argument.

Contrary to the Micheles' argument that the legislature could not have intended easement holders to be able to apply for a permit under the statute, we see no evidence that the purpose of the statute was to change the balance of property rights between fee owners and easement holders from what it was under the common law. As the Micheles point out, we have previously noted that an "easement is a nonpossessory right to the use of another's land." Arcidi v. Town of Rye, 150 N.H. 694, 698, 846 A.2d 535 (2004). As explained above, however, possession is not a requirement of an "ownership" interest in land. Further, in Arcidi, we said that when there is an express grant of an easement, "a grantee takes by implication whatever rights are reasonably necessary to enable it to enjoy the easement beneficially. This includes the right to make improvements that are reasonably necessary to enjoy the easement." Id. at 701, 846 A.2d 535 (citation omitted). Arcidi concerned an easement over the plaintiff's land for "ingress and egress by motor vehicle." Id. at 697, 846 A.2d 535 (quotation omitted). We held that it was reasonable for the easement holder to cut...