In re Morrissey

• Decision Date: 05 June 2013
• Docket Number: No. 2012–405,2012–405
• Citation: 70 A.3d 465,165 N.H. 87
• Parties: APPEAL OFThomas MORRISSEY & a. (New Hampshire Department of Environmental Services )
• Court: New Hampshire Supreme Court

165 N.H. 87

70 A.3d 465

APPEAL OFThomas MORRISSEY & a.

(New Hampshire Department of Environmental Services )

No. 2012–405

Supreme Court of New Hampshire.

Argued: April 17, 2013

Opinion Issued: June 5, 2013

Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Gregory E. Michael and Christopher G. Aslin on the brief, and Mr. Aslin orally), for the petitioners.

Nelson Kinder + Mosseau PC, of Manchester (Christopher P. Hawkins and Robert F. Callahan, Jr. on the brief, and Mr. Hawkins orally), for the respondent.

DALIANIS, C.J.

The petitioners, Thomas Morrissey, Margaret Russell, Dorothy Sears, Reginald Rogers, Richard and Barbara Sanders, Patricia Reynolds, John Chamberlain, John Quimby, Michael O'Donnell, and Robert and Judith Dupuis, appeal a ruling of the New Hampshire Department of Environmental Services (DES) Wetlands Council (Council) affirming the issuance by the Wetlands Bureau (Bureau) of a wetlands permit to the respondent, Town of Lyme (Town). The petitioners argue that, when issuing the permit, the Bureau and Council did not consider the total wetlands impact of the proposed project because they misinterpreted the scope of our ruling in Morrissey v. Town of Lyme, 162 N.H. 777, 779, 37 A.3d 414 (2011) ( Morrissey I ) and DES's authority under RSA chapter 482–A. We vacate and remand.

The following facts are drawn from the record and our opinion in Morrissey I. The petitioners own properties with frontage on Post Pond and the west side of the Clay Brook wetlands. Morrissey I, 162 N.H. at 779, 37 A.3d 414. The Town owns property on the east side of the Clay Brook wetlands as well as a contiguous parcel with frontage on Post Pond, which is used as a recreation area. Id. In December 2004, DES determined that the natural mean high water mark for Post Pond corresponds to a level of three feet on the local staff gauge. Id. Subsequently, the Town modified its water release policy to permit the breaching of beaver dams, which had historically controlled the water level of the pond and wetlands, when the water level exceeds the natural mean high water mark. Id.

In 2006, the Town obtained a standard dredge and fill permit under RSA chapter 482–A to install a beaver pipe through the controlling beaver dam in Clay Brook and stabilize the water level at the natural mean high water mark. Id. Under RSA chapter 482–A, the wetlands statute, a dredge and fill permit is required before one can "excavate, remove, fill, dredge or construct any structures in or on any bank, flat, marsh, or swamp in and adjacent to any waters of the state." RSA 482–A:3, I(a) (Supp. 2012). In 2007, the Town installed two additional beaver pipes without first obtaining a permit. Morrissey I, 162 N.H. at 779, 37 A.3d 414. In 2008, the Town again changed its water release policy to maintain the water level at two feet on the local staff gauge, thus lowering the water level and increasing the size of the recreation area. The Town then lowered the two beaver pipes it had installed in 2007, which resulted in a water level of one foot seven inches on the local staff gauge. Id. Shortly thereafter, the Town breached the controlling beaver dam, dropping the water level to one foot three inches. Id.

In July 2008, the Bureau issued a Letter of Deficiency to the Town, "request[ing] the retention of a certified wetland scientist to delineate the wetlands on its property and the submission of after-the-fact permit applications to retain the unauthorized wetland impacts." In July 2009, the Town submitted two applications to the Bureau: an after-the-fact permit application to retain the two unpermitted beaver pipes it had installed in 2007 and an application to add fill to the recreation area bordering the pond. The petitioners objected to both. On October 21, 2009, the Bureau held a public hearing on both applications. In December 2009, it denied the after-the-fact permit application, but granted the permit to add fill ("add-fill permit").

The petitioners moved for reconsideration, arguing that the Town's "overall plan [wa]s to raise the [recreation] field and lower the pond as part of this single project," and that the permit was based upon an application that was "incomplete at best, and mis-leading at worst," because it did not address all the wetlands impacts of the proposed project. The Bureau denied reconsideration, stating that DES lacked authority to regulate the Town's activity relative to the water level of Post Pond. It explained:

DES wetlands regulations have no authority relative to controlling the level of the pond.... The Town has the authority to set and lower the water level in the pond by local determination.... The DES wetlands regulations have no authority to control the water level in Post Pond—the water level is determined by the Town of Lyme.... [T]he effect of the change in water level of the pond, is beyond the scope of the wetlands authority to regulate pursuant to RSA 482–A:3, as it does not represent excavation, dredge, fill, or construction of a structure in wetlands....

[T]herefore [e]ffects to abutters from an activity over which DES has no authority [cannot] be addressed through the DES wetlands permit process.

In June 2011, the petitioners appealed the grant of the add-fill permit to the Council. At their request, the appeal was stayed pending the resolution of Morrissey I. Morrissey I was decided in December 2011 against the petitioners and, in February 2012, the Town asked the Council to dismiss the petitioners' appeal of the add-fill permit. The Council dismissed the appeal in March 2012 "[c]onsistent with the Supreme Court opinion and the Council's lack of authority over water level disputes." It ruled that the petitioners' argument that the underlying permit application improperly omitted the wetlands impact of the proposed project was barred in part by our finding in Morrissey I that the Town's activity relative to the water level of Post Pond did not substantially and unreasonably interfere with the petitioners' use and enjoyment of their property. The Council also stated that "water level determination ... is outside the purview of both the DES Wetlands Bureau and the Council" because, "absent a specific reference in RSA 482–A:3, I(a) to ‘water level changes[,]’ the Council does not believe DES ... ha[s] authority under RSA 482–A over the effects of water level changes." This appeal followed.

Our standard of review of the Council's decision is set forth in RSA 541:13 (2007), which provides:

Upon the hearing the burden of proof shall be upon the party seeking to set aside any order or decision of the [Council] to show that the same is clearly unreasonable or unlawful, and all findings of the [Council] upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable; and the order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable.

Although "it is well established in our case law that an interpretation of a statute by the agency charged with its administration is entitled to deference," "[t]he deference afforded ... is not absolute." Appeal of Town of Seabrook, 163 N.H. 635, 644, 44 A.3d 518 (2012). "We are still the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole, and we are not bound by an agency's interpretation of a statute." Id. (citations omitted). We review an agency's interpretation of a statute de novo and "will not defer to an agency's interpretation if it clearly conflicts with the express statutory language ... or if it is plainly incorrect." Id. (citation omitted); cf. Greenland Conservation Comm'n v. N.H. Wetlands Council, 154 N.H. 529, 544–45, 913 A.2d 776 (2006) (alleged error "that the wetlands council applied a deferential rather than de novo standard of review to the wetlands bureau's legal conclusion" regarding DES's scope of authority under RSA chapter 482–A "would have been corrected ... when the superior court correctly applied the de novo standard of review to the wetlands council's legal determinations").

We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. DaimlerChrysler Corp. v. Victoria, 153 N.H. 664, 666, 917 A.2d 209 (2006). When the language of a statute is clear on its face, its meaning is not subject to modification. Dalton Hydro v. Town of Dalton, 153 N.H. 75, 78, 889 A.2d 24 (2005). We will neither consider what the legislature might have said nor add words that it did not see fit to include. Id. Furthermore, we interpret statutes in the context of the overall statutory scheme and not in isolation. DaimlerChrysler Corp., 153 N.H. at 666, 917 A.2d 209. Our goal is to apply statutes in light of the legislature's intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme. Carlisle v. Frisbie Mem. Hosp., 152 N.H. 762, 773, 888 A.2d 405 (2005).

On appeal, the petitioners argue that the Council erroneously determined that Morrissey I precluded their challenge to the issuance of the add-fill permit. They argue that their appeal is not barred by res judicata or collateral estoppel because it advances a different cause of action from that in their petition in Morrissey I. The Town responds that there is no meaningful distinction between the two actions.

"The doctrine of res judicata prevents the parties from relitigating matters actually litigated and matters that could have been litigated in the first action." Morgenroth & Assoc's v. State, 126 N.H. 266, 269, 490 A.2d 784 (1985) (quotation omitted). The doctrine applies if three elements are met: (1) the parties are the same or in privity with one another; (2) the same cause of action was before the court in both instances; and (3) the first action ended with a final...