Lake Sunapee Protective Ass'n v. New Hampshire Wetlands Bd.

• Court: New Hampshire Supreme Court
• Writing for the Court: THAYER
• Citation: Lake Sunapee Protective Ass'n v. New Hampshire Wetlands Bd., 574 A.2d 1368, 133 N.H. 98 (N.H. 1990)
• Decision Date: 30 April 1990
• Docket Number: No. 88-247,88-247
• Parties: LAKE SUNAPEE PROTECTIVE ASSOCIATION v. The NEW HAMPSHIRE WETLANDS BOARD and M.J.S. Enterprises, Intervenor.

Page 1368

574 A.2d 1368

133 N.H. 98

LAKE SUNAPEE PROTECTIVE ASSOCIATION v. The NEW HAMPSHIRE WETLANDS BOARD and M.J.S. Enterprises, Intervenor.

No. 88-247.

Supreme Court of New Hampshire.

April 30, 1990.

Frank H. Gordon, orally and on the brief, and John M. Holton, Jr., on the brief, New London, for plaintiff, Lake Sunapee Protective Ass'n.

Stephen E. Merrill, Atty. Gen. (Geoffrey M. Huntington, Asst. Atty. Gen., orally and on the brief, and Charles B. Holtman, Asst. Atty. Gen., on the brief, for defendant, the New Hampshire Wetlands Bd.

McSwiney, Jones, Semple & Douglas, P.C., New London (Robert E. Bowers, Jr., on the brief and orally), for intervenor, M.J.S. Enterprises.

THAYER, Justice.

This case is before the court on appeal from an order of the Superior Court (DiClerico, J.), approving the Master's (R. Peter Shapiro, Esq.) report and recommendation, denying the appeal of the Lake Sunapee Protective Association (LSPA) and affirming the decision of the New Hampshire Wetlands Board (the board) to grant a dredge and fill permit to the intervenor, developer M.J.S. Enterprises (M.J.S.). In its appeal, LSPA sought to have the permit vacated and to have the application referred to the Governor and Executive Council. For the reasons that follow, we reverse the decision of the trial court, and remand this case for findings of fact and rulings of law not inconsistent with this opinion.

The plaintiff raises three issues on appeal. LSPA's primary contention is that the board alone is not empowered to approve M.J.S.'s permit application, that it must also be approved by the Governor and Executive Council. This question, as presented to us, is a jurisdictional one, focusing on the potential applicability of two similar yet differing statutes and the resulting consequences of applying the appropriate one. In effect, the entire issue turns on whether a proposed dredging and excavation project is located on Red Water Creek or on Lake Sunapee. LSPA maintains that a portion of M.J.S.'s anticipated construction project will necessitate dredging an area of the bed of Lake Sunapee, and, therefore, that approval of the Governor and Executive Council is required pursuant to RSA chapter 488-A. The board, however, contends that it alone is vested with jurisdiction to approve or disapprove the issuance of a permit, as the entire project will be confined to Red Water Creek. The board argues that RSA chapter 488-A is inapplicable and that RSA chapter 483-A is controlling. LSPA also complains that certain actions by the board served to deprive the plaintiff of due process of law. Finally, LSPA claims that the procedure applied in allowing M.J.S.'s bill of costs violated the rules of the superior court and led to erroneous results.

M.J.S., a New Hampshire limited partnership, owns approximately thirty-four acres of land in the town of Sunapee. The property, located near Fisher's Bay, has frontage on both Red Water Creek and Lake Sunapee. As part of an overall scheme to develop the premises as a four-season recreational community, M.J.S. intends to provide the residents of the proposed condominiums with boat docking facilities and access to the lake. In order to accomplish this, M.J.S. proposes to dredge and excavate a section of what is either the bed of Lake Sunapee or that of Red Water Creek. As mentioned previously, the determination of whether lake bed or creek bed is involved in this project is critically important to the present controversy, as it may resolve the question of whether RSA chapter 488-A applies.

While it is true that the statutes are somewhat similar, it is important to recognize the jurisdictional difference between the two. RSA chapter 483-A, as effective at the time of M.J.S.'s proposal, provided that "[n]o person shall excavate, remove, fill, dredge or construct any structures in or on any bank, flat, marsh, or swamp and adjacent to any waters of the state without written notice" to the board of his intention to do so. RSA 483-A:1, I (1983) (current version codified at RSA 482-A:3, I (Supp.1989)). It further mandated that the "board shall hold a public hearing on proposals under RSA 483-A:1 in accordance with regulations promulgated by the board." RSA 483-A:2 (1983) (current version codified at RSA 482-A:8 (Supp.1989)). Although jurisdiction over the initial determination was vested entirely in the board, any party dissatisfied with its decision was able to apply for a rehearing and to appeal to the superior court pursuant to RSA 483-A:4, I (1983) (current version codified at RSA 482-A:10, I (Supp.1989)).

In contrast, RSA chapter 488-A, as effective at times relevant to this controversy, provided that "[n]o person, firm, or corporation shall excavate, remove, or dredge any bank, flat, marsh, swamp, or lake bed that lies below the natural mean high water level of any public waters of this state, except as provided in this chapter." RSA 488-A:1, I (1983) (current version codified at RSA 482-A:21 (Supp.1989)). RSA 488-A:2, entitled "Grant of Right," provided that "[t]he governor and council, upon petition and upon the recommendation of the wetlands board, may, for just consideration, grant to an owner of a shoreline on public waters the right to excavate, remove, or dredge any bank, flat marsh, swamp or lake bed before his shoreline." RSA 488-A:2 (1983) (current version codified at RSA 482-A:22 (Supp.1989)). Thus, any application for a permit pursuant to RSA chapter 488-A had to be approved by both the board and the Governor and Executive Council. It is also noteworthy that, unlike RSA chapter 483-A, which set forth the procedure for an aggrieved party to appeal the board's decision, RSA chapter 488-A contained no such provision for appeal. See Yoffe v. Special Board, 113 N.H. 169, 173, 304 A.2d 876, 878 (1973).

For purposes of RSA chapter 488-A, "public waters" were "defined as all natural ponds of more than 10 acres." RSA 488-A:1, I (1983) (current version codified at RSA 482-A:21, I (Supp.1989)). The parties do not dispute the fact that Lake Sunapee is indeed a "public water" of this State and that, if the anticipated dredging and excavation were to take place in the lake itself, the application would have to be approved by both the board and the Governor and Executive Council. There initially appears to have been some controversy as to whether the proposed project could be characterized as a "minor one," thus invoking the exception to RSA chapter 488-A delineated at RSA 488-A:1, II(c) (1983) (current version codified at RSA 482-A:21, II(c) (Supp.1989)). This is no longer the case, however, as the M.J.S. application clearly constitutes a "major project" according to the board rules. A "major project" is classified as one which entails "[c]onstruction of ... any community docking system," N.H.Admin.Rules, Wt. 302.01(d), and a "major docking system" is, inter alia, one that "provide[s] for docking of more than 10 boats," N.H.Admin.Rules, Wt. 101.19. Because M.J.S.'s proposal contemplates docking facilities for seventeen boats, it must be characterized as a "major project." Therefore, the gravamen of this dispute is the exact location of the project site and the precise boundaries of the lake and the creek.

In September of 1985, M.J.S. first submitted an application to the board under RSA chapter 483-A, requesting a permit to dredge and excavate in and along Red Water Creek. This initial proposal contemplated making "cuts" in the bank of Red Water Creek to allow the condominium residents water access via individual canals. It also called for the dredging of the creek "[t]o allow boats further access upstream," and for the construction of eight boat docks. Although a public hearing was held on November 12, 1985, no decision was ever rendered concerning this first proposal, as M.J.S. asked the board to reserve ruling on the project until alternative methods for creating water access and docking facilities could be investigated.

Roughly one year later, on December 2, 1986, a second public hearing was held pursuant to RSA chapter 483-A, at which time a modified proposal was presented for the board's consideration. M.J.S. requested a permit to dredge 1,500 yards and to excavate 2,000 yards of material. Instead of individual canals and piers, this second proposal contemplated construction of one semi-circular boat basin with fourteen floating piers and slips providing docking for thirty boats. The facility was to be located at the confluence of Red Water Creek and Lake Sunapee, downstream from the projected site of the canals envisioned by the initial proposal. The board unanimously denied M.J.S.'s application on December 16, 1986.

On January 6, 1987, however, the board unanimously agreed to re-open the matter for another public hearing. At that hearing, held on February 17, 1987, M.J.S. presented yet another revised proposal of its initial plan. Although this third proposal still contemplated dredging 1,500 yards and excavating 2,000 yards of material, the semi-circular boat basin was to provide docking for only seventeen boats.

After the ten-day public comment period following the February 17th hearing had passed, but before the board rendered its decision, the jurisdictional question at issue in this case was first raised. In his March 16, 1987 letter to Delbert F. Downing, the chairman of the board, it was suggested by the president of the LSPA, Courtland Cross, "that there may well be lack of complete jurisdiction of the Board in this matter resulting from the change in the permission sought by modification of the petition and from the evidence offered in support thereof." Mr. Cross maintained that the revised proposal, envisioning a crescent-shaped boat basin, "would be created by dredging and excavating a bank of Lake Sunapee where the Creek enters the Lake." A second letter was sent on April 20, 1987, in which Mr. Cross again urged that M.J.S.'s application must be presented to the ...