Lakeside Lodge, Inc. v. Town of New London

• Court: Supreme Court of New Hampshire
• Citation: 960 A.2d 1268,158 N.H. 164
• Decision Date: 05 December 2008
• Docket Number: No. 2008–247.,2008–247.
• Parties: LAKESIDE LODGE, INC. v. TOWN OF NEW LONDON.

158 N.H. 164
960 A.2d 1268

LAKESIDE LODGE, INC.
v.
TOWN OF NEW LONDON.

No. 2008–247.

Supreme Court of New Hampshire.

Argued: Oct. 15, 2008.
Opinion Issued: Dec. 5, 2008.

960 A.2d 1269

Orr & Reno, P.A., of Concord (James P. Bassett and Jeffrey C. Spear, on the brief, and Mr. Bassett orally), for the petitioner.

Upton & Hatfield, LLP, of Concord (Barton L. Mayer, on the brief and orally), for the respondent.

HICKS, J.

158 N.H. 166

The petitioner, Lakeside Lodge, Inc. (Lakeside), appeals an order of the Superior Court (Abramson, J.) affirming a boat use limit on Lakeside's Lake Sunapee dock, imposed by the Town of New London Zoning Board of Adjustment (ZBA). We hold that state law and regulations preempt the regulation imposed by the ZBA, and reverse.

The record supports the following relevant facts. Lakeside owns property in New London on Lake Sunapee's waterfront. The property includes a private dock which has been used by Lakeside's owners since at least the 1980s.

The respondent, Town of New London (Town), enacted a zoning ordinance in 1991 (the 1991 ordinance) designating Lakeside's lot within a "Shore Land Overlay District." See New London, N.H., Rev. Ordinances art. XVI (amended 2006). The ordinance prohibits the use of waterfront "common areas" for lake access except in compliance with its provisions and with planning board approval. Id. § D(3). A "common area" is defined as one "used by a group of [three] or more unrelated persons or by an association, club or organization consisting of [three] or more members." Id. The ordinance also states that "[a]ny use of a common area ... for business or commercial purposes shall be subject to" special exception. Id. § E(3).

After receiving approval from the New Hampshire Department of Environmental Services (DES), Lakeside completed substantial dock repairs in 1995. The Town maintains that Lakeside's use intensified after these renovations.

158 N.H. 167

In 2002, the Town asserted that the use of Lakeside's dock by multiple, unrelated persons violated the 1991 ordinance. Lakeside maintained that such use predated

960 A.2d 1270

the 1991 ordinance, and applied to the New London Board of Selectmen (Selectmen) for an exemption, asserting that eleven users secured fifteen boats prior to the 1991 ordinance. The Selectmen determined that no preexisting, nonconforming use existed.

Lakeside appealed and the ZBA ultimately reversed, concluding that at least four users predated the enactment of the 1991 ordinance. The Selectmen issued a ruling interpreting the ZBA's decision to permit three owners and one non-owner to use the dock. The abutters sought to enforce this ruling in 2004 but the Selectmen declined, citing the lack of clarity from the ZBA as to how to proceed. The abutters appealed to the ZBA for clarification.

In 2007, the ZBA ruled that, because use by Lakeside's three owners predated the 1991 ordinance and because users typically invite guests, "there may be no more than six (6) users and six (6) boats at the dock at any one time." The ZBA intimated that renting dock space exceeded the scope of the "personal" use asserted by Lakeside's three owners. The superior court affirmed.

On appeal, Lakeside raises several arguments, but we need address only the preemption issue.

"Our review of zoning board decisions is limited." Guy v. Town of Temple, 157 N.H. 642, 649, 956 A.2d 272, 279 (2008). We will uphold the trial court's decision unless the evidence does not support it or it is legally erroneous. Id.

Lakeside argues that the Town's application of the 1991 ordinance is unlawful because the legislature has preempted local regulation of private dock use for boat storage on Lake Sunapee. Lakeside points to RSA chapter 482–A, which it characterizes as a comprehensive regulatory scheme governing the design and placement of docks over State-owned waters to achieve the State's goal of uniform regulation. Additionally, it argues that the State's permission to repair the dock in 1995 conflicts with local regulation restricting use of the renovated dock.

The Town argues that the State regulates only the construction of private docks, leaving to the Town the authority to regulate their use as extensions of the land. It maintains that dock users must cross the shorefront property to access the dock. It asserts its interest in the availability of parking and bathrooms in addition to its authority to promote environmental ends. It cites our holdings permitting municipalities to create more restrictive rules than the State. Finally, it argues that, by defining "wetlands" within RSA 674:55 (2008), the legislature intended to share concurrent regulatory authority over wetlands regulation.

158 N.H. 168

The trial court ruled that the six-user, six-boat restriction was within the ZBA's authority, citing RSA 47:17, VII (2003) and our decision in Gray v. Seidel, 143 N.H. 327, 726 A.2d 1283 (1999). We disagree.

We are the final arbiter of the meaning of a statute as expressed by the words of the statute itself. Weare Land Use Assoc. v. Town of Weare, 153 N.H. 510, 511, 899 A.2d 255 (2006). "The state preemption issue is essentially one of statutory interpretation and construction—whether local authority to regulate under a zoning enabling act is preempted by state law or policy." N. Country Envtl. Servs. v. Town of Bethlehem, 150 N.H. 606, 611, 843 A.2d 949 (2004) (quotation and ellipsis omitted). "Preemption may be express or implied." Id. "State law preempts local law ... when there is an actual conflict between State and local regulation." Id. "A conflict exists when a municipal ordinance or regulation permits that which a

960 A.2d 1271

State statute prohibits or vice versa." Id . In addition, State law may preempt local regulation if such regulation "frustrates the statute's purpose," or "[t]he very nature of the regulated subject matter ... demand[s] exclusive state regulation to achieve the uniformity necessary to serve the state's purpose or interest." Id. (quotation omitted).

The State has delegated to municipalities authority to "regulate and restrict" certain land uses. RSA 674:16 (2008). An overlay district, such as that created by the 1991 ordinance, is one "that is superimposed over one or more zoning districts ... and ... imposes specified requirements ... in addition to those otherwise applicable for the underlying zone." 10 P. Rohan, Zoning and Land Use Controls § 53C.08[2][a], at 53C–444.90 (2008); see, e.g., Brewster v. Town of Amherst, 144 N.H. 364, 365, 742 A.2d 121 (1999). "Where the state has not preempted the area, a municipality may zone to protect its shorelines...." 2 K. Young, Anderson's American Law of Zoning § 9:13, at 144 (4th ed. 1996).

The parties and proceedings below assumed that a nonconforming personal use predated the 1991 ordinance. Thus, our inquiry is limited to whether the local attempt to restrict personal use of Lakeside's dock is permissible. See Cherry v. Town of Hampton Falls, 150 N.H. 720, 725, 846 A.2d 508 (2004).

The use of lakes of ten or more acres, such as Lake Sunapee, is controlled by the State, which holds these "valuable resources," RSA 483–B:1, II (2003), in trust for public use. See RSA 271:20, I (1999); RSA 483–B:1, II (The State has the "jurisdiction to control the use of the public waters and the adjacent shoreland for the greatest public benefit."). The State is the exclusive steward of public trust rights, a bundle of "all useful and lawful purposes," State v. Sunapee Dam Co., 70 N.H. 458, 460, 50 A. 108 (1900),

158 N.H. 169

such as the common law right to boat recreationally, see Hartford v. Gilmanton, 101 N.H. 424, 425–26, 146 A.2d 851 (1958). See generally 6 Waters and Water Rights 801–12 (Robert E. Beck ed., 1991, 2005 repl. vol.); Annotation, Rights of Fishing, Boating, Bathing, or the Like in Inland Lakes, 57 A.L.R.2d 569, 577–78 (1958).

Numerous statutes regulate the right to boat. See RSA ch. 233–A (1993 & Supp.2008) ("Access to Public Waters"); RSA ch. 270 (1999 & Supp.2008) ( "Supervision of Navigation; Registration of Boats and Motors; Common Carriers by Water"); RSA ch. 270–A (1999) ("Use of Houseboats"); RSA ch. 270–(1999) ("Abandoned Boats"); RSA ch. 270–D (1999 & Supp.2008) ("Boating and Water Safety on New Hampshire Public Waters"); RSA ch. 485 (2001 & Supp.2008) ("New Hampshire Safe Drinking Water Act"); RSA ch. 485–A (2001 & Supp.2008) ("Water Pollution and Waste Disposal"); RSA ch. 487 (2001 & Supp.2008) ("Control of Marine Pollution and Aquatic Growth"). This broad statutory framework is intended to safeguard public waters "in light of the fact that competing uses for the enjoyment of these waters, if not regulated for the benefit of all users, may diminish the value to be derived from them." RSA 270:1, II (1999).

As the steward of public waters, the State safeguards the right to use and enjoy public waters by avoiding piecemeal on-water regulation. See Opinion of the Attorney General, No. 0–87–067 (August 2,...