THE STATE OF NEW HAMPSHIRE SUPREME COURT Docket No. 2012-0255 Appeal of the Lake Sunapee Protective Association and Appeal of the Town of Newbury BRIEF OF THE LAKE SUNAPEE PROTECTIVE ASSOCIATION AND THE TOWN OF NEWBURY Lake Sunapee Protective Association, Gregory H. Smith, Esq.; NH Bar No. 2373 McLane, Graf, Raulerson & Middleton, PA 11 South Main Street, Suite 500 Concord, New Hampshire 03301 (603) 226-0400 [email protected]and Town of Newbury, Justin C. Richardson, Esq.; NH Bar No. 12148 Upton & Hatfield, LLP 159 Middle Street Portsmouth, New Hampshire 03801 (603) 436-7046 [email protected]
Transcript
THE STATE OF NEW HAMPSHIRE
SUPREME COURT
Docket No. 2012-0255
Appeal of the Lake Sunapee Protective Association
and
Appeal of the Town of Newbury
BRIEF OF THE LAKE SUNAPEE PROTECTIVE ASSOCIATION AND
THE TOWN OF NEWBURY
Lake Sunapee Protective Association, Gregory H. Smith, Esq.; NH Bar No. 2373 McLane, Graf, Raulerson & Middleton, PA 11 South Main Street, Suite 500 Concord, New Hampshire 03301 (603) 226-0400 [email protected] and Town of Newbury, Justin C. Richardson, Esq.; NH Bar No. 12148 Upton & Hatfield, LLP 159 Middle Street Portsmouth, New Hampshire 03801 (603) 436-7046 [email protected]
i
TABLE OF CONTENTS
Table of Contents ............................................................................................ i
Table of Authorities .......................................................................................... iii
Questions Presented for Review ....................................................................... 1
Statement of the Case ........................................................................................ 2
Statement of Facts ............................................................................................ 4
Summary of Argument...................................................................................... 13
I. Standard for Review ..................................................................... 14 A. The Court reviews the Wetlands Council’s application of the law de novo .............................................................. 14 B. The Wetlands Council’s role is limited to a determination of whether the NHDES’s decision was “unlawful or unreasonable.” It does not render a new determination. ... 15 C. Reversal of the decisions of the NHDES and the Wetlands Council is appropriate. ....................................... 16
II. The Shoreland Protection Act. ..................................................... 16 III. The Council and the NHDES Erred in their Application of RSA 483-B:9, IV-b .................................................................. 18 A. The Council and the NHDES failed to consider whether it was necessary to permit the project as required by RSA 483-B:9, IV-b ......................................... 18
ii
B. The Council and the NHDES failed to consider whether the project was consistent with the purposes of the Shoreland Protection Act as required by RSA 483-B:9, IV-b ..................................................................... 24 C. The NHDES and the Council failed to consider whether the project was consistent with other state law as required by RSA 483-B:9, IV-b .............................. 25
IV. The NHDES Failed to Apply the Town’s More Stringent 75-foot Setback as Required by RSA 483-B:3 and NHDES Rules ............................................................................................ 28
Land 101.07 ................................................................................................. 4, 27
1
QUESTION PRESENTED FOR REVIEW
1. Whether the Wetlands Council ("Council") erred by affirming the decision
of the N.H. Department of Environmental Services ("NHDES") to permit the
N.H. Department of Fish & Game's (“Fish & Game”) proposal to construct a
boat launch pursuant to RSA 483-B:9, IV-b when:
a. The NHDES did not consider whether it was “necessary” to exceed
the Act’s minimum standards as required by RSA 483-B:9, IV-b;
b. It is undisputed that the NHDES considered only two of the purposes
of the Shoreland Protection Act and not all of the purposes as required
by RSA 483-B:9, IV-b; and
c. The NHDES did not consider whether the project was consistent with
“other state laws” such as RSA 233-A:6 and RSA l62-C:6 & 10, as
required by RSA 483-B:9, IV-b?
2. Whether the NHDES erred by failing to apply the Town's “more stringent”
75 foot setback within the protected shoreland as required by RSA 483-B:3?
2
STATEMENT OF THE CASE
On December 17, 2008, Fish & Game sought a Shoreland permit under
RSA 483-B:5-b to construct a boat launch, with 43 parking paces on a three arce
parcel on the shore of Lake Sunapee in the Town of Newbury, known as the “Wild
Goose”. Three weeks later, on January 7, 2009, the NHDES issued a permit for
the project.1 On February 6, 2009, the Lake Sunapee Protective Association
(“LSPA”) and the Town appealed the permit to the Wetlands Council under RSA
21-O:14.2 The appeals were consolidated and evidentiary hearings were held on
October 12, October 26, November 9 and December 14, 2010.
The Council held deliberations on March 8, April 12, May 10 and June 14,
2011 but did not prepare minutes of its deliberations.3 On January 10, 2012, the
Council’s Hearings Officer4 issued a written decision that upheld the Shoreland
permit. On February 8, 2012, the Appellants moved for reconsideration.5 On
1 Appendix to Brief, Pages 60-63; Appendix to NOA, Pages 39-40. 2 Certified Record, Tab 1 (LSPA); Certified Record, Tab 3 (Town). The Town and LSPA also appealed the NHDES decision to issue a wetlands permit for the project under RSA 482-A:3. The wetlands permit is not at issue in this appeal. 3 N.B. RSA 91-A:2, II. 4 Under RSA 21-M:3, VIII & IX, the Attorney General appoints a Hearings Officer, inter alia, to “decide all issues of law” and “prepare and issue written decisions” for the Council. During the Wetlands Council deliberations, Fish & Game hired the Hearings Officer’s firm to complete technical consulting services for the project. See Ruling on Motion for Reconsideration, Page 7 of 9, Appendix to Brief, Page 91; Motion for Reconsideration & Affidavit of June Fichter, Appendix to NOA, Pages 24 & 37. 5 Appendix to Notice of Appeal, Page 22.
3
March 13, 2012, the Council’s Hearing Officer denied reconsideration.6 On April
12, 2012, the Town and the LSPA brought this Appeal pursuant to Rule 10.
This Appeal asks the Court to find that the NHDES and its Commissioner
failed to comply with RSA 483-B:9, IV-b and RSA 483-B:3. The Appellants
request that the Court: (1) reverse the decisions by the NHDES to issue a permit
under RSA 483-B:9, IV-b; and (2) reverse the decision by the NHDES to disregard
the Town’s “more stringent” 75-foot setback from Lake Sunapee that “shall
control” under RSA 483-B:3.
6 Appendix to Brief, Page 85, Appendix to Notice of Appeal, Page 47.
4
STATEMENT OF FACTS
The Wild Goose property was acquired by the Land Conservation
Investment Program (“LCIP”) on November 19, 1990.7 The LCIP acquisition was
based on a proposal by Wilbur LaPage of the Department of Resources and
Economic Development (“DRED”) that stated that the Wild Goose site “should be
kept as natural as possible” and “no using of paving is necessary at this site.”8 The
Governor and Council authorized the LCIP to acquire the property on April 9,
1990 based on a memorandum that explained that “the LCIP decision to purchase
this property is predicated on interest at DRED”.9 The LCIP’s deed states that the
property was acquired “exclusively for conservation purposes”10 which the LCIP
defined to include “undeveloped shorelines”.11
The Wild Goose property had been disturbed in the past before its
acquisition by the LCIP in 1990. However, in the decades since its acquisition by
the LCIP, the property has returned to its natural condition and includes a mature
pine forest and pristine shoreline.12 The site has a beautiful sandy beach on the
shore, and offers stunning views of the Lake. 13
7 See LCIP Deed, Newbury Exhibit 5, Appendix to Brief, Pages 201-206. 8 See Newbury Exhibit 7; Appendix to Brief, Page 207-208. 9 Newbury Exhibit 29; Appendix to Brief, Pages 214-216. 10 LCIP Deed, Newbury Exhibit 5, Appendix to Brief, Page 201. 11 Land 101.07 (Doc. 4661 eff. 8/4/89) (expired), Appendix to Brief, Page 59.. 12 Newbury Ex. 1, Appendix to Brief, Pages 9-14; LSPA Photo Exhibits, Certified Record, Tabs 45 to 47; Testimony of James Gove, Day 1, Pages 86-89, Appendix II, Page 24 (“well vegetated”
5
On December 17, 2008,14 Fish & Game filed an application to construct
a dual ramp public boat launch facility on the Wild Goose site. Fish & Game’s
plans15 show that construction will disturb 80,500 square feet, nearly two acres,16
of the 3.1 acre17 property and “totally alter” existing natural conditions, nearly the
property lines,18 except for the state minimum setback of 50-feet from the Lake.19
with a “large number of mature trees”); Testimony of Collis Adams, Transcript, Day 2, Pages 286-287, Appendix II, Page 152 (“It’s not a developed site”.); Testimony of Thomas Vannatta, Transcript, Day 2, Pages 11-16, Appendix II, Pages 83-84 (“the woodland growth and the bushes and the shrubbery have all overgrown this site.”), Id., Pages 65-66, Appendix II, Pages 96-97 (“It’s pristine.”); Id., Page 93, Appendix II, Page 105 (“Pristine, to me, would be as it appears now in terms of a flora, growth, tree stands, the various types of plants which have become natural to the area at this point. I think there's reference to the pine needle droppings and the ground cover. If -- I would think the more naturalist you become, the more you would appreciate that. And you really don't mind seeing some old foundations overgrown. And that's what I'm referring to as being as pristine. It's nature coming back and refurbishing itself in spite of man.”). 13See Newbury Exhibit 1; Appendix to Brief, Pages 9-10; supra. 14 At the time of the application, the NHDES had adopted new Alteration of Terrain regulations under RSA 485-A:17, Env-Wq 1500, that applied to all applications submitted after January 1, 2009. However, the NHDES Water Council denied Fish & Game’s permit on appeal. A new application has been submitted under the current Env-Wq 1500. 15 See e.g. Newbury Exhibit 3, Appendix to Brief, Page 6; Fish & Game Exhibit 7, Appendix to Brief, Page 7. 16 The Shoreland permit (Appendix to Brief, Pages 60-63; Appendix to Notice of Appeal, Pages 39-40) allows Fish & Game to grade 80,500 square feet for construction. 17 There is conflicting evidence on the actual acreage of the Wild Goose property. Fish & Game’s narrative application (Exhibit 9, Page 3, Certified Record, Tab 36) reports that the property is 3.1 acres. The Wetlands Council’s January 10, 2012 Decision & Order states that the property is 3.3 acres. See Appendix to Brief, Page 3. 18 See Plans, Appendix to Brief, Pages 6-7; Testimony of James Gove, Transcript, Day 2, Pages Gove 91-92, Appendix II, Page 25 (“the interior of the site is going to be totally altered. […] once you move into the area away from that 50-foot buffer from the lake, then essentially the whole interior of the site will be altered.”); Id., at Pages 157-161, Appendix II, Pages 41-42 (“It’s been developed to the maximum extent practicable or impracticable.”); Testimony of Collis Adams, Transcript, Day 2, Pages 268-269, Appendix II, Page 147 (“to the property line”); Testimony of Thomas Vannatta, Transcript, Day 2, Pages 18-29, Appendix II, Pages 85-87 (inadequate setback and the “size of the project is much too great for that small area”). 19 RSA 483-B:9, II (b).
6
Construction will require excavation of the protected shoreland “as deep as 12
feet” and removal of 77% of the woodland buffer,20 within 150 feet of the
reference line.21 Blasting and exaction activities will require removal of 12,000
cubic yards of soil and bedrock (or 2,000 dump truck loads).22
A total of 134,733 square feet (3.09 acres),23 the entire lot,24 is located in the
250-foot protected shoreland.25 Of the total of 64,161 square feet within the
natural woodland buffer, only 14,865 square feet (23.16%) will remain unaltered
be construction and grading.26 Fish & Game acknowledged that its project did not
comply with the Act’s minimum standards, stated in Section 5.6:27
This project does not meet two of the CSPA minimum standards for Shoreland projects. One of these standards requires at least 50% unaltered land within the Natural Woodland Buffer (50 to 150 ft from the reference line). On this site, the area between 50 ft and 150 ft from the reference line to remain unaltered will be 31%. The other standard requires maintaining a post-construction tree point count of
20 Testimony of James Gove, Transcript, Day 2, Page 101, Appendix II, Page 27. 21 RSA 483-B:9, V (b)(1) (“A natural woodland buffer shall be maintained within 150 feet of the reference line.”). 22 Testimony of Muriel Robinette, Transcript, Day 1, Pages 206-207, Appendix II, Page 54, 23 Fish & Game Exhibit 8, Page 1, Certified Record, Tab 36. 24See Newbury Exhibit 3 (Grading & Drainage Plan), Appendix to Brief, Page 6; Fish & Game Exhibit 7 (Project Impact Plan), Appendix to Brief, Page 7; an insignificant fraction of the property at the property line lies outside the Protected Shoreland. 25 Under RSA 483-B:4, XV, the Protected Shoreland “means … all land located within 250 feet of the reference line of public waters.” 26 Fish & Game Exhibit 8, Page 2, Certified Record, Tab 36. 27The certified record does not contain the NHDES record as required by Env-WtC 206.05 (f). See Appendix to Brief, Page 56. This page (8) of Fish & Game’s narrative application appears to have been omitted from Fish & Game Exhibit 9, Certified Record, Tab 36. However, Fish & Game’s Wetlands Shoreland Report includes the missing Page 8, and is included as Gove Exhibit 2, in the Certified Record, Tab 39.
7
50 in blocks […] one (Block 10), at the ramp, will be irrevocably reduced below 50 points.
Because the Project did not comply with the Act’s minimum standards, it could
only be approved under RSA 483-B:9, IV-b. However, on January 7, 2009, the
NHDES approved the permit application based on five findings which do not
reference RSA 483-B:9, IV-b:28
1. The New Hampshire Office of State Planning (OSP) Public Access Plan for New Hampshire's Lakes, Ponds, and Rivers mandated in 1991 that the state of New Hampshire was to provide the public with unlimited powerboat access to Lake Sunapee. 2. RSA 255-A29 designates New Hampshire Fish and Game as the lead agency for boating access within the state and created the Statewide Public Boat Access Program to provide adequate, safe, and environmentally sound public boat access to waters of the state. 3. New Hampshire Fish and Game conducted a 30 parameter analysis comparing 13 prospecting [sic] sites. Alternatives to the current site were not selected because they would not provide adequate, safe access to Lake Sunapee and, therefore, would not meet the aforementioned mandates. 4. The purpose and intent of RSA 483-B is to fulfill the state's roll [sic] as trustee of its waters and to promote public health, safety, and the general welfare by providing for economic development in proximity to the water, conserving shoreline cover and points of access to inland and coastal waters, and protecting public use of waters and recreation.
28 Permit and Permit Decision, Appendix to Brief, Pages 60-63. 29 [sic] RSA 233-A; NHDES’s typographical error is a copy of an error contained in Fish & Game’s application. See Fish & Game Exhibit 9, Page 1, Certified Record, Tab 36.
8
5. The Department of Environmental Services ("DES") finds that plans by Fay, Spofford and Thorndike, LLC. dated December 15, 2008 and received by the DES on December 18, 2008 provide sufficient evidence to meet the aforementioned purpose and intent of RSA 483-B.
On April 22, 2009, Fish & Game submitted revised its plans “in response to
comments from the NHDES”30 which were approved on May 22, 2009.
The NHDES decision made no reference to RSA 483-B:9, IV-b. It stated a
conclusion that the “Public Access Plan for New Hampshire's Lakes, Ponds, and
Rivers mandated in 1991 that the state of New Hampshire was to provide the
public with unlimited powerboat access to Lake Sunapee” and that Fish & Game is
“the lead agency for boating access”.31 However, the NHDES made no findings
relative to the specific criteria under RSA 483-B:9, IV-b, and stated only a
conclusion that the “plans…received by the DES on December 18, 2008 provide
sufficient evidence to meet the aforementioned purpose and intent of RSA 483-
B”.32 The NHDES conducted no independent review of the need for or design of
the project, and believed it could not do so.33
In November 1991, New Hampshire Governor Judd Gregg and the Office of
State Planning published a report entitled the Public Access Plan for New 30 The Wetlands Council has not submitted the NHDES record as part of the certified record for this Appeal. Cf. Env-WtC 206.05 (f), Appendix to Brief, Page 56. 31 Permit Decision, Newbury Exhibit 37, Appendix to Brief, Pages 60-61. 32 Permit Decision, Appendix to Brief, Pages 60-61. 33 See e.g. Testimony of Darlene Forst, Transcript Day 3, Pages 20-25, Appendix II, Pages 180-181.
9
Hampshire’s Lakes Ponds and Rivers (the “Public Access Plan”).34 The Public
Access Plan included recommendations not only “for providing public access to
state waters” but also to “minimize the potential for adverse environmental
impacts” and to “minimize abutter conflicts, particularly in areas where active
recreation occurs in close proximity to residential areas.”35
The Public Access Plan recommended a “planning standard” of “one public
access point for each 5 miles of shoreline or for every 1,000 acres of surface
water”.36 However, the Public Access Plan indicates that “[f]ield analysts of a
particular pond would determine whether the planning standard should be modified
for that water body.”37 The Public Access Plan included a list of “calculated”
public access points for Lake Sunapee, but clearly stated that “[t]he public access
standards…are recommendations only.”38 (emphasis in original). As a result, the
Public Access Plan did not mandate that a particular number of access points be
provided nor replace analysis of the need or suitability of public access at any
location.
The Public Access Plan recommended that each public access point be
designed and “tailored to the characteristics of the site in question and to the rigors
34 Public Access Plan, Appendix to Brief, Pages 124-200. 35 Public Access Plan, Appendix to Brief, Pages 133-134. 36 Public Access Plan, Appendix to Brief, Pages 158-159. 37 Public Access Plan, Appendix to Brief, Page 159. 38 Public Access Plan, Appendix to Brief, Page 160.
10
of the environment.”39 The design should take into account a variety of
considerations, including: “Terrain Features”; “Retention of Shoreline Beauty”;
“Area Size” sufficient to maintain “an adequate buffer zone to protect the natural
appearance of the area and to prevent visual and other conflicts” and a “Buffer
Zone”.40
The Public Access Plan included an Appendix D of recommended designs.41
The Public Access Plan recommends a “minimum size” of three acres for a Type
IV “Remote Walk-In Facility”.42 Fish & Game’s proposal is a Type I “Multi-Use
Public Access Facility” which the Public Access Plan recommends for sites having
“15-30 acres, including a buffer zone”43 – an area five to ten times larger than the
Wild Goose site.
In 1992, the year following its publication, the Legislature took steps to
implement the Public Access Plan by enacting Chapter 265 of the Laws of 1992,
RSA 233-A. Notably, RSA 233-A:6 provides that “[t]he plans and designs shall
provide for adequate buffer areas.” “Every new public access point should contain
an undeveloped area surrounding the developed facilities to serve as a buffer
39 Public Access Plan, Appendix to Brief, Page 164. 40 Public Access Plan, Appendix to Brief, Pages 165-166. 41 Public Access Plan, Appendix to Brief, Pages 168 & 190-194. 42 Public Access Plan, Appendix to Brief, Page 193. 43 Public Access Plan, Appendix to Brief, Pages 190-191.
11
between the public use area and the abutting land.”44 In fact, RSA 233-A:6’s use
of the phrase “adequate buffer areas” appears to come directly from the Public
Access Plan when it recommends “an adequate buffer zone to protect the natural
appearance of the area and to prevent visual and other conflicts”.45
Fish & Game’s only witness testified that it never considered constructing
any design other than a Type I facility. 46 In fact, its design was prepared “well
before” the Legislature had adopted RSA 483-B:9, IV-b.47 Despite the new law,
the NHDES did not request any changes to the design or size of the project to
comply with the provisions or purposes of the Shoreland Protection Act.48
The NHDES Shoreland Supervisor, Darlene Forst, testified that the
Shoreland Protection Act has sixteen purposes set forth in RSA 483-B:1 & 2.49
The sixteen minimum standards under RSA 483-B:2 include, among others, the
prevention and control of water pollution, protection of aquatic and other wildlife
habitat, conservation of shoreline cover and points of access to inland and coastal
waters, preservation of the state’s lakes in their natural state, promotion of wildlife
and scenic beauty, and conservation of natural beauty. However, Mr. Forst
44 Id. at 166. 45 Public Access Plan, Appendix to Brief, Page 166. 46 Testimony of Lee Carbonneau, Transcript, Day 2, Pages 222-225, Appendix II, Page 136. 47 Carbonneau, Transcript, Day 2, Page 224, Appendix II, Page 136. 48 Forst, Transcript, Day 3, Pages 20-25, Appendix II, Pages 180-181; See also Page 184. 49 Forst Transcript, Day 3, Pages 24-28, Appendix II, Pages 181-182.
12
testified that the NHDES only considered two of the sixteen purposes listed under
the Shoreland Act.50
The NHDES did not make any findings under RSA 483-B:9, IV-b. The
NHDES never evaluated, for example, whether it was “necessary” to build a larger
parking lot that did not comply with the minimum standards of the Shoreland Act,
or its purposes of the Act or other state law. Rather, the NHDES assumed that it
could not consider whether a smaller alternative could be constructed that would
provide public access and comply with the minimum standards of the Shoreland
Act. All of these deviations were permitted without the approval of the
Commissioner, who was informed of the decision during an “impromptu” meeting
that lasted “less than a half an hour” in which other cases were discussed.51
50 Forst Transcript, Day 3, Pages 24-28, Appendix II, Pages 181-182. 51 Forst, Transcript Day 3, Pages 62-70, Appendix II, Pages 191-193.
13
SUMMARY OF ARGUMENT
RSA 483-B:9, IV-b allows the Commissioner of the NHDES to approve
public access projects that do not comply with the Shoreland Protection Act’s
minimum standards “as necessary and consistent with the purposes of [RSA 483-
B] and other state law.” In this case, neither the Commissioner nor the DES
considered whether it was necessary or consistent with the Act’s purposes or other
state law to permit a project that did not comply with the Act’s minimum
standards. The NHDES did not consider whether a project of the size proposed
was necessary; it considered only two of the Act’s sixteen purposes under RSA
483-B 1 & 2; and it failed to consider other state laws such as RSA 233:A-6 and
the State’s Public Access Plan, which requires that the project include “adequate
buffer areas.” The NHDES made only conclusory findings which are inadequate.
RSA 483-B:3 further requires that when state and local standards conflict,
the more stringent standard “shall control”. Fish & Game is a person that is
subject to the Act. RSA 483-B:4, IV. The Town of Newbury adopted a more
stringent setback of 75 feet. RSA 483-B:3 directs the NHDES to apply the more
stringent standard which “shall control.” State permits shall be issued only when
consistent with the Act’s policies, which include compliance with the more
stringent standard under RSA 483-B:3, I & II.
14
ARGUMENT
I. STANDARD FOR REVIEW
A. The Court reviews the Wetlands Council’s application of the law de novo.
The standard of review of a Wetlands Council decision is set forth in RSA
541:13 which provides that findings upon questions of fact “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.” Appeal of Garrison Place Real Estate Inv. Trust, 159 N.H. 539,
541 (2009).
The questions presented in this Appeal concern the application of RSA
483-B:3 and RSA 483-B:9, IV-b. This Court reviews de novo whether the
Wetlands Council erred in its application of the law. A “de novo standard of
review [is applied] to the wetlands council's legal determinations.” Greenland
120 N.H. 753, 759 (1980); and RSA 541-A:20 (now codified at RSA 541-A:35)
(citations omitted) (emphasis added).
B. The Wetlands Council’s role is limited to a determination of whether the NHDES’s decision was “unlawful or unreasonable”. It does not to render a new determination.
In an appeal of a shoreland permit, the Wetlands Council “shall determine
whether the department decision was unlawful or unreasonable by reviewing the
administrative record together with any evidence and testimony the parties to the
appeal may present.” RSA 21-O:14, I-a; Env-Wtc 206.07 (b) (“For any appeal
under RSA 483-B, the appellant shall bear the burden of proving that the decision
of the department that is being appealed was unlawful or unreasonable.”).
The Council cannot “cannot substitute its independent judgment of the facts
and circumstances of a decision for that used by DES in its own deliberations.”
facilities including boat ramps shall be permitted by the commissioner as necessary
and consistent with the purposes of this chapter and other state law.” Under the
statute, only the Commissioner54 can issue a permit that violates the Act’s
minimum standards only “as necessary and consistent with the purposes of [the
Act] and other state law”. RSA 483-B:9, IV-b.
The permit issued by the NHDES makes no reference to RSA 483-B:9, IV-
b. The Commissioner was made aware of an application during an “impromptu
meeting” that “lasted less than half an hour.”55 However, neither the
54 See RSA 483-B:4, IV. The Commissioner maintains a list of designees who may act in his absence. 55 See Statement of Facts.
20
Commissioner nor his staff evaluated whether it was “necessary” to build a project
that was so large that it did not comply with the minimum standards of the
Shoreland Protection Act.56 This is contrary to the express language in RSA 483-
B:9, IV-b which requires the Commissioner to issue a permit that violates the Act’s
minimum standards under RSA 483-B:9, IV-b only “as necessary”.
RSA 483-B:9, IV-b was enacted as a result of a report in 2006 of the
Legislative Commission to Study the Comprehensive Shoreland Protection Act.57
The Commission’s discussions concerning how the NHDES would apply the
language is instructive because the statute already contained identical language that
applied to public utilities under RSA 483-B:9, IV-a. For example:
Ms. Forst noted that the Department would still have the ability to enforce the minimum standards as necessary to meet the intent of the act but it would alleviate those portions of the Act that might preclude any public road. DOT has asked for it, but it is also crucial to Fish and Game access projects. 58
(emphasis added). Ms. Forst’s testimony confirms that, under the language already
in the law, the Commissioner would “enforce” the Act’s minimum standards but
“alleviate” only those portions that entirely “preclude” any project.59 In response
to questions from the Legislative Commission, Ms. Forst further explained:
56 See Statement of Facts. 57 Appendix to Brief, Page 94. 58Appendix to Brief, Page 119 59 Appendix to Brief, Page 119.
21
Ms. Forst stated the she had put forward the request on behalf of two other agencies and that DES did review factors such as pervious or impervious paving and did encourage Fish and Game in particular to go in those directions. The problems were related to size restrictions and setbacks which were inflexible. The purposes of the Act, include providing recreational and economic opportunities in balance with protecting the environment. DOT and Fish and Game have asked that the Department be allowed to look at these and issue the permits that would normally be required while keeping to the intent of the Act as much as is practical and feasible on a public use project, which because of the large number of people who use them and their function, can’t always meet the same criteria. There are issues such as handicapped disability, parking. They ask that the Department have the leeway and the ability to meet the intent of the Act to the maximum extent possible while still allowing that public benefit without needing to go through a variance process to do it. This would not exempt them from the Act – it would not exempt them from the general concepts and intent, you would have to rely on DES and their permitting processes to put those issues forward to the maximum extend feasible. It would simply ensure that the CSPA would not be used to preclude those public benefit projects from moving forward.60
(emphasis added). This testimony makes clear what RSA 483-B:9, IV-b plainly
states: the Commissioner is required to hold projects “to the intent of the Act as
much as is practical and feasible” or “to the maximum extent possible while still
allowing that public benefit”.61 Simply, the Commissioner would have to consider
– exactly as RSA 483-9:IV-b states – whether approval of the project that does not
comply with the Act’s minimum standards was “necessary and consistent with the
purposes of this Chapter and other state law.”
60 Appendix to Brief, Page 119. 61 Appendix to Brief, Page 119.
22
The Commissioner considered the project only briefly after the design had
been reviewed.62 He performed no analysis of whether it was necessary to exceed
the minimum standards. Even Fish & Game’s consultant did not evaluate the size
or design of the facility. For example, Lee Carbonneau, testified that Fish & Game
did not consider whether a project of this size necessary or whether a smaller
facility could comply with the intent of the Act. She was asked if “constructing a
smaller facility such as a Type IV facility63 that's smaller in size [would] allow Fish
and Game to actually meet the shoreline criteria?” She responded only that “this is
the design that they provided to me and asked me to prepare the applications for.”64
When pressed whether a smaller facility might “also meet both providing public
access and complying with that statutory provision of the Shoreland Protection Act
that 50 percent of the area in the woodland buffer be unaltered?” she admitted that
it was possible: “Yes, I can't argue with that. That's possible.”65 However, “no
smaller alternatives were presented for this particular site.”66
The Commissioner did not consider whether it was necessary to permit this
project under RSA 483-B:9, IV-b as that statute requires. The only evidence of
necessity is a single document - a 2004 letter from Fish & Game’s advisory board, 62 Forst, supra, Appendix II, Pages 192-193. 63 As noted below, a Type IV facility is described in the State’s Public Access Plan (Newbury Exhibit 10) and is recommended for a 3 acre site. 64 Appendix II, Page 136. 65 See Transcript, Day 2, Pages 224-225, Appendix II, Page 136. 66 Appendix II, Page 239.
23
the Public Water Access Advisory Board (“PWAAB”) in which PWAAB asserted
that the project a project necessary four years before the design and application
were prepared.67
RSA 483-B:9, IV-b does not delegate the duty to consider whether a project
is necessary to Fish & Game, its advisory board, nor to the Wetlands Council on
appeal. Under RSA 483-B:9, IV-b, the duty to consider whether it is necessary to
issue a permit falls upon the Commissioner.68 It is undisputed that the
Commissioner never evaluated whether a smaller parking lot could be constructed
that complied with RSA 483-B,69 nor whether the project was necessary at all as
required by RSA 483-B:9, IV-b. While the Wetlands Council incorrectly found
that the 2004 Fish & Game Advisory Board letter was evidence that the project
was necessary, the Commissioner made no such determination and his staff
believed it had no authority to do so, despite the plain language in RSA 483-B:9,
IV-b. The NHDES’s decision unlawfully and unreasonably failed to apply the
criteria required by law.
67 Appendix to Brief, Pages 217-220. 68 RSA 483-B:9, IV-b; RSA 483-B:4, IV. 69 See, e.g., Transcript, October 26, 2010 (Forst), Pages 330-331.
24
B. THE COUNCIL AND THE NHDES FAILED TO CONSIDER WHETHER THE PROJECT WAS CONSISTENT WITH THE PURPOSES OF THE SHORELAND PROTECTION ACT AS REQUIRED BY RSA 483-B:9, IV-b
The NHDES further failed to consider whether the project is “consistent
with the purposes of this chapter and other state law” as required by RSA 483-B:9,
IV-b. The permit decision contains only a conclusory statement that the project’s
plans “provide sufficient evidence to meet the aforementioned purpose and intent
of RSA 483-B.”70 However, the decision shows – as the Department’s staff
testified – that the Department considered only two of the sixteen “purposes” listed
under RSA 483-B:2.71 This is a glaring omission as RSA 483-B:9, IV-b requires
the Commissioner to determine that the project is consistent with all of the
purposes of the Shoreland Protection Act under RSA 483-B:1 and, arguable at
least, RSA 483-B:2. No consideration was given to the project’s impact on Lake
Sunapee, its natural Shoreland, and the preservation of the natural woodland buffer
as required by RSA 483-B:9, IV-b and RSA 483-B:1. NHDES v. Marino, 155
N.H. 709, 713 (2007) (“The Shoreland Protection Act … as its title suggests, [is]
aimed at protecting the state's shoreland as well as its public waters and preventing
70 Permit Decision, Appendix to Brief, Pages 60-61. 71 See, e.g., Testimony of Darlene Forst, Transcript, Day 3, Pages 24-28, Appendix II, Pages 181-182.
25
"uncoordinated, unplanned and piecemeal development along the state's
shorelines.");
The Department’s Staff, Darlene Forst, testified that only two of sixteen
purposes – those related to public access and economic development – were
considered. As a result, the Commissioner failed to comply with the law which
requires that he make specific findings that the project is “consistent with” – i.e.
properly balances – all of the purposes. Because the Commissioner failed to
consider all of the Act’s purposes and to make any specific findings, his decision is
unlawful and unreasonable.
C. THE NHDES AND THE COUNCIL FAILED TO CONSIDER WHETHER THE PROJECT WAS CONSISTENT WITH OTHER STATE LAW AS REQUIRED BY RSA 483-B:9, IV-b.
The NHDES Department also failed to consider whether its decision was
consistent with “other state law” as required by RSA 483-B:9, IV-b. Before the
Council, the Appellants urged that RSA 233-A:6 requires that public access
facilities be designed such that they “shall provide for adequate buffer areas.”72 In
addition, the Appellants argued that because the property at issue was acquired by
the Land Conservation Investment Program (LCIP), it is subject to RSA 162-C:6 &
10 which require that the property be managed “so as to preserve the natural
72 Vannatta, Transcript, Day 2, Pages 29-30, Appendix II, Page 87.
26
beauty, landscape, rural character, natural resources, and high quality of life in
New Hampshire.” RSA 162-C:6, III.
Specifically, concerning the failure to provide adequate buffer areas, the
Appellants offered evidence that RSA 233-A:6, Design of Public Boat Access
Areas requires that Fish & Game’s “plans and designs shall provide for adequate
buffer areas”. The project contains essentially no buffers at all, and construction
will destroy existing natural conditions to within 15 feet of the property line. The
Town and LSPA advocated for a smaller facility that would provider larger buffers
both from the lake and the property lines, consistent with the State’s Public Access
Plan.
Neither the Commissioner nor the NHDES considered whether the buffers
were adequate under RSA 233-A:6. RSA 483-B:9, IV-b requires that the
Commissioner make such a determination. His decision directly conflicts with this
statutory requirement and is unlawful and unreasonable.
The Wild Goose property was acquired by the Land Conservation
Investment Program (LCIP) under a deed which specified that the property was to
be used “exclusively for conservation purposes”.73 The LCIP defined
“Conservation Land” as “undeveloped land that may be used for agriculture,
forestry, or as wildlife habitat or which contains special scenic beauty, threatened
73 Appendix to Brief, Page 201.
27
or endangered plants and animals, aquifer recharge areas, wetlands, undeveloped
shorelines or flood storage areas.”74
RSA 162-C:6, III requires that the State “shall manage the lands acquired
under the [LCIP] so as to preserve the natural beauty, landscape, rural character,
natural resources, and high quality of life in New Hampshire.” The statute creates a
public trust and permits “no deviation” in the uses of LCIP lands to non-
conservation purposes. RSA 162-C:10.
The Wetlands Council declined to consider the requirements of RSA 162-
C:6 & 10, which clearly prohibit the destruction of lands protected for conservation
to build a parking lot. RSA 483-B:9, IV-b requires that the Commissioner make a
specific finding that the project complies with other state law, including RSA 162-
C:6, which governs the use of the lands in the application.
The law is well settled that an agency’s failure to make findings is both
unlawful and unreasonable. Appeal of City of Nashua, 138 N.H. 261, 263-264
(1994). Here, the NHDES made no findings relative to the project’s failure to
comply with other state law as expressly required by statute. Reversal is therefore
appropriate in light of the agency’s failure to comply with RSA 483-B:9, IV-b in
approving the project.
74 Land 101.07 (July 1989) (Newbury 6) Appendix to Brief, Page 59.
28
IV. THE NHDES FAILED TO APPLY THE TOWN’S MORE STRINGENT 75-FOOT SETBACK AS REQUIRED BY RSA 483-B:3 AND NHDES RULES.
The Shoreland Protection Act provides that “State and local permits for
work within the protected shorelands shall be issued only when consistent with the
policies of this chapter.” This is known as the “Consistency Requirement” of the
Act because it requires State and Local permits to be reviewed under the same
standards. The Act recognizes that “uncoordinated, unplanned and piecemeal
development along the state's shorelines, which could result in significant negative
impacts on the public waters of New Hampshire.” RSA 483-B:1, IV; NHDES v.
Marino, 155 N.H. 709, 713 (2007) (“The Shoreland Protection Act … as its title
suggests, [is] aimed at protecting the state's shoreland as well as its public waters
and preventing "uncoordinated, unplanned and piecemeal development along the
state's shorelines."); quoting Opinion of the Attorney General, No. 04-0002 (Sept.
2, 2004) (The Shoreland Protection Act “functions statewide as an additional layer
of regulation, which overlays existing state and municipal permitting schemes,
such as building permits, wetlands permits, and septic system approvals.”).
In order to accomplish its policy of State-wide consistency, the Legislature
provided that “[w]hen the standards and practices established in this chapter
conflict with other local or state laws and rules, the more stringent standard shall
control.” RSA 483-B:3, II (emphasis added). State agencies are specifically
29
included in the definition of persons subject to the Shoreland Protection Act. RSA
483-B:4, XII. As a result, state agencies – like private persons – must comply
with all the provisions of the Act.
The NHDES and the Wetlands Council mistakenly believed that Fish &
Game was exempt from RSA 483-B:3. However, State agencies are required to
comply with the laws passed by the Legislature. The NH Constitution provides
that “all government, of right, originates from the people”. Part I, Article 1. It
further provides that “[t]he people of this state have the sole and exclusive right of
governing themselves as a free, sovereign, and independent state”. Part I, Article
7. Indeed, “[a]ll power residing originally in, and being derived from, the people,
all the magistrates and officers of government are their substitutes and agents, and
at all times accountable to them.” Part I, Article 8. It is the Legislature’s sole
discretion to determine the standards to be applied by the NHDES.
Under RSA 483-B:3, I & II, the standard to be applied is clear and
unmistakable: “When the standards and practices established in this chapter
conflict with other local or state laws and rules, the more stringent standard shall
control.” RSA 483-B:3, II (emphasis added). Furthermore: “All state agencies
shall perform their responsibilities in a manner consistent with the intent of this
chapter” and “State and local permits for work within the protected shorelands
shall be issued only when consistent with the policies of this chapter.” RSA 483-
30
B:3, I. (emphasis added). The Act’s policies specifically include prevention of
“uncoordinated, unplanned and piecemeal development along the state's shorelines,
which could result in significant negative impacts on the public waters of New
Hampshire.”75 To effectuate this policy, the Legislature required that the “more
stringent” standard “shall control” both State and local approvals. RSA 483-B:3, I
& II.
It is undisputed that the Town of Newbury has adopted a “more stringent”
setback of 75 feet.76 It is further undisputed that Fish & Game’s proposed parking
lot and access roads were located and designed to comply with a less stringent 50
foot setback. The NHDES and Wetlands Council, contrary to RSA 483-B:3,
ignored the “more stringent” 75 foot setback, under the mistaken belief that Fish &
Game was sovereign and therefore exempt from RSA 483-B:3. The NHDES also
ignored its own rules which require that the “local setback” be shown “on all plans
submitted to any state or local agency for any project that includes work in the
protected shoreland”77 and that “state and local permits for work within the
protected shoreland zone shall be issued only when consistent with RSA 483 B.”78
75 Emphasis added. 76 Appendix to Brief, Page 44 et seq. 77 Env-Wq 1411.01, Appendix to Brief, Page 55. 78 Env-Wq 1411.02 (a), Appendix to Brief, Page 55
31
Under the New Hampshire Constitution, state agencies are required to abide
by the laws passed by the Legislature. The Legislature has specifically directed the
NHDES to apply the more stringent standard where it conflicts with the State’s 50
foot setback. RSA 483-B:3. The NHDES’s decision to ignore the Legislature’s
specific instruction and allow Fish & Game to comply with its less stringent
standard is unlawful and reasonable and contrary to RSA 483-B:3.
32
CONCLUSION
The Legislature required the Commissioner to permit public access facilities
only “upon a finding that it is “necessary and consistent with the purposes of [the]
chapter and other state law.” RSA 483-B:9, IV-b. The Commissioner and his
Department failed to evaluate the project under the statutory criteria under the
mistaken belief that the law precluded consideration of the project’s design. They
considered only two of the sixteen purposes of the Act, and did not consider
consistency with other state laws such as the requirement for adequate buffer areas
under RSA 233-A:6, or the restrictions on the use of Land Conservation
Investment Program lands under RSA 162-C: 6 & 10. In addition, the
Commissioner failed to apply the Town’s “more stringent” 75 foot setback to the
project as required by RSA 483-B:3.
This Court should therefore reverse the decision below and remand the
Application to the Commissioner to review the project under RSA 483-B:9, IV-b
and the more stringent setback under RSA 483-B:3.
REQUEST FOR ORAL ARGUMENT
The Appellants request oral argument and designate Justin C. Richardson
and Gregory A. Smith to be heard for the Town and the LSPA respectively.
