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Appeal of Cook

Supreme Court of New Hampshire

May 4, 2018

APPEAL OF N. MILES COOK, III (New Hampshire Wetlands Council)

          Argued: November 16, 2017

          Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael J. Tierney on the brief and orally), for N. Miles Cook, III.

          Gordon J. MacDonald, attorney general (Mary E. Maloney, assistant attorney general, on the brief and orally), for New Hampshire Department of Environmental Services.

          LYNN, C.J.

         The petitioner, N. Miles Cook, III, appeals a ruling of the Wetlands Council (Council) upholding the decision of the New Hampshire Department of Environmental Services (DES) denying his request for a permit to reconstruct and extend his dock on the Piscataqua River. We vacate and remand.

         The following facts were found by the Council, or are otherwise derived from the administrative record. The petitioner owns property on the Piscataqua River in Dover. In 2006, he obtained a wetlands permit to construct "a tidal docking structure to serve his private residence, " which provides "partial tide access." In March 2015, the petitioner applied to DES for a permit to reconstruct and extend the existing dock for the purpose of providing him with "reasonable access to navigable water." In his application, the petitioner maintained that "[t]he existing dock . . . does not provide reasonable access to navigable public water over more [than] half of the tidal cycle, and provides problematic access during almost all of the tidal cycle." As a result, he contended that "a larger dock is needed" for him to reasonably exercise his "access rights at this property."

         In October, DES denied the application, citing seven findings in support of its decision. As relevant here, DES found that the petitioner failed to demonstrate "need" pursuant to New Hampshire Administrative Rules, Env-Wt 302.01(a) and 302.04(a)(1) (respectively, Env-Wt 302.01 and Env-Wt 302.04) because he "has an existing dock with partial tide access, a mooring in the Piscataqua River in front of the subject property, and the ability to become part of the Brickyard Estates Dockowner's Association and use the all-tide access dock on the abutting property to access his mooring." In that same paragraph, DES found that the petitioner's "plan shows that there will be no more water depth at the new proposed float location at 280' from shore, than is available to the applicant with his current 107' dock." It also determined that extending the petitioner's dock did not meet the "public good" requirement in Env-Wt 302.01(a) because the use of the community dock structure was available and the community dock was "constructed to serve many users in one location and thereby minimize impacts."

         The petitioner appealed to the Council. Following an adjudicatory hearing and subsequent deliberations, the Council issued a decision denying the petitioner's appeal. In its decision, the Council noted that "[t]he central issue in [the petitioner's] appeal . . . is whether [he] could justify the expanded dock proposal based on his 'need' to access navigable water on a more frequent basis than he currently experiences with the existing dock." The Council explained that it was evenly split on whether the petitioner had met his burden to demonstrate that DES acted unlawfully or unreasonably by finding that he failed to prove that he had a "need" for the expanded dock within the meaning of Env-Wt 302.01(a). The Council also evenly split their votes on whether the petitioner had satisfied his burden of demonstrating that DES erred by finding that "there was no more usable water at the proposed dock compared with the existing dock." The Council further explained that it was either "evenly divided" or had not specifically voted on the issues raised respecting DES's other findings in support of denial.

         Finally, the Council explained that its members "split their vote five in favor, five against" whether the petitioner had met his burden to demonstrate that DES's decision was unlawful or unreasonable. Therefore, the Council concluded that the petitioner did not meet his burden of demonstrating that DES erred by denying his permit because the petitioner "failed to convince a majority of the Council that DES acted illegally or unreasonably." The petitioner's motion for reconsideration was denied, and this appeal followed.

         RSA chapter 541 governs our review of Council decisions. See RSA 21-O:14, III (Supp. 2017). Under RSA 541:13 (2007), we will not set aside the Council's order except for errors of law, unless we are satisfied, by a clear preponderance of the evidence, that it is unjust or unreasonable. The Council's findings of fact are presumed prima facie lawful and reasonable. RSA 541:13. In reviewing the Council's findings, our task is not to determine whether we would have found differently or to reweigh the evidence, but, rather, to determine whether the findings are supported by competent evidence in the record. Appeal of Michele, 168 N.H. 98, 105 (2015). We review the Council's rulings on issues of law de novo. Id.

         On appeal, the petitioner argues that DES erred by requiring him to demonstrate a need for an expanded dock because need is not required by RSA chapter 482-A (2013 & Supp. 2017), which governs fill and dredge in wetlands. Nonetheless, he maintains that, even if "need" is required, DES improperly applied the need requirement in this case. The petitioner further argues that "there were several procedural errors at the [Council's adjudicatory] hearing and deliberations." Specifically, he contends that the Council erred by: (1) not reaching a decision pursuant to RSA 482-A:10, VI (2013) because the votes were split five to five; (2) allowing a council member to vote after attending only part of the deliberations; and (3) failing to maintain a complete audio recording of the adjudicatory hearing as required by RSA 541-A:31, VII (2007).

         We begin by addressing the petitioner's argument that DES erred by requiring that he demonstrate a need to expand his dock as a requirement for approval of his application. He contends that RSA chapter 482-A "does not require an applicant to show 'need'" and, therefore, the need requirement in Env-Wt 302.01(a) and Env-Wt 302.04(a)(1) impermissibly adds to the statutory scheme. DES counters that the need requirement reflects the purpose of the chapter as articulated in RSA 482-A:1 (2013), and was properly promulgated pursuant to "RSA 482-A:11, which directs the Commissioner to adopt reasonable rules to implement the purposes of" RSA chapter 482-A.

         Resolving this issue requires us to engage in statutory and regulatory interpretation. We review the interpretation of statutes and regulations de novo. See Bach v. N.H. Dep't of Safety, 169 N.H. 87, 91 (2016). We use the same principles of construction when interpreting both statutes and administrative rules. Id. at 92. When interpreting statutes, "we are the final arbiters of the legislature's intent, as expressed in the words of the statute considered as a whole." Petition of Sawyer, 170 N.H. 197, 203 (2017) (quotation and brackets omitted). "We first examine the language of the statute, and, where possible, ascribe the plain and ordinary meanings to the words used." Id. (quotation omitted). "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." Id. (quotation omitted).

         While the legislature may delegate to administrative agencies the power to promulgate rules necessary for the proper execution of the laws, this authority "is designed only to permit the [agency] to fill in the details to effectuate the purpose of the statute." Appeal of Wilson, 161 N.H. 659, 662 (2011) (quotation omitted). "Thus, administrative rules may not add to, detract from, or modify the statute which they are intended to implement." Id. (quotation omitted). ...

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