Administrative Law

Laura D. Devine
Civil Litigation Attorney
Boyle Shaughnessy Law
Manchester, NH

No. 2018-0650
May 22, 2020
Affirmed in part, vacated in part, and remanded.

  • Whether the Department of Environmental Services has the authority to restrict the height of all accessory structures or only those that are “small” such as a gazebo or a shed

Petitioner, New Hampshire Department of Environmental Services (“DES”), appealed a decision of the New Hampshire Wetlands Council remanding an administrative order issued by DES that directed the respondents, Bryan and Linda Corr, to cease and desist unpermitted works on their lakefront property.

The Wetlands Council (“Council”) found the following facts in reaching its decision: the Corrs owned lakefront property in Moultonborough, New Hampshire. At purchase, the property had a boathouse which was partially collapsed as a result of snow load. It was considered grandfathered or a nonconforming structure for the purpose of the Shoreland Protection Act and DES regulation. The height was approximately seventeen feet. The Corrs planned to replace the boathouse and hired a land use consultant to assist them with the process, which required approval from the Town of Moultonborough (the “Town”) as well as a Wetlands Permit by Notification (“PBN”) with DES. The PBN did not require information regarding height. The respondents were issued a permit but prior to starting the construction, decided to set the boathouse back from shore by approximately ten feet. They sought and were granted a building permit from the town, which included the added ten-foot distance from the shoreline and increased height a maximum of twenty-seven feet for the structure (as permitted by the Town). The respondents obtained the building permit from the Town and filed another PBN and commenced construction. They spent over $100,000.00 on the permitted structure. When it was framed and nearing completion, DES visited the site to conduct an inspection reportedly in response to a complaint. DES subsequently issued a Letter of Deficiency to the respondents and informed them that the structure was twenty-seven feet tall, and therefore not compliant with DES regulations. Specifically, DES stated that the building could not exceed height of seventeen feet, the original boathouse, because it was taller than twelve feet in height and the maximum height to accessory structures located within the shoreline is capped at twelve feet. DES issued an administrative order, which the Corrs appealed to the Council. The Corrs notified DES that they planned to challenge DES’ authority to restrict the height of the structure.

DES subsequently moved to dismiss the proceeding before the Council, which was granted in-part and denied in-part. The hearing officer left three factual determinations to be resolved by the Council.  An evidentiary hearing was held and the Council issued a written decision which stated in-part that given the placement of the new placement of the structure ten feet back from the shoreline, as well as the storm water management features, “it was possible that the structure had become more nearly conforming than the existing structure.” DES subsequently filed a motion to reconsider, contending that the Council had improperly overruled a legal determination made by the hearing officer, specifically that the Corrs’ structure should be regulated as a nonconforming structure rather than accessory structure, the Council had ignored the DES hearing officer’s legal determination that DES has the right to restrict the height of the Corrs’ structure as an accessory structure.

DES appealed the Council’s decision before the Supreme Court, which directed the Corrs to cease and desist the unpermitted work on their lakefront property. The Court agreed with the respondents that DES did not have the authority to limit the height of their structure stating that the plain language of the statute does not grant DES the authority to restrict the height of all accessory structures, only those that are “small.” The Council found that the structure in dispute is not a “small” accessory structure such as a gazebo or a shed, and given that finding, DES lacked authority to regulate the height. The Supreme affirmed the Council’s decision to the extent that it concluded twelve-foot height restriction does not apply to their structure. However, all other aspects of the decision were vacated.

The matter was remanded to the Council with instructions to grant the respondents’ appeal and to vacate the DES administrative order, which relied fully on the alleged height violation.

 

Gordon MacDonald, Attorney General, (K. Allen Brooks and Joshua Harrison) for the petitioner. John Cronin and Daniel Muller, Jr., Cronin, Bisson and Zalinsky, Manchester, for the respondents.