Appeal of Robert C. Michele & a.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Wetlands Council
No. 2014-509

APPEAL OF ROBERT C. MICHELE & a.
(New Hampshire Wetlands Council)

Argued: April 22, 2015
Opinion Issued: August 11, 2015

Cleveland, Waters and Bass, P.A., of Concord (David W. Rayment and
Mark S. Derby on the brief, and Mr. Rayment orally), for the petitioners.

Johnson & Borenstein, LLC, of Andover, Massachusetts (Mark B.
Johnson on the brief and orally), for the respondents.

LYNN, J. The petitioners, Robert C. and Katherine L. Michele, trustees of
the Robert C. Michele Revocable Trust (Micheles), appeal a ruling of the
Wetlands Council (Council) upholding a decision of the New Hampshire
Department of Environmental Services (DES) to issue a permit allowing the
respondents, Joseph and Linda Bremner (Bremners), to install a seasonal dock
in water adjacent to the Micheles’ pond-front property over which the Bremners
have an easement. We affirm.

I

The following facts are derived from the record. The Micheles own
property in Jaffrey with approximately 750 feet of shoreline on Gilmore Pond.
The Bremners own nearby property that does not directly adjoin the pond. At
one time, the Bremners’ and Micheles’ properties were a single parcel, owned
by George and Karen Rickley (Rickleys). When the Rickleys conveyed what is
now the Bremners’ property, they sought approval to subdivide a section of
their 750 feet of shoreline to accompany the plot. The town planning board
denied the request, and the Rickleys instead conveyed the plot with an
easement over a 118-foot segment of their shoreline.1 The relevant language of
the deed states that the owner of the partitioned lot (now the Bremners) “shall
have the right under this easement to the exclusive use of said parcel of shore
frontage for whatever purposes they may desire.” The Micheles bought their
property with full knowledge of the easement.

In 2007, the Bremners applied to DES for a permit to install a seasonal
dock in the pond, adjacent to their easement. See RSA 482-A:3 (Supp. 2007)
(subsequently amended). The Micheles objected to the application, arguing
that the Bremners had no legal right to apply for a dock permit on the
Micheles’ land without their consent. In 2009, DES granted the permit, and
the Bremners installed a dock. The Micheles promptly filed both a motion for
reconsideration and an action in superior court seeking to invalidate the
easement. DES took no further action pending the outcome of the lawsuit.
The superior court determined that the easement was valid, and in a 2011
unpublished order, we affirmed the court’s ruling. See Michele v. Bremner, No.
2010-0844 (N.H. Aug. 24, 2011). Thereafter, DES affirmed its grant of the
permit. It found that the Bremners’ dock qualified as a minimal impact
project, see N.H. Admin. Rules, Env-Wt 303.04(a), and concluded that, because
under its regulations only major shoreline structures require that the fee owner
be the applicant, see id. 402.18(a), the Bremners could apply for a dock permit.
DES also found that the Micheles failed to demonstrate that the seasonal dock
unreasonably affected the value or their use and enjoyment of their property.
The Micheles appealed to the Council, which affirmed the DES decision. This
appeal followed.

II

The Micheles first argue that DES erred in granting the Bremners, as
mere easement holders, a permit to install a seasonal dock over the fee owners’
objection. Rather than argue that the Bremners lack a sufficient property
interest to install a dock in the water adjacent to the easement, they contend
that, under the relevant statutes, DES lacks the authority to issue dock
permits to easement holders. In support of this argument, the Micheles
advance several theories: (1) the plain meaning of the terms “ownership” and
“landowner-applicant” as used in the statutory scheme compel the conclusion

1There is some discrepancy as to how much of the shoreline is encompassed in the easement.
The exact size is immaterial to the current appeal, and we adopt the 118-foot figure used by DES
and the Council.

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that only fee owners can apply for a dock permit, see RSA 482-A:11, II (2013);
(2) DES, in interpreting the statute, impermissibly went beyond its plain
meaning by examining DES regulations; and (3) the instructions and forms
that DES uses to administer the statute demonstrate that only fee owners can
apply for permits. Alternatively, the Micheles argue that even if the Bremners
could apply for a permit under the statute, DES erred in granting a permit
because it adversely affected the value and enjoyment of their land.

The Bremners counter that a plain reading of the statute shows that it
does not prohibit easement holders from applying for dock permits. They also
maintain that this reading is consistent with the statute’s purpose, DES’s
regulations, and DES’s forms and procedures. Additionally, the Bremners
contend that the issuance of the permit in this case was reasonable, and that
many of the Micheles’ arguments are based upon unpreserved or irrelevant
considerations.

To resolve these issues, we must engage in statutory and regulatory
interpretation. Although we give some deference to an agency’s interpretation
of its own regulations or of a statute it administers, “our deference is not total.”
Appeal of Old Dutch Mustard Co., 166 N.H. 501, 506 (2014) (quotation
omitted). Concerning statutes, “[w]e are still the final arbiter of the legislature’s
intent as expressed in the words of the statute considered as a whole.” Appeal
of Town of Seabrook, 163 N.H. 635, 644 (2012). As to regulations, “[w]e
examine the agency’s interpretation to determine if it is consistent with the
language of the regulation and with the purpose which the regulation is
intended to serve.” Old Dutch Mustard, 166 N.H. at 506 (quotation omitted).
“We use the same principles of construction when interpreting both statutes
and regulations.” Id.

“We first look to the language of the statute itself, and, if possible,
construe that language according to its plain and ordinary meaning.” Appeal of
Local Gov’t Ctr., 165 N.H. 790, 804 (2014). “We interpret legislative intent from
the statute as written and will not consider what the legislature might have
said or add language that the legislature did not see fit to include.” Id. “We
construe all parts of a statute together to effectuate its overall purpose and
avoid an absurd or unjust result.” Id. “Moreover, we do not consider words
and phrases in isolation, but rather within the context of the statute as a
whole.” Id. “This enables us to better discern the legislature’s intent and to
interpret statutory language in light of the policy or purpose sought to be
advanced by the statutory scheme.” Id. Additionally, “[w]hen the language of a
statute is plain and unambiguous, we need not look beyond the statute itself
for further indications of legislative intent.” Petition of Malisos, 166 N.H. 726,
729 (2014).

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 RSA 482-A:3, I, requires that “any person” who wishes to construct a
dock must apply to DES for a permit, unless an exemption applies.2 The
statute further specifies other requirements that an “applicant” must fulfill.
See RSA 482-A:3, I(d)(1) (notifying abutters). RSA 482-A:11, II then provides,
in relevant part, that “[b]efore granting a permit under this chapter, the
department may require reasonable proof of ownership by a private landowner-
applicant.” (Emphasis added.) The Micheles rely primarily upon the
legislature’s use of the terms “ownership” and “landowner-applicant” in RSA
482-A:11, II to support their position that only fee owners can apply for dock
permits. The legislature did not define the terms “owner,” “ownership,”
“landowner,” “landowner-applicant” or “applicant.” See RSA 482-A:2 (Supp.
2011) (amended 2012).

“When a term is not defined in the statute, we look to its common usage,
using the dictionary for guidance.” K.L.N. Construction Co. v. Town of Pelham,
167 N.H. 180, 185 (2014). Webster’s Third New International Dictionary
defines “ownership” as “the state, relation, or fact of being an owner: lawful
claim or title”; and “owner” as “one that has the legal or rightful title whether
the possessor or not.” Webster’s Third New International Dictionary 1612
(unabridged ed. 2002) (emphasis added). We acknowledge that these are broad
definitions. We see no reason, however, to limit the meaning of the terms when
the legislature did not see fit to do so. Based upon the common meaning of the
term, we conclude that “ownership,” as used in the statute, neither is limited to
fee ownership nor requires possession. We further conclude that parties who
hold title to a shoreline easement, such as the Bremners, are “owners” under
the statute. Because the term “owner” encompasses property interests other
than fee ownership, the Micheles’ citation to the repeated use of the terms
“owner,” “property owner,” and “landowner” throughout the statutory scheme
does not advance their argument.

Contrary to the Micheles’ argument that the legislature could not have
intended easement holders to be able to apply for a permit under the statute,
we see no evidence that the purpose of the statute was to change the balance of
property rights between fee owners and easement holders from what it was
under the common law. As the Micheles point out, we have previously noted
that an “easement is a nonpossessory right to the use of another’s land.”
Arcidi v. Town of Rye, 150 N.H. 694, 698 (2004). As explained above, however,
possession is not a requirement of an “ownership” interest in land. Further, in
Arcidi, we said that when there is an express grant of an easement, “a grantee
takes by implication whatever rights are reasonably necessary to enable it to
enjoy the easement beneficially. This includes the right to make improvements

2We observe that, although RSA 482-A:3, IV-a would normally exempt a low impact seasonal
dock, such as the one at issue, from the permit requirements, the proposed dock must be the only
dock on the frontage to qualify for the exemption. The Bremners’ dock does not qualify for such
an exemption because the Micheles already have a dock on the frontage.

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that are reasonably necessary to enjoy the easement.” Id. at 701 (citation
omitted). Arcidi concerned an easement over the plaintiff’s land for “ingress
and egress by motor vehicle.” Id. at 697 (quotation omitted). We held that it
was reasonable for the easement holder to cut down trees, fill in wetlands and
build a gravel road across the easement. Id. at 697, 702. We conclude that,
under the common law, installing a dock — arguably a less impactful project —
can be a reasonable use of an easement in at least some circumstances.3

Instead of altering the state of property rights under the common law,
the purpose of the statute is “to protect and preserve [the state’s] submerged
lands under tidal and fresh waters and its wetlands . . . from despoliation and
unregulated alteration.” RSA 482-A:1 (2013). It follows, therefore, that anyone
who could build a dock under the common law can apply for a dock permit
under RSA chapter 482-A. Given the broad grant of the Bremners’ easement,
they have a sufficient ownership interest to obtain a dock permit under RSA
chapter 482-A.

The Micheles contend that this interpretation of the statute will
impermissibly force DES to decide the relative property rights of parties with
competing interests. We have previously stated that DES’s authority to
regulate docks “does not include the power to determine the relative rights of
property owners.” Gray v. Seidel, 143 N.H. 327, 330 (1999). Gray, however,
involved an appeal of a superior court order which determined that, because
DES and other local authorities regulate docks, the court lacked jurisdiction to
decide whether building a dock was a reasonable use of the plaintiffs’
easement. Id. at 329-30. We reversed, holding that the court did have
jurisdiction to rule on the question of whether the plaintiffs’ proposed dock
constituted a reasonable use of the easement. Id. at 330. Gray stands merely
for the proposition that DES’s authority to regulate docks does not divest the
courts of jurisdiction to decide underlying property rights. Nothing in that case
alters the fact that, in issuing any dock permit, DES must necessarily decide
whether the applicant has met the statutory and regulatory criteria. Thus,
DES retains the authority to determine whether an applicant has a sufficient
property interest to apply for a dock permit.

Although we need not look beyond the plain and unambiguous terms of
the statute to ascertain the legislative intent in this case, see Petition of
Malisos, 166 N.H. at 729, we note that DES’s regulations are consistent with
our ruling. The commissioner of DES is empowered to adopt regulations to
implement RSA chapter 482-A. RSA 482-A:11, I (2013). DES regulations
3 Indeed, the issue of whether the Bremners’ dock is an unreasonable use of the easement under
the common law has already been litigated. In 2014, a superior court found that the Bremners’
dock was a reasonable use of the easement but ordered the Bremners to remove their personal
property from the easement. The Micheles have not appealed this ruling. The Bremners appealed
the decision to the extent that it bars them from leaving certain personal property on the
easement, but that issue is not before us today.

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define “applicant” as someone “who has applied for a permit” and has “an
interest in the land on which a project is to be located that is sufficient for the
person to legally proceed with the project.” N.H. Admin. Rules, Env-Wt 101.06.
The regulations also state that “[a]n applicant for a shoreline structure defined
as major shall be the owner in fee.” Id. at 402.18. DES read these regulations
to mean that only applicants for major projects need be the fee owner;
applicants for minor projects, like the Bremners’ dock,4 may have a lesser
ownership interest. We agree with DES’s interpretation of these regulations.

The Micheles also assert that because the DES application forms and
instructions ask for the “owner’s” information and because the forms have no
place on them to identify the applicant as an easement holder, it must follow
that only fee owners can apply for a permit. This argument is based upon the
same misunderstanding of the meaning of the term “owner” as was discussed
above. Because a person who holds an easement interest in property is an
“owner” thereof, the absence of additional language in the forms and
instructions specifically referencing easement holders provides no support for
the Micheles’ position.

III

Alternatively, the Micheles argue that even if an easement holder can
apply for a permit under the statute, DES and the Council erred in upholding
the permit in this case because the Bremners’ dock adversely affects the value
and enjoyment of the Micheles’ property. DES cannot grant a dock permit if
doing so will “infringe on the property rights or unreasonably affect the value or
enjoyment of property of abutting owners.” RSA 482-A:11, II. Whether a
permit infringes upon property rights or unreasonably affects the value or
enjoyment of another’s land is a determination of fact. Cf. Webb v. Rye, 108
N.H. 147, 150 (1967) (stating that whether, under the circumstances, a land
use was unreasonable and constituted a nuisance is a question of fact). RSA
chapter 541 governs our review of Council decisions. See Appeal of Dean
Foods, 158 N.H. 467, 471 (2009). 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. See Dean Foods, 158 N.H. at 474. We review the Council’s
rulings on issues of law de novo. Appeal of Portsmouth Regional Hosp., 148
N.H. 55, 57 (2002).

4 The Micheles do not contend that the Bremners’ dock constitutes a major shoreline structure.

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 The Micheles advance several reasons why, in their view, the issuance of
the dock permit was unreasonable. They first argue that they are entitled to
greater protection than that which RSA 482-A:11, II generally provides
because, as fee owners, they have a greater interest than abutting property
owners. The statute, however, provides no extra protection for fee owners
whose properties are encumbered by water access easements, and we will not
add language to the statute that the legislature did not see fit to include. Local
Gov’t Ctr., 165 N.H. at 804. In any event, a property owner who has granted
an easement to a third party logically has a lessened — not a heightened —
expectation of unencumbered use and enjoyment of his property as compared
to a property owner who has not surrendered any interest in his property and
is instead seeking protection against interference from an abutter.
Consequently, even if we were to assume that DES or the Council erred by
treating the Micheles as “abutting owners” under RSA 482-A:11, II, any such
error was not prejudicial because it afforded the Micheles more protection than
that to which they were entitled under the statute.

The Micheles next contend that the installation of the dock reduces their
privacy and seclusion.5 After a hearing, at which Mrs. Michele was the sole
witness for the petitioners, the Council determined that the Micheles failed to
show that the permit unreasonably infringed upon their property rights. It also
found that the Micheles were aware of the easement when they purchased their
property and that a single witness’s subjective testimony failed to show that a
small, seasonal dock unreasonably affected the use and enjoyment of the
Micheles’ land. We cannot say that these findings lack evidentiary support in
the record or are unjust or unreasonable.6

The Micheles next assert that installation of the dock increased their
shorefront liability while eliminating any control they have over the easement
area. Their risk is compounded, they argue, by increased incidences of
vandalism and trespassing on the easement. Mrs. Michele testified that, as a
result of the Bremners’ dock, the Micheles’ insurance agent advised them to
increase their liability coverage. Although agreeing that the dock will likely
subject the Micheles to suit if an injury occurs on or around the easement
area, the Council found this was inadequate to make installation of the dock

5 The Micheles point to testimony that the Bremners cut down trees from the easement area.
This, according to the Micheles, removed a natural screen and caused a community uproar for
which the Micheles were blamed. The dock permit, however, did not allow the Bremners to cut
down trees. In fact, the Bremners removed the trees before applying for the dock permit. Thus,
the tree removal is irrelevant to the issue of whether the permit affected the Micheles’ use and
enjoyment of their land.
6 The Micheles also argue that the installation of the dock represented a departure from the

intensity of use of the easement established by the Bremners’ predecessors in title. That
argument concerns the parties’ relative property rights and not whether the permit violates RSA
482-A:11, II. Therefore, it is outside the scope of the Council’s decision, see Gray, 143 N.H. at
330, and we need not address it.

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unreasonable. The Micheles, when they bought the property, knew that they
were responsible for insuring the easement area. Further, the Micheles are
incorrect in claiming that they have lost all control of the easement area. The
Bremners enjoy only the right to make reasonable use of their easement, which
includes using it to access the pond and their dock; the Micheles retain the
right to seek relief in court should the Bremners make unreasonable use of the
easement.

Finally, the Micheles maintain that the placement of the dock thirteen
feet from the easement boundary was unreasonable. RSA 482-A:3, XIII(a)
states that “[a]ll boat docking facilities shall be at least 20 feet from an abutting
property line in non-tidal waters . . . .” (Emphasis added.) We understand
their argument to be that, because DES treated them as abutting owners under
RSA 482-A:11, II, it also should have treated them as abutting owners under
RSA 482-A:3, XIII(a). We disagree. As noted above, to the extent DES may
have treated the Micheles as abutting property owners for purposes of RSA
482-A:11, II, it afforded them more protection than that to which they were
entitled. We are aware of no legal principle that would require DES to
compound any such error by treating the Micheles as abutting property owners
under RSA 482-A:3, XIII(a) as well. On the contrary, DES and the Council
correctly determined that the 20-foot setback requirement did not apply in the
easement context because the owners of the dominant and servient estates
hold overlapping rather than abutting property interests. Therefore, RSA 482-
A:3 XIII(a) is not applicable.7 The record reflects that the Bremners chose the
location of the dock so as to create the least impact to the shoreline. We hold
that the Council did not err in upholding DES’s approval of the location of the
dock.

IV

For the foregoing reasons, we conclude that the Council did not err in
upholding DES’s decision to grant a dock permit to the Bremners.

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.

7 For the same reason, we also reject the Micheles’ argument that DES’s inconsistent treatment of
them under the statutory scheme is indicative of a legislative intent that only fee owners can apply
for permits.

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