Appeal of David Drolet & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0550, Appeal of David Drolet & a., the
court on September 15, 2017, issued the following order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The appellants, ten owners of real estate abutting a proposed residential
development (abutters), appeal an order of the New Hampshire Wetlands Council
(Council) affirming a decision by the New Hampshire Department of
Environmental Services (DES) granting a permit to the intervenor, Green & Co.
(developer), allowing it to dredge and fill 630 square feet of palustrine forested
wetlands for a road (permit). See RSA 482-A:3 (2013); RSA 482-A:10 (Supp.
2016).

The abutters contend that the Council erred by: (1) ruling that the permit
could be granted under RSA 482-A:11, II (2013) and finding “no significant error
in [DES’s] rephrasing of the statutory language”; (2) finding that a vernal pool in
the vicinity of the affected area would not be adversely impacted; (3) concluding
that granting the permit “represented the least impacting alternative”; and (4)
relying upon the developer’s expert.

RSA chapter 541 (2007 & Supp. 2016) governs our review of Council
decisions. RSA 482-A:10, VIII. The appealing party has the burden to show that
the Council’s decision was clearly unreasonable or unlawful. 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. Appeal of Michele, 168 N.H. 98, 105 (2015). We review the
Council’s rulings on issues of law de novo. Id. 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. Michele, 168 N.H.
at 105.

We first address whether the Council erred by upholding DES’s finding
that the “[i]ssues brought forth by abutters . . . provide no substantive evidence
that this project would be deleterious to the current use of the abutting
properties.” RSA 482-A:11, II provides that “[n]o permit to dredge or fill shall be
granted if it shall infringe on the property rights or unreasonably affect the value
or enjoyment of property of abutting owners.” Whether a permit infringes upon
property rights or unreasonably affects the value or enjoyment of another’s land
is a determination of fact. Michele, 168 N.H. at 105.

The abutters argue that DES “applied a less stringent standard of review”
than the statute requires. The Council’s order states that at the evidentiary
hearing before it, a transcript of which the abutters have not supplied, the
abutters argued that allowing “the proposed subdivision would aggravate an
existing seasonal flooding situation that affected many of them.” The Council
noted that the abutters’ expert based his opinion that this would occur upon a
review of “the entire parcel designated for development,” although DES and the
Council’s jurisdiction “extends only to the areas proposed to be affected under
the Permit . . . in this case only 650 [sic] square feet of the almost 13 acres
involved in the subdivision application.” See Greenland Conservation Comm’n v.
N.H. Wetlands Council, 154 N.H. 529, 538 (2006) (stating DES’s review authority
is limited to assessing impacts of construction in protected wetlands and does
not extend to assessing effects of upland construction upon such wetlands). It
further noted that the developer’s “stormwater management plans . . . called for
construction of berms and drainage ditches along the boundary with the abutters
to prevent stormwater from reaching their properties” and that the developer’s
expert “indicated that the peak rate of runoff after the project is built will in fact
be less than the existing situation.”

To the extent that the abutters argue that DES and the Council should
have accepted their expert’s testimony, rather than that of the developer’s
experts, DES and the Council were not compelled to accept the opinion evidence
of any witness. See Appeal of Old Dutch Mustard Co., 166 N.H. 501, 513 (2014).
Whether to rely upon expert testimony is a matter for their judgment based upon
the evidence presented. Id.; see Michele, 168 N.H. at 105 (stating we do not
reweigh evidence upon appeal).

The Council also “found no significant error in [DES’s] rephrasing of the
statutory language to include the word ‘deleterious.’” The abutters argue that
this rephrasing shows that DES and the Council did not consider the permit’s
impact upon their property values, as required by RSA 482-A:11, II. However,
they do not explain how those values would be affected by the permit other than
by an increased risk of flooding, which the Council addressed. Furthermore, the
record before us does not reflect that any evidence regarding property values was
presented to the Council. Cf. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250
(2004).

The Council “unanimously concluded that the [abutters] had failed to
prove that [DES’s] decision in this respect was unlawful or unreasonable under
RSA [482-A:11, II].” We cannot conclude that this finding lacked evidentiary
support in the record or is unjust or unreasonable. See Michele, 168 N.H. at
105.

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 We next address whether the Council erred by upholding DES’s finding
that the permit would not affect a vernal pool in the vicinity of the affected area.
The abutters contend that DES relied upon the developer’s representations and
found the pool’s potential to be very limited “despite clear and uncontradicted
evidence identifying the vernal pool as functioning.” However, DES found that its
staff inspected the pool, determined that it “was devoid of enough water to
support amphibian egg masses or to provide for the survival of juvenile aquatic
life stages,” and “found its potential as a functioning vernal pool to be very
limited.” The Council’s order refers to similar testimony.

Although the abutters cite a letter from the Rockingham County
Conservation District (RCCD), which states that it found “primary and secondary
vernal pool indicators,” the Council was not compelled to rely upon this evidence,
see Old Dutch Mustard, 166 N.H. at 513, and, upon appeal, we do not reweigh
the evidence, see Michele, 168 N.H. at 105. The Council found that if a vernal
pool existed, it “would not be adversely affected by the project.” We cannot
conclude that this finding lacked evidentiary support in the record or is unjust or
unreasonable. See id.

We next address whether the Council erred by upholding DES’s finding
that the permit “represented the least impacting alternative.” An applicant for a
permit must “provide evidence which demonstrates that . . . : (1) Potential
impacts have been avoided to the maximum extent practicable; and (2) Any
unavoidable impacts have been minimized.” N.H. Admin. Rules, Env-Wt
302.03(a).

The abutters argue that there was insufficient evidence for DES to
conclude that the developer met this requirement. However, the Council’s order
cites testimony that: (1) DES required the developer “to develop an alternative
roadway layout that was further away from the vernal pool”; (2) local safety
officials determined that “the turning radius of the new plan was too tight to
accommodate fire department apparatus”; and (3) DES “agreed that it was not a
practical solution.” DES made similar findings.

The abutters contend that DES failed “to verify the veracity of” the
developer’s representations. However, they do not cite, nor are we aware of, any
authority that DES is required to do so. The abutters argue that DES could not
“properly evaluate[ ] . . . which alternative was the ‘least impacting’” because it
“failed to account for the natural flow of water and drainage” and the “impacts to
jurisdictional wetlands . . . were under-represented.” However, in the absence of
a transcript, we cannot assess the sufficiency of the evidence. See Sup. Ct. R.
15(3); cf. Bean, 151 N.H. at 250.

Finally, we address whether the Council erred by “affirming [DES’s]
decision to rely on the [developer’s] ‘expert’ opinions.” The abutters contend that,
because the developer’s wetland delineation was challenged and ultimately

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corrected to include more area, and the RCCD criticized the developer’s expert’s
methodology, DES should have required “new delineations and studies.”
Moreover, they argue that, because their expert testified to inaccuracies in the
developer’s plan and application, the Council’s affirmation of DES’s “decision to
rely on the [developer’s] ‘expert’ opinions” was unreasonable and unlawful.
However, the Council was not compelled to rely upon the abutters’ expert, see
Old Dutch Mustard, 166 N.H. at 513, and, upon appeal, we do not reweigh the
evidence, Michele, 168 N.H. at 105.

To the extent that the abutters are challenging the developer’s expert’s
qualifications, the Council found that both parties’ experts were “well qualified,
and each report was well reasoned.” Because the abutters have not supplied a
transcript of the hearing before the Council, we assume that the evidence was
sufficient to support its findings. Cf. Bean, 151 N.H. at 250.

Affirmed.

Dalianis, C.J., and Hicks, Lynn, Bassett, and Hantz Marconi, JJ.,
concurred.

Eileen Fox,
Clerk

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