Appeal of William R. Davis

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0747, Appeal of William R. Davis, the
court on November 16, 2020, 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 petitioner, William R. Davis, appeals a decision of the New
Hampshire Wetlands Council upholding the decision of the New Hampshire
Department of Environmental Services (DES) to grant an application of the
respondents, Harry Wesson and Kimberly Wesson, for a permit to construct a
tidal docking structure on their property. The dock would be 140 feet in length
and would allow access to Little Bay for recreational boating. The petitioner
argues that the council erred in finding that the proposed project: (1) minimizes
environmental impacts; (2) meets the standards applicable to projects in tidal
wetland areas; and (3) would not unreasonably affect the value and enjoyment
of his property.

RSA chapter 541 governs our review of council decisions. See RSA 21-
O:14, III (2020). 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.

At the outset, we address the respondents’ argument that the council
lacked jurisdiction. This argument is based upon the respondents’ assertion
that the petitioner’s appeal from DES’s decision was untimely. Any person
aggrieved by a DES decision may appeal to the council within 30 days of the
date of the decision. See RSA 482-A:10 (Supp. 2019); RSA 21-O:14, I-a(a)
(2020). The council found that the date of DES’s decision was September 5,
2018, and that the petitioner’s appeal, filed on October 5, 2018, was, therefore,
timely. Because there is evidence in the record to support the council’s finding,
we conclude that the council had jurisdiction. See Appeal of Michele, 168 N.H.
at 105.
 The petitioner first argues that the respondents’ proposed project does
not minimize environmental impacts, and that there is an alternative design
that would have less impact on wetlands. Wetlands regulations require an
applicant to minimize unavoidable environmental impacts, and to demonstrate
that the proposed project is designed to have the least impact to wetlands. See
N.H. Admin. Rules, Env Wt 302.03 and Env-Wt 302.04(d)(1). The petitioner
argues that his expert provided evidence that the respondents’ needs could be
met with a dock that is 42 feet shorter, in a location that would have less
environmental impact. However, DES found the respondents’ proposal to be
the alternative with the least environmental impact because the dock is the
shortest length necessary to keep the floats out of the mud at low tide, thereby
minimizing disruption to sediments underlying the dock. The record shows
that the petitioner’s proposal for a shorter dock would regularly have the floats
and any docked boats resting on the mud, causing a greater environmental
impact. The petitioner acknowledged that his proposal would result in boats
occasionally resting in the mud. We conclude that the council’s findings—that
the project minimizes environmental impacts and has the least impact on
wetlands—are supported by the record. See Appeal of Michele, 168 N.H. at
105.

The petitioner argues that the record lacks support for the council’s
findings because neither DES nor the respondents introduced evidence at the
hearing to rebut his expert’s opinions. However, the record shows that the
petitioner introduced the respondents’ expert report and DES’s findings as
exhibits at the hearing. Moreover, the council was not compelled to accept the
opinions of the petitioner’s expert. See Appeal of Old Dutch Mustard Co., 166
N.H. 501, 513 (2014).

We next address the petitioner’s argument that the proposed project
meets the standards applicable to projects in tidal wetland areas. For projects
in tidal wetland areas, applicants must demonstrate that the proposal
addresses any impact to tidal flat sediment replenishment and movement of
sediments along a shore. See N.H. Admin. Rules, Env-Wt 302.04(c). The
proposal must also address the impact on a tidal wetland’s ability to dissipate
wave energy and storm surge and the impact of project runoff on salinity levels
in tidal environments. See id. The respondents’ expert report notes that the
proposed dock will be kept at least 24 inches above the mud to protect
sediments, will not “contribute to additional storm water” runoff, and “will not
impede tidal flow or alter hydrology.” The report also notes that the project
“will have no impact on the functions and values of the adjacent tidal wetland”
and “will have no impacts to currents or wave energy within surface waters.”
We conclude that the record supports the council’s findings that the
respondents’ proposal meets the standards applicable to projects in tidal
wetland areas. See Appeal of Michele, 168 N.H. at 105.

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 Finally, we address the petitioner’s argument that the proposed dock
infringes upon his property rights and unreasonably affects the value and
enjoyment of his property. Pursuant to RSA 482-A:11, II (Supp. 2019), DES
shall not issue a permit if the proposed project infringes upon the property
rights or unreasonably affects the value or enjoyment of the property of
abutting owners. Whether a permit infringes upon property rights or
unreasonably affects the value or enjoyment of another’s property is a
determination of fact. Appeal of Michele, 168 N.H. at 105. The record shows
that the council considered the petitioner’s concerns regarding the impact of
the project on his property. The council noted that the petitioner’s view and
privacy would be affected even by a shorter dock. The council also found the
petitioner’s expectation of privacy and assertion of property rights to be
“overstated.” The council concluded that the petitioner failed to prove that the
project infringes upon his property rights or unreasonably affects the value or
enjoyment of his property. We conclude that the council’s findings are
supported by the record and are not unjust or unreasonable. See id.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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