Appeal of Clinton Johnson & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0313, Appeal of Clinton Johnson & a., the
court on September 29, 2022, 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).
The petitioners, Clinton Johnson and Cynthia Johnson, challenge a decision of
the New Hampshire Wetlands Council (Council) to dismiss their administrative
appeal of a permit issued by the New Hampshire Department of Environmental
Services (DES) on the basis that the petitioners had not served the appeal upon
entities entitled to service under the Council’s rules. See RSA 482-A:3 (2013),
:10 (Supp. 2021); RSA 21-O:14 (2020). We reverse and remand.

RSA chapter 541 governs our review of Council decisions. See RSA 21-
O:14, III. Under RSA 541:13 (2021), we will not set aside the Council’s decision
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 Cook,
170 N.H. 746, 749 (2018). We review the Council’s rulings on issues of law de
novo. Id.

RSA 482-A:10 governs an appeal of a permit issued by DES under RSA
482-A:3. Under RSA 482-A:10, III, “[a]n appeal from a decision . . . under RSA
482-A:3 . . . shall be filed in accordance with the applicable provisions of RSA
21-O:14 and rules adopted by the council pursuant to RSA 541-A regarding
the number of copies to be filed, the address to which the notice of appeal must
be sent or delivered, and the method of delivery.” RSA 482-A:10, III. No
provision of either RSA 482-A:10 or RSA 21-O:14 requires the party filing an
appeal to the Council to serve any specific persons with the appeal.

In this case, the petitioners certified that they had served their appeal
upon the Council and upon the applicant. The Council rejected the appeal for
certain procedural defects, including a lack of “a certification that copies of the
notice of appeal were delivered to all persons as required by Env-WtC
203.01(e).” The Council did not specify, however, any parties who were entitled
to notice who had been omitted. The Council gave the petitioners thirty days to
revise their appeal. In response, the petitioners filed a revised appeal that
included a certification that they had served the Council, the applicant, and
the applicant’s trustee. In dismissing the revised appeal, the Council ruled
that the “certified list does not include all parties required to be provided a
copy of the petition for appeal” under N.H. Admin. R., Env-WtC 203.01(e), but
again did not specify any parties entitled to service whom the petitioners had
omitted.

The petitioners moved to reconsider, asserting, in part, that they had
“sought the assistance from the Wetlands Council’s staff regarding procedures
and thought all rules and requirements had been followed and that all of the
appropriate parties had been notified.” The petitioners attached a new
certificate of service that added entities who had been copied on DES’s decision
to grant the permit, including the petitioners’ own engineer, the applicant’s
contractor, and a municipal commission that, according to DES’s decision, had
“indicat[ed] that [it] waived the right to intervene in the review of the
application.” The petitioners represented that they had served these entities
with their original appeal, the Council’s decision dismissing it, and their motion
to reconsider.

In denying the motion for reconsideration, the Council found that the
petitioners had “fail[ed] to timely notify required parties who were copied on the
decision (Env-WtC 201.03 (e)),” specifically identifying the three parties,
referenced above, whom the petitioners had added to the certificate of service
filed with their motion for reconsideration. We construe the basis for the
Council’s dismissal to be that the three parties it had identified had been
“copied on” DES’s “decision” to grant the permit, and that Env-WtC 203.01(e)
requires a party appealing a permit to provide notice of the appeal to any
person “copied on” DES’s decision to grant the permit. With respect to the
petitioners’ assertion that they had “sought the assistance from the Wetlands
Council’s staff,” the Council stated that its “appeals clerk’s assistance is limited
to citing rules and indicating where rules can be found,” and that its clerk
“does not provide legal advice.”

Contrary to the Council’s ruling, Env-WtC 203.01(e) does not require a
party appealing a DES decision to grant a permit under RSA chapter 482-A to
serve any party “copied on” DES’s decision to grant the permit. Rather, it
requires the appealing party to serve “each person who is listed on the copy list
on . . . [t]he decision on reconsideration issued by” DES. N.H. Admin. R., Env-
WtC 203.01(e)(1) (emphasis added). Consistent with RSA 482-A:10, I, which no
longer requires a party appealing a decision of DES on a permit application
under RSA 482-A:3 to first seek reconsideration from DES, see Laws 2013,
43:2, the petitioners here appealed DES’s decision to grant the permit, not a
“decision on reconsideration” of the permitting decision. Moreover, to the
extent that the Council construes the phrase, “decision on reconsideration” in
Env-WtC 203.01(e), in light of its incongruity with RSA 482-A:10, I, to mean
“decision on the permit application,” notifying the appellants of its
interpretation prior to dismissing the appeal would not have constituted the

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provision of “legal advice.” Rather, it would have constituted the provision of
proper assistance to citizens regarding the technical requirements of a facially
ambiguous appeal rule. Cf. Savage v. Town of Rye, 120 N.H. 409, 411 (1980)
(holding that a municipal planning board is obligated under Part I, Article 1 of
the State Constitution to assist its citizens by notifying them whether an
application is technically in order). Under the circumstances of this case, we
conclude that the Council erred as a matter of law by dismissing the
petitioners’ appeal for failing to timely serve parties copied on DES’s decision to
grant the permit, and we reverse and remand for proceedings consistent with
this order.1

Reversed and remanded.

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

Timothy A. Gudas,
Clerk

1 Although the petitioners did not raise this argument in their motion for reconsideration with

the Council, we likewise conclude that good cause exists to allow the petitioners to raise the
argument. See RSA 541:4 (2021).

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