Appeal of Todd McIntire & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0166, Appeal of Todd McIntire & a., the
court on November 15, 2022, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). We affirm.

The petitioner, Tanya McIntire, initially sought review of a decision by the
New Hampshire Department of Environmental Services (DES) granting a
shoreland impact permit to the respondent, Lake Ave Realty, LLC. She now
appeals an order of the New Hampshire Wetlands Council (Council) dismissing
her appeal on grounds that she failed to establish standing to bring the appeal
and, that even if she had standing, she failed to assert a claim upon which
relief may be granted and instead sought review of matters not within the
Council’s jurisdiction. The Council found that the petitioner lacked standing
because she “failed to articulate any personalized injury” and because she was
a beneficiary, not a trustee, of a trust that allegedly owns property abutting the
respondent’s property. The petitioner moved for rehearing, which the Council
denied. This appeal followed.

Our standard of review of the Wetlands Council’s decision is set forth in
RSA 541:13 (2021). RSA 21-O:14, III (2020); Appeal of Lake Sunapee
Protective Ass’n, 165 N.H. 119, 124 (2013). Under RSA 541:13, the Wetlands
Council’s findings of fact “shall be deemed to be prima facie lawful and
reasonable.” RSA 541:13. The petitioner has the burden of demonstrating that
the Wetlands Council’s decision was “clearly unreasonable or unlawful.” Id.
We must uphold the Wetlands Council’s decision except for errors of law,
unless we are satisfied, by a clear preponderance of the evidence before us,
“that such order is unjust or unreasonable.” Id.

To appeal a decision to the Wetlands Council, the party must be
“aggrieved” by the underlying decision. See RSA 21-O:14, I-a(a), III. Persons
aggrieved include any person directly affected by the challenged administrative
action or proceeding. Golf Course Investors of NH v. Town of Jaffrey, 161 N.H.
675, 680 (2011) (quotations omitted). To be aggrieved, the appealing party
must show some direct definite interest in the outcome of the action or
proceeding. Id. Standing will not be extended to all persons in the community
who might feel that they are aggrieved by a local administrator’s decision.
Goldstein v. Town of Bedford, 154 N.H. 393, 395 (2006) (quotations omitted).
Additionally, in general “[a] trustee may maintain a proceeding against a third
party on behalf of the trust and its beneficiaries,” but a trust beneficiary does
not have this ability absent limited circumstances that do not apply here. See
Restatement (Third) of Trusts § 107, at 102 (2012). Whether a party has
sufficient interest in the outcome to have standing is a factual determination in
each case. Goldstein, 154 N.H. at 395-96. It is the petitioner’s burden to
demonstrate that the petitioner has standing. See Joyce v. Town of Weare, 156
N.H. 526, 529-30 (2007). Although the factual findings of the Council
regarding standing are deemed prima facie lawful and reasonable, the decision
on standing is subject to de novo review when the underlying facts are not in
dispute. See RSA 541:13; Town of Jaffrey, 161 N.H. at 680.

Here, although the petitioner addresses the issue of standing in her brief,
she fails to: (1) demonstrate how her direct interests will be harmed by DES’s
decision beyond those of any other member of the community; (2) provide
authority demonstrating that, as a beneficiary, she can bring a case on behalf
of the trust; or (3) provide a reasoned interpretation of any relevant authority
that would otherwise entitle her to relief.1 Rather, in her brief, the petitioner
focuses primarily on the merits of DES’s decision to grant a permit to the
respondent.

As the appealing party, the petitioner has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the appealed order, the petitioner’s challenges to it, the relevant law,
and the record submitted on appeal, we conclude that the petitioner has not
demonstrated reversible error. See id. Accordingly, we affirm. To the extent
that Todd McIntire has appealed the Council’s decision, we reach the same
conclusion as to him.
Affirmed.
MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

1 Furthermore, we need not determine whether the petitioner is an “aggrieved party” as an owner

of abutting property, because the record does not support the allegation that she owns any such
property. In an appendix to the petition to appeal, the petitioner provides a document dated
March 21, 2022 purporting to appoint her as trustee of the Barbara L. Sleight Living Trust. The
petitioner relies on this document in her reply brief in which she appears to argue that she has
standing because she is an “Agent of the Trust” and a “Trustee.” In reviewing appeals from an
administrative agency, however, we review only the record on appeal, which is limited to “[t]he
order sought to be reviewed or enforced, the findings and rulings, or the report on which the order
is based, and the pleadings, evidence, and proceedings before the agency.” Sup. Ct. R. 10(2); see
also RSA 541:14 (2021). Given that the Delegation of Authority was not included in the record on
appeal, we decline to consider it.

2