Appeal of New Hampshire Department of Environmental ServicesAnnotate this Case
Petitioner New Hampshire Department of Environmental Services (DES) appealed a decision by the New Hampshire Wetlands Council remanding an administrative order issued by DES that directed respondents Bryan and Linda Corr to cease and desist unpermitted work on their lakefront property. The Corrs owned property in Moultonborough located on the shore of Lake Winnipesaukee. When they purchased the property, it contained a dry boathouse, positioned approximately two feet from the shore, which was partially collapsed as a result of snow load. The boathouse was considered a “grandfathered” or nonconforming structure for purposes of the Shoreland Protection Act. The Corrs made plans to replace the boathouse. They hired a land use consultant to assist them with the process, which required approvals from the Town of Moultonborough, as well as DES. After obtaining the building permit from the Town and the PBN from DES, the Corrs commenced construction. They spent over $100,000 on the permitted structure. When the structure was framed and nearing completion, DES visited the site to conduct an inspection, purportedly in response to a complaint the department had received. Subsequently, DES issued a Letter of Deficiency to the Corrs informing them that the structure was 27 feet tall, and therefore not compliant with DES regulations. The Corrs appealed DES’ administrative order to the Council. In their appeal, the Corrs raised four alternative arguments as to how DES had acted unlawfully and unreasonably in issuing its order. The New Hampshire Supreme Court agreed with the Corrs that DES did not have the authority to limit the height of their structure. The COurt affirmed the Council's decision to the extent that it concluded that a 12-foot height restriction did not apply to the Corrs’ structure. However, the Court vacated all other aspects of the Council’s decision, remanding with instructions to grant the Corrs’ appeal and to vacate DES’ administrative order, which relied solely on the alleged height violation. In light of the result reached, the Court did not address any additional arguments raised by the parties.