In October of 2004, the Marino family began construction of a single family home on a lot bordering the shore of Back Lake in Pittsburg. Almost immediately, they were contacted by DES, and advised that their construction violated the Comprehensive Shoreland Protection Act, the Water Pollution Act and the Wetlands Act. They were advised to cease construction until the issues were resolved. In November of 2004, the Marinos met with DES, and were advised how to file the necessary applications to seek approval for their project. The landowners did not apply for any of the permits, and continued with the construction. It would prove to be a costly miscalculation.
The State sought injunctive relief in the superior court, and the respondents rushed to complete as much construction as possible before the court entered its order. By the time the preliminary order was entered, all was complete but the actual connection of a water supply to the home. Following trial, the superior court entered findings that the Marinos had violated each statute as alleged, ordered them to apply to DES for “after the fact” permitting of the structure, the water supply and wetlands impacts. The court also imposed the maximum fine possible under each of the operative statutes, which amounted to $10,000 for dredge and fill in wetlands, $50,000 for Shoreland Protection Act violations and $5,000 for water pollution act violations.
Facing these $65,000 in fines and the need to complete the permitting process, the respondents appealed to the Supreme Court, which affirmed the trial court on each and every issue raised. The respondent argued that the statute was unconstitutional, but this argument was rejected. Using a “plain language” analysis, the Court refused to find that the construction could be allowed without first complying with these environmental protection statutes. For this family, the costs of permitting, payment of fines and legal fees to contest the administrative and court proceedings have been substantial, and in all likelihood could have been avoided by strict adherence to the language of the statute and the DES rules which implement the program.
In the Cayten case, the applicant did adhere strictly to the requirements of the administrative permitting process. Seeking approval to build a boathouse on the shore of Squam Lake, the applicant applied for a dredge and fill permit. Following negotiations and design changes requested by the Wetlands Bureau, a dredge and fill permit was granted. One of the conditions imposed was compliance with the Comprehensive Shoreland Protection Act. The approved design required the creation of a “dredged inlet” into the shore of the lake, and the construction of the boathouse over the newly created inlet, and not over the existing waters of the lake.
The Caytens, as abutting property owners, sought reconsideration from the Wetlands Bureau, which was denied. The Caytens then appealed to the Wetlands Council, which also affirmed the original decision. Following this loss, they, together with other property owners on the lake, petitioned the Superior Court for relief, which was granted. The original applicant appealed to the Supreme Court.
A significant portion of the opinion is devoted to whether or not the other property owners could participate in the case. The Court found that these individual owners had not complied with the administrative process at the Wetlands Bureau level, or in the Wetlands Council appeal. It found that the superior court had incorrectly let them back into the case, and provided them a forum for argument when none should have been provided. Since these persons were rewarded for failing to follow the statutory procedure reconsideration and appeal process, the Court reversed the decision of the trial court to allow them to participate.
Substantively, the case turned on whether the proposed project needed to comply with the strict wetlands mitigation rules, or with the less strict dredge and fill rules. Because the project was now located fully over the existing shore, and not over the water, the Court found the strict wetlands mitigation rules to be inapplicable to the project, and reversed the trial court decision on that issue.
For this applicant, strict compliance with administrative procedure resulted in a successful permitting proceeding.