Wetland Regulation May be Included in Natural Resource Protection Rules; Local Wetland Protection Rules not Preempted; Board Procedures not Subject to Strict Scrutiny

Denis Girard v. Town of Plymouth
New Hampshire Supreme Court No. 2018-0495
Friday, August 30, 2019

This decision of the NH Supreme Court concerns a subdivision intended to implement a court ordered partition of land owned in common by 5 different owners.  In part, the subdivision application relied upon the construction of an access road proposed to be built over wetlands.  During review of the plan the Planning Board received input from a wetland scientist, and relying on that evidence, and a subdivision regulation designed to protect natural resources, the Board declined to approve the proposed access road that would impact wetlands.  Instead the Board proposed that the co-owners use an existing woods road or adjust boundary lines to accommodate the relocation of the access way away from the wetlands or construct a right of way that accomplishes comparable road access.

The co-owners rejected the Planning Board’s revised access proposals, and this resulted in a unanimous denial of the application by the Board.  The co-owners appealed the Superior Court decision upholding the Planning Board decision arguing that the Board relied upon an overly broad subdivision regulation that did not specifically authorize wetland regulation, resulting in ad hoc decision making.   The Supreme Court disagreed saying that even though the local regulation only referred to the protection of natural resources, which expressly included brooks, streams and other water bodies, this was a sufficient designation of natural features to be protected so as to impliedly include wetlands. 

The Supreme Court also rejected the co-owner’s argument the Plymouth natural resource regulation was preempted.  The Court concluded the local regulation supported and did not impede the State regulatory scheme for wetland protection.  Finally, the co-owners argued the trial court’s reliance on a wetland scientist report in the certified record that even the Planning Board did not expressly rely upon in its deliberations and decision was erroneous.  The Supreme Court concluded that it was not unreasonable for the trial court to rely upon this evidence to conclude that the evidence supported the board’s decision.

Finally, the co-owners argued that because the Planning Board discussed the application at a meeting without the notice to the applicants this warranted reversal of the decision. The Planning Board had  engaged in an informal discussion relating to the access way alternatives, and board members briefly expressed their opinions on the matter, but the board did not request or hear any comment from members of the public and did not render a decision on the application.  Relying up RSA 676:4, IV, the Court ruled that judicial review of the planning board’s procedures shall not be subjected to strict scrutiny for technical compliance.

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Additional Information: 

Practice Pointer: Planning Board regulations that generally protect natural resources can also permit protection of wetlands.  Planning Board regulations that protect wetlands are not per se preempted by state scheme for wetland protection.  Although pending applications should only be discussed at properly noticed public hearings, inadvertent, informal discussions of an application at a meeting where the applicant is not notified may not necessarily result in a decision being reversed because under RSA 676:4, IV judicial review of the planning board’s procedures shall not be subjected to strict scrutiny for technical compliance.