The latest in a growing list of cases holding that municipal regulation is preempted by the State, this case establishes that municipalities are preempted from exercising local zoning control over personal use and docking of boats on State waters.
The Town’s zoning ordinance established a “Shore Land Overlay District” within which the use of waterfront common areas by more than three unrelated persons for lake access was restricted. The property, on the shore of Lake Sunapee, included a private dock used by the owners of the Lodge. At one point, the owners obtained approval from the New Hampshire Department of Environmental Services (DES) for substantial dock repairs. Some years later, the Town asserted that the use of the dock by multiple unrelated persons violated the ordinance. After several years of proceedings before the Town, the property owners were granted permission for up to six users and six boats at the dock at any one time. They challenged this decision.
The Court found that the Town was preempted from regulating personal boating and docking activities on “public waters of the State” such as Lake Sunapee. Preemption may be express or implied. State law preempts local law when there is an actual conflict between State and local regulation. A conflict exists when a municipal ordinance or regulation permits that which a State statute prohibits, or vice versa. In addition, State law may preempt local regulation if such regulation frustrates the statute’s purpose or if the very nature of the regulated subject matter demands exclusive State regulation to achieve the uniformity necessary to serve the State’s purpose or interest.
Several statutes provide that lakes of ten or more acres, such as Lake Sunapee, are public waters held in trust by the State for the public use. Numerous statutes, listed at length in the opinion, grant the State the authority to regulate the use of these waters, and the adjacent shoreland, for the greatest public benefit, including recreational boating. “This broad statutory framework is intended to safeguard public waters in light of the fact that competing uses for the enjoyment of these waters, if not regulated for the benefit of all users, may diminish the value to be derived from them.”
As the steward of public waters, the Court continued, the State safeguards the right to use and enjoy these waters by avoiding piecemeal on-water regulation. DES guidelines also provide that “only the federal … and state ... government[s] ha[ve] the authority to impose on-lake regulations” upon State-owned public water and that dock and mooring regulations are considered “on-lake” management. Indeed, the Court noted, “vesting localities with broad authority to enact piecemeal on-water regulation of recreational boating and boat docking would threaten the State’s need and desire for uniform regulation, which is expressly manifested within the broader statutory scheme governing regulation of public waters.”
In addition to this framework of State regulation, DES had also issued a permit relating to personal use of the dock. Presumably, the Court stated, the Town had received notice of its opportunity to participate in the State permitting process. “We find implicit within the permission to repair its dock the right to use the entire repaired dock for personal boating and boat docking….”
On the other hand, the Court rejected the Town’s argument that RSA 674:21, I(j) (regarding innovative zoning techniques for environmental characteristics) and RSA 674:55 (defining “wetlands” for local zoning purposes) allow municipal regulation of private docks. The Court noted that municipalities have only those powers granted to them by the legislature. Municipalities lack the necessary specific legislative authority to infringe upon the right to boat because it involves the public trust rights in bodies of water. Op. of the Att. Gen’l, No. 0-87-067 (August 2, 1989). The Court also contrasted this case with RSA Chapter 483-B, the Comprehensive Shoreland Protection Act (CSPA), which specifically permits municipalities to enact land use ordinances more stringent than that statute. However, the CSPA does not apply to the use of docks for boating or docking, and no such specific authority is granted to municipalities in any of the statutes which do involve regulation of private boating on state waters. Finally, the Court noted that although RSA 47:17, VII grants municipalities authority to regulate public docks, it does not extend to private docks.
Interestingly, the Court did not specifically overturn its prior opinions in Blagbrough Family Realty Trust v. Wilton, 153 N.H. 234 (2006) or Cherry v. Hampton Falls, 150 N.H. 720 (2004), although this opinion does appear to narrow the scope of municipal regulation permitted under those cases. The Court cited Blagbrough for the proposition that municipalities may adopt local ordinances to further wetland protection in areas outside the State’s regulation. Although the current opinion does not change this, it does clarify that regulation of private docks on public waters is not one of the areas municipalities may regulate under the Blagbrough rule. Under Cherry, a DES permit was not considered proof of compliance with a local ordinance, and municipalities were “not estopped from creating more restrictive rules for wetlands issues than those required by [DES].” Yet, in this opinion, the Court looked to DES approval of dock repair as implicit approval of the right to use the entire dock in a manner prohibited by the Town.