Agenda - Planning Commission - 03/05/2009

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Zoning Bulletin. January'25, 2009 I Volume 3 I No.2' In 2002, the town asserted that the use of Lakeside's dock by multiple, unrelated persons violated the Ordinance. Ultimately, the town's Zoning Board of Adjustment ("ZBA") ruled that use of the dock by Lakeside's three owners predated the Ordinance and was thus grandfathered. How- ever, in an attempt to reasonably restrict the grandfathered, nonconform- ing use, the ZBA limited Lakeside's use of the dock to no more than six users and six boats at the dock ~t anyone time. Opposed to the restrictions placed on its use of the dock, Lakeside appealed the ZBA ruling to court. Among its arguments, Lakeside con- tended that the Ordinance's restriction of the personal 'use of a dock on State-owned waters was unlawful because it was preempted by State law. Lakeside pointed to State statutes, characterizing them as a "comprehen- sive regulatory scheme governing the design and placement of docks over State-owned waters ...." Lakeside also argued that permission given to it by the State in 1995 to repair the dock conflicted with the town's restric- tion of Lakeside's use of the renovated dock. The town argued that while the State could regulate the construction of private docks, the town had the authority to regulate theiruse as ex- tensions of land. The town cited its interest in ensuring: (1) the avail- ability of parking and bathrooms for dock users; and (2) environmental protection. The trial court ruled that the six-user, six-boat restriction was within the ZBA's authority. Lakeside appealed. DECISION: Reversed. The Supreme Court of New Hampshire held that the town's Ordi- nance was preempted by State law and regulations. The town's attempt to restrict personal use of Lakeside's dock was not permissible. The court explained .that State law preempted locall<;w when there was an actual conflict between State and local regulation. Such a conflict existed when a State law or regulation permitted that which a local regu- lation prohibited (or vice versa). State law also preempted local regula- tion if the local regulation frustrated the purpose of the state law or if exclusive state regulation was necessary to achieve uniformity in order to satisfy the State's interest. . Here, the court concluded: (1) Lakeside had a right to boat; and (2) the town "lack[edJ specific legislative authority to infringe upon" that right. Specifically, the court said that Lakeside had littoral rights (incidental rights associated with ownership of lakeside property) to use and occu- py the waters of the lake adjacent to the Property, subject to reasonable State regulation. Lakeside also had a common law right to boat recre- ationally, which was regulated under numerous State statutes. Further, found the court, by expressly permitting Lakeside to repair its dock in @ 2009 Thomson Reuters 3 81