Although the revisions discussed in Morgenstern and Hill-Grant Living Trust involved or contemplated changes to the proposed project, changes of that scope are not required by the Fisher doctrine itself: When a denial identifies a lack of information as the deficiency in the initial application, we have held that a reapplication proposing a project substantially identical to the prior proposed project is materially different under Fisher if the new application provides the information missing from the prior application. In Appeal of Town of Nottingham, 153 N.H. 539, 904 A.2d 582 (2006), for example, the New Hampshire Department of Environmental Services (DES) denied an application for a large groundwater withdrawal permit. Appeal of Town of Nottingham, 153 N.H. at 542, 904 A.2d 582.
Nonetheless, the petitioner argues that even if need is a proper requirement for obtaining a permit, DES erred by "applying the wrong definition of need and improperly looking at offsite structures." Relying upon Appeal of Town of Nottingham, 153 N.H. 539, 904 A.2d 582 (2006), the petitioner contends that the term "need" means "requisite, desirable, or useful," and that both DES and the Council erred by failing to apply a definition of need consistent with this definition. (Quotation and bolding omitted.)
When statutory terms are undefined, we ascribe to them their plain and ordinary meaning. Appeal of Town of Nottingham, 153 N.H. 539, 553, 904 A.2d 582 (2006). In common usage, an "insurer" is "one that contracts to indemnify another by way of insurance."
According to the plaintiffs, the trial court erred by ruling that the wetlands bureau had no obligation to assess the effects of upland construction on protected wetlands because the administrative rules governing the wetlands bureau: (1) require the bureau to consider impacts on wetlands; (2) do not distinguish between direct and indirect impacts; and (3) do not define the term "project" to refer only to activities occurring within protected wetlands. While it is well settled that an administrative agency must follow its own rules and regulations, Appeal of Town of Nottingham, 153 N.H. 539, 554-55, 904 A.2d 582 (2006), the plaintiffs' argument fails for two reasons. First, when read as a whole, the regulations upon which the plaintiffs base their argument, New Hampshire Administrative Rules, Env-Wt 302, do not authorize the bureau to assess the impacts of upland construction upon protected wetlands.
In New Hampshire, as Saint-Gobain observes, "instead of absolute ownership of the groundwater beneath one's land, 'the right of each is only to a reasonable use or management.'" In re Town of Nottingham, 153 N.H. 539, 548 (2006) (quoting Bassett v. Salisbury Mfg. Company, 43 N.H. 569, 577 (1862)). Absent such absolute ownership rights in groundwater, diminution of groundwater under a landholder's property by the State does not amount to a taking.
Therefore, we look to the plain and ordinary meaning of the term. See Appeal of Town of Nottingham, 153 N.H. 539, 553, 904 A.2d 582 (2006). Black's Law Dictionary defines "spouse" as "[o]ne's husband or wife by lawful marriage; a married person."
We hold that the decision complies with RSA 541–A:35. To the extent Alexander claims the board's findings are unsupported by the evidence, his single-sentence argument is either not adequately briefed and therefore waived, Appeal of Town of Nottingham, 153 N.H. 539, 555, 904 A.2d 582 (2006), or, to the extent it references a previous argument, is addressed above. Alexander next contends that he was denied due process under the Fourteenth Amendment to the United States Constitution and Part I, Article 15 of the New Hampshire Constitution. Arguing that he had a property interest in his job, he asserts that he “was entitled to procedural due process in the execution of his termination, by both SYSC and the Board.
To determine whether due process required an evidentiary hearing in the superior court, we normally would examine the following three factors: (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Appeal of Town of Nottingham, 153 N.H. 539, 551, 904 A.2d 582 (2006); see Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The Church “neither cites nor discusses the foregoing three-factor analysis,” Appeal of Town of Nottingham, 153 N.H. at 552, and points to no controlling precedent establishing that, in the face of the process that the Church indisputably received, it also had a right to an evidentiary hearing in superior court.
See RSA 72:12-a, II (notice to municipality by applicant); RSA 72:12-a, IV (notice to municipality by DES); RSA 72:12-a, VI (opportunity for municipality to move for rehearing or appeal); RSA 541-A:39, I (opportunity for municipality to submit data, views or comments). We have held that "the entitlement to notice of the proceedings and the opportunity to submit comments to the agency [does not] make one a party" for purposes of a "contested case" under the APA. Appeal of Town of Nottingham, 153 N.H. 539, 550, 153 N.H. 539, 904 A.2d 582, 594 (2006). If the legislature desired to permit a municipality which opposed a tax exemption application the opportunity for a formal hearing and to become a party to an adversarial-type proceeding, it could easily have done so. It did not. Accordingly, we conclude that DES was not required to treat the Town as a "party" as that term is statutorily defined in RSA 541-A:1, XII. Since the Town was not a "party" within the meaning of the APA, its arguments concerning its involvement in the DES proceeding do not implicate the requirements for a "contested case."
We consider only the plaintiffs' challenge to the trial court's conclusion with respect to the statement King made to the Eagle Tribune because only that challenge is adequately briefed. See Appeal of Town of Nottingham, 153 N.H. 539, 555 (2006) (stating that argument not adequately briefed is considered waived).