Committee hears bill to let DES waive removal on some dwellings over water

Tricia Malillo, Senate majority caucus director, presented Senate Bill 27 to the House Resources, Recreation and Development Committee as the sponsor could not attend. "It simply would specify how improvements can be made to dwellings over water," Malillo said, explaining the measure would align certain improvements with state building codes.

Attorney John Cronin, who described the proposal as coming out of a particular court case involving Newcomb family property, told the committee the bill would give the New Hampshire Department of Environmental Services (DES) limited flexibility to approve exterior improvements "in appropriate circumstances" rather than ordering removal. "We're looking to give waiver power, not in every circumstance, but in the appropriate circumstances when the DES looks at a situation and says it doesn't make any sense for the state and the taxpayers to spend thousands of dollars ... to order someone to tear down an improvement," Cronin said.

Cronin and others described a factual backdrop: older lakefront homes built decades ago that now sit in or over areas that modern law regulates as public water or shoreland. He said the Newcombs bought and rehabilitated a 1950s house with a back deck and small boathouse; the town building inspector approved plans and inspected construction, but a neighbor reported the work to DES and DES considered it a violation under the existing statute.

Darlene Forst, Wetlands Bureau administrator at DES, urged interim study. "We have serious concerns about what these changes would require us to do, what the legislature's intent for us to do would be, and what the impact of this law across the state would be," she said. Forst called the bill's language unclear and flagged that the specific court case cited in testimony remained active and not fully adjudicated. She said the statute at issue involves the public trust in the beds of "great ponds" and pointed out legal limits where towns cannot regulate docks because the state retains authority over structures in public waters.

Committee members pressed on definitions and scope. Representative Heather Darby asked whether the bill would effectively require DES to be familiar with local building codes; Cronin said DES already reviews local permits submitted with applications and relies on local building departments for confirmation. Several members, including Representative Jennifer Gould and Representative Brian Nabb, raised concerns about the bill’s treatment of decks and the definition of "footprint" and whether the bill could allow unlimited deck expansions if decks were not considered living space.

The committee noted the bill grew out of litigation. Representative Bruce Sargent pointed to a New Hampshire Supreme Court appeal involving Robert Newcomb; Cronin said the court had remanded and that the matter illustrated a broader class of similar properties.

At executive session the committee voted to retain SB 27 for further work. Representative Steve Donnelly moved to retain the bill; Representative Mark Bridal seconded. The roll call recorded a 15–1 vote to retain the bill for future consideration.

Supporters framed SB 27 as a narrow fix to preserve the public interest while avoiding what they called costly and counterproductive teardown orders for minimal-impact improvements. DES and several lawmakers said the bill needs clearer statutory language and legislative guidance before the department could implement any waiver authority.

If enacted as written, SB 27 would direct DES to consider waiver requests for certain exterior improvements to dwellings over water; the statute(s) DES relied on and that witnesses cited in testimony were discussed at length during the hearing and remain part of the legal context to be resolved by the legislature or courts.