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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Merrimack No. 2010-806

TOWN OF NEWINGTON v. STATE OF NEW HAMPSHIRE & a. Argued: September 22, 2011 Opinion Issued: November 29, 2011 Baldwin & Callen, PLLC, of Concord (Steven M. Whitley on the brief, and Jed Z. Callen orally), for the petitioner. Sheehan Phinney Bass + Green, P.A., of Manchester (John-Mark Turner and Robert P. Cheney on the brief, and Mr. Turner orally), for respondent Pease Development Authority.

Michael A. Delaney, attorney general (K. Allen Brooks, senior assistant attorney general, on the memorandum of law), for respondent New Hampshire Department of Environmental Services.

LYNN, J. The petitioner, the Town of Newington (Town), appeals an order of the Superior Court (McNamara, J.) granting the summary judgment motion

of the respondents, the State of New Hampshire through the Pease Development Authority (PDA) and the New Hampshire Department of Environmental Services (DES). We affirm. The following facts appear in the parties' joint stipulation of facts or are taken from the trial court's order. In the 1950s, the federal government established the Pease Air Force Base (Pease AFB) in Rockingham County. In 1989, the Secretary of Defense approved the recommendation of the Commission on Base Realignment and Closure to close Pease AFB. In response, the legislature enacted RSA chapter 12-G (2003 & Supp. 2010), which, among other things, created PDA to accept title to the land of the Pease AFB on the State's behalf. Before the land was deeded to PDA, the United States Air Force engaged in a series of environmental impact analyses required by federal law. Following several iterations of environmental documents and deed restrictions, PDA accepted title to the Pease AFB land in three title transfers between 1999 and 2005. Shortly thereafter, the Town began the process of designating prime wetlands within its borders, pursuant to RSA 482-A:15 (2001), and subsequently submitted the designation of eighteen prime wetlands to DES, six of which are located on the former Pease AFB. DES initially "approved" the Town's request, but later clarified that it "did not purport to `approve' the legality of the Town's designation of prime wetlands located within PDA boundaries, nor would the agency have statutory authority to do so." Several months later, as part of a proposed construction project on PDA land to expand an existing office building, an alteration of terrain permit application was filed with DES. The Town objected, asserting that it involved fill within 100 feet of wetlands that the Town had designated as "prime" and, therefore, required a wetlands permit. DES disagreed. After the Wetlands Council dismissed its appeal for lack of jurisdiction, the Town filed a petition for declaratory and injunctive relief in superior court. Determining that this was "actually a relatively straightforward case," the trial court concluded that PDA was not required to comply with the Town's prime wetlands designations and, therefore, granted PDA and DES's motion for summary judgment. This appeal followed. In reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Sabinson v. Trustees of Dartmouth College, 160 N.H. 452, 455 (2010). If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled

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to judgment as a matter of law, we will affirm the grant of summary judgment. Id. We review the trial court's application of the law to the facts de novo. Id. The Town first argues that the trial court erred in concluding that RSA 12-G:13 exempts PDA from complying with the Town's prime wetlands designations. PDA and DES counter that the statute removed the Town's authority to designate prime wetlands on PDA property. The interpretation and application of statutes present questions of law, which we review de novo. Clare v. Town of Hudson, 160 N.H. 378, 384 (2010). We are the final arbiters of the intent of the legislature as expressed in the words of the statute considered as a whole. Id. We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meaning to the words used. Id. "We construe statutory provisions in a manner that is consistent with the spirit and objectives of the legislation as a whole." City of Manchester Sch. Dist. v. City of Manchester, 150 N.H. 664, 669 (2004). RSA 12-G:13, I, provides in pertinent part: [A]ny and all land use controls of the town of Newington . . . shall not apply to any of the property at Pease Air Force Base transferred, conveyed, or otherwise granted to the authority by the federal government or any agency thereof. [PDA] shall have the exclusive jurisdiction in adopting and establishing land use controls for the property at Pease Air Force Base transferred, conveyed, or otherwise granted to the authority by the federal government or any agency thereof. (Emphasis added.) The issue presented here is whether designation of prime wetlands under RSA 482-A:15 is a "land use control." Pursuant to statute, "`[l]and use controls' means all municipal ordinances and requirements or rules of [PDA] regulating the use, development, and improvement of property, including, but not limited to, zoning ordinances, subdivision regulations, site plan review regulations, and building, electric, plumbing, and fire codes." RSA 12-G:2, XVI. The Town asserts that "the designation of prime wetlands is a state requirement, not a municipal one." We disagree. "The State has delegated to municipalities authority to `regulate and restrict' certain land uses." Lakeside Lodge v. Town of New London, 158 N.H. 164, 168 (2008). Under RSA 482-A:15, I, "[a]ny municipality . . . may undertake to designate, map and document prime wetlands lying within its boundaries." (Emphasis added.) The local legislative body must then follow the procedures for enacting municipal zoning ordinances, see RSA 675:2, :3 (2008),

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in deciding whether to adopt the prime wetlands designation. RSA 482-A:15, II. This process is devoid of input from the State. The only role the State plays is a passive one: accepting and maintaining for public access all prime wetlands designations filed with DES by municipalities. Id. That the designation of prime wetlands by a municipality occurs pursuant to legislative authority does not alter the local character of the statute. See, e.g., RSA 31:17a (Supp. 2010) (establishing procedure for referendum regarding the use of fluoride in public water systems); RSA 672:1, I (Supp. 2010) (underscoring that land use regulations "have been and should continue to be the responsibility of municipal government"). Similarly, the role of the State in enforcing the statute does not transform its municipal character. The Town cites Green Crow Corp. v. Town of New Ipswich, 157 N.H. 344 (2008), as requiring that "all municipal land use control [must] be exercised under the authorities included in Title [LXIV

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